Brewery Project Development Agreement
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MEMORANDUM
July 11, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Development Agreement for the Dubuque Star Brewery Project
The City Council previously selected Port of Dubuque Brewery Development, LLC, as
the developer for the former Dubuque Star Brewery. Economic Development Director
David Heiar is recommending execution of a Development Agreement in which the
developer is agreeing to rehabilitate the Dubuque Star Brewery into a mixed-use
commercial and entertainment complex, at a total project cost of not less than
$6,500,000.
The agreement includes:
The lease term is 50 years for the building and 60,173 square foot of land.
The lease price for the first y 5 years is $1.00. In years 6 through 15, the annual
lease price is $62,100. In year 16, the lease price will be 10% of the appraised
value of the land, with a 3% annual escalator clause through year 30. Beginning
in year 31, an appraisal will be done every 5 years.
The lessee will develop and maintain a 39,405 square foot parking lot that will be
open to the public. Up to 50 days each year, the lessee can control access to
the parking lot to ensure parking is available for building tenants when special
events or other activities are being conducted in the Port of Dubuque.
The estimated cost of building improvements is $6.5 million, with at least 35% of
those to be completed within 2 years.
The City will construct Shot Tower Drive around the north side of the building.
The Company will receive a 1 O-year property tax rebate.
At the end of 50 years, the lessee has an option for an additional 1 O-year lease,
but at that time the lease payment will be 12% of the value of the land and the
improvements.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
(l1J\ ~:t,(\lj~
Michael C. Van Milligen .
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
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MEMORANDUM
July 6, 2006
TO: Michael Van Milligen, City Manager .
FROM: David J. Heiar, Economic Development DirectoCDji
SUBJECT: Development Agreement for the Dubuque Star Brewery Project
INTRODUCTION
This memorandum provides for Council consideration a development agreement and
lease of the former Dubuque Star Brewery building and site. A resolution is attached to
approve the development agreement and lease of this site.
BACKGROUND
In January 2006, the City Council selected Port of Dubuque Brewery Development, LLC
as the developer for the former Dubuque Star Brewery pending the negotiations of a
Development Agreement and lease. Since that time, staff has been working with the
Port of Dubuque Brewery Development, LLC to develop the attached agreements. On
June 5, 2006 The City Council set a public hearing on these agreements and authorized
a notice soliciting competing proposals.
The attached Development Agreement and lease establish the proposed terms. The
key elements of these agreements include the following;
1. The term of the lease is 50 years. The lease price increases over the term. The first
five years the lease is $1.00. In years 6-15, the annual lease price is $62,100. In
year 16, the lease price will be 10% of the appraised value of the land; years 17-30
will be based on the appraisal with a 3% annual escalator clause. It is agreed that
beginning in year 31, another land appraisal will be completed every 5 years. The
lease cost will be 10% of the most recent appraisal.
2. The leased area will include the building and some of the adjacent land consisting of
approximately 60,173 sq. ft.
3. The Lessee will also have a non-exclusive lease of an adjacent parking area
consisting of approximately 39,405 sq. ft. in area. The Lessee will be responsible for
developing and maintaining the parking area, and will be allowed to control access
to the parking area up to 50 days each year to accommodate the parking
requirements of the building sub-tenants. On all other days the parking lot will be
available to anyone.
4. Developer estimates the building improvements will cost $6.5 million. The developer
has also committed to completing the entire renovation project (excluding tinal
tenant improvements) regardless of having tenants signed for the whole building. All
improvements must meet the Port of Dubuque Design Standards and comply with
guidelines for Historic Rehabilitation. At least 35% of the minimum improvements
must be completed within two years.
5. The City will construct Bell Street Extension (Shot Tower Drive), to the north of the
Brewery.
6. The Company will receive a 10 year TIF in the form of a yearly tax rebate. This is
different from the original proposal submitted by the developer which requested an
upfront TIF grant.
7. The City will require that, with respect to the sale of any food or beverages, including
wine, for any event held in the Alliant Amphitheater by any party, that such party will
be required to obtain a bid for the provision of such food from Lessee's sub-tenants
located in the Dubuque Star Brewery Building.
8. Lessee will be granted on option to renew the lease for 10 additional years. The
lease price would be established by an appraisal of the building and the land.
Lessee would pay 12% of this appraised value annually for the entire 10 year period.
Additional terms and conditions of the lease of the property are included within the attached
Development Agreement and Lease documents.
RECOMMENDATION
I recommend that the City Council approve the development agreement and lease of the
former Dubuque Star Brewery building and site to the Port of Dubuque Brewery
Development, LLC. This action supports the Council's objectives to redevelop the Port of
Dubuque and create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:IUSERSIDHeiarlMemos to MVMICouncilltemslDevelopment Agreement for the Dubuque Star Brewery Project.doc
Doc ID: 005800800002 Type: GEN
Recorded: 10/02/2007 at 03:56:44 PM
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Dubuque County Iowa
Kathy Flynn Thurlow Recorder
File
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suits 330 Dubuque IA 52001 563 583-4113
MEMO NUM OF DEVELOPMENT AGREEMENT AND LEASE
A Development Agreement and Lease by and among the City of Dubuque, Iowa,
an Iowa municipal corporation, of Dubuque, Iowa, and Port of Dubuque Brewery
Development, LLC, an Iowa Limited Liability Company was made regarding the
following described premises:
Part of Lot 2 Riverwalk 5th Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof.
The Development Agreement is dated for reference purposes the 17th day of
July, 2006, and contains covenants, conditions, and restrictions concerning the sale and
use of said premises.
This Memorandum of Development Agreement and Lease is recorded for the
purpose of constructive notice. In the event of any conflict between the provisions of
this Memorandum and the Development Agreement or Lease, executed by the parties,
the terms and provisions of the Development Agreement and Lease shall prevail. A
complete counterpart of the Development Agreement and Lease, 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 28th day of September, 2007.
CITY OF DUBUQUE, IOWA
STATE OF IOWA
:ss:
DUBUQUE COUNTY
On this `~ day of September, 2007, 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.
Natary Public, State of Iowa
RESOLUTION NO. 330-06
DETERMINING THAT THE PROPOSAL OF PORT OF DUBUQUE
BREWERY DEVELOPMENT, LLC TO DEVELOP AND LEASE
PROPERTY IN THE GREATER DOWNTOWN URBAN RENEWAL
DISTRICT IN THE PORT OF DUBUQUE IN THE CITY OF DUBUQUE,
IOWA IS IN COMPLIANCE WITH THE TERMS OF THE CITY'S
OFFERING FOR DISPOSITION OF SUCH PROPERTY
Whereas, this Council, by Resolution No. 215-06, dated June 5, 2006,
nominated the City Clerk as agent of the City of Dubuque, Iowa, to receive and open on
July 10, 2006, at 10:00 a.m., proposals for the disposition of property in the Greater
Downtown Urban Renewal District in the Port of Dubuque in accordance with the terms
and conditions set forth in the resolution; and
Whereas, the City Council has received a proposal, referred to in said resolution,
from Port of Dubuque Brewery Development, LLC, which proposal meets the terms and
conditions of Resolution No. 215-06; and
Whereas, the City Clerk has reported to this Council that no qualified, competing
proposals were submitted.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the report of the City Clerk that no qualified competing proposals
were submitted by 10:00 a.m. on July 10, 2006, for the disposition of property in the
Greater Downtown Urban Renewal District in the Port of Dubuque be received, filed
and adopted.
Section 2. That it is hereby determined that the proposal of Port of Dubuque
Brewery Development, LLC for the development and lease of said property is the only
proposal which satisfies the terms and conditions set forth in Resolution No. 215-06
adopted by this Council on June 5, 2006.
Passed, approved and adopted this 17th day of July,2006.
Roy.D. Buol, Mayor
Attest: Jeanne F. Schneider, City Clerk
F:\USERS\DHeiar\Port of Dubuque Brewery Development LLC\Port of Dubuque Development Compliance for Dispo resolution.doc
RESOLUTION NO. 331-06
ACCEPTING THE PROPOSAL FROM PORT OF DUBUQUE BREWERY
DEVELOPMENT, LLC FOR THE LEASE OF PROPERTY IN THE
GREATER DOWNTOWN URBAN RENEWAL DISTRICT IN THE PORT OF
DUBUQUE IN THE CITY OF DUBUQUE, IOWA AND APPROVING THE
DEVELOPMENT AGREEMENT AND LEASE AGREEMENT WITH PORT
OF DUBUQUE BREWERY DEVELOPMENT, LLC FOR THE LEASE OF
THE PROPERTY
Whereas, this Council, by Resolution No. 215-06, dated June 5, 2006:
1. Adopted the terms and conditions for offering for disposition certain real
property and improvements in the Greater Downtown Urban Renewal District in the City of
Dubuque, Iowa, referred to as the Star Brewery Property;
2. Determined that the proposal submitted by Port of Dubuque Brewery
Development, LLC satisfied the requirements of said offering;
3. Declared its intent to accept the Port of Dubuque Brewery Development LLC
proposal in the event no other qualified proposals were timely submitted for the property;
and
4. Invited competing proposals which met the terms and conditions of the
offering, to be submitted to the City Clerk on or before 10:00 a.m., July 10, 2006;
and;
Whereas, on June 7,2006, the Resolution was published as the official notice ofthe
offering and of the intent of the City of Dubuque, Iowa, in the event no other qualified
proposals were timely submitted, to approve the Development Agreement and Lease
Agreement proposed by Port of Dubuque Brewery Development, LLC; and
Whereas, by separate Resolution of this date, this Council has received and
approved as its own the report of the City Clerk that no other qualified proposal was
received; an
Whereas, it is the determination of this Council that approval of the Development
Agreement and Lease Agreement with Port of Dubuque Brewery Development, LLC,
attached hereto, is in the public interest of the citizens of the City of Dubuque, and is
consistent with the City's Urban Renewal Plan for the Greater Downtown Urban Renewal
District.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the attached Development Agreement and Lease Agreement by
and between the City of Dubuque and Port of Dubuque Brewery Development, LLC are in
the public interest of the citizens of the City of Dubuque and in furtherance of the City's
Urban Renewal Plan, and are hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute said
Development Agreement and Lease Agreement on behalf of the City of Dubuque and the
City Clerk is authorized and directed to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to implement the terms of the Development Agreement and Lease Agreement
as herein approved.
Passed, approved and adopted this 17th day of July, 2006.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider
City Clerk
F:\USERS\DHeiar\Port of Dubuque Brewery Development LLC\Port of DUbuque Brewery Development Proposal Acceptance Resolution.doc
=
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE
AND
PORT OF DUBUQUE BREWERY DEVELOPMENT, LLC
This DEVELOPMENT AGREEMENT (the Agreement) made on or as of the
day of , 2006 (the Effective Date), by and between
the City of Dubuque, Iowa, a municipality (City), established pursuant to Iowa law and
acting under authorization of Iowa Code Chapter 403, as amended (the Urban Renewal
Act) and Port of Dubuque Brewery Development, LLC, an Iowa Limited Liability
Company (Developer).
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 Greater Downtown Urban Renewal
District (the Project Area); and
WHEREAS, as of the Effective Date of this Agreement there has been prepared
and approved by City an Urban Renewal Plan for the Project Area consisting of the
Greater Downtown Urban Renewal Plan approved by City Council of City on the 19th of
April, 2004, attached hereto as Exhibit "A," (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the Effective
Date of this Agreement, has been recorded in the office of the Recorder of Dubuque
County, Iowa; and
WHEREAS, Developer has requested that City lease to Developer certain real
property and improvements, commonly known as the Dubuque Star Brewery Building
and Site, including non-exclusive use of the Alliant Amphitheater and additional use
rights as set forth in paragraph 3.6, located in the City of Dubuque, Dubuque County,
Iowa (the Property), legally described in Exhibit "B," attached hereto and incorporated
herein by reference, so that Developer may redevelop the Property, located in the
Project Area, for and in accordance with the uses specified in the Urban Renewal Plan
and in accordance with this Agreement. Developer shall have exclusive use of Area A
and exclusive use of Area B, both as depicted on Exhibit C attached hereto and by this
reference made a part hereof; and
WHEREAS, City believes that the redevelopment 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, and does not conflict with any term, covenant or
condition of the Urban Renewal Plan.
NOW THEREFORE, in consideration of the promises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other as
follows:
SECTION 1. LEASE OF PROPERTY TO DEVELOPER
1.1 Lease. On the Closing Date, City shall transfer possession of the Property
pursuant to a lease with the Developer (the Lease) for a term of fifty (50) years. Tenant
shall have the right to extend the lease for one additional 10 year term based upon the
terms and conditions contained in paragraph 25 of the Lease. The Lease shall be in the
form of Exhibit "D" attached hereto.
1.2 Recordation of Lease. Developer shall promptly record a Memorandum of Lease
as stipulated in the Lease in the office of the Recorder of Dubuque County, Iowa.
Developer shall pay all the costs for so recording.
1.3 Condition of Propertv. City shall deliver the Property in its "as is" condition.
1.4 Representations of Citv. In order to induce Developer to enter into this
Agreement, City hereby represents and warrants to Developer that by the Closing Date
and to the best of City's knowledge:
(1) City is the owner of the Property in fee simple subject to no liens or
encumbrances.
(2) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and the Lease, and that it has
full power and authority to execute, deliver and perform its obligations under this
Agreement and the Lease.
1.5 Conditions to Closina. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following contingencies:
(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.
(2) Developer shall have obtained any and all necessary governmental
approvals, including without limitation approval of zoning, subdivision or platting, and of
the Construction Plans pursuant to Section 2.2 below that are necessary or desirable in
connection with the Lease and development of the Property. Any conditions imposed
as a part of the zoning, platting, subdivision or plan approval must be satisfactory to
Developer, in its sole discretion. City shall cooperate with Developer in attempting to
2
obtain any such approvals, provided that City shall bear no expense in connection
therewith.
(3) Developer and City shall be in compliance with all the material terms and
provisions of this Agreement.
(4) City shall have received an opinion of counsel in the form attached hereto
as Exhibit "E."
(5) Developer shall have furnished City with evidence, in a form satisfactory to
the City as City shall determine in the reasonable exercise of its discretion (such as a
letter of commitment from a bank or other lending institution), that Developer has firm
debt and/or equity commitments sufficient in amount to complete construction of the
Minimum Improvements (as defined herein) to the Property in conformance with
Construction Plans (as defined herein), or City shall have received such other evidence
of Developer's financial ability as in the reasonable judgment of City is required to
complete such construction.
(6) Developer and the City shall have entered into the Lease, in the form
attached hereto as Exhibit "D".
(7) Developer shall have received, reviewed and approved an abstract of title,
provided at City's expense. In the event Developer objects to any matters revealed by
such examination that are attributable to matters shown in the abstract of title, such
objection shall be delivered to City not later than thirty (30) days after receipt by
Developer of the abstract of title. City shall have a period of time equal to twenty (20)
days after receipt of Developer's notice to correct Developer's objection to title, and if it
shall fail to do so within said twenty (20) day period of time, then Developer shall, by
written notice given to City on or before seven (7) days after expiration of the
aforementioned twenty (20) day time period, notify City that (i) it has elected to declare
this Agreement null, void and of no further effect, in which event neither party shall have
any further liability hereunder; or (ii) it has elected to proceed to closing notwithstanding
the objection. The Lease shall be subject to all matters revealed by the abstract except
those matters which are objected to by Developer and corrected by City, or objected to
by Developer and subsequently waived by Developer as provided for herein.
(8) City shall have provided Developer with a copy of all current surveys of
the Property that are in City's possession.
(9) City and Developer shall have executed all documents that the parties
deem necessary or required in connection with the Financial Assistance, as that term is
defined below.
1.6 ClosinQ. The closing shall take place on or before July 3, 2006 (the Closing
Date), or such other date as the parties may agree in writing. Exclusive possession of
the Property shall be delivered to Developer on the Closing Date in its current condition
3
and in compliance with this Agreement, including City's representations and warranties
regarding the same. Consummation of the closing shall be deemed an agreement of
the parties to this Agreement that the conditions of closing have been satisfied or
waived.
1.7 Closinq Costs. The following costs and expenses shall be paid on or prior to the
Closing Date:
(1) City shall pay:
(a) The transfer fee imposed on the conveyance, if any.
(b) All special assessments whether levied, pending or assessed.
(c) City's attorney's fees.
(d) The cost of preparing and providing to Developer an abstract of title
to the Property. City agrees that the abstract of title shall be
provided no later than thirty (30) days prior to the Closing Date.
(2) Developer shall pay:
(a) The recording fee necessary to record the Memorandum of Lease.
(b) Developer's attorney's fees.
(c) Developer's broker and/or real estate commissions and fees, if any.
1.8 Real Estate Taxes. Developer shall pay all real estate taxes pursuant to the
Lease Agreement.
1.9 No Other Exemptions. The Developer agrees not to apply for any other State or
local property tax exemptions which are available with respect to the 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 Chapters 404 and 427 of the Code of Iowa, as amended.
SECTION 2. REDEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer hereby agrees to rehabilitate the
Property into a mixed-use commercial/entertainment complex at a total project cost of
not less than $6,500,000 which shall include the improvements described in Exhibit F,
attached hereto and incorporated herein by reference (the Minimum Improvements).
The Minimum Improvements shall meet the Secretary of the Interior's Standards for
Rehabilitation and Guidelines for Rehabilitating Historic Buildings. The design of the
Minimum Improvements shall be compatible with the pedestrian orientation of adjoining
4
streets, Alliant Plaza and Riverwalk improvements, providing accommodation for public
accessibility to these public rights of way and the adjacent Grand River Center (the
Conference Center) via a public access easement through the common areas of the
Property without damaging or reconfiguring the same, including the Star Brewery
Building itself as deemed necessary by City, and specifically with the Port of Dubuque
Design Standards. The public access easement shall be located and configured in a
manner reasonably acceptable to Developer. The public access easement shall be
specifically identified, including its location, dimensions and configuration on a plat or
drawing which shall be subject to Developer's prior approval.
Developer shall develop, construct and pay for a parking lot adjacent to the Dubuque
Star Brewery building, which parking lot shall be located in that area created by the
City's relocation of Shot Tower Drive as referred to in paragraph 3.6 hereof and referred
to as Area B on Exhibit C (the "Parking Lot"). Developer shall be responsible for snow
removal and similar maintenance with respect to the Parking Lot and shall further be
responsible for any other maintenance, repair or replacement to the surface of the
Parking Lot. Developer shall have the exclusive use of the Parking Lot and all areas
within Area A on Exhibit C. Developer shall have the right to assign all or portions of
such use to others, including Developer's sublessees with respect to the Dubuque Star
Brewery Building. Tenant's obligations with respect to the Parking Lot and its exclusive
rights with respect to the Parking Lot shall continue during the term of the Lease
referred to in paragraph 1.1 or any renewals thereof. Developer shall not be required to
pay any additional sums related to the exclusive use of the Parking Lot beyond the rent
provided in the Lease.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications with'
respect to the construction of the initial Minimum Improvements (the Construction
Plans) shall be approved by City provided they are in conformity with the Urban
Renewal Plan, which incorporates the Port of Dubuque Master Plan Design Standards,
this Agreement, and all applicable state and local laws and regulations. Those
improvements relate specifically to the Stone Cliff Winery space and general
improvements such as bathrooms, elevators, stair towers, etc. The parties agree and
acknowledge that specific improvements which will constitute a portion of the Minimum
Improvements with respect to specific tenants will not be determined until such time as
leases have been signed with those tenants. To that end, Developer shall, not later than
thirty (30) days prior to the Closing Date, submit to City, for approval by City, the
Construction Plans and such additional documents as City may reasonably request with
respect to the Minimum Improvements to be constructed by Developer on the Property.
All work with respect to the Minimum Improvements shall be in conformity with the
Construction Plans as approved by City and shall be coordinated with City
improvements in the general vicinity of the Property, including, but not limited to, Alliant
Plaza, Riverwalk, the Conference Center and street and utility improvements. It is
agreed that approval of the Construction Plans by City is a condition to closing under
Section 1.5(3) above, and unless such approval shall be given by City on or before the
Closing Date, this Agreement shall be null and void.
5
2.3 Timinq of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within sixty (60) days
after the Closing Date, and shall be substantially completed within sixty (60) months
after the commencement of construction. Provided, however, Developer shall complete
35% of the Minimum Improvements within 24 months after commencement of
construction. The time for performance of such obligations shall be suspended during
the period of any delays caused by acts of God or other matters not within the control of
Developer including, but not limited to, extreme weather conditions and/or other natural
causes, casualty, labor problems (including, but not limited to, strikes, walk-outs,
picketings, boycotts and shutdowns), governmental restriction upon the availability or
use of labor or materials, or insurrection, embargoes, or delays in providing necessary
consents or approvals unless otherwise agreed upon in writing by City and Developer.
The time for performance of such obligations shall be extended only for the period of
such delay.
2.4 Certificate of Completion. Promptly upon completion of the Minimum
Improvements in accordance with those provisions of this Agreement relating solely to
the obligations of Developer to construct the Minimum Improvements, including the
dates for beginning and completion thereof, City shall furnish Developer with an
appropriate instrument so certifying. Such certification shall be a conclusive
determination of the satisfaction and termination of the agreements and covenants in
this Agreement and in the Lease with respect to the obligations of Developer to
construct the Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Assistance of Citv. For and in consideration of Developer's obligations
hereunder to construct the Minimum Improvements, City agrees to provide to Developer
the financial assistance described herein (the "Financial Assistance").
3.2 Lease Terms. For and in consideration of Developer's obligations hereunder to
construct the Minimum Improvements, City agrees to lease the Property to Developer
pursuant to the terms of the Lease.
3.3 Economic Development Grant to Developer.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the urban renewal plan for the Project Area
and the Urban Renewal Act, City agrees, subject to Developer being and remaining in
compliance with the terms of this Agreement, to make twenty (20) consecutive semi
annual payments (such payments being referred to collectively as "the Economic
Development Grants") to the Developer, commencing the 1st day of November, 2009
and continuing until the 1st day of May, 2020, pursuant to Iowa Code Section 403.9 of
the Urban Renewal Law, in amounts equal to the actual amount of tax increment
revenues paid by Developer and collected by City under Iowa Code Section 403.19
(without regard to any averaging that may otherwise be utilized under Iowa Code
6
Section 403.19 and excluding any interest that may accrue thereon prior to payment to
Developer) during the preceding six-month period in respect of the Minimum
Improvements constructed by Developer ("the Developer Tax Increments"). Developer
recognizes and agrees that the Economic Development Grants shall be paid solely and
only from the incremental taxes collected by City in respect to the Minimum
Improvements, which does not include property taxes collected for the payment of
bonds and interest of each taxing district, and taxes for the regular and voter-approved
physical plant and equipment levy, and any other portion required to be excluded by
Iowa law, and thus such incremental taxes will not include all amounts paid by
Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing the 1st day of December, 2007, its
request for the available Developer Tax Increments resulting from the assessments
imposed by the County as of January 1 of the following year, to be collected by City as
taxes are paid during the following fiscal year and which shall thereafter be disbursed to
the Developer on November 1 and May 1 of that fiscal year. (Example: if City so
certifies by December, 2007, the Economic Development Grants in respect thereof
would be paid to the Developer on November 1, 2008, and May 1, 2009.
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments paid to City that, upon receipt, shall be
deposited and held in a special account created for such purpose and designated as the
"Star Brewery TIF Account" of City. City hereby covenants and agrees to maintain its
TIF ordinance in force during the term hereof and to apply the incremental taxes
collected in respect of the Minimum Improvements and allocated to the Star Brewery
TIF Account to pay the Economic Development Grants, as and to the extend set forth in
Section 3.3(1) hereof. The Economic Development Grants shall not be payable in any
manner by other tax increments revenues or by general taxation or from any other City
funds. City makes no representation with respect to the amounts that may be paid to
Developer as the Economic Development Grants in anyone year and under no
circumstances shall City in any manner be liable to Developer so long as City timely
applies the Developer Tax Increments actually collected and held in the Star Brewery
TIF Account (regardless of the amounts thereof) to the payment of the Economic
Development Grants to Developer as and to the extent described in this Section.
(4) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development Grants
under Section 3.3 hereof, for any purpose for which such tax increment revenues may
lawfully be used pursuant to the provisions of the Urban Renewal Law, and City shall
have no obligations to Developer with respect to the use thereof.
3.4 Intentionally Left Blank.
3.5 Intentionally Left Blank.
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3.6 Citv Improvements/Amphitheater/Additional Use Riqhts. City further agrees to
relocate Shot Tower Drive, also known as 4th Street, and to allow public parking at the
parking lot adjacent to the McGraw-Hili office building after 6:00 p.m. and on weekends
and holidays. City grants to Developer the non-exclusive right to use the Alliant
Amphitheater in association with any events or business activities of Developer or any
tenant or licensee of Developer at the Leased Premises as defined in the Lease. On or
before the Closing Date, City shall develop a scheduling reservation system with
respect to use of the Alliant Amphitheater to ensure no conflicts in use of the Alliant
Amphitheater.
3.7 Vendor Status. City shall require that, with respect to the sale of any food or
beverages, including wine, for any event held in the Alliant Amphitheater by any party,
that such party shall be required to obtain a bid for the provision of such food or
beverages, including wine, from Developer's subtenants located in the Dubuque Star
Brewery Building. It is the intent of this paragraph that Developer shall have the right to
grant to its subtenants the rights granted under the terms of this paragraph (the right to
bid for the sale or provision of food or beverages, including wine, for all events in any
way associated with the Alliant Amphitheater during the term hereof or any renewals or
extensions). Developer shall have the excusive right to control or grant or lease to
others the right to control the offering or selling of food or beverages, including wine, on
any property located within Area A on Exhibit C attached hereto.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Insurance Coveraqes. Developer shall obtain and maintain insurance as set
forth in the Lease.
4.2 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.
4.3 Conflict of Interest. Developer agrees that no member, officer or employee of
City, or its designees or agents, nor any consultant or member of the governing body of
City, and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the Project during his or her tenure, or who is in a
position to participate in a decision-making process or gain insider information with
regard to the Project, shall have any interest, direct or indirect, in any contract or
subcontract, or the proceeds thereof, for work to be performed in connection with the
Project, or in any activity, or benefit therefrom, which is part of this Project at any time
during or after such person's tenure.
4.4 Non-transferabilitv. This Agreement may not be assigned by Developer without
the prior written consent of City, which consent shall not be unreasonably withheld.
Transfer or assignment of the Lease shall be governed by the terms thereof.
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SECTION 5. INDEMNIFICATION
5.1. Developer's Indemnification of Citv.
(1) Developer releases City and its governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this Section 5, the
"Indemnified Parties") from and covenants and agrees that the Indemnified Parties shall
not be liable for, and agrees to indemnify, defend and hold harmless the indemnified
parties against any loss or damage to property or any injury to or death of any person
occurring at or about or resulting from any defect in the Property and the Minimum
Improvements.
(2) Except for any 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 (i)
any violation of any agreement or condition of this Agreement, except with respect to
any suit, action, demand or other proceeding brought by Developer against City to
enforce its rights under this Agreement or (ii) the construction, installation, ownership
and operation of the Minimum Improvements or (iii) the condition of the Property and
any hazardous substance or environmental contamination located in or on the Property
which is caused by Developer after Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable for any damage or injury to the
persons or property of Developer or its officers, agents, servants or employees or any
other person who may be about the Property or the Minimum Improvements other than
any act of negligence on the part of any such Indemnified Parties.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member, officer,
agent, servant or employee of City in the individual capacity thereof.
(5) The provisions of this Section 5A shall survive the termination of this
Agreement.
5.2 City's Indemnification of Developer.
(1) City releases Developer and its owners, officers, agents, servants and
employees (hereinafter, for purposes of this Section 5, also referred to as the
"Indemnified Parties") from and covenants and agrees that Indemnified Parties under
this paragraph shall not be liable for, and agrees to indemnify, defend and hold
harmless the Indemnified Parties against any loss or damage to property or any injury to
or death of any person occurring at or about or resulting from any defect in the Property
9
prior to the Closing Date, or any loss, damage or expense associated with any
environmental condition existing at the Property as of the Closing Date.
(2) Except for any willful misrepresentation or any willful or wanton
misconduct or any unlawful act of Developer or its owners, officers, agents, servants
and employees, City agrees to protect and defend Developer or its owners, officers,
agents, servants and employees, now or forever, and further agrees to hold the
Developer and its owners, officers, agents, servants and employees harmless from any
claim, demand, suit, action or other proceedings whatsoever by any person or entity
whatsoever arising or purportedly arising from (i) any violation of any agreement or
condition of this agreement by City, except with respect to any suit, action, demand or
other proceeding brought by City against Developer to enforce its rights under this
agreement; or (ii) negligence of the City or (iii) the condition of the Property as of the
Closing Date and any hazardous substance or environmental contamination located in
or on the Property which is or was caused by City at any time.
(3) The Indemnified Parties shall not be liable for any damage or injury to the
persons or property of City or its governing body members, officers, agents, servants
and employees or any other person who may be about the property or the Minimum
Improvements other than any act of negligence on the part of any such Indemnified
Parties.
(4) All covenants, stipulations, promises, agreements and obligations of
Developer contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of Developer and not of any owner, officer,
agent, servant or employee of Developer in the individual capacity thereof.
(5) The provisions of this Section 58 shall survive the termination of this
agreement.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and Event of Default shall mean, whenever it is used in this Agreement, any
one or more of the following events:
(1) Any event of default by Developer under the Lease.
(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) Failure by Developer to cause the Minimum Improvements to be
reconstructed when required pursuant to the Lease.
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(4) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement.
(5) Failure by Developer to substantially observe or perform any other
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement or the Lease.
(6) Developer shall:
(a) file any petition in bankruptcy or for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under the United States Bankruptcy Act of 1978, as
amended, or under any similar federal or state law;
(b) make an assignment for the benefit of its creditors;
(c) admit in writing its inability to pay its debts generally as they become
due; or
(d) be adjudicated a bankrupt or insolvent: or if a petition or answer
proposing the adjudication of Developer as a bankrupt or its
reorganization under any present or future federal bankruptcy act or
any similar federal or state law shall be filed in any court and such
petition or answer shall not be discharged or denied within ninety
(90) days after the filing thereof, or a receiver, trustee or liquidator of
Developer or of Minimum Improvements, or part thereof, shall be
appointed in any proceedings brought against Developer, and shall
not be discharged within ninety (90) days after such appointment, or
if Developer shall consent to or acquiesce in such appointment.
6.2 Notice of Default. City shall issue a written notice of default providing therein a
thirty (30) day period in which Developer shall have an opportunity to cure such default.
In the event the default is of a nature that cannot be cured within the aforementioned
thirty (30) day time period, then Developer shall be deemed to be curing the default if
Developer, within thirty (30) days after receipt of notice thereof, commences action to
cure the default and prosecutes the same to completion, such that the default is cured
within a reasonable time under all of the facts and circumstances then existing.
6.3 Remedies Upon Default. If the default remains unremedied after such thirty (30)
day period, City shall have the right to do one or more of the following:
(1) exercise any remedy provided by law;
(2) suspend City's performance under this Agreement;
(3) terminate this Agreement and the Lease;
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(4) withhold certification of completion with respect to the Minimum
Improvements;
(5) require repayment of all Financial Assistance provided to the Developer,
and/or the payment of damages by Developer for any costs incurred by City in
connection with the default; and
(6)
Property.
take such action as may be necessary to remove Developer from the
6.4 No Implied Waiver. In the event any term, covenant or condition
contained in this Agreement is 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.
SECTION 7. GENERAL TERMS AND PROVISIONS
7.1 Notices and Demands. Whenever this Agreement requires or permits any notice
or written request by one party to another, it shall be in writing, enclosed in an envelope,
addressed to the party to be notified, properly stamped, sealed and deposited in the
United States Mail, and
(1) in the case of Developer, is addressed to Epic Construction, Inc., 137
Main Street, Suite 500, Dubuque, IA 52001; or
(2) in the case of City, is addressed to the City Manager, City Hall, 50 W. 13th
Street, Dubuque, IA 52001; or
at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section. Any notice
delivered hereunder shall be deemed delivered upon the earlier of the actual receipt or
two (2) business days after posting.
7.2 Compliance with Laws and Reaulations. Developer shall comply with all
applicable City, state and federal laws, rules, ordinances, regulations and orders.
7.3 Bindina Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
7.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate upon termination of the Assessment Agreement (the
Termination Date).
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7.5 Execution Bv Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile. The parties intend that 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.
7.6 Memorandum of Development Aqreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit G in
the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for
so recording.
CITY OF DUBUQUE, IOWA
PORT OF DUBUQUE BREWERY
DEVELOPMENT, LLC
By:
Roy D. Buol, Mayor
By:
Wayne Briggs, Managing Member
By:
Jeanne F. Schneider, City Clerk
F:\USERS\tsteckle\Lindahl\Port of Dubuque Brewery Redevelopment LLC\Port of Dubuque Development Agreement
Final053006bal.doc
Last saved by Tracey Stecklein; 6/2/2006 10:13 AM
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URBAN RENEWAL PLAN
Greater Downtown Urban Renewal District
(A merger of the Downtown Dubuque and Ice Harbor Urban Renewal Districts)
City of Dubuque, Iowa
This Urban Renewal Plan provides for the merger of the Downtown Urban
Renewal Area Project Number Iowa R-15, originally established by Resolution
123-67 by the City Council of the City of Dubuque, Iowa on May 18, 1967 and
subsequently amended and restated by Resolution 79-71 on March 15, 1971, by
Resolution 73-74 on March 11,1974, by Resolution 107-82 on May 3,1982, by
Resolution 191-84 on June 25, 1984, by Resolution 371-93 on December 6,
1993, by Resolution 145-94 on May 2, 1994, by Resolution 479-97 on November
17, 1997, by Resolution 476-98 on October 19, 1998 and by Resolution 187-02
on April 1, 2002, with the Ice Harbor Urban Renewal District, originally
established by Resolution 403-89 of the City Council of the City of Dubuque,
Iowa on December 18, 1989 and subsequently amended and restated by
Resolution 241-00 on June 5, 2000 and by Resolution 114-02 on March 4, 2002,
that merger adopted by Resolution 170-04 on April 19, 2004.
Prepared by the Economic Development Department
April 2004
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TABLE OF CONTENTS
A. INTRODUCTION
B. JUSTIFICATION FOR THE DESIGNATION
C. OBJECTIVES OF THE PLAN
D. DISTRICT BOUNDARIES
E. PUBLIC PURPOSE ACTIVITIES
F. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
1. LAND USE
2. PLANNING AND DESIGN CRITERIA
G. LAND ACQUISITION AND DISPOSITION
H. RELOCATION REQUIREMENTS
I. FINANCING ACTIVITIES
J. STATE AND LOCAL REQUIREMENTS
K. DURATION OF APPROVED URBAN RENEWAL PLAN
L. SEVERABILITY
M. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
N. ATTACHMENTS
Page 1
Page 1
Page 2
Page 3
Page 4
Page 5
Page 5
Page 6
Page 7
Page 8
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Page 10
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A. INTRODUCTION
This URBAN RENEWAL PLAN ("the Plan") has been prepared to provide for the
merger of two existing Urban Renewal Districts and to stimulate, through public
actions, financing and commitments, private investment within the combined
area, to be known as the Greater Downtown Urban Renewal District ("the
District"). In order 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, and Chapter 15A
of the Iowa Code.
This Plan is a merger of the Downtown Dubuque Urban Renewal District Urban
Renewal Plan, originally established by Resolution 123-67 by the City Council of
the City of Dubuque, Iowa on May 18,1967 and subsequently amended by
Resolution 79-71 on March 15, 1971, by Resolution 73-74 on March 11, 1974, by
Resolution 107-82 on May 3,1982, by Resolution 191-84 on June 25,1984, by
Resolution 371-93 on December 6,1993, by Resolution 145-94 on May 2,1994,
by Resolution 479-97 on November 17, 1997, by Resolution 476-98 on October
19, 1998 and by Resolution 187-02 on April 1 ,2002 and the Ice Harbor Urban
Renewal District Urban Renewal Plan, originally established by Resolution 403-
89 of the City Council of the City of Dubuque, Iowa on December 18, 1989 and
subsequently amended and restated by Resolution 241-00 on June 5, 2000 and
by Resolution 114-02 on March 4, 2002 ("the Merged Districts").
This Plan shall serve as a new urban renewal plan for the Merged Districts
described herein. The Plan shall be viewed as a single plan for purposes of
fulfilling the objectives of the Plan.
B. JUSTIFICATION FOR THE DESIGNATION
The City Council of the City of Dubuque, Iowa has determined that the following
blighting conditions, as defined by Chapter 403 of the Iowa Code, Urban Renewal
Law, exist within the District:
. Undeveloped and underdeveloped land;
. A preponderance of deteriorated, dilapidated and obsolete public and
private improvements;
. A faulty lot layout in relation to the size, adequacy and usefulness of the
lots;
. Fragmented property ownership patterns;
. A lack of public utilities; and
. An inadequate street layout.
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The Council has declared by Resolution of Necessity No. 86-04 on March 1,
2004 that these factors have substantially impaired and arrested the sound
growth of the City of Dubuque and of the area comprising the Merged Districts.
C. OBJECTIVES OF THE PLAN
The primary OBJECTIVES of the Plan are:
1. The creation of a thriving central business and riverfront
district with a compatible mix of viable commercial/retail, office, financial,
residential, cultural, recreational and educational activities;
2. The development of an adequate support system for new
and expanding river-related tourism activities;
3. The conservation, restoration, renovation or rehabilitation of
the historic and architectural character of the District through the
establishment of design standards to ensure cohesive and compatible
development and redevelopment, the use of appropriate construction
techniques, the coordinated administration of appropriate code
enforcement efforts and the maximization of all available financial and
technical resources;
4. The creation of a safe, healthy and attractive physical
environment through the construction or installation of necessary
infrastructure and other public improvements or actions supportive of the
District;
5. The creation of a safe, efficient, and attractive circulation
system for both pedestrian and vehicular traffic;
6. The development of additional and improved parking
opportunities in the District supportive of the businesses located within its
boundaries and which accommodate the needs of its residents;
7. The creation of financial incentives necessary to encourage
private investment and reinvestment in the District;
8. The creation and retention of quality employment
opportunities in the District; and
9. The expansion of the existing property tax base of the District.
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D. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of
Iowa. The District includes five separate subareas that have resulted from prior
expansions of the Merged Districts: the Town Clock Subarea, the Old Main
Subarea, the Upper Main Subarea, the Ice Harbor Subarea A and Ice Harbor
Subarea B. Despite this subdivision of the District, this Plan shall be viewed as a
single plan and shall be applied to all subareas for purposes of fulfilling the
objectives of the Plan.
The boundaries of each subarea are as follows:
1. The Town Clock Subarea of the District shall include that
area generally bounded on the North by Ninth Street but also including the
Iowa Inn property and the public parking lot known as Parking Lot Number
1 located between 9th and 10th Streets east of Iowa Street, on the West
by Locust Street including City Lots 623 and 624 (Dubuque Museum of
Art), on the South by Fourth Street, and on the East by Central Avenue,
including all public rights-of-way.
2. The Old Main Subarea of the District shall include that area
generally bounded on the North by Fourth Street, on the West by Locust
Street, on the South by the Locust Street Connector and on the East by
the U.S. Highway 151/61 right-of-way, including all public rights-of-way.
3. The Upper Main Subarea of the District shall include that
area generally bounded on the North by Fourteenth Street, on West by
Locust Street, on the South by the Town Clock Subarea and on the East
by Central Avenue, including all public rights-of-way.
4. Ice Harbor Subarea A of the District shall include that area
generally bounded on the north by the public alley located between the
vacated Fourth Street and Third Street, on the west by the Chicago,
Central and Pacific Railroad right-of-way, on the south by East First Street
and on the east by the municipal limits of the City of Dubuque, Iowa and
including any adjoining public right-of-way.
5. Ice Harbor Subarea B of the District shall include that area
generally bounded on the north and west by the Chicago, Central and
Pacific Railroad right-of-way, on the south by the northerly boundary of
Subarea A and on the east by the municipal limits of the City of Dubuque
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(excluding Lot 1 Adams Co.'s 2nd Addition) and including any adjoining
public right-of-way.
The boundaries of the District and the subareas 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.
E. 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 the
following PUBLIC PURPOSE ACTIVITIES:
1. Pre-development planning, including but not limited to activities
such as appraisals, architectural and engineering studies, environmental
assessment and remediation, and feasibility analysis;
2. Provision of technical support to property owners, businesses and
organizations in support and furtherance of the Plan;
3. Use of tax increment financing, loans, grants and other appropriate
financial tools in support of eligible public and private conservation,
preservation, development and redevelopment efforts including the
adaptive re-use of existing structures and code compliance;
4. Preparation of property for conservation, preservation,
rehabilitation, development and redevelopment purposes;
5. Development and implementation of a program for the repair,
restoration, and renovation of historic buildings and related improvements;
6. Improvement, installation, construction and reconstruction of public
facilities and improvements including but not limited to structured parking
facilities, other parking facilities, streets, alleys, utilities, convention
facilities, Riverwalk and Harborwalk improvements and amenities, boat
docks, dredging and other river-related improvements;
7. Improvement, installation, construction and reconstruction of other
public improvements including but not limited to the relocation of overhead
utility lines, installation of street lights, construction of public rest rooms
4
and water fountains, installation of benches and other streetscape
amenities, landscaping and signage;
8. Acquisition of property through negotiation or eminent domain for
public improvements or private development and redevelopment
purposes;
9. Disposition of land through sale or lease;
10. Relocation or elimination of existing private improvements;
11. Relocation or elimination of existing railroad spur lines;
12. Demolition and clearance of deteriorated, obsolescent and blighting
structures and other improvements not found to be of historical or
architectural significance, including but not limited to site preparation for
redevelopment purposes; and
13. Enforcement of applicable local, state and federal laws, codes and
regulations;
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.
F. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall
apply to any and all District properties the preservation, conservation,
development and/or the redevelopment of which is assisted by the City through
any of the PUBLIC PURPOSE ACTIVITIES listed above.
1. LAND USE:
a. Town Clock Subarea: The intent of this Plan is to promote the
preservation, conservation, development and redevelopment of a
functional, attractively developed environment to further existing office,
financial, commercial/retail, cultural, educational, personal and
professional services and residential activities within the Town Clock
Subarea.
5
The continued development and enhancement of those land uses
permitted within the Downtown Commercial Business District (C-4), the
Business District (C-5) and the Office Residential (OR) zones of the City of
Dubuque's Zoning Ordinance are encouraged.
LAND USE maps (Attachments C-1 and C-2) identify the existing and the
proposed land uses within the Town Clock Subarea.
b. Old Main Subarea: The intent of this Plan is to promote private
investment and reinvestment in a variety of commercial/retail,
entertainment and residential uses while furthering existing
commercial/retail, personal and professional services, entertainment and
residential activities within the Old Main Subarea.
The continued development and enhancement of those land uses
permitted within the Downtown Commercial Business District (C-4) and
Business District (C-5) zones of the City of Dubuque's Zoning Ordinance
are encouraged.
LAND USE maps (Attachments C-3 and C-4) identify the existing and the
proposed land uses within the Old Main Subarea.
c. UDDer Main Subarea: The intent of this Plan is to promote
the preservation, conservation, development and redevelopment of this
downtown neighborhood of residential, office and commercial/retail uses.
The continued development and enhancement of those land uses permitted
within the Downtown Commercial Business District (C-4), the Business District
(C-5), the Office Residential (OR) and Office Service (OS) zones of the City of
Dubuque's Zoning Ordinance are encouraged.
LAND USE maps (Attachments C-5 and C-6) identify the existing and the
proposed land uses within the Upper Main Subarea.
d. Ice Harbor Subareas A and B: The intent of this plan is to
encourage a mix of residential, commercial/retail, recreational and
educational uses in these Subareas. An adopted Planned Unit
Development ordinance shall regulate land uses and zoning in the Ice
Harbor Subareas A and B.
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LAND USE maps (Attachments C-7 and C-8) identify the existing and the
proposed land uses within the Ice Harbor Subareas A and B.
2. PLANNING AND DESIGN CRITERIA:
a. Town Clock. Old Main and Upper Main Subareas: The planning
and design criteria to be used to guide the physical development and
redevelopment of the Town Clock, Old Main and Upper Main Subareas
are those standards and guidelines contained within the City of Dubuque's
Zoning Ordinance and other applicable local, state and federal codes and
ordinances subject to the conditions contained in this subsection.
b. Ice Harbor Subareas A and B: The planning and design criteria to
be used to guide the physical development and redevelopment of the Ice
Harbor Subareas A and B shall be the Port of Dubuque Master Plan
Design Standards attached hereto as Attachment D.
c. Historic Preservation Commission Review: Additionally, the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for
Rehabilitating Historic Structures shall be used to guide the exterior
modifications of historic and architecturally significant properties financed
in whole or in part by the City of Dubuque and the improvement,
installation, construction or reconstruction of public improvements in the
District. Said projects shall be reviewed by the Historic Preservation
Commission for compliance with the above referenced standards.
d. Off-Premise Sianaae: No off-premise signage shall be allowed in
the Ice Harbor Subareas A and B.
e. Overhead Utilitv Lines: No new overhead utility lines shall be
installed within the District where underground placement is feasible.
G. 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 may acquire property for private development
or redevelopment by contractual agreement or by right of eminent domain. The
City 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. No properties are identified for
acquisition in this Plan.
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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 and redevelopers 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 and redevelopers 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.
H. RELOCATION REQUIREMENTS
Relocation assistance in accordance with applicable provisions of Chapter 316 of
the Iowa Code, Highway Relocation Assistance Law, will be provided in the event
that an existing business or residence is displaced by publicly supported
development or redevelopment activities.
I. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development and
redevelopment of the District and private investment therein, the City of Dubuque
is prepared to provide financial assistance to qualified industries, businesses and
housing developers 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, businesses and
housing developers 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 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 entities. Altematively, 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
8
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 Financinq: 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 Section E 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 public improvements 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 any of the public improvements, amenities and
facilities contemplated by the Plan within the District, including pre-
development planning, environmental assessment and remediation,
feasibility analysis and engineering costs;
c. Acquisition, installation, maintenance and replacement of public
improvements throughout the District including but not limited to street
lights, benches, landscaping, appropriate signage and rest rooms;
d. Acquisition of land and/or buildings and preparation of same for
sale to private developers, including any "write down" of the sale price of
the land and/or building;
9
e. Preservation, conservation, development or redevelopment of
buildings or facilities within the District to be sold or leased to qualifying
for-profit and not-for-profit organizations, developers and businesses;
f. Loans or grants to qualified entities 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. Prooosed 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 $75,000,000. Current indebtedness is approximately $39,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general
obligation debt is $25,670,000 (a list of obligations is found as Attachment E) and
the applicable constitutional debt limit is $121,793,282.
J. 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.
K. DURATION OF APPROVED URBAN RENEWAL PLAN
10
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 for its advances and principal and interest payable on all
Tax Increment Financing or general obligations issued to carry out the
OBJECTIVES of the Plan.
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.
L. 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 shall be construed and
implemented as if such provision had never been contained herein.
M. 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, Urban Renewal Law. Any change effecting any
property or contractual right can be effectuated only in accordance with
applicable state and local law.
N. ATTACHMENTS
The following attachments are a part of this Plan:
A Urban Renewal District Map, with Subareas
B Public Activity Area Map
C Land Use Maps
C-1 Town Clock Subarea Existing Land Use Map
C-2 Town Clock Subarea Proposed Land Use Map
C-3 Old Main Subarea Existing Land Use Map
C-4 Old Main Subarea Proposed Land Use Map
C-5 Upper Main Subarea Existing Land Use Map
C-6 Upper Main Subarea Proposed Land Use Map
C-7 Ice Harbor Subareas A and B Existing Land Use Map
C-8 Ice Harbor Subareas A and B Proposed Land Use Map
11
D Port of Dubuque Master Plan Design Standards
E List of Current General Obligation Debt
F :IUSERSIPmyhreIWPDOCSIURIDWNlWN-ICEHARBORIgreaterdowntownplan .doc
F:IUSERSIPmyhreIWPDOCSIURIDOWNTOWNldowntown-iceharborplan.doc
12
EXHIBIT B
LEGAL DESCRIPTION OF PROPERTY
The Property is located in Lot 2 Riverwalk 5th Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof.
13
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FINAL PLAT
RIVERWALK SiH ADDITION IN iHE CITY Of' DUBUQUE. IOWA
Of:stJW:>"'OON: lOTS 1-11 AAO 1-12, alOCl< '; lOTS 13 1HIW 16, LOTS 1-17, 1-18. 1-19, >>D 1-20. BlOCK Ii lOTS G
AND H; A ~llOM (W VAt;A lED PIN[ STREET L't1NG 1I(1\1I[[H LOts 0 AIItO H; II PORlKIlI CIl M JO-FOOT \\IDE I,/1tt:.A. KD
-'UE'I' L'l1HC HORTHEIIl y rs JH) ~T TO LOTS 13 lHflU 20. BLOCK 6; Au. IN Ol.e.KlUE HAABat 1UPRO'W{.l,d:NT
COWPM/Y ADOIT\CIIfi TO mE eHY Of DUBUctJ{, DOWA.. AN) LOT 3. RI'wUMW( 4Th ADl>>lION IN THE CITY CK 0UBl.J0JE. IOW'A
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17
Mayor and City Councilmembers
Cit~ Hall
13t and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Council members:
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. 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 the Developer is
a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against
or affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business (present or prospective), financial
position or results of operations of Developer or which in any manner raises any
questions affecting the validity of the Agreement or Developer's ability to perform
Developer's obligations thereunder.
20
Exhibit F
Star Brewery Budget
Building Shell Buildouts
General Conditions: $125,431 $81,000
Areh.iEng.: $150,000 $100,000
Demolition: $119,500
Excavation: $69,300
Parking Lot Paving: $140,000
Landscaping: $50,000
Concrete Floors: $163,500 513,000
Masonry: $900,000
Steel/Stairs: $215,600
R. Carpentry: $88,388 531,000
F. Carpentry: $100,000
Casework: $20,500
Roofing: $49,000
Insulation: $63,500
Doors: $90,000
Windows: $286,000
Interior Glazing: SI3,900
Drywall: $143,000 514,000
Acoustical Ceilings: $3,000 S35,700
Flooring: $126,000
Painting: $40,000
Specialties: $15,182 511,700
Signage: $10,000
Misc. Theming: $20,000
Kitchen Equipment: $400,000
Elevator: $100,000
Fire Sprinkler: $135,840
Plumbing: $140,000 $35,000
IIVAC: $500,000
Electrical: $480,000 $210,000
CM Fee: $407,774 $121,130
Development Fee: $300,000
Contingency: $300,000 $100,000
$5,085,515 $1,432,430
Total Project: $6,517,945
23
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-
4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an Iowa
municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the _ day of
, 20_, and contains covenants, conditions, and restrictions concerning the
sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments thereto, is
in the possession of the City of Dubuque and may be examined at its offices as above
provided.
Dated this _ day of
,20_.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
25
Jeanne F. Schneider, City Clerk
STATE OF IOWA
ss:
DUBUQUE COUNTY
On this _day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and 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
ss:
DUBUQUE COUNTY
On this _ day of , 20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are the
and that said instrument was signed on behalf of said company by authority of its
members and that they acknowledged the execution of this instrument to be the
voluntary act and deed of said company by it voluntarily executed.
Notary Public, State of Iowa
F:IUSERSIDHeiarlPorl of Dubuque Brewery Development LLCIPorl of Dubuque Development Agreement-
FINAL-6-2-06.doc
26
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
PORT OF DUBUQUE BREWERY DEVELOPMENT, LLC
THIS LEASE AGREEMENT (the Lease) made as of the 1St day of July,
2006, by and between the CITY OF DUBUQUE, IOWA, a municipal corporation
(Lessor), and Port of Dubuque Brewery Development, LLC, an Iowa Limited
Liability Company (Lessee).
WHEREAS, Lessee has requested that Lessor lease to Lessee that
certain real property and improvements, commonly known as the Star Brewery,
located in the City of Dubuque, Dubuque County, Iowa as described herein; and
WHEREAS, the redevelopment of the Star Brewery is an economic
development project involving private and public investment and the creation of
new jobs and income; and
WHEREAS, the redevelopment of the Star Brewery will generate
commercial and tourism-related activities in support of the Port of Dubuque
Master Plan.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1
DEMISE AND TERM
1.1 Demise and Term. In consideration of the rents hereinafter
reserved and the terms, covenants, conditions and agreements set forth in this
Lease, Lessor hereby leases to Lessee the real property described as Area A,
and the building thereon, as shown on Exhibit A attached hereto and by this
reference made a part of this Lease, consisting of approximately 60,173 square
feet of land, together with any and all easements and appurtenances thereto and
subject to any easements and restrictions of record (the "Demised Premises"), to
have and to hold for a term of fifty (50) years commencing as of the date of this
Lease and ending on the 30th day of June, 2056. See paragraph 25 regarding
option to renew. The Demised Premises is located in Lot 2 Riverwalk 5th
Addition in the City of Dubuque, Iowa, according to the recorded plat thereof.
The parties agree to amend Exhibit A upon determination of the exact location
and extent of the Property and legal description.
1.2 Minimum Improvements. Lessee shall construct the Minimum
Improvements (as defined in Section 2.1 of the Development Agreement) in the
time and manner required by the Development Agreement.
1.3 Parking. Lessee shall develop, construct and pay for a parking lot
adjacent to the Dubuque Star Brewery building in that area created by the City's
relocation of Shot Tower Drive as referred to in paragraph 3.3 hereof (that area
identified as Area B on Exhibit A, consisting of approximately 39,405 square feet)
(the "Parking Lot"). Developer shall be responsible for snow removal and similar
maintenance with respect to the Parking Lot and shall further be responsible for
any other maintenance, repair or replacement to the surface of the Parking Lot.
Developer shall have exclusive use of the Parking Lot. Developer shall have
non-exclusive use of the Parking Lot. Developer shall have the right to assign all
or portions of such use to others, including Developer's sublessees with respect
to the Dubuque Star Brewery Building. Tenant's obligations with respect to the
Parking Lot and its non-exclusive rights with respect to the Parking Lot shall
continue during the term of the Lease referred to in paragraph 1.1 or any
renewals thereof. Except for the maintenance and replacement obligations set
forth herein with respect to Area B, Developer shall not be required to pay any
additional sums related to the use of the Parking Lot beyond the rent provided in
this Lease. While Tenant's use of the Parking Lot is on an non-exclusive basis,
the parties recognize that in the event City or other parties hold events in the
general Port of Dubuque area, it may be necessary for Tenant to have temporary
exclusive rights with respect to use of the Parking Lot for the customers of
Tenant's subtenants. Therefore, in the event the City or any other organization
holds an event in the Port of Dubuque area that can reasonably be expected to
adversely affect parking availability on the Parking Lot (such as, by way of
example and not limitation, the occurrence of an event requiring a permit under
the City of Dubuque Ordinances), Tenant may control access to the Parking Lot
on the day of such event and upon not less than seven day's written notice to the
City Manager to ensure that any persons using the Parking Lot are doing so with
the intent of visiting the building upon the Demised Premises. Provided,
however, Tenant's control of access to the Parking Lot shall be limited to no
more than 50 days per year.
ARTICLE 2
RENT
2.1 Lessee shall pay Lessor (in addition to taxes, assessments, and
other charges required to be paid under this Lease by Lessee) rent for the
Demised Premises as follows:
(a) Lease nears one through five. During the initial five year term of the
lease, ending the 30th day of June, 2011, Lessee shall pay rent in
the amount of $1.00 per year;
(b) Lease years six through fifteen. During years 6 through 15 of the
lease, beginning the 1st day of July, 2011 and ending the 30th day
2
of June, 2021, Lessee shall pay annual rent equal to 10% of the fair
market value of the land only comprised within the Demised
Premises as of the date of this lease. The parties agree and
acknowledge that the fair market value of such land as of the date
of this lease is $450,000.00 per acre and that such land consists of
1.38 acres. The annual rent will be $62,100 or $5,175 per month.
(c) Lease years sixteen through thirty. Within 180 days prior to the 30th
day of June, 2021 Lessor and Lessee shall have prepared an
appraisal of the underlying real estate which is a part of the
Demised Premises (exclusive of the Dubuque Star Brewery
Building and other improvements) by a certified appraiser
experienced in appraising similar types of properties in the
Dubuque area mutually selected by Lessor and Lessee. If either
party is dissatisfied with the appraisal or the parties cannot agree
on an appraiser, each shall, not later than 45 days prior to the 30tH
day of June, 2021, appoint its own appraiser, each of which shall
be experienced in appraising similar types of properties in the
Dubuque area and the two appointed by the parties shall select a
third experienced appraiser. The average appraised values of the
three appraisers shall be the appraised value of the Demised
Premises for the purposes of this paragraph 2.1(c). From the 1 st day
of July, 2021 and through the 30th day of June, 2022, ("the Base
Year") the annual rent shall be an amount equal to 10% of the
appraised value of such land (the "Base Year Rent"). Beginning
with the July 1, 2022 -June 30, 2023 lease year and through the
lease year ending June 30, 2036, the annual rent shall increase
each year by an amount equal to three percent (3%) each year
over the annual rent due during the Base Year. The following table
sets forth this calculation:
Lease Year Annual Rent
16 (Base Year Rent equals10% of appraised value)
17 (Base Year Rent x 1.03)
18 (Base Year Rent x 1.06)
19 (Base Year Rent x 1.09)
20 (Base Year Rent x 1.12)
21 (Base Year Rent x 1.15)
22 (Base Year Rent x 1.18)
23 (Base Year Rent x 1.21)
24 (Base Year Rent x 1.24)
25 (Base Year Rent x 1.27)
26 (Base Year Rent x 1.30)
27 (Base Year Rent x 1.33)
28 (Base Year Rent x 1.36)
29 (Base Year Rent x 1.39)
3
30 (Base Year Rent x 1.42)
(d) Lease years thirty-one through fifty. Within 180 days prior to June
30, 2036, Lessor and Lessee shall have prepared an appraisal of
the underlying real estate which is a part of the Demised Premises,
(exclusive of the Dubuque Star Brewery Building and other
improvements) by a certified appraiser experienced in appraising
similar types of properties in the Dubuque area mutually selected
by Lessor and Lessee. If either party is dissatisfied with the
appraisal or the parties cannot agree on an appraiser, each shall,
not later than 45 days prior to the 30t" day of June, 2036, appoint its
own appraiser, each of which shall be experienced in appraising
similar types of properties in the Dubuque area and the two
appointed by the parties shall select a third experienced appraiser.
The average appraised values of the three appraisers shall be the
appraised value of the Demised Premises for the purposes of this
paragraph 2.1(d). From and after July 1, 2036 the annual rent shall
be 10% of the appraised value of such land. This process of re-
appraisal and Tenant paying annual rent equal to 10% of the new
appraised value shall continue every 5 years during the remaining
term of this Lease.
All such rent shall be payable in twelve (12) equal monthly installments on the
first day of each month.
ARTICLE 3
TITLE TO IMPROVEMENTS AND TRADE FIXTURES
3.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures"
shall mean all of Lessee's personal property located on the Demised Premises
used in Lessee's business whether or not such personal property is affixed to the
Demised Premises. Title to Lessee's trade fixtures (the "Trade Fixtures") is and
shall be the sole and exclusive property of Lessee during the term of this Lease
and shall remain the sole and exclusive property of Lessee after the expiration or
termination of this Lease, for whatever reason. Lessor acknowledges and
understands that it shall have no right, title or interest in or to Lessee's Trade
Fixtures either during the term of this Lease, or thereafter (except as hereinafter
provided). Lessor acknowledges and agrees that Lessee shall have the right to
encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from
the Demised Premises, or to otherwise deal with all or any portion of such
Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior
written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate
in recordable form prepared by Lessee stating that Lessor has no interest or right
in or to Lessee's Trade Fixtures, as well as any other or further document which
Lessee may reasonably request from Lessor.
4
3.2 Improvements. On delivery of possession of the Demised Premises
to Lessee, Lessee shall construct on the Demised Premises the Minimum
Improvements as required by the Development Agreement (the "Improvements").
It shall be unreasonable for Lessor to withhold such consent if such design,
appearance and quality are generally compatible with other such buildings in the
area. Subject to applicable law and the obligations imposed on Lessor as a
governmental entity, Lessor agrees to process as expeditiously as possible all
permits, variances and approvals reasonably required to develop and construct
the Improvements on the Demised Premises. All improvements presently on the
Demised Premises and all Improvements hereafter constructed on the Demised
Premises are and shall be the property of Lessee during the continuance of the
term of this Lease and no longer. Subject to the payment obligations of Lessor
set forth below, upon any termination of this Lease, by reason of any cause
whatsoever, if the Improvements or any part thereof shall then be on the
Demised Premises, all of Lessee's right, title, and interest therein shall cease and
terminate, and title to the Improvements shall vest in Lessor, and the
Improvements or the part thereof then within the Demised Premises shall be
surrendered by Lessee to Lessor. No further deed or other instrument shall be
necessary to confirm the vesting in Lessor of title to the Improvements. However,
upon any termination of this Lease, Lessee, upon request of Lessor, shall
execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all
of Lessee's right, title and interest in or to the Improvements have expired, and
that title to the Improvements has vested in Lessor.
3.3 City Improvements. City shall construct the new Bell Street
Extension (Shot Tower Drive), also known as East 4th Street to the north of the
Star Brewery by moving such street northerly in order to allow Developer to
create a parking area immediately to the west of the Star Brewery Building (Area
B on Exhibit A). Developer shall develop, construct and pay for the parking lot
and associated improvements, including but not limited to lighting and
landscaping, in Area B for the non-exclusive use of Tenant. The improvements
by the City shall be completed at City's expense on or before the 31 stday of July,
2007. Developer shall be responsible for snow removal and similar maintenance
with respect to the parking lot. Developer shall also be responsible for any
maintenance, repair or replacement to the surface of the parking lot.
ARTICLE 4
ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
4.1 Lessee's Right to Encumber Leasehold Interest. Lessee may
encumber by mortgage, deed of trust or other proper instrument, its leasehold
interest and estate in the Demised Premises, together with all Improvements on
the Demised Premises, as security for any indebtedness of Lessee, provided that
no such encumbrance shall extend beyond the term of this Lease. Lessee shall
provide prompt written notice to Lessor of any such encumbrance together with a
copy of such encumbrance. In the event of any judicial or nonjudicial foreclosure
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under any mortgage, deed of trust or other similar instrument made by Lessee
covering its leasehold interest in the Demised Premises, Lessor shall, upon such
foreclosure or sale, recognize the purchaser thereunder as lessee under this
Lease, provided such purchaser expressly agrees in writing to be bound by the
terms of this Lease and the Development Agreement between the parties.
4.2 Notice to Holder of Encumbrance• Right of Holder to Cure Lessee's
Default. If Lessee shall encumber its leasehold interest and estate in the
Demised Premises and if Lessee, or the holder of the indebtedness, its
successors and/or assigns (the "Holder") secured by the encumbrance shall give
notice to Lessor of the existence of the encumbrance and the address of the
Holder, then Lessor shall mail or deliver to the Holder, at such address, a
duplicate copy of all notices in writing which Lessor may, from time to time, give
or serve on Lessee under and pursuant to the terms and provisions of this Lease.
The copies shall be mailed or delivered to the Holder at, or near as possible to,
the same time the notices are given to or served on Lessee. The Holder may, at
its option, at any time before the rights of Lessee shall be terminated as provided
in this Lease, pay any of the rents due under this Lease or pay any taxes and
assessments, or do any other act or thing required of Lessee by the terms of this
Lease, or do any act or thing that may be necessary and proper to be done in the
observance of the covenants and conditions of this Lease or to prevent the
termination of this Lease; provided, however, that the doing of any act or thing
requiring possession of the Demised Premises shall be subject to the further
rights of Holder as set forth in Section 16.2. All payments so made and all things
so done and performed by the Holder shall be effective to prevent a foreclosure
of the rights of Lessee thereunder as the same would have been if done and
performed by Lessee.
ARTICLE 5
TAXES
5.1 Lessee shall be responsible for all real estate taxes levied, taxed or
imposed upon the Real Estate that become payable during the term hereof and
which would become delinquent if not so paid during the term hereof. Lessee
shall further provide to Lessor official receipts of the appropriate taxing authority
or other evidence satisfactory to Lessor evidencing payment thereof.
5.2 During the term of this Lease, Lessee further agrees to pay all other
taxes, rates, charges, levies and assessments, general and special, of every
name, nature and kind, whether now known to the law or hereafter created which
may be taxed, charged, assessed, levied or imposed upon said real estate and
which become payable during the term hereof and which would become
delinquent if not so paid during the term hereof, any buildings or improvements
thereon which may be taxed, charged, assessed, levied or imposed upon the
leasehold estate hereby created and upon the reversionary estate in said real
estate during the term hereof and which become payable during the term hereof
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and which would become delinquent if not so paid during the term hereof, and all
such other taxes, rates, charges, levies and assessments shall be paid by
Lessee as they become due and before they become delinquent during the term
hereof.
5.3 Lessee agrees to timely pay all taxes, assessments or other public
charges levied or assessed by lawful authority (but reasonably preserving
Lessee's rights of appeal) against its personal property on the premises, during
the term of this Lease.
5.4 Nothing herein shall require Lessee to pay any of Lessor's income
taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor
hereunder.
