Vanguard Contertops Development Agreement_DICWTHE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
TO: The Honorable Mayor and City Council Members
FROM: .Michael C. Van Milligen, City Manager
SUBJECT: Expansion of Vanguard Countertops, Inc. at the Dubuque Industrial
Center West
DATE: May 23, 2008
Economic Development Director Dave Heiar is recommending approval of a
Development Agreement with Vanguard Countertops, Inc. and approval of the sale of
3.555 acres of Dubuque Industrial Center West.
The terms of the Development Agreement include.
1) The purchase price is $100,000 per acre for 3.555 acres. An Acquisition Grant to
the developer reduces the cost to $50,000 per acre. Approximately 1 acre of this
site is identified for future expansion and if it does not occur, a portion of this
acquisition grant will need to be repaid to the City.
2) The property will be conveyed on or before July 1, 2008.
3) The company must construct a building of approximately 30,000 square feet
costing approximately $1.4 million.
4) Vanguard Countertops, Inc. must retain 11 (FTE) positions and create 10 new
(FTE) jobs within three years. The 21 (FTE) jobs must be retained for 5
additional years after the initial 36 months.
5) The Company will receive an 8-year TIF in the form of a yearly tax rebate on the
value of the assessable improvements.
6) Maylay Holdings, LLC will lease the site to Vanguard Countertops, Inc.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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
Masterpiece on the Mississippi
Dubuque
All-American City
2007
May 21, 2008
TO: Michael C. Van Milligen, City Manger r.,.
FROM: David J. Heiar, Economic Development Director
RE: Expansion of Vanguard Countertops, Inc. at the Dubuque Industrial
Center West
INTRODUCTION
This memorandum presents for City Council consideration a Resolution disposing of
approximately 3.555 acres identified on the attached exhibit to Maylay Holdings, LLC,
who will be constructing a 30,000 square foot manufacturing/office complex for
Vanguard Countertops, Inc. The attached Resolution approves the sale of this property.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation and
Vanguard Countertops, Inc. on an expansion at the Dubuque Industrial Center West.
Vanguard Countertops, Inc. intends to relocate from their current leased location at 600
Cedar Cross Road. They have committed to retaining the current 11 (FTE) positions,
and adding at least 10 (FTE) jobs at the new manufacturing complex.
Incorporated in 1961, Vanguard expanded from humble beginnings in a shop in the
alley behind Micro-Cite to its current location at 600 Cedar Cross Road in 1971. Plastic
laminate countertops became a sign of the times and the explosion of color was seen in
kitchens across the country. The building was expanded in 1979 to its current size of
approximately 14,000 sq. ft.
Brian Gilligan purchased Vanguard from the founder in 1997 and further developed the
wholesale counter top business while eliminating the retail end of the business. Under
new ownership, the company ramped up the commercial cabinet business which was in
its embryonic stage. In 2000 Vanguard sold the first store fixture to Flexsteel Furniture
and broke into the Point of Purchase Display market.
Since that first sale the company has developed the display business to include more
than a dozen customers resulting in Vanguard-made displays in thousands of stores
across the country and internationally. The list of Vanguard display and store fixture
customers include Crescent Electric, Theisens Farm and Home, Vendors Unlimited, of
course Flexsteel, and many more. Vanguard products can be found in Wal-marts,
Kohls, JC Penneys, Theisens, furniture stores across the country and many others that
non-disclosure agreements preclude us from mentioning. Vanguard has made displays
for Flexsteel, Christopher Lowell, Wrangler, Ralph Lauren, Pronto Cafe, Twin Cities
Financial, and many others.
Getting into the display business allowed Vanguard to bring to Dubuque the
manufacturing of products that were traditionally not available in Dubuque. Flexsteel
was buying from display companies in Tennessee and North Carolina, Vendors was
buying from a Madison, Wisconsin company, and Theisens was buying from a national
company in Indiana. Vanguard was able to give the Tri-State businesses a local option
when it comes to Store Fixtures and POP Displays. Additionally, Vanguard has landed
several clients and accounts from the Milwaukee and Chicago market and are now
building these displays in Dubuque. Madison, Wisconsin is the closest competitor in this
expanding area of business.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
the expansion. An Acquisition Grant reduces the asking price of the land from
$100,000/acre to $50,000/acre.
The 3.555 acre site includes approximately 1 acre intended for future expansion. If an
expansion does not occur within a 10 year time frame, the acquisition grant for this pro-
rated portion of land must be repaid to the City. If an expansion takes only a portion of
this extra land, the 10 year time limit restarts, until the complete expansion site is
utilized or the pro-rated land acquisition grant is repaid.
An 8-year tax rebate has been offered to the company to assist in their expansion and
relocation. This is different from many previous development agreements which
provided a 10 year rebate. The Urban Renewal District will expire in 2018 and therefore,
it is only possible to provide fora 8 year rebate. The rebate is a form of tax increment
financing without issuing a tax increment finance bond to loan monies to the company
upfront. As the company pays its future tax obligation on the new improvements, the
City will rebate 100% (minus debt service and the School District Physical Plant and
Equipment Levy) of the new TIF increment for 8 years.
The attached Development Agreement establishes the terms of the sale of the property
to Maylay Holdings, LLC on behalf of Vanguard Countertops, Inc. The key elements of
the agreement include the following:
1) The purchase price is $100,000 per acre for 3.555 acres. An Acquisition Grant to
the developer reduces the cost to $50,000 per acre. Approximately 1 acre of this
site is identified for future expansion and if it does not occur, a portion of this
acquisition grant will need to be repaid to the City.
2) The property will be conveyed on or before July 1, 2008.
3) The company must construct a building of approximately 30,000 square feet
costing approximately $1.4 million.
4) Vanguard Countertops, Inc. must retain 11 (FTE) positions and create 10 new
(FTE) jobs within three years. The 21 (FTE) jobs must be retained for 5 additional
years after the initial 36 months.
5) The Company will receive an 8 year TIF in the form of a yearly tax rebate on the
value of the assessable improvements.
6) Maylay Holdings, LLC will lease the site to Vanguard Countertops, Inc.
