Chamber of Commerce Development Agreement Amendment
RESOLUTION NO. 411-00
A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN
AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND
AMONG THE CITY OF DUBUQUE, HARBOR VIEW DEVELOPMENT,
LLC AND THE DUBUQUE AREA CHAMBER OF COMMERCE.
Whereas, this Council, by Resolution No. 670-99 dated December 20, 1999 approved and
authorized execution of a Development Agreement with the Dubuque Area Chamber of Commerce
(the Former Developer); and
Whereas, the parties now desire to amend the Development Agreement as set forth in the
attached Amended and Restated Development Agreement so as to, among other things, provide for
a New Developer, an Employer, reimbursement to New Developer for a public pedestrian access and
an easement agreement; and
Whereas, Iowa Code Chapter 403 (the "Urban Renewal Law") and Chapter 15A authorize
cities to provide infrastructure for rehabilitation and reconstruction of blighted areas and economic
development areas in furtherance of the objectives of an urban renewal project and to appropriate
such funds and make such expenditures as may be necessary to carry out the purposes of said
Chapters, and to levy taxes and assessments for such purposes; and
Whereas, the Council has determined that the Development Agreement, as so amended and
restated, is in the best interests of the City and the residents thereof and that the performance by the
City of its obligations thereunder is a public undertaking and purpose and in furtherance ofthe Urban
Renewal Plan and the Urban Renewal Law and, further, that the Development Agreement, as so
amended and restated, and the City's performance thereunder is in furtherance of appropriate
economic development activities and objectives of the City within the meaning of Chapters 403 and
15A of the Iowa Code taking into account the factors set forth therein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, lOW A:
Section I. That the performance by the City of its obligations under the Development
Agreement, as so amended by the Amended and Restated Development Agreement, including but
not limited to making of a grant to the Developer in connection with the development of
Development Property under the terms set forth in the Development Agreement, as so amended and
restated, be and is hereby declared to be a public undertaking and purpose and in furtherance of the
Urban Renewal Plan and the Urban Renewal Law and, further, that the Development Agreement,
as so amended and restated, and the City's performance thereunder is in furtherance of appropriate
economic development activities and objectives ofthe City within the meaning of Chapters 403 and
15A of the Iowa Code, taking into account the factors set forth therein.
Section 2.
That the attached Amended and Restated Development Agreement by and
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among the City of Dubuque, Iowa, Harbor View Development, LLC (the New Developer) and the
Dubuque Area Chamber of Commerce (the Employer) is in the public interest of the citizens of the
City of Dubuque and in furtherance of the City's Urban Renewal Plan, and is hereby approved.
Section 3. That the Mayor is hereby authorized and directed to execute said Amended
and Restated Development Agreement on behalf of the City and the City Clerk is authorized and
directed to attest to his signature.
Passed, approved and adopted this 21st day of August, 2000.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
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CITY OF DUBUQUE, IOWA
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
AGREEMENT, made on or as of the 21st day of August, 2000, by and between the City of
Dubuque, Iowa, a municipality (hereinafter called "CITY"), established pursuant to the Code of Iowa of
the State of Iowa and acting under authorization of Chapter 403 of the Code of Iowa, as amended
(hereinafter cailed "URBAN RENEWAL ACT"), Harbor View Development, LLC, an Iowa limited liability
company (hereinafter called "DEVELOPER") and the Dubuque Area Chamber of Commerce, an Iowa
not-for-profit corporation (hereinafter called "EMPLOYER").
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has undertaken an
. Urban Renewal project (hereinafter called "PROJECT") to advance the community's ongoing economic
development efforts; and
WHEREAS, said Project is located within the Downtown Dubuque Urban Renewal District
(hereinafter called "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 Pian approved by City Council
of City on the 18th of May, 1967 and as subsequently amended through and including the date hereof,
(attached hereto as Exhibit A)( "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
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WHEREAS, Developer has requested that City sell to Developer Lot 2 of Harbor View Place in
Original Town in the City of Dubuque, Iowa, according to the U.S. Commissioner's Plat of the Town of
Dubuque, Iowa (hereinafter called "PROPERTY') so that Developer may redeveiop said Property, located
in the Project Area, for and in accordance with the uses specified in the Urban Renewal Plan and in
accordance with this Agreement; and
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WHEREAS, City believes that the redevelopment of 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 Property ("Purchase Price") shall be Property's fair
market value, establish,,!d pursuant to a re-use appraisal, which shall be due and payable on March 1,
2000 or such other date as the parties may mutually agree ("Closing Date"). The purchase price for Lot 2
of Harbor View Place shall be $73,000.00.
