Weaver Castle_Development Agreement_346-348 Locust St.Masterpiece on the Mississippi
Dubuque
All- America City
II 111!
2012
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Development Agreement with Weaver Castle, LLC to Redevelop Property
at 346 -348 West Locust Street
DATE: May 10, 2013
Economic Development Director Dave Heiar recommends the City Council set a public
hearing for July 1, 2013, on the Development Agreement with Weaver Castle, LLC to
redevelop the property located at 346 -348 West Locust Street. The project will create
five apartments for market rate rental using federal and state historic tax credits,
requiring that all National Park Service historic restoration guidelines be followed. The
key elements of the Development Agreement are:
1) The City will convey 346 -348 West Locust Street for one dollar ($1.00) to Weaver
Castle, LLC.
2) Weaver Castle, LLC must redevelop 346 -348 West Locust Street at a cost of
approximately $500,000 by no later than December 31, 2014.
3) The project will receive $50,000 in incentives through the Downtown Housing
Incentive Program ($10,000 for each residential unit).
4) Facade, Design and Financial Planning grants totaling up to $35,000 will be
utilized with this project.
The property is located in the Jackson Park Urban Revitalization District, so the
developer is eligible for property tax abatements for up to 10 years.
The Bluff /Locust area has been identified as a pocket neighborhood in need of
reinvestment. The City Council expanded the Downtown Urban Renewal District to
include this neighborhood in hopes of encouraging reinvestment in this area. The Fiscal
Year 2014 budget also included funds to expand traditional downtown incentives to this
neighborhood.
The City Council has previously approved two other development agreements with Gary
Stelpflug, Chris Stelpflug, and Danielle Stelpflug (Weaver Castle, LLC) for properties
located at 324 -326 West Locust Street and 407 -409 Loras Boulevard.
In December of 2011, Lynn Lampe conveyed the property at 346 -348 West Locust
Street to the City with the intention that the City would find a developer who is willing to
renovate the historic building. In the attached Development Agreement, City staff
proposes that the City convey the building located at 346 -348 West Locust Street to
Weaver Castle LLC so long as it completes a historic rehabilitation of the property prior
to December 31, 2014, per the terms of the Development Agreement.
The Stelpflugs have decided to do historic renovations utilizing federal and state historic
tax credits. They have also contracted with Gary Carner, a local contractor who has
overseen the rehabilitation of the Franklin (Central Alternative) School project, to take
the lead on their restoration project.
Because the property is in an urban renewal district, Iowa law requires a special
competitive disposition process to dispose of the property. Dave Heiar recommends
that the City Council authorize a 30 day public notice on the competitive disposition of
346 -348 West Locust Street.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
David J. Heiar, Economic Development Director
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Masterpiece on the Mississippi
TO:
FROM:
SUBJECT:
DATE:
Dubuque
katil
All- America City
1
2007
Michael Van Milligen, City Manager
David J. Heiar, Economic Development Director
Development Agreement with Weaver Castle, LLC to Redevelop
Property at 346 -348 West Locust Street
May 8, 2013
INTRODUCTION
This memorandum recommends that the City Council set a public hearing on a
Development Agreement for the property located at 346 -348 West Locust Street. A
resolution is attached to set the required competitive process accepting proposals for
the sale of this property.
BACKGROUND
The Bluff /Locust area has been identified as a pocket neighborhood in need of
reinvestment. The City Council expanded the Downtown Urban Renewal District to
include this neighborhood in hopes of encouraging reinvestment in this area. The FY
2014 budget also included funds to expand traditional downtown incentives to this
neighborhood.
The City Council has previously approved two other development agreements with Gary
Stelpflug, Chris Stelpflug, and Danielle Stelpflug (Weaver Castle, LLC) for properties
located at 324 -326 West Locust Street and 407 -409 Loras Boulevard.
In December of 2011, Lynn Lampe conveyed the property at 346 -348 West Locust
Street to the City with the intention that the City would find a developer who is willing to
renovate the historic building. In the attached Development Agreement, City staff
proposes that the City convey the building located at 346 -348 West Locust Street to
Weaver Castle LLC so long as it completes a historic rehabilitation of the property prior
to December 31, 2014 per the terms of the Development Agreement.
The Stelpflugs have decided to do historic renovations utilizing federal and state historic
tax credits. They have also contracted with Gary Carner, a local contractor who has
overseen the rehabilitation of the Franklin (Central Alternative) School project, to take
the lead on their restoration project.
DISCUSSION
The Development Agreement requires the redevelopment of the property located at
346 -348 West Locust Street into five (5) apartments. The key elements of the
Development Agreement include the following:
1) The City will convey 346 -348 West Locust Street for one dollar ($1.00) to Weaver
Castle, LLC.
2) Weaver Castle, LLC must redevelop 346 -348 West Locust Street at a cost of
approximately $500,000 by no later than December 31, 2014.
3) The project will receive $50,000 in incentives through the Downtown Housing
Incentive Program ($10,000 for each residential unit).
4) Facade, Design and Financial Planning grants totaling up to $35,000 will be
utilized with this project.
Additional terms and conditions of the disposition of the property are included in the
attached Development Agreement. Since the property is located in the Jackson Urban
Revitalization District and would qualify for property tax abatements for 10 years, no TIF
rebate is being proposed for this project.
RECOMMENDATION
Because the property is also in an urban renewal district, Iowa law requires a special
competitive disposition process to dispose of the property described in the attached
Resolution. I recommend that the City Council authorize a 30 day public notice on the
competitive disposition of 346 -348 West Locust Street This action supports the City
Council's objectives to redevelop this neighborhood.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F: \USERS \Econ Dev \Weaver Castle LLC \346 -348 W Locust\Development Agreement \Set Public Hearing \20130508
Competitive Memo 346 -348 W Locust Set PH - DA.doc
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583 -4113
OFFICIAL NOTICE
RESOLUTION NO. 156 -13
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS,
COMPETITIVE CRITERIA, AND OFFERING PROCEDURES FOR THE
DEVELOPMENT AND THE SALE OF CERTAIN REAL PROPERTY AND
IMPROVEMENTS IN THE GREATER DOWNTOWN URBAN RENEWAL
DISTRICT; (2) DETERMINING THAT THE OFFER TO PURCHASE
SUBMITTED BY WEAVER CASTLE LLC SATISFIES THE OFFERING
REQUIREMENTS WITH RESPECT TO THE REAL PROPERTY AND
IMPROVEMENTS AND DECLARING THE INTENT OF THE CITY COUNCIL
TO APPROVE THE SALE TO WEAVER CASTLE LLC IN THE EVENT
THAT NO COMPETING PROPOSALS ARE SUBMITTED; AND (3)
SOLICITING COMPETING PROPOSALS.
Whereas, the City Council of Dubuque, Iowa, did on October 1, 2012 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, Weaver Castle LLC ( "Developer ") has submitted to the City a proposal
for the purchase of certain real property hereinafter described ( "Property ") for the
rehabilitation of a building located at 346 -348 West Locust as described therein ( "the
Development Agreement "), which Property is legally described as follows:
LOT 5 OF LOTS 10 & 11 & SE 26.9' OF LOT 12 COOLEY'S SUB
AND
NW 23.3' OF LOT 12 & SE 8.3' OF LOT 13 COOLEYS SUB 348 -348 1/2
W LOCUST ST
together with the request that this Property be made available for sale 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
requirements and minimum requirements and competitive criteria for the Property offering
is included herein; and
Whereas, said Developer has signed a Development Agreement with the City,
attached hereto as Exhibit "A "; and
Whereas, to recognize both the firm proposal for sale of the 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 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 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 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 sale of the Property 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 of the 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 sell the Property as set forth herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
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Section 1. That the real property shown on Exhibit "B" attached hereto located at
346 -348 W Locust shall be offered for sale in accordance with the terms and conditions
contained in this Resolution.
Section 2. That it is hereby determined that in order to qualify for consideration
for selection, any person must submit a proposal which meets these minimum
requirements:
1) Contains an agreement to purchase the Property, located generally at 346-
348 W Locust, at not less than fair market value established herein;
2) Establishing the number of residential units that will be created in this project;
3) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in the performance of contract
obligations in carrying out projects of similar scale and character; and
4) Meets, at a minimum, the terms and conditions of the Development
Agreement submitted by the Developer including an agreement to invest not less
than $500,000 to complete a historic renovation of the building.
Section 3. That the Development Agreement 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 Property for sale,
said Development Agreement shall be deemed to be illustrative of the terms acceptable to
the City with respect to:
1) Timely completion of the rehabilitation project;
2) Construction of minimum improvements;
3) Developer and City obligations; and
4) General terms and conditions.
Section 5. That the Development Agreement submitted by the Developer satisfies
the requirements of this offering and, in the event that no other qualified proposals are
timely submitted, that the City Council intends to accept and approve the Development
Agreement.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to purchase 346 -348 W
Locust and to rehabilitate, manage and operate the site in the manner proposed by this
offering in accordance with the Plan.
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Section 7. That the City Clerk shall receive and retain for public examination the
attached Development Agreement submitted by the Developer and, in the event no other
qualified proposals are timely submitted, shall resubmit the Development Agreement to the
City Council for final approval and execution upon expiration of the notice hereinafter
prescribed.
Section 8. 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 purchase 346 -348 W Locust and to approve the Development Agreement by and
between City and Developer.
Section 9. 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, shall be a true copy of this Resolution, but without the attachments referred to
herein.
Section 10. That the City Clerk is authorized and directed to secure immediate
publication of said official notice in the Telegraph Herald a newspaper having a general
circulation in the community, by publication of the text of this Resolution without
attachments on or before the 24th day of May, 2013.
Section 11. That written proposals for the sale of 346 -348 W Locust will be
received by the City Clerk at or before 10:00 a.m., June 25, 2013 in the Office of the City
Clerk, located on the first floor at City Hall, 50 West 13th Street, Dubuque, Iowa 52001.
Each proposal will be opened at the hour of 10:00 a.m. in City Hall, Dubuque, Iowa on
June 25, 2013. Said proposals will then be presented to the City Council at 6:30 p.m., July
1, 2013, at a meeting to be held in the City Council Chambers, Historic Federal Building at
350 West 6th Street, Dubuque, Iowa.
Section 12. 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 rehabilitation of the 346 -348 W Locust Street property.
Section 13. That the required documents for the submission of a proposal shall be
in substantial conformity with the provisions of this Resolution.
Section 14. That the City Clerk is hereby nominated and appointed as the agent of
the City of Dubuque, Iowa to receive proposals for the sale of the 346 -348 W Locust on
that 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
proposal 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
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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 15. Each proposal submitted which satisfies the foregoing minimum
requirements, as determined by the City Manager, shall be reviewed on the basis of the
strength of such proposal following Competitive Criteria:
Quality of the Proposed Development:
(1) The total cost of the project.
