44 Main LLC Development Agreement_Setting Hearing for 10 18 10Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
Dubuque
katri
All- America City
11111,
2007
SUBJECT: Setting a Public Hearing for a Development Agreement with 44 Main, LLC
to Redevelop Property at 44 Main Street
DATE: October 11, 2010
Economic Development Director Dave Heiar recommends the City Council set a public
hearing for October 18, 2010 to approve a Development Agreement on the property
located at 44 Main Street.
The key elements of the Development agreement are:
1) The project will receive $240,000 in incentives through the Downtown Housing
Incentive Program.
2) 44 Main, LLC must redevelop 44 Main Street at a cost of approximately
$4,000,000 by no later than July 1, 2011.
3) 44 Main, LLC will receive a 15 year TIF in the form of a $300,000 TIF forgivable
loan. Should 44 Main, LLC repay the loan by July 1, 2012, the TIF benefits will
change to semi - annual tax rebates on the value of the assessable improvements.
4) A Downtown Rehabilitation Loan Program loan of $300,000. The expected year
of funding this is FY2024.
5) Facade, Planning and Design, and Financial Consultant grants will be made to
the project. The expected year of funding these grants is FY2012.
This project will redevelop the property located at 44 Main Street into 24 apartments.
This is the same developer that renovated the 40 Main, LLC project, which has
delivered 18 much needed rental units in the downtown area. All of these residential
units are leased.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
Masterpiece on the Mississippi
2) 44 Main, LLC must redevelop 44 Main Street at a cost of approximately
$4,000,000 by no later than July 1, 2011.
Dubuque
AII•America City
1
2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT: Setting a Public Hearing for a Development Agreement with 44 Main,
LLC to redevelop property at 44 Main Street
DATE: October 5, 2010
INTRODUCTION
This memorandum presents for City Council consideration a Resolution which sets a
public hearing for October 18, 2010 on entering into a Development Agreement on the
property located at 44 Main Street.
BACKGROUND
City staff has worked with 44 Main, LLC. to formulate a funding package to redevelop
the property located at 44 Main Street.
These are the same developers who renovated the 40 Main, LLC project, which has
delivered 18 much needed rental units in the downtown area. All of these residential
units are leased. The developers are working on securing a tenant for the first floor of
this building.
44 Main, LLC plans to invest $4,000,000 in redeveloping the building into 24 apartments
within the building.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
redevelopment of the property.
The Development Agreement requires the redevelopment of the property located at 44
Main Street into twenty -four (24) apartments. The key elements of the Development
Agreement include the following:
1) The project will receive $240,000 in incentives through the Downtown Housing
Incentive Program. .
3) 44 Main, LLC will receive a 15 year TIF in the form of a $300,000 TIF forgivable
loan. Should 44 Main, LLC repay the loan by July 1, 2012, the TIF benefits will
change to semi - annual tax rebates on the value of the assessable improvements.
4) A Downtown Rehabilitation Loan Program loan of $300,000. The expected year
of funding this is FY2024.
5) Fagade, Planning and Design, and Financial Consultant grants will be made to
the project. The expected year of funding these grants is FY2012.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council set a public hearing on the Proposition to issue not to
exceed $350,000 of urban renewal tax increment obligations to 44 Main, LLC for the
purpose of redeveloping the building located at 44 Main Street as detailed in the
attached Development Agreement.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F: \USERS \Econ Dev \44 Main \Development Agreement\20101006 44 Main Memo Setting Public Hearing.doc
NOTICE AND CALL OF PUBLIC MEETING
(This Notice to be posted)
Governmental Body: The City Council of Dubuque, Iowa.
Date of Meeting: October 12, 2010
Time of Meeting: 5:00 o'clock P..M.
Place of Meeting: City Hall — Conference Room B, 50 West 13th Street,
Dubuque, Iowa.
PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental
body will meet at the date, time and place above set out. The tentative agenda for said
meeting is as follows:
Not to exceed $350,000 Urban Renewal Tax Increment Revenue Notes.
X Resolution fixing date for a meeting on the proposition to issue.
Such additional matters as are set forth on the additional one page(s) attached hereto.
This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of
Iowa, and the local rules of said governmental body.
