Bonson Block LLC Development Agreement for 356 Main StreetMasterpiece on the Mississippi
Dubuque
knerd
All-America City
hill!
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Public Hearing for a Development Agreement with Bonson Block LLC to
Redevelop Property Located at 356 Main Street
DATE: December 9, 2011
Economic Development Director Dave Heiar recommends the City Council approve a
Development Agreement with Bonson Block LLC to redevelop property located at 356
Main Street.
The key elements of the Development Agreement are:
1) The project will receive $80,000 in incentives through the Downtown Housing
Incentive Program. The City Council previously authorized this funding on
October 18, 2010.
2) Bonson Block, LLC will receive a 15 year TIF rebate in the form of a yearly tax
rebates on the value of the assessable improvements.
3) Developer will invest $1,767,500 to create 8 market -rate residential units. This
renovation will include commercial space on the main floor of the building.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael 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
Dubuque
knetril
All-America City
2007
SUBJECT: Public Hearing for a Development Agreement with Bonson Block
LLC to redevelop property located at 356 Main Street
DATE: December 8, 2011
INTRODUCTION
This memorandum presents for City Council consideration a Resolution approving a
Development Agreement with Bonson Block, LLC on the property located at 356 Main
Street.
BACKGROUND
City staff has worked with Bonson Block, LLC to formulate a funding package to
redevelop the property located at 356 Main Street.
Bonson Block, LLC plans to invest $1,767,500 in redeveloping 356 Main Street to include
creating eight apartments for market -rate rental and improving the first floor as commercial
space.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
redevelopment of the property.
The Development Agreement requires the redevelopment of the property located at 356
Main Street. The key elements of the Development Agreement include the following:
1) The project will receive $80,000 in incentives through the Downtown Housing
Incentive Program. The City Council previously authorized this funding on
October 18, 2010.
2) Bonson Block, LLC will receive a 15 year TIF rebate in the form of a yearly tax
rebates on the value of the assessable improvements.
3) Developer will invest $1,767,500 to create 8 market -rate residential units. This
renovation will include commercial space on the main floor of the building.
Additional terms and conditions are included within the attached Development
Agreement.
RECOMMENDATION
I recommend that the City Council approve the Development Agreement which includes
urban renewal tax increment obligations to Bonson Block, LLC for the purpose of
redeveloping the properties located at 356 Main Street as detailed in the attached
Development Agreement.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution approving the
proposed Development Agreement.
F \USERS \Econ Dev \356 Main Street- Bonson Block \DA \20111122 Bonson Block Memo Setting Public Hearing doc
RESOLUTION NO. 437 -11
A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT WITH BONSON
BLOCK, LLC FOR THE PROPERTY LOCATED AT 356 MAIN STREET
Whereas, the City of Dubuque, Iowa, has created a Downtown Incentive
Programs for the purpose of stimulating reinvestment 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 the rehabilitation of the Property owned by Bonson Block, LLC 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 Bonson Block, LLC 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
Bonson Block, LLC.
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 grant documents and is
further authorized to disburse grant funds in accordance with the terms and conditions
of the executed agreement.
Attest:
Passed, approved and adopted thisl9 th day of December, 2011.
Kevi irnstahl, City Clerk
/ Lynn Sutton, Mayor Pro -Tem
F: \USERS \Econ Dev \356 Main Street- Bonson Block \DA\20111206_Bonson Block Approve DA Public Hearing Resolution.doc
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
BONSON BLOCK, L.L.C.
THIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposes the
1 9th day of December , 2011 is made and entered into by and between the City of
Dubuque, Iowa (City), and Bonson Block, L.L.0 (Developer).
WHEREAS, Developer is the owner of the following described real estate (the
Property):
The southerly 42 and 8 /12ths feet of Lot 11 in the City of Dubuque, Iowa, according to the
United States Commissioners' Map of the Town of Dubuque, Iowa. The real estate
conveyed herein is also described as the south two thirds (2/3) of city Lot 11 in the city of
Dubuque; and
WHEREAS, the Property is located in the Greater Downtown Urban Renewal District
(the District) which has been so designated by City Council Resolution 155 -11 as a slum
and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer has undertaken the redevelopment of a three -story building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (Project); and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
May 2, 2011, City has the authority to enter into contracts and agreements to implement
the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
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(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
(8) 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 Plan, most recently approved by
City Council of City on May 2, 2011, and as subsequently amended through and
including the date hereof, (attached as Exhibit E) (the Urban Renewal Plan). A copy
of the Urban Renewal Plan, as constituted on the date of this Agreement and in the
form attached hereto, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is in
full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to the City, at time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
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(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
1.3 Closing. The closing shall take place on the Closing Date which shall be the 30th
day of December, 2011, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 31st day of January, 2012. Consummation of
the closing shall be deemed an agreement of the parties to this Agreement that the
conditions of closing shall have been satisfied or waived.
1.4 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines in
its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
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(5) Developer's counsel shall issue a legal opinion to the City confirming the
representations contained herein in the form attached hereto as Exhibit B.
