Giese Properties, L.L.C and Gises Manufacturing Company, Inc. Disposition of an Interest in City-Owned Real Estate Pursuant to DA Copyrighted
April 19, 2021
City of Dubuque Public Hearings #4.
City Council Meeting
ITEM TITLE: ResolutionApproving the Disposition of an Interest in City-Owned Real
Estate Pursuant to the Development Agreement by and among the City
of Dubuque, Giese Properties, L.L.C., and Giese Manufacturing
Company, Inc., including the Issuance of Urban Renewal Tax Increment
Revenue Grant Obligations
SUM MARY: Proof of publication on notice of public hearing to consider City
Council approval of a Development Agreement by and among the City of
Dubuque, Giese Properties, L.L.C., and Giese Manufacturing Company,
Inc. providing forthe sale of city-owned real estate in Dubuque Industrial
Center West to Giese Properties, L.L.C. and the issuance of Urban
Renewal Tax Increment Revenue Grant Obligations, and City Manager
recommending approval.
RESOLUTION Approving the disposal of an interest in City of Dubuque
Owned real estate by sale to Giese Properties, L.L.C., pursuant to a
Development Agreement by and among the City of Dubuque, Giese
Properties, L.L.C., and Giese Manufacturing Company, Inc. including the
issuance of Urban Tax I ncrement Revenue Obligations to Giese
Manufacturing Company, I nc.
SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
Giese Manufacturing Development Agreement-MVM City Manager Memo
Memo
Staff Memo Staff Memo
Resolution 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 Disposition of an Interest in City-Owned Real
Estate Pursuant to the Development Agreement by and among the City of
Dubuque, Giese Properties, L.L.C., and Giese Manufacturing Company,
Inc., including the Issuance of Urban Renewal Tax Increment Revenue
Grant Obligations
DATE: April 12, 2021
Economic Development Director Jill Connors recommends City Council approval of a
Development Agreement by and among the City of Dubuque, Giese Properties, L.L.C.,
and Giese Manufacturing Company, Inc. providing for the sale of city-owned real estate
in Dubuque Industrial Center West to Giese Properties, L.L.C. and the issuance of
Urban Renewal Tax Increment Revenue Grant Obligations.
The key elements of the Development Agreement include the following:
1. The purchase price is $620,400 ($120,000 per usable acre) for 5.17 net
usable acres, with a total acquisition of 6.109 acres. An Acquisition Grant to
the Developer reduces the cost to $60,000 per usable acre.
2. The property will be conveyed on or before May 31, 2021.
3. The Developer must construct a building of not less than 30,000 square feet
with a cost of approximately $2,100,000.
4. After the building is constructed, Giese Properties, L.L.C., will lease the
property to Giese Manufacturing Company, Inc.
5. Giese Manufacturing Company, Inc. must retain its current 49 full-time
positions at the current facility and create 10 new jobs at the current facility or
the new building by October 1, 2023. The 59 jobs must be retained through
the term of the Development Agreement.
6. The Acquisition Grant requires having at least 59 jobs during the term of the
Development Agreement.
7. Giese Manufacturing Company, Inc. will receive 10 years of tax increment
financing incentives in the form of semi-annual rebates. These incentives are
calculated in relation to the number of jobs committed in the Development
Agreement.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Y
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill M. Connors, Economic Development Director
2
Dubuque Economic Development
Department
THE CITY OF � 50 West 13th Street
All•AmericaCity Dubuque, lowa 52001-4864
U� � "AnONA`M`���� Office(563)589-4393
1 I I�I TTY(563)690-6678
http://www.cityofd ubuq ue.org
2007*2012*2013
Masterpiece on the Mississippi 2oi�*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 Pursuant to the Development Agreement by and among
the City of Dubuque Giese Properties, L.L.C., and Giese
Manufacturing Company, Inc., Including the Issuance of Urban
Renewal Tax Increment Revenue Grant Obligations
DATE: March 31, 2021
INTRODUCTION
This memorandum presents for City Council consideration and action the attached
resolution approving a Development Agreement by and among the City of Dubuque,
Giese Properties, L.L.C., and Giese Manufacturing Company, Inc. providing for the sale
of city-owned real estate in Dubuque Industrial Center West to Giese Properties, L.L.C.
and the issuance of Urban Renewal Tax Increment Revenue Grant Obligations.
BACKGROUND
Giese Sheet Metal Co., Inc. was formed in 1923. Giese Manufacturing Company, Inc.
(the Company) evolved from that entity in 1997. The Company was formed by Charles
H. Giese and Thomas W. Giese to produce fabricated metal products for the
manufacturing and construction industry.
The Company began operations in its first location on March 1, 1997 at 2820 Elm
Street, Dubuque, lowa, a 13,500 square foot facility. During the first two years, it
occupied half of this facility with only several employees. Major equipment at that time
included a brake press, shear, welders and band saw. During the next three years, the
Company grew rapidly and began to invest in new equipment and additional employees,
quickly outgrowing the facility on Elm Street. In 2002, construction began on its current
location, a 28,500 square foot facility at 7025 Chavenelle Road in Dubuque, lowa and
was completed on December 31, 2002. In 2006, an expansion of that facility was
started, adding an additional 18,000 square feet for a total facility space of 46,500
square feet. In 2012 another expansion added 28,500 square feet bringing the total
production area to 75,000 square feet. In addition, the Company constructed a new
office at that location for its administrative support staff. As the Company grew, it
invested heavily in state-of-the-art production equipment ranging from CNC machines,
fiber lasers, robotic welders and training for its employees.
DISCUSSION
Giese Properties, L.L.C., the limited liability company which will acquire the property
from the City and construct the new facility as the Developer, and Giese Manufacturing
Company, Inc., the Employer, are now planning the construction of a 30,000 square foot
building east of its current facility at 7025 Chavenelle Road in Dubuque Industrial
Center West. The proposed building, estimated at a construction cost of $2.1 Million,
will be utilized by Giese Manufacturing Company, Inc. to expand its industrial activities.
In addition to the physical improvements, Giese Manufacturing Company, Inc. has
committed to the creation of ten (10) full time equivalent jobs.
The key elements of the Development Agreement include the following:
1. The purchase price is $620,400 ($120,000 per usable acre) for 5.17 net
usable acres, with a total acquisition of 6.109 acres. An Acquisition Grant to
the Developer reduces the cost to $60,000 per usable acre.
2. The property will be conveyed on or before May 31, 2021.
3. The Developer must construct a building of not less than 30,000 square feet
with a cost of approximately $2,100,000.
4. After the building is constructed, Giese Properties, L.L.C., will lease the
property to Giese Manufacturing Company, Inc.
5. Giese Manufacturing Company, Inc. must retain its current 49 full-time
positions at the current facility and create 10 new jobs at the current facility or
the new building by October 1, 2023. The 59 jobs must be retained through
the term of the Development Agreement.
6. The Acquisition Grant requires having at least 59 jobs during the term of the
Development Agreement.
7. Giese Manufacturing Company, Inc. will receive 10 years of tax increment
financing incentives in the form of semi-annual rebates. These incentives
are calculated in relation to the number of jobs committed in the Development
Agreement.
RECOMMENDATION/ ACTION STEP
Based on the City Council's goal of creating a robust local economy, I recommend that
the City Council approve the Development Agreement by and among the City of
Dubuque, Giese Properties, L.L.C., and Giese Manufacturing Company, Inc. for the sale
of city-owned property and the issuance of Urban Renewal Tax Increment Revenue
Grant Obligations by adopting the attached Resolution.
Prepared by: Jill Connors, Economic Development, 1300 Main Street, Dubuque IA 52001, 563 589-4393
Return to: Jill Connors, Economic Development, 1300 Main Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 127-21
APPROVING THE DISPOSAL OF AN INTEREST IN CITY OF DUBUQUE OWNED
REAL ESTATE BY SALE TO GIESE PROPERTIES, L.L.C., PURSUANT TO A
DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, GIESE
PROPERTIES, L.L.C., AND GIESE MANUFACTURING COMPANY, INC. INCLUDING
THE ISSUANCE OF URBAN TAX INCREMENT REVENUE OBLIGATIONS TO GIESE
MANUFACTURING COMPANY, INC.
WHEREAS, the City of Dubuque is the owner of the property legally described as
follows:
Lot 1 of Dubuque Industrial Center North First Addition, in the City of Dubuque, Iowa (the
Property); and
WHEREAS, the City Council, by Resolution No. 98-21, dated April 5, 2021,
declared its intent to dispose of its interest in the Property by sale to Giese Properties,
L.L.C. pursuant to a Development Agreement by and among the City of Dubuque, Giese
Properties, L.L.C., and Giese Manufacturing Company, Inc., including the issuance of
Urban Renewal Tax Increment Revenue Obligations to Giese Manufacturing Company,
Inc.; and
WHEREAS, pursuant to published notice, a public hearing was held on the
proposed Development Agreement on April 19, 2021 at 6:30 p.m. by virtual means; and
WHEREAS, it is the determination of the City Council that sale of the Property and
approval of the Development Agreement for redevelopment of the Property by Giese
03312021ba1
Properties, L.L.C., according to the terms and conditions set out in the Development
Agreement, is in the public interest of the City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Development Agreement between the City of Dubuque,
Giese Properties, L.L.C., and Giese Manufacturing Company, Inc., a copy of which is
attached hereto, including the sale of the Property and 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
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 Development Agreement as herein approved.