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 Development Agreement which
authorizes the disposition of the Dubuque Industrial Center West property to Maylay
Holdings, LLC on behalf of Vanguard Countertops, Inc. for the purpose of constructing a
30,000 sq. ft. manufacturing/office complex. This action supports the Council's
objectives to assist a local business expand its operations and create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:\USERS\DHeiar\Vanguard Tops\Final Disposition Memo.doc
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300 Main Street, Suite 120, Dubuque, Iowa 52001 P: 563.557.9049 I F: 563.557.1059 I E: gddc@greaterdubuque.org J
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. I87-08
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT
PROVIDING FOR THE SALE OF 3.555 ACRES IN THE DUBUQUE
INDUSTRIAL CENTER WEST TO MALAY HOLDINGS, LLC
Whereas, the City Council, by Resolution No. 168-08, dated May 19, 2008,
declared its intent to enter into a Development Agreement with Malay Holdings, LLC
and Vanguard Countertops, Inc. for the sale of 3.555 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 June 2, 2008 at 6:30 p.m. in the Historic Federal Building, 350
W. 6 Street, Dubuque, Iowa; and
Whereas, it is the determination of the City Council that approval of the
Development Agreement for the sale to and development of the Property by Malay
Holdings, LLC and Vanguard Countertops, Inc. 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 Malay Holdings, LLC and Vanguard Countertops, Inc. 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 2nd day of June, 2008
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA
MALAY HOLDINGS, LLC,
AND
VANGUARD COUNTERTOPS, INC.
This Agreement, dated for reference purposes the 2nd day of June, 2008, by and
among the City of Dubuque, Iowa, a municipality (City), established pursuant to the
Iowa Code and acting under authorization of Iowa Code Chapter 403, as amended
(Urban Renewal Act), Malay Holdings, LLC, an Iowa limited liability company with
its principal place of business at Dubuque, Iowa (Developer) and Vanguard
Countertops, Inc., an Iowa corporation with its principal place of business in
Dubuque, Iowa (Employer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City
has undertaken an Urban Renewal project (the Project) to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the
Urban Renewal Plan for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof, attached hereto as Exhibit A (the
Urban Renewal Plan); and
WHEREAS, the Urban Renewal Plan, as constituted on the date of this
Agreement and in the form attached hereto, has been recorded among the land
records in the office of the Recorder of Dubuque County, Iowa; and
WHEREAS, Employer has determined that it requires a new distribution
facility to maintain and expand its operations and employment in the Project Area;
and
WHEREAS, Developer and Employer desire to enter into an agreement for
the construction of a new distribution facility; and
WHEREAS, Developer has requested that City sell to Developer 3.555 acres
of which all are usable, legally described as Lot 1-4 of Dubuque Industrial Center
050708ba1
West 4th Addition identified on Exhibit B, attached hereto, in the City of Dubuque,
Dubuque County, Iowa, together with all easements, tenements, hereditaments,
and appurtenances belonging thereto (the Property) so that Developer may develop
the Property, located in the Project Area for the construction of a manufacturing
facility and thereafter lease such property to Employer for use and occupancy with
appurtenant uses which City has determined and represented to Developer and
Employer is in accordance with the uses specified in the Urban Renewal Plan and
in accordance with this Agreement; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The purchase price for the Property (the Purchase Price)
shall be the sum of Three Hundred and Fifty-five Thousand, and Five Hundred
Dollars $355,500 (One Hundred Thousand Dollars ($100,000.00) per usable acre
for 3.555 usable acres) with a total acquisition of 3.555 acres, which shall be due
and payable by Developer in immediately available funds in favor of City, on or
before July 1, 2008, or on 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, or in the event the
parties fail to close within thirty days after the Closing Date less any expenses
incurred by City in connection with this Agreement.
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions
and covenants of record as of the Closing Date hereof to the extent not objected to
by Developer as set forth in this Agreement, and to the conditions subsequent set
forth in Section 5.3, below:
(1) City, at its sole cost and expense, shall deliver to Developer an
abstract of title to the Property continued through the date of 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 when
the Purchase Price is paid in full in the aforesaid manner.
2
(2) Developer shall have until the Closing Date to render objections to
title, including any easements or other encumbrances not satisfactory to
Developer, in writing to City. Developer agrees, however, to review the
Abstract promptly following 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 or
Employer'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 the City. City shall promptly
exercise its best efforts to have such title objections removed or satisfied and
shall advise Developer of intended action within ten (10) days of such action.
If City shall fail to have such objections removed as of the Closing Date, or
any extension thereof consented to by Developer, Developer may, at its sole
discretion, either (a) terminate this Agreement without any liability on its or
Employer's part, and any sums previously paid to City by Developer (or paid
into escrow for City's benefit) shall be returned to Developer with interest, or
(b) take title subject to such objections with Employer's prior written consent.
City agrees to use its best reasonable efforts to promptly satisfy any such
objections.
1.3 Rights of Inspection, Testing and Review. Developer and/or Employer, their
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/or Employer and their agent 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 and Employer 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 or Employer, their 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 they consider appropriate.
1.4 Representations and Warranties of Citx. In order to induce Developer and
Employer to enter into this Agreement and purchase the Property, City hereby
represents and warrants to Developer and to Employer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer or Employer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
3
(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.
(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 and
Employer 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 Employer's intended use of the Property as a distribution facility is a
permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
4
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer 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 or Employer.
(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 Employer and hold Developer and Employer 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 and Employer in
the development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
5
(17) The representations and warranties contained in this Section 1.4 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 and Employer under this
Agreement are subject to fulfillment, on or before the Closing Date, of the following
conditions:
(1) The representations and warranties made by City in Section 1.4 shall
be correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit H.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Employer, in its sole and absolute discretion, having approved of any
improvements by Developer hereunder.
(4) Subject to Employer's written approval, 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 and Employer respectively, in
their sole opinion. City shall cooperate with Developer in attempting to
obtain any such approvals and shall execute any documents necessary for
this purpose, provided that City shall bear no expense in connection
therewith. In connection therewith, the City agrees (a) to review all of
Developer's plans and specifications for the project and to either reject or
approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that
the City has approved such plans and specifications, and that the same are
in compliance with the Urban Renewal Plan, this Agreement and any other
applicable City or affiliated agency requirements, with the understanding that
Developer and its lenders shall have the right to rely upon the same in
proceeding with the project; (c) to identify in writing within ten (10) working
days of submission of said plans and specifications, any and all permits,
approvals and consents that are legally required for the acquisition of the
Property by Developer or Employer, and the construction, use and
occupancy of the project with the intent and understanding that Developer,
Employer, and their respective lenders and attorneys will rely upon same in
establishing their agreement and time frames for construction, use and
6
occupancy, lending on the project and issuing legal opinions in connection
therewith; and (d) to cooperate fully with Developer and Employer to
streamline and facilitate the obtaining of such permits, approvals and
consents.
(5) 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.
(6) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(7) Developer shall have furnished City with evidence, in a form
satisfactory to City (such as a letter of commitment from a bank or other
lending institution), that Developer has firm financial commitments in an
amount sufficient, together with equity commitments, to complete the
Minimum Improvements (as defined herein) in conformance with the
Construction Plans (as defined herein), or City shall have received such
other evidence of Developer's financial ability as the reasonable judgment of
the City requires.
