Theisen Supply Develop Agree Dbq Ind. Ctr West
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MEMORANDUM
June 14, 2006
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
Economic Development Director Dave Heiar is recommending execution of a
Development Agreement with Theisen Supply, Inc. The key elements of the agreement
are:
· Chavenelle Warehouse Development, LLC will acquire 16.749 acres of property in
Dubuque Industrial Center West, of which only 15.447 is useable.
· They will construct a building of not less than 110,000 square feet, costing not less
than $4 million.
· The acquisition cost is $78,500 per acre for the 15.447 useable acres, with a 50%
acquisition grant reducing the cost by $39,250 per acre.
· Approximately 2.47 acres of this site is identified for future expansion, and if this
expansion does not occur, the price of the 2.47 acres will increase to the full value.
· Theisen Supply, Inc. must retain 48 FTE positions and create 10 new full-time
equivalent employees within four years, and retain all 58 positions for an additional
six years.
· The company will receive an up-front economic development Tax Increment
Financing grant estimated at $731,000, with the bank note to be retired from the
company's property tax payments.
· Failure to maintain the 58 positions for each of the final six years will result in a pro-
rated pay back of the TI F funds on an annual basis.
. Failure to maintain the 58 positions at the end of the ten year agreement will require
a pro-rated repayment of the acquisition grant.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
/litv1 (;:1rIJL
Micnael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
CITY OF DUBUQUE, IOWA
MEMORANDUM
June 13, 2006
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Directorrt) JtI
SUBJECT: Expansion of Theisen Supply, Inc. at the Dubuque Industrial Center
West
INTRODUCTION
This memorandum presents for City Council consideration a Resolution approving
disposition of approximately 16.749 acres identified on the attached exhibit to
Chavenelle Warehouse Development, LLC, who will be constructing a 110,000 square
foot warehouse/office complex for Theisen's Supply, Inc.
BACKGROUND
On June 5, the City Council was presented with the attached memorandum
recommending that a public hearing be set for June 19 on the proposed disposition of
the above described property to Chavenelle Warehouse Development, LLC to facilitate
the construction of a 110,000 square foot office and distribution center for Theisen
Supply, Inc. The council received the memorandum and set the matter for hearing.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
the expansion. An Acquisition Grant reduces the asking price of the land from
$78,500/acre to $39,250/acre. Due to the terrain of the proposed site, only 15.447 acres
of the total 16. 749 acre site are buildable. Theisen Supply, Inc. will not be charged for
the 1.302 acres of non-buildable area.
In addition, the site includes approximately 2.47 acres intended for future expansion. 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 a new warehouse/office complex with a
minimum assessed value for taxation purposes of not less than $4,000,000. The tax
revenue stream from that assessment will support the $731,000 borrowing over a ten
year period. The company has worked with a local bank to purchase the TIF bond.
The attached Development Agreement establishes the terms of the sale of the property
to Chavenelle Warehouse Development, LLC and Theisens Supply, Inc. The key
elements of the agreement include the following:
1) The purchase price is $78,500 per acre for 15.447 acres. The site includes 1.302
acres of non-buildable area which will not be charged to the developer. An
Acquisition Grant to the developer reduces the cost to $39,250 per acre. Failure
to maintain the 58 positions at the end of the 10 year term of this agreement will
require a pro-rated repayment of this acquisition grant. Approximately 2.47 acres
of this site is identified for future expansion. If such expansion does not occur, a
portion of this acquisition grant will need to be repaid to the City.
2) The property will be conveyed on or before July 28, 2006.
3) The company must construct a building of not less than 110,000 square feet
costing not less than $4,000,000.
4) After the building is constructed, Chavenelle Warehouse Development LLC will
trade this property with Theisen Supply, Inc. for their current warehouse/office
complex at 4949 Chavenelle Rd.
5) Theisen Supply, Inc. must retain 48 FTE positions and create 10 new full-time
equivalent jobs within four years. The 58 jobs must be retained for 6 additional
years after the initial 48 months.
6) The company will receive an upfront economic development TIF grant estimated
at $731,000. This grant will be funded by a bank note which will be repaid over
10 years by the incremental property taxes associated with this project. This
grant will be tied to the creation and maintenance of 58 full time positions over
this 10 year time frame. Failure to maintain and create the new positions requires
a pro-rated payback of this TIF grant.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council approve the disposition of the Dubuque Industrial
Center West property to Chavenelle Warehouse Development, LLC for the purpose of
constructing a 110,000 sq. ft. warehouse/office and trading the property with Theisen
Supply, Inc. 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.
F:IUSERSIDHeiarlTheisen'sICouncil memo to MVM 6-12-06.doc
RESOLUTION NO.
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT
PROVIDING FOR THE SALE OF LOT 1 OF LOT 2 DUBUQUE
INDUSTRIAL CENTER WEST 5TH ADDITION IN THE CITY OF
DUBUQUE, IOWA, TO THEISEN SUPPLY, INC. AND CHAVENELLE
WAREHOUSE DEVELOPMENT, LLC.
Whereas, the City Council, by Resolution No. 213-06, dated June 5, 2006,
declared its intent to enter into a Development Agreement with Theisen Supply, Inc. and
Chavenelle Warehouse Development, LLC for the sale of Lot 1 of Lot 2 Dubuque
Industrial Center West 5th Addition (the Property); and
Whereas, pursuant to published notice, a public hearing was held on the
proposed disposition on June 19, 2006 at 6:30 p.m. at the Carnegie-Stout Public Library
Auditorium, 360 W. 11 th Street, Dubuque, Iowa.; and
Whereas, it is the determination of the Council that approval of the Development
Agreement for the sale to and development of the Property by Theisen Supply, Inc. and
Chavenelle Warehouse Development, LLC according to the terms and conditions set
out in the Development Agreement is in the public interest of the City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and among the City
of Dubuque and Theisen Supply, Inc. and Chavenelle Warehouse Development, LLC
for the sale of the Property is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City and City Clerk is authorized and directed
to attest to his signature.
Section 3. That the Mayor and City Clerk are hereby authorized and directed
to execute and deliver a Special Warranty Deed for the Property as provided in the
Development Agreement.
Section 4. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Development Agreement as herein approved.
Passed, approved and adopted this 19th day of June, 2006.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
F:\USERS\DHeiar\Theisen's\Theisen Supply final disposition res.doc
o .
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
CHAVENELLE WAREHOUSE DEVELOPMENT, LLC,
AND
THEISEN SUPPLY, INC.
This Agreement, dated for reference purposes the _ day of June, 2006,
by 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 (Urban Renewal Act), Chavenelle Warehouse Development,
LLC, an Iowa limited liability company with its principal place of business at
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, (as amended, attached hereto as
Exhibit A) (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement and in the form attached hereto, has been recorded among the land
records in the office of the Recorder of Dubuque County, Iowa; and
WHEREAS, Employer has determined that it requires a new corporate office
and distribution facility which Employer represents is the home office for a
multistate business as provided in Iowa Code 9 403.8(2) to maintain and expand its
operations and employment in the Project Area; and
WHEREAS, Developer and Leo A. Theisen (Theisen) have entered into an
agreement for the construction of a corporate office/industrial facility; and
WHEREAS, Developer has requested that City sell to Developer 16.749
acres of which 15.447 acres are usable, legally described as Lot 1 of 2, Dubuque
Industrial Center West 5th Addition identified on Exhibit S, attached, in the City of
Dubuque, Dubuque County, Iowa, together with all easements, tenements,
hereditaments, and appurtenances belonging thereto (the Property)(the parties
agree to amend Exhibit B upon determination of the exact location and extent of the
Property and legal description), so that Developer may develop the Property,
located in the Project Area for the construction of a corporate office/industrial facility
and thereafter sell such property to Employer for use and occupancy with
appurtenant uses which City has determined and represented to Developer and
Employer 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 Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The purchase price for the Property (the Purchase Price)
shall be the sum of One Million Two Hundred Twelve Thousand, Five Hundred
Eighty-Nine and 50/100 Dollars ($1,212,589.50) (seventy eight thousand five
hundred Dollars ($78,500.00) per usable acre for 15.447 net usable acres) with a
total acquisition of 16.749, which shall be due and payable by Developer in
immediately available funds in favor of City, on or before July 28, 2006, or on such
other date as the parties may mutually agree (the Closing Date).
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions
and covenants of record as of the Closing Date hereof to the extent not 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 an
abstract of title to the Property continued through the date of this Agreement
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
Property, and such abstract shall become the property of Developer when
the Purchase Price is paid in full in the aforesaid manner.
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(2) Developer shall have until time of 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
or Employer'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 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 Riahts of Insoection. Testina and Review. Developer and/or Employer, their
counsel, accountants, agents and other representatives, shall have full and
continuing access to the Property and all parts thereof, upon reasonable notice to
City. Developer and/or Employer and their agent and representatives shall also
have the right to enter upon Property at any time after the execution and delivery
hereof for any purpose whatsoever, including, but not limited to, inspecting,
surveying, engineering, test boring, and performing environmental tests, provided
that Developer and Employer 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 or Employer, their agents, or representatives upon the
Property (except for any damage, claim, liability or cause of action arising from
conditions existing prior to any such entry upon the Property), and shall have the
further right to make such inquiries of governmental agencies and utility companies,
etc. and to make such feasibility studies and analyses as they consider appropriate.
1.4 Reoresentations and Warranties of Citv. In order to induce Developer and
Employer to enter into this Agreement and purchase the Property, City hereby
represents and warrants to Developer and to Employer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer or Employer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
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(2) No ordinance or hearing is now or before any local governmental
body that either contemplates or authorizes any public improvements or
special tax levies, the cost of which may be assessed against the Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re-align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer 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 Property of which it has actual notice. The Property is in
material compliance with all applicable zoning, fire, building, and health
statutes, ordinances, and regulations. The Property is currently zoned PUD
and Employer's intended use of the Property as a corporate office/industrial
facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
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injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer at time of closing confirming the representation contained herein,
in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property, 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 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 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 Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
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effect as if such representations and warranties had been made on and as of
the Closing Date.
1.5 Conditions to Closinq. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer and Employer 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 to that effect in the form of Exhibit I.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Employer, in its sole and absolute discretion, having approved of any
improvements by Developer hereunder.
(4) Subject to Employer's written approval, Developer having obtained
any and all necessary governmental approvals, including without limitations
approval of zoning, subdivision or platting which might be necessary or
desirable in connection with the sale, transfer and development of the
Property. Any conditions imposed as a part of the zoning, platting or
subdivision must be satisfactory to Developer and Employer respectively, in
their 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 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
Property by Developer or Employer, and the construction, use and
occupancy of the project with the intent and understanding that Developer,
Employer, and their respective 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 and Employer to
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streamline and facilitate the obtaining of such permits, approvals and
consents.
(5) City, having given all required notices to or obtaining prior approval,
consent or permission of any federal, state, municipal or local governmental
agency, body, board or official to the sale of the Property; 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 Developer's financial ability as the reasonable judgment of
the City requires.
(8) Execution of a purchase agreement for the Property between
Developer and Employer.
(9) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(10) Receipt of an opinion of counsel to Employer in the form attached
hereto as Exhibit E.
(11) Developer and Employer shall have the right to terminate this
Agreement at anytime prior to the consummation of the closing on the
Closing Date if either Developer or Employer determines in its sole discretion
that conditions necessary for the successful completion of the Project
contemplated herein have not been satisfied in either 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 ClosinQ. The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Property 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.
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1.7 Citv's Obliqations at Closinq. At or prior to the Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (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 Property 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 Property.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1.8 Deliverv of Purchase Price: Obliqations At Closinq. 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 Closinq 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.
(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.
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(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 payor cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property 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 a corporate officelindustrial facility on the Property for Employer.
Specifically, Developer is charged with constructing the building and certain internal
systems thereto, and with finishing the building 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 to
construct on the Property an office/ warehouse facility of not less than one hundred
ten thousand (110,000) square feet of floor space along with necessary site work
as contemplated in this Agreement at a cost of not less than $2,800,000.00 .
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of Property and the construction of Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the 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 Property. All work with
respect to the Minimum Improvements shall be in substantial conformity with the
Construction Plans approved by City.
2.3 Timina of Improvements. Developer hereby agrees that construction of
Minimum Improvements on the Property shall be commenced within three (3)
months after the Closing Date, and shall be substantially completed by June 30,
2007. The time frames for the performance of these obligations shall be
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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.
Employer acknowledges that 2.45 acres of the Property is intended as an
expansion area. If such expansion area is not developed within ten years from the
date of this Agreement with improvement substantially similar to the Minimum
Improvements, Employer shall pay to City within thirty days of such date the
Acquisition Grant for such part of the expansion area not so improved ($39,250.00
x number of acres not so improved). Such ten-year period shall begin to run on 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 recordable form and shall be a conclusive determination of
the satisfaction and termination of the agreements and covenants in this
Agreement and in the Deed with respect to the obligations of Developer to
construct 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 Riahts. 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 or Employer shall have
the right, but not the obligation, to complete such Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Acauisition 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, or such other date as
the parties shall mutually agree upon in writing, in the amount of Six Hundred Six
Thousand, Two Hundred Ninety-Four and 75/100 Dollars ($606,294.75)(thirty-nine
thousand two hundred and fifty Dollars ($39,250.00) per acre x 15.447 usable
acres). The parties agree that the Acquisition Grant shall be payable in the form of
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a credit favoring Developer at time of Closing with the effect of directly offsetting a
portion of the purchase price obligation of Developer.
3.2 Economic Development Grant. For and in consideration of Developer's and
Employer's commitments as provided herein, City agrees (subject to the conditions
set forth in this Section) to make an Economic Development Grant to Developer on
the Closing Date, or such other date as the parties shall mutually agree upon in
writing ("Funding Date"). The Economic Development Grant shall not exceed
seven hundred thirty-one thousand and no/100 dollars ($ 731 ,000.00)(or such other
amount determined as provided in Section 3.3 hereof) and shall be payable solely
and only from the proceeds of the sale of urban renewal Tax Increment Revenue
bonds or notes by City as described in Section 3.3 hereof, and not from any other
source.
3.3 Issuance of Notes. Employer and Developer acknowledge and agree that
City intends to finance its costs associated with the funding of the Economic
Development Grant to Developer through the issuance of urban renewal Tax
Increment Revenue bonds or notes to be issued by City under the provisions of
Section 403.9 of the Iowa Code, the Urban Renewal Act and this Section (such
obligation being referred to herein as "Notes"). Employer and Developer further
acknowledge and agree that they shall identify for City a purchaser for the Notes
("the Purchaser") and City agrees to negotiate in good faith with the Purchaser with
respect to the terms of the Notes. Employer and Developer further acknowledge
and agree that the Notes shall be sold on such terms and conditions, bear such
interest rates, have such reserve funding requirements, mature at such times and in
such amounts as City, in its sole but reasonable, good faith discretion, shall
determine to be acceptable to it and the Purchaser and shall be payable from and
secured solely and only by a pledge of the ''Tax Increment Revenues" collected by
City in respect of the Property and the Minimum Improvements located thereon
during a period not to exceed ten (10) years. The parties hereto intend that the
Notes to be issued in the maximum amount not to exceed seven hundred thirty-one
thousand and no/100 dollars ($ 731,000.00) plus issuance costs that will be repaid
from the Tax Increment Revenues collected by City in respect of the Property and
the Minimum Improvements during a period of ten (10) years, taking into account
the Purchaser's requirements for debt service coverage and reserve funding.
Proceeds of the Notes shall be applied only to the payment of capitalized interest
thereon (if necessary), debt service reserve funding, costs of issuance and the
payment of the Economic Development Grant. City shall have no obligation to fund
the Economic Development Grant to be paid hereunder from any source other than
the proceeds of the Notes. City's obligation to issue the Notes and undertake its
obligations hereunder shall be subject in all respects to unavoidable delays as
determined in Section 2.3, the provisions of this Section, and to the satisfaction of
all conditions required (in the reasonable judgment of bond counsel for City) by
Chapter 403 of the Code of Iowa, as amended, with respect to the issuance of the
Notes.
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3.4 Limitations on Financial Undertakinas of City. Notwithstanding any other
provisions of this Agreement, City shall have no obligation to Developer under this
Agreement to issue the Notes or to fund the Economic Development Grant to
Developer, if any of the following conditions exist as of the Closing Date:
(1) City is unable to complete the sale of the Notes on such terms and
conditions as it shall deem necessary or desirable in its sole, but reasonable,
good faith discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or
both, would be entitled) under Section 7 of this Agreement to exercise any
remedies set forth therein as a result of any Event of Default; or
(3) There has been, or there occurs, a material change in the financing
commitments secured by Developer for construction of Minimum
Improvements, which change(s) make it substantially more likely, in the
reasonable judgment of City, that Developer will be unable to fulfill its
covenants and obligations under this Agreement to construct the Minimum
Improvements; or
(4) City shall not have received a legal opinion from Employer's counsel
in substantially the form attached hereto as Exhibit E.