ity Clerk, Dubuque, Iowa
1
October 13, 2010
The City Council of Dubuque, Iowa, met in Special session, in the Historic
Federal Building, 350 West 6th Street, Dubuque, Iowa, at 5:00 o'clock P.M., on the above
date. There were present Mayor Roy D. Buol in the chair, and the following named
Council Members:
Present: Karla Braig, Joyce Connors, Ric Jones, Kevin Lynch, David Resnick
Absent: Dirk Voetberg
2
Council Member Joyce Connors introduced the following Resolution entitled
"RESOLUTION FIXING DATE FOR A MEETING ON THE PROPOSITION OF THE
ISSUANCE OF NOT TO EXCEED $350,000 URBAN RENEWAL TAX INCREMENT
REVENUE NOTES OF DUBUQUE, IOWA, AND PROVIDING FOR PUBLICATION
OF NOTICE THEREOF ", and moved that the same be adopted. Council Member Karla
Braig seconded the motion to adopt. The roll was called and the vote was,
AYES: Braig, Buol, Connors, Jones, Lynch, Resnick
NAYS: None
Whereupon, the Mayor declared the resolution duly adopted as follows:
RESOLUTION NO. 395-10
RESOLUTION FIXING DATE FOR A MEETING ON THE
PROPOSITION OF THE ISSUANCE OF NOT TO EXCEED $350,000
URBAN RENEWAL TAX INCREMENT REVENUE NOTES OF
DUBUQUE, IOWA, AND PROVIDING FOR PUBLICATION OF
NOTICE THEREOF
WHEREAS, it is deemed necessary and advisable that the City of Dubuque, Iowa
should issue Urban Renewal Tax Increment Revenue Notes to the amount of not to
exceed $350,000, as authorized by Section 403.9 of the Code of Iowa, for the purpose of
providing funds to pay costs of carrying out a project as hereinafter described; and
WHEREAS, Section 403.9 sets forth the procedural action required to be taken
before said Urban Renewal Tax Increment Revenue Notes may be issued, and it is
therefore necessary that the action hereinafter described be taken and that the Clerk
publish a notice of the proposal and of the time and place of the meeting at which the
Council proposes to take action thereon and to receive oral and /or written objections from
any resident or property owner of said City to such action.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
3
Section 1. That this Council meet in the Historic Federal Building, 350 West 6th
Street, Dubuque, Iowa, at 6:30 o'clock P.M., on the 18 day of October, 2010, for the
purpose of taking action on the matter of the issuance of not to exceed $350,000 Urban
Renewal Tax Increment Revenue Notes, the proceeds of which will be used to provide
funds to pay costs of aiding in the planning, undertaking and carrying out of urban
renewal project activities under the authority of Chapter 403 of the Code of Iowa and the
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District, including those costs associated with the funding of economic development
grants and loans to 44 Main, LLC, an Iowa limited liability company, under the terms of
a Development Agreement between the City of Dubuque and 44 Main, LLC, as the same
may be amended from time to time, and the funding of related reserves and payment of
capitalized interest and the costs of issuance of the Notes.
Section 2. That the Clerk is hereby directed to cause at least one publication to be
made of a notice of said meeting, in a legal 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 clear days nor more than twenty days before the date
of said public meeting on the issuance of said obligations.
Section 3. The notice of the proposed action to issue said Urban Renewal Tax
Increment Revenue Notes shall be in substantially the following form:
4
NOTICE OF MEETING OF THE COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE MATTER OF THE PROPOSED
ISSUANCE OF NOT TO EXCEED $350,000 URBAN RENEWAL TAX
INCREMENT REVENUE NOTES OF SAID CITY, AND THE
HEARING ON THE ISSUANCE THEREOF
PUBLIC NOTICE is hereby given that the Council of the City of Dubuque, Iowa,
will hold a public hearing on the 18 day of October, 2010, at 6:30 o'clock P.M., in the
Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at which meeting the
Council proposes to take additional action for the issuance of not to exceed $350,000
Urban Renewal Tax Increment Revenue Notes in order to provide funds to pay costs of
aiding in the planning, undertaking and carrying out of urban renewal project activities
under the authority of Chapter 403 of the Code of Iowa and the Amended and Restated
Urban Renewal Plan for the Greater Downtown Urban Renewal District, including those
costs associated with the funding of economic development grants and loans to 44 Main,
LLC, an Iowa limited liability company, under the terms of a Development Agreement
between the City of Dubuque and 44 Main, LLC, as the same may be amended from time
to time, and the funding of related reserves and payment of capitalized interest and the
costs of issuance of the Notes.
At the above meeting the Council shall receive oral or written objections from any
resident or property owner of said City to the above action. After all objections have
been received and considered, the Council will at this meeting or at any adjournment
thereof, take additional action for the issuance of said Urban Renewal Tax Increment
Revenue Notes or will abandon the proposal to issue said obligations. 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.
This notice is given by order of the Council of Dubuque, Iowa, as provided by
Section 403.9 of the Code of Iowa.
Dated this
day of , 2010.
City Clerk of Dubuque, Iowa
(End of Notice)
5
ATTEST:
PASSED AND APPROVED this 12 day of October, 2010.
Mayor
A L,
STATE OF IOWA
COUNTY OF DUBUQUE
I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is
a true and complete copy of the portion of the corporate records of said Municipality
showing proceedings of the Council, and the same is a true and complete copy of the
action taken by said Council with respect to said matter at the meeting held on the date
indicated in the attachment, which proceedings remain in full force and effect, and have
not been amended or rescinded in any way; that meeting and all action thereat was duly
and publicly held in accordance with a notice of meeting and tentative agenda, a copy of
which was timely served on each member of the Council and posted on a bulletin board
or other prominent place easily accessible to the public and clearly designated for that
purpose at the principal office of the Council (a copy of the face sheet of said agenda
being attached hereto) pursuant to the local rules of the Council and the provisions of
Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at
least twenty -four hours prior to the commencement of the meeting as required by said
law and with members of the public present in attendance; I further certify that the
individuals named therein were on the date thereof duly and lawfully possessed of their
respective city offices as indicated therein, that no Council vacancy existed except as may
be stated in said proceedings, and that no controversy or litigation is pending, prayed or
threatened involving the incorporation, organization, existence or boundaries of the City
or the right of the individuals named therein as officers to their respective positions.
