Giese Mfg. Develop AgreeMEMORANDUM
February 26, 2002
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Approval of Development Agreement by and among the City, Giese
Properties, LLC. and Giese Manufacturing Company, Inc. for the Sale
and Development of Property in the Dubuque Industrial Center West
Economic Development Director Bill Baum is recommending approval of the
Development Agreement for the disposition of approximately five acres in the Dubuque
Industrial Center West to Giese Properties, L.LC.
The key elements of the Development Agreement are:
The purchase price is $78,000 per acre for 5 acres. An Acquisition Grant to the
developer reduces the cost to $39,000 per acre, and assists the Company in
paying for grading on this undeveloped site.
2. The property will be conveyed on or before March 31, 2002.
Giese Properties, L.L.C. must construct a building of not less than 30,000 square
feet at a cost of not less than $825,000.
Giese Properties, L.L.C. will enter into a minimum 10-year lease with Giese
Manufacturing, Inc.
Giese Manufacturing Company, Inc. must retain 31 existing jobs and create 10
new jobs within the first 36 months of operation. The 41 jobs must be retained
for 2 additional years after the initial 36 months.
Giese Manufacturing Company, Inc. will receive a 10-year TIF in the form of a
yearly tax rebate on the value of the assessable improvements.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Bill Baum, Economic Development Director
CITY OF DUBUQUE, IOWA
MEMORANDUM
TO:
FROM:
SUBJECT:
February 25, 2002
Michael Van Milligen, City Manager
Bill Baum, Economic Development Director
Approval of Development Agreement by and among the City, Giese
Properties, L.L.C. and Giese Manufacturing Company, Inc. for the Sale and
Development of Property in the Dubuque Industrial Center West
INTRODUCTION
This memorandum presents for City Council consideration a Resolution approving the
Development Agreement for the disposition of approximately 5 acres in the Dubuque Industrial
Center West to Giese Properties, L.L.C. A public hearing on the disposition of this property has
been set for March 4, 2002.
BACKGROUND
On February 18, the City Council was presented with the attached memorandum recommending
that a public hearing be set for March 4 on the proposed disposition of the above-described
property to Giese Properties, L. LC. to facilitate the construction of a 30,000 square foot
manufacturing facility for Giese Manufacturing Company, Inc. The Council received the
memorandum and set the matter for hearing.
DISCUSSION
Attached to this memorandum is a Resolution approving the proposed Development Agreement
by and among the City, Giese Properties, L.L.C. and Giese Manufacturing Company, Inc. and
authorizes execution of the Agreement and a deed.
The proposed Development Agreement establishes the terms of the sale of the property to
Giese Properties, LL.C. The key elements of the agreement include the following:
1)
The purchase price is $78,000 per acre for 5 acres. An Acquisition Grant to the
developer reduces the cost to $39,000 per acre, and assists the Company in paying for
grading on this undeveloped site.
2) The property will be conveyed on or before March 31, 2002.
3)
Giese Properties, L.L.C. must construct a building of not less than 30,000 square feet at
a cost of not less than $825,000.
4)
Giese Properties, L.L.C. will enter into a minimum 10-year lease with Giese
Manufacturing, Inc.
5)
Giese Manufacturing Company, Inc. must retain 31 existing jobs and create 10 new jobs
within the first 36 months of operation. The 41 jobs must be retained for 2 additional
years after the initial 36 months.
6)
Giese Manufacturing Company, Inc. will receive a 10-year TIF in the form of a yearly tax
rebate on the value of the assessable improvements.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council approve the Agreement with Giese Properties, EEC. and
Giese Manufacturing Company, Inc. for the sale and development of property in the Dubuque
Industrial Center West. This action supports the Council's objectives to assist a local business
expand its operations and create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:\USERS\WBaum\Giese Manufacturing Company\final.dispo.memo.rtf
Prepared by: Barry A. Lindahl 300 Main Street Dubuque, IA 52001
563-583-4113
RESOLUTION NO. 115-02
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING FOR
THE SALE OF PROPERTY IN THE DUBUQUE INDUSTRIAL CENTER WEST IN
THE CITY OF DUBUQUE, IOWA, TO GIESE PROPERTIES, L.L.C.
Whereas, this Council, by Resolution No. 89-02 dated February 18, 2002, declared its intent
to enter into a Development Agreement with Giese Properties, L.L.C. and Giese Manufacturing
Company, Inc. for the sale of certain property in Dubuque Industrial Center West in the City of
Dubuque, Iowa, (the Property) described in the attached Development Agreement; and
Whereas, pursuant to published notice, a public hearing was held on the proposed
disposition on March 4, 2002, at 6:30 p.m. at the Carnegie-Stout Public Library Auditorium, 360 W.
1 lU' Street, Dubuque, Iowa; and
Whereas, it is the determination of this Council that approval of the Development
Agreement for the sale to and development of the Property by Giese Properties, L.LC. according
to the terms and conditions set out in the Development Agreement is in the public interest of the
City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and among the City of
Dubuque, Giese Properties, L.L.C. and Giese Manufacturing Company, Inc. and the sale of the
following described Property to Giese Properties, L.L.C. is hereby approved:
Lot 6 of Dubuque Industrial Center West in the City of Dubuque,
Dubuque County, Iowa.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City and City Clerk is authorized and directed to attest to
his signature.
Section 3. That the Mayor and City Clerk are hereby authorized and directed to execute
and deliver a Special Warranty Deed for the Property as provided in the Development Agreement.
Section 4. That the City Manager is authorized to take such actions as are necessary to
comply with the terms of the Development Agreement as herein approved.