1.2 Title To Be Delivered. City agrees to convey marketable fee simple title in Property to Developer
subject only to easements, restrictions, conditions and covenants of record and as set forth in this
Agreement.
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(1) City at its sole cost and expense shall deliver to Developer an abstract of title to Property
continued through the date of this Agreement reflecting merchantable title in City in conformity
with this Agreement, applicable State law and the Title Standards of the Iowa State Bar
Association. The abstract shall become the property of Developer when Purchase Price is paid in
full. City shall pay the costs of any additional abstracting and title work due to any act or omission
of City between the date of Developer's exercise and the closing.
(2) Developer shall have twenty (20) days after receipt of the abstract of title to render objections
to title, including any easements or other encumbrances not satisfactory to Developer, in writing to
City. City shall have thirty (30) days from the date it receives such objections to have the same
removed or satisfied. If City shall fail to have such objections removed within that time, 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.
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1.3 Condition of Property. City shall deliver Property in its "as is" condition. Developer, its counsel,
accountants, agents and other representatives, shall have full and continuing access to Property and all
parts thereof, upon reasonable notice to City. Developer and its agent and representatives shall also have
the right to enter upon Property at any time after the execution and delivery hereof for any purpose
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whatsoever, including inspecting, surveying, engineering, test boring, performance of environmental tests
and such other work as Developer shall consider appropriate, 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 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 it considers appropriate. All inspection, testing, engineering, and
such other work performed by Developer pursuant to this section shall be solely at Deveioper's expense.
1.4 Reoresentations of Citv. In order to induce Developer to enter into this Agreement and purchase
Property, City hereby represents and warrants to Developer that to the best of City's knowledge:
(1) No action in condemnation, eminent domain or public taking proceedings are now pending or
contemplated against Property.
(2) No ordinance or hearing is now before any local governmental body which either
contemplates or authorizes any public improvements or special tax levies, the cost of which may
be assessed against Property.
(3) City has good and marketabie fee simple title to Property.
(4) There are no notices, orders, suits, judgments or other proceedings relating to fire, building,
zoning, air pollution or health violations that have not been corrected. City shall notify Developer
of any past notices, orders, suits, judgments or other proceedings relating to fire, building, zoning,
air pollution or health violations as they relate to Property of which It has actual notice.
(5) Property will as of the date of closing be free and clear of all liens, security interests,
encumbrances, leases and other restrictions.
1.5 Conditions to Closinq. The closing of the transaction contemplated by this Agreement and all the
obligations of Developer under this Agreement are subject to fuifillment, 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 Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its soie and absolute discretion, having completed and approved of any
inspections done by Developer hereunder.
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(4) Developer having obtained any and all necessary governmental approvals, including without
limitation approval of zoning, subdivision or platting which might be necessary or desirable in
connection with the sale and transfer of 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.
(5) City having completed all required notice to or prior approval, consent or permission of any
federal, state or municipal or local governmental agency, body, board or official to the sale of
Property.
(6) Developer shall be in material compliance with all the terms and provisions of this
Agreement;
(7) Developer shall have furnished City with evidence, in a form satisfactory to City (such as a
letter of commitment from a bank or other lending institution), that Developer has firm
commitments for construction or acquisition and permanent financing for Minimum Improvements
(as defined herein) in an amount sufficient, together with equity commitments, to complete
Minimum Improvements in conformance with Construction Plans (as defined herein), or City shall
have received such other evidence of Developer's financial ability as in the reasonable judgment
of City is required;
(8) Receipt of an opinion of counsel to Developer in the form attached hereto as Exhibit B.
(9) Receipt of an opinion of counsel to Employer in the form attached hereto as Exhibit C.
