Linseed Oil, LLC - Collateral Assignments to Merrimac and Betty BuildingCopyright 2014
City of Dubuque Consent Items # 17.
ITEM TITLE: Linseed Oil, LLC - Collateral Assignments to Merrimac and Betty Building,
LLC
SUMMARY: City Manager recommending approval of collateral assignments of both
the Development Agreement and the Community Development Block
Grant (CDBG) Subrecipient Agreement for the Linseed Oil Building project
to Dubuque Bank & Trust.
RESOLUTION Approving Collateral Assignment of Development
Agreement and Collateral Assignment of Subrecipient Agreement related
to rehabilitation of the former Linseed Oil Building
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt Resolution(s)
ATTACHMENTS :
Description Type
❑ Linseed Oil Building Collateral Assignments -MVM Memo City Manager Memo
❑ Staff Memo Staff Memo
❑ Original Development Agreement Supporting Documentation
E Original Subrecipient Agreement Supporting Documentation
❑ DA Assignment to Betty Building Supporting Documentation
❑ Subrecipient Agreement Assigned to Merrimac Supporting Documentation
E Subrecipient Agreement Assignment to DB&T Supporting Documentation
E Assignment of Development Agreement and Grant Payments-DB&T Supporting Documentation
❑ Resolution of Assignment Resolutions
THE CITY OF
Dui
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Collateral Assignment of Development Agreement and CDBG
Subrecipient Agreement for Linseed Oil Building
DATE: October 16, 2014
Dubuque
band
AI -America City
r
2007 • 2012 • 2013
Economic Development Director Maurice Jones recommends City Council approval of
collateral assignments of both the Development Agreement and the Community
Development Block Grant (CDBG) Subrecipient Agreement for the Linseed Oil Building
project to Dubuque Bank & Trust.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
lAil-t44 .,
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Maurice Jones, Economic Development Director
THE CITY OF
Dui
Masterpiece on the Mississippi
Dubuque
teal
All -America City
1111
111'
2007 • 2012 • 2013
Economic Development Department
50 West 13th Street
Dubuque, Iowa 52001-4864
Office (563) 589-4393
TTY (563) 690-6678
http://www.cityofdubuque.org
TO: Michael Van Miliigen, City Manager
FROM: Maurice Jones, Economic Development Director
SUBJECT: Collateral Assignment of Development Agreement and CDBG
Subrecipient Agreement for Linseed Oil Building
DATE: October 16, 2014
INTRODUCTION
The purpose of this memorandum is to request City Council approval of collateral
Assignments of both the Development Agreement and the CDBG Subrecipient
Agreement for the Linseed Oil Building project to Dubuque Bank & Trust.
BACKGROUND
Attached to this Memorandum are two collateral assignment documents related to the
rehabilitation of the former Linseed Oil building located at 151 East 9th Street in
Dubuque and a resolution approving the assignments. This building is owned by Wiimac
Property Company.
DISCUSSION
Wiimac has created several special purpose entities to facilitate the use of federal and
state historic tax credits and other development programs in the rehabilitation project.
These entities include Merrimac Restoration, Inc., Betty Building, LLC and Carmac
Management, Inc. These entities are owned by the McNamara family, as is Wiimac
Property Company. The City Council recently approved an assignment of the
Development Agreement from Wiimac to Betty Building, LLC and the Subrecipient
Agreement (related to CDBG funds) from Wiimac to Merrimac Restoration, Inc.
The McNamaras are working with Dubuque Bank & Trust Co. (DB&T) to obtain loan
funds to assist in the rehabilitation. As a part of the required loan document package,
DB&T has requested that Merrimac sign a collateral Assignment of the Subrecipient
Agreement to DB&T and that Betty Building, LLC sign a collateral Assignment of the
Development Agreement to the bank. Both of these Assignments require that the City
join in the Assignments.
The purpose of the collateral Assignments is to allow the bank to step into the shoes of
the McNamara entities in the event of a default under the loan documents. In short, if
such a default occurred, DB&T could then acquire the property through enforcement of
its rights under the loan documents and then would have the same rights as the
McNamara entities under the Development Agreement and the Subrecipient
Agreement.
In this fashion, the bank would be in position to either complete the project or transfer
the real estate and the rights under the agreements (with City approval) to a buyer that
would finish the project. Therefore, approval of the proposed Assignments not only
facilitates the McNamara's efforts to complete the project but helps ensure the project
would be completed by a third party in the unlikely event of a default under the loan
documents.
RECOMMENDATION/ ACTION STEP
Based on the critical need for downtown housing and the City's goal to assist in
redeveloping the Millwork District, I recommend the City Council adopt the attached
resolution approving the Assignment of the Development Agreement to Dubuque Bank
& Trust and also approving the Assignment of the Subrecipient Agreement to Dubuque
Bank & Trust.
2
RESOLUTION NO. 328-14
APPROVING COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT AND
COLLATERAL ASSIGNMENT OF SUBRECIPIENT AGREEMENT RELATED TO
REHABILITATION OF THE FORMER LINSEED OIL BUILDING
Whereas, the former Linseed Oil Building located at 151 East 9th Street in
Dubuque, Iowa (the Building) is owned by Wilmac Property Company (Wilmac); and
Whereas, Wilmac and the City of Dubuque (City) have entered into a
Development Agreement for the rehabilitation of the Building; and
Whereas, Wilmac and the City have also entered into a Subrecipient Agreement
which provides for Community Development Block Grant (CDBG) funding for the
rehabilitation of the Building; and
Whereas, Wilmac has created several special purpose entities to facilitate the
use of federal and state historic tax credits and other development programs in the
rehabilitation project, to wit, Merrimac Restoration, Inc. (Merrimac), Betty Building, LLC
(Betty) and Carmac Management, Inc., all of which are owned by the McNamara family,
as is Wilmac Property Company; and
Whereas, the City Council has approved an assignment of the Development
Agreement from Wilmac to Betty Building, LLC and the Subrecipient Agreement from
Wilmac to Merrimac Restoration, Inc.; and
Whereas, Merrimac and Betty will enter into a loan agreement with Dubuque
Bank & Trust Co. (DB&T) for additional funding for the Building and DB&T has
requested that Merrimac sign a collateral Assignment of the Subrecipient Agreement to
DB&T and that Betty Building, LLC sign a collateral Assignment of the Development
Agreement to DB&T (the Assignments), which Assignments require that City join in the
Assignments; and
Whereas, the City Council finds that the Assignments should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
DUBUQUE, IOWA AS FOLLOWS:
Section 1. The Assignment of the Subrecipient Agreement and Assignment of the
Development Agreement attached hereto are hereby approved.
Section 2. The Mayor is authorized and directed to sign the Assignment of the
Subrecipient Agreement and Assignment of the Development Agreement on behalf of
the City of Dubuque.
101614ba1
Passed, approved and adopted this 20th day of 0; oG r, 2914.
Attest:
Kevin Firnstahl, City er
2
Roy D. ol, Mayor
ASSIGNMENT OF
SUBRECIPIENT AGREEMENT
This Assignment is effective as of October f'' 2014, by MERRIMAC
RESTORATION, INC., an Iowa corporation ("Merrimac") in favor of DUBUQUE BANK
AND TRUST, an Iowa state banking corporation ("Lender").
WHEREAS, in connection with the construction of certain improvements to the real
property located at 151 E 9th Street, Dubuque, Iowa (the "Property"), the City of Dubuque, Iowa
(the "City") and Wilmac Property Company ("Wilmac") entered into a Subrecipient Agreement
for Community Development Block Grant Housing Disaster recovery Fund Contract dated
September 15, 2014 (the "Subrecipient Agreement"), pursuant to which the City agreed to
provide to Wilmac certain funds as a forgivable loan (the "CDBG Proceeds").
WHEREAS, Wilmac assigned all of its rights and obligations under the Subrecipient
Agreement to Merrimac pursuant to an Assignment of Subrecipient Agreement dated October 6,
2014 (the "Assignment"), a copy of the Subrecipient Agreement and the Assignment are attached
hereto as Exhibit A.
WHEREAS, Merrimac entered into a Term Loan Agreement with Carmac Management,
Inc., an Iowa corporation ("Carmac"), pursuant to which Merrimac loaned the CDBG Proceeds
to Cailuac.
WHEREAS, Carmac used the CDBG Proceeds to make a capital contribution to Betty
Building, LLC, an Iowa limited liability company ("Borrower").
WHEREAS, Lender extended certain financial accommodations to Borrower pursuant to
a Construction Loan Agreement and other agreements dated October , 2014 (collectively, the
"Loan Documents"),
WHEREAS, as a condition to extending the financial accommodations, Lender has
required the execution of this Assignment.
ACCORDINGLY, in consideration of the foregoing, the parties agree as follows:
1. Merrimac hereby grants, assigns, transfers and set over unto Lender all of
Merrimac's right, title and interest in and to the Subrecipient Agreement. City hereby consents
to such assignment, subject to the terms of this Assignment.
2. Merrimac and City agree that Lender does not assume any of the rights or
obligations of Merrimac under or with respect to the Subrecipient Agreement unless and until
Lender shall have given City written notice that it has affirmatively exercised its right to assume
the rights and obligations of Merrimac under the Subrecipient Agreement following the
occurrence of a default or Event of Default in connection with or under any of the Loan
Documents. If Lender does not assume the rights and obligations of Merrimac under or with
respect to the Subrecipient Agreement, Lender shall have no liability whatsoever for the
performance of any of such obligations. Lender may, in its absolute discretion, reassign its right,
title and interest in the Subrecipient Agreement upon notice to City but without any requirement
for Merrimac's consent.
