Consent to Assignment and Assumption of DA with Flexsteel and Amended and Restated DA with Simmons Pet Food, Inc. Copyrighted
December 17, 2020
City of Dubuque Public Hearings # 1.
Special Meeting
ITEM TITLE: Resolutions approving the Consent to Assignment and Assumption of
the Development Agreement between the City of Dubuque and Flexsteel
I ndustries, I nc. to Simmons Pet Food, I nc. and approving the
Disposition of an interest in City owned real estate and the Amended and
Restated Development Agreement between the City of Dubuque and
Simmons Pet Food, I nc. including the issuance of Urban Renewal Tax
Increment Revenue Grant Obligations
SUM MARY: City Manager recommending adoption of a resolution approving the
Consent to the Assignment by Flexsteel Industries, Inc. to Simmons Pet
Food Inc. of the DevelopmentAgreement dated June 5, 2017, between
the City of Dubuque and Flexsteel I ndustries, I nc. and proof of
publication on notice of public hearing to consider approval of the
Disposition of an interest in City owned real estate and the Amended and
Restated Development Agreement between the City of Dubuque and
Simmons Pet Food, I nc. including the issuance of Urban Renewal Tax
Increment Revenue Grant Obligations, and City Manager recommending
approval.
RESOLUTION Approving the Consent to Assignment and Assumption
Agreement of Development Agreement by and between Flexsteel
Industries, Inc., a Minnesota Corporation ("Flexsteel" "Assignor"), and
Simmons Pet Food, I nc., an Arkansas Corporation ("Simmons"
"Assignee")
RESOLUTION Approving an Amended and Restated Development
Agreement between the City of Dubuque, and Simmons Pet Food, I nc.
for the sale of City-owned property including the issuance of Urban
Renewal Tax I ncrement Revenue Obligations
SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
Flexsteel-Simmons Assignment of Development City Manager Memo
Agreement-MVM Memo
Simmons Amended and Restated Development City Manager Memo
Agreement-MVM Memo
Staff Memo-Assignment of Development Agreement Staff Memo
Staff Memo-Amended and Restated Development Staff Memo
Agreement
Resolution of Amended and Restated Development Resolutions
Agreement
Resolution of Consent to Assginment Resolutions
Assignment of Development Agreement Supporting Documentation
Development Agreement 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 Approving the Consent to Assignment and Assumption of the
Development Agreement Between the City of Dubuque and Flexsteel
Industries, Inc. to Simmons Pet Food, Inc.
DATE: December 13, 2020
Economic Development Director Jill Connors recommends City Council adoption of a
resolution approving the consent to the assignment by Flexsteel Industries, Inc. to
Simmons Pet Food Inc. of the Development Agreement dated June 5, 2017, between
the City of Dubuque and Flexsteel Industries, Inc.
Simmons Pet Food, Inc. (Simmons) is a leading North American private-label and
contract manufacturer of wet and dry pet food and treats. Simmons supplies top brands
and retailers with products in a variety of packaging formats, including cans, pouches,
and cups. Simmons operates two wet-pet food production facilities, a dry pet food
facility, and a treats production facility in Arkansas, Kansas and Ontario, Canada.
Simmons is planning to expand its national operations and has given serious
consideration to three locations. Subject to State of lowa and City of Dubuque
approval, Simmons has selected to undertake this expansion in the City of Dubuque at
the former Flexsteel manufacturing facility. It would be the largest wet canning line in
Simmons' operations.
Having fully removed its manufacturing operations from the Dubuque market, Flexsteel
desires to transfer its interest in the facility pursuant to a purchase agreement with
Simmons and to assign its interest in the Development Agreement to Simmons. Staff
have reviewed this proposal and determined that this would be an effective way to
facilitate the expansion of Simmons's operations in Dubuque while simultaneously
supporting the remaining local Flexsteel operations (which still has headquarters staff in
Dubuque). Simmons is proposing to take on the requirements, obligations, and benefits
of the Flexsteel Development Agreement.
In order to expand its operations, Simmons has made the following plans, amounting to
a nearly $80 Million investment:
1. Purchase the current manufacturing facility from Flexsteel Industries, Inc.
2. Construct three expansions to the existing facility (5,000 square foot receiving
area, 10,000 square foot freezer, and 8,000 square foot utility building), as well
as the construction of a 75,000 square foot warehouse.
3. Purchase 8.42 usable acres from the City for parking/staging purposes as well as
to provide room to add warehouse space. In addition, Simmons will purchase
some of the adjacent cul-de-sac to make the properties connect.
4. Create 138 full-time jobs by December 31, 2021 and an additional 133 jobs by
December 31, 2023 —for a total of 271 jobs, with the facility running 24/7, and
wages averaging in excess of$20/hour.
5. Apply for lowa Economic Development Authority's high-quality job incentives,
including investment tax credits, sales tax refund, and job training funds
administered by Northeast lowa Community College. Simmons is submitting an
application to the State of lowa for investment tax credits of$3,000,000, a sales
tax refund estimated at $300,000, and job training funds estimated at
$2,215,520, as well as an $800,000 forgivable loan.
6. Simmons has requested a change of the adjacent road's name from Flexsteel
Way to Simmons Way.
The Flexsteel Development Agreement requires the City's consent to the sale of the
facility and the assignment of the Development Agreement.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
�
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Barry Lindahl, Senior Counsel
Jill M. Connors, Economic Development Director
Rick Dickinson, President & CEO, Greater Dubuque Development Corp.
2
Dubuque
THE CITY OF �
ui-Aseria cih
DuB E , . � . ,
� II �
Maste iece on tj2e Mississi i zoo�•zoiz•zois
YP pp zoi�*zoi9
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Approving the Disposition of an Interest in City-Owned Real
Estate and the Amended and Restated Development Agreement Between
the City of Dubuque and Simmons Pet Food, Inc. Including the Issuance
of Urban Renewal Tax Increment Revenue Grant Obligations
DATE: December 16, 2020
Economic Development Director Jill Connors recommends City Council adoption of a
resolution approving an Amended and Restated Development Agreement between the
City of Dubuque and Simmons Pet Food, Inc. and approval of the sale of 13.48 acres
(8.42 usable acres) from the City for parking/staging purposes as well as to provide
room to add warehouse space. This purchase includes some of the adjacent cul-de-sac
to make the properties connect.
Simmons is planning to expand its national operations and has given serious
consideration to three locations. Subject to State of lowa and City of Dubuque
approval, Simmons has selected to undertake this expansion in the City of Dubuque at
the former Flexsteel Industries, Inc. manufacturing facility. It would be the largest wet
canning line in its operations.
In order to expand its operations, Simmons has made the following plans amounting to
a nearly $80 Million investment:
1. Purchase the current manufacturing facility from Flexsteel Industries, Inc.
2. Construct three expansions to the existing facility (5,000 square foot receiving
area, 10,000 square foot freezer, and 8,000 square foot utility building), as well
as the construction of a 75,000 square foot warehouse.
3. Purchase 13.48 acres (8.42 usable acres) from the City for parking/staging
purposes as well as to provide room to add warehouse space. This purchase
includes some of the adjacent cul-de-sac to make the properties connect.
4. Create 138 full-time jobs by December 31, 2021 and an additional 133 jobs by
December 31, 2023 —for a total of 271 jobs, with the facility running 24/7, and
wages averaging in excess of$20/hour.
5. Apply for lowa Economic Development Authority's high-quality job incentives,
including investment tax credits, sales tax refund, and job training funds
administered by Northeast lowa Community College. Simmons is submitting an
application to the State of lowa for investment tax credits of$3,000,000, a sales
tax refund estimated at $300,000, and job training funds estimated at
$2,215,520, as well as an $800,000 forgivable loan.
The Development Agreement between the City and Flexsteel Industries, Inc. will be
assigned by Flexsteel to Simmons. An Amended and Restated Development
Agreement between the City and Simmons will provide for nine years of Tax Increment
Financing (TIF) rebates on existing improvements, and ten years of TIF rebates for the
additional improvements to the property, estimated at $3,000,000 and the sale of 8.42
usable acres of City-owned property at $120,000/acre, with a $60,000/acre land
acquisition grant tied to job creation. The land sale has a tiered "claw back" provision if
Simmons does not perForm on its obligations.
In addition to the job creation, an ongoing benefit to the City from this project is the
revenue produced by Simmons as a significant user of utilities. Water usage is
anticipated to produce revenue of$600,000 to $800,000 annually in Phase 1 and up to
$1,000,000 annually in Phase 2. The City also anticipates revenue of approximately
$300,000 annually in Phase 1 and $600,000 annually in Phase 2 for sanitary use.
This project and several other recent projects have been made possible through the
City Council's advance planning by approving ongoing land acquisition in the industrial
parks, as well as budget approvals for utility extensions and other improvements such
as grading and paving. To date, this preparation strategy has allowed for the attraction
and expansion of more than 45 companies in the Industrial Center, accounting for over
4,500 jobs.
It is the City of Dubuque's current readiness from a public utility capacity (i.e., water,
sewer) and location standpoint that has made it a contender in Simmons's search for a
business expansion location. Without this foresight, the City would have missed this
opportunity to add over 250 high quality jobs.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
�
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Barry Lindahl, Senior Counsel
Jill M. Connors, Economic Development Director
Rick Dickinson, President & CEO, Greater Dubuque Development Corporation
2
Dubuque Economic Development
Department
THE CITY OF � 1300 Main Street
All•America Eity Dubuque,lowa 52001-4763
�� � "h�N",`��nz�'��:�:��� Office(563)589-4393
1 I ��� TTY(563)690-6678
http://www.cityofd u bu q ue.org
zoo�=zoiz*zo�3
Masterpiece on the Mississippi �oi�*Zoi9
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Approving the Consent to Assignment and Assumption of the
Development Agreement Between the City of Duque and Flexsteel
Industries, Inc. to Simmons Pet Food, Inc.