Passed, approved and adopted this 19t" day of April, 2021.
Attest:
&-( 4�",
Adrienne N. Breitfelder, City Clerk
lt-y i-o" /-�Cj
Roy D. Buol Aayor
2
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
GIESE PROPERTIES, L.L.C. AND
GIESE MANUFACTURING COMPANY, INC.
This Agreement, dated for reference purposes the 19 th day of Appi' ,
2021, by and among the City of Dubuque, Iowa, a municipality (City), established
pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter 403,
as amended (Urban Renewal Act), Giese Properties, L.L.C., an Iowa limited liability
company with its principal place of business at Dubuque, Iowa (Developer), and
Giese Manufacturing Company, Inc., an Iowa corporation with its principal place of
business in Dubuque, Iowa (Employer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City
has undertaken an Urban Renewal Project as described herein to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the Urban
Renewal Plan for the Dubuque Industrial Center Economic Development District,
approved by the City Council of City on May 2, 1988, and as subsequently amended
through and including the date hereof (the Urban Renewal Plan) attached hereto as
Exhibit A; and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement, is on file with the County Auditor and the City of Dubuque City Clerk;
and
WHEREAS, Employer has determined that it requires a new industrial
building/facility to maintain and expand its operations and employment in the Project
Area (the Facility); and
WHEREAS, Developer and Employer have entered into an agreement for the
construction of the Facility; and
04012021ba1
WHEREAS, Developer has requested that City sell to Developer 6.109 acres
of which 5.17 acres are usable, legally described as follows:
Lot 1 of Dubuque Industrial Center North First Addition, in the City of Dubuque, lowa
(the Property)
with all easements, tenements, hereditaments, and appurtenances belonging thereto
so that Developer may develop the Property, located in the Project Area, for the
construction, use, and occupancy of the Facility in accordance with the uses specified
in the Urban Renewal Plan and Developer agrees to comply with any amendments
to the Urban Renewal Plan, in accordance with this Agreement; and
WHEREAS, Employer desires to join in this Agreement and assume the rights
and responsibilities provided herein; and
WHEREAS, Developerwill undertake the construction of a building located on
the Property; and
WHEREAS, Employer will lease the building from Developer (the Lease) and
employ Employees as provided herein; and
WHEREAS, Developer or Employer will make a capital investment in building
improvements, equipment, furniture and fixtures in the Facility, all of the foregoing
referred to herein as the Project; and
WHEREAS, City believes that the Project and the development of the Property
pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the
vital and best interests of City and in accord with the public purposes and provisions
of the applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree with
the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
Purchase Price. The purchase price for the Property (the Purchase Price) shall be
the sum of Six Hundred Twenty Thousand Four Hundred Dollars ($620,400) (One
2
Hundred Twenty Thousand Dollars ($120,000.00) per usable acre for 5.17 net usable
acres) with a total acquisition of 6.109 acres, which shall be due and payable by
Developer in immediately available funds in favor of City, on or before May 31, 2021,
or on such other date as the parties may mutually agree (the Closing Date).
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions,
and covenants of record as of the date hereof to the extent not objected to by
Developer as set forth in this Agreement, and to the conditions subsequent set forth
in Section 6.3, below:
(1) City, at its sole cost and expense, shall deliver to Developer an abstract
of title to the Property continued through the date of this Agreement reflecting
merchantable title in City in conformity with this Agreement and applicable
state law. The abstract shall be delivered together with full copies of any and
all encumbrances and matters of record applicable to the Property, and such
abstract shall become the property of Developer when the Purchase Price is
paid in full in the manner as aforesaid.
(2) Developer shall have until time of the Closing (as defined herein) to
render objections to title, including any easements or other encumbrances not
satisfactory to Developer, in writing to City. Developer agrees, however, to
review the Abstract promptly following Developer's receipt of Developer's land
survey and the Abstract and to promptly provide City with any objections to
title identified therein. Nothing herein shall be deemed to limit Developer's
rights to raise new title objections with respect to matters revealed in any
subsequent title examinations and surveys and which were not identified in the
Abstract provided by the City. City shall promptly exercise its best efforts to
have such title objections removed or satisfied and shall advise Developer of
intended action within ten (10) days of such action. If City shall fail to have
such objections removed as of the Closing, or any extension thereof
consented to by Developer, Developer may, at its sole discretion, either (a)
terminate this Agreement without any liability on its part, and any sums
previously paid to City by Developer (or paid into escrow for City's benefit)
shall be returned to Developer with interest, or (b) take title subject to such
objections. City agrees to use its best reasonable efforts to promptly satisfy
any such objections.
1.3 Riqhts of Inspection, Testing and Review. Developer, its counsel,
accountants, agents, and other representatives, shall have full and continuing access
3
to the Property and all parts thereof, upon reasonable notice to City. Developer and
its agent and representatives shall also have the right to enter upon the Property at
any time after the execution and delivery hereof for any purpose whatsoever,
including inspecting, surveying, engineering, test boring, and performing
environmental tests, provided that Developer shall hold City harmless and fully
indemnify City against any damage, claim, liability or cause of action arising from or
caused by the actions of Developer, its agents, or representatives upon the Property
(except for any damage, claim, liability or cause of action arising from conditions
existing prior to any such entry upon the Property), and shall have the further right to
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 and
Employer to enter into this Agreement and purchase the Property, City hereby
represents and warrants to Developer and Employer that to the best of City's
knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change
in the Property being conveyed or the possession, use or enjoyment thereof
by Developer or Employer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body
that either contemplates or authorizes any public improvements or special tax
levies, the cost of which may be assessed against the Property. To the best
of City's knowledge, there are no plans or efforts by any government agency
to widen, modify, or re-align any street or highway providing access to the
Property and there are no pending or intended public improvements or special
assessments affecting the Property which will result in any charge or lien be
levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the Property
have been provided to Developer and Employer, and City has provided true
and correct copies of all such documents to Developer and Employer.
(4) City has good and marketable fee simple title interest in the Property.
4
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other matters
that have not been corrected. City has notified Developer and Employer in
writing of any past notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution or health violations as they relate
to the Property of which it has actual notice. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations.
(7) Payment has been made for all labor or materials which have been
furnished to the Property or will be made prior to the Closing so that no lien for
labor performed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date (as defined herein), be free
and clear of all liens, security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the Property
being conveyed are bound, nor shall the execution, delivery and perFormance
of this Agreement violate any statute, regulation, judgment, writ, injunction or
decree of any court threatened or entered in a proceeding or action in which
City may be bound or to which either City or the Property being conveyed may
be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and it has full power
and authority to execute, deliver and perForm its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer at time of Closing confirming the representation contained herein, in
the form attached hereto as Exhibit C.
(11) All city utilities necessary for the development and use of the Property
as a manufacturing facility adjoin the Property, and Developer and Employer
shall have the right to connect to said utilities, subject to payment of City's
s
connection fees. There will be no sanitary sewer connection fees associated
with the Project. Water connection fees will be assessed for connections to
Chavenelle Road or Innovation Drive. All other associated fees, such as a
tapping fee, will be required as determined by the size of the service line being
installed.
(12) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property, Developer, or Employer.
(13) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection
with the purchase and sale contemplated in this Agreement are the sole
responsibility and obligation of City and that City will indemnify Developer and
Employer and hold Developer and Employer 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 and Employer in
the development process.
(15) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
(16) With respect to the period to and during which City has owned or
occupied the Property, no person or entity has caused or permitted materials
to be stored, deposited, treated, recycled, or disposed of on, under or at the
Property, which materials, if known to be present, would require cleanup,
removal or some other remedial action under environmental laws.
(17) The Property is presently zoned to accommodate Developer's and
Employer's intended improvements.
(18) The representations and warranties contained in this Section shall be
correct in all respects on and as of the Closing with the same force and effect
as if such representations and warranties had been made on and as of the
Closing Date.
