Diamond Jo Devel Agreement 1st AmendmentTI-IE CITY OF
DUB E MEMORANDUM
Masterpiece nn the Mississippi
May 16, 2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: First Amendment to Diamond Jo Development Agreement
Economic Development Director Dave Heiar is recommending approval of the First
Amendment to the Diamond Jo Development Agreement for the construction of a public
parking ramp. This amendment provides for time extensions on the bid award and
project completion and a special bond provision related to the north facade of the
parking ramp. The special provision is needed because if Wayne Briggs builds his
mixed-use development, it will cover the north facade of the parking ramp and minimal
decorative covering of that north facade will be needed.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
i ~ G'2'--~ ' ti.--.o ~-
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
THE CITY OF
DUB E
Masterpiece on the Mississippi
MEMORANDUM
May 16, 2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director `~\
SUBJECT: First Amendment to Diamond Jo Development Agreement
INTRODUCTION
Some of the provisions in the original development agreement with Diamond Jo, LLC
need to be modified to reflect the current schedule and other changes associated with
the proposed public parking ramp construction.
DISCUSSION
On February 5, 2007, the City Council approved a development agreement with
Diamond Jo, LLC for the financing of the design, construction and cost of on going
operations and maintenance of a public parking facility in the Port of Dubuque. The
development agreement provides deadlines for various aspects of the project including
the award of bids and project completion. The initial planning stages and project design
have taken somewhat longer than initially anticipated. The Diamond Jo is agreeable to
amending the development agreement to allow for the extension of deadlines as
follows;
Bid award from June 30, 2007 to August 31, 2007
Project Completion from August 1, 2008 to August 8, 2008 for the lower three
levels of the North section
And November 11, 2008 for the fourth level of the North section and all levels of
the South section.
(see attached amendment and sketch which designate North and South)
The other issue that has arisen since the project design was initiated relates to the
North facade of the parking ramp. The current design for the facade on the North of the
ramp is estimated to cost $1.92 million. The architect has been instructed to provide
alternative designs that would be less expensive but still aesthetically pleasing. The
North facade may or may not even be necessary depending on the construction of the
Briggs mixed use project. Our current development agreement with Mr. Wayne Briggs
allows him to construct his mixed use project in three phases over the next 5 or 6 years.
to recent discussions, Mr. Briggs has indicated that he is considering constructing the
entire project in one phase. Once the entire mixed use project is completed, the North
facade of the four level parking ramp will not be visible. City staff and the Diamond Jo
agree that it would not make sense to spend nearly $2 million on a facade that will be
totally covered by the mixed use structure; however, a final decision on how the
construction will proceed has not yet been finalized.
The proposed solution to this timing issue is to sell additional bonds to cover the cost of
the facade. A portion of the proposed bond sale would have an early call (extraordinary
redemption) feature. If the facade is not needed, this portion of the bond would be called
and repaid, thereby reducing the outstanding bond issue
All other provisions of the February 5, 2007 Development Agreement would remain the
same.
RECOMMENDATION
I recommend that the City Council approve the attached resolution approving the 1St
amendment to the February 5, 2007 Development Agreement with Diamond Jo, LLC, to
provide for time extensions on the bid award and project completion, and the special
bond provisions for the North facade of the parking ramp.
F:\USERS\DHeiar\Diamond Jo\1 st Amendment to Diamond Jo Development Agreement memo.doc
RESOLUTION NO 300-07
RESOLUTION APPROVING THE FIRST AMENDMENT TO THE f~ORT OF
DUBUQUE PUBLIC PARKING FACILITY DEVELOPMENT AGREEMENT
Whereas, a Development Agreement {the Agreement), dated February 5, 2007,
was entered into by and between the City of Dubuque, a municipal corporation of the
State of Iowa (City), and Diamond Jo, LLC (f/k/a DJ Gaming Company, LLC), a
pelaware limited liability company (DJ); and
Whereas, Ci#y and DJ now desire to amend the Development Agreement as set
forth attached First Amendment.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the First Amendment of the Port of Dubuque Public Parking
Facility Development Agreement is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execu#e said
First Amendment on behalf of the City of Dubuque and the City Clerk is authorized and
directed to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to implement the terms of the First Amendment as herein approved.