3.5 Use of Tax Increments. Developer and Employer recognize that City intends
to utilize the Tax Increment Revenues collected each year in respect of Minimum
Improvements to pay debt service on the Notes. Notwithstanding the foregoing,
City shall be free to use all Tax Increment Revenues collected each year in respect
of Minimum Improvements or other properties within Project Area for any purpose
for which the Tax Increment Revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Act, and City shall have no obligation to Developer
and Employer with respect to use thereof.
SECTION 4. COVENANTS OF EMPLOYER
4.1 Job Creation. Employer shall create ten (10) full-time equivalent (2080 hours
per year) employees in Dubuque, Iowa within four (4) years from the date of this
Agreement, and shall maintain those jobs during the Term of this Agreement. It is
agreed by the parties that Employer has forty-eight (48) full-time equivalent
employees (FTE)(2080 hours per year) in Dubuque, Iowa, as of May 15, 2006. FTE
shall be calculated by adding full-time and part-time employees together using 2080
hours per year as a full-time employee. In the event that the certificate provided to
City under Section 4.2 hereof on July 1, 2016, discloses that Employer does not as
of that date have at least fifty-eight (58) FTE employees (2080 hours per year) as
provided hereinabove, Employer shall pay to City, promptly upon written demand
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therefor, an amount equal to $ 10,453.35 per job not created ($606,294.75 divided
by 58 FTE employees = $10,453.35). In the event that Employer is required to pay
City under the second paragraph of Section 2.3, $606,294.75 shall be reduced by
the amount of such payment). In addition, for the ten (10) positions that Employer
fails to create and maintain for any year (July-June) during the Term of this
Agreement after the fourth year, Employer shall reimburse City the percentage of
the Tax Increment Revenues paid that year (July-June) to the Purchaser of the
Note under Section 3.3 as the number of such positions bears to 58 . (For example,
if Employer has 50 FTE employees, the reimbursement would be 13.79% (8/58
employees) of the Tax Increment Revenues paid by City that year (July-June)).
4.2 Certification. To assist City in monitoring the performance of Employer
hereunder, four (4) years from the date of this Agreement, and again each year
thereafter during the term of this Agreement, a duly authorized officer of Employer
shall certify to City (a) the number of full time equivalent jobs employed at Property,
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 July 1, 2010, and
on July 1 of each year thereafter during the term of this Agreement
4.3 Execution of Assessment Aqreement. Developer shall agree to, and with
City, shall execute, as soon as the plans and specifications for Minimum
Improvements are prepared, but no later than Closing Date, an Assessment
Agreement substantially in the form attached hereto as Exhibit G ("Assessment
Agreement") pursuant to the provisions of Section 403.6(19) of the Code of Iowa
specifying the Assessor's Minimum Actual Value for Property and Minimum
Improvements for calculation of real property taxes. Specifically, Developer shall
agree to a minimum actual value for Property and Minimum Improvements which
will result in a minimum actual value as of January 1, 2007 of not less than Four
Million Dollars ($2,800,000.00) (such minimum actual value at the time applicable is
herein referred to as the "Assessor's Minimum Actual Value"). Nothing in the
Assessment Agreement shall limit the discretion of the Assessor to assign an actual
value to Property in excess of such Assessor's Minimum Actual Value nor prohibit
Developer from seeking through the exercise of legal or administrative remedies a
reduction in such actual value for property tax purposes; provided, however, that
Developer shall not seek a reduction of such actual value below Assessor's
Minimum Actual Value in any year so long as Assessment Agreement shall remain
in effect. The Assessment Agreement shall remain in effect until June 1, 2016 (the
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"Termination Date"). Assessment Agreement shall be certified by the Assessor for
City as provided in Iowa Code Section 403.6(19) and shall be filed for record in the
office of the County Recorder of Dubuque County, and such filing shall constitute
notice to any subsequent encumbrancer or purchaser of Property (or part thereof),
whether voluntary or involuntary, and such Assessment Agreement shall be binding
and enforceable in its entirety against any such subsequent purchaser or
encumbrancer.
4.4 Books and Records. During the term of this Agreement, Developer and
Employer 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 and Employer in accordance with generally
accepted accounting principles consistently applied throughout the period involved,
and Developer and Employer shall provide reasonable protection against loss or
damage to such books of record and account.
4.5 Real Propertv Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
4.6 No Other Exemptions. During the term of this Agreement, Developer and
Employer agree not to apply for any other state or local property tax exemptions
which are available with respect to the Development Property or the Minimum
Improvements located thereon that may now be, or hereafter become, available
under state law or city ordinance during the term of this Agreement, including those
that arise under Iowa Code Chapters 404 and 427, as amended.
4.7 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):
(a) 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;
(b) Insurance as set forth in the attached Insurance Schedule.
(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
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City shall furnish proof of insurance in the form of a certificate of insurance)
insurance as follows:
(a) 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 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 directly to
Developer as its interests may appear, and Developer shall forthwith repair,
reconstruct and restore the Minimum Improvements to substantially the
same or an improved condition or value as they existed prior to the event
causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net
Proceeds of any insurance relating to such damage received by Developer
to the payment or reimbursement of the costs thereof, subject, however, to
the terms of any mortgage encumbering title to the Property (as its interests
may appear). Developer shall complete the repair, reconstruction and
restoration of Minimum Improvements whether or not the Net Proceeds of
insurance received by Developer for such Purposes are sufficient.
4.8 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 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 Property.
4.9 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.
4.10 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
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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.
4.11 Non-Transferabilitv. 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 Property be transferred by Developer to
another party without the prior written consent of City, which shall not be
unreasonably withheld. Thereafter, Developer or Employer shall have the right to
assign this Agreement and upon assumption of the Agreement by the assignee,
Developer shall no longer be responsible for its obligations under this Agreement.
Notwithstanding the foregoing, City acknowledges that Chavenelle Warehouse
Development, LLC intends to transfer the Property to Theisen and City hereby
consents to such transfer to Theisen. As it relates to the City only, effective upon
such transfer of the Property from Chavenelle Warehouse Development, LLC to
Theisen, Chavenelle Warehouse Development, LLC shall be released from its
obligations to City hereunder and Theisen Supply, Inc. hereby agrees that it shall
thereafter be deemed to be Developer for all purposes of this Agreement and
Theisen Supply, Inc. hereby agrees to assume all obligations of Developer under
this Agreement unless otherwise stated herein.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an industrial manufacturing center is in full
compliance with the Urban Renewal Plan) (however, Developer shall not
have any liability to City to the extent that a successor in interest shall breach
this covenant and City shall seek enforcement of this covenant directly
against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
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to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same).
4.13 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 Property and any hazardous substance or environmental
contamination located in or on the Property, occurring after Developer takes
possession of the Property.
(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
Employer or their 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.
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4.14 Comoliance 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, anyone or more of the following events:
(1) Failure by Developer or Employer to payor cause to be paid, before
delinquency, all real property taxes assessed with respect to the Minimum
Improvements and the Property. 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
in violation of the provisions of this Agreement prior to the issuance of the
final Certificate of Completion.
(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 bv Develooer. 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 Employer (and the holder of any mortgage
encumbering any interest in the Property of which City has been notified of in
writing) of the Event of Default, but only if the Event of Default has not been cured
within sixty (60) days following such notice, or if the Event of Default cannot be
cured within sixty (60) days and Developer or Employer 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,
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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-vestinq Title in Citv Upon Happeninq of Event Subsequent to
Convevance to Developer. In the event that, subsequent to conveyance of the
Property 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 Property or construction of the Minimum
Improvements (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 Property 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) 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 Property to Developer shall be made upon the condition that
(and the Deed shall contain a condition subsequent to the effect that), in the event
of default under Section 5.1 on the part of Developer and failure on the part of
Developer or Employer 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 Property conveyed to Developer, and that
such title and all rights and interests of Developer, and any assigns or successors
in interests of Developer, and any assigns or successors in interest to and in
Property, shall revert to City (subject to the provisions of Section 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 or Employer 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
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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 Propertv: Disposition of Proceeds. Upon the re-
vesting in City of title to the Property 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 Property or part thereof as soon and in such manner as City
shall find feasible and consistent with the objectives of such law and of the Urban
Renewal Plan to a qualified and responsible party or parties (as determined by City
in its sole discretion) who will assume the obligation of making or completing the
Minimum Improvements or such other improvements in their stead as shall be
satisfactory to City and in accordance with the uses specified for such the Property
or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property 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 Property, or any portion thereof, or any improvements thereon,
previously acquiesced in by City pursuant to this Agreement. If more than
one mortgage on the Property, 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 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 Property or part thereof (but
less any income derived by City from the Property or part thereof in
connection with such management); any payments made or necessary to be
made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by the City) existing on the Property 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 Property or part thereof, and any
amounts otherwise owing to City (including water and sewer charges) by
Developer and its successors or transferees: and
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(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum
of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property, less (2) any gains or income withdrawn or made by Developer from
this Agreement or the Property.
5.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to City
is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity
or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair any 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 Imolied 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 Aqreement to Pay Attorneys' Fees and Exoenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.8 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 may suspend their
performance under this Agreement until they receive assurances from City,
deemed adequate by Developer or Employer, that City will cure its default and
continue its performance under this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
21
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
If to Developer:
Wayne A. Briggs
Chavenelle Warehouse Development, LLC
132 Main Street
Dubuque, IA 52001
Phone: (563) 557-2504
With copy to:
Brian Kane, Esq.
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001
If to Employer:
Leo A. Theisen
Theisen Supply, Inc.
4949 Chavenelle Rd.
Dubuque, IA 52002-2634
Phone: (563) 556-4738
Fax: (563) 556-7959
With copy to:
John O'Connor, Esq.
O'Connor & Thomas, P.C.
700 Locust Street, Suite 200
P.O. Box 599
Dubuque, IA 52001
If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, IA 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 Bindinq Effect. This Agreement shall be binding upon and shall inure to the
benefit of City, Developer and Employer and their respective successors and
assigns.
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6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on July 1, 2016 (the Termination Date).
6.4. Execution Bv 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.
6.5 Memorandum of Development Aqreement. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as
Exhibit H in the office of the Recorder of Dubuque County, Iowa. Developer
shall pay the costs for so recording.
CITY OF DUBUQUE, IOWA
CHAVENELLE WAREHOUSE
DEVELOPMENT, LLC
(DEVELOPER)
By:
Roy D. Buol, Mayor
By:
Wayne Briggs, Managing Member
By:
Jeanne F. Schneider, City Clerk
THEISEN SUPPLY, INC.
(EMPLOYER)
By:
Leo A. Theisen, President
F :\USERS\tsteckle\Lindahl\Agreements\TheisensDevelopmentAgreementFinal060206bal.doc
Last saved by Tracey Stecklein; 6/2/2006 9:58 AM
23
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized
to do business in Iowa. All insurers shall have a rating of A or better in the
current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque, except for 10 day notice for non-
payment, if cancellation is prior to the expiration date. This endorsement
supersedes the standard cancellation statement on the Certificate of Insurance.
3. shall furnish a signed Certificate of Insurance to the
City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such
certificates shall include copies of the following policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. shall be required to carry the following minimum
coverage/limits or greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
Medical Payments
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form
CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be
included. All deviations or exclusions from the standard ISO commercial
24
general liability form CG 0001, or Business Owners form BP 0002, shall be
clearly identified.
25
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities
and their board members, employees and volunteers shall be named as an
additional insured on General Liability Policies using ISO endorsement CG
20260704 "Additional Insured - Designated Person or Organization," or it's
equivalent. - See Specimen
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident
Each Employee - Disease
Policy Limit - Disease
$100,000
$100,000
$500,000
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
D Certificate of Liability Insurance (2 pages)
D Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
D Additional Insured 20 26 07 04
D Governmental Immunities Endorsement
26
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmentallmmunitv. The insurance carrier expressly agrees
and states that the purchase of this policy and the including of the City of
Dubuque, Iowa as an Additional Insured does not waive any of the defenses of
governmental immunity available to the City of Dubuque, Iowa under Code of
Iowa Section 670.4 as it is now exists and as it may be amended from time to
time.
2. Claims Coveraae. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Those claims not subject to Code
of Iowa Section 670.4 shall be covered by the terms and conditions of this
insurance policy.
3. Assertion of Government Immunitv. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do so
at any time and shall do so upon the timely written request of the insurance
carrier.
4. Non-Denial of Coveraae. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Chanae in Policy. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
SPECIMEN
27
POlICY NIJMIW n
COMMERCIAL GENERAL UABILITY
CG2G26G7ll4
THIS ENDORSEMENT CHANGES THE POLiCY. PLEASE READ iT CAREFULLY
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
! tw:~ endOf$€:ment mo::tifles in~wancE' ;)IC'"I01::1U um).yl tht!J 'ull:J'Mng
COMME.RCIAL G [NERA.t llA.Rlt ITV COVE RAG E PART
SCHEDULE
Name Of Additioo_allr16ured P.rwon{i) Or Orgoilnlution(s)
Thf. Ci-:)' n~ Dubuque~ inclu.cinlj (ill Its E>1E':~t?r1 .'InJ .:pfl':'l;nlr.d
of'i,.~ieht all i-:~ E,plo:let'~ 1.lnd \'I,)IIJIltl!:'.;.r~~ f.ill 1'::~ rl')i'ir'd~,~
(_(Jllnni~" i on:::. end/D)' autr:or~ ti es \Ind t'1E>i r :)j,)rr. '1IPlllb~r'~ 1
.;:.mp1twer.s. l.nd ...e,lunteers.
,In'"orma_tICrl_leQJU'(fQ:o Cl)f'1rt=,fl'- thi!'l &h~':l.!B if not <.:hOOAlnabovc. .,..dl ~e s"lo....n in lhe f?~_g,~!8t,iorn
S~liun II - Who lEI All 1n5ur9d is iJr,loerded 1c: In-
elude- 85 an E-ddiliooa insured th'~ p~~;.r.lr">:l LII UI!:f""JIl>
zs:oon(;) -WOWI1 in the SCMd\JlQ, but Dnty IMT re-!lPE'Cl
to h.;ih.lllly lor't-:n,il~' injur,,/,'. "PrCflP.iy dam3g(l'" OJ
~pt:;!rsonal sl'id .:d'J=rtsif.;:j inlurv' caU$eo. j.'l whdoP. or
in pan. by your ~t:'lS vr umis~t:)p~ cr ttl-e acts or om;'S--
SlOr\S 01 th:)se o,:ting on your bet'alf:
A, In the performanCE- ot your orQC4"Q ooer.31tior!'. f:f"
S, In conn~c~ic:.!\ wilt) yt:Jur ;)fo!:!'misl?3- o....med 'r:ty 01
Jf'!nl~(jln 1('111
~;PEC'tt"~
r(: 'l'I?Ft r\701ll1
l~ ISO fJ:D~r:il2S Inc.. 2Cr(J4
Psae 1 :)f 1
28
I
J
o
II ACORQ. CERTIFICATE OF LIABILITY INSURANCE .......1 o~;/~:~~~;;-l
'<"'-'-I"~~,, (563)5560271. rAil: (<jtJi}~So-+4l~ TlilSCERl1FICA"TEtsJS5UED.ASAMI'\.TTEROf-INI-QKMA1K.lN
11N'3UK.l!"i1:. NLNl y OHL'v ANDCOMFE.R:S 1'10 RIGHTS UPON THE CERTlFICATE
~! "'1:1:.1 ,JWtJI([SS ~~~~H~g'o~~~l~~:;~~l::eb NI3~1 T~~~U~~ETl".Ji'b~
UlY, ~1,lljlL. lIt (oor ]
IH!>URl:r~S AFTOROINC CO'/ERACE
CO_", _._+rNA" '-. _I
1~:.ll~I:U -"{co.,,," ,~ Ins-ura!':c€' ("~a"y ____
~lrll"\;"l Addrt:~~ r",_ j,I'-'-,
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r,';.I.1
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RA.GFS ____ _
':'"HF Pflllr:IFS 01- 11\ ,1,P'~.u,:< LI~:;ll..._' :.:.l.Lr.J.Wi ...:~t. DC. ...'" ,r._;,urD TD ,!-iF l~l:;;IJRI-()N,'.~';.-l) ,.,I!'O....1c ~<::"'~ IH~ -'.jLlI~ 1 -'U'IUIIII..V'.;.oII'.l: 1-.0..; I \',11 '.l~ I,M'" 'r.' I
.lor.... I'!C:: .II;..EME'IT TE'>;l.4 '.~:':: ':.:.l"f-.l,.IIIIi.l~ ,.~ .~N~ ':(:N 11.!.'\I_, l-"'~ (:n-Fp.Do~ur.lEtlT "'J1,H. F..=SPE':l reo '!''HI:;,,"! '11'_, ,_-~.I' I., fl','. I. .~',y 1'1 1<::~; II II 1 If;
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HE CITY OF DUBUOUE IS USITD A5 A.~ AllCITION"L INSURED 0PIi GMRAl LIABIun PHI KIt':. US-IN(; 150 E.NOORSE.
