Development Agreement _40 Main LLCTHE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
TO: The Honorable Mayor and City Council Members
FRONT: Michael C. Van Milligen, City Manager
SUEJECT: Development Agreement with 40 Main, LLC
DATE: January 14, 2009
Economic Development Director Dave Heiar is recommending approval of a
Development Agreement between the City and 40 Main, LLC for the revitalization of
property located at 40-42 Main Street in downtown Dubuque.
The Development Agreement formalizes the City's partnership with the following
incentives:
1. 10 Year TIF in the form of an upfront bond. A Minimum Assessment Agreement
will need to be executed amounting to no less than $2,975,108 to achieve
$600,000 in bond proceeds (assuming 5.5% interest on the TIF bond) The
proceeds will be passed on to the Developer in two ways:
a. A $3000,000 Economic Development Grant to the project
b. A $300,000 Economic Development Loan to the project. The interest rate
on the loan will equal the rate given on the TIF bond. The first 36 months
on the loan will have no payments of interest or principle but interest will
accrue. Principle and interest payment will begin on the 36th month and
will be amortized over 120 months.
2. $300,000 Downtown Rehabilitation Loan (currently scheduled to be available to
the project in FY2013)
3. $10,000 Facade Grant
4. $10,000 Design Grant
There are several reasons why this project is important to the City. First, the building is
in a very visible location at the entry to the downtown and improving it will strengthen
the area. Second, this project will save a historic building. Third, there is currently a
shortage of quality housing in the downtown area. Fourth, this project is the first of its
kind in downtown because it will be market-rate apartments and no project this scale
has been achieved in downtown. Should this project be successful, it will give validity to
the need for downtown housing and solidify demand for more housing, specifically in the
Historic Millwork District and the rest of downtown.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/js
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Department
SUBJECT: Development Agreement with 40 Main, LLC
DATE: January 12, 2009
INTRODUCTION
The attached resolution provides for the approval of a Development Agreement
between the City and 40 Main, LLC for the revitalization of property located at 40-42
Main Street in downtown Dubuque.
BACKGROUND
The Property located at 40-42 Main Street was formerly the Higley Chemical Building
and is located in a very visible intersection in Downtown Dubuque. The building has sat
vacant for some time and water damage has impacted portions of the structure.
On September 4, 2007, the City Council approved a Memorandum of Understanding to
include the property in the Urban Renewal District and to provide a Downtown
Rehabilitation Loan up to $300,000, Facade Grant of $10,000, and Design Grant of
$10,000.
DISCUSSION
The project to rehabilitate the 40 Main property involves significant restoration work.
The 30,000 square foot building will include 18 market-rate apartments and 7,800
square feet of commercial space. The work will be done in accordance with the U.S.
Secretary of the Interior's standard as Federal and State Historic Rehabilitation Tax
Credits will be used for the project.
There are several reasons why this project is important to the City. First, the building is
in a very visible location at the entry to the downtown and improving it will strengthen
the area. Second, this project will save a historic building. Third, there is currently a
shortage of quality housing in the downtown area. Fourth, this project is the first of its
kind in downtown because it will be market-rate apartments and no project this scale
has been achieved in downtown. Should this project be successful, it will give validity to
the need for downtown housing and solidify demand for more housing, specifically in the
Historic Millwork District and the rest of downtown.
The Development Agreement formalizes the City's partnership with the following
incentives:
1) 10 year TIF in the form of an up front bond. A Minimum Assessment Agreement
will need to be executed amounting to no less than $2,975,108 to achieve
$600,000 in bond proceeds (assuming 5.5% interest on the TIF bond). The
proceeds will be passed on to the Developer in two ways:
a. A $300,000 Economic Development Grant to the project
b. A $300,000 Economic Development Loan to the project. The interest rate
on the loan will equal the rate given on the TIF bond. The first 36 months
on the loan will have no payments of interest or principle but interest will
accrue. Principle and interest payment will begin on the 36t" month and
will be amortized over 120 months.
