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Speigel Family Realty Development Agreement_REVISEDTHE CITY OF DUB E Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: August 4, 2008 City Council Agenda Item to be set for Public Hearing #4 Spiegel Family Realty of Iowa, LLC Development Agreement DATE: August 1, 2008 Dubuque ~~~ 2007 The attached Spiegel Family Reality of Iowa, LLC Development Agreement is proposed to be substituted for the agreement previously sent to the City Council to set for Public Hearing on September 15, 2008. The cover memo July 23`d from Economic Director Dave Heiar correctly describes under item #5 that "Depending on the eventual usage of the building, the City will consider the use of TIF and/or land discounts. If the building or a portion of the building is used by a company that creates a minimum of 10 jobs, City staff will negotiate separate development agreements with the developer and the respective companies." However, that concept was not included in the original agreement sent to the City Council, but is in this agreement. 4~~ Mich el C. Van Milligen MCVM/Iw Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Jeanne Schneider, City Clerk Dave Heiar, Economic Development Director Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113 OFFICIAL NOTICE RESOLUTION NO. 259-08 RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS, COMPETITIVE CRITERIA, AND OFFERING PROCEDURES FOR THE DEVELOPMENT AND THE SALE OF CERTAIN REAL PROPERTY AND IMPROVEMENTS IN THE DUBUQUE INDUSTRIAL CENTER URBAN RENEWAL DISTRICT; (2) DETERMINING THAT THE DEVELOPMENT AGREEMENT SUBMITTED BY SPIEGEL FAMILY REALTY OF IOWA, LLC SATISFIES THE OFFERING REQUIREMENTS WITH RESPECT TO THE REAL PROPERTYAND IMPROVEMENTS AND DECLARING THE INTENT OF THE CITY COUNCIL TO APPROVE THE DEVELOPMENT AGREEMENT WITH SPIEGEL FAMILY REALTY OF IOWA, LLC IN THE EVENT THAT NO COMPETING PROPOSALS ARE SUBMITTED AND FURTHER DECLARING THE INTENT OF THE CITY COUNCIL TO DISPOSE OF THE REAL ESTATE DESCRIBED HEREIN UPON THE TERMS IN THE DEVELOPMENT AGREEMENT; AND (3) SOLICITING COMPETING PROPOSALS. Whereas, the City Council of Dubuque, Iowa, did on April 7, 2008 adopt an Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center Urban Renewal District ("the Plan") for the Urban Renewal Area described therein; and Whereas, the Plan provides, among other things, forthe disposition of properties for private development purposes as a proposed economic development action; and Whereas, Spiegel Family Realty of Iowa, LLC ("Developer") has submitted to the City a Development Agreement with a proposal for the purchase of certain real property and improvements hereinafter described for the constructed as described therein ("the Development Agreement "), together with the request that this property be made available for sale as rapidly as possible; and Whereas, in order to establish reasonably competitive bidding procedures for the disposition of the property in accordance with the statutory requirements of Iowa Code Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair opportunity to all developers interested in submitting a proposal, a summary of submission requirements and minimum requirements and competitive criteria for the property offering is included herein; and Whereas, said Developer has tendered the Development Agreement with the City, attached hereto as Exhibit "A"; and Whereas, to recognize both the firm proposal for purchase of the real property and improvements, as described above, and to give full and fair opportunity to other developers interested in submitting a proposal for the use of the property, this Council should by this Resolution: 1) Set the fair market value of the real property for uses in accordance with the Plan; 2) Approve the minimum requirements and competitive criteria included herein; 3) Approve as to form the Development Agreement attached hereto as Exhibit "A"; 4) Set a date for receipt of competing proposals and the opening thereof; 5) Declare that the proposal submitted by Developer satisfies the minimum requirements of the offering, and that in the event no other qualified proposal is timely submitted, that the City Council intends to approve such proposal and authorize the City Manager to sign the Development Agreement and the Land Contract; and direct publication of notice of said intent; 6) Approve and direct publication of a notice to advise any other person of the opportunity to compete for sale of the real property and improvements on the terms and conditions set forth herein; and 7) Declare that in the event another qualified proposal is timely submitted and accepted, another and future notice will be published on the intent of the City to enter into the resulting contract, as required by law; and Whereas, the City Council believes it is in the best interest of the City and the Plan to act as expeditiously as possible to sell the real property as set forth herein. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the real property located in the Dubuque Industrial Center West and legally described as Lots 1-3 and 2-3 of the 5th Addition in Dubuque Industrial Center 2 West ("the Property")shall be offered for sale in accordance with the terms and conditions contained in this Resolution. Section 2. That it is hereby determined that in order to qualify for consideration for selection, any person must submit a proposal which meets these minimum requirements: a) Contains an agreement to purchase the Property at not less than fair market value established herein; b) Contains a commitment to purchase the Property for uses allowed in the Dubuque Industrial Center West; c) Sets out or provides to the satisfaction of the City Council the experience of the principals and key staff who are directly engaged in performance of contract obligations in carrying out projects of similar scale and character; and d) Meets, at a minimum, the terms and conditions of the Development Agreement submitted by the Developer including an agreement to construct a 200,000 sq. ft. tilt up concrete building with 30 foot side walls at a project cost of not less than $7.7 million. Section 3. That the Development Agreement by and between the City and the Developer be and is hereby approved as to form for the purposes hereinafter stated. Section 4. That for the purpose of defining the offering of the Property for sale, said Development Agreement shall be deemed to be illustrative of the terms acceptable to the City with respect to: a) Sale Price; b) Construction of minimum improvements; c) City participation; d) Developer obligations; and e) General terms and conditions Section 5. That the Development Agreement submitted by the Developersatisfies the requirements of the offering and, in the event that no other qualified proposals are timely submitted that the City Council intends to accept and approve the Sale. Section 6. That it is hereby determined that the Developer possesses the qualifications, financial resources and legal ability necessary to purchase the Property and to manage and operate the Property in the manner proposed by this offering in accordance with the Plan. Section 7. That the land contract payments for the Property offered by the Developer are hereby found and determined to be the fair market value of the leasehold interest being conveyed. Section 8. That the City Clerk shall receive and retain for public examination the attached Development Agreement submitted by the Developer and, in the event no other qualified proposals are timely submitted, shall resubmit the Development Agreement to the City Council for final approval and execution upon expiration of the notice hereinafter prescribed. Section 9. That the action of the City Council be considered to be and does hereby constitute notice to all concerned of the intention of this Council, in the event that no other qualified proposals are timely submitted, to accept the proposal of the Developer to purchase the Property and to approve the Development Agreement by and between City and Developer. Section 10. That the official notice of this offering and of the intent of the City, in the event no other qualified proposals are timely submitted, to approve the Development Agreement, shall be a true copy of this Resolution, but without the attachments referred to herein. Section 11. That the City Clerk is authorized and directed to secure immediate publication of said official notice in the Telegraph Herald, a newspaper having a general circulation in the community, by publication of the text of this Resolution without attachments on or before the 8th day of August, 2008. .Section 12. That written proposals for the purchase of the Property will be received by the City Clerk at or before 10:00 a.m., September 10, 2008 in the Office of the City Clerk, located on the first floor at City Hall, Dubuque, Iowa 52001. Each proposal will be opened at the hour of 10:00 a.m. in City Hall, Dubuque, Iowa on September 10, 2008. Said proposals will then be presented to the City Council at 6:30 p.m., September 15, 2008, at a meeting to be held in the Historic Federal Building, Council Chambers at 350 West 6t" Street, Dubuque, Iowa. Section 13. That such offering shall be in substantial conformance with the provisions of Iowa Code Section 403.8, requiring reasonable competitive bidding procedures as are hereby prescribed, which method is hereby determined to be the appropriate method for making the Property available for sale. Section 14. That the required documents for the submission of a proposal shall be in substantial conformity with the provisions of this Resolution. 