Walter Development, LLC Development Agreement_Initiate Copyrighted
October 7, 2019
City of Dubuque Items to be set for Public Hearing # 6.
ITEM TITLE: Walter Development, LLC DevelopmentAgreement
SUMMARY: City Manager recommending that the City Council set a
public hearing for November 4, 2019 to approve the
Development Agreement between the City of Dubuque and
Walter Development, LLC.
RESOLUTION Intentto dispose of an interest in Cityof
Dubuque real estate pursuant to a Development
Agreement Between the City of Dubuque and Walter
Development, LLC and fixing the date for a public hearing
of the City Council of the City of Dubuque, lowa on the
DevelopmentAgreement including the proposed issuance
of Urban Renewal Tax Increment Revenue Grant
Obligations and providing for the publication of notice
thereof
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s), Set Public Hearing for November 4, 2019
ATTACHMENTS:
Description Type
Walter Development LLC De�lopmentAgreement- City Manager Memo
MVM Memo
Staff Memo Staff Memo
DevelopmentAgreement Supporting Documentation
Notice of Hearing Supporting Documentation
Resolution Setting Public Hearing Supporting Documentation
Dubuque
THE CITY OF �
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Setting a Public Hearing for the Development Agreement
between the City of Dubuque and Walter Development, LLC
DATE: October 2, 2019
Economic Development Director Jill Connors requests the City Council set a public
hearing for November 4, 2019 to approve the Development Agreement between the
City of Dubuque and Walter Development, LLC.
Earlier this year Walter Development, LLC negotiated leases with two companies,
Duluth Trading and Crown Holdings, looking to relocate in the City of Dubuque. Those
two companies will collectively add at least 116 new jobs to the community. The
companies have agreed to lease space at Walter Development's property at 7500
Chavenelle Road. In order to accommodate these two new lessees, Walter
Development is proposing to construct an industrial building further east of the 7500
Chavenelle Road property along Chavenelle Road and to relocate its staff in the new
building.
The Development Agreement provides 14 years of Tax Increment Financing rebates
and a land acquisition grant in order to incentivize this project. Additional terms and
conditions of the disposition of the property are included in the Development
Agreement.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Jill M. Connors, Economic Development Director
Dubuque Economic Development
Department
THE CITY OF � so west 13<h street
All-Ameriea Ciry Dubuque,lowa 52001-4864
D� L � nirn,�i�nx�ii ��� Office(563)589-4393
1 I I I I I TTY(563)690-6678
� http://www.cityofd u b uq ue.org
2007�2012*2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Setting a Public Hearing for the Development Agreement
between the City of Dubuque and Walter Development, LLC
DATE: September 30, 2019
INTRODUCTION
This memorandum presents for City Council consideration and action the attached
resolution setting a public hearing on November 4, 2019 for the approval of a
Development Agreement between the City of Dubuque and Walter Development, LLC.
BACKGROUND
Walter Development, LLC is a local company that has successfully built and occupied
several properties in Dubuque's Industrial Center West, providing services for other
local companies such as John Deere.
Earlier this year Walter Development, LLC negotiated leases with two companies,
Duluth Trading and Crown Holdings, looking to relocate in the City of Dubuque. Those
two companies will collectively add at least 116 newjobs to the community. The
companies have agreed to lease space at Walter DevelopmenYs property at 7500
Chavenelle Road. In order to accommodate these two new lessees, Walter
Development is proposing to construct an industrial building further east of the 7500
Chavenelle Road property along Chavenelle Road and to relocate its staff in the new
building.
DISCUSSION
The property contemplated for this construction project is part of the McFadden Farm
property that the City purchased in 2015 as part of its strategy to provide additional
locations for future industrial development.
In mid-to-late-2018, the City was informed by the State of lowa of a potential
development at this proposed relocation property from an out-of-state company. The
City began proactively preparing the site for development by beginning to grade the
property in order to meet the company's aggressive development timeline. The weather
conditions from October 2018 through late spring 2019, however, prevented much
progress on the grading.
This spring, City staff had no further information from the state as to the status of the
company that had initially inquired about locating in Dubuque. Meanwhile, negotiations
between Walter Development and Duluth Trading and Crown Holdings began to solidify,
provided Walter Development could relocate its current staff from 7500 Chavenelle
Road to another facility in a timely fashion.
It was at this time that Walter Development began discussions with the City about land
acquisition in part of the McFadden Farm in order to construct such a relocation facility.
Knowing that the relocation of staff from 7500 Chavenelle Road was indirectly
facilitating the addition of 60 full-time jobs in Dubuque, staff began negotiations on a
Development Agreement with Walter Development.
Walter Development plans to construct an industrial facility of not less than 216,000
square feet at an estimated cost of approximately $9,000,000. As part of the
negotiations, the City has also requested that Walter Development construct a
stormwater detention facility on the relocation property which will serve adjacent
properties.
Because a portion of the land Walter Development is requesting to acquire had already
been graded, while other portions have not, the Development Agreement provides for
different pricing for the graded versus the ungraded land, described as Parcel A and
Parcel B in the Agreement.
The Development Agreement provides 10 years of Tax Increment Financing (TIF)
rebates, plus an additional 4 years, for a total of 14 years of TIF rebates which includes
costs incurred by the City to finance this urban renewal project. The Development
Agreement also provides a land acquisition grant in order to incentivize this project.
Additional terms and conditions of the disposition of the property are included in the
attached Development Agreement.
RECOMMENDATION/ ACTION STEP
Based on this projecYs alignment with the City Council's goal of having a robust local
economy, I recommend the City Council adopt the attached resolution to set a public
hearing on November 4, 2019 on the attached Development Agreement with Walter
Development, LLC.