2) $300,000 Downtown Rehabilitation Loan (currently scheduled to be available to
the project in FY 2013)
3) $10,000 Fagade Grant
4) $10,000 Design Grant
RECOMMENDATION/ACTION STEP
I recommend the City Council review and adopt the attached resolution approving the
Development Agreement with 40 Main, LLC.
F:\USERS\DHeiar\40-42 South Main\40 Main DA Memo to Council.doc
Prepared/Return to: David Heiar, Economic Development, 50 W 13th Street, Dubuque, IA 52001 (563) 589-4393
RESOLUTION NO. 22-09
A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT FOR THE
REDEVELOPMENT OF 40 MAIN STREET.
Whereas, the City of Dubuque, Iowa, has a Memorandum of Understanding with
Miller Development Group outlining an incentive package for the rehabilitation of 40
Main Street; and
Whereas, the City of Dubuque, Iowa, is interested in stimulating reinvestment in
the Greater Downtown Urban Renewal District; and
Whereas, the City of Dubuque, Iowa is encouraging the use of financial
incentives to help finance code compliance activities and to spur redevelopment; and
Whereas, 40 Main, LLC meets these requirements; and
Whereas, it is the determination of this Council that approval of the Development
Agreement for the rehabilitation of the Property by 40 Main, LLC according to the terms
and conditions set out in the Development Agreement is in the public interest of the City
of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Development Agreement with 40 Main, LLC is hereby
accepted and approved.
Section 2. That the Mayor is hereby authorized to execute, on behalf of the
City Council of the City of Dubuque, Iowa, the attached Development Agreement with
40 Main, LLC.
Section 3. That the City Manager is hereby authorized to execute, on behalf of
the City Council of the City of Dubuque, Iowa, all necessary loan documents and is
further authorized to disburse loan funds from the Downtown Rehabilitation Loan/Grant
Program, in accordance with the terms and conditions of the executed agreement.
Passed, approved and adopted this 20th day of January, 2009.
Kevin J. Lynch,
Mayor Pro-Tem
Attest:
Jeanne F. Schneider, CMC,
City Clerk
EVEL.OPINENT' AGREEMENT
l( AN® E EEN
THE CITY ®F ®lJ lJQl1E, IWA
AN®
4~Q NiAIN, LLC.
THIS DEV LOPMENT AGREEMENT (Agreement) dated for reference purposes the
day o , 2009 is made and entered into by and between the City of
Dubuque, Iowa (City), nd 40 Main, LLC. (Developer).
WHEREAS, Developer is the owner of the following described real estate (the
Property):
L ots 16 & 17 in the Subdivision of the West one-half of Elock 1 in Dubuque Harbor
Company's Addition in the City of Dubuque, Iowa, .according to the recorded plat thereof.
located at 40 Main Street in the City of Dubuque; and
WHEREAS, the Property is located in the Greater Downtown Urban Renewal
District {the District) which has been so designated by City Council Resolution 300-08 as a
slum and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer has undertaken the redevelopment of a vacant building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (Project); and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
September 2, 2008, City has the authority to enter into contracts and agreements to
implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, inconsideration
of the promises, covenants and agreements made by each other, do hereby -agree as
follows:
SECTIN 7. REPRES NTATI~N~ AN® WAR NTIE~
1.1 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement, City hereby represents and warrants to Developer that to
the best of City's knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it 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 A.
(2) Gity shall exercise its best efforts to cooperate with Developer- in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City 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 financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re-align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against
the Property.
(7) 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
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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.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is
in full farce and effect and is a 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. Developer's counsel shall issue a legal opinion to the
City, at time of closing, confirming the representations contained herein, in the form
attached hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of organization or the operating agreement of Developer or any contractual
restriction, evidence of indebtedness, agreement or instrument of whatever nature
to which Developer is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(4) 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, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
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(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
1.3 Closin .The closing shall take place on the Closing Date which shall be the 31St
day of March, 2009, or such other date as the parties shall agree in writing but in no event
shall the Closing Date be later than the 31St day of October, 2009. Consummation of the
closing shall be deemed an agreement of the parties to this Agreement that the conditions
of closing shall have been satisfied or waived.