1.5 Representations and Warranties of Developer and Emplover. Developer and
Employer each make the following individual representations and warranties with
6
respect to their own company (without making any warranties with respect to the
other):
(1) Developer and Employer are duly organized and validly existing or
authorized under the laws of the State of lowa and have all requisite power
and authority to own and operate their properties, to carry on their respective
business as now conducted and as presently proposed to be conducted, and
to enter into and perForm their obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and Employer, and assuming due authorization, execution and
delivery by City, is in full force and effect and is a valid and legally binding
instrument of Developer and Employer enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
Developer's counsel and Employer's counsel shall issue legal opinions to the
City, at time of closing, confirming the representations contained herein, in the
form attached hereto as Exhibit D and Exhibit I.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of incorporation or the bylaws of Developer or
Employer or any contractual restriction, evidence of indebtedness, agreement
or instrument of whatever nature to which Developer or Employer is now a
party or by which it or its property is bound, or constitute a default under any
of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened
against or affecting Developer or Employer in any court or before any arbitrator
or before or by any governmental body in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, financial position or result of operations of Developer or Employer
or which affects the validity of the Agreement or Developer's or Employer's
ability to perForm its obligations under this Agreement.
(5) Developer and Employer will perform their obligations under this
Agreement in accordance with the material terms of this Agreement, the Urban
Renewal Plan and all local, State and federal laws and regulations.
�
(6) Developer will use good faith efforts to obtain, or cause to be obtained,
in a timely manner, all material requirements of all applicable local, state, and
federal laws and regulations which must be obtained or met.
(7) Developer has commitments for permanent financing for the
Development Project and all of their respective obligations under this
Agreement in an amount sufficient, together with equity commitments, to
successfully complete the requirements of this Agreement and shall provide
evidence thereof to City prior to the Closing Date.
1.6 Conditions to Closinq. The closing of the transaction (the Closing)
contemplated by this Agreement and all the obligations of Developer and Employer
under this Agreement are subject to fulfillment, on or before the Closing Date, of the
following conditions:
(1) The representations and warranties made by City in Section 1.4 shall
be correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the Closing, City shall deliver a
certificate in the form of Exhibit G.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer and Employer, in their sole and absolute discretion, having
completed and approved of any inspections done by Developer or Employer
hereunder.
(4) Developer having obtained any and all necessary governmental
approvals, including without limitations approval of zoning, subdivision, or
platting which might be necessary or desirable in connection with the sale,
transfer and development of the Development Property. Any conditions
imposed as a part of the zoning, platting or subdivision must be satisfactory to
Developer, in its sole opinion. City shall cooperate with Developer in
attempting to obtain any such approvals and shall execute any documents
necessary for this purpose, provided that City shall bear no expense in
connection therewith. In connection therewith, the City agrees (a)to review all
of Developer's plans and specifications for the Project and to either reject or
approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that the
City has approved such plans and specifications, and that the same are in
s
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 the
Property by Developer, and the construction, use and occupancy of the project
with the intent and understanding that Developer and its lenders and attorneys
will rely upon same in establishing their agreement and time frames for
construction, use and occupancy, lending on the project and issuing legal
opinions in connection therewith; and (d) to cooperate fully with Developer to
streamline and facilitate the obtaining of such permits, approvals and
consents.
(5) City having completed all required notice to or prior approval, consent
or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property; and consummation of the
Closing by City shall be deemed a representation and warranty that it has
obtained the same.
(6) Developer, Employer, and City shall be in material compliance with all
the terms and provisions of this Agreement.
(7) Developer shall have furnished City with evidence, in a form satisfactory
to City (such as a letter of commitment from a bank or other lending institution),
that Developer has firm financial commitments in an amount sufficient,
together with equity commitments, to complete the Minimum Improvements
(as defined herein) in conformance with the Construction Plans (as defined
herein), or City shall have received such other evidence of such party's
financial ability as in the reasonable judgment of City is required.
(8) Employer shall have furnished City with evidence in a form as required
by Section 5.2 and satisfactory to City of Employer's fulltime equivalent
employees (FTE) at 7025 Chavenelle Road in the City of Dubuque, lowa, as
of January 1, 2021.
(9) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
9
(10) Receipt of an opinion of counsel to Employer in the form attached
hereto as Exhibit I.
(11) City shall have prepared and recorded prior to Closing a plat of survey
of Property acceptable to Developer (the "Plat"), including location and
depiction of all applicable easements and other substantial improvements.
(12) Developer and Employer shall have the right to terminate this
Agreement at any time prior to the consummation of the closing on the Closing
Date if Developer or Employer 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.
(13) Developer and Employer shall have provided City with a copy of the
executed Lease.
1.7 Closinq. The Closing of the purchase and sale shall take place on the Closing
Date which shall be the 30t" day of April, 2021, or such other date as the parties shall
agree in writing but in no event shall the Closing Date be later than the 30th day of
May, 2021. Exclusive possession of the Property shall be delivered on the Closing
Date, in its current condition and in compliance with this Agreement, including City's
representations and warranties regarding the same. Consummation of the Closing
shall be deemed an agreement of the parties to this Agreement that the conditions of
closing have been satisfied or waived.
1.8 Citv's Obligations at Closing. At or prior to Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit E (the Deed) conveying to
Developer marketable fee simple title to the Property and all rights appurtenant
thereto, subject only to easements, restrictions, conditions and covenants of
record as of the date hereof and not objected to by Developer as set forth in
this Agreement, and to the conditions subsequent set forth in Section 6.3
below.
(2) Deliver to Developer the Abstract of Title to the Property.
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(3) Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer.
1.9 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.
1.10 Closinq Costs. The following costs and expenses shall be paid in connection
with the Closing:
(1) City shall pay:
(a) The transfer fee, if any, imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1.10.
(c) All special assessments, if any, whether levied, pending, or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the 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.
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1.11 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years prior
to the fiscal year in which Closing Date occurs. Real estate taxes for the fiscal year
in which Closing Date occurs shall be prorated between City and Developer to
Closing Date on the basis of a 365-day calendar year. Developer shall pay or cause
to be paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the year currently
payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that the Facility
Developer is building on the Property is a manufacturing building/facility. Developer
agrees to construct the building and Employer agrees to add certain internal systems
thereto, including all interior improvements to the building; (the Minimum
Improvements); all as more particularly depicted and described on the plans and
specifications to be delivered to and approved by City as contemplated in this
Agreement. Developer hereby agrees the Facility will be not less than Thirty
Thousand (30,000) square feet of floor space along with the necessary site work,
machinery and equipment at an estimated cost of approximately Five Million Five
Hundred Thousand Dollars ($5,500,000).
2.2 Plans for Construction of Minimum Improvements. Developer shall provide
City with an approved Site Plan. The parties agree that this Development Agreement
shall be amended to include such Site Plan. Plans and specifications with respect to
the development of the Property and the construction of the Minimum Improvements
thereon (the Construction Plans) shall be in conformity with the Urban Renewal Plan,
this Agreement, and all applicable state and local laws and regulations, including but
not limited to the Amended and Restated Declaration of Covenants, Conditions,
Restrictions, Reservations, Easements, Liens and Charges, recorded as Instrument
No. 2014-00001147, records of Dubuque County, lowa. Developer shall submit to
City, for approval by City, plans, drawings, specifications, and related documents with
respect to the improvements to be constructed by Developer on the Property. All
work with respect to the Minimum Improvements shall be in substantial conformity
with the Construction Plans approved by City.
2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before June 1,
2021 and shall be substantially completed by December 31, 2021. The time frames
for the performance of these obligations shall be suspended due to unavoidable
delays, meaning delays outside the control of the party claiming its occurrence in
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good faith, which are the direct result of strikes, other labor troubles, shut down due
to COVID-19, unusual shortages of materials or labor, unusually severe or prolonged
bad weather, acts of God, fire or other casualty to the Minimum Improvements,
litigation commenced by third parties which, by injunction or other similar judicial
action or by the exercise of reasonable discretion directly results in delays, or acts of
any federal, state or local government which directly result in extraordinary delays.
The time for performance of such obligations shall be extended only for the period of
such delay.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, the City Manager shall furnish Developer
with an appropriate instrument so certifying. Such certification (the Certificate of
Completion) shall be in recordable form and shall be a conclusive determination of
the satisfaction and termination of the agreements and covenants in this Agreement
and in the Deed with respect to the obligations of Developer to construct the Minimum
Improvements. The Certificate of Completion, in the form attached hereto as Exhibit
H, shall waive all rights of re-vestment of title to the Property as provided in Section
6.3(1), and the Certificate of Completion shall so state.
2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall
fail to complete the Minimum Improvements as required by this Agreement such that
re-vestment of title may occur (or such that the City would have the option of
exercising its re-vestment rights), then Developer's lender shall have the right, but not
the obligation, to complete such Minimum Improvements.
SECTION 3. CITY PARTICIPATION.
3.1 Acquisition Grant to Developer.
(1) For and in consideration of Developer's obligations hereunder to construct the
Minimum Improvements, City agrees to make an Acquisition Grant to Developer on
the Closing Date in the following amount: $310,200 ($60,000 per acre x 5.17 usable
acres).
(2) The parties agree that the Acquisition Grant shall be payable in the form of a
credit favoring Developer with the effect of directly offsetting the Purchase Price
obligation of Developer.
