Loading...
Eagle Window Cert of CompletionMEMORANDUM April 3, 2003 TO:The Honorable Mayor and City Council Members FROM:Michael C. Van Milligen, City Manager SUBJECT: Certificate of Completion for the Minimum Improvements Constructed by Otto A, LLC for the Eagle Window & Door Company and Estoppel Certificate Related Thereto Economic Development Director Bill Baum is recommending City Council approval of the Certificate of Completion for Otto A, LLC related to the completion of the Eagle Window & Door Company project, and approval of an Estoppel Certificate requested by General Electric Capital Business Asset Funding Corporation. I concur with the recommendation and respectfully request Mayor and City Council approval. MicrrCael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel CindySteinhauser, Assistant City Manager William Baum, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM April 3, 2003 TO:Michael Van Milligen, City Manager FROM:William Baum, Economic Development Director SUBJECT:Certificate of Completion for the Minimum Improvements Constructed by Otto A, LLC for the Eagle Window & Door Company and Estoppel Certificate Related Thereto INTRODUCTION This memorandum provides for City Council review and approval a Certificate of Completion for Otto A, LLC related to the completion of the Eagle Window & Door Company project. The memorandum also provides for City Council review and approval an Estoppel Certificate requested by General Electric Capital Business Asset Funding Corporation (GE Capital), Otto A's lender, related to the property owned by Otto A, LLC. The Development Agreement by and among the City, Otto A, LLC (Developer) and Eagle Window & Door Company (Employer) provides that a Certificate of Completion will be issued to the Developer on request upon the completion of the Minimum Improvements (building construction and interior improvements) on the property. DISCUSSION Herman Ahlers, owner of Otto A, has requested issuance of the Certificate of Completion and the Estoppel Certificate to allow him to refinance Otto A's mortgage on the Eagle Window & Door building with GE Capital. The Development Agreement provides for adght of reversion of the property to the City if the Developer defaults in the construction of the Minimum Improvements. However, upon completion of the construction, the Developer may request the issuance of a Certificate of Completion, which has the effect of terminating the revestment of title provision. The purpose of the revestment of title provision was to assure that the project would be completed in accordance with the provisions of the Agreement and that certain Events of Default had not occurred. Staff and Corporation Counsel agree that the obligations of the Developer to construct the Minimum Improvements have been met. The Estoppel Certificate is a representation by the City to the Developer's lender that neither the developer nor the Employer are in default under the terms of the Development Agreement. RECOMMENDATION I recommend issuance of a Certificate of Completion to the Developer acknowledging completion of its obligations to construct the Minimum Improvements as required in the Development Agreement. I further recommend approval of the Estoppel Certificate. ACTION STEP The action step is for the City Council to approve the attached Certificate of Completion and Estoppel Certificate and to authorize the Mayor and City Clerk to sign the Certificate of Completion on behalf of the City and to authorize the Mayor to sign the attached Estoppel Certificate. attachments F:\USERS~Pmyhre~WPDOCS'J.OAN DOC~E. AGLEWIN~cer tifofcompl.mem.doc Prepared By: Pamela Myhre 50 West 13th Street Dubuque, IA 52001 563-589-4393 CERTIFICATE OF COMPLETION WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"), by a Special Warranty Deed recorded on February 16, 2000 as Instrument Number 1655-00 in the office of the County Recorder of Dubuque County, State of Iowa, has conveyed to Otto A, LLC (the "Grantee"), in accordance with a Development Agreement dated as of February 15, 1999, and as amended by the Amendment to Development Agreement dated December 6, 1999 and by the Amendment No. 2 dated December 20, 1999, by and among the Grantor, the Grantee and Eagle Window & Door, Inc. (collectively, the "Agreement"), certain real property located within the Kerper Boulevard Industrial Park Economic Development Urban Renewal District of the Grantor and as more particularly described as follows: Lot 3 of Kerper Industrial Park in the City of Dubuque, Dubuque County, Iowa (the "Development Property"); and WHEREAS, said Deed incorporated and contained certain covenants and restrictions with respect to the development of the Development Property, and obligated the Grantee to construct certain Minimum Improvements (as defined therein) in accordance with the Agreement; and WHEREAS, the Grantee has to the present date performed said covenants and conditions insofar as they relate to the construction of the Minimum Improvements in a manner deemed sufficient by the Grantor to permit the execution and recording of this certification. NOW, THEREFORE, pursuant to Section 3.4 of the Agreement, this is to certify that all agreements and covenants of the Deed and the Agreement with respect to the obligations of the Grantee, and its successors and assigns, to construct the Minimum Improvements on the Development Property have been completed and performed by the Grantee to the satisfaction of the Grantor and such agreements and covenants are hereby terminated. The County Recorder of Dubuque County is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the agreements and covenants of said Deed and the Agreement which would