Diposition of Kerper Blvd Industrial Park Economic Development District to Eagle Window & Door, Inc.
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 11, 1999
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolutions Approving Eagle Window and Door / Dubuque-Eagle
Agreement
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Community and Economic Development Director Jim Burke is recommending
approval of a development agreement with Eagle Window and Door, Inc., and
Dubuque-Eagle, LLC, and the sale of 27 acres of land in the Kerper boulevard
Industrial Park to Dubuque-Eagle, LLC.
Dubuque Eagle, LLC, will build and lease approximately 350,000 square feet of
manufacturing space plus 40,000 square feet of office space to Eagle Window and
Door, Inc., for the relocation of their manufacturing facility.
The key elements of the agreement include:
1. The purchase price of the property is $1,529,000.
2. The property will be conveyed by special warranty deed on or before June 30,
1999.
3. The City will provide an Acquisition Grant of $1,467,000.
4.
Dubuque-Eagle, LLC must construct a building of approximately 350,000
square feet of manufacturing space plus approximately 40,000 square feet of
office space and the required off-street parking and loading facilities at a
projected cost of $15,000.
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5.
Dubuque-Eagle, LLC must begin the project within four months of closing and
complete it within 24 months of closing.
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6.
The City will use its best efforts to make available:
a) a $500,000 CDBG loan;
b) a $2,000,000 Section M1 08 loan;
c) a $1,000,000 EDA RLF loan;
d) a $692,000 forgivable loan made possible through the State Public
Infrastructure Assistance Program; and
e) tax increment funds over a ten year period that could generate up to $2.7
million based on a $17.5 million minimum assessed valuation.
7. The City will:
a) construct a new street and utilities to serve the Eagle Window plant and
other properties;
b) install a planting buffer between Eagle Window and Farmland Foods; and
c) relocate the rail spur which serves Farmland Foods.
8. Eagle Window must maintain an employment level of not less than 475
permanent full-time equivalent employees until at least 12/31/03 and agrees
to expand that number to 643 permanent full-time equivalent employees by
that date.
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I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mi hael C. Van M,IIigen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 10, 1999
TO:
~~Chael V ~,Milligt~, City Manager
{Ji~~B~k~: C~~unity and Economic Development Director
I
FROM:
'-
SUBJ:
Resolutions Approving Eagle Window and Door / Dubuque-Eagle
Agreement
INTRODUCTION
This memorandum presents for City Council adoption a pair of resolutions approving the Eagle
Window and Door, Inc. / Dubuque-Eagle, LLC., Development Agreement with the City of
Dubuque. The Agreement provides for the purchase and development of 27 acres of land in the
Kerper Boulevard Industrial Park.
DISCUSSION
On January 4, the City Council adopted Resolution 10-99 which established terms and conditions
of an offering of urban renewal land and set a special public hearing on the proposal of Eagle
Window and Dubuque-Eagle to acquire and develop property in the Kerper Boulevard Industial
Park. The hearing is set for Monday, February 15.
Following the January 4 meeting, the full text of the Council's resolution was published in the
Telegraph Herald to fulfill the requirement that disposition of urban renewal land follow a
reasonable competitive procedure. The resolution states that the City has received a proposal
from Eagle Window and Dubuque-Eagle and intends to approve it unless another qualified,
competing proposal is submitted by February 15. The requirements for proposals and a
procedure for selection are set out in the resolution.
Presuming that the Eagle Window / Dubuque-Eagle proposal will be the only qualified proposal
to be submitted, we have prepared two resolutions for consideration by the City Council at the
hearing. The first resolution finds that no qualified, competing proposal was submitted and that
the Eagle Window / Dubuque-Eagle proposal satisfies the terms ofthe offering. The second
resolution approves the Development Agreement among the City, Eagle Window and Dubuque-
Eagle and authorizes its execution and implementation.
RECOMMENDATION
I recommend that the City Council adopt the attached resolutions approving the sale of land in
the Kerper Boulevard Industrial Park to Dubuque-Eagle, LLC. In the unlikely event that another
qualified proposal is submitted, the Council should follow the procedure described in Sections 18
through 20 of Resolution 10-99.
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 15, 1999
TO:
Honorable Mayor and City Council Members
FROM:
Mary A. Davis, City Clerk
SUBJ:
Report on Competing Proposals
Disposition of Property in Kerper Boulevard Industrial Park Economic
Development District
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The City Council, by Resolution No. 10-99, nominated the City Clerk, to receive and open on
February 15, 1999, at 10:00 a.m. proposals in competition to the proposal of Eagle Window and
Door, Inc., and Dubuque-Eagle, LLC., for the purchase and development of the following
described property:
Part of Lot 1, all of Lot 2 and Lot 3, and part of Lot 4 ofFDL First Addition to the City
of Dubuque, Iowa, and part of Lot 1 of the Subdivision of Lot 1 of Kerper Industrial
Subdivision Number One in the City of Dubuque, Iowa, and part of Heartland Place in
the City of Dubuque, Dubuque County, Iowa, more particularly described as follows:
Beginning at the Northwest comer of said Lot 1 of the Subdivision of Lot 1 of Kerper
Industrial Subdivision Number One in the City of Dubuque, Iowa;
Thence South 57 degrees 28 minutes 39 seconds East, 240.44 feet along the Northerly
line of said Lot 1 of the Subdivision of Lot 1 of Kerper Industrial Subdivision Number
One in the City of Dubuque, Iowa, to the Northwesterly comer of said Lot 3 ofFDL First
Addition to the City of Dubuque, Iowa;
Thence South 51 degrees 39 minutes 24 seconds East, 179.84 feet along the Northeasterly
line of said Lot 3 and its Southeasterly extension, to the Westerly extension of the
Northerly line of said Lot 1 ofFDL First Addition to the City of Dubuque, Iowa;
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Thence North 87 degrees 44 minutes 08 seconds East, 208.34 feet along said Westerly
extension and said Northerly line, to the Westerly right-of-way line of Kerper Boulevard
(172' wide);
Thence South 14 degrees 46 minutes 16 seconds East, 951.03 feet along said Westerly
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right-of-way line to the proposed Northerly right-of-way line of Kerper Court (75' wide);
Thence Westerly along said Northerly right-of-way line the following five (5) courses:
South 75 degrees 09 minutes 14 seconds West, 79.14 feet, to a point of curvature;
Westerly, an arc distance of 151.48 feet along a circular curve concave to the Southeast,
having a radius of 537.50 feet, a central angle of 16 degrees 08 minutes 51 seconds, and
whose chord bears South 67 degrees 04 minutes 49 seconds West, 150.98 feet, to a point
of tangency; south 59 degrees 00 minutes 23 seconds West, 194.64 feet, to a point of
curvature; Westerly, an arc distance of 59.89 feet along a circular curve concave to the
Northwest, having a radius of 462.50 feet, a central angle of 07 degrees 25 minutes 07
seconds, and whose chord bears South 62 degrees 42 minutes 57 seconds West, 59.84
feet, to a point of tangency; South 66 degrees 25 minutes 31 seconds West, 540.41 feet,
to the Westerly line of the herein described parcel;
Thence North 15 degrees 08 minutes 48 seconds West, 988.58 feet along said Westerly
line, to the Northwesterly line of said Heartland Place in the City of Dubuque, Dubuque
County, Iowa;
Thence North 30 degrees 30 minutes 32 seconds East, 614.18 feet along said
Northwesterly line;
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Thence South 59 degrees 29 minutes 28 seconds East, 35.00 feet at right angles to the last
described course, to the Westerly line of said Lot 1 of the Subdivision of Lot 1 of Kerper
Industrial Subdivision Number One in the City of Dubuque, Iowa;
Thence North 25 degrees 45 minutes 16 seconds East, 121.54 feet along said Westerly
line, to the Point of Beginning.
Containing 27.037 acres, more or less.
By this memorandum, I am reporting to the City Council that no competing proposal was
submitted by the deadline for submission set forth by Resolution No. 10-99.