3. Merrimac and City represent and warrant to Lender that (i) except for the
Assignment, there have been no prior assignments of the Subrecipient Agreement, (ii) the
Subrecipient Agreement is a valid, enforceable agreement, (iii) no party is in default thereunder,
(iv) the Subrecipient Agreement has not been waived, amended or terminated, and (v) all
covenants, conditions and agreements have been perfoimed as required therein, except those not
due to be performed until after the date hereof. Merrimac and City agree that no material change
in the terms thereof shall be valid without the written approval of Lender, which approval shall
not be unreasonably withheld. Merrimac and City shall not assign, sell, pledge, mortgage or
otherwise transfer or encumber its respective interest in the Subrecipient Agreement so long as
this Assignment is in effect.
4. Merrimac hereby irrevocably constitutes and appoints Lender as its
attorney-in-fact to demand, receive, and enforce Merrimac's rights with respect to the
Subrecipient Agreement, to receive funds under the Subrecipient Agreement and give
appropriate receipts, releases and satisfactions for and on behalf of and in the name of Merrimac
or, at the option of Lender in the name of Lender, with the same force and effect as Merrimac
could do if this Assignment had not been made.
5. City will give Lender prompt written notice of any default by Merrimac under the
Subrecipient Agreement. City will not terminate the Subrecipient Agreement on account of any
default of Merrimac without providing Lender with prior written notice of such default. Even if
City terminates the Subrecipient Agreement, City nonetheless shall provide Lender with thirty
(30) days prior written notice in order for Lender to elect to cure the default and assume
Merrimac's obligations under the Subrecipient Agreement. If Lender so elects, City agrees not
to terminate the Subrecipient Agreement so long as the defaults of Merrimac thereunder are
cured by Lender within a reasonable time. However nothing herein shall require Lender to cure
any default of Merrimac under the Subrecipient Agreement.
6. This Assignment shall constitute a perfected, absolute and present assignment
provided that, notwithstanding anything in this Agreement to the contrary, Lender shall have no
right under this Assignment to receive funds thereunder or enforce the provisions of the
Subrecipient Agreement until an Event of Default shall occur in connection with or under the
Loan Documents. Upon the occurrence of any Event of Default, Lender may, without affecting
any of its rights or remedies against Merrimac under any other instrument, document or
agreement, exercise its rights under this Assignment, as Merrimac's attorney-in-fact in any
manner permitted by Iaw, and in addition, Lender shall have the right to exercise and enforce any
or all rights and remedies available after default to a secured party under the Uniform
Commercial Code, as adopted in the State of Iowa. If notice to Merrimac of any intended
disposition of the collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given at least ten (10) days
prior to the date of intended disposition or other action.
7. Merrimac agrees to pay all costs and expenses (including without limitation all
attorneys' fees and witness fees) which Lender may incur in exercising any of its rights under
this Assignment.
8. Subject to the aforesaid limitation on further assignment by Merrimac and City,
this Assignment shall be binding upon Merrimac and City, and their respective successors and
assigns, and shall inure to the benefit of Lender, its participating lenders, successors and assigns.
9. This Assignment can be waived, modified, amended, terminated or discharged
only explicitly in a writing signed by the parties, except that this Assignment shall terminate
upon payment in full of all amounts due pursuant to the Loan Documents. A waiver signed by
the parties shall be effective only in a specific instance and for the specific purpose given. Mere
delay or failure to act shall not preclude the exercise or enforcement of any of Lender's rights or
remedies hereunder. All rights and remedies of Lender shall be cumulative and may be
exercised singularly or concurrently, at Lender's option, and the exercise or enforcement of any
one such right or remedy shall neither be a condition to nor bar the exercise of enforcement of
any other. This Assignment contains the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, discussions and understandings.
IN WITNESS WHEREOF, this Assignment of Subrecipient Agreement has been
executed as of the day and year first above written.
MERRIMAC RESTORATION, INC.
By
Its
CITY OF DUBU *► UE
Roy D 4 uo1, Mayor
The State of Iowa, by its Department of Economic Development, hereby consents to the above
assignment.
STATE OF IOWA
DEPARTMENT OF
ECONOMIC DEVELOPMENT
By
Its
9608259v 1
-3-
EXHIBIT A
SUBRECIPIENT AGREEMENT AND ASSIGNMENT
ASSIGNMENT OF SUBRECIPIENT AGREEMENT
This Assignment of Subrecipient Agreement is entered into thi" day of October, 2014
by and between Wilmac Property Company, an Iowa business corporation, ("Wilmac") Merrimac
Restoration, Inc., an Iowa business corporation ("Merrimac") and the City of Dubuque, Iowa
("City").
RECITALS
A. City and Wilmac entered into a Subrecipient Agreement for Community Development
Block Grant Housing Disaster Recovery Fund Contract dated September 15, 2014 (the
"Subrecipient Agreement");
B. Pursuant to the terms of the Subrecipient Agreement City shall provide to Wilmac
certain funds as a forgivable loan, subject to the requirements and restrictions of that
Subrecipient Agreement. The funds are made available through the State of Iowa, by its
Department of Economic Development;
C. In order to facilitate the use of the funds and to best accommodate other funding
sources for the contemplated project Wilmac desires to assign all of its rights and obligations
under the Subrecipient Agreement to Merrimac and Merrimac desires to accept such rights and
obligations;
D. The parties desire to set forth their agreement regarding such assignment in writing.
Therefore, in consideration of the mutual terms and covenants herein, the parties agree as
follows:
AGREEMENT
1. Assignment. Wilmac does hereby assign, transfer and convey to Merrimac each and
every right and obligation of Wilmac in and under the Subrecipient Agreement.
2. Acceptance. Merrimac does hereby accept all rights and obligations of Wilmac under
the Subrecipient Agreement and agrees to be bound by such agreement and to be responsible for
every obligation of the Subrecipient thereunder.
3. Consent. A. City does hereby consent to the assignment as set forth herein and releases
Wilmac from any obligations that accrue under the terms of the Subrecipient Agreement after the
date hereof.
B. State of Iowa, by its Department of Economic Development , hereby
consents to the assignment as set forth herein.
ASSIGNMENT OF DEVELOPMENT AGREEMENT
This Assignment of Development Agreement is entered into thiseday of October,
2014 by and between Wilmac Property Company, an Iowa business corporation, ("Wilmac")
Betty Building, LLC, an Iowa limited liability company ("Betty") and the City of Dubuque, Iowa
("City").
RECITALS
A. City and Wilmac entered into a Development Agreement dated March 7, 2013 (the
"Development Agreement");
B. Pursuant to the terms of the Development Agreement Wilmac was to provide certain
improvements to real estate owned by Wilmac, such property locally known as 151 East 9th St,
Dubuque, Iowa and legally described as: City Lot 379 and the South 15 feet of City Lot 380 in
Dubuque, Iowa (the "Property"). Subject to the requirements and restrictions of that
Development Agreement City agreed to take certain actions to aid in the rehabilitation of the
Property.
C. In order to facilitate rehabilitation of the Property, and in particular to accommodate
the use of historic tax credits, the Property will be or has been deeded to Betty. As such Wilmac
desires to assign all of its rights and obligations under the Development Agreement to Betty and
Betty desires to accept such rights and obligations;
D. The parties desire to set forth their agreement regarding such assignment in writing.
Therefore, in consideration of the mutual terms and covenants herein, the parties agree as
follows:
AGREEMENT
1. Assignment. Wilmac does hereby assign, transfer and convey to Betty each and every
right and obligation of Wilmac in and under the Development Agreement.
2. Acceptance. Betty does hereby accept all rights and obligations of Wilmac under the
Development Agreement and agrees to be bound by such agreement and to be responsible for
every obligation of Developer thereunder.
3. Consent. City does hereby consent to the assignment as set forth herein and releases
Wilmac from any obligations that accrue under the terms of the Development Agreement after
the date hereof.
4. Miscellaneous. This agreement is binding upon the parties hereto and their successors
ASSIGNMENT OF DEVELOPMENT AGREEMENT
AND
GRANT PAYMENTS
THIS ASSIGNMENT OF DEVELOPMENT AGREEMENT AND GRANT PAYMENTS, is
made.. and entered into effective as of October e), 2014, by and among the CITY OF
DUBUQUE, an Iowa municipal corporation ("City"), BETTY BUILDING, LLC, an Iowa
limited liability company ("Owner"), and DUBUQUE BANK AND TRUST COMPANY, an
Iowa state banking corporation ("Lender").
WITNES SETH:
WHEREAS, City and Wilmac Property Company ("Developer") entered into that certain
Development Agreement dated as of March 11, 2013 (the "Development Agreement"),
pertaining to the real property located in the Dubuque, Iowa, legally described on Exhibit A
attached hereto and hereby made a part hereof (the "Project"), a copy of the Development
Agreement is attached hereto as Exhibit B.
WHEREAS, pursuant to the Development Agreement and subject to the terms and conditions of
the Development Agreement, City agreed to pay Developer certain financial incentives described
in Section 3 of the Development Agreement (collectively, the "Grant Payments").
WHEREAS, on or about October 16, 2014, Developer assigned the Development Agreement and
the right to the Grant Payments to Owner.
WHEREAS, Owner and Lender have entered into or will enter into that certain Construction
Loan Agreement (the "Loan Agreement") for the purpose of funding a loan to be made by Lender
to Owner to finance the construction of certain improvements to the Project.