4 Section 15. That the City Clerk is hereby nominated and appointed as the agent of the City of Dubuque, Iowa to receive proposals for the sale of the Property at the date and according to the procedure hereinabove specified for receipt of such proposals and to proceed at such time to formally acknowledge receipt of each of such proposals by noting the receipt of same in the Minutes of the Council; that the City Manager is hereby authorized and directed to make preliminary analysis of each such proposal for compliance with the minimum requirements established by this Council hereinabove. For each proposal that satisfies these requirements, the City Council shall judge the strength of the proposal by the competitive criteria established hereinabove. The City Council shall then make the final evaluation and selection of the proposals. Section 16. That in the event another qualified proposal is timely submitted and accepted by the City, another and further notice shall be published of the intent of the City of Dubuque, Iowa, to enter into the resulting agreement, as required by law. Passed, approved and adopted this 4th day of August, 2008. Roy D. Buol Mayor Attest: Jeanne F. Schneider City Clerk DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AND SPIEGEL FAMILY REALTY COMPANY IOWA, LLC This Agreement, dated for reference purposes the day of 2008 (Effective Date), between the City of Dubuque, Iowa (City), a municipality established pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter 403, as amended (the Urban Renewal Act), and Spiegel Family Realty Company Iowa, LLC, an Iowa business corporation with its principal place of business in Peosta, Iowa (Developer). WITNESSETH: WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has undertaken an Urban Renewal project (the Project) to advance the community's ongoing economic development efforts; and WHEREAS, the Project is located within the Dubuque Industrial Center Economic Development District (the Project Area); and WHEREAS, as of the date of this Agreement there has been prepared and approved by City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal Plan for the Dubuque Industrial Center Economic Development District, approved by the City Council of City on May 2, 1988, and as subsequently amended through and including the date hereof, as amended, attached hereto as Exhibit A (the Urban Renewal Plan); and WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this Agreement and in the form attached hereto, has been recorded among the land records in the office of the Recorder of Dubuque County, Iowa; and WHEREAS, Developer desires to construct a new speculative building within the community; and WHEREAS, Developer has decided to construct the new facility in the Project Area; and WHEREAS, Developer has requested that City sell to Developer 11.264 acres of land all of which are usable, legally described as Lots 1-3 and 2-3 in Dubuque Industrial Center West 5th Addition, in the City of Dubuque, Dubuque County, Iowa, together with all easements, tenements, hereditaments, and appurtenances belonging thereto (the Property), identified on Exhibit B, attached hereto, so that Developer may develop the Property, located in the Project Area for the construction of a manufacturing/warehouse/office facility for use and occupancy 080108ba1 with appurtenant uses which City has determined and represented to Developer is in accordance with the uses specified in the Urban Renewal Plan and in accordance with this Agreement; 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; Land Contract. (1) The purchase price for the Property (the Purchase Price) shall be the sum of One Million One Hundred Twenty Six Thousand Four Hundred Dollars ($1,126,400.00) (One Hundred Thousand Dollars ($100,000.00) per usable acre for 11.264 net usable acres), which shall be due and payable by Developer in immediately available funds in favor of City as provided herein. 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 on the Closing Date, within thirty days after the Closing Date, less any expenses incurred by City in connection with this Agreement. (2) Upon sale or lease of the Property or any portion therefore, Developer shall pay City a pro rata portion of the Purchase Price based on the square footage of the facility that is sold or leased. Developer shall pay such pro rata portion of the Purchase Price within sixty days of the date of such sale or lease. (3) Developer shall pay the entire balance of the Purchase Price to City by not later than December 1, 2013. 1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple title in the Property to Developer pursuant to a Land Contract subject only to easements, restrictions, conditions and covenants of record as of the Closing Date to the extent not objected to by Developer as set forth in this Agreement, and to the conditions subsequent set forth in Section 5.3, below: (1) City, at its sole cost and expense, shall deliver to Developer within no fewer than (14) days of the Effective Date, an abstract of title to the Property 2 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) 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 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 its intended action within ten (10) days of such action. If City shall fail to have such objections removed as of the Closing Date, or any extension thereof consented to by Developer, Developer may, at its sole discretion, either (a) terminate this Agreement without any liability on its part, and any sums previously paid to City by Developer (or paid into escrow for City's benefit), less any expenses incurred by City in connection with this Agreement, shall be returned to Developer with interest, or (b) take title subject to such objections. City agrees to use its best reasonable efforts to promptly satisfy any such objections. 1.3 Rights of Inspection, Testing and Review. Developer, its counsel, accountants, agents and other representatives, shall have full and continuing access to the Property and all parts thereof, upon reasonable notice to City. Developer and its agents and representatives shall also have the right to enter upon Property at any time after the execution and delivery hereof for any purpose whatsoever, including, but not limited to, inspecting, surveying, engineering, test boring, and performing environmental tests, provided that Developer shall hold City harmless and fully indemnify City against any damage, claim, liability or cause of action arising from or caused by the actions of Developer, its agents, or representatives upon the Property (except for any damage, claim, liability or cause of action arising from conditions existing prior to any such entry upon the Property), and shall have the further right to make such inquiries of governmental agencies and utility companies, etc. and to make such feasibility studies and analyses as it considers appropriate. 1.4 Representations and Warranties of City. In order to induce Developer to enter into this Agreement and purchase the Property, City hereby represents and warrants to Developer that: 3 (1) There is no action, suit or proceeding pending, or to the best of City's knowledge, threatened against City which might result in any adverse change in the Property being conveyed or the possession, use or enjoyment thereof by Developer, including, but not limited to, any action in condemnation, eminent domain or public taking. (2) No ordinance or hearing is now or before any local governmental body that either contemplates or authorizes any public improvements or special tax levies, the cost of which may be assessed against the Property. To the best of City's knowledge, there are no plans or efforts by any government agency to widen, modify, or re-align any street or highway providing access to the Property and there are no pending or intended public improvements or special assessments affecting the Property which will result in any charge or lien be levied or assessed against the Property. (3) All leases, contracts, licenses, and permits between City and third parties in connection with the maintenance, use, and operation of the Property have been provided to Developer and City has provided true and correct copies of all such documents to Developer. (4) City has good and marketable fee simple title interest in the Property. (5) The Property has a permanent right of ingress or egress to a public roadway for the use and enjoyment of the Property. (6) There are no notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution, health violations or other matters that have not been corrected. City has notified Developer in writing of any past notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution or health violations as they relate to the Property of ~vvhich it has actual notice. The Property is in material compliance with all applicable zoning, fire, building, and health statutes, ordinances, and regulations. The Property is currently zoned PUD and Developer's intended use of the Property as a commercial office 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 4 and shall not result in any material breach of any terms or conditions of any mortgage, bond, indenture, agreement, contract, license, or other instrument or obligation to which City is a party or by which either the City or the Property being conveyed are bound, nor shall the execution, delivery and performance of this Agreement violate any statute, regulation, judgment, writ, injunction or decree of any court threatened or entered in a proceeding or action in which City may be bound or to which either City or the Property being conveyed may be subject. (10) City has duly obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement, and has full power and authority to execute, deliver and perform its obligations under this Agreement. City's attorney shall issue a legal opinion to Developer at time of closing confirming the representation contained herein, in the form attached hereto as Exhibit C. (11) The Property is free and clear of any occupants, and no party has a lease to or other occupancy or contract right in the Property that shall in any way be binding upon the Property. (12) City represents and warrants that any fees or other compensation which may be owed to a broker engaged directly or indirectly by City in connection with the purchase and sale contemplated in this Agreement are the sole responsibility and obligation of City and that City will indemnify Developer and hold Developer harmless from any and all claims asserted by any broker engaged directly or indirectly by City for any fees or other compensation related to the subject matter of this Agreement. (13) City shall exercise its best efforts to assist Developer in the development process. (14) City shall exercise its best efforts to resolve any disputes arising during the development process in a reasonable and prompt fashion. (15) With respect to the period during which City has owned or occupied the Property, and to City's knowledge after reasonable investigation with respect to the time before City owned or occupied the Property, no person or entity has caused or permitted materials to be stored, deposited, treated, recycled, or disposed of on, under or at the Property, which materials, if known to be present, would require cleanup, removal or some other remedial action under environmental laws. (16) All