DATE: December 11, 2020
INTRODUCTION
This memorandum is a request for the City Council to adopt a resolution approving the
consent to the assignment of the Development Agreement dated June 5, 2017, between
the City of Dubuque and Flexsteel Industries, Inc., by Flexsteel Industries, Inc. to
Simmons Pet Food Inc.
BACKGROUND
Flexsteel entered into a Development Agreement with the City of Dubuque in 2017 for a
$25 million development of a 250,000 square foot manufacturing facility on 22 usable
acres at 501 Seippel Road in the Dubuque Industrial Center South. That agreement
required maintaining 200 jobs at the facility and included a commitment from the City for
10 years (20 semi-annual payments) of TIF rebates set to begin in November 2020.
As of January 1, 2020, Flexsteel reported 208 full-time jobs at the facility. In May 2020,
Flexsteel announced the permanent closure of the facility in June 2020 in reaction to
rapidly declining customer demand for its product and changing market conditions. With
Flexsteel having fulfilled its job commitment at the time of reporting (January 1, 2020) for
this calendar year, Flexsteel was eligible for, and has received, the November 2020 TIF
rebate of approximately $70,560. Flexsteel is not be eligible for any further TIF rebates
since the number of jobs is now zero.
DISCUSSION
Simmons Pet Food, Inc. (Simmons) is a leading North American private-label and
contract manufacturer of wet and dry pet food and treats. Simmons supplies top brands
and retailers with products in a variety of packaging formats, including cans, pouches,
and cups. Simmons operates two wet-pet food production facilities, a dry pet food facility,
and a treats production facility in Arkansas, Kansas and Ontario, Canada.
Simmons is planning to expand its national operations and has given serious
consideration to three locations. Subject to State of lowa and City of Dubuque approval,
Simmons has selected to undertake this expansion in the City of Dubuque at the former
Flexsteel manufacturing facility. It would be the largest wet canning line in Simmons'
operations.
Having fully removed its manufacturing operations from the Dubuque market, Flexsteel
desires to transfer its interest in the facility pursuant to a purchase agreement with
Simmons and to assign its interest in the Development Agreement to Simmons. Staff
have reviewed this proposal and determined that this would be an effective way to
facilitate the expansion of Simmons's operations in Dubuque while simultaneously
supporting the remaining local Flexsteel operations (which still has headquarters staff in
Dubuque). Simmons is proposing to take on the requirements, obligations, and benefits
of the Flexsteel Development Agreement.
In order to expand its operations, Simmons has made the following plans, amounting to
a nearly $80 Million investment:
1. Purchase the current manufacturing facility from Flexsteel Industries, Inc.
2. Construct three expansions to the existing facility (5,000 square foot receiving
area, 10,000 square foot freezer, and 8,000 square foot utility building), as well as
the construction of a 75,000 square foot warehouse.
3. Purchase 8.42 usable acres from the City for parking/staging purposes as well as
to provide room to add warehouse space. In addition, Simmons will purchase
some of the adjacent cul-de-sac to make the properties connect.
4. Create 138 full-time jobs by December 31, 2021 and an additional 133 jobs by
December 31, 2023 — for a total of 271 jobs, with the facility running 24/7, and
wages averaging in excess of$20/hour.
5. Apply for lowa Economic Development Authority's high-quality job incentives,
including investment tax credits, sales tax refund, and job training funds
administered by Northeast lowa Community College. Simmons is submitting an
application to the State of lowa for investment tax credits of $3,000,000, a sales
tax refund estimated at $300,000, and job training funds estimated at $2,215,520,
as well as an $800,000 forgivable loan.
6. Simmons has requested a change of the adjacent road's name from Flexsteel Way
to Simmons Way.
2
The Flexsteel Development Agreement requires the City's consent to the sale of the
facility and the assignment of the Development Agreement.
RECOMMENDATION/ ACTION STEP
I recommend adoption of the attached resolution approving the Consent to Assignment
and Assumption approving the sale of the facility and the assignment of the Development
Agreement by Flexsteel Industries, Inc. to Simmons Pet Food, Inc.
3
Dubuque Economic Development
Department
THE CITY OF � 50 West 13th Street
All•America Eity Dubuque,lowa 52001-4864
�� � "h�N",`��nz�'��:�:��� Office(563)589-4393
1 I ��� TTY(563)690-6678
http://www.cityofd u bu q ue.org
zoo�=zoiz*zo�3
Masterpiece on the Mississippi �oi�*Zoi9
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Approving the Disposition of an Interest in City-Owned
Real Estate and the Amended and Restated Development Agreement
Between the City of Dubuque and Simmons Pet Food, Inc. Including
the Issuance of Urban Renewal Tax Increment Revenue Grant
Obligations
DATE: December 11, 2020
INTRODUCTION
This memorandum presents for City Council consideration and action the attached
resolution approving an Amended and Restated Development Agreement between the
City of Dubuque and Simmons Pet Food, Inc.
BACKGROUND
Simmons Pet Food, Inc. ("Simmons") is the sixth largest pet food manufacturer in America
and North America's largest maker of store brand and private label wet pet food products.
Simmons manufactures wet and dry pet food for dogs and cats, as well as pet treats for
dogs. Wet pet food is available in various forms including cuts in gravy, slices in gravy,
ground, pate, and loaf. Dry pet food is generally available in kibbles, meal, and expanded
particles. Customers include blue chip companies that represent the top 10 pet food and
retailers in the US.
DISCUSSION
Simmons is planning to expand its national operations and has given serious
consideration to three locations. Subject to State of lowa and City of Dubuque approval,
Simmons has selected to undertake this expansion in the City of Dubuque at the former
Flexsteel Industries, Inc. manufacturing facility. It would be the largest wet canning line in
its operations.
In order to expand its operations, Simmons has made the following plans amounting to a
nearly $80 Million investment:
1. Purchase the current manufacturing facility from Flexsteel Industries, Inc.
2. Construct three expansions to the existing facility (5,000 square foot receiving
area, 10,000 square foot freezer, and 8,000 square foot utility building), as well as
the construction of a 75,000 square foot warehouse.
3. Purchase 13.48 acres (8.42 usable acres) from the City for parking/staging
purposes as well as to provide room to add warehouse space. This purchase
includes some of the adjacent cul-de-sac to make the properties connect.
4. Create 138 full-time jobs by December 31, 2021 and an additional 133 jobs by
December 31, 2023 — for a total of 271 jobs, with the facility running 24/7, and
wages averaging in excess of$20/hour.
5. Apply for lowa Economic Development Authority's high-quality job incentives,
including investment tax credits, sales tax refund, and job training funds
administered by Northeast lowa Community College. Simmons is submitting an
application to the State of lowa for investment tax credits of $3,000,000, a sales
tax refund estimated at $300,000, and job training funds estimated at $2,215,520,
as well as an $800,000 forgivable loan.
The Development Agreement between the City and Flexsteel Industries, Inc. will be
assigned by Flexsteel to Simmons. An Amended and Restated Development Agreement
between the City and Simmons will provide for 9 years of Tax Increment Financing (TIF)
rebates on existing improvements, and 10 years of TIF rebates for the additional
improvements to the property, estimated at $3,000,000 and the sale of 8.42 usable acres
of City-owned property at $120,000/acre, with a $60,000/acre land acquisition grant tied
to job creation. The land sale has a tiered "claw back" provision if Simmons does not
perform on its obligations.
In addition to the job creation, an ongoing benefit to the City from this project is the
revenue produced by Simmons as a significant user of utilities. Water usage is
anticipated to produce revenue of $600,000 to $800,000 annually in Phase 1 and up to
$1,000,000 annually in Phase 2. The City also anticipates revenue of approximately
$300,000 annually in Phase 1 and $600,000 annually in Phase 2 for sanitary use.
This project and several other recent projects have been made possible through the City
Council's advance planning by approving ongoing land acquisition in our industrial parks,
as well as budget approvals for utility extensions and other improvements such as grading
and paving. To date, this preparation strategy has allowed for the attraction and
2
expansion of more than 45 companies in the Industrial Center, accounting for over 4,500
jobs.
It is the City of Dubuque's current readiness from a public utility capacity (i.e., water,
sewer) and location standpoint that has made it a contender in Simmons's search for a
business expansion location. Without this foresight, the City would have missed this
opportunity to add over 250 high quality jobs.
RECOMMENDATION/ ACTION STEP
Based on this project's alignment with the City Council's goal of having a robust local
economy, I recommend the City Council adopt the resolution approving the Amended and
Restated Development Agreement with Simmons Pet Food, Inc. including the sale of City-
owned land and the issuance of Tax Increment Financing (TIF) rebates.