Passed, approved and adopted this 21st day of May, 2007.
~!
Roy D. Buol, Mayor
Attest:
Kevin S. Firnstahl, Asst. City Clerk
F:IUSERS\DHeiar\Diamond Jo\Resolution approving first DA amendment.doc
FIRST AMENDMENT
TO
PORT OF DUBUQUE PUBLIC PARKING FACILITY
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DIAMOND JO, LLC
Whereas, a Development Agreement {the Agreement), dated February 5,
2007, was entered into by and between the City of Dubuque, a municipal
corporation of the State of Iowa {City), and Diamond Jo, LLC (f/k/a DJ Gaming
Company, LLC), a Delaware limited liability company (DJ); and
Whereas,.City and DJ now desire #o amend the Development Agreement
as set forth herein.
Now, therefore, the parties agree that the Development Agreement is
amended as follows:
1. Section 2.1 is amended to read as follows:
2.1. Design and Construction of the Public Parkins Facility. Subject to the
conditions set forth in this Agreement, City agrees to design and construct the
Public Parking Facility at a cost estimated to be appro~cimately $23,043,800.00
on the Public Parking Facility Deal Estate.
(1) The footprint of the Public Parking facility shall be consis#ent with
the concept shown on Exhibit I, and in harmony with the DJ Development and
the Port of Dubuque Adams Development, L.L.C., and The Durfant°Group, L.L.C.
Development in appearance and function.
(2) City shall retain either YWS Architects or The Durrant Group, Inc.,
based on whichever architect comes in with the lower bid, to design the
Public Parking Facility on terms acceptable to City in its sole discretion
(the "Project Architect").
{3) City shall hold weekly progress meetings with the Project Architect,
DJ and its representatives during the design and oonstnaction of the Public
Parking Facility.
City agrees to allow DJ to provide input and commen#s on the design of
the Public Parking Facility, including but not limited #o providing DJ timely
copies of all design documents and correspondence regarding design and
providing timely notice to DJ of any meetings regarding the design of the
Public Parking Facility and allowing DJ #o attend such meetings.
(4) In the event City fails to retain the Project Architect by March 1,
2007, DJ may at its option terminate this Agreement by written notice to
City. Termination of this Agreement shall be DJ's sole remedy for failure of
City to retain the Project Architect. DJ shall not be entitled to
reimbursement of any costs or damages incurred by DJ in connection with
this Agreement.
.(5) City shall retain as a cost of the design of the Public Parking Facility
an architecture firm to provide such design review as City determines
necessary of the Project Architect's design.
(6) The parties agree that the Public Parking Facility shall be designed
to include a north facade alternate (the "North facade Altemate°), which
shall be included as part of the plans and specifications for the Public
Parking Facility and bid at the same time as the primary construction
contract for the Public Parking Facility. The City shall have the right, in its
sole discretion and without the prior consent of DJ, to either (i) accept a
bid and proceed with the construction of the North Facade Altemate as
part of the primary construction contract for the Public Parking Facility, or
(ii) decline to accept a bid for the North Facade Altemate when the
primary construction contract is awarded. If the City determines not to
accept a bid for the North Facade Alternate when the primary construction
contract for the Public Parking Facility is awarded, the City shall calculate
the average of all bids received for the construction of the North Facade
Altemate that were received at such time, and the average amount so
calculated or, if greater, the amount bid by the contractor being awarded
the primary construction contract, shall be included in the amount of the
Bonds described in Section 2.3 hereof. The City shall place the proceeds
from the Bonds related to the North Facade Altemate in an interest
bearing account. At any time prior to June 1, 2012, the City may
determine to use those Bond proceeds, and such other City funds as it
may determine to be appropriate, to construct the North Facade Altemate.
In the event the City does not elect to use those Bond proceeds to
construct the North Facade Altemate prior to June 1, 2012, those Bond
proceeds including investment income thereon, will be applied to redeem
Bonds on that date or as soon as is practicable once such election is
made pursuant to the redemption provisions of the fonds generally
described in Section 2.3 (4) below.