(8) Developer shall have furnished City with evidence in a form as
required by Section 4.2 and satisfactory to City of Employer's full-time
equivalent employees (FTE) in Dubuque, Iowa, as of September 26, 2007.
(9) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(10) Receipt of an opinion of counsel to Employer in the form attached
hereto as Exhibit E.
(11) Developer and Employer shall have the right to terminate this
Agreement at anytime prior to the consummation of the closing on the
Closing Date if either Developer or Employer determines in its sole discretion
that conditions necessary for the successful completion of the Project
contemplated herein have not been satisfied in either party's 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.
1.6 Closing.
Closing Date.
Closing Date,
The closing of the purchase and sale shall take place on the
Exclusive possession of the Property shall be delivered on the
in its current condition and in compliance with this Agreement,
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including City's representations and warranties regarding the same. Consummation
of the closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing have been satisfied or waived.
1.7 City's Obligations at Closing. At or prior to the Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit F (the Deed) and
appropriate resolutions of the City Council conveying to Developer
marketable fee simple title to the Property and all rights appurtenant thereto,
subject only to easements, restrictions, conditions and covenants of record
as of the date hereof and not objected to by Developer or Employer as set
forth in this Agreement, and to the conditions subsequent set forth in Section
5.3 below.
(2) Deliver to Developer the Abstract of Title to the Property.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1.8 Delivery of Purchase Price; Obligations At Closing. At closing, and subject
to the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay the Purchase Price to City
pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting
credit pursuant to Section 3.1 below.
1.9 Closing Costs. The following costs and expenses shall be paid in connection
with the closing:
(1) City shall pay:
(a) The transfer fee, 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.
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(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.
(c) Developer's broker and/or real estate commissions and fees, if
any.
(d) A pro-rata portion of all taxes as provided in Section 1.10.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that
end prior to the Closing Date. Real estate taxes for the fiscal year in which the
Closing Date occurs shall be prorated between City and Developer to the Closing
Date on the basis of a 365-day calendar year. Developer shall pay or cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the year currently
payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer is
building a manufacturing facility on the Property for Employer. Specifically,
Developer is charged with constructing the building and certain internal systems
thereto, and with finishing the building including, without limitation, all interior
improvements (the Minimum Improvements); all as more particularly depicted and
described on the plans and specifications to be delivered to and approved by City
as contemplated in this Agreement. Developer hereby agrees to construct on the
Property a manufacturing facility of not less than thirty thousand (30,000) square
feet of floor space along with necessary site work as contemplated in this
Agreement at an estimated cost of approximately $1,400,000.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of Property and the construction of Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the Property, in the
records of Dubuque County, Iowa. Developer shall submit to Employer and City,
for approval by Employer and 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 Employer and City.
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2.3 Timing of Improvements.
(1) Developer hereby agrees that construction of Minimum Improvements
on the Property shall be commenced within three (3) months after the
Closing Date, and shall be substantially completed by June 30, 2009. The
time frames for the performance of these obligations shall be suspended due
to unavoidable delays, meaning delays, outside the control of the party
claiming its occurrence in good faith, which are the direct result of strikes,
other labor troubles, unusual shortages of materials or labor, unusually
severe or prolonged bad weather, acts of God, fire or other casualty to the
Minimum Improvements, litigation commenced by third parties which, by
injunction or other similar judicial action or by the exercise of reasonable
discretion directly results in delays, or acts of any federal, state or local
government which directly result in delays. The time for performance of such
obligations shall be extended only for the period of such delay.
(2) Employer acknowledges that one (1.0) acre of the Property is
intended as an expansion area. If such expansion area is not developed
within ten years from the date of this Agreement with improvement
substantially similar in character to the Minimum Improvements, Employer
shall pay to City within thirty days of such date the Acquisition Grant for such
part of the expansion area not so improved ($50,000.00 x number of acres
not so improved). Such ten-year period shall begin to run on the date of the
latest improvement to the Property which is substantially similar in character
to the Minimum Improvements. Provided, however, nothing contained in this
paragraph or Agreement shall be construed to limit Employer's expansion or
development of the Property to the fullest extent permitted by the relevant
zoning regulations affecting the Property.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements; City shall furnish Developer with an
appropriate instrument so certifying. Such certification (the Certificate of
Completion) shall be in recordable form and shall be a conclusive determination of
the satisfaction and termination of the agreements and covenants in this
Agreement and in the Deed with respect to the obligations of Developer to
construct Minimum Improvements. The Certificate of Completion shall waive all
rights of re-vestment of title in City as provided in Section 5.3, and the Certificate of
Completion shall so state.
2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall
fail to complete the Minimum Improvements as required by this Agreement such
that re-vestment of title may occur (or such that the City would have the option of
exercising its re-vestment rights), then Developer's lender or Employer shall have
the right, but not the obligation, to complete such Minimum Improvements.
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SECTION 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to
make an Acquisition Grant to Developer on the Closing Date, or such other date as
the parties shall mutually agree upon in writing, in the amount of One Hundred
Seventy-Seven Thousand and Seven Hundred and Fifty Dollars ($177,750.00)
(Fifty Thousand Dollars ($50,000.00) per acre 3.555 usable acres). The parties
agree that the Acquisition Grant shall be payable in the form of a credit favoring
Developer at time of Closing with the effect of directly offsetting a portion of the
purchase price obligation of Developer.
3.2 Economic Development Grant.
(1) For and in consideration of Developer's and Employer's obligations
hereunder, and in furtherance of the goals and objectives of the urban
renewal plan for the Project Area and the Urban Renewal Law, City agrees,
subject to Developer and Employer being and remaining in compliance with
the terms of this Agreement, to make sixteen (16) consecutive semi-annual
payments (such payments being referred to collectively as the Economic
Development Grants) to the Employer if Employer owns or leases the
Property and/or Improvements thereon during the period such tax increment
revenues accrue, otherwise to Developer (and City may rely upon a
statement from Employer or Developer with respect to Employer's ownership
or lease status for such purposes without any obligation to verify such
status), as follows:
November 1, 2010 May 1, 2011
November 1, 2011 May 1, 2012
November 1, 2012 May 1, 2013
November 1, 2013 May 1, 2014
November 1, 2014 May 1, 2015
November 1, 2015 May 1, 2016
November 1, 2016 May 1, 2017
November 1, 2017 May 1, 2018
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law in amounts
equal to the actual amount of tax increment revenues collected by City under
Iowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under Iowa Code Section 403.19 and excluding any
interest that may accrue thereon prior to payment to Employer or Developer)
during the preceding six-month period in respect of the Property and
Minimum Improvements constructed by Developer or Employer (the
Developer Tax Increments). Developer recognizes and agrees that the
Economic Development Grants shall be paid solely and only from the
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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, 2009,
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 the Employer if Employer owns or leases the
Property and/or Improvements thereon during the period such tax increment
revenues accrue, otherwise to Developer (and City may rely upon a
statement from Employer or Developer with respect to Employer's ownership
or lease status for such purposes without any obligation to verify such
status), 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 the Employer on November 1, 2011, and May 1,
2012.)