1.4 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 1.1 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 C.
(2} 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 Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) 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 hay/e
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
(5) Developer's counsel shall issue a legal opinion to the City confirming the
representations contained herein in the form attached hereto as Exhibit B.
1.5 City's Obligations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
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SECTIP12. ®E\!EL®PMERIT,~C°flVll°IES
2.1 Required Minimum Improvements. Developer will make a capital investment of not
less than four million dollars ($4,000,000.00) to improve the Property (the Minimum
Improvements). These Minimum Improvements ,nc!ude creating eighteen (18) apartments
for market-rate rental and seven thousand eight hundred (7,800) square feet of retail
space.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with 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, !lens and
charges, recorded 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 workwith
respect to the Minimum Improvements shall be in substantial conformity with the
Construction Plans approved by City.
2.4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within thirty (30) days after
the G(osing Date, and shall be substantially completed by March 1, 2010. 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
extraordinary delays. The time for performance of such obligations shall be extended only
for the period of such delay.
2.5 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 farm and shall be a conclusive determination of the satisfaction and termination
of the agreements and covenants in this Agreement.
SECTI®N 3. I°fl( PARI°ICIATIN
3.1 Downtown Rehab Loan/Grant.
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(1) Subject to the conditions set forth in this section, City hereby commits to a $300,000
low interest loan through the Downtown Rehabilitation Loan/Grant Program. The Project is
to be completed in accordance with the regulations set forth for the City of Dubuque
Downtown Rehabilitation Loan/Grant Program, with loan funding anticipated during FY
2013. The loan is for twenty years at 3°% interest and is intended far historic renovation of
the exterior fagade and historically significant elements of the interior with remodeling of
the remainder of the interior for use as commercial/residential space. Monthly interest only
payments shall be required for-the first sixty (60) months of the loan. Monthly principal and
interest payments, amortized over an additional fifteen (15} year period, shall begin the
sixty-first month of the loan. Developer's counsel shall not less than thirty (30} days prior
to closing on the loan provide City with an opinion of title showing merchantable title in
Developer to the satisfaction of City: City shall have until the closing to render objections
to title, including any easements or other encumbrances not satisfactory to City, in writing
to Developer. Developer shall promptly exercise its best efforts to ha~~e such title
objections removed or satisfied and shall advise City of its intended action within ten (10)
days of receipt of City's objections to title. If Developer shall fail to have such objections
removed as of the closing, or any extension thereof consented to by City, City may, at its
sole discretion, either (a) terminate its obligation under this Section 3.1 without liability on
its part, or proceed to closing subject to such objections. Developer agrees to use its best
reasonable efforts to promptly satisfy any such objections. The loan shall be secured by a
mortgage and personal guarantees in a form acceptable to City.
An amount of the principal of the loan egos[ to two thousand dollars ($2,000) shall be
forgiven far each new full-time position or full-time equivalent position created by
Developer within two years of the execution of the loan documents and maintained by
Developer for a period of not less than three years from the date of the execution of the
loan documents. The amount of the principal of the loan to be forgiven shall be determined
by City on the fifth anniversary of the loan based on documented evidence of job creation.
(2) A grant not to exceed ten thousand dollars ($10,000) shall be available to offset
documented predevelopment costs, architectural and engineering fees and other
miscellaneous soft costs far the Property. A determination must be made by City that the
Project is substantially complete and satisfies the conditions of the loan prior to the release
of any grant monies.