(2) The types of materials to be used in the construction of the project.
(3) Timeline for completion of the rehabilitation project.
Architectural Design of the Proposed Development:
(1) The compatibility of the design with residential neighborhood.
(2) The commitment to reuse of building materials.
(3) The aesthetic quality of the development and its sensitivity to the
neighborhood.
(4) Level of commitment to historic renovation.
Economic Feasibility of the Proposed Development:
(1) The economic return to the City provided by the proposed
development, including but not limited to, the sale price, the property
taxes generated and the encouragement of related development in the
area.
(2) The ability of the prospective developer to finance and complete
the project as proposed.
(3) The financial impact of the proposed development upon the City's
operating budget and capital improvement plan, particularly as it relates to
the construction and maintenance of any required public improvements.
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Section 16. If, and only if, competing proposals are received and determined by
the Council to meet the minimum requirements described herein, the Developer shall be
allowed to amend its proposal in response thereto and to deliver same to the City Manager,
by no later than a date determined by the City Council. In such event, the Council shall
schedule a subsequent meeting to be held by the City Manager at which there shall be a
bid -off conducted by the City Manager. During such bid -off, each competing bidder shall
bid against the other, starting with the second proposal received and continuing until such
time as each bidder shall decline to improve its proposal to acquire and redevelop
346 -348 W Locust in response to the last bid of the other bidder or bidders. The
period of time to be allowed for such bid -off shall be determined by the City Manager.
The rules of such bid -off shall be as determined by the City Manager at or before such
bid -off period and shall be absolute.
Section 17. 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 20th day of May, 2013.
Roy D. ol, Mayor
Attest:
Trish L Gleason, Assistant City Clerk
F: \USERS \Econ Dev \Weaver Castle LLC \346 -348 W Locust\20130508 Weaver Castle Competitive Resolution.doc
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DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
WEAVER CASTLE LLC
THIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposesthe
day of 2013 is made and entered into by and between the City of
Dubuque, Iowa (City), and Weaver Castle LLC (Developer).
WHEREAS, City is the owner of the real estate locally known as 346 -348 W. Locust
St. Dubuque, Iowa and legally described as follows (the Property):
LOT 5 OF LOTS 10 & 11 & SE 26.9' OF LOT 12 COOLEY'S SUB
AND
NW 23.3' OF LOT 12 & SE 8.3' OF LOT 13 COOLEYS SUB 348 -348 1/2 W LOCUST
ST
WHEREAS, the Property is located in the Greater Downtown Urban Renewal District
(the District) which has been so designated by City Council Resolution 271 -12 as a slum
and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer proposes the redevelopment of the three -story building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, and fixtures in the Property (the Project); and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
October 1, 2012, City has the authority to enter into contracts and agreements to
implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the rehabilitation of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
051313bal
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price.
(1) The purchase price for the Property (the Purchase Price) shall be the sum of
One Dollar ($1.00) which shall be due and payable by Developer in
immediately available funds in favor of City, on June 28, 2013 or such other
date as the parties may mutually agree (the Closing Date).
(2) In determining the fair value of the Property for uses in accordance with the
Urban Renewal Plan, the City has taken into account and given
consideration to the uses provided in said Plan, the restrictions upon and the
covenants, conditions and obligations assumed by the Developer in this
Agreement, and the objectives of the Plan for the prevention of the
recurrence of blighted areas within the District.
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple title in
the Property to Developer subject only to easements, restrictions, conditions and
covenants of record as of the Closing Date to the extent not objected to by Developer as
set forth in this Agreement, and to the conditions subsequent set forth in Section 5.3,
below:
(1) City, at its sole cost and expense, shall deliver to Developer within no fewer
than (14) days and no more than thirty (30) days after the execution of this
Agreement, an abstract of title to the Property reflecting merchantable title in City in
conformity with this Agreement and applicable state law. The abstract shall be
delivered together with full copies of any and all encumbrances and matters of
record applicable to the Property, and such abstract shall become the property of
Developer when the Purchase Price is paid in full in the aforesaid manner.
(2) Developer shall have until the Closing Date to render objections to title,
including any easements or other encumbrances not satisfactory to Developer, in
writing to City. Developer agrees, however, to review the Abstract promptly
following Developer's receipt the Abstract and to promptly provide City with any
objections to title identified therein. Nothing herein shall be deemed to limit
Developer's rights to raise new title objections with respect to matters revealed in
any subsequent title examinations and surveys and which were not identified in the
Abstract provided by the City. City shall promptly exercise its best efforts to have
such title objections removed or satisfied and shall advise Developer of its intended
action within ten (10) days of such action. If City shall fail to have such objections
removed as of the Closing Date, or any extension thereof consented to by
Developer, Developer may, at its sole discretion, either (a) terminate this Agreement
without any liability on its part, and any sums previously paid to City by Developer
(or paid into escrow for City's benefit)shall be returned to Developer with interest, or
(b) take title subject to such objections. City agrees to use its best reasonable
efforts to promptly satisfy any such objections.
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1.3 Rights of Inspection, Testing and Review. Developer, its counsel, accountants,
agents and other representatives, shall have full and continuing access to the Property and
all parts thereof, upon reasonable notice to City. Developer and its agents and
representatives shall also have the right to enter upon Property at any time after the
execution and delivery hereof for any purpose whatsoever, including, but not limited to,
inspecting, surveying, engineering, test boring, and performing environmental tests,
provided that Developer shall hold City harmless and fully indemnify City against any
damage, claim, liability or cause of action arising from or caused by the actions of
Developer, its agents, or representatives upon the Property (except for any damage, claim,
liability or cause of action arising from conditions existing prior to any such entry upon the
Property), and shall have the further right to make such inquiries of governmental agencies
and utility companies, etc. and to make such feasibility studies and analyses as it considers
appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at the time of closing
confirming the representations contained herein, in the form attached hereto as
Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
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(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
(8) As of the date of this Agreement there has been prepared and approved by
City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal
Plan for the Greater Downtown Urban Renewal Plan, most recently approved by
City Council of City on October 1, 2012, and as subsequently amended through and
including the date hereof, attached as Exhibit E (the Urban Renewal Plan). A copy
of the Urban Renewal Plan, as constituted on the date of this Agreement and in the
form attached hereto, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa.
(9) All leases, contracts, licenses, and permits between City and third parties in
connection with the maintenance, and use of the Property have been provided to
Developer and City has provided true and correct copies of all such documents to
Developer.
(10) City has good and marketable fee simple title interest in the Property.
(11) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have not
been corrected. City has notified Developer in writing of any past notices, orders,
suits, judgments or other proceedings relating to fire, building, zoning, air pollution
or health violations as they relate to the Property of which it has actual notice. The
Property is in material compliance with all applicable zoning, fire, building, and
health statutes, ordinances, and regulations. The Property is currently zoned R -4
Multiple - Family Residential
(12) Payment has been made for all labor or materials that have been furnished
to the Property or will be made prior to the Closing Date so that no lien for labor
performed or materials furnished can be asserted against the Property.
(13) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
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(14) The Property is free and clear of any occupants, and no party has a lease to
or other occupancy or contract right in the Property that shall in any way be binding
upon the Property or Developer.
(15) City represents and warrants that any fees or other compensation which may
be owed to a broker engaged directly or indirectly by City in connection with the
purchase and sale contemplated in this Agreement are the sole responsibility and
obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter of
this Agreement.
(16) All city utilities necessary for the development and use of the Property for
residential use adjoin the Property and Developer shall have the right to connect to
said utilities, subject to City's connection fees.
1.5 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under this Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by City, is in full
force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to City, at the time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
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which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
state and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
1.6 Closing. The closing shall take place on the Closing Date which shall be the 28th
day of June, 2013, or such other date as the parties shall agree in writing but in no event
shall the Closing Date be later than the 30th day of August, 2013. Consummation of the
closing shall be deemed an agreement of the parties to this Agreement that the conditions
of closing shall have been satisfied or waived.
1.7 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines in
its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
6
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as City in its
reasonable judgment City requires.
(5) Developer's counsel shall issue a legal opinion to City confirming the
representations contained herein in the form attached hereto as Exhibit B.
(6) Title to the Property shall be in the condition warranted in Section 1.4.
(7) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(8) Developer having obtained any and all necessary governmental approvals
which might be necessary or desirable in connection with the sale, transfer and
development of the Property. Any conditions imposed as a part of the zoning must
be satisfactory to Developer, in its sole opinion. City shall cooperate with Developer
in attempting to obtain any such approvals and shall execute any documents
necessary for this purpose, provided that City shall bear no expense in connection
therewith. In connection therewith, the City agrees (a) to review all of Developer's
plans and specifications for the project and to either reject or approve the same in a
prompt and timely fashion; (b) to issue a written notification to Developer, following
City's approval of same, indicating that the City has approved such plans and
specifications, and that the same are in compliance with the Urban Renewal Plan,
this Agreement and any other applicable City or affiliated agency requirements, with
the understanding that Developer and its lenders shall have the right to rely upon
the same in proceeding with the project; (c) to identify in writing within ten (10)
working days of submission of said plans and specifications, any and all permits,
approvals and consents that are legally required for the acquisition of the Property
by Developer, and the construction, use and occupancy of the project with the intent
and understanding that Developer and its lenders and attorneys will rely upon same
in establishing their agreement and time frames for construction, use and
occupancy, lending on the project and issuing legal opinions in connection
therewith; and (d) to cooperate fully with Developer to streamline and facilitate the
obtaining of such permits, approvals and consents.
(9) City having given and completed all required notice to or prior approval,
consent or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property;
1.8 City's Obligations at Closing. At or prior to the Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to the
Property On the form attached hereto as Exhibit K (Deed) and appropriate
resolutions of the City Council conveying to Developer marketable fee simple title to
the Property and all rights appurtenant thereto, subject only to easements,
restrictions, conditions and covenants of record as of the date hereof and not
7
objected to by Developer as set forth in this Agreement, and to the conditions
subsequent set forth in Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the Property.
(3) Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer.
1.9 Delivery of Purchase Price; Obligations At Closing. At closing, and subject to the
terms, conditions, and provisions hereof and the performance by City of its obligations as
set forth herein, Developer shall pay the Purchase Price to City pursuant to Section 1.1
hereof, but subject to Developer receiving an offsetting credit pursuant to Section 3.1
below.
1.10 Closing Costs. The following costs and expenses shall be paid in connection with
the closing:
(1) City shall pay:
(a) The transfer fee, if any, imposed on the conveyance.