(3) The Economic Development Grants shall be payable from and
secured solely and only by the Developer Tax Increments paid to City that,
upon receipt, shall be deposited and held in a special account created for
such purpose and designated as the "Vanguard 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 Vanguard 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 a.ny manner by other tax increments revenues or by general
taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Employer as the Economic
Development Grants in any one year and under no circumstances shall City
in any manner be liable to Employer so long as City timely applies the
Developer Tax Increments actually collected and held in the Vanguard TIF
Account (regardless of the amounts thereof) to the payment of the Economic
Development Grants to Employer 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
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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 or Employer with respect to the use thereof.
SECTION 4. COVENANTS OF EMPLOYER
4.1 Job Creation.
(1) Employer shall create ten (10) full-time equivalent employees (FTE) 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 Employer has
Eleven (11) FTE in Dubuque, Iowa, as of September 26, 2007. FTE shall be
calculated by adding full-time and part-time employees together using 2080
hours per year as a FTE employee. In the event that the certificate provided
to City under Section 4.2 hereof on January 1, 2018 discloses that Employer
does not as of that date have at least 21 FTE employees as provided
hereinabove, Employer if Employer owns or leases the Property and/or
Improvements on that date (and City may rely upon a statement from
Employer or Developer with respect to Employer's ownership or lease status
for such purposes without any obligation to verify such status), otherwise
Developer shall pay to City, promptly upon written demand therefor, an
amount equal to $ 8,465.00 per job not created or maintained ($177,750
divided by 21 FTE _ $ 8,465.00). (In the event that Employer is required to
pay City under the second paragraph of Section 2.3, the amount per job not
created of $ 8,456.00 shall be reduced by the amount of such payment). The
payments provided for herein shall be the City's sole remedy for the failure of
Employer to meet the job creation requirements of this subsection 4.1(1).
(2) In addition, for the positions that Employer fails to create and maintain
for any year during the Term of this Agreement, the semi-annual Economic
Development Grants for such year under Section 3.2 shall be reduced by the
percentage that the number of such positions bears to the total number of
positions required to be created and maintained (21 FTE's) by this Section
4.1. (For example, if Employer has 18 FTE employees, the semi-annual
Economic Development Grants would be 85.7% (18/21 employees) of the
Tax Increment Revenues received by City would be paid by City). The
reduction of the semi-annual Economic Development Grants shall be the
City's sole remedy for the failure of Employer to meet the job creation
requirements of this subsection 4.1(2).
4.2 Certification. To assist City in monitoring the performance of Employer
hereunder, not later than January 1, 2011, ,and again not later than January 1 of
each year thereafter during the term of this Agreement, a duly authorized officer of
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Employer shall certify to City in a form acceptable to City (a) the number of full time
jobs employed 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, Employer is not or
was not in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or
the giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during such period, or if the signer is
aware of any such default, event or Event of Default, said 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 February 28, 2011, and by February 28 of each
year thereafter during the term of this Agreement
4.3 Books and Records. During the term of this Agreement, Developer and
Employer shall keep at all times, and allow access to City's representatives upon
reasonable notice for the purpose of verifying the requirements of Section 4.1,
proper books of record and account in which full, true and correct entries will be
made of all dealings and transactions of or in relation to the business and affairs of
Developer and Employer in accordance with generally accepted accounting
principles consistently applied throughout the period involved, and Developer and
Employer shall provide reasonable protection against loss or damage to such books
of record and account.
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 Employer or another person pursuant to the provisions of this
Agreement.
4.5 No Other Exemptions. Except as provided in this Agreement, during the
term of this Agreement, Developer and Employer agree not to apply for any state or
local property tax exemptions which are available with respect to the Development
Property or the Minimum Improvements located thereon that may now be, or
hereafter become, available under state law or city ordinance during the term of this
Agreement, including those that arise under Iowa Code Chapters 404 and 427, as
amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
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):
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(a) All risk builder's risk insurance, written on a Completed Value
Form in an amount equal to one hundred percent (100%) of the
replacement value when construction is completed;
(b) Insurance as set forth in the attached Insurance Schedule.
(2) Upon completion of construction of the Minimum Improvements and
up to the Termination Date, Developer shall maintain, or cause to be
maintained, at its cost and expense (and from time to time at the request of
City shall furnish proof of insurance in the form of a certificate of insurance)
insurance as follows:
(a) All risk property insurance against loss and/or damage to
Minimum Improvements under an insurance policy written in an
amount not less than the full insurable replacement value of
Minimum Improvements. The term "replacement value" shall
mean the actual replacement cost of the Minimum
Improvements (excluding foundation and excavation costs and
costs of underground flues, pipes, drains and other uninsurable
items) and equipment, and shall be reasonably determined
from time to time at the request of City, but not more frequently
than once every three (3) years.
(3) Developer shall notify City immediately in the case of damage
exceeding $500,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. Net
proceeds of any such insurance (Net Proceeds), shall be paid directly to
Developer as its interests may appear, and Developer shall forthwith repair,
reconstruct and restore the Minimum Improvements to substantially the
same or an improved condition or value as they existed prior to the event
causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net
Proceeds of any insurance relating to such damage received by Developer
to the payment or reimbursement of the costs thereof, subject, however, to
the terms of any mortgage encumbering title to the Property (as its interests
may appear). Developer shall complete the repair, reconstruction and
restoration of Minimum Improvements whether or not the Net Proceeds of
insurance received by Developer for such Purposes are sufficient.
4.7 Preservation of Property. 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
15
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 or after such person's tenure. In connection with this
obligation, Developer shall have the right to rely upon the representations of any
party with whom it does business and shall not be obligated to perform any further
examination into such party's background.
4.10 Non-Transferability.
(1) Until such time as the Minimum Improvements are complete (as
certified by City under Section 2.4), this Agreement may not be assigned by
Developer except to Employer nor may the Property be transferred by
Developer to another party except Employer without the prior written consent
of City, which shall not be unreasonably withheld. Thereafter, Developer or
Employer shall have the right to assign this Agreement and upon assumption
of the Agreement by the assignee, Developer shall no longer be responsible
for its obligations under this Agreement.