Respectfully submitted,
7lhlJJ}~~
M~.;~vis
City Clerk
cc: Michael Van Milligen, City Manager
Barry Lindahl, Corporation Counsel
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RESOLUTION NO. ~-99
RESOLUTION DETERMINING THAT THE PROPOSAL OF EAGLE WINDOW
AND DOOR, INC., AND DUBUQUE-EAGLE, LLC., IS IN COMPLIANCE
WITH THE TERMS OF OFFERING FOR DISPOSITION OF CERTAIN
PROPERTY IN THE KERPER BOULEVARD INDUSTRIAL PARK
ECONOMIC DEVELOPMENT DISTRICT
Whereas, this Council, by Resolution No. 10-99 dated January 4, 1999, nominated the
City Clerk as agent of the City of Dubuque, Iowa, to receive and open on February 15, 1999,
at 10:00 a.m. proposals in competition to the proposal of Eagle Window and Door, Inc., and
Dubuque-Eagle, LLC., referred to in said resolution for the sale of the following described real
property for development only in accordance with the terms and conditions set forth in said
resolution, to wit:
Part of Lot 1, all of Lot 2 and Lot 3, and part of Lot 4 of FDL First Addition to the City of
Dubuque, Iowa, and part of Lot 1 of the Subdivision of Lot 1 of Kerper Industrial Subdivision
Number One in the City of Dubuque, Iowa, and part of Heartland Place in the City of
Dubuque, Dubuque County, Iowa, more particularly described as follows:
Beginning at the Northwest corner of said Lot 1 of the Subdivision of Lot 1 of Kerper
Industrial Subdivision Number One in the City of Dubuque, Iowa;
Thence South 57 degrees 28 minutes 39 seconds East, 240.44 feet along the
Northerly line of said Lot 1 of the Subdivision of Lot 1 of Kerper Industrial Subdivision
Number One in the City of Dubuque, Iowa, to the Northwesterly corner of said Lot 3 of
FDL First Addition to the City of Dubuque, Iowa;
Thence South 51 degrees 39 minutes 24 seconds East, 179.84 feet along the
Northeasterly line of said Lot 3 and its Southeasterly extension, to the Westerly
extension of the Northerly line of said Lot 1 of FDL First Addition to the City of
Dubuque, Iowa;
Thence North 87 degrees 44 minutes 08 seconds East, 208.34 feet along said
Westerly extension and said Northerly line, to the Westerly right-of-way line of Kerper
Boulevard (172' wide);
Thence South 14 degrees 46 minutes 16 seconds East, 951.03 feet along said
Westerly right-of-way line to the proposed Northerly right-of-way line of Kerper Court
(75' wide);
Thence Westerly along said Northerly right-of-way line the following five (5) courses:
South 75 degrees 09 minutes 14 seconds West, 79.14 feet, to a point of curvature;
Westerly, an arc distance of 151.48 feet along a circular curve concave to the
Southeast, having a radius of 537.50 feet, a central angle of 16 degrees 08 minutes
51 seconds, and whose chord bears South 67 degrees 04 minutes 49 seconds West,
150.98 feet, to a point of tangency; south 59 degrees 00 minutes 23 seconds West,
194.64 feet, to a point of curvature; Westerly, an arc distance of 59.89 feet along a
circular curve concave to the Northwest, having a radius of 462.50 feet, a central
angle of 07 degrees 25 minutes 07 seconds, and whose chord bears South 62
degrees 42 minutes 57 seconds West, 59.84 feet, to a point of tangency; South 66
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degrees 25 minutes 31 seconds West, 540.41 feet, to the Westerly line of the herein
described parcel;
Thence North 15 degrees 08 minutes 48 seconds West, 988.58 feet along said
Westerly line, to the Northwesterly line of said Heartland Place in the City of Dubuque,
Dubuque County, Iowa;
Thence North 30 degrees 30 minutes 32 seconds East, 614.18 feet along said
Northwesterly line;
Thence South 59 degrees 29 minutes 28 seconds East, 35.00 feet at right angles to
the last described course, to the Westerly line of said Lot 1 of the Subdivision of Lot 1
of Kerper Industrial Subdivision Number One in the City of Dubuque, Iowa;
Thence North 25 degrees 45 minutes 16 seconds East, 121.54 feet along said
Westerly line, to the Point of Beginning.
Containing 27.037 acres, more or less; and
Whereas, the City Clerk has reported to this Council that no qualified, competing
proposal was submitted.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the report of the City Clerk that no qualified competing proposal was
submitted by 10:00 a.m. on February 15, 1999, for the development of the above-described
real property be received, filed and adopted.
Section 2. That it is hereby determined that the proposal of Eagle Window and Door,
Inc., and Dubuque-Eagle, LLC., for development of said property is the only proposal which
satisfies the terms and conditions of the offering set forth in Resolution No. 10-99 adopted
by this Council on January 4, 1999.
Passed, approved and adopted this 15th day of February, 1999.
Attest:
Terrance M. Duggan, M
)r~
. Davis, City Clerk
F:\USERS\JBURKE\BURKE\DOCS\ECDEV\EAGLEWIN\COMPETE.RES
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RESOLUTION NO. 82
-99
RESOLUTION ACCEPTING THE PROPOSAL FOR SALE AND PRIVATE
DEVELOPMENT OF CERTAIN PROPERTY IN THE KERPER
BOULEVARD INDUSTRIAL PARK ECONOMIC DEVELOPMENT
DISTRICT, APPROVING AGREEMENT FOR SAME, AND AUTHORIZING
ACTIONS TO IMPLEMENT SAID AGREEMENT
Whereas, this Council, by Resolution NO.1 0-99, dated January 4, 1999:
1. Adopted terms and conditions for offering the following described property
in the Kerper Boulevard Industrial Park Economic Development District for sale and private
development, to wit:
Part of Lot 1, all of Lot 2 and Lot 3, and part of Lot 4 of FDL First Addition to the City of
Dubuque, Iowa, and part of Lot 1 of the Subdivision of Lot 1 of Kerper Industrial
Subdivision Number One in the City of Dubuque, Iowa, and part of Heartland Place in the
City of Dubuque, Dubuque County, Iowa, more particularly described as follows:
Beginning at the Northwest corner of said Lot 1 of the Subdivision of Lot 1 of Kerper
Industrial Subdivision Number One in the City of Dubuque, Iowa;
Thence South 57 degrees 28 minutes 39 seconds East, 240.44 feet along the
Northerly line of said Lot 1 of the Subdivision of Lot 1 of Kerper Industrial
Subdivision Number One in the City of Dubuque, Iowa, to the Northwesterly corner
of said Lot 3 of FDL First Addition to the City of Dubuque, Iowa;
Thence South 51 degrees 39 minutes 24 seconds East, 179.84 feet along the
Northeasterly line of said Lot 3 and its Southeasterly extension, to the Westerly
extension of the Northerly line of said Lot 1 of FDL First Addition to the City of
Dubuque, Iowa;
Thence North 87 degrees 44 minutes 08 seconds East, 208.34 feet along said
Westerly extension and said Northerly line, to the Westerly right-of-way line of
Kerper Boulevard (172' wide);
Thence South 14 degrees 46 minutes 16 seconds East, 951.03 feet along said
Westerly right-of-way line to the proposed Northerly right-of-way line of Kerper Court
(75' wide);
Thence Westerly along said Northerly right-of-way line the following five (5) courses:
South 75 degrees 09 minutes 14 seconds West, 79.14 feet, to a point of curvature;
Westerly, an arc distance of 151.48 feet along a circular curve concave to the
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Southeast, having a radius of 537.50 feet, a central angle of 16 degrees 08 minutes
51 seconds, and whose chord bears South 67 degrees 04 minutes 49 seconds
West, 150.98 feet, to a point of tangency; south 59 degrees 00 minutes 23 seconds
West, 194.64 feet, to a point of curvature; Westerly, an arc distance of 59.89 feet
along a circular curve concave to the Northwest, having a radius of 462.50 feet, a
central angle of 07 degrees 25 minutes 07 seconds, and whose chord bears South
62 degrees 42 minutes 57 seconds West, 59.84 feet, to a point of tangency; South
66 degrees 25 minutes 31 seconds West, 540.41 feet, to the Westerly line of the
herein described parcel;
Thence North 15 degrees 08 minutes 48 seconds West, 988.58 feet along said
Westerly line, to the Northwesterly line of said Heartland Place in the City of
Dubuque, Dubuque County, Iowa;
Thence North 30 degrees 30 minutes 32 seconds East, 614.18 feet along said
Northwesterly line;
Thence South 59 degrees 29 minutes 28 seconds East, 35.00 feet at right angles
to the last described course, to the Westerly line of said Lot 1 of the Subdivision of
Lot 1 of Kerper Industrial Subdivision Number One in the City of Dubuque, Iowa;
Thence North 25 degrees 45 minutes 16 seconds East, 121.54 feet along said
Westerly line, to the Point of Beginning.
