Smithfield, Hwy 151 61, Development Agreement
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MEMORANDUM
May 11, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Development Agreement with Hwy 151 & 61 Development, LLC for the
Redevelopment of the former Smithfield Property
Economic Development Director David Heiar is recommending that a public hearing be
held on June 5, 2006 to consider a development agreement for the former Smithfield
site.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mi6hael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
David Heiar, Economic Development Director
CITY OF DUBUQUE, IOWA
MEMORANDUM
May 11, 2006
TO:
FROM:
Michael Van Milligen, City Manager , I
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Development Agreement with Hwy 151 & 61 Development, LLC
for the Redevelopment of the former Smithfield Property
SUBJECT:
INTRODUCTION
This memorandum presents for City Council consideration a resolution initiating
approval of a development agreement with Hwy 151 & 61 Development, LLC that
provides for public financial assistance and other considerations for the redevelopment
of the former Smithfield property on 16th Street. The attached resolution sets a public
hearing on the development agreement for June 5, 2006. The proposed development
agreement is attached hereto.
BACKGROUND
Over the past year, City staff has worked with the Hwy 151 & 61 Development, LLC
investors, a local group of business persons headed by Wayne Briggs, to assist the
redevelopment of the former Smithfield property. The property has been rezoned by the
City Council to allow commercial development and is currently undergoing demolition,
environmental remediation and site preparation work. The City has also been involved
in the project due to the relocation of the Bee Branch storm sewer through this property.
The City has, in the case of slum and blight, provided public financial assistance to
support commercial development projects. Previously, the City has approved the use of
tax increment financing (TIF) for the commercial redevelopment of the Dubuque Star
Brewery project and has also authorized its use to support the Port of Dubuque Master
Plan which allows commercial uses. In this case, public financial assistance is
requested in the form of TIF to offset the extraordinary development costs, and the
associated financial risk being assumed by the developer, which is involved with a
blighted property that includes the conversion of the former meatpacking plant site,
including environmental remediation and extensive demolition costs.
The redevelopment project is located in the Kerper Boulevard Industrial Park Economic
Development District which allows the use of tax increment financing to assist private
development projects. Staff proposes eventually to carve out the property from the
existing urban renewal district to create a separate district for the project because of its
commercial nature. An amendment to the existing urban renewal plan and providing for
the creation of a new urban renewal plan will be presented to the City Council at a
subsequent meeting.
DISCUSSION
The attached development agreement establishes the terms of the City's financial
assistance to the redevelopment project. It also establishes the terms of agreement
related to the relocation of the Bee Branch storm sewer and the option to acquire
certain City-owned real estate located south of 16th Street.
The key elements of the agreement include the following:
1} The developer will undertake "initial improvements" to the property including the
demolition of existing buildings, filling and grading of the site, any Federal or
State mandated remediation of environmental matters and installation of public
infrastructure. These activities will be completed between 2006 and 2009.
2} The "minimum improvements", which involve the construction of tax assessable
buildings and other improvements to the property, will follow the "initial
improvements. "
3} Certain "minimum improvements" will be eligible for TIF assistance to be
provided through a 1 O-year rebate of the actual new increment of property taxes
paid. Due to the uncertainty of when the 25+ acre project will be fully developed,
a "rolling" time period has been proposed to allow the 1 O-year period to begin
over a staggered timeline. However, to encourage the completion of the overall
project in a timely manner, the latest date from which time a 10-year TIF period
will be calculated is January 1, 2013. This provides 3 years from the completion
of the initial improvements to complete building construction that would be
eligible for the TIF rebates.
4} The agreement spells out uses that will be prohibited from receiving TIF. These
uses are generally "big box" retailers that typically do not require public financial
assistance to encourage their location in a community. In addition, any big box
retailer should have to meet stringent design guidelines.
5} In consideration of easements granted for the Bee Branch storm sewer along the
western edge of the property, the City would provide the developer an option to
acquire City property located south of 16th Street directly across from the
development site. This area was previously a parking lot for FDL Foods and
acquired by the City as part of the sale to Farmland Foods. A portion of the
parking lot will be needed by the City for the Bee Branch storm sewer but several
acres will remain along 16th Street which would have commercial value to the
developer. Should the developer want the storm drainage system put
underground to allow for more development potential, that additional cost will be
funded by the developer.
6) While there are no specific job requirements associated with the agreement, the
overall project assumes the creation of a substantial number of retail and service
jobs. The adjacent low and moderate income residential neighborhoods should
benefit from the new job opportunities that result from the redevelopment
projects and the easy access to retail shopping.
RECOMMENDATION
I recommend that the City Council adopt the attached resolution setting a date for
public hearing on the approval of the attached development agreement that authorizes
the use of tax increment financing the option to acquire City property and the
elimination of utility easement areas and other considerations to support the
redevelopment of the former Smithfield property by Hwy 151 & 61 Development, LLC.
ACTION STEP
The action step for the City Council is to adopt the attached resolution.
attachments
F:\USERSIPMyhreIWPDOCS\LOANDOCIHWY151 &61 LLC\memosellingPH.doc
Prepared by: Barry A. Lindahl, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563583-4113
Return to: Barry A. Lindahl, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563583-4113
RESOLUTION NO.195.06
INTENT TO DISPOSE OF AN INTEREST IN CITY REAL ESTATE AND EASEMENTS
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 HWY 151 & 61
DEVELOPMENT, LLC, AND PROVIDING FOR THE PUBLICATION OF NOTICE
THEREOF.
Whereas, it is deemed necessary and advisable that the City of Dubuque (City)
vacate certain utility easements located on property owned by Hwy 151 & 61
Development, LLC (Developer) which property is legally described in Exhibit A attached
hereto; and
Whereas, in consideration of certain utility easements to be granted by
Developer to City for the Bee Branch storm sewer along the western edge of the
property, City intends to grant Developer an option to acquire certain City property
located south of 16th Street directly across from the development site which property is
legally described in Exhibit B attached hereto; and
Whereas, it is deemed necessary and advisable that City should issue Urban Renewal
Tax Increment Revenue obligations, as authorized by Chapter 403 of the Code of Iowa,
and to enter into a Development Agreement relating thereto with Developer for the
purpose of carrying out an Urban Renewal Plan as hereinafter described; and
Whereas, the Development Agreement is now on file at the Office of the City Clerk, City
Hall, 13th and Central Avenue, Dubuque, Iowa; 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. That the City Council meet in the Auditorium of the Carnegie-Stout
Public Library in Dubuque, Iowa, at 6:30 p.m. on the 5th day of June, 2006, for the
purpose of vacating certain utility easements, granting an option on certain City owned
land south of 16th Street, and taking action on the matter of the issuance of Urban
Renewal Tax Increment Revenue obligations and the execution of a Development
Agreement relating thereto with Hwy 151 & 61 Development, LLC, the proceeds of
which will be used to carry out certain of the special financing activities described in the
Urban Renewal Plan for the Kerper Boulevard Industrial Park Economic Development
District, consisting of the funding of economic developments grants to Hwy 151 & 61
Development, LLC pursuant to a Development Agreement entered into with Hwy 151 &
61 Development, LLC 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
$5 million more or less, due to assessment increases and/or tax rate adjustments.
