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Spahn and Rose Lumber Company_Development Agreement for 925 Kerper Blvd.Masterpiece on the Mississippi Dubuque bitri NI- AmericaCity 1 I 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Approval of a Development Agreement with Spahn & Rose Lumber Co. DATE: August 11, 2011 Economic Development Director Dave Heiar is recommending the approval of a Development Agreement with Spahn & Rose Lumber Co. regarding the lease of the former City Operations and Maintenance building located at 925 Kerper Boulevard that includes a property tax rebate for the three -year life of the lease. In response to losing warehouse space in the 1000 Jackson building, Spahn & Rose needed temporary space to have more time evaluating potential future locations for warehousing or moving their operations to a new location. Spahn & Rose approached the City about the Old City Garage. A three -year lease was approved by the City Council on July 8th, 2011 for 15,000 sf inside the Old City Garage. The company is interested in leasing more space in the building as it becomes available. The lease rate is $2,625 per month (based on a sf rate of $2.10) during the term of the lease, which expires on June 30, 2014. The first year's rent is at a 50% discount. Spahn & Rose will be responsible to pay for the utilities in the building and the property taxes. I concur with the recommendation and respectfully request Mayor and City Council approval. Mich el 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 Directoi ;CD DATE: August 10, 2011 SUBJECT: Approval of a Development Agreement with Spahn & Rose Lumber Co. Dubuque AI- anedcacnr 2007 INTRODUCTION This memorandum presents for City Council consideration a Resolution approving a Development Agreement with Spahn & Rose Lumber Co. regarding the lease of the former City Operations & Maintenance building (Old City Garage) located at 925 Kerper Boulevard. BACKGROUND S &R has their Dubuque operations located on Jackson Street between 10th and 12th Streets. They own most of the property in that area but they lease approximately 30,000 square feet of warehouse space from Wilmac Property Company at 1000 Jackson Street (the Voices Building). S &R had access to 15,000 sf of the rented space through dock doors located on 10th Street between Jackson and Washington Streets. The complete street redevelopment along that block no longer allows trucks to access that door. Portzen construction was scheduled to begin work in that block near July 1, 2011, creating the need for additional warehouse space in the area for S &R to store their merchandise. In response to losing warehouse space in the 1000 Jackson building, S &R needed temporary space to have more time evaluating potential future locations for warehousing or moving their operations to a new location. S &R approached the City about the Old City Garage. A three year lease was approved by the City Council on July 8th, 2011 for 15,000 sf inside the Old City Garage. The company is interested in leasing more space in the building as it becomes available. The lease rate is $2,625 per month (based on a sf rate of $2.10) during the term of the lease which expires on June 30, 2014. The first year's rent is at a 50% discount. S &R will be responsible to pay for the utilities in the building and the property taxes. DISCUSSION Included in the three year lease is a provision that the City Manager was willing to recommend a Development Agreement to the City Council to rebate the property taxes allowed through the use of Tax - Increment Financing. This incentive would reduce the operating costs for S &R to utilize the property during the three year lease. The yearly TIF rebates have an estimated value of $10,450 (assuming a property value of $312,000). S &R is not required to create or maintain any jobs, but is required to lease the property for the three year period and pay all taxes accrued during the lease term. RECOMMENDATION I recommend that the City Council approve the Development Agreement with Spahn & Rose Lumber Co. which provides for a three year property tax rebate for the leased space in the former City Operations & Maintenance Building located at 925 Kerper Boulevard. ACTION STEP The action step for the City Council is to adopt the attached Resolution. F:\USERS\Econ Dev \Spahn & Rose \City Garage Lease DA\20110810 Memo S&R City Garage DA.docx RESOLUTION NO. 285 -11 A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT WITH SPAHN & ROSE LUMBER CO. FOR THE PROPERTY LOCATED AT 925 KERPER BOULEVARD Whereas, the City of Dubuque, Iowa, has undertaken an Urban Renewal project for the purpose of advancing the community's ongoing economic development efforts in the Greater Downtown Urban Renewal District; and Whereas, the City of Dubuque, Iowa is encouraging the use of financial incentives to help finance code compliance activities and to spur redevelopment; and Whereas, it is the determination of this Council that approval of the Development Agreement for assistance to Spahn & Rose Lumber Co. during the time Spahn & Rose Lumber Co. is leasing the facility pursuant to a Lease Agreement and according to the terms and conditions set out in the Development Agreement is in the public interest of the City of Dubuque. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Development Agreement with Spahn & Rose Lumber Co. is hereby accepted and approved. Section 2. That the Mayor is hereby authorized to execute, on behalf of the City Council of the City of Dubuque, Iowa, the attached Development Agreement with Spahn & Rose Lumber Co. Section 3. That the City Manager is hereby authorized to execute, on behalf of the City Council of the City of Dubuque, Iowa, all necessary documents and is further authorized to disburse grant funds in accordance with the terms and conditions of the executed agreement. Passed, approved and adopted this 15 day of August, 2011. F: \USERS \Econ Dev \Spahn & Rose \City Garage Lease DA\20110810_Res Approve DA.docx Attes Kevin S. Fi --'stab Acting City Clerk Roy D. Buol, Mayor DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, AND SPAHN & ROSE LUMBER CO. AGREEMENT, dated for reference purposes the 15th day of August , 2011, between the City of Dubuque, Iowa, a municipality (City), established pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter 403, and Spahn & Rose Lumber Co., an Iowa corporation with its principal place of business in Dubuque, Iowa, (Employer). WITNESSETH: WHEREAS, in furtherance of the objectives of the Urban Renewal Act 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 Greater Downtown Urban Renewal 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 Greater Downtown Urban Renewal District, approved by the City Council of City on May 18, 1967, 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 is on file with the City of Dubuque City Clerk; and WHEREAS, Employer is a local construction material supplier; and WHEREAS, Employer has leased from the City the former Operations and Maintenance Facility on Kerper Boulevard legally described as; LOT 1- 2- 1 -1 -1, 2 -1 -1- 1 -1, & 2 ALL OF CITY LOT 507, CITY LOT 503 , LOT 2 -1 -2 & 2 -3 -2 OF CITY LOT 504 & VACATED LOT B OF E. 10TH STREET, THAT PART OF CEDAR STREET BETWEEN 10TH & 11TH (VACATED STREETS) WITH CITY LOT 503, LOTS 1- 2- 1 -1 -8, 1 -1 -2 -8, 2- 2- 2- 1 -1 -8, 1 -1- 2 -1 -8, 1- 2- 2 -1 -8, & LOT 2 -1- 2-8 ALL CONGRESSIONAL LOTS (the Property); and WHEREAS, Employer requests assistance from the City during the time Employer is leasing the Facility pursuant to a Lease Agreement (the Lease). 1 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 1.4 Representations and Warranties of City. In order to induce Employer to enter into this Agreement and the Lease for the Property, City hereby represents and warrants to Employer that to the best of City's knowledge: (1) There is no action, suit or proceeding pending, or to the best of City's knowledge, threatened against City which might result in any adverse change in the Property being conveyed or the possession, use or enjoyment thereof by Employer, including, but not limited to, any action in condemnation, eminent domain or public taking. (2) 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 Employer and City has provided true and correct copies of all such documents to Employer. (3) City has good and marketable fee simple title interest in the Property. (4) The Property has a permanent right of ingress or egress to a public roadway for the use and enjoyment of the Property. (5) 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 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. (6) 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. (7) The Property will, as of the Closing Date, be free and clear of all liens, security interests, and encumbrances. (8) 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 080811ba1 2 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. (9) 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 Employer at time of Closing confirming the representation contained herein, in the form attached hereto as Exhibit B. (10) All city utilities necessary for the lease and use of the Property as a warehouse facility are on site. (11) For purposes of information only and not as a warranty or representation, City has advised Employer that the Propertyis included as part of a "site" known as the "Peoples Natural Gas Site" and is listed on the Iowa's Registry of Hazardous Waste or Hazardous Substance Disposal Sites and the National Priorities List under the federal Comprehensive Environmental Response, Compensation and Liability Act. As such, the site remains under active investigation and response by City and others and there are restrictions on the use of the Property arising from such environmental condition. City shall assume liability and shall indemnify and hold Employer harmless against all liability or expense arising from any condition which existed, whether known or unknown, at the time of execution of this Agreement which condition is not a result of actions of Employer or which condition arises after date of execution but which is not a result of actions of Employer. Employer agrees that it has not relied upon City for information regarding the environmental condition of the site, and has undertaken independent investigation thereof. (12) City represents and warrants that any fees or other compensation which may be owed to a broker engaged directly or indirectly by City in connection with the purchase and sale contemplated in this Agreement are the sole responsibility and obligation of City and that City will indemnify Employer and hold 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 resolve any disputes arising during the lease in a reasonable and prompt fashion. 