Containing 27.037 acres, more or less;
2. Determined that the proposal submitted by Eagle Window and Door, Inc., and
Dubuque-Eagle, LLC, satisfies the requirements of said offering;
3. Declared its intent to accept said proposal and to enter into a Development
Agreement by and among the City of Dubuque, Eagle Window and Door, Inc., and
Dubuque-Eagle, LLC, in the event no other qualified proposals were timely submitted for
development of said property; and
4. Invited competing proposals which met the terms and conditions of said
offering to be submitted to the City Clerk on or before 10:00 a.m., February 15, 1999; and;
Whereas, the text of said Resolution was published as the official notice of this
offering and of the intent of the City of Dubuque, in the event no other qualified proposals
were timely submitted, to enter into a Development Agreement by and among the City of
Dubuque, Eagle Window and Door, Inc., and Dubuque-Eagle, LLC, ; and
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Whereas, by separate Resolution of this date, this Council has received and
approved as its own the report of the City Clerk that no other qualified proposal was
received; and
Whereas, it is the determination of this Council that acceptance of the proposal and
sale to and development of the disposition parcel by Dubuque-Eagle, LLC, according to
the terms and conditions set out in the attached is in the public interest of the citizens of
the city, and is consistent with the City's Urban Renewal Plan for the Kerper Boulevard
Industrial Park Economic Development District.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and among the City of
Dubuque, Eagle Window and Door, Inc., and Dubuque-Eagle, LLC., is in the public interest
of the citizens of the City of Dubuque and in furtherance of the City's Urban Renewal
Project, and is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute said
Agreement on behalf of the City and the City Clerk is authorized and directed to attest to
his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Agreement as herein approved.
Passed, approved and adopted this 15th day of February, 1999.
Attest:
}-: .<-lM&~
. Davis, City Clerk
CD
F:\USERS\JBURKE\BURKE\DOCS\ECDEV\EAGLEWIN\ACCEPT.RES
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DEVELOPMENT AGREEMENT
OR/G/4641
AGREEMENT, made on or as of the 15th day of February , 1999, by and
among the City of Dubuque, Iowa, a municipality ("City"), established pursuant to the
Code of Iowa of the State of Iowa and acting under authorization of Chapter 403 of the
Code of Iowa, as amended ("Urban Renewal Act"), Eagle Window & Door, Inc., an Iowa
corporation with its principal place of business in Dubuque, Iowa ("Employer"), and
Dubuque -Eagle, LLC, a Nevada limited liability company, with its principal place of
business in Colorado Springs, Colorado ("Developer").
WITNESSETH:
WHEREAS, in furtherance of the objectives of Urban Renewal Act, City has
undertaken an Urban Renewal project ("Project") to advance the community's ongoing
economic development efforts; and
WHEREAS, said Project is located within the Kerper Boulevard Industrial Park
Economic Development Urban Renewal District ("Project Area"); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the Urban
Renewal Plan approved by City Council of City on August 15, 1994, (attached hereto as
Exhibit A )("Urban Renewal Plan"); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, has been recorded among the land records in the office of the Recorder of
Dubuque County, Iowa; and
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WHEREAS, Employer has determined that its present manufacturing facility is
functionally obsolete and has decided to relocate its production facility and City desires
that Employer relocate its current operations in Project Area; and
WHEREAS, Employer has requested that Developer construct and lease to
Employer a new manufacturing plant in the Project Area, and City has agreed to provide
fmancial assistance to Developer and Employer; and
WHEREAS, Developer has requested that City acquire and sell to Developer the
real property described in Exhibit B attached hereto ("Property") so that Developer may
develop said Property, located in the Project Area, for and in accordance with the uses
specified in the Urban Renewal Plan and in accordance with this Agreement; and
WHEREAS, City believes that the development of Property pursuant to this
Agreement, and the fulfillment generally of this Agreement, are in the vital and best
interests of City and in accord with the public purposes and provisions of the applicable
federal, state and local laws and the requirements under which the Project has been
undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the others as
follows:
SECTION 1. ACQUISITION OF PROPERTY BY CITY
Subject to all the terms, covenants and conditions of this Agreement, City shall acquire
that portion of Property not owned by City as of the date of this Agreement for the
purpose of conveying the same to Developer on the Closing Date (as hereinafter defined).
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SECTION 2. CONVEYANCE OF PROPERTY TO DEVELOPER
2.1 Purchase Price. The purchase price for Property ("Purchase Price") shall be the
sum of One Million Five Hundred Twenty -Nine Thousand Dollars ($ 1,529,000.00)
which shall be due and payable at closing on a date selected by Developer, Employer and
City, but not later than June 30, 1999 ("Closing Date"), except for the sum of Sixty -Two
Thousand Dollars ($ 62,000), which shall be payable by Developer executing on the
Closing Date a promissory note (the "Purchase Note") in the form attached hereto as
Exhibit G.
2.2 Title To Be Delivered. City shall convey title to Property to Developer by
Special Warranty Deed ("Deed") in recordable form, substantially in the form attached
hereto as Exhibit C, free and clear of all liens and encumbrances. Title conveyed to
Developer shall, however, be subject to all easements and restrictions of record that do
not adversely impact the development of the Property as contemplated by this
Agreement, and to all of the conditions, covenants and restrictions contained in the Urban
Renewal Plan and this Agreement, including the condition subsequent set forth in Section
7.3.
(1) On or before February 19, 1999, City at its sole cost and expense shall
deliver to Developer an abstract of title to Property continued through the date of
this Agreement reflecting good and merchantable title in City in conformity with
this Agreement, and applicable State law. The abstract shall become the property
of Developer when Purchase Price is paid in full.
(2) Developer shall have twenty (20) days after receipt of the abstract of title to
render objections to title, including any easements or other encumbrances not
satisfactory to Developer, in writing to City. City shall have thirty (30) days from
the date it receives such objections to have the same removed or satisfied. If City
shall fail to have such objections removed within that time, Developer may, at its
sole discretion, either (a) terminate this Agreement without any liability on its
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part, and any sums previously paid to City by Developer (or paid into escrow for
City's benefit) shall be returned to Developer with interest, or (b) take title subject
to such objections. City agrees to use its best efforts to promptly satisfy any such
objections.
2.3 Rights of Inspection, Testing and Review. Developer, its counsel, accountants,
agents and other representatives, shall have full and continuing access to Property and all
parts thereof, upon reasonable notice to City. Developer and its agents and
representatives shall also have the right to enter upon Property at any time after the
execution and delivery hereof for any purpose whatsoever, including inspecting,
surveying, engineering, test boring, performance of environmental tests and such other
work as Developer shall consider appropriate, provided that Developer shall hold City
harmless and fully indemnify City against any damage, claim, liability or cause of action
arising from or caused by the negligent actions of Developer, its agents, or
representatives upon Property, and shall have the further right to make such inquiries of
governmental agencies and utility companies, etc., and to make such feasibility studies
and analyses as it considers appropriate. City shall deliver to Developer and Employer,
on or before January 29, 1999, the items identified on Exhibit I attached hereto. To the
best knowledge of the City, after diligent inquiry, the items identified on Exhibit I, are all
of the documents in the possession, custody or control of the City related to the
environmental condition of the Property. The City has not intentionally withheld any
documents of which it is aware from the Developer and the Employer.
2.4 Conditions Precedent to Conveyance of Property. City's obligation to convey title
and possession of Property to Developer, and the obligation of the City and the
Developer to close on the purchase of the Property pursuant to the terms of this
Agreement as well as the obligations of Employer hereunder, shall be subject to
satisfaction of the following conditions precedent on Closing Date:
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(1) Developer shall be in compliance with all the material terms and provisions
of this Agreement;
(2) Execution of a lease agreement between Developer and Employer pursuant
to Section 5.1 of this Agreement;
(3) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm commitments (subject to customary lending conditions) for
construction financing for Minimum Improvements (as defined herein) in an
amount sufficient, together with equity commitments, to complete Minimum
Improvements in conformance with Construction Plans (as defined herein), or
City shall have received such other evidence of Developer's financial ability as in
the reasonable judgment of City is required;
(4) Execution of an Assessment Agreement (as defined herein) by the City
Assessor and Developer pursuant to Section 5.2 of this Agreement;
(5) Receipt of an opinion of counsel to Developer in the form attached hereto as
Exhibit D;
(6) That the Developer is satisfied with the results of its inspections of the
Property that are permitted by the terms of Section 2.3 of this Agreement; and
(7) That the City is prepared to and will fund the Acquisition Grant and the
Economic Development Grant to the Developer at the closing, subject to the
conditions in Section 4 of this Agreement.