ENl F.JRPf {G ZO 26 07 04 "IDIJTlTnNo\I IN!lilJIU:.O-IlESIGNATED PER50N OR ORGA'IIIlAHOftl'. OR ITS f.QUIVILANT.
J:NERAL LIABIlITY POlley IS PRIM~R" AHD NON-CONTRlBUTII\G. FORJIII CG :ZS 04 03 iJ.7 "DESIGNATED LOC'\TI~S'.
ENERAL LIABIliTY AC.itIlEGATE UIUT SliI\.'~L BE INO..UOED. COYl:R~NTo\I TMMIJNII [t~ I:NIJ'.lHs'I:.JIIENT IS INCLLI)ED.
lL POLIQES ~"-LL Ilr (NJ(R'Snl HI I'f(tWIOf 30 DAY ADVANCE NOTICE OF CANCUlol,TlON Ji) cry OF DUBUQUE.
CITY OF lHJEUOUE
an HALL
so w. 13m STRffT
UU~UUUt, ~A ~lOOl
1lMau.D,o,NYOF THEA8Q'/EOE:3:f;JBEOPOl. !;1f5 0' I:~..t:rllr 012'llJIl IHl
l:1:1'IR/l,,,,IY, DA'n THER9Jf'. Tl-lElliUINlii I'lSIJIFIlWlII nJ(~\i NM.
1_n" uv;: m;mEN~"~lOT~rc::rlr1rr.nrIY.l rJl'RlI.l.lI'm TO -~U:I"I.
llJl.'IRU(~k~~"'lll~X;MX~Xl(
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........~l't ..1:,."l2U"...."..~
AceRr:, 2fi t2001.'()8'1
~..\ACORD OORPORJIITIOtl 1988
29
IMPORT ANT
If the ce:LiF cJlC h,)ilt'!'f I~> ;1n P,Dl)i tUNAL l~j~JKtL) 1t1l~ rJllli.~~ii;:;': III,.:.; b.~ ~ o..:,r~O::'l..:. :-. ~kl"=IH""l!
tllllllit' 1;;::II{j':"~I~ O~If.';:' no: conter l"1-~ntS to the u.<T1ifk~I(~ I1dd~r ill li...,1ID[ ~.JI~I ~1\1\:'''~III~IIIi~)
tf :::,UB~'JG^T1("....N IS '/.'/',Vt:D, 9.'ll!'E"I;t 10 itl'=! lBll'l~ ."Ill!; tJJlluiiiL:lle:; 'IF II ~ f:\_hq, U:o,I.,;! I-'vli(.i..." 111a~
18qUltlJ ,0 ellll!)I~n',",nl. .~ ~t.3[e~t on :hl~ GUrtih;:.i;lW lkw" f"il"'f1'l"" li~lllb It. he' u,ollili'_.<'llt"
hcldt'1 11I!i1.') d ~tt:-:.. ~ru1r:rst!ITtf"~,1;:-.)
mSCLA1MER
I he GGr:rIV;atol.: of .11Si.li;lly' ~ on ft)~ rf'~'enlli!' :!.if1e of tn s f"JC' l'il dlJL:~ rKX :.lj"1:;litlJlc "qJIIII;~lJ I d''"'"t!t"11
:he Issung inSUft:l (:>:, CJULrO'"I~01 fcpre~.p.:ntal'l'~e or projl.f::€f, iH1I.1 ltloJ 4;::'1 L.fic<lll..,' lilY \.1<: I ~)l lul:'":i il
a"ITlTall'JeI\' t11 n~yi:tjvt::iy ,:t'I;;"Y,~, fll'tf!nc1 or .~er lI1e CO'1'2fage arttt'dcrJ !:,If :tllJ VlliL;II;l'" li:>:.I.-III~I"'11l1
SPECIMEN
L_
ACOR[) 2f, 12l)D1~1
30
rOL'CY ~~J',.mcr(
COMMERCIAL GENERAL LLABILIT"i'
CG 25040:3 '97
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CARE,ULL Y
DESIGNATED LOCA T10N(S)
GENERAL AGGREGATE LIMIT
SPECIMEN
COMMERCIAL GENERAL lIAAIII:"f COVF~AGE PART
Thl~ tlllk;ll::iar-'lmt mooifip.:!l i;~.llr,.nr? f1fi1'JI(ll'!1 Iln(fN Uw fdkYNing.
SCHEDULE
r'i>iQ""'Od Lo<o,'i<ln{'J:
:I! n;) crtf,' aDP2ar;:.. ab:lvF.! jrfom1:nicn reouJrlxl to comp'ete this en~mF.!nlw~JI:~ ~11(...\'rl ,n tiJo? D€ck:r:nior,!,:
Fl~ l'InplCDc-e to ,rrSo el1corsenEflt.)
A, F-or;::.1I ::;.um::;. ".,.h:<:h Ihc: j')Su"ec b~t.nln~.. 1t"t1;\'111y
:::D.lig..l~j J,) F>.<4Y <:l~ dam.3ge6. caused b-j
ocr:urrer~!l..' :m.w rflVI=RAGif:. A ($ECTION
11- i:lnd to- all rr.E<tir:al p.Xf€n:;es causeo b( "CC-
dems under COVI;;;.HAGt C (SECTION I( Whj':;:l
can be attributed only to O~el<lh(";IIl:; <::II a sin;!,€!
'Je.il::i.~n;df:!d "1a:::a1ion" shew1 in the Sc'Cdu c
;X)o..-e:
1. A seoarate D€lSig18Md Loc:l,lon Gene-11'I1
Aggregaie _!mil: ap:JI'es to e<x:h dcs.gnatcd
'lOCatiOn'. and :hat imir 15- P-ql&('ll Ie me
~"IIIl"11 1)[ ltle Gt:11t:li::Il A:;j9fcgare Um t
::-hCNo'n in the [:ec:aratlo(',~
2. TtK Dc::siyn31Ed ~CBtion C?I'"IoP.rF.l .c.gGfegale
IIIllll ,~ Ltr~ IllU'S1 .,~~ will JY.:Iy for the sum of all
darnsge:!l unoer cO'o.tr:n/l,G[ A, excep': dam-
BgeS because of ':bodily ,oJv/)" Or" '.Dfop::rti
:j<Vf1~g€" Inc:h.doo ir th~' 'prodUC1'i.c.:lmpleted
:)perations haz:a(c.', :md rOl medical E!J(~ens.P.~.
under COVFRl.,GE C reoor.jlc~ of the nUrrI-
t,C'! or
8. nswells.
b. C'aims ma88 ,); .""-vih;' uu-...y' I, rx
C. Person... c:r .:;.rg03rltR.ion" m~ki'l(J cl)lrrlS
f)f hrnglng' SUIt::;'
3. A 1'[ payments m~de ~mdcr COVERACl= A
ror cJamago-s or lJnd~ C.OVF~AG[ C tOI
m~jla:u e~e"lses shalt rof'ou:::e tre Oeslg-
oated Lc...::.dlil)'I Cot.: .k:l~1 ~!JI~i::Itl::! limit 10'
lha: dcaignBt&::l 'loG8tron" ~ll;;h PiJrmcn'is
~;II not re-ju<:e lhe GElner;] l,g~lf:o;);III': ~ 111111
;;hr:wo in tM ()t>r:I;..u;...JhrJnl; 'lor SoT3d thl?\' reo
duce any ot'lef DesianJI-:)d LC::;ii;:ion GerF!~1
^ggre~a!8 Limif fly 91'1 ~t:'"l'!r desntlated
'1oc~j:Jn' shcrolf'n In the Schc.Jue abO\'02
4. Ttle 'imi1s shown if' the C-ecl;:;lr.lw.:J(J':O to~ Each
OCCU~ri:'N:;t>. FirE Dem~"J'P.- ~rd \Aed~:;)j L.t:.
pP.r~ rx,ntinue ~O 8Ppl,. itowever nstead of
bei')Q sUDjet;t to the Gen9r"d1 AW":lgal:l Lir-ij
slKI\W in t!'~ Deo::Jaratr.ms, ~lI(:h 1m!!::. 'IIIH tJ:::
t<u:.J)e:.t tv lhi;; ;JPIJIK.CJb'<.: Je""itT-,j:;l'...'1 I nr.gl(ln
General Ag9(t:':9tt1~ 11"lil
31
B FUf :III ~U"I:::; W11,d' lh~ illc>"It.,d ta':lJ.::(1k:-o. I~gc:)tt
oblig~t-ed t,) J:;a~ a-?l damw,)e-2 c9,Js:::d b~'
'm,;CIII(~""Ce8' unoer ':GVEP..A.GE A :~l::.Cll()N
I), 3rd ft:{ ail mec iC.ol1 "".~p':ln"'.H'" 1";:"II~f!{1 h~ :"1cr;i.
~2r:t::; unCX;f CO',/ffi/',G[ C (SECTION I) ....,.hdl
C811Xft C>e ~t1ribl.JrPfi onl~' fe, ::::peraIQr~ elL OJ sin
qJE'! de!>i~n.atej 'lor::.a~lc~,' shmvn ir the &;hf!dIJI~
aoovl:l
1. IIt'l\, rao,rrrp.l'"f1!'1 'Tladp. Lf".dE'1 COVE.RAGE A
tar darlagc:> co' _1f1<le' C.OVEqAGF C ~or
lllOOI;:;a e:o;pen$e~ Sh:3U Tr:duce the af11tAln1
3\'Gllable- unae! til~ GHI'i:!lal Aggreg;;ne Urnl:
DI t'll.: Pr:.:dur.;'.;:..C;.;nJ-lh~ltfJ ()Jft;::f.;.lI\.JI':: Ag-
Gre!)!'te I nlll ""llff.lII':'.re':( i;.'\ appli:::solc' anc:
2. Slct"l P3'1nlef"15 :;n:;lll not fB"JL..U::I ~rlY De:',;ignatoo
IL1('~rioo GE!l:.:rdl A9lJl~g<Jtt; Li:Jlil.
C. 'Nher, GJ\,~r':)!J~ flJr 1';~:ll!lly ,.,11:;1114 \JL d lh-=
'proou(.1~-: ,:ompIO'!ted op.:-r:::::ione h;JZ3rU' IE pro-
'Jiced, :3n~' payments for ,:;,s!n.ag"..'s I:""':;':'ll';.f.' :,\1
'bodi;' irJur{ or 'prc.:ptr1,. dafllJ'Je" nclu.je.j if)
Lll~ '"plt;Uu:::t&-GompleLeC o~'er~lion~ hW;1rd" will
reduce ttle ProjI.K1S-CclTlp4:-'Ied Op;:l!~Lun= A!J-
gregale Limit c'lO not f(..-QLCC lrJe Ge-ier.11 I\g
greg~te urr\lt 110' 1tle ueSI9f1J.1.:>:.j I :-lo~Atnn Cf!-'1-
eral Agflregaw Limit
D. j:"ur tile ;:JI...rpostS 01 th!::; enaorsement :he [)efi-
nltJons ~:'ec:ll)n l~ 81IT1P.f'1(1fK1 1"':..... 'h~ !3djiton Df
the fallDltlng ::Ie'inj[ en
"Location" r-'eans prC:"'115es rwo,v ng tr-e 581me
Of CCflf'leClJng lOtS, O~ r.r~misp.s w-,ose C;Qnnm,;.
~IQn is IntF!'"ru:Jteo ml"( by a s:ru<J: roadway ",",<.)"
,el\\'ay =:or ri.gi-t-cf.way of a l'..1ilro<id
E. I he prOVISlors O11lMts Of Im,Uf8n:JF.I,S-:::C,ION
1111 fl)t otrerwiSE mooified 0:( thIS ~nOOI:Se"l~nl
~hall o:.C'11 nLl'B tc app~' a~ stipulaboc
SPECIMEN
32
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 further expansion 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 of the City Council of the City of Dubuque, Iowa
on December 17, 1990. Resolution 48-97 of the City
Council of the City of Dubuque, Iowa on January 20,
1997 authorized and directed this amendment.
Prepared by the Community and Economic
Development Department.
February 1997
34
TABLE OF CONTENTS
A. INTRODUCTION Page 1
B. OBJECTIVES Page 2
C. DISTRICT BOUNDARIES Page 2
D. PUBLIC PURPOSE ACTIVITIES Page 3
E. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS Page 4
F. LAND ACQUISITION AND DISPOSITION Page 5
G. FINANCING ACTIVITIES Page 6
H. STATE AND LOCAL REQUIREMENTS Page 8
I. DURATION OF APPROVED URBAN RENEWAL PLAN Page 8
J. SEVERABILITY Page 9
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN Page 9
L. ATTACHMENTS Page 9
35
AMENDED and RESTATED
DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT
URBAN RENEWAL PLAN
City of Dubuque, Iowa
A. INTRODUCTION
This AMENDED and RESTATED URBAN RENEWAL PLAN (the "Plan") has been
prepared to provide for the expansion and further development and redevelopment of
the DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT (the
"District") first established by the City of Dubuque on May 2, 1988. Its intent is to
stimulate economic development activities within the expanded District through the
commitment of public actions as specified herein.
To achieve this objective, the City of Dubuque shall undertake the urban renewal
actions specified in this Plan, pursuant to the powers granted to it under Chapter 403 of
the Iowa Code, Urban Renewal Law.
This Plan is an amendment and restatement of the Dubuque Industrial Center
Economic Development District Urban Renewal Plan adopted by Resolution 130-88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and subsequently
amended by Resolution 484-90 on December 17, 1990. Resolution 48-97 of the City
Council of the City of Dubuque, Iowa on January 20, 1997 authorized and directed the
preparation of this latest amendment to the Plan. This Plan shall serve as a new urban
renewal plan for the expanded District described herein.
The division of taxation authorized by Section 403.19 and the separation of incremental
taxes as defined in Section 403.19(2) have been implemented in the existing area of the
District (hereinafter referred to as "Subarea A"). Under the terms of this Amended and
Restated Plan, the tax increment mechanism shall be continued and implemented
within the proposed expansion area of the District (hereinafter referred to as "Subarea
B") as well. The expanded District shall be subject to the provisions of a revised
ordinance of the City of Dubuque with respect to the division of taxes levied and
collected within each of Subarea A and Subarea B of the District. Incremental taxes
shall be determined separately with respect to each of the Subareas comprising the
expanded District, and when collected shall be applied, subject to such liens and
priorities as may exist or be from time to time provided, with respect to the Amended
and Restated Dubuque Industrial Center Economic Development District, as so
amended.
1
B. OBJECTIVES OF THE PLAN
The primary objectives of the Plan are the development and redevelopment of the
expanded District for economic development activities, primarily industrial park
development, through:
1. Provision of marketable industrial development sites for the purpose of
job-creating economic development activities;
2. Provision of public infrastructure improvements, including sanitary sewer,
water and stormwater detention, supportive of full development of the
District;
3. Provision of a safe, efficient and attractive circulation system;
4. Establishment of design standards which will assure cohesive and
compatible development and redevelopment of the District;
5. Provision of public amenities that provide an aesthetically appealing
environment, including open space, buffering, landscaping, water
features, signage and lighting to create a distinctive and attractive setting;
6. Creation of financial incentives necessary to encourage new and existing
businesses to invest in the District; and
7. Expansion of the property tax base of the District.
C. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of Iowa.
The City of Dubuque believes that the objectives of the Plan can best be accomplished
by defining the real property included within the District as two separate areas so as to
distinguish the existing District (Subarea A) from the proposed expansion area
(Subarea B).
Subarea A of the District shall consist of the real property legally described as follows:
All of the Dubuque Industrial Center First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth and Eleventh Additions and the adjoining public
right-of-way, all in the City of Dubuque, Dubuque County, Iowa.
