Expansion of Faley Properties and Faley Enterprises in DICWMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Disposition of Property in the Dubuque Industrial Center West to Faley
Properties, LLC and Faley Enterprises, Inc. (IWI)
DATE: February 1, 2011
Dubuque
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Afl- AmedcaCity
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2007
Economic Development Director David Heiar is recommending City Council approval of
the disposition of 8.369 acres in the Dubuque Industrial Center West to Faley
Properties, LLC and Faley Enterprises, Inc. for the purpose of construction a 65,000
square foot office /distribution facility. This action supports the Council's objectives to
assist a local business expand its operations and create new jobs.
City staff has worked with the Greater Dubuque Development Corporation, Faley
Properties, LLC and Faley Enterprises, Inc. on an expansion plan for their current
business. The key elements of the agreement are:
1) The purchase price is $120,000 per acre for 8.369 acres. An Acquisition Grant to
the developer reduces the cost to $60,000 per acre. Approximately 2.730 acres
of this site is identified for future expansion. If such expansion does not occur, a
portion of this acquisition grant will need to be repaid to the City.
2) The property will be conveyed on or before April 1, 2011.
3) The company must construct a building of not less than 65,000 square feet
costing approximately $2,500,000.
4) Faley Properties, LLC and Faley Enterprises, Inc. must retain 41 full -time
positions and create 10 new jobs within two years. The 51 jobs must be retained
for the term of the Agreement.
5) The company will receive a 10 year TIF in the form of a yearly tax rebate on the
value of the assessable improvements.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Miceael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
y ll
DATE: January 25, 2011
Dubuque
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11 111!
2007
SUBJECT: Disposition of Property in the Dubuque Industrial Center West to Faley
Properties, LLC and Faley Enterprises, Inc. (IWI)
INTRODUCTION
This memorandum presents for City Council consideration a Resolution selling of 8.369
acres identified on the attached exhibit to Faley Properties, LLC and Faley Enterprises,
Inc. which will be constructing a 65,000 square foot office /distribution facility. The
attached Resolution approves the sale of this property to Faley Properties, LLC and
Faley Enterprises, Inc.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation, Faley
Properties, LLC and Faley Enterprises, Inc. on an expansion plan for their current
business in the Dubuque Industrial Center West.
Faley Properties, LLC and Faley Enterprises, Inc. plans to invest approximately $2.5
million to construct an office /distribution facility on an 8.369 acre site in Dubuque's
Industrial Center West. They have committed to retaining the current 41 full time
positions, and adding at least 10 new jobs at the new facility.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage a
local expansion. An Acquisition Grant reduces the asking price of the land from
$120,000 /acre to $60,000 /acre.
The 8.369 acre site includes approximately 2.730 acres intended for future expansion. If
an expansion does not occur within a 10 year time frame, the acquisition grant for this
pro -rated portion of land must be repaid to the City. If an expansion takes only a portion
of this extra land, the 10 year time limit restarts, until the complete expansion site is
utilized or the pro -rated land acquisition grant is repaid.
A 10 -year property tax rebate on the building has been offered to the company to assist
in their expansion. The rebate is a form of tax increment financing without issuing a tax
increment finance bond to loan monies to the company upfront. As the company pays
its future tax obligation on the new facility, the City will rebate 100% (minus debt service
and the School District Physical Plant and Equipment Levy) of the new TIF increment
for 10 years, if the company retains and creates 52 full -time employees.
The attached Development Agreement establishes the terms of the sale of the property
to Faley Properties, LLC and Faley Enterprises, Inc. The key elements of the
agreement include the following:
1) The purchase price is $120,000 per acre for 8.369 acres. An Acquisition Grant to
the developer reduces the cost to $60,000 per acre. Approximately 2.730 acres
of this site is identified for future expansion. If such expansion does not occur, a
portion of this acquisition grant will need to be repaid to the City.
2) The property will be conveyed on or before April 1, 2011.
3) The company must construct a building of not less than 65,000 square feet
costing approximately $2,500,000.
4) Faley Properties, LLC and Faley Enterprises, Inc. must retain 41 full -time
positions and create 10 new jobs within two years. The 51 jobs must be retained
for the term of the Agreement.
5) The company will receive a 10 year TIF in the form of a yearly tax rebate on the
value of the assessable improvements.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council approve the sale of 8.369 acres in the Dubuque
Industrial Center West to Faley Properties, LLC and Faley Enterprises, Inc. for the
purpose of constructing a 65,000 square feet office /distribution facility. This action
supports the City Council's objectives to businesses retaining and creating new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F: \USERS \Econ Dev \IWI Faley\20110125 Faley Council memo Approve DA.doc
Prepared by: Barry A. Lindahl, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563 583 -4113
RESOLUTION NO. 40 - 11
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING FOR THE
SALE OF 8.369 ACRES IN THE DUBUQUE INDUSTRIAL CENTER WEST TO FALEY
PROPERTIES, LLC AND FALEY ENTERPRISES, INC.