(3) A grant not to exceed ten thousand dollars ($10,000) shall be available to offset
Developer's documented costs for front or rear fagade renovations to the Property to
eliminate inappropriate additions or alterations and restore the fagade to its historic
appearance, or to rehabilitate the fagade to include new windows, paint, signage, awnings,
etc. to improve the overall appearance of the Property. The costs of landscaping or
screening with fencing or retaining walls may also be allowed, especially as it may impro~~e
property adjacent to the public right-of-way. Funding is anticipated for this program to
occur in FY2013.
3.2 Economic Development Grant to Developer. For and in consideration of
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Developer's commitments as provided herein, City agrees (subject to the conditions set
forth in this Section) to make an Economic Development Grant to Developer on the
Closing Date, or such other date as the parties shall mutually agree upon in writing
("Funding Date"). The Economic Development Grant shall not exceed three hundred
thousand and no/100 dollars ($300,000.00)(orsudr other amount determined as provided
in Section 3.4 hereof) and shall be payable solely and only from the proceeds of the sale
of urban renewal tax increment revenue bonds or notes by City as described in Section 3.$
hereof, and not from any other source.
3.3 Economic Development Loan to Developer. On the Funding Date, City also shall
provide Developer a loan in the amount of three hundred thousand dollars ($300,000). The
interest rate on the loan shall equal the rate of interest on the urban renewal tax increment
revenue bonds or notes as defined in Section 3.4. This loan shall be funded solely and
only from the proceeds of the sale of urban renewal tax increment revenue bonds or notes
by City as described in Section 3.4 hereof, and not from any other source. The loan shall
be amortized over one hundred twenty (120) payments paid monthly beginning on the first
day of the thirty-sixth (36t") month following the execution of the loan. Interest shall accrue
from the execution of the loan and will be incorporated into the principle of the loan: The
loan shall be secured by a mortgage and personal guarantees in a form acceptable to City.
3.4 Issuance of Notes. Developer acknowledges and agrees that City intends to
finance its costs associated with the funding of the Economic Development Grant and
Loan to Developer through the issuance of urban renewal tax increment revenue bonds or
notes to be issued by City under the provisions of Section 403.9 of the Iowa Code, the
Urban Renewal Act and this Section (such obligation being referred to herein as "Notes").
Developer further acknowledge and agree that it shall identify for City a purchaser for the
Notes ("the Purchaser") and City agrees to negotiate in good faith with the Purchaser with
respect to the terms of the Notes. Developer further acknowledges and agrees that the
Notes shall be sold on such terms and conditions, bear such interest rates, have such
reserve funding requirements, mature at such times and in such amounts as City, in its
sole but reasonable, good faith discretion, shall determine to be acceptable to it and the
Purchaser and shall be payable from and secured solely and only by a pledge of the "Tax
Increment Revenues" collected by City in respect of the Property and the Minimum
Improvements located thereon during a period not to exceed ten (10) years. The parties
hereto intend that the Notes will be issued in the maximum amount not to exceed six
hundred thousand and no/100 dollars ($600,000.00) plus issuance costs or such lesser
amount that can be repaid from the Tax Increment Revenues collected by City in respect of
the Property and the Minimum Improvements during a period of ten {10) years, taking into
account the Purchaser's requirements for debt service coverage and reserve funding.
Proceeds of the Notes shall be applied only to the payment of capitalized interest thereon
{if necessary), debt service reserve funding, costs of issuance and the payment of the
Economic Development Grant and Loan. City shall have no obligation to fund the
Economic Development Grant and Loan to be paid hereunder from any source other than
the proceeds of the Notes. City's obligation to issue the Notes and undertake its
obligations hereunder shall be subject in all respects to unavoidable delays as determined
7
in Section 2.3, the provisions of this Section, and to the satisfaction of all conditions
required (in the reasonable judgment of bond counsel for City) by Chapter 403 of the Code
of Iowa, as amended, with respect to the issuance of the Notes.