Subarea B of the District shall consist of the real property legally described as follows:
2
Lot 1-1 of the NW 1/4 of the NE 1/4, the West 3/4 of the NE 1/4 of the NW 1/4,
the East 1/4 of the NE 1/4 of the NW 1/4 of Lot 1, Lot 2-1 of the SE 1/4 of the
NW 1/4, Lot 1-1 of the SE 1/4 of the NW 1/4, and the SW 1/4 of the NE 1/4, all in
Section 30, T89N, R2E, 5th P.M., Dubuque County, Iowa; also, the NW 1/4 of
the SW 1/4, the NE 1/4 of the SW 1/4, Lot 1 of the SE 1/4 of the SW 1/4, and
Lot 1 of the SW 1/4 of the SW 1/4, all in Section 30, T89N, R2E, 5th P.M., in
Dubuque County, Iowa; and all that part of a 100-foot-wide strip of the Chicago
Central Pacific Railroad right-of-way lying in the SE 1/4 of Section 30, the SE 1/4
of the SW 1/4 of Section 30, the NW 1/4 of Section 31, and the NE 1/4 of
Section 31 all in T89N, R2E, 5th P.M. Dubuque County, Iowa, the centerline of
which is more particularly described as follows: Beginning at a point of
intersection with the easterly line of the SE 1/4 of Section 30, T89N, R2E, 5th
P.M., thence southwesterly along the centerline of said railroad 2,700 feet, more
or less a point of intersection with the westerly line of the SE 1/4 of said Section
30; thence southwesterly continuing along said centerline 845 feet, more or less,
to a point where the railroad right-of-way widens to 200 feet, said point being the
terminus of this description; also, Lot 1 of the NE 1/4 of the SE 1/4 of Section 25,
T89N, R1E, 5th P.M., Dubuque County, Iowa, and a part of Lot 1-1-1 of the SE
1/4 of the SE 1/4 of Section 25, T89N, R1 E, 5th P.M., Dubuque County, Iowa,
described as follows: beginning at the NE corner of said Lot 1-1-1; thence S 00
degrees, 15' 43" W 562.15 feet along the east line of said Lot 1-1-1; thence N 89
degrees 05' 38" W 1,336.86 feet along the northerly line of Lot 2-1-1- of the SE
1/4 of the SE 1/4 of said Section 25 and extension thereof to a point of
intersection with the west line of said Lot 1-1-1; thence N 00 degrees 34' 17" E
528.75 feet along said west line; thence N 89 degrees 28' 22" E 1,334.04 feet
along the north line of said Lot 1-1-1 to the point of beginning, and any adjoining
public right-of-way.
The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT
map (Attachment A).
The City of Dubuque reserves the right to modify the boundaries of the District at some
future date. Any amendments to the Plan will be completed in accordance with Chapter
403 of the Iowa Code, Urban Renewal Law.
D. PUBLIC PURPOSE ACTIVITIES
To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to initiate and
support development and redevelopment of the District through, among other things,
the following PUBLIC PURPOSE ACTIVITIES:
1. Acquisition of property for public improvements and private development;
2. Demolition and removal of buildings and improvements not compatible
3
with or necessary for industrial park development and all site preparation
and grading required in connection with such development;
3. Improvement, installation, construction and reconstruction of streets,
utilities and other improvements and rights-of-ways including but not
limited to the relocation of overhead utility lines, street lights, construction
of railroad spur tracks, appropriate landscaping and buffers, open space
and signage;
4. Disposition of any property acquired in the District, including sale, initial
leasing or retention by the City itself, at its fair value;
5. Preparation of property for development and redevelopment purposes
including but not limited to activities such as appraisals and architectural
and engineering studies;
6. Use of tax increment financing, loans, grants and other appropriate
financial tools in support of eligible public and private development and
redevelopment efforts;
7. Enforcement of applicable local, state and federal laws, codes and
regulations;
8. Enforcement of established design standards in furtherance of quality
development;
9. Development and implementation of a marketing program for the purpose
of promoting the purchase and development of industrial sites by private
developers;
10. Coordination and cooperation with the improvement of Seippel Road as it
affects Subarea B's accessibility to U.S. Highway 20.
Public purpose activities are limited to those areas delineated on the PUBLIC
PURPOSE ACTIVITY AREA map (Attachment B).
All public purpose activities shall be conditioned upon and shall meet the restrictions
and limitations placed upon the District by the Plan.
E. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall apply to
any and all District properties the development and/or the redevelopment of which is
assisted by the City through any of the PUBLIC PURPOSE ACTIVITIES listed above.
4
1. land Use
a. Subarea A shall continue to be developed under the regulations of the
existing Dubuque Industrial Center Planned Industrial District. The
allowed uses provide for a mix of commercial and industrial land use
activities.
LAND USE maps (Attachments C1 and C2) identify the existing and the
proposed land uses within Subarea A.
b. Subarea B is intended to be an expansion of the Dubuque Industrial
Center and will provide additional land for commercial and industrial land
uses within a quality industrial park setting.
LAND USE maps (Attachments C1 and C2) identify the existing and the
proposed land uses within Subarea B.
2. Plannina and Desian Criteria
The planning criteria to be used to guide the physical development of both
Subarea A and Subarea B are those standards and guidelines contained within
the City of Dubuque's Zoning Ordinance and other applicable local, state and
federal codes and ordinances.
a. Subarea A development will continue to be additionally governed by the
Conditions of Development and Operation Documents of the Dubuque
Industrial Center Planned Industrial District as amended from time to time.
b. Subarea B will develop under a new PI Planned Industrial District
ordinance as required by Section 3-5.5 of the City of Dubuque Zoning
Ordinance. Development within Subarea B will follow the Planned Unit
Development regulations which require a conceptual development plan
and specific design and performance standards to be approved by
ordinance.
F. LAND ACQUISITION AND DISPOSITION
The City of Dubuque is prepared to acquire and dispose of property in support of the
development and redevelopment of the District within the parameters set forth below.
1. land Acauisition
The City intends to negotiate the purchase of Subarea B, excluding the railroad
5
right-of-way, through contractual agreement. However, the City will acquire,
through eminent domain, any property for public or private development and
redevelopment purposes should it be unable to acquire land through negotiated
purchase.
The City also reserves the right to acquire, by negotiation or eminent domain,
property rights required for the construction or reconstruction of streets and
public utilities, or any other public facility or improvement.
2. land Disposition
Publicly held land will be sold for the development of viable uses consistent with
this Plan and not for purposes of speculation.
land will be disposed of in accordance with the requirements set forth in Chapter
403 of the Iowa Code, Urban Renewal law. Developers will be selected on the
basis of the quality of their proposals and their ability to carry out such proposals
while complying with the requirements of this Plan.
Developers will be required by contractual agreement to observe the land Use
Requirements and Planning and Design Criteria of this Plan. The contract and
other disposition documents will set forth the provisions, standards and criteria
for achieving the objectives and requirements outlined in this Plan.
3. Relocation Reauirements
No relocation is anticipated at this time.
G. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development of the
District and private investment therein, the City of Dubuque is prepared to provide
financial assistance to qualified industries and businesses through the making of loans
or grants under Chapter 15A of the Iowa Code and through the use of tax increment
financing under Chapter 403 of the Iowa Code.
1. Chapter 15A loan or Grant
The City of Dubuque has determined that the making of loans or grants of public
funds to qualified industries and businesses is necessary to aid in the planning,
undertaking and completion of urban renewal projects authorized under this Plan
within the meaning of Section 384.24(3)(q) of the Iowa Code. Accordingly, in
furtherance of the objectives of this Plan, the City of Dubuque may determine to
issue bonds or loan agreements, in reliance upon the authority of Section
6
384.24A, Section 384.24(3)(q), Section 403.12 (general obligation bonds) or
Section 403.9 (tax increment bonds), for the purpose of making loans or grants
of public funds to qualified businesses. Alternatively, the City may determine to
use available funds for the making of such loans or grants. In determining
qualifications of recipients and whether to make any such individual loans or
grants, the City of Dubuque shall consider one or more of the factors set forth in
Section 15A.1 of the Iowa Code on a case-by-case basis.
2. Tax Increment Financina
The City of Dubuque is prepared to utilize tax increment financing as a means of
financing eligible costs incurred to implement the Public Purpose Activities
identified in Part D of this Plan. Bonds or loan agreements may be issued by the
City under the authority of Section 403.9 of the Iowa Code (tax increment bonds)
or Section 384.24A, Section 384.24(3)(q) and Section 403.12 (general obligation
bonds).
The City acknowledges that the use of Tax Increment Revenues delays the
ability of other local taxing bodies to realize immediately the direct tax benefits of
new development in the District. The City believes, however, that the use of Tax
Increment Revenues to finance the development of new industrial land and to
promote private investment in the District is necessary in the public interest to
achieve the OBJECTIVES of this Plan. Without the use of this special financing
tool, new investment may not otherwise occur or may occur within another
jurisdiction. If new development does not take place in Dubuque, property
values could stagnate and the City, County and School District may receive less
taxes during the duration of this Plan than they would have if this Plan were not
implemented.
Tax increment financing will provide a long-term payback in overall increased tax
base for the City, County and School District. The initial public investment
required to generate new private investment will ultimately increase the taxable
value of the District well beyond its existing base value.
Tax increment reimbursement may be sought for, among other things, the
following costs to the extent they are incurred by the City:
a. Planning and administration of the Plan;
b. Construction of public infrastructure improvements and facilities within the
District;
c. Acquisition, installation, maintenance and replacement of public
7
investments throughout the District including but not limited to street
lights, landscaping and buffers, signage and appropriate amenities;
d. Acquisition of land and/or buildings and preparation of same for sale or
lease to private developers, including any "write down" of the sale price of
the land and/or building;
e. Preservation, conservation, development or redevelopment of buildings or
facilities within the District to be sold or leased to qualified businesses;
f. Loans or grants to qualified businesses under Chapter 15A of the Iowa
Code, including debt service payments on any bonds issued to finance
such loans or grants, for purposes of expanding the business or activity,
or other qualifying loan programs established in support of the Plan; and
g. Providing the matching share for a variety of local, state and federal
grants and loans.
3. Proposed Amount of Indebtedness
At this time, the extent of improvements and new development within the District
is only generally known. As such, the amount and duration for use of the Tax
Increment Revenues for public improvements and/or private development can
only be estimated; however, the actual use and amount of Tax Increment
Revenues to be used by the City for District activities will be determined at the
time specific development is proposed.
It is anticipated that the maximum amount of indebtedness which will qualify for
Tax Increment Revenue reimbursement during the duration of this Plan,
including acquisition, public improvements and private development assistance,
will not exceed $18,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general
obligation debt is $14,200,000 (a list of obligations is found as Attachment D)
and the applicable constitutional debt limit is $91,286,810.
H. STATE AND LOCAL REQUIREMENTS
All provisions necessary to conform with state and local laws have been complied with
by the City of Dubuque in the implementation of this Plan and its supporting documents.
8
I. DURATION OF APPROVED URBAN RENEWAL PLAN
1. Subarea A
This Plan shall continue in effect until terminated by action of the City
Council, but in no event before the City of Dubuque has received full
reimbursement from all incremental taxes of its advances and principal and
interest payable on all Tax Increment Financing or general obligations issued
to carry out the OBJECTIVES of the Plan.
2. Subarea B
This Plan shall continue in effect until terminated by the City Council;
provided, however, that the collection of Tax Increment Revenues from
properties located in Subarea B shall be limited to twenty (20) years from the
calendar year following the calendar year in which the City first certifies to
the County Auditor the amount of any loans, advances, indebtedness or
bonds which qualify for payment from the division of Tax Increment Revenue
provided for in Section 403.19 (tax increment financing) of the Iowa Code.
The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS established, or
as amended from time to time by the City of Dubuque Zoning Ordinance, shall
remain in effect in perpetuity.
J. SEVERABILITY
In the event one or more provisions contained in this Plan shall be held for any
reason to be invalid, illegal, unauthorized or unenforceable in any respect, such
invalidity, illegality, unauthorization or unenforceability shall not affect any other
provision of this Plan and this Urban Renewal Plan shall be construed and
implemented as if such provision had never been contained herein.
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
This Plan may be amended from time to time to respond to development
opportunities. Any such amendment shall conform to the requirements of Chapter
403 of the Iowa Code. Any change effecting any property or contractual right can
be effectuated only in accordance with applicable state and local law.
9
L. ATTACHMENTS
A Urban Renewal District Map
B Public Purpose Activity Area Map
C Land Use Maps
C1 Existing Land Use
C2 Proposed Land Use
o List of General Obligations
10
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BAR R Y A. L I N D A H L, ESQ.
CITY ATTORNEY
lHl'.L1TYOI-' '- ----.......
[)C-;-I) L (3t~J",
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(DATE)
RE:
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the
execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for
reference purposes the _ day of , 20_.
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best
of my knowledge, the representations of the City Manager in his letter dated the
_ day of , 2006, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
BAL:tls
16
Mayor and City Councilmembers
Cit~ Hall
131 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
18
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
19
Mayor and City Councilmembers
Citl 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 Theisen's Supply, Inc. (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 , 2006_
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
21
affect the business (present or prospective), financial position or results of
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,
22
Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
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.
the City Council of the City of Dubuque adopted the _ day of
20_, the terms and conditions thereof, if any, having been fulfilled.
of
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
24
Completion in the form set forth in the Agreement. Such certification by Grantor
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 Theisen Supply, Inc. 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:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
25
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 Jeanne F. Schneider to
me personally known, who being duly sworn, did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation,
created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipal Corporation, and 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
26
MINIMUM ASSESSMENT AGREEMENT
CITY OF DUBUQUE, IOWA
City of Dubuque, Iowa
THIS AGREEMENT, dated for reference purposes the _ day of
, 2006, by and among the City of Dubuque, Iowa (City),
Chavenelle Warehouse Development, LLC, an Iowa limited liability company with
its principal place of business at Dubuque, Iowa (Developer), Theisen Supply, Inc.,
an Iowa corporation with its principal place of business in Dubuque, Iowa
(Employer), and the City Assessor of the City of Dubuque ( Assessor).
WHEREAS, on or before the date hereof City, Employer and Developer have
entered into a Development Agreement (the Agreement) regarding certain real
property located within the City of Dubuque; and
WHEREAS, it is contemplated that Developer and Employer will undertake
the development of an area (the "Project") within the Dubuque Industrial Center
Economic Development District; and
WHEREAS, pursuant to Section 403.06 of the Iowa Code, as amended, City,
Employer and Developer desire to establish a minimum market value for said land
and the building thereon, which shall be effective upon substantial completion and
from then until this Agreement is terminated pursuant to the terms herein and which
is intended to reflect the minimum market value of the land and building;
WHEREAS, City and Assessor have reviewed the preliminary plans and the
specifications for the improvements which it is contemplated will be erected.
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as
follows:
1) Upon substantial completion of construction by Developer of the above-
referenced improvements, the minimum market value which shall be fixed for
assessment purposes for the land described in Exhibit A attached hereto, together
with the improvements to be constructed thereon by Developer shall be not less
than four million dollars ($4,000,000.00), until termination of this Agreement. The
parties hereto expect that the construction of the above-referenced improvements
will be substantially completed on or before the 30th day of June, 2007.
2) The minimum market value herein established shall be of no further force
and effect and this Agreement shall terminate on the _ day of , 20_, the
28
final date of the City's obligation to pay interest or principal with
indebtedness incurred in support of the project, dated the
, , in the principal amount of $
scheduled maturity date of the said indebtedness is
Provided, further, that in the event said indebtedness had not been fully paid as to
principal and interest on January 1, this Agreement shall continue in effect
for such additional time as shall be required therefore, but not later than January 1,
respect to
day of
The final
3) This Agreement shall be promptly recorded by Developer and Employer.
Developer and Employer shall pay all costs of recording.
4) Neither the preambles nor provisions of this Agreement are intended to,
nor shall be construed as, modifying the terms of this Agreement between City,
Developer and Employer.
5) This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
THE CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
ATTEST
By:
Jeanne F. Schneider, City Clerk
CHAVENELLE WAREHOUSE DEVELOPMENT, LLC
(DEVELOPER)
By:
Wayne Briggs, Managing Member
THEISEN SUPPLY, INC.
(EMPLOYER)
By:
Jim Theisen, President
Richard Engelken, City Assessor
29
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563583-4113
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
31
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
55:
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 Jeanne
F. Schneider, 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
55:
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.
32
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(DATE)
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity
in connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the _ day of ,20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer 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 Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re-align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
35
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer 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 Property of which it has actual notice. The Property is in
material compliance with all applicable zoning, fire, building, and health
statutes, ordinances, and regulations. The Property is currently zoned PUD
and Employer's intended use of the Property as a corporate office/industrial
facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer at time of closing confirming the representation contained herein,
in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property, Developer or Employer.