Prepared by: Jill Connors, Economic Development, 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
Return to: Jill Connors, Economic Development, 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 360-19
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE
PURSUANT TO A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
DUBUQUE AND WALTER DEVELOPMENT, LLC AND FIXING THE DATE FOR A
PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON
THE DEVELOPMENT AGREEMENT INCLUDING THE PROPOSED ISSUANCE OF
URBAN RENEWAL TAX INCREMENT REVENUE GRANT OBLIGATIONS AND
PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, the City of Dubuque, Iowa (City) is the owner of the two separately identified
parcels totaling approximately 17.64 acres, referred to herein and in Exhibit B-2 as Parcel
A and Parcel B (the Property); and
Whereas, City and Walter Development, LLC have entered into a Development
Agreement, subject to the approval of the City Council, pursuant to which City will convey
the Property to Walter Development, LLC, and Walter Development, LLC will construct on
the Property certain improvements described in the Development Agreement; and
Whereas, the City Council has tentatively determined that it would be in the best interests
of City to approve the Development Agreement, including the conveyance of the Property
to Walter Development, LLC; and
Whereas, the Development Agreement provides for the issuance by City of economic
development grants to Walter Development, LLC, referred to therein as Urban Renewal
Tax Increment Revenue Grant Obligations, payable from the tax increment revenues
collected in respect of the Improvements to be constructed by Walter Development, LLC
in accordance with the Development Agreement, for the purpose of carrying out the
objectives of an Urban Renewal Pian as hereinafter described; and
Whereas, before said obligations may be approved, Chapter 403 of the Code of Iowa
requires that the City Clerk publish a notice of the proposal and of the time and place of
the meeting at which the City Council proposes to take action thereon and at which
meeting the City Council shall receive oral and/or written objections from any resident or
property owner of said City to such proposed action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing -
described Property by Deed to Walter Development, LLC pursuant to the proposed
Development Agreement.
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Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and
a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on
the City's intent to dispose of the foregoing -described Property, to be held on the 4th day of
November, 2019 at 6:00 p.m. in the City Council Chambers at the Historic Federal Building,
350 W. 6th Street, Dubuque, Iowa.
Section 3. The City Council will also meet at said time and place for the purpose of taking
action on the matter of authorizing Urban Renewal Tax Increment Revenue obligations and
the execution of the Development Agreement relating thereto with Walter Development,
LLC, the proceeds of which obligations will be used to carry out certain of the special
financing activities described in the Urban Renewal Plan for the Dubuque Industrial Center
Economic Development District, consisting of the funding of economic development grants
to Walter Development, LLC pursuant to the Development Agreement under the terms and
conditions of said Urban Renewal Plan. It is expected that the aggregate amount of the Tax
Increment Revenue obligations will be approximately $2,630,000.
Section 4. The City Clerk is hereby directed to cause at least one publication to be
made of a notice of said meeting, in a newspaper, printed wholly in the English language,
published at least once weekly, and having general circulation in said City, said
publication to be not less than four days nor more than twenty days before the date of
said meeting on the disposal of the City's interest in the Property and the issuance of said
obligations.
Section 5. That the notice of the proposed action shall be in substantially the form
attached hereto.
Passed, approved and adopted this 7th day of October, 2019.
Attest:
Kevin , Firnstahl, City CI-rk
ake A.
Rios, s, Mayor Pro Tem
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
WALTER DEVELOPMENT, LLC
THIS AGREEMENT, dated for reference purposes the day of
, 2019, by and among the City of Dubuque, lowa, a municipality (City),
established pursuant to the lowa Code and acting under authorization of lowa Code
Chapter 403, As Amended (Urban Renewal Act), and Walter Development, LLC, an
lowa limited liability company with its principal place of business in Dubuque, lowa
(Developer). "Affiliates" of Developer as referred to herein means TM Incorporated
and Hodge Company.
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 (the Urban Renewal Plan) attached hereto as
Exhibit A; and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement, is on file with the County Auditor and the City of Dubuque City Clerk;
and
WHEREAS, Developer has determined that it requires a new industrial
building/facility to maintain and expand its operations and employment in the Project
Area (the Facility); and
WHEREAS, Developer has requested that City sell to Developer
approximately 17.64 acres of which 13.94 are usable, as shown on Exhibits B-1 and
B-2, together with all easements, tenements, hereditaments, and appurtenances
belonging thereto, so that Developer may develop the Property, located in the Project
Area, for the construction, use, and occupancy of the Facility in accordance with the
uses specified in the Urban Renewal Plan and Developer agrees to comply with any
amendments to the Urban Renewal Plan, in accordance with this Agreement; and
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WHEREAS, Developer and City agree that upon approval of the Plat (as
defined in Section 1 .5(11) of this Agreement), this Agreement will be amended to
include the legal description of the Property; 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.
(1) Subject to the terms and conditions herein, the purchase price for
Parcel A (the "Parcel A Purchase Price") shall be One Hundred Twenty
Thousand Dollars ($120,000) per acre for approximately 3.89 usable acres for
a total Parcel A Purchase Price of Four Hundred Sixty-Six Thousand Eight
Hundred Dollars ($466,800). The actual Parcel A Purchase Price shall be
adjusted based on the acreage of the Property as shown on the Plat (as
defined in Section 1 .5(11) of this Agreement).
(2) Subject to the terms and conditions herein, the purchase price for
Parcel B (Parcel B-1 and Parcel B-2) (the "Parcel B Purchase Price") shall be
Sixty Thousand Dollars ($60,000) per acre for approximately 10.05 usable
acres for a total Parcel B-1 Purchase Price of Six Hundred Three Thousand
Dollars ($603,000). The actual Parcel B-1 Purchase Price shall be adjusted
based on the acreage of the easements shown on the Plat.
(3) The total purchase price shall be the sum of the Parcel A Purchase
Price and the Parcel B Purchase Price (the "Purchase Price") which shall be
due and payable by Developer in immediately available funds in favor of City
at the Closing Date (as defined in Section 1 .1(4) of this Agreement).