2.5 Closing. The closing of the purchase and sale shall take place on Closing Date.
Possession of Property shall be delivered on the Closing Date. By closing on the
purchase of Property in accordance with this Agreement, Developer accepts Property in
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its present condition and for itself and its successors and assigns, does hereby waiver and
relinquish any claim it might otherwise have against City by reason of the condition of
Property other than hazardous substances or environmental contamination located in or
on Property on the Closing Date. City hereby agrees to indemnify, defend and hold
harmless Developer and Employer from and against any cost, loss or damage related to
such hazardous substances or environmental contamination.
2.6 City's Obligations At Closing. At or prior to Closing Date, City shall:
(1) Deliver to Developer fully executed Deed.
(2) Deliver to Developer an Abstract of Title to Property.
(3) Deliver to Developer such other documents and perform all obligations as
may be required by this Agreement prior to closing, all in a form satisfactory
to Developer and Employer;
(4) Pay to the Developer the Acquisition Grant and the Economic Development
Grant, subject to the conditions in Section 4 of this Agreement.
2.7 Delivery of Purchase Price; Obligations At Closing. At closing, and subject to
the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay Purchase Price to City pursuant to
Section 2.1 hereof.
2.8 Closing Costs. The following costs and expenses shall be paid in connection with
the closing:
(1) City shall pay:
(a) The transfer fee imposed on the conveyance.
(b) A pro -rata portion of all taxes as provided in Section 2.9.
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(c) All special assessments whether levied, pending or assessed.
(d) City's attorney's fees.
(f) The cost of recording the satisfaction of any existing mortgage and
any other document necessary to make title marketable.
(g) The abstract of title.
(h) The cost of survey necessary for platting property.
(2) Developer shall pay:
(a) A pro -rata portion of all taxes as provided in Section 2.9.
(b) The documentary fee necessary to record the Deed.
(c) Developer's attorneys fees.
(d) Developer's broker and/or real estate commissions and fees, if any.
2.9 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years which
end prior to Closing Date. Real estate taxes for the fiscal year in which Closing Date
occurs shall be prorated between City and Developer to Closing Date on the basis of a
365 day calendar year. Developer shall pay all real estate taxes due for subsequent fiscal
years.
SECTION 3. DEVELOPMENT ACTIVITI Fi S
3.1 Required Minimum Improvements. Developer hereby agrees to construct on the
Property approximately three hundred fifty thousand (350,000) square feet of
manufacturing plant plus approximately forty thousand (40,000) square feet of office
floor space and required off-street parking and loading facilities at a presently projected
cost of not less than Fifteen Million Dollars ($15,000,000) ("Minimum Improvements"),
all in substantial accordance with the preliminary plans and specifications identified in
Exhibit H attached hereto. The building shall be of high quality architectural design and
comply with all applicable codes and laws and shall be compatible with the setback of
neighboring buildings.
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3.2 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of Property and the construction of Minimum Improvements
thereon shall be in conformity with the Urban Renewal Plan, this Agreement, and all
applicable State and local laws and regulations. Developer shall submit to City, for
approval by City, which approval shall not be withheld or delayed if in substantial
conformance with the plans and specifications identified in Exhibit H and in compliance
with the local building and zoning code, plans, drawings, specifications, and related
documents with respect to Minimum Improvements to be constructed by Developer on
Property ("Construction Plans"). All work with respect to Minimum Improvements shall
be in substantial conformity with Construction Plans approved by City as required by the
preceding sentence.
3.3 Timing of Improvements. Developer hereby agrees to apply for all necessary
building permits within sixty (60) days of closing and that construction of Minimum
Improvements on Property shall be commenced within sixty (60) days after the issuance
of all building peiinits related to the construction of the Minimum Improvements, and
shall be substantially completed within twenty-four (24) months after closing. City shall
diligently respond and provide written comments to all Developer's submissions for
approval or consent in each instance within ten (10) working days after submission.
3.4 Certificate of Completion. Upon written request of Developer after issuance of an
occupancy certificate by City for the Minimum Improvements, which shall not be
unreasonably withheld or delayed, City shall furnish Developer with an appropriate
instrument in recordable form so certifying ("Certificate of Completion"). The
Certificate of Completion shall be aconclusive determination of the satisfaction and
termination of the agreements and covenants in this Agreement and in the Deed with
respect to the obligations of Developer to construct Minimum Improvements.The
Certificate of Completion may be recorded with the County Recorder of Dubuque County
at Developer's sole expense. If City shall refuse or fail to provide a Certificate of
Completion in accordance with the provisions of this Section, City shall, within ten (10)
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working days after written request by Developer, provide Developer with a written
statement indicating in adequate detail in what respects Developer has failed to complete
the Minimum Improvements in accordance with the provisions of this Agreement, or is
otherwise in default under the terms of this Agreement, and what measures or acts will be
necessary, in the opinion of City, for Developer to take or perform in order to obtain such
Certificate of Completion.
SECTION 4. CITY PARTICIPATION
4.1 Site Improvements. City shall replat the Property, at its sole expense, prior to
closing. City represents and warrants that the Property is currently zoned for the uses
intended by this Agreement. City shall provide, at City's sole expense, only the following
improvements:
(1) A planting buffer as agreed upon by the parties, located on the Property or
in the public right-of-way at City's option, between the Minimum
Improvements and Farmland Foods' sewage pretreatment facility within
ninety (90) days after request by Developer, subject to seasonal planting
requirements;
(2) Remove and relocate off the Property the rail spur line which crosses
Property on or before December 31, 1999; and
(3)
A two-lane road with all utilities located within the right-of-way built in
accordance with current City industrial subdivision requirements along the
entire south side of the Property to provide access from Kerper Boulevard
as per the preliminary plans prepared by IIW Engineers dated December
11, 1998. The utilities shall be completed and the road shall be fully
graded and have a stone base no later than November 1, 1999, and shall be
completed no later than July 1, 2000.
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4.2 Acquisition Grant to Developer. For and in consideration of Developer's
obligations to construct Minimum Improvements and to lease them to Employer as
provided herein and in consideration of Employer's obligations hereunder, City agrees to
make an Acquisition Grant to Developer on the Closing Date, or such other date as the
parties shall mutually agree upon in writing. The Acquisition Grant shall be in the
amount equal to the Purchase Price less $62,000.
4.3 Economic Development Grant. For and in consideration of Developer's and
Employer's commitments as provided herein, City agrees (subject to the conditions set
forth in this Section) to make an Economic Development Grant to Developer on the
Closing Date, or such other date as the parties shall mutually agree upon in writing
("Funding Date"). The Economic Development Grant shall be in the total amount not to
exceed Two Million Seven Hundred Thousand Dollars ($2,700,000.00) (or such other
amount determined as provided in Section 4.4 hereof) and shall be payable solely and
only from the proceeds of the sale of urban renewal tax increment revenue bonds or notes
by City as described in Section 4.4 hereof, and not from any other source.
4.4 Issuance of Notes. Employer and Developer acknowledge and agree that City
intends to finance its costs associated with the funding of the Economic Development
Grant to Developer through the issuance of urban renewal tax increment revenue bonds
or notes to be issued by City under the provisions of Section 403.9 of the Iowa Code, the
Urban Renewal Act and this Section (such obligation being referred to herein as
"Notes"). Employer and Developer further acknowledge and agree that they shall
identify for City a purchaser for the Notes ("the Purchaser") and City agrees to negotiate
in good faith with the Purchaser with respect to the terms of the Notes. Employer and
Developer further acknowledge and agree that the Notes shall be sold on such terms and
conditions, bear such interest rates, have such reserve funding requirements, mature at
such times and in such amounts as City, in its sole but reasonable, good faith discretion,
shall determine to be acceptable to it and the Purchaser and shall be payable from and
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secured solely and only by a pledge of the tax increment revenues collected by City in
respect of the Property and the Minimum Improvements located thereon during a period
not to exceed ten (10) years or such other term as City shall otherwise determine to be
acceptable to it, in its sole discretion. The parties hereto intend that the Notes to be issued
in the maximum amount not to exceed $2,700,000.00 plus issuance costs that can be
repaid from the tax increment revenues collected by City in respect of the Property and
the Minimum Improvements during a period of ten (10) years, taking into account the
Purchaser's requirements for debt service coverage and reserve funding. Proceeds of the
Notes shall be applied only to the payment of capitalized interest thereon (if necessary),
debt service reserve funding, costs of issuance and the payment of the Economic
Development Grant. City shall have no obligation to fund the Economic Development
Grant to be paid hereunder from any source other than the proceeds of the Notes. City's
obligation to issue the Notes and undertake its obligations hereunder shall be subject in
all respects to unavoidable delays, the provisions of this Section, and to the satisfaction of
all conditions required (in the reasonable judgment of bond counsel for City) by Chapter
403 of the Code of Iowa, as amended, with respect to the issuance of the Notes.