WHEREAS, Lender has required, as an express condition to extending the loan pursuant to the
terms of the Loan Agreement, that Owner assign all of its rights under the Development
Agreement and the Grant Payments to Lender to secure the obligations of Owner under the Loan
Agreement and that City consent to such assignment.
NOW THEREFORE, in consideration of the foregoing recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Owner hereby assigns to Lender all of its right, title and interest under and pursuant to the
Development Agreement and the Grant Payments to secure Owner's obligations under
the terms of the Loan Agreement and the documents related thereto. To perfect Lender's
security interest in the Grant Payments, Owner consents to Lender filing a UCC financing
statement with respect to the Grant Payments.
2. Owner hereby represents and warrants that (a) there have been no prior assignments of
the Development Agreement or the Grant Payments, (b) the Development Agreement and
the Grant Payments are valid and enforceable, (c) neither City nor Owner is in default
thereunder, and (d) to date, all covenants, conditions and agreements have been
performed as required therein, except those not to be performed until after the date
hereof. Owner agrees not to sell, assign, pledge, mortgage or otherwise transfer or
encumber its interest in the Development Agreement or the Grant Payments as long as
this Assignment is in effect. Owner hereby irrevocably constitutes and appoints Lender
as its attorney-in-fact to demand, receive and enforce Owner's rights with respect to the
Development Agreement and/or the Grant Payments for and on behalf of and in the name
of Owner or, at the option of Lender, in the name of the Lender, with the same force and
effect as Owner could do if this Assignment had not been made.
3. This Assignment shall constitute a perfected, absolute and present assignment, provided
that Lender shall have no right under this Assignment to enforce the provisions of the
Development Agreement or the Grant Payments, or to collect any funds payable to Owner
pursuant to the Grant Payments, or to exercise any rights or remedies under this
Assignment until a default or event of default under the Loan Agreement or any other
documents related thereto shall occur or be continuing. Owner hereby indemnifies and
holds City harmless from and against any claims or liabilities arising or purporting to
arise from City acting at the direction of Lender as provided herein.
4. Upon the occurrence of a default or event of default under the Loan Agreement or any
other documents related thereto, Lender may (but without obligation), without affecting
any of its rights or remedies against Owner under any other instrument, document or
agreement, exercise its rights under this Assignment as Owner's attorney-in-fact in any
manner pelliiitted by law and in addition Lender shall have the right to exercise and
enforce any and all rights and remedies available after default to a secured party under the
Uniform Commercial Code as adopted in the State of Iowa. If notice to Owner of any
intended disposition of collateral or of any intended action as required by law in any
particular instance, such notice shall be deemed commercially reasonable if given at least
ten (10) days prior to the intended disposition or other action.
5. City hereby consents and agrees to the terms and conditions of this Assignment; provided,
however, this consent shall not limit any of City's rights or remedies under the
Development Agreement. City further represents and warrants to Lender that (a) the
Development Agreement is a valid and enforceable agreement of City, (b) to the
knowledge of the undersigned, neither City nor Owner is in default thereunder, (c) to
date, all covenants, conditions and agreements have been performed as required therein,
except those not to be performed until after the date hereof, (d) by proper notice (if
required) and proper action, City has authorized the assignment of the Development
Agreement and the Grant Payments as provided herein, and (e) City has transferred the
Grant Payments to Lender on the registration records for the Grant Payments maintained
by City, if any.
6. City and Owner agree that no change or amendment shall be made to the terms of the
Development Agreement or to the Grant Payments without the prior written consent of
Lender.
-2
7. City agrees that: (a) City will provide Lender with written notice of any default or breach
by Owner under the Development Agreement (the "Notice"); (b) for a period of sixty (60)
days after Lender receives the Notice, Lender shall have the right, but not the obligation,
to cure such default or breach; and (c) if Lender timely cures said default or breach, City
will not exercise any remedies under the Development Agreement as a result of said
default or breach.
8. This Assignment can be waived, modified, amended, terminated or discharged only
explicitly in a writing signed by Lender. A waiver by Lender shall be effective only in a
specific instance and for the specific purpose given. Mere delay or failure to act shall not
preclude the exercise or enforcement of any of Lender's rights or remedies hereunder.
All rights and remedies of Lender shall be cumulative and shall be exercised singularly or
concurrently, at Lender's option, and any exercise or enforcement of any one such right or
remedy shall neither be a condition to nor bar the exercise or enforcement of any other.
9. Lender hereby acknowledges that the Grant Payments, when owed subject to the terms
and conditions of the Development Agreement, will be a special, limited revenue
obligation and not a general obligation of City and is payable by City only from the
sources and subject to the qualifications stated or referenced therein. Neither the full faith
and credit nor the taxing powers of City are pledged to the payment of the Grant
Payments and no property or other assets of City, except the Developer Tax Increments
(as defined in the Development Agreement) is or will be a source of payment of the Grant
Payments.
10. This Assignment shall be governed by and construed in accordance with the laws of the
State of Iowa.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have made and entered into this Assignment of
Development Agreement and Grant Payments as of the day and year first above written.
CITY OF DU QUE IOWA
By
STATE OF IOWA )
) ss.
COUNTY OF DUBUQUE )
Roy : uol, Mayor
The foregoing instrument was acknowledged before me this '" day of October, 2014, by Roy
D. Buol, the Mayor of the City of Dubuque, an Iowa municipal corporation, for and on behalf of
said municipal corporation.
-4
Nota Public
r
KEVIN S. FIRNSTAHL
COMMISSION NO.745295
MY COMMISSION EXPIRES
IN WITNESS WHEREOF, the parties hereto have made and entered into this Assignment of
Development Agreement and Grant Payments as of the day and year first above written.
STATE OF IOWA
) ss.
COUNTY OF DUBUQUE
BETTY BUILDING, LLC
By: Carmac Management, Inc.
Its: Managing Member
By
Patrick McNamara
Vice President
The foregoing instrument was acknowledged before me this day of October, 2014, by Patrick
McNamara, the Vice President of Carmac Management, Inc., an Iowa corporation, the Managing
Member of Betty Building, LLC, an Iowa limited liability company, for and on behalf of said
limited liability company.
Notary Public
5
IN WITNESS WHEREOF, the parties hereto have made and entered into this Assignment of
Development Agreement and Grant Payments as of the day and year first above written.
DUBUQUE BANK AND TRUST
COMPANY
By
Its
STATE OF IOWA )
) ss.
COUNTY OF DUBUQUE )
The foregoing instrument was acknowledged before me this day of October, 2014, by
, the of Dubuque Bank and Trust Company, an Iowa state
banking corporation, for and on behalf of said banking corporation.
9609061v1
6
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
Lot 379 and the Southerly 15 feet of Lot 380 in the City of Dubuque, Iowa, according to the United
States Commissioner's Map of the Town of Dubuque, Iowa
EXHIBIT B
DEVELOPMENT AGREEMENT
8
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
WILMAC PROPERTY COMPANY
rTHIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposes the
j-in
day of 1�'tr �, v c6j , 2013 is made and entered into by and between the City o
Dubuque, Iowa (City), and Wilmac Property Company (Developer).
WHEREAS, Developer is the owner of the real estate locally known as 151 East 9m
Street, Dubuque, Iowa and legally described as follows (the Property):
CITY LOT LOT 379 & S 15' OF CITY LOT 380
; and
WHEREAS, the Property is located in the Greater Downtown Urban Renewal District
(the District) which has been so designated by City Council Resolution 271.12 as a slum
and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban
Renewal Law); and
WHEREAS, Developer has undertaken the redevelopment of a three-story building
located on the Property and will be operating the same during the term of this Agreement;
and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (the Project); and
WHEREAS, the Property is historically significant and it is in the City's best interest
to preserve the Property; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
October 1, 2012, City has the authority to enter into contracts and agreements to
implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
022613ba1
1.1 Representations and Warranties of Citv. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at the time of closing
confirming the representations contained herein, in the form attached hereto as
Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process,
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct
in all respells on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
(6) 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
2
Plan for the Greater Downtown Urban Renewal Plan, most recently approved by
City Council of City on October 1, 2012, and as subsequently amended through and
including the date hereof, attached as Exhibit E (the Urban Renewal Plan). A copy
of the Urban Renewal Plan, as constituted on the date of this Agreement and in the
form attached hereto, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is, a S -corporation duly organized and validly existing under the
laws of the State of Iowa, and has all requisite power and authority to own and
operate its properties, to carry on its business as now conducted and as presently
proposed to be conducted, and to enter into and perform its obligations under this
Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by City, is in full
force and effect and, is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to City, at the time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit:B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Develnner's ahiiity to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
state and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date,
1.3 Closing, The closing shall take place on the Closing Date which shall be the 15th
day of June, 2013, or such other date as the parties shall agree in writing but in no event
shall the Closing Date be later than the 1st day of August, 2013. Consummation of the
closing shall be deemed an agreement of the parties to this Agreement that the conditions
of closing shall have been satisfied or waived.
1.4 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions;
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines in
its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as City in its
reasonable judgment City requires.
(5) Developer's counsel shall issue a legal opinion to City confirming the
representations contained herein in the form attached hereto as Exhibit B.
1.5 City's Obligations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
4
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer will make a capital investment of
approximately Four Million Dollars ($4,000,000.00) to improve the Property (the Minimum
Improvements). The Minimum Improvements include creating sixteen (16) apartments for
market -rate and Rental housing using Historic Tax Credits.