city utilities necessary for the development and use of the Property as a commercial office adjoin the Property and Developer shall have the right to connect to said utilities, subject to City's connection fees. (17) The representations and warranties contained in this article shall be correct in all respects on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date which representations and warranties shall continue and survive the Closing Date. 1.5 Conditions to Closing. The closing of the transaction contemplated by this Agreement and all the obligations of Developer under this Agreement are subject to fulfillment, on or before the Closing Date, of the following conditions: (1) The representations and warranties made by City in Section 1.4 shall be correct as of the Closing Date with the same force and effect as if such representations were made at such time. At the closing, City shall deliver a certificate to that effect in the form of Exhibit H. (2) Title to the Property shall be in the condition warranted in Section 1.4. (3) Developer having obtained any and all necessary governmental approvals, including without limitations approval of zoning, subdivision or platting which might be necessary or desirable in connection with the sale, transfer and development of the Property. Any conditions imposed as a part of the zoning, platting or subdivision must be satisfactory to Developer respectively, in 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, and the construction, use and occupancy of the project with the intent and understanding that Developer and their respective lenders and attorneys will rely upon same in establishing their agreement and time frames for construction, use and occupancy, lending on the project and issuing legal opinions in connection therewith; and (d) to cooperate fully with Developer to streamline and facilitate the obtaining of such permits, approvals and consents. (4) City, having given all required notices to or obtaining prior approval, consent or permission of any federal, state, municipal or local governmental 6 agency, body, board or official to the sale of the Property; and consummation of the closing by City shall be deemed a representation and warranty that it has obtained the same. (5) Developer and City shall be in material compliance with all the terms and provisions of this Agreement. (6) Developer shall have furnished City with 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. (7) Receipt of an opinion of counsel to Developer in the form attached hereto as Exhibit D. (8) Developer shall have the right to terminate this Agreement at anytime prior to the consummation of the closing on the Closing Date if Developer determines in its sole discretion that conditions necessary for the successful completion of the Project contemplated herein have not been satisfied in its sole and unfettered discretion. Upon the giving of notice of termination by such terminating party to the other parties to this Agreement, this Agreement shall be deemed null and void. 1.6 Closing. The closing of the purchase by Land Contract shall take place on the Closing Date. Exclusive possession of the Property shall be delivered on the Closing Date, in its current condition and in compliance with this Agreement, including City's representations and warranties regarding the same. Consummation of the closing shall be deemed an agreement of the parties to this Agreement that the conditions of closing have been satisfied or waived. 1.7 City's Obligations at Closing. At or prior to the Closing Date, City shall: (1) Execute the Land Contract for the Property (in the form attached hereto as Exhibit F) and appropriate resolutions of the City Council approving the Land Contract, subject only to easements, restrictions, conditions and covenants of record as of the date hereof and not objected to by Developer as set forth in this Agreement, and to the conditions subsequent set forth in Section 5.3 below. (2) Deliver to Developer such other documents as may be required by this Agreement, all in a form satisfactory to Developer. 7 1.8 Closing Costs. The following costs and expenses shall be paid in connection with the closing: (1) City shall pay: (a) The transfer fee, if any, imposed on the conveyance. (b) A pro-rata portion of all taxes, if any, as provided in Section 1.10. (c) All special assessments, if any, whether levied, pending or assessed. (d) City's attorney's fees, if any. (e) City's broker and/or real estate commissions and fees, if any. (f) The cost of recording the satisfaction of any existing mortgage and any other document necessary to make title marketable. (2) Developer shall pay the following costs in connection with the closing: (a) The recording fee necessary to record the Land Contract. (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. 1.9 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. City agrees that the Property shall be exempt from taxes pursuant to City of Dubuque Code of Ordinances § 15-60 until such time as the Property or any part of the Property is sold or leased, at which time such part sold or leased shall be subject to taxation. SECTION 2. DEVELOPMENT ACTIVITIES 8 2.1 Required Minimum Improvements. City acknowledges that Developer is building a precast concrete manufacturing/warehouse/office facility on the Property, specifically, a building and certain internal systems thereto, and including, without limitation, all interior improvements (the Minimum Improvements), all as more particularly depicted and described on the plans and specifications dated and approved by City as contemplated in this Agreement. Developer hereby agrees that the Minimum Improvements shall include a warehouse/office facility approximately Two Hundred Thousand (200,000) square feet of floor space along with necessary site work as contemplated in this Agreement at an estimated cost of approximately $7,700,000.00. The warehouse shall have ceiling heights of not less than twenty-eight feet (28') in the low area and not less than thirty feet six inches (30' 6") in the center of the facility. 2.2 Plans for Construction of Minimum Improvements. Plans and specifications with respect to the development of Property and the construction of the Minimum Improvements thereon (the Construction Plans) shall be in conformity with the Urban Renewal Plan, this Agreement, and all applicable state and local laws and regulations, including but not limited to any covenants, conditions, restrictions, reservations, easements, liens and charges, applicable to the Property, in the records of Dubuque County, Iowa. Developer shall submit to City, for approval by City, plans, drawings, specifications, and related documents with respect to the improvements to be constructed by Developer on the Property. All work with respect to the Minimum Improvements shall be in substantial conformity with the Construction Plans approved by City. 2.3 Timing of Improvements. (1) Developer hereby agrees that construction of the Minimum Improvements on the Property shall be commenced within three (3) months after the Closing Date, and shall be substantially completed by December 31, 2008. For purposes of this section, "substantial completion" shall mean completion of the site work and completion of the core and shell of the building, but shall not include furniture fixtures and equipment, and does not contemplate receipt of a certificate of occupancy. The time frames for the performance of these obligations shall be suspended due to unavoidable delays, meaning delays, outside the control of the party claiming its occurrence in good faith, which are the direct result of strikes, other labor troubles, unusual shortages of materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion directly results in delays, or acts of any federal, state or local government which directly result in delays. The time for performance of such obligations shall be extended only for the period of such delay. 9 2.4 Certificate of Completion. Promptly following the request of Developer upon completion of the Minimum Improvements, City shall furnish Developer with an appropriate instrument so certifying. Such certification (the Certificate of Completion) shall be in recordable form and shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Agreement and in the Deed with respect to the obligations of Developer to construct Minimum Improvements. The Certificate of Completion shall waive all rights of re-vestment of title in City as provided in Section 5.3, and the Certificate of Completion shall so state. 2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall fail to complete the Minimum Improvements as required by this Agreement such that re-vestment of title may occur (or such that the City would have the option of exercising its re-vestment rights), then Developer's lender shall have the right, but not the obligation, to complete such Minimum Improvements. SECTION 3. CITY PARTICIPATION 3.1 Contingent Acquisition Grant/Economic Development Grant to Developer. In the event Developer through lease or sale of all or a portion of the facility to be constructed on the Property creates, in the aggregate, ten (10) or more new jobs in Dubuque, Iowa, as provided in Section 4.1, for and in consideration thereof: (1) Acquisition Grant. City agrees to make an Acquisition Grant to Developer in the amount of Five Hundred Sixty-Three Thousand Two Hundred Dollars ($563,200.00). The parties agree that the Acquisition Grant shall be payable in the form of a credit favoring Developer (but under no circumstances shall there be any cash refund required to be paid by City) against the then existing principal balance owing by Developer under the Real Estate Contract with the effect of directly offsetting fifty percent (50%) of the Purchase Price obligation of Developer; and (2) Economic Development Grant. (a) In furtherance of the goals and objectives of the urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject to Developer being and remaining in compliance with the terms of this Agreement, to make eighteen (18) consecutive semi- annual payments (such payments being referred to collectively as the Economic Development Grants) to the Developer if Developer owns or leases the Property and/or the Minimum Improvements thereon during the period such tax increment revenues accrue, as follows: November 1, 2009 May 1, 2010 November 1, 2010 May 1, 2011 November 1, 2011 May 1, 2012 10 November 1, 2012 May 1, 2013 November 1, 2013 May 1, 2014 November 1, 