A.Y. McDonald Expansion_State Assistance Application Amendment & DA_HearingMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: A.Y. McDonald Expansion
DATE: December 28, 2011
Dubuque
bierd
All-America City
1
2007
Economic Development Director Dave Heiar is recommending modification of the
application for financial assistance submitted to the Iowa Economic Development
Authority on behalf of A.Y. McDonald and approve a Development Agreement providing
for a five -year TIF rebate of property taxes on the local match for the state financial
assistance application.
A.Y. McDonald plans a major expenditure at the Dubuque facility. This includes having
completed the preliminary engineering to install a 2 I/ ton coreless, 1250KW furnace
that will provide a melt capacity between 4000 — 5000 pounds per hour. The addition of
this furnace requires the installation of an additional transformer, a 2,000 KVA service
entrance switch and an 800 -amp power distribution panel dedicated to this furnace.
The company has contracted with Alliant Energy to supply the transformer, connections
from the primary feed to the transformer and from the transformer to the secondary
feed. The company has contracted with another Iowa based company, Foundry
Equipment Company to complete the remainder of the project, which includes the
purchase and installation of the furnace and the cooler. There is an additional concern
of running no -lead and 85 brass within the same facility. In order to properly segregate
the no -lead and 85 brass product within the same facility, the company is required to
purchase two additional blast machines with dust collection.
At the December 5th meeting, the City Council approved an application on behalf of
A.Y. McDonald to facilitate this local expansion. The application requested the Iowa
Economic Development Authority (IEDA) to partner in this expansion, which is
estimated to cost $2,613,872 and create 17 new positions in Dubuque. The application
requested $136,000 in financial assistance from the 130% Component program (in the
form of a $68,000 forgivable loan and a $68,000 loan, 0% 5 year term), and $153,444
from the High Quality Jobs program (in the form of $133,194 in Investment Tax Credits
and $20,250 in Sales Tax Refund).
Previously, the Council authorized the local match required for this application through a
five -year reducing industrial tax abatement as provided by City Ordinance Section
43 -21. Over five years the abatement was estimated at $30,600. Based on valuation
calculations prepared by the City Assessor, the value of this abatement would actually
be $43,736.
City staff was contacted by Iowa Economic Development Authority on December 8,
2011 to inform the City that either more local match would be required or the state
financial assistance would have to be decreased to meet the minimum local match
requirement for the various State incentives. Therefore, in lieu of a five -year Industrial
Tax abatement, City staff is proposing a five -year TIF rebate estimated at $92,898. The
Development Agreement provides for the following:
1. A.Y. McDonald invests at least $2,613,872 in the expansion which would include
a 14,000 square foot building
2. A.Y. McDonald will retain 306 jobs and create at least 17 new full time positions
3. The City will provide a five -year TIF rebate of increased property taxes
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
Rick Dickinson, Executive Director and Chief Operating Officer, Greater Dubuque
Development Corporation
2
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J Heiar, Economic Development Director
SUBJECT: A Y McDonald Expansion
DATE: December 22, 2011
Dubuque
AID- America City
'1 1 1 II
2007
PURPOSE
The intent of this memorandum is to modify the application for financial assistance
submitted to the Iowa Economic Development Authority on behalf of A Y McDonald and
approve a Development Agreement providing for a 5 year TIF rebate of property taxes
on the local match for the state financial assistance application
BACKGROUND
A Y McDonald Manufacturing Company is a 155 year old Iowa based manufacturer of
waterworks brass, high pressure gas, plumbing and pump products The Company was
founded in 1856 in Dubuque, IA and is still privately held and operated to this day by the
5th generation of the McDonald family A Y McDonald has a long tradition of trusted
quality and dependable service The Company's vision is to be the leading producer of
water and gas distribution products to benefit the current and next generation of
employees, customers, and stockholders by continually growing and strengthening their
business
A Y McDonald Manufacturing Company produces and sells products, which serve four
distinct industries The Water Service products consist of a line of underground valves,
fittings and service connections which primarily distribute water from the main to the
home or structure The High Pressure Gas products consist of a line of valves and
meter bars which assist with the distribution of Natural Gas to residential and
commercial installations The Plumbing line consists of valves, fittings and service
connections which are used in the distribution of water in residential or commercial
installations Finally, the Pump Product line offers an expansive range of pumps from
sump to sewage, submersible to booster pump systems, which serve multiple industries
and applications
The A Y McDonald customer base consists of approximately 7,300 customers located
primarily within the United States, but some of the customer base is international The
Company sells their products through wholesale distribution
In January of 2011, the Reduction of Lead in Drinking Water Act was signed into law,
which will reduce the allowable lead content of wetted surfaces in drinking water pipes,
pipe fittings, and plumbing fixtures. This means that within the water distribution system
in the United States, the current inventory of 85 -5 -5 -5 leaded brass becomes obsolete
on January 4, 2014. Therefore, the company will no longer be able to produce and their
customers will no longer be able to sell valves, fittings, or fixtures that contain lead
which exceeds the 0.25% weighted average limit for wetted surfaces.
A.Y. McDonald is committed to educating and assisting customers with the transition to
no -lead brass. The company was the first manufacturer in the industry to offer and
market a complete line of no -lead brass products and has over 20 years of R &D
experience in the development of their no -lead product line.
While the Reduction of Lead in Drinking Water Act will substantially change the product
requirements within the industry, A.Y. McDonald will still utilize 85 -5 -5 -5 brass for non -
wetted surfaces in conjunction with the no -lead brass. This will create a number of
complex issues within their manufacturing processes. Balancing no -lead and 85 brass
within the same production facility to properly contain any possibility of cross -
contamination is a substantial challenge. Foreseeing the no -lead change years in
advance, A.Y. McDonald Industries, Inc. purchased a competitor in 2006 in Cambridge,
Ontario. This company, Cambridge Brass is a direct competitor to A.Y. McDonald Mfg.
Co. and Cambridge Brass utilizes a similar manufacturing process. A strong factor in
proceeding with the purchase of Cambridge Brass was the opportunity to segregate
production requirements by facility if necessary with the foundry in Dubuque producing
either 85 brass or no -lead brass and the Cambridge operation producing the other
brass.
A.Y. McDonald plans a major expenditure at the Dubuque facility. This includes having
completed the preliminary engineering to install a 2 % ton coreless, 1250KW furnace
that will provide a melt capacity between 4000 — 5000 pounds per hour. The addition of
this furnace requires the installation of an additional transformer, a 2,000 KVA service
entrance switch and an 800 -amp power distribution panel dedicated to this furnace.
The company has contracted with Alliant Energy to supply the transformer, connections
from the primary feed to the transformer and from the transformer to the secondary
feed. The company has contracted with another Iowa based company, Foundry
Equipment Company to complete the remainder of the project, which includes the
purchase and installation of the furnace and the cooler. There is an additional concern
of running no -lead and 85 brass within the same facility. In order to properly segregate
the no -lead and 85 brass product within the same facility, the company is required to
purchase two additional blast machines with dust collection.