5.5 Lessee shall at all times have the right to contest in good faith, in
any proper proceedings, in the name of Lessor if necessary, the payment or
satisfaction of any such taxes, assessments, rates, charges or levies so agreed
to be paid by Lessee, if the validity thereof, or the right to assess or levy the
same against or collect the same from said Demised Premises or Improvements,
shall be disputed, but only to the extent permitted under the Minimum
Assessment Agreement between Lessor and Lessee with respect to the
Demised Premises. Upon the conclusion of any such suit or proceedings, or not
less than three (3) months prior to the date when the right to redeem therefrom
expires, whichever will be the earlier, Lessee shall promptly pay and satisfy such
disputed tax, assessment or other charge as finally determined, together with all
expenses, costs and attorneys' fees whatsoever incurred in connection therewith.
ARTICLE 6
REPAIRS
6.1 Lessee shall at all times during the term of this Lease, at Lessee's
own costs and expense, keep the Demised Premises and the Improvements
thereon, and all sidewalks, curbs, and all appurtenances to the Demised
Premises, in good order, condition and repair, casualties and ordinary wear and
tear excepted. Lessee shall keep and maintain the Demised Premises and all
Improvements in a condition consistent with other similarly classed operations.
Lessee shall keep the Demised Premises in such condition as may be required
by law and by the terms of the insurance policies furnished pursuant to this
Lease, whether or not such repair shall be interior or exterior, and whether or not
such repair shall be of a structural nature. Upon reasonable notice to Lessee,
Lessor may, at its discretion and at its cost, conduct an annual inspection of the
Demised Premises to determine Lessee's compliance with this Article 6. The
City shall be responsible for all repairs, replacements and maintenance of the
Alliant Amphitheater.
ARTICLE 7
COMPLIANCE WITFI LAW
7.1 During the term of this Lease, Lessee shall comply with all local,
state and federal laws applicable to Lessee's use of the Demised Premises,
including but not limited to the Americans with Disabilities Act.
7.2 Lessee shall not commit waste on the Demised Premises except as
necessary for its business purposes including the removal or construction of any
buildings and Improvements on the Demised Premises, and shall be liable for
any damages to or destruction of any buildings or Improvements on the Demised
Premises resulting from waste and shall be required to repair or rebuild such
buildings or Improvements. Lessee may remove existing Improvements or
construct new Improvements on the Demised Premises subject to all of the terms
and conditions of this Lease provided Lessee has received the prior approval of
Lessor, which approval Lessor shall not unreasonably withhold.
ARTICLE 8
ALTERATIONS
8.1 Following construction of the Minimum Improvements, Lessee shall
have the right, with Lessor's prior written consent in the event the cost thereof
exceeds Fifty Thousand and 00/100 Dollars ($50,000.00) (which consent shall
not be unreasonably withheld) from time to time during the term of this Lease and
any renewals, to make any alteration, addition or modification to the Demised
Premises or the Improvements thereon. Any such alterations, additions or
modifications shall be completed consistent with the requirements of any
applicable federal, state or local statutes or ordinances. On the 10th anniversary
of the commencement of this lease (July 1, 2016) the $50,000 threshold provided
above shall be adjusted by multiplying the $50,000 by a fraction, the numerator
of which shall be the Consumer Price Index -All Urban Consumers for June 1,
2016 and the denominator which shall be the Consumer Price Index -All Urban
Consumers for June 1, 2006. This adjustment to the cost of work requiring
Landlord's consent shall be made every 10 years thereafter during the term of
this lease and any extensions. In each case, the numerator shall be the above
index as of the date of adjustment and the denominator shall be the above index
as of the date of the previous adjustment. In the event the United States
Government no longer utilizes the index referred to above, the parties shall use a
comparable index mutually agreed upon by the parties. In the event the cost of
any alternation, addition, or modification is less than $50,000 during the initial 10
years of the lease or less than the threshold adjusted by the above Consumer
Price Index adjustment thereafter, then Lessee may make such alteration,
additional modification without the prior written consent of Lessor.
ARTICLE 9
USE AND MAINTENANCE OF DEMISED PREMISES
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9.1 Lessee shall operate the Improvements for the purposes outlined in
the Development Agreement and shall not knowingly use or allow the Demised
Premises or any buildings or Improvements thereon or any appurtenances
thereto, to be used or occupied for any unlawful purpose or in violation of any
certificate of occupancy. Lessee shall not suffer any act to be done or any
condition to exist within the Demised Premises or in any Improvement thereon, or
permit any article to be brought therein, which is dangerous, unless safeguarded
as required by law, or which, in law, constitute a nuisance, public or private, or
which may make void or voidable any insurance in force with respect thereto.
9.2 Lessee shall maintain and repair the Improvements in the Demised
Premises, at Lessee's sole expense, during the term hereof and any extensions
or renewals.
ARTICLE 10
INSURANCE
10.1 Lessee shall provide and maintain or cause to be maintained at all
times, at its cost and expense, during the process of constructing Improvements
(and, from time to time at the request of City, furnish City with proof of payment
of premiums on) insurance as follows:
(a) Builder's risk insurance as follows:
1. Named Insured: the City of Dubuque, Lessee, the general
contractor and any named or unnamed sub- or sub-
subcontractors.
2. Covered Property: The Improvements, and the existing
Brewery building, including all fixtures, materials, supplies,
machinery, and equipment to be used in or incidental to the
construction of the Improvements.
3. Covered Perils: All risks of physical loss including collapse,
operation of building ordinances or laws, mechanical
breakdown, or electrical injury, testing, earthquake, flood,
sewer backup, and seepage.
4. Valuation: Replacement cost for the Improvements and on a
function basis for the replacement of the existing Brewery
building with functionally equivalent but less costly material if
available.
5. Coverage Amount: The completed value of the
Improvements, including the value of the existing Brewery
building.
(b) Commercial General Liability insurance as set forth in the City's
standard Insurance Schedule for Lessees of City Property, as such
uniform, standardized schedule may from time to time be amended.
The current Insurance Schedule is attached to this Lease as
Insurance Schedule A, Exhibit "B."
10.2 Upon completion of construction of Improvements, Lessee shall
maintain, or cause to be maintained at all times, at its cost and expense, (and,
from time to time at the request of City, shall furnish proof of the payment of
premiums on) insurance as follows:
(a) Property insurance against loss and/or damage to Improvements
and the existing Brewery building under an insurance policy written
on the Special Perils Form in an amount not less than the full
insurable replacement value of Improvements and the existing
Brewery building, but any such policy may have a deductible
amount of not more than $50,000.00. No policy of insurance shall
be so written that the proceeds thereof will produce less than the
minimum coverage required by the preceding sentence, by reason
of co-insurance provisions or otherwise, without the prior consent
thereto in writing by City. Replacement value shall be determined
from time to time at the request of City, but not more frequently
than once every three years, and paid for by Lessee.
1. Named Insured: the City of Dubuque and Lessee.
2. Covered Property: The Improvements, and the existing
Brewery building, including all fixtures, materials, supplies,
machinery, and equipment to be used in or incidental to the
construction of the Improvements.
3. Covered Perils: All risks of physical loss including collapse,
operation of building ordinances or laws, mechanical
breakdown, or electrical injury, testing, earthquake, flood,
sewer backup, and seepage.
4. Valuation: Replacement cost for the Improvements and on a
function basis for the replacement of the existing Brewery
building with functionally equivalent but less costly material if
available.
5. Coverage Amount: The completed value of the
Improvements, including the value of the existing Brewery
building.
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(b) Commercial General Liability insurance as set forth in the City's
standard Insurance Schedule for Lessees of City Property, as such
uniform, standardized schedule may from time to time be amended.
The current Insurance Schedule is attached to this Lease as
Insurance Schedule A, Exhibit "B."
10.3 All insurance required by this Article shall be taken out and
maintained in responsible insurance companies selected by Lessee which are
authorized under the laws of the State of Iowa to assume the risks covered
thereby. Lessee shall deposit annually with City copies of policies evidencing all
such insurance, or a certificate or certificates or binders of the respective insurers
stating that such insurance is in force and effect. Unless otherwise provided in
this Section, each policy shall contain a provision that the insurer shall not cancel
or modify it without giving written notice to Lessee and City at least thirty (30)
days before the cancellation or modification becomes effective. Lessee shall
furnish City evidence satisfactory to City that the policy has been renewed or
replaced by another policy conforming to the provisions of this Section, or that
there is no necessity therefor under the terms hereof. In lieu of separate policies,
Lessee may maintain a single policy, or blanket or umbrella policies, or a
combination thereof, which provide the total coverage required herein, in which
event Lessee shall deposit with City a certificate or certificates of the respective
insurers as to the amount of coverage in force upon Improvements, provided,
however, the specific limit shall not be impaired.
10.4 Lessee agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, Improvements or any
portion thereof resulting from fire or other casualty. Net proceeds of any such
insurance ("Net Proceeds"), shall be paid directly to Lessee, and Lessee shall
forthwith repair, reconstruct and restore the 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, Lessee shall apply the Net Proceeds of any
insurance relating to such damage received by Lessee to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any
mortgage encumbering title to the Property.
10.5 Lessee shall complete the repair, reconstruction and restoration of
Improvements, whether or not the Net Proceeds of insurance received by Lessee
for such purposes are sufficient.
10.6 All rights of Lessor to receive or be paid insurance proceeds
hereunder, including but not limited to Section 10.4 above, are in all respects
subject and subordinate to the rights of any Holder, which rights are prior to the
rights of Lessor.
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ARTICLE 11
LESSOR°S WARRANTIES AND REPRESENTATIONS
11.1 Lessor's Representation of Good Title. Lessor covenants and
warrants that Lessor is lawfully seized in possession of the Demised Premises,
shall take all necessary steps to acquire fee simple title to the Premises as
required by law, and that it has full right and authority to enter into this Lease for
the full term hereof, and covenants and agrees that upon paying the rent
provided for herein, and upon Lessee's performing the covenants and
agreements of this Lease required to be performed by said Lessee, that it will
have, hold and enjoy quiet possession of the Demised Premises. Lessor
warrants to Lessee that the Demised Premises are properly zoned for the
conduct of the operation of Lessee's business.
ARTICLE 12
LESSEE'S WARRANTIES AND REPRESENTATION
12.1 Lessee Compliance With Law.
(a) Lessee shall comply with all applicable local, state and federal
laws, rules, regulations and permits with regard to the Demised
Premises and its use, occupancy and control of the Demised
Premises.
(b) Without limiting the obligations of Lessor under Section 3.2, Lessee
shall be responsible for obtaining any and all applicable permits,
licenses or authorizations as may be necessary for Lessee's use,
occupancy and control of the Demised Premises.
12.2 Environmental Matters.
(a) Lessee covenants and agrees that Lessor shall have no
responsibility for or liability arising from any release of a Hazardous
Substance which is caused by Lessee or its agents or invitees.
Notwithstanding any other provision of this Lease, Lessor agrees
that Lessee shall not have any responsibility for any Pre-Existing
Condition (as defined below) nor shall Lessor seek indemnification
from Lessee for any such Pre-Existing Condition. There is a
rebuttable presumption that any Hazardous Substances found on
the Demised Premises were not deposited by Lessee and are a
Pre-Existing Condition. A pre-existing condition ("Pre-Existing
Condition") shall be defined as (i) any Hazardous Substances found
on the Demised Premises which were not deposited by Lessee or
its agents or invitees on the Demised Premises, (ii) any Hazardous
Substances on the Demised Premises prior to the Initial Term of
this Lease, and (iii) any Hazardous Substances which leach or
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migrate on to the Demised Premises from any adjoining properties,
including properties owned by the Lessor.
(b) Notwithstanding any other provision of this Lease, the Lessor, in its
capacity as both owner of the Demised Premises as landlord under
this Lease, shall retain any legal responsibility or liability, subject to
available defenses, the Lessor may have under law for any Pre-
Existing Condition. This retained responsibility and duty includes
the duty to assess, remove and remediate Pre-Existing Conditions
on or affecting the Demised Premises as ordered by a state or
federal agency, subject to the availability of a comfort letter. This
provision shall not inure to the benefit of third parties and shall not
be interpreted to enlarge any liabilities owed by the Lessor or to
require the Lessor to absorb any duties, responsibilities or liabilities
that it does not already have for the Pre-Existing Conditions.
(c) Lessee agrees to provide reasonable notice to the Lessor of any
claims by adjoining or affected property owners, third parties, or
parties making claims through a citizen action or private right of
action under applicable law, environmental statutes or regulations
which arise out of or are related to Pre-Existing Conditions on the
Demised Premises. Upon receipt of such notice, to the fullest
extent allowed by law, the Lessor agrees to defend, hold harmless
and indemnify Lessee for costs and expenses associated with
responding to any claims by adjoining property owners, third
parties, or parties making claims through a citizen action or private
right of action under applicable environmental statutes or
regulations which arise out of or are directly related to Pre-Existing
Conditions on the Demised Premises.
(d) To the fullest extent allowed by law, the Lessor agrees to indemnify
Lessee for reasonable costs and expenses associated with
responding to any legally enforceable order regarding Pre-Existing
Conditions from any governmental agency or court with proper
jurisdiction to the extent that the Lessor, after Lessee has given
reasonable notice of the governmental order to the City, does not
timely and reasonably respond to said inquiry or order and if the
Lessee allows full access to the Premises as necessary, as
provided herein. The Lessor's right of appeal and negotiation are
not waived by the foregoing and the filing of an appeal or
negotiation with the governmental agency is considered timely and
reasonable response. However, the Lessor agrees to indemnify
Lessee for any penalties and fines Lessee incurs as a result of any
such appeal or negotiation.
(e) Lessor shall provide reasonable notice to Lessee prior to
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requesting access for the purposes set forth above. Lessee agrees
to allow the Lessor to have access to and use of the Demised
Premises to times and locations which will minimize any disruption
and which will not materially or unreasonably interfere with the
operation or possession of the Demised Premises as required to
respond to any governmental inquiry or order as described above.
Except as set out below, the terms of this provision shall not be
construed to require that the Lessee is under any obligation to
Lessor to move, damage, or modify personal property, fixtures, or
buildings on the Demised Premises or to allow Lessor to affect or
modify this Lease, whether by lien, easement, or governmental
order, except to the extent that use limitations and environmental
protection easements may be placed on the Demised Premises
which do not change or interfere with the actual or proposed use of
the Demised Premises by Lessee. The Lessee agrees that it will
not install drinking water wells or otherwise obtain potable water for
the purpose of consumption or bodily contact from the groundwater
underneath the Demised Premises and agrees to execute any
necessary waivers or easements to that effect. If the Lessor is
required by a state or federal agency to take such action which
materially or unreasonably interferes with the operation or
possession of the Demised Premises, or otherwise damages the
property of Lessee, then the Lessor shall be required to pay the
reasonable costs associated with such activity, including, without
limitation, loss of income, economic damages, property damage,
and other costs and expenses, whether temporary or permanent in
nature, incurred by Lessee by reason of the interference.
(f) Lessee covenants and agrees to promptly notify Lessor of any
release of Hazardous Substance in, on or about the Demised
Premises of which Lessee has actual knowledge.
(g) Lessee covenants and agrees to promptly take any and all
necessary and appropriate response to address any release of
Hazardous Substance for which Lessee is responsible under
Section 12.2A. Such response shall include, without limitation,
notification to appropriate governmental authorities, as may be
required by law.
(h) Lessee covenants and agrees to not manufacture, treat or dispose
of Hazardous Substances at the Demised Premises or knowingly
allow the manufacture, treatment, or disposal of Hazardous
Substances same on the Demised Premises.
For the purposes of this Lease, "Hazardous Substance" or
"Hazardous Substances" means any hazardous or toxic substance,
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material or waste which is or becomes regulated by any local
government, the State of Iowa or the United States Government. It
includes, without limitation, any material or substance that is (i)
defined as a "hazardous substance" or "hazardous waste" under
Chapter 455B, Iowa Code, (ii) petroleum and petroleum products,
(iii) asbestos containing materials in any form or condition, (iv)
designated as a "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act (33 U.S.C. §1321), (v)
defined as a "hazardous waste pursuant to §1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
seq., (vi) defined as a "hazardous substance" pursuant to §101 of
the Comprehensive Environmental Response, Compensation and
Liability Act, U.S.C §9601 et seq., or (vii) defined as a "regulated
substance" pursuant to Subchapter IX, Solid Waste Disposal Act
(Regulation of Underground Storage Tanks), 42 U.S.C. §6991 et
seq.] The term "Hazardous Substance" shall not include any air
emissions discharged into the atmosphere as allowed by a duly
issued permit from the applicable governmental agency.