Passed, approved and adopted this 4th day of March 2002. , ~ _
Terrance M. Duggan, Mayor
Attest:
/
Jeanne F. Schneider, City Clerk
F:\USERS\WSaurn\Giese Manufacturing Company~Final dispo resolution.doc
CITY OF DUBUQUE, IOWA
MEMORANDUM
February 11, 2002
TO:
FROM:
SUBJECT:
Michael Van Milligen, City Manager
Bill Baum, Economic Development Director
Expansion of Giese Manufacturing, Inc. at the Dubuque Industrial Center
West
INTRODUCTION
This memorandum presents for City Council consideration a Resolution initiating disposition of
approximately 5 acres identified on the attached exhibit to Giese Properties, L.L.C., who will be
constructing a 30,000 square foot industrial facility for Giese Manufacturing, Inc. The attached
Resolution sets a public heating on the disposition of this property for March 4, 2002.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation and the Giese
Manufacturing, Inc on an expansion at the Dubuque Industrial Center West. The company
plans to relocate its current Elm Street manufacturing operations. They have committed to
retaining the current 30 manufacturing jobs. and adding at least 10 new jobs at the new facility.
The retail roofing and sheet metal components of their operation will remain on Kerper
Boulevard.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage the
expansion. An Acquisition Grant reduces the asking price of the land from $78 000/acre to
$39.000/acre. Because the site proposed (east of the GDDC spec building) is not graded or
ready for development, an additional $39,000 is being offered to recognize the grading costs
(estimated at approximately $100,000).
A 10-year tax rebate has been offered to the company to assist in their expansion and
relocation. The rebate is a form of tax increment financing without issuing a tax increment
finance bond to loan monies to the company upfront. As the company pays its future tax
obligation on the new improvements, the City will rebate100% (minus debt service and the
School Distdct Physical Plant and Equipment Levy) of the new TIF increment for 10 years.
The attached Development Agreement establishes the terms of the sale of the property to
Giese. The key elements of the agreement include the following:
1)
The purchase price is $78,000 per acre for 5 acres. An Acquisition Grant to the
developer reduces the cost to $39,000 per acre. An additional $39,000 is provided as
an Acquisition Grant for grading the site.
2) The property will be conveyed on or before March 31, 2002.
The company must construct a building of not less than 30,000 square feet
costing not less than $870,000.
4) Giese Properties L.L.C. will enter a minimum 10-year lease with Giese
Manufacturing Company, Inc.
5) Giese Manufacturing Company, Inc. must retain 30 existing jobs and create 10 new jobs
within the first 36 months of operation. The 40 jobs must be retained for 2 additional
years after the initial 36 months.
6) The company will receive a 10-year TIF in the form of a yearly tax rebate on the value of
the assessable improvements.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council set for public hearing the disposition of the Dubuque
Industrial Center West property to Giese Properties, L. LC. for the purpose of constructing and
leasing to Giese Manufacturing Company, Inca 30,000 square foot manufacturing distribution
facility. This action supports the Council's objectives to assist a local business expand its
operations and create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
Attachments
F:\USERS\WBaurn\Giese Manufacturing Company~dispo.memo-giese. rtf
RESOLUTION NO. 89-02
RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL
PROPERTY BY SALE TO GIESE PROPERTIES, L.L.C. PURSUANT TO
DEVELOPMENT AGREEMENT WITH GIESE PROPERTIES, L.L.C. AND THE
GIESE MANUFACTURING COMPANY, INC.
WHEREAS, the City of Dubuque, Iowa (City) is the owner of the following real
property (the Property), as shown on the Exhibit attached hereto consisting of 5 acres,
more or less; and
WHEREAS, City, Giese Properties, L.L.C. and Giese Manufacturing Company,
Inc. have entered into a Development Agreement, subject to the approval of the City
Council, a copy of which is on file at the Office of the City Clerk, City Hall, 50 W. 13th
Street, Dubuque, iowa pursuant to which City will sell the Property to Giese Properties,
L.L.C.; and
WHEREAS, the City Council has tentatively determined that it wOuld be in the
best interests of the City to approve the Development Agreement, including conveyance
of the Property to Giese Properties, L.L.C.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing-
described Property to Giese Properties, L.LC.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on City's intent to dispose of the foregoing-described Property, to be held
on the 4th day of March, at 6:30 p.m. at the Carnegie-Stout Public Library Auditorium,
th
360 W. 11 Street, Dubuque, Iowa.
Passed, approved and adopted this 18th day of February 2002.
Terrance M. Duggan
Mayor
ATTEST:
Jeanne F. Schneider
City Clerk
F:\USERS\WBaum\Giese Manufacturing Company\Resolution disposing of property.rtl
FINAL PLAT
LOT 6, LOT 7, LOT 'F' AND LOT "G' OF DUBUQUE INDUS'I~IAL CEN'i~R WEST IN THE CITY OF DUBUQUE, IOWA
--I ~ LOT 6
5.000 ACRES
U~LI~ EASEM[NT PeR
~= 23'33'00' ~= 24~1'57" X~~ LOT
~ = 950.oo' ~ = ~o50.oo' 27.220 ACRES
L = 390.~' L = ~47'
CH. = 587.7~ CH. = 440.19' ~,~
COR SWl/4
SEC. 5D-89-2E
5/8' ROD, CAP 12651
CAP
12631
20'
S88'02'53"W
cAP 285.51'
7
1.831 ACRES
0.999 ACRES
LOT 1
swl/4- s£1/4
SEC. 30-~9-2E
SE COR, SW1/4
SEC. 30-89-2E
s/8' ROD w/
DEVELOPMENT AGREEMENT
AGREEMENT, mede on or as of the day of ,2002 ("Effective Date"), by end
among the City of Dubuque, Iowa, a municipality ("City"), established pursuent to the Code of Iowa of thc
State of Iowa and acting under authorization of Chapter 403 of the Code of Iowa, as amended ("Urben
Renewal Act"), Giese Properties, L.L.C. en Iowa limited liability compalay with its principal place of
business at Dubuque, Iowa ("Developer") end Giese Manufacturing Company, Inc., en Iowa corporation,
with its principal place of business at Dubuque, Iowa ("Employer").