DISCUSSION
At the December 5th meeting, the City Council approved an application on behalf of
A.Y. McDonald to facilitate this local expansion. The application requested the Iowa
Economic Development Authority (IEDA) to partner in this expansion, which is
estimated to cost $2,613,872 and create 17 new positions in Dubuque. The application
2
requested $136,000 in financial assistance from the 130% Component program (in the
form of a $68,000 forgivable loan and a $68,000 loan, 0% 5 year term), and $153,444
from the High Quality Jobs program (in the form of $133,194 in Investment Tax Credits
and $20,250 in Sales Tax Refund).
Previously, the Council authorized the local match required for this application through a
5 year reducing industrial tax abatement as provided by City Ordinance Section 43 -21.
Over 5 years the abatement was estimated at $30,600. Based on valuation calculations
prepared by the City assessor, the value of this abatement would actually be $43,736.
City staff was contacted by IEDA on December 8, 2011 to inform the City that either
more local match would be required or the state financial assistance would have to be
decreased to meet the minimum local match requirement for the various State
incentives. Therefore, in lieu of a 5 year Industrial Tax abatement, City staff is
proposing a 5 year TIF rebated estimated at $92,898. Attached is a Development
Agreement, which would provide for the following:
1. A.Y. McDonald invests at least $2,613,872 in the expansion which would include
a 14,000 square foot building
2. A.Y. McDonald will retain 306 jobs and create at least 17 new full time positions
3. The City will provide a 5 year TIF rebate of increased property taxes
RECOMMENDATION
Following the public hearing, I recommend that the City Council approve the attached
Resolution providing for a 5 year TIF rebate of property taxes as the local match for the
state financial assistance application as detailed in the attached Development
Agreement. This action supports the Council's objectives to assist a local business
expand its operations and create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
Attachment
F \USERS \Econ Dev\A Y McDonald \20111222_AY McDonald DA Public Heanng Memo doc
3
Prepared by /Return to: David Heiar. 50 W. 13th Street, Dubuque IA 52001, 563 589 -4393
RESOLUTION NO. 10 -12
RESOLUTION APPROVING ISSUANCE OF URBAN RENEWAL TAX INCREMENT
REVENUE OBLIGATIONS AND THE EXECUTION OF A DEVELOPMENT AGREEMENT
RELATING THERETO WITH A.Y. MCDONALD MFG CO.
Whereas, the City Council, by Resolution No. 436 -11, dated December 19, 2011
declared its intent to enter into a Development Agreement with A.Y. McDonald Mfg Co.; and
Whereas, pursuant to published notice, a public hearing was held on the issuance of
Urban Renewal Tax Increment Obligations on December 19, 2011 at 6:30 p.m. in the Historic
Federal Building, 350 W. 6th Street, Dubuque, Iowa; and
Whereas, it is the determination of the City Council to approve the 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 is in the public interest of the City of Dubuque.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and between the City of
Dubuque, A.Y. McDonald Mfg., Co. is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City and City Clerk is authorized and directed to
attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Development Agreement as herein approved.
Passed, approved and adopted this 3rd day of January, 2012.
Attest:
1.1
Ric V. Jones, - R%'r Pro -Tern
F: \USERS \Econ Dev\A.Y. McDonald \20111222 AY McDonald DA Resolution Public Hearing.doc
RESOLUTION
NO. 436-11
FIXING THE DATE FOR
A PUBLIC HEARING
OF THE CITY COUN-
CIL OF THE CITY OF
DUBUQUE, IOWA ON
THE PROPOSED ISSU-
ANCE OF URBAN RE-
NEWAL TAX INCRE-
MENT REVENUE OBLI-
GATIONS AND THE
EXECUTION OF A DE-
VELOPMENT AGREE-
MENT RELATING
THERETO WITH A.Y.
MCDONALD MFG CO.,
AND PROVIDING FOR
THE PUBLICATION OF
NOTICE THEREOF
Whereas, City and
A.Y. McDonald Mfg Co.
have entered into a De-
velopment 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, Io-
wa; and
Whereas, the City
Council has tentatively
determined that it
would be in the best in-
terests of the City to
approve the Develop-
ment Agreement, with
A.Y. McDonald; and
Whereas, it is deemed
necessary and advisa-
ble that City should au-
thorize Urban Renewal
Tax Increment Reve-
nue obligations, as pro-
vided by Chapter 403
of the Code of Iowa,
and to enter into the
Development Agree-
ment relating thereto
for the purpose of car-
rying out an Urban Re-
newal Plan as herein-
after described; and
Whereas, before said
obligations may be ap-
proved, Chapter 403 of
the Code of Iowa re-
quires that the City
Clerk publish a notice
of the proposal and of
the time and place of
the meeting at which
the City Council pro-
poses to take action
thereon and at which
meeting the City Coun-
cil shall receive oral
and /or written objec-
tions from any resident
or property, owner of
said City' to such pro-
posed action.
NOW THEREFORE, BE
IT RESOLVED BY THE
CITY COUNCIL OF THE
CITY OF DUBUQUE, 10-
WA:
Section 1. The City
Clerk is hereby author-
ized and directed to
cause this Resolution
and a notice to be pub-
lished as prescribed by
Iowa Code Section
403.9 of a public hear-
ing on the City's intent
authorize Urban Re-
newal Tax Increment
Revenue obligations, to
be held on the 3rd day
of January, 2012, at
6:30 o'clock p.m. in the
City Council Chambers
at the Historic Federal
Building, 350 W. 6th St.,
Du_ buque, Iowa.
ISection 2. The City
Council will meet at
said time and place for
the purpose of taking
action on the matter of
authorizing Urban Re-
newal Tax Increment
Revenue obligations
and the execution of
the Development
Agreement relating
thereto with A.Y.
McDonald Mfg Co., the
proceeds of which obli-
gations will be used to
carry out certain of the
special financing activ-
ities described in the
Urban Renewal Plan for
the Dubuque Industrial
Center Economic De-
velopment District,
consisting of the fund-
ing of economic devel-
opments grants to A.Y.
McDonalg Mfg Co. pur-
suantto the Develop-
ment Agreement under
the terms and condi-
tions of said Urban Re-
newal Plan. It is ex-
pected that the aggre-
gate amount of the Tax
Increment Revenue ob-
ligations is approxi-
mately $92,898.
Section 3. The Clerk is
hereby directed to
cause at least one pub-
lication to be made of a
notice of said meeting,
in a newspaper, print -'
ed wholly in the Eng-
lish language, publish-
ed at least once week-
ly, 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 is-
suance of said obliga-
tions.
Section 4. That the no-
tice of the proposed
action to issue said ob-
ligations shall be in
substantially the form
attached hereto.
Passed, approved and
adopted this 19h day of
December, 2011.
Lynn Sutton,
Mayor Pro -Tem
Attest:
Kevin S. Firnstahl,
City Clerk
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 A.Y.
MCDONALD MFG CO.
PUBLIC NOTICE is
hereby given that the
City Council of the City
of Dubuque, Iowa will
hold a public hearing
on the 3rd day of Janu-
ary, 2012, at 6:30 p.m.
in the City Council
Chambers at the His-
toric Federal Building,
350 W. 6th St., Dubu-
que, Iowa, at which
meeting the City Coun-
cil proposes to take ac-
tion for the authoriza-
tion of Urban,Renewal
Tax Increment Reve-
nue obligations and the
execution of a Develop-
ment Agreement relat-
ing thereto with A.Y.
