Adams Co. -W. Briggs Development
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MEMORANDUM
November 30, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Development Agreement for the Port of Dubuque Adams Development
Project
The City has been working with the Port of Dubuque Adams Development, LLC ryvayne
Briggs) to negotiate the reuse of the Adams Company building (17,675 sq ft) and for the
construction of 310,000 sq ft of new multi-use buildings on adjoining property with a
total estimated value of $63 million.
This phase of the Port of Dubuque Development including:
. Durrant Group
. Wayne Briggs' multi-use development
. Dubuque County Historical Society museum expansion
. Diamond Jo
. Brewery
. Transient Boat Docks
. Public Parking
will exceed $200 million, more than the $188 million in America's River Phase I. It will
be done with less State and local participation than the first phase and lead to much
greater taxable value.
Economic Development Director Dave Heiar recommends that a public hearing be set
for January 16, 2007 for the City Council to approve a Development Agreement for the
former Adams Company building and adjoining property along 5th and Bell Streets in the
Port of Dubuque.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
(174;/ {~1,(tl{( _
Michael C. Van Milligen -
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
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MEMORANDUM
November 27,2006
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director ~'ft'\
SUBJECT: Development Agreement for the Port of Dubuque Adams
Development Project
INTRODUCTION
This memorandum provides for Council consideration a development agreement of the
former Adams Company building and adjoining property along 5th and Bell Streets in the
Port of Dubuque. A resolution is attached allowing competitive proposals and setting a
public hearing for the sale of this property.
BACKGROUND
Staff has been working with the Port of Dubuque Adams Development, LLC ryvayne
Briggs) to negotiate the reuse of the Adams Company building and for the construction
of 310,000 sq ft of new multi-use buildings on adjoining property.
The attached Development Agreement establishes the proposed terms. The key
elements of this agreement include the following;
1. The sale of the property will occur in up to 4 phases (see exhibit B of development
agreement). Phase I is the Adams Company building site. This portion of the
property was appraised as required by the EDA. The appraised value of the building
which includes approximately 28,875 sq ft of property was established at $388,000.
This value does not include the remaining four acres of the former Adams Company
site. The Developer may decide to purchase a reduced area around the building
which would also reduce the acquisition cost.
Phase II is approximately 56,500 sq ft of land, Phase III 28,000 sq ft of land, and
Phase IV 22,800 sq ft of land. This bare land will be sold for $10/sq ft.
($435,600/acre). The developer plans to construct mixed use buildings on these
sites. The first floor will be for retail use, the second and third floors will be office
space, and the fourth, fifth and sixth floors will be residential condominiums.
2. In Phase I, the former Adams Company building will be substantially reconstructed
at an estimated cost of $3 million. It is anticipated that the building will become the
national headquarters for the Durrant Group which will retain their current
employment base of 49 positions and create 10 new positions within three years as
part ofthis agreement. These positions must be retained for seven additional years
after the initial 36 months. This phase of the project is contingent upon State
financial assistance. Staff is currently working with company representatives to
prepare applications for financial assistance which will be coming to the City Council
for consideration at a future meeting.
3. To accommodate Phase I of the proposed project, the Developer will also have a
non-exclusive lease of a city owned and operated parking area adjacent to the
former Adams Company building consisting of approximately 75 parking spaces.
The Developer will be responsible for constructing the parking area to accommodate
the parking requirements of the building sub-tenants. The tenants will be allowed to
use the parking area from 7:00 a.m. to 5:00 p.m. Monday thru Friday except on
holidays. On all other days and times the parking lot will be available to anyone. The
City will retain ownership and be responsible for maintenance of the parking area.
4. The City currently has a contract with Tri-Con Construction for roof repairs to the
former Adams Company. This repair project was being funded by an EDA grant and
matched by the Dubuque County Historical Society. This contract will need to be
terminated at a cost of $90,583. $72,145 of this amount is for materials on site. The
Developer will reimburse the City for any of the materials on site that they intend to
use. Based on the termination agreement with the Dubuque County Historical
Society when they ended their lease of the Adams Company property, the balance
of cost will be paid by the Dubuque County Historical Society.
5. Developer estimates the building improvements associated with Phase I and the
new construction associated with Phases 2, 3, and 4 will cost approximately $63
million. All improvements must meet the Port of Dubuque Design Standards. The
time frames for each phase of this proposal are detailed in section 13 and Exhibit I of
the Development Agreement and are summarized as follows:
Phase
1
2
Closin
Within 60 days of Development
A reement a roval
Not later than 9 months from approval
of develo ment a reement
Within 3 months of substantial
com letion of Phase 2
Within 3 months of substantial
completion of Phase 3
Com letion
Not later than 15 months after closing
date
Must be substantially complete within
24 months of closin date
Must be substantially complete within
15 months of closin
Must be substantially complete within
15 months of c10sin .
3
4
The Developer has the option to extend time frames for Phases 3 and 4 depending
on the timing of construction of an adjoining parking ramp by the City.
6. Prior to closing, should any phase require environmental remediation, the costs will
be shared as follows;
City shall pay the first $100,000 of the remediation costs;
Remediation costs exceeding the difference between $100,000 and two times
the Purchase Price shall be shared by the parties as follows:
a) City of Dubuque 50%
b) Port of Dubuque Adams Development LLC 50%
City's total share of the remediation costs shall not exceed the purchase price.
The Developer shall be solely responsible for the remainder of the remediation
costs.
7. A 2001 Redevelopment Strategy report prepared by the Leland Consulting Group
indicated that public investment would be required to help offset high development
costs associated with Port properties. To assist with this redevelopment in the Port
of Dubuque, tax rebates have been offered to the Developer. The rebates are a form
of tax increment financing without issuing a tax increment finance bond to loan
monies to the company upfront. As the developer pays the future tax obligation on
the new improvements, the City will rebate a percentage (minus debt service and the
School District Physical Plant and Equipment Levy) of the new TIF increment for up
to 10 years.
In Phase I (Durrant portion of the project) the rebate is for 100% of the increased
valuation for 10 years. This rebate will be prorated if the company does not maintain
and create the jobs pledged in the development agreement.
In Phase II, the rebate is decreasing for five years and is not tied to job creation. The
proposed rebate is as follows:
Year Rebate
1 100%
2 80%
3 60%
4 40%
5 20%
In Phase III the 5 year decreasing rebate will be based on the following schedule:
Year Rebate
1 80%
2 70%
3 60%
4 50%
5 30%
In Phase IV the 5 year decreasing rebate will be based on the following schedule:
Year Rebate
1 75%
2 60%
3 45%
4 30%
5 15%
8. If a parking ramp is constructed on City property adjacent to Phases 2-4, the
developer shall be allowed to use this ramp to accommodate the needs of the multi-
use project. The City may charge fees for this privilege. There will be some reserved
parking, with associated fees for the residential condominiums. If Phase II of the
multi-use project is completed prior to the construction of the parking ramp, the City
will construct and provide temporary parking directly west of the McGraw Hill parking
lot.
Additional terms and conditions of the sale of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council set for public hearing for the competitive disposition
of the former Adams Company building and adjoining property, for the purpose of
selling these sites to the Port of Dubuque Adams Development, LLC. This action
supports the Council's objectives to redevelop the Port of Dubuque and create new
jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:IUSERSIDHeiarlMemos to MVMICouncilltemslDevelopment Agreement for the Dubuque Star Brewery Project. doc
Prepared by: Barry A. Lindahl 300 Main Street Dubuque Suite 330 IA 52001 563583-4113
Return to: Barry A. Lindahl 300 Main Street Dubuque Suite 330 IA 52001 563 583.4113
OFFICIAL NOTICE
RESOLUTION NO. 579-06
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS,
COMPETITIVE CRITERIA, AND OFFERING PROCEDURES FOR THE
DEVELOPMENT OF CERTAIN REAL PROPERTY AND IMPROVEMENTS
IN THE GREATER DOWNTOWN URBAN RENEWAL DISTRICT; (2)
DETERMINING THAT THE DEVELOPMENT AGREEMENT SUBMITTED
BY PORT OF DUBUQUE ADAMS DEVELOPMENT, LLC SATISFIES THE
OFFERING REQUIREMENTS WITH RESPECT TO THE REAL PROPERTY
AND IMPROVEMENTS AND DECLARING THE INTENT OF THE CITY
COUNCIL TO APPROVE THE DEVELOPMENT AGREEMENT WITH
PORT OF DUBUQUE ADAMS DEVELOPMENT, LLC IN THE EVENT THAT
NO COMPETING PROPOSALS ARE SUBMITTED; AND (3) SOLICITING
COMPETING PROPOSALS.
Whereas, the City Council of Dubuque, Iowa, did on April 19, 2004 adopt an
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District ("the Plan") for the Urban Renewal Area described therein; and
Whereas, the Plan provides, among other things, forthe disposition of properties for
private development purposes as a proposed economic development action; and
Whereas, Port of Dubuque Adams Development, LLC ("Developer") has submitted
to the City a Development Agreement with a proposal for the purchase of certain real
property and improvements hereinafter described and owned by the City of Dubuque for
the renovation of the former Adams Company Building and construction of new multi-use
building as described therein ("the Development Agreement"), together with the request
that this property be made available for purchase as rapidly as possible; and
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Whereas, the real estate is located in Lot 1 and Lot 2 in Adams Company 2nd
Addition, in the City of Dubuque, Iowa, according to the recorded Plat thereof,
subject to easements and restrictions of record as shown on Exhibit B attached to
the Development Agreement and attached hereto; 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 tendered the Development Agreement with the City,
attached hereto as Exhibit "A"; and
Whereas, to recognize both the firm proposal for renovation of the real property and
construction of additional buildings, as described above, and to give full and fair opportunity
to other developers interested in submitting a proposal for the use of the property, this
Council should by this Resolution:
1) Set the fair market value of the real property for uses in accordance with the
Plan;
2) Approve the minimum requirements and competitive criteria included herein;
3) Approve as to form the Development Agreement attached hereto as Exhibit
nAil;
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 purchase of the real property and improvements
on the terms and conditions set forth herein; and
7) Declare that in the event another qualified proposal is timely submitted and
accepted, another and future notice will be published on the intent of the City
to enter into the resulting contract, as required by law;
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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 real property as set forth herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the real property located in Lot 1 and Lot 2 in Adams Company
2nd Addition, in the City of Dubuque, Iowa, according to the recorded Plat thereof, subject
to easements and restrictions of record described in Exhibit "B" attached to the
Development Agreement and attached hereto located in the Port of Dubuque and
delineated generally by Third Street on the south, 4th Street on the west, Bell Street on the
east and 5th Street on the north ("the Property") shall be offered for sale in accordance with
the terms and conditions contained in this Resolution.
Section 2.
for selection, any
requirements:
That it is hereby determined that in order to qualify for consideration
person must submit a proposal which meets these minimum
a) Contains an agreement to purchase the Property at not less than fair market
value established herein;
b) Contains a commitment to purchase the Property for uses allowed in the Port
of Dubuque;
c) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in performance of
contract obligations in carrying out projects of similar scale and character;
and
d) Meets, at a minimUm, the terms and conditirons of the Development
Agreement submitted by the Developer including an agreement to
rehabilitate the Property into a mixed-use retail/office/residential complex at
a total project cost of not less than $60,000,000 and develop, construct and
pay for a parking lot adjacent to the former Adams Company 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:
a) Purchase price;
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b) Construction of minimum improvements within a timely matter;
c) City participation;
d) Developer obligations; and
e) General terms and conditions
Section 5. That the Development Agreement submitted by the Developer satisfies
the requirements of the offering and, in the event that no other qualified proposals are
timely submitted that the City Council intends to accept and approve the Development
Agreement and sale of the Property.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to purchase the Property and
to manage and operate the Property in the manner proposed by this offering in accordance
with the Plan.
Section 7. That the purchase price for the Property offered by the Developer are
hereby found and determined to be the fair market value of the interest being conveyed.
Section 8. 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 9. That the action of the City Council be considered to be and does
hereby constitute notice to all concerned of the intention of this Council, in the event that
no other qualified proposals are timely submitted, to accept the proposal of the Developer
to purchase the Property and to approve th", I)evelopment Agreement-by and between City
and Developer.
Section 10. That the official notice of this offering and of the intent of the City, in
the event no other qualified proposals are timely submitted, to approve the Development
Agreement, shall be a true copy of this Resolution, but without the attachments referred to
herein, except Exhibit B.
Section 11. 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 8th day of December, 2006.
Section 12. That written proposals for the lease or purchase of the Adams
Company Property will be received by the City Clerk at or before 10:00 a.m., January 9,
2007 in the Office of the City Clerk, located on the first floor at City Hall, Dubuque, Iowa
4
52001. Each proposal will be opened at the hour of 10:00 a.m. in City Hall, Dubuque, Iowa
on January 9,2007. Said proposals will then be presented to the City Council at 6:30 p.m.,
January 16, 2007, at a meeting to be held in the Auditorium of the Carnegie-Stout Public
Library, Dubuque, Iowa.
Section 13. That such offering shall be in substantial conformance with the
provisions of Iowa Code Section 403.8, requiring reasonable competitive bidding
procedures as are hereby prescribed, which method is hereby determined to be the
appropriate method for making the Property available for sale.
Section 14. That the required documents for the submission of a proposal shall be
in substantial conformity with the provisions of this Resolution.
Section 15. That the City Clerk is hereby nominated and appointed as the agent of
the City of Dubuque, Iowa to receive proposals for the sale of the Property at the date and
according to the procedure hereinabove specified for receipt of such proposals and to
proceed at such time to formally acknowledge receipt of each of such proposals by noting
the receipt of same in the Minutes of the Council; that the City Manager is hereby
authorized and directed to make preliminary analysis of each such proposal for compliance
with the minimum requirements established by this Council hereinabove. For each
proposal that satisfies these requirements, the City Council shall judge the strength of the
proposal by the competitive criteria established hereinabove. The City Council shall then
make the final evaluation and selection of the proposals.
Section 16. That in the event another qualified proposal is timely submitted and
accepted by the City, another and further notice shall be published of the intent of the City
of Dubuque, Iowa, to enter into the resulting agreement, as required by law.
Passed, approved and adopted this 4th day of December, 2006.
!) iLl
eanne F. Schneider
City Clerk
F:\USERS\DHeiar\Port of Dubuque Adams Development LLC\Port of Dubuque Adams Development Competitive Resolution.doc
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Development Agreement
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DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
PORT OF DUBUQUE ADAMS DEVELOPMENT, L.L.C.