1.5 City's Obligations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer will make a capital investment of not
less than one million seven hundred sixty -seven thousand five hundred dollars
($1,767,500.00) to acquire and improve the Property (the Minimum Improvements). These
Minimum Improvements include creating eight (8) apartments for market -rate rental and
maintaining the first floor as commercial space.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban Renewal
Plan, this Agreement, and all applicable state and local laws and regulations, including but
not limited to any covenants, conditions, restrictions, reservations, easements, liens and
charges, recorded in the records of Dubuque County, Iowa. Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to
the improvements to be constructed by Developer on the Property. All work with respect to
the Minimum Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2.4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within thirty (30) days after
the Closing Date, and shall be substantially completed by July 1, 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.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an appropriate
instrument so certifying. Such certification (the Certificate of Completion) shall be in
recordable form and shall be a conclusive determination of the satisfaction of Developer's
5
obligations to make the Minimum Improvements under this Agreement and completion of
the Minimum Improvements by Developer as required by this Agreement.
SECTION 3. CITY PARTICIPATION
3.1 Downtown Housing Incentive.
(1) City agrees to provide to Developer on the terms and conditions set forth
herein a grant in the amount of Eighty Thousand Dollars ($80,000.00) (the Grant)
that shall consist of Incentive Program funds.
(2) Grant funds shall be disbursed to Developer by City for Qualifying Project
Expenses as defined in the Grant Agreement for amounts not in excess of the total
sum in Section 3.1. It is expressly understood that all funds advanced under this
Agreement shall be used by Developer only for the purpose of paying the Qualifying
Project Expenses set forth in such written requests.
(3) Grant funds will be disbursed to the Developer after City issuance of a
Certificate of Occupancy for the Project. Prior to the disbursement of any funds,
Developer shall provide evidence satisfactory to City that the improvements have
been completed in accordance with the plans and other documentation submitted to
City with the application.
3.2 Economic Development Grants to Developer. For and in consideration of
Developer's obligations hereunder, and in furtherance of the goals and objectives of the
urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject
to Developer being and remaining in compliance with the terms of this Agreement, to make
thirty (30) consecutive semi - annual payments (such payments being referred to collectively
as the Economic Development Grants) to Developer:
November 1, 2013
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
November 1, 2019
November 1, 2020
November 1, 2021
November 1, 2022
November 1, 2023
November 1, 2024
November 1, 2025
November 1, 2026
November 1, 2027
May 1,2014
May 1,2015
May 1,2016
May 1,2017
May 1,2018
May 1,2019
May 1, 2020
May 1, 2021
May 1, 2022
May 1, 2023
May 1, 2024
May 1, 2025
May 1, 2026
May 1, 2027
May 1, 2028
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pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts equal to a
portion of the tax increment revenues collected by City under Iowa Code Section 403.19
(without regard to any averaging that may otherwise be utilized under Iowa Code Section
403.19 and excluding any interest that may accrue thereon prior to payment to Developer)
during the preceding six -month period in respect of the Minimum Improvements
constructed by Developer (the Developer Tax Increments). For purposes of calculating the
amount of the Economic Development Grants provided in this Section, the Developer Tax
Increments shall be only those tax increment revenues collected by City in respect of the
increase in the assessed value of the Property above the assessment of January 1, 2011
($265,610.00). The Developer Tax Increments shall not include (i) any property taxes
collected for the payment of bonds and interest of each taxing district, (ii) any taxes for the
regular and voter - approved physical plant and equipment levy, (iii) the remaining actual
amount of tax increment revenues collected by City in respect of the valuations of the
Property prior to January 1, 2012 and (iv) any other portion required to be excluded by
Iowa law, and thus such incremental taxes will not include all amounts paid by Developer
as regular property taxes.
3.3 To fund the Economic Development Grants, City shall certify to the County prior to
December 1, 2012, its request for the available Developer Tax Increments resulting from
the assessments imposed by the County as of January 1 of that year and each year
thereafter until and including January 1, 2026, to be collected by City as taxes are paid
during the following fiscal year and which shall thereafter be disbursed to the Developer on
November 1 and May 1 of that fiscal year. (Example: if City so certifies in December, 2012,
the Economic Development Grants in respect thereof would be paid to the Developer on
November 1, 2013, and May 1, 2014.)
3.4 The Economic Development Grants shall be payable from and secured solely and
only by the Developer Tax Increments paid to City that, upon receipt, shall be deposited
and held in a special account created for such purpose and designated as the 356 Main
TIF Account of City. City hereby covenants and agrees to maintain its TIF ordinance in
force during the term hereof and to apply the incremental taxes collected in respect of the
Minimum Improvements and allocated to the 356 Main TIF Account to pay the Economic
Development Grants, as and to the extent set forth in Section 3.2 hereof. The Economic
Development Grants shall not be payable in any manner by other tax increments revenues,
or by general taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Developer as the Economic Development
Grants in any one year and under no circumstances shall City in any manner be liable to
Developer so long as City timely applies the Developer Tax Increments actually collected
and held in the 356 Main TIF Account (regardless of the amounts thereof) to the payment
of the Economic Development Grants to Developer as and to the extent described in this
Section.
3.5 City shall be free to use any and all tax increment revenues collected in respect of
other properties within the Project Area and the remaining actual amount of the property
taxes paid by Developer to City, or any available Developer Tax Increments resulting from
the termination of the annual Economic Development Grants under Section 3.2 hereof, for
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any purpose for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to Developer with
respect to the use thereof.
SECTION 4. COVENANTS OF DEVELOPER
4.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's
Standards for Rehabilitation.
[4.2 This section intentionally left blank.]
4.3 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Developer shall provide reasonable protection against loss or damage to such books of
record and account.
4.4 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.5 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 at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100 %) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense property insurance against loss and /or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
8
value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear, and
Developer shall forthwith repair, reconstruct and restore the Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to
the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property (as its interests may appear). Developer shall
complete the repair, reconstruction and restoration of Minimum Improvements
whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.8 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.