Whereas, the City Council, by Resolution No. 16 -11, dated January 18, 2011 declared
its intent to enter into a Development Agreement with Faley Properties, LLC and Faley
Enterprises, Inc. for the sale of 8.369 acres in the Dubuque Industrial Center West (the
Property); and
Whereas, pursuant to published notice, a public hearing was held on the proposed
disposition on February 7, 2011 at 6:30 p.m. in the Historic Federal Building, 350 W. 6 Street,
Dubuque, Iowa; and
Whereas, it is the determination of the City Council that approval of the Development
Agreement for the sale to and development of the Property by Faley Properties, LLC and Faley
Enterprises, Inc. 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 attached Development Agreement by and between the City of
Dubuque, Faley Properties, LLC and Faley Enterprises, Inc. for the sale of the Property is
hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City and City Clerk is authorized and directed to
attest to his signature.
Section 3. That the Mayor and City Clerk are hereby authorized and directed to
execute and deliver a Special Warranty Deed for the Property as provided in the
Development Agreement.
Section 4. 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.
Attest:
Passed, approved and adopted this 7 th day of February, 2011.
eanne F. Schneider, City Clerk
F: \USERS \Econ Dev \IWI Faley\20110125 Faley Resolution Disposition & Approve DA.doc
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WITNESSETH:
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
FALEY PROPERTIES, L.L.C.
AND
FALEY ENTERPRISES, INC.
AGREEMENT, dated for reference purposes the 7th day of February, 2011,
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), Faley Properties, L.L.C., an Iowa limited
liability company with its principal place of business in Dubuque, Iowa (Developer),
and Faley Enterprises, Inc., d /b /a IWI Motor Parts, an Iowa corporation with its
principal place of business in Dubuque, Iowa, (Employer).
WHEREAS, in furtherance of the objectives of the Urban Renewal Act
attached hereto as Exhibit A, City has undertaken an Urban Renewal project (the
Project) to advance the community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the
Urban Renewal Plan for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa; and
WHEREAS, Employer has determined that it requires a new
office /distribution 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 under
which Developer will construct a new facility and sell or lease the Facility to
Employer; and
WHEREAS, Developer has requested that City sell to Developer 8.369 acres
of which 8.369 are usable, legally described as Lot 2 of Dubuque Industrial Center
North First Addition, in the City of Dubuque, Dubuque County, Iowa, together with
all easements, tenements, hereditaments, and appurtenances belonging thereto
112910ba1 1
(the Property), so that Developer may develop the Property, located in the Project
Area, for the construction, use, and occupancy of an office /distribution Facility and
thereafter sell or lease the Property to Employer for use and occupancy with
appurtenant uses which the City has determined and represented to Developer is in
accordance with the uses specified in the Urban Renewal Plan and in accordance
with this Agreement; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The purchase price for the Property (Purchase Price) shall
be the sum of $1,004,280.00 ($120,000.00 per usable acre for 8.369 net usable
acres) with a total acquisition of 8.369 acres, which shall be due and payable by
Developer in immediately available funds in favor of City, on or before April 1, 2011,
or on such other date as the parties may mutually agree (the Closing Date). City
acknowledges receipt of the sum of $5,000.00 from Developer as earnest money,
to be returned to Developer at the Closing, or in the event the parties fail to close
within thirty (30) days after the Closing Date Tess any expenses incurred by City in
connection with this Agreement.
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 5.3, 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 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
112910ba1 2
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 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents, and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agent and representatives shall also have the right to enter upon
the Property at any time after the execution and delivery hereof for any purpose
whatsoever, including inspecting, surveying, engineering, test boring, and
performing environmental tests, provided that Developer shall hold City harmless
and fully indemnify City against any damage, claim, liability or cause of action
arising from or caused by the actions of Developer, its agents, or representatives
upon the Property (except for any damage, claim, liability or cause of action arising
from conditions existing prior to any such entry upon the Property), and shall have
the further right to make such inquiries of governmental agencies and utility
companies, etc. and to make such feasibility studies and analyses as they consider
appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants to Developer that to the best of City's knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental
body that either contemplates or authorizes any public improvements or
special tax levies, the cost of which may be assessed against the Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re -align any street or highway
112910ba1 3
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations.
(7) Payment has been made for all labor or materials which have been
furnished to the Property or will be made prior to the Closing so that no lien
for labor 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 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
112910ba1 4
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 an office /distribution facility adjoin the Property, and Developer shall have
the right to tie into said utilities, subject to City's connection fees. Such
utilities will be available to the Property no later than March 1, 2011.
(12) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property or Developer.
(13) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(14) City shall exercise its best efforts to assist Developer in the
development process.
(15 City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(16) With respect to the period to and 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.
(17) The Property is presently zoned to accommodate Developer's intended
improvements and manufacturing use.