AND
THE DURRANT GROUP, L.L.C.
This Development Agreement (Agreement), dated for reference purposes the
_ day of , 2006 between the City of Dubuque, Iowa, a municipality (City),
acting under authorization of Iowa Code Chapter 403, as amended (Urban Renewal
Act), and Port of Dubuque Adams Development, L.L.C., an Iowa limited liability
company, with its principal place of business at Dubuque, IA (Adams Development)
and The Durrant Group, Inc. (Durrant Group) (as to Section 1.1, 17.1 and 17.2).
SECTION 1. RECITALS. In furtherance of the objectives of the Urban Renewal Act,
City has undertaken an Urban Renewal project to advance the community's ongoing
economic development efforts, specifically, Adams Development desires to: (i)
rehabilitate and reconstruct a portion of the old Adams Company building located on the
property (as defined below) for use as an office building as described herein (the
Durrant Project also referred to as Phase I on Exhibit B hereto); and (ii) construct a
multi-use building for retail, commercial, office space and residential purposes as
described herein (the Multi-Use Project also referred to as Phases II, III and IV on
Exhibit B hereto) (the Durrant Project and the Multi-Use Project are sometimes referred
to as the "Project", if the context requires) in the Port of Dubuque, Dubuque, Iowa (the
Project Area) as shown on the Site Plan, Exhibit B attached hereto and incorporated
herein by reference. 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 Port of Dubuque Economic Development District, approved by
City Council of City on April 19, 2004, and as subsequently amended through and
including the date hereof, (attached as Exhibit A)(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.
1.1. With respect to the Durrant Project, Durrant Group has determined that it
requires a new office building to maintain and expand its operations and employment,
which office building Durrant Group represents will be a regional office facility for a
multistate business, and the parties desire that the old Adams Company building be
rehabilitated/reconstructed to provide the necessary office space for Durrant Group.
Adams Development is prepared to develop the Durrant Project in the Project Area for
lease to the Durrant Group. Adams Development has requested that City sell to Adams
Development certain real estate consisting of 0.6152 acres (26,800 sq. feet) (Le. the
footprint for the completed Durrant Project) depicted on the drawing attached as Exhibit
B and by this reference made a part hereof, together with all easements, tenements,
1
hereditaments, and appurtenances belonging thereto (the Durrant Project Property) so
that Adams Development may develop the Durrant Project Property, located in the
Project Area, as an office building with appurtenant uses which City has determined and
represented to Adams Development is in accordance with the uses specified in the
Urban Renewal Plan and in accordance with this Agreement.
The Durrant Project Property is part of that real estate legally described as:
Lot 1 and Lot 2 in Adams Company 2nd Addition, in the City of
Dubuque, Iowa, according to the recorded Plat thereof, subject to
easements and restrictions of record (the "Property").
The parties agree to amend Exhibit B upon determination of the exact location and
extent of the Durrant Project Property and legal description thereof.
1.2. Adams Development desires to construct the Multi-Use Project (in phases as
described in section 13) upon the Property and has requested that City sell (in phases)
to Adams Development that portion of the Property consisting of approximately 2.463
acres (Phase 11-56,500 sq. feet, Phase 111-28,000 sq. feet, Phase IV-22,800 sq. feet,
Total-107,300 sq. feet) (Le. the footprint for the Multi-Use Project) depicted on the
drawing attached as Exhibit B and by this reference made a part hereof, together with
all easements, tenements, hereditaments and appurtenances belonging thereto (the
Multi-Use Project Property). The parties agree to amend Exhibit B upon determination
of the exact location and extent of the Multi-Use Project Property and legal description
thereof.
1.3. City believes that the development of the Durrant Project Property and the Multi-
Use Project Property pursuant to this Agreement, and the fulfillment generally of this
Agreement, are in the vital and best interests of City and in accord with the public
purposes and provisions of the applicable federal, state and local laws and the
requirements under which the applicable Project has been undertaken and is being
assisted.
Therefore, in consideration of the premises and the mutual obligations of the parties
hereto, each of them does hereby covenant and agree with the other as follows below.
SECTION 2. CONVEYANCE OF PROPERTY TO ADAMS DEVELOPMENT -
DURRANT PROJECT.
2.1. Purchase Price. Subject to the terms and conditions herein:
The purchase price for the Durrant Project Property (the "Durrant Purchase Price") shall
be the sum of Three Hundred Eighty-Eight Thousand & 00/100 Dollars ($ 388,000.00)
prorated to actual footprint purchased, which shall be due and payable by Adams
Development in immediately available funds in favor of City, on February 1 , 2007, or
on such other date as the parties may mutually agree (the Durrant Closing Date). The
2
purchase price for the Multi-Use Project Property (the Multi-Use Purchase Price) shall
be the sum of Four Hundred Thirty-Five Thousand Six Hundred & 00/100 Dollars
($435,600.00) per acre, which shall be due and payable by Adams Development in
immediately available funds in favor of the City on the "Multi-Use Closing Dates." The
"Multi-Use Closing Dates" shall be as described in Section 13.3 below. It is anticipated
that the Multi-Use Property will be conveyed in phases as described in section 13.3. As
the context may require, the Durrant Purchase Price or the Multi-Use Purchase Price
may be referred to as the "Purchase Price",
2.2. Title to Be Delivered. At the Durrant Closing Date (with respect to the Durrant
Project Property) and at each of the Multi-Use Closing Date(s) (with respect to the Multi-
Use Project Property), City agrees to convey good and marketable fee simple title in the
Durrant Project Property and the applicable portion of the Multi-Use Project Property, as
the case may be, to Adams Development subject only to easements, restrictions,
conditions and covenants of record as of the date hereof to the extent not objected to by
Adams Development as set forth in this Agreement, and to the conditions subsequent
set forth in Section 4, below:
(1) City, at its sole cost and expense, shall deliver to Adams Development an
abstract of title to the Durrant Project Property and the Multi-Use Project Property
continued through the date of this Agreement reflecting merchantable title in City
in conformity with this Agreement, applicable State law and the Title Standards of
the Iowa State Bar Association and sufficient for a title company selected by
Adams Development to issue, at Adams Development's expense, an AL TA form
owner's and lender's policy of title insurance in form and substance satisfactory
to Adams Development. The abstract shall be delivered together with full copies
of any and all encumbrances and matters of record applicable to the Durrant
Project Property and the Multi-Use Project Property, and such abstract shall
become the property of Adams Development when the Durrant Purchase Price
or the Multi-Use Purchase Price, as the case may be, is paid in full in the manner
as aforesaid. The abstract(s) will be updated through a date within thirty (30)
days of the Durrant Closing Date and through each of the Multi-Use Closing
Date(s), as applicable.
(2) Adams Development shall have until the Durrant Closing Date to render
objections to title with respect to the Durrant Project Property and shall have until
the Multi-Use Closing Date(s) to render objections to title with respect to the
Multi-Use Project Property, including any easements or other encumbrances not
satisfactory to Adams Development, in writing to City. Adams Development
agrees, however, to review the Abstract promptly following Adams
Development's receipt of Adams Development's land survey and the Abstract
and to promptly provide City with any objections to title identified therein.
Nothing herein shall be deemed to limit Adams Development'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 City. City shall promptly exercise its best efforts to have such title objections
3
removed or satisfied and shall advise Adams Development of intended action
within ten (10) days of such action. If City shall fail to have such objections
removed as of the applicable Closing, or any extension thereof consented to by
Adams Development, Adams Development may, at its sole discretion, either (1)
terminate this Agreement as to the Durrant Project or the applicable phase of the
Multi-Use Project, as the case may be, without any liability on its part, or (2) take
title subject to such objections. City agrees to use its best reasonable efforts to
promptly satisfy any such objections. City acknowledges that Adams
Development needs to acquire the Durrant Project Property and commence
construction as provided in Section 10.3, and the Multi-Use Project Property as
described in Section 13 in order to meet construction and delivery deadlines, and
City agrees to exercise its best reasonable efforts to facilitate completion of City's
duties under this Agreement in order to accommodate a Closing before such
date.
2.3. Rights of Inspection, Testing and Review. Adams Development, 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. Adams Development
and its agents and representatives shall also have the right to enter upon the Property
at any time after the execution and delivery hereof for any purpose whatsoever,
including inspecting, surveying, engineering, test boring, performance of environmental
tests and such other work as Adams Development shall consider appropriate, provided
that Adams Development 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
Adams Development, 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) Environmental Investigation. Adams Development shall have the right
to inspect the Property prior to the applicable Closing Date and to take whatever
tests or perform such examination, as Adams Development shall deem
appropriate, at its own risk and its sole cost and expense, to evaluate the
environmental condition of the Property and allow City to make the environmental
determinations required herein. Prior notice of such activity by Adams
Development shall be provided to City and written results of such activity shall be
shared with City. Adams Development shall not disclose the information from
the investigation or the report of the investigation to any party prior to the
applicable Closing, other than City without the prior consent of City except as
required by law, and except that to the extent that such information is necessary
to Adams Development's architects, engineers, surveyors, and contractors,
provided, however, that prior to disclosure to any such person, Adams
Development shall require such person to execute a confidentiality agreement, in
a form acceptable to City, in which such persons agrees not to disclose such
information to any other person.
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(2) Remediation. Prior to the applicable Closing (meaning any Phase
hereunder), if City or Adams Development determines, after consideration of the
advice of their respective environmental consultant and/or the advice of state or
federal environmental regulatory agencies, or if any applicable law requires that
the concentrations of Hazardous Substances on the Property require removal
and/or remediation (Remediation) prior to construction of any of the applicable
Minimum Improvements, then City shall retain, at its sole cost and expense, an
environmental consultant to prepare a plan (Environmental Remediation Plan) for
the removal and/or remediation of the identified Hazardous Substances as
required by law and/or applicable environmental agency or agencies. The
Environmental Remediation Plan shall provide for the removal and/or
remediation of the identified Hazardous Substances to a level sufficient to allow
construction of the applicable Minimum Improvements. The Environmental
Remediation Plan shall include an estimate of the total costs of conducting the
removal and/or remediation (Remediation Costs) to allow such construction. The
estimate of costs shall be based on the cost of local contractors, provided local
contractors are qualified and available to perform such work. The estimate of
costs shall not include internal staff costs to City. In lieu of preparing the
Environmental Remediation Plan, either party, in its sole discretion, may elect to
terminate this Agreement upon thirty (30) days written notice to the other, without
any further obligation on the part of Adams Development or City. In addition,
within sixty (60) days after receipt of the Environmental Remediation Plan, either
party may elect to terminate this Agreement upon written notice to the other party
without any further obligations on the part of Adams Development or the City.
(3) Cap on Remediation Costs for City. If after submitting a Remediation
Plan to City, it is reasonably determined by the City Council of City, based upon
the recommendation by its environmental consultant, that the Remediation Costs
necessary to allow construction of the applicable Minimum Improvements will
exceed two times the Durrant Purchase Price or two times the Multi-Use
Purchase Price, as the case may be, then City shall have the option to terminate
this Agreement within thirty (30) days after receiving the Environmental
Remediation plan or thirty (30) days after receipt of state or federal
environmental agency approval, if such approval is required or sought by City,
whichever date occurs later. If it is reasonably determined by the City Council
that the Remediation Costs necessary to allow construction of the applicable
Minimum Improvements will not exceed two times the Durrant Purchase Price or
two times the Multi-Use Purchase Price, as the case may be, then City agrees to
share the costs of such removal and/or remediation with Adams Development as
follows:
(i) City shall pay the first $100,000 of the Remediation Costs;
(ii) Remediation costs exceeding the difference between $100,000 and
two times the Durrant Purchase Price and the Multi-Use Purchase
5
Price shall be shared by the parties as follows:
(a) City: 50%
(b) Adams Development: 50%.
City's total share of the Remediation Costs shall not exceed
the total of Durrant Purchase Price and the Multi-Use
Purchase Price actually received by City pursuant to this
Agreement.
Adams Development shall be solely responsible for the remainder
of the Remediation Costs and any other removal and/or
remediation required by this Agreement, law or any governmental
agency. Unless Adams Development has elected to terminate this
Agreement as provided in Sec. 2.3(2), Adams Development shall
proceed to design and implement the removal or remediation
pursuant to the Environmental Remediation Plan in a timely
manner. Except as provided herein, Adams Development, effective
at each applicable Closing Date, hereby releases City, its officers,
agents and employees from and shall protect, defend, and hold
harmless City, its officers, agents and employees, from any claim,
demand, suit, action or other proceedings whatsoever by Adams
Development arising from the condition of the Property and any
hazardous substance in or on the Property.
(4) Release of Reports and Data. Adams Development shall promptly
provide City with a copy of all environmental consulting or engineering reports,
separate laboratory analysis reports, and other material information and data
received by Adams Development regarding the environmental condition of the
Property, or which are otherwise received or generated pursuant to this
Agreement.
(5) Definitions. For the purposes of this Agreement, the following definitions
shall apply:
(i) "Environmental Law" means any and all federal, state and/or local laws,
regulations and legal requirements pertaining to (i) the protection of
health, safety and the indoor and outdoor environment, (ii) the
conservation, management or use of natural resources and wildlife, (i1i)
the protection, access to or use of surface water and groundwater, (iv) the
management, manufacture, possession, presence, use, generation,
transportation, treatment) storage, disposal, Release, threatened Release,
abatement, removal, remediation or handling of, or exposure to, any
Hazardous Substance or (v) pollution (including, without limitation, any
Release to air, land, surface water and groundwater), and includes,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
6
Amendment and Reauthorization Act of 1986, 42 U.S.C. 9601 et sea.; the
Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and the Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. 6901 et sea.; the Federal Water Pollution Control Act,
as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et sea.; the
Clean Air Act of 1966, as amended, 41 U.S.C. 7401 et sea.; the Toxic
Substances Control Act of 1976, 15 U.S.C. 2601 et sea.; the Hazardous
Substances Transportation Act, 49 U.S.C. App. 1801 et sea.; the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651
et sea.; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et sea.: the
Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. 11001 et sea.; the National Environmental Policy Act of 1969, 42
U.S.C. 4321 et sea.; the Safe Drinking Water Act of 1974, as amended, 42
U.S.C. 300(f) et sea.; Chapter 4558 of the Iowa Code; any similar,
implementing or successor law to any of the foregoing and any
amendment, rule, regulation, order or directive issued thereunder.