2. Section 2.3 is amended to read as follows:
2.3. City Financing Obligations. City agrees, subject to the conditions set forth
in Section 2.4 below, to issue tax increment financing bonds (the Bonds) for the
remaining costs associated with the design and construction of the Public
Parking Facility in such amount as to allow for the Bonds to be paid off over a
2
period of thirty {30) years utilizing the Incremental Property Tax Revenues (as
defined below) and the income earned on any reserve fund, in whole, or in part
should the Incremental Property Tax Revenues and income eamed on any
reserve fund exceed the Bond payment obligations from the DJ Development
and assuming a minimum assessment amount as provided in Exhibit D.
(1) Interest and principal shall be paid from Incremental Property Tax
Revenues genera#ed by the DJ Development and income eamed on the
any reserve fund, as provided in Exhibit D.
(2) DJ recognizes and agrees that Incremental Property Tax Revenues
are solely and only the incremental taxes collected by City in respect to
the DJ Development, 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. Accordingly, the
parties understand that due to the amounts that are legally required #o be
excluded from the Incremental Property Tax Revenues, such incremental
taxes will not include all amounts paid by DJ as regular property taxes.
{3) DJ acknowledges and agrees that it shall identify for City a
purchaser for the Bonds (the Purchaser) and City agrees to negotiate in
good faith with the Purchaser with respect to the terms of the Bonds.
Except as specifically set forth herein, DJ further acknowledges and
agrees that the Bonds shall be sold on such terms and conditions, bear
such interest rates, have such reserve funding requiremen#s, mature at
such times and in such amounts as City, in its sole but reasonable, good
faith discretion, shall determine to be accep#able to it and the Purchaser
and shall be payable from and secured solely and only by a pledge of the
Incremental Property Tax Revenues to be collected by City in respect of
the DJ Development and income earned on any reserve fund during a
period not to exceed thirty {30) years.
(4) Proceeds of the Bonds shall be applied only to the payment of
capitalized interest thereon (if necessary), debt service reserve funding,
costs of issuance and the payment of the costs of the design and
construction of the Public Parking Facility. The #erms of the Bonds shall
provide in substance that the portion of the Bonds issued in anticipation of
the construction of the North Facade Alternate, plus any income earned
thereon, and not so used for that purpose, shall be used by the City to
defease or call Bonds upon the election described under Section 2.1(6)
hereof.
(5) City shall have no obligation to fund the costs of the design and
construction of the Public Parking Facility to be paid hereunder from any
source other than the proceeds of the Bonds.
3
(6) City's obligation to issue the Bonds and undertake its obligations
hereunder shall be subject in all respects to unavoidable delays, the
provisions of this Section and Section 2.4, and to the satisfaction of all
conditions required (in the reasonable judgment of bond counsel for City)
by Chapter 403 of the Code of Iowa, as amended, with respect to the
issuance of the Bonds.
(7) The parties agree that in the event the election is not made by the
City to construct the North Facade Alternate as provided in Section 2.1 {6)
and the funds that are held in escrow for the North Fagade Alternate are
used to call and satisfy a portion of the Bonds as provided in Section
2.3(4) above, any excess Incremental Property Tax Revenues that are not
attributable to an increase in valuation of the DJ Development or the
applicable tax rate and which would have otherwise been used to pay
principal and interest on the Bonds related to the North Facade Alternate
shall be placed in an interest earning escrow account by the City and
along with any income earned thereon, used to call or defease the Bonds.
DJ shall have the right to select the Bonds that will be called or defeased.
3. Section 2.4 is amended to read as follows:
2.4. Limitations on Financial Undertakings of City. Notwithstanding any other
provisions of this Agreement, City shall have no obligation to DJ under this
Agreement to issue the Bonds or to fund the design or construction of the Public
Parking Facility, if any of the following conditions exist as of August 31, 2007:
(1) City is unable to complete the sale of the Bonds on such terms and
conditions as it shall deem necessary or desirable in its sole discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or
both, would be entitled) under this Agreement to exercise any remedies
set forth therein as a result of any Event of Default;
(3) DJ fails to sign the Minimum Assessment Agreement and provide
City with the guaranty required by Section 1.4; or
(4) There has been, or there occurs, a material adverse change in the
financial condition of DJ, which change(s) make it substantially more
likely, in the reasonable judgment of City, that DJ will be unable to fulfill its
covenants and obligations under this Agreement.