result in a forfeiture by the Grantee and right of the Grantor to re-enter and take possession of the Development Property as set forth in said Deed and the Agreement, and that said Deed and the Agreement shall otherwise remain in full force and effect. (SEAL) CITY Of DUBUQUE, IOWA ATTEST: By: Terrance M. Duggan, Mayor By: Jeanne F. Schneider, City Clerk STATE OF IOWA ) ) SS COUNTY OF DUBUQUE ) On this day of ,2003, before me a Notary Public in and for said County, personally appeared Terrance M. Duggan and Jeanne F. Schneider to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the laws of the State of Iowa, and that the seal affixed to the foregoing 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. F:\USERS\Pmyhre\WPDOCS~.OAN DOC~EAGLEWIN\certofcomp.rff Notary Public in and for Dubuque County, Iowa Loan No.: 10917-001 DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATE THIS CERTIFICATE is made as of Aptil __, 2003, by the CITY OF DUBUQUE, IOWA (the "City"), for the benefit of GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION ("GE CAPITAL"). RECITALS City is a party to the Development Agreement dated February 15, 1999, (the "Development Agreement"), between and among OTTO A, LLC, a Nevada limited liability company ("Developer"), EAGLE WINDOW AND DOOR, INC., an Iowa corporation ("Employer") and the City. Developer has requested that GE Capital extend a loan to Developer secured by a mortgage coveting the real property described in the Development Agreement and GE Capital has agreed to extend such loan upon the condition that Developer obtain this Certificate from the City in order to confirm certain matters. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City hereby certifies to GE CAPITAL and agrees with GE CAPITAL as follows: Except for (a) the Amendment to Development Agreement dated December 6, 1999 and (b) Amendment No. 2 to Development Agreement dated December 20, 1999, the Development Agreement has not been amended or modified and the Development Agreement remains in full force and effect. To the City's knowledge, neither Developer nor Employer are in default of any of their respective obligations under the Development Agreement as of the date hereof. The Certificate of Completion, as such term is defined in the Development Agreement, was issued on April ,2003. The City agrees to deliver to GE CAPITAL at it's address at 10900 NE 4th Street, Suite 500, Bellevue, WA 98004, Attention: Middle Market/Risk Operations Department, written notice of any default by Developer under the Development Agreement, and the DALLAS4 616771v2 12416-01908 1 City hereby grants to GE CAPITAL the right to cure any such default within a reasonable period of time. Dated as of the date first written above. CITY: CITY OF DUBUQUE, IOWA Print: Its: DALLAS4 616771v2 12416-01908 2 MEMORANDUM April 3, 2003 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Certificate of Completion for the Minimum Improvements Constructed by Otto A, LLC for the Eagle Window & Door Company and Estoppel Certificate Related Thereto Economic Development Director Bill Baum is recommending City Council approval of the Certificate of Completion for Otto A, LLC related to the completion of the Eagle Window & Door Company project, and approval of an Estoppel Certificate requested by General Electric Capital Business Asset Funding Corporation. I concur with the recommendation and respectfully request Mayor and City Council approval. v-7) Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager William Baum, Economic Development Director C% CITY OF DUBUQUE, IOWA MEMORANDUM April 3, 2003 TO: Michael Van Milligen, City Manager FROM: William Baum, Economic Development Directory SUBJECT: Certificate of Completion for the Minimum Improvements Constructed by Otto A, LLC for the Eagle Window & Door Company and Estoppel Certificate Related Thereto INTRODUCTION This memorandum provides for City Council review and approval a Certificate of Completion for Otto A, LLC related to the completion of the Eagle Window & Door Company project. The memorandum also provides for City Council review and approval an Estoppel Certificate requested by General Electric Capital Business Asset Funding Corporation (GE Capital), Otto A's lender, related to the property owned by Otto A, LLC. The Development Agreement by and among the City, Otto A, LLC (Developer) and Eagle Window & Door Company (Employer) provides that a Certificate of Completion will be issued to the Developer on request upon the completion of the Minimum Improvements (building construction and interior improvements) on the property. DISCUSSION Herman Ahlers, owner of Otto A, has requested issuance of the Certificate of Completion and the Estoppel Certificate to allow him to refinance Otto A's mortgage on the Eagle Window & Door building with GE Capital. The Development Agreement provides for a right of reversion of the property to the City if the Developer defaults in the construction of the Minimum Improvements. However, upon completion of the construction, the Developer may request the issuance of a Certificate of Completion, which has the effect of terminating the revestment of title provision. The purpose of the revestment of title provision was to assure that the project would be completed in accordance with the provisions of the Agreement and that certain Events of Default had not occurred. Staff and Corporation Counsel agree that the obligations of the Developer to construct the Minimum Improvements have been met. The Estoppel Certificate is a representation by the City to the Developer's lender that neither the developer nor the Employer are in default under the terms of the Development Agreement. RECOMMENDATION I recommend issuance of a Certificate of Completion to the Developer acknowledging completion of its obligations to construct the Minimum Improvements as required in the Development Agreement. I further recommend approval of the Estoppel Certificate. ACTION STEP The action step is for the City Council to approve the attached Certificate of Completion and Estoppel Certificate and to authorize the Mayor and City Clerk to sign the Certificate of Completion on behalf of the City and to authorize the Mayor to sign the attached Estoppel Certificate. attachments F:\USERS\Pmyhre\W PDOCS\LOANDOC\EAGLEW IN\certifofcompl.mem.doc 18229. 