3.5 Limitations on Financial Undertakings of City. Notwithstanding any other provisions
of this Agreement, City shall have no obligation to Developer under this Agreement to
issue the Notes or to fund the Economic Development Grantor Loan to Developer, if any
of the following conditions exist as of the Funding Date:
(1) City is unable to complete the sale of the Notes on such terms and
conditions as it shall deem necessary or desirable in its sole, but reasonable, good
faith discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or both, would
be entitled) under Section 7 of this Agreement to exercise any remedies set-forth
therein as a result of any Event of Default; or
(3) There has been, or there occurs, a material change in the financing
commitments secured by Developer for construction of Minimum Improvements,
which change(s) make it substantially more likely, in the reasonable judgment of
City, that Developer will be unable to fulfill its covenants and obligations under this
Agreement to construct the Minimum Improvements; or
(4) City shall not have received a legal opinion from Developer's counsel in
substantially the form attached hereto as Exhibit B.
3.6 Use of Tax Increments. Developer recognizes that City intends to utilize the Tax
Increment Revenues collected each year in respect of Minimum Improvements to
pay-debt service on the Notes. Notwithstanding the foregoing, City shall be free to
use all Tax Increment Revenues collected each year in respect of Minimum
Improvements or other properties within Project Area for any purpose for which the
Tax Increment Revenues may lawfully be used pursuant to the provisions of the
Urban Renewal Act, and City shall have no obligation to Developer with respect to
use thereof.
3.7 The City and Developer anticipate that the Developer's interests in the Economic
Development Grant and Loan and/or the Downtown Rehab Loan/Grant will be
assigned to other intermediary parties in order to permit an intermediary party to
qualify for New Markets Tax Credits, and thereby bring additional funding into
the Project. City hereby declares its intent to consent to the assignment of any
of the interests and obligations of the Developer, provided that by such
assignment (1) the City's obligations are not increased, (ii) the security for the
repayment of the Economic Development Loan and Downtown Rehab
Loan/Grant is not materially impaired, (iii) the performance of the Developer's
obligations under this Agreement is not materially affected, and (iv) the City has
no liability or responsibility for payment of any of the fees, expenses or charges
3
of the intermediate parties or otherwise arising in connection with the
assignment
SECTION 4. C®VEN~.NT'S ®F ®EVEL R
4.1 The improvements to the Property shall conform to the U.S. Secretary of the
Interior's Standards for Rehabilitation.
4.2 Execution of Assessment Agreement. Developer shall agree to, and with City, shall
execute, as soon as the plans and specifications for Minimum Improvements are prepared,
but no later than Closing Date, an Assessment Agreement substantially in the form
attached hereto as Exhibit G ("Assessment Agreement") pursuant to the provisions of
Section 403.6(19) of the Code of Iowa specifying the Assessor's Minimum Actual ~,~a!ue for
Property and Minimum Improvements for calculation of real property taxes. Specifically,
Developer shall agree to a minimum actual value for Property and Minimum Improvements
which will result in a minimum actual value as of January 1, 2010 of not less than two
million nine hundred seventy-five thousand one hundred eight Dollars ($2,975,108.00)
(such minimum actual value at the time applicable is herein referred to as the "Assessor's
Minimum Actual Value"). Nothing in the Assessment Agreement shall limit the discretion of
the Assessor to assign an actual value to Property in excess of such Assessor's Minimum
Actual Value nor prohibit Developer from seeking through the exercise of legal or
administrative remedies a reduction in such actual value for property tax purposes;
provided, however, that Developer shall not seek a reduction of such actual value below
Assessor's Minimum Actual Value in any year so long as Assessment Agreement shall
remain in effect. The Assessment Agreement shall remain in effect until June 1, 2019 (the
"Termination Date"). Assessment Agreement shall be certified by the Assessorfor City as
provided in Iowa Code Section 403.6(19) and shall be filed for record in the office of the
County Recorder of Dubuque County, and such filing shall constitute notice to any
subsequent encumbrancer or purchaser of Property (or part thereof), whether voluntary or
involuntary, and such Assessment Agreement shall be binding and enforceable in its
entirety against any sl..lCh subsequent purchaser ^r anC;,,irr;branrer.