4. Section 2.5 is amended to read as follows:
2.5. Use of Tax Increments. DJ recognizes that City intends to utilize the
Incremental Property Tax Revenues collected each year in respect of the DJ
4
Development and the income generated on any reserve fund to pay debt service
on the Bonds. Notwithstanding the foregoing, except as provided in Section
2.3(7) above, City shall be free to use any excess Incremental Property Tax
Revenues not required for the satisfaction of the principal and interest payments
on the Bonds collected each year in respect of the DJ Development {for example,
those revenues resulting from increases in valuation of the DJ Development or
the applicable tax rate) for any purpose for which the Incremental Property Tax
Revenues may lawfully be used pursuant to the provisions of the Urban Renewal
Act, and City shall have no obligation to DJ with respect to use thereof.
5. Section 3.1 is amended to read as follows:
3.1. Conditions Precedent. If any of the following conditions has not occurred
prior to August 31, 2007, either party may terminate this Agreement upon wri#en
notice to the other party. DJ's termination of this Agreement shall be its sole
remedy. DJ shall not fie entitled to reimbursement of any costs or damages
incurred by DJ in connection with this Agreement. In the event DJ elects to
terminate this Agreement, DJ shall reimburse City #or all reasonable ou#-of-
pocket costs incurred by City in connection with this Agreement and DJ .shall
reimburse City for all such costs within thirty days of receipt by DJ of City's
statement of such costs, including appropriate documentation thereof.
(1) City shall have obtained all required design approvals from the
Design Review Committee for the Public Parking Facility and DJ shall
have consented to such design, which consent shall not be unreasonably
withheld.
(2) DJ and the City shall have received all necessary approvals from
any governmental agency, utility, lender, security holder or other party
whose approval is required for the undertakings and obligations under this
Agreement, specifically including, but not limited to approval of this
Agreement by the Iowa Racing and Gaming Commission and a firm
commitment from the Purchaser regarding its purchase of the Bonds on
terms satisfactory to City and DJ.
(3) City shall have received and DJ shall have approved, bids pursuant
to which it can be determined that the Public Parking Facility can be
designed and constructed for an amount equal to or less than the sum of
the amounts to be provided ~y DJ under Section 1.2 and financed by City
under Section 2.3. Additionally, all such costs of design and constriction
shall be supported by agreements with the contractors and other vendors
that include a fixed price or have a guaranteed maximum price {GMP) that
permits the Public Parking Facility to be constructed within the budget
provided for herein, taking into consideration a 10% contingency for the
costs of construction of the Public Parking Facility. The parties
acknowledge that such fined price or GMP shall be subject to change
modifications or orders approved by City, provided that any change orders
or modifications to such contracts that will result in the fined price or the
GMP, together with all previous change orders or modifications, exceeding
110% of the fixed price or the GMP, shall require the written consent of
both City and DJ.
(4) City and DJ shall have agreed upon the construction cost and
timing of the construction of the Public Parking Facility.
(5) DJ shall have signed the Minimum Assessment Agreement and
provided City with a guaranty in a form acceptable to City for DJ's
obligation to pay real estate #axes on the DJ Development.
(6) Both parties are obligated to pursue all required approvals as
expeditiously as possible and to negotiate in good faith to complete the
execution of the agreements identified and required as conditions
precedent to the other obligations set forth herein.
6. Section 3.2 is amended to read as follows:
3.2. Cooperation by the Parties. City and DJ agree to cooperate in good faith
in connection with the performance of all of the activities contemplated herein
and to use all commercially reasonable efforts and diligence to promptly respond
and perform the obligations provided for directly or indirectly by this Agreement.