3 2033 JUL I 0 PM 12: 05 ',ATHY FLYNN THURLOW 00 COUNTY pRECORDER s. Prepared By: Pamela Myhre 50 West 13th Street Dubuque �A-520d1O\"rA FEm6-589- 4393 CERTIFICATE OF COMPLETION WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"), by a Special Warranty Deed recorded on February 16, 2000 as Instrument Number 1655-00 in the office of the County Recorder of Dubuque County, State of Iowa, has conveyed to Otto A, LLC (the "Grantee"), in accordance with a Development Agreement dated as of February 15, 1999, and as amended by the Amendment to Development Agreement dated December 6, 1999 and by the Amendment No. 2 dated December 20, 1999, by and among the Grantor, the Grantee and Eagle Window & Door, Inc. (collectively, the "Agreement"), certain real property located within the Kerper Boulevard Industrial Park Economic Development Urban Renewal District of the Grantor and as more particularly described as follows: Lot 3 of Kerper Industrial Park in the City of Dubuque, Dubuque County, Iowa (the "Development Property"); and WHEREAS, said Deed incorporated and contained certain covenants and restrictions with respect to the development of the Development Property, and obligated the Grantee to construct certain Minimum Improvements (as defined therein) in accordance with the Agreement; and WHEREAS, the Grantee has to the present date performed said covenants and conditions insofar as they relate to the construction of the Minimum Improvements in a manner deemed sufficient by the Grantor to permit the execution and recording of this certification. NOW, THEREFORE, pursuant to Section 3.4 of the Agreement, this is to certify that all agreements and covenants of the Deed and the Agreement with respect to the obligations of the Grantee, and its successors and assigns, to construct the Minimum Improvements on the Development Property have been completed and performed by the Grantee to the satisfaction of the Grantor and such agreements and covenants are hereby terminated. The County Recorder of Dubuque County is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the agreements and covenants of said Deed and the Agreement which would result in a forfeiture by the Grantee and right of the Grantor to re-enter and take possession of the Development Property as set forth in said Deed and the Agreement, and that said Deed and the Agreement shall otherwise remain in full force and effect. (SEAL). ATTEST: By: z-e/CA-) Jeanne F. Schneider, City Clerk STATE OF IOWA ) ) SS COUNTY OF DUBUQUE ) CITY OF DUBUQUE, IOWA By: errance M. Duggan, M On this )O day of , , 2003, before me a Notary Public in and for said County, personal appeared Terrance M. Duggan and Jeanne F. Schneider to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the laws of the State of Iowa, and that the seal affixed to the foregoing 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. F:\USERS\Pmyhre\WPDOCS\LOANDOC\EAGLEWIN\certofcomp. rtf Notary Public in and for Dubuque County, Iowa SUSAN M. WINTER COMMISSION NO. 183274 MY COMMISSION EXPIRES 2/14/05 Loan No.: 10917-001 DEVELOPMENT AGREEMENT ESTOPPEL CERTIFICATE THIS CERTIFICATE is made as of April 1, 2003, by the CITY OF DUBUQUE, IOWA (the "City"), for the benefit of GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION ("GE CAPITAL"). RECITALS A. City is a party to the Development Agreement dated February 15, 1999, (the "Development Agreement"), between and among OTTO A, LLC, a Nevada limited liability company ("Developer"), EAGLE WINDOW AND DOOR, INC., an Iowa corporation ("Employer") and the City. B. Developer has requested that GE Capital extend a loan to Developer secured by a mortgage covering the real property described in the Development Agreement and GE Capital has agreed to extend such loan upon the condition that Developer obtain this Certificate from the City in order to confirm certain matters. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City hereby certifies to GE CAPITAL and agrees with GE CAPITAL as follows: 1. Except for (a) the Amendment to Development Agreement dated December 6, 1999 and (b) Amendment No. 2 to Development Agreement dated December 20, 1999, the Development Agreement has not been amended or modified and the Development Agreement remains in full force and effect. 2. To the City's knowledge, neither Developer nor Employer are in default of any of their respective obligations under the Development Agreement as of the date hereof. 3. The Certificate of Completion, as such term is defined in the Development Agreement, was issued on April 7 , 2003. 4. The City agrees to deliver to GE CAPITAL at it's address at 10900 NE 4th Street, Suite 500, Bellevue, WA 98004, Attention: Middle Market/Risk Operations Department, written notice of any default by Developer under the Development Agreement, and the DALLAS4 616771v2 12416-01908 1 City hereby grants to GE CAPITAL the right to cure any such default within a reasonable period of time. Dated as of the date first written above. DALLAS4 616771v2 12416-01908 2 CITY: CITY OF DUBUQUE, IOWA By:17/2 Print: Terrance M. Dug Its: Mayor