(18) The representations and warranties contained in this Section shall be
correct in all respects on and as of the Closing with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
1.5 Conditions to 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:
112910ba1 5
(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 H.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) Subject to Employer's written approval, Developer having obtained
any and all necessary governmental approvals which might be necessary or
desirable in connection with the sale, transfer and development of the
Property. Any conditions imposed as a part of the zoning, platting or
subdivision must be satisfactory to Developer, in its sole opinion. City shall
cooperate with Developer in attempting to obtain any such approvals and
shall execute any documents necessary for this purpose, provided that City
shall bear no expense in connection therewith. In connection therewith, the
City agrees (a) to review all of Developer's plans and specifications for the
project and to either reject or approve the same in a prompt and timely
fashion; (b) to issue a written notification to Developer, following City's
approval of same, indicating that the City has approved such plans and
specifications, and that the same are in compliance with the Urban Renewal
Plan, 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 and City shall be in material compliance with all the terms
and provisions of this Agreement.
112910ba1 6
(7) Developer shall have furnished City with evidence, in a form
satisfactory to City (such as a letter of commitment from a bank or other
lending institution), that Developer has firm financial commitments in an
amount sufficient, together with equity commitments, to complete the
Minimum Improvements (as defined herein) in conformance with the
Construction Plans (as defined herein), or City shall have received such
other evidence of such party's financial ability as in the reasonable judgment
of City is required.
(8) Developer shall have furnished City with evidence in a form as
required by Section 4.2 and satisfactory to City of Employer's fulltime
equivalent employees (FTE) in Dubuque, Iowa, as of January 1, 2011.
(9) Execution of a lease agreement with option to purchase for the
Property between Developer and Employer.
(10) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(11) Receipt of an opinion of counsel to Employer in the form attached
hereto as Exhibit E.
(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 either Developer or Employer determine in its sole discretion
that conditions necessary for the successful completion of the Project
contemplated herein have not been satisfied to the full satisfaction of such
party in such party's sole and unfettered discretion. Upon the giving of
notice of termination by such terminating party to the other parties to this
Agreement, this Agreement shall be deemed null and void.
1.6 Closing. The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Property shall be delivered on the
Closing Date, in its current condition and in compliance with this Agreement,
including City's representations and warranties regarding the same. Consummation
of the Closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing have been satisfied or waived.
1.7 City's 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 F (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
112910ba1 7
as set forth in this Agreement, and to the conditions subsequent set forth in
Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the Property.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1.8 Delivery of Purchase Price; Obligations At Closing. At closing, and subject
to the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay the Purchase Price to City
pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting
credit pursuant to Section 3.1 below.
1.9 Closing 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 and Employer's attorneys' fees.
(c) Developer's broker and /or real estate commissions and fees, if
any.
(d) A pro -rata portion of all taxes as provided in Section 1.10.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that
end prior to Closing Date. Real estate taxes for the fiscal year in which Closing
112910ba1 8
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 Developer is
building an office /distribution Facility on the Property as shown on Exhibit B
attached hereto, for lease to Employer. Specifically, Developer is charged with
constructing the building and certain internal systems thereto, and with finishing the
building including, without limitation, all interior improvements (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 to construct on the Property a distribution
Facility of not less than sixty -five thousand (65,000) square feet of floor space along
with necessary site work as contemplated in this Agreement at an estimated cost of
approximately $2,500,000.00.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of the Property and the construction of 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. 7990 -02, 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.
2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before May 1,
2011, and shall be substantially completed by May 1, 2012. 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.
Employer acknowledges that 2.730 acres of the Property as shown on Exhibit B -1
is intended as an expansion area, of which 2.730 acres are buildable. If such
112910ba1
buildable expansion area is not developed within ten years from the date of this
Agreement with improvement substantially similar to the Minimum Improvements,
Developer shall pay to City within thirty days of such date the Acquisition Grant for
such part of the buildable expansion area not so improved ($60,000.00 x number
of acres not so improved), or at Developer's option, re- convey the entire expansion
area free and clear of all liens and encumbrances to City for $60,000.00 per acre.
Such ten -year period shall run from the date of the latest improvement to the
Property which is substantially similar to the Minimum Improvements. Developer,
for good cause shown, may request one or more extensions of the 10 -year
expansion deadline. Any such extension mutually agreed between the City and the
Developer shall be effected by a written amendment to this Agreement.
2.4 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 and in the Deed with respect to the obligations of Developer to
construct the Minimum Improvements. The Certificate of Completion shall waive all
rights of re- vestment of title in City as provided in Section 5.3, 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. 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, or such other date as
the parties shall mutually agree upon in writing, in the amount of $502,140.00 (Sixty
Thousand Dollars ($60,000.000) per acre x 8.369 usable acres). The parties agree
that the Acquisition Grant shall be payable in the form of a credit favoring
Developer at time of Closing with the effect of directly offsetting the full purchase
price obligation of Developer.
3.2 Economic Development Grant.
(1) 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
112910ba1 10
payments (such payments being referred to collectively as the Economic
Development Grants) to the Employer if Employer owns or leases the
Property and /or Improvements thereon during the period such tax increment
revenues accrue, otherwise to Developer (and City may rely upon a
statement from Employer or Developer with respect to Employer's ownership
or lease status for such purposes without any obligation to verify such
status), 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
112910ba1 11
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
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of 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 Employer or Developer)
during the preceding six -month period in respect of the Property and
Minimum Improvements constructed by Developer or Employer (the
Developer Tax Increments). Developer recognizes and agrees that the
Economic Development Grants shall be paid solely and only from the
incremental taxes collected by City in respect to the Property and Minimum
Improvements, which does not include property taxes collected for the
payment of bonds and interest of each taxing district, and taxes for the
regular and voter - approved physical plant and equipment levy, and 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.