ARTICLE 13
INDEMNIFICATION
13.1 Indemnification of Lessee. To the extent allowed by law, Lessor will
indemnify and save harmless Lessee from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Lessee by reason of (a) any accident, injury to or
death of persons or loss of or damage to property occurring on or about the
Demised Premises and resulting from any act or omission of Lessor, (b) any
failure on the part of Lessor to perform or comply with any of the terms of this
Lease and (c) any breach on the part of Lessor of any warranty or representation
contained in Article 11. In case any action, suit or proceeding is brought against
Lessee by reason of such occurrence, Lessor will, at Lessor expense and
discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessee, which approval will not be
unreasonably withheld.
13.2 Indemnification of Lessor. To the extent allowed by law, Lessee will
indemnify and save harmless Lessor from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Lessor by reason of (a) any accident, injury to or
death of persons or loss of or damage to property occurring on or about the
Demised Premises during the term of this Lease and resulting from any
negligence of Lessee or anyone claiming by, through or under Lessee during the
term of the Lease and (b) any failure on the part of Lessee to perform or comply
is
in any material respect with any of the material terms of this Lease, and (c) any
material breach on the part of Lessee of any warranty or representation
contained in Article 12. In case any action, suit or proceeding is brought against
Lessor by reason of such occurrence, Lessee will, at Lessee's expense and
discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessor, which approval will not be
unreasonably withheld.
13.3 The obligations and liabilities under this Article shall survive and
continue in full force and effect and shall not be terminated, discharged or
released, in whole or in part, irrespective of the termination or expiration of the
term of this Lease.
ARTICLE 14
CONDEMNATION
14.1 Entire Condemnation. If at any time during the term of this Lease all
or substantially all of the Demised Premises or the Improvements thereon shall
be taken in the exercise of the power of eminent domain by any sovereign,
municipality or other public or private authority, then this Lease shall terminate on
the date of vesting of title in such taking and any prepaid rent shall be
apportioned as of said date. Substantially all of the Demised Premises and the
Improvements thereon shall be deemed to have been taken if the remaining
portion of the Demised Premises shall not be of sufficient size to permit Lessee,
in Lessee's sole discretion, to operate its business thereon in a manner similar to
that prior to such taking.
14.2 Allocation of Award. Any award for such taking of all or substantially
all of the Demised Premises shall be paid to the parties hereto in accordance
with the following:
(a) To Lessor, the amount of the award attributable to the underlying
land within the Demised Premises only, determined as if this Lease
was not in effect at the time of such award;
(b) To Lessee, the entire award except that portion allocated to Lessor
above.
14.3 Partial Condemnation. If less than all or substantially all of the
Demised Premises or the Improvements thereon shall be taken in the exercise of
the power of eminent domain by any sovereign, municipality or other public or
private authority, then Lessee, at its option, may elect to continue this Lease in
full force and effect or terminate this Lease. If Lessee shall elect to maintain this
Lease in full force and effect, the award for such partial condemnation shall be
allocated as provided in Section 14.2, and Lessee shall proceed with reasonable
diligence to carry out any necessary repair and restoration so that the remaining
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Improvements and appurtenances shall constitute a complete structural unit or
units which can be operated on an economically feasible basis under the
provisions of this Lease. In the event Lessee elects to continue this Lease in full
force and effect after a partial condemnation, the Base Rent shall be reduced in
proportion to the area of the Demised Premises taken.
Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be
not less than 60 days nor more than 360 days after delivery of such notice to
Lessor (the Termination Date). In the event Lessee terminates this Lease, as
provided for in this Section 13.3, Lessee shall be entitled to the entire award for
such partial taking.
14.4 Temporary Taking. If the temporary use of the whole or any part of
the Demised Premises or the Improvements thereon or the appurtenances
thereto shall be taken at any time during the term of this Lease in the exercise of
the power of eminent domain by any sovereign, municipality, or other authority,
the term of this Lease shall not be reduced or affected in any way, and Lessee
shall continue to pay in full the rent, additional rent and other sum or sums of
money and charges herein reserved and provided to be paid by Lessee, and the
entire award for such temporary taking shall be paid to Lessee. Lessee shall
repair and restore any and all damage to the Demised Premises and the
Improvements as soon as reasonably practicable after such temporary taking.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
15.1 Assignment of Lease. Prior to the issuance of the Certificate of
Completion (as defined in Section 2.4 of the Development Agreement) for the
Minimum Improvements, this Lease may not be assigned by Lessee without the
prior written consent of the Lessor. After the issuance of the Certificate of
Completion, the Lessee shall have the right to transfer and assign this Lease to a
third party, subject to the consent of Lessor which consent shall not be
unreasonably withheld, provided said third party agrees to comply with the terms
and conditions of this Lease.
15.2 Subletting. Lessee shall have the right to enter into subleases
related to the Demised Premises under terms acceptable to Lessee, in Lessee's
sole discretion.
ARTICLE 16
DEFAULT
16.1 Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail
i~
or neglect to observe, keep or perform any of the covenants, terms or conditions
contained in this Lease on its part to be observed, kept or performed, and the
default shall continue for a period of thirty (30) days after written notice from
Lessor setting forth the nature of Lessee's default (it being intended that in
connection with a default not susceptible of being cured with diligence within
thirty (30) days, the time within which Lessee has to cure the same shall be
extended for such period as may be necessary to complete the same with all due
diligence, but in no event longer than ninety (90) days), then and in any such
event, Lessor shall have the right at its option, on written notice to Lessee, to
terminate this Lease. Lessor shall thereafter have the right to enter and take
possession of the Demised Premises with process of law and to remove all
personal property from the Demised Premises and all persons occupying the
Demised Premises and to use all necessary force therefor and in all respects to
take the actual, full and exclusive possession of the Demised Premises and
every part of the Demised Premises as of Lessor's original estate, without
incurring any liability to Lessee or to any persons occupying or using the
Demised Premises for any damage caused or sustained by reason of such entry
on the Demised Premises or the removal of persons or property from the
Demised Premises.
16.2 Rights of Holder of Encumbrance in Event Lessee Defaults. If
Lessee fails or neglects to observe, keep or perform any of the covenants, terms
or conditions contained in this Lease on its part to be observed, kept or
performed, the Holder of any indebtedness secured by an encumbrance on the
leasehold estate under this Lease shall have thirty (30) days after receipt of
written notice from Lessor setting forth the nature of Lessee's default and a
reasonable time thereafter if it shall have commenced foreclosure or other
appropriate proceedings in the nature thereof within such thirty (30) days and is
diligently prosecuting such proceedings, but in no event longer than ninety (90)
days, within which to endeavor to make good or remove the default or cause for
termination of the Lease. All right of Lessor to terminate this Lease on the failure
or neglect of Lessee to observe, keep and perform the covenants, terms and
conditions of this Lease is, and shall continue to be, at all times prior to payment
in full of the indebtedness to the Holder of Lessee, subject to and conditioned on
Lessor's having first given the Holder written notice thereof and the Holder having
failed to cause the default or cause for termination to be made good or removed
within thirty (30) days after receiving written notice of default or cause for
termination or within a reasonable time thereafter if it shall have commenced
foreclosure or other appropriate proceedings in the nature of foreclosure within
such thirty (30) days and is diligently prosecuting such proceedings, but in no
event longer than ninety (90) days.
16.3 Lessee's Rights in the Event of Lessee's Default. If Lessor shall fail
or neglect to observe, keep or perform any of the covenants, terms or conditions
contained in this Lease on its part to be observed, kept or performed, and the
default shall continue for a period of thirty (30) days after written notice from
la
Lessee setting forth the nature of Lessor's default (it being intended that in
connection with a default not susceptible of being cured with diligence within
thirty (30) days, the time within which Lessor has to cure the same shall be
extended for such period as may be necessary to complete the same with all due
diligence, but in no event longer than ninety (90) days), then and in any such
event, Lessee shall have all rights available to it provided by law or equity.
ARTICLE 17
RIGHT TO CURE OTHER'S DEFAULTS
17.1 Whenever and as often as a party shall fail or neglect to comply
with and perform any term, covenant, condition or agreement to be complied with
or performed by such party hereunder, then, following thirty (30) days' prior
written notice to such defaulting party (or such additional time to cure as may be
accorded Lessee pursuant to Section 16.1 above, but in no event longer than
ninety (90) days), the other party, at such other party's option, in addition to all
other. remedies available to such other party, may perform or cause to be
performed such work, labor, services, acts or things, and take such other steps,
including entry onto the Demised Premises and the Improvements thereon, as
such other party may deem advisable, to comply with and perform any such
term, covenant, condition or agreement which is in default, in which event such
defaulting party shall reimburse such other party upon demand, and from time to
time, for all costs and expenses suffered or incurred by such other party in so
complying with or performing such term, covenant, condition or agreement. The
commencement of any work or the taking of any other steps or performance of
any other act by such other party pursuant to the immediately preceding
sentence shall not be deemed to obligate such other party to complete the curing
of any term, covenant, condition or agreement which is in default.
ARTICLE 18
QUIET ENJOYMENT
18.1 Lessor covenants that at all times during the term of this Lease, so
long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the
Demised Premises or any part thereof shall not be disturbed by any act of
Lessor, or of anyone acting by, through or under Lessor.
ARTICLE 19
ESTOPPEL CERTIFICATES
19.1 Each party hereto agrees that at any time and from time to time
during the term of this Lease, within ten (10) days after request by the other party
hereto or by any lender having an interest in Lessee's leasehold estate, it will
execute, acknowledge and deliver to the other party or to such lender or any
prospective purchaser, assignee or any mortgagee designated by such other
19
party, a certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and identifying the modification agreements), (b) the date to which rent
has been paid, (c) whether or not there is any existing default by Lessee in the
payment of any rent or other sum of money hereunder, and whether or not there
is any other existing default by either party hereto with respect to which a notice
of default has been served, and, if there is any such default, specifying the nature
and extent thereof; and (d) whether or not there are any setoffs, defenses or
counterclaims against enforcement of the obligations to be performed hereunder
existing in favor of the party executing such certificate.
ARTICLE 20
WAIVER
20.1 No waiver by either party hereto of any breach by the other of any
term, covenant, condition or agreement herein and no failure by any party to
exercise any right or remedy in respect of any breach hereunder, shall constitute
a waiver or relinquishment for the future of any such term, covenant, condition or
agreement or of any subsequent breach of any such term, covenant, condition or
agreement, nor bar any right or remedy of the other party in respect of any such
subsequent breach, nor shall the receipt of any rent, or any portion thereof, by
Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any
other rent then or thereafter in default, or to terminate this Lease, or to recover
the Demised Premises, or to invoke any other appropriate remedy which Lessor
may select as herein or by law provided.
ARTICLE 21
SURRENDER
21.1 Lessee shall, on the last day of the term of this Lease or upon any
termination of this Lease, surrender and deliver up the Demised Premises, with
the Improvements then located thereon into the possession and use of Lessor,
without fraud or delay and in good order, condition and repair, reasonable wear
and tear excepted, free and clear of all lettings and occupancies, free and clear
of all liens and encumbrances other than those existing on the date of this Lease
and those, if any, created by Lessor, without (except as otherwise provided
herein) any payment or allowance whatever by Lessor on account of or for any
buildings and Improvements erected or maintained on the Demised Premises at
the time of the surrender, or for the contents thereof or appurtenances thereto.
Lessee's Trade Fixtures, personal property and other belongings of Lessee or of
any sublessee or other occupant of space in the Demised Premises shall be and
remain the property of Lessee, and Lessee shall have a reasonable time after the
expiration of the term of this Lease (not to exceed thirty (30) days) to remove the
same.
Zo
ARTICLE 22
MEMORANDUM OF LEASE
22.1 Each of the parties hereto will, promptly upon request of the other,
execute a memorandum of this Lease in a form suitable for recording setting
forth the names of the parties hereto and the term of this Lease, identifying the
Demised Premises, and also including such other clauses therein as either party
may desire, except the amounts of Basic Rent payable hereunder.
ARTICLE 23
NOTICES
23.1 All notices, demands or other writings in this Lease provided to be
given or made or sent, or which may be given or made or sent, by either party to
the other, shall be deemed to have been fully. given or made or sent when made
in writing and deposited in the United States mail, registered and postage
prepaid, and by facsimile addressed as follows:
TO LESSOR: City of Dubuque, Iowa
City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Fax 563-589-4149
TO LESSEE: Port of Dubuque Brewery Development, LLC
137 Main Street, Suite 400
Dubuque,lA 52001
Fax 563-583-2412
23.2 The address and/or fax number to which any notice, demand or
other writing may be given or made or sent to any party as above provided may
be changed by written notice given by the party as above provided.
ARTICLE 24
VENDOR STATUS
City shall require that, with respect to the sale of any food or beverages,
including wine, for any event held in the Alliant Amphitheater by any party, that
such party shall be required to obtain a bid for the provision of such food from
Lessee's subtenants located in the Dubuque Star Brewery Building. It is the
intent of this paragraph that Lessee shall have the right to grant or lease to its
subtenants the rights granted under the terms of this paragraph (the right to bid
for the sale or provision of food or beverages, including wine, for all events in any
21
way associated with the Alliant Amphitheater during the term hereof or any
renewals or extensions). Lessee shall have the excusive right to control or grant
to others the right to control the offering or selling of food or beverages, including
wine, on any property located within Area A on Exhibit A attached hereto.
ARTICLE 25
OPTIONS TO RENEW
Lessee is hereby granted one option to renew this lease for 10 additional
years. The lease shall automatically renew unless Lessee provides a written
notice to Lessor at least 180 days prior to termination of the then current term of
Lessee's intent not to exercise any such option. Provided, however, at least 180
days prior to termination of the then current term, the parties shall utilize the
procedure set forth in paragraph 2.1(d) above to determine the appraised value
of the demised premises, provided, however, that for any renewal, the property to
be appraised shall include not only the underlying real estate but also the
Dubuque Star Brewery building/improvements. At such time as the new
appraised value is determined, Lessee shall then have 30 days from the date it
receives notice of the new appraised value to provide written notice to Lessor of
Lessee's intent to either proceed with its automatic exercise of the right to renew
the lease for an additional 10 year term or a written notice to Lessor rescinding
the automatic exercise of the option. In the latter event, the Lease shall
terminate upon termination of then current term. In the event Lessee reaffirms its
intent to exercise its right to renew the lease for an additional 10 year term, this
Lease shall continue under the same terms and conditions contained herein
except that the annual rental shall be 12% of the new appraised value. The rent,
so re-determined, shall remain unchanged during the 10 year renewal term.
ARTICLE 26
MISCELLANEOUS
26.1 Time of the Essence. Time is of the essence of this Lease and all of
its provisions.
26.2 Governing Law. It is agreed that this Lease shall be governed
construed and enforced in accordance with the laws of the State of Iowa.
26.3 Paragraph Headings. The titles to the paragraphs of this Lease are
solely for the convenience of the parties and shall not be used to explain, modify,
simplify or aid in the interpretation of the provisions of this Lease.
26.4 Modification of Agreement. Any modification of this Lease or
additional obligation assumed by either party in connection with this Lease shall
be binding only if evidenced in a writing signed by each party or an authorized
representative of each party.
22
26.5 Parties Bound. This Lease shall be binding on and shall inure to the
benefit of and shall apply to the respective successors and assigns of Lessor and
Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to
refer to and include successors and assigns of Lessor or Lessee without specific
mention of such successors or assigns.
26.6 Force Majeure. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, unavailability of
construction materials, unavailability or excessive price of fuel, power failure,
riots, insurrection, war, terrorist activities, explosions, hazardous conditions, fire,
flood, weather or acts of God, or by reason of any other cause beyond the
exclusive and reasonable control of -the party delayed in performing work or
doing acts required under the terms of this Lease (collectively "Force Majeure"),
then performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
26.7 Conflict. To the extent there is a conflict of terms between the
Development Agreement and this Lease, the terms of the Development
Agreement shall control.
26.8 Entire Agreement. This Agreement, along with the Development
Agreement and Minimum Assessment Agreement, constitutes the entire
agreement between the Lessor and the Lessee regarding the lease of the
Demised Premises and supersedes all previous oral or written agreements
between the parties regarding the subject matter of this Lease.
LESSOR:
CITY OF DUBUQUE, IOWA
LESSEE:
PORT OF DUBUQUE BREWERY
DEVELOPMENT, LLC
By: Roy D. Buol, Mayor
By: Waybe Briggs, Managing Member
Attest:
Jeanne F. Schneider, City Clerk
EXHIBIT A
LEGAL DESCRIPTION OF DEMISED PREMISES
Location in Lot 2 Riverwalk 5th Addition in the City of Dubuque, Iowa
EXHIBIT A-1
PLAT
2s
FINAL PLAT
RIVERWALK 5TH ADDITION IN THE CITY OF DUBUQUE, IOWA
EXHIBIT A-1
SITE PLAN
2
STAR BREWERY BUILDING
EXHIBIT B
INSURANCE SCHEDULE
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 $2,000,000
Products-Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 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 general liability form CG 0001, or Business
Owners form BP 0002, shall be clearly identified.