(ii) "Hazardous Substance" or "Hazardous Substances" means any
hazardous or toxic substance, material or waste, which is or becomes
regulated by any local government, the State of Iowa or the United States
Government. It includes, without limitation, any material or substance that
is (i) defined as a "hazardous substance" or "hazardous waste" under
Chapter 4558, Iowa Code, (ii) petroleum and petroleum products, (iii)
asbestos containing materials in any form or condition, (iv) designated as
a "hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 3 1321), (v) defined as a "hazardous
waste pursuant to 3 1004 of the Federal Resource Conservation and
Recovery Act, 42 U.S.C. 36901 et seq., (vi) defined as a "hazardous
substance" pursuant to 3 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, U.S.C 3 9601 et seq., or (vii)
defined as a "regulated substance" pursuant to Subchapter IX, Solid
Waste Disposal Act (Regulation of Underground Storage Tanks), 42
U.S.C. 3 6991 et seq.] The term "Hazardous Substance" shall not include
any air emissions discharged into the atmosphere as allowed by a duly
issued permit from the applicable governmental agency.
(iii) "Release" means any spilling, migrating, seeping, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of any Hazardous Substance into. the indoor or
outdoor environment, including, without limitation, the abandonment or
discarding of barrels, drums, containers, tanks and other receptacles
containing or previously containing any Hazardous Substance and
including without limitation the migration of any Hazardous Substance
onto the Property from an adjacent property.
SECTION 3. REPRESENTATIONS OF CITY.
In order to induce Adams
7
Development to enter into this Agreement and purchase the Durrant Project Property
and/or the Multi-Use Project Property, City hereby represents and warrants to Adams
Development, that:
3.1. No action in condemnation, eminent domain or public taking proceedings are
now pending or, to the knowledge of the City, contemplated against the Property;
3.2. No ordinance or hearing is pending or, to the best of City's knowledge,
contemplated before any local governmental body which either contemplates or
authorizes any public improvements or special tax levies, the cost of which may be
assessed against Property;
3.3. City has good and marketable fee simple title interest to the Property;
3.4. 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 Adams Development 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;
3.5. The Property will as of the date of the applicable closing be free and clear of all
liens, security interests, and encumbrances;
3.6. 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 Adams Development at the time of each applicable closing
confirming the representation contained herein, in form and substance attached hereto
as Exhibit C;
3.7. All City utilities necessary for the development and use of the Property as
contemplated in this Agreement adjoin the Property, and Adams Development shall
have the right to tie into and use said utilities;
3.8. 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 which shall in anyway be binding upon
the Property or Adams Development;
3.9. City shall exercise its best efforts to cooperate with Adams Development in the
development process;
3.10. City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion;
3.11. With respect to the period during which City has owned or occupied the Property,
and to City's knowledge after reasonable investigation with respect to the time before
8
City owned or occupied the Property, no person or entity has caused or permitted
materials to be stored, deposited, treated, recycled, or disposed of on, under or at the
Property other than as described in the environmental reports that City has provided to
Adams Development, which materials, if known to be present, would require cleanup,
removal or some other remedial action under environmental laws;
3.12. There are no fees or other charges payable by Adams Development for City
utilities serving the Property, as a result of utility hook-ups, other than the fees for
connecting to and installing meters with regard to such utilities; and
3.13. The Property is properly zoned for the various uses described in this Agreement.
SECTION 4. CONDITIONS TO CLOSING. The applicable closing of the transactions
contemplated by this Agreement and all the obligations of Adams Development under
this Agreement are subject to fulfillment, on or before the Durrant Closing Date and the
Multi-Use Closing Date(s), as the case may be, of the following conditions:
4.1. The representations and warranties made by City in Section 3 shall be correct as
of the applicable Closing Date with the same force and effect as if such representations
were made at such time. At the applicable closing, City shall deliver a certificate, in the
form of Exhibit D, to that effect;
4.2. Title to the Durrant Project Property and the Multi-Use Project Property shall be
in the condition warranted in Section 3.3;
4.3. At the Durrant Closing Date with respect to the Durrant Project Property and at
the Multi-Use Closing Date(s) with respect to the Multi-Use Project Property: Adams
Development has obtained any and all necessary governmental approvals, including
without limitations approval of zoning, subdivision or platting which might be necessary
or desirable in connection with the sale and transfer and development of the Property.
Any conditions imposed as a part of the zoning, platting or subdivision must be
satisfactory to Adams Development, in its sole opinion. City shall cooperate with
Adams Development 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, City agrees (1) to review all of Adams
Development's plans and specifications for the project and to either reject or approve
the same in a prompt and timely fashion; (2) to issue a written notification to Adams
Development, following City's approval of same, indicating that City has approved such
plans and specifications, and that the same are in compliance with the Urban Renewal
Plan and the Port of Dubuque Master Plan including the Design Standards, this
Agreement and any other applicable City or affiliated agency requirements, with the
understanding that Adams Development and its lenders shall have the right to rely upon
the same in proceeding with the project; (3) to identify in writing as soon as practicable
after submission of said plans and specifications, any and all permits, approvals and
consents that are legally required for the acquisition of the Property by Adams
Development, and the construction, use and occupancy of the project with the intent
9
and understanding that Adams Development 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 Adams Development to facilitate the obtaining of such
permits, approvals and consents;
4.4. City has completed all required notice to or prior approval, consent or permission
of any federal, state or municipal or local governmental agency, body, board or official
to the sale of the Durrant Project Property and the Multi-Use Project Property; and
consummation of the applicable closing by City shall be deemed a representation and
warranty that it has obtained the same;
4.5. Adams Development shall be in material compliance with all the terms and
provisions of this Agreement;
4.6. Adams Development 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 Adams Development has firm financial commitments in an amount
sufficient, together with equity commitments, to complete Durrant Minimum
Improvements and the Multi-Use Minimum Improvements (as defined herein), as the
case may be, in conformance with applicable Construction Plans (as defined herein), or
City shall have received such other evidence of such party's financial ability as in the
reasonable judgment of City is required;
4.7. Receipt of an opinion of counsel to Adams Development in the form attached
hereto as Exhibit E; and
4.8. Adams Development shall have the right to terminate this Agreement at anytime
prior to the consummation of the closing on the applicable Closing Date if Adams
Development determines in its sole discretion that conditions necessary for the
successful completion of the Project have not been satisfied to the full satisfaction of
Adams Development in its sole and unfettered discretion. Upon the giving of notice of
termination by Adams Development to City to this Agreement, this Agreement shall be
deemed null and void.
SECTION 5. CLOSING. The closing of the purchase and sale of the Durrant Project
Property shall take place on the Durrant Closing Date. The closing of the purchase and
sale of the Multi-Use Project Property shall occur in phases and shall take place on the
Multi-Use Closing Dates. Exclusive possession of the Durrant Project Property shall be
delivered on the Durrant Closing Date, in its current condition (except as provided
herein) and in compliance with this Agreement, including City's representations and
warranties regarding the Durrant Project Property. Exclusive possession of the
applicable portions of the Multi-Use Project Property shall be delivered on the Multi-Use
Closing Dates, in their current condition and in compliance with this Agreement,
including City's representations and warranties regarding the Multi-Use Project
Property. Consummation of each Closing shall be deemed an agreement of the parties
10
to this Agreement that the conditions of the applicable Closing shall have been satisfied
or waived.
SECTION 6. CITY'S OBLIGATIONS AT CLOSING. At or prior to the applicable
Closing Date, City shall:
6.1. Deliver to Adams Development City's duly recordable Warranty Deed to the
Property, in the form attached hereto as Exhibit F (Deed), conveying to Adams
Development marketable fee simple title to the Durrant Project Property or the
applicable portions of the Multi-Use Project Property, as the case may be, and all rights
appurtenant thereto, including appurtenant easements, subject only to easements,
restrictions, conditions and covenants of record as of the date hereof and not objected
to by Adams Development as set forth in this Agreement, and to the conditions
subsequent set forth in this Agreement;
6.2. Deliver to Adams Development the Abstract of Title to the Durrant Project
Property or the applicable portions of the Multi-Use Project Property, as the case may
be;
6.3. Deliver to Adams Development such other documents as may be required by this
Agreement, all in a form satisfactory to Adams Development; and
6.4 [Intentionally left blank]
6.5 Deliver to Adams Development a recordable perpetual easement or easements,
for no additional consideration, granting Adams Development (and its successors and
assigns) vehicular and pedestrian ingress and egress across the Property to the Adams
Project Property and the Multi-Use Project Property, all in a form acceptable to Adams
Development. Such easement or easements shall run with the land for the benefit of
the owners and parties in possession of the Adams Project Property and the Multi-Use
Project Property.
SECTION 7. DELIVERY OF PURCHASE PRICE: OBLIGATIONS AT CLOSING. At
the applicable Closing, and subject to the terms, conditions, and provisions hereof and
the performance by City of its obligations as set forth herein, Adams Development shall
pay the applicable Purchase Price to City pursuant to Section 2.1 hereof, but subject to
Adams Development receiving a partially offsetting credit pursuant to Section 14, below.
SECTION 8. CLOSING COSTS. The following costs and expenses shall be paid in
connection with each applicable Closing:
8.1. City shall pay:
The transfer fee imposed on the conveyance, if any;
All special assessments whether levied, pending or assessed, if any;
11
City's attorney's fees;
City's broker and/or real estate commissions and fees, if any; and
The cost of recording the satisfaction of any existing mortgage and any other
document necessary to make title marketable.
8.2. Adams Development shall pay:
The documentary fee necessary to record the Deed;
Adams Development's attorney's fees;
Adams Development's broker and/or real estate commissions and fees, if any;
and
All taxes as provided in Section 9.
SECTION 9. REAL PROPERTY TAXES. From and after the Durrant Closing and
the Multi-Use Closing(s), as the case may be, Adams Development shall payor cause
to be paid, when due, all real property taxes and assessments payable with respect to
the Durrant Project Property and the applicable portion of the Multi-Use Project
Property, as applicable.
SECTION 10. DEVELOPMENT ACTIVITIES - DURRANT PROJECT
10.1. Required Durrant Minimum Improvements. Adams Development hereby
agrees to construct, reconstruct and rehabilitate on the Durrant Project Property a
portion of the existing building into an office building of approximately seventeen
thousand six hundred seventy-five square feet (17,675 sq. ft.) along with necessary site
work as contemplated in this Agreement at a cost of at least three million and no/100
dollars ($3,000,000.00) (the "Durrant Minimum Improvements" or "Minimum
Improvements" when the context requires).
10.2. Plans for Construction of Improvements. Plans and specifications with
respect to the development of the Durrant Project Property and the construction of the
Durrant Minimum Improvements thereon ("Durrant Construction Plans" or the
"Construction Plans" when the context requires) shall be in conformity with Urban
Renewal Plan, including the Port of Dubuque Master Plan Design Standards (Port of
Dubuque Design Standards), this Agreement, and all applicable state and local laws
and regulations. Adams Development shall submit to City, for approval by City, plans,
drawings, specifications, and related documents with respect to the Durrant Minimum
Improvements to be constructed by Adams Development on the Durrant Project
Property. All work with respect to the Durrant Minimum Improvements shall be in
substantial conformity with the Durrant Construction Plans approved by City.
12
10.3. Timing of Improvements. Adams Development hereby agrees that
construction of the Durrant Minimum Improvements on the Durrant Project Property
shall commence not later than sixty (60) days after the Durrant Closing Date and shall
be substantially completed by not later than fifteen (15) months after the Durrant
Closing Date. For example, if the Durrant Closing Date is February 1, 2007,
construction must commence by April 1 , 2007, and be completed by May 1, 2008. The
time frames for the performance of these obligations shall be suspended due to
unavoidable delays meaning delays outside the control of the party claiming its
occurrence in good faith, which are the direct result of strikes, other labor troubles,
unusual shortages of materials or labor, unusually severe or prolonged bad weather,
acts of God, fire or other casualty to the Durrant 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.
10.4. Certificate of Completion. Promptly following the request of Adams
Development upon completion of the Durrant Minimum Improvements, City shall furnish
Adams Development with an appropriate instrument so certifying. Such certification
(Certificate of Completion) shall be in recordable form and shall be a conclusive
determination of the satisfaction and termination of the agreements and covenants in
this Agreement and in the Deed with respect to the obligations of Adams Development
to construct the Durrant Minimum Improvements. The Certificate of Completion shall
waive all rights of revestment of title in City as provided in Section 19, and the
Certificate of Completion shall so state.
10.5. Adams Development Lender's Cure Rights. The parties agree that if Adams
Development shall fail to complete the Durrant Minimum Improvements as required by
this Agreement such that revestment of title may occur (or such that City would have the
option of exercising its revestment rights), then Adams Development or Adams
Development's Lender, if any, shall have the right, but not the obligation, to complete
such Durrant Minimum Improvements according to the terms and conditions in this
Agreement.
SECTION 11. CITY PARTICIPATION.
11.1. Conveyance of Roofing Materials. At the Durrant Closing Date, City shall
transfer, assign and convey unto Adams Development, all right, title and interest in, and
to, all the materials (as provided on Exhibit H) which have been obtained to repair the
roof of the old Adams Company building, free and clear of all liens and encumbrances,
upon payment by Adams Development for the cost of the materials as shown on Exhibit
H.