2014 May 1, 2015 November 1, 2015 May 1, 2016 November 1, 2016 May 1, 2017 November 1, 2017 May 1, 2018 pursuant to Iowa Code Section 403.9 of the Urban Renewal Law in amounts equal to the actual amount of tax increment revenues collected by City under Iowa Code Section 403.19 (without regard to any averaging that may otherwise be utilized under Iowa Code Section 403.19 and excluding any interest that may accrue thereon prior to payment to Developer) during the preceding six-month period in respect of the Property and Minimum Improvements constructed by Developer (the Developer Tax Increments). Developer recognizes and agrees that the Economic Development Grants shall be paid solely and only from the incremental taxes collected by City in respect to the Property and Minimum Improvements, which does not include property taxes collected for the payment of bonds and interest of each taxing district, and taxes for the regular and voter-approved physical plant and equipment levy, and any other portion required to be excluded by Iowa law, and thus such incremental taxes will not include all amounts paid by Developer as regular property taxes. (b) To fund the Economic Development Grants, City shall certify to the County prior to December 1 of each year, commencing December 1, 2008, its request for the available Developer Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by City as taxes are paid during the following fiscal year and which shall thereafter be disbursed to the Developer if Developer owns or leases the Property and/or Improvements thereon during the period such tax increment revenues accrue, on November 1 and May 1 of that fiscal year. (Example: if City so certifies by December, 2008, the Economic Development Grants in respect thereof would be paid to the Developer on November 1, 2009, and May 1, 2010.) (c) 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 "Spiegel Family Realty 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 Medline TIF Account to pay the Economic Development Grants, as and to the extent set forth in 11 Section 3.2(1) hereof. The Economic Development Grants shall not be payable in any manner by other tax increments revenues or by general taxation or from any other City funds. City makes no representation with respect to the amounts that may be paid to Developer as the Economic Development Grants in any one year and under no circumstances shall City in any manner be liable to Developer so long as City timely applies the Developer Tax Increments actually collected and held in the Medline TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants to Developer as and to the extent described in this Section. (d) City shall be free to use any and all tax increment revenues collected in respect of other properties within the Project Area, or any available Developer Tax Increments resulting from the termination of the annual Economic Development Grants under Section 3.2 hereof, for any purpose for which such tax increment revenues may lawfully be used pursuant to the provisions of the Urban Renewal Law, and City shall have no obligations to Developer with respect to the use thereof. SECTION 4. COVENANTS OF DEVELOPER 4.1 Job Creation. (1) Developer shall make best efforts to create not less than ten (10) full- time jobs in Dubuque, Iowa prior to December 31, 2010, and shall maintain those jobs during the Term of this Agreement. (2) In the event that any certificate provided to City under Section 4.2 hereof discloses that Developer does not as of that date have at least 10 employees as provided hereinabove, then Developer shall pay to City, promptly upon written demand therefor, an amount equal to $ 2,038.44 per job not created or maintained ($563,200.00 divided by 10 jobs = $ 56,320.00). The payments provided for herein shall be the City's sole remedy for the failure of Developer to meet the job creation requirements of subsection 4.1(1). (3) In addition, for the positions that Developer fails to maintain for any year during the Term of this Agreement, the semi-annual Economic Development Grants for such year under Section 3.1(2) shall be reduced by the percentage that the number of such positions bears to the total number of positions required to be maintained (10 jobs) by this Section 4.1. (For example, if Developer has 9 jobs, the semi-annual Economic Development Grants would be 90.0% (9/10 employees) of the Tax Increment Revenues received by City). The reduction of the semi-annual Economic Development Grants shall be the City's sole remedy for the failure of Developer to meet 12 the job creation requirements of subsection 4.1(1). 4.2 Certification. To assist City in monitoring the performance of Developer hereunder, not later than January 10, 2011 and not later than January 10 of each year thereafter during the Term of this Agreement, a duly authorized officer of Developer shall certify to City in a form acceptable to City (a) the number of full time jobs 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, Developer is not or was not in default in the fulfillment of any of the terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of such certificate or during such period, or if the signer is aware of any such default, event or Event of Default, said officer shall disclose in such statement the nature thereof, its period of existence and what action, if any, has been taken or is proposed to be taken with respect thereto. 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 shall keep at all times and make available to City upon reasonable request proper books of record and account in which full, true and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of Developer in accordance with generally accepted accounting principles consistently applied throughout the period involved, and Developer shall provide reasonable protection against loss or damage to such books of record and account. 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 Developer or another person pursuant to the provisions of this Agreement. 4.5 No Exemptions. During the term of this Agreement, Developer agrees not to apply for any other state or local property tax exemptions which are available with respect to the Development Property or the Minimum Improvements located thereon that may now be, or hereafter become, available under state law or city ordinance during the term of this Agreement, including those that arise under Iowa Code Chapters 404 and 427, as amended. 4.6 Insurance Requirements. (1) Developer shall provide and maintain or cause to be maintained at all times during the process of constructing the Minimum Improvements (and, 13 from time to time at the request of City, furnish City with proof of insurance in the form of a certificate of insurance for each insurance policy): (a) All risk builder's risk insurance, written on a Completed Value Form in an amount equal to one hundred percent (100%) of the replacement value when construction is completed; (b) Insurance as set forth in the attached Insurance Schedule. (2) Upon completion of construction of the Minimum Improvements and up to the Termination Date, Developer shall maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of City shall furnish proof of insurance in the form of a certificate of insurance) insurance as follows: (a) All risk property insurance against loss and/or damage to Minimum Improvements under an insurance policy written in an amount not less than the full insurable replacement value of Minimum Improvements. The term "replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment, and shall be reasonably determined from time to time at the request of City, but not more frequently than once every three (3) years. (3) Developer shall notify City immediately in the case of damage exceeding $500,000.00 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Developer as its interests may appear, and Developer shall forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Developer shall apply the Net Proceeds of any insurance relating to such damage received by Developer to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Property (as its interests may appear). Developer shall complete the repair, reconstruction and restoration of Minimum Improvements whether or not the Net Proceeds of insurance received by Developer for such Purposes are sufficient. 4.7 Preservation of Property. 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 14 alter any agreements between Developer or any other party including, without limitation, any agreements between the parties regarding the care and maintenance of the Property. 4.8 Non-Discrimination. In carrying out the project, Developer shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, national origin, age or disability. 4.9 Conflict of Interest. Developer agrees that no member, officer or employee of City, or its designees or agents, nor any consultant or member of the governing body of City, and no other public official of City who exercises or has exercised any functions or responsibilities with respect to the project during his or her tenure, or who is in a position to participate in adecision-making process or gain insider information with regard to the project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the project, or in any activity, or benefit therefrom, which is part of this project at any time during 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 nor may the Property be transferred by Developer to another party without the prior written consent of City, which shall not be unreasonably withheld. Thereafter, Developer shall have the right to assign this Agreement and upon assumption of the Agreement by the assignee, Developer shall no longer be responsible for its obligations under this Agreement. 4.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns, and every successor in interest to the Property or any part thereof that they, and their respective successors and assigns, shall: (1) Devote the Property to, and only to and in accordance with, the uses specified in the Urban Renewal Plan (and City represents and agrees that use of the Property as a commercial office complex is in full compliance with the Urban Renewal Plan) (however, Developer shall not have any liability to City to the extent that a successor in interest shall breach this covenant and City shall seek enforcement of this covenant directly against the party in breach of same); and (2) Not discriminate upon the basis of race, religion, color, sex, sexual orientation, national origin, age or disability in the sale, lease, rental, use or 15 occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof (however, Developer shall not have any liability to City to the extent that a successor in interest shall breach this covenant and City shall seek enforcement of this covenant directly against the party in breach of same). 