2.2 [This section intentionally left blank]
2,3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban Renewal
Plan, this Agreement, and all applicable state and local laws and regulations, including but
not limited to any covenants, conditions, restrictions, reservations, easements, liens and
charges, recorded in the records of Dubuque County, Iowa. Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to
the improvements to be constructed by Developer on the Property. All work with respect to
the Minimum Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2,4 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within thirty (30) days after
the Closing Date, and shall be substantially completed by December 31, 2014. The time
for the performance of these obligations shall be suspended due to unavoidable delays
meaning delays, outside the control of the party claiming its occurrence in good faith, which
are the direct result of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other casualty to the
Minimum Improvements, litigation commenced by third parties which, by injunction or other
similar judicial action or by the exercise of reasonable discretion directly results in delays,
or acts of any federal, state or local government which directly result in extraordinary
delays. The time for performance of such obligations shall be extended only for the period
of such delay.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City's City Manager shall furnish Developer with
an appropriate instrument so certifying. Such certification (the Certificate of Completion)
shall be in the form attached as Exhibit J and shall be a conclusive determination of the
satisfaction of Developer's obligations to make the Minimum Improvements under this
Agreement and completion of the Minimum Improvements by Developer as required by this
Agreement.
SECTION 3. CITY PARTICIPATION
3.1 Financial Incentives. The financial incentives set forth in this Section 3 are full and
complete and cannot be modified except by amendment to this Agreement, City is under
no obligation to approve any such amendment.
5
3,2 Economic Development Grants to Developer. For and in consideration of
Developer's obligations hereunder, and in furtherance of the goals and objectives of the
urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject
to Developer being and remaining in compliance with the terms of this Agreement, to make
twenty (20) consecutive semi-annual payments (such payments being referred to
collectively as the Economic Development Grants) to Developer:
November 1, 2015
November 1, 2016
November 1, 2017
November 1, 2018
November 1, 2019
November 1, 2020
November 1, 2021
November 1, 2022
November 1, 2023
November 1, 2024
May 1, 2016
May 1, 2017
May 1, 2018
May 1, 2019
May 1, 2020
May 1, 2021
May 1, 2022
May 1, 2023
May 1, 2024
May 1, 2025
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts equal to a
portion of the tax increment revenues collected by City under Iowa Code Section 403,19
(without regard to any averaging that may otherwise be utilized under Iowa Code Section
403,19 and excluding any interest that may accrue thereon prior to payment to Developer)
during the preceding six-month period in respect of the Minimum Improvements
constructed by Developer (the Developer Tax Increments), For purposes of calculating the
amount of the Economic Development Grants provided in this Section, the Developer Tax
Increments shall be only those tax increment revenues collected by City in respect of the
increase in the assessed value of the Properly above the assessment of January 1, 2012
($79,970.00). The Developer Tax Increments shall not include (i) any property taxes
collected for the payment of bonds and interest of each taxing district, (ii) any taxes for the
regular and voter -approved physical plant and equipment levy, (iii) the remaining actual
amount of tax increment revenues collected by City in respect of the valuations of the
Property prior to January 1, 2012 and (iv) any other portion required to be excluded by
Iowa law, and thus such incremental taxes will not include all amounts paid by Developer
as regular property taxes.
3,3 To fund the Economic Development Grants, City shall certify to the County prior to
December 1, 2014, its request for the available Developer Tax Increments resulting from
the assessments imposed by the County as of January 1 of that year and each year
thereafter until and including January 1, 2024, to be collected by City as taxes are paid
during the following fiscal year and which shall thereafter be disbursed to the Developer on
November 1 and May 1 of that fiscal year. (Example: if City so certifies in December, 2014,
the Economic Development Grants in respect thereof would be paid to the Developer on
November 1, 2015, and May 1, 2016.)
3.4 The Economic Development Grants shall be payable from and secured solely and
only by the Developer Tax Increments paid to City that, upon receipt, shall be deposited
and held in a special account created for such purpose and designated as the Linseed Oil
6
PaintWorks TIF Account of City. City hereby covenants and agrees to maintain its TIF
ordinance in force during the term hereof and to apply the incremental taxes collected in
respect of the Minimum Improvements and allocated to the Linseed Oil Paint Works TIF
Account to pay the Economic Development Grants, as and to the extent set forth in Section
3.2 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 Developer as the
Economic Development Grants in any one year and under no circumstances shall City in
any manner be liable to Developer so long as City timely applies the Developer Tax
Increments actually collected and held in the Linseed Oil Paint Works TIF Account
(regardless of the amounts thereof) to the payment of the Economic Development Grants
to Developer as and to the extent described in this Section.
3.5 City shall be free to use any and all tax increment revenues collected in respect of
other properties within the Project Area and the remaining actual amount of the property
taxes paid by Developer to City, or any available Developer Tax Increments resulting from
the termination of the annual Economic Development Grants under Section 3.2 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 Developer with
respect to the use thereof.
Downtown Housing Incentive.
(1) City agrees to provide to Developer on the terms and conditions set forth in
the Downtown Housing Incentive Program attached hereto as Exhibit F, a grant in
the amount of One Hundred Sixty Thousand Dollars ($160,000.00) (the Grant).
(2) Grant funds will not be disbursed to Developer until City has issued a
Certificate of Occupancy for the Project. The Grant shall be paid in Ten Thousand
Dollar ($10,000.00) payments for each apartment that receives a Certificate of
Occupancy up to a maximum of sixteen apartments. Prior to the disbursement of
any funds, Developer shall provide evidence satisfactory to City that the Minimum
Improvements have been completed in accordance with the Plans and other
documentation submitted to City with the Downtown Housing Assistance
application.
3.7 Planning and Design Grant. City agrees to provide a matching (1:1) grant not to
exceed Ten Thousand Dollars ($10,000) to reimburse Developer for documented
predevelopment costs, architectural and engineering fees and other authorized soft costs
associated with the rehabilitation of the Property on the terms and conditions set forth in
Exhibit G. Prior to the release of any grant funds, City must determine to its satisfaction
that the Project is substantially complete and meets the conditions of this Agreement.
3.8 Facade Grant. City agrees to provide a matching (1:1) grant not to exceed Ten
Thousand Dollars ($10,000) to reimburse Developer for documented costs for front or rear
facade renovations to the Property to eliminate inappropriate additions or alterations and to
restore the facade to its historic appearance, or to rehabilitate the facade to include new
windows, paint, signage, awnings, etc., to improve the overall appearance of the Property,
and the costs of landscaping or screening with fencing or retaining walls if such
landscaping or screening improves the Property adjacent to the public right-of-way, on the
terms and conditions set forth in Exhibit H.
3.9 Financial Consultant Grant. City agrees to provide a grant not to exceed Fifteen
Thousand Dollars ($15,000) at a rate of $0.50 for each $1.00 of costs incurred to
reimburse Developer for documented costs related to hiring a financial consultant to
evaluate the Project's feasibility on the terms and conditions set forth in Exhibit I. Such
funds will be disbursed only on completion of the Minimum Improvements, documentation
of costs and an inspection of the completed Project,
3,10. Written requests for payment of grant funds must be submitted to the Economic
Development Department together with all required documentation,
SECTION 4, COVENANTS OF DEVELOPER
4.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's
Standards for Rehabilitation,
4.2 [This section intentionally left blank,]
4.3 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Developer shall provide reasonable protection against loss or damage to such books of
record and account.
4.4 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.5 No Other Exemptions. During the term of this Agreement, Developer agrees not to
apply for any state or local property tax exemptions which are available with respect to the
Development Property or the Minimum Improvements located thereon that may now be, or
hereafter become, available under state law or city ordinance during the term of this
Agreement, including those that arise under Iowa Code Chapters 404 and 421, as
amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
8
amount equal to one hundred percent (100%) of the building (including Minimum
Improvements) replacement value when construction is completed. Coverage shall
include the "special perils" form and developer shall furnish City with proof of
insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense property insurance against loss and/or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
value of the building (including the Minimum Improvements). Developer shall
furnish to City proof of insurance in the form of a certificate of insurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear, and
Developer shall forthwith repair, reconstruct and restore the Minimum Improvements
to substantially the same or an improved condition or value as they existed prior to
the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property (as its interests may appear). Developer shall
complete the repair, reconstruction and restoration of Minimum Improvements
whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and _ keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.8 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position to
participate in a decision-making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the project, or in any activity,
or benefit therefrom, which is part of this project at any time during or after such person's
tenure, In connection with this obligation, Developer shall have the right to rely upon the
representations of any party with whom it does business and shall not be obligated to
perform any further examination into such party's background.
4,10 Non -Transferability. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.5), this Agreement may not be assigned by Developer
nor may the Property be transferred by Developer to another party, Thereafter, with the
prior written consent of City, which shall not be unreasonably withheld, Developer shall
have the right to assign this Agreement, and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.11 No change in Tax Classification. Developer agrees that it will not take any action to
change, or otherwise allow, the classification of the Property for property tax purposes to
become other than commercial property and to be taxed as such under Iowa law, This
restriction shall terminate upon the termination of this Agreement. However, Developer
may apply for a reclassification of the Property in the event Iowa law is modified to allow a
building containing four apartments within one building to be classified as residential for
property tax purposes.
4.12 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof, for the duration of this
Agreement, that they, and their respective successors and assigns, shall;
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a restaurant and upper -story housing, is in full compliance with the
Urban Renewal Plan) (however, Developer shall not have any liability to City to the
extent that a successor in interest shall breach this covenant and City shall seek
enforcement of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale, lease, rental,
use or occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability to City
to the extent that a successor in interest shall breach this covenant and City shall
seek enforcement of this covenant directly against the party in breach of same).