WITNESS my hand and the seal of said Municipality hereto affixed this 13 day
of October, 2010.
SEAL
comelll 671070 /Word \10422
CERTIFICATE
) SS
ity Clerk, Dubuque, Iowa
7
CIG -3
9/91
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
44 MAIN, L.L.C.
AND
44 MAIN SLM, INC.
THIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposes the
day of , 2010 is made and entered into by and between the City of
Dubuque, Iowa (City), 44 Main, L.L.C. (Developer) and 44 Main SLM, Inc. (an affiliate of
Developer).
WHEREAS, Developer is the owner of the following described real estate (the
Property):
Lot 12, Lot 13, Lot 14 and Lot 15 of the West Half of Block 1, Dubuque Harbor Company's
Addition to the City of Dubuque, Iowa according to the recorded plat thereof, except that •
part of lot 12 deeded to the City of Dubuque, by Warranty Deed recorded as Instrument
No.5316 -1988, subject to easements of record; and
WHEREAS, the Property is located in the Greater Downtown Urban Renewal District
(the District) which has been so designated by City Council Resolution 393 -09 as a slum
and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer has undertaken the redevelopment of a vacant building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (Project) to create Twenty -
Four market -rate rental housing units; and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
October 5, 2009, City has the authority to enter into contracts and agreements to
implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
1
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement, City hereby represents and warrants to Developer that to
the best of City's knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
2
such representations and warranties had been made on and as of the Closing Date
which representations and warranties shall continue and survive the Closing Date.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is in
full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to the City, at time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
• with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of organization or the operating agreement of Developer or any contractual
restriction, evidence of indebtedness, agreement or instrument of whatever nature
to which Developer is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
3
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
(8) No member of Developer owns or has an interest in any property in the city
of Dubuque which is in violation of any provision of the City of Dubuque Code of
Ordinances
(9) Developer will not apply for or utilize Low - Income Housing Tax Credits or any
other program which places income restrictions on the residential tenants within the
Project.
1.3 Closing. The closing shall take place on the Closing Date which shall be the 1 day
of November, 2010, or such other date as the parties shall agree in writing but in no event
shall the Closing Date be later than the 31 day of December, 2010. Consummation of the
closing shall be deemed an agreement of the parties to this Agreement that the conditions
of closing shall have been satisfied or waived.
1.4 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer shall have the right to terminate this Agreement at anytime prior
to the consummation of the closing on the Closing Date if Developer determines in
its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
(5) Developer's counsel shall issue a legal opinion to the City confirming the
representations contained herein in the form attached hereto as Exhibit B.
4
1.5 City's Obligations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer will make a capital investment of not
less than four million dollars ($4,000,000.00) to improve the Property (the Minimum
Improvements). These Minimum Improvements include creating twenty -four (24)
apartments for market -rate rental within the building.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban Renewal
Plan, this Agreement, and all applicable state and local laws and regulations, including but
not limited to any covenants, conditions, restrictions, reservations, easements, liens and
charges, recorded in the records of Dubuque County, Iowa. Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to
the improvements to be constructed by Developer on the Property. All work with respect to
the Minimum. Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2.4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within thirty (30) days after
the Closing Date, and shall be substantially completed by July 1, 2011. The time frames
for the performance of these obligations shall be suspended due to unavoidable delays
meaning delays, outside the control of the party claiming its occurrence in good faith, which
are the direct result of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other casualty to the
Minimum Improvements, litigation commenced by third parties which, by injunction or other
similar judicial action or by the exercise of reasonable discretion directly results in delays,
or acts of any federal, state or local government which directly result in extraordinary
delays. The time for performance of such obligations shall be extended only for the period
of such delay.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an appropriate
instrument so certifying. Such certification (the Certificate of Completion) shall be in
recordable form and shall be a conclusive determination of the satisfaction and termination
of the agreements and covenants in this Agreement.
5
SECTION 3. CITY PARTICIPATION
3.1 Downtown Housing Incentive.
(1) City agrees to provide to 44 Main SLM, Inc., an affiliate of Developer, on the
terms and conditions set forth herein a grant in the amount of Two Hundred Forty
Thousand Dollars ($240,000.00) (the Grant) that shall consist of Incentive Program
funds.
(2) Grant funds shall be disbursed to 44 Main SLM, Inc. by City and 44 Main
SLM, Inc. shall make a capital contribution in an amount equal to such funds to
Developer and Developer shall use such funds for Qualifying Project Expenses as
defined in the Grant Agreement for amounts not in excess of the total sum in
Section 3.1. It is expressly understood that all funds under this Agreement shall be
paid by 44 Main SLM, Inc. to Developer and be used by Developer only for the
purpose of paying the Qualifying Project Expenses set forth in such written
requests.