3.2 Economic Development Grants.
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(1) Employer Economic Development Grants
(a) For and in consideration of Developer's and Employer's
obligations hereunder, and in furtherance of the goals and objectives of
the Urban Renewal Plan for the Project Area and the Urban Renewal
Law, City agrees, subject to Developer and Employer 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 Employer Economic Development Grants)
to Employer, 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, 2030
November 1, 2030 May 1, 2031
November 1, 2031 May 1, 2032
November 1, 2032 May 1, 2033
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 Employer) during the preceding six-month period in respect
of the Property and Minimum Improvements constructed by Developer
(the Developer Tax Increments). City and Employer agree that for
purposes of this Section 3.2(1), the assessed value of the Property as
of January 1, 2021 is zero. Employer recognizes and agrees that the
Employer Economic Development Grants shall be paid solely and only
from the incremental taxes collected by City in respect to the Property
and Minimum Improvements, which does not include property taxes
collected for the payment of bonds and interest of each taxing district,
and taxes for the regular and voter-approved physical plant and
equipment levy, instructional support levy, and any other portion
required to be excluded by lowa law, and thus such incremental taxes
will not include all amounts paid by Developer as regular property taxes.
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(b) To fund the Employer Economic Development Grants, City shall
certify to the County prior to December 1 of each year, commencing
December 1, 2022, 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
Employer on November 1 and May 1 of that fiscal year. (Example: If
City so certifies by December 1, 2022, the Employer Economic
Development Grants in respect thereof would be paid to Employer on
November 1, 2023, and May 1, 2024.)
(c) The Employer Economic Development Grants shall be payable
from and secured solely and only by the Developer Tax Increments paid
to City that, upon receipt, shall be deposited and held in a special
account created for such purpose and designated as the Giese III 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 Giese III TIF Account to pay the Employer Economic
Development Grants, as and to the extent set forth in Section 3.2(1)
hereof. The Employer 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 Employer as the Employer
Economic Development Grants in any one year and under no
circumstances shall City in any manner be liable to Employer so long
as City timely applies the Developer Tax Increments actually collected
and held in the Giese III TIF Account (regardless of the amounts
thereof)to the payment of the Employer Economic Development Grants
to Employer or Developer as and to the extent described in this Section.
(2) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer
Tax Increments resulting from the termination of the annual Economic
Development Grants under this Section 3.2 hereof, for any purpose for which
such tax increment revenues may lawfully be used pursuant to the provisions
of the Urban Renewal Law, and City shall have no obligations to Developer
with respect to the use thereof.
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(3) All of City's obligations under this Agreement, including but not limited
to City's obligation to pay the Economic Development Grants to Employer or
Developer, shall be subject to City having completed all hearings and other
procedures required to amend the Urban Renewal Plan to describe the Urban
Renewal Project being undertaken in accordance with this Agreement.
3.3 Site Preparation. City reserves the right to approve the design and
specifications for any site preparation work. City shall not remove any dirt from the
Property prior to Closing, to the end that Developer may utilize dirt presently stored
on the Property in Developer's grading of the Property.
SECTION 4. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING.
4.1 Non-Appropriation.
(1) Notwithstanding anything in this Agreement to the contrary, the
obligation of City to pay any installment of the Economic Development Grants
from the pledged tax increment revenues shall be an obligation limited to
currently budgeted funds, and not a general obligation or other indebtedness
of City or a pledge of its full faith and credit within the meaning of any
constitutional or statutory debt limitation, and shall be subject in all respects to
the right of non-appropriation by the City Council of City as provided in this
Section. City may exercise its right of non-appropriation as to the amount of
the installments to be paid during any fiscal year during the term of this
Agreement without causing a termination of this Agreement. The right of non-
appropriation shall be exercised only by resolution affirmatively declaring City's
election to non-appropriate funds otherwise required to be paid in the next
fiscal year under this Agreement.
(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 payment in full of the
installments on the Economic Development Grants due and payable in that
future fiscal year, then City shall have no further obligation to Employer or
Developer for the payment of any installments due in that future fiscal year
which cannot be paid with the funds then appropriated for that purpose.
4.2 The right of non-appropriation reserved to City in this Section is intended by
the parties, and shall be construed at all times, so as to ensure that City's obligation
to pay future installments on the Economic Development Grants shall not constitute
a legal indebtedness of City within the meaning of any applicable constitutional or
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statutory debt limitation prior to the adoption of a budget which appropriates funds for
the payment of that installment or amount. In the event that any of the provisions of
this Agreement are determined by a court of competent jurisdiction to create, or result
in the creation of, such a legal indebtedness of City, the enforcement of the said
provision shall be suspended, and the Agreement shall at all times be construed and
applied in such a manner as will preserve the foregoing intent of the parties, and no
event of default shall be deemed to have occurred as a result thereof. If any provision
of this Agreement or the application thereof to any circumstance is so suspended, the
suspension shall not affect other provisions of this Agreement which can be given
effect without the suspended provision, and to this end the provisions of this
Agreement are severable.
SECTION 5. COVENANTS OF EMPLOYER.
5.1 Job Creation. During the term of this Agreement, Employer shall comply with
the following employment-related covenants for the Property:
(1) Employer represents that the number of fulltime equivalent (FTE) employees
employed by Employer at 7025 Chavenelle Road as of January 1, 2021 is Forty-Nine
(49). Employer shall create and maintain 10 additional FTE employees employed by
Employer by October 1, 2023 and during the remaining Term of this Agreement for a
total of Fifty-Nine (59) FTE employees at 7025 Chavenelle Road and the Facility. FTE
employees shall be calculated by adding fulltime and part-time employees together
using 2080 hours per year as a FTE employee.
(a) In the event that the certificate provided to City under Section 5.2
hereof on October 1, 2030 discloses that Employer does not as of that
date have at least Fifty-Nine (59) FTE employees employed by
Employer at 7025 Chavenelle Road and the Facility as provided
hereinabove, Employer shall pay to City, promptly upon written demand
therefor, an amount equal to $31,020.00 per job not created or
maintained ($310,200 divided by 10 FTE _ $31,020.00).
(b) Notwithstanding (a), City retains the right to begin withholding
semi-annual Employer Economic Development Grant amounts
beginning November 1, 2031 if the certificate provided to City under
Section 5.2 hereof on October 1, 2031 discloses that Employer as of
that date has failed to maintain 59 FTE employees employed by
Employer at 7025 Chavenelle Road and the Facility, but not in excess
of$310,200 (the amount of the Acquisition Grant). In the event that the
certificate provided to City under Section 5.2 hereof on October 1, 2032
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discloses that Employer does as of that date have at least Fifty-Nine
(59) FTE employees employed by Employer (2080 hours per year) as
provided hereinabove, City shall pay to Developer the amount of the
Employer Economic Development Grants withheld under this Section.
(2) In addition, for the FTE positions that Employer fails to create and
maintain for any year during the term of this Agreement, the semi-annual
Employer Economic Development Grants for such year under Section 3.2(1)
shall be reduced by the percentage that the number of such positions bears to
the total number of positions required to be maintained (59 FTEs) by this
Section 5.1. (For example, if Developer has 44 FTE employees employed by
Employer, the semi-annual Economic Development Grants to be paid for that
year would be reduced to 75% (44/59 employees) of the Tax Increment
Revenues received by City). The reduction of the semi-annual Economic
Development Grants shall be the City's sole remedy for the failure of
Developer to meet the job creation requirements of this subsection 5.1(2).
(3) Employer's job retention obligation under Section 5.1(1) terminates on
October 1, 2032 if Employer is in compliance with Section 5.1(1) on that date.
If Employer is not in compliance with Section 5.1(1) on October 1, 2032,
Employer is released from Employer's job retention obligation once it has paid
the penalty required by Section 5.1(1)(a).
5.2 Certification. To assist City in monitoring the performance of Employer
hereunder, as of October 1, 2023, and again as of October 1 of each year thereafter
during the term of this Agreement, a duly authorized officer of Employer shall certify
to City in a form acceptable to City (a) the number of FTE positions employed by
Employer at 7025 Chavenelle Road and the 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, Employer is
not or was not in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or the
giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during such period, or if the signer is
aware of any such default, event or Event of Default, said officer shall disclose in such
statement the nature thereof, its period of existence and what action, if any, has been
taken or is proposed to be taken with respect thereto. Such certificate shall be
provided not later than October 15, 2023, and by October 15 of each year thereafter.
Employer's certification obligations under this Section 5.2 terminate following the final
certification on October 1, 2032 (due by October 15, 2032).
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5.3 Books and Records. During the term of this Agreement, Developer and
Employer shall keep at all times proper books of record and account in which full, true
and correct entries will be made of all dealings and transactions of or in relation to
the business and affairs of Developer and Employer in accordance with generally
accepted accounting principles consistently applied throughout the period involved,
and Developer and Employer shall provide reasonable protection against loss or
damage to such books of record and account.