4.5 Limitations on Financial Undertakings of City. Notwithstanding any other
provisions of this Agreement, City shall have no obligation to Developer under this
Agreement to issue the Notes or to fund the Economic Development Grant to Developer,
if any of the following conditions exist:
(1) City is unable to complete the sale of the Notes on such terms and conditions
as it shall deem necessary or desirable in its sole, but reasonable, good faith
discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or both,
would be entitled) under Section 7 of this Agreement to exercise any remedies set
forth therein as a result of any Event of Default; or
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(3) There has been, or there occurs, a material change in the financing
commitments secured by Developer for construction of Minimum Improvements,
which change(s) make it substantially more likely, in the reasonable judgment of
City, that Developer will be unable to fulfill its covenants and obligations under
this Agreement to construct the Minimum Improvements; or
(4) City shall not have received a legal opinion from Employer's counsel in
substantially the form attached hereto as Exhibit E.
4.6 Use of Tax Increments. Developer and Employer recognize that City intends to
utilize the tax increment revenues collected in respect of Minimum Improvements to pay
debt service on the Notes. Notwithstanding the foregoing, City shall be free to use all tax
increment revenues collected in respect of Minimum Improvements or other properties
within Project Area for any purpose for which the tax increment revenues may lawfully
be used pursuant to the provisions of the Urban Renewal Act, and City shall have no
obligation to Developer and Employer with respect to use thereof.
4.7 City Loans to Employer. City shall use its best efforts to make the following
financial incentives available to Employer for the purpose of funding the equipping of
Minimum Improvements on Property:
(1) Community Development Block Grant Loan of $500,000 for ten years at 4.5
percent interest subject to the terms of a loan agreement to be negotiated and
executed by City and Employer.
(2) M108 Loan Guarantee Assistance of $2,000,000 subject to U.S. Department
of Housing and Urban Development approval and the Employer negotiating and
executing a sub -loan agreement.
(3) Loan of $100,000 for five years at 4.5 percent interest from the City's portion
of the local EDA Revolving Loan Fund administered by ECIA Business Growth,
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Inc. and subject to the terms of a loan agreement to be negotiated and executed by
Employer and ECIA Business Growth, Inc.
(4) Forgivable loan of $692,000 subject to City receiving a Public Infrastructure
Assistance Program grant from the Iowa Department of Economic Development
in the amount of $1,262,000 for costs related to the redevelopment of the Keeper
Boulevard Industrial Park and subject to the terms of a loan agreement to be
negotiated and executed by Employer and City.
All such financing and the terms of the foregoing loan agreements shall be
mutually acceptable to City and Employer but subject in all respects to compliance with
the applicable loan or grant program requirements and the covenants and conditions set
forth in this Agreement and with State law, including the holding of public hearings
thereon, and may contain terms or covenants that are different than those contained in
this Agreement. All such loan agreements shall represent separate obligations of the
parties thereto and shall be construed and enforced as provided therein.
Immediately upon execution of this Agreement by Developer and Employer, the
parties shall cooperate in confirming the commitment of the above-described fmancial
incentives with the intent to obtain such funding (or if the funding is to be made as a
reimbursement to Employer or Developer, a commitment to fund) prior to transfer of
possession of Property. If any financial incentive has not been committed (in the sole,
but reasonable, good faith discretion of Developer and Employer) prior to possession,
then Developer and Employer shall have the option to jointly terminate this Agreement
within 30 days of notice by City of it inability to obtain the financial incentive.
SECTION 5. COVENANTS OF DEVELOPER
5.1 Execution of Lease Agreement with Employer. Prior to Closing, Developer shall
agree to, and with Employer shall execute, a Lease Agreement ("the Lease") in a form
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satisfactory to Developer and Employer for the lease of the Minimum Improvements for
a term of not less than ten (10) years. A copy of the Lease, so executed, shall be provided
to City at or prior to Closing.
5.2 Execution of Assessment Agreement. Developer shall agree to, and with City
shall execute, as soon as the plans and specifications for Minimum Improvements are
prepared but no later than Closing Date, an Assessment Agreement substantially in the
form attached hereto as Exhibit F ("Assessment Agreement") pursuant to the provisions
of Section 403.6(19) of the Code of Iowa specifying the Assessor's Minimum Actual
Value for Property and Minimum Improvements for calculation of real property taxes.
Specifically, Developer shall agree to a minimum actual value for Property and Minimum
Improvements which will result in a minimum actual value as of January 1, 2000 of not
less than Seventeen Million Five Hundred Thousand Dollars ($17,500,000.00) (such
minimum actual value at the time applicable is herein referred to as the "Assessor's
Minimum Actual Value"). Nothing in the Assessment Agreement shall limit the
discretion of the Assessor to assign an actual value to Property in excess of such
Assessor's Minimum Actual Value nor prohibit Developer from seeking through the
exercise of legal or administrative remedies a reduction in such actual value for property
tax purposes; provided, however, that Developer shall not seek a reduction of such actual
value below Assessor's Minimum Actual Value in any year so long as Assessment
Agreement shall remain in effect. Assessment Agreement shall remain in effect until
January 31, 2009 (the "Termination Date"). Assessment Agreement shall be certified by
the Assessor for City as provided in Iowa Code Section 403.6(19) and shall be filed for
record in the office of the County Recorder of Dubuque County, and such filing shall
constitute notice to any subsequent encumbrancer or purchaser of Property (or part
thereof), whether voluntary or involuntary, and such Assessment Agreement shall be
binding and enforceable in its entirety against any such subsequent purchaser or
encumbrancer.
5.3 Real Property Taxes. Notwithstanding any other provision of the Lease relating
to the payment of taxes on the Property or the Minimum Improvements, Developer shall
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pay, or cause to be paid, when due, all real property taxes and assessments payable with
respect to all and any parts of Property pursuant to the provisions of Assessment
Agreement and until Developer's obligations have been assumed by any other person
pursuant to the provisions of this Agreement. This covenant shall expire on the
Termination Date.
Developer agrees that prior to the Termination Date:
(1) It will not seek administrative review or judicial review of the applicability
or constitutionality of any tax statute relating to the taxation of property contained
on Property determined by any tax official to be applicable to Property, Minimum
Improvements or Developer or raise the inapplicability or constitutionality of any
such tax statute as a defense in any proceedings, including delinquent tax
proceedings; and
(2) It will not seek any tax deferral or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other State
or federal law, of the taxation of real property contained in Property between the
date of execution of this Agreement and the Termination Date.
5.4 Insurance Requirements.
(1) Developer will provide and maintain or cause to be maintained at all times
during the process of constructing Minimum Improvements (and, from time to
time at the request of City, famish City with proof of payment of premiums on):
(a) Builder's risk insurance, written on the Special Perils Form in an
amount equal to one hundred percent (100%) of the replacement value of
Minimum Improvements at the date of completion;
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(b) Commercial general liability insurance (ISO Form CG0001) together
with an Owner's Contractor's Policy with limits against bodily injury and
property damage of not less than $2,000,000 for each occurrence (to
accomplish the above -required limits, an umbrella or excess liability
policy may be used);and
(c) Worker's compensation insurance, with statutory coverage.
(2) Upon completion of construction of Minimum Improvements and prior to the
Termination Date, and notwithstanding any other provision of the Lease
relating to the insuring of the Property or the Minimum Improvements,
Developer shall maintain, or cause to be maintained, at its cost and expense
(and from time to time at the request of City shall furnish proof of the
payment of premiums on) insurance as follows:
(a) Property insurance against loss and/or damage to Minimum
Improvements under an insurance policy written on the Special Perils
Form in an amount not less than the full insurable replacement value of
Minimum Improvements, but any such policy may have a deductible
amount of not more than $50,000. No policy of insurance shall be so
written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance
provisions or otherwise, without the prior consent thereto in writing by
City. The term "replacement value" shall mean the actual replacement
cost of Minimum Improvements (excluding foundation and excavation
costs and costs of underground flues, pipes, drains and other uninsurable
items).
(b) Commercial general liability insurance (ISO Form CG0001) in the
minimum amount for each occurrence and for each year of $2,000,000,
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(c) Automobile liability insurance with a minimum limit per occurrence
of $1,000,000.
(d) Worker's compensation insurance respecting all employees of
Developer, provided that Developer may be self-insured with respect to all
or any part of its liability for worker's compensation.