9
4.10 Non - Transferability. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.5), this Agreement may not be assigned by Developer
nor may the Property be transferred by Developer to another party. Thereafter, with the
prior written consent of City, which shall not be unreasonably withheld, Developer shall
have the right to assign this Agreement, and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.11 No change in Tax Classification. Developer agrees that it will not take any action
to change, or otherwise allow, the classification of the Property for property tax
purposes to become other than commercial property and to be taxed as such under
Iowa law.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a restaurant and upper -story housing, is in full compliance with the
Urban Renewal Plan) (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, 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).
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
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(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
5.2. Remedies on Default by Developer. 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) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) Until issuance of the Certificate of Completion, City shall be entitled to
recover from Developer the sum of all amounts expended by City in connection with
the funding of the Downtown Rehab Loan /Grant and Economic Development Grant
to Developer and City may take any action, including any legal action it deems
necessary, to recover such amounts from the Developer;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
11
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
5.4 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
5.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
5.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that may
appear necessary or desirable to collect any payments due under this Agreement, to
recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may suspend
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:
If to Developer: Bonson Block, L.L.C.
Attn: Jim Hobart
4425 Plumberry Road
Ely, IA 52227
With copy to: John Beasley
Phelan Tucker Law Firm
P.O. Box 2150
321 E. Markey Street
Iowa City IA 52244
If to City: City Manager
12
With copy to:
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
City Attorney
City Hall
50 W. 13t" Street
Dubuque IA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2028 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D
in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
costs for so recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA
By / /
-Buol Lynn Sutton
Mayor Pro -Tem
Attest:
i
Kevi . Firnstahl
City Clerk
13
BONSON BLOCK, L.L.C.
By
Mike Frantz, Man
(City Seal)
STATE OF IOWA
)
)
COUNTY OF DUBUQUE )
SS
On this day of tP4 6ti./ 20L, before me the undersigned, a Notary
Public in and for the said County and State, 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 City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation
executing the instrument to which this is attached; that the seal affixed hereto is the seal of
said municipal corporation; that said instrument was signed and sealed on behalf of the
City of Dubuque, Iowa, by authority of its City Council; and that said Mayor and City Clerk
acknowledged the execution of said instrument to be the voluntary act and deed of said
City, • it and by t voluntaril' : 'ecuted. ( *Lynn Sutton, Mayor Pro -Tem)
STATE OF IOWA
)
SS
COUNTY OF DUBUQUE )
On this Ise day of 1 (e 4 II ,- 20/ 1, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Mike Frantz, to me personally
known, who, being by me duly sworn, did say that he is Manager of
Bonson Block, L.L.C. the limited liability company executing the instrument to which this is
attached and that as said Manager of Bonson Block, L.L.C. acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily e ecuted.
SUSAN M. WINTER
COMMISSION NO.103274
MY COMMISSION EXPIRES
Notary ' blic
F: \U - con Dev \356 Main Street- Bonson Block\DA\20111129 Bonson Block DA.doc
14
I JOHN E BEASLEY
com—rlssion Number 162595
'' My 4ommissron Expires
0* 1 October 15, 2012
LIST OF EXHIBITS
EXHIBIT A — City Attorney's Certificate
EXHIBIT B — Opinion of Developer's Counsel
EXHIBIT C — City Certificate
EXHIBIT D — Memorandum of Development Agreement
EXHIBIT E — Urban Renewal Plan
EXHIBIT A
CITY ATTORNEY'S CERTIFICATE
16
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(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.
BAL:tls
17
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT B
OPINION OF DEVELOPER'S COUNSEL
18
Mayor and City Councilmembers
City Hall
13t 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 corporation organized and existing under the laws of the State
of Illinois and has full power and authority to execute, deliver and perform in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Developer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Developer enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer, any
indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Developer is a party or by which Developer's
property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
19
Very truly yours,
20
EXHIBIT C
CITY CERTIFICATE
21
City 'tanager's C)ttiee
50 West 13th Stmt
Dubuque, Iowa 52001. —tsm
(563) 589 -4110 phone
(563) 580 -4149 fax
ctym; r'.,'c:ityottiubuquc.or„
Dear
(DATE)
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the day of , 20_
On behalf of the City of Dubuque, 1 hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
22
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
MCVM:jh
23
Sincerely,
Michael C. Van Milligen
City Manager
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
24
IIINIWMNINIn11111IIIIIIUIIhIYINItlIIN
Doc ID 007248920002 Type GEN
Kind AGREEMENT
Recorded: 12/28/2011 at 04:18:52 PM
Fee Amt: $12.00 Page 1 of 2
Dubuque County Iowa
Kathy Flynn Thurlow Recorder
F11e2011- 00020089
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 Bonson Block, L.L.C. was made regarding the
following described premises:
The southerly 42 and 8 /12ths feet of Lot 11 in the City of Dubuque, Iowa, according to the
United States Commissioners' Map of the Town of Dubuque, Iowa. The real estate
conveyed herein is also described as the south two thirds (2/3) of city Lot 11 in the city of
Dubuque.
The Development Agreement is dated for reference purposes the 19th day of
December, 2011, 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 19trday of December , 2011.
CITY OF DUBUQUE, IOWA
By
144
Lynn Sutton
Mayor Pro -Tem
25
BONSON BLOCK, L.L.C.