(2) City acknowledges that Developer intends to transfer the
Development Property and Improvements thereon to Employer, and City
hereby consents to such transfer.
4.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an industrial manufacturing center 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
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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) 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
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 or Employer
for any damage or injury to the persons or property of Developer or
Employer or their officers, agents, servants or employees or any other
person who may be on, in or about the Minimum Improvements due to any
act of negligence of any person, other than any act of negligence on the part
of any such Indemnified Party or its officers, agents, servants or employees.
(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
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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.
(6) The provisions of this Section shall inure to the benefit of only the
Indemnified Parties, Developer and Employer.
4.13 Compliance with Laws. Developer and Employer 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 or Employer.
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 or Employer 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.
(3) Transfer of any interest by Developer of the Minimum Improvements
except to Employer in violation of the provisions of this Agreement prior to
the issuance of the final Certificate of Completion.
(4) Failure by Developer or Employer 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 Employer (and the holder of any mortgage
encumbering any interest in the Property of which City has been notified of in
writing) of the Event of Default, but only if the Event of Default has not been cured
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within sixty (60) days following such notice, or if the Event of Default cannot be
cured within sixty (60) days and Developer or Employer does not provide
assurances to City that the Event of Default will be cured as soon as reasonably
possible thereafter:
(1) City may suspend its performance under this Agreement until it
receives assurances from the defaulting party, deemed adequate by City,
that the defaulting party will cure its default and continue its performance
under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all
amounts expended by City in connection with the funding of the Acquisition
Grant to Developer, and City may take any action, including any legal action
it deems necessary, to recover such amounts from the defaulting party;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
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 the 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 (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
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 or Employer 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
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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 or Employer do 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, in a form
reasonably acceptable to City and to Developer's first mortgage lender.
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
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 the City) existing on the Property or part thereof
at the time of re-vesting of title thereto in City or to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to
20
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 ~reement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of Litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.8 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer or Employer may take any action, including legal, equitable
or administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer or
Employer, or to enforce performance and observance of any obligation, agreement,
or covenant of City under this Agreement. Developer may suspend their
performance under this Agreement until they receive assurances from City,
21
deemed adequate by Developer or Employer, that City will cure its default and
continue its performance under this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
If to Developer: Brian Gilligan
Malay Holdings, LLC
16783 South Mound Road
Sherril IA 52073
Phone: (563) 552-1789
With copy to: Allan Carew
Fuerste, Carew, Coyle, Juergens &Sudmeier
151 W. 8t" Street
Dubuque IA 52001
Phone: (563) 556-4011
If to Employer: Brian Gilligan
Vanguard Countertops, Inc.
600 Cedar Cross Road
Dubuque IA 52003
Phone: (563) 556-7600 x 4
With copy to: Allan Carew
Fuerste, Carew, Coyle, Juergens &Sudmeier
151 W. 8t" Street
Dubuque IA 52001
Phone: (563) 556-4011
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. 13t" Street
22
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 Employer and their respective successors and
assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2018 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted 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. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as Exhibit
G in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
costs for so recording.
CITY OF DUBUQUQ, IOWA
By: Roy D. Buol, Mayor
By: Kevin S. Firnstahl, Assistant
City Clerk
MALAY HOLDINGS, LLC
By: Brian Gilligan, President
VANGUARD COUNTERTOPS, INC.
By: Brian Gilligan, President
List of Exhibits
Insurance Schedule A
Exhibit A Urban Renewal Plan
Exhibit B Legal Description
Exhibit B-1 Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Opinion of Counsel to Vanguard Countertops, Inc.
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
24
MIStlRANCE SiECt1EDUlE A
INSURANCE RECIIINtEMENTB FOR TENANTS AND LEiSEEi OF CITY
PROPERTY OR VENDORS SUPPLIERS. SERVICE PROVIDERS) TO THE
CITY OF DIJEtJQIlE
1. Ali policies Of insurance required hereunder shad be with an insurer authorized to do
busir-ess in Iowa. AN Msurers shah have a rating of A or bather ~ the current A.M.
Best Rating Guide.
2. AN Certtfic~tes of Insurance required hsnunder shah provide a thirty (30} day rwtic:e
of cancsMadion to ~e City of Dubuque, except br a fen (t0) day notice for rwn-
payinent, N cance~ation is prior to the expiraRior- dafe_
3. shad lixrwsh a signed CertificaN of insurance b the City of
Dubuque, Iowa for tl~e coverage required in Paragraph 6 below. Such certitiicstes
shah !d'I`~.4~.4 of the foNowing policy endasemenis:
a} Corrirriercial General t.isbiNty poor is primary and r~on-cor-tribt,~g.
b} Camierciaf General l.gibikty additional ins+urod endorsement.
c} Gowemmental InxrxrYtiry Endorsements..
4. Each cert~ale shall be submitted to the contracting departrrient of the City of
Oubuque.
5. Failure to provide minimum coverage shah rwt be deemed a waiver of these
requirements by the City of Dubuque. Failuro to obtain or maintain the requ~ed
insurance shay be considered a material broach of this agreement.
6. shad be required to carry the following minimum
coveragellimits or greater if required by Isw or other legal agreement:
Gertieral Aggregate Limn 32,000,000
Products-Completed Operations A~ggn~ate Limit 51.000.000
Personal arxi Advertising Ir~ury L~ttit 31,000,004
Each Occurrence Limit 31,000,000
Fire Damage Lanit (any one occurrerwe} 3 50,000
AAedicai Payments 3 5.000
This coverage shall be wMfen on an oocurrerxx, not a claims made form. Form CG
25 0~ 03 g7 `Desgnafad Location (s) General Aggregste Lam" shah be included..
Ali deviations ar exclusions from the standaM iS0 aorrxi^ierciai general liability form
CG 0001, a Busiriesa Owners forrrt BP 0002, sha8 be clearly identified.
1 of 2
January 2008
25
MiSUiil1NCE SCHEDULE A (Cont~ued}
MlSURANCE FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS} TO THE
CITY OF Otl!!EK'~UE
Govemmentai Immunity Endorsement identical or equivalent b form attached.
Additbnai Insurod Requireement:
The Cih- of DubuqueR inckxNr~g aN its elected and appointed offrcials, all its
empbyses and volunteers, aN its twards. cornmissiora and/or authorities and
their ttasrt! memt~ers, empbyses and votunteen shall be Warned as an additional
inwrsd on General LiabNity Policies using ISO endorsement CG 20 26 0704
"Additional lnwted -Designated Penton or Organization," or it's equivalent -
See Specimen
.