Section 2. That 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 3. That the notice of the proposed action to issue said obligations
shall be in substantially the form attached hereto.
Passed, approved and adopted this 15th day of May, 2006.
Attest:
j}~
uol, Mayor
M~ >u [1u36z(dLA-J
Karen M. Chesterman, Deputy City Clerk
RESOLUTION NO.
FIXING THE DATE FOR A MEETING 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 HWY 151 & 61
DEVELOPMENT, LLC, AND PROVIDING FOR THE PUBLICATION OF NOTICE
THEREOF.
Whereas, it is deemed necessary and advisable that the City of Dubuque (City)
vacate certain utility easements located on property owned by Hwy 151 & 61
Development, LLC (Developer); and
Whereas, in consideration of certain utility easements to be granted by
Developer to City for the Bee Branch storm sewer along the western edge of the
property, City intends to grant Developer an option to acquire certain City property
located south of 16th Street directly across from the development site; and
Whereas, it is deemed necessary and advisable that City should issue Urban
Renewal Tax Increment Revenue obligations, as authorized by Chapter 403 of the
Code of Iowa, and to enter into a Development Agreement relating thereto with
Developer 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 andlor 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. That the City Council meet in the Auditorium of the Carnegie-Stout
Public Library in Dubuque, Iowa, at 6:30 p.m. on the 5th day of June, 2006, for the
purpose of vacating certain utility easements, providing an option on certain City owned
land south of 16th Street, and taking action on the matter of the issuance of Urban
Renewal Tax Increment Revenue obligations and the execution of a Development
Agreement relating thereto with Hwy 151 & 61 Development, LLC, the proceeds of
which will be used to carry out certain of the special financing activities described in the
Urban Renewal Plan for the Kerper Boulevard Industrial Park Economic Development
District, consisting of the funding of economic developments grants to Hwy 151 & 61
Development, LLC pursuant to a Development Agreement entered into with Hwy 151 &
61 Development, LLC 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
$5 million more or less, due to assessment increases and/or tax rate adjustments.
Section 2. That 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 3. That the notice of the proposed action to issue said obligations
shall be in substantially the form attached hereto.
Passed, approved and adopted this
day of
,2006.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
NOTICE OF A MEETING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE MATTER OF THE PROPOSED ISSUANCE OF
URBAN RENEWAL TAX INCREMENT REVENUE OBLIGATIONS AND THE
EXECUTION OF A DEVELOPMENT AGREEMENT RELATING THERETO
WITH HWY 151 & 61 DEVELOPMENT, LLC, AND THE HEARING ON THE
ISSUANCE THEREOF.
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque,
Iowa, will hold a public hearing on the 5th day of June, 2006, at 6:30 p.m. in the
Carnegie-Stout Public Library Auditorium, 360 West 11th Street, Dubuque, Iowa,
at which meeting the City Council proposes to vacate certain utility easements,
provide an option on certain City owned land south of 16th Street, and take action
for the issuance of Urban Renewal Tax Increment Revenue Obligations and the
execution of a Development Agreement relating thereto with Hwy 151 & 61
Development, LLC, in order to carry out certain of the special financing activities
in the Urban Renewal Plan for the Kerper Boulevard Industrial Park Economic
Development District, consisting of the funding of economic development grants
to Hwy 151 & 61 Development, LLC, pursuant to a Development Agreement
entered into with Hwy 151 & 61 Development, LLC 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 $ , more or
less, due to assessment increases and/or tax rate adjustments.
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 issuance of such Tax
Increment Revenue Obligations or will abandon the proposal. By order of the
City Council said hearing and appeals there from shall be held in accordance
with and governed by the provisions of Section 403.9 of the Code of Iowa.
This notice is given by order of the City Council of the City of Dubuque, Iowa, as
provided by Chapter 403 of the Code of Iowa.
Dated this _ day of
2006.
Jeanne F. Schneider
City Clerk of Dubuque, Iowa
F:IUSERSIPMyhreIWPDOCSILOANDOC\HWY151 &61llClfixingdateresolution and notice.doc
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
HWY 151 & 61 DEVELOPMENT, LLC
This Development Agreement (" Agreement"), dated forreference purposes this day
of ,2006 ("Effective Date"), by and between the City of Dubuque, Iowa, a
municipality ("City"), established pursuant to the Iowa Code and acting under authorization ofIowa
Code Chapter 403, as amended ("Urban Renewal Act"), and Hwy 151 & 61 Development, LLC,
an Iowa limited liability company ("Developer")with its principal place of business at Dubuque,
Iowa.
Whereas, City, acting under authorization ofIowa Code Chapter 403 (2005), as amended,
and in furtherance ofthe objectives of the Iowa Urban Renewal Act, has agreed to participate on
a limited basis in the redevelopment by Developer of the former Smithfield real estate (the
"Project") to advance the community's ongoing economic development efforts and to relieve and
redevelop a blighted area in the City;
Whereas, the Project is located within the Kerper Boulevard Economic Development
District ("Project Area"); and
Whereas, Developer has acquired the former Smithfield real estate site and adjacent lagoon
real estate (the "Real Estate") (as further legally described on Exhibit "A" attached hereto and by
this reference made a part hereof), which Real Estate is presently functionally obsolete and blighted
and Developer has determined to demolish the existing, former meat packing plant on the Real
Estate and to redevelop the property as a commercial/retail shopping center with outlots as the
Project, which City supports; and
Whereas, Developer shall develop the Project upon the Real Estate in the Project Area; and
Whereas, City has agreed to provide tax increment financing ("TIF") assistance to
Developer in connection with the Project; and
Whereas, City is in the process of relocating the Bee Branch storm sewer system within the
city. The Bee Branch storm sewer system presently crosses the Real Estate pursuant to an easement
depicted on Exhibit "B" attached hereto and by this reference made a part hereof, which City is
willing to release. City desires to relocate the Bee Branch storm sewer system to the westerly
portion of the Bee Branch Real Estate (as shown on Exhibit "D"), in consideration of this
Agreement and Developer's option to acquire certain City-owned real estate located south of 16th
Street and across from the Real Estate (and north of the Bee Branch) (the "City Real Estate") which
is legally described as provided on Exhibit "C" attached hereto and by this reference made a part
hereof; and
Whereas, City shall release all existing City easements located on the Real Estate, and City
and Developer shall agree, at Developer's expense, to the replatting and/or relocation of certain
utility easements over, across, and upon the Real Estate; and
Whereas, City believes that the development of the Real Estate by Developer, 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.