(2) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1, 2011,
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 the Employer if Employer owns or leases
the Property and /or Improvements thereon during the period such tax
increment revenues accrue, otherwise to Developer (and City may rely upon
a statement from Employer or Developer with respect to verify such status),
on November 1 and May 1 of that fiscal year. (Example: If City so certifies by
December, 2011, the Economic Development Grants in respect thereof
would be paid to Employer on November 1, 2012, and May 1, 2013.)
(3) The Economic Development Grants shall be payable from and
secured solely and only by the Developer Tax Increments paid to City that,
upon receipt, shall be deposited and held in a special account created for
such purpose and designated as the Faley Properties 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 Faley Properties
TIF Account to pay the Economic Development Grants, as and to the extent
set forth in Section 3.2(1) hereof. The Economic Development Grants shall
not be payable in any manner by other tax increments revenues or by
general taxation or from any other City funds. City makes no representation
with respect to the amounts that may be paid to Employer as the 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 Faley Properties
TIF Account (regardless of the amounts thereof) to the payment of the
Economic Development Grants to Employer as and to the extent described
in this Section.
(4) City shall be free to use any and all tax increment revenues collected
in respect of other properties within the Project Area, or any available
Developer Tax Increments resulting from the termination of the annual
Economic Development Grants under Section 3.2 hereof, for any purpose for
which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Developer or Employer with respect to the use thereof.
3.3 Site Preparation. Any storm sewer piping shall be sized per City
requirements. 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 lot.
SECTION 4. COVENANTS OF EMPLOYER
4.1 Job Creation. During the term of this Agreement, Developer shall make
best efforts to maintain its existing forty -one (41) employees in Dubuque, Iowa.
(1) Employer shall retain forty -one (41) and create a minimum of ten (10)
fulltime equivalent employees (FTE) in Dubuque, Iowa prior to December 31,
2013, and shall maintain those jobs during the Term of this Agreement. It is
agreed by the parties that Employer has forty -one (41) fulltime equivalent
employees (FTE) in Dubuque, Iowa, as of January 1, 2011. FTE shall be
calculated by adding fulltime and part-time employees together using 2080
112910ba1 12
hours per year as a FTE employee. In the event that the certificate provided
to City under Section 4.2 hereof on January 1, 2013 discloses that Employer
does not as of that date have at least fifty -one (51) FTE employees as
provided hereinabove, Employer if Employer owns or leases the Property
and /or Improvements on that date (and City may rely upon a statement from
Employer or Developer with respect to Employer's ownership or lease status
for such purposes without any obligation to verify such status), otherwise
Developer shall pay to City, promptly upon written demand therefor, an
amount equal to $9,845.88 per job not created or maintained ($502,140.00
divided by 51 FTE = $9,845.88). (In the event that Employer is required to
pay City under the second paragraph of Section 2.3, the amount per job not
created of $9,845.88 shall be reduced by the amount of such payment). The
payments provided for herein shall be the City's sole remedy for the failure of
Employer to meet the job creation requirements of this subsection 4.1(a).
(2) In addition, for the positions that Employer fails to create and maintain
for any year during the Term of this Agreement, the semi - annual Economic
Development Grants for such year under Section 3.2 shall be reduced by the
percentage that the number of such positions bears to the total number of
positions required to be created and maintained (51 FTE's) by this Section
4.1. (For example, if Employer has 45 FTE employees, the semi - annual
Economic Development Grants would be 88.23% (45/51 employees) of the
Tax Increment Revenues received by City would be paid by City). The
reduction of the semi - annual Economic Development Grants shall be the
City's sole remedy for the failure of Employer to meet the job creation
requirements of this subsection 4.1(b).
4.2 Certification. To assist City in monitoring the performance of Employer
hereunder, not later than January 1, 2013, and again not later than January 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 fulltime
jobs employed in Dubuque, Iowa, 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 February 28, 2011, and by February 28 of each
year thereafter during the term of this Agreement
4.3 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
112910ba1 13
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.
4.4 Real Property Taxes. From and after the Closing Date, 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.
4.5 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 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.
4.6 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):
(a) 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;
(b) Insurance as set forth in the attached Insurance Schedule.
(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 Toss and /or damage to Minimum
Improvements under an insurance policy written in an amount not less than
the full insurable replacement value of Minimum Improvements. The term
"replacement value" shall mean the actual replacement cost of Minimum
Improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the
request of City, but not more frequently than once every three (3) years.
(3) Developer agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty.
112910ba1 14
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.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep,
Minimum Improvements in good repair and working order, 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.
4.8 Non - Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, national origin, age or disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee
of City, or its designees or agents, nor any consultant or member of the governing
body of City, and no other public official of City who exercises or has exercised any
functions or responsibilities with respect to the project during his or 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.
4.10 Non - Transferability.
(1) Until such time as the Minimum Improvements are complete (as
certified by City under Section 2.4), 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
112910ba1 15
this Agreement and upon assumption of the Agreement by the assignee,
Developer shall no longer be responsible for its obligations under this
Agreement.
(2) City acknowledges that Developer intends to transfer or lease the
Development the Property and Improvements thereon to Employer, and City
hereby consents to such transfer.
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 an industrial manufacturing center 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, 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 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this
Section, the Indemnified Parties) from and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend
and hold harmless the Indemnified Parties against any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
112910ba1 16
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and /or to enforce its
rights under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements or (3) the condition
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.
(5) The provisions of this Section shall survive the termination of this
Agreement.
4.13 Compliance with Laws. Developer and Employer shall comply with all laws,
rules and regulations relating to its businesses, other than laws, rules and
regulations for which the failure to comply with or the sanctions and penalties
resulting therefrom, would not have a material adverse effect on the business,
property, operations, financial or otherwise, of Developer or Employer.
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 or Employer 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.
112910ba1 17
(3) Transfer of any interest by Developer of Minimum Improvements
except to Employer in violation of the provisions of this Agreement prior to
the issuance of the final Certificate of Completion.
(4) Failure by Developer or Employer 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 or Employer. Whenever any 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) and Employer 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 defaulting party 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 defaulting party, deemed adequate by City,
that the defaulting party 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 defaulting party;
(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.
5.3 Re- vesting Title in City Upon Happening of Event Subsequent to
Conveyance to Developer. 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 5.1 of this
Agreement occurs and is not cured within the times specified in Section 5.2, then
112910ba1 18
City shall have the right to re -enter and take possession of Property and any portion
of the Minimum Improvements thereon and to terminate (and re -vest in City
pursuant to the provisions of this Section 5.3 subject only to any superior rights in
any holder of the First Mortgage) the estate conveyed by City to Developer, it being
the intent of this provision, together with other provisions of this Agreement, that the
conveyance of Property to Developer shall be made upon the condition that (and
the Deed shall contain a condition subsequent to the effect that), in the event of
default under Section 5.1 on the part of Developer and failure on the part of
Developer to cure such default within the period and in the manner stated herein,
City may declare a termination in favor of City of the title and of all Developer's
rights and interests in and to Property conveyed to Developer, and that such title
and all rights and interests of Developer, and any assigns or successors in interests
of Developer, and any assigns or successors in interest to and in Property, shall
revert to City (subject to the provisions of Section 5.3 of this Agreement), but only if
the events stated in Section 5.1 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.
5.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re-
vesting in City of title to the Property as provided in Section 5.3 of this Agreement,
City shall, pursuant to its responsibility under law, use its best efforts, subject to any
rights or interests in such property or resale granted to any holder of a First
Mortgage, to resell the Property or part thereof as soon and in such manner as City
shall find feasible and consistent with the objectives of such law and of the Urban
Renewal Plan to a qualified and responsible party or parties (as determined by City
in its sole discretion) who will assume the obligation of making or completing
Minimum Improvements or such other improvements in their stead as shall be
satisfactory to City and in accordance with the uses specified for such the Property
or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on
the Property, or any portion thereof, or any improvements thereon,
previously acquiesced in by City pursuant to this Agreement. If more than
one mortgage on the Property, or any portion thereof, or any improvements
thereon, has been previously acquiesced in by City pursuant to this
Agreement and insufficient proceeds of the resale exist to pay the principal
of, and interest on, each such mortgage in full, then such proceeds of the
resale as are available shall be used to pay the principal of and interest on
112910ba1 19
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 the cash actually
invested by such party in making any of the Minimum Improvements on the
Property.
5.5 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.
5.6 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.
5.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
112910ba1 20
5.8 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 their performance under this
Agreement until they receive 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:
(1) If to Developer:
Faley Properties, L.L.C.
Attn: T. J. Faley
16661 Cordillera Drive
Peosta, Iowa 52068
Phone: (563) 556 -3816
With copy to:
Stephen J. Juergens
Fuerste, Carew, Juergens & Sudmeier, P.C.
151 West 8th Street
200 Security Building
Dubuque, Iowa 52001
Phone: (563) 556 -4011
(2) If to Employer:
Faley Enterprises, Inc., d /b /a !WI Motor Parts
Attn: T. J. Faley
155 North Crescent Ridge
Dubuque, Iowa 52003
Phone: (563) 556 -3911
With copy to:
112910ba1 21
Stephen J. Juergens
Fuerste, Carew, Juergens & Sudmeier, P.C.
151 West 8th Street
200 Security Building
Dubuque, Iowa 52001
Phone: (563) 556 -4011
(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.
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 May 1, 2022 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted among them by facsimile machine. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as Exhibit
G 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.
112910ba1 22
CITY OF DUBUQUE, IOWA
FALEY ENTERPRISES, INC.,
Employer
By: A r fi By:
Roy Duol, Mayor
By:
anne F. Schneider, City Clerk
112910ba1 23
FALEY PROPERTIES, L.L.C.,
Developer
FALEY ENTERPRISES, INC.,
Employer
By: f C` B
Y LI Y :
CITY OF DUBUQUE, IOWA
112910ba1 23
Roy D. , ol, Mayor T.J. aley, Pros ident
FALEY PROPERTIES, L.L.C.,
By: Developer
Jeanne F. Schneider, City Clerk
LIST OF EXHIBITS
Insurance Schedule A
Exhibit A Urban Renewal Plan
Exhibit B Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Opinion of Counsel to Faley Enterprises, Inc.
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
112910ba1 24
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized
to do business in Iowa. All insurers shall have a rating of A or better in the
current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque, except for 10 day notice for non-
payment, if cancellation is prior to the expiration date. This endorsement
supersedes the standard cancellation statement on the Certificate of Insurance.
3. Developer shall furnish a signed Certificate of Insurance to the City of Dubuque,
Iowa for the coverage required in Paragraph 6 below. Such certificates shall
include copies of the following policy endorsements:
a) Commercial General Liability policy is primary and non - contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. Developer shall be required to carry the following minimum coverage /limits or
greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products - Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form
CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be
included. All deviations or exclusions from the standard ISO commercial
general liability form CG 0001, or Business Owners form BP 0002, shall be
clearly identified.
112910ba1 25
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and /or authorities
and their board members, employees and volunteers shall be named as an
additional insured on General Liability Policies using ISO endorsement CG
20 26 0704 "Additional Insured — Designated Person or Organization," or its
equivalent. — See Specimen
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident $100,000
Each Employee — Disease $100,000
Policy Limit — Disease $500,000
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
❑ Certificate of Liability Insurance (2 pages)
❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
❑ Additional Insured 20 26 07 04
❑ Governmental Immunities Endorsement
112910ba1 26
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1 Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees
and states that the purchase of this policy and the including of the City of
Dubuque, Iowa as an Additional Insured does not waive any of the defenses of
governmental immunity available to the City of Dubuque, Iowa under Code of
Iowa Section 670.4 as it is now exists and as it may be amended from time to
time.
2. Claims Coverage. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Those claims not subject to Code
of Iowa Section 670.4 shall be covered by the terms and conditions of this
insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do so
at any time and shall do so upon the timely written request of the insurance
carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
SPECIMEN
112910ba1 27
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,
THE INSURANCE AFFORDED BY THE POL CIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES
AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
PSBR
LT
LIR
ADD)
NSW)
TYPE
TYPE OF INSURANCE
POLICY NUMBER
POUCY EFFECIIVE
DATE M M/DD'YY)
DATE (MM/DOA'Y)
UNITS
A
x
GENERAL
X
LIASRJTY
COMMERCIAL GENERAL LIABILITY
INSURER 9
EACH OCCURRENCE
S 1,000,000
PREMISES Mc oe)
s 50,000
INSURER
1 CLAIMS MADE
X OCCUR
MED EXP (Any one person)
$ 5,000
PERSONAL SAW INJURY
$ 1,000,000
GENERAL AGGREGATE
$ 2,000,000
IT AP PER
GERI AGGREGATE LIMIT (
7 POLICY I I I JEC7 I I LOC
PRODUCTS • COMP /OP AGG
$ 1,000,000
A
AUTOMOBILE
X
_
_
UABIUTY
ANY AUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON - OWNED AUTOS
-
GOWNED SINGLE LIMIT
(Ea acode n)
$ 1,000,000
BODILY INJURY
(Per person)
I
BODILY INJURY
(Per accident)
S
PROPERTY DAMAGE
(Per aoI t
$
GARAGE
-
LIABILITY
ANY AUTO
'
AUTO ONLY - EA ACCIDENT
I
OTHER THAN EA ACC
$
AUTO ONLY AGG
I
EXCESSNMBRELLA
_
^
UABIUTY
OCCUR CLAIMS MADE
DEDUCTIBLE
RETENTION f 0
SF
( Q I
EACH OCCURRENCE
S
AGGREGATE
S
I
S
S
A
WORKERS COMPENSATION AND
EMPLOYERS' IFY ANY PROPRIETORPDXbPARTHERIEXECUTNE
OFFICER/MEMBER EXCLUDED? X Yadescribe dadescribe ureter
a sr
SPECIAL PROVISIONS aa4*
SC
V
yWC
X I TORYSLIMITTTUU S I I E0.
EL EACH ACCIDENT
S 100,000
EL DISEASE -EA EMPLOYEES
100,000
El OISEASE - POLICY LMrT
I 500,000
OTHER
DESCRIPTION OF OPERATIONSILOCATIONSNEIDCLE &EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS
City of Dubuque is listed as an additional insured on general liability policies wing ISO endorsement form CG 2026
0704 "Additional Insured - Designated Person or Organization" or its equivalent. General Liability policy is primary 8
non - contributing. Form CO 2504 0397 "Designated Locations" general liability aggregate limit is included. Governmental
immunities endorsement is included.