3
Prepared by Barry A. Lindahl 300 Main Street, Suite 330 Dubuque IA 52001 563 583-4113
Return to Prepared by Barry A. Lindahl 300 Main Street, Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 358-20
APPROVING THE CONSENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT
OF DEVELOPMENT AGREEMENT BY AND BETWEEN FLEXSTEEL INDUSTRIES,
INC., A MINNESOTA CORPORATION ("FLEXSTEEL" "ASSIGNOR"), AND SIMMONS
PET FOOD, INC., AN ARKANSAS CORPORATION ("SIMMONS" "ASSIGNEE"),
WHEREAS, Flexsteel and the City of Dubuque (City) entered into a Development
Agreement dated June 5, 2017 (the "Development Agreement");
WHEREAS, the conditions precedent of the Development Agreement for the
acquisition of certain real estate and the construction of the improvements on the real
estate legally described as Lot 4.of Dubuque Industrial Center South First Addition in the
City of Dubuque, Iowa (the "Property"), have been completed;
WHEREAS, Assignor and Assignee will enter into a certain Purchase and Sale
Agreement, (the "Purchase Agreement"), as may be amended, which, among other
things, is subject to the assignment of all of Assignor's rights, title and interest in, and
Assignee's assumption of all of Assignor's duties and obligations under the Development
Agreement;
WHEREAS, under Paragraph 6.10 of the Development Agreement, any
assignment of the Development Agreement or any sale or other transfer of any portion of
the Property during the Term requires the consent of the City;
WHEREAS, Flexsteel desires to transfer its interest in the Property pursuant to the
Purchase Agreement, and to assign its interest in the Development Agreement to
Assignee;
WHEREAS, Assignee desires to obtain Assignor's interest in the Property
pursuant to the Purchase Agreement, and to assume Assignor's interest in the
Development Agreement; and
WHEREAS, City believes that such consent is in the vital and best interests of City
and in accord with the public purposes of the applicable federal, state and local laws and
the requirements under which the Project was undertaken and assisted and is therefore
willing to consent to the proposed transfer of the Property and assignment of the
Development Agreement.
120820bal
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA, AS FOLLOWS:
1. The Consent to Assignment and Assumption Agreement in the form attached
to the Assignment and Assumption Agreement is hereby approved.
2. The Mayor is authorized and directed to sign the Consent to Assignment and
Assumption Agreement on behalf of the City of Dubuque.
3. The Mayor is authorized and directed to sign the Amended Memorandum of
Development Agreement in the form attached to the Assignment and Assumption
Agreement in the form as Exhibit 1.
Passed, approved and adopted this 17t" day of December 2020.
Attest:
In
C,iat a &4w2
Adrienne N. Breitfelder, City Clerk
2
Prepared by Jill Connors, Economic Development 1300 Main St., Dubuque IA 52001 (563) 589-4393
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13th St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 359-20
APPROVING AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBUQUE, AND SIMMONS PET FOOD, INC. FOR THE
SALE OF CITY -OWNED PROPERTY INCLUDING THE ISSUANCE OF URBAN
RENEWAL TAX INCREMENT REVENUE OBLIGATIONS
Whereas, the City Council, by Resolution No. 356-20, dated December 11, 2020,
declared its intent to dispose of an interest in City of Dubuque real estate pursuant to an
Amended and Restated Development Agreement between the City of Dubuque, and
Simmons Pet Food, Inc., including the issuance of Urban Renewal Tax Increment
Revenue Obligations; and
Whereas, pursuant to published notice, a public hearing was held on the proposed
Amended and Restated Development Agreement on December 17, 2020 at 5:00 p.m. by
virtual means; and
Whereas, it is the determination of the City Council that approval of the Amended and
Restated Development Agreement for development of property by Simmons Pet Food,
Inc., according to the terms and conditions set out in the Amended and Restated
Development Agreement, is in the public interest of the City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the Amended and Restated Development Agreement by and between
the City of Dubuque and Simmons Pet Food, Inc., a copy of which is attached hereto,
including the issuance of Urban Renewal Tax Increment Revenue Obligations, is hereby
approved.
Section 2. That the Mayor is hereby authorized and directed to execute the Amended
and Restated Development Agreement on behalf of the City of Dubuque and the City
Clerk is authorized and directed to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are necessary
to comply with the terms of the Amended and Restated Development Agreement as
herein approved.
Passed, approved and adopted this 17t" day of December 2020.
Roy D. Buol, Mayor
Attest:
Adrienne N. Breitfelder, City Clerk
Notice of Transfer of Interest, Assignment and Assumption
Agreement, And Consent of the City of Dubuque
This Notice of Transfer of Interest, Assignment and Assumption Agreement, and Consent of the
City of Dubuque (the "Agreement"), is by and between FLEXSTEEL INDUSTRIES, INC., a
Minnesota corporation ("Fleacsteel" "Assignor"), SIMMONS PET FOOD, INC., an Arkansas
corporation ("Simmons" "Assignee"), and the CITY OF DUBUQUE, IOWA ("City"
"Consenting Party").
WHEREAS, Flexsteel and the City of Dubuque entered into a Development Agreement
dated June 5, 2017 (the "Development Agreement");
WHEREAS, the conditions precedent of the Development Agreement for the acquisition
of certain real estate and the construction of the improvements on the real estate legally described
as Lot 4 of the Final Plat of Dubuque Industrial Center South First Addition in the City of Dubuque,
Iowa (the "Property"), have been completed;
WHEREAS, Assignor and Assignee have entered into a certain Purchase and Sale
Agreement, dated as of (the "Purchase Agreement"), as may be
amended, which, among other things, is subject to the assignment of all of Assignor's rights, title
and interest in, and Assignee's assumption of all of Assignor's duties and obligations under the
Development Agreement;
WHEREAS,under Paragraph 6.10 of the Development Agreement, any assignment of the
Development Agreement or any sale or other transfer of any portion of the Property during the
Term requires the consent of the City;
WHEREAS, Flexsteel desires to transfer its interest in the Property pursuant to the
Purchase Agreement, and to assign its interest in the Development Agreement to the Assignee;
WHEREAS,Assignee desires to obtain Assignor's interest in the Property pursuant to the
Purchase Agreement, and to assume Assignor's interest in the Development Agreement; and
WHEREAS, the City believes that such consent is in the vital and best interests of City
and in accord with the public purposes of the applicable federal, state and local laws and the
requirements under which the Project was undertaken and assisted, and is therefore willing to
consent to the proposed transfer of the Property and assignment of the Development Agreement.
NOW,THEREFORE,in consideration of the mutual covenants,terms, and conditions set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Effective Date. Pursuant to the terms of the Purchase Agreement, this Agreement
is subject to consent by the City of Dubuque, Iowa as a condition precedent. The effective date of
this Agreement (the "Effective Date") shall be the last date of the following: (i) consent by
resolution of this Agreement by the Dubuque City Council, (ii) the timely execution of this
Agreement by its representatives, and (iii) the closing of the transaction contemplated by the
Purchase Agreement.
2. Assi�nment and Assumption. Assignor hereby sells, assigns, grants, conveys, and
transfers to Assignee all of Assignor's right, title, and interest in and to the Development
Agreement. Assignee hereby accepts such assignment and assumes and agrees to observe and
perform all of the obligations, duties, covenants, and conditions in connection with the
Development Agreement (collectively "Obligations"), and agrees to pay,perform, and discharge,
as and when due, all of the Obligations of Assignor under the Development Agreement incurred
and payable after the Effective Date of this Agreement. To the extent that any of the obligations,
duties, or covenants cannot be assigned or assumed or to the extent that Assignor is not released
from such obligations, duties, or covenants, Assignee will indemnify and hold Assignor harmless
from any ongoing liability or obligation arising under them, with the exception of any obligation
which was incurred or became due prior to the Effective Date of this Agreement. Assignee's
obligation, as defined herein, to indemnify Assignor will be ongoing and will continue as long as
the liability or obligation exists.
3. Release of Assi,gnor from Liabilities. In consideration of this Agreement,Assignor
shall be relieved of any future obligations to perform under the Development Agreement and shall
be fully relieved and released of any and all liability to any other party to this Agreement arising
out of the Development Agreement, including but not limited to any and all obligations to
indemnify any other party to this Agreement, the terms of the Development Agreement
notwithstanding.
4. Terms of the Purchase A,�reement. The terms of the Purchase Agreement,
including, but not limited to, the representations, warranties, covenants, agreements, and
indemnities relating to the Development Agreement are incorporated herein by this reference. The
parties hereto acknowledge and agree that the representations, warranties, covenants, agreements,
and indemnities contained in the Purchase Agreement shall not be superseded hereby, but shall
remain in full force and effect to the full extent provided therein. In the event of any conflict or
inconsistency between the terms of the Purchase Agreement and the terms hereof, the terms of the
Purchase Agreement shall govern.
5. Governin�Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Iowa.
6. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an original
signed copy of this Agreement.
7. Further Assurances and Memarandum of Development Agreement. Each of the
parties hereto shall execute and deliver, at the reasonable request of the other party hereto, such
additional documents, instruments, conveyances, and assurances and take such further actions as
such other party may reasonably request to carry out the provisions hereof and give effect to the
transactions contemplated by this Agreement. Upon the request of any party, City and Assignee
shall promptly record an Amended Memorandum of Development Agreement substantially in the
form attached hereto as Exhibit 1 in the office of the Recarder of Dubuque County,Iowa. Assignee
shall pay the costs of such recording.
8. Modification. No modification, amendment, discharge, or change of this
Agreement will be valid unless it is in writing and signed by Assignor and Assignee, and the City.
9. Successors and Assigns. This Agreement will be binding on and inure to the benefit
of the parties and their successors and assigns.