080811ba1 3 (14) The Property is presently zoned to accommodate Employer's intended warehousing use. (15) 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 Employer under this Agreement are subject to fulfillment, on or before the Closing Date, of the following conditions: (1) The representations and warranties made by City in Section 1.4 shall be correct as of the Closing Date with the same force and effect as if such representations were made at such time. (2) Title to the Property shall be in the condition warranted in Section 1.4. (3) Employer, in its sole and absolute discretion, having completed and approved of any inspections done by Employer hereunder. (4) 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. (5) Employer and City shall be in material compliance with all the terms and provisions of this Agreement. (6) Receipt of an opinion of counsel to Employer in the form attached hereto as Exhibit C. 1.6 Closing. The closing of the lease shall take place on the Closing Date. Non- 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. 080811ba1 4 1.10 Real Estate Taxes. Real estate taxes shall be paid as provided in the Lease. SECTION 2. DEVELOPMENT ACTIVITIES 2.1 Lease of Facility. Employer shall lease from City the former Operations and Maintenance Facility on Kerper Boulevard upon the terms and conditions set forth in the Lease. 2.2 Restrictions on Use. Notwithstanding any other provision of the Lease between City and Employer, Employer agrees to the following restrictions on the use and enjoyment of the Property: a. Employer shall not install or allow the installation of wells on the Demised Premises without the consent of City, except as provided in 9.4 of the Lease between City and Employer. b. Employer shall not allow any disturbance or excavation of the soil on the Property without the consent of City, except as provided in Section 9.4 of the Lease between City and Employer. c. Employer shall not allow public access to the Property. SECTION 3. CITY PARTICIPATION 3.1 Economic Development Grant. (1) For and in consideration of 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 Employer being and remaining in compliance with the terms of this Agreement, to make six (6) consecutive semi - annual payments (such payments being referred to collectively as the Economic Development Grants) to Employer if Employer leases the Property and /or Improvements thereon during the period such tax increment revenues accrue, as follows: November 1, 2012 November 1, 2013 November 1, 2014 May 1,2013 May 1,2014 May 1,2015 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) during the preceding six -month period in respect of the Property and Minimum Improvements constructed by Employer (the Developer Tax Increments). Employer recognizes and agrees that the Economic Development Grants 080811bal 5 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 Employer 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 Employer (and City may rely upon a statement from Employer 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 Spahn & Rose 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 Spahn & Rose 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 Spahn & Rose 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 080811ba1 provisions of the Urban Renewal Law, and City shall have no obligations to Employer with respect to the use thereof. SECTION 4. COVENANTS OF EMPLOYER 4.1 Lease of Property. Employer shall lease the Property during the Term of this Agreement. 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 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 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 or the Lease. 5.2 Remedies on Default by 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 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; 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. 080811ba1 7 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. 