4.12 Release and Indemnification Covenants. (1) Developer releases City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Section, the Indemnified Parties) from, covenants and agrees that the Indemnified Parties shall not be liable for, and agree to indemnify, defend and hold harmless the Indemnified Parties against, any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. (2) Except for any gross negligence, willful misrepresentation or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, Developer agrees to protect and defend the Indemnified Parties, now or forever, and further agrees to hold the Indemnified Parties harmless, from any claim, demand, suit, action or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from (1) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by Developer against City based on an alleged breach of any representation, warranty or covenant of City under this Agreement and/or to enforce its rights under this Agreement); or (2) the acquisition, construction, installation, ownership, and operation of the Minimum Improvements; or (3) the condition of the Property and any hazardous substance or environmental contamination located in or on the Property, caused and occurring after Developer takes possession of the Property. (3) The Indemnified Parties shall not be liable to Developer for any damage or injury to the persons or property of Developer or its officers, agents, servants or employees or any other person who may be on, in or about the Minimum Improvements due to any act of negligence of any person, other than any act of negligence on the part of any such Indemnified Party or its officers, agents, servants or employees. (4) All covenants, stipulations, promises, agreements and obligations of City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City, and not of any governing body member, officer, agent, servant or employee of City in their individual capacity thereof. 16 (5) The provisions of this Section shall survive the termination of this Agreement. 4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations relating to its businesses, other than laws, rules and regulations for which the failure to comply with or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, financial or otherwise, of Developer. SECTION 5. EVENTS OF DEFAULT AND REMEDIES 5.1 Events of Default Defined. The following shall be Events of Default under this Agreement and the term Event of Default shall mean, whenever it is used in this Agreement, any one or more of the following events: (1) Failure by Developer to pay or cause to be paid, before delinquency, all real property taxes assessed with respect to the Minimum Improvements and the Property. After the issuance of the Certificate of Completion, however, such event shall not entitle City to the remedy provided in Section 5.3. (2) Failure by Developer to cause the construction of the Minimum Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement. (3) Transfer of any interest by Developer of the Minimum Improvements is in violation of the provisions of this Agreement prior to the issuance of the final Certificate of Completion. (4) Failure by Developer or City to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. 5.2 Remedies on Default by Developer. Whenever any Event of Default referred to in Section 5.1 of this Agreement occurs and is continuing, City, as specified below, may take any one or more of the following actions after the giving of written notice by City to Developer (and the holder of any mortgage encumbering any interest in the Property of which City has been notified of in writing) of the Event of Default, but only if the Event of Default has not been cured within sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty (60) days and Developer does not provide assurances to City that the Event of Default will be cured as soon as reasonably possible thereafter: (1) City may suspend its performance under this Agreement until it receives assurances from the defaulting party, deemed adequate by City, 17 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 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 to cure such default within the period and in the manner stated herein, City may declare a termination in favor of City of the title and of all Developer's rights and interests in and to Property conveyed to Developer, and that such title and all rights and interests of Developer, and any assigns or successors in interests of Developer, and any assigns or successors in interest to and in Property, shall revert to City (subject to the provisions of Section 5.3 of this Agreement), but only if the events stated in Section 5.1 of this Agreement have not been cured within the time period provided above, or, if the events cannot be cured within such time periods, Developer 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. 18 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 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 19 invested by such party in making any of the Minimum Improvements on the Property, less (2) any gains or income withdrawn or made by Developer from this Agreement or the Property. 5.5 No Remedy Exclusive. Except as otherwise provided in this Agreement, no remedy herein conferred upon or reserved to City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 5.6 No Implied Waiver. In the event any agreement contained in this Agreement should be breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. 5.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity, including an action for declaratory relief or arbitration, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation may be set by the court in the trial of such action or by the arbitrator, as the case may be, or may be enforced in a separate action brought for that purpose. Such fees and costs of litigation shall be in addition to any other relief that may be awarded. 5.8 Remedies on Default by City. If City defaults in the performance of this Agreement, Developer may take any action, including legal, equitable or administrative action that may appear necessary or desirable to collect any payments due under this Agreement, to recover expenses of Developer, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Developer may suspend its performance under this Agreement until they receive assurances from City, deemed adequate by Developer, that City will cure its default and continue its performance under this Agreement. SECTION 6. GENERAL TERMS AND PROVISIONS 6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: 20 If to Developer: A.J. Spiegel Spiegel Family Realty of Iowa, LLC 8650 Enterprise Dr. Peosta, Iowa 52068 Phone:563-556-7484 Fax: 563-556-5954 With copy to: Stephen Juergens Fuerste, Carew, Coyle, Juergens, & Sudmeier, P.C. 200 Security Building, 151 W. 8th Street Dubuque, IA 52001 Phone:(563)556-4011 Fax: (563) 556-7134 If to City: City Manager 50 W. 13th Street Dubuque, Iowa 52001 Phone: (563) 589-4110 Fax: (563) 589-4149 With copy to: City Attorney City Hall 50 W. 13th Street Dubuque, IA 52001 Or at such other address with respect to any party as that party may, from time to time designate in writing and forward to the other as provided in this Section. 6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City, Developer and their respective successors and assigns. 6.3 Termination Date. This Agreement and the rights and obligations of the parties hereunder shall terminate upon fulfillment of the conditions of the Land Contract. 6.4 Execution By Facsimile. The parties agree that this Agreement may be transmitted among them by facsimile machine. The parties intend that the faxed signatures constitute original signatures and that a faxed Agreement containing the signatures (original or faxed) of all the parties is binding on the parties. 6.5 Memorandum of Development Agreement. City shall promptly record a Memorandum of Development Agreement in the form attached hereto as Exhibit G in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so recording. 21 CITY OF DUBUQUE, IOWA SPIEGEL FAMILY REALTY OF IOWA, LLC By: By: Roy D. Buol, Mayor By: Jeanne F. Schneider, City Clerk A.J. Spiegel F:\USERS\tsteckle\Lindahl\Spiegel Family Realty\SpiegelFamilyRealty DA080108bal.docx 22 List of Exhibits Insurance Schedule A Exhibit A Urban Renewal Plan Exhibit B Legal Description Exhibit B-1 Site Plan Exhibit C City Attorney Certificate Exhibit D Opinion of Counsel to Developer No Exhibit E Exhibit F Land Contract Exhibit G Memorandum of Development Agreement Exhibit H City Certificate 23 INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non- payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. Developer shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non-contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. Developer shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products-Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be 24 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured -Designated Person or Organization," or it's equivalent. -See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ^ Certificate of Liability Insurance (2 pages) ^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ^ Additional Insured 20 26 07 04 ^ Governmental Immunities Endorsement 26 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 27 P[~ktCY rriirlrr-rt GQA~1MEFiCUU. GENERAL uaBILITY tea ~ sr ax na THiS ENDt~RSEi4fENT CH{4NGES THE PpL1~Y. E'LEASE READ lT GAREFUL.~.Y, AC~C}ITI4NAL INSURED - QESIGNATED PERSON [~R pRfi~-IVIZATION This endcrsemerrt modifies irtaUrance provided under thn'all~ning: t~7N1MEp.CIAL GENERAL LtAE31LITV Cf]1/ERAGE P:4RT SCHEDULE rve Of ~dklitianak tnsured Paraon(s~ Or OtgAnizatton~s~ Thy Ci-,y pit' Dubuque, including ~I I tt8 plt^~C2rf Ord ~p~lclint~d ~,ffit'izls~ all i4s e~plo.~ees end vOlun4s~r`5, all i?