(4) The Property consists of two separately identified parcels, referred to
herein and in Exhibit B-2 as Parcel A and Parcel B. The aggregate purchase
price for the Property (Purchase Price) shall be the sum of One Million Sixty-
Nine Thousand Eight Hundred Dollars ($1 ,069,800), with a total acquisition of
13.94 usable acres, which shall be due and payable by Developer in
immediately available funds in favor of City, on or before October 31 , 2019 or
on such other date as the parties may mutually agree (the Closing Date)
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1 .2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions,
and covenants of record as of the date hereof to the extent not objected to by
Developer as set forth in this Agreement, and to the conditions subsequent set forth
in Section 6.3, below:
(1) City, at its sole cost and expense, shall deliver to Developer an abstract
of title to the Property continued through the date of this Agreement reflecting
merchantable title in City in conformity with this Agreement and applicable
state law. The abstract shall be delivered together with full copies of any and
all encumbrances and matters of record applicable to the Property, and such
abstract shall become the property of Developer when the Purchase Price is
paid in full in the manner as aforesaid.
(2) Developer shall have until time of the Closing (as defined herein) 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
intended action within ten (10) days of such action. If City shall fail to have
such objections removed as of the Closing, 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)
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 Riqhts of Inspection, Testinq 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 agent and representatives shall also have the right to enter upon the Property at
any time after the execution and delivery hereof for any purpose whatsoever,
including 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
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make such inquiries of governmental agencies and utility companies, etc. and to
make such feasibility studies and analyses as they consider appropriate.
1 .4 Representations and Warranties of City. In order to induce Developer to enter
into this Agreement and purchase the Property, City hereby represents and warrants
to Developer that to the best of City's knowledge:
(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 which
it has actual notice. The Property is in material compliance with all applicable
zoning, fire, building, and health statutes, ordinances, and regulations.
(7) Payment has been made for all labor or materials which have been
furnished to the Property or will be made prior to the Closing so that no lien for
labor pertormed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date (as defined herein), be free
and clear of all liens, security interests, and encumbrances.
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(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 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 C.
(11) All city utilities necessary for the development and use of the Property
as a manufacturing facility adjoin the Property, and Developer shall have the
right to connect to said utilities, subject to payment of City's connection fees.
There will be no sanitary sewer connection fees associated with the project.
Only water connection fees will be assessed for connections to Chavenelle
Road. All other associated fees, such as a tapping fee, will be required as
determined by the size of the service line being installed.
(12) 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 or Developer.
(13) 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.
(14) City shall exercise its best efforts to assist Developer in the
development process.
(15) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
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(16) With respect to the period to and during which City has 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.
(17) The Property is presently zoned to accommodate Developer's intended
improvements.
(18) The representations and warranties contained in this Section shall be
correct in all respects on and as of the Closing with the same force and effect
as if such representations and warranties had been made on and as of the
Closing Date.
1 .5 Conditions to Closinq. 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 in the form of Exhibit G.
(2) Title to the Property shall be in the condition warranted in Section 1 .4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) 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, in its
sole opinion. City shall cooperate with Developer in attempting to obtain any
such approvals and shall execute any documents necessary for this purpose,
provided that 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 and Developer agrees to comply with any amendments to 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
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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 its 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.
(5) City having completed all required notice to or prior approval, consent
or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property; and consummation of the
Closing by City shall be deemed a representation and warranty that it has
obtained the same.
(6) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(7) Developer shall have furnished City with evidence, in a form satisfactory
to City (such as a letter of commitment from a bank or other lending institution),
that Developer has firm financial commitments in an amount sufficient,
together with equity commitments, to complete the Minimum Improvements
(as defined herein) in conformance with the Construction Plans (as defined
herein), or City shall have received such other evidence of such party's
financial ability as in the reasonable judgment of City is required.
(8) Developer shall have furnished City with evidence in a form as required
by Section 5.2 and satisfactory to City of Developer's and its Affiliates' fulltime
equivalent employees (FTE) at 7500 Chavenelle Road, Dubuque County, as
of January 1 , 2019.
(9) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(10) City shall have reserved in the Deed a 45' temporary easement for
grading for future road construction as shown on the Proposed Plat, and a 10'
permanent easement for public utilities as shown on the Proposed Plat. The
term of the temporary easement shall not exceed five (5) years. City shall
have delivered to Developer a grant of temporary construction access
easement over and across Lot 2-2 of McFadden Farm place and a temporary
easement for public ingress and egress across Parcel B-2, as shown on the
Proposed Plat.
(11) City shall have prepared and shall be prepared to record at Closing a
plat of survey of Property acceptable to Developer (the "PIaY'), including
location and depiction of all applicable easements and other substantial
improvements.
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(12) Developer shall have the right to terminate this Agreement at any time
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 to the
full satisfaction of such party in such party's sole and unfettered discretion.
Upon the giving of notice of termination by such terminating party to the other
parties to this Agreement, this Agreement shall be deemed null and void.
1 .6 Closinq. The closing of the purchase and sale (the Closing) shall take place
on the Closing Date. The Closing Date is October 31 , 2019, at 10:00 a.m., at City
Legal Counsel's office, or such other date or location as the parties agree in writing.
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 Obliqations at Closinq. At or prior to Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit E (the Deed) conveying to
Developer marketable fee simple title to the Property and all rights appurtenant
thereto, subject only to easements, restrictions, conditions and covenants of
record as of the date hereof and not objected to by Developer as set forth in
this Agreement, and to the conditions subsequent set forth in Section 6.3
below.
(2) Deliver to Developer the Abstract of Title to the Property.
(3) Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer.