5.8 Remedies on Default by City. If City defaults in the performance of this Agreement, Employer may take any action, including legal, equitable or administrative action that may appear necessary or desirable to collect any payments due under this Agreement, to recover expenses of Employer, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Employer may suspend their performance under this Agreement until they receive assurances from City, deemed adequate by Employer, 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 Employer: Spahn & Rose Lumber Co. Attn: John Hannan 2175 Southpark Ct. Dubuque, Iowa 52001 Phone: (563) 582 -3606 With copy to: O'Connor Thomas Law John C. O'Connor 700 Locust Street Suite 200 Dubuque, IA 52001 Phone: (563) 557 -8400 080811bal 8 (2) 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 Employer 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, 2015 (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. Employer shall promptly record a Memorandum of Development Agreement in the form attached hereto as Exhibit D in the office of the Recorder of Dubuque County, Iowa. Employer 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 Employer has caused this Agreement to be duly executed. 080811bal 9 CITY OF DUBUQUE, IOWA By:Roy D. uol, Mayor Ke in Fir stahl, Acting City Clerk 10 SPAHN & ROSE LUMBER CO., Employer By: Hannan, resident LIST OF EXHIBITS Exhibit A Urban Renewal Plan Exhibit B City Attorney Certificate Exhibit C Opinion of Employer's Counsel Exhibit D Memorandum of Development Agreement 080811bal 11 Prepared by: Return to: EXHIBIT A URBAN RENEWAL PLAN Aaron DeJong, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589 -4393 Kevin S. Firnstahl, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589 -4121 AMENDED and RESTATED URBAN RENEWAL PLAN Greater Downtown Urban Renewal District (A merger of the Downtown Dubuque, Ice Harbor, Kerper Boulevard, and East 7th Street Urban Renewal Districts) City of Dubuque, Iowa This Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal District traces its beginnings to the merger of the Downtown Urban Renewal Area Project Number Iowa R -15, originally established by Resolution 123 -67 by the City Council of the City of Dubuque, Iowa on May 18, 1967 and subsequently amended and restated by Resolution 79 -71 on March 15, 1971, by Resolution 73 -74 on March 11, 1974, by Resolution 107 -82 on May 3, 1982, by Resolution 191 -84 on June 25, 1984, by Resolution 371 -93 on December 6, 1993, by Resolution 145 -94 on May 2, 1994, by Resolution 479 -97 on November 17, 1997, by Resolution 476 -98 on October 19, 1998 and by Resolution 187- 02 on April 1, 2002, with the Ice Harbor Urban Renewal District, originally established by Resolution 403 -89 of the City Council of the City of Dubuque, Iowa on December 18, 1989 and subsequently amended and restated by Resolution 241 -00 on June 5, 2000 and by Resolution 114 -02 on March 4, 2002. The Urban Renewal Plan for the Greater Downtown Urban Renewal District resulting from that merger was later amended by Resolution 170 -04 on April 19, 2004, by Resolution 391 -06 on August 21, 2006, by Resolution 108 -07 on February 20th, 2007, by Resolution 597 -07 on December 17, 2007, by Resolution 300 -08 on September 2, 2008, by Resolution 393 -09 on October 5, 2009, and by Resolution 26 -10 on July 19, 2010. On May 2, 2011 the Kerper Boulevard Industrial Park Economic Development District originally established by Resolution 274 -94 on August 15, 1994 and the East 7th Street Economic Development District, originally established by Resolution 144 -97 on April 7, 1997 were merged into and became part of the Greater Downtown Urban Renewal District, pursuant to Resolution 155 -11 approved on May 2, 2011. Version 2011.2 Note: Complete Urban Renewal Plan is on file in the City Clerk's office, City Hall, 50 West 13th Street, Dubuque, Iowa 080811bal 12 080811bal EXHIBIT B CITY ATTORNEY'S CERTIFICATE 13 BARRY A. LINDAHL, ESQ. CITY ATTORNEY RE: Dear (DATE) THE CITY OF DUBLJ -- E I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution and delivery of a certain Development Agreement between (Employer) 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. BAL:tls 080811bal 14 Very sincerely, Barry A. Lindahl, Esq. City Attorney 080811bal EXHIBIT C OPINION OF EMPLOYER'S COUNSEL 15 Mayor and City Councilmembers City Hall l 3tn 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 Employer 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 080811bal 16 affect the business (present or prospective), financial position or results of operations of Employer or which in any manner raises any questions affecting the validity of the Agreement or the Employer's ability to perform Employer's obligations thereunder. 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, 080811ba1 17 080811bal EXHIBIT D MEMORANDUM OF DEVELOPMENT AGREEMENT 18 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 By: Kevin S. Firnstahl, Acting City Clerk 080811ba1 19 STATE OF IOWA ss: DUBUQUE COUNTY On this day of , 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, to me personally known, who being by me duly sworn did say that they are the Mayor and Acting 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 Acting City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public, State of Iowa STATE OF IOWA ss: DUBUQUE COUNTY On this day of , 20 , before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa F: \USERS \Econ Dev \Spahn & Rose \City Garage Lease DA\20110809 S &R City Garage DA_ docx 080811ba1 20