~s h~7ards, ~UOmi$sions and!or authorities end t?t~ir ba8r~1 "liE;ttlk~Pl'S, ~mplav~ees zed volunteers. $ecGon it - Wlroa is An tiaurvd is arncndad is in- clude as sn eddttione insu rod th~M pcx:rnr{mil c~ r~rrpni zetion(ei strwvn in tns 5ehtrLule, but artty wi+h respect li0nility fflr "hrrtil~~ injury". "Prnpe'tyr damage" br "persprxal end advartisirg inaurY caused, h1 whck: or in park by yewr ec4e, or cmis~iort3, or the acts Qr omen lions o4 male as;:in~ vn your betalL: A. in the Rerformance of yauranpar~ cx~er~rtior5: or B. in sonne4tiGr1 ~oilh your premises awned by or +entrri to yrtii r•.r; M ~a n~ na i( not ~havn above. Trill be down in the peolsratiare. ~~ ~~ ~ J ~i C91SQ Psooer5es. Inc.. 2{104 28 Pape 1 of 1 ^ ACL7R'Q GEf~TIFICATE ~}F LIA~~l1~ITY INSURAN_ GE PRwuCeR (S63J556-0232 FAX (543)556-4415 THIS CERTIFICATE IS ISSUE[) AS ANI0.TTER OF 1NSlH[ANIt A~NI'Y DAILY AND GDNFERb NO R16HTS UPON THE: CE HOl[7ER. TI'11S CEIIT~ICAtE WE$ NOT AlAEN€ s I Nh_L[ Ai?6kES3 At,TER 7HE C01fE#tkGE AFFD(~ED BY fHE PO t.t1Y, SI-.ATE, ZIP CqD€ _ INSURERS AFTORDING C04/ERA:GE INSiIREQ CgflpaRy rt5..l.rra • insurance [t~spany Scerat Addras~ r~..o-rM~ ___„ {9ty, StAt2. 11p Castle rr.:..hr.i;_.__ rc;a•es r ~res..l~r-J - pa.TR ~rLCG^YYYI NAIL R 4HE P(YI II:IF$ C1F Ih41IP.dhi:E LI$I C_'+ 3f L.QM11 AS'L DCLti Iwk1EEr T[} THE IHfiI,IFgE7 N~.LTtU t`AStYuI: tS.4{ I H_ JL147 -'tNIUU III W,.:R I tL3. 15th Y(I 1 'I~! hHl.r N+ AhFV' RE'3lfliEIAEVT". 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FS:ICY " JECT A ~~`~ W10YOBS.E L14EiIT'< X M Flli'` +'1L YRF 11 al' 1(r; A x ~fE~iiFfl •UTri, ra~v ru*u~ HN 75'4M1ED'?UTtJU t -Af1GtF.E GABiIf V 1 ~+NY Pl+rrJ C11L'G36+utatllieLUt Lif6lrTY t.LV'Uti ~_I €iNk`5 'A+AE -~" i~^uiG-$ NEIa4l ilY V![IRRRRS t%7MrlN7P:fgR ARU ercimou' waurr ~ sN719d~6RFi.`.itF}R'TEA£:'EW' 7'4E t7 HL:~tMBtfl. tRi:LJ~rJ71 dl PRQ>'.03141~'+c#-r al R.x ...__... .. .. _._..__._._._ sr~a w. w[rle:.:r.le a 2+OnQlfnnii DM/y{]y 'tiJ::1.Y: 1'S-+:15M'"•+:r' PAit. - l iYARrZ W ~ ~-~ I:= ~ ~. ~"~ ~{ ;:jP.IRrJI J ul'J•:.i f 11Mi ,.. V .'.L'Wen ° 1'Y Ik Y MI tl•Y ,Px Pr ~ _._._. N'Y ILY r;I~I•' S M+Y J:iMI ~?r~r'Rrr ~:.vxa ~w a~~:irll - nlnlrlrrr-r,~alx:urnl ~s UYI ICY lil~N ra aJ]L 1 ~ ~.;rrs csw v Ju::: r~~Jlrr.:laa~lnl:r "a .`CST L _, _ s S g= ~,}aG-e3rk7 x 1QI},I Gt CIS'~SL-Ch LVPlr4Ylf i... ZQd+I EL il5'ersE W_'eli: LrJll 3 ~ ~511~1.1 Rw'SRJN iIr uPenwurrntL.icxlwea rvcm4lss~t;t~c,lGrw6 acrm rr --^- Grctereia. nL'v+5&Rlro? CTfY OF D116t1(h1E IS LISTED A5 AY At]biTIDNAL INSURED tyN GENERAL LIABILITY POt tCItS USING I5D E.NOC~25E- F;7RR tG 20 2& d7 d4 "ADDTTIONAI 1NSUREO-OESIGIVATEO PERSON OR ORGAViZdTI0111" pR iT5 EQUIVILANT. :RAE LIABILITY PdLICY IS PRTMARX AND NON-fANTf1I&ITIAG. fOliF+l ECG 25 U4 43 '~y "OESICNXTED LDGtiTI{" RAL LIABILITY ,AR',IGREGAT€ t,1kM17 51'IALL BE INCLUDED. GU4ERl5lVEl+ITAI. TMMUNCI`t.k5 tNUtMtSE#IENT IS INCLt1DED. PDLIQES SHALL BE EhpUIISrn Tik F•wDV1DE 30 DAY ADVANCE NOTICE QF CANCELLATION TO CITY OF DUBUQUE ~~ ~ D11BI~t11.iE QTY FtALL ~o w. 13TH STREET Ixmsucnrt_, 1A Szd41 JICORC' 28 f2001!f181 BH[ILLD JW f HF THEABQ'JE CEBGPoBGO PSM,S[Ru 4' crycn.l.ro ~r 4w~ ~Ixe.~.• ExPIPa.T10N QATE TNEFffi]F. THE IES>l:IN6 lVSUR3i Mill ~'~1 rJaa :30 C0.We YIFRTEN 1!D'i1GE 1f6 TaE CFItIFTATr lK7 nrw warm ro xt~ Ler 1, ~~~ xxxameKx.r~~~IxwNaomwexxxxxxxxxx ~Ww...~ aunnelreJ:c werwreuJraxlre 29 Q3ACORQ CORRpRATIUN 1988 IMP4R7AI+1T I(thC eertiFcatc ht]ItW 13 an R[7Dt1 i4N,l+°rL 1148tIREf3. fled {wli<:y(ius) ttts;Ff tx ee:tbu~seat. A s~emenr un this cvfld'it;a4~dges nor eon1~ n9~ to ths er3ttifiercl~iralrlcr in liru ut;ar~r etiuhtt~etnent~sp. If SUBR~Jra:ITIdM IS Y:ANEL7, suhfeet to ltuj B~rts grid wntJi4it;tts Uf Are: pc:iizy, izrlairr pplicies mayr I squirm kriCllx`9P,n'!G'rlt. A Statement on this c+9rti~tc tides rir~ t:,xdet ,iyltiK Ic: Irt~ eaetlifiis,le holder in lieu a? stx-r BndtxserrtiF'it{sj. DISCLAIMER The C;er'afrcate otrnsura+x'e nn the r~ti~rse aide of St75 fxm dues rw1 arrstitulG a cvnfe,a~l 4r-4~+~att The ~ssui-tg irrsurrtr~ss, autFtxked rePregerrt3llve or ~wtxiuraer, end ttre c~r~calre hrrcf~ , tai :Jsa~ it atttrrcalrrely ur negllivdp ~i, @xYentl pr aeDer flee co~r+,?ragt3 afforded b•/ ttus pali4ies Gsf~l lleri eN nt SPECIMEN i0.CDRD 2b [2t7U7Pe8i 30 POLICY NLNABEft: C~[1MMERC IAL ~iEidERAL. LIABILITY Cti 25 04 C3 8T 7HIS ENDORSEMENT GHANGiES THE PQLIGY. PI..F,.A$E READ !T CAREFULLY. DESIGNATE© LC)CATION{~} GENERAL AGGREGATE LIII~IIT This esrtdursarrrerrt modifies ~usuranrp prrrvirfe>i tirrdcr Ute iCNauing: CCN~Ah1ERCIAL GENERAL UAAII lT'Y Cr:1tfE~AGE PART 6Gti'EdULE Deslgrtatgd Lntakian{ey: _ _ _ . , l`If no d app=_ars Ab-.rwP, irfttmrgtiCn required to Gamplete this endastemenf rv~i f:~ ati{:nvn in ifte t?eclaralians €rs appl~cabte to the encars~rtt=et. Y A. Far all sums ~~hich UrC ;tisu~ed berac~me:~ I~j~al~r aWigetr:ri le) f~1r as damages caused by "oceurrenr~.a' urulrt ('.t1trFRA(;E A {SECTION ii. and io' all n^,eriinal expenses caused tY~ 2CG- dents under CL?VE.fiP,CiE C iSECTION q, tiuhic~ can tae atlribtrbed only to crY:eraliens a! a sing?e des"r~rtattsd "Irxaliori' sfirm^~ in the Scnedu abase: 1. A sexarate 17esgna~ri Lacs=.ion Generat ~.99re9aie ~irnit applies to each desi~natcd 'location', and chat snit ~ egraal Cct the ~tnxai~id car the Ge7terral Aggregate Lim t ahann in the Oeoiarations 2 The Caesignatr:d L.ocaticm C~rtar~: pgr~egaie ! iraet ix Uic must ~aMa will pay (or the sum of III darnagea under C9VCi2A+;G A, except ddrn- t3ges because o! "bodily injUty' or "prap~rhf damage` encluded ire the ' pnaductstvmpleEer! operations Itarard', anii f~i medical exFersea under C4VER~GE G rey7ardless of tltc nurn- Grx of: b. C#aims made pr `~uiia' tarvr.yt t, ur C. l'ersarte Cx Orglar,iza~inna making Cf31tri$ [ar hrinr~ktg'BU1t5'. 3. Any payrn~ents made under CC~ERAGE A Ror ttamag€~s or under ~t71/FRAC=E ~ !z>t meclicsai expe'tses shall reduce tee C+eslg- nated LaCCatica!t G~teaal Ayginyate Lirnt fpr lhsc dasig!neted 'loceti4n". `,xach payments sfiall hOt r~iu?ce the E,ener3< F~gEr~:~te C rout shown in tt>p r)rN~:+raligns nor s~~sll they re dtue any eat?tc-c C~esislnated L:ian Gerprat a4g~pregate Limit for s=ty :,tY~er desigrk7ted 'ttx€+tian' shown in the SChedtJe aba,~. 4. The limil5 shown in the C~edarattcans tr~r Each Oecusrcrtaa Fire C~sarrrtgf; z~rxi !4tedil Ex- p~r,~ continue to apply. litnvever; instead of berg sutrje~cf ha the General fiyyragata Limit showP in tfie [?ectarakgns, Such ~Iif'1R8 wtl b~ 5u~eci W Urn upNlacatfa designs eci ! tx;>;tipn Canerel,4cdgregrdc~ I unit a. =nstue[ls. 31 B. Fa all autrr3 wlrwh lfre inured beagme5 IegaNy otrligattd to Cay 85 damages caused by 'racurrencee" under r4W1=RItit'sE A :~EC1tON I), and fix adl medial expvr Ga~rr¢ari by arri- d2rr'IS unti®r CCY~/ERAGE C kSEGTIC3tJ 11- whch canrtat be attributed only to cperatons at a sln- qle d~si3nated 'i0catictt` shtr~rn in the Scfiaslu~ above.. 1. Ahy pByrrPSfi9 made under CryVERAGE A far damages or .trader GO-JERAGE G `ar rnadirai expenses shall reduce the amtunt avallak~ under ttta Gw•~eoal Aggregate Llmlt rar tfie Produc:~s-Cvr'rplGlect t.~er~GUrr: +4g1- grcg~t~c LiT1t. w{iirht?vt!r is applicable; and Y. Stdt paytnerts shalt not r~iuae any l}eslgnat3d L.ar~tiKxr General pggrr:gate liattil. G. 'lMhen cavzraga tar haaiiily r~r~ing poi., cf Iha 'pttadutNa cc~mplelled aperrliane hazard' ie pro- veed, eery paymeni9 far darna~es Ur3caase oi' 'bedi'y injury" ar "prcperiy damage" nclude~d in th9 "prcduCts-COmRleted ©aera[itxts hard" will rzduoe ftie PmducJs3-Completed t7parations Ag- eregata Limit. ar>d nol raiuoe the General Ag- gt'e~ate LIR1It nor me uesagnatt0 L~s;rtk~n C;r. f- eral Apgregafe Limit. a. Fnr thtr ptrposes of Ih~ endorsamenk. the Defi- nltlons ~ec~on is Smendc3d try the t~dditian of t;he rallarring definrh.~on: `l.aCaliorr" moans premises invaty rag t!-~e same Or CCr1r6EK:G(I~ tOt3, Or prxniatas wee ct~nrieC- tlon I~ Inte'ntated only by a srevt roadw•a~~. vrd- tenuay ar rtgtt-cF-vray of a railroad. E. 1 he provr;a~]ns of I, Ind C5# I nsuran~ (SECTIGIU 111J I17t otferwise modified by ttiis cncioraa~rarvt shall ccnt?nrie Ur: appN as atipulatec. s 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 further expansion 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 of the City Council of the City of Dubuque, Iowa on December 17, 1990. Resolution 48-97 of the City Council of the City of Dubuque, Iowa on January 20, 1997 authorized and directed this amendment. Prepared by the Community and Economic Development Department. February 1997 34 f TABLE OF CONTENTS A. INTRODUCTION Page 1 B. OBJECTIVES Page 2 C. DISTRICT BOUNDARIES Page 2 D. PUBLIC PURPOSE ACTIVITIES Page 3 E. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS Page 4 F. LAND ACQUISITION AND DISPOSITION Page 5 G. FINANCING ACTIVITIES Page 6 H. STATE AND LOCAL REQUIREMENTS Page 8 I. DURATION OF APPROVED URBAN RENEWAL PLAN Page 8 J. SEVERABILITY Page 9 K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN Page 9 L. ATTACHMENTS Page 9 35 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 expansion and 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 48-97 of the City Council of the City of Dubuque, Iowa on January 20, 1997 authorized and directed the preparation of this latest amendment to the Plan. This Plan shall serve as a new urban renewal plan for the expanded District described herein. The division of taxation authorized by Section 403.19 and the separation of incremental taxes as defined in Section 403.19(2) have been implemented in the existing area of the District (hereinafter referred to as "Subarea A"). Under the terms of this Amended and Restated Plan, the tax increment mechanism shall be continued and implemented within the proposed expansion area of the District (hereinafter referred to as "Subarea B") as well. The expanded District shall be subject to the provisions of a revised ordinance of the City of Dubuque with respect to the division of taxes levied and collected within each of Subarea A and Subarea B of the District. Incremental taxes shall be determined separately with respect to each of the Subareas comprising the expanded 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. 