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
10
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
5.2. Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 5.1 of this Agreement occurs and is continuing, City, as specified below, may take
any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) Until issuance of the Certificate of Completion, City shall be entitled to
recover from Developer the sum of all amounts expended by City in connection with
the funding of the Downtown Rehab Loan/Grant and Economic Development Grant
to Developer and City may take any action, including any legal action it deems
necessary, to recover such amounts from the Developer;
(4) City may withhold the Certificate of Completion; or
11
(5) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
5.4 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder:
5.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and, costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
5.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that may
appear necessary or desirable to collect any payments due under this Agreement, to
recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may suspend
their performance under this Agreement until they receive assurances from City, deemed
adequate by Developer, that City will cure its default and continue its performance under,
this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if
and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer:
Tim McNamara
Wilmac Property Company
801 Jackson Street
Dubuque, Iowa 52001
12
With copy to: Drake Law Firm, P.C.
Flint Drake
2254 Flint Hill Dr
Dubuque, IA 52003
if to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13th Street
Dubuque IA 52001
or at such other address with respect to either party, as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on December 31, 2024 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine. The parties intend that the faxed signatures
constitute original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D in the,
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA WILMAC PROPERTY COMPANY.
By
Roy D. al
Mayor
Attest:
Kevi S. Firnstahl
City Clerk
14
By !k/'
Tim McNamara, Manager
(City Seal)
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this 18th day of March 2013, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin S.
Fimstahl, to me personally known, who, being by me duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation
executing the instrument to which this is attached; that the seal affixed hereto is the seal of
said municipal corporation; that said instrument was signed and sealed on behalf of the
City of Dubuque, Iowa, by authority of its City Council; and that said Mayor and City Clerk
acknowledged the execution of said instrument to be the voluntary act and deed of said
City, b it and by them voluntarily executed.
Notary Pu
STATE OF IOWA
COUNTY OF DUBUQUE
1
) SS
}
I.
PAMELA J,McCARRO
Commission NUObII , , ! p; ,
Mr Comm. Up h- ,-,261?;')
On this tintday of Mfi RcH 2013 before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Tim McNamara, to me personally
known, who, being by me duly sworn, did say that he is Manager of Wilmac Property
Company the limited liability company executing the instrument to which this is attached
and that as said Manager of Wilmac Property Company acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
15
„OA J
e
i F
rox•
KIM GORDON
Commissloe Number 755368
Mr Comm, Fe JO -334
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBIT J
LIST OF EXHIBITS
City Attorney's Certificate
Opinion of Developers Counsel
City Certificate
Memorandum of Development Agreement
Urban Renewal Plan
Downtown Housing Incentive Program
Planning and Design Grant Program
Facade Grant Program
Financial Consultant Grant Program
Certification of Completion
EXHIBIT A
CITY ATTORNEY'S CERTIFICATE
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
(DATE)
RE:
Dear
THE L IME
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement between (Developer)
and the City of Dubuque, Iowa (City) dated for reference purposes the _ day of
, 20 .
The City has duly obtained all necessary approvals and consents for its execution, delivery
and performance of this Agreement and has full power and authority to execute, deliver
and perform its obligations under this Agreement, and to the best of my knowledge, the
representations of the City Manager in his letter dated the _ day of , 20 ,
are correct.
BATA
18
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT B
OPINION OF DEVELOPER'S COUNSEL
Mayor and City Counei'members
City Hall
13t and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , in connection with the execution and
delivery of a certain Development Agreement (Development Agreement) between Developer and the
City of Dubuque, Iowa (City) dated for reference purposes the _ day of 2013.
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other documents and
records as we have deemed relevant and necessary as a basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as we have
deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under the laws of the
State of Iowa and has full power and authority to execute, deliver and perform in full the
Development Agreement, The Development Agreement has been duly and validly authorized,
executed and delivered by Developer and, assuming due authorization, execution and delivery by
City, is in full force and effect and is avalid and legally binding instrument of Developer enforceable
in accordance with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
2. To our actual knowledge with no duty to inquire, the execution, delivery and
performance by Developer of the Development Agreement and the carrying out of the terms thereof,
will not result in violation of any provision of, or in default under, the articles of incorporation and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment,
decree, order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject,
3. To our actual knowledge with no duty to inquire, there are no actions, suits or
proceedings pending or threatened against or affecting Developer in any court or before any
arbitrator or before or by any governmental body in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business (present or prospective),
financial position or results of operations of Developer or which in any manner raises any questions
affecting the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
This opinion is rendered for the sole benefit of the City. of Dubuque and no other party may rely on
this opinion.
20
This opinion is rendered and valid as of the date of this letter and we have no duty to update this
opinion for any matters which come to our knowledge after the date of this letter.
City Manager's Office
911 West 1316 Street
Dubuque, lona 32RJ1-1861
Ohl) 589.1110 phone
(563) 589-11.19 fax
rhingroa lyoklubugne.org
Dear
(DATE)
IIIECI'IYUF F
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference
purposes the _ day of , 20 .
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attomey shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit a
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
23
affects the validity of the Agreement or City's ability to perform its obpigat,...
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be cgrreot
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date.
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
Prepared by: Barry A. Llndahl 300 Main Street Suite 330 Dubuque IA 52001563 583-0113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001563 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 Wilmac Property Company was made regarding the
following described premises;
[INSERT LEGAL DESCRIPTION]
The Development Agreement is dated for reference purposes the day of
, 2013, and contains covenants, conditions, and restrictions concerning the sale
and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of the
Development Agreement, together with any amendments thereto, is in the possession of
the City of Dubuque and may be examined at its offices as above provided.
Dated this _ day of , 2013.
CITY OF DUBUQUE, IOWA WI* PROPERTY COMPANY
( ,�
By By
Roy D. Buol Tim McNamara, Manager
Mayor
Attest.
Kevin Si Firnstahl
City Clerk
26
STATE OF IOWA
) SS
COUNTY OF DUBUQUE
On this _day of , 20 , before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE )
SS
On this THday of M RRCH 2Q before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Tim McNamara, to me personally
known, who, being by me duly swom, did say that he is Manager of Wilmac Property
Company, the limited liability company executing the instrument to which this is attached
and that as said Manager of Wilmac Property Company, acknowledged the execution of
said instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
01 ■
ot. ry'' u IIc, State of Iowa
27
fw"sky' KIM GORDON
CammissionNumber 75536
Co
Prepared by: Phil Wagner, City of Dubuque, 50 W, 13th Street, Dubuque, IA 52301 (563) 5894393
Return to: Nevin S, Flrnetahl, City of Dubuque, 50 W. 13th Street, Dubuque, 'A 52001 (563) 569,4121
AMENDED and RESTATED
URBAN RENEWAL PLAN
Greater Downtown Urban Renewal District
(A merger of the Downtown Dubuque, Ice Harbor, Kerper Boulevard, East 7th
Street and Quebecor Urban Renewal Districts
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan for the Greater Downtown Urban
Renewal District traces its beginnings to the merger of the Downtown Urban Renewal Area
Project Number Iowa R-15, originally established by Resolution 123-67 by the City Council
of the City of Dubuque, Iowa on May 18, 1967 and subsequently amended and restated
by Resolution 79.71 on March 151 1971, by Resolution 73-74 on March 11, 1974, by
Resolution 107.82 on May 3, 19821 by Resolution 191.84 on June 25, 1984, by Resolution
371-93 on December 6, 1993, by Resolution 145-94 on May 2, 1994, by Resolution 479-97
on November 17, 1997, by Resolution 476-98 on October 19, 1998 and by Resolution 187-
02 on April 1, 2002, with the Ice Harbor Urban Renewal District, originally established by
Resolution 403-89 of the City Council of the City of Dubuque, Iowa on December 18, 1989
and subsequently amended and restated by Resolution 241-00 on June 5, 2000 and by
Resolution 114-02 on March 4, 2002. The Urban Renewal Plan for the Greater Downtown
Urban Renewal District resulting from that merger was later amended by Resolution 170-04
on April 19, 2004, by Resolution 391-06 on August 21, 2006, by Resolution 108-07 on
February 20th, 2007, by Resolution 597-07 on December 17, 2007, by Resolution 300-08
on September 2, 2008, by Resolution 393-09 on October 5, 2009, and by Resolution 26.10
on July 19, 2010. On May 2, 2011 the Kerper Boulevard Industrial Park Economic
Development District originally established by Resolution 274-94 on August 151 1994 and
the East 7th Street Economic Development District, originally established by Resolution
144-97 on April 7, 1997 were merged into and became part of the Greater Downtown
Urban Renewal District, pursuant to Resolution 155-11 approved on May 2, 2011. The
Quebecor Economic Development District, originally established by Resolution 479-02 on
September 16, 2002, was merged into and became part of the Greater Downtown Urban
Renewal District pursuant to Resolution 271-12 approved on October 1, 2012.
29
EXHIBIT F
DOWNTOWN HOUSING INCENTIVE PROGRAM
Economic Development
Department
City Hall — Second Floor
50 West 13° Street
Dubuque, Iowa 52001-
4864 (563) 589-4393
Office
(563) 589-1733 Fax
(563) 589.6678 TDD
THE CITY (JP
DUB
Masterpiece on the Mississippi
DOWNTOWN HOUSING INCENTIVE
PROGRAM
October 30, 2012
David J. Heiar Phil Wagner
Economic Development Director Asst. Economic Development Director
dhe ar(a�cityofdubuque.org pwagneracityofdubuque.org
50 West 13th Street
Dubuque, IA 52001
563.589.4393
Projects eligible to receive assistance from this established pool of funds must meet the following
requirements:
• The project must assist in the creation of new market -rale downtown rental androrowner-
occupied residential units within the Greater Downtown Urban Renewal District.