10. Definitions. All capitalized terms used in this Agreement, but not otherwise
defined herein, are given the meanings set forth in the Development Agreement.
1 L Incorporation of Recitals. The above recitals are hereby incorporated into this
Assignment and Assumption by reference.
12. Severability. The invalidation or unenforceability in any particular circumstance
of any of the provisions of this Agreement shall in no way affect any of the other provisions hereof,
which shall remain in full force and effect.
13. Attornevs' Fees. In the event of any litigation between the parties hereto arising
out of the obligations of the parties under this Agreement or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the prevailing party's
costs and expenses of such litigation, including, without limitation, reasonable attorneys' fees and
costs, as well as expert witness fees.
NO FURTHER TEXT APPEARS ON THIS PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the date first above written.
SIMMONS PET FOOD, INC. FLEXSTEEL INDUSTRIES, 1NC.
By By
Name: Name:
Title: Title:
CONSENT TO ASSIGMENT AND ASSUMPTION
IN WITNESS WHEREOF, the City of Dubuque hereby consents to the transfer of interest
in the Property from Flexsteel Industries, Inc. to Simmons Pet Food, Inc., and the transfer of the
Development Agreement by assignment to Simmons Pet Food, Inc., as set forth in this Assignment
and Assumption Agreement, which is duly executed in its name and behalf by its Mayor and
attested to by its City Clerk.
By signing, the undersigned hereby certify that 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 perfonn its obligations under this Agreement.
Attached hereto, as Exhibit 2 are the Resolution of the City Council and the Certificate of
the City Cleric approving and authorizing this consent.
CITY OF DUBU UE, IOWA
By: e
Roy D. uol, Mayor
By: .[,� ✓ r
Adrienne N. Breitfelder, City Clerk
EXHIBIT 1
AMENDED MEMORANDUM OF DEVELOPMENT AGREEENT
A Development Agreement by and among the CITY OF DUBUQUE, IOWA, an Iowa municipal
corporation, of Dubuque, Iowa, and FLEXSTEEL INDUSTRIES, INC. was made regarding the
following described premises:
Lot 4 of the Final Plat of Dubuque Industrial Center South First Addition in the City of
Dubuque, Iowa, according to the recorded plat thereof, subject to easements of record.
The Development Agreement was dated for reference purposes the 5th day of June, 2017, and
contains covenants, conditions, and restrictions concerning the sale and use of said premises.
After notice and consent by the City of Dubuque, effective , 2020, this
Development Agreement was assigned to and assumed by Simmons Pet Food, Inc. As of the
effective date, Flexsteel Industries, Inc. is no longer a party to the Development Agreement and
has no further benefits or obligations thereunder.
This Amended Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this Amended
Memorandum and the Development Agreement itself, executed by the parties, the terms and
provisions of the Development Agreement and the Assignment and Assumption Agreement shall
prevail. A complete counterpart of the Development Agreement, together with any amendments
thereto or the Assignment and Assumption Agreement, is in the possession of the City of Dubuque
and may be examined at its offices as above provided.
Dated this day of December, 2020.
CITY OF DUB UE, IOWA
By: to
Roy D./bl, Mayor
By: N2�e�' &ad-4�2
Adrienne N. Breitfelder, City Cleric
STATE OF IOWA
: SS:
DUBUQUE COUNTY
On this day of , 20_,before me, a Notary Public in and for the State of Iowa,
in and for said county, personally appeared Roy D. Buol and Adrienne N. Breitfelder, to me
personally known, who being by me duly sworn did say that they are the Mayor and City Clerk,
respectively of the City of Dubuque, a Municipal Corporation, created and existing under the laws
of the State of Iowa, and that the seal affixed to said instrument is the seal of said Municipal
Corporation and that said instrument was signed and sealed on behalf of said Municipal
Corporation by authority and resolution of its City Council and said Mayar and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal Corporation by it
voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
: SS
DUBUQUE COUNTY
On this day of , 20 ,before me, a Notary Public in and for the State of Iowa,
in and for said county, personally appeared and , to
me personally known, who being by me duly sworn did say that they are the
and the of said and that said instrument
was signed on behalf of said company by authority of its Board of Directors and that they
acknowledge the execution of this instrument to be the voluntary act and deed of said company by
it voluntarily executed.
Notary Public, State of Iowa
EXHIBIT 2
RESOLUTION AND CERTIFICATE OF THE CITY CLERK
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
SIMMONS PET FOOD, INC.
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT, dated for
reference purposes the 17t" day of December, 2020, between 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
Simmons Pet Food, Inc., an Arkansas corporation (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an Urban Renewal project (the Project) to advance the community's ongoing
economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center Economic
Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the Urban
Renewal Plan for the Dubuque Industrial Center Economic Development District,
approved by the City Council of City on May 2, 1988, and as subsequently amended
through and including the date hereof (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, has been recorded among the land records in the office of the Recorder of
Dubuque County, lowa and is on file with the City of Dubuque City Clerk; and
WHEREAS, City and Flexsteel Industries, Inc. (Flexsteel) entered into a
Development Agreement dated June 5, 2017 for a new industrial facility to maintain its
operations and employment in the Project Area (the Facility) on the real estate legally
described as Lot 4 of Dubuque Industrial Center South First Addition in the City of
Dubuque, lowa; and
WHEREAS, Developer will acquire the Facility and Flexsteel with City's consent
will assign the Development Agreement to Developer by Assignment; and
WHEREAS, Developer intends to make additional improvements to the Facility as
described herein; and
Simmons DA 120920ba1
VVHEREAS, Developer and City desire to amend and restate the Development
Agreement as set forth herein {this Agreement); and
VVHEREAS, Developer has requested that City seli to Developer 13.4$ acres of
which 8.42 acres are usable, legally described as follows:
Lot 5 of Dubuque Industrial Center South First Addition in the City of
Dubuque, lowa (Parcel A)
and that part of Lot C of Dubuque Industrial Center South First Addition in
the City of Dubuque, lowa shown on Exhibit B (Parcel B)
with all easements, tenements, hereditaments, and appurtenances belonging thereto so
that Developer may further develop Lot 4, Lot 5, and that part of �ot C (hereinafter
sometimes referred to as "the Property"), lacated 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
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 parkies 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) Parcel A. The purchase price for the Parcel A (Parcel A Purchase Price)
shall be the sum of$912,000.00 ($120,000.00 per acre x 7.6 usable acres) with a
total acquisition of 12.66 acres, which shall be due and payable by Developer in
immediately available funds in favor of City, on ar before December 21, 2020, or
on such other date as the parties may mutually agree (the Closing Date). City
acknowledges receipt of the sum of$5,000.00 from Developer as earnest money,
to be credited to Developer at the Closing, or returned to Developer in the event
the parties fail to close within thirty (30) days after the Closing Date less any
expenses incurred by City in connection with this Agreement.
(2) Parcel B. The purchase price for the Parcel B (Parcel B Purchase Price)
shall be as follows:
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(a) The sum of $98,400.00 ($120,000.00 per acre x 0.82 usable acres)
with a tatal acquisition of 0.82 acres as shown on Exhibit B, which shall be
due and payable by Developer in immediately available funds in favor of
City, on or before December 21, 2020, or on such other date as the parties
may mutually agree (the Closing Date). Developer shall have prepared and
shall be prepared to record at Closing a plat of survey of Parcel B
acceptable to Develaper (the "Plat"), including location and depiction of all
applicable easements and other substantial improvements. Developer and
City agree that upon appraval of the Plat, this Agreement will be amended
to include the legal description of Parcel B. The actual Parcel B Purchase
Price shall be adjusted based on the acreage of the Parcel B as shown on
the Plat. City acknowledges receipt of the sum of$1,000.00 from Developer
as earnest money, to be credited to Developer at the Closing, or returned
to Developer in the event the parties fail to clase within thirty (30) days after
the Closing Date less any expenses incurred by City in connection with this
Agreement.
City will reserve in the deed to Parcel B a public pedestrian access
easement to the City property southwest of Parcels A and B for hiking and
biking and other recreational activities on the City property.
(b) The total Parcel B Purchase Price shall be $98,400.00.
(3) Total Parcel R and Parcel B Purchase Price shall be $1,010,400.00.
(4) Parcel A and Parcel B ForFeiture and Reconveyance.
(i) For each year after the Closing (as of the anniversary of the Clasing
Date) that Developer does not have a completed building of not less than
75,000 square feet on the Property or adjoining property, and at least 10
new FTE, Developer will forfeit 10% of the Total Parcel A and Parcel B
Purchase Price as follows:
DATE ANNUAL TOTAL CITY PRICE FOR
FORFEIT FORFEIT REVESTED
LAND
12/21/2021 10% 10% 90%
12/21/2022 10% 20% 80%
12121/2023 10% 30% 70%
12/21/2024 10% 40% 60%
12/21/2025 10% 50% 50%
(ii) If Developer does not have a completed building of nat less than
75,000 square feet by 5 years after the Closing date, Developer shall
reconvey Parcel A and Parcel B to City for $30,000 an acre. However,
Developer may request to extend the time for completion of the 75,000
3
square foot building by paying to city 10% of the Total Parcel A and Parcel
B Purchase Price as follows:
DATE ANNUAL TOTA�
PAYMENT TO PAYMENT TO
EXTEND EXTEND
12/21/2025 10% 10%
12/21/2026 10% 20%
12/21l2027 10% 30°l0
12/21/2028 10°!0 40%
12/21/2029 10% 50°l0
(iii) Notwithstanding (4)(ii), if at the end of 10 years after the Clasing Date
there is no completed building, at City's request, Developer shall reconvey
Parcel A and Parcel B for $30,000 an acre and all extension payments will
be forFeited.