5.4 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
assessments payable with respect to all and any parts of the Property unless
Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
5.5 No Other Exemptions. During the term of this Agreement, Developer agrees
not to apply for any state or local property tax exemptions which are available with
respect to the Property or the Minimum Improvements located thereon that may now
be, or hereafter become, available under state law or city ordinance during the term
of this Agreement, including those that arise under lowa Code Chapters 404 and 427,
as amended.
5.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
from time to time at the request of City, furnish City with proof of insurance in
the form of a certificate of insurance for each insurance policy):
All risk builder's risk insurance, written on a Completed Value Form in
an amount equal to one hundred percent (100%) of the replacement
value when construction is completed.
(2) Upon completion of construction of the Minimum Improvements and up
to the Termination Date, Developer shall maintain, or cause to be maintained,
at its cost and expense (and from time to time at the request of City shall
furnish proof of insurance in the form of a certificate of insurance) all risk
property insurance against loss and/or damage to the Minimum Improvements
under an insurance policy written in an amount not less than the full insurable
replacement value of Minimum Improvements. The term "replacement value"
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shall mean the actual replacement cost of Minimum Improvements (excluding
foundation and excavation costs and costs of underground flues, pipes, drains
and other uninsurable items) and equipment, and shall be reasonably
determined from time to time at the request of City, but not more frequently
than once every three (3) years.
(3) Developer agrees to notify City immediately in the case of damage
exceeding $200,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. The
net proceeds of any such insurance (the Net Proceeds) shall be paid directly
to Developer as its interests may appear, and Developer shall forthwith repair,
reconstruct and restore the Minimum Improvements to substantially the same
or an improved condition or value as they existed prior to the event causing
such damage and, to the extent necessary to accomplish such repair,
reconstruction and restoration, Developer shall apply the Net Proceeds of any
insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any
mortgage encumbering title to the Property (as its interests may appear).
Developer shall complete the repair, reconstruction and restoration of
Minimum Improvements whether or not the Net Proceeds of insurance
received by Developer for such Purposes are sufficient.
5.7 Preservation of Propertv. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep,
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions. Nothing in this Agreement, however, shall be deemed to
alter any agreements between Developer or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
5.8 Non-Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of age,
color, familial status, gender identity, marital status, mental/physical disability,
national origin, race, religion/creed, sex, or sexual orientation.
5.9 Conflict of Interest. Developer and Employer agree that no member, officer or
employee of City, or its designees or agents, nor any consultant or member of the
governing body of City, and no other public official of City who exercises or has
exercised any functions or responsibilities with respect to the project during his or her
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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 or subcontract, or the proceeds thereof, for work to be perFormed in
connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during or after such person's tenure. In connection with this
obligation, Developer and Employer shall have the right to rely upon the
representations of any party with whom it does business and shall not be obligated
to perForm any further examination into such party's background.
5.10 Non-Transferability. During the Term of this Agreement, this Agreement may
not be assigned by Developer or Employer nor may any portion of the Property be
sold or otherwise transferred by Developer without the prior written consent of City,
which consent shall not be unreasonably withheld. City has no obligation to consent
to any assignment or sale.
5.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that they,
and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use
of the Property consistent with its current zoning is in full compliance with the
Urban Renewal Plan and Developer agrees to comply with any amendments
to the Urban Renewal Plan,) (however, Developer shall not have any liability
to City to the extent that a successor in interest shall breach this covenant and
City shall seek enforcement of this covenant directly against the party in
breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale, lease,
rental, use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof (however, Developer shall not have any
liability to City to the extent that a successor in interest shall breach this
covenant and City shall seek enforcement of this covenant directly against the
party in breach of same).
5.12 Release and Indemnification Covenants. Developer and Employer agree to
the following conditions of release and indemnification, except that each company
only agrees to indemnify the Indemnified Parties (defined below), with respect to the
negligence, misrepresentation, or misconduct of their own respective acts. Developer
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and Employer do not individually agree to any indemnification from conduct of another
party.
(1) Developer and Employer release City and the governing body
members, officers, agents, servants and employees thereof (hereinafter, for
purposes of this Section, the Indemnified Parties) from and covenants and
agrees that the Indemnified Parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the Indemnified Parties against any loss
or damage to property or any injury to or death of any person occurring at or
about or resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any willful
or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer and Employer agree to protect and defend the Indemnified Parties,
now or forever, and further agrees to hold the Indemnified Parties harmless,
from any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any violation
of any agreement or condition of this Agreement (except with respect to any
suit, action, demand or other proceeding brought by Developer or Employer
against City based on an alleged breach of any representation, warranty or
covenant of City under this Agreement and/or to enforce its rights under this
Agreement); or (2) the acquisition, construction, installation, ownership, and
operation of the Minimum Improvements or (3) the condition of the Property
and any hazardous substance or environmental contamination located in or on
the Property, caused and occurring after Developer takes possession of the
Property.
(3) The Indemnified Parties shall not be liable to Developer or Employer for
any damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or about
the Minimum Improvements due to any act of negligence of any person, other
than any act of negligence on the part of any such Indemnified Party or its
officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual capacity
thereof.
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(5) The provisions of this Section shall survive the termination of this
Agreement.
5.13 Compliance with Laws. Developer and Employer shall comply with all federal,
state, and local laws, rules and regulations relating to its businesses, other than laws,
rules and regulations for which the failure to comply with or the sanctions and
penalties resulting therefrom, would not have a material adverse effect on the
business, property, operations, financial or otherwise, of Developer or Employer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
6.1 Events of Default Defined. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all
real property taxes assessed with respect to the Minimum Improvements and
the Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement.
(3) Transfer of any interest by Developer in any portion of the Property or
the Minimum Improvements in violation of the provisions of this Agreement.
(4) Failure by Developer or Employer to substantially observe or perForm
any other material covenant, condition, obligation or agreement on its part to
be observed or performed under this Agreement.
6.2 Remedies on Default bv Developer. Whenever any Event of Default referred
to in Section 6.1 of this Agreement occurs and is continuing, City, as specified below,
may take any one or more of the following actions after the giving of written notice by
City to Developer (and the holder of any mortgage encumbering any interest in the
Property of which City has been notified of in writing) of the Event of Default, but only
if the Event of Default has not been cured within sixty (60) days following such notice,
or if the Event of Default cannot be cured within sixty (60) days and the Developer
does not provide assurances to City that the Event of Default will be cured as soon
as reasonably possible thereafter:
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(1) City may suspend its perFormance under this Agreement until it receives
assurances from the Developer, deemed adequate by City, that the Developer
will cure its default and continue its perFormance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all amounts
expended by City in connection with the funding of the Acquisition Grant to
Developer, and City may take any action, including any legal action it deems
necessary, to recover such amounts from the Developer;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments due
under this Agreement or to enforce perFormance and observance of any
obligation, agreement, or covenant under this Agreement.
6.3 Re-vestinq of Title. The parties understand that Title may be re-vested
in the City as specified below; except that no such right shall interfere or upset
Employer's occupancy of the Property during the term of its Lease as a result
of an event of default on the part of Developer. City shall honor the remaining
term of the Lease.
(1) Re-vestinq Title in City Upon Happeninq of Event Subsequent to
Convevance to Developer and Prior to Issuance of Certificate of Completion.
In the event that, subsequent to conveyance of the Property to Developer by
City and prior to receipt by Developer of the Certificate of Completion, but
subject to the terms of the mortgage granted by Developer to secure a loan
obtained by Developer from a commercial lender or other financial institution
to fund the acquisition of the Property or construction of Minimum
Improvements (First Mortgage), an Event of Default under Section 6.1 (1)
through (4)of this Agreement occurs and is not cured within the times specified
in Section 6.2, then City shall have the right to re-enter and take possession
of the Property and any portion of the Minimum Improvements thereon and to
terminate (and re-vest in City pursuant to the provisions of this Section 6.3
subject only to any superior rights in any holder of the First Mortgage) the
estate conveyed by City to Developer, it being the intent of this provision,
together with other provisions of this Agreement, that the conveyance of the
Property to Developer shall be made upon the condition that (and the Deed
24
shall contain a condition subsequent to the effect that), in the event of default
under Section 6.1 (1) through (4) on the part of Developer and failure on the
part of Developer to cure such default within the period and in the manner
stated herein, City may declare a termination in favor of City of the title and of
all Developer's rights and interests in and to the Property conveyed to
Developer, and that such title and all rights and interests of Developer, and
any assigns or successors in interests of Developer, and any assigns or
successors in interest to and in the Property, shall revert to City (subject to the
provisions of Section 6.3 of this Agreement), but only if the events stated in
Section 6.1 of this Agreement have not been cured within the time period
provided above, or, if the events cannot be cured within such time periods,
Developer does not provide assurance to City, reasonably satisfactory to City,
that the events will be cured as soon as reasonably possible. Notwithstanding
the foregoing, however, City agrees to execute a Subordination Agreement in
favor of Developer's first mortgage lender, in a form reasonably acceptable to
City and to Developer's first mortgage lender.