(10) Following execution of this Agreement, and before closing, Developer shall submit an
application for a certificate of appropriateness from the Historic Preservation Commission for
Developer's plans for Minimum Improvements. If Developer is unable to obtain said certificate of
appropriateness then Developer shall have the option to terminate this Agreement within 30 days
of notice of denial of the certificate of appropriateness.
(11) Following execution of this Agreement, and before closing, Developer may, at its sole
expense, cause to be completed a Phase II Environmental Assessment. If the results of said
assessment are not acceptable to Developer and City is unable or unwilling to correct the
unacceptable findings of the report within 60 days of receipt of the report of the assessment,
Developer shall have the option to terminate this Agreement.
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. 1.6 Closino. The closing of the purchase and sale shall take place on Closing Date. Possession of
Property shall be delivered on the Closing Date.
1.7 Citv's Oblioations at Closino. At or prior to Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to Property (in the form
attached hereto as Exhibit D ("Deed") conveying to Developer marketable fee simple title to
Property and all rights appurtenant thereto subject only to easements, restrictions, conditions and
covenants of record and as set forth in this Agreement.
(2) Deliver to Developer the Abstract of Title to Property.
(3) Deliver to Developer such other documents as may be required by this Agreement, all in a
form satisfactory to Developer.
1.8 Deliverv of Purchase Price: Oblioations At Ciosino. 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.
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1.9 Closino Costs. The following costs and expenses shall be paid in connection with the closing:
(1) City shall pay:
(a) The transfer fee imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1.10.
(c) 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 documentary fee necessary to record the Deed.
(b) Developer's attorneys fees.
(c) Developer's broker and/or real estate commissions and fees, if any.
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(d) A pro-rata portion of all taxes as provided in Section 1.10.
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1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years which end prior to
. Closing Date. Real estate taxes for the fiscal year in which Closing Date occurs shall be prorated between
City and Developer to Closing Date on the basis of a 365 day calendar year. Developer shall pay all real
estate taxes due in subsequent fiscai years. Any proration of real estate taxes on Property shall be based
upon such taxes for the year currently payable.
SECTION 2. REDEVELOPMENT ACTIVITIES
2.1 Required Minimum Imorovements. Developer hereby agrees to construct on Property a building
of at ieast three (3) stories above Main Street grade containing not less than twenty-two thousand (22,000)
square feet of floor space and at a cost of not less than one million three hundred thousand
($1,300,000.00) dollars. The building shall be of high quality architectural design and shall be compatible
with the setback, scale and materials of neighboring buildings. The building design shall be compatible
with the pedestrian orientation of the adjoining streets.
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2.2 Plans for Construction of Imorovements. Plans and specifications with respect to the
redevelopment of Property and the construction of improvements thereon shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable State and local laws and regulations. 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 Property. All work with respect to the
improvements shall be in conformity with the plans approved by City.
2.3 TiminQ of Imorovements. Developer hereby agrees that construction of its planned building
improvements on Property shall be commenced within six (6) months after the date of the deed, and shall
be substantially completed within eighteen (18) months after such date.
2.4 Certificate of Comoletion. Promptly upon completion of the improvements in accordance with
those provisions of this Agreement relating solely to the obligations of Developer to construct the
improvements (including the dates for beginning and completion thereof), City shall furnish Developer with
an appropriate instrument so certifying. Such certification 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 improvements.
SECTION 3. CITY PARTICIPATION
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3.1 Acquisition Grant to Develooer. For and in consideration of Developer's obligations hereunder to
construct Minimum Improvements and Employer's obligation to create new jobs, 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 an amount equal to the purchase price minus sixty-six thousand dollars ($66,000.00).
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3.2 Imorovements bv Citv. For and in consideration of Developer's obligations hereunder to construct
. Minimum Improvements and to create new jobs, City agrees to:
(1) Demolish the former Dolan property which adjoins Property and construct a driveway
connection from Main Street to the parking ramp City plans to build to the east of Property across
the public alley. Said parking ramp will be designed to extend no further south than the north right
of way line of the existing east-west pubiic alley extension to Iowa Street.
(2) Construct a handicapped accessible pedestrian access from the proposed parking ramp to
the corner of 3" and Main Street as shown on the drawings attached hereto as Exhibit E - 1 and
E -2.