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.
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4.4 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.5 No Other Exemptions. During the term of this Agreement, Developer agrees not to
apply for any 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, i?s
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 at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100%) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(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 property insurance against loss and/or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
The term "replacement value" shall mean the actual replacement cost of the
building with 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
$50,000 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
10
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
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
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 furfher examination into such party's background.
4.10 Non-Transferability. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.5), 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 No change in Tax Classification. Developer agrees that, while any portion of the
Notes described in Section 3.4 remain outstanding, Developer will not take any action
to change, or otherwise allow, the classification of the Development Property for
property tax purposes to become other than commercial property and to be taxed as
such under Iowa law.
4.12 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:
11
(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 restaurant and upper-story housing, 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 sha!! seek
enforcement of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected thereon,
or any part thereof (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same).
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
ECT'IN ~IENT~ F ®FAULI° AN® REME®IES
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 fo!lo~,ving 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.
(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 Impro~~ements 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
12
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 Developer deemed adequate by City, that the Developer 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 Downtown Rehab
Loan/Grantor Economic Development Grant and Loan to Developeer and City may
take any action, including any legal action it deems necessary, to recover such
amounts from the Developer;
(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 No Remed Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
5.4 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.
5.5 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.
13
5.6 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 Gity under this Agreement. Developer may suspend
their 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.
SECT'IN GENE L TERMS ~,N® PRVISIN
6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if
and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to ®eveloper: Chris Miller
40 Main LLC
3211 North Cedar Court
Dubuque IA 52003
With copy to: Attorney
law firm
address
city state, zip
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13t" Street
Dubuque IA 52001
Or at such other address with respect to either 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 and Developer and their respective successors and assigns.
14
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2019 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D
in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
.costs for so recording.
IN WITNESS WHEREOF, Gity has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
40 Ms41~I, LLC.
By
Chris Mi ler
Partner
Atte t
eanne F. Schneider
City. Clerk
(City Seal)
STATE~OF IOWA
COUNTY`QF DUBUQUE
SS
On this day of 20®, before met undersigned, a Notary
Public in and f the said County and Stat ,personally appeared oy D. Buol and Jeanne
F. Schneider, to e personally known, who, being by me duly sworn, did say that they are
the Mayor and ity Clerk, respectively, o the City of Dubuque, Iowa, a municipal
corporation execute g the instrument to which is is attached; that the al affixed hereto
is the seal of said m nicipal corporation; that s id instrument was signe and sealed on
behalf of the City of D buque, laws, by authority fits City Council; and t t said Mayor
and City Clerk acknowl dged the execution of sae instrument to be the volu tary act and
15
State of Iowa )
ss:
County of Dubuque )
On this 20t" day of January, 2009, before me, the undersigned, a Notary Public in and
for the State of Iowa, personally appeared Kevin J. Lynch and Jeanne F. Schneider, to
me personally known, who, being by me duly sworn, did say that they are the Mayor
Pro-Tem and City Clerk, respectively, of the City of Dubuque, Iowa; a municipal
corporation; that the seal affixed to the foregoing instrument is the corporate seal of the
City, and that the instrument was signed and sealed on behalf of the City, by authority of
its City Council, and Kevin J. Lynch and Jeanne F. Schneider acknowledged the
execution of the instrument to be their voluntary act and deed.
~'' /~
~',-'` -,
``
Not,~ry Public in and for aid State
a~ ~ ~ ~~41P~! ~. ~li~l`d~i"fh.Hl..
~~ ~ ~~Y Ct~:~~ISBIG'~4 EXF'I~E5
Ipy,F .2~I~~~17 _e
deed of said City, by it and by them voluntarily executed.