6.4 Resale of Reacquired Propertv; Disposition of Proceeds. Upon the re-vesting
in City of title to the Property as provided in Section 6.3 of this Agreement, City shall,
pursuant to its responsibility under law, use its best efforts, subject to any rights or
interests in such property or resale granted to any holder of a First Mortgage, to resell
the Property or part thereof as soon and in such manner as City shall find feasible
and consistent with the objectives of such law and of the Urban Renewal Plan to a
qualified and responsible party or parties (as determined by City in its sole discretion)
who will assume the obligation of making or completing Minimum Improvements or
such other improvements in their stead as shall be satisfactory to City and in
accordance with the uses specified for such the Property or part thereof in the Urban
Renewal Plan. Subject to any rights or interests in such property or proceeds granted
to any holder of a First Mortgage upon such resale of the Property the proceeds
thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on the
Development the Property, or any portion thereof, or any improvements
thereon, previously acquiesced in by City pursuant to this Agreement. If more
than one mortgage on the Property, or any portion thereof, or any
improvements thereon, has been previously acquiesced in by City pursuant to
this Agreement and insufficient proceeds of the resale exist to pay the principal
of, and interest on, each such mortgage in full, then such proceeds of the
2s
resale as are available shall be used to pay the principal of and interest on
each such mortgage in their order of priority, or by mutual agreement of all
contending parties, including Developer, or by operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred
by City, including but not limited to salaries of personnel, in connection with
the recapture, management and resale of the Property or part thereof(but less
any income derived by City from the Property or part thereof in connection with
such management); any payments made or necessary to be made to
discharge any encumbrances or liens (except for mortgage(s) previously
acquiesced in by the City) existing on the Property or part thereof at the time
of re-vesting of title thereto in City or to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due to obligations, default
or acts of Developer, its successors or transferees (except with respect to such
mortgage(s)), any expenditures made or obligations incurred with respect to
the making or completion of the Minimum Improvements or any part thereof
on the Property or part thereof, and any amounts otherwise owing to City
(including water and sewer charges) by Developer and its successors or
transferees; and
(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum
of the Purchase Price paid to City for the Property and (2) the cash actually
invested by such party in making any of the Minimum Improvements on the
Property.
6.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to City
is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy
given under this Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient.
6.6 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed to
waive any other concurrent, previous or subsequent breach hereunder.
26
6.7 Aqreement to Pav Attornevs' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by the
arbitrator, as the case may be, or may be enforced in a separate action brought for
that purpose. Such fees and costs of litigation shall be in addition to any other relief
that may be awarded.
6.8 Remedies on Default by Citv. If City defaults in the perFormance of this
Agreement, Developer or Employer 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 Employer, or to
enforce performance and observance of any obligation, agreement, or covenant of
City under this Agreement. Developer or Employer may suspend performance under
this Agreement until it receives assurances from City, deemed adequate by
Developer or Employer, that City will cure its default and continue its perFormance
under this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS.
7.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after having
been deposited in any U.S. Postal Service and sent by registered or certified mail,
postage prepaid, addressed as follows:
(1) If to Developer:
Giese Properties, LLC
2125 Kerper Boulevard
Dubuque, IA 52001
Phone: (563) 588-2023
Fax: (563) 556-8422
(2) If to Employer:
Giese Manufacturing Company, Inc.
2125 Kerper Boulevard
Dubuque, IA 52001
2�
Phone: (563) 588-2023
Fax: (563) 556-8422
With copy to:
Brian Kane
2100 Asbury Road Suite 2
Dubuque, IA 52001
563-582-7980
(3) If to City:
City Manager
50 W. 13th Street
Dubuque, lowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, lowa 52001
or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
7.2 Bindinq Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and Employer and their respective successors and
assigns.
7.3 Force Majeure. A party shall be excused from its obligations under this
Agreement if and to the extent and during such time as the party is prevented,
impeded, or hindered, unable to perForm its obligations or is delayed in doing so due
to events or conditions outside of the party's reasonable control and after the party
has taken reasonable steps to avoid or mitigate such event or its consequences (each
a "Force Majeure Event") including, without limitation in any way, as the result of any
acts of God, war, fire, or other casualty, riot, civil unrest, extreme weather conditions,
terrorism, strikes and/or labor disputes, pandemic, epidemic, quarantines,
government stay-at-home orders, municipal and other government orders, or other
matter beyond the control of such party. Upon the occurrence of a Force Majeure
2g
Event, the party incurring such Force Majeure Event will promptly give notice to the
other party identifying the Force Majeure Event, explaining how it impacts
performance and the estimated duration, identifying the relief requested, agreeing to
limit damages to the other party and to immediately resume performance upon
termination of the Force Majeure Event, and agreeing to supplement the notice as
more information becomes available, and thereafter the parties shall meet and confer
in good faith in order to identify a cure of the condition affecting its performance as
expeditiously as possible. No obligation to make a payment required by this
Agreement is excused by a Force Majeure Event. The nonperforming party shall not
be entitled to any damages or additional payments of any kind for any such delay.
7.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2033 (the Termination Date).
7.5 Execution By Facsimile. The parties agree that this Agreement may be
transmitted among them by email or facsimile machine. The parties intend that the
emailed or faxed signatures constitute original signatures and that an emailed or
faxed Agreement containing the signatures (original, emailed or faxed) of all the
parties is binding on the parties.
7.6 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit F in
the office of the Recorder of Dubuque County, Iowa, 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
and Employer has caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA
By:
Roy D. 136ol, Mayor
GIESE PROPERTIES, L.L.0
(DEVELOPER)
By:
Charle i Gie
s ie% President
By: � 1 0
Tilornas K Giese, Vice President
29
Adrienne N. Breitfelder, City Clerk
GIESE MANUFACTURING
COMPANY, INC.
(EMPLOYER)
30
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B-1 Plat
Exhibit B-2 Site Exhibit
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Deed
Exhibit F Memorandum of Development Agreement
Exhibit G City Certificate
Exhibit H Certificate of Completion
Exhibit I Opinion of Counsel to Employer
31
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13t"Street, Dubuque, IA 52001)
32
EXHIBIT B-1
PLAT
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36
EXHIBIT B-2
SITE EXHIBIT
37
38
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
39
Barry A.Lindahl,Esq.
Dubuque THE CITY OF
Senior Counsel �
Suite 330,Harbor View Place All-IUnencaCilY �UB E
300 Main Street
Dubuque,iowa 52001-6944 Masterpiece on the Mississippi
(563)583-4ll3 office �
(563)583-1040 fax zoo�•zoiz•zois
bales wciryofdubuque.org
(DATE)
RE:
Dear �
I have acted as counsel for the City of Dubuque, lowa, in connection with the execution
and delivery of a certain Development Agreement by and among Giese Properties, L.L.C.
(Developer), Giese Manufacturing Company, Inc. (Employer) and the City of Dubuque,
lowa (City) dated for reference purposes the day of , 20_
The City has duly obtained all necessary approvals and consents for its execution,
delivery and perFormance of this Agreement and has full power and authority to execute,
deliver and perForm its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
, 20_, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:tIs
40
41
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
42
Mayor and City Councilmembers
City Hall
13t" and Central Avenue
Dubuque IA 52001
Re: Development Agreement By and Among the City of Dubuque, lowa, Giese Properties,
L.L.C. and Giese Manufacturing Company, Inc.
Dear Mayor and City Councilmembers:
We have acted as counsel for Giese Properties, L.L.C., (Developer) in connection
with the execution and delivery of a certain Development Agreement (Development
Agreement) between Developer and the City of Dubuque, lowa (City) dated for reference
purposes the day of , 20_
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Developer is an lowa limited liability company with its principal place of
business at Dubuque, lowa and has full power and authority to execute, deliver and
perForm in full Development Agreement. The Development Agreement has been duly
and validly authorized, executed and delivered by Developer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid and
legally binding instrument of Developer enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally.
2. The execution, delivery and perFormance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer,
any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree,
order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. To the best of our knowledge, there are no actions, suits or proceedings
43
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.
We have examined such documents and certificates of public officials and officers
of the Developer as we have deemed necessary for the purposes of this opinion. As to
the existence of facts which are material to this opinion, we have relied upon certificates
of public officials, statements by officers and resolutions of the Members of the Developer.
In rendering our opinion, we have assumed (i) the legal capacity of all natural persons
and the capacity and corporate power of all parties to the documents examined by us
other than the Developer, (ii) the due authorization, execution and delivery of each
document examined by us, by all parties to such documents other than the Developer,
(iii) the genuineness of all signatures other than the signatures of the representatives of
the Developer, (iv) the authenticity of all documents submitted to us as originals; (v) the
conformity to original documents of all documents submitted to us as copies; and (vi) the
City has no knowledge, direct or through their counsel, which would render any of the
representations set forth herein inaccurate or incorrect. We have not made any
independent investigation to verify any assumptions made herein, and have not
undertaken any factual investigation into the business, properties, agreements or litigation
of the Developer for the purpose of rendering the opinions expressed herein. There may
exist matters of a factual nature which could have a bearing on our opinions expressed
herein, with respect to which we have not been consulted or are otherwise unaware.