(3) All insurance required by this Section shall be taken out and maintained in
responsible insurance companies selected by Developer which are authorized
under the laws of the State to assume the risks covered thereby. Developer shall
deposit annually with City copies of policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such
insurance has been issued for the policy period indicated. Unless otherwise
provided in this Section, each certificate shall contain a provision that the insurer
shall not cancel or reduce the coverage or limits without giving written notice to
City at least thirty (30) days before the cancellation or reduction becomes
effective. Developer shall furnish City evidence satisfactory to City that the
policy has been renewed or replaced by another policy conforming to the
provisions of this Section, or that there is no necessity therefor under the teuus
hereof. In lieu of separate policies, Developer may maintain a single policy, or
blanket or umbrella policies, or a combination thereof, which provide the total
coverage required herein, in which event Developer shall deposit with City a
certificate or certificates of the respective insurers as to the amount of coverage in
force upon Minimum Improvements, provided, however, the specific limit shall
not be impaired.
(4) Developer agrees to notify City immediately in the case of damage exceeding
$25,000 in amount to, or destruction of, Minimum Improvements or any portion
thereof resulting from fire or other casualty occurring prior to the Termination
Date. Net proceeds of any such insurance ("Net Proceeds") shall be paid directly
to Developer, and Developer shall, within a reasonable time, undertake to apply
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for all necessary permits and as soon as lawfully permitted to repair, reconstruct
and restore 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.
(5) Developer shall complete the repair, reconstruction and restoration of
Minimum Improvements damaged prior to the Termination Date, whether or not
the Net Proceeds of insurance received by Developer for such purposes are
sufficient.
5.5 Preservation of Property. Prior to the Termination Date, Developer shall
maintain, preserve and keep Minimum Improvements in good repair and working order,
and from time to time shall make all necessary repairs, replacements, renewals and
additions, ordinary wear and tear excepted.
5.6 Non -Discrimination. In constructing the project, Developer shall not
discriminate against any employee or applicant for employment because of race, religion,
color, sex, national origin, age or disability.
5.7 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.
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5.8 Non -transferability. Until such time as Minimum Improvements are complete (as
certified by City under Section 3.4), this Agreement may not be assigned by Developer
nor may Property be transferred by Developer to another party without the prior written
consent of City, except that Developer is hereby permitted to assign this Agreement to an
entity controlled by or for the benefit of Developer and/or James Berry Craddock or his
family members.
5.9 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to Property or any part thereof that prior to the
Termination Date, Developer and such successors and assigns, shall:
(1) Devote Property to, and only to and in accordance with, the uses specified in
the Urban Renewal Plan; and
(2) Not discriminate upon the basis of race, religion, color, sex, national origin,
age or disability in the sale, lease, rental, use or occupancy of Property or any
improvements erected or to be erected thereon, or any part thereof.
5.10 Compliance with Laws. Prior to the Termination Date, Developer shall comply
with all laws, rules and regulations relating to its businesses, other than laws, rules and
regulations the failure to comply with which or the sanctions and penalties resulting
therefrom, would not have a material adverse effect on the business, property, operations,
financial or otherwise, of the Developer.
5.11 Guaranty Regarding Notes. The parties reasonably expect that the annual tax
increment revenues to be derived from the Property and the Minimum Improvements in
any year will exceed the minimum amount needed to pay when due all principal and
interest of the Notes maturing and coming due in that year. Developer agrees that if for
any reason the tax increment revenues collected by City in respect of the Property and the
Minimum Improvements are less than the amount necessary to pay all of the principal
and interest on the Notes coming due on the next payment date, then Developer shall pay
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to City, promptly upon City's written demand therefor, the difference between (a) the tax
increment revenues actually collected by City and available for repayment of the Notes
and (b) the amount of principal and interest then due on the Notes.
SECTION 6. COVENANTS OF EMPLOYER.
6.1 Job Retention and Creation.
(a) Until at least December 31, 2003, Employer shall employ and maintain not
less than 475 permanent full-time equivalent employees (each working at least
2,080 hours per year)("F 1'E Employees") at the Minimum Improvements or its
present facilities in Dubuque, Iowa. In the event that any certificate provided to
City under Section 6.2 hereof discloses that Employer has not maintain at least
475 F 1'E Employees at the Minimum Improvements, Employer shall pay to City,
promptly upon written demand therefor, an amount equal to the sum of (1) the
Acquisition Grant described in Section 4.2 hereof and (2) the forgivable loan
described in Section 4.7(4) hereof, reduced by any amount recovered by City, as
of the date of the written demand by City, from Developer under Section 7.2
hereof. Such payment shall constitute full payment to City in respect of
Employer's failure to maintain the jobs required by this subsection 6.1(a.), and any
such failure on the part of Employer shall not constitute an Event of Default under
Section 7 hereof or entitle City to exercise any of the remedies set forth in Section
7.2 in respect of such failure. Any payment made under this subsection 6.1(a)
shall constitute full payment of any subsequent breach of Section 6.1(b) and City
shall have no right to collect any further payment in respect of Employer's failure
to create new jobs required by subsection 6.1(b).
(b) Employer agrees to hire additional permanent full-time equivalent employees
(each working at least 2,080 hours per year) ("FTE Employees") in excess of four
hundred seventy five (475) FIE Employees (the "baseline" employment) so that
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by no later than December 31, 2003, Employer has not less than six hundred forty
three (643) F 1'E Employees at the Minimum Improvements. In the event that the
applicable certificate provided to City under Section 6.2 hereof discloses that
Employer did not employ at least six hundred forty three (643) FIE Employees at
the Minimum Improvements as of December 31, 2003, Employer shall pay to
City, promptly upon written demand therefor, an amount equal to Three Thousand
Three Hundred Sixty Dollars ($3,360.00) for each FIE Employee not so
employed as required by this subsection 6.1(b)(i.e., 643 minus [number of FIE
Employees on December 31, 2003 above the "baseline" employment described in
subsection 6.1(a)] x $3,360). Such payment shall constitute full payment to City
in respect of the failure of Employer to create the new jobs required by this
subsection 6.1(b), and any such failure on the part of Employer shall not
constitute an Event of Default under Section 7 hereof or entitle City to exercise
any of the remedies set forth in Section 7.2 in respect of such failure.
6.2 Annual Certification. To assist City in monitoring the perfoliiiance of Employer
hereunder, a duly authorized officer of Employer shall annually certify to City (a) the
number of FTE Employees employed at Property as of the anniversary of the
Commencement Date (date of Certificate of Completion), and as of the first day of each
of the preceding eleven (11) months, and (b) to the effect that such officer has re-
examined the terms and provisions of this Agreement and that at the date of such
certificate, and during the preceding twelve (12) months, to the best of the officer's
knowledge after diligent inquiry of all appropriate officers of Employer, Employer is not,
or was not, in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or the
giving of notice, or both, would become an Event of Default) is occurring or has occurred
as of the date of such certificate or during such period, or if the signer is aware of any
such default, event or Event of Default, said officer shall disclose in such statement the
nature thereof, its period of existence and what action, if any, has been taken or is
proposed to be taken with respect thereto. Such certificate shall be provided not later
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than January 1 of each year, commencing January 1, 2000 and ending on January 1, 2004
both dates inclusive ("Reporting Period").
6.3 Books and Records. During the Reporting Period, Employer shall keep at all
times proper books of record and account in which full, true and correct entries shall be
made of all dealings and transactions of or in relation to the business and affairs of
Employer in accordance with generally accepted accounting principles, consistently
applied throughout the period involved, and Employer shall provide reasonable
protection against loss or damage to such books of record and account.
6.4 Financial Statements. Upon request, during the Reporting Period, Employer shall
promptly provide City with copies of its financial statements for the preceding fiscal year
or, if such fmancial statements are not separately prepared for Employer's operations, the
financial statements of Employer's parent company, prepared in accordance with
generally accepted accounting principles and, if available, accompanied by a report of an
independent public accountant selected by Employer to the effect that such financial
statements have been prepared in conformity with generally accepted accounting
principles and present fairly, in all material respects, the financial condition of Employer
and the examination of such financial statements by such accountant has been undertaken
in accordance with generally accepted auditing standards.
6.5 Non -Discrimination. During the Reporting Period, Employer shall not
discriminate against any employee or applicant for employment because of race, religion,
color, sex, national origin, age or disability.
6.6 Conflict of Interest. Employer 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
22
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.
6.7 Non -transferability. Until the Reporting Period ends, this Agreement may not be
assigned by Employer without the prior written consent of City. Nothing herein shall be
deemed to limit or restrict transfers of shares of common stock of Employer or its parent
company.
6.8 Compliance with Laws. During the Reporting Period, Employer shall comply
with all laws, rules and regulations relating to its businesses, other than laws, rules and
regulations the failure to comply with which or the sanctions and penalties resulting
therefrom, would not have a material adverse effect on the business, property, operations,
financial or otherwise, of the Employer.