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple title
in Parcels A and B to Developer subject only to easements, restrictions, conditions, and
covenants of recard as of the date hereaf to the extent not objected to by Developer as
set farth in this Agreement, and ta the conditions subsequent set forth in Section 7.3,
below:
(1) City, at its sole cost and expense, shall deliver to Developer an abstract of
title to Parcels A and B continued through the date of this Agreement reflecting
merchantable title in City in confarmity 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 Parcels A and B, 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 Clasing to render objections to title,
including any easements ar other encumbrances not satisfactory to Develaper, 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. Nathing 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 pravided 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 af 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 Devetoper {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.
a
1.3 Riqhts of Inspection, Testinq and Review. Developer, its counsel, accountants,
agents, and other representatives, shali have full and continuing access to Parcels A and
B and all parts thereof, upan reasonable notice to City. Developer and its agent and
representatives shall also have the right to enter upon Parcels A and B 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 af action arising from or caused by the actions of Developer, its agents,
or representatives upon Parcels A and B (except for any damage, claim, liability or cause
of action arising fram conditions existing prior to any such entry upan Parcels A and B),
and shall have the further right to make such inquiries of governmental agencies and
utility companies, etc. and to make such feasibility studies and analyses as they consider
appropriate.
1.4 Representations and Warranties of Citv. In order to induce Developer to enter into
this Agreement and purchase Parcels A and B, 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
Parcels A and B 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 aperation 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 Parcels A and B.
(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
s
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments ar other praceedings 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 performed or materials furnished can be asserted against the Property.
(8} Parcels A and B 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 da not and
shall not result in any material breach of any terms or conditions of any mortgage,
bond, indenture, agreement, cantract, license, or other instrument or obligation ta
which City is a party or by which either the City or Parcels A and B 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 Parcels A and B being canveyed 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
autharity to execute, deliver and perfarm its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time af Glosing 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 Praperty, and Developer shall have the right to
connect to said utilities, subject to City's connection fees. Pravided, however, in
the event any utilities for the Facility are expanded in capacity or atherwise
modified, there will be no connection fees related to connecting such modified
utilities to the Facility. There will be no sanitary sewer connection fees associated
with the project. Only water connection fees will be assessed for connections off
of Partners 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) Parcels A and B are free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in Parcels A and B that shall in any
way be binding upon Parcels A and B 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
s
and abligation 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 resalve any disputes arising during the
development process in a reasanable and prompt fashion.
(16) With respect to the period to and during which City has owned or occupied
Parcels A and B, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied Parcels A and B, no person or
entity has caused or permitted materials ta be stored, deposited, treated, recycled,
or disposed of on, under or at Parcels A and B, which materials, if known to be
present, would require cleanup, removal or some other remedial aetion under
environmental laws.
(17) Parcels A and B is presently zoned to accommodate Developer's intended
improvements and manufacturing use.
(18) The representations and warranties contained in this Section 1.4 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, and shall survive the Closing.
1.5 Conditions to Closinq. The closing of the transaction cantemplated 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 Clasing, City shall deliver a
certificate in the form of Exhibit H.
(2) Title to Parcels A and B 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 and feasibility studies conducted 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 Parcels A and B. 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 far this purpose, provided that City shall bear
no expense in connection therewith except those expenses customarily borne by
the City in such reviews. In cannection 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 notificatian
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 specifications, any and all permits, approvals and consents that are legally
required for the acquisition of Parcels A and B 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 ar prior approval, consent or
permission of any federal, state, municipal or local governmental agency, body,
board or official to the sale of Parcels A and B; and consummation af 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 reasonably
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 reasanable judgment of City is required.
(8) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit D.
(9) Developer shall have acquired the Flexsteel Facility.
s
('10) 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 and Developer shall be entitled to return
of any earnest money paid.
(11) Developer shall have the right to terminate this Agreement at any time prior
to cansummation of the Closing in the event of denial of incentives requested by
Developer from the lowa Economic Development Authority.
1.6 Closinq. The closing of the purchase and sale shall take place on the Closing
Date. Exclusive possession of Parcels A and B 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 af the Closing shall
be deemed an agreement af the parties ta this Agreement that the conditions of closing
have been satisfied or waived.
1.7 Citv's Obliqations at Clasinq. At or prior ta Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
Parcels A and B (in the form attached hereto as Exhibit F) (the Deed) conveying
to Developer marketable fee simple title to Parcels A and B and all rights
appurtenant thereto, subject only to easements, restrictions, conditions and
covenants of r�cord as of the date hereof and not objected to by Develaper as set
forth in this Agreement, and to the conditions subsequent set forth in Section 7.3
below.
(2) Deliver to Developer the Abstract of Title ta Parcels A and B.
(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 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 eonnection with
the closing:
(1) City shall pay:
9
(a) The transfer fee and transfer taxes, if any, imposed on the
conveyance.
(b) A pro-rata portion of ail 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) The cost of recording the satisfaction of any existing mortgage and
any other document necessary to make title marketable.
(f) City's broker and/or real estate commissions and fees, if any.
(g) The cost of the abstract and title work.
(2) Developer shall pay the fallowing 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 Parcels A and B or 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 Parcels A and B shall be based upon such taxes for the year currently payable.
1.11 Closinq. The closing (the Closing) shall take place on the Closing Date.
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.
SECTION 2. DEVELOPMENT ACTIVITIES. �
2.1 Required Minimum Improvements. City acknowledges that the Facility is an
industrial facility. Specifically, Developer agrees ta the following:
Budget Item: Amount: Estimated Timeline
over 3 ears
Building Remodeling $10,000,000 12/20/20— 12/31/21*
Mfg. Machinery & Equip. $30,000,000 12/20/20— 12/31/21
to
(Line 1)
Mfg. Machinery & Equip. $25,000,00 08/01/21 — 12/31/22
Line 2
Warehouse of at least 75,000 sf $6,OOQ,000 12/31/2025
TOTAL $71,000,000
*Developei• shall be operational at least 60% of capacity by July 1, 2021 and operaCional aC full
capacity by December 31,2021
(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 expanded Facility will include the following:
• 10,000 square foot freezer facility
s 5,000 square faot receiving facility
0 8,000 square foot utility building
• 75,000 square foot warehouse
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, Restrictians, Reservations, Easements, Liens and Charges, recorded as
Instrument No. 2014-00001147, records af 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. Developer hereby agrees that construction of the
Minimum Improvements, excluding the warehouse if its construction is delayed, shall be
commenced on or before March 1, 2021, and shall be substantially completed by
December 31, 2022. The time frames far the perFarmance 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 af 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.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completian 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 farm and shall be a conclusive determination of the satisfaction and
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termination of the agreements and covenants in this Agreement and in the Deed with
respect to the obligations of Developer to construct the Minirnum Improvements. The
Certificate of Completion, in the form attached hereto as Exhibit G, shail waive all rights
of re-vestment of title to Parcels A and B as provided in Section 7.3.
SECTIO� 3. CITY PARTICIPATION.
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimurn Improvements, City agrees to make an
Acquisition Grant to Developer on the Glosing Date, or such other date as the parties
shall mutually agree upon in writing, in the amount of Five Hundred Forty-One Thousand,
Eight Hundred Ninety-One and no/100 Dollars ($541,891.00) as follows:
Parcel A
Purchase Price $912,OQ0.00
Acquisition Grant $456,OOO.QO
Cash at Closing $456,000.00
Parcel B
Purchase Price $98,400.00
Acquisition Grant $ 49 200.00
Cash at Closing $ 49,200.00
The parties agree that the Acquisition Grant shall be payable in the form of a credit
favoring Developer at time of Closing with the effect of directly offsetting the full Purchase
Price obligation of Developer.
3.2 Economic Development Grants.
A. Grants Related to Facilitv.
(1) For and in consideratian 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 Develaper being and
remaining in compliance with the terms of this Agreement, to make eighteen (18)
consecutive semi-annual payments (such payments being referred to collectively
as the "Econamic 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
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November 1, 2Q26 May 1, 2027
November 1, 2027 May 1, 2Q28
November 1, 2028 May 1, 2Q29
Navember 1, 2029 May 1, 2030
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-manth period in
respect of the Property and Minimum Improvements constructed by Developer
thereon (the collected tax increment revenue being referred to herein as the
"Develaper Tax Increments"). City and Developer agree that for purposes of this
Section 3.2(1}, the assessed value of the Property as of January 1, 2017 is zero.
Developer recognizes and agrees that the Economic Development Grants shall be
paid salely and only from the incremental taxes collected by City in respect of the
Property and Minimum Improvements, which does not include property taxes
collected for the payment of bands 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 has certified ta the Caunty
prior to December 1, 2019 and shall certify prior to December 1 of each year 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 af 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, 2Q21, and May 1,
2022).
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Develaper 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 Simmons 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 Simmons 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
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City in any manner be liable to Developer so long as City timely applies the
Developer Tax Increments actually collected and held in the Simmons 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 3.2.
(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 or reduction of the annual Economic
Development Grants permitted under this Section 3.2, 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.
(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. In the event City fails to complete
all hearings and ather procedures required to take the actions required by this
paragraph, Developer may terminate this Agreement without further abligation to
City and shall be entitled to return of any earnest money paid.