30
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
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
^ Certificate of Liability Insurance (2 pages)
^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
^ Additional Insured 20 26 07 04
^ Governmental Immunities Endorsement
$100,000
$100,000
$500,000
31
CITY OF DUBUQUE, IOWA
COVERNMENTA-L IMMUNITIES ENDORSEMENT
Nonwaiver of Governmental Immunity. 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 Coverage. 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 Immunity. 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 Coverage. 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 Change in Policy. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
SPECIMEN
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
ACCORD CERTIFICATE OF LIABILITY INSURANCE
IMPORTANT
DISCLAIMER
SPECIMEN
DESIGNED LOCATION(S)
GENERAL AGGREGATE LIMIT
SPECIMEN
SPECIMEN
SPECIMEN
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE
AND
PORT OF DUBUQUE BREWERT DEVELOPMENT, LLC
This DEVELOPMENT AGREEMENT (the Agreement) made on or as of the
17th day of July, 2006 (the Effective Date), by and between
the City of Dubu , Iowa 'municipality (City), established pursuant to Iowa law and
acting under authorization of Iowa Code Chapter 403, as amended (the Urban Renewal
Act) and Port of Dubuque Brewery Development, LLC, an Iowa Limited Liability
Company (Developer).
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 Greater Downtown Urban Renewal
District (the Project Area); and
WHEREAS, as of the Effective Date of this Agreement there has been prepared
and approved by City an Urban Renewal Plan for the Project Area consisting of the
Greater Downtown Urban Renewal Plan approved by City Council of City on the 19th of
April, 2004, attached hereto as Exhibit "A," (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the Effective
Date of this Agreement, has been recorded in the office of the Recorder of Dubuque
County, Iowa; and
WHEREAS, Developer has requested that City lease to Developer certain real
property and improvements, commonly known as the Dubuque Star Brewery Building
and Site, including non-exclusive use of the Alliant Amphitheater and additional use
rights as set forth in paragraph 3.6, located in the City of Dubuque, Dubuque County,
Iowa (the Property), legally described in Exhibit "B," attached hereto and incorporated
herein by reference, so that Developer may redevelop the Property, located in the
Project Area, for and in accordance with the uses specified in the Urban Renewal Plan
and in accordance with this Agreement. Developer shall have exclusive use of Area A
and exclusive use of Area B, both as depicted on Exhibit C attached hereto and by this
reference made a part hereof; and
WHEREAS, City believes that the redevelopment 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, and does not conflict with any term, covenant or
condition of the Urban Renewal Plan.
NOW THEREFORE, in consideration of the promises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other as
follows:
SECTION 1. LEASE OF PROPERTY TO DEVELOPER
1.1 Lease. On the Closing Date, City shall transfer possession of the Property
pursuant to a lease with the Developer (the Lease) for a term of fifty (50) years. Tenant
shall have the right to extend the lease for one additional 10 year term based upon the
terms and conditions contained in paragraph 25 of the Lease. The Lease shall be in the
form of Exhibit "D" attached hereto.
1.2 Recordation of Lease. Developer shall promptly record a Memorandum of Lease
as stipulated in the Lease in the office of the Recorder of Dubuque County, Iowa.
Developer shall pay all the costs for so recording.
1.3 Condition of Property. City shall deliver the Property in its "as is" condition.
1.4 Representations of City. In order to induce Developer to enter into this
Agreement, City hereby represents and warrants to Developer that by the Closing Date
and to the best of City's knowledge:
(1) City is the owner of the Property in fee simple subject to no liens or
encumbrances.
(2) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and the Lease, and that it has
full power and authority to execute, deliver and perform its obligations under this
Agreement and the Lease.
1.5 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following contingencies:
(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.
(2) Developer shall have obtained any and all necessary governmental
approvals, including without limitation approval of zoning, subdivision or platting, and of
the Construction Plans pursuant to Section 2.2 below that are necessary or desirable in
connection with the Lease and development of the Property. Any conditions imposed
as a part of the zoning, platting, subdivision or plan approval must be satisfactory to
Developer, in its sole discretion. City shall cooperate with Developer in attempting to
2
obtain any such approvals, provided that City shall bear no expense in connection
therewith.
(3) Developer and City shall be in compliance with all the material terms and
provisions of this Agreement.
(4) City shall have received an opinion of counsel in the form attached hereto
as Exhibit "E."
(5) Developer shall have furnished City with evidence, in a form satisfactory to
the City as City shall determine in the reasonable exercise of its discretion (such as a
letter of commitment from a bank or other lending institution), that Developer has firm
debt and/or equity commitments sufficient in amount to complete construction of the
Minimum Improvements (as defined herein) to the Property in conformance with
Construction Plans (as defined herein), or City shall have received such other evidence
of Developer's financial ability as in the reasonable judgment of City is required to
complete such construction.
(6) Developer and the City shall have entered into the Lease, in the form
attached hereto as Exhibit "D".
(7) Developer shall have received, reviewed and approved an abstract of title,
provided at City's expense. In the event Developer objects to any matters revealed by
such examination that are attributable to matters shown in the abstract of title, such
objection shall be delivered to City not later than thirty (30) days after receipt by
Developer of the abstract of title. City shall have a period of time equal to twenty (20)
days after receipt of Developer's notice to correct Developer's objection to title, and if it
shall fail to do so within said twenty (20) day period of time, then Developer shall, by
written notice given to City on or before seven (7) days after expiration of the
aforementioned twenty (20) day time period, notify City that (i) it has elected to declare
this Agreement null, void and of no further effect, in which event neither party shall have
any further liability hereunder; or (ii) it has elected to proceed to closing notwithstanding
the objection. The Lease shall be subject to all matters revealed by the abstract except
those matters which are objected to by Developer and corrected by City, or objected to
by Developer and subsequently waived by Developer as provided for herein.
(8) City shall have provided Developer with a copy of all current surveys of
the Property that are in City's possession.
(9) City and Developer shall have executed all documents that the parties
deem necessary or required in connection with the Financial Assistance, as that term is
defined below.
1.6 Closin The closing shall take place on or before July 3, 2006 (the Closing
Date), or such other date as the parties may agree in writing. Exclusive possession of
the Property shall be delivered to Developer on the Closing Date in its current condition
3
and in compliance with this Agreement, including City's representations and warranties
regarding the same. Consummation of the closing shall be deemed an agreement of
the parties to this Agreement that the conditions of closing have been satisfied or
waived.
1.7 Closing Costs. The following costs and expenses shall be paid on or prior to the
Closing Date:
(1) City shall pay:
(a) The transfer fee imposed on the conveyance, if any.
(b) All special assessments whether levied, pending or assessed.
(c) City's attorney's fees.
(d) The cost of preparing and providing to Developer an abstract of title
to the Property. City agrees that the abstract of title shall be
provided no later than thirty (30) days prior to the Closing Date.
(2) Developer shall pay:
(a) The recording fee necessary to record the Memorandum of Lease.
(b) Developer's attorney's fees.
(c) Developer's broker and/or real estate commissions and fees, if any.
1.8 Real Estate Taxes. Developer shall pay all real estate taxes pursuant to the
Lease Agreement.
1.9 No Other Exemptions. The Developer agrees not to apply for any other State or
local property tax exemptions which are available with respect to the 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 Chapters 404 and 427 of the Code of Iowa, as amended.
SECTION 2. REDEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer hereby agrees to rehabilitate the
Property into amixed-use commercial/entertainment complex at a total project cost of
not less than $6,500,000 which shall include the improvements described in Exhibit F,
attached hereto and incorporated herein by reference (the Minimum Improvements).
The Minimum Improvements shall meet the Secretary of the Interior's Standards for
Rehabilitation and Guidelines for Rehabilitating Historic Buildings. The design of the
Minimum Improvements shall be compatible with the pedestrian orientation of adjoining
4
streets, Alliant Plaza and Riverwalk improvements, providing accommodation for public
accessibility to these public rights of way and the adjacent Grand River Center (the
Conference Center) via a public access easement through the common areas of the
Property without damaging or reconfiguring the same, including the Star Brewery
Building itself as deemed necessary by City, and specifically with the Port of Dubuque
Design Standards. The public access easement shall be located and configured in a
manner reasonably acceptable to Developer. The public access easement shall be
specifically identified, including its location, dimensions and configuration on a plat or
drawing which shall be subject to Developer's prior approval.
Developer shall develop, construct and pay for a parking lot adjacent to the Dubuque
Star Brewery building, which parking lot shall be located in that area created by the
City's relocation of Shot Tower Drive as referred to in paragraph 3.6 hereof and referred
to as Area B on Exhibit C (the "Parking Lot"). Developer shall be responsible for snow
removal and similar maintenance with respect to the Parking Lot and shall further be
responsible for any other maintenance, repair or replacement to the surface of the
Parking Lot. Developer shall have the exclusive use of the Parking Lot and all areas
within Area A on Exhibit C. Developer shall have the right to assign all or portions of
such use to others, including Developer's sublessees with respect to the Dubuque Star
Brewery Building. Tenant's obligations with respect to the Parking Lot and its exclusive
rights with respect to the Parking Lot shall continue during the term of the Lease
referred to in paragraph 1.1 or any renewals thereof. Developer shall not be required to
pay any additional sums related to the exclusive use of the Parking Lot beyond the rent
provided in the Lease.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the construction of the initial Minimum Improvements (the Construction
Plans) shall be approved by City provided they are in conformity with the Urban
Renewal Plan, which incorporates the Port of Dubuque Master Plan Design Standards,
this Agreement, and all applicable state and local laws and regulations. Those
improvements relate specifically to the Stone Cliff Winery space and general
improvements such as bathrooms, elevators, stair towers, etc. The parties agree and
acknowledge that specific improvements which will constitute a portion of the Minimum
Improvements with respect to specific tenants will not be determined until such time as
leases have been signed with those tenants. To that end, Developer shall, not later than
thirty (30) days prior to the Closing Date, submit to City, for approval by City, the
Construction Plans and such additional documents as City may reasonably request with
respect to the Minimum Improvements to be constructed by Developer on the Property.
All work with respect to the Minimum Improvements shall be in conformity with the
Construction Plans as approved by City and shall be coordinated with City
improvements in the general vicinity of the Property, including, but not limited to, Alliant
Plaza, Riverwalk, the Conference .Center and street and utility improvements. It is
agreed that approval of the Construction Plans by City is a condition to closing under
Section 1.5(3) above, and unless such approval shall be given by City on or before the
Closing Date, this Agreement shall be null and void.
5
2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within sixty (60) days
after the Closing Date, and shall be substantially completed within sixty (60) months
after the commencement of construction. Provided, however, Developer shall complete
35% of the Minimum Improvements within 24 months after commencement of
construction. The time for performance of such obligations shall be suspended during
the period of any delays caused by acts of God or other matters not within the control of
Developer including, but not limited to, extreme weather conditions and/or other natural
causes, casualty, labor problems (including, but not limited to, strikes, walk-outs,
picketings, boycotts and shutdowns), governmental restriction upon the availability or
use of labor or materials, or insurrection, embargoes, or delays in providing necessary
consents or approvals unless otherwise agreed upon in writing by City and Developer.
The time for performance of such obligations shall be extended only for the period of
such delay.
2.4 Certificate of Completion. Promptly upon completion of the Minimum
Improvements in accordance with those provisions of this Agreement relating solely to
the obligations of Developer to construct the Minimum Improvements, including the
dates for beginning and completion thereof, City shall furnish Developer with an
appropriate instrument so certifying. Such certification shall be a conclusive
determination of the satisfaction and termination of the agreements and covenants in
this Agreement and in the Lease with respect to the obligations of Developer to
construct the Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Assistance of City. For and in consideration of Developer's obligations
hereunder to construct the Minimum Improvements, City agrees to provide to Developer
the financial assistance described herein (the "Financial Assistance").
3.2 Lease Terms. For and in consideration of Developer's obligations hereunder to
construct the Minimum Improvements, City agrees to lease the Property to Developer
pursuant to the terms of the Lease.
3.3 Economic Development Grant to Developer.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the urban renewal plan for the Project Area
and the Urban Renewal Act, City agrees, subject to Developer being and remaining in
compliance with the terms of this Agreement, to make twenty (20) consecutive semi
annual payments (such payments being referred to collectively as "the Economic
Development Grants") to the Developer, commencing the 1St day of November, 2009
and continuing until the 1St day of May, 2020, pursuant to Iowa Code Section 403.9 of
the Urban Renewal Law, in amounts equal to the actual amount of tax increment
revenues paid by Developer and collected by City under Iowa Code Section 403.19
(without regard to any averaging that may otherwise be utilized under Iowa Code
6
Section 403.19 and excluding any interest that may accrue thereon prior to payment to
Developer) during the preceding six-month period in respect of the Minimum
Improvements constructed by Developer ("the Developer Tax Increments"). Developer
recognizes and agrees that the Economic Development Grants shall be paid solely and
only from the incremental taxes collected by City in respect to the Minimum
Improvements, which does not include property taxes collected for the payment of
bonds and interest of each taxing district, and taxes for the regular and voter-approved
physical plant and equipment levy, and any other portion required to be excluded by
Iowa law, and thus such incremental taxes will not include all amounts paid by
Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing the 1St day of December, 2007, its
request for the available Developer Tax Increments resulting from the assessments
imposed by the County as of January 1 of the following year, to be collected by City as
taxes are paid during the following fiscal year and which shall thereafter be disbursed to
the Developer on November 1 and May 1 of that fiscal year. (Example: if City so
certifies by December, 2007, the Economic Development Grants in respect thereof
would be paid to the Developer on November 1, 2008, and May 1, 2009.
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments paid to City that, upon receipt, shall be
deposited and held in a special account created for such purpose and designated as the
"Star Brewery TIF Account" of City. City hereby covenants and agrees to maintain its
TIF ordinance in force during the term hereof and to apply the incremental taxes
collected in respect of the Minimum Improvements and allocated to the Star Brewery
TIF Account to pay the Economic Development Grants, as and to the extend set forth in
Section 3.3(1) hereof. The Economic Development Grants shall not be payable in any
manner by other tax increments revenues or by general taxation or from any other City
funds. City makes no representation with respect to the amounts that may be paid to
Developer as the Economic Development Grants in any one year and under no
circumstances shall City in any manner be liable to Developer so long as City timely
applies the Developer Tax Increments actually collected and held in the Star Brewery
TIF Account (regardless of the amounts thereof) to the payment of the Economic
Development Grants to Developer as and to the extent described in this Section.
(4) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development Grants
under Section 3.3 hereof, for any purpose for which such tax increment revenues may
lawfully be used pursuant to the provisions of the Urban Renewal Law, and City shall
have no obligations to Developer with respect to the use thereof.
3.4 Intentionally Left Blank.
3.5 Intentionally Left Blank.
7
3.6 City Improvements/Amphitheater/Additional Use Rights. City further agrees to
relocate Shot Tower Drive, also known as 4th Street, and to allow public parking at the
parking lot adjacent to the McGraw-Hill office building after 6:00 p.m. and on weekends
and holidays. City grants to Developer the non-exclusive right to use the Alliant
Amphitheater in association with any events or business activities of Developer or any
tenant or licensee of Developer at the Leased Premises as defined in the Lease. On or
before the Closing Date, City shall develop a scheduling reservation system with
respect to use of the Alliant Amphitheater to ensure no conflicts in use of the Alliant
Amphitheater.
3.7 Vendor Status. City shall require that, with respect to the sale of any food or
beverages, including wine, for any event held in the Alliant Amphitheater by any party,
that such party shall be required to obtain a bid for the provision of such food or
beverages, including wine, from Developer's subtenants located in the Dubuque Star
Brewery Building. It is the intent of this paragraph that Developer shall have the right to
grant to its subtenants the rights granted under the terms of this paragraph (the right to
bid for the sale or provision of food or beverages, including wine, for all events in any
way associated with the Alliant Amphitheater during the term hereof or any renewals or
extensions). Developer shall have the excusive right to control or grant or lease to
others the right to control the offering or selling of food or beverages, including wine, on
any property located within Area A on Exhibit C attached hereto.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Insurance Coverages. Developer shall obtain and maintain insurance as set
forth in the Lease.
4.2 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.