McDonald Mfg Co.., in
order to carry out cer-
tain of the special fi-
nancing activities in
the Urban Renewal
Plan for the Dubuque
Industrial Center Eco-
nomic Development
District, consisting of
the funding of econom-
ic development grants
to A.Y. McDonald Mfg
Co., pursuant to a De-
velopment Agreement
entered into with A.Y.
McDonald Mfg Co. un-
der the terms and con-
ditions of said Urban
Renewal Plan. It is ex-
pected that the aggre-
gate amount of the Tax
Increment Revenue ob-
ligations is approxi-
mately $92,898. •
At the meeting, the
City Council will re-
ceive oral and written
objections from any
resident or property
owner of said City to
the above action. After
all objections have
been received and con-
sidered, the City Coun-
cil may at this meeting
or at any adjournment
thereof, the approval
of the Development
Agreement, and au-
thorization of such Tax
Increment Revenue ob-
ligations or will aban-
don the proposal. By
order of the City Coun-
cil said hearing and ap-
peals there from shall
be held in accordance
with and governed by
the provisions of Sec-
tion 403.9 of the Code
of Iowa.
This notice is given by
order of the City Coun-
cil of the City of Dubu-
que, Iowa, as provided
by Chapter 403 of the
Code of Iowa.
Dated this 23rd day of -.
December, 2011.
Kevin S. Firnstahl
City Clerk of Dubuque,
Iowa
It 12/23
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: December 23, 2011, and for which the charge is $73.97.
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this agog day of7.(12„. „) , 20 lj .
Notary Public in and for Dubuque County, Iowa.
IIIIII!IIIIIII!IIII1 ����� 111111111111111111111111
Doc ID: 010486460001 Type: GEN
Kind: AGREEMENT
Recorded: 05/14/2020 at 04:20:20 PM
Fee Amt: $7.00 Page 1 of 1
Dubuque County Iowa
John Murphy Recorder
Fi1e2020-00006246
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, and AY McDonald Mfg. Co., was made regarding the following described premises:
Lot 1 of Dubuque Industrial Center 13th Addition, in the City of Dubuque, Iowa,
according to the recorded Plat thereof
The Development Agreement is dated for reference purposes the 15th 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 CitytyofofDubuque and may be examined at its offices as above provided.
Dated this t w day of May, 2020.
CITY OF DUB
By:
UE, IOWA
qt
Barry Lindahl, Senior Counsel
STATE OF IOWA
ss:
DUBUQUE COUNTY
On this ) '2) day of May, 2020, before me, a Notary Public in and for the State of Iowa, in and for said
county, personally appeared Barry A. Lindahl, to me personally known, who being by me duly sworn did
say that he is the Senior Counsel of the City of Dubuque, that said instrument was signed on behalf of City
of Dubuque and the Senior Counsel acknowledged said instrument to be his free act and deed on behalf
of the ity of Dubuque.
cilAtt S./11,1i
Notary Public, tate of Iowa
0wl
TRACEY L. STECKLEIN
Commission Number 716018
My Comm Exp. ' 1) , 9i."5
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
AY MCDONALD MFG. CO.
AGREEMENT, dated for reference purposes the 15th day of December,
2011, by and between the City of Dubuque, Iowa, a municipality (City), established
pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter
403, as amended (Urban Renewal Act), and AY McDonald MFG. CO., an Iowa
corporation with its principal place of business in Dubuque, Iowa, (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act City
has undertaken an Urban Renewal project (the Project) to advance the community's
ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the
Urban Renewal Plan for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof (the Urban Renewal Plan) attached
hereto as Exhibit A; and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa and is on file with the City of Dubuque City
Clerk; and
WHEREAS, Developer owns a building in the Project Area (the Facility) and
has now determined that it requires constructing an additional building to its Facility
to maintain and expand its operations and employment in the Project Area; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
121511ba1
SECTION 1. DEVELOPMENT ACTIVITIES
1.1 Required Minimum Improvements. City acknowledges that Developer is
building an addition to its Facility located at 4800 Chavenelle Drive (the Property).
Developer hereby agrees to construct on the Property a manufacturing building of
not less than fourteen thousand (14,000) square feet of floor space along with
necessary site work and equipment as contemplated in this Agreement at an
estimated cost of approximately $2,613,872 (the Minimum Improvements).
1.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of the Property and the construction of Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to the Declaration of Covenants, Conditions,
Restrictions, Reservations, Easements, Liens and Charges, recorded as Instrument
No. 10798 -90, 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.
1.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before May 1,
2012, and shall be substantially completed by December 31, 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.
1.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying in the form attached hereto as Exhibit I (the
Certificate of Completion). Such certification shall be in recordable form and shall
be a conclusive determination of the satisfaction and termination of the agreements
and covenants in this Agreement and in the Deed with respect to the obligations of
Developer to construct the Minimum Improvements. The Certificate of Completion
shall waive all rights of re- vestment of title in City, and the Certificate of Completion
shall so state.
2
SECTION 2. CITY PARTICIPATION
2.1 Economic Development Grants.
(1) 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
ten (10) consecutive semi - annual payments (such payments being referred
to collectively as the Economic Development Grants) to Developer if
Developer owns or leases the Property and /or Improvements thereon during
the period such tax increment revenues accrue as follows:
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
May 1,2015
May 1,2016
May 1,2017
May 1,2018
May 1,2019
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of tax increment revenues collected by City under
Iowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under Iowa Code Section 403.19 and excluding any
interest that may accrue thereon prior to payment to Developer) during the
preceding six -month period in respect of the Property and Minimum
Improvements constructed by Developer (the Developer Tax Increments).
Developer recognizes and agrees that the Economic Development Grants
shall be paid solely and only from the incremental taxes collected by City in
respect to the Property and Minimum Improvements, which does not include
property taxes collected for the payment of bonds and interest of each taxing
district, and taxes for the regular and voter - approved physical plant and
equipment levy, and any other portion required to be excluded by Iowa law,
and thus such incremental taxes will not include all amounts paid by
Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1, 2013,
its request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to the Developer if Developer owns or leases
the Property and /or Improvements thereon during the period such tax
increment revenues accrue, on November 1 and May 1 of that fiscal year.
(Example: If City so certifies by December, 2013, the Economic Development
Grants in respect thereof would be paid to Developer on November 1, 2014,
and May 1, 2015.)
(3) The Economic Development Grants shall be payable from and
secured solely and only by the Developer Tax Increments paid to City that,
upon receipt, shall be deposited and held in a special account created for
such purpose and designated as the AY McDonald TIF Account of City. City
hereby covenants and agrees to maintain its TIF ordinance in force during
the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the AY McDonald TIF
Account to pay the Economic Development Grants, as and to the extent set
forth in Section 2.1(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 AY McDonald
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.
(4) City shall be free to use any and all tax increment revenues collected
in respect of other properties within the Project Area, or any available
Developer Tax Increments resulting from the termination of the annual
Economic Development Grants under Section 2.1(1) hereof, for any purpose
for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Developer with respect to the use thereof.
SECTION 3. COVENANTS OF DEVELOPER
3.1 Job Creation. During the term of this Agreement, Developer shall make best
efforts to maintain its existing three hundred six (306) employees in Dubuque, Iowa.