Statutory for Coverage A
Empktyers liabiNty:
Each Aoc~dent S t 00,000
Each Empbyse - Disease 5100,000
Policy limit - D~ease 5500.000
l.L..L'.~1. .1 .l i
.~J L l~a.a ~LL la•.~ °al\~1 i..
Coverage b be delennined on a case by case basis by Finance Oiredor.
Completion Checklist
Certificate of Liability instuartoe (2 Pages}
[] Designated location(s) Ganend Aggregate limit CG 25 04 03 97 (2 Pages)
^ Ardditional insurod 20 28 0~ 04
^ Governmental tmmuniNies Endorsement
2of2
Jsnuary 2008
26
x tram
J1 x cww acuw
t rooaEw+a tart ~/ rEr
1
Aam orowatwanr oorrwcoa~pttar~ s 1,000,080
x rw+rutrro eCo~soa~+b
A AttOMrlEOMlTOS MwA7R1f
~ f
aC/eotltEDAtlTDi
tal1ED~4Ji06 •ooav wra-r t
aHrroa Atir.c.~1r~U
n~orwtYr o
tr« .wr«r~a s
a~oc twurr o oar , a Nt •
ar.~uso area tww
~vr00h~r s
eaaau-u~iuer s
oca,a ~ aAa~tr~ ~
ocnucrac
t tar t o
A ~o ~ iww taro
AAIM i110PalETOWaART~MEWENC4JtNE
dncaaaaewlit ooauoEa+
City of DaeoQw la ilatad as as addltlaaal aaaasad en 9reasai liability poliaias wlnq ir0 andosaaa»at loss 06 2021
4't0e '#AOltlaoal tad Nrraow Os Orgatfisatioa~ or ita a¢-irala~t. OaeMSal Llablilty palmy sa priaasy i
me-aoatsi6ot3oq. lbss CG !!W Qm~7 'OMI~-abd LOOatiav q~nassl liability apgrapata ilut is lwcludrO. Oews~arrnta
CiL:Y O! Dt$i{1QW
so K.a.t iat:s scz..t
c~t~.>Q,y., su szoai
ACORO 2t ~l00110t~
MIMlElwaga A~
M01IL0 Alitt d tla? Arb11r OgdMW /~OI,IQIq N CINICaWb NI~OnE 1!E
tawaa~ wa ratai0r. nit allur+o wNNMa wKt aweaAVOa to wa.
30 ours aaa~ttp ~o~ICt wo M Ota11RICAK IIOtOea wurra ro Tx[ tom. aun
rAttlllt 1a oo ao aw-u ayroaa ro oauaunon a uuaRnr o. w+n Rrw uraN na
A~rnrairooAaaa
~_~
oACOIID OOMOItATgll 1!M
'YM-YadM as.~er! Is AOOµ~1t6a5 •a~ ~ M 2
2/
tNe rw~s of N~Naiace 1AS1131 lE~larwanE ~ ~esuco ro tNt MIitM1ED wr~o ABOVE rat --1E rOtrcr rE1g00 wpC+-tlD. NoTAeow3 +wr
tE~ eR ca«omoM as ANY OOtITRACT OR OR~EIt ooa~r win eEErECr TO wwcx TMIa ceRrr~-n w-r ~e ~uEO OR wr PE1CiAM.
n~c way A~oim~o sr reE rotu~s ova K a~uEes ro Au n~E . Exclv~uoxs AMO c~+onraNa os' atMx POtK~Es
MAPORTANT
a ~+. o«tAfrs~s hotdsr is an ADOtTtONAL tt+t~o, the ~~ must a «aas.e_ ~ k an ws
artMctls doss not aonbr riAMs b the a.UtKa1s twldsr in Mu d w~!-.ntlo~r,i«n«~IC:).
K SU6Rt?CA'TION tS VYAtVEO, b pM terms end o0r1dlMOnt d Mss poMq, osrtsh Poiciss mM ~ ~+
•~. A staASrMnt on ~ doss not Contu rf~ts to tlrr grNAcsis hoktsr in isu of sud+
sndo++tsn~sr+t(s).
•~::~~~
tns csrti4tc.te a Uawanoe on tt-e rswrs~ sods a aa. brm das na consMlwe . corMrsa ~..~- ~ +.~
W»~uw(f). au~thor~sd rsprrprNMhrs or proeAwsr, and tn• csrtfllosts bolder, nor doss ~ ~ a ne~ett-
«n«a. eoa.ra or a1lsr ttis aoreraps stiordsd ey IM pordes ~t.d t~,enon
28
POLICY ~:
CAAtiM~tC1111. GENElt/1t. L,tAalt.tTY
CO 23 04 fi3 ti7
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DESIGNATED LOCATION 3
GENERAL AGGREGATE LI T
Thy ant modinea insurance provided under the folbwlnp;
COIMMERCtAL GENERAL L1+4BU.ITY COVERAGE PART
SCHEDULE
(N no entry appesn shave, information required b oompiete ldtis erxtorsemenl wUi be showr+ in the Dectsrs~ior~s
as appNcsbN b this endorsement.)
A. Far ail awns vrttich the insur~ad b®oorr+es NpaMy
obligated b pay as dan-ages eased by oocur-
ronoes under COVERAGE A (SECT1taN q. and
for elI medlcat expenses t~rsed by aociderws
under COVERAGE C (SECTION Ile wttid'- pr- be
attria~ted oNy b oparstions st a single deaig-
nsted "Iocaibn` shown lwn the Schedule above
1, A aapatsla Desapnsted location Genera!
AgpregaN Liettit appMes b ead- designated
'location', and that ~ is equal b the
anwunt of the GenerN Agpn~late limit
shown in 1M Dedsntions.
t The tassignuted Location General Aggregate
Limit is the most ws wlli pay for the sum o/ aN
damages ur>ddr COVERAGE A, except dam-
sgea because of "~Y Y" ~ 'PRY
damage' included Mn the 'products-completed
operetions hazard', and for medical expenses
under COVERAGE C regardless of the num-
ber ot:
a. Insureds;
b. Ctelms made a "suits" brought: or
c. Persons or orgeniratior~a tusking deans or
bring#ng "sw~s",
3. Any payments made under COVERAGE A br
dsmsges or under COYERAI3E C br madresi
expanses shah rsduee the Designated Loca•
Lion General Aggregate LknA to that desip-
nated 'bcation', Such payrneras shag rwt re-
duce the Genera! Ag~egste UrrNd shown iR
the Dedaraeons nor st+aii they reduce any
other Desipnsbd Lor~tion Gensnd A9Dre-
t~ Limit for any other desigruiuM 'bcation"
shown in the Sd+edWe above.