(3) Reimburse Developer up to sixty-six thousand dollars ($66,000.00) for the construction of a
facade across the frontage of Lot 1 of Harbor View Place and for the construction of a public
pedestrian access along the east side of Developer's property. City shall have the right to
approve the design and construction of this improvement. Developer shall grant City an
easement for public pedestrian access along the easterly portion of Property through an
easement agreement in substantially the form of Exhibit F attached hereto.
. 3.3 Provision for Soecial ParkinQ. For and in consideration of Employer's obligations to create new
jobs, City agrees for as long as Empioyer shall maintain an Iowa Weicome Center on Property to:
(1) Provide bus parking for two commercial buses within one block of the Main Street entrance to
Developer's building;
(2) Provide short-term, non-exclusive visitor parking for eight automobiles within one-half block
of the Main Street entrance to Developer's Building; and
(3) Provide two (2) non-exclusive 5-10 minute street meter spaces in front of Developer's
building.
SECTION 4. COVENANTS OF EMPLOYER AND DEVELOPER
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4.1 Job Creation. Employer shall employ sixteen (16) permanent full-time (2080 hours per year)
(FTE) positions in Dubuque, Iowa, by January 1, 2002 and shall maintain that number of positions through
December 31, 2005. Employer agrees to refund to City a portion of the acquisition grant made to
Developer equal to thirty-five hundred dollars ($3,500.00) for each permanent full-time equivalent position
not employed as required by this Agreement. The refund shall be paid to City within sixty (60) days of
written demand by City.
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4.2 Annual Certification. To assist City in monitoring the performance of Employer hereunder, a duly
authorized officer of Employer shall annually certify to City (a) the number of Full Time Employment Units
empioyed at Property as of the anniversary of the Commencement Date (date of Certificate of
Completion) and as of the first day of each of the preceding eieven (11) months, 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 January 15 of each year, commencing
January 15, 2001 and ending on January 15, 2006 both dates inclusive.
4.3 Insurance Coveraaes. During the course of construction of the improvements, Developer shall
maintain insurance as set forth in the attached insurance schedule.
(1) Developer shall provide and maintain at all times during the construction of Minimum
Improvements (and, from time to time at the request of City, furnish City with proof of payment of
premiums on):
(a) Builder's risk insurance, written on the Special Perils Form in an amount equal to one
hundred percent (100%) of the replacement value of Minimum Improvements as of the
date of completion;
(b) Commerciai general liability insurance (including operations, contingent liability,
operations of subcontractors, completed operations and contractual liability insurance)
together with an Owner's Contractor's Policy with limits against bodily injury and property
damage of not less than $2,000,000 for each occurrence (to accomplish the above-
required limits, an umbrella excess liability policy may be used); and
(c) Worker's compensation insurance, with statutory coverage.
(2) Upon completion of construction of Minimum Improvements and prior 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 the payment of premiums on) insurance as
follows:
(a) Property insurance against loss and/or damage to Minimum Improvements under an
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insurance policy written on the Special Perils Form in an amount not less than the full
insurable replacement value of Minimum Improvements, but any such policy may have a
deductible amount of not more than $50,000. No policy of insurance shall be so written
that the proceeds thereof will produce less than the minimum coverage required by the
preceding sentence, by reason of co-insurance provisions or otherwise, without the prior
consent thereto in writing by City. 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 determined from time to time at the request of City, but not more
frequently than once every three years, and paid for by Developer.
(b) Commercial general liability insurance, including personal injury liability for injuries to
persons and/or property, in the minimum amount for each occurrence and for each year
of $2,000,000.
(c) Automobile liability insurance with a minimum limit per occurrence of $1 ,000,000.
(d) Worker's compensation insurance respecting all employees of Developer.