WITNESSETH:
WHEREAS, in furtherence of the objectives of the Urben Renewal Act, City has undertaken en Urban
Renewal project ("Project") to advence the community's ongoing economic development efforts; end
WHEREAS, Project is located within the Dubuque Industrial Center Economic Development District
("Project Area"); and
WHEREAS, as of the date of this Agreement there has been prepared end approved by City en Urban
Renewal Plen for the Project Area consisting of the Urben Renewal Plen for the Dubuque Industrial Center
Economic Development District, approved by City Council of City on May 2, 1988, and as subsequently
amended through end including the date hereof, (as amended, attached hereto as Exhibit A)(''Urben Renewal
Plen"); and
WHEREAS, a copy of the Urben Renewal Plen, as constituted on the date of this Agreement end in
the form attached hereto, has been recorded among the lend records in the office of the Recorder of Dubuque
County, Iowa; end
WHEREAS, Employer has determined that it requires new manufacturing space to maintain end
expend its operations end employment in the Project Area, end has reached en agreement with Developer to
provide the menufacturing space in Project Area; end
WHEREAS, Developer has requested that City sell to Developer approximately five (5) acres, more
or less, legally described as Lot 6 of Dubuque Industrial Center West identified on Exhibit B, attached, in the
City of Dubuque, Dubuque County, Iowa, together with all easements, tenements, hereditaments, end
appurtenences belonging thereto ("Property"), so that Developer may develop said Property, located in the
Project Area, for the construction, use end occupency of en industrial manufactadng building with appurtentmt
uses which the City has determined end represented to Developer and Employer is in accordence with the uses
specified in the Urben Renewal Plen end in accordance with this Agreement; and
WHEREAS, City believes that the development of Property pursuent to this Agreement, end the
fulfillment generally of this Agreement, are in the vital end best interests of City end in accord with the public
purposes end provisions of the applicable federal, state end local laws end the requirements under which the
Project has been undertaken end is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual obligations of the parties
hereto, each of them does hereby covenant end agree with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The purchase price for Property ("Purchase Price") shall be the sum of Seventy-Eight
Thousend Dollars ($78,000.00) per acre, which shall be due end payable by Developer in immediately
available funds in favor of City, on March 31, 2002, or on such other date as the parties may mutually agree
("Closing Date").
1.2 Title to Be Delivered. City agrees to convey good end marketable fee simple title in Property to
Developer subject only to easements, restrictions, conditions and covenents of record as of the date hereof to
the extent not objected to by Developer as set forth in this Agreement, and to the conditions subsequent set
forth in section 6.4, below:
(1) City, at its sole cost end expense, shall deliver to Developer an abstract of title to Property
continued through the date of this Agreement reflecting merchantable title in City in conformity with
this Agreement, applicable State law. The abstract shall be delivered together with full copies of any
and all encumbrences end matters of record applicable to the Property, end such abstract shall become
the property of Developer when Purchase Price is paid in full in the manner as aforesaid.
(2) Developer shall have until time of Closing to render objections to title, including eny
easements or other encumbrences not satisfactory to Developer, in writing to City. Developer agrees,
however, to review the Abstract promptly following Developer's receipt of Developer's lend survey
end the Abstract end to promptly provide City with eny objections to title identified therein. Nothing
herein shall be deemed to limit Devaloper's rights to raise new title objections with respect to matters
revealed in eny subsequent title examinations end surveys end which were not identified in the
Abstract provided by the City. City shall promptly exercise its best efforts to have such title objections
removed or safisfed and shall advise Developer of intended action within ten (10) days of such action.
If City shall fail to have such objections removed as of Closing, or any extension thereof consented to
by Developer, Developer may, at its sole discretion, either (a) terminate this Agreement without any
liability on its part, and eny sums previously paid to City by Developer (or paid into escrow for City's
benefit) shall be returned to Developer with interest, or (b) take title subject to such objections: City
agrees to use its best reasonable efforts to promptly satisfy eny such objections.
1.3 Rights of Inspection, Testing end Review. Developer, its counsel, accountants, agents and other
representatives, shall have full end continuing access to Property end all parts thereof, upon reasonable notice
to City. Developer and its agent and representatives shall also have the right to enter upon Property at any time
after the execution end delivery hereof for eny purpose whatsoever, including inspecting, surveying,
engineering, test boring, performence of environmental tests, provided that Developer shall hold City harmless
end fully indemnify City against eny damage, claim, liability or cause of action arising from or caused by the
actions of Developer, its agents, or representatives upon Property (except for eny damage, claim, liability or
cause of action arising from conditions existing prior to eny such entry upon the Property), end shall have the
further right to make such inquiries of governmental agencies and utility compenies, etc. end to make such
feasibility studies and analyses as it considers appropriate.
1.4 Representations of City. In order to induce Developer to enter into this Agreement and purchase
Property, City hereby represents and warrants to Developer and to Employer that to the best of City's
knowledge:
(1) No action in condemnation, eminent domain or public taking proceedings are now pending or
contemplated against Property.
(2) No ordinance or hearing is now or before any local governmental body which either
contemplates or authorizes any public improvements or special tax levies, the cost of which may be
assessed against Property.
(3) City has good and marketable fee simple title interest to Property.
(4) There are no notices, orders, suits, judgments or other proceedings relating to frre, building,
zoning, air pollution, health violations or other matters that have not been corrected. City has notified
Developer in writing of any past notices, orders, suits, judgments or other proceedings relating to fire,
building, zoning, air pollution or health violations as they relate to Property of which it has actual
notice.
(5) Property will as of the date of closing be free and clear of all liens, security interests, and
encumbrances.
(6) City has duly obtained all necessary approvals and consents for its execution, delivery and
performance of this Agreement, and that it has full power and authority to execute, deliver and
perform its obligations under this Agreement. The City's attorney shall issue a legal opinion to
Developer and Employer at time of closing confirming the representatiou contained herein, in form
and substance reasonably satisfactory to Developer and Employer.
(7) All utilities necessary for the development and use of the Property as an industrial
manufacturing facility adjoin the Property, and Developer shall have the right to tie into said utilities
(8) The Property is free and clear of any occupants, and no party has a lease to or other occupancy
or contract fight in the Property which shall in anyway be binding upon the Property, Developer or
Employer.