B. Grants Related to Additional Structures.
{1) For and in consideration of Developer's obligations hereunder to build
additions to the Facility and/or additional free standing structures to the Project
(including, but not limited ta, the 10,Q00 square foot freezer facility, the 5,000
square foot receiving facility, an 8,000 square foot utility building and the 75,000
square foot warehouse}, (the "Additional Structures"), 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 (20) consecutive
semi-annual payments (such payments being referred to collectively as the
"Economic Development Grants") to Developer, as follows:
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, 2Q30
November 1, 2030 May 1, 2031
November 1, 2031 May 1, 2032
November 1, 2032 May 1, 2033
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pursuant to lowa Code Section 403.9 of the Urban Renewal Law, in arnounts 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 atherwise 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 Additional Structures canstructed by Developer on:
(i) Lot 4 of Dubuque Industrial Center South First Addition in the City
af Dubuque, lowa, (Current location of the Facility)
(ii) Parcel A,
(iii) Parcel B, or
(iv) Other adjoining property
(the collected tax increment revenue being referred to herein as the "Developer
Tax Incrernents").
City and Developer agree that for purposes of this Section 3.2 B (1), the assessed
value of the Additional Structures on Lot 4 of Dubuque Industrial Center South First
Addition in the City of Dubuque, lowa shall be the value of each Additional
Structure as individually determined by the City Assessor. The assessed value of
Parcel A, Parcel B, and other adjoining praperty in their entirety {land and
buildings) shall be determined by the City Assessor.
With respect to those Additional Structures constructed on Lot 4 of Dubuque
Industrial Center South First Addition in the Gity af Dubuque, lowa , in addition to
separately determining the value of such structures the City Assessor shall also
estimate the tax attributable to each individual Additional Structure and the tax so
estimated shall be used by the city to determine the tax increment revenues
attributed to each Additional Structure on Lot 4 of Dubuque Industrial Center South
First Addition in the City of Dubuque, lowa . The tax increment revenues from
Additional Structures on Lot 4 af Dubuque Industrial Center Sauth First Addition in
the City of Dubuque, lowa shall be aggregated with the tax increment revenues
from the Additional Structures constructed on land other than Lot 4 of Dubuque
Industrial Center South First Addition in the City of Dubuque, lowa , and the total
of these revenues shall be used to determine the Developer Tax Increments for
this second tax increment fund (the "Additional Structure TIF"). City and Developer
agree that for purposes of this Section 3.2(1), the assessed value of the Additional
Structures as of January 1, 2021 will be zero. Developer recognizes and agrees
that the Economic Development Grants shall be paid solely and only from the
incremental taxes collected by City in respect of the Additional Structures, 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.
u
(2) To fund the Economic Development Grants related to the Rdditional
Structures, City shall certify to the County prior to December 1 af each year,
commencing December 1, 2022, its request for the available Developer Tax
Increments, resulting from the assessments imposed by the County as af January
1 of that year, ta 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, 2022, the
Economic Development Grants in respect thereof would be paid to Developer on
Novernber 1, 2023, and May 1, 2024.)
(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 accaunt created for such purpose and
designated as the Simmons Additional Structures TIF Accaunt of City. City hereby
covenants and agrees to maintain its TIF ardinance in force during the Term and
to apply the incremental taxes collected in respect af the Property and Minimum
Improvements and allocated to the Simmons Additional Structures 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
Simmons Additional Structures TIF Accaunt (regardless of the amounts thereo� to
the payment of the Economic Development Grants to Developer as and to the
extent described in this Section 3.2.
{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 or reduction of the annual Economic
Development Grants permitted under this Section 3.2, 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 thereaf.
(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 tnis Agreement. In the event City fails to complete
all hearings and other procedures required to take the actions required by this
paragraph, Developer may terminate this agreement without further obligation to
City and shall be entitled to return of any earnest money paid.
3.3 Site Preparation. City reserves the right to approve, consistent with City's rights,
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duties and obligations under applicable laws, ardinances, rules, and regulations, the
design and specifications for any site preparation work. City shall not remove any dirt from
Parcels A and B prior to Closing, to the end that Developer may utilize dirt presently stored
on Parcels A and B in Developer's grading of the Property.
3.4. Simmons Way. City will take the necessary actions to rename "Flexsteel Way" as
"Simmons Way" by June 30, 2021.
SECTION 4. [Intentionally deleted]
SECTION 5. NtJN- APPROPRIATION / LIMITED SOURCE OF FUNDING.
5.1 Non-Appropriation.
(1) Notwithstanding anything in this Agreement to the contrary, the obligation
of City to pay any installment of the Economic Develapment 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 Cauncil of City as provided in this Section 5.1. City may exercise its right
of non-apprapriation 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.
(2) In the event the City Council of City elects to not appropriate sufficient funds
in the budget for any future fiscal year for the pa.yment 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.
5.2 The right of non-appropriatian reserved to City in this Section 5.2 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 ta 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
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provisions of this Agreement which can be given effect without the suspended provision,
and to this end the provisions of this Agreement are severable. Provided, however, in the
event City elects not to appropriate sufficient funds in the budget for any fiscal year for
the payment in full af the installments on the Economic Development Grants due and
payable in that year, then Developer may terminate this Agreement without any further
obligation to City hereunder, pravided, however that Developer shall reconvey Parcels A
and B to City as provided in Section 7.4, but only if Developer has not constructed any of
the Minimum Improvements on Parcel A or Parcel B.
SECTION 6. COVENANTS OF DEVELOPER.
6.1 Job Creation. During the Term of this Agreement, Developer shall comply with the
following employment-related covenants:
(1) Developer represents that the number of fulltime equivalent (FTE)
employees employed by Developer in Dubuque, lowa, on the Closing Date is zero.
Developer shall create and maintain 138 FTE employees employed by Developer
by December 31, 2021. Develaper shall create and maintain 271 FTE employees
employed by Developer by December 31, 2�23, and during the remaining Term of
this Agreement at the Dubuque Industrial Center South facility. FTE employees
shall be calculated by adding fulltime and part-time employees together using 2080
hours per year as a FTE employee. Developer covenants that the jobs will be as
follows:
Na.of Created (C} Starting or Wage at 36
Job Category Jobs or Current�4fage months follo�ring
Retained R Rate the award
Mana ement 31 G $32.131hr av $35.11/hr av
Hourl Production 164 C $21.d0lhr av $22.95�r av
Receivin 32 C $21.08/hr av $23.03lhr av
Shipping 34 C $20.36mr(avg} $22.25/hr (avg)
Distribution Center 10 C $20.36/t�r av $22.25/hr av
TOTAL 271 C $22.18lhr av $24.24/hr av
(2) In the event that the certificate provided to City under Section 6.2 hereof on
December 31, 2032 discloses that Developer does not as of that date employ at
least Two Hundred Seventy One(271) FTE employees as provided hereinabove,
Developer shall pay to City, promptly upon written demand therefor, an amount
equal ta $1,86�.00 per job not created or maintained ($505,200.00 divided by 271
FTE _ $1,864.00).
(3) In addition, for the positions that Developer fails to create, maintain and
employ 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 by this Section 6.1 (271). (For example, if the
certification shows 110 FTE on December 31, 2021 or December 31, 2022, the
is
semi-annual Ecanomic Development Grants would be 79% (110/138) of the
allowable Developer Tax Increments received by City which wouid be paid by City
to Developer in May 2022, November 2022, May 2023 and November 2Q23. If the
certification shows 200 FTE during any year of the Term including and after
December 31, 2023, the semi-annual Economic Development Grants would be
74% (200/271) of the allowable Developer Tax Increments received by City which
would be paid by City to Developer). To be counted toward the 271 FTE, the jobs
must be paid not less than the amounts indicated in the chart in Section 6.1(1}.
(4) Notwithstanding Sectian 6.1(3), City retains the right ta begin withholding
semi-annual Economic Development Grant amounts beginning May 1, 2032 if the
certificate provided to City under Section 6.2 hereof on December 31, 2031
discloses that Developer as of that date has failed to create and maintain 271 FTE
employees. City shall nat withhold in excess of $541,891.00 (the amount of the
Acquisition Grant). In the event that the certificate provided to City under Section
6.2 hereof on December 31, 2031 discloses that Developer does as of that date
have at least 271 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.
6.2 Certification. To assist City in monitoring the perf'ormance of Developer hereunder,
on the Closing Date and again as of December 31 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 emplayed by Developer at the
Dubuque Industrial Center South facility, 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 by January 15 of each year thereafter
during the Term of this Agreement.
6.3 Books and Records. During the Term of this Agreement, Developer shall keep at
all times proper books of record and accaunt 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 af record and account.
6.4 Real Propertv 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
assessrnents payable with respect to all and any parts of the Property unless Developer's
19
obligations have been assumed by another person pursuant to the provisions of this
Agreement.
6.5 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, ar 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.
6.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process af 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):
All risk builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100%) of the replacement value
when construction is campleted.
(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 amaunt 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 amaunt to, or destruction of, the Minimum
Impravements 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 restaration, 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 Impravements whether or not the Net
Proceeds of insurance received by Developer for such Purposes are sufficient.
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6.7 Preservation of Property. 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, ardinary 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.