(b) A pro -rata portion of all taxes, if any, as provided in Section 1.10.
(c) All special assessments, if any, whether levied, pending or assessed.
(d) City's attorney's fees, if any.
(e) City's broker and /or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage and
any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorney's fees.
(c) Developer's broker and /or real estate commissions and fees, if any.
(d) A pro -rata portion of all taxes as provided in Section 1.10.
1.11 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that end
prior to the Closing Date. Real estate taxes for the fiscal year in which the Closing Date
occurs shall be prorated between City and Developer to the Closing Date on the basis of a
365 -day calendar year. Developer shall pay or cause to be paid all real estate taxes due in
8
subsequent fiscal years. Any proration of real estate taxes on the Property shall be based
upon such taxes for the year currently payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer will make a capital investment of not
less than Five Hundred Thousand Dollars ($500,000.00) to improve the Property (the
Minimum Improvements). The Minimum Improvements include creating 5 apartments for
market -rate rental using Historic Tax Credits.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban Renewal
Plan, this Agreement, and all applicable state and local laws and regulations, including but
not limited to any covenants, conditions, restrictions, reservations, easements, liens and
charges, recorded in the records of Dubuque County, Iowa. Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to
the improvements to be constructed by Developer on the Property. All work with respect to
the Minimum Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2.4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within one hundred twenty
(120) days after the Closing Date, and shall be substantially completed by December 31,
2014. The time for the performance of these obligations shall be suspended due to
unavoidable delays meaning delays, outside the control of the party claiming its occurrence
in good faith, which are the direct result of strikes, other labor troubles, unusual shortages
of materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third parties which, by
injunction or other similar judicial action or by the exercise of reasonable discretion directly
results in delays, or acts of any federal, state or local government which directly result in
extraordinary delays. The time for performance of such obligations shall be extended only
for the period of such delay.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an appropriate
instrument so certifying. Such certification (the Certificate of Completion) shall be in form
attached as Exhibit J and shall be a conclusive determination of the satisfaction of
Developer's obligations to make the Minimum Improvements under this Agreement and
completion of the Minimum Improvements by Developer as required by this Agreement.
2.6 Developer's Lender's Cure Rights. The parties agree that, if Developer shall fail to
complete the Minimum Improvements as required by this Agreement such that re- vestment
of title may occur (or such that the City would have the option of exercising its re- vestment
9
rights), then Developer's lender shall have the right, but not the obligation, to complete
such Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Financial Incentives. The financial incentives set forth in this Section 3 are full and
complete and cannot be modified except by amendment to this Agreement. City is under
no obligation to approve any such amendment.
3.2 Downtown Housing Incentive.
(1) City agrees to provide to Developer on the terms and conditions set forth in
the Downtown Housing Incentive Program attached hereto as Exhibit F, a grant in
the amount of Fifty Thousand Dollars ($50,000.00) (the Grant).
(2) Grant funds will not be disbursed to Developer until City has issued a
Certificate of Occupancy for the Project. The Grant shall be paid in Ten Thousand
Dollar ($10,000.00) payments for each apartment that receives a Certificate of
Occupancy up to a maximum of five apartments. Prior to the disbursement of any
funds, Developer shall provide evidence satisfactory to City that the Minimum
Improvements have been completed in accordance with the Plans and other
documentation submitted to City with the Downtown Housing Assistance
application.
3.3 The Property is located in the Jackson Park Historic Preservation District and the
Jackson Park Urban Revitalization District and Developer is eligible for property tax
abatements on the Minimum Improvements for a period of up to 10 years. Developer must
apply for such abatement by February 1st of the assessment year for which the abatement
is first claimed, but not later than the year in which all the Minimum Improvements are first
assessed for taxation.
The application for abatement must contain, at a minimum, the following:
a) The nature of the Minimum Improvements;
b) The cost of the Minimum Improvement;
c) The actual or estimated date of completion; and
d) The exemption option to be applied.
3.4 Planning and Design Grant. City agrees to provide a matching (1:1) grant not to
exceed ten thousand dollars ($10,000) to reimburse Developer for documented
predevelopment costs, architectural and engineering fees and other authorized soft costs
associated with the rehabilitation of the Property on the terms and conditions set forth in
Exhibit G. Prior to the release of any grant funds, City must determine to its satisfaction
that the Project is substantially complete and meets the conditions of this Agreement.
3.5 Facade Grant. City agrees to provide a matching (1:1) grant not to exceed ten
thousand dollars ($10,000) to reimburse Developer for documented costs for front or rear
10
facade renovations to the Property to eliminate inappropriate additions or alterations and to
restore the facade to its historic appearance, or to rehabilitate the facade to include new
windows, paint, signage, awnings, etc. to improve the overall appearance of the Property,
and the costs of landscaping or screening with fencing or retaining walls if such
landscaping or screening improves the Property adjacent to the public right -of -way, on the
terms and conditions set forth in Exhibit H.
3.6 Financial Consultant Grant. City agrees to provide a grant not to exceed fifteen
thousand dollars ($15,000) to reimburse Developer for documented costs related to hiring
a financial consultant to evaluate the Project's feasibility on the terms and conditions are
further set forth in Exhibit I. Such funds will be disbursed only on completion of the
Minimum Improvements, documentation of costs and an inspection of the completed
Project at a rate of $.50 for each $1.00 of costs incurred.
3.7. Written requests for payment of grant funds must be submitted to the Economic
Development Department together with all required documentation.
SECTION 4. COVENANTS OF DEVELOPER
4.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's
Standards for Rehabilitation.
4.2 [This section intentionally left blank.]
4.3 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Developer shall provide reasonable protection against loss or damage to such books of
record and account.
4.4 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.5 [This section intentionally reserved]
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100 %) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
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include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense property insurance against loss and /or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear, and
Developer shall forthwith repair, reconstruct and restore the Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to
the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property (as its interests may appear). Developer shall
complete the repair, reconstruction and restoration of Minimum Improvements
whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.8 Non - Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position to
12
participate in a decision - making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the project, or in any activity,
or benefit therefrom, which is part of this project at any time during or after such person's
tenure. In connection with this obligation, Developer shall have the right to rely upon the
representations of any party with whom it does business and shall not be obligated to
perform any further examination into such party's background.
4.10 Non - Transferability. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.5), this Agreement may not be assigned by Developer
nor may the Property be transferred by Developer to another party. Thereafter, with the
prior written consent of City, which shall not be unreasonably withheld, Developer shall
have the right to assign this Agreement, and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.11 No change in Tax Classification. Developer agrees that it will not take any action
to change, or otherwise allow, the classification of the Property for property tax
purposes to become other than commercial property and to be taxed as such under
Iowa law. This restriction shall terminate upon the termination of this Agreement.
Developer may have the Property reclassified in the event the State of Iowa laws
are modified to allow a building containing four apartments within one building to be
classified as residential for property tax purposes.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof, for the duration of this
Agreement, that they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a restaurant and upper -story housing, is in full compliance with the
Urban Renewal Plan) (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected thereon, or
any part thereof (however, Developer shall not have any liability to City to the extent
that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same).
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
13
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
5.2. Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 5.1 of this Agreement occurs and is continuing, City, as specified below, may take
any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) Until issuance of the Certificate of Completion, City shall be entitled to
recover from Developer the sum of all amounts expended by City in connection with
the funding of the Downtown Rehab Loan /Grant and Economic Development Grant
to Developer and City may take any action, including any legal action it deems
necessary, to recover such amounts from the Developer;
14
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 Re- vesting Title in City Upon Happening of Event Subsequent to Conveyance to
Developer. In the event that, subsequent to conveyance of the Property to Developer by
City, and prior to receipt by Developer of the Certificate of Completion, but subject to the
terms of the mortgage granted by Developer to secure a loan obtained by Developer from
a commercial lender or other financial institution to fund the acquisition of Property or
construction of the Minimum Improvements on Developer's Property (First Mortgage), an
Event of Default under Section 5.1 of this Agreement occurs and is not cured within the
times specified in Section 5.2, then City shall have the right to re -enter and take
possession of the Property and any portion of the Minimum Improvements thereon and to
terminate (and re -vest in City pursuant to the provisions of this Section 5.3 subject only to
any superior rights in any holder of the First Mortgage) the estate conveyed by City to
Developer, it being the intent of this provision, together with other provisions of this
Agreement, that the conveyance of the Property to Developer shall be made upon the
condition that (and the Deed shall contain a condition subsequent to the effect that), in the
event of default under Section 5.1 on the part of Developer and failure on the part of
Developer to cure such default within the period and in the manner stated herein, City may
declare a termination in favor of City of the title and of all Developer's rights and interests in
and to Property conveyed to Developer, and that such title and all rights and interests of
Developer, and any assigns or successors in interests of Developer, and any assigns or
successors in interest to and in Property, shall revert to City (subject to the provisions of
Section 5.3 of this Agreement), but only if the events stated in Section 5.1 of this
Agreement have not been cured within the time period provided above, or, if the events
cannot be cured within such time periods, Developer do not provide assurance to City,
reasonably satisfactory to City, that the events will be cured as soon as reasonably
possible. Notwithstanding the foregoing, however, City agrees to execute a Subordination
Agreement in favor of Developer's first mortgage lender, in a form reasonably acceptable
to City and to Developer's first mortgage lender.
5.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re- vesting in City
of title to the Property as provided in Section 5.3 of this Agreement, City shall, pursuant to
its responsibility under law, use its best efforts, subject to any rights or interests in such
property or resale granted to any holder of a First Mortgage, to resell the Property or part
thereof as soon and in such manner as City shall find feasible and consistent with the
objectives of such law and of the Urban Renewal Plan to a qualified and responsible party
or parties (as determined by City in its sole discretion) who will assume the obligation of
making or completing the Minimum Improvements or such other improvements in their
stead as shall be satisfactory to City and in accordance with the uses specified for such the
Property or part thereof in the Urban Renewal Plan. Subject to any rights or interests in
15
such property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on the
Property, or any portion thereof, or any improvements thereon, previously
acquiesced in by City pursuant to this Agreement. If more than one mortgage on
the Property, or any portion thereof, or any improvements thereon, has been
previously acquiesced in by City pursuant to this Agreement and insufficient
proceeds of the resale exist to pay the principal of, and interest on, each such
mortgage in full, then such proceeds of the resale as are available shall be used to
pay the principal of and interest on each such mortgage in their order of priority, or
by mutual agreement of all contending parties, including Developer, or by operation
of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred by City,
including but not limited to salaries of personnel, in connection with the recapture,
management and resale of the Property or part thereof (but less any income derived
by City from the Property or part thereof in connection with such management); any
payments made or necessary to be made to discharge any encumbrances or liens
(except for mortgage(s) previously acquiesced in by the City) existing on the
Property or part thereof at the time of re- vesting of title thereto in City or to
discharge or prevent from attaching or being made any subsequent encumbrances
or liens due to obligations, default or acts of Developer, its successors or
transferees (except with respect to such mortgage(s)), any expenditures made or
obligations incurred with respect to the making or completion of the Minimum
Improvements or any part thereof on the Property or part thereof, and any amounts
otherwise owing to City (including water and sewer charges) by Developer and its
successors or transferees; and
(4) Fourth, to reimburse Developer and Employer up to the amount equal to (1)
the sum of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property, less (2) any gains or income withdrawn or made by Developer or
Employer from this Agreement or the Property.
5.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
16
5.6 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
5.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
5.8 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that may
appear necessary or desirable to collect any payments due under this Agreement, to
recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may suspend
their performance under this Agreement until they receive assurances from City, deemed
adequate by Developer, that City will cure its default and continue its performance under
this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if
and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer: Weaver Castle, LLC
Attn: Danielle Stelpflug
7693 Pigeon River Road
Lancaster, WI 53813
With copy to: Drake Law Firm, P.C.
Flint Drake
2254 Flint Hill Dr
Dubuque, IA 52003
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
17
With copy to:
City Attorney
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.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on December 31, 2023 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA WEAVER CASTLE LLC
By By
Roy D. Buol Danielle Stelpflug, Manager
Mayor
Attest:
Kevin S. Firnstahl
City Clerk
18
(City Seal)
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20 before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin S.
Firnstahl, to me personally known, who, being by me duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation
executing the instrument to which this is attached; that the seal affixed hereto is the seal of
said municipal corporation; that said instrument was signed and sealed on behalf of the
City of Dubuque, Iowa, by authority of its City Council; and that said Mayor and City Clerk
acknowledged the execution of said instrument to be the voluntary act and deed of said
City, by it and by them voluntarily executed.
Notary Public
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20 before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Danielle Stelpflug, to me
personally known, who, being by me duly sworn, did say that he is Manager of
Weaver Castle LLC. the limited liability company executing the instrument to which this is
attached and that as said Manager of Weaver Castle LLC. acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
Notary Public
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LIST OF EXHIBITS
EXHIBIT A — City Attorney's Certificate
EXHIBIT B — Opinion of Developer's Counsel
EXHIBIT C — City Certificate
EXHIBIT D — Memorandum of Development Agreement
EXHIBIT E — Urban Renewal Plan
EXHIBIT F — Downtown Housing Incentive Program
EXHIBIT G - Planning and Design Grant Program
EXHIBIT H - Facade Grant Program
EXHIBIT I - Financial Consultant Grant Program
EXHIBIT J - Certification of Completion
EXHIBIT K— Warranty Deed
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EXHIBIT A
CITY ATTORNEY'S CERTIFICATE
21
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(DATE)
THE CITY OF
DUB
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement between (Developer)
and the City of Dubuque, Iowa (City) dated for reference purposes the day of
, 20_
The City has duly obtained all necessary approvals and consents for its execution, delivery
and performance of this Agreement and has full power and authority to execute, deliver
and perform its obligations under this Agreement, and to the best of my knowledge, the
representations of the City Manager in his letter dated the day of , 20_,
are correct.
BAL:tls
22
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT B
OPINION OF DEVELOPER'S COUNSEL
23
Mayor and City Councilmembers
City Hall
13th and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , 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 , 2013.
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 ofthe
State of Iowa and has full power and authority to execute, deliver and perform in full the
Development Agreement. The Development Agreement has been duly and validly authorized,
executed and delivered by Developer and, assuming due authorization, execution and delivery by
City, is in full force and effect and is a valid and legally binding instrument of Developer enforceable
in accordance with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
2. To our actual knowledge with no duty to inquire, the execution, delivery and
performance by Developer of the Development Agreement and the carrying out ofthe terms thereof,
will not result in violation of any provision of, or in default under, the articles of incorporation and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment,
decree, order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. To our actual knowledge with no duty to inquire, 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 ofthe Agreement or the Developer's ability to perform Developer's obligations
thereunder.
This opinion is rendered for the sole benefit of the City of Dubuque and no other party may rely on
24
this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty to update this
opinion for any matters which come to our knowledge after the date of this letter.
Sincerely,
25
EXHIBIT C
CITY CERTIFICATE
26
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgr @cityofdubuque.org
Dear
(DATE)
THE CITY OF
DUB
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the day of , 20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
27
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
MCVM:jh
28
Sincerely,
Michael C. Van Milligen
City Manager
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
29
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 Weaver Castle LLC. was made regarding the following
described premises:
LOT 5 OF LOTS 10 & 11 & SE 26.9' OF LOT 12 COOLEY'S SUB
AND
NW 23.3' OF LOT 12 & SE 8.3' OF LOT 13 COOLEYS SUB 348 -348 1/2 W LOCUST
ST
The Development Agreement is dated for reference purposes the day of
2013, 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 2013.
CITY OF DUBUQUE, IOWA WEAVER CASTLE LLC.
By By
Roy D. Buol Danielle Stelpflug, Manager
Mayor
Attest:
30
Kevin S. Firnstahl
City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this _day of 20 before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20 before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Danielle Stelpflug, to me
personally known, who, being by me duly sworn, did say that he is Manager of Weaver
Castle LLC., the limited liability company executing the instrument to which this is attached
and that as said Manager of Weaver Castle LLC., acknowledged the execution of said
instrument to be the voluntary act and deed of said company, by it and by him voluntarily
executed.
Notary Public, State of Iowa
31
EXHIBIT E
Urban Renewal Plan
32
Prepared by:
Return to:
Phil Wagner, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589 -4393
Kevin S. Firnstahl, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589 -4121
AMENDED and RESTATED
URBAN RENEWAL PLAN
Greater Downtown Urban Renewal District
(A merger of the Downtown Dubuque, Ice Harbor, Kerper Boulevard, East 7th
Street and Quebecor Urban Renewal Districts)
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan for the Greater Downtown Urban
Renewal District traces its beginnings to 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. The Urban Renewal Plan for the Greater Downtown
Urban Renewal District resulting from that merger was later amended by Resolution 170 -04
on April 19, 2004, by Resolution 391 -06 on August 21, 2006, by Resolution 108 -07 on
February 20th, 2007, by Resolution 597 -07 on December 17, 2007, by Resolution 300 -08
on September 2, 2008, by Resolution 393 -09 on October 5, 2009, and by Resolution 26 -10
on July 19, 2010. On May 2, 2011 the Kerper Boulevard Industrial Park Economic
Development District originally established by Resolution 274 -94 on August 15, 1994 and
the East 7th Street Economic Development District, originally established by Resolution
144 -97 on April 7, 1997 were merged into and became part of the Greater Downtown
Urban Renewal District, pursuant to Resolution 155 -11 approved on May 2, 2011. The
Quebecor Economic Development District, originally established by Resolution 479 -02 on
September 16, 2002, was merged into and became part of the Greater Downtown Urban
Renewal District pursuant to Resolution approved on 2012.
33
EXHIBIT F
DOWNTOWN HOUSING INCENTIVE PROGRAM
34
Economic Developm ent
Department
City Hall — Second Floor
50 West 13th Street
Dubuque, Iowa 52001-
4864 (563) 589 -4393
Office
(563) 589 -1733 Fax
(563) 589 -6678 TDD
Masterpiece on the Mississippi
DOWNTOWN HOUSING INCENTIVE
PROGRAM
David J. Heiar
Economic Development Director
dheiarc citvofdubuaue.orq
October 30, 2012
Phil Wagner
Asst. Economic Development Director
Dwaanerc citvofdubuaue.ora
50 West 13th Street
Dubuque, IA 52001
563 -589 -4393
Proiects eligible to receive assistance from this established pool of funds must meet the following
requirements:
• The project must assist in the creation of new market -rate downtown rental and/or owner -
occupied residential units within the Greater Downtown Urban Renewal District.
• The project must be the rehabilitation of an existing structure.
• Within the Washington Neighborhood, rental units must be located above a commercial
component on the first floor of the building unless the project is rehabilitating or reusing a former
church or school building.
• Exterior alterations are subject to design review and approval. The Historic District Guidelines
shall apply to projects located in Historic Preservation District. The Downtown Design Guidelines
shall apply to all other project locations. Projects which conform to the applicable guidelines may
be reviewed and approved by the City Planner. Projects that do not strictly conform to the
applicable guidelines will be forwarded to the Historic Preservation Commission (HPC) for
consideration. New construction or substantial rehabilitation projects may also be considered by
the HPC. The process for review is at the discretion of the City Planner. Guidelines can be
viewed and downloaded at http: //www.cityofdubuque.orq /design guidelines.
• Any signs on the property that do not comply with City zoning regulations and design guidelines
must be included in the design review and improved to comply with applicable City Codes.
Submittal must include the design materials and colors that will be used on the sign face, how the
sign will be displayed, and any lighting proposed.
• Include detailed drawing of the proposed project. The plans should include dimensions and
architectural details and label materials. Plans prepared by a design professional (e.g. architect
or draftsperson) are strongly recommended. Applications without detailed drawings will not be
considered complete and will not be accepted by the City.
35
• Deviation from an approved project plan may disqualify the project from the program.
• Preference will be given to projects that also utilize Federal and /or State Historic Tax Credits.
• No more than $10,000 in assistance will be considered per residential unit.
• In general, no more than $750,000 will be provided to a single project.
• No developer fee will be permitted until all city assistance is paid or satisfied in full.
• The City will disperse awarded funds for the benefit of the project once the project is
completed and a Certificate of Occupancy has been given for the housing units.
• Each approved project will also be eligible to receive site - specific Tax Increment
Financing (TIF) for up to a 10 year period, depending on the project type and scope.
• A minimum of 2 new housing units must be created in the project.
• Units smaller than 650 square feet will not be eligible for this project.
• No residential units will be allowed to have a restriction of less than 80% of the median income.
• No more than 65% of the units of any project can have a restriction of 80% of the median
income.
• A project that is funded by Low Income Tax Credits (LITC) is not eligible.
• The owner(s) of the property must certify that all other property in the City of Dubuque in which
the owner(s) has any interest, complies with all applicable City of Dubuque ordinances and
regulations, including, but not limited to, housing, building, zoning, fire, health, and vacant and
abandoned building regulations.
36
EXHIBIT G
PLANNING AND DESIGN GRANT PROGRAM
37
PLANNING AND DESIGN GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for hiring
architects, engineers or other professional services used prior to construction.