(9) City shall exercise its best efforts to cooperate with Developer and Employer in the
development process.
(10) City shall exercise its best efforts to resolve any disputes arising during the development
process in a reasonable and prompt fashion.
(11) With respect to the period during which City has owned or occupied the Property, and to
City's knowledge after reasonable investigation with respect to the time before City owned or
occupied the Property, no person or entity has caused or permitted materials to be stored, deposited,
treated, recycled, or disposed of on, under or at the Property, which materials, if known to be present,
would require cleanup, removal or some other remedial action under environmental laws.
1.5 Conditions to Closing. The closing of the transaction contemplated by this Agreement and all the
obligations of Developer and Employer m~der this Agreement are subject to fulfillment, on or before the
Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall be correct as of the
Closing Date with the same force and effect as if such representations were made at such time. At the
closing, City shall deliver a certificate to that effect.
(2) Title to Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and approved of any
inspections done by Developer hereunder.
(4) Developer having obtained any and all necessary governmental approvals, including without
limitations approval of zoning, subdivision or platting which might be necessary or desirable in
connection with the sale and transfer and development of Property. Any conditions imposed as a part
of the zoning, platting or subdivision must be satisfactory to Developer, in its sole opinion. City shall
cooperate with Developer in attempting to obtain any such approvals and shall execute any documents
necessary for this purpose, provided that City shall bear no expense in connection therewith. In
connection therewith, the City agrees (a) to review all of Developer's plans and specifications for the
project and to either reject or approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that the City has approved
such plans and specifications, and that the same are in compliance with the Urban Renewal Plan, this
Agreement and any other applicable City or affiliated agency requirements, with the understanding
that Developer and its lenders shall have the fight to rely upon the same in proceeding with the project;
(c) to identify in writ'rog within ten (10) working days of submission of said plans and specifications,
any and all permits, approvals and consents that are legally required for the acquisition of the Property
by Developer, and the construction, use and occupancy of the project with the intent and
understanding that Developer and its lenders and attorneys will rely upon same in establishing their
agreement and time frames for construction, use and occupancy, lending on the project and issuing
legal opinions in connection therewith; and (d) to cooperate fully with Developer to streamline and
facilitate the obtaining of such permits, approvals and consents.
4
(5) City having completed all required notice to or prior approval, consent or permission of any
federal, state or municipal or local governmental agency, body, board or official to the sale of
Property;, and consummation of the closing by the City shall be deemed a representation and warranty
that it has obtained the same.
(6) Developer and City shall be in material compliance with all the terms and provisions of this
Agreement.
(7) 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 Minimum
Improvements (as defined herein) in conformance with Construction Plans (as defined herein), or City
shall have received such other evidence of such party's financial ability as in the reasonable judgrnent
of City is required.
(8) Execution of a lease agreement between Developer and Employer pursuant to Section 4.1 of
this Agreement.
(9) Receipt of an opinion of counsel to Developer in the form attached hereto as Exhibit C.
(10) Receipt of an opinion of counsel to Employer in the form attached hereto as Exhibit E.
(11) Developer and Employer shall each have the right to terminate this Agreement at anytime
prior to the consummation of the closing on the Closing Date if Developer or Employer determine in
their sole discretion that conditions neeessary for the successful completion of the project
contemplated herein (the "Project" or "project") have not been satisfied to the full satisfaction of such
party in such party's sole and unfettered discretion. Upon the giving of notice of termination by such
terminating party to the other parties to this Agreement, this Agreement shall be deemed null and void.
1.6 Closing. TheclosingofthepurchaseandsaleshalltakeplaeeonClosingDate. Exclusive possession
of Property shall be delivered on the Closing Date, in its current condition and in compliance with this
Agreement, including City's representations and warranties regarding the same. Consmmnation of the Closing
shall be deemed an agreement of the parties to this Agreement that the conditions of closing shall have been
satisfied or waived.
1.7 City's Obligations at Closing. At or prior to Closing Date, City shall:
(I) Deliver to Developer City's duly recordable Special Warranty Deed to Property (in the form
attached hereto as Exhibit D ("Deed") conveying to Developer marketable fee simple title to Property
and all rights appurtenant thereto, subject onlyto easements, restrictions, conditions and covenants of
record as of the date hereof and not objected to by Developer as set forth in this Agreement, and to the
conditions subsequent set forth in Section 6.4, below.
(2) Deliver to Developer the Abstract of Title to Property.
(3) Deliver to Developer such other documents as may be required by this Agreement, all in a
form satisfactory to Developer.
5
1.8 Delivery of Purchase Price: Obligations At Closing. At closing, and subject to the terms, conditions,
and provisions hereof and the performance by City of its obligations as set forth heroin, Developer shall pay the
Purchase Price to City pursuant to Section 1.1 hereof, but subject to Developer receiving a partially offsetting
credit pursuant to Section 3.1 below.
1.9 Closing Costs. The following costs and expenses shall be paid in connection with the closing:
(1) City shall pay:.
(a) The transfer fee imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1.10.
(c) All special assessments whether levied, pending or assessed.
(d) City's attorney's fees.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage and any other
document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The documentary fee necessary to record the Deed.
(b) Developer' s attorney' s fees.
(c) Developer's broker and/or real estate commissions and fees, if any.
(d) A pro-rata portion of all taxes as provided in Section 1.10.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years which end prior to Closing
Date. Real estate taxes for the fiscal year in which Closing Date occurs shall be prorated between City and
Developer to Closing Date on the basis of a 365-day calendar year. Developer shall pay or cause to be paid all
real estate taxes due in subsequent fiscal years. Any proration of real estate taxes on Property shall be based
upon such taxes for the year currently payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer and Employer are working
together to build an industrial manufacturing facility on the Property. Specifically, Developer is charged with
constructing the structure of the building and certain internal systems thereto, and with finishing the building
including, without limitation, all interior improvements ("Minimum Improvements"); all as more particularly
depicted and described on the plans and specifications to be delivered to and approved by the City as
contemplated in this Agreement. Developer hereby agrees to construct on the Property an industrial
manufacturing facility of not less than thirtythousand (30,000) square feet of floor space along with necessary
sitework as contemplated in this Agreement at a cost of not less than $825,000.
6
2.2 Plans for Construction of Minimum Improvements. Plans and specifications with respect to the
development of Property and the construction of Minimum Improvements thereon ("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 the Declaration of Covenants, Conditions, Restrictions, Reservations,
Easements, Lions and Charges, recorded as Instmmont No. 17454-99, 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 Improvemonts shall be in substantial conformity with the Construction Plans approved by City.
2.3 Timing of Improvements. Developer hereby agrees that construction of Minimum Improvements on
Property shall be commenced within three (3) months after Closing Date, and shall be substantially completed
by December 31, 2002. The time frames for the performance of these obligations shall be suspended due to
unavoidable delays meaning delays, outside the control of the party claiming its oconn'once 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 casualtyto the Minimum Improvements, litigation
commenced by third parties which, by injunction or other similar judicial action or by the exercise of
reasonable discretion directlyresults in delays, or acts of any federal, state or local govemmont which directly
result in extraordinary delays. The time for performance of such obligations shall be extended only for the
period of such delay.
2.4 Certificate of Completion. Promptly following the request of Developer upon completion of Minimum
Improvements, City shall furnish Developer with an appropriate instrument so certifying. Such certification
("Certificate of Completion") shall be in recordable form and shall be a conclusive determination of the
satisfaction and termination of the agreements and covenants in this Agreement and in the Deed with respect to
the obligations of Developer to construct Minimum Improvements. The Certificate of Completion shall waive
all rights of revestment of title in City as provided in Section 6.4, and the Certificate of Completion shall so
state.
2.5 Employer's and Developer's Lender's Cure Rights. The parties agree that if Developer shall fall to
complete the Minimum Improvemonts as required by this Agreement such that revestment of title may occur
(or such that the City would have the option of exercising its revestment rights), thou Employer or Develop er' s
Lender shall have the right, but not the obligation, to complete such Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's and Employer's obligations
hereunder to construct Minimum Improvements and lease them to Employer as provided herein, City agrees to
make an Acquisition Grant to Developer on the Closing Date, or such other date as the parties shall mutually
agree upon in writing, in the amount of Two Hundred ThirtyFour Thousand Dollars ($234,000). The parties
agree that the Acquisition Grant shall be payable in the form ora credit favoring Developer at time of Closing
with the effect of directly offsetting a portion of the purchase price obligation of Developer.
3.2 Economic Development Grants to Employer.
( t ) For and in consideration of Employer'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, the City
agrees, subject to the Employer being and remaining in compliance with the terms of this Agreement,
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to make twenty (20) consecutive semi-annual payments (such payments being referred to collectively
as the "Economic Development Grants") to the Employer, commencing October 1, 2004, and
continuing until April 1, 2015, pursuant to Section 403.9 of the Urban Renewal Law, in mounts
equal to the actual amount of tax increment revenues paid by Employer under the Lease with
Developer and collected by the City under Section 403.19 (without regard to any averaging that may
otherwise be utilized under Section 403.19 and excluding any interest that may accrue thereon prior to
payment to the Employer) during the preceding six-month period in respect of the Minknum
Improvements constructed by Developer (the "Employer Tax Increments").
(2) To fund the Economic Development Grants, the City shall certify to the County prior to
December 1 of each year, commencing December 1, 2003, its request for the available Employer Tax
Increments resulting from the assessments imposed by the County as of January 1 of the following
year, to be collected by the City as taxes are paid during the following fiscal year and which shall
thereafter be disbursed to the Employer on October 1 and April 1 of that fiscal year. (Example: if the
City so certifies in December, 2003, the Economic Development Grants in respect thereof would be
paid to the Employer on October 1, 2004, and April 1, 2005.)
(3) The Economic Development Grants shall be payable from and secured solely and only bythe
Employer Tax Increments which, upon receipt, shall be deposited and held in a special account created
for such propose and designated as the "Giese TIF Account" of the City. The City hereby covenants
and agrees to maintain its 'IW ordinance in force during the term hereof and to apply the incremental
taxes collected in respect of the Minimum Improvements and allocated to the Giese TIF Account to
pay the Economic Development Grants, as and to the extent set forth in Section 3.2(1) hereof. The
Economic Development Grants shall not be payable in any manner by other tax increments revenues
or by general taxation or fram any other City funds. The City makes no representation with respect to
the amounts that may be paid to the Employer as the Economic Development Grants in any one year
and under no circumstances shall the City in any manner be liable to the Employer so long as the City
timely applies the Employer Tax Increments actually collected and held in the Giese 'lW Account
(regardless of the amounts thereof) to the payment of the Economic Development Grants to the
Employer as and to the extent described in this Section.
(4) The City shall be free to use any and all tax increment revenues collected in respect of other
properties within the Project Area, or any available Employer Tax Increments resulting from the
termination of the mmual 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 the City shall have no obligations to the Employer with respect to the use thereof.
3.4. Deposit of Grading Spoils. Developer expects that during the course of grading the Property to make
it suitable for construction purposes, it may generate as much as sLxty-five thousand (65,000) cubic yards of
displaced soil which it will need to deposit elsewhere than on the Property. City agrees to designate an area
within the subdivision in which the Property is located, within reasonable proximity to the Property, upon
which Developer shall spread, compact and seed such grading spoils. Developer shall not be required to pay
any fees to City for such right.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Execution of Lease Agreement With Employer. Developer shall agree to, and with Employer shall
execute, an agreement in a form satisfactory to Employer and Developer for the lease of the Minimum
Improvements for a term of not less than ten (10) years following the eompletion thereof (the "Lease").
Developer shall, prior to the Closing Date, present the lease to the City for review. City will acknowledge
receipt within five (5) days.