(3) Grant funds will be disbursed to 44 Main SLM, Inc. after City issuance of a
Certificate of Occupancy for the Project. Prior to the disbursement of any funds, 44
Main SLM, Inc. shall provide evidence satisfactory to City that the improvements
have been completed in accordance with the plans and other documentation
submitted to City with the application.
The Grant funds shall be disbursed in phases if Developer obtains a Certificate of
Occupancy and evidence satisfactory to the City that the improvements have been
completed in accordance with the plans and other documentation submitted to the
City as to a portion of the Project. For example, if Developer completes eight of the
twenty -four units comprising the Project, obtains a Certificate of Occupancy as to
such eight units and provides the other documentation required above, City shall
disburse $80,000 of the Grant funds to 44 Main SLM, Inc., reserving the remaining
$160,000 for future phases of the Project.
3.2 Economic Development Incentives to Developer.
1) Loan. For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the urban renewal plan for the Project
Area and the Urban Renewal Law, City agrees, subject to Developer being and
remaining in compliance with the terms of this Agreement, to make an Economic
Development Loan to the Developer in the amount of $300,000. The full amount of
the Economic Development Loan shall be paid to the Developer on October 26,
2010, subject to the Developer being in compliance with the terms of this
Agreement on said date. The Developer shall repay the principal of said Economic
Development Loan, together with interest at the rate of 6% percent per annum, on
or before July 1, 2012. Developer's failure to repay the Economic Development
Loan, with interest, on or before July 1, 2012 shall constitute failure of a condition
precedent to the making of Economic Development Grants under Section 3.2(2)
and Developer's right to such Economic Development Grants shall terminate without
6
written notice or time for cure upon failure to meet such condition precedent.
Notwithstanding anything herein to the contrary, forfeiture of the Economic
Development Grants shall be City's sole and exclusive remedy in the event
Developer fails to pay the Loan provided herein on or before July 1, 2012.
2). Grants. For and in consideration of Developer's obligations hereunder, and
in furtherance of the goals and objectives of the urban renewal plan for the Project
Area and the Urban Renewal Law, City agrees, subject to Developer being and
remaining in compliance with the terms of this Agreement, and subject to the
condition precedent that the Developer has made full repayment of principal and
interest of the Economic Development Loan to the City under subsection 1 on or
before July 1, 2012, to make thirty (30) consecutive semi - annual payments (such
payments being referred to collectively as the Economic Development Grants) to
Developer as follows:
November 1, 2012
November 1, 2013
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
November 1, 2019
November 1, 2020
November 1, 2021
November 1, 2022
November 1, 2023
November 1, 2024
November 1, 2025
November 1, 2026
May 1,2013
May 1,2014
May 1,2015
May 1,2016
May 1,2017
May 1,2018
May 1,2019
May 1, 2020
May 1,2021
May 1, 2022
May 1, 2023
May 1, 2024
May 1, 2025
May 1, 2026
May 1, 2027
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts equal
to a portion of the tax increment revenues collected by City under Iowa Code
Section 403.19 (without regard to any averaging that may otherwise be utilized
under Iowa Code Section 403.19 and excluding any interest that may accrue
thereon prior to payment to Developer) during the preceding six -month period in
respect of the Minimum Improvements constructed by Developer (the Developer
Tax Increments). For purposes of calculating the amount of the Economic
Development Grants provided in this Section, the Developer Tax Increments shall
be only those tax increment revenues collected by City in respect of the increase in
the assessed value of the Property above the assessment of January 1, 2010
($224,600). The Developer Tax Increments shall not include (i) any property taxes
collected for the payment of bonds and interest of each taxing district, (ii) any taxes
for the regular and voter - approved physical plant and equipment levy, (iii) the
remaining actual amount of tax increment revenues collected by City in respect of
the valuations of the Property prior to January 1, 2011 and (iv) any other portion
required to be excluded by Iowa law, and thus such incremental taxes will not
include all amounts paid by Developer as regular property taxes.
3.3 To fund the Economic Development Grants, City shall certify to the County prior to
December 1, 2010, its request for the available Developer Tax Increments resulting from
the assessments imposed by the County as of January 1 of that year and each year
thereafter until and including January 1, 2025, to be collected by City as taxes are paid
during the following fiscal year and which shall thereafter be disbursed to the Developer on
November 1 and May 1 of that fiscal year. (Example: if City so certifies in December, 2010,
the Economic Development Grants in respect thereof would be paid to the Developer on
November 1, 2012, and May 1, 2013.)
3.4 The Economic Development Grants shall be payable from and secured solely and
only by the Developer Tax Increments paid to City that, upon receipt, shall be deposited
and held in a special account created for such purpose and designated as the 44 Main TIF
Account of City. City hereby covenants and agrees to maintain its TIF ordinance in force
during the term hereof and to apply the incremental taxes collected in respect of the
Minimum Improvements and allocated to the 44 Main TIF Account to pay the Economic
Development Grants, as and to the extent set forth in Section 3.2 hereof. The Economic
Development Grants shall not be payable in any manner by other tax increments revenues,
or by general taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Developer as the Economic Development
Grants in any one year and under no circumstances shall City in any manner be liable to
Developer so long as City timely applies the Developer Tax Increments actually collected
and held in the 44 Main TIF Account (regardless of the amounts thereof) to the payment of
the Economic Development Grants to Developer as and to the extent described in this
Section.