1 .8 Delivery of Purchase Price; Obliqations At Closinq. At Closing, and subject to
the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay the Purchase Price relating to
Parcel A and Parcel B to City pursuant to Section 1 .1 hereof, but subject to Developer
receiving an offsetting credit pursuant to Section 3.1 below.
1 .9 Closinq 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.
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(b) A pro-rata portion of all taxes 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.
(� The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorneys' fees.
(c) Developer's broker and/or real estate commissions and fees, if
any.
(d) A pro-rata portion of all taxes as provided in Section 1 .10.
1 .10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years prior
to the fiscal year in which Closing Date occurs. Real estate taxes for the fiscal year
in which Closing Date occurs shall be prorated between City and Developer to
Closing Date on the basis of a 365-day calendar year. Developer shall pay or cause
to be paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the year currently
payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that the Facility
Developer is building on the Property is an industrial building/facility as shown on
Exhibit B-2 attached hereto. Specifically, Developer agrees to construct the building
and certain internal systems thereto, including all interior improvements to the
building and a detention facility as further described in Section 2.3(2); (the Minimum
Improvements); all as more particularly depicted and described on the plans and
specifications to be delivered to and approved by City as contemplated in this
Agreement. Developer hereby agrees the Facility will be not less than Two Hundred
Sixteen Thousand (216,000) square feet of floor space along with the necessary site
work, machinery and equipment at an estimated cost of approximately Nine Million
Dollars $9,000,000.
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2.2 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 the Urban
Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to the Amended and Restated Declaration of
Covenants, Conditions, Restrictions, Reservations, Easements, Liens and Charges,
recorded as Instrument No. 201 4-00001 1 47, records of Dubuque County, lowa.
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 Timinq of Improvements.
(1) Developer hereby agrees that construction of the Minimum
Improvements on Parcel A and Parcel B shall be commenced on or before
December 1 , 2019 and shall be substantially completed by August 1 , 2020.
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) Developer hereby agrees to construct a detention facility to serve the
Property, and Lot 2-2 of McFadden Farm Place, and the area naturally tributary
to the existing 42" culvert at the Southeast corner of Lot 2-2 of McFadden Farm
Place (the Public Detention Facility).
(i) The area to be served by the Public Detention Facility is 48.2
acres and the area of the Property served is 6.6 acres, which is
13.7°k of the total area served by the Public Detention Facility.
Commencing on the first day of January of the first year after City
accepts the work of Developer required by Section 2.4, and on
the anniversary date of each yearthereafter, 13.7°k of the annual
maintenance expenses incurred by City for the Public Detention
Facility for the previous 12-month period shall be assessed
against the Developer. The City Manager shall certify such costs
to the City Clerk, which shall then be certified and collected with
and in the same manner as general property taxes in accordance
with the provisions of law.
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(ii) Developer agrees to construct Public Detention Facility by
November 1 , 2019.
(3) Developer agrees to construct a street to standard City specifications
and requirements as shown on the Plat by August 1 , 2020. Developer shall
submit to City, for approval by City, plans, drawings, specifications, and related
documents with respect to the street to be constructed by Developer.
(i) Upon completion of the street, Developer shall notify the City and
City officials shall inspect the street. If City officials determine
that the street has been completed in accordance with all
standard City specifications and requirements, as well as the
plans, drawings, specifications, and related documents
previously submitted to the City, then the Developer shall
dedicate the street and related right-of-way "as is" to the City, at
no cost to the City, and the City shall accept dedication thereof.
(ii) Developer acknowledges and agrees that, upon dedication to
the City, the City shall own and maintain the street and that
nothing in this Agreement grants Developer, its agents, or its
employees any special legal entitlements or other rights not held
by members of the general public with respect to ownership,
maintenance, or use of the street.
(iii) The Parties agree that the City and its agents and employees
are not responsible for and have no liability to Developer
associated with the specifications, design, plans, quality of
construction, or sufficient of the street for any particular purpose.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, the City Manager 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 the Minimum
Improvements The Certificate of Completion, in the form attached hereto as Exhibit
H, shall waive all rights of re-vestment of title to the Property as provided in Section
6.3(1), and the Certificate of Completion shall so state.
2.5 Developer's Lender's Cure Riqhts. 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.
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3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to make
an Acquisition Grant to Developer on the Closing Date in the following amounts:
Parcel A: $278,135 ($71 ,500 per acre x 3.89 usable acres)
Parcel B (B-1 and B-2): $231 ,150 ($23,000 per acre x 10.05 usable acres),
The parties agree that the Acquisition Grant shall be payable in the form of a credit
favoring Developer with the effect of directly offsetting the Purchase Price obligation
of Developer. The Acquisition Grant for such parcels reduces the Purchase Price of
Parcel A and Parcel B (including Parcels B-1 and B-2) to reflect the City's initial
investment in Parcel A and Parcel B (including Parcels B-1 and B-2).
3.2 Economic Development Grants.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Developer
being and remaining in compliance with the terms of this Agreement, to make
twenty-eight (28) consecutive semi-annual payments (such payments being
referred to collectively as the Economic Development Grants) to Developer,
as follows:
November 1 , 2021 May 1 , 2022
November 1 , 2022 May 1 , 2023
November 1 , 2023 May 1 , 2024
November 1 , 2024 May 1 , 2025
November 1 , 2025 May 1 , 2026
November 1 , 2026 May 1 , 2027
November 1 , 2027 May 1 , 2028
November 1 , 2028 May 1 , 2029
November 1 , 2029 May 1 , 2030
November 1 , 2030 May 1 , 2031
November 1 , 2031 May 1 , 2032
November 1 , 2032 May 1 , 2033
November 1 , 2033 May 1 , 2034
November 1 , 2034 May 1 , 2035
pursuant to lowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of tax increment revenues collected by City under
lowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under lowa 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
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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, instructional support levy, and any other portion required to
be excluded by lowa law, and thus such incremental taxes will not include all
amounts paid by Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1 , 2020, its
request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to Developer on November 1 and May 1 of that
fiscal year. (Example: If City so certifies by December 1 , 2020, the Economic
Development Grants in respect thereof would be paid to Developer on
November 1 , 2021 , and May 1 , 2022.)