4.2 Real Property Taxes. From and after the Closing Date, 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 until
Developer's obligations have been assumed by any other person pursuant to the provisions of this Agreement.
4.3 Insurance Requirements.
(1) Developer will provide and maintain or cause to be maintained at all times during the process
of constructing Minimum Improvements (and, from time to time at the request of City, furnish City
with proof of insurance in the form of a certificate of insurance for each insurance policy):
(a) All risk builder's risk insurance, written on a Completed Value Form in an amount
equal to one hundred percent (100%) of the replacement value when construction is
completed;
(b) Commercial general liability insurance covering the Property and operations
(including operations of subcontractors), completed operations and contractual liability
insurance with limits of liability of not less than $2,000,000 for each occurrence and in the
aggregate (an umbrella or excess liability policy may be used), bodily injury and property
damage; and
(c) Statutory worker's compensation insurance coverage and employer's liability
insurance in the amount of $1,000,000.
(2) Upon completion of constmetion of Minimum Improvements and prior to the Termination
Date, Developer or Employer shall maintain, or cause to be maintained, at its cost and expense (and
from time to time at the request of City shall furnish proof of insurance in the form ora certificate of
insurance) insurance as follows:
(a) All risk property insurance against loss and/or damage to Minimum Improvements
under an insurance policy written in an amount not less than the full insurable replacement
value of Minimum Improvements. The term "replacement value" shall mean the actual
replacement cost of Minimum Improvements (excluding foundation and excavation costs and
costs of underground flues, pipes, drains and other uninsurable items) and equipment, mad
shall be determined from time to time at the request of City, but not more frequentlythan once
every three years.
(b) Commercial general liabilityinsurance, in the minimum amount for each occurrence
and in aggregate of $2,000,000.00, bodily injury and property damage.
(3) All insurance required by this Section shall be taken out and maintained in responsible
insurance companies selected by Developer, or Employer, as applicable, which are authorized under
the laws of the State to assume the risks covered thereby. Developer, or Employer, as applicable, will
deposit annually with City certificates of insurance or binders of the respective insurers stating that
such insurance is in force and effect. Unless otherwise provided in this Section, each policy shall
contain a provision that the insurer shall not cancel or modify it without giving written notice to
9
Developer, or Employer, as applicable, and City at least thirty (30) days before the cancellation or
modification becomes effective. Developer, or Employer, as applicable, shall furnish City evidence
satisfactory to City that the policy, has been renewed or replaced by another policy conforming to the
provisions of this Section, or that there is no necessity therefor under the terms hereof. In lieu of
separate policies, Developer, or Employer, as applicable, may maintain a single policy, or blanket or
umbrella policies, or a combination thereof, which provide the total coverage required herein, in which
event Developer shall deposit with City a certificate or certificates of the respective insurers as to the
amount of coverage in force upon Minimum Improvements, provided, however, that the specific limit
shall not be impaired.
(4) Developer agrees to notify City immediately in the case of damage exceeding $500,000.00 in
amount to, or destruction of, 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. If the damage to the Minimum Improvements is sufficiently
extensive to cause the lease for the Property to be terminated, Developer, at its option, may:
(a) Forthwith repair, reconstruct and restore 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 necessaryto accomplish such repair, reconstruction and restoration,
Developer will 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; or
(b) Elect not to repair, reconstruct and restore Minimum Improvements. In this event,
Developer shall repay to City the unamortized portion of the Acquisition Ch-ant made by City
to Developer pursuant to the provisions of section 3.1, above. The "unamortized portion" of
the Acquisition Grant shall be calculated by dividing the total amount of the acquisition grant
by one hundred twenty (120) months, and then multiplying the resulting figure by the number
of months between the date that the damage occurred to the Property and the 10t~ anniversary
of the Effective Date.
4.4 Preservation of Property. During the term ofthis Agreement, Developer shall maintain, preserve and
keep, or cause others to maintain, preserve and keep, 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. Nothing in this Agreement, however, shall be deemed to alter any agreements between
Developer and its tenant or any other party, including the Employer, including, without limitation, any
agreements between the parties regarding the care and maintenance of the Property.
4.5 Non-Discrimination. In carrying out the project, Developer and Employer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex, national origin, age or
disability.
4.6 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
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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.
4.7 Non-transferability. Until such time as Minimum Improvements are complete (as certified by City
under Section 2.4), this Agreement may not be assigned by Developer nor may Property be transferred by
Developer to another party without the prior written consent of City, which shall not be unreasonably withheld.
Thereafter, 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.
4.8 Restrictions on Use. Developer and Employer each agrees for itself, and its successors and assigns,
and every successor in interest to Property or any part thereof that they and their respective successors and
assigns, shall:
(1) Devote Property to, and only to and in accordance with, the uses specified in the Urban
Renewal Plan (and the City represents and agrees that use of the Property as an industrial
manufacturing center is in full compliance with the Urban Renewal Plan) (however, neither Developer
nor Employer shall have any liability to the City to the extent that a successor in interest shall breach
this covenant and the City shall seek enforcement of this covenant directly against the party in breach
of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, national origin, age or disability
in the sale, lease, rental, use or occupancy of Property or any improvements erected or to be erected
thereon, or any part thereof (however, neither Developer nor Employer shall have any liabilityto the
City to the extent that a successor in interest shall breach this covenant and the City shall seek
enforcement of this covenant directly against the party in breach of same).
4.9 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers, agents, servants and
employees thereof (hereinafter, for purposes of this Section 4.10, the "Indemnified Patties") from,
covenants and agrees that the Indemnified Parties shall not be liable for, and agrees to h~demnify,
defend and hold harmless the Indemnified Parties against, any loss or damage to property or any injury
to or death of any person occurring at or about or resulting from any defect in Minimum
Improvements.