SECTION 7. EVENTS OF DEFAULT AND REMED I ti S
7.1 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 occurring prior to the Termination
Date:
(1) 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.
(2) Failure by Developer to cause the Minimum Improvements to be
reconstructed when required pursuant to this Agreement.
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(3) Failure by Developer or Employer to substantially observe or perfonn any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
7.2 Remedies on Default. Whenever any Event of Default referred to in Section 7.1
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 thirty (30) days' written notice by City to
Developer and Employer of the Event of Default, but only if the Event of Default has not
been cured within said thirty (30) days, or if the Event of Default is not reasonably
susceptible to being cured within thirty (30) days and the party causing the Event of
Default (the "Defaulting Party") does not provide (upon written request of City)
assurances reasonably satisfactory to City that the Event of Default will be cured as soon
as reasonably practical:
(1) City may suspend its performance under this Agreement until it receives
assurances from Developer or Employer, deemed reasonably satisfactory by City,
that the Defaulting Party will cure its default and continue its performance under
this Agreement;
(2) If the Defaulting Party is the Developer, City shall be entitled to recover
from Developer the sum of all amounts expended by City in connection. with (i)
the acquisition and preparation of Property for transfer to Developer and (ii) the
funding of Acquisition Grant and Economic Development Grant to Developer
reduced by any amount recovered by City from Employer under Section 6.1(a)
hereof. City may take any action, including any legal action it deems necessary, to
recover such amounts from Developer;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
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Agreement or to enforce performance and observance of any obligation,
agreement, or covenant of the Defaulting Party under this Agreement.
7.3 Revesting Title in City Upon Happening of Event Subsequent to Conveyance to
Developer. In the event that subsequent to conveyance of Property to Developer by City
and prior to receipt by Developer of the Certificate of Completion, and subject to the
terms of any mortgage granted by Developer to secure any loan obtained by Developer
from a commercial lender or other financial institution to fund the acquisition of property
or construction of Minimum Improvements of which the City has been given written
notice ("First Mortgage"), if an Event of Default under Section 7.1(1) of this Agreement
occurs and is not cured within the times specified in Section 7.2, then City shall have the
right to re-enter and take possession of Property and any portion of the Minimum
Improvements thereon and to terminate (and revest in City pursuant to the provisions of
this Section 7.3 subject only to any superior rights in any holder of a First Mortgage) the
estate conveyed by the Deed to Developer, it being the intent of this provision, together
with other provisions of this Agreement, that the conveyance of Property to Developer
shall be made upon the condition that (and the Deed shall contain a condition subsequent
to the effect that), in the event of any default under Section 7.1(1) on the part of
Developer and failure on the part of Developer to cure such default within the period and
in the manner stated in Section 7.2, City may declare a termination in favor of City of the
title and of all Developer's rights and interests in and to Property conveyed to Developer,
and that such title and all rights and interests of Developer, and any assigns or successors
in interests of Developer, and any assigns or successors in interest to and in Property,
shall revert to City (subject to the provisions of Section 7.4 of this Agreement), but only
if the events stated in Section 7.1(1) of this Agreement have not been cured within the
time period provided above, or, if the event cannot be cured within such time periods,
Developer does not provide assurance satisfactory to City, that the event will be cured as
soon as reasonably possible.
7.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting in
City of title to Property as provided in Section 7.3 of this Agreement, City shall, pursuant
25
to its responsibility under law, use its best efforts, subject to any rights or interests in such
property or resale granted to any holder of a First Mortgage, to resell Property or part
thereof as soon and in such manner as City shall find feasible and consistent with the
objectives of such law and of the Urban Renewal Plan to a qualified and responsible
party or parties (as determined by City in its sole discretion) who will assume the
obligation of making or completing the Minimum Improvements or such other
improvements in their stead as shall be satisfactory to City and in accordance with the
uses specified for such Property or part thereof in the Urban Renewal Plan. Subject to
any rights or interests in such property or proceeds granted to any holder of a First
Mortgage pursuant to this Agreement upon such resale of Property the proceeds thereof
shall be applied:
(1) First, to pay and discharge any liens and encumbrances which are prior to the
First Mortgage;
(2) Second, to pay the principal and interest on the First Mortgage and any other
mortgage(s) created on Property, or any portion thereof, or any improvements
thereon, previously approved by City in writing pursuant to this Agreement. If
more than one mortgage on the Property, or any portion thereof, or any
improvements thereon, has been previously approved by City pursuant to this
Agreement, and insufficient proceeds of the resale exist to pay the principal of,
and interest on, each such mortgage in full, then such proceeds of the resale as are
available shall be used to pay the principal of and interest on each such mortgage
in their order of priority, or by mutual agreement of all contending parties
including Developer, or by operation of law;
(3) Third, to reimburse City for all reasonable, allocable costs and expenses
incurred by City, including but not limited to salaries of personnel, in connection
with the recapture, management and resale of property or part thereof (but less
any income derived by City from the property or part thereof in connection with
such management); any payments made or necessary to be made to discharge any
26
encumbrances or liens (except for mortgage(s) previously approved by City
existing on Property or part thereof at the time of revesting of title thereto in City
or to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults or acts of Developer, its
successors or transferees (except with respect to such mortgage(s)); any
expenditures made or obligations incurred with respect to acquisition of the
Property or part thereof; and any amounts otherwise owing to City (including
water and sewer charges) by Developer and its successors or transferees;
(4) Fourth, to Employer in an amount equal to any and all costs and expenses
incurred in relationship to the Property or this Agreement; and
(5) Fifth, to reimburse Developer in an amount not to exceed (i) the sum of the
Purchase Price paid to City for Property and the cash actually invested by
Developer in making any of the Minimum Improvements on Property, less (ii)
any gains or income withdrawn or made by Developer from this Agreement or
Property.
7.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to any
party is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy
given under this Agreement or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as may be deemed
expedient.
7.6 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
27
7.7 Agreement to Pay Attorney's Fees and Expenses. Whenever any Event of Default
occurs and City shall employ attorneys or incur other expenses for the collection of
payments due or to become due or for the enforcement or performance or observance of
any obligation or agreement on the part of Developer herein contained, Developer agrees
that it shall, on demand therefor, pay to City the reasonable fees of such attorneys and
such other expenses so incurred by City.
7.8 Right to Cure Defaults. Notwithstanding any other provision herein to the
contrary, any Event of Default by a Defaulting Party may be cured by either Developer or
Employer, as applicable, within the time provided in Section 7.2 hereof, in which case the
non -defaulting party shall be subrogated to all rights of City hereunder with respect to
said Event of Default.
SECTION 8. GENERAL "PERMS AND PROVISIONS
8.1 Release and Indemnification Covenants.
(1) Developer and Employer release City and the governing body members,
officers, agents, servants and employees thereof (hereinafter, for purposes of this
Section 8.1, the "indemnified parties") from, covenants and agrees that the
indemnified parties shall not be liable for, and agrees to indemnify, defend and
hold hatutless the indemnified parties against, any loss or damage to property or
any injury to or death of any person occurring at or about or resulting from any
defect in Minimum Improvements.
(2) Except for any willful misrepresentation or any willful or wanton misconduct
or any unlawful act of the indemnified parties, Developer and Employer agree to
protect and defend the indemnified parties, now or forever, and further agrees to
hold the indemnified parties hauitless, from any claim, demand, suit, action or
other proceedings whatsoever by any person or entity whatsoever arising or
28
purportedly arising from (i) any violation of any agreement or condition of this
Agreement (except with respect to any suit, action, demand or other proceeding
brought by Developer or Employer against City to enforce their rights under this
Agreement) or (ii) the acquisition, construction, installation, ownership, and
operation of Minimum Improvements or (iii) the condition of Property and any
hazardous substance or environmental contamination located in or on Property,
which first occurs on the Property after the Closing Date.
(3) The indemnified parties shall not be liable for any damage or injury to the
persons or property of Developer or Employer or their officers, agents, servants or
employees or any other person who may be about Minimum Improvements due to
any act of negligence of any person, other than any act of negligence on the part
of any such indemnified party or its officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member,
officer, agent, servant or employee of City in the individual capacity thereof.
(5) The provisions of this Section 8.1 shall survive the termination of this
Agreement.
8.2 Notices and Demands. Whenever this Agreement requires or permits any notice
or written request by one party to another, it shall be in writing, and (i) sent by a
nationally recognized overnight courier service such as Federal Express or Express Mail,
(ii) hand delivered, or (iii) enclosed in an envelope, addressed to the party to be notified,
properly stamped, sealed and deposited in the United States Mail, certified mail, return
receipt requested, and
(1) In the case of Employer, be addressed to:
Eagle Window & Door, Inc.