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments paid to City that, upon
receipt, shall be deposited and held in a special account created for such
purpose and designated as the Walter Hodge 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 Walter Hodge TIF Account to pay
the Economic Development Grants, as and to the extent set forth in Section
3.2(1) hereof. The Economic Development Grants shall not be payable in any
manner by other tax increments revenues or by general 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 Walter Hodge TIF Account (regardless of the
amounts thereo� to the payment of the Economic Development Grants to
Developer as and to the extent described in this Section.
(4) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer
Tax Increments resulting from the termination of the annual Economic
Development Grants under Section 3.2 hereof, for any purpose for which such
tax increment revenues may lawfully be used pursuant to the provisions of the
Urban Renewal Law, and City shall have no obligations to Developer with
respect to the use thereof.
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(5) All of City's obligations under this Agreement, including but not limited
to City's obligation to pay the Economic Development Grants to Developer,
shall be subject to City having completed all hearings and other procedures
required to amend the Urban Renewal Plan to describe the Urban Renewal
Project being undertaken in accordance with this Agreement.
3.3 Site Preparation. City reserves the right to approve the design and
specifications for any site preparation work. City shall not remove any dirt from the
Property prior to Closing, to the end that Developer may utilize dirt presently stored
on the Property in Developer's grading of the Property.
SECTION 4. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING.
4.1 Non-Appropriation. Notwithstanding anything in this Agreement to the
contrary, the obligation of City to pay any installment of the Economic Development
Grants from the pledged tax increment revenues shall be an obligation limited to
currently budgeted funds, and not a general obligation or other indebtedness of City
or a pledge of its full faith and credit within the meaning of any constitutional or
statutory debt limitation, and shall be subject in all respects to the right of non-
appropriation by the City Council of City as provided in this Section. City may exercise
its right of non-appropriation as to the amount of the installments to be paid during
any fiscal year during the term of this Agreement without causing a termination of this
Agreement. The right of non-appropriation shall be exercised only by resolution
affirmatively declaring City's election to non-appropriate funds otherwise required to
be paid in the next fiscal year under this Agreement.
In the event the City Council of City elects to not appropriate sufficient funds in the
budget for any future fiscal year for the payment in full of the installments on the
Economic Development Grants due and payable in that future fiscal year, then City
shall have no further obligation to Developer for the payment of any installments due
in that future fiscal year which cannot be paid with the funds then appropriated for
that purpose.
4.2 The right of non-appropriation reserved to City in this Section is intended by
the parties, and shall be construed at all times, so as to ensure that City's obligation
to pay future installments on the Economic Development Grants shall not constitute
a legal indebtedness of City within the meaning of any applicable constitutional or
statutory debt limitation prior to the adoption of a budget which appropriates funds for
the payment of that installment or amount. In the event that any of the provisions of
this Agreement are determined by a court of competent jurisdiction to create, or result
in the creation of, such a legal indebtedness of City, the enforcement of the said
provision shall be suspended, and the Agreement shall at all times be construed and
applied in such a manner as will preserve the foregoing intent of the parties, and no
event of default shall be deemed to have occurred as a result thereof. If any provision
of this Agreement or the application thereof to any circumstance is so suspended, the
suspension shall not affect other provisions of this Agreement which can be given
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effect without the suspended provision, and to this end the provisions of this
Agreement are severable.
SECTION 5. COVENANTS OF DEVELOPER.
5.1 Job Creation. During the term of this Agreement, Developer shall comply with
the following employment-related covenants for Parcels A and B:
(1) Developer and/or its Affiliates shall retain twelve (12) fulltime equivalent
(FTE) employees at the Facility in Dubuque, lowa, and shall maintain those
jobs during the term of this Agreement. It is agreed by the parties that
Developer and/or its Affiliates has twelve (12) fulltime equivalent employees
(FTE) at 7500 Chavenelle Road in Dubuque, lowa, as of January 1 , 2019,
which employees will be transferred to the Facility upon completion of the
Minimum Improvements. FTE employees shall be calculated by adding fulltime
and part-time employees together using 2080 hours per year as a FTE
employee.
(i) In the event that the certificate provided to City under Section 5.2
hereof on October 1 , 2030 discloses that Developer does not as of that
date have at least twelve (12) FTE employees as provided hereinabove,
Developer shall pay to City, promptly upon written demand therefor, an
amount equal to $42,440.42 per job not created or maintained
($509,285 divided by 12 FTE _ $42,440.42).
(ii) Notwithstanding (i), City retains the right to begin withholding
semi-annual Economic Development Grant amounts beginning
November 1 , 2029 if the certificate provided to City under Section 5.2
hereof on October 1 , 2029 discloses that Employer and/or its Affiliates
as of that date has failed to maintain 12 FTE employees at the Facility.
City shall not withhold in excess of $509,285 (the amount of the
Acquisition Grant). In the event that the certificate provided to City
under Section 5.2 hereof on October 1 , 2030 discloses that Employer
and/or its Affiliates does as of that date have at least Twelve (12) FTE
employees (2080 hours per year) as provided hereinabove, City shall
pay to Developer the amount of the Economic Development Grants
withheld under this Section (ii).
(2) In addition, for the FTE positions that Developer fails to create and
maintain for any year during the term of this Agreement, the semi-annual
Economic Development Grants for such year under Section 3.2 shall be
reduced by the percentage that the number of such positions bears to the total
number of positions required to be maintained (12 FTE's) by this Section 5.1 .