(2) Except for any gross negligence, willful misrepresentation or any willful or wanton
misconduct or any m~lawful act of the Indemnified Parties, Developer agrees to protect and defend the
Indemnified Parties, now or forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any person or entity whatsoever
arising or purportedly arising from (1) any violation of any agreement or condition of this Agreement
(except with respect to any suit, action, demand or other proceeding brought by Developer against City
based on an alleged breach of any representation, warranty or covenant of City under this Agreement
and/or to enforce its rights under this Agreement) or (2) the acquisition, construction, installation,
ownershi~ and operation of Minimum Improvements or (3) the condition of Property and any
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hazardous substance or environmental contamination located in or on Property, occurring after
Developer takes possession of Property.
(3) The Indemnified Parties shall not be liable to Developer or Employer for any damage or injury
to the persons or property of Developer or Employer or their officers, agents, servants or employees or
any other person who may be on, in or about Minimum Improvements due to any act of negligence of
any person, other than any act of negligence on the part of any such Indemnified Party or its officers,
agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City contained herein
shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City, and
not of any governing body member, officer, agent, servant or employee of City in the individual
capacity thereof.
(5) The provisions of this Section 4.9 shall survive the termination of this Agreement.
4.10 Compliance with Laws. Developer will comply with ail laws, rules mad regulations relating to its
businesses, other than laws, rules and regulations the failure to comply with which or the sanctions and
penalties resulting therefrom, would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION $. COVENANTS OF EMPLOYER.
5.1 Job Creation. Employer shall maintain its existing thirty-one (31 ) employees in Dubuque, Iowa, and
shall create or cause to be created not less than ten (10) new full time equivalent (2080 hours per year)jobs by
within three (3) years from the date of this Agreement, and shall maintain those jobs for two (2) years
thereafter. It is agreed by the parties that Employer has a base employment ha Dubuque, Iowa, of thirty-one
(31) existing full time equivalent jobs as of February 1, 2002, and that new job creation will be calculated by
subtracting this amount from Employer's actual total employment in Dubuque, Iowa as of the dates established
in Section 5.2. In the event that any certificate provided to City under Section 5.2 hereof discloses that
Employer has not created at least ten (10) FTE employees as provided hereinabove, Employer shall payto City,
promptly upon written demand therefor, an amount equal to $5,707.00 per job not created.
5.2 Certification. To assist City in monitoring the performance of Employer hereunder, three (3) years
from the date of this Agreement, and again two (2) years thereafter, a duly authorized officer of Employer shall
certifyto City (a) the number of full time equivalent jobs employed at Property, and (b) to the effect that such
officer has re-examined the terms and provisions of this Agreement and that at the date of such certificate, and
during the preceding twelve (12) months, Employer is not or was not in default in the fulfillment of any of the
terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or
the giving of notice, or both, would become an Event of Defanlt) is occurring or has occurred as of the date of
such certificate or during such period, or if the signer is aware of any such default, event or Event of Default,
said officer shall disclose in such statement the nature thereof, its period of existence and what action, if any,
has been taken or is proposed to be taken with respect thereto. Such certificate shall be provided not later than
March 1, 2005, and on March 1, 2007.
5.3 Books and Records. Employer shall keep at all times proper books of record and account in which
full, tree and correct entries will be made of ail dealings and transactions of or in relation to the business and
affairs of Employer in accordance with generally accepted accounting principles: consistently applied
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throughout the period involved, and Employer shall provide reasonable protection against loss or damage to
such books of record and account.
5.4 Non-Discrimination.. In can3dng out the project, Employer shall not discriminate against any employee
or applicant for employment because of race, religion, color, sex, national origin, age or disability.
5.5 Conflict of Interest: Employer 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, orthe 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, the
Employer 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.
5.6 Non-transferability. Until such time as the job creation obligations are completed, this Agreement may
not be assigned by Employer without the prior written consent of City, which consent shall not be unreasonably
withheld. Employer shall have the absolute right, without notification or receivingthe consent ofthe City, to
transfer the Employer's obligations hereunder to any affiliate of Employer. An "affiliate" shall mean any
corporation, partnership, Limited Liability Company, joint venture or other form of business entity which,
directly or indirectly, controls or is controlled by or is under common control with Employer. For this purpose,
"control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of voting securities or by
contract or otherwise. In the event of any transfer contemplated in this Section 5.6, Giese Manufacturing, Inc.,
shall remain obligated for the Employer's obligations herein.
5.7 Compliance with Laws. Employer will comply with all laws, rules and regulations relating to its
businesses, other than laws, rules and regulations the failure to comply with which or the sanctions and
penalties resulting therefrom, would not have a material adverse effect on the business, property, operations,
financial or otherwise, of the Employer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default Del'med. The following shall be "Events of Defuult" 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 Minimum Improvements and Property.
(2) Failure by Developer to cause the construction of Minimum Improvements to be commenced
and completed pursuant to the terms, conditiens and limitations of this Agreement.
(3) Transfer of any interest by Developer of Minimum Improvements in violation of the
provisions of this Agreement prior to the issuance of the final Certificate of Completion.
13
(4) Failure by Developer, City or Employer to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed under this
Agreement.
6.2. Remedies on Default by Developer. Whenever any Event of Default referred to in Section 6.1 ofthis
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 Employer (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 or if applicable, the Employer, 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
defaulting party deemed adequate by City, that the defaulting party will cure its default and continue
its performance under this Agreement;
(2) Until the Closing, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from the defaulting party the sum of all amounts expended by
City in connection with the funding of the Acquisition Grant to Developer, and City may take any
action, includh~g any legal action it deems necessary, to recover such mounts from the defaulting
party;,
(4) City may withhold the Certificate of Completion; or
(5) The non-defaulting parties 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.
6.3 The City acknowledges that this Agreement effectively involves or impacts three separate parties: City,
Employer and Developer (and further involves any affiliate of Employer who might use the Property as well as
any third party who might sublet the Property or take an assignment of the lease from the Employer). Each of
such parties has separate and distinct obligations under this Agreement to the extent they are a party hereto,
and with respect to Developer and Employer and other parties with an interest in the Property, under the lease
for the Property. Notwithstanding any provision in this Agreement to the contrary, the City agrees that an
Event of Default shall only be declared against the party with the responsibility under this Agreement for the
matter giving rise to the Event of Default, and that any remedy of the City shall only be exercised against such
defaulting party, and not against the other parties.