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. REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best
of City's knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full
power and authority to execute, deliver and perform its obligations under
this Agreement. This Agreement, upon execution and delivery by the City
(assuming due authorization, execution and delivery by the Developer), is
a valid and legally binding instrument of City, 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. City's outside counsel shall issue a legal opinion to
Developer at time of closing confirming the representations contained
herein, in form and substance reasonably satisfactory to Developer.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by,
in conflict with, or result in a violation or breach of, the terms, conditions
or provisions of the charter of City, any evidence of indebtedness,
agreement or instrument of whatever nature to which City is now a party or
by which it or its property is bound, or constitute a default under any of the
foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the financial position or
operations of City or which affects the validity ofthe Agreement or City's
ability to perform its obligations under this Agreement.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(I) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and
authority to own and operate its properties, to carry on its business as now
conducted and as presently proposed to be conducted, and to enter into and
perform its obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the
City, is in full force and effect and is a valid and legally binding instrument
of Developer enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally. Developer's counsel shall
issue a legal opinion to the City, at time of closing, confirming the
representations contained herein, in form and substance reasonably
satisfactory to City.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by,
in conflict with, or result in a violation or breach of, the terms, conditions
or provisions of the articles of organization or the operating agreement of
Developer or any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which Developer is now a
party or by which it or its property is bound, or constitute a default under
any ofthe foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, financial
position or result of operations of Developer or which affects the validity
of the Agreement or Developer's ability to perform its obligations under this
Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all
local, State and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and
federal laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project
in an amount sufficient, together with equity commitments, to successfully
complete the requirements of this Agreement and shall provide evidence
thereof to City prior to Effective Date.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Initial Improvements. Developer shall undertake "Initial Improvements" on the Real
Estate, which shall include:
(1) Demolition and removal of all of the existing buildings and improvements
on the Real Estate;
(2) Filling, grading and leveling of the land as will permit proper drainage and
place the Real Estate in a safe, clean, sanitary and non-hazardous condition;
(3) Remediation of all environmental matters sufficient to meet State Land
Recycling Program standards; and
(4) Installation of public infrastructure, including grading, curb and gutter
construction, and improvements required by City Ordinance 22-05 on that
portion of the Real Estate lying east of the existing Bee Branch storm sewer
system.
2.2 Timing of Initial Improvements. The parties hereby acknowledge that the Initial
Improvements on the Property have commenced prior to the Effective Date, and
shall be substantially completed as follows:
(I) Demolition and removal of all of the existing buildings and improvements
on the Real Estate: By July I, 2007;
(2) Filling, grading and leveling of the land as will permit proper drainage and
place the Real Estate in a safe, clean, sanitary and nonhazardous condition:
By January 1, 2008;
(3) Enrollment of the Real Estate in the Iowa Land Recycling Program by July
1,2006; and,
(4) Installation of public infrastructure, including grading, curb and gutter
construction, and improvements required by City Ordinance 22-05 on that
portion of the Real Estate lying east of the existing Bee Branch storm sewer
system: By December 31, 2009.
The time frames for the performance ofthese 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 Initial
Improvements, litigation commenced by third parties which, by injunction
or other similar judicial action or by the exercise of reasonable discretion
directly results in delays, or acts of any federal, state or local government
which directly result in extraordinary delays. The time for performance of
such obligations shall be extended only for the period of such delay.
Further, if Developer has substantially complied with any of the foregoing,
City agrees to reasonably extend such deadlines upon written request from
Developer, which request shall recite the reasons therefor and the requested
extension thereof.
2.3 Minimum Improvements. Following completion of the Initial Improvements,
Developer shall use its best efforts to complete subsequent Minimum
Improvements on the Real Estate. "Minimum Improvements" shall include those
projects proposed as Tax Increment Payment-eligible developments described in
Section 3.1 hereof.
SECTION 3. CITY PARTICIPATION
3.1 Tax Increment Payments.
(1) As a means of facilitating the development of the Real Estate by Developer
and the job creation it will provide within the Project Area, City agrees to
make the economic development grant payments to Developer described in
this Section ("Economic Development Grants") in respect of approved new
development on the Real Estate that is first assessed for property tax
purposes after the Effective Date and before January 1,2013.
(2) From the Effective Date until January I, 2013, Developer (or any
subsequent owner of any portion of the Real Estate) shall provide City with
plans and specifications for all commercial/retail building project
developments proposed to be constructed on the Real Estate (the "Minimum
Improvements"), at or before such time as the Developer (or any subsequent
owner of any portion of the Real Estate) applies to the City for building
permits for the same. As a part thereof, Developer shall identify the
particular tax parcels upon which the Minimum Improvements will be
constructed, the estimated construction costs of the same, and such other
information concerning the Minimum Improvements as City may
reasonably request. If the proposed Minimum Improvements are not
Prohibited Uses under this Agreement (as defined in Section 3.1 (4)) and
are permitted by City ordinance 22-05, the City shall create a special
account in respect of the Proposed Minimum Improvements (in each
instance, a "TIF Project Account") within the tax increment fund for the
Project Area created under the City ordinance adopted pursuant to Section
403.19 of the Code ofIowa (the "Ordinance"). Thereafter, the tax increment
revenues collected by City solely in respect of those new Minimum
Improvements under the Ordinance shall be allocated to that TIF Project
Account for the period described in subsection (3) below.
The Developer shall receive twenty (20) Economic Development Grants
from City over a period of ten (10) years with respect to each substantially
completed Minimum Improvement(s). Each such Economic Development
Grant shall be equal in amount to the actual amount of tax increment
revenues collected by City during the preceding six (6) months in respect
of the applicable Minimum Improvements under the Ordinance and
deposited in the applicable TIF Project Account (excluding any interest that
may accrue thereon prior to payment to Developer). In each case, the initial
Economic Development Grant shall be due and payable to Developer on
December I of the year following the year in which the Minimum
Improvements are first assessed for property tax purposes (example: if the
Minimum Improvements are first assessed as of January 1, 2009, the initial
Economic Development Grant would be due on December 1, 2010).
Following the payment of the initial Economic Development Grant, City
shall make nineteen (19) additional Economic Development Grants to
Developer semi-annually on June 1 and December 1 of each year thereafter,
each in the amount described above.
(3) The Developer recognizes and agrees that the Economic Development
Grants shall be paid solely and only from the incremental taxes collected by
the City in respect to the applicable Minimum Improvements under the
Ordinance, and that such incremental taxes will not include all amounts
paid by Developer as regular property taxes.
(4) If a particular development proposal for the construction of Minimum
Improvements by Developer is a Prohibited Use under this Agreement, City
shall have no obligation to make any Economic Development Grants to
Developer in respect of those Minimum Improvements. "Prohibited Uses"
are the following: (a) any grocery store, supermarket, wholesale club
operation, or general merchandise retailer containing more than 100,000
square feet; (b) any other "big box" retailer containing more than 150,000
square feet; or, (c) any use which is not a principal permitted use pursuant
to planned commercial/planned unit development zoning under the
ordinances of the City of Dubuque, Iowa.
(5) If the use of the Minimum Improvements or any part thereof changes to a
Prohibited Use under this Agreement subsequent to City Council approval
of any particular development proposal for purposes of this Section, the
City shall have no obligation to apply the incremental taxes collected in
respect of the Minimum Improvements located on the parcel of Real Estate
upon which Prohibited Uses are occurring to the payment of the Economic
Development Grants (i.e., a parcel of Real Estate upon which there is a
Prohibited Use shall be removed from the calculation of the Economic
Development Grants) unless the Prohibited Use of the Minimum
Improvements is approved by the City Council and the parties amend this
Agreement accordingly.
(6) No Economic Development Grants shall be made in respect of any
Minimum Improvements constructed on the Real Estate that are first
assessed for property tax purposes after January 1,2013.
(7) The Economic Development Grants described in this Section shall be
payable solely and only from the tax increment revenues derived from the
specified Minimum Improvements. The Economic Development Grants
shall not be payable in any manner by other tax increment revenues or by
general taxation or from any other City funds. City makes no representation
with respect to the amounts that may be paid to Developer as the Economic
Development Grants in anyone year, and under no circumstances shall City
be in any manner liable to Developer so long as City timely applies the tax
increment revenues that are actually collected in respect of any Minimum
improvements and deposited in the applicable TIF Project Account to the
payment of the Economic Development Grants to Developer as and to the
extent described in this Section.
(8) 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 tax
increment revenues resulting from the termination or satisfaction of the
obligation to make Economic Development Grants, for any purpose for
which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations
to Developer with respect to the use thereof.
(9) Non-appropriation/Limited Source of Fundim!. Notwithstanding anything
in this Agreement to the contrary, the obligation of City to pay any
installment of the Economic Development Grant shall be an obligation
limited to currently budgeted funds, and not a general obligation or other
indebtedness of City or a pledge of its full faith and credit under the
meaning of any constitutional or statutory debt limitation, and shall be
subject in all respects to the right of non-appropriation by the City Council
as provided in this Section. City may exercise its right of non-appropriation
as to the amount of the installments to be paid during any fiscal year during
the term of this Agreement without causing a termination of this
Agreement. The right of non-appropriation shall be exercised only by
resolution affirmatively declaring City's election to non-appropriate funds
otherwise required to be paid to Developer in the next fiscal year under this
Agreement. Such resolution shall be considered for adoption by the City
Council at a public hearing held on or before December I st of any year, and
notice of such hearing shall be given to Developer at least 30 days prior to
the hearing. The resolution shall be approved by not less than a majority of
the total number of members to which the City Council is entitled.
Developer and all other persons having an interest in the matter shall be
given an opportunity to be heard at such hearing and prior to the adoption
of such resolution.
(i) In the event the City Council elects to not appropriate sufficient
funds in the budget for any future fiscal year for the payment in full of the
installments on the Economic Development Grant due and payable in that
fiscal year, then: (a) City shall have no further obligation to Developer for
the payment of all installments due in the next fiscal year which cannot be
paid with the funds then appropriated for that purpose; and (b) Developer
shall be released from all further obligations under this Agreement during
that same fiscal year.
(ii) Each installment of the Economic Development Grant shall be paid
by City solely from funds appropriated for that purpose by the City Council
from taxes levied on the Property that are allocated to the special fund
pursuant to Iowa Code (2005) 9403.19(2).
(iii) The right of non-appropriation reserved to City in this Section is
intended by the parties, and shall be construed at all times, so as to ensure
that City's obligation to pay future installments on the Economic
Development Grants shall not constitute a legal indebtedness of City within
the meaning of any applicable constitutional or statutory debt limitation
prior to the adoption of a budget which appropriates funds for the payment
of that installment or amount. In the event that any of the provisions of this
Agreement are determined by a court of competent jurisdiction to create, or
result in the creation of, such a legal indebtedness of City, the enforcement
of the said provision shall be suspended, and the Agreement shall at all
times be construed and applied in such a manner as will preserve the
foregoing intent of the parties, and no event of default shall be deemed to
have occurred as a result thereof. If any provision of this Agreement or the
application thereof to any circumstance is so suspended, the suspension
shall not affect other provisions of this Agreement which can be given
effect without the suspended provision. To this end the provisions of this
Agreement are severable.
3.2 Release And Realignment Of Easements. City hereby releases all eXlstmg
easements it has affecting the Real Estate. Since the location of the replacement
easements are not able to be agreed upon as of the date hereof(i.e., City has yet to
determine where such easements should be located), the parties shall in good faith
mutually determine, for no additional consideration, the location of the replacement
easements needed by City as soon as commercially reasonable taking into account
Developer's timeline and plans for improving the Project.
3.3 Acquisition Bv City Of Bee Branch Real Estate.
(1) From the date hereof until November 30,2006, the City and Developer shall
explore the possibility of locating the Bee Branch storm sewer
approximately in line with Sycamore Street (the "Alternate Location").
During such time, Developer shall explore the cost-feasibility of covering
the Bee Branch storm sewer ifthe Alternate Location is used. If the parties
mutually agree to the Alternate Location, Developer shall be responsible for
the cost of covering the Bee Branch if the total costs for the Alternate
Location exceed what the City would have spent locating the Bee Branch
storm sewer on the Bee Branch Real Estate (i.e. the incremental
construction cost increase associated with covering the Bee Branch over and
above the City's construction cost which the City would incur constructing
the Bee Branch on the Bee Branch Real Estate). If the Alternate Location
is so used and covered up at Developer's expense, the parties shall plat the
Alternate Location as an easement in favor of the City and Developer shall
retain the surface rights to the Alternate Location for use as parking,
roadways, landscaping and the like. Ifthe parties do not mutually agree on
use of the Alternate Location by November 30, 2006, the City shall acquire
the Bee Branch Real Estate from Developer as provided in section 3.3(2)
below and the Bee Branch storm sewer shall be located on said Bee Branch
Real Estate.
(2) City shall acquire the Bee Branch Real Estate from Developer upon the
terms, covenants, and conditions set out in that certain Offer to Buy Real
Estate and Acceptance attached hereto as Exhibit "D" and by this reference
made a part hereof on the Closing Date which shall be on or before July 3,
2006, or such other date thereafter as the parties may mutually agree. City
shall complete the relocation and construction of the Bee Branch storm
sewer system (the "Bee Branch Improvements") by December 31, 2009. No
separate consideration shall be payable by the City for the Bee Branch Real
Estate so long as Developer timely receives the Economic Development
Grants described in Section 3.1. In the event that City fails to create the TIF
Project Account(s) described in Section 3.1 or in the event of any
suspension or termination of the Economic Development Grants by the City
prior to the full payment thereof or in the event the City fails to appropriate
funds for the Economic Development Grants as provided in Section 3.1 (9),
the City shall pay to the Developer, as consideration for the City's
acquisition of the Bee Branch Real Estate, an amount equal to the Fair
Market Value ofthe Bee Branch Real Estate as of December 31, 2009, less
the aggregate amount of the Economic Development Grants received by the
Developer under Section 3.1; provided, however, that no such separate
consideration shall be payable by the City to the Developer for the Bee
Branch Real Estate if the failure to pay the Economic Development Grants
is a result of an Event of Default under Section 5.1 hereof. "Fair Market
Value" for purposes hereof shall be determined by agreement of the parties,
or, if there is no agreement of the parties within twenty (20) days of
commencing such discussion, each side shall select an appraiser at its
expense, and the two appraisers shall thereupon select a third appraiser, the
cost of whom shall be shared equally by the parties, and the majority of the
appraisers shall decide such Fair Market Value. If City fails to so complete
the Bee Branch Improvements by December 31,2009, then Developer's
rights to receive Economic Development Grants (as provided in Section
3.1(2)) shall automatically be extended as follows: the ten (10) year
limitation on the TIF Project Account(s) as described in Section 3.1 shall
automatically be extended by a period of time equal to two (2) calendar
days for every calendar day beyond December 31, 2009, that the Bee
Branch Improvements remain uncompleted (hereinafter the "Extension
Period"). Developer shall continue to receive Economic Development
Grants as provided in Section 3.1 in an amount equal to the actual amount
of tax increment revenues collected by the City during the Extension Period
in respect of the applicable Minimum Improvements. Such tax increment
revenues collected during the Extension Period shall be paid to Developer
as Economic Development Grants in the manner provided in Section 3.1.
The time frame for the performance of this obligation 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,
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 or state government which directly result in
extraordinary delays. The time for performance of such obligations shall be
extended only for the period of such delay.
3.4 Developer's OPtion To Acquire City Real Estate. City grants to Developer an
exclusive option to acquire the City Real Estate from City upon the terms,
covenants, and conditions set out in that certain Option Agreement attached hereto
as Exhibit "E" and by this reference made a part hereof; provided, however, that the
parties acknowledge that Developer's option to acquire the City Real Estate is
limited to that portion ofthe City Real Estate that is to the north ofthe Bee Branch
storm sewer system. The parties acknowledge that the City Real Estate as finally
determined and conveyed to Developer shall be approximately 2 acres, more or less.
City agrees that Developer may add the City Real Estate to Developer's Real Estate
eligible for Tax Increment Payments pursuant to Section 3.1 above once Developer
acquires title thereto. If Developer acquires the City Real Estate, Developer shall
record an environmental covenant in the form approved by the Iowa Department of
Natural Resources which will prohibit use of the City Real Estate for residential
purposes and will also prohibit the operation of any water wells on the City Real
Estate.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Job Creation. During the term of this Agreement, Developer shall make best efforts
to create and maintain employment opportunities for local citizens as a result of the
completion ofthe Minimum Improvements and development of the Real Estate.
4.2 Books and Records. During the term of this Agreement, Developer shall keep at all
times proper books of record and account in which full, true and correct entries will
be made of all dealings and transactions of or in relation to the business and affairs
of Developer in accordance with generally accepted accounting principles
consistently applied throughout the period involved, and Developer shall provide
reasonable protection against loss or damage to such books of record and account.
4.3 Real Progertv Taxes. From and after the Effective Date, Developer shall payor
cause to be paid, when due, all real property taxes and assessments payable with
respect to all and any parts of the Real Estate owned by Developer unless
Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.4 Preservation of Propertv. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements on the Real Estate owned by Developer in good repair and
working order, ordinary wear and tear accepted, and from time to time shall make
all necessary repairs, replacements, renewals and additions. 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 Real Estate.
4.5 Non-Discrimination. In carrying out the Project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color,
sex, sexual orientation, national origin, age or disability.
4.6 Conflict ofInterest. 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.
4.7 [Intentionally left blank]
4.8 Restrictions on Use. Developer agrees for itself, and its successors and assigns, and
every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (however, Developer shall not have
any liability to City to the extent that a successor in interest shall breach this
covenant and City shall seek enforcement of this covenant directly against
the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party
in breach of same).
4.9 [Intentionally left blank]
4.10 Comoliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to
comply with which or the sanctions and penalties resulting therefrom, would not
have a material adverse effect on the business, property, operations, financial or
otherwise, of Developer.
4.11 Design Standards for Certain Uses. Prior to the commencement of construction of
any grocery store, supermarket, wholesale club operation, or general merchandise
retailer or any other "big box" retail building containing more than 100,000 square
feet, Developer shall submit for review by the City Council plans for construction.
Developer shall not commence any such construction unless the City Council
determines that the plan complies with the following standards:
(1) Aesthetic and visual characteristics.
(i) Facades and exterior walls including sides and backs. The building shall
be designed in a way that will reduce the massive scale and uniform and
impersonal appearance and will provide visual interest consistent with the
community's identity, character, and scale.
Long building walls of at least one hundred (100) feet shall be broken up
with projections or recessions of sufficient depth not less than five (5) feet
along all sides, and in sufficient number, to reduce the unbroken massing
into lengths of approximately twenty-five (25) feet or less along all sides of
the building. Projections from the facade can be used as an alternate
approach. Along the front fa9ade, the building design shall include
windows, arcades, awnings, projecting canopies, covered walkways,
porticos, or other acceptable features along at least sixty (60%) percent of
the building length, and, except for entrances to the building, the remainder
of the front fa9ade of the building, if any, a fa9ade higher than eleven (11)
feet shall give the visual exterior appearance of having more than one floor
for each additional eleven (11) feet in height, i.e., a twenty-two (22) foot
high building shall give the appearance of a two-story building.
Arcades and other weather protection features shall be of sufficient depth
and height to provide a light-filled and open space along the building
frontage. Architectural treatment, similar to that provided to the front facade
shall be provided to the sides and rear of the building to mitigate any
negative view from any location off-site and any public area (e.g. parking
lots, walkways, etc.) on site.
(ii) Detail features. The building shall include architectural features that
contribute to visual interest at the pedestrian scale and reduce the massive
aesthetic effect by breaking up the building wall, front, side, or rear, with
color, texture change, wall offsets, reveals, or projecting ribs.
(iii) Roofs. The roof design shall provide variations in rooflines and add
interest to, and reduce the massive scale of, large buildings. Roof features
shall complement the architectural and visual character of adjoining
neighborhoods. Roofs shall include two (2) or more roof planes. Parapet
walls shall be architecturally treated to avoid a plain, monotonous look.
(iv) Materials and color. The buildings shall have exterior building
materials and colors that are aesthetically pleasing and compatible with
materials and colors that are used in adjoining neighborhoods. This includes
the use of high-quality materials and colors that are low reflective, subtle,
neutral, or earth tone. Certain types of colors shall be avoided such as
fluorescent or metallic although brighter colors in limited quantities as
building trims and as accents may be considered at the discretion of the City
Council. Construction materials such as tilt-up concrete, smooth-faced
concrete block, prefabricated steel panels, and other similar materials shall
be avoided unless the exterior surface is covered with an acceptable
architectural treatment. Not less than seventy-five (75) percent ofthe front
of the building and fifty (50) percent ofthe sides and rear of the building
shall be brick or stone.
(v) Entryways. The building design shall provide design elements which
clearly indicate to customers where the entrances are located and which add
aesthetically pleasing character to buildings by providing highly-visible
customer entrances.
(vi) Screening of mechanical equipment. Mechanical equipment shall be
screened to mitigate noise and views in all directions. If roof-mounted, the
screen shall be designed to conform architecturally to the design of the
building either with varying roof planes or with parapet walls. A wood
fence or similar treatment is not acceptable.
(vii) Parking lots. Parking lots fronting on 16th Street shall be set back 12
feet from the right-of-way and eight (8) feet from internal drives measured
from the edge of the paving. A landscaped buffer strip at least twelve (12)
feet wide shall be provided between all surface parking areas and the
sidewalk or street. The buffer strip shall consist of shade trees, low shrubs
and/or perennial flowers (3 feet in height max.), and a decorative metal
fence no more than 4 feet high supported between decorative masonry
columns. Landscaped earth berms are not permitted and shall not substitute
for the landscape screening described above. Use ofbiofiltration methods
of landscape and drainage are encouraged.
A landscape buffer at least twelve (12) feet wide shall be provided along the
rear and sides of all surface parking lots. The area shall be planted with
shade trees, coniferous trees, and a continuous 4-foot tall shrub border or
hedge of deciduous and/or evergreen shrubs.
Parking bays in excess of eleven (11) spaces in length shall be divided by
intermediate landscaped islands at intervals of 11 spaces. For single parking
bays, landscaped islands shall provide at least one parking space of
landscape area (9 x 18 feet) and shall be planted with one ornamental/dwarf
tree, low shrubs, perennial flowers and/or ground cover/ornamental grasses
(3 feet in height max.).
For double parking bays, both the end landscaped islands and the
intermediate landscaped islands shall provide a double parking space of
landscape area (9 x 36 feet) and shall be planted with one shade tree or two
ornamental/dwarf trees, low shrubs, perennial flowers and/or ground
cover/ornamental grasses (3 feet in height max.).
All parking lot landscaping shall comply with City standards, be mulched
to a depth of 4 inches with high quality, finely shredded mulch and shall be
watered by an automatic, underground irrigation system.
Developer shall not allow overnight parking of recreational vehicles in
parking lots.
(viii) Employee parking. If permitted by Ordinance No. 22-05 (the PUD
Ordinance), Developer shall provide for employee parking which shall only
be allowed behind the building and shall only be accessible from Kerper
Court and Developer shall require that employees shall be required to
parking in the employee parking areas.
(ix) Amenities. The building site shall include at least one public gathering
space, such as a patio seating area, pedestrian plaza with benches, outdoor
play area, and not less than two public space amenities, such as kiosks, a
water feature, a clock tower, or a landscaped site for a Port of Dubuque Art
on the River sculpture. Pedestrian public space shall be shaded, landscaped,
and screened.
(x) Sales and display areas. No area outside of the building may be used for
the sales or display of merchandise unless such area is permanently
constructed with the same materials and is of the same design as the
building.
(xi) Sidewalks, walkways, entrances and gathering areas. Sidewalks in front
of and adjacent to the building shall be not less than ten (10) feet wide and
shall connect with sidewalks not less than five (5) feet wide which connect
to public sidewalks and adjoining retail buildings. Sidewalks shall be
concrete with a broom finish. Walkways, entrances, and gathering areas
shall have shade features such as trees or other landscaping, trellis
structures, projecting canopies, covered arcades and porticos.
(xii) Transit facilities. The building site shall include a bus and paratransit
stop/transfer point at a location adjacent to the building as approved by the
City Manager with a shelter that is consistent in design and construction
with the building. It shall be within the sole discretion ofthe City Manager
whether it is used as a bus and paratransit stop and/or transfer point.
(xiii) Bicycle paths and parking. The building site shall include bicycle
paths connected to the City's planned and existing bike trail system. Unless
the paths are exclusively for bicycle use, they shall be appropriate marked
with painted lanes. The building site shall include sheltered bicycle parking
areas near the entrance to the building.
(2) Any conflict between these standards and the PUD Ordinance shall be
resolved in favor of the stricter standard.
SECTION S. 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, anyone or more of the following events:
(I) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Real Estate owned by Developer
and any Minimum Improvements owned by Developer.
(2) Failure by Developer to cause the Initial Improvements to be commenced
and completed pursuant to the terms, conditions and limitations of this
Agreement subject to Section 2.2 hereof.
(3) Failure by Developer 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 bv Developer. Whenever any Event of Default referred to
in Section 5.1 of this Agreement occurs and is continuing, City, as specified
below, may take anyone or more of the following actions after the giving of
written notice by City to Developer (and the holder of any mortgage
encumbering any interest in the Property of which City has been notified of in
writing) of the Event of Default, but only ifthe Event of Default has not been
cured within thirty (30) days following such notice, or if the Event of Default
cannot be cured within thirty (30) days and Developer does not provide
assurances to City that the Event of Default will be cured as soon as reasonably
possible thereafter:
(I) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the
Developer will cure its default and continue its performance under this
Agreement;
(2) City may cancel and rescind this Agreement;
(3) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of
any obligation, agreement, or covenant under this Agreement.
5.3 No Remedv Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right or power
accruing upon any 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.
5.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
5.5 [Intentionally Left Blank.]
5.6 Limited Remedv. Notwithstanding anything to the contrary contained in this
Agreement, ifthere is a Prohibited Use upon any parcel of the Real Estate, the
City's sole remedy with respect to such Prohibited Use shall be that the City may
exclude such parcel of real estate from the calculation of the Economic
Development Grants as provided in Section 3.1 (4) and (5).
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 Develover:
Hwy 151 & 61 Development, LLC
Attn: Brian J. Kane
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, Iowa 52001
Phone: (563) 582-7980
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
or at such other address with respect to either party as that party may, from time
to time designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
6.3 Termination Date. Except as otherwise extended pursuant to Section 3.3, this
Agreement and the rights and obligations of the parties hereunder shall terminate
on December 31, 2024 ("the Termination Date").
6.4 Execution Bv Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile machine. The parties intend that the
faxed signatures constitute original signatures and that a faxed Agreement
containing the signatures (original or faxed) of all the parties is binding on the
parties.
6.5 Memorandum of Agreement. The parties shall execute and deliver for recording
with the Dubuque County Recorder, a Memorandum of Agreement providing
that the Real Estate is subj ect to this Agreement.
6.6 Developer Cooperation. The City is contemplating the construction of a railroad
overpass near 16th Street and the southwest comer of the Real Estate. Developer
agrees to cooperate with City in this regard, provided that such cooperation shall
not require Developer to incur any out-of-pocket expenses nor require the
relinquishment of any of Developer's property rights without fair compensation.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused this
Agreement to be duly executed on or as ofthe first above written.
CITY OF DUBUQUE, IOWA
By: Roy D. Buol, Mayor
By: Jeanne F. Schneider, City Clerk
HWY 151 & 61 DEVELOPMENT, LLC
By:
, Managing Member
F:\WPDOCS\Sandy\Brad\Hwy 151 City Development Agreement-5-11 ~06 Final. wpd
EXHIBIT "A"
Lots 1 and 2 of the north half of lot 292, the south half of lot 292, lots 293,294,295,
296,297,298, lot 1 oflot 299,
lot 1 of lot 1 of lots 300 and 301, lot 300A, lot 300B, lot 300C;
that portion of vacated Maple Street, lying between the north curb line of East 16th
Street to the south curb line of East 17th Street;
lot 2 oflot 1 oflot 304, lot 1 oflot 2 oflot 305, lot 1 oflot "B" oflot 1 oflot 305;
lot 2 oflot 1 of Vacated Maple Street north of 18th Street;
lots 306, 307,308,309,310, lots 1 and 2 oflot 311, lots 312, 313, 314, 315,
the vacated "unvacated portion of Sycamore Street situated north of the north side of
16th Street running northerly to the south side of the vacated portion of East 19th
Street";
in East Dubuque No.2, in the City of Dubuque, Iowa,
Lot 316, lot 2 oflot 354, lot 355, in East Dubuque No.2, in the City of Dubuque, Iowa,
Lots A, B and C, of Dubuque Packing Company Addition, in the City of Dubuque,
Iowa,
Lot 2 oflot 3, lot 1 oflot 1 oflot 4, and, lot 2 oflot 5, in Block 2, in Railroad Addition,
in the City of Dubuque, Iowa,
Lot 2 of "Vacated East Nineteenth Street between East line of Mineral Lot 1 06 and west
line of Original Sycamore Street extended", in the City of Dubuque, Iowa,
Lot "A" of Mineral Lot 106 (according to the Correction Plat recorded as Instrument
No. 8861-77), in the City of Dubuque, Iowa,
Lot 1, in Block 3, in Dubuque Packing Company Addition, in the City of Dubuque,
Iowa,
according to the respective recorded Plats thereof,
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Barry A. Lindahl, Esq.
Corporation Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001~6944
(563) 583-4113 office
(563) 583-1040 fax
balesq@cityofdubuque.org
THE CITY OF I/;'---:-'.:~"\
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May 19, 2005
.,-
Brian Kane, Esq.
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001
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RE: Hwy 151 and 61 Development, LLC
Dear Brian:
Enclosed is a draft of an exhibit to the Development Agreement showing the City
property and the LLC property that will be exchanged. Let me know if you think this
works.
,
B ry A. Lindahl, Esq.
C rporation Counsel
BAL:tls
Enclosure
S~rvice
People
Integrity
R~sponsibility
Innovation
Teamwork
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5 T.
RESOLUTION NO. -96
RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL
PROPERTY BY THE CITY OF DUBUQUE, IOWA.
Whereas, FDL Foods, Inc., an Iowa corporation, is the owner of
the following-described real estate located in the city of Dubuque,
Dubuque County, Iowa, hereinafter referred to as the Parking Lot:
Two parts of Lot 1 of Block 2, Dubuque Packing company
Addition, one containing 2.76 acres, and the other containing
0.72 acres; Lots 444, 445, 446, 472 and 473; and those parts
of Lots 447, 448 and 471 in East Dubuque No.2 not used for
Highway #61 right-of-way; all as shown on the Survey Plat
marked Detail "A" attached hereto and made a part hereof by
reference; together with and subject to easements and
agreements of record, and all located in the city of Dubuque,
DUbuque County, Iowa; and
WHEREAS, FDL Foods, Inc., has agreed to convey the Parking Lot
to the City of Dubuque in consideration for the sum of One Dollar
($1.00) and other good and valuable considerations; and
WHEREAS, the City of Dubuque intends to lease the Parking Lot
to Farmland Foods, Inc., a Kansas corporation, pursuant to a
proposed Lease, a copy of which is now on file at the office of the
City Clerk.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA;
Section 1.
its interest in
Farmland Foods,
The City of DUbuque, Iowa, intends to dispose
the foregoing-described real property by lease
Inc.
of
to
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 real property, to be held on
the day of , 1996, at 7:00 o'clock p.m.
at the public library auditorium, 11th & Locust, Dubuque, Iowa.
Passed, approved and adopted this
day of
,
1996.
Attest:
Terrance M. Duggan, Mayor
Mary A. Davis, City Clerk
LG
EXHIBIT "D"
See attached Offer to Buy Real Estate and Acceptance (City acquisition of 3.3 acres,
more or less, of the real estate for realigned Bee Branch storm sewer).
[attacb F:\WPDOCS\Missy\DOCS\City of Dubuque Offer to Buy (Hwy 151 & 6] Development, LLC) (Final) Exhibit D to Development
Agreement.wpd]
OFFER TO BUY REAL ESTATE AND ACCEPTANCE
TO: HWY 151 & 61 DEVELOPMENT, LLC, an Iowa limited liability company (hereafter
"Seller")
The undersigned Buyer hereby offers to purchase certain real estate located in Dubuque
County, Iowa, from the Seller, upon the following terms and conditions:
1. Real Estate Descriotion. Buyer offers to buy real estate in Dubuque County, Iowa,
described as follows:
[Legal description to be inserted later once known.] (Otherwise described as that real
estate depicted on Schedule" A" and highlighted in yellow attached hereto and by this
reference made a part hereof),
hereafter designated the "Real Estate."
2. Consideration. The consideration hereunder shall be as described in the Development
Agreement by and between Seller ad Developer and Buyer as City dated July _,2006, which is
incorporated herein by this reference (hereafter the "Development Agreement").
3. Real Estate Taxes. Buyer shall pay real estate taxes prorated to the date of possession and
any unpaid real estate taxes payable for prior years. Buyer shall pay all subsequent real estate taxes.
Any proration of real estate taxes on the Real Estate shall be based upon such taxes for the year
currently payable.
4. Soecial Assessments. Buyer shall pay all special assessments which are a lien on the Real
Estate as of the date of acceptance of this offer. All other special assessments shall be paid by
Buyer.
5. Risk of Loss and Insurance. Prior to Seller's delivery of possession of the Real Estate to
Buyer, all risk ofloss shall remain with Seller until possession ofthe Real Estate shall be delivered
to Buyer.
6. Care and Maintenance. The Real Estate shall be delivered in "as is" condition.
7. Possession. Contingent upon section 3.3(1) of the Development Agreement between
Buyer and Seller (the "Development Agreement"), if Buyer timely performs all obligations
hereunder, possession of the Real Estate shall be delivered to Buyer on or before the 15th day of
December. 200f! (herein sometimes referred to as the "Closing Date"), with any adjustments of rent,
insurance and interest to be made as ofthe date of transfer of possession.
8. Survev. Buyer, at its expense, shall obtain a survey and shall plat/subdivide the Real Estate
at or prior to the Closing Date.
Page 1 of4
9. Use of the Purchase Price. At time of settlement, funds ofthe purchase price may be used
to pay taxes and other liens and to acquire outstanding interests, if any, of others.
10. Abstract of Title. Buyer, at its expense, shall promptly obtain an abstract of title for the
Real Estate continued through a date within thirty (30) days of the closing date for examination. It
shall show merchantable title in Seller in conformity with this agreement, Iowa Law & Title
Standards of the Iowa State Bar Association. The abstract shall remain the property of the Buyer.
Seller shall pay the cost of any additional abstracting and title work due to any act or omission of
Seller.
11. Deed. Upon payment of the purchase price, Seller shall convey the Real Estate to Buyer
or Buyer's assignee by Warranty Deed free and clear of all liens, restrictions and encumbrances. Any
general warranties of title shall extend only to the time of acceptance of this Offer, with special
warranties as to acts of Seller continuing up to time of delivery of the Deed.
12. Time is of the Essence. Time is of the essence in this contract.
13. Remedies ofthe Parties
(a) If Buyer fails to timely perform this contract, or if any of Seller's conditions herein are
not satisfied at or prior to closing (or such other date or time as indicated in writing herein) Seller
may forfeit it as provided by Iowa Code Chapter 656 (2005) and all payments made shall be forfeited
or, at Seller's option, upon thirty (30) days written notice of intention to accelerate the payment of
the entire balance because of such failure (during which thirty (30) days such failure is not corrected)
Seller may declare the entire balance immediately due and payable. Thereafter this contract may be
foreclosed in equity and the Court may appoint a receiver.
(b) If Seller fails to timely perform this contract, or if any of Buyer's conditions herein are
not satisfied at or prior to closing (or such other date or time as indicated in writing herein), Buyer
shall not be required to close hereunder and Buyer has the right to all payments made returned to
Buyer. (See Section 2(a) above).
(c) Buyer and Seller also are entitled to utilize any and all other remedies or actions at law
or in equity available to them and shall be entitled to obtain judgment for costs and attorney's fees
as permitted by law.
14. Contract Binding on Successors in Interest. This contract shall apply to and bind the
successors in interest of the parties.
15. Construction. Words and phrases shall be construed as in the singular or plural number
and as masculine, feminine or neuter gender, according to the context.
16. Groundwater Hazards. Seller represents and warrants to Buyer that it has knowledge
of the presence in or beneath the Real Estate of solid waste, radioactive waste, hazardous waste,
hazardous substances, underground storage tanks, wells or other conditions which may lead to
groundwater contamination, including those substances defined to be hazardous in 42 U.S. Code
Page 2 of 4
Section 9601, et seq. and Iowa Code Chapter 455B (2005) or any other federal or state or 10ca11aw
with respect to groundwater hazards, pursuant to all environmental engineering reports and related
documents obtained by Seller (copies of which are available to Buyer) which are incorporated herein
by this reference.
17. Alternate Location. If the parties mutually agree to the "Alternate Location" as described
in section 3 .3( 1) fo the Development Agreement, this Offer to Buy Real Estate and Acceptance shall
automatically terminate and be of no further force and effect.
DATED JULY
,2006.
THE CITY OF DUBUQUE, row A,
an Iowa municipal corporation, Buyer
By its authorized representative
THIS OFFER rs ACCEPTED JULY _, 2006.
HWY151 &61 DEVELOPMENT, LLC, Seller
By its authorized representative
Page 3 of 4
SCHEDULE "A" TO
OFFER TO BUY REAL ESTATE AND ACCEPTANCE
(See attached drawing.)
Page 4 of 4
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EXHIBIT "E"
See attached.
[attach F:\WPDOCS\MissyIDOCSlHwy 151 & 61 Development LLC (City of Dubuque) Option Agreement (Final) Exhibit E to Development Agr
Prepared by: Brian J. Kane, KANE, NORBY & REDDICK, P.c., 2100 Asbury Rd., Ste. 2, Dubuque, IA 52001563-582-7980
OPTION AGREEMENT
For valuable consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, THE CITY OF DUBUQUE, IOWA (hereafter "Grantor"), hereby grants to Hwy 151
& 61 Development, LLC, an Iowa limited liability company, or its assignee (hereafter "Grantee"),
an exclusive option to purchase the real estate legally described as follows:
See legal description attached hereto as Exhibit "A" and made a part hereof(hereafter
the "City Real Estate").
Grantor hereby grants to Grantee an exclusive option to purchase the above-described
property as provided in that certain Development Agreement wherein the Grantor is the City and the
Grantee is the Developer dated July _, 2006, incorporated herein by this reference (the
"Development Agreement").
The total option purchase price shall be $1.00.
Grantor shall produce marketable title to the City Real Estate pursuant to the Iowa Land Title
Standards prior to or at the closing of the purchase described above.
Grantee shall exercise this option, if at all, by giving written notice of such intent to exercise
this option during the period commencing July _, 2006 and ending on the 30th day of June,
2011. Notice shall be given as provided in the Development Agreement.
Grantor, at its expense, shall promptly continue and pay for the abstract oftitle to the above-
described property continued through a date not more than thirty (30) days prior to the closing date
stated in the notice ofthe exercise of the option. Such abstract shall show merchantable title in the
Grantor in conformity with this agreement, Iowa law and title standards of the Iowa State Bar
Association. The abstract shall become the property ofthe Grantee when the purchase price is paid
in full. Grantor shall pay costs of additional abstracting or title work due to acts or omissions of the
Grantor.
Upon payment of the purchase price of$I.OO, Grantor shall convey the City Real Estate to
Grantee or its assignees, by Warranty Deed, free and clear of all liens, restrictions and encumbrances.
Page I of4
This option shall terminate if notice of the exercise thereof is not given pursuant to this
Agreement and the Development Agreement on or before the 30th day of June, 2011.
This contract shall apply to and bind personal representatives, successors in interest and
permitted assigns of the parties. This option shall be governed by and construed in accordance with
the laws ofthe State ofIowa.
Notwithstanding any other provision herein to the contrary, Grantor shall, prior to the closing,
either provide a "No Further Action" certificate with regard to the City Real Estate from the Iowa
Department of Natural Resources or alternatively shall agree to indemnify, defend, and hold
harmless Grantee from any and all environmental liabilities related to or arising out ofthe property
for environmental conditions which exist as of and prior to the closing date. "Environmental
Conditions" for this purpose shall mean any presence in or beneath the City Real Estate of solid
waste, radioactive waste, hazardous waste, hazardous substances, underground storage tanks, wells,
or other conditions which may lead to groundwater contamination, including those substances
defined to be hazardous in 42 U.S. Code Section 9601, at Sec. and Iowa Code Chapter 455B (2005)
or any other federal, state, or local law with respect to groundwater hazards, pursuant to all
environmental hazards. If City fails to so obtain a No Further Action certificate from the Iowa
Department of Natural Resources City shall indemnify, defend, and hold harmless Grantee.
DATED THIS
DAY OF
,2006.
CITY OF DUBUQUE, IOWA
HWY 151 & 61 DEVELOPMENT, LLC
By: Roy D. Buol, Mayor
By: Wayne A. Briggs, President
By: Jeanne F. Scheneider, City Clerk
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this _ day of , 2006, before me, , a Notary
Public in and for the State ofIowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to me
personally known, and, who, being by me duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the foregoing instrument
is the corporate seal of the city, and that the instrument was signed and sealed on behalf of the city,
and that they acknowledged the execution of the instrument to be their voluntary act and deed and
the voluntary act and deed ofthe corporation, by it voluntarily executed.
Page 2 of 4
NOTARY PUBLIC IN AND
FOR THE STATE OF IOWA
STATE OF IOWA )
DUBUQUE COUNTY ) ss:
This instrument was acknowledged before me on the day of
2006, by WAYNE A. BRIGGS as ofHwy 151 & 6 I Development, LLC.
NOTARY PUBLIC IN AND
FOR THE STATE OF IOWA
F:\WPDOCS\Missy\DOCS\Hwy 151 & 61 Development LLC (City of Dubuque) Option Agreement (Final) Exhibit E to Development AgreementCLEAN.wpd
Page 3 of 4
EXHIBIT A
A part of Lot 1 of
Company Addition,
2.76 acres as shown
Block 2, Dubuque Packing
containing approximately
on the attachment hereto.
Page 4 of 4
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