6.8 Non-Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
6.9 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 Gity,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position
to participate in a decision-making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract ar subcontract, or the
proceeds thereof, far wark to be performed in connection with the project, or in any
activity, or benefit therefrom, which is part of this project at any time during or after such
person's tenure. In connection with this obligation, Developer shall have the right to rely
upon the representations of any party with whom it does business and shall not be
obligated to perform any further examination into such party's background.
6.10 Transferabilitv. During the Term of this Agreement, this Agreement may not be
assigned and the Property and any portion of the Property may not be sold or otherwise
transferred by Developer without the prior written consent of City in City's sole discretion.
City has no obligation ta consent to any assignment or sale.
6.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as an industrial facility is in full compliance with the Urban Renewal
Plan and Developer agrees to comply with any amendments to the Urban Renewal
Plan,) (however, Develaper shall not have any liability to City to the extent that a
successor in interest shall breach this cavenant 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, religian, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale, lease,
rental, use or occupancy of the Property or any irnprovements erected or to be
erected thereon, or any part thereof (however, Developer shall not have any
?1
liability to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directiy against the party in
breach of same).
6.12 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers, agents,
servants and employees thereof{hereinafter, for purposes of this Section 6.12, 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 accurring at or about or resulting from any defect in the Minimum
Improvements, unless such loss or damage to property or injury to or death of a
person is caused by the Indemnified Parties' negligent acts or omissions.
(2) Develaper agrees to protect and defiend 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 whatsaever arising or purportedly arising from (1) Develaper's acts or
omissions which constitute or purport to constitute a vialation of any agreement or
condition of this Agreement; or (2) Develaper's acts or omissions connected with
its acquisition, construction, installation, ownership, and operation of the Minimum
Improvements or (3) the condition of the Property and any hazardous substance
or environmental contamination located in or on the Property, caused by
Developer's acts or omissions occurring after Developer takes possession of the
Property.
(3) The Indemnified Parties shall not be liable to Developer for any damage or
injury ta the persons or property of Developer or its officers, agents, servants or
employees or any other person who may be on, in or about the Minimum
Improvements due to any act of negligence of any person, other than any act of
negligence on the part of any such Indemnified Party or its officers, agents,
servants or employees.
(4) All covenants, stipulations, promises, agreements and abligations 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 6.12 shall survive the termination of this
Agreement.
6.13 Compliance with Laws. Developer shall comply with all federal, state, and local
laws, rules and regulations relating to its businesses, other than laws, rules and
regulatians 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,
financiai or otherwise, of Developer.
SECTION ?. EVEf�TS OF DEFAULT AND REMEDIES.
7.1 Events of Default Defined. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the fallowing 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 Rgreement.
{4) Failure by Developer to substantially observe or perform any other material
covenant, condition, obligatian or agreement on its part to be observed or
performed under this Agreement.
The conditians set forth in Section 1.1(4){i) and (ii} shall not constitute Events of Default.
7.2 Remedies on Default bv Developer. 1Nhenever any Event of Default referred to in
Section 7.1 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 of the Event of Default, but only if the Event of Default has not been cured
within sixty (60) days follawing 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 under this Agreement until it receives
assurances from the Developer, deemed adequate by City, that the Developer will
cure its default and continue its perFormance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable ta collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
?;
7.3 Re-vestinq Title in City Upon Happeninq of Event Subsequent to Conveyance to
Developer and Prior to Issuance of Certificate of Completion. In the event that,
subsequent to Closing and prior to receipt by Developer of the Certificate of Completion,
an Event of Default under Sectian 7.1 {1) through (4) of this Agreement occurs and is not
cured within the times specified in Section 7.2, then City shall have the right to re-enter
and take possession of Parcels A and B and any partion of the Minimum Improvements
thereon and to terminate Developer's estate, it being the intent of this provision, together
with other provisions of this Agreement, that the conveyance of Parcels A and B to
Developer was made upon the condition that, in the event of default under Section 7.1
(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
of this Agreement in favor of City of the title and of all Developer's rights and interests in
and to Parcels A and B, 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 Parcels A and B, shall revert to City (subject to the provisions of this
Section 7.3 of this Agreement), but only if the events stated in Section 7.1 of this
Agreement have not been cured within the time period provided above, or, if the events
cannot be cured within such time periads, Developer does not provide assurance to City,
reasonably satisfactory to City, that the events will be cured as soon as reasonably
possible.
7.4 Resale of Reacquired Property; Disposition of Proceeds. Upan the re-vesting in
City of title to Pareels A and B as provided in Section 7.3 of this Agreement, City shall pay
to Developer the Purchase Price which Developer paid to City for Parcels A and B, less
any amount required to provide clear title to Parcel A and B, including but not limited to
prorated taxes and any mortgages, liens, or other encumbrances.
7.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended ta be exclusive af 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.
7.6 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 cancurrent, previous or subsequent breach hereunder.
7.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of such action or by the arbitrator, as
?�
the case may be, or may be enforced in a separate action brought for that purpose. Such
fees and costs of litigation shall be in addition to any other relief that may be awarded.
7.8 Remedies on Default bv Citv. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that
may appear necessary or desirable to collect any payments due under this Agreement,
to recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may
suspend performance under this Agreement until it receives assurances from City,
deemed adequate by Developer, that City will cure its default and cantinue its
performance under this Agreement.
SECTION 8. GENERAL TERMS AND PFtOVIS10NS.
8.1 Notices and Demands. Whenever this Agreement requires or permits any notice
or written request by one party ta 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:
Simmons Pet Food, Inc.
601 N. Hico Street (if by overnight courier}
P.O. Box 430
Siloam Springs, AR 72761
Attn: President
With copy to:
Simmons Pet Food, Inc.
6Q1 N. Hico Street (if by overnight courier)
P.O. Box 430
Siloam Springs, AR 72761
Attn: General Counsel
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, lowa 520Q1
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
2;
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 8.1.
8.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of Gity and Developer and their respective successors and assigns.
8.3 Term� Termination Date. The Term of this Agreement and the rights and
obligations of the parties hereunder shall commence upan execution by both parties and
shall terminate at midnight on June 1, 2033 (the Termination Date).
8.4 Execution Bv Facsimile. The parties agree that this Agreement may be transmitted
among them by facsimile machine or electronic transmission. The parties intend that the
faxed or electronic transmission signatures canstitute original signatures and that a faxed
or electronically transmitted Agreement cantaining the signatures (original or faxed) of all
the parties is binding on the parties.
8.5 Memorandum of Amended and Restated Development Aqreement. City shall
promptly record a Memarandum af Rmended and Restated Development Agreement in
the form attached hereto as Exhibit E 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 Rgreement ta be duly executed.
26
CITY OF DUBUQUE, IOWA
SIMMONS PET FOOD, INC
By: t% i By:'4e
Roy D. ol, Mayor�gott Salmo , resident
ATTEST: � ,i9 AS
O
By: G .t ialsr� �44'z
�15�)Oratv
1z-mot-z®
Adrienne Breitfelder, City Clerk Ccll`1-`
27
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B Plat
Exhibit C City Attorney Certificate
Exhibit D Opinian of Counsel to Developer
Exhibit E Memorandum of Amended and Restated Development Agreement
Exhibit F City Certificate
Exhibit G Certificate of Completion
2s
EXHIBIT A
URBAiU RENEWAL PLAN
A capy of the Pian and amendments is on file in the Office of the City Clerk,
City Hali, 50 West 13t1i Street, Dubuque, lowa
Prepared by: Jdl Connors,City of Dubuque,1300 Main Street,Dobuque,IA 52001(563)589-4393
Retum to: Kevin S.Fimstahl,City of Oubuque,50 W.13th Street,Dubuque,IA 52001(563j 589-4'12t
AMENDED and RESTATED
Dubuque Industrial Center Ecanomic Development District
City of Dubuque, lowa
This Amended and Restated Urban Renewal Pian provides
for the continued development of the Dubuque Industrial
Center Economic Development District, originally
established by Resolution 130-88 of the City Council of the
City of Dubuque, lowa on May 2, 1988 and thereafter
amended and restated by Resolution 484-90 on December
17, 1990, Resolution 142-97 on April 7, 1997, Resolution
478-97 on November 17, 1997, Resolution 15-08 on January
7, 2008, Resolution 101-08 0� March 17, 2008, Resolution
109-08 on Aprii 7,2008, Resolution 87-11 on March 7,2011,
Resolution 171-13 on June 3, 2013, Resolution 197-15 on
June 1, 2015, Resolution 309-15 on September 8, 2015,
Resolution 332-16 on 5eptember 19, 2016, Resolution 157-
18 on May 21, 2018, Resolution 158-18 on May 21, 2018,
Resolution 380-18 on December 17, 2018, and Resolution
387-19 on November 4,2019.
Prepared by the Economic Deveiopment Department.