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(3) All insurance required by this Section shall be taken out and maintained in responsible
insurance companies selected by Developer which are authorized under the laws of the State to
assume the risks covered thereby. Developer shall deposit annually with City copies of policies
evidencing all such insurance, or a certificate or certificates or binders of the respective insurers
stating that such insurance is in force and effect. Unless otherwise provided in this Section, each
policy shall contain a provision that the insurer shall not cancel or modify it without giving written
notice to Developer and City at least thirty (30) days before the cancellation or modification
becomes effective. Developer shall furnish City evidence satisfactory to City that the policy has
been renewed or replaced by another policy conforming to the provisions of this Section, or that
there is no necessity therefor under the terms hereof. In lieu of separate policies, Developer may
maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide
the total coverage required herein, in which event Developer shall deposit with City a certificate or
certificates of the respective insurers as to the amount of coverage in force upon Minimum
Improvements, provided, however, the specific limit shall not be impaired.
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(4) Developer shall notify City immediately in the case of damage exceeding $25,000 in amount
to, or destruction of, Minimum Improvements or any portion thereof resulting from fire or other
casualty. Net proceeds of any such insurance ("Net Proceeds") shall be paid directly to
Developer, and Developer shall forthwith repair, reconstruct and restore Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to the event
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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.
(5) 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.
4.4 Non-Discrimination. In carrying out the project, Developer and Empioyer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex, national origin,
age or disability.
4.5 Conflict of Interest. Developer and Employer agree that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City, and no other
public official of City who exercises or has exercised any functions or responsibilities with respect to the
project during his or her 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.
4.6 Non-transferabilitv. Until such time as Minimum Improvements are complete (as certified by City
under Section 2.4), this Agreement may not be assigned by Developer nor may Property be transferred
by Developer to another party without the prior written consent of City.
4.7 Restrictions on Use. Developer agrees for itself, and its successors and assigns, and every
successor in interest to Property or any part thereof, and the Deed shall contain covenants on the part of
Developer for itself, and such successors and assigns, that Developer and such successors and assigns,
shall:
(1) Devote Property to, and only to and in accordance with, the uses specified in the Urban
Renewal Plan; and
(2) Not discriminate upon the basis of race, religion, color, sex, national origin, age or disability in
the sale, lease, rental, use or occupancy of Property or any improvements erected or to be
erected thereon, or any part thereof.
SECTION 5. RELEASE AND INDEMNIFICATION COVENANTS
5.1 Developer releases City and the governing body members, officers, agents, servants and
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employees thereof (hereinafter, for purposes of this Section 5, the "indemnified parties") from, 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 Minimum Improvements.
5.2 Except for any willful misrepresentation or any willful or wanton misconduct or any uniawful act of
the indemnified parties, Developer agrees to protect and defend the indemnified parties, now or forever,
and further agrees to hoid 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 (i) any
violation by Developer of any provision or condition of this Agreement (except with respect to any suit,
action, demand or other proceeding brought by Developer against City to enforce its rights under this
Agreement), or (ii) construction, installation, ownership, and operation of Minimum Improvements, or (iii)
the condition of Property and any hazardous substance or environmental contamination located in or on
Property the existence of which did not predate the conveyance of title by the City to the Developer or its
assignee.
5.3 The indemnified parties shall not be liable for any damage or injury to the persons or property of
Deveioper or its officers, agents, servants or employees or any other person who may be about 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.
5.4 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 the individual capacity thereof.
5.5 The provisions of this Section 5 shall survive the termination of this Agreement.
SECTION 6, EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default Defined. The following shall be "Events of Default" under this Agreement and
the term "Event of Default" shall mean, whenever it is used in this Agreement, anyone or more of the
following events:
(1) Failure by Developer to pay, before delinquency, all real property taxes assessed with respect
to Minimum Improvements and Property.
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(2) Failure by Developer to cause the construction of Minimum Improvements to be commenced
and completed pursuant to the terms, conditions and limitations of this Agreement.
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(3) Failure by Developer to cause Minimum Improvements to be reconstructed when required
pursuant to this Agreement
(4) Transfer of any interest by Developer of Minimum Improvements in violation of the provisions
of this Agreement
(5) Failure by Developer, Employer or City to substantially observe or perform any other
covenant, condition, obligation or agreement on its part to be observed or performed under this
Agreement
(6) Commencement of foreclosure proceedings by the holder of any Mortgage on Property, or
any improvements thereon, or any portion thereof, as a result of any default under the applicable
Mortgage documents.