11.2. Economic Development Grants to Adams Development.
13
(1) For and in consideration of Adams Development's obligations hereunder,
and in furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Adams
Development being and remaining in compliance with the terms of this
Agreement, to make twenty (20) consecutive semi-annual payments (such
payments being referred to collectively as the Economic Development Grants) to
the Adams Development, as follows:
November 1, 2009
November 1, 2010
November 1, 2011
November 1, 2012
November 1, 2013
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
May 1, 2010
May1,2011
May1,2012
May 1,2013
May 1,2014
May1,2015
May1,2016
May 1,2017
May 1, 2018
May 1, 2019
pursuant to Section 403.9 of the Urban Renewal Law, in amounts equal to the
actual amount of tax increment revenues collected by City under Section 403.19
(without regard to any averaging that may otherwise be utilized under Section
403.19 and excluding any interest that may accrue thereon prior to payment to
the Adams Development) during the preceding six-month period in respect of the
Durrant Minimum Improvements constructed by Adams Development (the
"Durrant Project Tax Increments). Adams Development recognizes and agrees
that the Economic Development Grants shall be paid solely and only from the
incremental taxes collected by City in respect to the Durrant Minimum
Improvements, which does not include property taxes collected for the payment
of bonds and interest of each taxing district, and taxes for the regular and voter-
approved physical plant and equipment levy, and any other portion required to be
excluded by Iowa law, and thus such incremental taxes will not include all
amounts paid by Adams Development as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1, 2008, its request for
the available Adams Development Tax Increments resulting from the
assessments imposed by the County as of January 1 of the following year, to be
collected by City as taxes are paid during the following fiscal year and which shall
thereafter be disbursed to Adams Development on November 1 and May 1 of
that fiscal year. (Example: if City so certifies in December, 2008, the Economic
Development Grants in respect thereof would be paid to the Adams Development
on November 1,2009, and May 1,2010.) Real estate taxes collected by the City
with respect to the Durrant Project Property prior to the dates provided in this
Section 11.2 shall not result in Economic Development Grants.
14
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Durrant Project Tax Increments which, upon receipt, shall
be deposited and held in a special account created for such purpose and
designated as the "Durrant Project TIF Account" of City. City hereby covenants
and agrees to maintain its TIF ordinance in force during the term hereof and to
apply the incremental taxes collected in respect of the Durrant Minimum
Improvements and allocated to the Durrant Project TIF Account to pay the
Economic Development Grants, as and to the extent set forth in Section 11.2
hereof. The Economic Development Grants shall not be payable in any manner
by other tax increments revenues or by general taxation or from any other City
funds. City makes no representation with respect to the amounts that may be
paid to Adams Development as the Economic Development Grants in anyone
year and under no circumstances shall City in any manner be liable to Adams
Development so long as City timely applies the Durrant Project Tax Increments
actually collected and held in the Durrant Project TIF Account (regardless of the
amounts thereof) to the payment of the Economic Development Grants to Adams
Development as and to the extent described in this Section 11.2.
(4) City shall be free to use any and all tax increment revenues collected in
respect to other properties within the Project Area, or any of the available Durrant
Project Tax Increments resulting from the termination of the annual Economic
Development Grants under Section 11.2 hereof, for any purpose for which such
tax increment revenues may lawfully be used pursuant to the provisions of the
Urban Renewal Law, and City shall have no obligations to Adams Development
with respect to the use thereof.
11.3 [Intentionally Left Blank].
11.4 The City shall grant an ingress and egress easement as described in Section 6.5.
SECTION 12. PARKING. That certain portion of the Property as shown on Exhibit B
(the "Parking Property") which adjoins the Durrant Project Property shown on Exhibit B
is intended for use for parking purposes in connection the Durrant Project. In
connection therewith, the parties agree as follows:
12.1. Construction of Improvements by Adams Development. Within the time
frames set forth in Section 10.3, Adams Development shall, at Adams Development's
sole expense, complete the grading, paving, landscaping including islands, and lighting
of the Parking Property according to plans and specifications approved by Adams
Development and consistent with City standards including the Port of Dubuque Design
Standards. The Parking Property shall consist of approximately 75 spaces. Adams
Development shall be responsible for obtaining all necessary permits, and Adams
Development shall be responsible for and pay for the cost of drainage and storm water
improvements required by City standards and state and federal law for the development
of the Parking Property. City shall pay only those costs pre-approved by City for
transportation and disposal of fill required to be removed from the Parking Property as a
15
result of construction by Adams Development of the improvements contemplated by this
Section 12. The parties shall use all reasonable efforts in the design and improvement
of the Parking Property to limit the need to remove fill from the Parking Property. The
City shall be provided with prompt notice of the believed need to remove fill from the
Parking Property so as to allow City to make arrangements for sampling and analysis of
such fill, and Adams Development shall allow such activities by City. Adams
Development shall be responsible for bringing any new fill to the Parking Property, at its
expense. In addition, City shall not be responsible for transportation and disposal of fill
placed on the Parking Property by Adams Development, its employees, agents or
contractors.
12.2. Construction of Improvements by City. City may, at its expense, install gates
and controls and underground services to those gates and controls to control access to
the Parking Property, so as to permit the types of uses set out below in Section 12.4.
The installation of gates and controls and underground services to the gates and
control, if City elects to install gates and controls, shall be substantially completed by
fifteen (15) months after the Durrant Closing Date. City shall have the right to install, at
City's expense and during the construction of the Parking Property by Adams
Development or at such later date as City determines, additional electrical service,
water, staging, and tie downs.
12.3. Maintenance of Parking Property. Maintenance, repair and replacement of the
Parking Property shall be the sole responsibility and expense of City, including but not
limited to:
Snow removal on Parking Property and adjacent sidewalks completed by 7:00
a.m. each day;
Salting of Parking Property and adjacent sidewalks completed by 7:00 a.m. each
day;
Maintenance of the lawn sprinkler system;
Replacing bushes, trees, etc., as needed;
Lighting maintenance;
Parking lot spring clean-up; and
Monthly parking lot sweeping during non-winter months.
12.4. Use of Parking Lots.
(1) The Parking Property shall consist of non-assigned spaces for the benefit of the
owner of the Durrant Project Property, or its tenants, employees, or patrons working at
or conducting business at the Durrant Project Property, together with the successors or
16
assigns of the foregoing (referred to as "Daily Users"), at no cost, for parking between
the hours of 7:00 a.m. and 5:00 p.m. or such later time for a specific day as the City
Manager may upon written request of Adams Development agree, Monday through
Friday, fifty-two weeks per year (excluding holidays). Subject to Section 12.4, City shall
have the right to allow parking in the Parking Property by the public during the times not
reserved for the Daily Users. Notwithstanding the foregoing, Daily Users who have
already parked in the Parking Property prior to 5:00 p.m. may remain parked in the
Parking Property except on a day that City has notified Adams Development (or the
Daily Users) in writing seven days in advance that employees or patrons may not
remain in the Parking Property after 5:00 p.m. on that day, which notice shall not occur
more than 30 times per calendar year.
(2) It is the intent of the parties under Sections 12.4(1) that the owner of the Durrant
Project Property (and the Daily Users) will be guaranteed approximately 75 spaces
shown on the attached Site Plan, in the Parking Project between the hours of 7:00 a.m.
and 5:00 p.m. Monday through Friday, fifty-two weeks per year, except holidays, and
public parking will be limited by City to effectuate such guaranteed parking.
(3) For purposes of this paragraph, holidays shall mean New Years Day, Memorial
Day, 4th of July, Labor Day, Thanksgiving and Christmas Day.
(4) The parking rights upon the Parking Property as described in this Section 12
shall deem to be a perpetual easements running with the land for the benefit of the
owner of the Durrant Project property and its tenants, successors and assigns. The
parties agree to record this Agreement or another suitable document detailing the
parking-rights easement.
12.5. Indemnification. To the extent allowed by law, City shall hold Adams
Development harmless and fully indemnify Adams Development against any damage,
claim, liability or cause of action arising from or caused by the actions of City, its agents,
or representatives upon the Parking Property, including for any such damage, claim,
liability or cause of action arising from conditions on the Parking Property existing prior
to any such entry upon the Parking Property by Adams Development
12.6. Survival. The provisions of this Section 12 shall survive the termination of this
Agreement.
SECTION 13.
MULTI-USE PROJECT
13.1. Multi-Use Minimum Improvements. Subject to Sections 13.2, 13.3 and 15
below, Adams Development hereby agrees to construct , in phases, on the Multi-Use
Property, a multi-story (not less than four occupied floors), multi-use building or
buildings of approximately three hundred ten thousand total square feet (Phase II,
approximately 150,000 square feet; Phase III, 100,000 square feet; Phase IV 60,000
square feet) along with necessary site work as contemplated in this Agreement at a cost
of approximately sixty million dollars and no/100 dollars ($60,000,000)(the Multi-Use
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Minimum Improvements also referred to as Phase II, III and IV of the Multi-Use
Minimum Improvements, as applicable).
13.2. Plans for Construction of Improvements. The parties anticipate that the Multi-
Use Project will be constructed in phases as generally described on Exhibit I hereto.
Within six months of the date of this Agreement, Adams Development and the City shall
negotiate with respect to the site plan, plans and specifications (hereinafter the "Multi-
Use Construction Plans") of Phase II of the Multi-Use Project, which plans will include
retail, commercial/office and residential of an agreed to mix. Within six (6) months from
the date of this Agreement, the parties will also generally agree to all the plans for the
other phases of the Multi-Use Project, subject to later revisions and changes as agreed
by the parties. The Multi-Use Property will be subdivided, at City's expense, by no later
than the Closing Date for Phase II, into separate parcels for each phase of the Multi-
Use Project and each separate parcel shall be conveyed to Adams Development, as
needed, for each phase of the Multi-Use Project, as provided in section 13.3 below.
The Multi-Use Construction Plans shall be in conformity with Urban Renewal Plan,
including the Port of Dubuque Master Plan Design Standards (Port of Dubuque Design
Standards), this Agreement, and all applicable state and local laws and regulations.
Adams Development shall submit to City, for approval by City, plans, drawings,
specifications, and related documents with respect to the Multi-Use Minimum
Improvements to be constructed by Adams Development on the Property. All work with
respect to the Multi-Use Minimum Improvements shall be in substantial conformity with
the Multi-Use Construction Plans approved by City.
13.3. Closing of Multi-Use Property and Timing of Improvements. The Multi-Use
Closing with respect to the Multi-Use Property needed for Phase II shall occur, and
construction of the Phase II Multi-Use Minimum Improvements on the Multi-Use Project
Property shall commence, not later than nine (9) months after the date of this
Agreement. The Phase II Multi-Use Minimum Improvements shall be substantially
completed by not later than twenty-four (24) months after the Phase II Multi-Use Closing
Date. If Adams Development has made substantial progress on the construction of the
Phase I Multi-Use Minimum Improvements, Adams Development shall be entitled to an
extension of up to three (3) months to complete such construction. The subsequent
Multi-Use Closings, construction timelines and specific parcels to be conveyed for each
phase of the Multi-Use Project shall be as agreed to by the parties as described on
Exhibit I. Specifically, the Multi-Use Closing, with respect to the Multi-Use Property
needed for Phase III, shall occur, and construction of the Phase III Multi-Use
Improvements on the Multi-Use Project Property shall commence, not later than three
(3) months after construction of the Phase II Multi-Use Minimum Improvements are
substantially complete; construction of the Phase III Multi-Use Minimum Improvements
shall be substantially complete within fifteen (15) months thereafter. The Multi-Use
Closing, with respect to the Multi-Use Property needed for Phase IV shall occur, and
construction of the Phase IV Multi-Use Minimum Improvements on the Multi-Use Project
Property shall commence not later than three (3) months after the date of substantial
completion of the Phase III Multi-Use Minimum Improvements; construction of the
Phase IV Multi-Use Minimum Improvements shall be substantially complete within
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fifteen (15) months thereafter. For example, if this Agreement is entered into and
approved by the City on January 1, 2007, plans for the Multi-Use Project must be
agreed to between the City and Adams Development (pursuant to Section 13.2 above)
by no later than July 1, 2007, and the closing for the Phase II Multi-Use Project Property
and commencement of the Phase II Multi-Use Minimum Improvements must occur by
October 1, 2007. The time frames for the performance of these obligations shall be
suspended due to unavoidable delays meaning delays outside the control of the party
claiming its occurrence in good faith, which are the direct result of strikes, other labor
troubles, unusual shortages of materials or labor, unusually severe or prolonged bad
weather, acts of God, fire or other casualty to the Multi-Use 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.
In the event that the City and Adams Development have not, in the sole discretion of
either City or Adams Development, timely agreed to the Multi-Use Construction Plans in
Section 13.2 or in the event that the Multi-Use Closing for Phase II and construction
commencement of the Phase II Multi-Use Minimum Improvements have not occurred as
provided in this Section 13.3, then Adams Developments' rights to the Multi-Use Project
Property shall cease and terminate and no party shall have liability to the other
thereafter with respect to the Multi-Use Property.
13.4. Certificate of Completion. Promptly following the request of Adams
Development upon completion of each phase of the Multi-Use Minimum Improvements,
City shall furnish Adams Development with an appropriate instrument so certifying.
Such certification (Certificate of Completion) shall be in recordable form and shall be a
conclusive determination of the satisfaction and termination of the agreements and
covenants in this Agreement and in the Deed with respect to the obligations of Adams
Development to construct such phase of the Multi-Use Minimum Improvements. The
Certificate of Completion shall waive all rights of revestment of title in City as provided in
Section 19, and the Certificate of Completion shall so state.
13.5. Adams Development Lender's Cure Rights. The parties agree that if Adams
Development shall fail to complete the Multi-Use Minimum Improvements as required by
this Agreement such that revestment of title may occur (or such that City would have the
option of exercising its revestment rights), then Adams Development or Adams
Development's Lender, if any, shall have the right, but not the obligation, to complete
such Multi-Use Minimum Improvements according to the terms and conditions in this
Agreement.
SECTION 14. CITY PARTICIPATION.
14.1. [Intentionally left blank].
14.2. Economic Development Grants to Adams Development.
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A. Phase II Multi-Use Minimum Improvements.
(1) For and in consideration of Adams Development's obligations hereunder,
and in furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to the Adams
Development being and remaining in compliance with the terms of this
Agreement, to make ten (10) consecutive semi-annual payments (such payments
being referred to collectively as the Economic Development Grants) to the
Adams Development, pursuant to Section 403.9 of the Urban Renewal Law, in
amounts equal to the following percentages of the actual amount of tax
increment revenues collected by City under Section 403.19 (without regard to
any averaging that may otherwise be utilized under Section 403.19 and excluding
any interest that may accrue thereon prior to payment to the Adams
Development) during the preceding six-month period in respect of the Phase II
Multi-Use Minimum Improvements constructed by Adams Development (the
Phase II Multi-Use Project Tax Increments).
November 1, 2011
November 1, 2012
November 1, 2013
November 1, 2014
November 1, 2015
May1,2012
May1,2013
May 1, 2014
May 1, 2015
May 1, 2016
100%
80%
60%
40%
20%
Adams Development recognizes and agrees that the Economic Development
Grants shall be paid solely and only from the incremental taxes collected by City
in respect to the Phase II Multi-Use Minimum Improvements, which does not
include property taxes collected for the payment of bonds and interest of each
taxing district, and taxes for the regular and voter-approved physical plant and
equipment levy, and any other portion required to be excluded by Iowa law, and
thus such incremental taxes will not include all amounts paid by Adams
Development as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1, 2010, its request for
the available Adams Development Tax Increments resulting from the
assessments imposed by the County as of January 1 of the following year, to be
collected by City as taxes are paid during the following fiscal year and which shall
thereafter be disbursed to Adams Development on November 1 and May 1 of
that fiscal year. (Example: if City so certifies in December, 2010, the Economic
Development Grants in respect thereof would be paid to the Adams Development
on November 1,2011, and May 1,2012.) Real estate taxes collected by the City
with respect to the Multi-Use Project Property prior to the dates provided in this
Section 14.2(A) shall not result in Economic Development Grants.
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Phase II Multi-Use Tax Increments which, upon receipt,
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shall be deposited and held in a special account created for such purpose and
designated as the "Phase II Multi-Use Project TIF Account" of City. City hereby
covenants and agrees to maintain its TIF ordinance in force during the term
hereof and to apply the incremental taxes collected in respect of the Phase II
Multi-Use Minimum Improvements and allocated to the Phase II Multi-Use
Project TIF Account to pay the Economic Development Grants, as and to the
extent set forth in Section (A) 14.2 hereof. The Economic Development Grants
shall not be payable in any manner by other tax increments revenues or by
general taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Adams Development as the
Economic Development Grants in anyone year and under no circumstances
shall City in any manner be liable to Adams Development so long as City timely
applies the Phase II Multi-Use Tax Increments actually collected and held in the
Phase II Multi-Use Project TIF Account (regardless of the amounts thereof) to the
payment of the Economic Development Grants to Adams Development as and to
the extent described in this Section (A) 14.2.
(4) City shall be free to use any and all tax increment revenues collected in
respect to other properties within the Project Area, or any of the available Phase
II Multi-Use Tax Increments resulting from the termination of the annual
Economic Development Grants under Section (A) 14.2 hereof, for any purpose
for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Adams Development with respect to the use thereof. City shall also be free to
use the actual tax increment revenues collected by the City and not required to
be paid to Adams Development in respect of the Phase II Multi-Use Minimum
Improvements.
B. Phase III Multi-Use Minimum Improvements. Subject to a timeline
extension as provided in Section 15.1 below:(1) For and in consideration of
Adams Development's obligations hereunder, and in furtherance of the goals
and objectives of the Urban Renewal Plan for the Project Area and the Urban
Renewal Law, City agrees, subject to the Adams Development being and
remaining in compliance with the terms of this Agreement, to make ten (10)
consecutive semi-annual payments (such payments being referred to
collectively as the Economic Development Grants) to the Adams Development,
pursuant to Section 403.9 of the Urban Renewal Law, in amounts equal to the
following percentages of the actual amount of tax increment revenues collected
by City under Section 403.19 (without regard to any averaging that may
otherwise be utilized under Section 403.19 and excluding any interest that may
accrue thereon prior to payment to the Adams Development) during the
preceding six-month period in respect of the Phase III Multi-Use Minimum
Improvements constructed by Adams Development (the Phase III Multi-Use
Project Tax Increments).
November 1 , 2012
May 1,2013 80%
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November 1, 2013
November 1,2014
November 1, 2015
November 1, 2016
May 1, 2014 70%
May 1,2015 60%
May 1, 2016 50%
May 1, 2017 30%
Adams Development recognizes and agrees that the Economic Development
Grants shall be paid solely and only from the incremental taxes collected by City
in respect to the Phase III Multi-Use Minimum Improvements, which does not
include property taxes collected for the payment of bonds and interest of each
taxing district, and taxes for the regular and voter-approved physical plant and
equipment levy, and any other portion required to be excluded by Iowa law, and
thus such incremental taxes will not include all amounts paid by Adams
Development as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1, 2012, its request for
the available Adams Development Tax Increments resulting from the
assessments imposed by the County as of January 1 of the following year, to be
collected by City as taxes are paid during the following fiscal year and which shall
thereafter be disbursed to Adams Development on November 1 and May 1 of
that fiscal year. (Example: if City so certifies in December, 2012, the Economic
Development Grants in respect thereof would be paid to the Adams Development
on November 1, 2013, and May 1, 2014.) Real estate taxes collected by the City
with respect to the Multi-Use Project Property prior to the dates provided in this
Section 14.2(B) shall not result in Economic Development Grants.
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Phase III Multi-Use Tax Increments which, upon receipt,
shall be deposited and held in a special account created for such purpose and
designated as the "Phase III Multi-Use Project TIF Account" of City. City hereby
covenants and agrees to maintain its TIF ordinance in force during the term
hereof and to apply the incremental taxes collected in respect of the Phase III
Multi-Use Minimum Improvements and allocated to the Phase III Multi-Use
Project TIF Account to pay the Economic Development Grants, as and to the
extent set forth in Section (B) 14.2 hereof. The Economic Development Grants
shall not be payable in any manner by other tax increments revenues or by
general taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Adams Development as the
Economic Development Grants in anyone year and under no circumstances
shall City in any manner be liable to Adams Development so long as City timely
applies the Phase III Multi-Use Tax Increments actually collected and held in the
Phase III Multi-Use Project TIF Account (regardless of the amounts thereof) to
the payment of the Economic Development Grants to Adams Development as
and to the extent described in this Section (B) 14.2.
(4) City shall be free to use any and all tax increment revenues collected in
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respect to other properties within the Project Area, or any of the available Phase
III Multi-Use Tax Increments resulting from the termination of the annual
Economic Development Grants under Section (8) 14.2 hereof, for any purpose
for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Adams Development with respect to the use thereof. City shall also be free to
use the actual tax increment revenues collected by the City and not required to
be paid to Adams Development in respect of the Phase III Multi-Use Minimum
Improvements.
C. Phase IV Multi-Use Minimum Improvements. Subject to a timeline
extension as provided in Section 15.1 below:
(1) For and in consideration of Adams Development's obligations hereunder,
and in furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to the Adams
Development being and remaining in compliance with the terms of this
Agreement, to make ten (10) consecutive semi-annual payments (such payments
being referred to collectively as the Economic Development Grants) to the
Adams Development, pursuant to Section 403.9 of the Urban Renewal Law, in
amounts equal to the following percentages of the actual amount of tax
increment revenues collected by City under Section 403.19 (without regard to
any averaging that may otherwise be utilized under Section 403.19 and excluding
any interest that may accrue thereon prior to payment to the Adams
Development) during the preceding six-month period in respect of the Phase IV
Multi-Use Minimum Improvements constructed by Adams Development (the
Phase IV Multi-Use Project Tax Increments).
November 1 , 2013
November 1,2014
November 1, 2015
November 1, 2016
November 1, 2017
May 1,2014 75%
May 1, 2015 60%
May 1,2016 45%
May 1,2017 30%
May1,2018 15%
Adams Development recognizes and agrees that the Economic Development
Grants shall be paid solely and only from the incremental taxes collected by City
in respect to the Phase IV Multi-Use Minimum Improvements, which does not
include property taxes collected for the payment of bonds and interest of each
taxing district, and taxes for the regular and voter-approved physical plant and
equipment levy, and any other portion required to be excluded by Iowa law, and
thus such incremental taxes will not include all amounts paid by Adams
Development as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1,2014, its request for
the available Adams Development Tax Increments resulting from the
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assessments imposed by the County as of January 1 of the following year, to be
collected by City as taxes are paid during the following fiscal year and which shall
thereafter be disbursed to Adams Development on November 1 and May 1 of
that fiscal year. (Example: if City so certifies in December, 2014, the Economic
Development Grants in respect thereof would be paid to the Adams Development
on November 1, 2015, and May 1, 2016.) Real estate taxes collected by the City
with respect to the Multi-Use Project Property prior to the dates provided in this
Section 14.2(C) shall not result in Economic Development Grants.
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Phase IV Multi-Use Tax Increments which, upon receipt,
shall be deposited and held in a special account created for such purpose and
designated as the "Phase IV Multi-Use Project TIF Account" of City. City hereby
covenants and agrees to maintain its TIF ordinance in force during the term
hereof and to apply the incremental taxes collected in respect of the Phase IV
Multi-Use Minimum Improvements and allocated to the Phase IV Multi-Use
Project TIF Account to pay the Economic Development Grants, as and to the
extent set forth in Section (C) 14.2 hereof. The Economic Development Grants
shall not be payable in any manner by other tax increments revenues or by
general taxation or from any other City funds. City makes no representation with
respect to the amounts that may be paid to Adams Development as the
Economic Development Grants in anyone year and under no circumstances
shall City in any manner be liable to Adams Development so long as City timely
applies the Phase IV Multi-Use Tax Increments actually collected and held in the
Phase IV Multi-Use Project TIF Account (regardless of the amounts thereof) to
the payment of the Economic Development Grants to Adams Development as
and to the extent described in this Section (C) 14.2.
(4) City shall be free to use any and all tax increment revenues collected in
respect to other properties within the Project Area, or any of the available Phase
IV Multi-Use Tax Increments resulting from the termination of the annual
Economic Development Grants under Section (C) 14.2 hereof, for any purpose
for which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Adams Development with respect to the use thereof. City shall also be free to
use the actual tax increment revenues collected by the City and not required to
be paid to Adams Development in respect of the Phase IV Multi-Use Minimum
Improvements.
14.3 City shall grant an ingress and egress easement as described in Section 6.5.
SECTION 15. TEMPORARY PARKING. If the Parking Facility described in Section
15.1 is not completed by the time of the completion of Phase II, City shall, at its expense
and prior to the time the Phase II of the Multi-Use Project is complete, construct (at the
location directly west of the McGraw-Hili facility) a temporary parking lot containing at
least 300 parking spaces, for use by Adams Development with respect to the Phase II
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Multi-Use Improvements (the "Phase II Parking"). If the Parking Facility is not
completed by December 31,2010, City shall pave the temporary parking lot. Adams
Development and its tenants shall be entitled to use the Phase II Parking upon such
terms and conditions as City shall establish.
15.1. Parking Facility by City. It is anticipated that the City shall, at no expense to
Adams Development, construct a parking ramp containing at least 750 non-assigned
automobile parking spaces available to the general public (the "Parking Facility"). It is
intended that the Parking Facility be used to serve, among other things, the Multi-Use
Project Property. Consequently, the City will ensure that there are at least 600 non-
assigned spaces within the Parking Facility for use by the general public twenty-four
hours a day, seven days a week, subject to temporary unavailability due to
maintenance, construction and act of God. It is understood that the City may charge for
parking at the Parking Facility. The Parking Facility shall be maintained by the City.
Notwithstanding anything to the contrary contained in this Agreement, Adams
Development's obligations to proceed with the Multi-Use Project (other than Phase II)
shall be suspended until the City substantially completes the Parking Facility. Any
timelines imposed upon Adams Development for developing subsequent phases of the
Multi-Use Project shall be tolled until completion of the Parking Facility and the timeline
for and requirement to make Economic Development Grants and the duration of the
Multi-Use TIF Account for the applicable Phase shall automatically be extended by an
amount of time equal to the amount of time Adams Development's obligations are tolled
hereunder.
15.2. Condominium Reserved Covered Parking Spaces. City shall provide in the
Parking Facility for residential condominium residents reserved covered parking spaces
based on the following formula:
Each condominium unit shall have a minimum of one reserved covered
parking space. For each unit with more than one bedroom, there shall be
an additional .5 reserved parking spaces reserved for each additional
bedroom in the unit. For example, 57 condominiums with a mix of 12 one-
bedroom and 45 two-bedroom units, for a total of 102 bedrooms, would
have 57 spaces plus (45 X .5 = 22.5) 22.5 for a total of 80 reserved
covered parking spaces in the ramp.
City shall issue parking stickers to the residents of each condominium unit for vehicles
registered to residents of the unit as follows: one sticker per unit for the first bedroom in
the unit and one sticker per unit for each additional bedroom in the unit, but not to
exceed the actual number of vehicles registered to the residents of the unit. (In the
previous example of 57 condominium units with a total of 102 bedrooms, for example,
there would be a maximum of 102 stickers issued for the 80 reserved covered parking
spaces.)
The number of stickers issued may vary from time to time depending upon the number
of vehicles registered to the residents of the condominium. However, the number of
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reserved covered parking spaces shall not at any time exceed the number of stickers
issued and the number can fluctuate on a month to month basis.
The reserved covered parking spaces shall not be designated for a specific
condominium unit, but shall be available to any vehicle with a condominium parking
sticker on a first-come, first-serve basis.
City has the right to establish rules to implement and enforce the use of the covered
reserved parking system for residential condominium units. City shall charge a monthly
fee for condominium covered reserved parking.
Nothing herein shall prohibit condominium residents from parking in the unreserved
parking in the Parking Facility.
15.3. Access Easement. City shall reserve in the conveyance of the Property to
Adams Development such pedestrian and vehicular access easement for ingress and
egress to the Parking Facility as City determines is necessary.
15.4. Indemnification. To the extent allowed by law, City shall hold Adams
Development harmless and fully indemnify Adams Development against any damage,
claim, liability or cause of action arising from or caused by the actions of City, its agents,
or representatives upon the Parking Facility, including for any such damage, claim,
liability or cause of action arising from conditions on the Parking Property existing prior
to any such entry upon the Parking Facility by Adams Development
15.5. Survival. The provisions of this Section 15 shall survive the termination of this
Agreement.
SECTION 16. COVENANTS OF
CONSTRUCTION OF THE PROJECT.
ADAMS
DEVELOPMENT
DURING
16.1. Insurance Requirements: Adams Development shall provide and maintain or
cause to be maintained at all times during the process of constructing the applicable
Minimum Improvements (and, from time to time at the request of City, furnish City with
proof of insurance in the form of a certificate of insurance for each insurance policy):
(1) All risk builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100%) of the replacement value when
construction is completed;
(2) Commercial general liability insurance as set forth in the attached
Insurance Schedule as such Insurance Schedule may from time to time be
amended by City.
16.2. Adams Development shall notify City immediately in the case of damage
exceeding $500,000.00 in amount to, or destruction of, the applicable 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 Adams Development as
its interests may appear, and Adams Development shall forthwith repair, reconstruct
and restore the applicable 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,
Adams Development will apply the Net Proceeds of any insurance relating to such
damage received by Adams Development 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). Adams Development shall complete the repair,
reconstruction and restoration of the applicable Minimum Improvements whether or not
the Net Proceeds of insurance received by Adams Development for such Purposes are
sufficient.
16.3. Preservation of Property. Adams Development shall maintain, preserve and
keep, or cause others to maintain, preserve and keep, the applicable 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.
16.4. Non-Discrimination. In carrying out the project, Adams Development shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, national origin, age, sexual orientation or disability.
16.5. Conflict of Interest. Adams Development 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, Adams
Development 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.
16.6. Non-transferability. This Agreement (or any part thereof) may be assigned by
Adams Development to any other entity controlled by Wayne A. Briggs. Except for the
foregoing, until such time as the applicable Minimum Improvements are complete (as
certified by City under Section 10.4), this Agreement may not be assigned by Adams
Development nor may the Property be transferred by Adams Development to another
party without the prior written consent of City, which consent shall not be unreasonably
withheld. Thereafter, Adams Development shall have the right to assign this Agreement
and upon assumption of all of the obligations in the Agreement by the assignee, Adams
Development shall no longer be responsible for its obligations under this Agreement.
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16.7. Restrictions on Use. Adams Development agrees for itself, its successors and
assigns, and every successor in interest to the Property or any part thereof that they
and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as an office building or as a multi-use facility as described in this
Agreement is in full compliance with the Urban Renewal Plan) (however, Adams
Development 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, national origin,
age, sexual orientation 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, Adams Development 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).
16.8. Compliance with Laws. Adams Development will comply with all laws, rules
and regulations relating to its businesses, other than laws, rules and regulations the
failure to comply with which or the sanctions and penalties resulting therefrom, would
not have a material adverse effect on the business, property, operations, financial or
otherwise, of Adams Development.
SECTION 17. COVENANTS OF DURRANT GROUP AND ADAMS DEVELOPMENT
FOLLOWING CONSTRUCTION OF THE PROJECT.
17.1 Job Creation. The Durrant Group shall create ten (10) full-time positions in the
Port of Dubuque, within three (3) years from the date of this Agreement, and shall
maintain those jobs during the Term that Economic Development Grants under Section
11.2 are paid hereunder. It is agreed by the parties that Durrant will have forty-nine (49)
full-time positions in the Port of Dubuque, as of July 1, 2007. In the event that the
certificate provided to City under Section 17.2 hereof on July 1, 2017, discloses that
Durrant Group does not as of that date have at least fifty-nine (59) full-time positions as
provided hereinabove, for any year occurring after the third year during the Term of this
Agreement, the semi-annual Economic Development Grants pursuant to Section 11.2
payable under Section 11.2 for such year under Section 17.2 shall be reduced by the
percentage that the number of such positions bears to the total number of positions (59)
required to be created and maintained by this Section 17.1.
17.2. Certification. To assist City in monitoring the performance of Adams
Development hereunder, three (3) years from the date of this Agreement, and every
year thereafter during the term of this Agreement, a duly authorized officer of Adams
Development shall certify to City (1) the number of full-time positions maintained in the
City of Dubuque, Iowa, and the number of full-time positions created in the City of
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Dubuque, Iowa, and (2) to the effect that such officer has re-examined the terms and
provisions of this Agreement and that at the date of such certificate, and during the term
of this Agreement, Durrant Group is not or was not in default in the fulfillment of any of
the terms and conditions of this Agreement and that no Event of Default (or event
which, with the lapse of time or the giving of notice, or both, would become an Event of
Default) is occurring or has occurred as of the date of such certificate or during the term
of this Agreement, or if the signer is aware of any such default, event or Event of
Default, said officer shall disclose in such statement the nature thereof, its period of
existence and what action, if any, has been taken or is proposed to be taken with
respect thereto. Such certificate shall be provided not later than January 1, 2010, and
on January 1, 2011, through January 1, 2018.
17.3. Books and Records. Adams Development shall keep at all times proper books
of record and account in which full, true and correct entries will be made of all dealings
and transactions of or in relation to the business and affairs of Adams Development in
accordance with generally accepted accounting principles consistently applied
throughout the period involved, and Adams Development shall provide reasonable
protection against loss or damage to such books of record and account.
17.4. Non-Discrimination. In carrying out the project, Adams Development shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, national origin, age, sexual orientation, or disability.
17.5. Compliance with Laws. Adams Development will comply with all laws, rules
and regulations relating to its businesses, other than laws, rules and regulations the
failure to comply with which or the sanctions and penalties resulting therefrom, would
not have a material adverse effect on the business, property, operations, financial or
otherwise, of the Adams Development.
SECTION 18. EVENTS OF DEFAULT. The following shall be "Events of Default"
under this Agreement and the term "Event of Default" shall mean, whenever it is used in
this Agreement, anyone or more of the following events:
18.1. Failure by Adams Development to payor cause to be paid, before thirty days
after such payments are due, all real property taxes assessed with respect to the
applicable Minimum Improvements and Property;
18.2. Failure by Adams Development to cause the construction of the applicable
Minimum Improvements (or applicable phases of Minimum Improvements) to be
commenced and completed pursuant to the terms, conditions and limitations of this
Agreement;
18.3. Subject to Section 16.6, transfer of any interest by Adams Development of
applicable Minimum Improvements in violation of the provisions of this Agreement prior
to the issuance of the final Certificate of Completion; or
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18.4. Failure by Adams Development or City to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
SECTION 19. REMEDIES ON DEFAULT BY ADAMS DEVELOPMENT. Whenever
any Event of Default referred to in Section 18, above, occurs and is continuing, City, as
specified below, may take anyone or more of the following actions after the giving of
written notice by City to Adams Development (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 Adams Development or if applicable, the Mortgagee, does not provide
assurances to City that the Event of Default will be cured as soon as reasonably
possible thereafter:
19.1. City may suspend its performance under this Agreement until it receives
assurances from Adams Development deemed adequate by City, that Adams
Development will cure its default and continue its performance under this Agreement;
19.2. Until the Closing, City may cancel and rescind this Agreement;
19.3. City shall be entitled to recover the Acquisition Grant and the sum of all amounts
expended by City in connection with the funding of the Acquisition Grant and City may
take any action, including any legal action it deems necessary, to recover such amounts
from the defaulting party;
19.4. City may withhold the Certificate of Completion; and
19.5. In the event that subsequent to conveyance of the Property to Adams
Development by City and prior to receipt by Adams Development of the Certificate of
Completion, but subject to the terms of the mortgage granted by Adams Development to
secure a loan obtained by Adams Development from a commercial lender or other
financial institution to fund the acquisition of the Property or construction of the
applicable Minimum Improvements (First Mortgage) an Event of Default under Section
18 of this Agreement occurs and is not cured within the times specified in Section 19,
then City shall have the right to re-enter and take possession of the Property and any
portion of the applicable Minimum Improvements thereon and to terminate (and revest
in City pursuant to the provisions of this Section 19 subject only to any superior rights in
any holder of the First Mortgage) the estate conveyed by City to Adams Development,
it being the intent of this provision, together with other provisions of this Agreement, that
the conveyance of the Property to Adams Development 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 18 on the part of Adams Development and failure on
the part of Adams Development 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 Adams
Development's rights and interests in and to the Property conveyed to Adams
30
Development, and that such title and all rights and interests of Adams Development,
and any assigns or successors in interests of Adams Development, and any assigns or
successors in interest to and in Property, shall revert to City (subject to the provisions of
Section 19 of this Agreement), but only if the events stated in Section 18 of this
Agreement have not been cured within the time period provided above, or, if the events
cannot be cured within such time periods, Adams Development does 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 Adams Development's first mortgage
lender, in a form reasonably acceptable to City and to Adams Development's first
mortgage lender.
(1) Upon the revesting in City of title to the Property as provided in Section 19
of this Agreement, City may resell the Property, and if it elects to do so, it 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 applicable Minimum Improvements or such other improvements in their stead
as shall be satisfactory to City and in accordance with the uses specified for such
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 Property the proceeds thereof shall be applied:
(i) First, to pay and discharge the First Mortgage;
(ii) 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 Adams
Development, or by operation of law;
(iii) 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 property
or part thereof (but less any income derived by City from the
property or part thereof in connection with such management); any
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payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) previously
acquiesced in by City) existing on the Property or part thereof at the
time of revesting 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 Adams Development, 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 applicable Minimum
Improvements or any part thereof on Property or part thereof, and
any amounts otherwise owing to City (including water and sewer
charges) by Adams Development and its successors or
transferees; and
(iv) Fourth, to reimburse Adams Development 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 Adams Development in
making any of the applicable Minimum Improvements on Property,
less (2) any gains or income withdrawn or made by such party from
this Agreement or Property.
SECTION 20. REMEDIES ON DEFAULT BY CITY. If City defaults in the
performance of this Agreement, Adams Development may take any action, including
legal, equitable or administrative action which may appear necessary or desirable to
collect any payments due under this Agreement, to recover expenses of Adams
Development, or to enforce performance and observance of any obligation, agreement,
or covenant of City under this Agreement. Adams Development may suspend its
performance under this Agreement until it receive assurances from City, deemed
adequate by Adams Development, that City will cure its default and continue its
performance under this Agreement.
SECTION 21. REMEDIES GENERALLY.
21.1. A non-defaulting party 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.
21.2. No remedy herein conferred upon or reserved to a party 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.
21.3. 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,
32
previous or subsequent breach hereunder.
21.4. 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 attorney's 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 which may be awarded.
SECTION 22. GENERAL TERMS AND CONDITIONS.
22.1. 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 Adams Development: Port of Dubuque Adams Development, LLC
Attn: Mr. Wayne A. Briggs
137 Main Street
Dubuque, IA 52001
With a copy to:
Brian J. Kane
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001
Phone: (563) 582-7980
Fax: (563) 582-5312
If to City:
City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With a 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 22.1.
22.2. Binding Effect; Assignment. This Agreement shall inure to the benefit of and
33
be binding upon the successors and permitted assigns of the parties. Neither party
shall assign any of its rights or obligations hereunder without the prior written consent of
the other party.
22.3. Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on the 2nd day of May, 2020 (the Termination Date).
22.4. Applicable Law; Severability. This Agreement shall be subject to, construed
and enforced in accordance with the laws of the state of Iowa. If any provision of this
Agreement is held invalid under applicable Law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid provision, and to
this end, the provisions hereof are severable.
22.5. Interpretation; Headings. Words and phrases herein shall be interpreted and
understood according to the context in which they are used. The headings of the
articles, sections, paragraphs and subdivisions of this Agreement are for convenience of
reference only, are not to be considered a part hereof and shall not limit or expand or
otherwise affect any of the terms hereof.
22.6. Entire Agreement; Counterparts; Remedies Cumulative. This Agreement,
including any Exhibits, all of which are incorporated by this reference, and the
documents executed and delivered pursuant hereto, constitute the entire agreement
between the parties, and may be amended only by a writing signed by each party. All
agreements, instruments and documents referred to in this Agreement are by this
reference made a part of this Agreement for all purposes. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute but one and the same instrument. The
parties shall have, in addition to the rights and remedies provided by this Agreement, all
those allowed by all applicable laws, all of which shall be in extension of and not in
limitation of those provided hereunder.
22.7. Waivers. Except as herein expressly provided, no waiver by either party of any
breach of this Agreement, or of any warranty or representation hereunder, shall be
deemed to be a waiver by the same party of any other breach of any kind or nature
(whether preceding or succeeding the breach in question, and whether or not of the
same or similar nature).
(1) No acceptance by a party of payment or performance after any such
breach shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder, whether or not the party knows of the
breach when it accepts such payment or performance.
(2) No failure by a party to exercise any right it may have under this
Agreement or under law upon another party's default, and no delay in the
exercise of that right, shall prevent it from exercising the right whenever the other
34
party continues to be in default. No such failure or delay shall operate as a
waiver of any default or as a modification of the provisions of this Agreement.
22.8. Construction Against Drafter. It is acknowledged that each of the parties have
had substantial input individually, and by their attorneys, into the drafting of this
agreement. It is therefore agreed that the Agreement shall not be construed for or
against either of the parties based upon the identity of the drafter of the final Agreement.
22.9. 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.
22.10. Memorandum of Development Agreement. Adams Development shall
promptly record a Memorandum of Development Agreement in the form attached hereto
as Exhibit J in the office of the Recorder of Dubuque County, Iowa. Adams
Development shall pay the costs for so recording.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.]
35
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne Schneider, City Clerk
PORT OF DUBUQUE ADAMS DEVELOPMENT, L.L.C.
By:
THE DURRANT GROUP, INC. (as to Sections 1.1, 17.1 and 17.2)
By:
36
EXHIBIT "A"
See attached Urban Renewal Plan.
37
URBAN RENEWAL PLAN
Greater Downtown Urban Renewal District
(A merger of the Downtown Dubuque and Ice Harbor Urban Renewal Districts)
City of Dubuque, Iowa
This Urban Renewal Plan provides for the merger of the Downtown Urban
Renewal Area Project Number Iowa R-15, originally established by Resolution
123-67 by the City Council of the City of Dubuque, Iowa on May 18, 1967 and
subsequently amended and restated by Resolution 79-71 on March 15, 1971, by
Resolution 73-74 on March 11, 1974, by Resolution 107-82 on May 3,1982, by
Resolution 191-84 on June 25, 1984, by Resolution 371-93 on December 6,
1993, by Resolution 145-94 on May 2, 1994, by Resolution 479-97 on November
17,1997, by Resolution 476-98 on October 19, 1998 and by Resolution 187-02
on April 1, 2002, with the Ice Harbor Urban Renewal District, originally
established by Resolution 403-89 of the City Council of the City of Dubuque,
Iowa on December 18, 1989 and subsequently amended and restated by
Resolution 241-00 on June 5, 2000 and by Resolution 114-02 on March 4, 2002,
that merger adopted by Resolution 170-04 on April 19, 2004.