(For example, if Developer has 9 FTE employees, the semi-annual Economic
Development Grants to be paid for that year would be reduced to 75°k (9/12
employees) of the Tax Increment Revenues received by City). The reduction
of the semi-annual Economic Development Grants shall be the City's sole
is
remedy for the failure of Developer to meet the job creation requirements of
this subsection 5.1(2).
5.2 Certification. To assist City in monitoring the performance of Developer
hereunder, as of October 1 , 2021 , and again as of October 1 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 FTE positions employed by
Developer and/or its Affiliates at the Facility in Dubuque, lowa, 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 October 15, 2021 , and by October 15 of each year
thereafter during the term of this Agreement.
5.3 Books and Records. During the term of this Agreement, Developer shall keep
at all times 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.
5.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due and before delinquency, 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.
5.5 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 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 lowa Code Chapters 404 and 427,
as amended.
5.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
from time to time at the request of City, furnish City with proof of insurance in
the form of a certificate of insurance for each insurance policy):
i6
All risk builder's risk insurance, written on a Completed Value Form in
an amount equal to one hundred percent (100°k) of the replacement
value when construction is completed.
(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) all risk
property insurance against loss and/or damage to the 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 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 agrees to notify City immediately in the case of damage
exceeding $200,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. The
net proceeds of any such insurance (the 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.
5.7 Preservation of Propertv. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep,
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions. Nothing in this Agreement, however, shall be deemed to
alter any agreements between Developer or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
5.8 Non-Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
i�
religion, color, sex, sexual orientation, gender identity, national origin, age or
disability.
5.9 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 hertenure, or who
is in a position to participate in a decision-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 pertormed 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.
5.10 Non-Transferabilitv. During the Term of this Agreement, this Agreement may
not be assigned by Developer nor may any portion of the Property be sold or
otherwise transferred by Developer without the prior written consent of City, which
consent shall not be unreasonably withheld. City has no obligation to consent to any
assignment or sale.
5.11 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 consistent with its current zoning is in full compliance with the
Urban Renewal Plan and Developer agrees to comply with any amendments
to 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, gender identity, 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).
5.12 Release and Indemnification Covenants.
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(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 and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees 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 ofthe 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, seroants
or employees or any other person who may be on, in or about the Minimum
Improvements due to any act of negligence of any person, other than any act
of negligence on the part of any such Indemnified Party or its officers, agents,
servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual capacity
thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
5.13 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 6. EVENTS OF DEFAULT AND REMEDIES.
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6.1 Events of Default Defined. The following shall be "Events of DefaulY' under this
Agreement and the term "Event of DefaulY' 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.
(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 in any portion of the Property or
the Minimum Improvements in violation of the provisions of this Agreement.
(4) Failure by Developer to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be
observed or pertormed under this Agreement.
(5) Failure by Developer to dedicate Parcel B-2 to the City.
6.2 Remedies on Default bv Developer. Whenever any Event of Default referred
to in Section 6.1 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 the 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 underthis 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 Acquisition Grant to
Developer, 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
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(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.
6.3 Re-vestinq of Title.
(1) Re-vestina Title in Citv Upon Happenina of Event Subsequent to
Convevance to Developer and Prior to Issuance of Certificate of Completion.
In the event that, subsequent to conveyance of the Property to Developer by
City and prior to receipt by Developer of the Certificate of Completion, but
subject to the terms of the mortgage granted by Developer to secure a loan
obtained by Developer from a commercial lender or other financial institution
to fund the acquisition of the Property or construction of Minimum
Improvements (First Mortgage), an Event of Default under Section 6.1 (1)
through (4) ofthisAgreement occurs and is not cured within the times specified
in Section 6.2, then City shall have the right to re-enter and take possession
of Property and any portion of the Minimum Improvements thereon and to
terminate (and re-vest in City pursuant to the provisions of this Section 6.3
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
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 6.1 (1) through (4) 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 6.3 of this Agreement), but only if the events stated in Section 6.1 of
this Agreement have not been cured within the time period provided above, or,
if the events cannot be cured within such time periods, Developer does not
provide assurance to City, reasonably satisfactory to City, that the events will
be cured as soon as reasonably possible. Notwithstanding the foregoing,
however, City agrees to execute a Subordination Agreement in favor of
Developer's first mortgage lender, in a form reasonably acceptable to City and
to Developer's first mortgage lender.
(2) Re-vestinq Title under Other Circumstances. In the event that,
subsequent to the issuance of the Certificate of Completion to Developer but
subject to the terms of the mortgage granted by Developer to secure a loan
obtained by Developer from a commercial lender or other financial institution
to fund the acquisition of the Property or construction of Minimum
Improvements (First Mortgage), an Event of Default under Section 6.1 (5) of
zi
this Agreement occurs and is not cured within the times specified in Section
6.2, then City shall have the right to re-enter and take possession of Parcel B-
2 and any portion ofthe Minimum Improvementsthereon and to terminate (and
re-vest in City pursuant to the provisions of this Section 6.3 subject only to any
superior rights in any holder of the First Mortgage) the estate conveyed by
City to Developer in Parcel B-2, it being the intent of this provision, together
with other provisions of this Agreement, that the conveyance of Parcel B-2 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
6.1 (5) 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 Parcel B-2 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
Parcel B-2, shall revert to City (subject to the provisions of Section 6.3 of this
Agreement), but only if the events stated in Section 6.1 (5) of this Agreement
have not been cured within the time period provided above, or, if the events
cannot be cured within such time periods, Developer does not provide
assurance to City, reasonably satisfactory to City, that the events will be cured
as soon as reasonably possible. Notwithstanding the foregoing, however, City
agrees to execute a Subordination Agreement in favor of Developer's first
mortgage lender, in a form reasonably acceptable to City and to Developer's
first mortgage lender.