ACOR CERTIFICATE
OF LIABILITY INSURANCE
DA'E' ""'°°"Y'"'
12/7/2007
AUTHORED REPRESENTATIVE
PRODUCER (563) 123 -4567
Insurance Agency
Street Address
City
Fax (563) 987 -6543
ST Zip Code
THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION
HOLDER. S CERTIFICATE DOES NOT AMEND, EXTEND OR THE CERTIFICATE
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
NAIC 4
INSURED
Company
Street
City
St Zip Code
INSURER A Insurance Company
INSURER 9
INSURER C
INSURER D
INSURER
City of Dubuque
50 West 13th Street
Dubuque, IA 52 001
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, TIE ISSUING INSURER WILL ENDEAVOR TO BAR.
30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT
FAILURE TO DO SO SHALL EXPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE
INSURER, ITS AGENTS OR REPRESENTATIVES
AUTHORED REPRESENTATIVE
COVERAGES
CERTIFICATE HOLDER
ACORD 25 (2001108)
INS025(oIro).oR AMS
112910ba1
28
CANCELLATION
V$JP Mmtpapa Sdutm,4. Inc (30)327-0545
O ACORD CORPORATION 1988
Pawl of
112910ba1
29
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this
certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an
endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such
endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing
insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively
amend, extend or alter the coverage afforded by the policies listed thereon.
SPEC
tile
S CII
ACORO 25 (2001/08)
INS025ro1oe7.ae AMS Pap.2 oft
112910ba1
29
POLICY NUMBER:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Designated Location(s):
(if no entry appears above, information required to complete this endorsement will be shown in the Declarations
as applicable to this endorsement.)
A. For all sums which the insured becomes legally
obligated to pay as damages caused by "occur-
rences" under COVERAGE A (SECTION I), and
for all medical expenses caused by accidents
under COVERAGE C (SECTION 1), which can be
attributed only to operations at a single desig-
nated "location" shown in the Schedule above:
1. A separate Designated Location General
Aggregate Limit applies to each designated
"location ", and that limit is equal to the
amount of the General Aggregate Limit
shown in the Declarations.
2. The Designated Location General Aggregate
Limit is the most we will pay for the sum of all
damages under COVERAGE A, except dam-
ages because of "bodily injury" or "property
damage" included in the "products - completed
operations hazard ", and for medical expenses
under COVERAGE C regardless of the num-
ber of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits ".
3. Any payments made under COVERAGE A for
damages or under COVERAGE C for medical
expenses shall reduce the Designated Loca-
tion General Aggregate Limit for that desig-
nated "location ". Such payments shall not re-
duce the General Aggregate Limit shown in
DESIGNATED LOCATIONS)
GENERAL AGGREGATE LIMIT
COMMERCIAL GENERAL UABILITY
CG 25 04 03 97
the Declarations nor shall they reduce any
other Designated Location General Aggre-
gate Limit for any other designated "location'
shown in the Schedule above.
4. The limits shown in the Declarations for Each
Occurrence, Fire Damage and Medical Ex-
pense continue to apply. However, instead of
being subject to the General Aggregate Limit
shown in the Declarations, such limits will be
subject to the applicable Designated Location
General Aggregate Limit.
B. For all sums which the insured becomes legally
obligated to pay as damages caused by'occur-
rences" under COVERAGE A (SECTION I), and
for all medical expenses caused by accidents
under COVERAGE C (SECTION I), which can-
not be attributed only to operations at a single
designated "location' shown in the Schedule
above:
1. Any payments made under COVERAGE A for
damages or under COVERAGE C for medical
expenses shall reduce the amount available
under the General Aggregate Limit or the
Products- Completed Operations Aggregate
Limit, whichever is applicable; and
2. Such payments shall not reduce any Desig-
nated Location General Aggregate Limit.
CG 25 04 03 97 Page 1 of 2
112910ba1
30
112910ba1
CG 25 04 03 97
C. When coverage for liability arising out of the
"products - completed operations hazard" is pro-
vided, any payments for damages because of
"bodily injury" or "property damage" included in
the "products- completed operations hazard" will
reduce the Products - Completed Operations Ag-
gregate Limit, and not reduce the General Ag-
gregate Limit nor the Designated Location Gen-
eral Aggregate Limit.
D. For the purposes of this endorsement, the Defi-
nitions Section is amended by the addition of
the following definition:
Copyright, Insurance Services Office, Inc., 1996
Page 2 of 2 CG 25 04 03 97
31
"Location" means premises involving the same or
connecting lots, or premises whose connection is
interrupted only by a street, roadway, waterway
or right -of -way of a railroad.
E. The provisions of Limits Of Insurance (SECTION
111) not otherwise modified by this endorsement
shall continue to apply as stipulated.
COMMERCIAL GENERAL LIABILITY
CG 20 26 07 94
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
POLICY NUMBER:
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s) Or Organization(s)
The City of Dubuque, including all its elected and appointed officials,
all its employees and volunteers, all its boards, commissions and/or
authorities and their board members, employees and volunteers.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
Section I1 — Who Is An Insured is amended to in-
clude as an additional insured the person(s) or or-
ganization(s) shown in the Schedule, but only with
respect to liability for "bodily injury", "property dam-
age" or "personal and advertising injury" caused, in
whole or in part, by your acts or omissions or the acts
or omissions of those acting on your behalf:
A. In the performance of your ongoing operations; or
B. In connection with your premises owned by or
rented to you.