Where used herein, the language "to the best of our knowledge" or language of similar
nature means to our actual knowledge with no duty to inquire further of any person or
document. Said language is intended to be limited to the actual knowledge of the
attorneys within our firm who have been directly involved in representing the Developer,
or whom we reasonably believe have knowledge of the affairs of the Developer. We have
assumed that all representations and warranties made by any party to the Development
Agreement are true and correct. We have examined the law, the resolutions of the
members of Developer, the Development Agreement, and such company proceedings of
the Developer and such other documents, certificates, instruments and matters as we
deem necessary to render this opinion.
The foregoing opinions are subject to:
(a) Equitable principles of general applicability (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, public policy,
equitable subordination and the possible unavailability of specific perFormance or
44
injunctive relief), regardless of whether considered in a proceeding in equity or at law or
whether codified by statute;
(b) The unenforceability of provisions purporting to waive rights, claims,
demands, liabilities or defenses to obligations, known or unknown, suspected or
unsuspected, where such waivers are contrary to any applicable law or against public
policy;
(c) The unenforceability, under certain circumstances, of provisions of
agreements to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not preclude
recourse to one or another remedy;
(d) The unenforceability under certain circumstances, of provisions which
purport to govern forum selection or consent to jurisdiction; and
(e) The potential to vary the terms of the Development Agreement on the basis
of parol evidence.
The opinions set forth herein are given as of the date hereof. We disclaim any
obligation to notify you or any other person after the date of this letter if any change in
fact and/or law should change our opinion with respect to any matters set forth herein.
This opinion is for your benefit only and may not be quoted in whole or in part or otherwise
referred to in any documents, or delivered to or filed with any person or entity, or relied
upon by any other person or entity, without our prior written consent.
Very truly yours,
45
EXHIBIT E
DEED
46
Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
Giese Properties, LLC
2125 Kerper Boulevard
Dubuque, IA 52001
Phone: (563) 588-2023
Fax: (563) 556-8422
SPECIAL WARRANTY DEED
The City of Dubuque, lowa, a municipal corporation of the State of lowa (Grantor),
in consideration of the Grantee named below undertaking the obligations of the Developer
under the Development Agreement described below and the sum of Six Hundred Twenty
Thousand Four Hundred and no/100 Dollars ($620,000.00)in hand paid, and other good
and valuable consideration, and pursuant to the authority of Chapter 403, Code of lowa,
does hereby GRANT, SELL AND CONVEY unto Giese Properties, L.L.C., an lowa limited
liability company (Grantee), the following described parcel(s) situated in the County of
Dubuque, State of lowa, to wit (the Property):
Lot 1 of Dubuque Industrial Center North First Addition, in the City of Dubuque,
I owa
This Deed is exempt from transfer tax pursuant to lowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of the City
Council of the City of Dubuque adopted the day of , 20_, the terms
and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated the
47
day of , 20_ (the Agreement), a memorandum of which was recorded
on the day of , 20_, in the records of the Recorder of Dubuque County,
lowa, Instrument Number -
Promptly after completion of the improvements and payment in full of the Purchase
Price for the Property in accordance with the provisions of the Agreement, Grantor will
furnish Grantee with a Certificate of Completion in the form set forth in the Agreement.
Such certification by Grantor shall be, and the certification itself shall so state, a
conclusive determination of satisfaction and termination of the agreements and covenants
of the Agreement and of this Deed with respect to the obligation of Grantee, and its
successors and assigns, to construct improvements and the dates for the beginning and
completion thereof and pay the Purchase Price for the Property, it being the intention of
the parties that upon the granting and filing of the Certificate of Completion that all
restrictions, re-vesting of title, and reservations of title contained in this Deed be forever
released and terminated and that any remaining obligations of Grantee pursuant to the
Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them to be
recorded with the County Recorder of Dubuque, lowa. If Grantor shall refuse or fail to
provide any such certification in accordance with the provisions of the Agreement and this
Deed, Grantor shall, within twenty days after written request by Grantee, provide Grantee
with a written statement indicating in adequate detail in what respects Grantee has failed
to complete the improvements in accordance with the provisions of the Agreement or is
otherwise in default, and what measures or acts will be necessary, in the opinion of
Grantor, for Grantee to take or perForm in order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and Grantee
herein shall fail to cure such default within the period and in the manner stated in the
Agreement, then Grantor shall have the right to re-enter and take possession of the
Property and to terminate and re-vest in Grantor the estate conveyed by this Deed to
Grantee, its assigns and successors in interest, in accordance with the terms of the
Agreement.
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this of , 20_ at Dubuque, lowa.
48
CITY OF DUBUQUE IOWA
Attest: By:
Roy D. Buol, Mayor
By:
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 20_, before me a Notary Public in and
for said County, personally appeared Roy D. Buol and Adrienne N. Breitfelder to me
personally known, who being duly sworn, did say that they are the Mayor and City Clerk,
respectively of the City of Dubuque, lowa, a Municipal Corporation, created and existing
under the laws of the State of lowa, and that the seal affixed to the foregoing instrument
is the seal of said Municipal Corporation, and that said instrument was signed and sealed
on behalf of said Municipal Corporation by authority and resolution of its City Council and
said Mayor and City Clerk acknowledged said instrument to be the free act and deed of
said Municipal Corporation by it voluntarily executed.
Notary Public in and for Dubuque County, lowa
49
EXHIBIT F
MEMORANDUM OF DEVELOPMENT AGREEMENT
so
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, lowa, an lowa
municipal corporation, of Dubuque, lowa, and
GIESE PROPERTIES, L.L.C., and GIESE MANUFACTURING COMPANY, INC.
was made regarding the following described premises:
Lot 1 of Dubuque Industrial Center North First Addition, in the City of Dubuque, lowa
The Development Agreement is dated for reference purposes the day of
, 20_, and contains covenants, conditions, and restrictions concerning the
sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of
the Development Agreement, together with any amendments thereto, is in the possession
of the City of Dubuque and may be examined at its offices as above provided.
Dated this day of , 20_
CITY OF DUBUQUE, IOWA
si
By:
Barry A. Lindahl, Esq., 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 Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
lowa and that said instrument was signed 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
s2
EXHIBIT G
CITY CERTIFICATE
53
DUbuqu� City Manager's Office
THE CITY OF � City Hall
NI AmG9C8Clty 50 West 13th Street
D `! L E 1 f Dubuque,Iowa 52001-4864
I I (563)589-4110 office
(563)589-4149 fax
Maste�piece on the Mississippi 2Q�Z ctymgr@cityofdubuque.org
(DATE)
Re: Development Agreement By and Among the City of Dubuque, lowa, Giese Properties,
L.L.C. and Giese Manufacturing Company, Inc.
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 Development Agreement by and
among Giese Properties, L.L.C., (Developer), and Giese Manufacturing Company, Inc.
(Employer), and the City of Dubuque, lowa (City) dated for reference purposes the
day of , 20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
the cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re-align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against
the Property.
54
(3) All leases, contracts, licenses, and permits between City and third parties
in connection with the maintenance, use, and operation of the Property have been
provided to Developer and City has provided true and correct copies of all such
documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public roadway
for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments or other proceedings relating to fire, building, zoning, air
pollution or health violations as they relate to the Property of which it has actual
notice. The Property is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations. The Property is
currently zoned PUD and Developer's intended use of the Property as a corporate
office/industrial facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been furnished
to the Property or will be made prior to the Closing Date so that no lien for labor
performed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and perFormance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any mortgage,
bond, indenture, agreement, contract, license, or other instrument or obligation to
which City is a party or by which either the City or the Property being conveyed are
bound, nor shall the execution, delivery and perFormance of this Agreement violate
any statute, regulation,judgment, writ, injunction or decree of any court threatened
or entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
ss
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property that shall in any way be
binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the
Property, and to City's knowledge after reasonable investigation with respect to
the time before City owned or occupied the Property, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property, which materials, if known to be present,
would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as an
industrial manufacturing facility adjoin the Property and Developer shall have the
right to connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
Sincerely,
56
Michael C. Van Milligen
City Manager
MCVM:jh
s�
EXHIBIT H
CERTIFICATE OF COMPLETION
sg
Prepared By: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
Return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, lowa, a municipal corporation (the "Grantor"), by
a Special Warranty Deed (the "Deed") recorded on [Date] as Instrument Number [Insert
Number] in the office of the County Recorder of Dubuque County, State of lowa, has
conveyed to Giese Properties, L.L.C. (the "Grantee"), in accordance with a Development
Agreement dated as of [Date], by and among the Grantor, and the Grantee (collectively,
the "Agreement"), certain real property located within the Dubuque Industrial Center
Economic Development District of the Grantor and as more particularly described as
follows:
Lot 1 of Dubuque Industrial Center North First Addition, in the City of Dubuque, lowa
(the "Property"); and
WHEREAS, said Deed incorporated and contained certain covenants and
conditions with respect to the development of the Property, and obligated the Grantee to
construct certain Minimum Improvements and pay for the Property in accordance with the
Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements and
payment for the Property in a manner deemed sufficient by the Grantor to permit the
execution and recording of this certification; and
NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify
that all covenants and conditions of the Deed and the Agreement with respect to the
obligations of the Grantee, and its successors and assigns, to construct the Minimum
Improvements on the Property and pay for the same have been completed and performed
by the Grantee to the satisfaction of the Grantor and such covenants and conditions are
hereby terminated.