6.4 Resale of Reacquired Propertv: Disposition of Proceeds. Upon the re-vesting
in City of title to the Property as provided in Section 6.3 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 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
zz
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 (2) the cash actually
invested by such party in making any of the Minimum Improvements on the
Property.
6.5 No Remedy 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.
6.6 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.
6.7 Aqreement to Pav Attornevs' 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
23
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.
6.8 Remedies on Default bv Citv. If City defaults in the pertormance 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 performance under this Agreement until it
receives assurances from City, deemed adequate by Developer, that City will cure its
default and continue its pertormance under this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS.
7.1 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:
(1) If to Developer:
Walter Development, LLC
Attn: Tim Hodge, Managing Member
7465 Chavenelle Rd
Dubuque, lA 52002
Phone: (563) 583-9781
With copy to:
Bill Maiers
Reynolds and Kenline, LLP 110 E 9th St
Dubuque, lA 52001
Phone: 563-556-8000
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, lowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
24
City Attorney
City Hall
50 W. 13th Street
Dubuque, lowa 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.
7.2 Bindinq Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
7.3 Termination Date. ThisAgreement and the rights and obligations of the parties
hereunder shall terminate on June 1 , 2035 (the Termination Date).
7.4 Execution Bv 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.
7.5 Memorandum of Development Aqreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit F in
the office of the Recorder of Dubuque County, lowa. Developer shall pay the costs
for so recording.
IN WITNESS WHEREOF, City 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.
CITY OF DUBUQUE, IOWA WALTER DEVELOPMENT, LLC
By: By:
Roy D. Buol, Mayor Tim Hodge, Managing Member
By:
Kevin S. Firnstahl
City Clerk
zs
For purposes of Sections 5.1 and 5.2, TM Incorporated and Hodge Company join
in this Agreement.
TMINCORPORATED
By:
Tim Hodge, Vice President
HODGECOMPANY
By:
Tim Hodge, President
z6
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B-1 Proposed Plat
Exhibit B-2 Site Exhibit
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Deed
Exhibit F Memorandum of Development Agreement
Exhibit G City Certificate
Exhibit H Certificate of Completion
z�
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13�h Street, Dubuque, IA 52001)
zs
EXHIBIT B-1
PROPOSED PLAT
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32
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
33
Barry A.Lindahl,Esq.
Dubuque THE CITY OF
Senior Counsel �
Suite 33Q Harbor View Place �T 7� �
300 Main Street ��'����� U
Dubuque,Iowa 52001-6944
(563)583-4113 of&ce Masterpiece on tlie Mississippi
(563)583-1040 fax �
balesq(a�citvofdubuque.orQ zoo�•zoiz•zois
(DATE)
RE:
Dear �
I have acted as counsel for the City of Dubuque, lowa, in connection with the execution
and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, lowa (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,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:tIs
34
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
35
Mayor and City Councilmembers
City Hall
13�h and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, lowa 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, lowa (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 pertormance 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 pertorm Developer's obligations
thereunder.
36
Very truly yours,
37
EXHIBIT E
DEED
38
Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, lowa, a
municipal corporation of the State of lowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and no/100
Dollars ($ ) in hand paid, and other good and valuable consideration, and
pursuant to the authority of Chapter 403, Code of lowa, does hereby GRANT, SELL AND
CONVEY unto , an lowa limited liability company
(Grantee), the following described parcel(s) situated in the County of Dubuque, State of
lowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to lowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of the City
Council of the City of Dubuque adopted the _ day of , 20_, the terms
and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated the
day of , 20_ (the Agreement), a memorandum of which was recorded
on the day of , 20_, in the records ofthe Recorder of Dubuque County,
lowa, Instrument Number -_
Promptly after completion of the improvements and payment in full of the Purchase
Price for the Property in accordance with the provisions of the Agreement, Grantor will
furnish Grantee with a Certificate of Completion in the form set forth in the Agreement.
Such certification by Grantor shall be, and the certification itself shall so state, a
conclusive determination of satisfaction and termination of the agreements and covenants
of the Agreement and of this Deed with respect to the obligation of Grantee, and its
successors and assigns, to construct improvements and the dates for the beginning and
39
completion thereof and pay the Purchase Price for the Property, it being the intention of
the parties that upon the granting and filing of the Certificate of Completion that all
restrictions, re-vesting of title, and reservations of title contained in this Deed be forever
released and terminated and that any remaining obligations of Grantee pursuant to the
Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them to be
recorded with the County Recorder of Dubuque, lowa. If Grantor shall refuse or fail to
provide any such certification in accordance with the provisions of the Agreement and this
Deed, Grantor shall, within twenty days after written request by Grantee, provide Grantee
with a written statement indicating in adequate detail in what respects Grantee has failed
to complete the improvements in accordance with the provisions of the Agreement or is
otherwise in default, and what measures or acts will be necessary, in the opinion of
Grantor, for Grantee to take or perform in order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and Grantee
herein shall fail to cure such default within the period and in the manner stated in the
Agreement, then Grantor shall have the right to re-enter and take possession of the
Property and to terminate and re-vest in Grantor the estate conveyed by this Deed to
Grantee, its assigns and successors in interest, in accordance with the terms of the
Agreement.
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this_ of , 20_ at Dubuque, lowa.
CITY OF DUBUQUE IOWA
Attest: By:
Roy D. Buol, Mayor
By:
Kevin S. Firnstahl, City Clerk
STATE OF IOWA )
) SS
40
COUNTY OF DUBUQUE )
On this day of , 20 , before me a Notary Public in and
for said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me personally
known, who being duly sworn, did say that they are the Mayor and Acting City Clerk,
respectively of the City of Dubuque, lowa, a Municipal Corporation, created and existing
under the laws of the State of lowa, and that the seal affixed to the foregoing instrument
is the seal of said Municipal Corporation, and that said instrument was signed and sealed
on behalf of said Municipal Corporation by authority and resolution of its City Council and
said Mayor and Acting City Clerk acknowledged said instrument to be the free act and
deed of said Municipal Corporation by it voluntarily executed.