By
Mike Frantz, Manag
1200
Cfty Clerk
Attest:
Kevi. . Firnstahl
City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this /4 day of 20 , before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. L3uoI and Kevin S. Firnstahl, 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
Muni ipal Corporation by it volu• .rily executed. (Lynn Sutton, Mayor Pro -Tem)
otary Public, State of Iowa
STATE OF IOWA
)
)
COUNTY OF DUBUQUE )
On this / S day of De (e(M.LAI 2011, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Mike Frantz, to me personally
known, who, being by me duly sworn, did say that he is Manager of Bonson Block, L.L.C.,
the limited liability company executing the instrument to which this is attached and that as
said Manager of Bonson Block, L.L.C., acknowledged the execution of said instrument to
be the voluntary act and deed of said company, by it and by him voluntarily executed.
SS
SUSAN M. WINTER
COMMISSION NO.183274
MY COMMISSION EXPIRES
2/14/14
Nota ublic, State of lo a
26
JOHN E BEASLEY
Commission Pumper 162595
My Comm sswn Expires
October 15, 2012
EXHIBIT E
Urban Renewal Plan
27
Prepared by:
Return to:
Aaron DeJong, City
Kevin S. Firnstahl,
URBA
Greater Dow
(A merger of the Downtc
This Amended and Rests
Renewal District traces its t
Project Number Iowa R -15,
of the City of Dubuque, low
Resolution 79 -71 on Mar
Resolution 107 -82 on May
371 -93 on December 6, 19'
on November 17, 1997, by
02 on April 1, 2002, with th
Resolution 403 -89 of the C
and subsequently amende
Resolution 114 -02 on Marc
Urban Renewal District rest
on April 19, 2004, by Res(
February 20th, 2007, by Re
on September 2, 2008, by F
on July 19, 2010. On M
Development District origir
the East 7th Street Econor
144 -97 on April 7, 1997 w
Urban Renewal District, pu
f A Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589 -4393
?) ity of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589 -4121
'AMENDED and RESTATED
'N RENEWAL PLAN
rntown Urban Renewal District
,wn Dubuque, Ice Harbor, Kerper Boulevard, and East 7th
Street Urban Renewal Districts)
City of Dubuque, Iowa
ted Urban Renewal Plan for the Greater Downtown Urban
)eginnings to the merger of the Downtown Urban Renewal Area
originally established by Resolution 123 -67 by the City Council
a on May 18, 1967 and subsequently amended and restated by
�h 15, 1971, by Resolution 73 -74 on March 11, 1974, by
3, 1982, by Resolution 191 -84 on June 25, 1984, by Resolution
a3, by Resolution 145 -94 on May 2, 1994, by Resolution 479 -97
Resolution 476 -98 on October 19, 1998 and by Resolution 187 -
Ice Harbor Urban Renewal District, originally established by
:qty Council of the City of Dubuque, Iowa on December 18, 1989
ad and restated by Resolution 241 -00 on June 5, 2000 and by
ih 4, 2002. The Urban Renewal Plan for the Greater Downtown
tilting from that merger was later amended by Resolution 170 -04
blution 391 -06 on August 21, 2006, by Resolution 108 -07 on
solution 597 -07 on December 17, 2007, by Resolution 300 -08
',Resolution 393 -09 on October 5, 2009, and by Resolution 26 -10
?ay 2, 2011 the Kerper Boulevard Industrial Park Economic
laity established by Resolution 274 -94 on August 15, 1994 and
ahic Development District, originally established by Resolution
were merged into and became part of the Greater Downtown
3rsuant to Resolution 155 -11 approved on May 2, 2011.
Version 2011.2
28
321 East Market
Post Office Box 2150
Iowa City, Iowa
52244.2150
Phone: (319) 354 -1104
Fax: (319) 354.6962
E -mail addresses:
attorney's last name
@ptmlaw.com
www_ptmlaw.com
William V. Phelan
Bruce L. Walker
Richard M. Tucker
Thomas H. Gelman
Gary J. Schmit
John E. Beasley
Dean D. Carrington
Pope S. Yamada
Anna Moyers Stone
William N. Toomey
Daniel W. Boyle
William M. Tucker
[1922.2003]
Charles A. Mullen
[1937.2001]
PHELAN TUCKER MULLEN
WALKER TUCKER GELMAN LLP
AT T O R N E Y S A T L A W
December 1, 2011
Mayor and City Councilmembers
City Hall
13t and Central Avenue
Dubuque, IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Bonson Block L.L.C.
Dear Mayor and City Councilmembers:
We have acted as counsel for Bonson Block L.L.C. ( "Developer ") in
connection with the execution and delivery of a certain Development
Agreement (Development Agreement) between Developer and the City of
Dubuque, Iowa ( "City ") dated for reference purposes the day of
December, 2011.
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 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 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
Mayor & City Councilmembers
December 1, 2011
Page 2
result in violation of any provision of, or in default under, the Certificate of
Organization and Operating Agreement of Developer, any indenture,
mortgage, deed of trust, indebtedness, agreement, judgment, decree,
order, statute, rule, regulation or restriction to which Developer is a party or
by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or
threatened against or affecting Developer in any court or before any
arbitrator or before or by any governmental body in which there is a
reasonable possibility of an adverse decision which could materially
adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any
questions affecting the validity of the Agreement or the Developer's ability
to perform Developer's obligations thereunder.
JEB /ch
Very tr ly ours,
n
9 4,4
John E. Beasley
'356 Main Street
356 Main St
EZ-1 - Enterprise Zone Boundary
Masterpiece on the Mississippi
Dubuque
All- America City
hill!