The parties agree and understand that it is their intent that the timing of the
design and construction of the Public Parking Facility will be such that the
completion and opening of the Public Parking Facility will coincide with the
completion and opening of the DJ Development. The parties agree to use all
reasonable effort and resources to assure that construction of the Public Parking
Facility commences on or before August 1, 2007 and that the sections of the
Public Parking Facility shown on Exhibit A attached hereto be completed and
ready for use on or before, the later of the opening of the DJ Development or the
following:
North Section, lower three levels: August 12, 2008
North Section, fourth level: November 11, 2008
South Section, all levels: November 11, 2008
In the event the sections of the Public Parking Facility are not substantially
completed and ready for use on-such dates, and such delay is due to a breach
by the City of its obligations under this Agreement, the City shall pay to DJ an
amount equal to $100 per day that each section of the Public Parking Facility
remains incomplete and unopened by the foregoing dates as liquidated damages
6
#or its breach of this Agreement. Additionally, the {parties agree that the
construction contract{s) shall include a liquidated damages provision that
provides for the contractor to pay to DJ the amount of $1,000 for each day each
section of the Public Parking Facility remains unfinished after the later of the
opening of the DJ Development and the foregoing dates.
CITY OF DUBUQUE, IOWA
By:
Roy D uol, Mayor
By:
Kev S. Firnstahl, Asst. City Clerk
7
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.Effect of Amendment
1. Section 2.1 is amended to read as follows:
2.1. Design and Construction of the Public Parking Facilitv. Subject to the
conditions set forth in this Agreement, City agrees to design and construct the
Public Parking Facility at a cost estimated to be approximately $23,043,800.00
on the Public Parking Facility Real Estate.
(1) The footprint of the Public Parking Facility shall be consistent with
the concept shown on Exhibit I, and in harmony with the DJ Development and
the Port of Dubuque Adams Development, L.L.C., and The Durrant Group, L.L.C.
Development in appearance and function.
(2) City shall retain either YWS Architects or The Durrant Group, Inc.,
based on whichever architect comes in with the lower bid, to design the
Public Parking Facility on terms acceptable to City in its sole discretion
(the "Project Architect").
(3) City shall hold weekly progress meetings with the Project Architect,
DJ and its representatives during the design and construction of the Public
Parking Facility.
City agrees to allow DJ to provide input and comments on the design of
the Public Parking Facility, including but not limited to providing DJ timely
copies of all design documents and correspondence regarding design and
providing timely notice to DJ of any meetings regarding the design of the
Public Parking Facility and allowing DJ to attend such meetings.
(4) In the event City fails to retain the Project Architect by March 1,
2007, DJ may at its option terminate this Agreement by written notice to
City. Termination of this Agreement shall be DJ's sole remedy for failure of
City to retain the Project Architect. DJ shall not be entitled to
reimbursement of any costs or damages incurred by DJ in connection with
this Agreement.
(5) City shall retain as a cost of the design of the Public Parking Facility
an architecture firm to provide such design review as City determines
necessary of the Project Architect's design.
(6) The parties agree that the Public Parking Facilitv shall be designed
to include a north facade alternate lthe "North Facade Alternate") which
shall be included as part of the plans and specifications for the Public
Parking Facilitv and bid at the same time as the primary construction
contract for the Public Parking Facilitv. The Citv shall have the right in
its sole discretion and without the prior consent of DJ to either (i) accept a
bid and proceed with the construction of the North Facade Alternate as
__ _
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part of the primarv construction contract for the Public Parking Facilitv or
lii) decline to accept a bid for the North Facade Alternate when the
primarv construction contract is awarded. If the Citv determines not to
accept a bid for the North Facade Alternate when the primary construction
contract for the Public Parking Facilitv is awarded the City shall calculate
the average of all bids received for the construction of the North Facade
Alternate that were received at such time and the average amount so
calculated shall be included in the amount of the Bonds described in
Section 2.3 hereof. The Citv shall place the proceeds from the Bonds
related to the North Facade Alternate in an interest bearing account and
all interest earned shall be added to the Bond proceeds for the purposes
of this Agreement. At anv time prior to July 1 2012 the Citv may
determine to use those Bond proceeds and such other City funds as it
may determine to be appropriate to construct the North Facade Alternate
In the event the Citv does not elect to use those Bond proceeds to
construct the North Facade Alternate prior to July 1 2012 those Bond
proceeds will be applied towards the outstanding Bonds
2. Section 2.3 is amended to read as follows:
2.3. Citv Financing Obligations. City agrees, subject to the conditions set forth
in Section 2.4 below, to issue tax increment financing bonds (the Bonds) for the
remaining costs associated with the design and construction of the Public
Parking Facility in such amount as to allow for the Bonds to be paid off over a
period of thirty (30) years utilizing the Incremental Property Tax Revenues (as
defined below), in whole, or in part should the Incremental Property Tax
Revenues exceed the Bond payment obligations from the DJ Development and
assuming a minimum assessment amount as provided in Exhibit D.
(1) Interest and principal shall be paid from Incremental Property Tax
Revenues generated by the DJ Development, as provided in Exhibit D.
(2) DJ recognizes and agrees that Incremental Property Tax Revenues
are solely and only the incremental taxes collected by City in respect to
the DJ Development, 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. Accordingly, the
parties understand that due to the amounts that are legally required to be
excluded from the Incremental Property Tax Revenues, such incremental
taxes will not include all amounts paid by DJ as regular property taxes.
(3) DJ acknowledges and agrees that it shall identify for City a
purchaser for the Bonds (the Purchaser) and City agrees to negotiate in
good faith with the Purchaser with respect to the terms of the Bonds.
Except as specifically set forth herein, DJ further acknowledges and
___.
Deleted:
Inserted: At any time prior to July 1,
2012, the City may determine to use
those Bond proceeds, and such other
City funds as it may determine to be
appropriate, to construct the North
Facade Alternate.
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agrees that the Bonds shall be sold on such terms and conditions, bear
such interest rates, have such reserve funding requirements, mature at
such times and in such amounts as City, in its sole but reasonable, good
faith discretion, shall determine to be acceptable to it and the Purchaser
and shall be payable from and secured solely and only by a pledge of the
Incremental Property Tax Revenues to be collected by City in respect of
the DJ Development during a period not to exceed thirty (30) years.
(4) Proceeds of the Bonds shall be applied only to the payment of
capitalized interest thereon (if necessary), debt service reserve funding,
costs of issuance and the payment of the costs of the design and
construction of the Public Parking Facility. The terms of the Bonds shall
provide in substance that the portion of the Bonds issued in anticipation of
the construction of the North Facade Alternate plus and interest earned
thereon and not so used for that purpose shall be subiect to extraordinary
redemption by the Citv on the earlier of Julv 1 2012 or the date of any
determination by the City under Section 2.1(6) hereof not to construct the
North Facade Alternate.
(5) City shall have no obligation to fund the costs of the design and
construction of the Public Parking Facility to be paid hereunder from any
source other than the proceeds of the Bonds.
(6) City's obligation to issue the Bonds and undertake its obligations
hereunder shall be subject in all respects to unavoidable delays, the
provisions of this Section and Section 2.4, and to the satisfaction of all
conditions required (in the reasonable judgment of bond counsel for City)
by Chapter 403 of the Code of Iowa, as amended, with respect to the
issuance of the Bonds.
3. Section 2.4 is amended to read as follows:
2.4. Limitations on Financial Undertakinos of Citv Notwithstanding any other
provisions of this Agreement, City shall have no obligation to DJ under this
Agreement to issue the Bonds or to fund the design or construction of the Public
Parking Facility, if any of the following conditions exist as of August 31, 2007: iDe~eted: June so
(1) City is unable to complete the sale of the Bonds on such terms and
conditions as it shall deem necessary or desirable in its sole discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or
both, would be entitled) under this Agreement to exercise any remedies
set forth therein as a result of any Event of Default;
(3) DJ fails to sign the Minimum Assessment Agreement and provide ~ Position: Horizontal:
City with the guaranty required by Section 1.4; or Right, Relative to: Margin
Formatted: Right: 0.25" ~'
10
(4) There has been, or there occurs, a material adverse change in the
financial condition of DJ, which change(s) make it substantially more
likely, in the reasonable judgment of City, that DJ will be unable to fulfill its
covenants and obligations under this Agreement.