The Recorder of Dubuque County is hereby authorized to accept for recording and
s9
to record the filing of this instrument, to be a conclusive determination of the satisfaction
of the covenants and conditions of said Deed and the Agreement which would have
resulted in a forFeiture by the Grantee and right of the Grantor to re-enter and take
possession of the Property as set forth in said Deed and the Agreement if such covenants
and conditions had not been satisfied, and that said Deed and the Agreement shall
otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen, City Manager
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 20 , before me, the undersigned, a Notary
Public in and for the State of lowa, personally appeared Michael C. Van Milligen, to me
personally known, who, being by me duly sworn, did say that he is the City Manager of
the City of Dubuque, lowa, a municipal corporation, and that the instrument was signed
on behalf of the corporation, and Michael C. Van Milligen acknowledged the execution of
the instrument to be his voluntary act and deed.
Notary Public in and for said State
60
EXHIBIT I
OPINION OF EMPLOYER'S COUNSEL
61
Mayor and City Councilmembers
City Hall
13t" and Central Avenue
Dubuque IA 52001
Re: Development Agreement By and Among the City of Dubuque, lowa, Giese Properties,
L.L.C. (Developer), and Giese Manufacturing Company, Inc. (Employer)
Dear Mayor and City Councilmembers:
We have acted as counsel for Giese Manufacturing Company, Inc., (Employer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) among Giese Properties, L.L.C. (Developer), and Giese
Manufacturing Company, Inc. (Employer) and the City of Dubuque, lowa (City) dated for
reference purposes the day of , 20_
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Employer is a corporation organized and existing under the laws of the State
of lowa and has full power and authority to execute, deliver and perForm in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Employer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Employer 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 Employer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Employer, any
indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Employer is a party or by which Employer's
property is bound or subject.
62
3. To the best of our knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting Employer 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 Employer or which in any
manner raises any questions affecting the validity of the Agreement or the Employer's
ability to perForm Employer's obligations thereunder.
We have examined such documents and certificates of public officials and officers
of the Employer as we have deemed necessary for the purposes of this opinion. As to
the existence of facts which are material to this opinion, we have relied upon certificates
of public officials, statements by officers and resolutions of the Board of Directors of the
Employer. In rendering our opinion, we have assumed (i) the legal capacity of all natural
persons and the capacity and corporate power of all parties to the documents examined
by us other than the Employer, (ii) the due authorization, execution and delivery of each
document examined by us, by all parties to such documents other than the Employer, (iii)
the genuineness of all signatures other than the signatures of the representatives of the
Employer, (iv) the authenticity of all documents submitted to us as originals; (v) the
conformity to original documents of all documents submitted to us as copies; and (vi) the
City has no knowledge, direct or through their counsel, which would render any of the
representations set forth herein inaccurate or incorrect. We have not made any
independent investigation to verify any assumptions made herein, and have not
undertaken any factual investigation into the business, properties, agreements or litigation
of the Employer for the purpose of rendering the opinions expressed herein. There may
exist matters of a factual nature which could have a bearing on our opinions expressed
herein, with respect to which we have not been consulted or are otherwise unaware.
Where used herein, the language "to the best of our knowledge" or language of similar
nature means to our actual knowledge with no duty to inquire further of any person or
document. Said language is intended to be limited to the actual knowledge of the
attorneys within our firm who have been directly involved in representing the Employer,
or whom we reasonably believe have knowledge of the affairs of the Employer. We have
assumed that all representations and warranties made by any party to the Development
Agreement are true and correct. We have examined the law, the resolutions of the Board
of Directors of Employer, the Development Agreement, and such company proceedings
of the Employer and such other documents, certificates, instruments and matters as we
deem necessary to render this opinion.
The foregoing opinions are subject to:
63
(a) Equitable principles of general applicability (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, public policy,
equitable subordination and the possible unavailability of specific perFormance or
injunctive relief), regardless of whether considered in a proceeding in equity or at law or
whether codified by statute;
(b) The unenforceability of provisions purporting to waive rights, claims,
demands, liabilities or defenses to obligations, known or unknown, suspected or
unsuspected, where such waivers are contrary to any applicable law or against public
policy;
(c) The unenforceability, under certain circumstances, of provisions of
agreements to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not preclude
recourse to one or another remedy;
(d) The unenforceability under certain circumstances, of provisions which
purport to govern forum selection or consent to jurisdiction; and
(e) The potential to vary the terms of the Development Agreement on the basis
of parol evidence.
The opinions set forth herein are given as of the date hereof. We disclaim any
obligation to notify you or any other person after the date of this letter if any change in
fact and/or law should change our opinion with respect to any matters set forth herein.
This opinion is for your benefit only and may not be quoted in whole or in part or otherwise
referred to in any documents, or delivered to or filed with any person or entity, or relied
upon by any other person or entity, without our prior written consent.
Very truly yours,
64
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:
04/09/2021
and for which the charge is 118.15
Subscribed to before me, a Notary Pub is in and for
Dubuque County, Iowa,
this 9th day of April, 2021
Notary Public in and for Dubuque County, Iowa.
•-` " r .,. SH,AROM W'EL,BaRN
Ccn/m1wn s�a�a�Fm M��utmbW Wy4�0�0
C Y NY Ci MML EXP- X'Oy 1k 2Mfp
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 19th
day of April, 2021, at 6:30 p.m. Due to the ongoing COVID-19
pandemic, the City Council will meet virtually through
GoToMeeting. The official agenda will be posted on April 16,
2021 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 a Development Agreement by and among the City of
Dubuque, Iowa, Giese Properties, L.L.C., and Giese
Manufacturing Company, Inc., a copy of which is now on file at
the Office of the City Clerk, City Hall, 50 W. 13th Street,
Dubuque, Iowa, 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 Giese Manufacturing Company,
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 $495,000.
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.
The City Council may at this meeting or at any adjournment
thereof, authorize such land disposition and the issuance of
the Urban Renewal Tax Increment Revenue Grant Obligations or
abandon the proposal. By order of the City Council said
hearing and appeals therefrom shall be held in accordance with
and governed by the provisions of Section 403.9 of the Code of
Iowa.
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.
Published by order of the City Council given on the 5th day
of April, 2021.
Adrienne N. Breitfelder, City Clerk
RESOLUTION NO. 98-21
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL
ESTATE BY SALE TO GIESE PROPERTIES, L.L.C. PURSUANT TO A
DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, GIESE
PROPERTIES, L.L.C., AND GIESE MANUFACTURING COMPANY, 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 TO GIESE MANUFACTURING COMPANY, INC
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 1 of Dubuque Industrial Center North First Addition, in
the City of Dubuque, Iowa
(the Property)
and
Whereas, City, Giese Properties, L.L.C., and Giese
Manufacturing Company, Inc. have entered into a Development
Agreement, subject to the approval of the City Council,
pursuant to which City will convey the Property to Giese
Properties, L.L.C., and Giese Properties, L.L.C. will
construct on the Property certain Improvements described in
the Development Agreement; and
Whereas, the City Council has tentatively determined that it
would be in the best interests of City to approve the
Development Agreement, including the conveyance of the
Property to Giese Properties, L.L.C.; and
Whereas, the Development Agreement provides for the issuance
by City of economic development grants to Giese Manufacturing
Company, Inc., referred to therein as Urban Renewal Tax
Increment Revenue Grant Obligations, payable from the tax
increment revenues collected in respect of the Improvements to
be constructed by Giese Properties, L.L.C. in accordance with
the 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 1. "The City of Dubuque intends to dispose of its
interest in the foregoing -described Property by Deed to Giese
Properties, L.L.C. pursuant to the proposed 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 19th day of April, 2021 at 6:30
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 execution of the Development Agreement relating
thereto with Giese Properties, L.L.C. and Giese Manufacturing
Company, 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 Giese Manufacturing
Company, Inc., pursuant to the Development Agreement under the
terms and conditions of said Urban Renewal Plan. It is
expected that the aggregate amount of the Tax Increment
Revenue obligations will be approximately $495,000
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 5th day of April, 2021.
Roy D. Buol, Mayor
Attest: Adrienne N. Breitfelder, City Clerk
It 4/9