Notary Pub!Ic
STATE OF IOWA
SS
COUNTY OF DUBUQUE
On this 22nd day of January, 2009, before me the undersigned, a Notary
Public in and for the State of Iowa, ersonally appeared Chris Miller, to me personally
known, who, being by me duly sworn, did say that he is the Managing Partner of 40 Main
LLC., the corporation executing the instrument to which this is attached and that as said
Managing Partner 40 Main LLC. acknowledges the execution of said instrument to be the
voluntary act and deed of said company, by it and by him, an individual, voluntarily
executed.
Kevin S. Firnstahl
NotaryfPublic
F:\USERS\DHeiar\40-42 South Main\40 Main Development Agreement.doc
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16
LIST OF EXHIBITS
EXHIBIT A -City Attorney Certificate
EXHIBIT B -Opinion of Developer Counsel
EXHIBIT C -City Certificate
EXHIBIT D -Memorandum of Development Agreement
EXHIBIT E -Minimum Assessment Agreement
INSURANCE SCHEDULE
17
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
THE CITY OF DUBUQUE
Showing the Spirit
Dear
(DATE)
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement between (Developer)
and the City of Dubuque, Iowa (City) dated for reference purposes the day of
20_
The City has duly obtained all necessary approvals and consents for its execution, delivery
and performance of this Agreement and has full power and authority to execute, deliver
and perform its obligations under this Agreement, and to the best of my knowledge, the
representations of the City Manager in his letter dated the day of , 20_,
are correct.
Very sincerely,
BAL:tIs
Barry A. Lindahl, Esq.
City Attorney
19
Mayor and City Councilmembers
City 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 manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perform Developer's obligations
21
thereunder.
Very truly yours,
22
THE CITY OF DUBUQUE
Showing the Spirit
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001-4864
(563) 589-4110 phone
(563) 589-4149 fax
ctymgr@cityofdubuque.org
(DATE)
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the day of , 20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
24
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) 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.
(7) 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.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
25
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
26
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 40 Main, LLC. was made regarding the following
described premises:
Insert legal description of property.
Lots 16 & 17 in the Subdivision of the West one-half of Block 1 in
Dubuque Harbor Company's Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof.
The Development Agreement is dated for reference purposes the day of
2009, 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 , 2009.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
27
By:
Jeanne F. Schneider, City Clerk
28
STATE OF IOWA
COUNTY OF DUBUQUE
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
COUNTY OF DUBUQUE
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 Chris Miller to me
personally known, who being by me duly sworn did say that he is the Managing
Member of 40 Main, LLC. and that said instrument was signed on behalf of said
company by authority of its members and that he 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
29
Exhibit E
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
MINIMUM ASSESSMENT AGREEMENT
CITY OF DUBUQUE, IOWA
THIS MINIMUM ASSESSMENT AGREEMENT, dated for reference purposes
the day of , 2009, by and among the City of Dubuque, Iowa
(City), and 40 Main, LLC, an Iowa limited liability company with its principal place of
business at Dubuque, Iowa (Developer), and the City Assessor of the City of Dubuque
(Assessor).
WHEREAS, City and Developer have entered into a Development Agreement dated
as of 2009 (Development Agreement) regarding certain real
property (the Property) described in Exhibit A attached hereto, located within the City of
Dubuque; and
WHEREAS, it is contemplated that Developer will undertake the development of an
area (the Project) within the Greater Downtown Urban Renewal District by the construction
of the Minimum Improvements on the Property as provided in the Development Agreement;
and
WHEREAS, pursuant to Section 403.6 of the Iowa Code, as amended, City, and
Developer desire to establish a minimum actual value for the Minimum Improvements and
the Property, which shall be effective upon substantial completion and from then until this
Agreement is terminated pursuant to the terms herein; and
WHEREAS, City and Assessor have reviewed the preliminary plans and the
specifications for the Minimum Improvements which it is contemplated will be erected.