3.5 City shall be free to use any and all tax increment revenues collected in respect of
other properties within the Project Area and the remaining actual amount of the property
taxes paid by Developer to City, or any available Developer Tax Increments resulting from
the termination of the annual Economic Development Grants under Section 3.2 hereof, for
any purpose for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to Developer with
respect to the use thereof.
3.6 City and Developer anticipate that Developer's interests in the Economic
Development Grant and Loan will be assigned to other intermediary parties in order to
permit an intermediary party to qualify for New Markets Tax Credits, and thereby bring
additional funding into the Project. City hereby declares its intent to consent to the
assignment of any of the interests and obligations of Developer, provided that by such
assignment (I) City's obligations are not increased, (ii) the security for the repayment of the
Economic Development Loan is not materially impaired, (iii) the performance of
Developer's obligations under this Agreement is not materially affected, and (iv) City has no
liability or responsibility for payment of any of the fees, expenses or charges of the
intermediate parties or otherwise arising in connection with the assignment.
8
3.7 Downtown Rehab Loan /Grant.
(1) Subject to the conditions set forth in this section, City hereby commits to a
$300,000 low interest loan through the Downtown Rehabilitation Loan /Grant
Program. This commitment is subject to Resolution 86 -10 approved on March 15,
2010. The Project is to be completed in accordance with the regulations set forth
for the City of Dubuque Downtown Rehabilitation Loan /Grant Program, with loan
funding anticipated during FY 2024. The loan is for twenty years at 3% interest and
is intended to reimburse Developer for historic renovation of the exterior facade and
historically significant elements of the interior with remodeling of the remainder of
the interior for use as commercial /residential space. Monthly interest only payments
shall be required for the first sixty (60) months of the loan. Monthly principal and
interest payments, amortized over an additional fifteen (15) year period, shall begin
the sixty -first month of the loan. Developer's counsel shall not less than thirty (30)
days prior to closing on the loan provide City with an opinion of title showing
merchantable title in Developer to the satisfaction of City. City shall have until the
closing to render objections to title, including any easements or other encumbrances
not satisfactory to City, in writing to Developer. Developer shall promptly exercise
its best efforts to have such title objections removed or satisfied and shall advise
City of its intended action within ten (10) days of receipt of City's objections to title.
If Developer shall fail to have such objections removed as of the closing, or any
extension thereof consented to by City, City may, at its sole discretion, either (a)
terminate its obligation under this Section 3.1 without liability on its part, or proceed
to closing subject to such objections. Developer agrees to use its best reasonable
efforts to promptly satisfy any such objections. The loan shall be secured by a
mortgage and personal guarantees in a form acceptable to City. The City will enter
into the loan agreement at the time funds are available given the Developer still
owns the Property; and Developer is in compliance with this Agreement and there
has been no Event of Default, as described in Section 5.
(2) Up to the full amount of the loan shall be forgiven by the City as an incentive
for the creation of new employment and /or housing opportunities. The amount of
the loan to be forgiven shall be determined sixty (60) months from the completion of
the Minimum Improvements. The base employment number to be used to calculate
the Employment Incentive has been determined to be zero (0) FTE employees for
the Building.
(3)
The amount of the loan forgiven shall be as follows:
(a) Two thousand dollars ($2,000) shall be forgiven for each new FTE
position created and maintained by the Owner or his /her tenant.
(b) To qualify, the Owner must provide documentation to the City for the
following:
9
i. The job represents a FTE position. An FTE position is defined
as forty hours of labor per workweek. Such hours may be accrued by
single individuals or divided among two or more individuals;
ii. The job was created between the completion of the Minimum
Improvements and twenty -four (24) months from the completion of the
Minimum Improvements;
iii. The job has been maintained by the Owner or his /her tenant
for a period of not less than sixty (60) months after the completion of
the Minimum Improvements;
iv. The job is a paid position; and
v. The job has been created by the Developer or another entity
located in the Building and is for employment in a business located on
the Property.
(c) Two thousand dollars ($2,000) shall be forgiven for each new housing
unit created. A new housing unit shall be defined as one of the following:
i. The creation of a housing unit where one did not previously
exist; or
ii. An existing housing unit which has been unlicensed and
unoccupied for a period of not less than five years.
(4) A grant not to exceed ten thousand dollars ($10,000) shall be available to
offset documented predevelopment costs, architectural and engineering fees and
other miscellaneous soft costs for the Property. A determination must be made by
City that the Project is substantially complete and satisfies the conditions of this
agreement prior to the release of any grant monies. Funding is anticipated for this
program to occur in FY2012.
(5) A grant not to exceed ten thousand dollars ($10,000) shall be available to
offset Developer's documented costs for front or rear facade renovations to the
Property to eliminate inappropriate additions or alterations and restore the facade to
its historic appearance, or to rehabilitate the facade to include new windows, paint,
signage, awnings, etc. to improve the overall appearance of the Property. The costs
of landscaping or screening with fencing or retaining walls may also be allowed,
especially as it may improve property adjacent to the public right -of -way. Funding is
anticipated for this program to occur in FY2012.