Version 2019.1
�9
EXHIBIT B
PLAT
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EXHIBIT C
CITY ATTOR�EY'S CERTIFICATE
32
I3arry A. Lindahl,r-.s�. p��,�q�� THL-CITX QF
Senior Counsel
Suite 330,Harbor View Place � ��
300 Main Street ��'����'
Dubuque,Iowa 52001-G94�t � � �
(563)583-�t t t 3 ot'eice Mastea•�icc�.�on the Mt.�is�ip��i
(563)583-10�0 fax -
balesq cr.,citvofdubu ue.arg 200:•2012�2073
(DATE)
RE:
Dear �
I have acted as counsel for the City of Dubuque, lowa, in connection with the execution
and delivery of a certain Amended and Restated 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 far its execution,
delivery and performance of this Rgreement 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 af the City Manager in his letter dated the day of
, 20 , are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:tIs
„
��
EXHIBIT D
QPINION C}F DEVELOPER'S COU�SEL
34
Mayar and City Councilmembers
City Hall, 13t" and Central Avenue
Dubuque IA 52001
Re: Amended and Restated Development Agreement Between the City of Dubuque, lowa
and
Dear Mayor and City Councilmembers:
We have acted as counsel for , (Developer} in connectian
with the execution and delivery of a certain Amended and Restated 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 Amended and Restated 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 foregaing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Developer is a corporation organized and existing under the laws of the
State of and has full power and authority to execute, deliver and perForm
in full Amended and Restated Development Agreement. The Amended and Restated
Development Agreement has been duly and validly authorized, executed and delivered
by Developer and, assuming due authorization, execution and delivery by City, is in full
force and effect and is valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Develaper of the Amended and
Restated Development Agreement and the carrying out of the terms thereof, will not result
in violation of any provision of, or in default under, the articles of incorporation and bylaws
of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement,
judgment, decree, order, statute, rule, regulation or restriction to which Developer is a
party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perForm Developer's obligations
thereunder.
Very truly yours,
�s
EXHIBIT E
tVIEMORANDUIUi OF Att�ENDED AND RESTATED DEVELOPiViENT AGREEMEfdT
36
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
MEMORANDUIVI OF AMENDED AND RESTATED DEVE�C?PMENT AGREEMENT
An Amended and Restated Development Agreement by and among the City of Dubuque,
lawa, an lowa municipal corporation, of Dubuque, lowa, and Simmons Pet Food, Inc. was
made regarding the following described premises:
The Amended and Restated 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 Amended and Restated Development Agreement is
recorded for the purpose of constructive notice. In the event of any conflict between the
provisions of this Memorandum of Amended and Restated Develapment Agreement and
the Amended and Restated Development Agreement itself, executed by the parties, the
terms and provisions of the Amended and Restated Development Agreement shall
prevail. A complete counterpart af the Amended and Restated Development Agreement,
together with any amendments thereto, is in the possession of the City of Dubuque and
may be examined at its offices as above provided.
Dated this day of , 20_.
CITY OF DUBUQUE, IOWA
By:
Barry A. �indahl, Senior Counsel
��
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 Barry A. Lindahl, to me personally
known, who being by me duly sworn did say that he is the Senior Counsel 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 Senior Counsel acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
Notary Public, State of lowa
�s
EXHIBIT F
CITY CERTIFICATE
39
������� City Manager's OfFice
THE CITY OF City Hall
�,,,__,,___ 50 West"13���Street
�°°` A�-AtrtBtiCaCit� Dubuque,towa 52001-4864
� � (563)539-411Q affice
(563}559-�149 fax
ctytngr�lci tyofdubuqae.�rg
Mr�sterpiece o�i th�e Mississ�ppi 2��,
(DRTE)
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 Amended and Restated
Development Agreement (this Agreement) 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) City has duly obtained all necessary approvals and consents for its
execution, delivery and perFormance of this Agreement, and has full power and
authority to execute, deliver and perForm its obligations under this Agreement.
City's attorney shall issue a legal opinion to Develaper at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(2) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(3) Parcels A and B are presently zoned to accommodate Developer's intended
improvements and the manufacturing af pet food products.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
�o
EXHIBIT G
CERTIFICATE tJF COMPLETION
41
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 CtJiUiPLETION
WHEREAS, the City of Dubuque, lowa {City), and Simmons Pet Food, Inc.
(Developer) have entered into an Amended and Restated Development Agreement (the
Agreement) dated as of [Date], with respect to certain real property located within the
Dubuque Industrial Center Economic Developrnent District and as more particularly
described as follows:
(the "Property"); and
WHEREAS, said Agreement contains certain covenants and conditions with
respect to the development of the Property, and abligates Developer to construct certain
Minimum Improvements in accordance with the Agreement; and
WHEREAS, Developer has performed said covenants and conditians insofar as
they relate to the construction of the Minimum Improvements in a manner deemed
sufficient by City 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 Agreement with respect to the abligations of
Developer, and its successors and assigns, to construct the Minimum Impravements on
Parcels A and B and pay for the same have been completed and perforrned by Developer
to the satisfaction of City and such covenants and conditions are hereby terminated.
The Recorder af Dubuque County is hereby authorized to accept for recording and to
record the filing of this instrument, to be a canclusive determination af the satisfaction af
the covenants and conditians of said Agreement which would have resulted in a forfeiture
by Developer and right of City to re-enter and take possession of Parcels A and B as set
forth in said Agreement if such covenants and conditions had not been satisfied, and that
said Agreement shall otherwise remain in full force and effect.
CITY QF DUBUQUE, IOWA
By:
Michael C. Uan Milligen, City Manager
42
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 20 , before me, the undersigned, a Notary
Public in and for the State af 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 acknawledged the execution of
the instrument to be his voluntary act and deed.
Notary Public in and for said State
43
STATE OF IOWA SS:
DUBUQUE COUNTY
CERTIFICATE OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
12/12/2020
and for which the charge is 110.41
Subscribed to before me, a Notary Pub is in and for
Dubuque County, Iowa,
this 14th day of December, 2020
k pocl-4 - .
Nota blic in and for Dubuqu County, Iowa.
urm
JePdT ''APE
t = "' Cmm�iinn Pd
,ber 199959
�fq Gnnm, Exp. DEC 19, 2022
Ad text : CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
PUBLIC NOTICE is hereby given that the City Council of the
City of Dubuque, Iowa, will hold a public hearing on the 17th
day of December, 2020, at 5:00 p.m. Due to the ongoing
COVID-19 pandemic, the City Council will meet virtually
through GoToMeeting. The official agenda will be posted on
December 16, 2020 and will contain listening, viewing, and
public input options. The City Council agenda can be accessed
at https://cityofdubuque.novusagenda.com/AgendaPublic/ or by
contacting the City Clerk's Office at 563-589-4100,
ctyclerk@cityofdubuque.org.
At said meeting the City Council proposes to take action to
approve an Amended and Restated Development Agreement with
Simmons Pet Food, Inc., 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 Simmons Pet
Food, Inc., 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
$3,000,000.
The City Council may at this meeting or at any adjournment
ther-eof, 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
Iowa.
Written comments regarding the above public hearing should
be submitted to the City Clerk's Office, 50 W. 13th St.,
Dubuque, IA 52001, ctyclerk@cityofdubuque.org, on or before
said time of public hearing. At said time and place of public
hearings all interested citizens and parties will be given an
opportunity to be heard for or against said proposal.
Copies of supporting documents for the public hearing are on
file in the City Clerk's Office, City Hall, 50 W. 13th St.,
Dubuque, Iowa, and may be viewed during normal working hours.
Agendas can be accessed at
https://www.cityofdubuque.org/Agendas.
Individuals with limited English proficiency, vision,
hearing or speech impairments or requiring special assistance
should contact the City Clerk's Office at (563) 589-4100,
TDD/TTY (563) 690-6678, ctyclerk@cityofdubuque.org as soon as
feasible. Deaf or hard -of -hearing individuals can use Relay
Iowa by dialing 711 or (800) 735-2942.
Dated this 12th day of December 2020.
Adrienne N. Breitfelder
City Clerk
RESOLUTION
NO. 356-20
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL
ESTATE PURSUANT TO AN AMENDED AND RESTATED DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF DUBUQUE AND SIMMONS PET FOOD,
INC. 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 following described real property:
Lot 5 of Dubuque Industrial Center South First Addition in
the City of Dubuque, Iowa (Parcel A)
and that part of Lot C of Dubuque Industrial Center South
First Addition in the City of Dubuque, Iowa shown on Exhibit B
(Parcel B)
(the Property); and
Whereas, City and Simmons Pet Food, Inc. have entered into
an Amended and Restated Development Agreement, subject to the
approval of the City Council, pursuant to which City will
convey the Property to Simmons Pet Food, Inc., and Simmons Pet
Food, Inc. will construct on the Property certain Improvements
described in the Amended and Restated Development Agreement;
and
Whereas, the City Council has tentatively determined that it
would be in the best interests of City to approve the Amended
and Restated Development Agreement, including the convey-ance
of the Property to Simmons Pet Food, Inc.; and
Whereas, the Amended and Restated Development Agreement
provides for the issuance by City of economic development
grants to Simmons Pet Food, Inc., referred to therein as Urban
Renewal Tax Increment Revenue Grant Obligations, payable from
the tax increment revenues collected in respect of the
Impro-vements to be constructed by Simmons Pet Food, Inc. in
accordance with the Amended and Restated Development
Agreement, for the purpose of carrying out the objectives of
an Urban Renewal Plan 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 L "The City of Dubuque intends to dispose of its
interest in the foregoing -described Property by Deed to
Simmons Pet Food, Inc. pursuant to the proposed Amended and
Restated Development Agreement.
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 Citys intent to dispose of the foregoing -described
Property, to be held on the 17th day of December, 2020 at 5:00
p.m. in the form attached hereto.
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 exe-cution of the Amended and Restated Development
Agreement relating thereto with Simmons Pet Food, Inc., 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 Simmons Pet Food, Inc. pursuant to the
Amended and Restated 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 $3,000,000
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 1lth day of December,
2020.
Roy D. Buol, Mayor
Attest: Adrienne N. Breitfelder, City Clerk
It 12/12