29
375 East Ninth Street
Dubuque, Iowa 52001
Fax No. (319) 556-3825
With a copy to:
David J. McKelvey
American Architectural Products Corp.
755 Boardman -Canfield Road, Bldg. G -West
Boardman, Ohio 44512
Fax No. (330) 965-8281
(2) In case of Developer, be addressed to:
Michael L. Craddock
Dubuque -Eagle, LLC
228 North Cascade Avenue, Suite 301
Colorado Springs, Colorado 80903
Fax No. (719) 630-2239
With a copy to:
Ralph Braden, Esq.
Braden Frindt & Stinar LLC
102 North Cascade Avenue, Suite 350
Post Office Box 1435
Colorado Springs, CO 80903
Fax No. (719) 635-2493
(3)
In the case of City, be addressed to:
City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Fax No. (319) 589-4149.
or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the others as provided in this Section. Any notice
delivered hereunder shall be deemed delivered upon the earlier of the actual receipt (or
rejection of receipt) or two (2) business days after posting.
8.3 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City, Employer and Developer and their respective successors and assigns.
8.4 Acts of God. The time frames for the performance of all obligations under this
Agreement shall be suspended for any delays caused by acts of God including, but not
limited to, extreme weather conditions and/or other natural causes, casualty, labor
problems (including but not limited to strikes, walk -outs, picketings, boycotts, and
shutdowns), governmental restrictions upon the availability or use of labor or materials,
or insurrection, embargoes, or delays in providing necessary consents or approvals. The
time for performance of such obligations shall be extended only for the period of the such
delay.
8.5 Survival of Obligations. Except as specifically set forth herein to the contrary, all
obligations of the parties set forth herein shall survive closing and conveyance of the
Property, and shall not merge with the deed.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in
its name and behalf by its Mayor and attested by its City Clerk, and Employer has caused
this Agreement to be duly executed in its name and behalf by its President and attested by
its Secretary, and Developer has caused this Agreement to be duly executed in its name
and behalf by its President and attested by its Secretary, on or as of the day first above
written.
By:
CITY OF DUBUQUE, IOWA
31
By:
EAGLE WINDOW &
By:
By:
Terrance M. Duggan, Mayor
Mary A(',lbavis, City Clerk
DUBUQUE -EAGLE, LLC,
A Nevada limited liability company
By: New Equity, LLC.
A Colorado limited liability company,
Its manager
Michael L. Craddock, Manager
32
,00"
1658 .=-00
2000 FEB 16 AM 10: 12
KATHY FLYNN THUkLOW
COUNTY ECORDER
DUBUQUE CO., MIA FEES
Prepared by: James D. Burke, 50 W. 13th Street, Dubuque, IA 52001 Telephone: 319-589-4393
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENT AGREEMENT, dated as of this /3-7`A day of
Fehr- , 2000, by and among the CITY OF DUBUQUE, IOWA, (the "City"), Otto A, LLC, a
Nevada limited liability company, its successors and assigns, (the "Developer"), and the CITY
ASSESSOR for the City of Dubuque, Iowa (the "Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Developer have entered into a
Development Agreement as of February 15, 1999, as amended (together, the "Agreement"), regarding
certain real property located in the City legally described as follows:
Lot 3 of Kerper Industrial Park in the City of Dubuque, Iowa
(the "Development Property"); and
WHEREAS, it is contemplated that pursuant to said Agreement, the Developer will undertake
the development of the Development Property, which is within the Kerper Boulevard Industrial Park
Economic Development Urban Renewal District; and
WHEREAS, pursuant to Section 403.6 of the 1999 Code oflowa, as amended, the City and the
Developer desire to establish a minimum actual value for Development Property, facilities and the
equipment thereon to be constructed by the Developer pursuant to the Agreement (defined therein as
the "Minimum Improvements"); and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and specifications
for the Minimum Improvements which it is contemplated will be erected.
NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in consideration of
the promises, covenants and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the above -referenced Minimum
Improvements by the Developer, but no later than January 1, 2001, the minimum actual taxable value
which shall be fixed for assessment purposes for the Development Property and Minimum
Improvements to be constructed thereon by the Developer shall be not less than Seventeen Million Five
Hundred Thousand Dollars, ($17,500,000.00), (hereafter referred to as the "Minimum Actual Value")
until termination of this Minimum Assessment Agreement.
Nothing herein shall be deemed to waive the Developer's rights under Iowa Code Section
403.6(19) to contest that portion of any actual value assignment made by the Assessor in excess of the
Minimum Actual Value established herein. In no event, however, shall the Developer seek to reduce
the actual value assigned below the Minimum Actual Value established herein during the term of this
Agreement.
2. The Minimum Actual Value herein established shall be of no further force and effect
and this Minimum Assessment Agreement shall terminate on January 31, 2010.
3. This Minimum Assessment Agreement shall be promptly recorded by the Developer
with the Recorder of Dubuque County, Iowa. The Developer shall pay all costs of recording.
4. Neither the preambles nor provisions of this Minimum Assessment Agreement are
intended to, or shall be construed as, modifying the terms of the Agreement between the City and the
Developer.
5. This Minimum Assessment Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the parties, and all holders of mortgages upon or security interests in the
Development Property or Minimum Improvements granted prior to the date hereof, to secure any loans
with respect to the Development Property or Minimum Improvements, that execute the consent attached
hereto.
By:
By:
THE CITY OF DUBUQUE, IOWA
j/
Terrance M. Duggan, May
et1
Jeanne F. Schneider, City Clerk
OTTO A, LL
A Nevada •_
ited liability co
By:
Herman Ahlers, Manager
ACKNOWLEDGMENT
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this l)j day of , 2000, before me a Notary Public in and for the State of
Iowa, personally appeared Terrance M. Du, gan and Jeanne F. Schneider to me personally known, who
being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City of Dubuque,
Iowa, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the
seal affixed to the foregoing instrument is the seal of said Municipal Corporation, and -tha2t said
instrument was signed and sealed on behalf of said Municipal Corporation by authority, gud,reso1,% on
of its City Council and said Mayor and City Clerk acknowledged said instrument to be'the firee•a`e ; tid
deed of said Municipal Corporation by it voluntarily exec d. v1
::ti
tary Public in and for Dubuque Cou Abwa
STATE OF -,413.-
)
'4) SS
COUNTY OF a4,,r,„
On this /5 day of %d , 2000, before me a Notary Public in and for said the
County and State personally appeared Hellman Ahlers, to me personally known, who being by me duly
sworn, did say that he is the Manager of Otto A, LLC, a Nevada limited liability company, that the
foregoing instrument was signed on behalf of said entity by authority of its managers and that he, as
the Manager, acknowledged the execution of the foregoing instrument to be the voluntary act and deed
of said entity, by it and by him voluntarily executed.
Notary Public in and for
AA", County, ,� _
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum Improvements
to be constructed and the market value assigned to the land upon which the Minimum Improvements
are to be constructed, and being of the opinion that the minimum market value contained in the
foregoing Minimum Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property described in the
foregoing Minimum Assessment Agreement, upon completion of Minimum Improvements to be made
on it and in accordance with the Minimum Assessment Agreement, certifies that the actual value
assigned to such land, building and equipment upon completion shall not be less than Seventeen
Million Five Hundred Thousand Dollars ($17,500,000.00), until termination of this Minimum
Assessment Agreement pursuant to the terms hereof.
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
Subscribed and sworn to before me by
of Dubuque, Iowa.
.40
City Assessor for F. e City of Dub que .wa
a2-/6 ,:2069-6)
Date
!t- , City Assessor for the City
Notary Public in and for Dubuque County, Iowa
Date
F:\USERS\JBURKE\BURKE\DOCS\ECDEV\EAGLEWIN\AHLERSMI.AGR
February 9, 2000
IC LE BAKER
MY COMMISSION EXPIRES
1110.
CONSENT
The undersigned, a holder of a mortgage granted prior to the date hereof to secure a loan made with
respect to the Development Property or Minimum Improvements, hereby consents to the execution and
recording of the foregoing Minimum Assessment Agreement and agrees to be bound thereby.
By:
By:
of t oU
c_e9 p7c
7/2/6"i eonf a7
-/tel-Zc u
itek4—
(Name)
(Title)
(Name)
545'z /O 4N° 5,") we") 70
/5 ,9d1Y O ,, ,
(Title)
RIAN J. KANE
MY COMMISSION EXPIRES j
JANUARY 12, 2001