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Setting a Public Hearing for a Development Agreement with Bonson Block
LLC to Redevelop Property Located at 356 Main Street
DATE: November 28, 2011
Economic Development Director Dave Heiar recommends the City Council set a public
hearing for December 19, 2011, regarding entering into a Development Agreement with
Bonson Block LLC to redevelop property located at 356 Main Street.
The key elements of the Development Agreement are:
1) The project will receive $80,000 in incentives through the Downtown Housing
Incentive Program. The City Council previously authorized this funding on
October 18, 2010.
2) Bonson Block, LLC will receive a 15 year TIF rebate in the form of a yearly tax
rebates on the value of the assessable improvements.
3) Developer will invest $1,767,500 to create 8 market -rate residential units. This
renovation will include commercial space on the main floor of the building.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael 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
Dubuque
All- America City
1111 1
2007
SUBJECT: Setting a Public Hearing for a Development Agreement with Bonson
Block LLC to redevelop property located at 356 Main Street
DATE: November 22, 2011
INTRODUCTION
This memorandum presents for City Council consideration a Resolution which sets a
public hearing for December 19, 2011 on entering into a Development Agreement on
the property located at 356 Main Street.
BACKGROUND
City staff has worked with Bonson Block, LLC to formulate a funding package to
redevelop the property located at 356 Main Street.
Bonson Block, LLC plans to invest $1,767,500 in redeveloping 356 Main Street to include
creating eight apartments for market -rate rental and improving the first floor as commercial
space.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
redevelopment of the property.
The Development Agreement requires the redevelopment of the property located at 356
Main Street. The key elements of the Development Agreement include the following:
1) The project will receive $80,000 in incentives through the Downtown Housing
Incentive Program. The City Council previously authorized this funding on
October 18, 2010.
2) Bonson Block, LLC will receive a 15 year TIF rebate in the form of a yearly tax
rebates on the value of the assessable improvements.
3) Developer will invest $1,767,500 to create 8 market -rate residential units. This
renovation will include commercial space on the main floor of the building.
Additional terms and conditions are included within the attached Development
Agreement.
RECOMMENDATION
I recommend that the City Council set a public hearing on the Development Agreement
which includes urban renewal tax increment obligations to Bonson Block, LLC for the
purpose of redeveloping the properties located at 356 Main Street as detailed in the
attached Development Agreement.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution setting a public
hearing on the proposed Development Agreement.
F \USERS \Econ Dev \356 Main Street- Bonson Block \DA \20111122 Bonson Block Memo Setting Public Hearing doc
356 Main St
EZ-1 - Enterprise Zone Boundary
Prepared by /Return to David Hear 50 W 13th Street, Dubuque IA 52001, 563 589 -4393
RESOLUTION NO.
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA ON THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX
INCREMENT REVENUE OBLIGATIONS AND THE EXECUTION OF A DEVELOPMENT
AGREEMENT RELATING THERETO WITH BONSON BLOCK L.L.C., AND PROVIDING
FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, City and Bonson Block LLC have entered into a Development Agreement,
subject to the approval of the City Council, a copy of which is now on file at the Office of the
City Clerk, City Hall, 13th and Central Avenue, Dubuque, Iowa; and
Whereas, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Development Agreement, with Bonson Block LLC; and
Whereas, it is deemed necessary and advisable that City should authorize Urban
Renewal Tax Increment Revenue obligations, as provided by Chapter 403 of the Code of
Iowa, and to enter into the Development Agreement relating thereto for the purpose of
carrying out an Urban Renewal Plan as hereinafter described; and
Whereas, before said obligations may be approved, Chapter 403 of the Code of
Iowa requires that the City Clerk publish a notice of the proposal and of the time and place
of the meeting at which the City Council proposes to take action thereon and at which
meeting the City Council shall receive oral and /or written objections from any resident or
property owner of said City to such proposed action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City Clerk is hereby authorized and directed to cause this Resolution
and a notice to be published as prescribed by Iowa Code Section 403.9 of a public hearing on
the City's intent authorize Urban Renewal Tax Increment Revenue obligations, to be held on
the 19th day of December, 2011, at 6:30 o'clock p.m. in the City Council Chambers at the
Historic Federal Building, 350 W. 6th St., Dubuque, Iowa.
Section 2. The City Council will meet at said time and place for the purpose of
taking action on the matter of authorizing Urban Renewal Tax Increment Revenue
obligations and the execution of the Development Agreement relating thereto with Plastic
Center, Inc., the proceeds of which obligations will be used to carry out certain of the
special financing activities described in the Urban Renewal Plan for the Greater Downtown
Urban Renewal District, consisting of the funding of economic developments grants to
Plastic Center, Inc. pursuant to the Development Agreement under the terms and conditions
of said Urban Renewal Plan. It is expected that the aggregate amount of the Tax Increment
Revenue obligations is approximately $384,000.
Section 3. The Clerk is hereby directed to cause at least one publication to be
made of a notice of said meeting, in a newspaper, printed wholly in the English language,
published at least once weekly, and having general circulation in said City, said publication
to be not less than four days nor more than twenty days before the date of said meeting on
the issuance of said obligations.
Section 4. That the notice of the proposed action to issue said obligations shall
be in substantially the form attached hereto.
Passed, approved and adopted this 5th day of December, 2011.