(6) A grant not to exceed fifteen thousand dollars ($15,000) will be available to
offset cost related to hiring a financial consultant to evaluate the project's feasibility.
Financial Consultant Grant Funds will be dispensed on completion of work,
documentation of costs and an inspection of completed project at a rate of $.50 for
10
each $1.00 of costs incurred. Financial Consultant Grant Funds will be dispensed
after the project has been completed. Written requests for payment must be
submitted to the Economic Development Department. Funding is anticipated for this
program to occur in FY2012.
SECTION 4. COVENANTS OF DEVELOPER
4.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's
Standards for Rehabilitation.
4.2 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Developer shall provide reasonable protection against loss or damage to such books of
record and account.
4.3 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.4 No Other Exemptions. During the term of this Agreement, Developer agrees not to
apply for any state or local property tax exemptions which are available with respect to the
Development Property or the Minimum Improvements located thereon that may now be, or
hereafter become, available under state law or city ordinance during the term of this
Agreement, including those that arise under Iowa Code Chapters 404 and 427, as
amended.
4.5 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100 %) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense property insurance against loss and /or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
1 1
value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(3) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear, and
Developer shall forthwith repair, reconstruct and restore the Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to
the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property (as its interests may appear). Developer shall
complete the repair, reconstruction and restoration of Minimum Improvements
whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
4.6 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.7 Non - Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, national origin, age or disability.
4.8 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position to
participate in 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 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.
12
4.9 Non - Transferability. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.5), this Agreement may not be assigned by Developer
nor may the Property be transferred by Developer to another party without the prior written
consent of City, which shall not be unreasonably withheld. Thereafter, Developer shall
have the right to assign this Agreement and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.10 No change in Tax Classification. Developer agrees that, while any portion of the
Notes described in Section 3.4 remain outstanding, Developer will not take any action
to change, or otherwise allow, the classification of the Development Property for
property tax purposes to become other than commercial property and to be taxed as
such under Iowa law.
4.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a restaurant and upper -story housing, is in full compliance with the
Urban Renewal Plan) (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City 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).
4.12 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws,, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before July 1, 2012,
repayment of the Economic Development Loan under Section 3.2(1) of this
Agreement, and failure to repay before delinquent, all real property taxes assessed
with respect to the Minimum Improvements and the Property.
13
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
5.2. Remedies on Default by Developer. Developer's failure under Section 3.2(1) to
repay the Economic Development Loan, with interest, on or before July 1, 2012 shall, in
addition to constituting a Default, shall constitute failure of a condition precedent to the
making of Economic Development Grants under Section 3.2(2) and Developer's right to
such Economic Development Grants shall terminate without written notice or time for cure
upon failure to meet such condition precedent.
Whenever any other Event of Default referred to in Section 5.1 of this Agreement occurs ,
and is continuing, City, as specified below, may take any one or more of the following
actions after the giving of written notice by City to Developer (and the holder of any
mortgage encumbering any interest in the Property of which City has been notified of in
writing) of the Event of Default, but only if the Event of Default has not been cured within
sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty
(60) days and Developer does not provide assurances to City that the Event of Default will
be cured as soon as reasonably possible thereafter.
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all amounts
expended by City in connection with the funding of the Downtown Rehab
Loan /Grant or Economic Development Loan and Economic Development 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.
14
5.3 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.
5.4 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
5.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
5.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that may
appear necessary or desirable to collect any payments due under this Agreement, to
recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may suspend
its performance under this Agreement until it receives assurances from City, deemed
adequate by Developer, that City will cure its default and continue its performance under
this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if
and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer:
With copy to:
Chris Miller
44 Main LLC
3211 North Cedar Court
Dubuque IA 52003
D. Flint Drake
Drake & Freund, P.C.
1005 Main Street, Suite 200
15
If to City:
With copy to:
Dubuque, IA 52001
Phone: (563) 582 -2000
Fax: (563) 583 -5225
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
City Attorney
City Hall
50 W. 13 Street
Dubuque IA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2027 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D
in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
costs for so recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
16
CITY OF DUBUQUE, IOWA 44 MAIN, LLC.
By By
Roy D. Buol Chris Miller
Mayor Member
Attest: 44 MAIN SLM, INC.
Jeanne F. Schneider
City Clerk
(City Seal)
STATE OF IOWA
COUNTY OF DUBUQUE
Notary Public
SS
On this day of 20, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Jeanne
F. Schneider, to me personally known, who, being by me duly sworn, did say that they are
the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal
corporation executing the instrument to which this is attached; that the seal affixed hereto
is the seal of said municipal corporation; that said instrument was signed and sealed on
behalf of the City of Dubuque, Iowa, by authority of its City Council; and that said Mayor
and City Clerk acknowledged the execution of said instrument to be the voluntary act and
deed of said City, by it and by them voluntarily executed.