(7) Developer shall:
(a) file any petition in bankruptcy or for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy
Act of 1978, as amended, or under any similar federal or state law; or
(b) make an assignment for the benefit of its creditors; or
(c) admit in writing its inability to pay its debts generally as they become due; or
(d) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing the
adjudication of Developer as a bankrupt or its reorganization under any present or future
federal bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days after the
filing thereof; or a receiver, trustee or liquidator of Developer or of Minimum
Improvements, or part thereof, shall be appointed in any proceedings brought against
Developer, and shall not be discharged within ninety (90) days after such appointment, or
if Developer shall consent to or acquiesce in such appointment
6.2 Remedies on Default bv Develooer. Whenever any Event of Default referred to in Section 6.1 of
this Agreement occurs and is continuing, City, as specified below, may take anyone or more of the
following actions after (except in the case of an Event of Default under subsection (7) of said Section 6.1)
the giving of thirty (30) days' written notice by City to Developer (and the holder of any mortgage
encumbering any interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within said thirty (30) days, or if the Event of
Default cannot be cured within thirty (30) days and the Developer does not provide assurances to City
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reasonably satisfactory to City that the Event of Default will be cured as soon as reasonably possible:
(1) City may suspend its performance under this Agreement until it receives assurances from
Developer, deemed adequate by City, that Developer will cure its default and continue its
performance under this Agreement;
(2) 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 Developer;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitabie 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 of Developer under this
Agreement
6.3 RevestinQ Title in the City Upon HappeninQ of Event Subsequent to Convevance to Developer. In
the event that subsequent to conveyance of Property to Developer by City and prior to receipt by
Developer of the Certificate of Completion, and subject to the terms of any mortgage granted by
Developer to secure any loan obtained by Developer from a commercial lender or other financial institution
to fund the acquisition of Property or construction of Minimum Improvements ("First Mortgage"), if an
Event of Default under Section 6.1 of this Agreement occurs and is not cured within the times specified in
Section 6.2, then City shall have the right to re-enter and take possession of Property and any portion of
Minimum Improvements thereon and to terminate (and revest in City pursuant to the provisions of this
Section 6.3 subject only to any superior rights in any holder of a First Mortgage consented to by City) the
Property conveyed by the Deed 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 any
default under Section 6.1 on the part of Developer and failure on the part of Developer to cure such
defauit 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 6.4 of this Agreement), but only if the events stated in Section 6.1 of this Agreement have not
been cured within the time period provided above, or, if the events cannot be cured within such time
periods, Developer does not provide assurance to City, satisfactory to City, that the events will be cured as
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soon as reasonably possible.
6.4 Resale of Reacquired Propertv: Disposition of Proceeds. Upon the revesting in City of title to
Property as provided in Section 6.3 of this Agreement, City shall, pursuant to its responsibility under iaw,
use its best efforts, subject to any rights or interests in such property or resale granted to any holder of a
First Mortgage pursuant to Agreement and previously consented to by City, to resell 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 Property or part thereof in the Urban Renewal Plan. Subject to any rights or interests in
such property or proceeds granted to any hoider of a First Mortgage pursuant to this Agreement and
previously acquiesced in by City upon such resale of Property the proceeds thereof shall be applied:
(1) First, to pay and discharge any liens and encumbrances which are prior to the mortgage(s)
previously acquiesced in by City pursuant to this Agreement;
(2) Second, to pay the principal and interest on mortgage(s) created on 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 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
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 Property or part thereof at the time of revesting of title thereto in City or to discharge or prevent
from attaching or bring made any subsequent encumbrances or liens due to obligations, defaults
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 Minimum
Improvements or any part thereof on 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 (i) the sum of the Purchase Price
14
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paid to City for Property and the cash actually invested by Developer in making any of the
Minimum Improvements on Property, less (ii) any gains or income withdrawn or made by
Developer from this Agreement or Property.
6.5 No Remedv 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
defauit shall impair any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient.
6.6 No Imolied 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.
6.7 Aareement to Pav Attornevs' Fees and Exoenses. Whenever any Event of Default occurs and
City shall employ attorneys or incur other expenses for the collection of payments due or to become due
or for the enforcement or performance or observance of any obligation or agreement on the part of
. Developer herein contained, Developer agrees that it shall, on demand therefor, pay to City the
reasonable fees of such attorneys and such other expenses so incurred by City.