• The project must be the rehabilitation of an existing structure.
• Within the Washington Neighborhood, rental units must be located above a commercial
component on the first floor of the building unless the project is rehabilitating or reusing a former
church or school building,
• Exterior alterations are subject to design review and approval, The Historic District Guidelines
shall apply to projects located in Historic Preservation District. The Downtown Design Guidelines
shall apply to all other project locations. Projects which conform to the applicable guidelines may
be reviewed and approved by the City Planner. Projects that do not strictly conform to the
applicable guidelines will be forwarded to the Historic Preservation Commission (HPC) for
consideration. New construction or substantial rehabilitation projects may also be considered by
the HPG. The process for review is at the discretion of the City Planner. Guidelines can be
viewed and downloaded at http:iiwww.cilyofdubuque.orgideggp guidelines.
• Any signs on the property that do not comply with City zoning regulations and design guidelines
must be included in the design review and improved to comply with applicable City Codes.
Submittal must include the design materials and colors that will be used on the sign face, how the
sign will be displayed, and any lighting proposed.
• Include detailed drawing of the proposed project. The plans should include dimensions and
architectural details and label materials. Plans prepared by a design professional (e.g. architect
or draftsperson) are strongly recommended. Applications without detailed drawings will not be
considered complete and will not be accepted by the City.
31
Deviation from an approved project plan may disqualify the project from the program.
Preference will be given to projects that also utilize Federal and/or State Historic Tax Credits.
No more than $10,000 in assistance will be considered per residential unit.
In general, no more than $750,000 will be provided to a single project.
No developer fee will be permitted until all city assistance is paid or satisfied in full.
The City will disperse awarded funds for the benefit of the project once the project is
completed and a Certificate of Occupancy has been given for the housing units.
Each approved project will also be eligible to receive site-specific Tax Increment
Financing (TIF) for up, to a 10 year period, depending on the project type and scope.
A minimum of 2 new housing units must be created in the project.
Units smaller than 650 square feet will not be eligible for this project.
No residential units will be allowed to have a restriction of less than 80% of the median income.
No more than 65% of the units of any project can have a restriction of 80% of the median
income.
A project that is funded by Low Income Tax Credits (LITC) is not eligible.
The owner(s) of the property must certify that all other property in the City of Dubuque in which
the owner(s) has any interest complies with all applicable City of Dubuque ordinances and
regulations, including, but not limited to, housing, building, zoning, fire, health, and vacant and
abandoned building regulations.
32
EXHIBIT G
PLANNING AND DESIGN GRANT PROGRAM
PLANNING AND DESIGN GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for hiring
architects, engineers or other professional services used prior to construction.
Amount of Grant: 1;1 matching grant not to exceed ten thousand dollars
($10,000) per building may be awarded by the City to offset the
actual pre -development costs. (Example: $8,500 in eligible
project costs would receive $4,250 grant matched by $4,250 in
private contribution; $20,000 or greater eligible project costs
would receive the maximum $10,000 grant)
Grant Specific Conditions:
• Reimbursement is for architectural and engineering fees, feasibility studies,
environmental assessments or other related soft costs,
• Reimbursable expenditures must be documented.
• Owner! developer fees are not permitted as reimbursable expenditures.
• The grant shall not exceed ten percent (10%) of total project costs.
• Grants will be dispersed upon completion of the project at a rate of $0.50 for
each $1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2, Grant applications will be reviewed by City staff and approved by the City Manager.
3, Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
34
This program provides grants in the Greater Downtown Urban Renewal District for front or
rear facade renovation to restore the facade to its historic appearance, or improve the
overall appearance.
Amount of Grant: 1:1 matching grant not to exceed ten thousand dollars
($10,000) shall be awarded by the City to qualifying projects
based on total eligible project costs. (Example: $8,500 in
eligible project costs would receive a $4,250 grant matched by
$4,250 in private contribution; $20,000 or greater eligible
project costs would receive the maximum $10,000 grant.)
Grant Specific Conditions:
Reimbursement is for labor and material costs associated with facade
improvements, including, but not limited to rehabilitating or improving
windows, paint, signage, or awnings to enhance overall appearance.
Landscaping or screening with fencing or retaining walls may be a
reimbursable expense if a determination is made that property is improved
adjacent to public right-of-way.
In order to receive reimbursement for repointing, a mortar analysis sample
must be provided for each facade that will be repointed. The applicant must
adhere to the results of that analysis in their rehabilitation work as part of
their approved project plan. The City may request verification that the new
mortar matches the results of the mortar analysis.
Language from the National Park Service Technical Preservation Services
Briefs may be attached as a condition for a building permit if the applicant
chooses to perform repointing on the project.
Reimbursable expenditures must be documented.
Grants will be dispersed upon completion of work at a rate of $.50 for each
$1.00 of qualified costs.
Approval Process:
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
EXHIBIT
FINANCIAL CONSULTANT GRANT PROGRAM
FINANCIAL CONSULTANT GRANT INFORMATION
This program provides grants in the Greater Downtown Urban Renewal District for hiring a
financial consultant to analyze the feasibility of projects.
Amount of Grant: 1:1 matching grant not to exceed fifteen thousand dollars
($15,000) shall be awarded to qualifying projects based on
total eligible project costs. (Example: $8,500 in eligible project
costs would receive a $4,250 grant matched by $4,250 in
private contribution; $30,000 or greater eligible costs would
receive the maximum $15,000 grant.)
Grant Specific Conditions:
• Reimbursement is for fees associated with hiring a professional financial
consultant.
• Reimbursable expenditures must be documented,
• The grant shall not exceed ten percent (10%) of total project costs,
• The rehabilitation project must be completed for the Financial Consultant
Grant to be funded.
• Grants will be dispersed upon completion of work at a rate of $.50 for each
$1.00 of qualified costs.
Approval Process;
1. Design review by the City Planning Department or the Historical Preservation
Commission is required for exterior work on the project.
2. Grant applications will be reviewed by City staff and approved by the City Manager.
3. Funding will be dispersed upon staff review of documented expenditures and
inspection of a completed project.
38
EXHIBIT J
CERTIFICATE OF COMPLETION
Prepared By:
Return to:
David J. Heiar 50 West 13th Street Dubuque, IA 52001 563-589-4393
David J. Heiar 50 West 13th Street Dubuque, IA 52001 563-589-4393
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"), has
granted incentives to Wilmac Property Company (the "Grantee"), in accordance with a
Development Agreement dated as of [Date] (the "Agreement"), and as amended by the
First amendment to. Development Agreement, by and among the Grantor, and the Grantee
(collectively, the "Agreement"), certain real property located within the Greater Downtown
Urban Renewal District of the Grantor and as more particularly described as follows:
CITY LOT LOT 379 & S 15' OF CITY_ LOT 380
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions with respect to the rehabilitation of the Development Property, and obligated the
Grantee to construct certain Minimum Improvements (as defined therein) in accordance
with the Agreement; and;
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum improvements in a
manner deemed sufficient by the Grantor to permit the execution and recording of this
certification; and
NOW, THEREFORE, pursuant to Section 2.5 of the Agreement, this is to certify that
all covenants and conditions of. the Agreement with respect to the obligations of the
Grantee, and its successors and assigns, to construct the Minimum Improvements on the
Development Property have been completed and performed by the Grantee to the
satisfaction of the Grantor and such covenants and conditions are hereby satisfied.
The County Recorder of Dubuque County is hereby authorized to accept for recording and
to record the filing of this instrument, to be a conclusive determination of the satisfaction of
the covenants and conditions as set forth in said Agreement, and that the Agreement shall
otherwise remain in full force and effect.
On this day of , 2013, before me, the undersigned, a Notary Public
in and for the State of Iowa, personally appeared and
acknowledged said execution of the instrument to be his/her voluntary act and deed.
Notary Public in and for
Dubuque County, Iowa
VA
SUBRECIPIENT AGREEMENT
FOR COMMUNITY DEVELOPMENT BLOCK GRANT HOUSING DISASTER
RECOVERY FUND CONTRACT
BETWEEN
THE CITY OF DUBUQUE, IOWA AND WILMAC PROPERTY COMPANY
THIS Agreement ("the Agreement"), made and entered into this, day of
14
2014, by and between City of Dubuque, Iowa (City) and the Wilmac Property
ompany (Subrecipient).
WITNESSETH THAT:
WHEREAS, City, at the request of Subrecipient, has applied to the Iowa
Economic Development Authority (IEDA) for a grant of federal funds from the U.S.
Department of Housing and Urban Development pursuant to the Contingency
Appropriations Act of 2009, Title I of the Housing and Community Development Act of
1974 and Chapter 23 of the Administrative Code, as amended, to renovate the former
Linseed. Oil and Paintworks Company Building, 901 Jackson St. (aka 151 East 9th
St.)("the Building") into 16 residential units for workforce housing; and
WHEREAS, City has been awarded a grant of funds in the amount of
$2,248,890, subject to the condition that City rehabilitate the Building for persons or
households whose incomes are at or below 80% of the area median income limits (LMI)
by household size as established by HUD for Dubuque County , with 9 units of
residential housing; and
WHEREAS, the parties hereto desire to make a written agreement with respect
to said funds and the implementation of the project to which they pertain.