Prepared by the Economic Development Department
April 2004
38
TABLE OF CONTENTS
A. INTRODUCTION
B. JUSTIFICATION FOR THE DESIGNATION
C. OBJECTIVES OF THE PLAN
D. DISTRICT BOUNDARIES
E. PUBLIC PURPOSE ACTIVITIES
F. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
1. LAND USE
2. PLANNING AND DESIGN CRITERIA
G. LAND ACQUISITION AND DISPOSITION
H. RELOCATION REQUIREMENTS
I. FINANCING ACTIVITIES
J. STATE AND LOCAL REQUIREMENTS
K. DURATION OF APPROVED URBAN RENEWAL PLAN
L. SEVERABILITY
M. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
N. ATTACHMENTS
Page 1
Page 1
Page 2
Page 3
Page 4
Page 5
Page 5
Page 6
Page 7
Page 8
Page 8
Page 10
Page 10
Page 10
Page 11
Page 11
A. INTRODUCTION
This URBAN RENEWAL PLAN ("the Plan") has been prepared to provide
for the merger of two existing Urban Renewal Districts and to stimulate,
through public actions, financing and commitments, private investment
within the combined area, to be known as the Greater Downtown Urban
Renewal District ("the District"). In order to achieve this objective, the City
of Dubuque shall undertake the urban renewal actions specified in this
Plan, pursuant to the powers granted to it under Chapter 403 of the Iowa
Code, Urban Renewal Law, and Chapter 15A of the Iowa Code.
This Plan is a merger of the Downtown Dubuque Urban Renewal District Urban
Renewal Plan, originally established by Resolution 123-67 by the City Council of
the City of Dubuque, Iowa on May 18,1967 and subsequently amended by
Resolution 79-71 on March 15, 1971, by Resolution 73-74 on March 11, 1974, by
Resolution 107-82 on May 3,1982, by Resolution 191-84 on June 25,1984, by
Resolution 371-93 on December 6, 1993, by Resolution 145-94 on May 2, 1994,
by Resolution 479-97 on November 17, 1997, by Resolution 476-98 on October
19, 1998 and by Resolution 187-02 on April 1 , 2002 and the Ice Harbor Urban
Renewal District Urban Renewal Plan, originally established by Resolution 403-
89 of the City Council of the City of Dubuque, Iowa on December 18, 1989 and
subsequently amended and restated by Resolution 241-00 on June 5, 2000 and
by Resolution 114-02 on March 4, 2002 ("the Merged Districts").
This Plan shall serve as a new urban renewal plan for the Merged Districts
described herein. The Plan shall be viewed as a single plan for purposes of
fulfilling the objectives of the Plan.
B. JUSTIFICATION FOR THE DESIGNATION
The City Council of the City of Dubuque, Iowa has determined that the following
blighting conditions, as defined by Chapter 403 of the Iowa Code, Urban Renewal
Law, exist within the District:
. Undeveloped and underdeveloped land;
. A preponderance of deteriorated, dilapidated and obsolete public and
private improvements;
. A faulty lot layout in relation to the size, adequacy and usefulness of the
lots;
. Fragmented property ownership patterns;
. A lack of public utilities; and
. An inadequate street layout.
1
The Council has declared by Resolution of Necessity No. 86-04 on March 1,
2004 that these factors have substantially impaired and arrested the sound
growth of the City of Dubuque and of the area comprising the Merged Districts.
C. OBJECTIVES OF THE PLAN
The primary OBJECTIVES of the Plan are:
1. The creation of a thriving central business and riverfront
district with a compatible mix of viable commercial/retail, office, financial,
residential, cultural, recreational and educational activities;
2. The development of an adequate support system for new
and expanding river-related tourism activities;
3. The conservation, restoration, renovation or rehabilitation of
the historic and architectural character of the District through the
establishment of design standards to ensure cohesive and compatible
development and redevelopment, the use of appropriate construction
techniques, the coordinated administration of appropriate code
enforcement efforts and the maximization of all available financial and
technical resources;
4. The creation of a safe, healthy and attractive physical
environment through the construction or installation of necessary
infrastructure and other public improvements or actions supportive of the
District;
5. The creation of a safe, efficient, and attractive circulation
system for both pedestrian and vehicular traffic;
6. The development of additional and improved parking
opportunities in the District supportive of the businesses located within its
boundaries and which accommodate the needs of its residents;
7. The creation of financial incentives necessary to encourage
private investment and reinvestment in the District;
8. The creation and retention of quality employment
opportunities in the District; and
9. The expansion of the existing property tax base of the District.
2
D. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of
Iowa. The District includes five separate subareas that have resulted from prior
expansions of the Merged Districts: the Town Clock Subarea, the Old Main
Subarea, the Upper Main Subarea, the Ice Harbor Subarea A and Ice Harbor
Subarea B. Despite this subdivision of the District, this Plan shall be viewed as a
single plan and shall be applied to all subareas for purposes of fulfilling the
objectives of the Plan.
The boundaries of each subarea are as follows:
1. The Town Clock Subarea of the District shall include that
area generally bounded on the North by Ninth Street but also including the
Iowa Inn property and the public parking lot known as Parking Lot Number
1 located between 9th and 10th Streets east of Iowa Street, on the West
by Locust Street including City Lots 623 and 624 (Dubuque Museum of
Art), on the South by Fourth Street, and on the East by Central Avenue,
including all public rights-of-way.
2. The Old Main Subarea of the District shall include that area
generally bounded on the North by Fourth Street, on the West by Locust
Street, on the South by the Locust Street Connector and on the East by
the U.S. Highway 151/61 right-of-way, including all public rights-of-way.
3. The Upper Main Subarea of the District shall include that
area generally bounded on the North by Fourteenth Street, on West by
Locust Street, on the South by the Town Clock Subarea and on the East
by Central Avenue, including all public rights-of-way.
4. Ice Harbor Subarea A of the District shall include that area
generally bounded on the north by the public alley located between the
vacated Fourth Street and Third Street, on the west by the Chicago,
Central and Pacific Railroad right-of-way, on the south by East First Street
and on the east by the municipal limits of the City of Dubuque, Iowa and
including any adjoining public right-of-way.
5. Ice Harbor Subarea B of the District shall include that area
generally bounded on the north and west by the Chicago, Central and
Pacific Railroad right-of-way, on the south by the northerly boundary of
Subarea A and on the east by the municipal limits of the City of Dubuque
(excluding Lot 1 Adams Co.'s 2nd Addition) and including any adjoining
3
public right-of-way.
The boundaries of the District and the subareas are delineated on the URBAN
RENEWAL DISTRICT map (Attachment A).
The City of Dubuque reserves the right to modify the boundaries of the District at
some future date. Any amendments to the Plan will be completed in accordance
with Chapter 403 of the Iowa Code, Urban Renewal Law.
E. PUBLIC PURPOSE ACTIVITIES
To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to
initiate and support development and redevelopment of the District through the
following PUBLIC PURPOSE ACTIVITIES:
1. Pre-development planning, including but not limited to activities
such as appraisals, architectural and engineering studies, environmental
assessment and remediation, and feasibility analysis;
2. Provision of technical support to property owners, businesses and
organizations in support and furtherance of the Plan;
3. Use of tax increment financing, loans, grants and other appropriate
financial tools in support of eligible public and private conservation,
preservation, development and redevelopment efforts including the
adaptive re-use of existing structures and code compliance;
4. Preparation of property for conservation, preservation,
rehabilitation, development and redevelopment purposes;
5. Development and implementation of a program for the repair,
restoration, and renovation of historic buildings and related improvements;
6. Improvement, installation, construction and reconstruction of public
facilities and improvements including but not limited to structured parking
facilities, other parking facilities, streets, alleys, utilities, convention
facilities, Riverwalk and Harborwalk improvements and amenities, boat
docks, dredging and other river-related improvements;
7. Improvement, installation, construction and reconstruction of other
public improvements including but not limited to the relocation of overhead
utility lines, installation of street lights, construction of public rest rooms
and water fountains, installation of benches and other streetscape
amenities, landscaping and sign age;
4
8. Acquisition of property through negotiation or eminent domain for
public improvements or private development and redevelopment
purposes;
9. Disposition of land through sale or lease;
10. Relocation or elimination of existing private improvements;
11. Relocation or elimination of existing railroad spur lines;
12. Demolition and clearance of deteriorated, obsolescent and blighting
structures and other improvements not found to be of historical or
architectural significance, including but not limited to site preparation for
redevelopment purposes; and
13. Enforcement of applicable local, state and federal laws, codes and
regulations;
Public purpose activities are limited to those areas delineated on the PUBLIC
PURPOSE ACTIVITY AREA map (Attachment B).
All public purpose activities shall be conditioned upon and shall meet the
restrictions and limitations placed upon the District by the Plan.
F. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall
apply to any and all District properties the preservation, conservation,
development and/or the redevelopment of which is assisted by the City through
any of the PUBLIC PURPOSE ACTIVITIES listed above.
1. LAND USE:
a. Town Clock Subarea: The intent of this Plan is to promote the
preservation, conservation, development and redevelopment of a
functional, attractively developed environment to further existing office,
financial, commercial/retail, cultural, educational, personal and
professional services and residential activities within the Town Clock
Subarea.
The continued development and enhancement of those land uses
permitted within the Downtown Commercial Business District (C-4), the
Business District (C-5) and the Office Residential (OR) zones of the City of
5
Dubuque's Zoning Ordinance are encouraged.
LAND USE maps (Attachments C-1 and C-2) identify the existing and the
proposed land uses within the Town Clock Subarea.
b. Old Main Subarea: The intent of this Plan is to promote private
investment and reinvestment in a variety of commercial/retail,
entertainment and residential uses while furthering existing
commercial/retail, personal and professional services, entertainment and
residential activities within the Old Main Subarea.
The continued development and enhancement of those land uses
permitted within the Downtown Commercial Business District (C-4) and
Business District (C-5) zones of the City of Dubuque's Zoning Ordinance
are encouraged.
LAND USE maps (Attachments C-3 and C-4) identify the existing and the
proposed land uses within the Old Main Subarea.
c. Upper Main Subarea: The intent of this Plan is to promote
the preservation, conservation, development and redevelopment of this
downtown neighborhood of residential, office and commercial/retail uses.
The continued development and enhancement of those land uses permitted
within the Downtown Commercial Business District (C-4), the Business District
(C-5), the Office Residential (OR) and Office Service (OS) zones of the City of
Dubuque's Zoning Ordinance are encouraged.
LAND USE maps (Attachments C-5 and C-6) identify the existing and the
proposed land uses within the Upper Main Subarea.
d. Ice Harbor Subareas A and B: The intent of this plan is to
encourage a mix of residential, commercial/retail, recreational and
educational uses in these Subareas. An adopted Planned Unit
Development ordinance shall regulate land uses and zoning in the Ice
Harbor Subareas A and B.
LAND USE maps (Attachments C-7 and C-8) identify the existing and the
proposed land uses within the Ice Harbor Subareas A and B.
2. PLANNING AND DESIGN CRITERIA:
6
a. Town Clock. Old Main and Upper Main Subareas: The planning
and design criteria to be used to guide the physical development and
redevelopment of the Town Clock, Old Main and Upper Main Subareas
are those standards and guidelines contained within the City of Dubuque's
Zoning Ordinance and other applicable local, state and federal codes and
ordinances subject to the conditions contained in this subsection.
b. Ice Harbor Subareas A and B: The planning and design criteria to
be used to guide the physical development and redevelopment of the Ice
Harbor Subareas A and B shall be the Port of Dubuque Master Plan
Design Standards attached hereto as Attachment D.
c. Historic Preservation Commission Review: Additionally, the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for
Rehabilitating Historic Structures shall be used to guide the exterior
modifications of historic and architecturally significant properties financed
in whole or in part by the City of Dubuque and the improvement,
installation, construction or reconstruction of public improvements in the
District. Said projects shall be reviewed by the Historic Preservation
Commission for compliance with the above referenced standards.
d. Off-Premise Sianaae: No off-premise signage shall be allowed in
the Ice Harbor Subareas A and B.
e. Overhead Utilitv Lines: No new overhead utility lines shall be
installed within the District where underground placement is feasible.
G. lAND ACQUISITION AND DISPOSITION
The City of Dubuque is prepared to acquire and dispose of property in support of
the development and redevelopment of the District within the parameters set
forth below.
1. land Acauisition: The City may acquire property for private development
or redevelopment by contractual agreement or by right of eminent domain. The
City reserves the right to acquire, by negotiation or eminent domain, property
rights required for the construction or reconstruction of streets and public utilities,
or any other public facility or improvement. No properties are identified for
acquisition in this Plan.
2. land Disposition: Publicly held land will be sold for the development of
viable uses consistent with this Plan, and not for purposes of speculation.
7
Land will be disposed of in accordance with the requirements set forth in Chapter
403 of the Iowa Code, Urban Renewal Law. Developers and redevelopers will
be selected on the basis of the quality of their proposals and their ability to carry
out such proposals while complying with the requirements of this Plan.
Developers and redevelopers will be required by contractual agreement to
observe the Land Use Requirements and Planning and Design Criteria of this
Plan. The contract and other disposition documents will set forth the provisions,
standards and criteria for achieving the objectives and requirements outlined in
this Plan.
H. RELOCATION REQUIREMENTS
Relocation assistance in accordance with applicable provisions of Chapter 316 of
the Iowa Code, Highway Relocation Assistance Law, will be provided in the event
that an existing business or residence is displaced by publicly supported
development or redevelopment activities.
I. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development and
redevelopment of the District and private investment therein, the City of Dubuque
is prepared to provide financial assistance to qualified industries, businesses and
housing developers through the making of loans or grants under Chapter 15A of
the Iowa Code and through the use of tax increment financing under Chapter 403
of the Iowa Code.
1. Chapter 15A Loan or Grant: The City of Dubuque has determined that the
making of loans or grants of public funds to qualified industries, businesses and
housing developers is necessary to aid in the planning, undertaking and
completion of urban renewal projects authorized under this Plan within the
meaning of Section 384.24(3)(q) of the Iowa Code. Accordingly, in furtherance of
the objectives of this Plan, the City of Dubuque may determine to issue bonds or
loan agreements, in reliance upon the authority of Section 384.24A, Section
384.24(3)(q), Section 403.12 (general obligation bonds) or Section 403.9 (tax
increment bonds), for the purpose of making loans or grants of public funds to
qualified entities. Alternatively, the City may determine to use available funds for
the making of such loans or grants. In determining qualifications of recipients
and whether to make any such individual loans or grants, the City of Dubuque
shall consider one or more of the factors set forth in Section 15A.1 of the Iowa
Code on a case-by-case basis.