NOW, THEREFORE, the parties to this Agreement, in consideration. of the
promises, covenants and agreements made by each other, do hereby agree as follows:
1) Commencing January 1, 2010, the minimum actual value which shall be fixed for
assessment purposes for the Property described in Exhibit A attached hereto, together with
30
the Minimum Improvements to be constructed thereon by Developer shall be not less than
dollars ($ ), until termination of
this Agreement. The parties hereto expect that the construction of the Minimum
Improvements will be substantially completed on or before the 1st day of January, 2010.
2) The minimum actual value herein established shall be of no further force and
effect and this Agreement shall terminate on the 1 st day of June, 2019, the final date of the
City's obligation to pay interest or principal with respect to the indebtedness incurred in
support of the Project, in the principal amount of $ .The final
scheduled maturity date of the said indebtedness is June 1, 2019. Provided, further, that in
the event said indebtedness had not been fully paid as to principal and interest as of
January 1, 2019, this Agreement shall continue in effect for such additional time as shall be
required therefore, but not later than January 1, 2021.
3) In the event that for any reason the Minimum Actual Value is not realized or
incremental taxes collected in respect of the Development Property and the Minimum
Improvements located thereon are insufficient to pay the scheduled payments of principal
and interest on the Bonds, the Company agrees to pay as taxes, or, if and to the extent
necessary, to make supplementary payments in lieu of taxes, in an aggregate amount
necessary to pay when due the principal of and interest on the Bonds, in each case
promptly upon demand by the City. The parties intend that the annual amount of
incremental taxes to be so collected shall be not less than the annual requirement for
scheduled principal and interest on the Bonds.
4) This Agreement shall be promptly recorded by Developer and prior to the
recording of any mortgage on the Property. Developer shall pay all costs of recording.
5) Neither the preambles nor provisions of this Agreement are intended to, nor shall
be construed as, modifying the terms of the Development Agreement between City and
Developer.
5) This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties.
THE CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
ATTEST
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA, COUNTY OF DUBUQUE ss:
31
On this day of , 20 _, before me, the undersigned, a Notary Public
in and for the State of Iowa, 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, Iowa; a municipal corporation; that the seal
affixed to the foregoing instrument is the corporate seal of the corporation, and that the
instrument was signed and sealed on behalf of the corporation, by authority of its City
Council, as contained in Resolution No. passed by the City Council on the
and Roy D. Buol and Jeanne F. Schneider acknowledged the execution of the
instrument to be their voluntary act and deed and the voluntary act and deed of the
corporation, by it voluntarily executed.
Notary Public, State of Iowa
40 MAIN, LLC
(DEVELOPER)
By:
Chris Miller, Managing Member
STATE OF 1O1/ilA, ®U13UQUE COUNTY ss:
On this day of , 20 _, before me, a Notary Public in and for said
county and state, personally appeared Chris Miller, to me personally known, who stated
that he is the Managing Member of 40 Main, LLC, and that said instrument was signed on
behalf of said company by authority of its members and that he acknowledged the
execution of this instrument to be the voluntary act and deed of said company by him and
by it voluntarily executed.
Notary Public, State of Iowa
32
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed, and being of the opinion that the minimum
market value contained in the foregoing Assessment Agreement appears reasonable,
hereby certifies as follows: The undersigned Assessor, being legally responsible for the
assessment of the property described in the foregoing Assessment Agreement, upon
completion of Minimum Improvements to be made on it and in accordance with the
Assessment Agreement, certifies that the actual value assigned to such land, building and
equipment upon completion shall not be less than Dollars
($ -) until termination of this Assessment Agreement
pursuant to the terms hereof.
Rick Engelken, Dubuque City Assessor
Date:
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
Subscribed and sworn to before me by
Assessor for the City of Dubuque, Iowa.
City
Notary Public in and for the State of Iowa
My Commission expires:
Date:
33
INSU NCE SCFIE®ULE
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) COMIVIERCIAL 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 clearly identified.
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INSURANCE SCHEDULE (Continued)
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
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CITY OF DUEUQUE, IOIIVp-
GOVERNMENTi4L 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.
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