36
(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 Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
F:IUSERSIDHeiarITheisen'sITheisen Supply Deveiopment Agreement FINAL 6-2-06.doc
37
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MEMORANDUM
June 1, 2006
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
Economic Development Director Dave Heiar is recommending that a public hearing be
set for June 19, 2006, to consider a Development Agreement with Theisen Supply, Inc.,
including a 16.749 acre land sale in Dubuque Industrial Center West for construction of
a 110,000 square foot warehouse/office complex.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
//)ft, I ~/~(!A
Mi6hael C. Van Milligen ~
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
'4
"
CITY OF DUBUQUE, IOWA
MEMORANDUM
May 24, 2006
TO:
FROM:
Michael Van Milligen, City Manager
David J. Heiar, Economic Development Director
SUBJECT: Expansion of Theisen Supply, Inc. at the Dubuque Industrial Center
West
INTRODUCTION
This memorandum presents for City Council consideration a Resolution initiating
disposition of approximately 16.749 acres identified on the attached exhibit to
Chavenelle Warehouse Development, LLC, who will be constructing a 110,000 square
foot warehouse/office complex for Theisen's Supply, Inc. The attached Resolution sets
a public hearing on the disposition of this property for June 19, 2006.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation, Chavenelle
Warehouse Development, LLC and Theisen Supply, Inc. on an expansion at the
Dubuque Industrial Center West. Theisen's intend to relocate from their current
warehouse/office complex at 4949 Chavenelle Rd. They have committed to retaining
the current 48 FTE positions, and adding at least 10 new jobs at the new facility.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
the expansion. An Acquisition Grant reduces the asking price of the land from
$78,500/acre to $39,250/acre.
The 16.69 acre site includes approximately 2.47 acres intended for future expansion. 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 a new warehouse/office complex with a
minimum assessed value for taxation purposes of not less than $4,000,000. The tax
revenue stream from that assessment will support the $731,000 borrowing over a ten
year period. The company has worked with a local bank to purchase the TIF bond.
The attached Development Agreement establishes the terms of the sale of the property
to Chavenelle Warehouse Development, LLC and Theisens Supply, Inc. The key
elements of the agreement include the following:
"
,
1) The purchase price is $78,500 per acre for 16.749 acres. An Acquisition Grant to
the developer reduces the cost to $39,250 per acre. Approximately 2.47 acres of
this site is identified for future expansion. If such expansion does not occur, a
portion of this acquisition grant will need to be repaid to the City.
2) The property will be conveyed on or before July 28, 2006.
3) The company must construct a building of not less than 110,000 square feet
costing not less than $4,000,000.
4) After the building is constructed, Chavenelle Warehouse Development LLC will
trade this property with Theisen Supply, Inc. for their current warehouse/office
complex at 4949 Chavenelle Rd.
5) Theisen Supply, Inc. must retain 48 FTE positions and create 10 new jobs within
four years. The 58 jobs must be retained for 6 additional years after the initial 48
months.
6) The company will receive an upfront economic development TIF grant estimated
at $731,000. This grant will be funded by a bank note which will be repaid over
10 years by the incremental property taxes associated with this project. This
grant will be tied to the creation and maintenance of 58 full time positions over
this 10 year time frame.
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 for public hearing the disposition of the Dubuque
Industrial Center West property to Chavenelle Warehouse Development, LLC for the
purpose of constructing a 110,000 sq. ft. warehouse/office and trading the property with
Theisen Supply, Inc. 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.
F:IUSERSIDHeiarITheisen'sICouncil memo to MVM.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.
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 CHAVENELLE WAREHOUSE
DEVELOPMENT, LLC 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 1 of Lot 2 of Dubuque Industrial Center West 5th Addition in the City of Dubuque, Iowa
And
Whereas, City, Chavenelle Warehouse Development, LLC 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 ofthe City Clerk, City Hall, 13th and Central Avenue,
Dubuque, Iowa, pursuant to which City will convey the Property to Chavenelle Warehouse
Development, LLC; 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 Chavenelle Warehouse Development, LLC; and
Whereas, it is deemed necessary and advisable that City should authorize Urban
Renewal Tax Increment Revenue obligations, as authorized 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 Chavenelle Warehouse Development, LLC.
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 19th day of
June, 2006, at 6:30 o'clock p.m. in the Auditorium of the Carnegie-Stout Public Library in
Dubuque, Iowa, 11 th & Locust, 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 the authorization of Urban Renewal Tax Increment
Revenue obligations and the execution of the Development Agreement relating thereto with
Chavenelle Warehouse Development, LLC 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 Chavenelle Warehouse
Development, LLC and Theisen Supply, Inc. pursuant to the Development Agreement under
the terms and conditions of said Urban Renewal Plan. It is expected that the aggregate
amount of the Tax Increment Revenue obligations not to exceed $731,000, including
interest costs and administrative fees.
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 5th day of June, 2006.
Attest:
Roy D. Buol, Mayor
Jeanne F. Schneider, City Clerk
.
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE MATTER OF THE PROPOSED AUTHORIZATION OF
URBAN RENEWAL TAX INCREMENT REVENUE OBLIGATIONS AND THE
EXECUTION OF A DEVELOPMENT AGREEMENT RELATING THERETO WITH
CHAVENELLE WAREHOUSE DEVELOPMENT, LLC 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 19th day of June, 2006, at 6:30 p.m. in the Camegie-
Stout Public Library Auditorium, 360 West 11th Street, Dubuque, Iowa, at which
meeting the City Council proposes to take action disposing of the City's interest by
Deed to Chavenelle Warehouse Development, LLC in the following described real
estate:
Lot 1 of Lot 2 of 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 Chavenelle
Warehouse Development, LLC 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 Chavenelle Warehouse Development, LLC and
Theisen Supply, Inc., pursuant to a Development Agreement entered into with
Chavenelle Warehouse Development, LLC 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 not to exceed $731,000, including
interest costs and administrative fees.
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 this _ day of
2006.
Jeanne F. Schneider
City Clerk of Dubuque, Iowa
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. 213-06
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 CHAVENELLE WAREHOUSE
DEVELOPMENT, LLC 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 1 of Lot 2 of Dubuque Industrial Center West 5th Addition in the City of Dubuque, Iowa
And
Whereas, City, Chavenelle Warehouse Development, LLC 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 Chavenelle Warehouse
Development, LLC as shown on Exhibit A 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 Chavenelle Warehouse Development, LLC; and
Whereas, it is deemed necessary and advisable that City should authorize Urban
Renewal Tax Increment Revenue obligations, as authorized 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 Chavenelle Warehouse Development, LLC.
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 19th day of
June, 2006, at 6:30 o'clock p.m. in the Auditorium of the Carnegie-Stout Public Library in
Dubuque, Iowa, 11th & Locust, 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 the authorization of Urban Renewal Tax Increment
Revenue obligations and the execution of the Development Agreement relating thereto with
Chavenelle Warehouse Development, LLC 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 Chavenelle Warehouse
Development, LLC and Theisen Supply, Inc. pursuant to the Development Agreement under
the terms and conditions of said Urban Renewal Plan. It is expected that the aggregate
amount of the Tax Increment Revenue obligations not to exceed $731,000, including
interest costs and administrative fees.
Section 4. The Clerk is hereby directed to cause at least one publication to be
made of a notice of said meeting, in a newspaper, printed wholly in the English language,
published at least once weekly, and having general circulation in said City, said publication
to be not less than four days nor more than twenty days before the date of said meeting on
the issuance of said obligations.
Section 5. That the notice of the proposed action to issue said obligations shall
be in substantially the form attached hereto.
Passed, approved and adopted this 5th day of June, 2006.
~/~.
Attest:
Ann E. Michalski,
Mayor Pro-Tern
EXHIBIT A
PREPARE-O BY: IIW ENGINEERS oIi: SURVEYORS PoCo "'!5!5 PENNSY1.VANIA A~ DUBUQUE, IOWA. (:563) 558-246..
PLAT OF SURVEY
LOT 1 OF 2 AND LOT 2 OF 2, DUBUQUE
INDUSTRIAL CENTER WEST 5TH ADDITION IN
THE CITY OF DUBUQUE, IOWA
SE 1/4-NE 1/4 N66"59'02"E 965.68'
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DESCRIPTION: LOT 2, DUBUQUE INDUSTRIAL () RECORD INfORMAnON
CENTER WEST 5TH ADDITION IN THE CITY ROW RIGHT-Of-WAY
OF DUBUQUE, IOWA !iQIE
PROPRIETOR: CITY OF DUBUQUE THIS SURVEY IS SUBJECT TO EASEMENTS,
SURVEYED FOR: CITY DF DUBUQUE RESERVATIONS, RESTRICTIONS AND
DATE OF SURVEY: MAY 2006 RIGHTS-OF-WAY OF RECORD AND NOT OF
TOTAL AREA SURVEYED: 25.732 ACRES RECORD.
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I HEREBY CERTFY lHA.T lloIIS LAND SUR\'EY1NC CIOCtJMENT WAS PREPARED
AHD 1HE REl.AlED Sl.IR'oEY WORK WAS PERFORlolED BY ME OR UNDER MY
D1R'ECT PERSONAL :!VPERVISK>>I ANO TMAT I AN A DlA..Y I..ICENSED LAND
SUR\'E"I'OR lMJfR lHt LAWS or TIlE STAlE OF IOWA.
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JOHN II. TRANMER DATE
UCfHSE NO. 128;'1 lilT UCfHSE ROfEWM. DATE 1$ 12/31/2000
P-'OES OR SHEElS CO\'etEO BY 11I1S SEAL
DRA'l'IN ARC PLAT NO. 63 1.1\ De.
CHECkED Jt.IT PROJ. NO. 1JEl089-Dl
ATE ~24-08 SHEET 1 of 2
: 06\089 089-01\0l5oe9-0I WG 0&
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
CHAVENELLE WAREHOUSE DEVELOPMENT, LLC,
AND
THEISEN SUPPLY, INC.
This Agreement, dated for reference purposes the _ day of June, 2006,
by 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 (Urban Renewal Act), Chavenelle Warehouse Development,
LLC, an Iowa limited liability company with its principal place of business at
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, (as amended, attached hereto as
Exhibit A) (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement and in the form attached hereto, has been recorded among the land
records in the office of the Recorder of Dubuque County, Iowa; and
WHEREAS, Employer has determined that it requires a new corporate office
and distribution facility which Employer represents is the home office for a
multistate business as provided in Iowa Code 9 403.8(2) to maintain and expand its
operations and employment in the Project Area; and
WHEREAS, Developer and Leo A. Theisen (Theisen) have entered into an
agreement for the construction of a corporate officelindustrial facility; and
WHEREAS, Developer has requested that City sell to Developer 16.749
acres of which 15.447 acres are usable, legally described as Lot 1 of 2, Dubuque
Industrial Center West 5th Addition identified on Exhibit 8, attached, in the City of
Dubuque, Dubuque County, Iowa, together with all easements, tenements,
hereditaments, and appurtenances belonging thereto (the Property)(the parties
agree to amend Exhibit B upon determination of the exact location and extent of the
Property and legal description), so that Developer may develop the Property,
located in the Project Area for the construction of a corporate officelindustrial facility
and thereafter sell such property to Employer for use and occupancy with
appurtenant uses which City has determined and represented to Developer and
Employer 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 Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The purchase price for the Property (the Purchase Price)
shall be the sum of One Million Two Hundred Twelve Thousand, Five Hundred
Eighty-Nine and 50/100 Dollars ($1,212,589.50) (seventy eight thousand five
hundred Dollars ($78,500.00) per usable acre for 15.447 net usable acres) with a
total acquisition of 16.749, which shall be due and payable by Developer in
immediately available funds in favor of City, on or before July 28, 2006, or on such
other date as the parties may mutually agree (the Closing Date).
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions
and covenants of record as of the Closing Date hereof to the extent not 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 an
abstract of title to the Property continued through the date of this Agreement
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
Property, and such abstract shall become the property of Developer when
the Purchase Price is paid in full in the aforesaid manner.
2
(2) Developer shall have until time of 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
or Employer'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 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 Riahts of Insoection, Testina and Review. Developer and/or Employer, their
counsel, accountants, agents and other representatives, shall have full and
continuing access to the Property and all parts thereof, upon reasonable notice to
City. Developer and/or Employer and their agent and representatives shall also
have the right to enter upon Property at any time after the execution and delivery
hereof for any purpose whatsoever, including, but not limited to, inspecting,
surveying, engineering, test boring, and performing environmental tests, provided
that Developer and Employer 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 or Employer, their agents, or representatives upon the
Property (except for any damage, claim, liability or cause of action arising from
conditions existing prior to any such entry upon the Property), and shall have the
further right to make such inquiries of governmental agencies and utility companies,
etc. and to make such feasibility studies and analyses as they consider appropriate.
1.4 Reoresentations and Warranties of Citv. In order to induce Developer and
Employer to enter into this Agreement and purchase the Property, City hereby
represents and warrants to Developer and to Employer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer or Employer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
3
(2) No ordinance or hearing is now or before any local governmental
body that either contemplates or authorizes any public improvements or
special tax levies, the cost of which may be assessed against the Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re-align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer 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 Property of which it has actual notice. The Property is in
material compliance with all applicable zoning, fire, building, and health
statutes, ordinances, and regulations. The Property is currently zoned PUD
and Employer's intended use of the Property as a corporate office/industrial
facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
4
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer at time of closing confirming the representation contained herein,
in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property, 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 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 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 Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
5
effect as if such representations and warranties had been made on and as of
the Closing Date.
1.5 Conditions to ClosinQ. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer and Employer 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 to that effect in the form of Exhibit I.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Employer, in its sole and absolute discretion, having approved of any
improvements by Developer hereunder.
(4) Subject to Employer's written approval, Developer having obtained
any and all necessary governmental approvals, including without limitations
approval of zoning, subdivision or platting which might be necessary or
desirable in connection with the sale, transfer and development of the
Property. Any conditions imposed as a part of the zoning, platting or
subdivision must be satisfactory to Developer and Employer respectively, in
their 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 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
Property by Developer or Employer, and the construction, use and
occupancy of the project with the intent and understanding that Developer,
Employer, and their respective 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 and Employer to
6
streamline and facilitate the obtaining of such permits, approvals and
consents.
(5) City, having given all required notices to or obtaining prior approval,
consent or permission of any federal, state, municipal or local governmental
agency, body, board or official to the sale of the Property; 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 Developer's financial ability as the reasonable judgment of
the City requires.
(8) Execution of a purchase agreement for the Property between
Developer and Employer.
(9) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(10) Receipt of an opinion of counsel to Employer in the form attached
hereto as Exhibit E.
(11) Developer and Employer shall have the right to terminate this
Agreement at anytime prior to the consummation of the closing on the
Closing Date if either Developer or Employer determines in its sole discretion
that conditions necessary for the successful completion of the Project
contemplated herein have not been satisfied in either 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 Closina. The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Property 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.
7
1.7 Citv's Obliqations at Closinq. At or prior to the Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (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 Property 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 Property.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1.8 Deliverv of Purchase Price: Obliqations At Closinq. 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 Closinq 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.
(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.
8
(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 payor cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property 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 a corporate office/industrial facility on the Property for Employer.
Specifically, Developer is charged with constructing the building and certain internal
systems thereto, and with finishing the building 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 to
construct on the Property an office/ warehouse facility of not less than one hundred
ten thousand (110,000) square feet of floor space along with necessary site work
as contemplated in this Agreement at a cost of not less than $2,800,000.00 .
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of Property and the construction of Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the 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 Property. All work with
respect to the Minimum Improvements shall be in substantial conformity with the
Construction Plans approved by City.
2.3 Timinq of Improvements. Developer hereby agrees that construction of
Minimum Improvements on the Property shall be commenced within three (3)
months after the Closing Date, and shall be substantially completed by June 30,
2007. The time frames for the performance of these obligations shall be
9
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.
Employer acknowledges that 2.45 acres of the Property is intended as an
expansion area. If such expansion area is not developed within ten years from the
date of this Agreement with improvement substantially similar to the Minimum
Improvements, Employer shall pay to City within thirty days of such date the
Acquisition Grant for such part of the expansion area not so improved ($39,250.00
x number of acres not so improved). Such ten-year period shall begin to run on 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 recordable form and shall be a conclusive determination of
the satisfaction and termination of the agreements and covenants in this
Agreement and in the Deed with respect to the obligations of Developer to
construct 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 Riqhts. 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 or Employer 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, or such other date as
the parties shall mutually agree upon in writing, in the amount of Six Hundred Six
Thousand, Two Hundred Ninety-Four and 75/100 Dollars ($606,294.75)(thirty-nine
thousand two hundred and fifty Dollars ($39,250.00) per acre x 15.447 usable
acres). The parties agree that the Acquisition Grant shall be payable in the form of
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a credit favoring Developer at time of Closing with the effect of directly offsetting a
portion of the purchase price obligation of Developer.
3.2 Economic Development Grant. For and in consideration of Developer's and
Employer's commitments as provided herein, City agrees (subject to the conditions
set forth in this Section) to make an Economic Development Grant to Developer on
the Closing Date, or such other date as the parties shall mutually agree upon in
writing ("Funding Date"). The Economic Development Grant shall not exceed
seven hundred thirty-one thousand and no/100 dollars ($ 731,OOO.00)(or such other
amount determined as provided in Section 3.3 hereof) and shall be payable solely
and only from the proceeds of the sale of urban renewal Tax Increment Revenue
bonds or notes by City as described in Section 3.3 hereof, and not from any other
source.