6.8 Remedies on Default bv Citv. If City defaults in the performance of this Agreement, Developer or
Employer may take any action, including legal, equitable or administrative action, which may appear
necessary or desirable to collect any payments due under this Agreement, to recover expenses of
Developer or Empioyer, or to enforce performance and observance of any obiigation, agreement, or
covenant of City under this Agreement. Developer may suspend performance under this Agreement until
Developer receives assurances from City, deemed adequate by Developer, that City will cure its default
and continue its performance under this Agreement. Employer may suspend performance under this
Agreement until Employer receives assurances from City, deemed adequate by Employer, that City will
cure its default and continue its performance under this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS
.
7.1 NOTICES AND DEMANDS. Whenever this Agreement requires or permits any notice or written
request by one party to another, it shall be in writing, enclosed in an envelope, addressed to the party to
be notified, properly stamped, sealed and deposited in the United States Mail, and
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(1) in case of Developer, is addressed to:
AI Urbain
Harbor View Development, LLC
1890 John F. Kennedy Road
Dubuque, Iowa 52002
(2) in the case of Employer, is addressed to:
Steven Horman, President
Dubuque area Chamber of Commerce
770 Town Clock Plaza
Dubuque, Iowa 52001
(3) in the case of City, is addressed to:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001.
or at such other address with respect to either party as that party may, from time to time designate in
writing and forward to the other as provided in this Section. Any notice delivered hereunder shall be
. deemed delivered upon the earlier of the actual receipt or two (2) business days after posting.
7.2 Comoliance with Laws and Reoulations. Developer and Employer shall comply with all applicable
City, State, and federal laws, rules, ordinances, regulations and orders.
7.3 Bindino Effect. This Agreement shall be binding upon and shall inure to the benefit of City,
Developer and Employer and their respective successors and assigns.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its name and
behalf by its Mayor and attested by its City Clerk, Developer has caused this Agreement to be duly
executed and Employer has caused this Agreement to be duly executed in its name and behalf on or as of
the day first above written.
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16
CITY OF DUBUQUE, IOWA
Terrance M. Duggan, Mayor
Jeanne F. Schneider, City Clerk
HARBOR VIEW DEVELOPMENT, LLC
Aloysius Urbain, Member
John Allen, Member
DUBUQUE AREA CHAMBER OF
J. Steven Horman, President
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CITY OF DUBUQUE, IOWA
MEMORANDUM
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August 1 7, 2000
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT:
Amended and Restated Development Agreement with Harbor View
Development, LLC and the Dubuque Area Chamber of Commerce
Community and Economic Development Director Jim Burke is recommending an
amendment to the Development Agreement that provides for the construction of a new
building on the site of the former Merchants Hotel and Dolan Building. This building will
house the Dubuque Area Chamber of Commerce and the Greater Dubuque Development
Corporation.
.
The two major changes are:
1 . Instead of the Chamber of Commerce being the developer of the project it
will be developed by Allen and Urbain Architects through a limited liability
company, Harbor View Development.
2. To satisfy the City's desire to provide pedestrian access to Third Street and
Main Street from the soon-to-be constructed Third Street parking ramp, the
City will be obligated to build a $150,000 pedestrian access to the parking
garage. The City will also take on all responsibility for these access points.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/dd
Attachment
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cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
Jim Burke, Community and Economic Development Director
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CITY OF DUBUQUE, IOWA
MEMORANDUM
August 4, 2000
TO:
FROM:
am s Bur e, Community and Economic Development Director
SUBJ:
mended and Restated Development Agreement with Harbor View
Development, LLC and the Dubuque Area Chamber of Commerce
INTRODUCTION
This memorandum presents for City Council consideration a resolution approving and
authorizing execution of an amended and restated Development Agreement by and among the
City, Harbor View Development, LLC and the Dubuque Area Chamber of Commerce. The
revisions are needed to reflect design and development changes that have been made since the
original Development Agreement was signed by the City and the Chamber and to provide for a
new developer.