Roy D. Buol, Mayor
Attest:
Kevin S. Firnstahl, City Clerk
F \USERS \Econ Dev \356 Main Street- Bonson Block \DA \20111205 Bonson Block DA Resolution setting Public
Hearing doc
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE,
IOWA, ON THE MATTER OF THE PROPOSED AUTHORIZATION OF URBAN
RENEWAL TAX INCREMENT REVENUE OBLIGATIONS AND THE EXECUTION OF A
DEVELOPMENT AGREEMENT RELATING THERETO WITH BONSON BLOCK, LLC.
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will
hold a public hearing on the 19th day of December, 2011, at 6:30 p.m. in the City Council
Chambers at the Historic Federal Building, 350 W. 6th St., Dubuque, Iowa, at which
meeting the City Council proposes to take action for the authorization of Urban Renewal
Tax Increment Revenue obligations and the execution of a Development Agreement
relating thereto with Bonson Block, LLC., in order to carry out certain of the special
financing activities in the Urban Renewal Plan for the Greater Downtown Urban Renewal
District, consisting of the funding of economic development grants to Bonson Block, LLC,
pursuant to a Development Agreement entered into with Bonson Block, LLC under the
terms and conditions of said Urban Renewal Plan. It is expected that the aggregate amount
of the Tax Increment Revenue obligations is approximately $384,000.
At the meeting, the City Council will receive oral and written objections from any resident or
property owner of said City to the above action. After all objections have been received and
considered, the City Council may at this meeting or at any adjournment thereof, the
approval of the Development Agreement, and authorization of such Tax Increment Revenue
obligations or will abandon the proposal. By order of the City Council said hearing and
appeals there from shall be held in accordance with and governed by the provisions of
Section 403.9 of the Code of Iowa.
This notice is given by order of the City Council of the City of Dubuque, Iowa, as provided
by Chapter 403 of the Code of Iowa.
Dated this _ day of 2011.
Kevin S. Firnstahl
City Clerk of Dubuque, Iowa
F \USERS \Econ Dev\356 Main Street- Bonson Block \DA\20111205 Bonson Block DA Resolution setting Public Hearing doc
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
BONSON BLOCK, L.L.C.
THIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposesthe
day of 2011 is made and entered into by and between the City of
Dubuque, Iowa (City), and Bonson Block, L.L.0 (Developer).
WHEREAS, Developer is the owner of the following described real estate (the
Property):
The southerly 42 and 8 /12ths feet of Lot 11 in the City of Dubuque, Iowa, according to the
United States Commissioners' Map of the Town of Dubuque, Iowa. The real estate
conveyed herein is also described as the south two thirds (2/3) of city Lot 11 in the city of
Dubuque; and
WHEREAS, the Property is located in the Greater Downtown Urban Renewal District
(the District) which has been so designated by City Council Resolution 155 -11 as a slum
and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer has undertaken the redevelopment of a three -story building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (Project); and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
May 2, 2011, City has the authority to enter into contracts and agreements to implement
the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
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(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
(8) 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 Plan, most recently approved by
City Council of City on May 2, 2011, and as subsequently amended through and
including the date hereof, (attached as Exhibit E) (the Urban Renewal Plan). A copy
of the Urban Renewal Plan, as constituted on the date of this Agreement and in the
form attached hereto, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is in
full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to the City, at time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
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(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
1.3 Closing. The closing shall take place on the Closing Date which shall be the 30th
day of December, 2011, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 31st day of January, 2012. Consummation of
the closing shall be deemed an agreement of the parties to this Agreement that the
conditions of closing shall have been satisfied or waived.
1.4 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines in
its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
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(5) Developer's counsel shall issue a legal opinion to the City confirming the
representations contained herein in the form attached hereto as Exhibit B.
1.5 City's Obligations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer will make a capital investment of not
less than one million seven hundred sixty -seven thousand five hundred dollars
($1,767,500.00) to acquire and improve the Property (the Minimum Improvements). These
Minimum Improvements include creating eight (8) apartments for market -rate rental and
maintaining the first floor as commercial space.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban Renewal
Plan, this Agreement, and all applicable state and local laws and regulations, including but
not limited to any covenants, conditions, restrictions, reservations, easements, liens and
charges, recorded in the records of Dubuque County, Iowa. Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to
the improvements to be constructed by Developer on the Property. All work with respect to
the Minimum Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2.4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within thirty (30) days after
the Closing Date, and shall be substantially completed by July 1, 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.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an appropriate
instrument so certifying. Such certification (the Certificate of Completion) shall be in
recordable form and shall be a conclusive determination of the satisfaction of Developer's
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obligations to make the Minimum Improvements under this Agreement and completion of
the Minimum Improvements by Developer as required by this Agreement.
SECTION 3. CITY PARTICIPATION
3.1 Downtown Housing Incentive.
(1) City agrees to provide to Developer on the terms and conditions set forth
herein a grant in the amount of Eighty Thousand Dollars ($80,000.00) (the Grant)
that shall consist of Incentive Program funds.
(2) Grant funds shall be disbursed to Developer by City for Qualifying Project
Expenses as defined in the Grant Agreement for amounts not in excess of the total
sum in Section 3.1. It is expressly understood that all funds advanced under this
Agreement shall be used by Developer only for the purpose of paying the Qualifying
Project Expenses set forth in such written requests.
(3) Grant funds will be disbursed to the Developer after City issuance of a
Certificate of Occupancy for the Project. Prior to the disbursement of any funds,
Developer shall provide evidence satisfactory to City that the improvements have
been completed in accordance with the plans and other documentation submitted to
City with the application.