3.3 Issuance of Notes. Employer and Developer acknowledge and agree that
City intends to finance its costs associated with the funding of the Economic
Development Grant to Developer through the issuance of urban renewal Tax
Increment Revenue bonds or notes to be issued by City under the provisions of
Section 403.9 of the Iowa Code, the Urban Renewal Act and this Section (such
obligation being referred to herein as "Notes"). Employer and Developer further
acknowledge and agree that they shall identify for City a purchaser for the Notes
("the Purchaser") and City agrees to negotiate in good faith with the Purchaser with
respect to the terms of the Notes. Employer and Developer further acknowledge
and agree that the Notes shall be sold on such terms and conditions, bear such
interest rates, have such reserve funding requirements, mature at such times and in
such amounts as City, in its sole but reasonable, good faith discretion, shall
determine to be acceptable to it and the Purchaser and shall be payable from and
secured solely and only by a pledge of the "Tax Increment Revenues" collected by
City in respect of the Property and the Minimum Improvements located thereon
during a period not to exceed ten (10) years. The parties hereto intend that the
Notes to be issued in the maximum amount not to exceed seven hundred thirty-one
thousand and no/100 dollars ($ 731,000.00) plus issuance costs that will be repaid
from the Tax Increment Revenues collected by City in respect of the Property and
the Minimum Improvements during a period of ten (10) years, taking into account
the Purchaser's requirements for debt service coverage and reserve funding.
Proceeds of the Notes shall be applied only to the payment of capitalized interest
thereon (if necessary), debt service reserve funding, costs of issuance and the
payment of the Economic Development Grant. City shall have no obligation to fund
the Economic Development Grant to be paid hereunder from any source other than
the proceeds of the Notes. City's obligation to issue the Notes and undertake its
obligations hereunder shall be subject in all respects to unavoidable delays as
determined in Section 2.3, the provisions of this Section, and to the satisfaction of
all conditions required (in the reasonable judgment of bond counsel for City) by
Chapter 403 of the Code of Iowa, as amended, with respect to the issuance of the
Notes.
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3.4 Limitations on Financial Undertakinas of Citv. Notwithstanding any other
provisions of this Agreement, City shall have no obligation to Developer under this
Agreement to issue the Notes or to fund the Economic Development Grant to
Developer, if any of the following conditions exist as of the Closing Date:
(1) City is unable to complete the sale of the Notes on such terms and
conditions as it shall deem necessary or desirable in its sole, but reasonable,
good faith discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or
both, would be entitled) under Section 7 of this Agreement to exercise any
remedies set forth therein as a result of any Event of Default; or
(3) There has been, or there occurs, a material change in the financing
commitments secured by Developer for construction of Minimum
Improvements, which change(s) make it substantially more likely, in the
reasonable judgment of City, that Developer will be unable to fulfill its
covenants and obligations under this Agreement to construct the Minimum
Improvements; or
(4) City shall not have received a legal opinion from Employer's counsel
in substantially the form attached hereto as Exhibit E.
3.5 Use of Tax Increments. Developer and Employer recognize that City intends
to utilize the Tax Increment Revenues collected each year in respect of Minimum
Improvements to pay debt service on the Notes. Notwithstanding the foregoing,
City shall be free to use all Tax Increment Revenues collected each year in respect
of Minimum Improvements or other properties within Project Area for any purpose
for which the Tax Increment Revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Act, and City shall have no obligation to Developer
and Employer with respect to use thereof.
SECTION 4. COVENANTS OF EMPLOYER
4.1 Job Creation. Employer shall create ten (10) full-time equivalent (2080 hours
per year) employees in Dubuque, Iowa within four (4) years from the date of this
Agreement, and shall maintain those jobs during the Term of this Agreement. It is
agreed by the parties that Employer has forty-eight (48) full-time equivalent
employees (FTE)(2080 hours per year) in Dubuque, Iowa, as of May 15, 2006. FTE
shall be calculated by adding full-time and part-time employees together using 2080
hours per year as a full-time employee. In the event that the certificate provided to
City under Section 4.2 hereof on July 1, 2016, discloses that Employer does not as
of that date have at least fifty-eight (58) FTE employees (2080 hours per year) as
provided hereinabove, Employer shall pay to City, promptly upon written demand
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therefor, an amount equal to $ 10,453.35 per job not created ($606,294.75 divided
by 58 FTE employees = $10,453.35). In the event that Employer is required to pay
City under the second paragraph of Section 2.3, $606,294.75 shall be reduced by
the amount of such payment). In addition, for the ten (10) positions that Employer
fails to create and maintain for any year (July-June) during the Term of this
Agreement after the fourth year, Employer shall reimburse City the percentage of
the Tax Increment Revenues paid that year (July-June) to the Purchaser of the
Note under Section 3.3 as the number of such positions bears to 58 . (For example,
if Employer has 50 FTE employees, the reimbursement would be 13.79% (8/58
employees) of the Tax Increment Revenues paid by City that year (July-June)).
4.2 Certification. To assist City in monitoring the performance of Employer
hereunder, four (4) years from the date of this Agreement, and again each year
thereafter during the term of this Agreement, a duly authorized officer of Employer
shall certify to City (a) the number of full time equivalent jobs employed at Property,
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 July 1, 2010, and
on July 1 of each year thereafter during the term of this Agreement
4.3 Execution of Assessment Aqreement. Developer shall agree to, and with
City, shall execute, as soon as the plans and specifications for Minimum
Improvements are prepared, but no later than Closing Date, an Assessment
Agreement substantially in the form attached hereto as Exhibit G ("Assessment
Agreement") pursuant to the provisions of Section 403.6(19) of the Code of Iowa
specifying the Assessor's Minimum Actual Value for Property and Minimum
Improvements for calculation of real property taxes. Specifically, Developer shall
agree to a minimum actual value for Property and Minimum Improvements which
will result in a minimum actual value as of January 1, 2007 of not less than Four
Million Dollars ($2,800,000.00) (such minimum actual value at the time applicable is
herein referred to as the "Assessor's Minimum Actual Value"). Nothing in the
Assessment Agreement shall limit the discretion of the Assessor to assign an actual
value to Property in excess of such Assessor's Minimum Actual Value nor prohibit
Developer from seeking through the exercise of legal or administrative remedies a
reduction in such actual value for property tax purposes; provided, however, that
Developer shall not seek a reduction of such actual value below Assessor's
Minimum Actual Value in any year so long as Assessment Agreement shall remain
in effect. The Assessment Agreement shall remain in effect until June 1, 2016 (the
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"Termination Date"). Assessment Agreement shall be certified by the Assessor for
City as provided in Iowa Code Section 403.6(19) and shall be filed for record in the
office of the County Recorder of Dubuque County, and such filing shall constitute
notice to any subsequent encumbrancer or purchaser of Property (or part thereof),
whether voluntary or involuntary, and such Assessment Agreement shall be binding
and enforceable in its entirety against any such subsequent purchaser or
encumbrancer.
4.4 Books and Records. During the term of this Agreement, Developer and
Employer 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 and Employer in accordance with generally
accepted accounting principles consistently applied throughout the period involved,
and Developer and Employer shall provide reasonable protection against loss or
damage to such books of record and account.
4.5 Real Propertv Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
4.6 No Other Exemptions. During the term of this Agreement, Developer and
Employer agree not to apply for any other state or local property tax exemptions
which are available with respect to the Development Property or the Minimum
Improvements located thereon that may now be, or hereafter become, available
under state law or city ordinance during the term of this Agreement, including those
that arise under Iowa Code Chapters 404 and 427, as amended.
4.7 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):
(a) 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;
(b) Insurance as set forth in the attached Insurance Schedule.
(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
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City shall furnish proof of insurance in the form of a certificate of insurance)
insurance as follows:
(a) 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 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 directly to
Developer as its interests may appear, and Developer shall forthwith repair,
reconstruct and restore the Minimum Improvements to substantially the
same or an improved condition or value as they existed prior to the event
causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net
Proceeds of any insurance relating to such damage received by Developer
to the payment or reimbursement of the costs thereof, subject, however, to
the terms of any mortgage encumbering title to the Property (as its interests
may appear). Developer shall complete the repair, reconstruction and
restoration of Minimum Improvements whether or not the Net Proceeds of
insurance received by Developer for such Purposes are sufficient.
4.8 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions. Nothing in this Agreement, however, shall be deemed to
alter any agreements between Developer or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
4.9 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.
4.10 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
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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.
4.11 Non-Transferabilitv. 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 Property be transferred by Developer to
another party without the prior written consent of City, which shall not be
unreasonably withheld. Thereafter, Developer or Employer shall have the right to
assign this Agreement and upon assumption of the Agreement by the assignee,
Developer shall no longer be responsible for its obligations under this Agreement.
Notwithstanding the foregoing, City acknowledges that Chavenelle Warehouse
Development, LLC intends to transfer the Property to Theisen and City hereby
consents to such transfer to Theisen. As it relates to the City only, effective upon
such transfer of the Property from Chavenelle Warehouse Development, LLC to
Theisen, Chavenelle Warehouse Development, LLC shall be released from its
obligations to City hereunder and Theisen Supply, Inc. hereby agrees that it shall
thereafter be deemed to be Developer for all purposes of this Agreement and
Theisen Supply, Inc. hereby agrees to assume all obligations of Developer under
this Agreement unless otherwise stated herein.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an industrial manufacturing center is in full
compliance with the Urban Renewal Plan) (however, Developer shall not
have any liability to City to the extent that a successor in interest shall breach
this covenant and City shall seek enforcement of this covenant directly
against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
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to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same).
4.13 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 Property and any hazardous substance or environmental
contamination located in or on the Property, occurring after Developer takes
possession of the Property.
(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
Employer or their 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.
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4.14 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, anyone or more of the following events:
(1) Failure by Developer or Employer to payor cause to be paid, before
delinquency, all real property taxes assessed with respect to the Minimum
Improvements and the Property. 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
in violation of the provisions of this Agreement prior to the issuance of the
final Certificate of Completion.
(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 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 Employer (and the holder of any mortgage
encumbering any interest in the Property of which City has been notified of in
writing) of the Event of Default, but only if the Event of Default has not been cured
within sixty (60) days following such notice, or if the Event of Default cannot be
cured within sixty (60) days and Developer or Employer 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,
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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-vestinq Title in Citv Upon Happeninq of Event Subsequent to
Conveyance to Developer. In the event that, subsequent to conveyance of the
Property 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 Property or construction of the Minimum
Improvements (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 Property 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) 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 Property to Developer shall be made upon the condition that
(and the Deed shall contain a condition subsequent to the effect that), in the event
of default under Section 5.1 on the part of Developer and failure on the part of
Developer or Employer 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 Property conveyed to Developer, and that
such title and all rights and interests of Developer, and any assigns or successors
in interests of Developer, and any assigns or successors in interest to and in
Property, shall revert to City (subject to the provisions of Section 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 or Employer 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
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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 ProDertv: DisDosition of Proceeds. Upon the re-
vesting in City of title to the Property 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 Property or part thereof as soon and in such manner as City
shall find feasible and consistent with the objectives of such law and of the Urban
Renewal Plan to a qualified and responsible party or parties (as determined by City
in its sole discretion) who will assume the obligation of making or completing the
Minimum Improvements or such other improvements in their stead as shall be
satisfactory to City and in accordance with the uses specified for such the Property
or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property 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 Property, or any portion thereof, or any improvements thereon,
previously acquiesced in by City pursuant to this Agreement. If more than
one mortgage on the Property, 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 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 Property or part thereof (but
less any income derived by City from the Property or part thereof in
connection with such management); any payments made or necessary to be
made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by the City) existing on the Property 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 Property or part thereof, and any
amounts otherwise owing to City (including water and sewer charges) by
Developer and its successors or transferees; and
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(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum
of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property, less (2) any gains or income withdrawn or made by Developer from
this Agreement or the Property.
5.5 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.
5.6 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 Aqreement to Pav Attornevs' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.8 Remedies on Default bv Citv. 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 may suspend their
performance under this Agreement until they receive assurances from City,
deemed adequate by Developer or Employer, that City will cure its default and
continue its performance under this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
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having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
If to Developer:
Wayne A. Briggs
Chavenelle Warehouse Development, LLC
132 Main Street
Dubuque, IA 52001
Phone: (563) 557-2504
With copy to:
Brian Kane, Esq.
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001
If to Employer:
Leo A. Theisen
Theisen Supply, Inc.
4949 Chavenelle Rd.
Dubuque, IA 52002-2634
Phone: (563) 556-4738
Fax: (563) 556-7959
With copy to:
John O'Connor, Esq.
O'Connor & Thomas, P.C.
700 Locust Street, Suite 200
P.O. Box 599
Dubuque, IA 52001
If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, IA 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 Bindinq Effect. This Agreement shall be binding upon and shall inure to the
benefit of City, Developer and Employer and their respective successors and
assigns.
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6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on July 1, 2016 (the Termination Date).
6.4. Execution Bv 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.
6.5 Memorandum of Development Aqreement. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as
Exhibit H in the office of the Recorder of Dubuque County, Iowa. Developer
shall pay the costs for so recording.
CITY OF DUBUQUE, IOWA
CHAVENELLE WAREHOUSE
DEVELOPMENT, LLC
(DEVELOPER)
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
THEISEN SUPPLY, INC.
(EMPLOYER)
._OJ
~-"'.
/
BY.~k-// c(VL~
Leo A. Theisen, President
F:\USERS\tsteckle\Lindahl\Agreements\TheisensDevelopmentAgreementFinal060206bal.doc
Last saved by Tracey Stecklein; 6/2/2006 9:58 AM
23
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized
to do business in Iowa. All insurers shall have a rating of A or better in the
current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque, except for 10 day notice for non-
payment, if cancellation is prior to the expiration date. This endorsement
supersedes the standard cancellation statement on the Certificate of Insurance.
3. shall furnish a signed Certificate of Insurance to the
City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such
certificates shall include cODies of the following policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. shall be required to carry the following minimum
coverage/limits or greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
Medical Payments
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form
CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be
included. All deviations or exclusions from the standard ISO commercial
24
general liability form CG 0001, or Business Owners form BP 0002, shall be
clearly identified.
25
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities
and their board members, employees and volunteers shall be named as an
additional insured on General Liability Policies using ISO endorsement CG
20 26 0704 "Additional Insured - Designated Person or Organization," or it's
equivalent. - See Specimen
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident
Each Employee - Disease
Policy Limit - Disease
$100,000
$100,000
$500,000
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
D Certificate of Liability Insurance (2 pages)
D Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
D Additional Insured 20 26 07 04
D Governmental Immunities Endorsement
26
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmentallmmunitv. The insurance carrier expressly agrees
and states that the purchase of this policy and the including of the City of
Dubuque, Iowa as an Additional Insured does not waive any of the defenses of
governmental immunity available to the City of Dubuque, Iowa under Code of
Iowa Section 670.4 as it is now exists and as it may be amended from time to
time.
2. Claims Coveraae. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Those claims not subject to Code
of Iowa Section 670.4 shall be covered by the terms and conditions of this
insurance policy.
3. Assertion of Government Immunitv. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do so
at any time and shall do so upon the timely written request of the insurance
carrier.
4. Non-Denial of Coveraae. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Chanae in Policv. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
SPECIMEN
27
PI.:I I~Y Ni H.mr n
COMMERCI.6L GENERAL UABILITV
CG 21l :16 07 04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
1 bls eodI)(S€r1ef\l mooif e!;. i"l!:-uran,:e :>rVo'lC<i::ld umhil thb 'ulb'Mr'lg
COMMl.f-.\CIAL G[NERA.l ll....Bl~ ITV COVERAGE PART
SCHEDULE
Name Of Additionalll'l6ur1lId PiI'rson(8) Of Organiz.ation(sj
Th' Ci-::.y :1'- I)ubuque~ h,clucinU df I it~ ,:=.!,::.::t::.r1 .W(! <~pp.~;nr.(:d
(jr'l,.~;.:.ls! all ;-::s elpflJ:tf::;'t'~ ~lIltl \'I.:IIJIlI~l;'.;or':.. ;111 r::c. rl')rit.(.~"
(ljf!r,lIis::.il1n:; .:.l1d/Ol' autr;or~:i~s Dfld t"f:'lr :J:l)t+r. +11~Ulb~r~,.
enlpl~yeRs ~nd yclunteers,
II'l'Ormatltf\__1_Q.9Jlled :1) CI)l"r~tl'- trr::. Sr.he.ct':l_1e if not ShOW'l above. .I('JI tie $"Io....n if" the f)p.C~.;I.r<!tiorfi
SC'l;lion II - Wllo ko ArlI In&urll>d is iJnerdcc; 1c In
elude as- an edditiCtnB insu~d th,~ fJt~~"lf">:! III' tll!:f"Jllt
zs.tfon(<ij ehvwn in the; Scr~d...lc- t.ut ~nty wiT re-5p€'ct
ti) h<lt)lllly IN 'tooiil').' injwy". "[)rcpety dSrTl3jJC" Of
~per50r--.a1 B~,d ,:.j'J3rtsirq :nIUrv' ca~ed, j.'l whrif'! or
in ;J3~. by 'f3Uf ::I[;~ IJf orrllSsKln: ::::r t~e acts. or om s-
SIOn:s 01 ttl:lse I}.:ting on !(Our bet" al;'
A. In thP. pemrmanCE- ot ','our cwqcw,Q coor;,tiorc, IY
B, In conn""F:~iv) wll'" '/O'j( :;.re-mise; o\omed "Yy r.\1
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~?EC'tt"~
(':i':"fI ')j;. 01 il4
e. so r'TIneriE'S. I fIC., 2('C4
PSQe 1 :)f 1
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ACORQ.
CERTIFICATE OF LIABILITY INSURANCE
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TIlts CERTnCAlE IS ~S5IJED"5 A JMTlE~ 01- INf-QI(MAllQN
ONL.... AND CCN.F-ERS NO RIGHTS UMN THE CERTIFICATE
HOLDER THIS CERTIFICA It: DOtS NOI AMt:NV, f)(TE--:NrJ OR
AL'fER THE COVERAGE AFFORDED BY THE: POUCIE.S BELO.,..
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HE CITY OF DUBU~UE 15 LIST[O AS A~ AOCITION4l INSURED ~ GENERAL LIABTIT1Y ~}l IClt~ U~IM(; ISO lNOORSE-
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CERTf
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CITY Of- IllJEtlJUt.
CITY HAll
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29
IMPORTANT
If Ule O:':.'li[ ,~,11~,: ll,ill1~ t~, ;,n ,oDD: lUi.,!}!,L IN~Jt'{~D 1I1l,.; I'Uli'~"'lio.;:;; ,II.":;' t", ~ l:X)"',~, ,1o,..kllt:IIIt'IH
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If :';UB~i)13I'.TI(;>N IS ':.f'. Vrl) ~)..Di€,l;t 10 till;; lo::'ll'l:; ~Ilt: UJlujiliPI'-;' _,r II ~ f"'IO<,""!" ,,,,,,I.cli, I-'uli(.jt',~ 'lIa~
ll;Jqlll!l~ , II \.tl<Jl)t*,f..",nt ..:. statef'''=.'f't on :tll~ (.(Jr':i~c<ltl~ l.~:,t,~ Ill:; t:1 ;lr'~1 I i!JIII ~ 1,_ I',~ (;",,1 ih'_--dl~
hOldC1 '111,c.~-, d SIJ::' I':'nr1'-,Nl":rr,+~II:;;':1
DISCLAIMER
111{> U?r:rIi,~,lt~ of 1I~"'al1~t" nil 1I1l'! rf!..er1\"" sf\'1e crt' tn:> ()I'm dl)l;~ rI<X :_~.F~~;I.iliJ(1: ;., 0~1l11';ju lo.+"'~l"lI
:he 1~:;unl:1lrlsurl,;;l(:;:. wtt'O<'i!C'~ rCPrf':f.!':"lf-:;j[I'..e or pro-::lu.:..;;r, i:lmJ :t',:/I:=-lllil..:i:lI,,'IIVtl.; "", I",~; il
2t1IIITall'lBly {.ll rIG!:I<:II.ivt;'v ,:"'1~":~, f:<!t"ncl or alter lt1e CO'f':'r3ge :lffo"th);J bf :t.e p~,III:il~~ li~.I'" i 11~1t":ut
SPECIMEN
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30
rOL'CY t~.J\1[;[H COMMER~!AL GENERAL LIABILITY
CG 2504 0:3 97
THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CARErULLY
DESIGNATED LOCATlON(S)
GENERAL AGGREGA TE LIMIT
C(IMI'.'ERCIAL GENERM IIARIII ~y CO'.fF::i'AGE PAPT
TII'::' ~lll.k;I~lJf.'lJfl1 mrx1ifip.~ ir~.IIf:lnr? nm"'I!~.('f1IIIlfi('1 ~hr.' fdlo'Hing
SPECIMEN
SCHEDULE
ioe"9r>a'Od Localionls},
:t' no r..'d!.' i::lppOlar:', F.Ih:)'ie irfc:mlatlcn re::!ulrtd to comp.ete this er.~m...nj w'l L.-~ ".hU"\'TI In t:,,~ Do?Cl.:=raliors
."," .:9[lpl(".<'lt:~ 10 :r..~ eno:.lr'Ser~€ nf.:,
A. l-or..1t ::;um::; .....h.:::h Itlc i"JSu-~c b~(:t'''l)~:-l 1~!..F',lIy
:::~jg~l~ I.) 1J-.:..fY .:016 d"magee. C3USed b-I
flGt:urf8rcF.". mdM r.oVFRA!3f...: A rSECTIQN
I: <ilnd to- all rrEdir:::I1 t'!);fE!n'3oe$ C3ll.;sed b:/ c?U-
,ier.:S lmder GUVLHAGE C (SECTION 1'1, whk:;"1
can be aNrihuted only to u;'::";li:lll'--"I$ i::ll a liin;! eo
l.Eol;;Jll:llHd "I~hon" s.hcw'l In th~ SC-c-<I'U c
CCJoo/e
1. A seoaratof D~si~rl,,:WU lu(::norl Genersl
Agg'f:'I]3le 'mit .Jp::Il,es to each dCSl'~naK,j
'-;o(.at~)rr. "ltd :h.at 4mir IS e-.11"""l1 10 me
.."Illum[ IJf !.he Gell~!cl A!:jgrcgate L1rn 1
:oohown in the UecartJllon!:S
2. TtK Dc:.:s1bln::Jlr.:d ~c.atlDn (?~r?:l ,Ag!7eg~le
I ,nlll ,~ UI~ 1111..r:s.L '.v~ will P:!1 for the sum of all
darreges ul'"lOE-r c~>Jrn;'.Gr A, e:e:cep- dam-
agee. b9C;3Lse ot "bodily rfllr..fy' 01' "prop::rti
:l<~"I.8!Je" Ino::lu::ieci ir tt-e 'proouc1'S.:-.:lInplett.-.d
::Iper.;tions hOWilrc". ;,tflJ lOt rnediUlI ex~~f"l"i,O>~.
under CO\IFR/\GE C reQ<](j!e;ss 01 me 'IUrn-
(.c....of
.. nsu'ws
b. Caims 1ll.'>:J,;, ,> '~Uii~' L'fU\..-Y'1. 'J!'
C, Pcr$On~.i a oI9:o;r'i7R-inn" FTl:lki"'J (:!;)lrrlS
;)f hrn['png' suits'
3. A-l'f f'~leNs m~lje under CUVERA,:;c: A
fOr dam.:v~(."$ or um1",-,' C:O'oJFnAG[ C fOI
meilr.aJ ~~e'lses. shall rcau~ t/"e Df'c,lg'
nat-2C: Lll\:.:dI":!"1 ~ ;.t::1<:l1 A-Y~H!lYi:llra LIHlil fa'
ther: dcsign8t~::1 . ~~tlon" wen p.ormo:-n~
\l.tlo:ll root fG>::lt.:.:::a lha Genera !~gS,.e-;};'II(: : l~lId
;.hr:wn in lh~ [)...d;"'l<-lhrlm, 'lor ';1-3.1 they re
.juce any ot')Ef" ['/€SIOfl;)t,:-d L(::..;<i~ion Gerer;:~1
^ggr~tlalt.~ Limii fCY W"l'I ::1:'"o"!r de$L1fOO4l(:u
'bc::ni::m" sho......n In 1t1e ~r~McdlJe aoo\'o?
4. The imi15 show'l ir the Cecj<1ratvJn~ lu~ E..::lch
OCCU-iN'GC, FirE C'romRgo"! <'3r..1 ~Aed.::;:ll b.-
pt"!r~ i,f,ntIl1ue tv 3pply_ iloweve, nsread of
b€i~ ~,u:;iect to Ihe GenJt"d1 A1:!'::J18gaL::l Lir-i1
SIKTwr in t'J!:l Ded<:llatr..ms. SUCh l!'nltS ",,"'r tl:::
tou:Jjl::",l tv Lilt: iJ~plit<JU.;..: J,"Si~'LfiI~P.111)r.:=;.IOfl
G.:::n0:3ral Ag9(t:9I1h"~ 1"1111
31
B. Fu! ;,jll SU'~I'i- "",nod ,h~ ill'~.It;d ~Jt':oc~;lI2:. 1€9"!~~'
Ot:II1<<i:'lk:d 1>:; j.:3y 8-:! dSlm9~~ C9 J&~d b,t"
'(Il;(;lIlF'(~'Ke!;' undilr '::OVERACEA. 'SI::.ClIC,)f'.:
I) -3rd fer 31il r'll?Cj.;..;!1 '='_~I_loO,I",,-",!'" r';:'Il~~t h'!" ~ir:-t~i
[}2Pt::; LlnQt;! CU/8-.;t',G[ C (SECTION I) '.vhch
r.::;;:I''Jr'{lt De ~tlribIJtP.(\ Ilnl~ tc-:::p€lator-s <)1 '-I Sir
c;le de~qr.atej 'Iocatlc-n' shown W ~he &hp..jlJlo?
at-D"!:!
1_ A"\' f"1VITP.'T!'l 'l1fidp. Lrdl.'! COVERAGE. A
tar d;:nagc5- r:." .Ir.je' ('OVE~GF C :pr
111001::;:.. e;".r;of:nsef. ~h~1I 'F!dUCE the aITcunt
:;'\'3I1able- IlnCel I'E' Gl:!'I'-l<lal AQgle-gme L1MI;
Dr t'1L PI:.:du(;'.::;.C;,)n~lele<J C)~r,jt~.w~ Ag-
Gr-:'[f,t~ I nill ...,I"dl~~'f.:( io.'l appli:::SDlc ane
2, t:i~'::tI p;:rtmerts ~nali not rEdL.Ce ~fl'l DlJsigrl~le.J
1.()("".a~icx1 Gcn":;dl PglJ1qj"J\t: lnlil
c. ':'1hcr, (.::;\.~r~~l.I'=' f',n 11;~:ll!!t'l' lc'Ill:1l11lj lJI. d :h~
"pf(x.ir;(.1r: c(JmpJeted oj::2r:::::ione h;]23(O' IE pro-
'Jiced, ::m~' paym<?nh for '~81f1agi:."~ t~;'f-;';lI~' ':1
"':"Jodi.,. ir;ur{ Of 'p:H:pert,' Jar'rlJ':J.:" nciu.je.j in
Ul~ "lJl>cuu:.::t::r-comuldec 1):1€:'~tion~. h,v;;ml will
reduce he Projuej!'i..ccmp e'\ed O/J"H' <:iLun~ A!J-
megafs limit c'1d (10( rOOli<X: l:1e GeterQ! 1\<:1
gletJate umlt nor ltIe ueSI'~n<lt<'!1 1 :-on=Jfnn Ce;-
eral Aggregale limit
D. For the ;JI..J'jX'SCS of th,~ enoorse11eflt ~'1e Defi-
nitions t>eC~lon I~ :;mP.lY.1~ 0'1 1h<'! 8d:Mon of
:he fnllDNing :le'inil 01:
"Location" r'll:ClnS prC.....I:5e:J 01...0-'1 ng tre 5Jme
or C(fH~Cllflg :~Ils, 0' rr~mi:=e;:, w-,C"r.->E! c:onm:t:-
:lon IS Inte-ruJted O'"lll t~' a ~nuu', r0adw",\' O'Icl
:er-..\'ay :rr rig>-t-cf.';'la, of a mill'J<JIJ .
E, I he pr..........ISll)r~ or 111")1" Of In:='lIfan~ 1,s,::C,ION
lit: n...~ DltE"Wise mo:lified oy this cmk":I~e"lt:r~t
-:=.ha!1 ':.c. \1 nue tc app~' a5 5tipulalcc
SPECIMEN
32
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 further expansion 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 of the City Council of the City of Dubuque, Iowa
on December 17, 1990. Resolution 48-97 of the City
Council of the City of Dubuque, Iowa on January 20,
1997 authorized and directed this amendment.
Prepared by the Community and Economic
Development Department.
February 1997
34
TABLE OF CONTENTS
A. INTRODUCTION Page 1
B. OBJECTIVES Page 2
C. DISTRICT BOUNDARIES Page 2
D. PUBLIC PURPOSE ACTIVITIES Page 3
E. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS Page 4
F. LAND ACQUISITION AND DISPOSITION Page 5
G. FINANCING ACTIVITIES Page 6
H. STATE AND LOCAL REQUIREMENTS Page 8
I. DURATION OF APPROVED URBAN RENEWAL PLAN Page 8
J. SEVERABILITY Page 9
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN Page 9
L. ATTACHMENTS Page 9
35
AMENDED and RESTATED
DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT
URBAN RENEWAL PLAN
City of Dubuque, Iowa
A. INTRODUCTION
This AMENDED and RESTATED URBAN RENEWAL PLAN (the "Plan") has been
prepared to provide for the expansion and further development and redevelopment of
the DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT (the
"District") first established by the City of Dubuque on May 2, 1988. Its intent is to
stimulate economic development activities within the expanded District through the
commitment of public actions as specified herein.
To achieve this objective, the City of Dubuque shall undertake the urban renewal
actions specified in this Plan, pursuant to the powers granted to it under Chapter 403 of
the Iowa Code, Urban Renewal Law.
This Plan is an amendment and restatement of the Dubuque Industrial Center
Economic Development District Urban Renewal Plan adopted by Resolution 130-88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and subsequently
amended by Resolution 484-90 on December 17, 1990. Resolution 48-97 of the City
Council of the City of Dubuque, Iowa on January 20, 1997 authorized and directed the
preparation of this latest amendment to the Plan. This Plan shall serve as a new urban
renewal plan for the expanded District described herein.
The division of taxation authorized by Section 403.19 and the separation of incremental
taxes as defined in Section 403.19(2) have been implemented in the existing area of the
District (hereinafter referred to as "Subarea A"). Under the terms of this Amended and
Restated Plan, the tax increment mechanism shall be continued and implemented
within the proposed expansion area of the District (hereinafter referred to as "Subarea
B") as well. The expanded District shall be subject to the provisions of a revised
ordinance of the City of Dubuque with respect to the division of taxes levied and
collected within each of Subarea A and Subarea B of the District. Incremental taxes
shall be determined separately with respect to each of the Subareas comprising the
expanded District, and when collected shall be applied, subject to such liens and
priorities as may exist or be from time to time provided, with respect to the Amended
and Restated Dubuque Industrial Center Economic Development District, as so
amended.
1
B. OBJECTIVES OF THE PLAN
The primary objectives of the Plan are the development and redevelopment of the
expanded District for economic development activities, primarily industrial park
development, through:
1. Provision of marketable industrial development sites for the purpose of
job-creating economic development activities;
2. Provision of public infrastructure improvements, including sanitary sewer,
water and stormwater detention, supportive of full development of the
District;
3. Provision of a safe, efficient and attractive circulation system;
4. Establishment of design standards which will assure cohesive and
compatible development and redevelopment of the District;
5. Provision of public amenities that provide an aesthetically appealing
environment, including open space, buffering, landscaping, water
features, signage and lighting to create a distinctive and attractive setting;
6. Creation of financial incentives necessary to encourage new and existing
businesses to invest in the District; and
7. Expansion of the property tax base of the District.
C. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of Iowa.
The City of Dubuque believes that the objectives of the Plan can best be accomplished
by defining the real property included within the District as two separate areas so as to
distinguish the existing District (Subarea A) from the proposed expansion area
(Subarea B).
Subarea A of the District shall consist of the real property legally described as follows:
All of the Dubuque Industrial Center First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth and Eleventh Additions and the adjoining public
right-of-way, all in the City of Dubuque, Dubuque County, Iowa.