NOW, THEREFORE, the parties hereto have agreed to the terms and conditions
as hereafter stated:
SECTION 1. PROJECT AFFORDABILITY. The Wilmac Property Company project
includes the creation of 16 apartments in the Building ("the Project"). No less than 9 of
the rental units shall be occupied by persons or households whose incomes are at or
below 80% of the area median income limits (LMI) by household size as established by
HUD for Dubuque County. The following regulations are also part of this funding
commitment:
1.1 Maximum (gross) rent limits on the CDBG Supplemental Funds assisted
(affordable) rental units (by bedroom size) shall not exceed the most current HOME
Program 65% rent limits.
1.2 Rental property owners of CDBG Supplemental funds assisted rental projects
shall agree to a 10 -year period of affordability in terms of tenant income restrictions
(limitations) and through affordable rent limitations (controls) on all CDBG
090514baI
Supplemental funds assisted rental units (i.e., the affordable rental units) serving LMI
tenants, maintaining the appropriate number of affordable rental units for the entire 10 -
year period.
1.3 Long-term affordability requirements shall be secured through an agreement for
covenants and restrictions that ride with the assisted rental property owner's land.
1.4 Throughout the period of affordability, assisted rental property owners shall
ensure that the appropriate number of rental units remains affordable to, and are
occupied by, income eligible and verified LMI tenants. All assisted rental units shall be
subject to the maximum rent limitations (by bedroom size) applicable to all assisted
rental units for the entire 10 -year period of affordability. Wilmac Property Company will
need to identify who will be responsible for the long-term affordability requirements and
oversight for all funded new construction multi -family (rental) projects.
1.5 Throughout the period of affordability, assisted rental property owners shall
agree to periodic reporting requirements and compliance monitoring and/or inspections
(for tenant incomes and rents on the affordable units, appropriate unit mix, property
standards compliance, etc.).
1.6 The CDBG Supplemental funds subsidy amount provided must be secured as a
mortgage lien on the assisted multi -family property.
1.7 The CDBG Supplemental funds forgivable loan may be recorded in junior
position to the principal conventional loan (if there is one), but must be recorded in
senior position to any and all other funding in the project. Additionally, recipients must
maintain their assistance security agreements in the above -stated recording position
throughout the 10 -year period.
1.8 Form of assistance — The form of financial assistance (CDBG funds) will be a 10 -
year forgivable loan (non -receding), forgiven in full at the end of the 10 -year compliance
period. If the assisted rental project is sold or transferred, or converted to an alternate
(non-residential) use, during the 10 -year period following completion and acceptance,
the entire amount of the CDBG forgivable loan shall be repaid.
1.9 Upon mutual agreement and consent between the IEDA and the originally
assisted rental property owner; the assisted rental project may be sold or transferred,
but, only if the new purchaser agrees to continue with the terms of the forgivable loan
agreement and the agreement for covenants and restrictions, to complete the
remainder of the10-year affordability period (tenant income and rent limitations on 9 of
the rental units).
SECTION 2. CONSTRUCTION CONTRACTS AND SERVICES. Subrecipient shall,
for the purpose of constructing the Project, proceed forthwith to engage the services of
an architect/engineer, adopt plans and specifications, and award construction contracts
in accordance with the laws and regulations of the State of Iowa and of the United
2
States.
SECTION 3. ADMINISTRATION. The administration of the CDBG Contract #08-
DRH-212 ("the Grant Contract) and all transactions involving the expenditure of any of
the grant funds within the scope of said contract shall be the sole prerogative of City
carried out in such manner as it deems appropriate and consistent with Title I of the
Housing and Community Development Act of 1974 and 261 --Chapter 23 of the Iowa
Administrative Code. The East Central Intergovernmental Association (ECIA) is hereby
named the administrator responsible for administering the Davis -Bacon Act and related
federal compliance issues pursuant to a separate contract.
SECTION 4. PROPERTY OWNERSHIP. Any and all improvements or property, real
or personal, constructed, installed, or acquired pursuant to this Agreement shall be and
remain the property of Subrecipient. If, from the date funds are first spent for the
property until ten years after closeout of City's Grant Contract, the use or planned use
of the property is proposed to be changed, then Subrecipient shall notify City of
proposed change. City shall contact the IEDA for instructions on how to proceed. If
Subrecipient proceeds with a use determined by the IEDA to be inconsistent with the
use of CDBG funds, Subrecipient shall reimburse City and City will reimburse the IEDA
the IEDA determined amount of funds. See Section 16.
SECTION 5. PROPOSED PROJECT. Subrecipient shall grant access to the
premises and Subrecipient's program records for City and its contractors to perform
such required functions consistent with the Grant Contract as City shall deem
appropriate.
• The Borrower agrees to submit Semi-annual Status Reports to City by the
seventh day of the month following the end of each semi-annual period as cited
in the Grant Contract, in the manner prescribed by City.
• The Borrower agrees to submit all information and documentation
regarding project expenditures and employment as requested by City.
• The Borrower agrees to at all times maintain proper documentation and
books of account in a manner satisfactory to City. The Borrower agrees to
provide to City an itemized schedule of project expenditures on a semi-annual
basis.
• The Borrower will furnish to City a financial operating statement on an
annual basis no later than the sixtieth (60th) day following the expiration of the
Borrower's fiscal year.
• The Borrower hereby authorizes City or its agents to conduct an audit of
the Borrower's books and records at City's discretion.
SECTION 6. EXCESS COSTS. It is agreed that if the amount of the lowest
3
responsible bids received for the construction of the Project, plus the estimated cost of
professional services and a reasonable reserve for contingencies exceeds the balance
of grant funds and local funds available for the Project, all bids shall be rejected and the
Project redesigned so as to keep the maximum cost of the Project less than the
balance of grant and local funds. It is further agreed that if the construction of the
Project results in contractual liability of City in an amount greater than the grant funds,
Subrecipient shall be responsible for covering 100% of excess costs and hold City free
of any contractual liability.
SECTION 7. INDEMNIFICATION. Subrecipient shall hold City, ECIA, the State of
Iowa and the Iowa Economic Development Authority and their officers and employees
harmless from any and all claims, losses, damages or liability whatsoever resulting from
or arising out of this Agreement or the Project to which it pertains.
SECTION 8. UNALLOWABLE COSTS. If City determines at any time, whether
through monitoring, audit, closeout procedures, or other means or process that
Subrecipient has expended funds which are unallowable, Subrecipient will be notified of
the questioned costs and given an opportunity to justify questioned costs prior to City's
final determination of the disallowance of costs. If it is City's final determination that
costs previously paid by City are unallowable under the terms of this Agreement, the
expenditures will be disallowed and Subrecipient shall repay to City any and all
disallowed costs.
SECTION 9. EVENTS OF DEFAULT. The following shall constitute Events of Default
under this Agreement:
9.1 Material Misrepresentation. If at any time any representation, warranty or
statement made or furnished to City by, or on behalf of Subrecipient in connection with
this Agreement or to induce City to make a grant to Subrecipient shall be determined by
City to be incorrect, false, misleading or erroneous in any material respect when made
or furnished and shall not have been remedied to City's satisfaction within thirty (30)
days after written notice by City is given to Subrecipient.
9.2 Noncompliance. If there is a failure by Subrecipient to comply with any of the
covenants, terms or conditions contained in this Agreement, and any such failure shall
remain unremedied for thirty (30) days after written notice hereof shall have given by
City.
9.3 Agreement Expiration Date. If the Project, in the sole judgment of City, is not
completed on or before the Agreement Expiration Date.
9.4 Misspending. If Subrecipient expends Grant proceeds for purposes not
described in the CDBG application, this Agreement, or as authorized by City.
9.5 The Borrower shall assign this Agreement to another party without prior written
consent of City and IEDA.
4
9.6 Insurance. If loss, theft, damage or destruction of any substantial portion of the
property of Subrecipient occurs for which there is either no insurance coverage or for
which, in the opinion of City, there is insufficient insurance coverage.
SECTION 10. NOTICE OF DEFAULT. City shall issue a written notice of default
providing therein a fifteen (15) day period in which Subrecipient shall have an
opportunity to cure, provided that cure is possible and feasible.
SECTION 11. REMEDIES UPON DEFAULT. If, after opportunity to cure, the default
remains, City shall have the right, in addition to any rights and remedies available to it
to do one or both of the following:
a. Exercise any remedy provided by law;
b. Require immediate repayment of up to the full amount of funds disbursed
to Subrecipient under this Agreement plus interest incurred at 6% rate.
SECTION 12. MISCELLANEOUS. Neither party to this Agreement shall assign its
rights and obligations hereunder without the prior written authorization of the other
party. This Agreement shall be governed by the laws of the State of Iowa. In the event
any provision of this Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof. The terms and conditions of this Agreement may be amended
only by written instrument executed by both parties and, when necessary, with the
concurrence of the State of Iowa, Department of Economic Development. Such
amendments include any deviation from the recipient program schedule, or other terms
and conditions provided for by the Iowa Economic Development Authority contract
number 08-DRH-212 which is by this reference incorporated herein and made a part
hereof of this Subrecipient agreement.
SECTION 13. TERMINATION FOR CONVENIENCE. City or Subrecipient may
terminate this Agreement when both parties agree that the continuation of the Project
would not produce beneficial results commensurate with the future expenditure of
funds. The parties shall agree upon the termination conditions, including the effective
date and shall cancel as many outstanding obligations as possible. City shall allow full
credit to Subrecipient for City share of the noncancellable obligations, properly incurred
by Subrecipient prior to termination, subject to Iowa Economic Development Authority
approval.
SECTION 14. TERMINATION FOR CAUSE. City or Subrecipient, for legitimate and
just cause, may terminate this Agreement upon ten (10) days written notice to the other.