3.2 Economic Development Grants to Developer. For and in consideration of
Developer's obligations hereunder, and in furtherance of the goals and objectives of the
urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject
to Developer being and remaining in compliance with the terms of this Agreement, to make
thirty (30) consecutive semi - annual payments (such payments being referred to collectively
as the Economic Development Grants) to Developer:
November 1, 2013
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
November 1, 2019
November 1, 2020
November 1, 2021
November 1, 2022
November 1, 2023
November 1, 2024
November 1, 2025
November 1, 2026
November 1, 2027
May 1,2014
May 1,2015
May 1,2016
May 1,2017
May 1,2018
May 1,2019
May 1, 2020
May 1, 2021
May 1, 2022
May 1, 2023
May 1, 2024
May 1, 2025
May 1, 2026
May 1, 2027
May 1, 2028
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pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts equal to a
portion of the tax increment revenues collected by City under Iowa Code Section 403.19
(without regard to any averaging that may otherwise be utilized under Iowa Code Section
403.19 and excluding any interest that may accrue thereon prior to payment to Developer)
during the preceding six -month period in respect of the Minimum Improvements
constructed by Developer (the Developer Tax Increments). For purposes of calculating the
amount of the Economic Development Grants provided in this Section, the Developer Tax
Increments shall be only those tax increment revenues collected by City in respect of the
increase in the assessed value of the Property above the assessment of January 1, 2011
($265,610.00). The Developer Tax Increments shall not include (1) any property taxes
collected for the payment of bonds and interest of each taxing district, (ii) any taxes for the
regular and voter - approved physical plant and equipment levy, (iii) the remaining actual
amount of tax increment revenues collected by City in respect of the valuations of the
Property prior to January 1, 2012 and (iv) any other portion required to be excluded by
Iowa law, and thus such incremental taxes will not include all amounts paid by Developer
as regular property taxes.
3.3 To fund the Economic Development Grants, City shall certify to the County prior to
December 1, 2012, its request for the available Developer Tax Increments resulting from
the assessments imposed by the County as of January 1 of that year and each year
thereafter until and including January 1, 2026, to be collected by City as taxes are paid
during the following fiscal year and which shall thereafter be disbursed to the Developer on
November 1 and May 1 of that fiscal year. (Example: if City so certifies in December, 2012,
the Economic Development Grants in respect thereof would be paid to the Developer on
November 1, 2013, and May 1, 2014.)
3.4 The Economic Development Grants shall be payable from and secured solely and
only by the Developer Tax Increments paid to City that, upon receipt, shall be deposited
and held in a special account created for such purpose and designated as the 356 Main
TIF Account of City. City hereby covenants and agrees to maintain its TIF ordinance in
force during the term hereof and to apply the incremental taxes collected in respect of the
Minimum Improvements and allocated to the 356 Main TIF Account to pay the Economic
Development Grants, as and to the extent set forth in Section 3.2 hereof. The Economic
Development Grants shall not be payable in any manner by other tax increments revenues,
or by general taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Developer as the Economic Development
Grants in any one year and under no circumstances shall City in any manner be liable to
Developer so long as City timely applies the Developer Tax Increments actually collected
and held in the 356 Main TIF Account (regardless of the amounts thereof) to the payment
of the Economic Development Grants to Developer as and to the extent described in this
Section.
3.5 City shall be free to use any and all tax increment revenues collected in respect of
other properties within the Project Area and the remaining actual amount of the property
taxes paid by Developer to City, or any available Developer Tax Increments resulting from
the termination of the annual Economic Development Grants under Section 3.2 hereof, for
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any purpose for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to Developer with
respect to the use thereof.
SECTION 4. COVENANTS OF DEVELOPER
4.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's
Standards for Rehabilitation.
[4.2 This section intentionally left blank.]
4.3 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Developer shall provide reasonable protection against loss or damage to such books of
record and account.
4.4 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.5 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 at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100 %) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense property insurance against loss and /or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
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value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear, and
Developer shall forthwith repair, reconstruct and restore the Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to
the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property (as its interests may appear). Developer shall
complete the repair, reconstruction and restoration of Minimum Improvements
whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.8 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.
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4.10 Non - Transferability. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.5), this Agreement may not be assigned by Developer
nor may the Property be transferred by Developer to another party. Thereafter, with the
prior written consent of City, which shall not be unreasonably withheld, Developer shall
have the right to assign this Agreement, and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.11 No change in Tax Classification. Developer agrees that it will not take any action
to change, or otherwise allow, the classification of the Property for property tax
purposes to become other than commercial property and to be taxed as such under
Iowa law.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a restaurant and upper -story housing, is in full compliance with the
Urban Renewal Plan) (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, 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).
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
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(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
5.2. Remedies on Default by Developer. 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) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) Until issuance of the Certificate of Completion, City shall be entitled to
recover from Developer the sum of all amounts expended by City in connection with
the funding of the Downtown Rehab Loan /Grant and Economic Development Grant
to Developer and City may take any action, including any legal action it deems
necessary, to recover such amounts from the Developer;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
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such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
5.4 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
5.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
5.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that may
appear necessary or desirable to collect any payments due under this Agreement, to
recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may suspend
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:
If to Developer: Bonson Block, L.L.C.
Attn: Jim Hobart
4425 Plumberry Road
Ely, IA 52227
With copy to: John Beasley
Phelan Tucker Law Firm
P.O. Box 2150
321 E. Markey Street
Iowa City IA 52244
If to City: City Manager
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With copy to:
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
City Attorney
City Hall
50 W. 13th Street
Dubuque IA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2028 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D
in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
costs for so recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA BONSON BLOCK, L.L.C.