Amount of Grant:
1:1 matching grant not to exceed ten thousand dollars
($10,000) per building may be awarded by the City to offset the
actual pre - development costs. (Example: $8,500 in eligible
project costs would receive $4,250 grant matched by $4,250 in
private contribution; $20,000 or greater eligible project costs
would receive the maximum $10,000 grant.)
Grant Specific Conditions:
• Reimbursement is for architectural and engineering fees, feasibility studies,
environmental assessments or other related soft costs.
• Reimbursable expenditures must be documented.
• Owner / developer fees are not permitted as reimbursable expenditures.
• The grant shall not exceed ten percent (10 %) of total project costs.
• Grants will be dispersed upon completion of the project at a rate of $0.50 for
each $1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
38
EXHIBIT H
FAQADE GRANT PROGRAM
39
FACADE GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for front or
rear facade renovation to restore the facade to its historic appearance, or improve the
overall appearance.
Amount of Grant:
1:1 matching grant not to exceed ten thousand dollars
($10,000) shall be awarded by the City to qualifying projects
based on total eligible project costs. (Example: $8,500 in
eligible project costs would receive a $4,250 grant matched by
$4,250 in private contribution; $20,000 or greater eligible
project costs would receive the maximum $10,000 grant.)
Grant Specific Conditions:
• Reimbursement is for labor and material costs associated with facade
improvements, including, but not limited to rehabilitating or improving
windows, paint, signage, or awnings to enhance overall appearance.
• Landscaping or screening with fencing or retaining walls may be a
reimbursable expense if a determination is made that property is improved
adjacent to public right -of -way.
• In order to receive reimbursement for repointing, a mortar analysis sample
must be provided for each facade that will be repointed. The applicant must
adhere to the results of that analysis in their rehabilitation work as part of
their approved project plan. The City may request verification that the new
mortar matches the results of the mortar analysis.
• Language from the National Park Service Technical Preservation Services
Briefs may be attached as a condition for a building permit if the applicant
chooses to perform repointing on the project.
• Reimbursable expenditures must be documented.
• Grants will be dispersed upon completion of work at a rate of $.50 for each
$1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
40
EXHIBIT I
FINANCIAL CONSULTANT GRANT PROGRAM
41
FINANCIAL CONSULTANT GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for hiring a
financial consultant to analyze the feasibility of projects.
Amount of Grant:
1:1 matching grant not to exceed fifteen thousand dollars
($15,000) shall be awarded to qualifying projects based on
total eligible project costs. (Example: $8,500 in eligible project
costs would receive a $4,250 grant matched by $4,250 in
private contribution; $30,000 or greater eligible costs would
receive the maximum $15,000 grant.)
Grant Specific Conditions:
• Reimbursement is for fees associated with hiring a professional financial
consultant.
• Reimbursable expenditures must be documented.
• The grant shall not exceed ten percent (10 %) of total project costs.
• The rehabilitation project must be completed for the Financial Consultant
Grant to be funded.
• Grants will be dispersed upon completion of work at a rate of $.50 for each
$1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
42
EXHIBIT J
CERTIFICATE OF COMPLETION
43
Prepared By: David J. Heiar 50 West 13th Street Dubuque, IA 52001 563 - 589 -4393
Return to: David J. Heiar 50 West 13th Street Dubuque, IA 52001 563 - 589 -4393
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor "), has
granted incentives to Weaver Castle, LLC (the "Grantee "), in accordance with a
Development Agreement dated as of [Date] (the "Agreement "), certain real property located
within the Greater Downtown Urban Renewal District of the Grantor and as more
particularly described as follows:
LOT 5 OF LOTS 10 & 11 & SE 26.9' OF LOT 12 COOLEY'S SUB
AND
NW 23.3' OF LOT 12 & SE 8.3' OF LOT 13 COOLEYS SUB 348 -348 1/2 W LOCUST ST
(the "Development Property "); and
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions with respect to the rehabilitation of the Development Property, and obligated the
Grantee to construct certain Minimum Improvements (as defined therein) in accordance
with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements in a
manner deemed sufficient by the Grantor to permit the execution and recording of this
certification; and
NOW, THEREFORE, pursuant to Section 2.5 of the Agreement, this is to certify that
all covenants and conditions of the Agreement with respect to the obligations of the
Grantee, and its successors and assigns, to construct the Minimum Improvements on the
Development Property have been completed and performed by the Grantee to the
satisfaction of the Grantor and such covenants and conditions are hereby satisfied.
The Recorder of Dubuque County is hereby authorized to accept for recording and to
record the filing of this instrument, to be a conclusive determination of the satisfaction of
the covenants and conditions as set forth in said Agreement, and that the Agreement shall
otherwise remain in full force and effect.
(SEAL) CITY OF DUBUQUE, IOWA
44
By:
Mike Van Milligan, City Manager
45
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this _day of 2013, before me, the undersigned, a notary public
in and for the State of Iowa, personally appeared and
acknowledged the execution of the instrument to be his /her voluntary act and deed.
Notary Public in and for
Dubuque County, Iowa
46
EXHIBIT K
WARRANTY DEED
47
366
364
348"
Legend
Subject Property - 346 -348 West Locust Street
Urban Revitalization Districts
Jackson
West 11th
1535
1511
1509
\1 \►1.a45
346 W Locust
348 W Locust
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
WEAVER CASTLE LLC
THIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposes the
I day of f ,a,' , 2013 is made and entered into by and between the City of
Dubuque, Iowa (City), and Weaver Castle LLC (Developer).
WHEREAS, City is the owner of the real estate locally known as 346-348 W. Locust
St. Dubuque, Iowa and legally described as follows (the Property):
Lot 5 of the Subdivision of Lots 10 and 11; the Southeasterly 26
feet 9 inches of Lot 12; the Northwesterly 23 feet 3 inches of Lot
12, and the Southeasterly 8 feet 3 inches of Lot 13, in D. N.
Cooley's Subdivision of Out Lots 667, 668 and 669 to Dubuque, in
the City of Dubuque, Iowa according to the recorded plats thereof
WHEREAS, the Property is located in the Greater Downtown Urban Renewal District
(the District) which has been so designated by City Council Resolution 271-12 as a slum
and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer proposes the redevelopment of the three-story building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, and fixtures in the Property (the Project); and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
June 3, 2013, City has the authority to enter into contracts and agreements to
implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the rehabilitation of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
051313ba1
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price.
(1) The purchase price for the Property (the Purchase Price) shall be the sum of
One Dollar ($1.00) which shall be due and payable by Developer in
immediately available funds in favor of City, on August 21, 2013 or such
other date as the parties may mutually agree (the Closing Date).
(2) In determining the fair value of the Property for uses in accordance with the
Urban Renewal Plan, the City has taken into account and given
consideration to the uses provided in said Plan, the restrictions upon and the
covenants, conditions and obligations assumed by the Developer in this
Agreement, and the objectives of the Plan for the prevention of the
recurrence of blighted areas within the District.
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple title in
the Property to Developer subject only to easements, restrictions, conditions and
covenants of record as of the Closing Date to the extent not objected to by Developer as
set forth in this Agreement, and to the conditions subsequent set forth in Section 5.3,
below:
(1) City, at its sole cost and expense, shall deliver to Developer within no fewer
than (14) days and no more than thirty (30) days after the execution of this
Agreement, an abstract of title to the Property reflecting merchantable title in City in
conformity with this Agreement and applicable state law. The abstract shall be
delivered together with full copies of any and all encumbrances and matters of
record applicable to the Property, and such abstract shall become the property of
Developer when the Purchase Price is paid in full in the aforesaid manner.
(2) Developer shall have until the Closing Date to render objections to title,
including any easements or other encumbrances not satisfactory to Developer, in
writing to City. Developer agrees, however, to review the Abstract promptly
following Developer's receipt the Abstract and to promptly provide City with any
objections to title identified therein. Nothing herein shall be deemed to limit
Developer's rights to raise new title objections with respect to matters revealed in
any subsequent title examinations and surveys and which were not identified in the
Abstract provided by the City. City shall promptly exercise its best efforts to have
such title objections removed or satisfied and shall advise Developer of its intended
action within ten (10) days of such action. If City shall fail to have such objections
removed as of the Closing Date, or any extension thereof consented to by
Developer, Developer may, at its sole discretion, either (a) terminate this Agreement
without any liability on its part, and any sums previously paid to City by Developer
(or paid into escrow for City's benefit) shall be returned to Developer with interest,
or (b) take title subject to such objections. City agrees to use its best
reasonable efforts to promptly satisfy any such objections.
2
1.3 Rights of Inspection, Testing and Review. Developer, its counsel, accountants,
agents and other representatives, shall have full and continuing access to the Property and
all parts thereof, upon reasonable notice to City. Developer and its agents and
representatives shall also have the right to enter upon Property at any time after the
execution and delivery hereof for any purpose whatsoever, including, but not limited to,
inspecting, surveying, engineering, test boring, and performing environmental tests,
provided that Developer shall hold City harmless and fully indemnify City against any
damage, claim, liability or cause of action arising from or caused by the actions of
Developer, its agents, or representatives upon the Property (except for any damage, claim,
liability or cause of action arising from conditions existing prior to any such entry upon the
Property), and shall have the further right to make such inquiries of governmental agencies
and utility companies, etc. and to make such feasibility studies and analyses as it considers
appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at the time of closing
confirming the representations contained herein, in the form attache d hereto as
Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
3
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
(8) As of the date of this Agreement there has been prepared and approved by
City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal
Plan for the Greater Downtown Urban Renewal Plan, most recently approved by
City Council of City on June 3, 2013, and as subsequently amended through and
including the date hereof, attached as Exhibit E (the Urban Renewal Plan). A copy
of the Urban Renewal Plan, as constituted on the date of this Agreement and in the
form attached hereto, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa.
(9) All leases, contracts, licenses, and permits between City and third parties in
connection with the maintenance, and use of the Property have been provided to
Developer and City has provided true and correct copies of all such documents to
Developer.
(10) City has good and marketable fee simple title interest in the Property.
(11) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have not
been corrected. City has notified Developer in writing of any past notices, orders,
suits, judgments or other proceedings relating to fire, building, zoning, air pollution
or health violations as they relate to the Property of which it has actual notice. The
Property is in material compliance with all applicable zoning, fire, building, and
health statutes, ordinances, and regulations. The Property is currently zoned R-4
Multiple -Family Residential
(12) Payment has been made for all labor or materials that have been furnished
to the Property or will be made prior to .the Closing Date so that no lien for labor
performed or materials furnished can be asserted against the Property.
(13) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(14) The Property is free and clear of any occupants, and no party has a lease to
or other occupancy or contract right in the Property that shall in any way be binding
upon the Property or Developer.
(15) City represents and warrants that any fees or other compensation which may
be owed to a broker engaged directly or indirectly by City in connection with the
purchase and sale contemplated in this Agreement are the sole responsibility and
obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter of
this Agreement.
(16) All city utilities necessary for the development and use of the Property for
residential use adjoin the Property and Developer shall have the right to connect to
said utilities, subject to City's connection fees.
1.5 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a limited liability company duly organized and validly existing
under the laws of the State of Iowa, and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under this Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by City, is in full
force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to City, at the time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
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(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
state and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
1.6 Closing. The closing shall take place on the Closing Date which shall be the 21st
day of August, 2013, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 31st day of October, 2013.
Consummation of the closing shall be deemed an agreement of the parties to this
Agreement that the conditions of closing shall have been satisfied or waived.
1.7 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines in
its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as City in its
reasonable judgment City requires.
(5) Developer's counsel shall issue a legal opinion to City confirming the
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representations contained herein in the form attached hereto as Exhibit B.
(6) Title to the Property shall be in the condition warranted in Section 1.4.
(7) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(8) Developer having obtained any and all necessary governmental approvals
which might be necessary or desirable in connection with the sale, transfer and
development of the Property. Any conditions imposed as a part of the zoning must
be satisfactory to Developer, in its sole opinion. City shall cooperate with Developer
in attempting to obtain any such approvals and shall execute any documents
necessary for this purpose, provided that City shall bear no expense in connection
therewith. In connection therewith, the City agrees (a) to review all of Developer's
plans and specifications for the project and to either reject or approve the same in a
prompt and timely fashion; (b) to issue a written notification to Developer, following
City's approval of same, indicating that the City has approved such plans and
specifications, and that the same are in compliance with the Urban Renewal Plan,
this Agreement and any other applicable City or affiliated agency requirements, with
the understanding that Developer and its lenders shall have the right to rely upon
the same in proceeding with the project; (c) to identify in writing within ten (10)
working days of submission of said plans and specifications, any and all permits,
approvals and consents that are legally required for the acquisition of the Property
by Developer, and the construction, use and occupancy of the project with the intent
and understanding that Developer and its lenders and attorneys will rely upon same
in establishing their agreement and time frames for construction, use and
occupancy, lending on the project and issuing legal opinions in connection
therewith; and (d) to cooperate fully with Developer to streamline and facilitate the
obtaining of such permits, approvals and consents.
(9) City having given and completed all required notice to or prior approval,
consent or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property;
1.8 City's Obligations at Closing. At or prior to the Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to the
Property (in the form attached hereto as Exhibit K (Deed) and appropriate
resolutions of the City Council conveying to Developer marketable fee simple title to
the Property and all rights appurtenant thereto, subject only to easements,
restrictions, conditions and covenants of record as of the date hereof and not
objected to by Developer as set forth in this Agreement, and to the conditions
subsequent set forth in Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the Property.
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(3) Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer.
1.9 Delivery of Purchase Price; Obligations At Closing. At closing, and subject to the
terms, conditions, and provisions hereof and the performance by City of its obligations as
set forth herein, Developer shall pay the Purchase Price to City pursuant to Section 1.1
hereof, but subject to Developer receiving an offsetting credit pursuant to Section 3.1
below.
1.10 Closing Costs. The following costs and expenses shall be paid in connection with
the closing:
(1) City shall pay:
(a) The transfer fee, if any, imposed on the conveyance.
(b) A pro -rata portion of all taxes, if any, as provided in Section 1.10.
(c) All special assessments, if any, whether levied, pending or assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage and
any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorney's fees.
(c) Developer's broker and/or real estate commissions and fees, if any.
(d) A pro -rata portion of all taxes as provided in Section 1.10.
1.11 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that end
prior to the Closing Date. Real estate taxes for the fiscal year in which the Closing Date
occurs shall be prorated between City and Developer to the Closing Date on the basis of a
365 -day calendar year. Developer shall pay or cause to be paid all real estate taxes due in
subsequent fiscal years. Any proration of real estate taxes on the Property shall be based
upon such taxes for the year currently payable.
SECTION 2. DEVELOPMENT ACTIVITIES
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2.1 Required Minimum Improvements. Developer will make a capital investment of not
Tess than Five Hundred Thousand Dollars ($500,000.00) to improve the Property (the
Minimum Improvements). The Minimum Improvements include creating 5 apartments for
market -rate rental using Historic Tax Credits.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban Renewal
Plan, this Agreement, and all applicable state and local laws and regulations, including but
not limited to any covenants, conditions, restrictions, reservations, easements, liens and
charges, recorded in the records of Dubuque County, Iowa. Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to
the improvements to be constructed by Developer on the Property. All work with respect to
the Minimum Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2.4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within one hundred twenty
(120) days after the Closing Date, and shall be substantially completed by December 31,
2014. The time for the performance of these obligations shall be suspended due to
unavoidable delays meaning delays, outside the control of the party claiming its occurrence
in good faith, which are the direct result of strikes, other labor troubles, unusual shortages
of materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third parties which, by
injunction or other similar judicial action or by the exercise of reasonable discretion directly
results in delays, or acts of any federal, state or local government which directly result in
extraordinary delays. The time for performance of such obligations shall be extended only
for the period of such delay.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an appropriate
instrument so certifying. Such certification (the Certificate of Completion) shall be in form
attached as Exhibit J and shall be a conclusive determination of the satisfaction of
Developer's obligations to make the Minimum Improvements under this Agreement and
completion of the Minimum Improvements by Developer as required by this Agreement.
2.6 Developer's Lender's Cure Rights. The parties agree that, if Developer shall fail to
complete the Minimum Improvements as required by this Agreement such that re -vestment
of title may occur (or such that the City would have the option of exercising its re -vestment
rights), then Developer's lender shall have the right, but not the obligation, to complete
such Minimum Improvements.
SECTION 3. CITY PARTICIPATION
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3.1 Financial Incentives. The financial incentives set forth in this Section 3 are full and
complete and cannot be modified except by amendment to this Agreement. City is under
no obligation to approve any such amendment.
3.2 Downtown Housing Incentive.
(1) City agrees to provide to Developer on the terms and conditions set forth in
the Downtown Housing Incentive Program attached hereto as Exhibit F, a grant in
the amount of Fifty Thousand Dollars ($50,000.00) (the Grant).
(2) Grant funds will not be disbursed to Developer until City has issued a
Certificate of Occupancy for the Project. The Grant shall be paid in Ten Thousand
Dollar ($10,000.00) payments for each apartment that receives a Certificate of
Occupancy up to a maximum of five apartments. Prior to the disbursement of any
funds, Developer shall provide evidence satisfactory to City that the Minimum
Improvements have been completed in accordance with the Plans and other
documentation submitted to City with the Downtown Housing. Assistance
application.
3.3 The Property is located in the Jackson Park Historic Preservation District and the
Jackson Park Urban Revitalization District and Developer is eligible for property tax
abatements on the Minimum Improvements for a period of up to 10 years. Developer must
apply for such abatement by February 1st of the assessment year for which the abatement
is first claimed, but not later than the year in which all the Minimum Improvements are first
assessed for taxation.
The application for abatement must contain, at a minimum, the following:
a) The nature of the Minimum Improvements;
b) The cost of the Minimum Improvement;
c) The actual or estimated date of completion; and
d) The exemption option to be applied.
3.4 Planning and Design Grant. City agrees to provide a matching (1:1) grant not to
exceed ten thousand dollars ($10,000) to reimburse Developer for documented
predevelopment costs, architectural and engineering fees and other authorized soft costs
associated with the rehabilitation of the Property on the terms and conditions set forth in
Exhibit G. Prior to the release of any grant funds, City must determine to its satisfaction
that the Project is substantially complete and meets the conditions of this Agreement.
3.5 Facade Grant. City agrees to provide a matching (1:1) grant not to exceed ten
thousand dollars ($10,000) to reimburse Developer for documented costs for front or rear
facade renovations to the Property to eliminate inappropriate additions or alterations and to
restore the facade to its historic appearance, or to rehabilitate the facade to include new
windows, paint, signage, awnings, etc. to improve the overall appearance of the Property,
and the costs of landscaping or screening with fencing or retaining walls if such
landscaping or screening improves the Property adjacent to the public right-of-way, on the
terms and conditions set forth in Exhibit H.
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3.6 Financial Consultant Grant. City agrees to provide a grant not to exceed fifteen
thousand dollars ($15,000) to reimburse Developer for documented costs related to hiring
a financial consultant to evaluate the Project's feasibility on the terms and conditions are
further set forth in Exhibit I. Such funds will be disbursed only on completion of the
Minimum Improvements, documentation of costs and an inspection of the completed
Project at a rate of $.50 for each $1.00 of costs incurred.
3.7. Written requests for payment of grant funds must be submitted to the Economic
Development Department together with all required documentation.
SECTION 4. COVENANTS OF DEVELOPER
4.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's
Standards for Rehabilitation.
4.2 [This section intentionally left blank.]
4.3 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Developer shall provide reasonable protection against loss or damage to such books of
record and account.
4.4 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.5 [This section intentionally reserved]
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100%) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense property insurance against loss and/or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
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"special perils" form and in an amount not less than the full insurable replacement
value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear, and
Developer shall forthwith repair, reconstruct and restore the Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to
the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property (as its interests may appear). Developer shall
complete the repair, reconstruction and restoration of Minimum Improvements
whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.8 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position to
participate in a decision-making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the project, or in any activity,
or benefit therefrom, which is part of this project at any time during or after such person's
tenure. In connection with this obligation, Developer shall have the right to rely upon the
representations of any party with whom it does business and shall not be obligated to
perform any further examination into such party's background.
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4.10 Non -Transferability. Until such time as the Minimum Improvements are complete
Os certified by City under Section 2.5), this Agreement may not be assigned by Developer
nor may the Property be transferred by Developer to another party. Thereafter, with the
prior written consent of City, which shall not be unreasonably withheld, Developer shall
have the right to assign this Agreement, and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.11 No change in Tax Classification. Developer agrees that it will not take any action
to change, or otherwise allow, the classification of the Property for property tax
purposes to become other than commercial property and to be taxed as such under
Iowa law. This restriction shall terminate upon the termination of this Agreement.
Developer may have the Property reclassified in the event the State of Iowa laws
are modified to allow a building containing four apartments within one building to be
classified as residential for property tax purposes.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof, for the duration of this
Agreement, that they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a restaurant and upper -story housing, is in full compliance with the
Urban Renewal Plan) (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected thereon, or
any part thereof (however, Developer shall not have any liability to City to the extent
that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same).
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
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(1) Failure by Developer to pay or cause to be paid, before delinquency, all
real property taxes assessed with respect to the Minimum Improvements
and the Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
5.2. Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 5.1 of this Agreement occurs and is continuing, City, as specified below, may take
any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) Until issuance of the Certificate of Completion, City shall be entitled to
recover from Developer the sum of all amounts expended by City in connection with
the funding of the Downtown Rehab Loan/Grant and Economic Development Grant
to Developer and City may take any action, including any legal action it deems
necessary, to recover such amounts from the Developer;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 Re -vesting Title in City Upon Happening of Event Subsequent to Conveyance to
Developer. In the event that, subsequent to conveyance of the Property to Developer by
City, and prior to receipt by Developer of the Certificate of Completion, but subject to the
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terms of the mortgage granted by Developer to secure a loan obtained by Developer from
a commercial lender or other financial institution to fund the acquisition of Property or
construction of the Minimum Improvements on Developer's Property (First Mortgage), an
Event of Default under Section 5.1 of this Agreement occurs and is not cured within the
times specified in Section 5.2, then City shall have the right to re-enter and take
possession of the Property and any portion of the Minimum Improvements thereon and to
terminate (and re -vest in City pursuant to the provisions of this Section 5.3 subject only to
any superior rights in any holder of the First Mortgage) the estate conveyed by City to
Developer, it being the intent of this provision, together with other provisions of this
Agreement, that the conveyance of the Property to Developer shall be made upon the
condition that (and the Deed shall contain a condition subsequent to the effect that), in the
event of default under Section 5.1 on the part of Developer and failure on the part of
Developer to cure such default within the period and in the manner stated herein, City may
declare a termination in favor of City of the title and of all Developer's rights and interests in
and to Property conveyed to Developer, and that such title and all rights and interests of
Developer, and any assigns or successors in interests of Developer, and any assigns or
successors in interest to and in Property, shall revert to City (subject to the provisions of
Section 5.3 of this Agreement), but only if the events stated in Section 5.1 of this
Agreement have not been cured within the time period provided above, or, if the events
cannot be cured within such time periods, Developer do not provide assurance to City,
reasonably satisfactory to City, that the events will be cured as soon as reasonably
possible. Notwithstanding the foregoing, however, City agrees to execute a Subordination
Agreement in favor of Developer's first mortgage lender, in a form reasonably acceptable
to City and to Developer's first mortgage lender.
5.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re -vesting in City
of title to the Property as provided in Section 5.3 of this Agreement, City shall, pursuant to
its responsibility under law, use its best efforts, subject to any rights or interests in such
property or resale granted to any holder of a First Mortgage, to resell the Property or part
thereof as soon and in such manner as City shall find feasible and consistent with the
objectives of such law and of the Urban Renewal Plan to a qualified and responsible party
or parties (as determined by City in its sole discretion) who will assume the obligation of
making or completing the Minimum Improvements or such other improvements in their
stead as shall be satisfactory to City and in accordance with the uses specified for such the
Property or part thereof in the Urban Renewal Plan. Subject to any rights or interests in
such property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on the
Property, or any portion thereof, or any improvements thereon, previously
acquiesced in by City pursuant to this Agreement. If more than one mortgage on
the Property, or any portion thereof, or any improvements thereon, has been
previously acquiesced in by City pursuant to this Agreement and insufficient
proceeds of the resale exist to pay the principal of, and interest on, each such
mortgage in full, then such proceeds of the resale as are available shall be used to
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pay the principal of and interest on each such mortgage in their order of priority,
or by mutual agreement of all contending parties, including Developer, or by
operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred by City,
including but not limited to salaries of personnel, in connection with the recapture,
management and resale of the Property or part thereof (but Tess any income derived
by City from the Property or part thereof in connection with such management); any
payments made or necessary to be made to discharge any encumbrances or liens
(except for mortgage(s) previously acquiesced in by the City) existing on the
Property or part thereof at the time of re -vesting of title . thereto in City or to
discharge or prevent from attaching or being made any subsequent encumbrances
or liens due to obligations, default or acts of Developer, its successors or
transferees (except with respect to such mortgage(s)), any expenditures made or
obligations incurred with respect to the making or completion of the Minimum
Improvements or any part thereof on the Property or part thereof, and any amounts
otherwise owing to City (including water and sewer charges) by Developer and its
successors or transferees; and
(4) Fourth, to reimburse Developer and Employer up to the amount equal to (1)
the sum of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property, less (2) any gains or income withdrawn or made by Developer or
Employer from this Agreement or the Property.
5.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
5.6 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
5,7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
16
5.8 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer may take any action, including legal, equitable or administrative
action that may appear necessary or desirable to collect any payments due under this
Agreement, to recover expenses of Developer, or to enforce performance and
observance of any obligation, agreement, or covenant of City under this Agreement.
Developer may suspend their performance under this Agreement until they receive
assurances from City, deemed adequate by Developer, that City will cure its default and
continue its performance under this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if
and when delivered in person or three (3) business days after having been deposited in
any U.S Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer: Weaver Castle, LLC
Attn: Danielle Stelpflug
7693 Pigeon River Road
Lancaster, WI 53813
With copy to: Drake Law Firm, P.C.
Flint Drake
2254 Flint Hill Dr
Dubuque, IA 52003
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13th Street
Dubuque IA 52001
or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on December 31, 2023 (the Termination Date).
17
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
CITY OF DU
By
UQUE, IOWA
Lei
Roy D. o
Mayor
Attes
Kevin S ` irnstahl
City Clerk
18
WEAVER CASTLE LLC
By
Danielle Stelpflug, Manager
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA
WEAVER CASTLE LLC
By
Roy D. Buol Danielle .1, Manager
Mayor -11rmscxn
Attest:
Kevin S. Firnstahl
City Clerk
18
(City Seal)
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this/ day of 2( before me the undersigned, a Notary
Public in and for the said CoGnty and State, personally appeared Roy D. Buol and Kevin S.
Firnstahl, to me personally known, who, being by me duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation
executing the instrument to which this is attached; that the seal affixed hereto is the seal of
said municipal corporation; that said instrument was signed and sealed on behalf of the
City of Dubuque, Iowa, by authority of its City Council; and that said Mayor and City Clerk
acknowledged the execution of said instrument to be the voluntary act and deed of said
City, o i, and by them voluntarily executed.
Notary Public
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
PAMELA J. McCARUON
Commission Nurrn cr 772419
My Comm. Exp. 4—S-_2c'L
On this day of 20_, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Danielle Stelpflug, to me
personally known, who, being by me duly sworn, did say that he is Manager of
Weaver Castle LLC. the limited liability company executing the instrument to which this is
attached and that as said Manager of Weaver Castle LLC. acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
Notary Public
19
(City Seal)
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20_, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin S.
Firnstahl, to me personally known, who, being by me duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation
executing the instrument to which this is attached; that the seal affixed hereto is the seal of
said municipal corporation; that said instrument was signed and sealed on behalf of the
City of Dubuque, Iowa, by authority of its City Council; and that said Mayor and City Clerk
acknowledged the execution of said instrument to be the voluntary act and deed of said
City, by it and by them voluntarily executed.
Notary Public
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
4)01441SONJ
On this 2J day of AtrOuSi— 2013, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Danielle ..Stelpfieg, to me
personally known, who, being by me duly sworn, did say that he is Manager of
Weaver Castle LLC. the limited liability company executing the instrument to which this is
attached and that as said Manager of Weaver Castle LLC. acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
IbNe rD1A075L15
CoBmAmRisizisloYnAlkiUH
My Comm. Exp.
19
LIST OF EXHIBITS
EXHIBIT A — City Attorney's Certificate
EXHIBIT B — Opinion of Developer's Counsel
EXHIBIT C — City Certificate
EXHIBIT D — Memorandum of Development Agreement
EXHIBIT E — Urban Renewal Plan
EXHIBIT F — Downtown Housing Incentive Program
EXHIBIT G - Planning and Design Grant Program
EXHIBIT H - Facade Grant Program
EXHIBIT I - Financial Consultant Grant Program
EXHIBIT J - Certification of Completion
EXHIBIT K — Warranty Deed
20
Y.N\BV1 P S�F�Cf
NBY S GER
21
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(DATE)
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement between (Developer)
and the City of Dubuque, Iowa (City) dated for reference purposes the day of
, 20_.
The City has duly obtained all necessary approvals and consents for its execution, delivery
and performance of this Agreement and has full power and authority to execute, deliver
and perform its obligations under this Agreement, and to the best of my knowledge, the
representations of the City Manager in his letter dated the day of , 20�,
are correct.
BAL:tls
22
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT B
OPINION OF DEVELOPER'S COUNSEL
23
Mayor and City Councilmembers
City Hall
13t and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , 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 , 2013.
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 Iowa and has full power and authority to execute, deliver and perform in full the
Development Agreement. The Development Agreement has been duly and validly authorized,
executed and delivered by Developer and, assuming due authorization, execution and delivery by
City, is in full force and effect and is a valid and legally binding instrument of Developer enforceable
in accordance with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
2. To our actual knowledge with no duty to inquire, the execution, delivery and
performance by Developer of the Development Agreement and the carrying out of the teitns thereof,
will not result in violation of any provision of, or in default under, the articles of incorporation and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment,
decree, order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. To our actual knowledge with no duty to inquire, there are no actions, suits or
proceedings pending or threatened against or affecting. Developer in any court or before any
arbitrator or before or by any governmental body in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business (present or prospective),
financial position or results of operations of Developer or which in any manner raises any questions
affecting the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
This opinion is rendered for the sole benefit of the City of Dubuque and no other party may rely on
this opinion.
24
This opinion is rendered and valid as of the date of this letter and we have no duty to update this
opinion for any matters which come to our knowledge after the date of this letter.
Sincerely,
25
G O1Y
G
26
City Miubiger's Office
50 `Vest 13th Street
Dubuque, T Dura 52001-4354
(563) 589-4110phone
(553);589-4149' Fax
gr oatyofdubuqua.ory
Dear
(DATE)
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the day of , 20
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
27
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
MCVM:jh
28
Sincerely,
Michael C. Van Milligen
City Manager
1' ��MENT
EX�vE�pPMENT PGR
RPNo �'0
MEMS
29
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 Weaver Castle LLC. was made regarding the following
described premises:
ii
LOT 5 OF LOTS 10 & 11 & SE 26.9' OF LOT 12 COOLEY'S SUB
AND
NW 23.3' OF LOT 12 & SE 8.3' OF LOT 13 COOLEYS SUB 348-348 1/2 W LOCUST
ST
The Development Agreement is dated for reference purposes the day of
2013, 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 , 2013.