4. The limiq shown in the Dedarai4ns for Each
O~oatsrence, Fire Damage and Medics! Ex-
pense continue to apply. However, kostesd of
being subJect b the General O~ggregttoe Limit
shown M the Oedaratbns, such Nmits be
aubjed to ~ applicable OesignaNsd Location
Genera! Aggregate Limit.
a. For all sums which be Insured t>wecomes aegaily
obUgatsd b pay as ds~ SECTION i), andr
renoes" urxlsr COVERA
for au medd~ expenses caused by aoddonts
under COVERAGE C (SECT~N ly, which c~--
nat be ataitwad only b operetkxtis st s single
designated 'locetlon" Shawn ~ the Sdredule
above:.
1. A»y psym~ts msde under COVERAGE A for
damages or under COVERAGE C br medcal
expenses shall r+adiuce the arnouest avaitsbte
under the Genera! Lbnit or the
Praduds~Compielad Aggregsle
limit wttichsver is appticsbk: and
2. Such payments a1ro11 not reduce any tae*ig-
nated Location t;enersrl Aggregate Limit
CG ZS Ot 03 07
Paps 1 of Z
29
ccizsaosn
C. WMr- oo+rorape for ttat~llEy sria+q out d a+e
operations trasa-d' ~ pro-
vidad, any payments for dan~as t~ecsuae of
~~ ~
reduw Ere Products-Comphltld Optlratbr-s Ap-
yrepaa Unit, and not reduce the t3er»rat Age
predate lknit rwr Ere t.oation Carr
anal llpprrgw lirrdt.
D. For we purposes d gtts endorsarnsnt. Ere OaTt-
nilbra Section is amended by E-e sdd~on d
the toNoMAnp debnition;
'locsoon` means pramiaas MnroMrg otie :stns or
coro+ecErp rota. or pnenriaes whose oorr»ctiort b
ir+~rrupNd oMy by s street. roadway, walervray
or npht-ot-way of a rar`kosd.
E. The provisbna d LknMs OI ~-wranat (SECTKiN
NI) not ott»rwiaa rnodiliaad by rata errdorssmant
ahsa CorMinue b epply sx stipilatsd..
Copyright. Inauranca Senriwa Offacs. Mrc., tla913
PaEa 2 0~ 2
CO 2!i 04 03 !T
30
CAMtAERCW. OENEItAL uAaN.ltY
CD 20 2d 0704
THIS ENtN?R$EMENT CHANGES THE POLICY. PLEASE REAO R CAREFtH.LY.
ADDITIONAL INSURED -DESIGNATED
PERSON OR t~RGANIZATION
Th+s enaonemeM modl4es iroturance provided under the toltoww-p:
COtNMERCIAt. tat?t~RAi. t.IABIL.ITY COVERAGE PART
The City of Dubuque, including aW its elected >~nd appoint~ecl officials,
aN ks empbyees and volunteers, aW its boards, c~ontrrlissions andtor
suthorities and their board members. empbyees and vokmteers.
Section tr -who is An Insured is amended to in-
clude as an additional Neared the personls) ar or-
9anlzation(s) shown h the schedule, but only with
respect b NabiNty for "bodily k~jucyry`~...'~prwoperty dam-
age" or `personal and advsNeiq . g..7 wed, in
whale W M1 Dart, by 1~ ads Qr OINSSgnS Or file ads
Ot OrrMetloni of those adrg On yor,r behaNF
A. kl 1l10 parronnanoe o< 1~ Wl~Owlq Opira00ns; M
B. ~1 COrlneClfOfl With yow promises owned by or
ranted to you.
All Hrma and conditions of thb palklr sppyr unless modNNd try this eridorsereerrt.
Ct3 ZO ~ O7 04 IncMxles oopyriphted msterist of tns~xanoo Suvioas aM-o., tnc. wst+ permistlau~ Pane 1 or 1
o lea , tnc., zoaA
31
CRY OF DtJ~UQUE~ IOWA
t~OYERNMENTAI ~MtNriT~s ENOOR8E~NT
' The inwrance carrier expressly agrees and
states that the purchase of policy and the inducting of the City of Dubuque, Iowa
as an Additional Inwrod does not waive any of the defenses of govemmentai
irnrtwnit)- avail~ie to the City of Dubuque, Iowa under Code of Iowa Section 670.4
~ it is now exist: and ss ~ may be amended from time to tare.
2. Claims Coverasie. The a~sursnce carrier further agrees that Chia policy of insurance
shah Dover only those daims not subject to the de~fenae of gavernmen#ai anmunity
under the Code of Iowa Section 870.4 as it rww exists and as it may be amended
from time to time. Those daims not subject to Code of Iowa Section 870.4 shah be
covered by the terms and conditions ~ the insurance poNcy.
3. Assertion of Government Immunav. The City of Dubuque, Iowa shall be reapons~le
for asserting any defense of governmental immunity, and may do so at any time and
aha~ do so upon the timely written request of the insurarx;v carrier.
4. Non-Denial of Covera4e. The insurance carrier shall rwt deny covera~a ur-der this
policy and the arsurance carrier shalt not deny any of the rights and benefda
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
immunity unless and until a court of competent jurisdiction has ruled in favor of the
defense(s) of govemmentai anmunity asserted by the City of Dubuque, Iowa.
No Other Charwe in Policy. The above preservation of govemmentai immunities shall
not otherwise change or alter the coverage ava~abie under the policy.
SPECIMEN
of ,
January 2008
32
EXHIBIT A
URBAN RENEWAL PLAN
33
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
34
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:
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;
35
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
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-
waywidens to 200 feet, said point being the terminus of this description; and
• all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right-of-way lying
in the Balance of Lot 1 of 1 of the Southwest Quarter of the Southwest Quarter in Section 29,
Township 89 North, Range 2 East, Stn Principal Meridian; and
• any adjoining public street right-of-way all in the City of Dubuque, Dubuque County, Iowa.
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
36
2 East, 5th Principal Meridian; and any adjoining public street right-of-way in the City of
Dubuque, Dubuque County.
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:
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;
Preparation of property for development and redevelopment purposes including but
not limited to activities such as appraisals and architectural and engineering studies;
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
37
placed upon the District by the Plan.
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. Planning 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.
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
38
disposition documents will set forth the provisions, standards and criteria for achieving the
objectives and requirements outlined in this Plan.