BACKGROUND
The City Council signed a Development Agreement with the Chamber of Commerce following a
public hearing on December 20, 1999. The Agreement set the terms and conditions of the sale
and development ofthe former Merchants Hotel site and granted an option to purchase the
former Dolan property. Since that time, the Chamber hired Allen & Urbain Architects to design
and develop the property. As the Chamber's selected developer, Allen & Urbain have created a
limited liability company -- Harbor View Development, LLC -- to develop the property and seeks
to be named the "Developer" of the project. The Chamber becomes the "Employer" in the
revised, three party Development Agreement.
DISCUSSION
The amended and restated Development Agreement makes several changes that reflect decisions
and actions that have occurred since the original agreement was signed. Purchase and demolition
of the Dolan property and final design of the new 3'd Street parking ramp have resolved issues
regarding vehicular and pedestrian access to the new parking ramp. The City's parking ramp
design team worked with Allen & Urbain to ensure mutually acceptable and workable access to
the new ramp for both vehicles and pedestrians. The design has required, however, the shifting
of the Chamber building north 13 feet 3 inches. The attached plat was prepared to accommodate
this change. As now proposed, the City will retain Lots 1 and 3 for pedestrian and vehicular
access. Lot 2 will be sold to the developer. (See attached Plat of Harbor View Place.)
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The revised Development Agreement provides for the following changes:
I. Adds Harbor View Development, LLC as the new "Developer" and makes the
Chamber the "Employer".
2. Changes the property to be acquired by Developer to Lot 2 of Harbor View Place
with City to retain Lots I and 3. The size of the property remains the same.
3. Eliminates the option to purchase the former Dolan property since it was
determined that a vehicular drive from Main Street into the new parking ramp was
feasible.
4.
Adds a handicap accessible pedestrian walk on the south side of the building as a
City responsibility. (See attached Exhibit E - I and E - 2.) This improvement
makes for a more pedestrian-friendly access to the corner of3'd and Main Street
and encourages the use of the parking ramp by Old Main area businesses. The
cost to build this walkway and the pedestrian bridge across the alley into the
parking ramp, including retaining wall, decorative railing and lighting is estimated
at $150,000. The City will fund this expense through the General Fund and
sidewalk replacement funds. The Developer will provide a public pedestrian
easement across the easterly portion of Lot 2 as provided in Exhibit F of the
Development Agreement.
.
5. Clarifies the reimbursement of up to the full purchase price ($66,000) back to the
Developers for the facade connection across Lot I and for a public pedestrian
access across the east side of Developer's property.
RECOMMENDATION
I recommend that the City Council approve the amended and restated Development Agreement
by and among the City, Harbor View Development, LLC and the Dubuque Area Chamber of
Commerce and authorize and direct the Mayor and City Clerk to sign on behalf of the City of
Dubuque.
ACTION STEP
The action step is for the City Council to approve the attached resolution.
attachments
August 17,2000
F:\USERS\Pmyhre\WPDOCS\lOANDOCICHAMBERlrev&re.t3temeroo,wpd
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IlW ENGINEERS &: SURVEYORS F'.C.
4155 PENNSYLVANIA AVE.
DUBuauE. IOWA,
(319) 556-2454
PLAT OF SURVEY
LOT 1, LOT 2 AND LOT 3 OF HARBOR VIEW PLACE
IN THE CITY OF DUBUQUE, IOWA
DESCRIPTION: CITY LOT 9 AND CITY LOT 10
IN THE CITY OF DUBUQUE, IOWA
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TOTAL AREA SURvEYED; 11,167 SQ. FT.
PROPRIETORS; CITY OF' DUBUOUE, IOWA
1 H(RE8Y CERTifY tHI\T THIS LI\NO SURvEYlNC OOCUl.IENT WI\S
P~E:Pl\REO 8'1' l.IE OR UND(R l.IY DIRE:CT PERSONAL SUPER\o1SION
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Dubuque. IA 52002
319.555.2464
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DATE
l.IYliCENS( IOENEWI\L DATE IS 12/JI/2oo0
DRAWN SAf PLAT NO. 87-IA 00
CHECKED JUT PROJ. NO. 00006-10
DATE 7 17-00 SHEET 1 of 4
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