17
By
Chris Miller
It's President
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20_, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Chris Miller, to me personally
known, who, being by me duly sworn, did say that he is the Managing Member of 44 Main
LLC., the corporation executing the instrument to which this is attached and that as said
Managing Member 44 Main LLC. acknowledges the execution of said instrument to be the
voluntary act and deed of said company, by it and by him, an individual, voluntarily
executed.
Notary Public
STATE OF IOWA
COUNTY OF DUBUQUE
Notary Public
)
)
)
SS
On this day of 20_, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Chris Miller, to me personally
known, who, being by me duly sworn, did say that he is the President of 44 Main SLM, Inc.,
the corporation executing the instrument to which this is attached and that as said
President of 44 Main SLM, Inc. acknowledges the execution of said instrument to be the
voluntary act and deed of said company, by it and by him, an individual, voluntarily
executed.
F: \USERS \Econ Dev \44 Main \Development Agreement\20101008.2 44 Main Development Agreement.doc
18
EXHIBIT A —
EXHIBIT B —
EXHIBIT C
EXHIBIT D
EXHIBIT E —
LIST OF EXHIBITS
City Attorney's Certificate
Opinion of Developer's Counsel
— City Certificate
— Memorandum of Development Agreement
Minimum Assessment Agreement
EXHIBIT A
CITY ATTORNEY'S CERTIFICATE
20
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement between (Developer)
and the City of Dubuque, Iowa (City) dated for reference purposes the day of
BAL:tls
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.
21
(DATE)
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
THE CITY OF
DUB E
EXHIBIT B
OPINION OF DEVELOPER'S COUNSEL
22
Mayor and City Councilmembers
City Hall
13 and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , (Developer) in connection with
the execution and delivery of a certain Development Agreement (Development Agreement)
between Developer and the City of Dubuque, Iowa ( "City ") dated for reference purposes
the day of , 20 .
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under the laws
of the State of and has full power and authority to execute, deliver and
perform in full Development Agreement. The Development Agreement has been duly and
validly authorized, executed and delivered by Developer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Developer enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer, any
indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Developer is a party or by which Developer's
property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
Very truly yours,
23
EXHIBIT C
CITY CERTIFICATE
24
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgr@cityofclubuque.org
Dear
(DATE)
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the day of , 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
25
MCVM:jh
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date
which representations and warranties shall continue and survive the Closing Date.
26
Sincerely,
Michael C. Van Milligen
City Manager
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
27
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an Iowa municipal
corporation, of Dubuque, Iowa, and 44 Main, LLC. was made regarding the following
described premises:
Lot 12, Lot 13, Lot 14 and Lot 15 of the West Half of Block 1, Dubuque Harbor
Company's Addition to the City of Dubuque, Iowa according to the recorded plat
thereof, except that part of lot 12 deeded to the City of Dubuque, by Warranty Deed
recorded as Instrument No.:5316 -1988, Subject to easements of record;
The Development Agreement is dated for reference purposes the day of
, 2010, 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 , 2010.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
28
STATE OF IOWA
COUNTY OF DUBUQUE
On this day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
COUNTY OF DUBUQUE
On this day of , 20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Chris Miller to me
personally known, who being by me duly sworn did say that he is the Managing
Member of 44 Main, LLC. and that said instrument was signed on behalf of said
company by authority of its members and that he acknowledged the execution of
this instrument to be the voluntary act and deed of said company by it voluntarily
executed.
Notary Public, State of Iowa
)
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SS
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EXHIBIT E
MINIMUM ASSESSMENT AGREEMENT
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Prepared by David J. Heiar, 50 W. 13 Street, Dubuque IA 52001. 563 - 589 -4393
Return to David J. Heiar, 50 W. 13 Street, Dubuque IA 52001. 563 - 589 -4393
MINIMUM ASSESSMENT AGREEMENT
CITY OF DUBUQUE, IOWA
THIS MINIMUM ASSESSMENT AGREEMENT, dated for reference purposes
the 18 day of October, 2010, by and among the City of Dubuque, Iowa (City), 44 Main
SLM, Inc. (an affiliate of Developer) and 44 Main, L.L.C., an Iowa limited liability company
with its principal place of business at Dubuque, Iowa (Developer), and the City Assessor of
the City of Dubuque (Assessor).
WHEREAS, City and Developer have entered into a Development Agreement dated
as of October 18, 2010, as amended (Development Agreement) regarding certain real
property ( the Property) described in Exhibit A attached hereto, located within the City of
Dubuque; and
WHEREAS, it is contemplated that Developer will undertake the development of an
area (the Project) within the Greater Downtown Urban Renewal District by the construction
of the Minimum Improvements on the Property as provided in the Development Agreement;
and
WHEREAS, pursuant to Section 403.6 of the Iowa Code, as amended, City, and
Developer desire to establish a minimum actual value for the Minimum Improvements and
the Property, which shall be effective upon substantial completion and from then until this
Agreement is terminated pursuant to the terms herein; and
WHEREAS, City and Assessor have reviewed the preliminary plans and the
specifications for the Minimum Improvements which it is contemplated will be erected.