3. 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:
39
a. Planning and administration of the Plan;
b. Construction of public infrastructure improvements and facilities within the District;
c. Acquisition, installation, maintenance and replacement of public investments
throughout the District including but not limited to street lights, landscaping and
buffers, signage and appropriate amenities;
d. Acquisition of land and/or buildings and preparation of same for sale or lease to
private developers, including any "write down" of the sale price of the land and/or
building;
e. Preservation, conservation, development or redevelopment of buildings or facilities
within the District to be sold or leased to qualified businesses;
Loans or grants to qualified businesses under Chapter 15A of the Iowa Code,
including tax rebate payments, debt service payments on any bonds issued to
finance such loans or grants, for purposes of expanding the business or activity, or
other qualifying loan programs established in support of the Plan; and
g. Providing the matching share for a variety of local, state and federal grants and
loans.
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.
I. DURATION OF APPROVED URBAN RENEWAL PLAN
Subarea A
This Plan shall continue in effect until terminated by action of the City Council, but in no event
before the City of Dubuque has received full reimbursement from all incremental taxes of its
advances and principal and interest payable on all Tax Increment Financing or general
obligations issued to carry out the OBJECTIVES of the Plan.
2. Subarea B
40
This Plan shall continue in effect until terminated by the City Council; provided, however, that
the collection of tax increment revenues from properties located in Subarea B shall be limited
to twenty (20) years from the calendar year following the calendar year in which the City first
certifies to the County Auditor the amount of any loans, advances, indebtedness or bonds
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
41
EXHIBIT B
LEGAL DESCRIPTION
Lot 1-4 of Dubuque Industrial Center West 4th Addition
42
EXHIBIT B-1
SITE PLAN
43
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44
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
46
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_, attached hereto, are correct.
To the best of my knowledge (1) the representations and warranties of the City in
Section 1.4 of the Development Agreement are correct and (2) the acquisition and
transfer of the Property to the Developer for use by Employer in the Project Area
are in accordance with the Project.
The terms set forth herein are the same as those defined in the Development
Agreement.
Very sincerely,
BAL:tIs
Barry A. Lindahl, Esq.
City Attorney
47
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
48
Mayor and City Councilmembers
Cit~ Hall
13t and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) between Developer and the City of Dubuque, Iowa
("City") dated for reference purposes the day of , 20_.
We have examined the original certified copy, or copies otherwise identified
to our satisfaction as being true copies, of the Development Agreement and such
other documents and records as we have deemed relevant and necessary as a
basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other
inquiries as we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under
the laws of the State of and has full power and authority to execute,
deliver and perform in full Development Agreement. The Development Agreement
has been duly and validly authorized, executed and delivered by Developer and,
assuming due authorization, execution and delivery by City, is in full force and
effect and is valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors' rights
generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of 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
49
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
50
EXHIBIT E
OPINION OF COUNSEL TO EMPLOYER
51
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 (Vanguard
Countertops, Inc.) (Employer) 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. Employer is a corporation organized and existing under the laws of
the State of Iowa 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 Employer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid
and legally binding instrument of Employer enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting creditors' rights generally.
2. To our actual knowledge with no duty to inquire, the execution,
delivery and performance by Employer 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 Employer, any indenture,
mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Employer is a party or by which
Employer's property is bound or subject.
3. To our actual knowledge with no duty to inquire, there are no actions,
suits or proceedings pending or threatened against or affecting Employer in any
court or before any arbitrator or before or by any governmental body in which there
52
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 Employer or which in any manner raises any questions affecting the
validity of the Agreement or the Employer's ability to perform Employer's obligations
thereunder.
This opinion is rendered for the sole benefit of the City of Dubuque and no other
party may rely on this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty
to update this opinion for any matters which come to our knowledge after the date
of this letter.
Very truly yours,
53
Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and
no/100 Dollars ($ ) in hand paid, and other good and valuable
consideration, and pursuant to the authority of Chapter 403, Code of Iowa, does
hereby GRANT, SELL AND CONVEY unto
an Iowa limited liability company
(Grantee), the following described parcel(s) situated in the County of Dubuque,
State of Iowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section
428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of
the City Council of the City of Dubuque adopted the day of ,
20_, the terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and
is subject to all -the terms, provisions, covenants, conditions and restrictions
contained in that certain Development Agreement executed by Grantor and
Grantee herein, dated the day of 20_ (the Agreement), a
memorandum of which was recorded on the day of , 20_, in the
records of the Recorder of Dubuque County, Iowa, Instrument Number
Promptly after completion of the improvements in accordance with the
provisions of the Agreement, Grantor will furnish Grantee with a Certificate of
55
Completion in the form set forth in the Agreement. Such certification by Grantor
shall be, and the certification itself shall so state, a conclusive determination of
satisfaction and termination of the agreements and covenants of the Agreement
and of this Deed with respect to the obligation of Grantee, and its successors and
assigns, to construct improvements and the dates for the beginning and completion
thereof, it being the intention of the parties that upon the granting and filing of the
Certificate of Completion that all restrictions, re-vesting of title, and reservations of
title contained in this Deed be forever released and terminated and that any
remaining obligations of Grantee pursuant to the Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them
to be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse
or fail to provide any such certification in accordance with the provisions of the
Agreement and this Deed, Grantor shall, within twenty days after written request by
Grantee, provide Grantee with a written statement indicating in adequate detail in
what respects Grantee has failed to complete the improvements in accordance with
the provisions of the Agreement or is otherwise in default, and what measures or
acts will be necessary, in the opinion of Grantor, for Grantee to take or perform in
order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and
Grantee or Vanguard Countertops, Inc. 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 , 20_ at Dubuque, Iowa.
Attest:
CITY OF DUBUQUE IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
56
STATE OF IOWA
COUNTY OF DUBUQUE
SS
On this day of , 20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Jeanne F. Schneider to
me personally known, who being duly sworn, did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation,
created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipal Corporation, and that said
instrument was signed and sealed on behalf of said Municipal Corporation by
authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
Notary Public in and for Dubuque County, Iowa
57
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
58
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
59
gy:
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
60
EXHIBIT H
CITY CERTIFICATE
61
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001-4864
(5ti3) 589-4110 phone
(563) 589-4149 fax
ctymgr~?ci tyofdubuque.org
(DATE)
Dear
THE CITY OF ( `
~--L- "`"
DU -~ E
~~
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity
in connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer or Employer, 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.
(4) City has good and marketable fee simple title interest in the Property.
62
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer and
Employer 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 Employer's intended use of the Property as a corporate office/industrial
facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer 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 or Employer.
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(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and Employer and hold Developer and Employer harmless from
any and all claims asserted by any broker engaged directly or indirectly by
City for any fees or other compensation related to the subject matter of this
Agreement.
(13) City shall exercise its best efforts to assist with Developer and
Employer in the development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
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