36 B. OBJECTIVES OF THE PLAN The primary objectives of the Plan are the development and redevelopment of the expanded District for economic development activities, primarily industrial park development, through: 1. Provision of marketable industrial development sites for the purpose of job-creating economic development activities; 2. Provision of public infrastructure improvements, including sanitary sewer, water and stormwater detention, supportive of full development of the District; 3. Provision of a safe, efficient and attractive circulation system; 4. Establishment of design standards which will assure cohesive and compatible development and redevelopment of the District; 5. Provision of public amenities that provide an aesthetically appealing environment, including open space, buffering, landscaping, water features, signage and lighting to create a distinctive and attractive setting; 6. Creation of financial incentives necessary to encourage new and existing businesses to invest in the District; and 7. Expansion of the property tax base of the District. C. DISTRICT BOUNDARIES The District is located within the City of Dubuque, County of Dubuque, State of Iowa. The City of Dubuque believes that the objectives of the Plan can best be accomplished by defining the real property included within the District as two separate areas so as to distinguish the existing District (Subarea A) from the proposed expansion area (Subarea B). Subarea A of the District shall consist of the real property legally described as follows: All of the Dubuque Industrial Center First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Additions and the adjoining public right-of-way, all in the City of Dubuque, Dubuque County, Iowa. Subarea B of the District shall consist of the real property legally described as follows: Lot 1-1 of the NW 1/4 of the NE 1/4, the West 3/4 of the NE 1/4 of the NW 1/4, the East 1/4 of the NE 1/4 of the NW 1/4 of Lot 1, Lot 2-1 of the SE 1/4 of the 37 NW 1/4, Lot 1-1 of the SE 1/4 of the NW 1/4, and the SW 1/4 of the NE 1/4, all in Section 30, T89N, R2E, 5th P.M., Dubuque County, Iowa; also, the NW 1/4 of the SW 1/4, the NE 1/4 of the SW 1/4, Lot 1 of the SE 1/4 of the SW 1/4, and Lot 1 of the SW 1/4 of the SW 1/4, all in Section 30, T89N, R2E, 5th P.M., in Dubuque County, Iowa; 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, 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, 5th P.M., thence southwesterly along the centerline of said railroad 2,700 feet, more or less a point of intersection with the westerly line of the SE 1/4 of said Section 30; thence southwesterly continuing along said centerline 845 feet, more or less, to a point where the railroad right-of-way widens to 200 feet, said point being the terminus of this description; also, Lot 1 of the NE 1/4 of the SE 1/4 of Section 25, T89N, R1 E, 5th P.M., Dubuque County, Iowa, and a part of Lot 1-1-1 of the SE 1/4 of the SE 1/4 of Section 25, T89N, R1 E, 5th P.M., Dubuque County, Iowa, described as follows: beginning at the NE corner of said Lot 1-1-1; thence S 00 degrees, 15` 43" W 562.15 feet along the east line of said Lot 1-1-1; thence N 89 degrees 05' 38" W 1,336.86 feet along the northerly line of Lot 2-1-1- of the SE 1/4 of the SE 1/4 of said Section 25 and extension thereof to a point of intersection with the west line of said Lot 1-1-1; thence N 00 degrees 34' 17" E 528.75 feet along said west line; thence N 89 degrees 28' 22" E 1,334.04 feet along the north line of said Lot 1-1-1 to the point of beginning, and any adjoining public right-of-way. The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT map (Attachment A). The City of Dubuque reserves the right to modify the boundaries of the District at some future date. Any amendments to the Plan will be completed in accordance with Chapter 403 of the Iowa Code, Urban Renewal Law. D. PUBLIC PURPOSE ACTIVITIES To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to initiate and support development and redevelopment of the District through, among other things, the following PUBLIC PURPOSE ACTIVITIES: 1. Acquisition of property for public improvements and private development; 2. Demolition and removal of buildings and improvements not compatible with or necessary for industrial park development and all site preparation and grading required in connection with such development; 38 3. Improvement, installation, construction and reconstruction of streets, utilities and other improvements and rights-of-ways including but not limited to the relocation of overhead utility lines, street lights, construction of railroad spur tracks, appropriate landscaping and buffers, open space and signage; 4. Disposition of any property acquired in the District, including sale, initial leasing or retention by the City itself, at its fair value; 5. Preparation of property for development and redevelopment purposes including but not limited to activities such as appraisals and architectural and engineering studies; 6. Use of tax increment financing, loans, grants and other appropriate financial tools in support of eligible public and private development and redevelopment efforts; 7. Enforcement of applicable local, state and federal laws, codes and regulations; 8. Enforcement of established design standards in furtherance of quality development; 9. Development and implementation of a marketing program for the purpose of promoting the purchase and development of industrial sites by private developers; 10. Coordination and cooperation with the improvement of Seippel Road as it affects Subarea B's accessibility to U.S. Highway 20. Public purpose activities are limited to those areas delineated on the PUBLIC PURPOSE ACTIVITY AREA map (Attachment B). All public purpose activities shall be conditioned upon and shall meet the restrictions and limitations placed upon the District by the Plan. E. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall apply to any and all District properties the development and/or the redevelopment of which is assisted by the City through any of the PUBLIC PURPOSE ACTIVITIES listed above. 1. Land Use a. Subarea A shall continue to be developed under the regulations of the 39 existing Dubuque Industrial Center Planned Industrial District. The allowed uses provide for a mix of commercial and industrial land use activities. LAND USE maps (Attachments C1 and C2) identify the existing and the proposed land uses within Subarea A. b. Subarea B is intended to be an expansion of the Dubuque Industrial Center and will provide additional land for commercial and industrial land uses within a quality industrial park setting. LAND USE maps (Attachments C1 and C2) identify the existing and the proposed land uses within Subarea B. 2. Planning and Design Criteria The planning criteria to be used to guide the physical development of both Subarea A and Subarea B are those standards and guidelines contained within the City of Dubuque's Zoning Ordinance and other applicable local, state and federal codes and ordinances. a. Subarea A development will continue to be additionally governed by the Conditions of Development and Operation Documents of the Dubuque Industrial Center Planned Industrial District as amended from time to time. b. Subarea B will develop under a new PI Planned Industrial District ordinance as required by Section 3-5.5 of the City of Dubuque Zoning Ordinance. Development within Subarea B will follow the Planned Unit Development regulations which require a conceptual development plan and specific design and performance standards to be approved by ordinance. F. LAND ACQUISITION AND DISPOSITION The City of Dubuque is prepared to acquire and dispose of property in support of the development and redevelopment of the District within the parameters set forth below. 1. Land Acquisition The City intends to negotiate the purchase of Subarea B, excluding the railroad right-of-way, through contractual agreement. However, the City will acquire, through eminent domain, any property for public or private development and redevelopment purposes should it be unable to acquire land through negotiated purchase. 40 The City also reserves the right to acquire, by negotiation or eminent domain, property rights required for the construction or reconstruction of streets and public utilities, or any other public facility or improvement. 2. Land Disposition Publicly held land will be sold for the development of viable uses consistent with this Plan and not for purposes of speculation. Land will be disposed of in accordance with the requirements set forth in Chapter 403 of the Iowa Code, Urban Renewal Law. Developers will be selected on the basis of the quality of their proposals and their ability to carry out such proposals while complying with the requirements of this Plan. Developers will be required by contractual agreement to observe the Land Use Requirements and Planning and Design Criteria of this Plan. The contract and other disposition documents will set forth the provisions, standards and criteria for achieving the objectives and requirements outlined in this Plan. 3. Relocation 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. 1. 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 41 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 or loan agreements may be issued by the City under the authority of Section 403.9 of the Iowa Code (tax increment bonds) or Section 384.24A, Section 384.24(3)(q) and Section 403.12 (general obligation bonds). The City acknowledges that the use of Tax Increment Revenues delays the ability of other local taxing bodies to realize immediately the direct tax benefits of new development in the District. The City believes, however, that the use of Tax Increment Revenues to finance the development of new industrial land and to promote private investment in the District is necessary in the public interest to achieve the OBJECTIVES of this Plan. Without the use of this special financing tool, new investment may not otherwise occur or may occur within another jurisdiction. If new development does not take place in Dubuque, property values could stagnate and the City, County and School District may receive less taxes during the duration of this Plan than they would have if this Plan were not implemented. Tax increment financing will provide along-term payback in overall increased tax base for the City, County and School District. The initial public investment required to generate new private investment will ultimately increase the taxable value of the District well beyond its existing base value. Tax increment reimbursement may be sought for, among other things, the following costs to the extent they are incurred by the City: a. Planning and administration of the Plan; b. Construction of public infrastructure improvements and facilities within the District; c. Acquisition, installation, maintenance and replacement of public investments 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; 42 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 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 $18,000,000. At the time of adoption of this Plan, the City of Dubuque's current general obligation debt is $14,200,000 (a list of obligations is found as Attachment D) and the applicable constitutional debt limit is $91,286,810. 