Notary
Public in and for Dubuque County, lowa
41
EXHIBIT F
MEMORANDUM OF DEVELOPMENT AGREEMENT
42
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, lowa, an lowa
municipal corporation, of Dubuque, lowa, and
WALTER DEVELOPMENT, LLC
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, togetherwith 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:
43
Kevin S. Firnstahl, City Clerk
STATE OF IOWA
. ss:
DUBUQUE COUNTY
On this _day of , 20 , before me, a Notary Public in and for the State of
lowa, in and for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, 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 lowa, 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 lowa
STATE OF IOWA
. ss:
DUBUQUE COUNTY
On this day of , 20_, before me, a Notary Public in and for the
State of lowa, 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 lowa
44
EXHIBIT G
CITY CERTIFICATE
45
�L1bUCjUe City Managei's Office
THE CITY OF � City Hall
50 West 13r�Streek
DT T� � NI-IIIIIL41C2CI�V Dubuque,Iowa 52001-4864
U (563)589-4110 office
(563)589-4149fax
_ ctymg�cityofdubuque.org
Masterpiece on the Mississippi Zoiz
(DATE)
Dear �
I am the City Manager of the City of Dubuque, lowa and have acted in that capacity in
connection with the execution and delivery of a certain DevelopmentAgreement between
(Developer) and the City of Dubuque, lowa (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.
(5) The Property has a permanent right of ingress or egress to a public roadway
for the use and enjoyment of the Property.
46
(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 pertorm 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 or Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
47
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the
Property, and to City's knowledge after reasonable investigation with respect to
the time before City owned or occupied the Property, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property, which materials, if known to be present,
would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as an
industrial manufacturing facility adjoin the Property and Developer shall have the
right to connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
48
EXHIBIT H
CERTIFICATE OF COMPLETION
49
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
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, lowa, a municipal corporation (the "Grantor"), by
a Special Warranty Deed (the "Deed") recorded on [Date] as Instrument Number [Insert
Number] in the office of the County Recorder of Dubuque County, State of lowa, has
conveyed to Walter Development, LLC (the "Grantee"), in accordance with a
Development Agreement dated as of[Date], by and among the Grantor, and the Grantee
(collectively, the "AgreemenY'), certain real property located within the Dubuque Industrial
Center Economic Development District of the Grantor and as more particularly described
as follows:
(the "Property"); and
WHEREAS, said Deed incorporated and contained certain covenants and
conditions with respect to the development of the Property, and obligated the Grantee to
construct certain Minimum Improvements and pay for the Property 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 and
payment for the Property in a manner deemed sufficient by the Grantor to permit the
execution and recording of this certification; and
NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify
that all covenants and conditions 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 Property and pay for the same have been completed and pertormed
by the Grantee to the satisfaction of the Grantor and such covenants and conditions are
hereby terminated.
The 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 satisfaction of
the covenants and conditions of said Deed and the Agreement which would have resulted
in a forfeiture by the Grantee and right of the Grantor to re-enter and take possession of
the Property as set forth in said Deed and the Agreement if such covenants and conditions
had not been satisfied, and that said Deed and the Agreement shall otherwise remain in
full force and effect.
so
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen, City Manager
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 20 , before me, the undersigned, a Notary
Public in and for the State of lowa, personally appeared Michael C. Van Milligen, to me
personally known, who, being by me duly sworn, did say that he is the City Manager of
the City of Dubuque, lowa, a municipal corporation, and that the instrument was signed
on behalf of the corporation, and Michael C. Van Milligen acknowledged the execution of
the instrument to be his voluntary act and deed.
Notary Public in and for said State
si
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE APPROVAL OF A DEVELOPMENT AGREEMENT WITH
WALTER DEVELOPMENT, LLC PROVIDING FOR THE SALE OF CITY-OWNED REAL
ESTATE TO WALTER DEVELOPMENT, LLC AND AUTHORIZATION FOR THE
ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE GRANT
OBLIGATIONS PURSUANT TO THE DEVELOPMENT AGREEMENT
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque,
lowa, will hold a public hearing on the 4�h day of November, 2019, at 6:00 p.m. in
the City Council Chambers at the Historic Federal Building, 350 W. 6th St.,
Dubuque, lowa, at which meeting the City Council proposes to take action to
approve a Development Agreement with Walter Development, LLC„ a copy of
which is now on file at the Office of the City Clerk, City Hall, 50 W. 13�h Street,
Dubuque, lowa, providing for the sale of City-owned real estate and the issuance
of economic development grants (Urban Renewal Tax Increment Revenue Grant
Obligations) described therein in order to carry out the purposes and objectives of
the Urban Renewal Plan for the Dubuque Industrial Center Economic
Development District, consisting of the funding of economic development grants
for Walter Development, LLC, under the terms and conditions of the Urban
Renewal Plan for the Dubuque Industrial Center Economic Development District.
The aggregate amount of the Urban Renewal Tax Increment Revenue Grant
Obligations cannot be determined at the present time, but is not expected to
exceed $2,630,000.
At the meeting, the City Council will receive oral and written objections from any resident
or property owner of said City to the above action. After all objections have been received
and considered, the City Council may at this meeting or at any adjournment thereof,
authorize such land disposition and the issuance of the Urban Renewal Tax Increment
Revenue Grant Obligations or abandon the proposal. By order of the City Council said
hearing and appeals therefrom shall be held in accordance with and governed by the
provisions of Section 403.9 of the Code of lowa.
This notice is given by order of the City Council of the City of Dubuque, lowa, as provided
by Chapter 403 of the Code of lowa.
Dated this 7�h day of October, 2019.
Kevin S. Firnstahl
City Clerk of Dubuque, lowa