CG 20 26 07 04
All terms and conditions of this policy apply unless modified by this endorsement.
Includes copyrighted material of Insurance Services Office, Inc. with permission. Page 1 of 1
® ISO Properties, Inc., 2004
112910ba1
32
112910ba1
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1 Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and
states that the purchase of this policy and the including of the City of Dubuque, Iowa
as an Additional Insured does not waive any of the defenses of governmental
immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4
as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of insurance
shall cover only those claims not subject to the defense of govemmental immunity
under the Code of Iowa Section 670.4 as it now exists and as it may be amended
from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be
covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible
for asserting any defense of govemmental immunity, and may do so at any time and
shall do so upon the timely written request of the insurance carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this
policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
immunity unless and until a court of competent jurisdiction has ruled in favor of the
defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
SPECIMEN
1 of 1 January 2008
33
EXHIBIT A
URBAN RENEWAL PLAN
112910ba1 34
EXHIBIT B
SITE PLAN
112910ba1 35
1
/ '
-`((-
'21
LOT C
..1 •
011 I., 111
I
I I
I ,
,AV(■, ,^0 r 4A1 r
1■0 .
E/rr. VVERIAL, ANO ELIVATION 0 ALL
01,015 1.14, P.S.F4r
Project Yrr...7
Mem.-
ant, 01
AC-1
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
112910ba1 37
BARRY A. LINDAHL, ESQ. rxFCrrvor(�,r
CITY ATTORNEY DUBLJ
Dear
BAL:tls
112910ba1 38
(DATE)
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 , 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.
City Attorney
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
112910ba1 39
Mayor and City Councilmembers
City Hall
l3 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
112910ba1 40
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
112910ba1 41
EXHIBIT E
OPINION OF COUNSEL TO FALEY ENTERPRISES, INC.
112910ba1 42
Mayor and City Councilmembers
City Hall
1 3 t 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 (Employer) 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. Employer is a corporation organized and existing under the laws of
the State of Iowa 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. To our actual knowledge with no duty to inquire, 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.
3. To our actual knowledge with no duty to inquire, 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
112910ba1 43
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.
This opinion is rendered for the sole benefit of the City of Dubuque and no other
party may rely on this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty
to update this opinion for any matters which come to our knowledge after the date
of this letter.
Very truly yours,
112910ba1 44
EXHIBIT F
DEED
112910ba1 45
Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583 -4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and
no /100 Dollars ($ ) in hand paid, and other good and valuable
consideration, and pursuant to the authority of Chapter 403, Code of Iowa, does
hereby GRANT, SELL AND CONVEY unto
, an Iowa limited liability company
(Grantee), the following described parcel(s) situated in the County of Dubuque,
State of Iowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section
428A.2(6).
This Deed is given pursuant to the authority of Resolution No.
the City Council of the City of Dubuque adopted the day of
20, the terms and conditions thereof, if any, having been fulfilled.
112910ba1 46
of
This Deed is being delivered in fulfillment of Grantor's obligations under and
is subject to all the terms, provisions, covenants, conditions and restrictions
contained in that certain Development Agreement executed by Grantor and
Grantee herein, dated the day of , 20_ (the Agreement), a
memorandum of which was recorded on the day of , 20_, in the
records of the Recorder of Dubuque County, Iowa, Instrument Number
Promptly after completion of the improvements 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, 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, Iowa. 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 or Kendall /Hunt Publishing Company 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, Iowa.
Attest: By:
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
)
)
112910ba1 47
CITY OF DUBUQUE IOWA
SS
Roy D. Buol, Mayor
COUNTY OF DUBUQUE )
On this day of , 20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Jeanne F. Schneider to
me personally known, who being duly sworn, did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation,
created and existing under the laws of the State of Iowa, 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, Iowa
112910ba1 48
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
112910ba1 49
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day
of , 20_, and contains covenants, conditions, and restrictions
concerning the sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose
of constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its
offices as above provided.
Dated this day of , 20_.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
112910ba1 50
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
DUBUQUE COUNTY
STATE OF IOWA
DUBUQUE COUNTY
s s:
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
ss:
On this day of , 20)), before me, a Notary Public in and for
the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by authority
of its members and that they acknowledged the execution of this instrument
to be the voluntary act and deed of said company by it voluntarily executed.
112910ba1 51
Notary Public, State of Iowa
112910ba1 52
EXHIBIT H
CITY CERTIFICATE
112910ba1 53
City Manager's Office
50 West 13th Street
Dubuque, Iowa 520014864
(563) 5894110 phone
(563) 5894149 fax
ctymgr@cityoldubuque.org
Dear
112910ba1 54
(DATE)
THE CITY OF
---- gy - y�
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) 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 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 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. The Property is currently zoned PUD
and Employer'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. 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) 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.
(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
112910ba1 55
MCVM:jh
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.
(13) City shall exercise its best efforts to assist with Developer and
Employer 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.
112910ba1 56
Sincerely,
Michael C. Van Milligen
City Manager
F: \USERS \Econ Dev \Hodge\20101108_North Crescent Faley Development Agreement- REDLINED
(djh).doc