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 1. 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 43 to carry out the OBJECTIVES of the Plan. 2. Subarea B This Plan shall continue in effect until terminated by the City Council; provided, however, that the collection of Tax Increment Revenues from properties located in Subarea B shall be limited to twenty (20) years from the calendar year following the calendar year in which the City first certifies to the County Auditor the amount of any loans, advances, indebtedness or bonds which qualify for payment from the division of Tax Increment Revenue provided for in Section 403.19 (tax increment financing) of the Iowa Code. The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS established, or as amended from time to time by the City of Dubuque Zoning Ordinance, shall remain in effect in perpetuity. J. SEVERABILITY In the event one or more provisions contained in this Plan shall be held for any reason to be invalid, illegal, unauthorized or unenforceable in any respect, such invalidity, illegality, unauthorization or unenforceability shall not affect any other provision of this Plan and this Urban Renewal Plan shall be construed and implemented as if such provision had never been contained herein. K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN This Plan may be amended from time to time to respond to development opportunities. Any such amendment shall conform to the requirements of Chapter 403 of the Iowa Code. Any change effecting any property or contractual right can be effectuated only in accordance with applicable state and local law. L. ATTACHMENTS A Urban Renewal District Map B Public Purpose Activity Area Map C Land Use Maps C1 Existing Land Use C2 Proposed Land Use D List of General Obligations 44 EXHIBIT B LEGAL DESCRIPTION Lots 1-3 and 2-3 in Dubuque Industrial Center West 5th Addition, in the City of Dubuque, Dubuque County, Iowa, 45 EXHIBIT B-1 SITE LAYOUT 46 to y n ~ J ©c ~ ru-t' o ~ ~ $~b~.c~~ ~ ~ t ~ ~ , ~ r''~ ~ ~~~'` 1.~ ~ciz< p ~ / ~ p II -~I D ~ mr':~ l a * y iA .tee r ~ c ;~ ~ X ~ } ~ W II ,,..,, ~ ~ 1 ~ 0~ p ... Z +'~~y~.] ~o ° 1NU o ~' C i ~ -.~ y p~ur~,4 i W ~ ~ ~'~~ ~~n~ °~~ ~ r~ m ~~~~ ~~ ~~ ~ Q~~ o ~: ~ ~ ~ D ~ ~ I Q "'~ ~ ~ u Q ~ ~~ ~ ~ vsz ~ ~ ~ ~ .u .. ~( ? N y4~` "~ q~ v~ 286' I ~'~! J ~~ f ~~ C 'J q `] `ter "~~C~~AF • ~v~1 r } J Ta J ~~ ~' ~ ~ ~~m ~ ~ ~~ ~ ~ +Rp ^" ~ ~ rye' ~ TSST ~ o ~ ~ ~ ~. ~ b ~ Il~ ~ ~ d ~sY ., ~ ~ b rri msi~_ u o ~ ~. -i n _~ 47 EXHIBIT C CITY ATTORNEY'S CERTIFICATE 48 BARRY A. LINDAHL, ESQ. CITY ATTORNEY RE: Dear THE CITY OF ~ f~ ~LTBI:~ - E (DATE) have acted as counsel for the City of Dubuque, Iowa, in connection with the execution and delivery of a certain Development Agreement between (Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the day of , 20_. The City has duly obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement and has full power and authority to execute, deliver and perform its obligations under this Agreement, and to the best of my knowledge, the representations of the City Manager in his letter dated the day of , 20_, are correct. Very sincerely, BAL:tIs Barry A. Lindahl, Esq. City Attorney 49 EXHIBIT D OPINION OF DEVELOPER'S COUNSEL 50 Mayor and City Councilmembers Cit~ Hall 13t and Central Avenue Dubuque IA 52001 Re: Development Agreement Between the City of Dubuque, Iowa and Dear Mayor and City Councilmembers: We have acted as counsel for (Developer) in connection with the execution and delivery of a certain Development Agreement (Development Agreement) between Developer and the City of Dubuque, Iowa ("City") dated for reference purposes the day of , 20_. We have examined the original certified copy, or copies otherwise identified to our satisfaction as being true copies, of the Development Agreement and such other documents and records as we have deemed relevant and necessary as a basis for the opinions set forth herein. Based on the pertinent law, the foregoing examination and such other inquiries as we have deemed appropriate, we are of the opinion that: 1. Developer is a limited liability company organized and existing under the laws of the State of and has full power and authority to execute, deliver and perform in full Development Agreement. The Development Agreement has been duly and validly authorized, executed and delivered by Developer and, assuming due authorization, execution and delivery by City, is in full force and effect and is valid and legally binding instrument of Developer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 2. The execution, delivery and performance by Developer of the Development Agreement and the carrying out of the terms thereof, will not result in violation of any provision of, or in default under, the articles of incorporation and bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which Developer is a party or by which Developer's property is bound or subject. 3. There are no actions, suits or proceedings pending or threatened against or affecting Developer in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position or results of operations of Developer or which in any 51 manner raises any questions affecting the validity of the Agreement or the Developer's ability to perform Developer's obligations thereunder. Very truly yours, 52 EXHIBIT F LAND CONTRACT 53 EXHIBIT G MEMORANDUM OF DEVELOPMENT AGREEMENT 55 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 By: Jeanne F. Schneider, City Clerk 56 STATE OF IOWA DUBUQUE COUNTY ss: On this day of , 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who being by me duly sworn did say that they are the Mayor and City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to said instrument is the seal of said Municipal Corporation and that said instrument was signed and sealed on behalf of said Municipal corporation by authority and resolution of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public, State of Iowa STATE OF IOWA DUBUQUE COUNTY ss: On this day of , 20)), before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa 57 EXHIBIT H CITY CERTIFICATE 58 City Manager's ©ffice 50 West 13th Street Dubuque, Iowa 52001-4864 (563} 589-4110 phone (563) 589-4149 fax ctymgrc~cityoEdubuque.org (DATE) Dear THE CITY OF -" L LTB `~ ~ ~ `~.~~ I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in connection with the execution and delivery of a certain Development Agreement between (Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the day of , 20_. On behalf of the City of Dubuque, I hereby represent and warrant to Developer that: (1) There is no action, suit or proceeding pending, or to the best of City's knowledge, threatened against City which might result in any adverse change in the Property being conveyed or the possession, use or enjoyment thereof by Developer, including, but not limited to, any action in condemnation, eminent domain or public taking. (2) No ordinance or hearing is now or before any local governmental body that either contemplates or authorizes any public improvements or special tax levies, the cost of which may be assessed against the Property. To the best of City's knowledge, there are no plans or efforts by any government agency to widen, modify, or re-align any street or highway providing access to the Property and there are no pending or intended public improvements or special assessments affecting the Property which will result in any charge or lien be levied or assessed against the Property. (3) All leases, contracts, licenses, and permits between City and third parties in connection with the maintenance, use, and operation of the Property have been provided to Developer and City has provided true and correct copies of all such documents to Developer. (4) City has good and marketable fee simple title interest in the Property. 59 (5) The Property has a permanent right of ingress or egress to a public roadway for the use and enjoyment of the Property. (6) There are no notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution, health violations or other matters that have not been corrected. City has notified Developer in writing of any past notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution or health violations as they relate to the Property of which it has actual notice. The Property is in material compliance with all applicable zoning, fire, building, and health statutes, ordinances, and regulations. The Property is currently zoned PUD and Developer's intended use of the Property as a 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 at time of closing confirming the representation contained herein, in the form attached hereto as Exhibit C. (11) The Property is free and clear of any occupants, and no party has a lease to or other occupancy or contract right in the Property that shall in any way be binding upon the Property, Developer. (12) City represents and warrants that any fees or other compensation which may be owed to a broker engaged directly or indirectly by City in 60 connection with the purchase and sale contemplated in this Agreement are the sole responsibility and obligation of City and that City will indemnify Developer and hold Developer harmless from any and all claims asserted by any broker engaged directly or indirectly by City for any fees or other compensation related to the subject matter of this Agreement. (13) City shall exercise its best efforts to assist with Developer in the development process. (14) City shall exercise its best efforts to resolve any disputes arising during the development process in a reasonable and prompt fashion. (15) With respect to the period during which City has owned or occupied the Property, and to City's knowledge after reasonable investigation with respect to the time before City owned or occupied the Property, no person or entity has caused or permitted materials to be stored, deposited, treated, recycled, or disposed of on, under or at the Property, which materials, if known to be present, would require cleanup, removal or some other remedial action under environmental laws. (16) All city utilities necessary for the as an industrial manufacturing facilii shall have the right to connect to sai fees. development and use of the Property ~ adjoin the Property and Developer i utilities, subject to City's connection (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, MCVM:jh Michael C. Van Milligen City Manager F:\USERS\DHeiar\Royal Oaks Development\Royal Oaks Development DA.doc 61