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NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as follows:
1) Commencing January 1, 2011, the minimum actual value which shall be fixed for
assessment purposes for the Property described in Exhibit A attached hereto, together with
the Minimum Improvements to be constructed thereon by Developer shall be not less than
one million two hundred sixty thousand dollars ($1,260,000.00), until termination of this
Agreement. The parties hereto expect that the construction of the Minimum Improvements
will be substantially completed on or before the 1 day of July, 2011.
2) The minimum actual value herein established shall be of no further force and
effect and this Agreement shall terminate on the 30 day of June, 2025, the final date of
the City's obligation to pay interest or principal with respect to the indebtedness incurred in
support of the Project, in the principal amount of $337,000.00. The final scheduled maturity
date of the said indebtedness is June 30, 2027. Provided, further, that in the event said
indebtedness had not been fully paid as to principal and interest as of January 1, 2027, this
Agreement shall continue in effect for such additional time as shall be required therefore,
but not later than January 1, 2029.
3) This Agreement shall be promptly recorded by Developer.. Developer shall pay
all costs of recording.
4) Neither the preambles nor provisions of this Agreement are intended to, nor shall
be construed as, modifying the terms of the Development Agreement between City and
Developer.
5) This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties.
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THE CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
ATTEST
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE )
) SS
On this day of , 20 _, before me, the undersigned, a Notary Public
in and for the State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to
me personally known, who, being by me duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Dubuque, Iowa; a municipal corporation; that the seal
affixed to the foregoing instrument is the corporate seal of the corporation, and that the
instrument was signed and sealed on behalf of the corporation, by authority of its City
Council, as contained in Resolution No. passed by the City Council on the
; and Roy D. Buol and Jeanne F. Schneider acknowledged the execution of the
instrument to be their voluntary act and deed and the voluntary act and deed of the
corporation, by it voluntarily executed.
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Notary Public, State of Iowa
44 MAIN, LLC
(DEVELOPER)
By: 44 Main, LLC
It's Member
By:
Chris Miller, It's Member
STATE OF IOWA
DUBUQUE COUNTY
) SS
On this day of , 2010, before me, a Notary Public in and for said
county and state, personally appeared Chris Miller, to me personally known, who stated
that he is the member of 44 Main, LLC, the member of 44 Main, LLC, and that said
instrument was signed on behalf of said company by authority of its members and that he
acknowledged the execution of this instrument to be the voluntary act and deed of said
company by him and by it voluntarily executed.
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Notary Public, State of Iowa
44 MAIN SLM, INC
By: 44 Main SLM, Inc.
It's President
Bv:
Chris Miller, It's President
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 2010, before me the
undersigned, a Notary Public in and for the State of Iowa, personally appeared Chris
Miller, to me personally known, who, being duly sworn, did say that he is the President
of 44 MAIN SLM, INC, the President of 44 MAIN SLM, INC., an affiliate of Developer,
that no seal has been procured by the said limited liability company, that said
instrument was signed on behalf of said company; and that said Chris Miller
acknowledged the execution of said instrument to be the voluntary act and deed of said
limited liability company, by it voluntarily executed.
Notary Public in and for the State of Iowa
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CONSENT OF LENDER
The undersigned, as holder of a mortgage on the Development Property, hereby
consents to the Developer's execution and delivery of this Minimum Assessment
Agreement and agrees to be bound by the terms hereof to the same extent as the
Developer with respect to the Minimum Actual Value set forth herein.
STATE OF IOWA )
) SS
COUNTY OF )
Dated this
By:
Its:
AMERICAN TRUST & SAVINGS BANK
On this day of , 20 before me, a Notary Public in and for
said County, personally appeared , to me personally known,
who, being by me duly sworn, did say that that person is the
of American Trust & Savings Bank; that said instrument
was signed on behalf of said corporation by authority of its Board of Directors; and
acknowledged the execution of the foregoing Consent to be the
voluntary act and deed of said corporation, by it voluntarily executed.
day of , 20
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Notary Public in and for said County
and State
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed, and being of the opinion that the minimum
market value contained in the foregoing Assessment Agreement appears reasonable,
hereby certifies as follows: The undersigned Assessor, being legally responsible for the
assessment of the property described in the foregoing Assessment Agreement, upon
completion of Minimum Improvements to be made on it and in accordance with the
Assessment Agreement, certifies that the actual value assigned to such land, building and
equipment upon completion shall not be Tess than one million two hundred sixty thousand
Dollars ($1,260,000.00) until termination of this Assessment Agreement pursuant to the
terms hereof.
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
Subscribed and sworn to before me by , City
Assessor for the City of Dubuque, Iowa.
Notary Public in and for the State of Iowa
My Commission expires:
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Rick Engelken, Dubuque City Assessor
Date:
Date:
EXHIBIT A
LEGAL DESCRIPTION
Lot 12, Lot 13, Lot 14 and Lot 15 of the West Half of Block 1, Dubuque Harbor Company's
Addition to the City of Dubuque, Iowa according to the recorded plat thereof, except that
part of lot 12 deeded to the City of Dubuque, by Warranty Deed recorded as Instrument
No.5316 -1988, subject to easements of record.
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