CITY OF DUBUQUE, IOWA WEAVER CASTLE LLC.
By By
Roy D. Buol
Mayor
Attest:
Danielle Stelpflug, Manager
Kevin S. Firnstahl
City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
COUNTY OF DUBUQUE
)
)
)
SS
On this day of 20_, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Danielle Stelpflug, to me
personally known, who, being by me duly sworn, did say that he is Manager of Weaver
Castle LLC., the limited liability company executing the instrument to which this is attached
and that as said Manager of Weaver Castle LLC., acknowledged the execution of said
instrument to be the voluntary act and deed of said company, by it and by him voluntarily
executed.
Notary Public, State of Iowa
31
e Vrbar`
EXRevle a\ P\a
32
Prepared by:
Return to:
Phil Wagner, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589-4393
Kevin S. Firnstahl, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589-4121
AMENDED and RESTATED
URBAN RENEWAL PLAN
Greater Downtown Urban Renewal District
(A merger of the Downtown Dubuque, Ice Harbor, Kerper Boulevard, East 7th Street
and Quebecor Urban Renewal Districts)
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan for the Greater Downtown Urban
Renewal District traces its beginnings to 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. The Urban Renewal
Plan for the Greater Downtown Urban Renewal District resulting from that merger was
later amended by Resolution 170-04 on April 19, 2004, by Resolution 391-06 on August
21, 2006, by Resolution 108-07 on February 20th, 2007, by Resolution 597-07 on
December 17, 2007, by Resolution 300-08 on September 2, 2008, by Resolution 393-09
on October 5, 2009, and by Resolution 26-10 on July 19, 2010. On May 2, 2011 the
Kerper Boulevard Industrial Park Economic Development District originally established
by Resolution 274-94 on August 15, 1994 and the East 7th Street Economic Development
District, originally established by Resolution 144-97 on April 7, 1997 were merged into and
became part of the Greater Downtown Urban Renewal District, pursuant to Resolution
155-11 approved on May 2, 2011. The Quebecor Economic Development District,
originally established by Resolution 479-02 on September 16, 2002, was merged into and
became part of the Greater Downtown Urban Renewal District pursuant to Resolution
271-12 approved on October 1, 2012. The Urban Renewal Plan for the Greater
Downtown Urban Renewal District resulting from that merger and amendment was
thereafter amended and restated by Resolution -13 on June 03, 2013.
33
EXHIBIT F
DOWNTOWN HOUSING INCENTIVE PROGRAM
34
Economic Development
Department
City Hall — Second Floor
50 West 13th Street
Dubuque, Iowa 52001-
4864 (563) 589-4393
Office
(563) 589-1733 Fax
(563) 589-6678 TDD
Masterpiece ece an"'the Mississippi
DOWNTOWN HOUSING INCENTIVE
PROGRAM
David J. Heiar
Economic Development Director
dheiar(a�cityofdubuque.orq
October 30, 2012
Phil Wagner
Asst. Economic Development Director
pwagneracityofdubuque.orq
50 West 13th Street
Dubuque, IA 52001
563-589-4393
Projects eligible to receive assistance from this established pool of funds must meet the following
requirements:
• The project must assist in the creation of new market -rate downtown rental and/or owner -
occupied residential units within the Greater Downtown Urban Renewal District.
• The project must be the rehabilitation of an existing structure.
• Within the Washington Neighborhood, rental units must be located above a commercial
component on the first floor of the building unless the project is rehabilitating or reusing a former
church or school building.
• Exterior alterations are subject to design review and approval. The Historic District Guidelines
shall apply to projects located in Historic Preservation District. The Downtown Design Guidelines
shall apply to all other project locations. Projects which conform to the applicable guidelines may
be reviewed and approved by the City Planner. Projects that do not strictly conform to the
applicable guidelines will be forwarded to the Historic Preservation Commission (HPC) for
consideration. New construction or substantial rehabilitation projects may also be considered by
the HPC. The process for review is at the discretion of the City Planner. Guidelines can be
viewed and downloaded at http://www.cityofdubuque.org/design guidelines.
• Any signs on the property that do not comply with City zoning regulations and design guidelines
must be included in the design review and improved to comply with applicable City Codes.
Submittal must include the design materials and colors that will be used on the sign face, how the
sign will be displayed, and any lighting proposed.
• Include detailed drawing of the proposed project. The plans should include dimensions and
architectural details and label materials. Plans prepared by a design professional (e.g. architect
or draftsperson) are strongly recommended. Applications without detailed drawings will not be
considered complete and will not be accepted by the City.
35
• Deviation from an approved project plan may disqualify the project from the program.
▪ Preference will be given to projects that also utilize Federal and/or State Historic Tax Credits.
• No more than $10,000 in assistance will be considered per residential unit.
• In general, no more than $750,000 will be provided to a single project.
• No developer fee will be permitted until all city assistance is paid or satisfied in full.
• The City will disperse awarded funds for the benefit of the project once the project is
completed and a Certificate of Occupancy has been given for the housing units.
Each approved project will also be eligible to receive site-specific Tax Increment
Financing (TIF) for up to a 10 year period, depending on the project type and scope.
• A minimum of 2 new housing units must be created in the project.
• Units smaller than 650 square feet will not be eligible for this project.
• No residential units will be allowed to have a restriction of less than 80% of the median income.
• No more than 65% of the units of any project can have a restriction of 80% of the median
income.
• A project that is funded by Low Income Tax Credits (LITC) is not eligible.
• The owner(s) of the property must certify that all other property in the City of Dubuque in which
the owner(s) has any interest, complies with all applicable City of Dubuque ordinances and
regulations, including, but not limited to, housing, building, zoning, fire, health, and vacant and
abandoned building regulations.
36
EXHIBIT G
PLANNING AND DESIGN GRANT PROGRAM
37
PLANNING AND DESIGN GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for hiring
architects, engineers or other professional services used prior to construction.
Amount of Grant:
1:1 matching grant not to exceed ten thousand dollars
($10,000) per building may be awarded by the City to offset the
actual pre -development costs. (Example: $8,500 in eligible
project costs would receive $4,250 grant matched by $4,250 in
private contribution; $20,000 or greater eligible project costs
would receive the maximum $10,000 grant.)
Grant Specific Conditions:
• Reimbursement is for architectural and engineering fees, feasibility studies,
environmental assessments or other related soft costs.
• Reimbursable expenditures must be documented.
• Owner / developer fees are not permitted as reimbursable expenditures.
• The grant shall not exceed ten percent (10%) of total project costs.
• Grants will be dispersed upon completion of the project at a rate of $0.50 for
each $1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
38
39
FACADE GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for front or
rear facade renovation to restore the facade to its historic appearance, or improve the
overall appearance.
Amount of Grant:
1:1 matching grant not to exceed ten thousand dollars
($10,000) shall be awarded by the City to qualifying projects
based on total eligible project costs. (Example: $8,500 in
eligible project costs would receive a $4,250 grant matched by
$4,250 in private contribution; $20,000 or greater eligible
project costs would receive the maximum $10,000 grant.)
Grant Specific Conditions:
• Reimbursement is for labor and material costs associated with facade
improvements, including, but not limited to rehabilitating or improving
windows, paint, signage, or awnings to enhance overall appearance.
• Landscaping or screening with fencing or retaining walls may be a
reimbursable expense if a determination is made that property is improved
adjacent to public right-of-way.
• In order to receive reimbursement for repointing, a mortar analysis sample
must be provided for each facade that will be repointed. The applicant must
adhere to the results of that analysis in their rehabilitation work as part of
their approved project plan. The City may request verification that the new
mortar matches the results of the mortar analysis.
• Language from the National Park Service Technical Preservation Services
Briefs may be attached as a condition for a building permit if the applicant
chooses to perform repointing on the project.
• Reimbursable expenditures must be documented.
• Grants will be dispersed upon completion of work at a rate of $.50 for each
$1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
40
EXHIBIT I
FINANCIAL CONSULTANT GRANT PROGRAM
41
FINANCIAL CONSULTANT GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for hiring a
financial consultant to analyze the feasibility of projects.
Amount of Grant:
1:1 matching grant not to exceed fifteen thousand dollars
($15,000) shall be awarded to qualifying projects based on
total eligible project costs. (Example: $8,500 in eligible project
costs would receive a $4,250 grant matched by $4,250 in
private contribution; $30,000 or greater eligible costs would
receive the maximum $15,000 grant.)
Grant Specific Conditions:
• Reimbursement is for fees associated with hiring a professional financial
consultant.
• Reimbursable expenditures must be documented.
• The grant shall not exceed ten percent (10%) of total project costs.
• The rehabilitation project must be completed for the Financial Consultant
Grant to be funded.
• Grants will be dispersed upon completion of work at a rate of $.50 for each
$1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
42
43
Prepared By: David J. Heiar 50 West 13th Street Dubuque, IA 52001 563-589-4393
Return to: David J. Heiar 50 West 13th Street Dubuque, IA 52001 563-589-4393
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"), has
granted incentives to Weaver Castle, LLC (the "Grantee"), in accordance with a
Development Agreement dated as of [Date] (the "Agreement"), certain real property located
within the Greater Downtown Urban Renewal District of the Grantor and as more
particularly described as follows:
LOT 5 OF LOTS 10 & 11 & SE 26.9' OF LOT 12 COOLEY'S SUB
AND
NW 23.3' OF LOT 12 & SE 8.3' OF LOT 13 COOLEYS SUB 348-348 1/2 W LOCUST ST
(the "Development Property"); and
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions with respect to the rehabilitation of the Development Property, and obligated the
Grantee to construct certain Minimum Improvements (as defined therein) in accordance
with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements in a
manner deemed sufficient by the Grantor to permit the execution and recording of this
certification; and
NOW, THEREFORE, pursuant to Section 2.5 of the Agreement, this is to certify that
all covenants and conditions of the Agreement with respect to the obligations of the
Grantee, and its successors and assigns, to construct the Minimum Improvements on the
Development Property have been completed and performed by the Grantee to the
satisfaction of the Grantor and such covenants and conditions are hereby satisfied.
The Recorder of Dubuque County is hereby authorized to accept for recording and to
record the filing of this instrument, to be a conclusive determination of the satisfaction of
the covenants and conditions as set forth in said Agreement, and that the Agreement shall
otherwise remain in full force and effect.
(SEAL) CITY OF DUBUQUE, IOWA
44
By:
Mike Van Milligen, City Manager
45
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 2013, before me, the undersigned, a notary public
in and for the State of Iowa, personally appeared and
acknowledged the execution of the instrument to be his/her voluntary act and deed.
Notary Public in and for
Dubuque County, Iowa
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