By By
Roy D. Buol
Mayor
Attest:
Kevin S. Firnstahl
City Clerk
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Mike Frantz, Manager
(City Seal)
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20 before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin S.
Firnstahl, to me personally known, who, being by me duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation
executing the instrument to which this is attached; that the seal affixed hereto is the seal of
said municipal corporation; that said instrument was signed and sealed on behalf of the
City of Dubuque, Iowa, by authority of its City Council; and that said Mayor and City Clerk
acknowledged the execution of said instrument to be the voluntary act and deed of said
City, by it and by them voluntarily executed.
Notary Public
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20 before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Mike Frantz, to me personally
known, who, being by me duly sworn, did say that he is Manager of
Bonson Block, L.L.C. the limited liability company executing the instrument to which this is
attached and that as said Manager of Bonson Block, L.L.C. acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
Notary Public
F \USERS \Econ Dev\356 Main Street- Bonson Block \DA\20111129 Bonson Block DA doc
14
EXHIBIT A —
EXHIBIT B —
EXHIBIT C
EXHIBIT D
EXHIBIT E
LIST OF EXHIBITS
City Attorney's Certificate
Opinion of Developer's Counsel
— City Certificate
— Memorandum of Development Agreement
— Urban Renewal Plan
15
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(DATE)
THE CITY OF
DUB
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.
BAL:tls
17
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
Mayor and City Councilmembers
City Hall
1 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 (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 corporation organized and existing under the laws of the State
of Illinois and has full power and authority to execute, deliver and perform in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Developer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Developer enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer, any
indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Developer is a party or by which Developer's
property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
19
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgr@cityofdubuque.org
Dear
(DATE)
THE CITY OF
DUB
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the day of , 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
22
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
MCVM:jh
23
Sincerely,
Michael C. Van Milligen
City Manager
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
24
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 Bonson Block, L.L.C. was made regarding the
following described premises:
The southerly 42 and 8 /12ths feet of Lot 11 in the City of Dubuque, Iowa, according to the
United States Commissioners' Map of the Town of Dubuque, Iowa. The real estate
conveyed herein is also described as the south two thirds (2/3) of city Lot 11 in the city of
Dubuque.
The Development Agreement is dated for reference purposes the day of
2011, 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 2011.
CITY OF DUBUQUE, IOWA BONSON BLOCK, L.L.C.
By By
Roy D. Buol Mike Frantz, Manager
Mayor
25
Attest:
Kevin S. Firnstahl
City Clerk
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this _day of 20 before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20 before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Mike Frantz, to me personally
known, who, being by me duly sworn, did say that he is Manager of Bonson Block, L.L.C.,
the limited liability company executing the instrument to which this is attached and that as
said Manager of Bonson Block, L.L.C., acknowledged the execution of said instrument to
be the voluntary act and deed of said company, by it and by him voluntarily executed.
Notary Public, State of Iowa
26
Prepared by
Return to
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
28
November 13, 2011
To: Mayor Roy Buol and the members of the City Council, Dubuque, Iowa.
From: City of Dubuque Safe Community Advisory Committee.
Re: 2011 Report of this Committee
We thought it best to update you on our activities for the past year. We will not review
each of the recommendations from the original Safe Community Task Force that have
been enacted as you know them as well as we do. A listing of the 60 recommendations is
attached. We want to present an overview of our process and some observations for
consideration.
• We held nine meetings over the course of the year.
• The committee met at a variety of locations throughout the community in
an effort to make public participation more accessible to citizens.
Meetings were held at Carnegie Stout Public Library, E.B. Lyons
Interpretive Center, Comiskey Park Community Building, Allison -
Henderson Park, Bunker Hill Golf Course, the HyVee Community
on Asbury Road, and the Multicultural Family Center.
• Meetings were publicized in advance with notices on the City web -site, as
well as flyers being posted at the library. Multi - Cultural Center and in
various businesses. Some private citizens attended meetings to learn and
to offer ideas.
• Committee members spoke to the Lions Club. Sertoma, the Rotary Club,
and at the Point Neighborhood Association, in addition to participating in
a local radio program.
• We have monitored arrest and crime statistics provided by the City Police
Department.
• We have also monitored public perception of crime and safety issues in
the community by inviting key city employees to provide updates about
their efforts with respect to the recommendations.
Based on the attached preliminary statistics and our interactions with the community, the
general consensus of committee members is that violent crime, or at least the perception
of violent crime, has decreased in our community. From our interactions, we believe
citizen's perceptions are that this is a safer community than it was in 2009 when the
original Task Force was empanelled. Many of us have received comments from citizens
on the marked difference in the community, and citizens are attributing nnich of it to the
Council enacting recommendations from the Task Force, and City staff implementing
these recommendations. Specific areas of improvement most frequently mentioned are
noise levels within neighborhoods and the accountability of landlords and tenants.
Acknowledging that the Committee was appointed for one year, we strongly encourage
the Council to extend the existence of the Committee for another year to continue to
monitor progress on implementation of recommendations and to monitor citizen's
perceptions of safety within our community. This suggestion stems from the fact that
many of the ideas in the original proposal will not come to fruition or be able to be
assessed until some time has passed. We also believe that if perception has been
positively impacted because of the Task Force and Committee being in place. then
continuing the presence will help confirm that the city is attentive and willing to carry out
the recommendations set forth last year.