4.3 Conflict of Interest. Developer agrees that no member, officer or employee of
City, or its designees or agents, nor any consultant or member of the governing body of
City, and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the Project during his or her tenure, or who is in a
position to participate in adecision-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.
4.4 Non-transferability. This Agreement may not be assigned by Developer without
the prior written consent of City, which consent shall not be unreasonably withheld.
Transfer or assignment of the Lease shall be governed by the terms thereof.
8
SECTION 5. INDEMNIFICATION
5.1. Developer's Indemnification of City.
(1) Developer releases City and its governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this Section 5, the
"Indemnified Parties") from and covenants and agrees that the Indemnified Parties shall
not be liable for, and agrees to indemnify, defend and hold harmless the indemnified
parties against any loss or damage to property or any injury to or death of any person
occurring at or about or resulting from any defect in the Property and the Minimum
Improvements.
(2) Except for any 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 (i)
any violation of any agreement or condition of this Agreement, except with respect to
any suit, action, demand or other proceeding brought by Developer against City to
enforce its rights under this Agreement or (ii) the construction, installation, ownership
and operation of the Minimum Improvements or (iii) the condition of the Property and
any hazardous substance or environmental contamination located in or on the Property
which is caused by Developer after Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable for any damage or injury to the
persons or property of Developer or its officers, agents, servants or employees or any
other person who may be about the Property or the Minimum Improvements other than
any act of negligence on the part of any such Indemnified Parties.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member, officer,
agent, servant or employee of City in the individual capacity thereof.
(5) The provisions of this Section 5A shall survive the termination of this
Agreement.
5.2 City's Indemnification of Developer.
(1) City releases Developer and its owners, officers, agents, servants and
employees (hereinafter, for purposes of this Section 5, also referred to as the
"Indemnified Parties") from and covenants and agrees that Indemnified Parties under
this paragraph shall not be liable for, and agrees to indemnify, defend and hold
harmless the Indemnified Parties against any loss or damage to property or any injury to
or death of any person occurring at or about or resulting from any defect in the Property
9
prior to the Closing Date, or any loss, damage or expense associated with any
environmental condition existing at the Property as of the Closing Date.
(2) Except for any willful misrepresentation or any willful or wanton
misconduct or any unlawful act of Developer or its owners, officers, agents, servants
and employees, City agrees to protect and defend Developer or its owners, officers,
agents, servants and employees, now or forever, and further agrees to hold the
Developer and its owners, officers, agents, servants and employees harmless from any
claim, demand, suit, action or other proceedings whatsoever by any person or entity
whatsoever arising or purportedly arising from (i) any violation of any agreement or
condition of this agreement by City, except with respect to any suit, action, demand or
other proceeding brought by City against Developer to enforce its rights under this
agreement; or (ii) negligence of the City or (iii) the condition of the Property as of the
Closing Date and any hazardous substance or environmental contamination located in
or on the Property which is or was caused by City at any time.
(3) The Indemnified Parties shall not be liable for any damage or injury to the
persons or property of City or its governing body members, officers, agents, servants
and employees or any other person who may be about the property or the Minimum
Improvements other than any act of negligence on the part of any such Indemnified
Parties.
(4) All covenants, stipulations, promises, agreements and obligations of
Developer contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of Developer and not of any owner, officer,
agent, servant or employee of Developer in the individual capacity thereof.
(5) The provisions of this Section 5B shall survive the termination of this
agreement.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and Event of Default shall mean, whenever it is used in this Agreement, any
one or more of the following events:
(1) Any event of default by Developer under the Lease.
(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) Failure by Developer to cause the Minimum Improvements to be
reconstructed when required pursuant to the Lease.
10
(4) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement.
(5) Failure by Developer to substantially observe or perform any other
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement or the Lease.
(6) Developer shall:
(a) file any petition in bankruptcy or for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under the United States Bankruptcy Act of 1978, as
amended, or under any similar federal or state law;
(b) make an assignment for the benefit of its creditors;
(c) admit in writing its inability to pay its debts generally as they become
due; or
(d) be adjudicated a bankrupt or insolvent: or if a petition or answer
proposing the adjudication of Developer as a bankrupt or its
reorganization under any present or future federal bankruptcy act or
any similar federal or state law shall be filed in any court and such
petition or answer shall not be discharged or denied within ninety
(90) days after the filing thereof, or a receiver, trustee or liquidator of
Developer or of Minimum Improvements, or part. thereof, shall be
appointed in any proceedings brought against Developer, and shall
not be discharged within ninety (90) days after such appointment, or
if Developer shall consent to or acquiesce in such appointment.
6.2 Notice of Default. City shall issue a written notice of default providing therein a
thirty (30) day period in which Developer shall have an opportunity to cure such default.
In the event the default is of a nature that cannot be cured within the aforementioned
thirty (30) day time period, then Developer shall be deemed to be curing the default if
Developer, within thirty (30) days after receipt of notice thereof, commences action to
cure the default and prosecutes the same to completion, such that the default is cured
within a reasonable time under all of the facts and circumstances then existing.
6.3 Remedies Upon Default. If the default remains unremedied after such thirty (30)
day period, City shall have the right to do one or more of the following:
(1) exercise any remedy provided by law;
(2) suspend City's performance under this Agreement;
(3) terminate this Agreement and the Lease;
11
(4) withhold certification of completion with respect to the Minimum
Improvements;
(5) require repayment of all Financial Assistance provided to the Developer,
and/or the payment of damages by Developer for any costs incurred by City in
connection with the default; and
(6) take such action as may be necessary to remove Developer from the
Property.
6.4 No Implied Waiver. In the event any term, covenant or condition
contained in this Agreement is 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.
SECTION 7. GENERAL TERMS AND PROVISIONS
7.1 Notices and Demands. Whenever this Agreement requires or permits any notice
or written request by one party to another, it shall be in writing, enclosed in an envelope,
addressed to the party to be notified, properly stamped, sealed and deposited in the
United States Mail, and
(1) in the case of Developer, is addressed to Epic Construction, Inc., 137
Main Street, Suite 500, Dubuque, IA 52001; or
(2) in the case of City, is addressed to the City Manager, City Hall, 50 W. 13th
Street, Dubuque, IA 52001; or
at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section. Any notice
delivered hereunder shall be deemed delivered upon the earlier of the actual receipt or
two (2) business days after posting.
7.2 Compliance with Laws and Regulations. Developer shall comply with all
applicable City, state and federal laws, rules, ordinances, regulations and orders.
7.3 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
7.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate upon termination of the Assessment Agreement (the
Termination Date).
12
7.5 Execution By Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile. The parties intend that 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.
7.6 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit G in
the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for
so recording.
CITY OF DUBUQUE, IOWA
By: Roy D. Buol, Mayor
By: Jeanne F. Schneider, City Clerk
PORT OF DUBUQUE BREWERY
DEVELOPMENT, LLC
By: Wayne Briggs, Managing Member
EXHIBIT A
URBAN RENEWAL PLAN
14
, /-u4N/PJ
' ' '7
~~/A/
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001563583-4113
OFFICIAL NOTICE
RESOLUTION NO. 215 - 06
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS,
COMPETITIVE CRITERIA, AND OFFERING PROCEDURES FOR THE
DEVELOPMENT AND THE LEASE OF CERTAIN REAL PROPERTY AND
IMPROVEMENTS IN THE GREATER DOWNTOWN URBAN RENEWAL
DISTRICT; (2) DETERMINING THAT THE DEVELOPMENT AGREEMENT
AND LEASE SUBMITTED BY PORT OF DUBUQUE BREWERY
DEVELOPMENT, LLC SATISFIES THE OFFERING REQUIREMENTS
WITH RESPECT TO THE REAL PROPERTY AND IMPROVEMENTS AND
DECLARING THE INTENT OF THE CITY COUNCIL TO APPROVE THE
DEVELOPMENT AGREEMENT AND THE LEASE WITH PORT OF
DUBUQUE BREWERY DEVELOPMENT, LLC IN THE EVENT THAT NO
COMPETING PROPOSALS ARE SUBMITTED; AND (3) SOLICITING
COMPETING PROPOSALS.
Whereas, the City Council of Dubuque, Iowa, did on April 19, 2004 adopt an
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District ("the Plan") for the Urban Renewal Area described therein; and
Whereas, the Plan provides, among other things, for the disposition of properties for
private development purposes as a proposed economic development action; and
Whereas, Port of Dubuque Brewery Development, LLC ("Developer") has submitted
to the City a Development Agreement with a proposal for the leasing of certain real
property and improvements hereinafter described for the operation and management of the
former Dubuque Star Brewery constructed as described therein ("the Development
Agreement and Lease"), together with the request that this property be made available for
lease as rapidly as possible; and
Whereas, in order to establish reasonably competitive bidding procedures for the
disposition of the property in accordance with the statutory requirements of Iowa Code
Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair
opportunity to all developers interested in submitting a proposal, a summary of submission
1
requirements and minimum requirements and competitive criteria for the property offering
is included herein; and
Whereas, said Developer has tendered the Development Agreement and the Lease
with the City, attached hereto as Exhibit "A"; and
Whereas, to recognize both the firm proposal for lease of the real property and
improvements already received by the City, as described above, and to give full and fair
opportunity to other developers interested in submitting a proposal for the use of the
property, this Council should by this Resolution:
1) Set the fair market value of the real property for uses in accordance with the
Plan;
2) Approve the minimum requirements and competitive criteria included herein;
3) Approve as to form the Development Agreement and the Lease attached
hereto as Exhibit "A";
4) Set a date for receipt of competing proposals and the opening thereof;
5) Declare that the proposal submitted by Developer satisfies the minimum
requirements of the offering, and that in the event no other qualified proposal
is timely submitted, that the City Council intends to approve such proposal
and authorize the City Manager to sign the Development Agreement and the
Lease; and direct publication of notice of said intent;
6) Approve and direct publication of a notice to advise any other person of the
opportunity to compete for lease of the real property and improvements on
the terms and conditions set forth herein; and
7) Declare that in the event another qualified proposal is timely submitted and
accepted, another and future notice will be published on the intent ofthe City
to enter into the resulting contract, as required by law;
and
Whereas, the City Council believes it is in the best interest of the City and the Plan
to act as expeditiously as possible to lease the real property and improvements as set forth
herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the real property and improvements described in Exhibit "B"
attached hereto located in the Port of Dubuque and delineated generally by Pine Drive on
2
the south, Bell Street on the west, the Alliant outdoor amphitheater on the east and the
Shot Tower Drive on the north ("the Brewery Property") shall be offered for lease in
accordance with the terms and conditions contained in this Resolution.
Section 2.
for selection, any
requirements:
That it is hereby determined that in order to qualify for consideration
person must submit a proposal which meets these minimum
a) Contains an agreement to lease the Brewery Property at not less than fair
market value established herein;
b) Contains a commitment to lease the Brewery Property for uses allowed in
the Port of Dubuque;
c) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in performance of
contract obligations in carrying out projects of similar scale and character;
and
d) Meets, at a minimum, the terms and conditions of the Development
Agreement and the Lease submitted by the Developer including an
agreement to rehabilitate the Brewery Property into a mixed-use
commercial/entertainment complex at a total project cost of not less than
$6,500,000 and develop, construct and pay for a parking lot adjacent to the
Dubuque Star Brewery building.
Section 3. That the Development Agreement and the Lease by and between the
City and the Developer be and is hereby approved as to form for the purposes hereinafter
stated.
Section 4. That for the purpose of defining the offering of the Brewery Property
for lease, said Development Agreement and Lease shall be deemed to be illustrative of the
terms acceptable to the City with respect to:
a) Annual lease payments;
b) Construction of leasehold improvements;
c) City participation;
d) Developer obligations; and
e) General terms and conditions
Section 5. That the Development Agreement and the Lease submitted by the
3
Developer satisfies the requirements of the offering and, in the event that no other qualified
proposals are timely submitted that the City Council intends to accept and approve the
Lease.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to lease the Brewery Property
and to manage and operate the Brewery Property in the manner proposed by this offering
in accordance with the Plan.
Section 7. That the annual lease payments for the Brewery Property offered by
the Developer are hereby found and determined to be the fair market value of the
leasehold interest being conveyed.
Section 8. That the City Clerk shall receive and retain for public examination the
attached Development Agreementand Lease submitted by the Developer and, in the event
no other qualified proposals are timely submitted, shall resubmit the Development
Ageement and the Lease to the City Council for final approval and execution upon
expiration of the notice hereinafter prescribed.
Section 9. That the action of the City Council be considered to be and does
hereby constitute notice to all concerned of the intention of this Council, in the event that
no other qualified proposals are timely submitted, to accept the proposal of the Developer
to lease the Brewery Property and to approve the Development Agreement and the Lease
by and between City and Developer.
Section 10. That the official notice of this offering and of the intent of the City, in
the event no other qualified proposals are timely submitted, to approve the Development
Agreement and the Lease, shall be a true copy of this Resolution, but without the
attachments referred to herein.
Section 11. That the City Clerk is authorized and directed to secure immediate
publication of said official notice in the Teleoraph Herald, a newspaper having a general
circulation in the community, by publication of the text of this Resolution without
attachments on or before the 7th day of June, 2006.
Section 12. That written proposals for the lease of the Brewery Property will be
received by the City Clerk at or before 10:00 a.m., July 10, 2006 in the Office of the City
Clerk, located on the first floor at City Hall, Dubuque, Iowa 52001. Each proposal will be
opened at the hour of 10:00 a.m. in City Hall, Dubuque, Iowa on July 10, 2006. Said
proposals will then be presented to the City Council at 6:30 p.m., July 17, 2006, at a
meeting to be held in the Auditorium ofthe Carnegie-Stout Public Library, Dubuque, Iowa.
Section 13. That such offering shall be in substantial conformance with the
provisions of Iowa Code Section 403.8, requiring reasonable competitive bidding
procedures as are hereby prescribed, which method is hereby determined to be the
appropriate method for making the Brewery Property available for lease.
4
Section 14. That the required documents for the submission of a proposal shall be
in substantial conformity with the provisions of this Resolution.
Section 15. That the City Clerk is hereby nominated and appointed as the agent of
the City of Dubuque, Iowa to receive proposals for the lease of the Brewery Property at the
date and according to the procedure hereinabove specified for receipt of such proposals
and to proceed at such time to formally acknowledge receipt of each of such proposals by
noting the receipt of same in the Minutes of the Council; that the City Manager is hereby
authorized and directed to make preliminary analysis of each such proposal for compliance
with the minimum requirements established by this Council hereinabove. For each
proposal that satisfies these requirements, the City Council shall judge the strength of the
proposal by the competitive criteria established hereinabove. The City Council shall then
make the final evaluation and selection of the proposals.
Section 16. That in the event another qualified proposal is timely submitted and
accepted by the City, another and further notice shall be published of the intent of the City
of Dubuque, Iowa, to enter into the resulting agreement, as required by law.
Passed, approved and adopted this 5th day of June, 2006.
t0L~'
Ann E. Michalski, Mayor PrO-Tern
Attest:
~~J2J
Jeanne F. Schneider
City Clerk
5
Doc ID: 010932640002 Type: GEN
Kind: AGREEMENT
Recorded: 03/29/2022 at 11:52:26 AM
Fee Amt: $12.00 Page 1 of 2
Dubuque County Iowa
John Murphy Recorder
File2022-00004030
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM
OF
DEVELOPMENT AGREEMENT
AND
LEASE AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an Iowa
municipal corporation, of Dubuque, Iowa, and Port of Dubuque Brewery Development,
LLC for the real estate located in Lot 2 Riverwalk 5th Addition in the City of Dubuque,
Iowa, according to the recorded plat thereof.
The Development Agreement is dated for reference purposes the 16T" day of July,
2006, and contains covenants, conditions, and restrictions concerning the use of said
premises.
The Lease Agreement is dated the 1st day of July 2006.
This Memorandum of Development Agreement and Lease 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 or Lease Agreement, executed by
the parties, the terms and provisions of the Development Agreement or Lease Agreement
shall prevail. A complete counterpart of the Development Agreement and Lease
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 gAay of 022.
CITY OF DUBUQUE, IOWA
d
D�Q City Clerk �'��'
1(
134y A. Lindahl, Esq., Senior Counsel
STATE -OF IOWA
: ss:
DUBUQUE COUNTY
On this day of ��r�h , 2022, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Barry A. Lindahl, , to me personally
known, who being by me duly sworn did say that he is Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
Iowa and that said instrument was signed on behalf of said Municipal corporation by
authority and resolution of its City Council and said Senior Counsel acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
ti =1 LYN RDINGER
r- Commbalm Number 832108
n Expires
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