4. Section 3.1 is amended to read as follows:
3.1. Conditions Precedent. If any of the following conditions has not occurred
prior to AuQUSt 31, 2007, ~, either party may terminate this Agreement upon ~eteted: the inter of June ~, zoos,
written notice to the other party. DJ's termination of this Agreement shall be its or the date set by the City Council for
the award of a construction contract
sole remedy. DJ shall not be entitled to reimbursement of any costs or damages for the Public Parking Facility, but in
incurred by DJ in connection with this Agreement. In the event DJ elects to no event later than December 3l,
zoos
terminate this Agreement, DJ shall reimburse City for all reasonable out-of-
pocket costs incurred by City in connection with this Agreement and DJ shall
reimburse City for all such costs within thirty days of receipt by DJ of City's
statement of such costs, including appropriate documentation thereof.
(1) City shall have obtained all required design approvals from the
Design Review Committee for the Public Parking Facility and DJ shall
have consented to such design, which consent shall not be unreasonably
withheld.
(2) DJ and the City shall have received all necessary approvals from
any governmental agency, utility, lender, security holder or other party
whose approval is required for the undertakings and obligations under this
Agreement, specifically including, but not limited to approval of this
Agreement by the Iowa Racing and Gaming Commission and a firm
commitment from the Purchaser regarding its purchase of the Bonds on
terms satisfactory to City and DJ.
(3) City shall have received and DJ shall have approved, bids pursuant
to which it can be determined that the Public Parking Facility can be
designed and constructed for an amount equal to or less than the sum of
the amounts to be provided by DJ under Section 1.2 and financed by City
under Section 2.3. Additionally, all such costs of design and construction
shall be supported by agreements with the contractors and other vendors
that include a fixed price or have a guaranteed maximum price (GMP) that
permits the Public Parking Facility to be constructed within the budget
provided for herein, taking into consideration a 10% contingency for the
costs of construction of the Public Parking Facility. The parties
acknowledge that such fixed price or GMP shall be subject to change
modifications or orders approved by City, provided that any change orders
or modifications to such contracts that will result in the fixed price or the
GMP, together with all previous change orders or modifications, exceedin -
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110% of the fixed price or the GMP, shall require the written consent of
both City and DJ.
(4) City and DJ shall have agreed upon the construction cost and
timing of the construction of the Public Parking Facility.
(5) DJ shall have signed the Minimum Assessment Agreement and
provided City with a guaranty in a form acceptable to City for DJ's
obligation to pay real estate taxes on the DJ Development.
(6) Both parties are obligated to pursue all required approvals as
expeditiously as possible and to negotiate in good faith to complete the
execution of the agreements identified and required as conditions
precedent to the other obligations set forth herein.
5. Section 3.2 is amended to read as follows:
3.2. Cooperation by the Parties. City and DJ agree to cooperate in good faith
in connection with the performance of all of the activities contemplated herein
and to use all commercially reasonable efforts and diligence to promptly respond
and perform the obligations provided for directly or indirectly by this Agreement.
The parties agree and understand that it is their intent that the timing of the
design and construction of the Public Parking Facility will be such that the
completion and opening of the Public Parking Facility will coincide with the
completion and opening of the DJ Development. The parties agree to use all
reasonable effort and resources to assure that construction of the Public Parking
Facility commences on or before August 1, 2007 and that the sections of the
Public Parking Facility shown on Exhibit A attached hereto be completed and
ready for use on or before, the later of~the opening of the DJ Development or the
following:
North Section, lower three levels August 12 2008
North Section. fourth level: November 11 2008
South Section, all levels: November 11 2008
1n the event the sections of the Public Parking .Facility are dot substantially
completed and ready for use on such dates, and such delay is due to a breach
by the City of its obligations under this Agreement, the City shall pay to DJ an
amount equal to $100 per day that each section of the Public Parking Facility
remains incomplete and unopened by the foregoing dates as liquidated damages
for its breach of this Agreement. Additionally, the parties agree that the
construction contract(s) shall include a liquidated damages provision that
provides for the contractor to pay to DJ the amount of $1,000 for each day each
t Deleted: August 1, 2008 or ~
Deleted:. ~
Deleted: is
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section of the Public Parking Facility remains unfinished after the later of he oeeerea: August 1, zoos or
opening of the DJ Development and the foregoing dates.
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