(1) Developer shall retain three hundred six (306) and create a minimum
of seventeen (17) fulltime equivalent employees (FTE) in Dubuque, Iowa
prior to December 31, 2014, and shall maintain those jobs during the Term of
this Agreement. It is agreed by the parties that Developer has three hundred
six (306) fulltime equivalent employees (FTE) in Dubuque, Iowa, as of
December 1, 2011. FTE shall be calculated by adding fulltime and part-time
employees together using 2080 hours per year as a FTE employee.
(2) In addition, for the positions that Developer fails to create and
maintain for any year during the Term of this Agreement, the semi - annual
Economic Development Grants for such year under Section 2.1 shall be
reduced by the percentage that the number of such positions bears to the
total number of positions required to be created and maintained (323 FTE's)
by this Section 3.1. (For example, if Developer has 300 FTE employees, the
4
semi - annual Economic Development Grants would be 92.9% (300/323
employees) of the Tax Increment Revenues received by City would be paid
by City). The reduction of the semi - annual Economic Development Grants
shall be the City's sole remedy for the failure of Developer to meet the job
creation requirements of this subsection 3.1(2).
3.2 Certification. To assist City in monitoring the performance of Developer
hereunder, not later than January 1, 2015, and again not later than January 1 of
each year thereafter during the term of this Agreement, a duly authorized officer of
Developer shall certify to City in a form acceptable to City (a) the number of fulltime
jobs employed in Dubuque, Iowa, and (b) to the effect that such officer has
re- examined the terms and provisions of this Agreement and that at the date of
such certificate, and during the preceding twelve (12) months, Developer is not or
was not in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or
the giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during such period, or if the signer is
aware of any such default, event or Event of Default, said officer shall disclose in
such statement the nature thereof, its period of existence and what action, if any,
has been taken or is proposed to be taken with respect thereto. Such certificate
shall be provided not later than February 28, 2015, and by February 28 of each year
thereafter during the term of this Agreement.
3.3 Books and Records. During the term of this Agreement, Developer shall
keep at all times proper books of record and account in which full, true and correct
entries will be made of all dealings and transactions of or in relation 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.
3.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
3.5 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.
3.6 Insurance Requirements.
5
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
from time to time at the request of City, furnish City with proof of insurance in
the form of a certificate of insurance for each insurance policy):
All risk builder's risk insurance, written on a Completed Value Form in
an amount equal to one hundred percent (100 %) of the replacement
value when construction is completed.
(2) Upon completion of construction of the Minimum Improvements and
up to the Termination Date, Developer shall maintain, or cause to be
maintained, at its cost and expense (and from time to time at the request of
City shall furnish proof of insurance in the form of a certificate of insurance)
all risk property insurance against loss and /or damage to the Minimum
Improvements under an insurance policy written in an amount not less than
the full insurable replacement value of Minimum Improvements. The term
"replacement value" shall mean the actual replacement cost of Minimum
Improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the
request of City, but not more frequently than once every three (3) years.
(3) Developer agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. The
net proceeds of any such insurance (the Net Proceeds) shall be paid directly
to Developer as its interests may appear, and Developer shall forthwith
repair, reconstruct and restore the Minimum Improvements to substantially
the same or an improved condition or value as they existed prior to the event
causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net
Proceeds of any insurance relating to such damage received by Developer to
the payment or reimbursement of the costs thereof, subject, however, to the
terms of any mortgage encumbering title to the Property (as its interests may
appear). Developer shall complete the repair, reconstruction and restoration
of the Minimum Improvements whether or not the Net Proceeds of insurance
received by Developer for such Purposes are sufficient.
3.7 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
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and s. Nothing in this Agreement, however, shall be deemed to alter any
agreements between Developer or any other party including, without limitation, any
agreements between the parties regarding the care and maintenance of the
Property.
6
3.8 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, gender identity, national origin, age or
disability.
3.9 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.
3.10 Non - Transferabilitv. Until such time as the Minimum Improvements are
complete (as certified by City under Section 1.4), this Agreement may not be
assigned by Developer nor may the Property be transferred by Developer to
another party without the prior written consent of City, which shall not be
unreasonably withheld. Thereafter, Developer shall have the right to assign this
Agreement and upon assumption of the Agreement by the assignee, Developer
shall no longer be responsible for its obligations under this Agreement.
3.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an office /distribution and light manufacturing facility 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, gender identity, 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).
3.12 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this
Section, the Indemnified Parties) from and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend
and hold harmless the Indemnified Parties against any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and /or to enforce its rights
under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
3.13 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations for
which the failure to comply with or the sanctions and penalties resulting therefrom,
8
would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 4. EVENTS OF DEFAULT AND REMEDIES
4.1 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.
(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 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.
4.2 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) and Developer
of the Event of Default, but only if the Event of Default has not been cured within
sixty (60) days following such notice, or if the Event of Default cannot be cured
within sixty (60) days and the defaulting party does not provide assurances to City
that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it
receives assurances from the defaulting party, deemed adequate by City,
that the defaulting party will cure its default and continue its performance
under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(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
9
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
4.3 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 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.
4.4 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.
4.5 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.
4.6 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 5. GENERAL TERMS AND PROVISIONS
5.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
(1) If to Developer:
10
AY McDonald MFG. CO.
Attn: Mike McDonald
4800 Chavenelle Drive
Dubuque, Iowa 52001
Phone: (563) 583 -7311
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
5.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
5.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2024 (the Termination Date).
5.4 Execution By Facsimile. The parties agree that this Agreement may be
transmitted among them by facsimile machine. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of all the parties is binding on the parties.
5.5 Memorandum of Development Agreement. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as Exhibit
G in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
costs for so recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly
executed in its name and behalf by its Mayor and attested to by its City Clerk and
Developer has caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA AY MCDONALD MFG. CO.
11
By:
By:
Ric W. Jone Mayor Pro -Tem
Key', S. Firnstah
City Clerk
12
By.
Mic ael B.
President &
cDona
Exhibit A
No Exhibit B
Exhibit C
Exhibit D
No Exhibit E
No Exhibit F
Exhibit G
Exhibit H
Exhibit I
LIST OF EXHIBITS
Urban Renewal Plan
City Attorney Certificate
Opinion of Counsel to Developer
Memorandum of Development Agreement
City Certificate
Certificate of Completion
EXHIBIT A
URBAN RENEWAL PLAN
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Economic Development District
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan provides for the
continued development of the Dubuque Industrial Center Economic
Development District, originally established by Resolution 130 -88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and
thereafter amended and restated by Resolution 484 -90 on
December 17, 1990, Resolution 142 -97 on April 7, 1997, Resolution
478 -97 on November 17, 1997, Resolution 15 -08 on January 7,
2008, Resolution 101 -08 on March 17, 2008, Resolution 109 -08 on
April 7, 2008, and Resolution on March 7, 2011.
Prepared by the Economic Development Department.
Version 201t1
Note: Complete Urban Renewal Plan is on file in the City Clerk's office, City Hall, 50 West 131"
Street, Dubuque, Iowa
14
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
T1 fE CITY OF
DUB
15
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
(DATE)
RE:
Dear
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
16
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
17
Mayor and City Councilmembers
City Hall
l 3tn and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) between Developer and the City of Dubuque, Iowa (City)
dated for reference purposes the day of , 20_
We have examined the original certified copy, or copies otherwise identified
to our satisfaction as being true copies, of the Development Agreement and such
other documents and records as we have deemed relevant and necessary as a
basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other
inquiries as we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under
the laws of the State of and has full power and authority to execute,
deliver and perform in full Development Agreement. The Development Agreement
has been duly and validly authorized, executed and delivered by Developer and,
assuming due authorization, execution and delivery by City, is in full force and effect
and is valid and legally binding instrument of Developer enforceable in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of incorporation and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened
against or affecting Developer in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
18
Very truly yours,
19
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
20
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day
of , 20, and contains covenants, conditions, and restrictions
concerning the sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments thereto,
is in the possession of the City of Dubuque and may be examined at its offices as
above provided.
Dated this day of , 20
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
21
Kevin S. Firnstahl, City Clerk
STATE OF IOWA
: ss:
DUBUQUE COUNTY
On this day of , 20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Kevin S.
Firnstahl, to me personally known, who being by me duly sworn did say that they
are the Mayor and 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
: ss:
DUBUQUE COUNTY
On this day of , 20 , before me, a Notary Public in and
for the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by authority
of its members and that they acknowledged the execution of this instrument
to be the voluntary act and deed of said company by it voluntarily executed.
Notary Public, State of Iowa
22
EXHIBIT H
CITY CERTIFICATE
23
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgr@cityotdubuque.org
Dear
(DATE)
FHE CITY OF
Du
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity
in connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body
that either contemplates or authorizes any public improvements or special
tax levies, the cost of which may be assessed against the Property. To the
best of City's knowledge, there are no plans or efforts by any government
agency to widen, modify, or re -align any street or highway providing access
to the Property and there are no pending or intended public improvements or
special assessments affecting the Property which will result in any charge or
lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
24
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice. The Property is in material compliance
with all applicable zoning, fire, building, and health statutes, ordinances, anti
regulations. The Property is currently zoned PUD and Developer's intended
use of the Property as a corporate office /industrial facility is a permitted use
in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at time of
closing confirming the representation contained herein, in the form attached
hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property.
(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
25
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer shall
have the right to connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
MCVM:jh
Sincerely,
Michael C. Van Milligen
City Manager
F: \USERS \Econ Dev\A.Y. McDonald\20111209 AY McDonald DA.doc
26
EXHIBIT I
CERTIFICATE OF COMPLETION
27
Prepared By:
4393
Return to:
David J. Heiar 50 West 13th Street
Dubuque, IA 52001 563 -589-
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the
"Grantor "), by a Special Warranty Deed recorded on , 20 , as
Document Number in the office of the County Recorder of Dubuque
County, State of Iowa, has conveyed to AY McDonald MFG. CO. (the "Grantee "), in
accordance with a Development Agreement dated as of , 20, (the
"Agreement "), certain real property located within the Dubuque Industrial Center
Economic Development District of the Grantor and as more particularly described
as follows:
WHEREAS, said Deed incorporated and contained certain covenants and
restrictions with respect to the development of the Development Property, and
obligated the Grantee to construct certain Minimum Improvements (as defined
therein) in accordance with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants
and conditions insofar as they relate to the construction of the Minimum
Improvements, in a manner deemed sufficient by the Grantor to permit the
execution and recording of this certification.
NOW, THEREFORE, pursuant to Section of the Agreement, this is to
certify that all agreements and covenants of the Deed and the Agreement with
respect to the obligations of the Grantee, and its successors and assigns, to
construct the Minimum Improvements on the Development Property have been
completed and performed by the Grantee to the satisfaction of the Grantor and such
agreements and covenants are hereby terminated.
The County Recorder of Dubuque County is hereby authorized to accept for
recording and to record the filing of this instrument, to be a conclusive
determination, except as noted above, of the satisfactory termination of the
agreements and covenants of said Deed and the Agreement which would result in a
forfeiture by the Grantee and right of the Grantor to re -enter and take possession of
the Development Property as set forth in said Deed and the Agreement, and that
said Deed and the Agreement shall otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen
City Manager
28
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 20_, before me a Notary Public in and
for said County, personally appeared Michael C. Van Milligen, to me personally
known, who being duly sworn, did say that he is the City Manager of the City of
Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the
laws of the State of Iowa, and acknowledged said instrument to be the free act and
deed of said Municipal Corporation by him voluntarily executed.
Notary Public in and for
Dubuque County, Iowa
29
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: AY McDonald Expansion
DATE: December 13, 2011
Dubuque
katil
All- America City
2007
Economic Development Director Dave Heiar recommends that a public hearing be set
for January 3, 2012 to modify the application for financial assistance submitted to the
Iowa Economic Development Authority on behalf of A.Y. McDonald.
At the December 5, 2011 City Council meeting, the City Council approved an
application on behalf of A.Y. McDonald to facilitate their local expansion.
Previously, the Council authorized the local match required for this application through a
five year reducing industrial tax abatement. Over five years, the abatement was
estimated at $30,600. Based on valuation calculations prepared by the City Assessor,
the value of this abatement would actually be $43,736.
City staff was contacted by Iowa Economic Development Authority on December 8,
2011 to inform the City that either more local match would be required or the state
financial assistance would have to be decreased to meet the minimum local match
requirement for the various State incentives. Therefore, in lieu of a five year Industrial
Tax abatement, City staff is proposing a five year TIF rebate estimated at $92,898.
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
SUBJECT: A Y McDonald Expansion
DATE: December 13, 2011
Dubuque
an -Amedca City
11 I,
2007
PURPOSE
The intent of this memorandum is to modify the application for financial assistance
submitted to the Iowa Economic Development Authority on behalf of A Y McDonald
BACKGROUND
A Y McDonald Manufacturing Company is a 155 year old Iowa based manufacturer of
waterworks brass, high pressure gas, plumbing and pump products The Company was
founded in 1856 in Dubuque, IA and is still privately held and operated to this day by the
5th generation of the McDonald family A Y McDonald has a long tradition of trusted
quality and dependable service The Company's vision is to be the leading producer of
water and gas distribution products to benefit the current and next generation of
employees, customers, and stockholders by continually growing and strengthening their
business
A Y McDonald Manufacturing Company produces and sells products, which serve four
distinct industries The Water Service products consist of a line of underground valves,
fittings and service connections which primarily distribute water from the main to the
home or structure The High Pressure Gas products consist of a line of valves and
meter bars which assist with the distribution of Natural Gas to residential and
commercial installations The Plumbing line consists of valves, fittings and service
connections which are used in the distribution of water in residential or commercial
installations Finally, the Pump Product line offers an expansive range of pumps from
sump to sewage, submersible to booster pump systems, which serve multiple industries
and applications
The A Y McDonald customer base consists of approximately 7,300 customers located
primarily within the United States, but some of the customer base is international The
Company sells their products through wholesale distribution
In January of 2011, the Reduction of Lead in Drinking Water Act was signed into law,
which will reduce the allowable lead content of wetted surfaces in drinking water pipes,
pipe fittings, and plumbing fixtures. This means that within the water distribution system
in the United States, the current inventory of 85 -5 -5 -5 leaded brass becomes obsolete
on January 4, 2014. Therefore, the company will no longer be able to produce and their
customers will no longer be able to sell valves, fittings, or fixtures that contain lead
which exceeds the 0.25% weighted average limit for wetted surfaces.
A.Y. McDonald is committed to educating and assisting customers with the transition to
no -lead brass. The company was the first manufacturer in the industry to offer and
market a complete line of no -lead brass products and has over 20 years of R &D
experience in the development of their no -lead product line.
While the Reduction of Lead in Drinking Water Act will substantially change the product
requirements within the industry, A.Y. McDonald will still utilize 85 -5 -5 -5 brass for non -
wetted surfaces in conjunction with the no -lead brass. This will create a number of
complex issues within their manufacturing processes. Balancing no -lead and 85 brass
within the same production facility to properly contain any possibility of cross -
contamination is a substantial challenge. Foreseeing the no -lead change years in
advance, A.Y. McDonald Industries, Inc. purchased a competitor in 2006 in Cambridge,
Ontario. This company, Cambridge Brass is a direct competitor to A.Y. McDonald Mfg.
Co. and Cambridge Brass utilizes a similar manufacturing process. A strong factor in
proceeding with the purchase of Cambridge Brass was the opportunity to segregate
production requirements by facility if necessary with the foundry in Dubuque producing
either 85 brass or no -lead brass and the Cambridge operation producing the other
brass.
A.Y. McDonald plans a major expenditure at the Dubuque facility. This includes having
completed the preliminary engineering to install a 2 % ton coreless, 1250KW furnace
that will provide a melt capacity between 4000 — 5000 pounds per hour. The addition of
this furnace requires the installation of an additional transformer, a 2,000 KVA service
entrance switch and an 800 -amp power distribution panel dedicated to this furnace.
The company has contracted with Alliant Energy to supply the transformer, connections
from the primary feed to the transformer and from the transformer to the secondary
feed. The company has contracted with another Iowa based company, Foundry
Equipment Company to complete the remainder of the project, which includes the
purchase and installation of the furnace and the cooler. There is an additional concern
of running no -lead and 85 brass within the same facility. In order to properly segregate
the no -lead and 85 brass product within the same facility, the company is required to
purchase two additional blast machines with dust collection.
DISCUSSION
At the December 5th meeting, the City Council approved an application on behalf of
A.Y. McDonald to facilitate this local expansion. The application requested the Iowa
Economic Development Authority (IEDA) to partner in this expansion, which is
estimated to cost $2,613,872 and create 17 new positions in Dubuque. The application
requested $136,000 in financial assistance from the 130% Component program On the
form of a $68,000 forgivable loan and a $68,000 loan, 0% 5 year term), and $153,444
2
from the High Quality Jobs program (in the form of $133,194 in Investment Tax Credits
and $20,250 in Sales Tax Refund).
Previously, the Council authorized the local match required for this application through a
5 year reducing industrial tax abatement as provided by City Ordinance Section 43 -21.
Over 5 years the abatement was estimated at $30,600. Based on valuation calculations
prepared by the City assessor, the value of this abatement would actually be $43,736.
City staff was contacted by IEDA on December 8, 2011 to inform the City that either
more local match would be required or the state financial assistance would have to be
decreased to meet the minimum local match requirement for the various State
incentives. Therefore, in lieu of a 5 year Industrial Tax abatement, City staff is
proposing a 5 year TIF rebated estimated at $92,898. Attached is a Development
Agreement which would provide for the following:
1. A.Y. McDonald invests at least $2,613,872 in the expansion which would include
a 14,000 square foot building
2. A.Y. McDonald will retain 306 jobs and create at least 17 new full time positions
3. The City will provide a 5 year TIF rebate of increased property taxes
RECOMMENDATION /ACTION STEP
I recommend the Council approve a resolution setting a public hearing on a
Development Agreement with A.Y. McDonald which would provide a 5 year TIF rebate
of property taxes on the local match for the state financial assistance application.
Attachment
F \USERS \Econ Dev\A Y McDonald \IDED\20111213_AY McDonald Application Modification memo doc
3
Prepared by /Return to: David Heiar. 50 W. 13th Street, Dubuque IA 52001, 563 589 -4393
RESOLUTION NO. 436 -11
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 A.Y. MCDONALD MFG CO., AND
PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, City and A.Y. McDonald Mfg., Co. 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 A.Y. McDonald; 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 3rd day of January, 2012, 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 A.Y.
McDonald Mfg., Co., 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 Dubuque
Industrial Center Economic Development District, consisting of the funding of economic
developments grants to A.Y. McDonald Mfg., Co. 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 $92,898.
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 19" day of December, 2011.
Attest:
Kevi • S. Firnstahl, Ity C
Lynn Sutton, Mayor Pro -Tem
F: \USERS \Econ DevW.Y. McDonald \20111213 AY McDonald 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 A.Y. MCDONALD MFG
CO..
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will
hold a public hearing on the 3rd day of January, 2012, 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 A.Y. McDonald Mfg., Co., in order to carry out certain of the special
financing activities in the Urban Renewal Plan for the Dubuque Industrial Center Economic
Development District, consisting of the funding of economic development grants to A.Y.
McDonald Mfg., Co., pursuant to a Development Agreement entered into with A.Y.
McDonald Mfg., Co. 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 $92,898.
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 23rd day of December, 2011.
/MI INV
Ke in S. Firnstahl
City Clerk of Dubuque, Iowa
F: \USERS \Econ Dev\A.Y. McDonald \20111213 AY McDonald DA Resolution setting Public Hearing.doc
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
AY MCDONALD MFG. CO.
AGREEMENT, dated for reference purposes the day of
2011, by and between the City of Dubuque, Iowa, a municipality (City), established
pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter
403, as amended (Urban Renewal Act), and AY McDonald MFG. CO., an Iowa
corporation with its principal place of business in Dubuque, Iowa, (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act City
has undertaken an Urban Renewal project (the Project) to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the
Urban Renewal Plan for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof (the Urban Renewal Plan) attached
hereto as Exhibit A,; and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa and is on file with the City of Dubuque City
Clerk; and
WHEREAS, Developer owns a building in the Project Area (the Facility) and
has now determined that it requires constructing an additional building to its Facility
to maintain and expand its operations and employment in the Project Area; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
121211bal
1
SECTION 1. DEVELOPMENT ACTIVITIES
1.1 Required Minimum Improvements. City acknowledges that Developer is
building an addition to its Facility located at 4800 Chavenelle Drive (the Property).
Developer hereby agrees to construct on the Property manufacturing building of
not less than fourteen thousand (14,000) square feet of floor space along with
necessary site work and equipment as contemplated in this Agreement at an
estimated cost of approximately $2,613,872 (the Minimum Improvements).
1.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of the Property and the construction of Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to the Declaration of Covenants, Conditions,
Restrictions, Reservations, Easements, Liens and Charges, recorded as Instrument
No. 10798 -90, 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.
1.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before May 1,
2012, and shall be substantially completed by December 31, 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.
1.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying in the form attached hereto as Exhibit I (the
Certificate of Completion). Such certification shall be in recordable form and shall
be a conclusive determination of the satisfaction and termination of the agreements
and covenants in this Agreement and in the Deed with respect to the obligations of
Developer to construct the Minimum Improvements.
1.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall
fail to complete the Minimum Improvements as required by this Agreement such
121211bal
2
that re- vestment of title may occur (or such that the City would have the option of
exercising its re- vestment rights), then Developer's lender shall have the right, but
not the obligation, to complete such Minimum Improvements.
SECTION 2. CITY PARTICIPATION
2.1 Economic Development Grants.
(1) 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 ten (10) consecutive semi - annual payments (such payments being
referred to collectively as the Economic Development Grants) to Developer if
Developer owns or leases the Property and /or Improvements thereon during
the period such tax increment revenues accrue as follows:
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
May 1,2015
May 1,2016
May 1,2017
May 1,2018
May 1,2019
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of tax increment revenues collected by City under
Iowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under Iowa Code Section 403.19 and excluding any
interest that may accrue thereon prior to payment to Developer) during the
preceding six -month period in respect of the Property and Minimum
Improvements constructed by Developer (the Developer Tax Increments).
Developer recognizes and agrees that the Economic Development Grants
shall be paid solely and only from the incremental taxes collected by City in
respect to the Property and Minimum Improvements, which does not include
property taxes collected for the payment of bonds and interest of each taxing
district, and taxes for the regular and voter - approved physical plant and
equipment levy, and any other portion required to be excluded by Iowa law,
and thus such incremental taxes will not include all amounts paid by
Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1, 2013,
its request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to the Developer if Developer owns or leases
the Property and /or Improvements thereon during the period such tax
121211bal
3
increment revenues accrue, on November 1 and May 1 of that fiscal year.
(Example: If City so certifies by December, 2013, the Economic
Development Grants in respect thereof would be paid to Developer on
November 1, 2014, and May 1, 2015.)
(3) The Economic Development Grants shall be payable from and
secured solely and only by the Developer Tax Increments paid to City that,
upon receipt, shall be deposited and held in a special account created for
such purpose and designated as the AY McDonald TIF Account of City. City
hereby covenants and agrees to maintain its TIF ordinance in force during
the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the AY McDonald TIF
Account to pay the Economic Development Grants, as and to the extent set
forth in Section 2.2(1) hereof. The Economic Development Grants shall not
be payable in any manner by other tax increments revenues or by general
taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to 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 AY McDonald
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.
(4) City shall be free to use any and all tax increment revenues collected
in respect of other properties within the Project Area, or any available
Developer Tax Increments resulting from the termination of the annual
Economic Development Grants under Section 2.2 hereof, for any purpose for
which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Developer with respect to the use thereof.
SECTION 3. COVENANTS OF DEVELOPER
3.1 Job Creation. During the term of this Agreement, Developer shall make
best efforts to maintain its existing three hundred six (306) employees in Dubuque,
Iowa.
(1) Developer shall retain three hundred six (306) and create a minimum
of seventeen (17) fulltime equivalent employees (FTE) in Dubuque, Iowa
prior to December 31, 2014, and shall maintain those jobs during the Term
of this Agreement. It is agreed by the parties that Developer has three
hundred six (306) fulltime equivalent employees (FTE) in Dubuque, Iowa, as
of December 1, 2011. FTE shall be calculated by adding fulltime and part -
time employees together using 2080 hours per year as a FTE employee.
(2) In , for the positions that Developer fails to create and maintain for
121211bal
4
any year during the Term of this Agreement, the semi - annual Economic
Development Grants for such year under Section 2.1 shall be reduced by the
percentage that the number of such positions bears to the total number of
positions required to be created and maintained (323 FTE's) by this Section
3.1. (For example, if Developer has 300 FTE employees, the semi - annual
Economic Development Grants would be 92.9% (300/323 employees) of the
Tax Increment Revenues received by City would be paid by City). The
reduction of the semi - annual Economic Development Grants shall be the
City's sole remedy for the failure of Developer to meet the job creation
requirements of this subsection 3.1(2).
3.2 Certification. To assist City in monitoring the performance of Developer
hereunder, not later than January 1, 2015, and again not later than January 1 of
each year thereafter during the term of this Agreement, a duly authorized officer of
Developer shall certify to City in a form acceptable to City (a) the number of fulltime
jobs employed in Dubuque, Iowa, and (b) to the effect that such officer has
re- examined the terms and provisions of this Agreement and that at the date of
such certificate, and during the preceding twelve (12) months, Developer is not or
was not in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or
the giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during such period, or if the signer is
aware of any such default, event or Event of Default, said officer shall disclose in
such statement the nature thereof, its period of existence and what action, if any,
has been taken or is proposed to be taken with respect thereto. Such certificate
shall be provided not later than February 28, 2015, and by February 28 of each
year thereafter during the term of this Agreement
3.3 Books and Records. During the term of this Agreement, Developer shall
keep at all times proper books of record and account in which full, true and correct
entries will be made of all dealings and transactions of or in relation 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.
3.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
3.5 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
121211bal
5
ordinance during the term of this Agreement, including those that arise under Iowa
Code Chapters 404 and 427, as amended.
3.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
from time to time at the request of City, furnish City with proof of insurance in
the form of a certificate of insurance for each insurance policy):
All risk builder's risk insurance, written on a Completed Value Form in
an amount equal to one hundred percent (100 %) of the replacement
value when construction is completed.
(2) Upon completion of construction of the Minimum Improvements and
up to the Termination Date, Developer shall maintain, or cause to be
maintained, at its cost and expense (and from time to time at the request of
City shall furnish proof of insurance in the form of a certificate of insurance)
all risk property insurance against loss and /or damage to the Minimum
Improvements under an insurance policy written in an amount not less than
the full insurable replacement value of Minimum Improvements. The term
"replacement value" shall mean the actual replacement cost of Minimum
Improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the
request of City, but not more frequently than once every three (3) years.
(3) Developer agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty.
The net proceeds of any such insurance (the Net Proceeds) shall be paid
directly to Developer as its interests may appear, and Developer shall
forthwith repair, reconstruct and restore the Minimum Improvements to
substantially the same or an improved condition or value as they existed
prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall
apply the Net Proceeds of any insurance relating to such damage received
by Developer to the payment or reimbursement of the costs thereof, subject,
however, to the terms of any mortgage encumbering title to the Property (as
its interests may appear). Developer shall complete the repair, reconstruction
and restoration of the Minimum Improvements whether or not the Net
Proceeds of insurance received by Developer for such Purposes are
sufficient.
3.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
121211bal
6
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and s. Nothing in this Agreement, however, shall be deemed to alter any
agreements between Developer or any other party including, without limitation, any
agreements between the parties regarding the care and maintenance of the
Property.
3.8 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, gender identity, national origin, age or
disability.
3.9 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.
3.10 Non - Transferability. Until such time as the Minimum Improvements are
complete (as certified by City under Section 1.4), this Agreement may not be
assigned by Developer nor may the Property be transferred by Developer to
another party without the prior written consent of City, which shall not be
unreasonably withheld. Thereafter, Developer shall have the right to assign this
Agreement and upon assumption of the Agreement by the assignee, Developer
shall no longer be responsible for its obligations under this Agreement.
3.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an office /distribution and light manufacturing facility 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
121211bal
7
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, 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).
3.12 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this
Section, the Indemnified Parties) from and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend
and hold harmless the Indemnified Parties against any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and /or to enforce its
rights under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
121211bal
8
(5) The provisions of this Section shall survive the termination of this
Agreement.
3.13 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations for
which the failure to comply with or the sanctions and penalties resulting therefrom,
would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 4. EVENTS OF DEFAULT AND REMEDIES
4.1 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.
(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 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.
4.2 Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 4.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) and Developer
of the Event of Default, but only if the Event of Default has not been cured within
sixty (60) days following such notice, or if the Event of Default cannot be cured
within sixty (60) days and the defaulting party does not provide assurances to City
that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it
receives assurances from the defaulting party, deemed adequate by City,
that the defaulting party will cure its default and continue its performance
under this Agreement;
121211bal
9
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(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.
4.3 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 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.
4.4 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.
4.5 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 to any other relief that
may be awarded.
4.6 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 5. GENERAL TERMS AND PROVISIONS
121211bal
10
5.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
(1) If to Developer:
AY McDonald MFG. CO.
Attn: Mike McDonald
4800 Chavenelle Drive
Dubuque, Iowa 52001
Phone: (563) 557 -5184
With copy to:
Attorney
Address
City state zip
phone
(3) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
5.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
5.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2024 (the Termination Date).
121211bal
11
5.4 Execution By Facsimile. The parties agree that this Agreement may be
transmitted among them by facsimile machine. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of all the parties is binding on the parties.
5.5 Memorandum of Development Agreement. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as Exhibit
G in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the
costs for so recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly
executed in its name and behalf by its Mayor and attested to by its City Clerk and
Developer has caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA AY MCDONALD MFG. CO.
By: By:
Roy D. Buol, Mayor
By:
Kevin S. Firnstahl
Acting City Clerk
F \USERS \tsteckle \Lindahl\AY McDonald \DevelopmentAgreement_121211 doc
121211bal
12
Exhibit A
Exhibit B
Exhibit C
Exhibit D
No Exhibit
Exhibit G
Exhibit H
Exhibit I
121211bal
LIST OF EXHIBITS
Urban Renewal Plan
Site Plan
City Attorney Certificate
Opinion of Counsel to Developer
E
Memorandum of Development Agreement
City Certificate
Certificate of Completion
13
EXHIBIT A
URBAN RENEWAL PLAN
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Economic Development District
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan provides for the
continued development of the Dubuque Industrial Center Economic
Development District, originally established by Resolution 130 -88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and
thereafter amended and restated by Resolution 484 -90 on
December 17, 1990, Resolution 142 -97 on April 7, 1997, Resolution
478 -97 on November 17, 1997, Resolution 15 -08 on January 7,
2008, Resolution 101 -08 on March 17, 2008, Resolution 109 -08 on
April 7, 2008, and Resolution on March 7, 2011
Prepared by the Economic Development Department
Version 2011.1
Note Complete Urban Renewal Plan is on file in the City Clerk's office, City Hall, 50 West 13th Street,
Dubuque, Iowa
121211bal
14
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(DATE)
THE CITY OF
DUB E
I have acted as counsel for the City of Dubuque, Iowa, in connection with the
execution and delivery of a certain Development Agreement between
(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
121211ba1
18
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
Mayor and City Councilmembers
City Hall
13 and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) between Developer and the City of Dubuque, Iowa (City)
dated for reference purposes the day of 20 .
We have examined the original certified copy, or copies otherwise identified
to our satisfaction as being true copies, of the Development Agreement and such
other documents and records as we have deemed relevant and necessary as a
basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other
inquiries as we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under
the laws of the State of and has full power and authority to execute,
deliver and perform in full Development Agreement. The Development Agreement
has been duly and validly authorized, executed and delivered by Developer and,
assuming due authorization, execution and delivery by City, is in full force and
effect and is valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors' rights
generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of incorporation and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened
against or affecting Developer in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in any
121211bal
20
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
121211bal
21
121211bal
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
22
Prepared by Barry A Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
Return to Barry A Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day
of 20 and contains covenants, conditions, and restrictions
concerning the sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose
of constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its
offices as above provided.
Dated this day of 20 .
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
121211bal
23
By:
Kevin S. Firnstahl, Acting City Clerk
STATE OF IOWA
ss:
DUBUQUE COUNTY
On this _day of 20 before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Kevin
S. Firnstahl, to me personally known, who being by me duly sworn did say that they
are the Mayor and Acting City Clerk, respectively of the City of Dubuque, a
Municipal Corporation, created and existing under the laws of the State of Iowa,
and that the seal affixed to said instrument is the seal of said Municipal Corporation
and that said instrument was signed and sealed on behalf of said Municipal
corporation by authority and resolution of its City Council and said Mayor and
Acting City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
ss:
DUBUQUE COUNTY
On this day of 20 before me, a Notary Public in and
for the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by authority
of its members and that they acknowledged the execution of this instrument
to be the voluntary act and deed of said company by it voluntarily executed.
Notary Public, State of Iowa
121211bal
24
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) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental
body that either contemplates or authorizes any public improvements or
special tax levies, the cost of which may be assessed against the Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re -align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
121211ba1
26
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations. The Property is currently zoned PUD and
Developer's intended use of the Property as a corporate office /industrial
facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at time of
closing confirming the representation contained herein, in the form attached
hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property.
(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
121211bal
27
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
MCVM:jh
F \USERS \Econ Dev\A Y McDonald \20111209 AY McDonald DA doc
121211bal
28
Sincerely,
Michael C. Van Milligen
City Manager
Prepared By
4393
Return to
David J Heiar 50 West 13th Street
Dubuque, IA 52001 563 -589-
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the
"Grantor "), by a Special Warranty Deed recorded on 20_ as
Document Number in the office of the County Recorder of Dubuque
County, State of Iowa, has conveyed to AY McDonald MFG. CO. (the "Grantee "), in
accordance with a Development Agreement dated as of 20_ (the
"Agreement "), certain real property located within the Dubuque Industrial Center
Economic Development District of the Grantor and as more particularly described
as follows:
WHEREAS, said Deed incorporated and contained certain covenants and
restrictions with respect to the development of the Development Property, and
obligated the Grantee to construct certain Minimum Improvements (as defined
therein) in accordance with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants
and conditions insofar as they relate to the construction of the Minimum
Improvements, in a manner deemed sufficient by the Grantor to permit the
execution and recording of this certification.
NOW, THEREFORE, pursuant to Section of the Agreement, this is to
certify that all agreements and covenants of the Deed and the Agreement with
respect to the obligations of the Grantee, and its successors and assigns, to
construct the Minimum Improvements on the Development Property have been
completed and performed by the Grantee to the satisfaction of the Grantor and
such agreements and covenants are hereby terminated.
The County Recorder of Dubuque County is hereby authorized to accept for
recording and to record the filing of this instrument, to be a conclusive
determination, except as noted above, of the satisfactory termination of the
agreements and covenants of said Deed and the Agreement which would result in
a forfeiture by the Grantee and right of the Grantor to re -enter and take possession
of the Development Property as set forth in said Deed and the Agreement, and that
said Deed and the Agreement shall otherwise remain in full force and effect.
121211bal
30
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen
City Manager
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of 20_ before me a Notary Public in and
for said County, personally appeared Michael C. Van Milligen, to me personally
known, who being duly sworn, did say that he is the City Manager of the City of
Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the
laws of the State of Iowa, and acknowledged said instrument to be the free act and
deed of said Municipal Corporation by him voluntarily executed.
121211bal
31
Notary Public in and for
Dubuque County, Iowa