2. Tax Increment Financinq: The City of Dubuque is prepared to utilize tax
8
increment financing as a means of financing eligible costs incurred to implement
the Public Purpose Activities identified in Section E of this Plan. Bonds or loan
agreements may be issued by the City under the authority of Section 403.9 of the
Iowa Code (tax increment bonds) or Section 384.24A, Section 384.24(3)(q) and
Section 403.12 (general obligation bonds).
The City acknowledges that the use of tax increment revenues delays the ability
of other local taxing bodies to realize immediately the direct tax benefits of new
development in the District. The City believes, however, that the use of tax
increment revenues to finance the public improvements and to promote private
investment in the District is necessary in the public interest to achieve the
OBJECTIVES of this Plan. Without the use of this special financing tool, new
investment may not otherwise occur or may occur within another jurisdiction. If
new development does not take place in Dubuque, property values could
stagnate and the City, County and School District may receive less taxes during
the duration of this Plan than they would have if this Plan were not implemented.
Tax increment financing will provide a long-term payback in overall increased tax
base for the City, County and School District. The initial public investment
required to generate new private investment will ultimately increase the taxable
value of the District well beyond its existing base value.
Tax increment reimbursement may be sought for, among other things, the
following costs to the extent they are incurred by the City:
a. Planning and administration of the Plan;
b. Construction of any of the public improvements, amenities and
facilities contemplated by the Plan within the District, including pre-
development planning, environmental assessment and remediation,
feasibility analysis and engineering costs;
c. Acquisition, installation, maintenance and replacement of public
improvements throughout the District including but not limited to street
lights, benches, landscaping, appropriate signage and rest rooms;
d. Acquisition of land and/or buildings and preparation of same for
sale to private developers, including any "write down" of the sale price of
the land and/or building;
e. Preservation, conservation, development or redevelopment of
buildings or facilities within the District to be sold or leased to qualifying
for-profit and not-for-profit organizations. developers and businesses;
f. Loans or grants to qualified entities under Chapter 15A of the Iowa
9
Code, including debt service payments on any bonds issued to finance
such loans or grants, for purposes of expanding the business or activity, or
other qualifying loan programs established in support of the Plan; and
g. Providing the matching share for a variety of local, state and federal
grants and loans.
3. Proposed Amount of Indebtedness: At this time, the extent of
improvements and new development within the District is only generally known.
As such, the amount and duration for use of the tax increment revenues for
public improvements and/or private development can only be estimated;
however, the actual use and amount of tax increment revenues to be used by the
City for District activities will be determined at the time specific development is
proposed.
10
It is anticipated that the maximum amount of indebtedness which will
qualify for tax increment revenue reimbursement during the duration of
this Plan, including acquisition, public improvements and private
development assistance, will not exceed $75,000,000. Current
indebtedness is approximately $39,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general
obligation debt is $25,670,000 (a list of obligations is found as Attachment
E) and the applicable constitutional debt limit is $121,793,282.
J. STATE AND LOCAL REQUIREMENTS
All provisions necessary to conform with state and local laws have been
complied with by the City of Dubuque in the implementation of this Plan
and its supporting documents.
K. DURATION OF APPROVED URBAN RENEWAL PLAN
This Plan shall continue in effect until terminated by action of the City
Council, but in no event before the City of Dubuque has received full
reimbursement from all incremental taxes for its advances and principal
and interest payable on all Tax Increment Financing or general obligations
issued to carry out the OBJECTIVES of the Plan.
The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
established, or as amended from time to time by the City of Dubuque
Zoning Ordinance, shall remain in effect in perpetuity.
L. SEVERABILITY
In the event one or more provisions contained in this Plan shall be held for
any reason to be invalid, illegal, unauthorized or unenforceable in any
respect, such invalidity, illegality, unauthorization or unenforceability shall
not affect any other provision of this Plan and this Urban Renewal shall be
construed and implemented as if such provision had never been contained
herein.
M. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
This Plan may be amended from time to time to respond to development
opportunities. Any such amendment shall conform to the requirements of
Chapter 403 of the Iowa Code, Urban Renewal Law. Any change
effecting any property or contractual right can be effectuated only in
accordance with applicable state and local law.
N. ATTACHMENTS
The following attachments are a part of this Plan:
A Urban Renewal District Map, with Subareas
B Public Activity Area Map
C Land Use Maps
C-1 Town Clock Subarea Existing Land Use Map
C-2 Town Clock Subarea Proposed Land Use Map
C-3 Old Main Subarea Existing Land Use Map
C-4 Old Main Subarea Proposed Land Use Map
C-5 Upper Main Subarea Existing Land Use Map
C-6 Upper Main Subarea Proposed Land Use Map
C-7 Ice Harbor Subareas A and B Existing Land Use Map
C-8 Ice Harbor Subareas A and B Proposed Land Use Map
D Port of Dubuque Master Plan Design Standards
E List of Current General Obligation Debt
12
EXHIBIT "B"
See attached Phases and locations thereof.
13
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EXHIBIT "C"
See form Legal Opinion attached.
15
BAR R Y A. L I N 0 A H L, ESQ.
CITY ATTORNEY
(DATE)
RE:
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the
execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for
reference purposes the _ day of , 20_.
The City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
BAL:tls
16
EXHIBIT "0"
See form Certificate - City attached
17
MVM Letterhead
Dear:
I am the City Manager of the City of Dubuque, Iowa and have acted in that
capacity in connection with the execution and delivery of a certain Development
Agreement between (Developer) and the City of Dubuque,
Iowa (City) dated for reference purposes the _ day of , 20_.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer
that to the best of my knowledge:
1. No action in condemnation, eminent domain or public taking proceedings
are now pending or contemplated against the Property;
2. No ordinance or hearing is now or before any local governmental body
which either contemplates or authorizes any public improvements or special tax
levies, the cost of which may be assessed against Property;
3. City has good and marketable fee simple title interest to the Property;
4. 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;
5. The Property will as of the date of closing be free and clear of all liens,
security interests, encumbrances;
6. 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 representation contained herein;
7. All City utilities necessary for the development and use of the Property as
provided in the Agreement adjoin the Property, and McGraw-Hili shall have the
right to tie into said utilities upon payment of City's connection fees;
8. The Property is free and clear of any occupants, and no party has a lease
18
to or other occupancy or contract right in the Property which shall in anyway be
binding upon Developer;
9. City shall exercise its best efforts to cooperate with Developer in the
development process;
10. City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion;
11. With respect to the period during which City has owned or occupied the
Property, and to City's knowledge after reasonable investigation with respect to
the time before City owned or occupied the Property, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property other than as described in the
environmental reports that City has provided to Developer, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws;
12. There are no fees or other charges payable by Developer for City utilities
serving the Property, as a result of utility hook-ups, other than the fees for
connecting to and installing meters with regard to such utilities; and
13. The property is properly zoned for the use described in the Agreement.
Very sincerely,
19
EXHIBIT "E"
See form Legal Opinion - Adams Development attached
20
Mayor and City Councilmembers
Ci~Hall
13 and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) between Developer and the City of Dubuque, Iowa
("City") dated for reference purposes the _ day of , 20_,
We have examined the original certified copy, or copies otherwise
identified to our satisfaction as being true copies, of the Development Agreement
and such other documents and records as we have deemed relevant and
necessary as a basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other
inquiries as we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing
under the laws of the State of and has full power and authority to
execute, deliver and perform in full Development Agreement. Development
Agreement has been duly and validly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by City, is in
full force and effect and is valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result
in violation of any provision of, or in default under, the articles of incorporation
and bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to
which the Developer is a party or by which Developer's property is bound or
subject.
3. There are no actions, suits or proceedings pending or threatened
against or affecting Developer in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in
21
any manner raises any questions affecting the validity of the Agreement or
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
22
EXHIBIT "F"
See form Warranty Deed attached.
23
Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA
52001 563583-4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001
563583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa,
a municipal corporation of the State of Iowa (Grantor), in consideration of the
Grantee named below undertaking the obligations of the Developer under the
Development Agreement described below and the sum of
and no/100 Dollars ($ ) in hand paid, and
other good and valuable consideration, and pursuant to the authority of Chapter
403, Code of Iowa, does hereby GRANT, SELL AND CONVEY unto
, an Iowa limited liability company
(Grantee), the following described parcel(s) situated in the County of Dubuque,
State of Iowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section
428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of
the City Council of the City of Dubuque adopted the _ day of
20_, the terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under
and is subject to all the terms, provisions, covenants, conditions and restrictions
contained in that certain Development Agreement executed by Grantor and
Grantee herein, dated the _ day of , 20_ (the Agreement), a
memorandum of which was recorded on the _ day of , 20_, in
the records of the Recorder of Dubuque County, Iowa, Instrument Number
Promptly after completion of the improvements in accordance with the
provisions of the Agreement, Grantor will furnish Grantee with a Certificate of
Completion in the form set forth in the Agreement. Such certification by Grantor
shall be, and the certification itself shall so state, a conclusive determination of
satisfaction and termination of the agreements and covenants of the Agreement
and of this Deed with respect to the obligation of Grantee, and its successors and
assigns, to construct improvements and the dates for the beginning and
24
completion thereof, it being the intention of the parties that upon the granting and
filing of the Certificate of Completion that all restrictions and reservations of title
contained in this Deed be forever released and terminated and that any
remaining obligations of Grantee pursuant to the Agreement shall be personal
only.
All certifications provided for herein shall be in such form as will enable
them to be recorded with the County Recorder of Dubuque, Iowa. If Grantor
shall refuse or fail to provide any such certification in accordance with the
provisions of the Agreement and this Deed, Grantor shall, within twenty days
after written request by Grantee, provide Grantee with a written statement
indicating in adequate detail in what respects Grantee has failed to complete the
improvements in accordance with the provisions of the Agreement or is otherwise
in default, and what measures or acts will be necessary, in the opinion of
Grantor, for Grantee to take or perform in order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and
Grantee herein shall fail to cure such default within the period and in the manner
stated in the Agreement, then Grantor shall have the right to re-enter and take
possession of the Property and to terminate and revest in Grantor the estate
conveyed by this Deed to Grantee, its assigns and successors in interest, in
accordance with the terms of the Agreement.
None of the provisions of the Agreement shall be deemed merged in,
affected or impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises
against the lawful claims of all persons whomsoever claiming by, through and
under it.
Dated this
of
, 20_ at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
Attest:
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
25
STATE OF IOWA
)
)
)
SS
COUNTY OF DUBUQUE
On this _ day of , 20_, before me a Notary Public
in and for said County, personally appeared Roy D. Buol and Jeanne F.
Schneider to me personally known, who being duly sworn, did say that they are
the Mayor and City Clerk, respectively of the City of Dubuque, Iowa, a Municipal
Corporation, created and existing under the laws of the State of Iowa, and that
the seal affixed to the foregoing instrument is the seal of said Municipal
Corporation, and that said instrument was signed and sealed on behalf of said
Municipal Corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed
of said Municipal Corporation by it voluntarily executed.
Notary Public in and for Dubuque County, Iowa
26
EXHIBIT "G"
See form Title Policy attached. [Not applicable]
27
EXHIBIT "H"
Schedule of Roofing Materials
2" Nailbase Insulation $25,990.00
2" ISO Insulation $15,570.00
Fasteners $ 4,390.00
Steel Deck $22,014.00
Bent steel plate material $ 4,181.00
Total Materials to purchase: $72,145.00
28
EXHIBIT "I"
Multi-Use Phases:
1. Phase II.
Timeline as provided in Section 13.2 and 13.3
For example, if this Agreement is entered into and approved by the
City on January 1,2007, plans for the Multi-Use Project must be
agreed to between the City and Adams Development (pursuant to
Section 13.2) by no later that July 1, 2007, and the closing for the
Phase II Multi-Use Project Property and commencement of the
Phase II Multi-Use Minimum Improvements must occur by October
1,2007. The Phase II Minimum Improvements must be
substantially completed by October 1,2009.
2. Phase III.
Close on Phase III Multi-Use Property and commence construction
of Phase III Minimum Improvements within 3 months of substantial
completion of Phase II, with construction to be substantially
complete within 15 months thereafter.
For example, if this Agreement is entered into and approved by the
City on January 1,2007, and Phase II is substantially completed by
January 1,2009, the closing for the Phase III Multi-Use Project
Property and commencement of the phase III Multi-Use Minimum
Improvements must occur by April 1 , 2009; thereafter, substantial
completion of the Phase III Minimum Improvements must occur by
July 1, 2010.
3. Phase IV.
Close on Phase IV Multi-Use Property and commence construction
of Phase IV Minimum Improvements within 3 months of substantial
completion of Phase III, with construction to be substantially
complete within 15 months thereafter.
For example, if this Agreement is entered into and approved by the
City on January 1,2007, and Phase III is substantially completed
by June 1, 2010, the closing for the Phase IV Multi-Use Project
Property and commencement of the Phase IV Multi-Use Minimum
Improvements must occur by September 1, 2010; thereafter,
substantial completion of the Phase IV Minimum Improvements
must occur by December 1, 2011.
29
EXHIBIT "J"
See form Memorandum of Development Agreement attached.
30
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001
563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563
583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the _
day of . 20_, and contains covenants, conditions, and restrictions
concerning the sale and use of said premises.
This Memorandum of Development Agreement is recorded for the
purpose of constructive notice. In the event of any conflict between the
provisions of this Memorandum and the Development Agreement itself, executed
by the parties, the terms and provisions of the Development Agreement shall
prevail. A complete counterpart of the Development Agreement, together with
any amendments thereto, is in the possession of the City of Dubuque and may
be examined at its offices as above provided.
Dated this _ day of
,20_.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
55:
DUBUQUE COUNTY
31
On this _day of ,20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and
Jeanne F. Schneider, to me personally known, who being by me duly sworn did
say that they are the Mayor and City Clerk, respectively of the City of Dubuque, a
Municipal Corporation, created and existing under the laws of the State of Iowa,
and that the seal affixed to said instrument is the seal of said Municipal
Corporation and that said instrument was signed and sealed on behalf of said
Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed
of said Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
55:
DUBUQUE COUNTY
On this _ day of ,20_, before me, a Notary Public in and
for the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by
authority of its members and that they acknowledged the execution of this
instrument to be the voluntary act and deed of said company by it
voluntarily executed.
Notary Public, State of Iowa
F:\USERS\DHeiar\Port of Dubuaue Adams Develooment LLC\Port of Dub Adams Dev Aar FINAL 112906 514om.doc
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