Each party shall be responsible for the liabilities they possess as a result of this
Agreement and shall save and hold harmless each from further liability.
5
SECTION 15. LEGAL ENTITY. No separate legal entity is created by this
Agreement.
SECTION 16. REVERSION OF ASSETS. Up to and including the expiration date of
this Agreement (10 years after the date of closeout of City's contract with IEDA),
Subrecipient shall transfer immediately to City any CDBG funds on hand (excluding
payments for accounts payable under the aforesaid project received prior to project
closeout) and/or any account receivable attributable to the use of CDBG funds and/or
any real property under Subrecipient's control that was acquired or improved in whole
or part with CDBG funds and disposed of in a manner that results in Subrecipient being
reimbursed in the amount of current market value of the property less any portion of the
value attributable to expenditures on non-CDBG funds for acquisition of or improvement
to the property.
SECTION 17. FEDERAL LAWS. By virtue of the federal funding provided for under
this Agreement, the parties hereto shall be bound by and adhere to all applicable
federal laws, rules, policies, orders and directions, including, by way of specification, but
not limited to the following:
a. The requirements of Title VIII of the Civil Rights Act of 1968, 42 U.S.C.
3601-19 and implementing regulations; Executive Order 11063; Title VI of the
Civil Rights Act of 1964 (42 U.S.C. 200d-1), and the Americans with Disabilities
Act, as applicable (P.L. 101-336, 42 U.S.C. 12101-12213); and related Civil
Rights and Equal Opportunity statutes; and regulations which supplement these
laws and orders.
b. The prohibitions against discrimination on the basis of age under the Age
Discrimination Act of 1975 (42 U.S.C. 6101-07) and the prohibitions against
discrimination against handicapped individuals under Section 504 of the
Rehabilitation Act of 1973 (24 U.S.C. 794).
c. The requirements of Executive Order 11246 and the regulations issued
under the Order at 41 CFR Chapter 60.
d. The requirements of Section 3 of the Housing and Urban Development
Act of 1968, 12 U.S.C. 1701.
e. The requirements of Executive Orders 11625, 12432, and 12138.
Consistent with responsibilities under these Orders, the provider must make
efforts to encourage the use of minority- and women -owned business enterprises
in connection with activities funded under this part.
f. The maintenance of books, records, documents and other such evidence
pertaining to all costs and expenses incurred and revenues received under this
Agreement to the extent and in such detail as will properly reflect all costs, direct
and indirect, of labor, materials, and equipment, supplies, services, and other
6
costs and expenses of whatever nature, for which payment is claimed under their
contract/subagreement as specified in 261 --Chapter 23, Iowa Administrative
Code and OMB Circular A-102.
g. At any time during normal business hours and as frequently as deemed
necessary, the parties heretofore shall make available to the Iowa Economic
Development Authority, the State Auditor, the General Accounting Office, and
the Department of Housing and Urban Development, for their examination, all of
its records pertaining to all matters covered by this Agreement and permit these
agencies to audit, examine, make excerpts or transcripts from such records,
contract, invoices, payrolls, personnel records, conditions of employment, and all
other matters covered by this Agreement for five years after complete grant
closeout and all other pending matters are closed.
h. Subrecipient (Wilmac) agrees to include the provisions of Paragraphs (a)
through (g) in every subcontract or purchase order unless excepted by rules,
regulations, or orders of the Secretary of Labor issued pursuant to Section 204
of Executive Order No. 11246 of September 24, 1965, so that such provisions
will be binding upon each subcontractor or vendor. The contractor (Wilmac) will
take such action with respect to any subcontract or purchase order as the
contracting agency (City) may direct as a means of enforcing such provisions
including sanctions for noncompliance: Provided, however, that in the event
Contractor (Wilmac) becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by contracting agency
(City), the contractor (Wilmac) may request the United States to enter into such
litigation to protect the interests of the United States.
i. Certification regarding government -wide restriction on lobbying.
Subrecipient certifies, to the best of his/her knowledge the belief that:
1. No federal appropriated funds have been paid or will be paid, by or
on behalf of Subrecipient, to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress,
an officer or employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any Federal contract, grant, loan,
or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid
to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee,
or an employee of a Member of Congress in connection with this Federal
contract, grant, loan or cooperative agreement, Subrecipient shall
complete and submit Standard Form LLL, "Disclosure Form to Report
7
Federal Lobbying" in accordance with its instruction.
3. Subrecipient shall require that the language of this certification be
included in the award documents for all subawards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans and
cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
4. This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or entering into
this transaction imposed by section 1352, title 31, U.S. Code. Any person
who fails to file the required certification shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such failure.
j. Political Activity. No portion of program funds shall be used for any
partisan political activity or to further the election or defeat of any candidate for
public office. Neither the program nor the funds provided therefore, nor the
personnel employed in the administration of this Contract or its Funding
Agreements, shall be in any way or to any extent, engaged in the conduct of
political activities in contravention of The Hatch Act (5 U.S.C. 15).
SECTION 18. OTHER REQUIREMENTS. In connection with the carrying out of this
Agreement, Subrecipient agrees to comply with any and all rules and regulations of the
IEDA and the US Department of Housing and Urban Development concerning third
party contracts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
CITY OF DUBUQUE, IOWA
GRANTEE
By:
Roy D. Buolf ayor
ATTEST:
Ke n S. Firnstahl, lerk
8
WILMAC POPERTY COMPANY
SUBRECIPI ` NT
ASSIGNMENT OF DEVELOPMENT AGREEMENT
This Assignment of Development Agreement is entered into thise day of October,
2014 by and between Wilmac Property Company, an Iowa business corporation, ("Wilmac")
Betty Building, LLC, an Iowa limited liability company ("Betty") and the City of Dubuque, Iowa
("City").
RECITALS
A. City and Wilmac entered into a Development Agreement dated March 7, 2013 (the
"Development Agreement");
B. Pursuant to the terms of the Development Agreement Wilmac was to provide certain
improvements to real estate owned by Wilmac, such property locally known as 151 East 9th St.,
Dubuque, Iowa and legally described as: City Lot 379 and the South 15 feet of City Lot 380 in
Dubuque, Iowa (the "Property"). Subject to the requirements and restrictions of that
Development Agreement City agreed to take certain actions to aid in the rehabilitation of the
Property.
C. In order to facilitate rehabilitation of the Property, and in particular to accommodate
the use of historic tax credits, the Property will be or has been deeded to Betty. As such Wilmac
desires to assign all of its rights and obligations under the Development Agreement to Betty and
Betty desires to accept such rights and obligations;
D. The parties desire to set forth their agreement regarding such assignment in writing.
Therefore, in consideration of the mutual terms and covenants herein, the parties agree as
follows:
AGREEMENT
1. Assignment. Wilmac does hereby assign, transfer and convey to Betty each and every
right and obligation of Wilmac in and under the Development Agreement.
2. Acceptance. Betty does hereby accept all rights and obligations of Wilmac under the
Development Agreement and agrees to be bound by such agreement and to be responsible for
every obligation of Developer thereunder.
3. Consent. City does hereby consent to the assignment as set forth herein and releases
Wilmac from any obligations that accrue under the terms of the Development Agreement after
the date hereof.
4. Miscellaneous. This agreement is binding upon the parties hereto and their successors
and permitted assigns and shall be governed by and construed under the laws of the state of Iowa.
City of Dgquq e, io „ a II
Roy D. ycluol, Mayor
ASSIGNMENT OF SUBRECIPIENT AGREEMENT
This Assignment of Subrecipient Agreement is entered into this day of October, 2014
by and between Wilmac Property Company, an Iowa business corporation, ("Wilmac") Merrimac
Restoration, Inc., an Iowa business corporation ("Merrimac") and the City of Dubuque, Iowa
("City").
RECITALS
A. City and Wilmac entered into a Subrecipient Agreement for Community Development
Block Grant Housing Disaster Recovery Fund Contract dated September 15, 2014 (the
"Subrecipient Agreement");
B. Pursuant to the terms of the Subrecipient Agreement City shall provide to Wilmac
certain funds as a forgivable loan, subject to the requirements and restrictions of that
Subrecipient Agreement. The funds are made available through the State of Iowa, by its
Department of Economic Development;
C. In order to facilitate the use of the funds and to best accommodate other funding
sources for the contemplated project Wilmac desires to assign all of its rights and obligations
under the Subrecipient Agreement to Merrimac and Merrimac desires to accept such rights and
obligations;
D. The parties desire to set forth their agreement regarding such assignment in writing.
Therefore, in consideration of the mutual terms and covenants herein, the parties agree as
follows:
AGREEMENT
1. Assignment. Wilmac does hereby assign, transfer and convey to Merrimac each and
every right and obligation of Wilmac in and under the Subrecipient Agreement.
2. Acceptance. Merrimac does hereby accept all rights and obligations of Wilmac under
the Subrecipient Agreement and agrees to be bound by such agreement and to be responsible for
every obligation of the Subrecipient thereunder.
3. Consent. A. City does hereby consent to the assignment as set forth herein and releases
Wilmac from any obligations that accrue under the terms of the Subrecipient Agreement after the
date hereof.
B. State of Iowa, by its Department of Economic Development , hereby
consents to the assignment as set forth herein.
4. Miscellaneous. This agreement is binding upon the parties hereto and their successors
and permitted assigns and shall be governed by and construed under the laws of the state of Iowa.
City ofD
By:
owa
Roy D. uo1, Mayor
l errimac-R,ctoifation, Inc.
By: vOI Lu
State of Iowa
Department of Economic Development
By: