Theisen Supply, Inc Expansion._Resetting of Public HearingMasterpiece on the Mississippi
Dubuque
bierd
All-America City
1
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Expansion of Theisen Supply, Inc. at the Dubuque Industrial Center West
DATE: June 26, 2012
On February 20, 2012, the City Council held a public hearing and approved the
disposition of 5.7 acres of land in the Dubuque Industrial Center West to Leo A.
Theisen. As the City began preparing for the closing on the property, it was discovered
that the notice of the public hearing on the sale of land was not published in the
Telegraph Herald as required.
To fulfill all requirements for this sale, Economic Development Director David Heiar is
recommending that a public hearing be set for July 16, 2012, to approve disposition of
approximately 5.7 acres in the Dubuque Industrial Center West to Leo Theisen for the
purpose of constructing an 80,000 square foot warehouse expansion. All the proposed
incentives and stipulations of the previously approved agreement remain the same
except for the extension of the closing date to September 1, 2012.
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
Teri Goodmann, Assistant City Manager
David J. Heiar, Economic Development Director
Masterpiece on the Mississippi
Dubuque
katil
All- America City
11111!
2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
DATE: June 25, 2012
SUBJECT: Expansion of Theisen Supply, Inc. at the Dubuque Industrial Center West
INTRODUCTION
On February 6, 2012, the City Council set a public hearing on the disposition of the
approximately 5.7 acres of land and on February 20, 2012 the City Council previously
held the public hearing and approved the disposition of the property to Leo A. Theisen.
As the City began preparing for the closing on the property, City staff discovered that
the notice of the public hearing on the sale of the land was not published in the
Telegraph Herald as required. City staff sent the notice to be published but the
Telegraph Herald somehow missed publishing the notice. We are required by Chapter
403 of the Iowa Code to publish the notice of proposal, prior to disposing of an interest
in City of Dubuque real estate.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation, Leo Theisen
and Theisen Supply, Inc. on an expansion at the Dubuque Industrial Center West.
Theisen's intend to expand their current warehouse /office complex at 6201 Chavenelle
Rd. They have committed to retaining the current 77 FTE positions, and adding at least
10 new jobs at the new facility.
The current Theisen Supply, Inc. building is approximately 110,000 sq. ft. and consists
of the company's corporate office and nearly 100,000 sq. ft. of warehouse space. This
building was constructed in 2006. At that time, the company had 48 FTE's and
committed to the creation of 10 new positions. Today the company actually has 77
FTE's, which well exceeds the commitment made in 2006.
Theisen Supply, Inc. continues to add new stores and expand existing stores creating a
need for additional warehouse space. The company wishes to acquire 5.7 acres and
construct an 80,000 sq. ft. addition to the current building.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
the local expansion. An Acquisition Grant reduces the asking price of the land from
$100,000 /acre to $50,000 /acre.
The 5.7 acre site is intended for future expansion since the current expansion will
completely utilize the existing site. If an expansion does not occur within a 10 year time
frame, the acquisition grant for this pro -rated portion of land must be repaid to the City.
If an expansion takes only a portion of this extra land, the 10 year time limit restarts,
until the complete expansion site is utilized or the pro -rated land acquisition grant is
repaid.
The agreement stipulates construction of an 80,000 sq. ft. warehouse expansion. A 5-
year property tax rebate on the building has been offered to the company to assist in
their expansion. The rebate is a form of tax increment financing without issuing a tax
increment finance bond to loan monies to the company upfront. As the company pays
its future tax obligation on the new facility, the City will rebate 100% (minus debt
service, the Instructional Support Levy and the School District Physical Plant and
Equipment Levy) of the new TIF increment for 5 years.
The attached Development Agreement establishes the terms of the sale of the property
to Leo Theisen and Theisen Supply, Inc. The key elements of the agreement include
the following:
1) The purchase price is $100,000 per acre for 4.9 useable acres. A portion of the
site , .8 acres, is considered unusable. An Acquisition Grant to the developer
reduces the cost to $50,000 per acre. 5.7 acres of this site is identified for future
expansion. If such expansion does not occur, this acquisition grant will need to
be repaid to the City, or the land needs to be sold back to the City at the same
price.
The City will also convey a permanent access easement over Lot 1 (see attached
Exhibit B) for a future access road which will be constructed and maintained by
the developer.
2) The property will be conveyed on or before September 1, 2012.
3) The company must construct a building of approximately 80,000 sq. ft. costing
approximately $2,000,000.
4) Theisen Supply, Inc. must retain 77 FTE positions and create 10 new jobs within
three years. The 87 jobs must be retained for 3 additional years after the initial 36
months.
5) The company will receive a 5 year TIF in the form of a yearly tax rebate on the
value of the assessable improvements.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council set another public hearing the disposition of the
Dubuque Industrial Center West property to Leo Theisen for the purpose of constructing
a 80,000 sq. ft. warehouse expansion. All the proposed incentives and stipulations of
the previously approved agreement remain the same except for the closing date, which
was extended due to the publication mishap. 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 \Theisen's \Theisen Expansion \20120625 Reset Public Hearing Theisen Expansion_Council
memo doc
3
Prepared by: David J. Heiar, Economic Development Dir., 50 West 13th Street, Dubuque IA 52001 563 583 -4393
Return to: David J. Heiar, Economic Development Dir., 50 West 13th Street, Dubuque IA 52001 563 583 -4393
RESOLUTION NO. 176 -12
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE
AND
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 LEO A. THEISEN AND THEISEN SUPPLY,
INC AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, the City of Dubuque, Iowa (City) is the owner of the following real property (the
Property);
Lot 2 of 2 Dubuque Industrial Center West 5th Addition in the City of Dubuque, Iowa
And
Whereas, City and Leo A. Theisen and Theisen Supply, Inc. 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,
pursuant to which City will convey the Property to Leo A. Theisen and Theisen Supply, Inc. as
shown on Exhibit B attached hereto; and
Whereas, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Development Agreement, including the conveyance of the
Property to Leo A. Theisen; 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 of Dubuque intends to dispose of its interest in the foregoing -
described Property by Deed to Leo A. Theisen.
Section 2. The City Clerk is hereby authorized and directed to cause this Resolution
and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on
the City's intent to dispose of the foregoing- described Property, to be held on the 16th day of
July, 2012, at 6:30 o'clock p.m. in the City Council Chambers at the Historic Federal Building,
350 W. 6th Street, Dubuque, Iowa.
Section 3. The City Council will also 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 Leo A.
Theisen and Theisen Supply, Inc. the proceeds of which obligations will be used to carry out
certain of the special financing activities described in the Urban Renewal Plan for the
Dubuque Industrial Center Economic Development District, consisting of the funding of
economic developments grants to Leo A. Theisen 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 will be approximately
$375,000.
Section 4. 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 5. That the notice of the proposed action to issue said obligations shall
be in substantially the form attached hereto.
Passed, approved and adopted this 2nd day of July, 2012.
R. " W. Jone Mayor Pro -Tem
Attest:
_
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220.48
EX3B
I,..
RESOLUTION
NO. 176-12
INTENT TO DISPOSE
OF AN INTEREST IN
CITY OF DUBUQUE
REAL ESTATE
,AND
FIXING;7'HE DATE FOR
A PUBLIC "HEARING
OF THE CITY
COUNCIL OF THE
CITY OF DUBUQUE,
IOWA •1.0N. THE
PROPOSED ISSUANCE
OF URBAN RENEWAL
TAIL INCREMENT
REVENUE'
• r BLIGA-
TIONS AND ` ' THE
EXECUTION OF . A
DEVELOPMENT
AGREEM- NT
RELATING THERETO
WITH LEO A. THEISEN
AND THEISEN . SUP-
PLY, ,','INC AND
PROVIDING FOR THE
PUBLICATION OF
NOTICE THEREOF
Whereas, the City of
Dubuque, Iowa (City) is
the owner of the
following real property
(the Property);
Lot 2 of 2 Dubuque
Industrial Center West
5th Addition ;in the City
of Dubuque, Iowa; and
Whereas, City and Leo
A. Theisen and Theisen
Supply, Inc. have
entered into :a Devel-
opment 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, pursuant to
which City will convey
the Property to Leo A.
Theisen and Theisen
Supply, Inc. as shown
on Exhibit B attached
hereto; and
Whereas, the City
Council has tentatively
determined that it
would be in the best
interests of the City to
approve the Develop-
ment Agreement,
including the convey-
ance of the Property to
Leo A. Theisen; and
Whereas, it is deemed
necessary and advis-
able 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 1.
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
rsuch proposed action.
NOW THEREFORE, BE
IT •RESOLVED BY THE
CITY COUNCIL OF THE
CITY OF DUBUQUE,
IOWA:
Section L The City of
Dubuque intends, to
dispose of its interest
in the foregoing-
described , Property by
Deed to Leo A. Theisen.,
Section 2. The City
Clerk is hereby
authorized and direct-
ed to cause this
Resolution and a notice
to be •published as
prescribed by Iowa
Code Section 364.7 of a
public hearing on the
City's intent to dispose
of the foregoing -
described Proper to
be held on the 16th day,
of July,` 2012, at 630
o'clock p.m. in the City
Council Chambers, at
the Historic Federal
Building, 350 W. 6th
Street, Dubuque, Iowa.
Section 3. The City
Council will also 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 Agree-
ment relating thereto
with Leo A. Theisen
and Theisen Supply,
Inc. the proceeds of
which obligations. will
be used .. to carry out
certain of the special
financing activities
described in the Urban
Renewal Plan for the
Dubuque Industrial
Center Economic
Development District,
consisting of the
•
FA—Theusn aTTrn T>I di en
funding • of economic
developments grants
fo, Leo ;'A: • ,Theisen
pursuant° to the°.
Devel'd,pment . "Agree
meat 'linger. the '.terms,
and conditions of said
• UrbanRe�. rlewal Pl�aj� :It
is ei(peeted that, the
aggregate? amount •of
tite 'Taxi � '•• Intre4i lent
Reterfu'e.!; : obltgations
111i;be,,i,ap'proicimately
500'0,'r4,„
SectlOn. The Clerk is
hereby directed • to
cause'.. at •least lone
pub'li'atiop'to'be'rhade
of a notice' ,of 'said'
meeting; in a
newspaper, ,;'printed •
whol'I:y in the` °English
language 01tilfshed°'at
leastonce weekly, and
having generak circu-
lation in:.said City, said
publication to be not
less than fourdays-nor
more .than twenty days
befOreYtfie date Of .said
meeting on -' the
issuance' of , said
obligations.
Section', 5. -That the
notice: otthe proposed
action to issue, said
bbl gations sflall•'tie. m,
substantially the form
attached' hereto.
a'assed, eapprOv ed an '
adopted this 2nd day o
•,
)i ty, 2012.
Roy D.3664 MaY0r,:
1tFirnst7,/6 ahl, City, Clerk
• NOTICE OF A PUBLIC
••HEARING OF THE •
• ,' CLTX;.COUNCIL•OF •
7N CITY,OF•, •
DU$t QBE JOWA;•'ON,
THE IBArTTER,OF THE
•P , OPOSED
AUTFIO R,ION!
;URBAN,I REN EI�,If&&L ,, R 1.
TAX INCREMENIT+„
• REVENUE
'OBLIGATIONS AND• •
THE',EXEC,UTt,O,N.OF A
DEVELOPMENT '
.'AGREEMENT
RELATING THERETO
WITH LEO A. THEISEN
, • AND THEISEN
SUPPLY, ING. AND
DISPOSING. OF THE
CITY'S INTEREST!N
"CERTAIN REAL
ESTATE
PUBLIC NOTICE is
hereby given that the
City Council of the City
of Dubuque, Iowa, will
hold a public hearing
on the 16th day of July,
2012, at 6:30 p :m: in,the
City Council Chambers
at the Historic Federal
Building, 350 W. 6th
Street, Dubuque, Iowa,
at which meeting the
City Council, proposes
to take action
disposing of take . City's
interest by Deed to Leo
Supply, Inc. in the :{
following.. 'described
real estate: ,,
Lot 2 of 2 Dubuque
Industrial Center West
5th,Addition in the .City •
Of Dubuque; Iowa ^
Andfor the auth.or-
i tion' of;,' Jrban
,Rrenewal Taxincrement
Revenue, ? o,bi ations
and'the executiop of a
Development;; 'Agr,ee-
ment,refating thereto
with MLeo..A.; Theisen
and • Th'eiseh ' Supply,
Inc. in order' to carry.
out r certain of the
special financing
activities in the Urban
ReneWai Plan • for the
DubUque Industrial
Park 'Economic Devel-
•opment . District, ' con-
sisting of the funding
of economic devel-
opment grants to Leo
A. Theisen and Theisen
Supply; Inc. 'pursuant
to a Development
Agreement ; entered
irito,' with' Leo A.
Theisen and- Theisep
SuppIy, Inc.; under the
terms and conditions
of said Urban Renewal
Plan. It ',is expected
that the aggregate
ern o.ui f • -,the Tax
increment, Revenue
obligations will be
approximately
$375,000.
At the meeting, the
City • Council will
receive oral and
written objectioosftom
any resident or pro -
perry owner of said
City to the above
action. After all objec-
tions have been
received and. con-
sidered, • the City
Council may at this
meeting or at any
adjournment thereof,
take additional action
for the disposition of
the City's interest in
such real estate above,
the approval of the
Development- ; Agree-
ment, and author-
ization 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.
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: July 06, 2012, and for which the charge is $93.96.
3114A.4"L Pj2e
Subscribed to before m: otary Public in and for Dubuque County, Iowa,
this 9 day of . _ _ _ , 20 /a2 ' .
Dated- this-6th day of
I June, 2012.
Kevin S- Firnstahl,
City Clerk of Dubuque,
Iowa
1t7/6
Notary Public in and for Dubuque County, Iowa.
Commis I n NumERME «a r
■ 4 pt:
1.- ..0em"_ .._ -s,_1, -9 "4-
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 LEO A. THEISEN AND
THEISEN SUPPLY, INC. AND DISPOSING OF THE CITY'S INTEREST IN CERTAIN
REAL ESTATE
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa,
will hold a public hearing on the 16th day of July, 2012, at 6:30 p.m. in the City Council
Chambers at the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa, at which
meeting the City Council proposes to take action disposing of the City's interest by Deed to
Leo A. Theisen and Theisen Supply, Inc. in the following described real estate:
Lot 2 of 2 Dubuque Industrial Center West 5th Addition in the City of Dubuque, Iowa
And for the authorization of Urban Renewal Tax Increment Revenue obligations and the
execution of a Development Agreement relating thereto with Leo A. Theisen and Theisen
Supply, Inc. in order to carry out certain of the special financing activities in the Urban
Renewal Plan for the Dubuque Industrial Park Economic Development District, consisting of
the funding of economic development grants to Leo A. Theisen and Theisen Supply, Inc.
pursuant to a Development Agreement entered into with Leo A. Theisen and Theisen
Supply, Inc. under the terms and conditions of said Urban Renewal Plan. It is expected that
the aggregate amount of the Tax Increment Revenue obligations will be approximately
$375,000.
At the meeting, the City Council will receive oral and written objections from any resident or
property owner of said City to the above action. After all objections have been received and
considered, the City Council may at this meeting or at any adjournment thereof, take
additional action for the disposition of the City's interest in such real estate above, 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 thi
Kevi a. irnstahl, 111"
City Jerk of Dubuque, Iowa
2012.
F: \USERS\Econ Dev \Theisen's \Theisen Expansion\20120625_Theisen Resolution ReSetting Public Hearing on DA.doc
DEVELOPMENT AGREEMENT
BETWEEN AND AMONG
THE CITY OF DUBUQUE, IOWA,
LEO A. THEISEN
AND
THEISEN SUPPLY, INC.
This Agreement, dated for reference purposes the 20th day of February,
2012, is entered between and among 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 (the Urban Renewal Act), Leo A. Theisen,
with principal place of business in Dubuque, Iowa (Developer), and Theisen Supply,
Inc., an Iowa corporation with its principal place of business in Dubuque, Iowa
(Employer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, 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 is the owner of a warehouse located on the
Developer's Property (the "Developer's Property ") in the Project Area which is
leased to Employer; and
WHEREAS, Employer has determined that it requires an addition to the
warehouse to expand its current operations within the community; and
WHEREAS, Developer has agreed to construct an 80,000 sq. ft. addition to
the warehouse on Developer's Property and lease the addition to Employer; and
020112bal
WHEREAS, Developer has requested that City sell to Developer 5.7 acres of
land of which 4.9 acres are usable, legally described as Lot 2 of Dubuque Industrial
Center West 9th Addition, identified on Exhibit B, attached hereto, in the City of
Dubuque, Dubuque County, Iowa, together with all easements, tenements,
hereditaments, and appurtenances belonging thereto (the Expansion Area), and an
access easement over Lot 1 of Dubuque Industrial Center West 9th Addition as
shown on Exhibit B (the Access Easement), so that Developer may develop the
Developer's Property the construction of improvements for Developer's and
Employer's Intended Use, as defined below, which City has determined and
represented to Developer is in accordance with the uses specified in the Urban
Renewal Plan and in accordance with this Agreement; and
WHEREAS, City believes that the development of the Expansion Area
pursuant to this Agreement, and the fulfillment generally of this Agreement, are in
the vital and best interests of City and in accord with the public purposes and
provisions of the applicable federal, state and local laws and the requirements
under which the Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
SECTION 1. CONVEYANCE OF EXPANSION AREA TO DEVELOPER
1.1 Purchase Price.
(1) The purchase price for the Expansion Area (the Purchase Price) shall
be the sum of Four Hundred Ninety Thousand Dollars ($490,000.00) [One
Hundred Thousand Dollars ($100,000.00) per usable acre for 4.9 usable
acres], with a total acquisition of 5.7 acres, which shall be due and payable
by Developer in immediately available funds in favor of City, on June 30,
2012 or such other date as the parties may mutually agree (the Closing
Date). City acknowledges receipt of the sum of $5,000.00 from Developer as
earnest money, to be deducted from the Purchase Price at the Closing, or in
the event the parties fail to close on the Closing Date, within thirty days after
the Closing Date, less any expenses incurred by City in connection with this
Agreement.
(2) The purchase price for the Access Easement (the Easement
Purchase Price) shall be Five Thousand Eight Hundred Seventy -Five Dollars
($5,875.00) [$25,000.00 per acre for 0.235 acres of easement area].
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Expansion Area to Developer subject only to easements, restrictions,
conditions and covenants of record as of the Closing Date to the extent not
2
objected to by Developer as set forth in this Agreement, and to the conditions
subsequent set forth in Section 5.3, below:
(1) City, at its sole cost and expense, shall deliver to Developer within no
fewer than (14) days and no more than thirty (30) days after the execution of
this Agreement, an abstract of title to the Expansion Area reflecting
merchantable title in City in conformity with this Agreement and applicable
state law. The abstract shall be delivered together with full copies of any and
all encumbrances and matters of record applicable to the Expansion Area,
and such abstract shall become the property of Developer when the
Purchase Price is paid in full in the aforesaid manner.
(2) Developer shall have until the Closing Date to render objections to
title, including any easements or other encumbrances not satisfactory to
Developer, in writing to City. Developer agrees, however, to review the
Abstract promptly following Developer's receipt of Developer's land survey
and the Abstract and to promptly provide City with any objections to title
identified therein. Nothing herein shall be deemed to limit Developer's rights
to raise new title objections with respect to matters revealed in any
subsequent title examinations and surveys and which were not identified in
the Abstract provided by the City. City shall promptly exercise its best efforts
to have such title objections removed or satisfied and shall advise Developer
of its intended action within ten (10) days of such action. If City shall fail to
have such objections removed as of the Closing Date, or any extension
thereof consented to by Developer, Developer may, at its sole discretion,
either (a) terminate this Agreement without any liability on its part, and any
sums previously paid to City by Developer (or paid into escrow for City's
benefit)shall be returned to Developer with interest, or (b) take title subject to
such objections. City agrees to use its best reasonable efforts to promptly
satisfy any such objections.
1.3 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents and other representatives, shall have full and continuing
access to the Expansion Area and all parts thereof, upon reasonable notice to City.
Developer and its agents and representatives shall also have the right to enter upon
Expansion Area at any time after the execution and delivery hereof for any purpose
whatsoever, including, but not limited to, inspecting, surveying, engineering, test
boring, and performing environmental tests, provided that Developer shall hold City
harmless and fully indemnify City against any damage, claim, liability or cause of
action arising from or caused by the actions of Developer, its agents, or
representatives upon the Expansion Area (except for any damage, claim, liability or
cause of action arising from conditions existing prior to any such entry upon the
Expansion Area), and shall have the further right to make such inquiries of
governmental agencies and utility companies, etc. and to make such feasibility
studies and analyses as it considers appropriate.
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1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Expansion Area, City hereby
represents and warrants 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 Expansion Area 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 Expansion
Area. 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 Expansion Area and there are no pending or
intended public improvements or special assessments affecting the
Expansion Area which will result in any charge or lien be levied or assessed
against the Expansion Area.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Expansion Area 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
Expansion Area.
(5) The Expansion Area has a permanent right of ingress and egress to a
public roadway for the use and enjoyment of the Expansion Area.
(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
Expansion Area of which it has actual notice. The Expansion Area is in
material compliance with all applicable zoning, fire, building, and health
statutes, ordinances, and regulations. The Expansion Area is currently zoned
PUD and Developer's intended use of the Expansion Area as a warehouse,
for commercial offices, truck or trailer parking, fenced storage or other uses
consistent with and related to the business conducted by Theisen Supply,
Inc., its related companies, affiliates, and subsidiaries (the "Intended Use ")
are permitted uses in such zoning classification.
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(7) Payment has been made for all labor or materials that have been
furnished to the Expansion Area or will be made prior to the Closing Date so
that no lien for labor performed or materials furnished can be asserted
against the Expansion Area.
(8) The Expansion Area 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
Expansion Area 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 Expansion
Area 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 Expansion Area is free and clear of any occupants, and no party
has a lease to or other occupancy or contract right in the Expansion Area
that shall in any way be binding upon the Expansion Area, Developer or
Employer.
(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
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 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.
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(15) With respect to the period during which City has owned or occupied
the Expansion Area, and to City's knowledge after reasonable investigation
with respect to the time before City owned or occupied the Expansion Area,
no person or entity has caused or permitted materials to be stored,
deposited, treated, recycled, or disposed of on, under or at the Expansion
Area, 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 Expansion
Area for the Intended Use adjoin the Expansion Area 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 which representations and warranties shall be included in
the Special Warranty Deed and shall continue and survive the Closing Date.
1.5 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall
be correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the Closing, City shall deliver a
certificate in the form of Exhibit H.
(2) Title to the Expansion Area shall be in the condition warranted in
Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) Subject to Employer's written approval, Developer having obtained
any and all necessary governmental approvals which might be necessary or
desirable in connection with the sale, transfer and development of the
Expansion Area. Any conditions imposed as a part of the zoning, platting or
subdivision must be satisfactory to Developer, in its sole opinion. City shall
cooperate with Developer in attempting to obtain any such approvals and
shall execute any documents necessary for this purpose, provided that City
shall bear no expense in connection therewith. In connection therewith, the
City agrees (a) to review all of Developer's plans and specifications for the
project and to either reject or approve the same in a prompt and timely
fashion; (b) to issue a written notification to Developer, following City's
approval of same, indicating that the City has approved such plans and
specifications, and that the same are in compliance with the Urban Renewal
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Plan, this Agreement and any other applicable City or affiliated agency
requirements, with the understanding that Developer and its lenders shall
have the right to rely upon the same in proceeding with the project; (c) to
identify in writing within ten (10) working days of submission of said plans
and specifications, any and all permits, approvals and consents that are
legally required for the acquisition of the Expansion Area by Developer, and
the construction, use and occupancy of the project with the intent and
understanding that Developer and its lenders and attorneys will rely upon
same in establishing their agreement and time frames for construction, use
and occupancy, lending on the project and issuing legal opinions in
connection therewith; and (d) to cooperate fully with Developer to streamline
and facilitate the obtaining of such permits, approvals and consents.
(5) City having given and completed all required notice to or prior
approval, consent or permission of any federal, state, municipal or local
governmental agency, body, board or official to the sale of the Expansion
Area; and consummation of the Closing by City shall be deemed a
representation and warranty that it has obtained the same.
(6) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(7) Developer shall have furnished City with evidence, in a form
satisfactory to City (such as a letter of commitment from a bank or other
lending institution), that Developer has firm financial commitments in an
amount sufficient, together with equity commitments, to complete the
Minimum Improvements (as defined herein) in conformance with the
Construction Plans (as defined herein), or City shall have received such
other evidence of such party's financial ability as in the reasonable judgment
of City is required.
(8) Developer shall have furnished City with evidence in a form as
required by Section 4.2 and satisfactory to City of Employer's fulltime
equivalent employees (FTE) in Dubuque, Iowa, as of January 13, 2012.
(9) Receipt by City of a lease agreement with option to purchase for the
Expansion Area between Developer and Employer.
(10) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(11) Receipt of an opinion of counsel to Employer in the form attached
hereto as Exhibit E.
(12) Developer and Employer shall have the right to terminate this
Agreement at any time prior to the consummation of the closing on the
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Closing Date if either Developer or Employer determine in its sole discretion
that conditions necessary for the successful completion of the Project
contemplated herein have not been satisfied to the full satisfaction of such
party in such party's sole and unfettered discretion. Upon the giving of
notice of termination by such terminating party to the other parties to this
Agreement, this Agreement shall be deemed null and void.
1.6 Closing. The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Expansion Area shall be delivered on
the Closing Date, in its current condition and in compliance with this Agreement,
including City's representations and warranties regarding the same. Consummation
of the closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing have been satisfied or waived.
1.7 City's Obligations at Closing. At or prior to the Closing Date, City shall:
(1) Deliver to Developer a Grant of Easement and City's duly recordable
Special Warranty Deed to the Expansion Area (in the form attached hereto
as Exhibit F (Deed) and appropriate resolutions of the City Council
conveying to Developer marketable fee simple title to the Expansion Area
and all rights appurtenant thereto, subject only to easements, restrictions,
conditions and covenants of record as of the date hereof and not objected to
by Developer as set forth in this Agreement, and to the conditions
subsequent set forth in Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the Expansion Area.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1.8 Delivery of Purchase Price; Obligations At Closing. At closing, and subject
to the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay the Purchase Price to City
pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting
credit pursuant to Section 3.1 below.
1.9 Closing Costs. The following costs and expenses shall be paid in connection
with the closing:
(1) City shall pay:
(a) The transfer fee, if any, imposed on the conveyance.
(b) A pro -rata portion of all taxes, if any, as provided in Section
1.10.
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(c) All special assessments, if any, whether levied, pending or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and /or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorney's fees.
(c) Developer's broker and /or real estate commissions and fees, if
any.
(d) A pro -rata portion of all taxes as provided in Section 1.10.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that
end prior to the Closing Date. Real estate taxes for the fiscal year in which the
Closing Date occurs shall be prorated between City and Developer to the Closing
Date on the basis of a 365 -day calendar year. Developer shall pay or cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Expansion Area shall be based upon such taxes for the year
currently payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer is
building an addition to the warehouse on the Developer's Property, specifically, a
building and certain internal systems thereto, and including, without limitation, all
interior improvements (the Minimum Improvements), all as more particularly
depicted and described on the plans and specifications to be delivered to and
approved by City as contemplated in this Agreement. Developer hereby agrees
that the Minimum Improvements shall include a warehouse facility of approximately
eighty thousand (80,000) square feet of floor space along with necessary site work
as contemplated in this Agreement at an estimated cost of approximately
$2,000,000. It is understood and acknowledged that the Minimum Improvements
shall be located no less than 30 feet from the boundary between Developer's
Property and Lot 1 on as depicted on attached Exhibit "B ", and it is anticipated that
any future development on the Expansion Area may also encroach to within no
closer than 30 feet of the boundary between the Expansion Area and Lot 1 on as
depicted on attached Exhibit "B ". City agrees that Lot 1 as depicted on attached
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Exhibit "B" shall provide for a minimum setback from Developer's Property and the
Expansion Area of no less than 30 feet such that there results in a gap of at least
60 feet between the Minimum Improvements and any improvements to the
Expansion Area and Lot 1 as depicted on attached Exhibit "B ".
If Developer determines it needs an access road on the Access Easement, the
construction and maintenance of the access road shall be at Developer's sole
expense.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of Developer's Property and the construction of the
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 any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the Developer's Property,
in the records of Dubuque County, Iowa. Developer shall submit to City, for
approval by City, plans, drawings, specifications, and related documents with
respect to the improvements to be constructed by Developer on the Developer's
Property. All work with respect to the Minimum Improvements shall be in
substantial conformity with the Construction Plans approved by City.
2.3 Timing of Improvements.
(1) Developer hereby agrees that construction of the Minimum
improvements shall be commenced within three (3) months after the Closing
Date, and shall be substantially completed by December 31, 2012. For
purposes of this section, "substantial completion" shall mean completion of
the site work and completion of the core and shell of the building, but shall
not include furniture fixtures and equipment, and does not contemplate
receipt of a certificate of occupancy. 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 delays.
The time for performance of such obligations shall be extended only for the
period of such delay.
(2) Employer acknowledges that 5.7 acres of the Expansion Area as
shown on Exhibit B is intended as a future expansion area, of which 4.9
acres are buildable (the "Buildable Expansion Area "). If the Buildable
Expansion Area is not utilized for an Intended Use within ten years from the
date of this Agreement, Developer shall pay to City within thirty days of such
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date the Acquisition Grant for such part of the Buildable Expansion Area not
so improved ($50,000.00 x number of acres not so improved) less any
repayments previously made under Section 4.1(a), or, at Developer's option,
re- convey the remaining unused Buildable Expansion Area free and clear of
all liens and encumbrances to City for $50,000.00 per acre plus an amount
equal to all re- payments made to City pursuant to Section 4.1(a). Such ten -
year period shall run from the date of the latest improvement to the Property
which is substantially similar to the Minimum Improvements.
2.4 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. Such certification (the Certificate of
Completion) shall be in the form attached hereto as Exhibit I 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 Minimum Improvements. The Certificate of Completion
shall waive all rights of re- vestment of title in City as provided in Section 5.3, and
the Certificate of Completion shall so state.
2.5 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
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 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to
make an Acquisition Grant to Developer on the Closing Date, in the amount of Two
Hundred Forty -five Thousand Dollars ($245,000.00) (Fifty Thousand Dollars
($50,000.00) per acre x 4.9 usable acres). The parties agree that the Acquisition
Grant shall be payable in the form of a credit favoring Developer at the time of
Closing with the effect of directly offsetting a portion of the Purchase Price
obligation of Developer.
3.2 Economic Development Grant.
(1) For and in consideration of Developer's and Employer's obligations
hereunder, and in furtherance of the goals and objectives of the urban
renewal plan for the Project Area and the Urban Renewal Law, City agrees,
subject to Developer and Employer 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 Employer if Employer owns or leases the
Developer's Property upon which the Minimum Improvements are located
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and the Expansion Area and /or Improvements thereon during the period
such tax increment revenues accrue, otherwise to Developer (and City may
rely upon a statement from Employer or Developer with respect to
Employer's ownership or lease status for such purposes without any
obligation to verify such status), as follows:
November 1, 2013
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
May 1, 2014
May 1,2015
May 1, 2016
May 1, 2017
May 1,2018
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of tax increment revenues collected by City under
Iowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under Iowa Code Section 403.19 and excluding any
interest that may accrue thereon prior to payment to Employer or Developer)
during the preceding six -month period in respect of the Expansion Area and
Minimum Improvements constructed by Developer or Employer (the
Developer Tax Increments). Employer and Developer recognize and agree
that the Economic Development Grants shall be paid solely and only from
the incremental taxes collected by City in respect to the Developer's Property
to the extent of the Minimal Improvements, it being understood Developer's
Property as it exists on the date of this Agreement is already subject to a TIF
Agreernent, and 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, 2012,
its request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to the Employer if Employer owns or leases
the Developer's Property with the Improvements, Expansion Area and /or
Improvements thereon during the period such tax increment revenues
accrue, otherwise to Developer (and City may rely upon a statement from
Employer or Developer with respect to verify such status), on November 1
and May 1 of that fiscal year. (Example: If City so certifies by December,
2012, the Economic Development Grants in respect thereof would be paid to
Employer on November 1, 2013, and May 1, 2014.)
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(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 Theisen 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
Developer's Property Improvements, the Expansion Area and Minimum
Improvements and allocated to the Theisen TIF Account to pay the
Economic Development Grants, as and to the extent set forth in Section
3.2(1) hereof. The Economic Development Grants shall not be payable in
any manner by other tax increments revenues or by general taxation or from
any other City funds. City makes no representation with respect to the
amounts that may be paid to Employer or Developer as the Economic
Development Grants in any one year and under no circumstances shall City
in any manner be liable to Employer or Developer so long as City timely
applies the Developer Tax Increments actually collected and held in the
Theisen TIF Account (regardless of the amounts thereof) to the payment of
the Economic Development Grants to Employer or 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 3.2 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 or Employer with respect to the use thereof.
SECTION 4. COVENANTS OF EMPLOYER
4.1 Job Creation.
(1) During the Term of this Agreement, Employer shall retain seventy -
seven (77) and create a minimum of ten (10) fulltime equivalent employees
(FTE) in Dubuque, Iowa prior to January 1, 2015, and shall maintain those
jobs during the Term of this Agreement. It is agreed by the parties that
Employer has seventy -seven (77) fulltime equivalent employees (FTE) in
Dubuque, Iowa, as of January 13, 2012. FTE shall be calculated by adding
fulltime and part -time employees together using 2080 hours per year as a
FTE employee. In the event that the certificate provided to City under
Section 4.2 hereof on January 1, 2018 discloses that Employer does not as
of that date have at least eighty -seven (87) FTE employees as provided
hereinabove, Employer if Employer owns or leases the Developer's Property
the Expansion Area, and /or Improvements on that date (and City may rely
upon a statement from Employer or Developer with respect to Employer's
ownership or lease status for such purposes without any obligation to verify
such status), otherwise Developer shall pay to City, promptly upon written
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demand therefor, an amount equal to $2,816.09 per job not created or
maintained ($245,000 divided by 87 FTE = $2,816.09). (In the event that
Employer is required to pay City under the second paragraph of Section 2.3,
the amount per job not created of $2,816.09 shall be reduced by the amount
of such payment). Until the expiration of the Economic Development Grants,
the City's sole remedy for the failure of Employer to meet the job creation
requirements of this subsection 4.1(a) shall be as provided in subsection
4.1(b). Following expiration of the Economic Development Grants, the
payments provided for herein shall be the City's sole remedy for the failure of
Employer to meet the job creation requirements of this subsection 4.1(a).
(2) In addition, for the positions that Employer fails to create and maintain
for any year during the time Employer receives payment of the Economic
Development Grant under of this Agreement, the semi - annual Economic
Development Grants for such year under Section 3.2 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 (87 FTE's) by this Section
4.1. (For example, if Employer has 84 FTE employees, the semi - annual
Economic Development Grants would be 96.55% (84/87 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 Employer to meet the job creation
requirements of this subsection 4.1(b). After the May 1, 2018 Economic
Development Grant payment, this section 4.1(b) shall no longer apply.
4.2 Certification. To assist City in monitoring the performance of Employer
hereunder, not later than January 10, 2015, and again not later than January 1 of
each year thereafter during the term of this Agreement, a duly authorized officer of
Employer 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, Employer is not or
was not in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or
the giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during such period, or if the signer is
aware of any such default, event or Event of Default, said officer shall disclose in
such statement the nature thereof, its period of existence and what action, if any,
has been taken or is proposed to be taken with respect thereto. Such certificate
shall be provided not later than February 28, 2015, and by February 28 of each
year thereafter during the term of this Agreement.
4.3 Books and Records. During the term of this Agreement, Developer shall
keep at all times and make available to City upon reasonable request proper books
of record and account in which full, true and correct entries will be made of all
dealings and transactions of or in relation to the business and affairs of Developer
in accordance with generally accepted accounting principles consistently applied
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throughout the period involved; provided, however, nothing herein shall be
construed to require Developer or Employer to have an audit provided or prepared,
independent or otherwise, and Developer shall provide reasonable protection
against loss or damage to such books of record and account.
4.4 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 Expansion Area unless Developer's
obligations have been assumed by Employer or another person pursuant to the
provisions of this Agreement.
4.5 No Exemptions. Until such time as neither Developer nor Employer is
receiving Economic Development Grants pursuant to this Agreement, Developer
agrees not to apply for any state or local property tax exemptions which are
available with respect to the Developer's Property, the Expansion Area, or the
Minimum Improvements located thereon that may now be, or hereafter become,
available under state law or city ordinance during the term of this Agreement,
including those that arise under Iowa Code Chapters 404 and 427, as amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
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 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 the 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 and Employer shall notify City immediately in the case of
damage exceeding $500,000.00 in amount to, or destruction of, the
Minimum Improvements or any portion thereof resulting from fire or other
casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid
15
directly to Developer and Employer as their interests may appear, and
Developer or Employer 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 and Employer shall apply the Net Proceeds of any insurance
relating to such damage received by Developer and Employer to the
payment or reimbursement of the costs thereof, subject, however, to the
terms of any mortgage encumbering title to the Expansion Area (as its
interests may appear). Developer and Employer shall complete the repair,
reconstruction and restoration of Minimum Improvements whether or not the
Net Proceeds of insurance received by Developer and Employer for such
Purposes are sufficient.
4.7 Preservation of Developer's 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 additions. 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 Developer's Property.
4.8 Non - Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, gender identity, national origin, age or
disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee
of City, or its designees or agents, nor any consultant or member of the governing
body of City, and no other public official of City who exercises or has exercised any
functions or responsibilities with respect to the project during his or her tenure, or
who is in a position to participate in a decision - making process or gain insider
information with regard to the project, shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during or after such person's tenure. In connection with this
obligation, Developer shall have the right to rely upon the representations of any
party with whom it does business and shall not be obligated to perform any further
examination into such party's background.
4.10 Non - Transferability. Until such time as the Minimum Improvements are
complete (as certified by City under Section 2.4), this Agreement may not be
assigned by Developer nor may the Expansion Area 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
16
Agreement and upon assumption of the Agreement by the assignee, Developer
shall no longer be responsible for its obligations under this Agreement.
4.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Expansion Area or any part thereof
that they, and their respective successors and assigns, shall:
(1) Devote the Expansion Area 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 Expansion Area for its Intended Use 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 Expansion Area or any improvements
erected or to be erected thereon, or any part thereof (however, Developer
shall not have any liability to City to the extent that a successor in interest
shall breach this covenant and City shall seek enforcement of this covenant
directly against the party in breach of same).
4.12 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, covenants and agrees that the
Indemnified Parties shall not be liable for, and agree 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 Expansion Area and any hazardous substance or environmental
17
contamination located in or on the Expansion Area, caused and occurring
after Developer takes possession of the Expansion Area.
(3) The Indemnified Parties shall not be liable to Developer or Employer
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.
4.13 Compliance with Laws. Developer and Employer 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 or Employer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under
this Agreement and the term Event of Default shall mean, whenever it is used in
this Agreement, any one or more of the following events:
(1) Failure by Developer or Employer to pay or cause to be paid, before
delinquency, all real property taxes assessed with respect to the Minimum
Improvements and the Expansion Area. After the issuance of the Certificate
of Completion, however, such event shall not entitle City to the remedy
provided in Section 5.3.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements
except to Employer in violation of the provisions of this Agreement prior to
the issuance of the final Certificate of Completion.
18
(4) Failure by Developer or Employer or City to substantially observe or
perform any other material covenant, condition, obligation or agreement on
its part to be observed or performed under this Agreement.
5.2 Remedies on Default by Developer or Employer. Whenever any Event of
Default referred to in Section 5.1 of this Agreement occurs and is continuing, City,
as specified below, may take any one or more of the following actions after the
giving of written notice by City to Developer (and the holder of any mortgage
encumbering any interest in the Expansion Area of which City has been notified of
in writing) and Employer of the Event of Default, but only if the Event of Default has
not been cured within sixty (60) days following such notice, or if the Event of Default
cannot be cured within sixty (60) days and the defaulting party does not provide
assurances to City that the Event of Default will be cured as soon as reasonably
possible thereafter:
(1) City may suspend its performance under this Agreement until it
receives assurances from the defaulting party, deemed adequate by City,
that the defaulting party will cure its default and continue its performance
under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all
amounts expended by City in connection with the funding of the Acquisition
Grant to Developer, and City may take any action, including any legal action
it deems necessary, to recover such amounts from the defaulting party;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement; .
5.3 Re- vesting Title in City Upon Happening of Event Subsequent to
Conveyance to Developer. In the event that, subsequent to conveyance of the
Expansion Area to Developer by City, and prior to receipt by Developer of the
Certificate of Completion, but subject to the terms of the mortgage granted by
Developer to secure a loan obtained by Developer from a commercial lender or
other financial institution to fund the acquisition of Expansion Area or construction
of the Minimum Improvements on Developer's Property (First Mortgage), an Event
of Default under Section 5.1 of this Agreement occurs and is not cured within the
times specified in Section 5.2, then City shall have the right to re -enter and take
possession of the Expansion Area and any portion of the Minimum Improvements
thereon and to terminate (and re -vest in City pursuant to the provisions of this
Section 5.3 subject only to any superior rights in any holder of the First Mortgage)
19
the estate conveyed by City to Developer, it being the intent of this provision,
together with other provisions of this Agreement, that the conveyance of the
Expansion Area to Developer shall be made upon the condition that (and the Deed
shall contain a condition subsequent to the effect that), in the event of default under
Section 5.1 on the part of Developer and failure on the part of Developer to cure
such default within the period and in the manner stated herein, City may declare a
termination in favor of City of the title and of all Developer's rights and interests in
and to Expansion Area conveyed to Developer, and that such title and all rights and
interests of Developer, and any assigns or successors in interests of Developer,
and any assigns or successors in interest to and in Expansion Area, shall revert to
City (subject to the provisions of Section 5.3 of this Agreement), but only if the
events stated in Section 5.1 of this Agreement have not been cured within the time
period provided above, or, if the events cannot be cured within such time periods,
Developer do not provide assurance to City, reasonably satisfactory to City, that the
events will be cured as soon as reasonably possible. Notwithstanding the
foregoing, however, City agrees to execute a Subordination Agreement in favor of
Developer's first mortgage lender, in a form reasonably acceptable to City and to
Developer's first mortgage lender.
5.4 Resale of Reacquired Expansion Area; Disposition of Proceeds. Upon the
re- vesting in City of title to the Expansion Area as provided in Section 5.3 of this
Agreement, City shall, pursuant to its responsibility under law, use its best efforts,
subject to any rights or interests in such property or resale granted to any holder of
a First Mortgage, to resell the Expansion Area or part thereof as soon and in such
manner as City shall find feasible and consistent with the objectives of such law
and of the Urban Renewal Plan to a qualified and responsible party or parties (as
determined by City in its sole discretion) who will assume the obligation of making
or completing the Minimum Improvements or such other improvements in their
stead as shall be satisfactory to City and in accordance with the uses specified for
such the Expansion Area or part thereof in the Urban Renewal Plan. Subject to any
rights or interests in such property or proceeds granted to any holder of a First
Mortgage upon such resale of the Expansion Area the proceeds thereof shall be
applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on
the Expansion Area, or any portion thereof, or any improvements thereon,
previously acquiesced in by City pursuant to this Agreement. If more than
one mortgage on the Expansion Area, or any portion thereof, or any
improvements thereon, has been previously acquiesced in by City pursuant
to this Agreement and insufficient proceeds of the resale exist to pay the
principal of, and interest on, each such mortgage in full, then such proceeds
of the resale as are available shall be used to pay the principal of and
interest on each such mortgage in their order of priority, or by mutual
20
agreement of all contending parties, including Developer, or by operation of
law;
(3) Third, to reimburse City for all allocable costs and expenses incurred
by City, including but not limited to salaries of personnel, in connection with
the recapture, management and resale of the Expansion Area or part thereof
(but less any income derived by City from the Expansion Area or part thereof
in connection with such management); any payments made or necessary to
be made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by the City) existing on the Expansion Area or part
thereof at the time of re- vesting of title thereto in City or to discharge or
prevent from attaching or being made any subsequent encumbrances or
liens due to obligations, default or acts of Developer, its successors or
transferees (except with respect to such mortgage(s)), any expenditures
made or obligations incurred with respect to the making or completion of the
Minimum Improvements or any part thereof on the Expansion Area or part
thereof, and any amounts otherwise owing to City (including water and sewer
charges) by Developer and its successors or transferees; and
(4) Fourth, to reimburse Developer and Employer up to the amount equal
to (1) the sum of the Purchase Price paid to City for the Expansion Area and
the cash actually invested by such party in making any of the Minimum
Improvements on the Expansion Area, less (2) any gains or income
withdrawn or made by Developer or Employer from this Agreement or the
Expansion Area.
5.5 No Remedy Exclusive. Except as otherwise provided in this Agreement, no
remedy herein conferred upon or reserved to City is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient.
5.6 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed
to waive any other concurrent, previous or subsequent breach hereunder.
5.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
21
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.8 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer or Employer may take any action, including legal, equitable
or administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer or
Employer, or to enforce performance and observance of any obligation, agreement,
or covenant of City under this Agreement. Developer and Employer may suspend
its performance under this Agreement until they receive assurances from City,
deemed adequate by Developer and Employer, that City will cure its default and
continue its performance under this Agreement. Any such suspension of time shall
be added to the time in which Developer or Employer have to complete the
obligations or duties contained herein.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
(1) If to Developer:
Leo A. Theisen
Theisen Supply, Inc.
6201 Chavenelle Rd.
Dubuque, IA 52002 -9692
Phone: (563) 556 -4738
Fax: (563) 556 -7959
With copy to:
Attorney
John C. O'Connor
O'Connor & Thomas, P.C.
700 Locust St., Suite 200
Dubuque, Iowa 52001
Phone: (563) 557 -8400
Fax: (563) 557 -8400
(2) If to Employer:
Leo A. Theisen
22
Theisen Supply, Inc.
6201 Chavenelle Rd.
Dubuque, IA 52002 -9692
Phone: (563) 556 -4738
Fax: (563) 556 -7959
With copy to:
Attorney
John C. O'Connor
O'Connor & Thomas, P.C.
700 Locust St., Suite 200
Dubuque, Iowa 52001
Phone: (563) 557 -8400
Fax: (563) 557 -8400
(3) If to City:
City Manager
50 West 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
With copy to:
City Attorney
City Hall
50 West 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.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City, Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2022 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted among them by facsimile machine. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of all the parties is binding on the parties. This
Agreement maybe executed simultaneously in two or more counterparts, each of
23
which shall be deemed an original, but all of which together shall constitute one and
the same instrument.
6.5 Memorandum of Development Agreement. City 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.
CITY OF DUBUQUE, IOWA
By:
RoyD
By:
uol, Mayor
THEISEN SUPPLY, INC., Employer
By
Leo A. Theisen
LEO A. THEISEN, Developer
1
Key' S. Firnstahl, City Clerk B
F: \USERS \tsteckle \Lindahl \Theisen Supply\ DevelopmentAgreement _013112bal.doc
24
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Opinion of Counsel to Theisen Supply, Inc.
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
Exhibit I Certificate of Completion
25
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
26
EXHIBIT B
SITE PLAN
27
EXHIBIT 6 OW' ti
PR CROSLD sOBDNISION NAME;
DUBUQUE "NDUSTRIAL CENTER WEST 9TH ADDITION
EEINC A DIVISION OF LOT 2 —? IN
CU DO4UE INWUSTRI AI_ CETI TER WES1' STM ADDITION
kJR$TAIN. voitz M fRr
6 49 140
Waco
4♦
11 W
OK —p p6 AC
REA
AREA EAST OF ACCESS E ASTVENT
0.527 SF or 0.24 ACRES
of
oaf
t
9rogn Na: 1109(.6
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
29
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(DATE)
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
30
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
31
Mayor and City Councilmembers
City Hall
13tn 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
32
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
33
EXHIBIT E
OPINION OF COUNSEL TO THEISEN SUPPLY, INC.
34
Mayor and City Councilmembers
City Hall
13t and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for (Employer) 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. Employer is a corporation organized and existing under the laws of
the State of Iowa and has full power and authority to execute, deliver and perform
in full Development Agreement. The Development Agreement has been duly and
validly authorized, executed and delivered by Employer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid
and legally binding instrument of Employer enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting creditors' rights generally.
2. To our actual knowledge with no duty to inquire, the execution,
delivery and performance by Employer of the Development Agreement and the
carrying out of the terms thereof, will not result in violation of any provision of, or in
default under, the articles of incorporation and bylaws of Employer, any indenture,
mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Employer is a party or by which
Employer's property is bound or subject.
3. To our actual knowledge with no duty to inquire, there are no actions,
suits or proceedings pending or threatened against or affecting Employer in any
court or before any arbitrator or before or by any governmental body in which there
is a reasonable possibility of an adverse decision which could materially adversely
affect the business (present or prospective), financial position or results of
35
operations of Employer or which in any manner raises any questions affecting the
validity of the Agreement or the Employer's ability to perform Employer's obligations
thereunder.
This opinion is rendered for the sole benefit of the City of Dubuque and no other
party may rely on this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty
to update this opinion for any matters which come to our knowledge after the date
of this letter.
Very truly yours,
36
EXHIBIT F
DEED
37
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
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and
no /100 Dollars ($ ) in hand paid, and other good and valuable
consideration, and pursuant to the authority of Chapter 403, Code of Iowa, does
hereby GRANT, SELL AND CONVEY unto
an Iowa limited liability company
(Grantee), the following described parcel(s) situated in the County of Dubuque,
State of Iowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section
428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of
the City Council of the City of Dubuque adopted the day of
20 , the terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and
is subject to all the terms, provisions, covenants, conditions and restrictions
contained in that certain Development Agreement executed by Grantor and
Grantee herein, dated the day of , 20_ (the Agreement), a
memorandum of which was recorded on the day of , 20_, in the
records of the Recorder of Dubuque County, Iowa, Instrument Number
Promptly after completion of the improvements in accordance with the
provisions of the Agreement, Grantor will furnish Grantee with a Certificate of
Completion in the form set forth in the Agreement. Such certification by Grantor
38
shall be, and the certification itself shall so state, a conclusive determination of
satisfaction and termination of the agreements and covenants of the Agreement
and of this Deed with respect to the obligation of Grantee, and its successors and
assigns, to construct improvements and the dates for the beginning and completion
thereof, it being the intention of the parties that upon the granting and filing of the
Certificate of Completion that all restrictions, re- vesting of title, and reservations of
title contained in this Deed be forever released and terminated and that any
remaining obligations of Grantee pursuant to the Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them
to be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse
or fail to provide any such certification in accordance with the provisions of the
Agreement and this Deed, Grantor shall, within twenty days after written request by
Grantee, provide Grantee with a written statement indicating in adequate detail in
what respects Grantee has failed to complete the improvements in accordance with
the provisions of the Agreement or is otherwise in default, and what measures or
acts will be necessary, in the opinion of Grantor, for Grantee to take or perform in
order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and
Grantee or herein shall fail to cure such default within the period
and in the manner stated in the Agreement, then Grantor shall have the right to re-
enter and take possession of the Property and to terminate and re -vest in Grantor
the estate conveyed by this Deed to Grantee, its assigns and successors in
interest, in accordance with the terms of the Agreement.
None of the provisions of the Agreement shall be deemed merged in,
affected or impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against
the lawful claims of all persons whomsoever claiming by, through and under it.
Dated this of , 20 at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
Attest: By:
By:
Kevin S. Firnstahl, City Clerk
39
Roy D. Buol, Mayor
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of , 20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to the
foregoing instrument is the seal of said Municipal Corporation, and 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 in and for Dubuque County, Iowa
40
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
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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:
42
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
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EXHIBIT H
CITY CERTIFICATE
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City Manager's Office
50 West 13th Street
Dubuque, Iotiva 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgr @cityofd ubuque.org
Dear
(DATE)
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity
in connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 20_
On behalf of the City of Dubuque, 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 Expansion Area being conveyed or the possession, use or
enjoyment thereof by Developer or Employer, 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 Expansion
Area. 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 Expansion Area and there are no pending or
intended public improvements or special assessments affecting the
Expansion Area which will result in any charge or lien be levied or assessed
against the Expansion Area.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Expansion Area 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
Expansion Area.
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(5) The Expansion Area has a permanent right of ingress and egress to a
public roadway for the use and enjoyment of the Expansion Area.
(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 and
Employer in writing of any past notices, orders, suits, judgments or other
proceedings relating to fire, building, zoning, air pollution or health violations
as they relate to the Expansion Area of which it has actual notice. The
Expansion Area is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations. The Expansion
Area is currently zoned PUD and Employer's intended use of the Expansion
Area 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 Expansion Area or will be made prior to the Closing Date so
that no lien for labor performed or materials furnished can be asserted
against the Expansion Area.
(8) The Expansion Area 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
Expansion Area 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 Expansion
Area 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 and
Employer at time of closing confirming the representation contained herein,
in the form attached hereto as Exhibit C.
(11) The Expansion Area is free and clear of any occupants, and no party
has a lease to or other occupancy or contract right in the Expansion Area
that shall in any way be binding upon the Expansion Area, Developer or
Employer.
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(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and Employer and hold Developer and Employer harmless from
any and all claims asserted by any broker engaged directly or indirectly by
City for any fees or other compensation related to the subject matter of this
Agreement.
(13) City shall exercise its best efforts to assist with Developer and
Employer 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 Expansion Area, and to City's knowledge after reasonable investigation
with respect to the time before City owned or occupied the Expansion Area,
no person or entity has caused or permitted materials to be stored,
deposited, treated, recycled, or disposed of on, under or at the Expansion
Area, 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 Expansion
Area as an industrial manufacturing facility adjoin the Expansion Area 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
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Sincerely,
Michael C. Van Milligen
City Manager
EXHIBIT I
CERTIFICATE OF COMPLETION
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Prepared By: David J. Heiar 50 West 13th Street Dubuque, IA 52001 563- 589 -4393
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"),
by a Special Warranty Deed recorded on , 2012 as Document
Number 2012- in the office of the County Recorder of Dubuque County,
State of Iowa, has conveyed to Leo A. Theisen (the "Grantee "), in accordance with a
Development Agreement dated as of February 20, 2012 (the "Agreement "), certain real
property located within the Dubuque Industrial Center Economic Development Urban
Renewal 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 2.4 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
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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
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, respectively of the City of
Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the
laws of the State of Iowa, and that the foregoing instrument was signed on behalf of
said Municipal Corporation by authority of its said City Manager and that he
acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
Notary Public in and for
Dubuque County, Iowa
50