Subarea B of the District shall consist of the real property legally described as follows:
2
Lot 1-1 of the NW 1/4 of the NE 1/4, the West 3/4 of the NE 1/4 of the NW 1/4,
the East 1/4 of the NE 1/4 of the NW 1/4 of Lot 1, Lot 2-1 of the SE 1/4 of the
NW 1/4, Lot 1-1 of the SE 1/4 of the NW 1/4, and the SW 1/4 of the NE 1/4, all in
Section 30, T89N, R2E, 5th P.M., Dubuque County, Iowa; also, the NW 1/4 of
the SW 1/4, the NE 1/4 of the SW 1/4, Lot 1 of the SE 1/4 of the SW 1/4, and
Lot 1 of the SW 1/4 of the SW 1/4, all in Section 30, T89N, R2E, 5th P.M., in
Dubuque County, Iowa; and all that part of a 100-foot-wide strip of the Chicago
Central Pacific Railroad right-of-way lying in the SE 1/4 of Section 30, the SE 1/4
of the SW 1/4 of Section 3D, the NW 1/4 of Section 31, and the NE 1/4 of
Section 31 all in T89N, R2E, 5th P.M. Dubuque County, Iowa, the centerline of
which is more particularly described as follows: Beginning at a point of
intersection with the easterly line of the SE 1/4 of Section 30, T89N, R2E, 5th
P.M., thence southwesterly along the centerline of said railroad 2,700 feet, more
or less a point of intersection with the westerly line of the SE 1/4 of said Section
30; thence southwesterly continuing along said centerline 845 feet, more or less,
to a point where the railroad right-of-way widens to 200 feet, said point being the
terminus of this description; also, Lot 1 of the NE 1/4 of the SE 1/4 of Section 25,
T89N, R1E, 5th P.M., Dubuque County, Iowa, and a part of Lot 1-1-1 of the SE
1/4 of the SE 1/4 of Section 25, T89N, R1 E, 5th P.M., Dubuque County, Iowa,
described as follows: beginning at the NE corner of said Lot 1-1-1; thence S 00
degrees, 15' 43" W 562.15 feet along the east line of said Lot 1-1-1; thence N 89
degrees 05' 38" W 1,336.86 feet along the northerly line of Lot 2-1-1- of the SE
1/4 of the SE 1/4 of said Section 25 and extension thereof to a point of
intersection with the west line of said Lot 1-1-1; thence N 00 degrees 34' 17" E
528.75 feet along said west line; thence N 89 degrees 28' 22" E 1,334.04 feet
along the north line of said Lot 1-1-1 to the point of beginning, and any adjoining
public right-of-way.
The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT
map (Attachment A).
The City of Dubuque reserves the right to modify the boundaries of the District at some
future date. Any amendments to the Plan will be completed in accordance with Chapter
403 of the Iowa Code, Urban Renewal Law.
D. PUBLIC PURPOSE ACTIVITIES
To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to initiate and
support development and redevelopment of the District through, among other things,
the following PUBLIC PURPOSE ACTIVITIES:
1. Acquisition of property for public improvements and private development;
2. Demolition and removal of buildings and improvements not compatible
3
with or necessary for industrial park development and all site preparation
and grading required in connection with such development;
3. Improvement, installation, construction and reconstruction of streets,
utilities and other improvements and rights-of-ways including but not
limited to the relocation of overhead utility lines, street lights, construction
of railroad spur tracks, appropriate landscaping and buffers, open space
and signage;
4. Disposition of any property acquired in the District, including sale, initial
leasing or retention by the City itself, at its fair value;
5. Preparation of property for development and redevelopment purposes
including but not limited to activities such as appraisals and architectural
and engineering studies;
6. Use of tax increment financing, loans, grants and other appropriate
financial tools in support of eligible public and private development and
redevelopment efforts;
7. Enforcement of applicable local, state and federal laws, codes and
regulations;
8. Enforcement of established design standards in furtherance of quality
development;
9. Development and implementation of a marketing program for the purpose
of promoting the purchase and development of industrial sites by private
developers;
10. Coordination and cooperation with the improvement of Seippel Road as it
affects Subarea B's accessibility to U.S. Highway 20.
Public purpose activities are limited to those areas delineated on the PUBLIC
PURPOSE ACTIVITY AREA map (Attachment B).
All public purpose activities shall be conditioned upon and shall meet the restrictions
and limitations placed upon the District by the Plan.
E. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall apply to
any and all District properties the development and/or the redevelopment of which is
assisted by the City through any of the PUBLIC PURPOSE ACTIVITIES listed above.
4
1. Land Use
a. Subarea A shall continue to be developed under the regulations of the
existing Dubuque Industrial Center Planned Industrial District. The
allowed uses provide for a mix of commercial and industrial land use
activities.
LAND USE maps (Attachments C1 and C2) identify the existing and the
proposed land uses within Subarea A.
b. Subarea B is intended to be an expansion of the Dubuque Industrial
Center and will provide additional land for commercial and industrial land
uses within a quality industrial park setting.
LAND USE maps (Attachments C1 and C2) identify the existing and the
proposed land uses within Subarea B.
2. Plannina and Desian Criteria
The planning criteria to be used to guide the physical development of both
Subarea A and Subarea B are those standards and guidelines contained within
the City of Dubuque's Zoning Ordinance and other applicable local, state and
federal codes and ordinances.
a. Subarea A development will continue to be additionally governed by the
Conditions of Development and Operation Documents of the Dubuque
Industrial Center Planned Industrial District as amended from time to time.
b. Subarea B will develop under a new PI Planned Industrial District
ordinance as required by Section 3-5.5 of the City of Dubuque Zoning
Ordinance. Development within Subarea B will follow the Planned Unit
Development regulations which require a conceptual development plan
and specific design and performance standards to be approved by
ordinance.
F. LAND ACQUISITION AND DISPOSITION
The City of Dubuque is prepared to acquire and dispose of property in support of the
development and redevelopment of the District within the parameters set forth below.
1. Land Acauisition
The City intends to negotiate the purchase of Subarea B, excluding the railroad
5
right-of-way, through contractual agreement. However, the City will acquire,
through eminent domain, any property for public or private development and
redevelopment purposes should it be unable to acquire land through negotiated
purchase.
The City also reserves the right to acquire, by negotiation or eminent domain,
property rights required for the construction or reconstruction of streets and
public utilities, or any other public facility or improvement.
2. Land Disposition
Publicly held land will be sold for the development of viable uses consistent with
this Plan and not for purposes of speculation.
Land will be disposed of in accordance with the requirements set forth in Chapter
403 of the Iowa Code, Urban Renewal Law. Developers will be selected on the
basis of the quality of their proposals and their ability to carry out such proposals
while complying with the requirements of this Plan.
Developers will be required by contractual agreement to observe the Land Use
Requirements and Planning and Design Criteria of this Plan. The contract and
other disposition documents will set forth the provisions, standards and criteria
for achieving the objectives and requirements outlined in this Plan.
3. Relocation Reauirements
No relocation is anticipated at this time.
G. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development of the
District and private investment therein, the City of Dubuque is prepared to provide
financial assistance to qualified industries and businesses through the making of loans
or grants under Chapter 15A of the Iowa Code and through the use of tax increment
financing under Chapter 403 of the Iowa Code.
1. Chapter 15A Loan or Grant
The City of Dubuque has determined that the making of loans or grants of public
funds to qualified industries and businesses is necessary to aid in the planning,
undertaking and completion of urban renewal projects authorized under this Plan
within the meaning of Section 384.24(3)(q) of the Iowa Code. Accordingly, in
furtherance of the objectives of this Plan, the City of Dubuque may determine to
issue bonds or loan agreements, in reliance upon the authority of Section
6
384.24A, Section 384.24(3)(q), Section 403.12 (general obligation bonds) or
Section 403.9 (tax increment bonds), for the purpose of making loans or grants
of public funds to qualified businesses. Alternatively, the City may determine to
use available funds for the making of such loans or grants. In determining
qualifications of recipients and whether to make any such individual loans or
grants, the City of Dubuque shall consider one or more of the factors set forth in
Section 15A.1 of the Iowa Code on a case-by-case basis.
2. Tax Increment Financina
The City of Dubuque is prepared to utilize tax increment financing as a means of
financing eligible costs incurred to implement the Public Purpose Activities
identified in Part D of this Plan. Bonds or loan agreements may be issued by the
City under the authority of Section 403.9 of the Iowa Code (tax increment bonds)
or Section 384.24A, Section 384.24(3)(q) and Section 403.12 (general obligation
bonds).
The City acknowledges that the use of Tax Increment Revenues delays the
ability of other local taxing bodies to realize immediately the direct tax benefits of
new development in the District. The City believes, however, that the use of Tax
Increment Revenues to finance the development of new industrial land and to
promote private investment in the District is necessary in the public interest to
achieve the OBJECTIVES of this Plan. Without the use of this special financing
tool, new investment may not otherwise occur or may occur within another
jurisdiction. If new development does not take place in Dubuque, property
values could stagnate and the City, County and School District may receive less
taxes during the duration of this Plan than they would have if this Plan were not
implemented.
Tax increment financing will provide a long-term payback in overall increased tax
base for the City, County and School District. The initial public investment
required to generate new private investment will ultimately increase the taxable
value of the District well beyond its existing base value.
Tax increment reimbursement may be sought for, among other things, the
following costs to the extent they are incurred by the City:
a. Planning and administration of the Plan;
b. Construction of public infrastructure improvements and facilities within the
District;
c. Acquisition, installation, maintenance and replacement of public
7
investments throughout the District including but not limited to street
lights, landscaping and buffers, signage and appropriate amenities;
d. Acquisition of land and/or buildings and preparation of same for sale or
lease to private developers, including any "write down" of the sale price of
the land and/or building;
e. Preservation, conservation, development or redevelopment of buildings or
facilities within the District to be sold or leased to qualified businesses;
f. Loans or grants to qualified businesses under Chapter 15A of the Iowa
Code, including debt service payments on any bonds issued to finance
such loans or grants, for purposes of expanding the business or activity,
or other qualifying loan programs established in support of the Plan; and
g. Providing the matching share for a variety of local, state and federal
grants and loans.
3. ProDosed Amount of Indebtedness
At this time, the extent of improvements and new development within the District
is only generally known. As such, the amount and duration for use of the Tax
Increment Revenues for public improvements and/or private development can
only be estimated; however, the actual use and amount of Tax Increment
Revenues to be used by the City for District activities will be determined at the
time specific development is proposed.
It is anticipated that the maximum amount of indebtedness which will qualify for
Tax Increment Revenue reimbursement during the duration of this Plan,
including acquisition, public improvements and private development assistance,
will not exceed $18,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general
obligation debt is $14,200,000 (a list of obligations is found as Attachment D)
and the applicable constitutional debt limit is $91,286,810.
H. STATE AND LOCAL REQUIREMENTS
All provisions necessary to conform with state and local laws have been complied with
by the City of Dubuque in the implementation of this Plan and its supporting documents.
8
I. DURATION OF APPROVED URBAN RENEWAL PLAN
1 . Subarea A
This Plan shall continue in effect until terminated by action of the City
Council, but in no event before the City of Dubuque has received full
reimbursement from all incremental taxes of its advances and principal and
interest payable on all Tax Increment Financing or general obligations issued
to carry out the OBJECTIVES of the Plan.
2. Subarea B
This Plan shall continue in effect until terminated by the City Council;
provided, however, that the collection of Tax Increment Revenues from
properties located in Subarea B shall be limited to twenty (20) years from the
calendar year following the calendar year in which the City first certifies to
the County Auditor the amount of any loans, advances, indebtedness or
bonds which qualify for payment from the division of Tax Increment Revenue
provided for in Section 403.19 (tax increment financing) of the Iowa Code.
The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS established, or
as amended from time to time by the City of Dubuque Zoning Ordinance, shall
remain in effect in perpetuity.
J. SEVERABILITY
In the event one or more provisions contained in this Plan shall be held for any
reason to be invalid, illegal, unauthorized or unenforceable in any respect, such
invalidity, illegality, unauthorization or unenforceability shall not affect any other
provision of this Plan and this Urban Renewal Plan shall be construed and
implemented as if such provision had never been contained herein.
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
This Plan may be amended from time to time to respond to development
opportunities. Any such amendment shall conform to the requirements of Chapter
403 of the Iowa Code. Any change effecting any property or contractual right can
be effectuated only in accordance with applicable state and local law.
9
L. ATTACHMENTS
A Urban Renewal District Map
B Public Purpose Activity Area Map
C Land Use Maps
C1 Existing Land Use
C2 Proposed Land Use
D List of General Obligations
10
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BAR R Y A. L I N 0 A H L, ESQ.
CITY ATTORNEY
IHcC!TYOl-' l ~-~
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(DATE)
RE:
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the
execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for
reference purposes the _ day of ,20_"
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best
of my knowledge, the representations of the City Manager in his letter dated the
_ day of , 2006, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
BAUls
16
Mayor and City Council members
Cit~ Hall
131 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
18
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
19
EXHIBIT E
OPINION OF COUNSEL TO EMPLOYER (Section 1.7(10))
20
Mayor and City Councilmembers
Cit~ Hall
131 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 Theisen's Supply, Inc. (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 ,2006_.
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
21
affect the business (present or prospective), financial position or results of
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,
22
Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563583-4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001563583-4113
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.
the City Council of the City of Dubuque adopted the _ day of
20_, the terms and conditions thereof, if any, having been fulfilled.
of
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
24
Completion in the form set forth in the Agreement. Such certification by Grantor
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 Theisen Supply, Inc. 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:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
25
STATE OF IOWA
)
)
)
SS
COUNTY OF DUBUQUE
On this _ day of ,20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Jeanne F. Schneider to
me personally known, who being duly sworn, did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation,
created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipal Corporation, and 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
26
MINIMUM ASSESSMENT AGREEMENT
CITY OF DUBUQUE, IOWA
City of Dubuque, Iowa
THIS AGREEMENT, dated for reference purposes the _ day of
, 2006, by and among the City of Dubuque, Iowa (City),
Chavenelle Warehouse Development, LLC, an Iowa limited liability company with
its principal place of business at Dubuque, Iowa (Developer), Theisen Supply, Inc.,
an Iowa corporation with its principal place of business in Dubuque, Iowa
(Employer), and the City Assessor of the City of Dubuque ( Assessor).
WHEREAS, on or before the date hereof City, Employer and Developer have
entered into a Development Agreement (the Agreement) regarding certain real
property located within the City of Dubuque; and
WHEREAS, it is contemplated that Developer and Employer will undertake
the development of an area (the "Project") within the Dubuque Industrial Center
Economic Development District; and
WHEREAS, pursuant to Section 403.06 of the Iowa Code, as amended, City,
Employer and Developer desire to establish a minimum market value for said land
and the building thereon, which shall be effective upon substantial completion and
from then until this Agreement is terminated pursuant to the terms herein and which
is intended to reflect the minimum market value of the land and building;
WHEREAS, City and Assessor have reviewed the preliminary plans and the
specifications for the improvements which it is contemplated will be erected.
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as
follows:
1) Upon substantial completion of construction by Developer of the above-
referenced improvements, the minimum market value which shall be fixed for
assessment purposes for the land described in Exhibit A attached hereto, together
with the improvements to be constructed thereon by Developer shall be not less
than four million dollars ($4,000,000.00), until termination of this Agreement. The
parties hereto expect that the construction of the above-referenced improvements
will be substantially completed on or before the 30th day of June, 2007.
2) The minimum market value herein established shall be of no further force
and effect and this Agreement shall terminate on the _ day of , 20_, the
28
final date of the City's obligation to pay interest or principal with
indebtedness incurred in support of the project, dated the
, , in the principal amount of $
scheduled maturity date of the said indebtedness is ,
Provided, further, that in the event said indebtedness had not been fully paid as to
principal and interest on January 1, this Agreement shall continue in effect
for such additional time as shall be required therefore, but not later than January 1,
respect to
day of
The final
3) This Agreement shall be promptly recorded by Developer and Employer.
Developer and Employer shall pay all costs of recording.
4) Neither the preambles nor provisions of this Agreement are intended to,
nor shall be construed as, modifying the terms of this Agreement between City,
Developer and Employer.
5) This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
THE CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
ATTEST
By:
Jeanne F. Schneider, City Clerk
CHAVENELLE WAREHOUSE DEVELOPMENT, LLC
(DEVELOPER)
By:
Wayne Briggs, Managing Member
THEISEN SUPPLY, INC.
(EMPLOYER)
By:
Jim Theisen, President
Richard Engelken, City Assessor
29
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563583-4113
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
31
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
55:
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 Jeanne
F. Schneider, 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
55:
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.
32
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Sll West 1'111 5lrvl'l
[)UbllqUt', [(lWd :;21111J-,JXh.~
(3(,3) 5:-N--U 10 p/WllL'
(:;/>,) :;~()-.II'I(1 t,):\
ch Ill~~r <fl- i 1.\', 1td II huqu\' _\ 11',1',
IHI.,CIIYtll' \., -~,
J )l' ITI...~3l'I"
~<JN.-~
(DATE)
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity
in connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the _ day of ,20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer 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 Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re-align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
35
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer 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 Property of which it has actual notice. The Property is in
material compliance with all applicable zoning, fire, building, and health
statutes, ordinances, and regulations. The Property is currently zoned PUD
and Employer's intended use of the Property as a corporate office/industrial
facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Employer at time of closing confirming the representation contained herein,
in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property, Developer or Employer.
36
(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 Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
F:IUSERSIDHeiarlTheisen'sITheisen Supply Development Agreement FINAL 6-2-06.doc
37