6.4 Revestinff Title in the City Upon Happenin ~ of Event Subsequent to Conveyance to Developer. Inthe
event that subsequent to conveyance of Property to Developer by City and prior to receipt by Developer of the
Certificate of Completion, but subject to the terms of the mortgage granted by Developer to secure a loan
obtained by Developer from a commercial lender or other financial institution to fund the acquisition of
Property or construction of Minimum Improvements, (''First Mortgage") an Event of Default under Section 6.1
of this Agreement occurs and is not cured within the times specified in Section 6.2, than City shall have the
right to re-enter and take possession of Property mad any portion of Minimum Improvements thereon and to
terminate (and revest in City pursuant to the provisions of this Section 6.4 subject only to any superior tights in
14
any holder of the First Mortgage) the estate conveyed by the City to Developer, it being the intent of this
provision, together with other provisions of this Agreement, that the conveyance of Property to Developer shall
be made upon the condition that (and the Deed shall contain a condition subsequent to the effect that), in the
event of default under Section 6.1 on the part of Developer and failure on the part of Developer to cure such
default within the period and in the manner stated herein, City may declare a termination in favor of City of the
title and of ail Developer's rights and interests in and to Property conveyed to Developer, and that such title
and all rights and interests of Developer, and any assigns or successors in interests of Developer, and any
assigns or successors in interest to and in Property, shall revert to City (subject to the provisions of Section 6.4
of this Agreement), but only if the events stated in Section 6.1 of this Agreement have not been cured within
the time period provided above, or, if the events cannot be cured within such time periods, Developer does not
provide assurance to City, reasonably satisfactory to City, that the events will be cured as soon as reasonably
possible. Notwithstanding the foregoing, however, City agrees to execute a Subordination Agreement in favor
of Developer's first mortgage lender, in a form reasonably acceptable to City and to Developer's first mortgage
lender.
6.5. Resale of Reacquired Propert-v: Disposition of Proceeds. Upon the investing in City of title to Property
as provided in Section 6.4 of this Agreement, City shall, pursuant to its responsibility under law, use its best
efforts, subject to any rights or interests in such property or resale granted to any holder of a First Mortgage, to
resell Property or part thereof as soon and in such manner as City shall find feasible and consistent with the
objectives of such law and of the Urban Renewal Plan to a qualified and responsible party or parties (as
determined by City in its sole discretion) who will assume the obligation of making or completing Minimum
Improvements or such other improvements in their stead as shall be satisfactory to City and in accordance with
the uses specified for such Property or part thereof in the Urban Renewal Plan. Subject to any rights or
interests in such property or proceeds granted to any holder ora First Mortgage upon such resale of Property
the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on Property, or any portion
thereof, or any improvements thereon, previously acquiesced in by City pursuant to this Agreement. If
more than one mortgage on the Property, or any portion thereof, or any improvements thereon, has
been previously acquiesced in by City pursuant to this Agreement and insufficient proceeds of the
resale exist to pay the principal of, and interest on, each such mortgage in full, then such proceeds of
the resale as are available shall be used to pay the principal of and interest on each such mortgage in
their order of priority, or by mutual agreement of all contending parties including Developer, or by
operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred by City, including but
not limited to salaries of personnel, in connection with the recapture, management and resale of
property or part thereof (but less any inenme derived by City from the property or part thereof in
connection with such management); any payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) previously acquiesced in by the City) existing on
Property or part thereof at the time of revesting of title thereto in City or to discharge or prevent from
attaching or bring made any subsequent encumbrances or liens due to obligations, default or acts of
Developer, its successors or transferees (except with respect to such mortgage(s)), any expenditures
made or obligations incurred with respect to the making or completion of Minimum Improvements or
any part thereof on Prop erty or part thereof, and any amounts otherwise owing to City (including water
and sewer charges) by Developer and its successors or transferees; and
15
(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum of the Purchase Price
paid to City for Property end the cash actually invested by such party in making eny of the Minimum
Improvements on Property, less (2) eny gains or income withdrawn or made by such party from this
Agreement or Property.
6.6. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is intended to be
exclusive of eny other available remedy or remedies, but each end every such remedy shall be cumulative end
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 eny right or power accruing upon eny defanlt shall
impair eny such right or power or shall be construed to be a waiver thereof, but eny such right end power may
be exercised from time to time and as often as may be deemed expedient.
6.7. No Implied Waiver. In the event any agreement contained in this Agreement should be breached by
eny party and thereafter waived by eny other party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive eny other concurrent, previous or subsequent breach hereunder.
6.8. Agreement to Pa,/Attorneys' Fees end Expenses If eny action at law or in equity, including en action
for declaratory relief or arbitration, is brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees end costs of litigation from the other
party. Such fees end 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 end costs of
litigation shall be in addition to eny other relief which may be awarded.
6.9 Remedies on Default by City. If City defaults in the performence of this Agreement, Developer end
Employer may jointly end severally take eny action, including legal, equitable or administrative action which
may appear necessary or desirable to collect eny payments due under this Agreement, to recover expenses of
Developer and Employer, or to enforce performance end observmace of any obligation, agreement, or covenent
of City under this Agreement. Developer and Employer may jointly suspend their performence under this
Agreement until they receive assurences from City, deemed adequate by Developer end Employer, that City
will cure its default end continue its performence under this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS
7.1 Notices and Demends. Whenever this Agreement requires or permits eny notice or wfitteu request by
one party to enother, it shall be deemed to have been properly given if end when delivered in person or three
(3) business days after having been deposited in any U.S. Postal Service end sent by registered or certified
mail, postage prepaid, addressed as follows:
(1) If to Developer:
Giese Properties, L.L.C.
2125 Kerper Boulevard
Dubuque IA 52001
With a copy to:
Gary K. Norby
16
(2)
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001-3069
If to Employer:
Giese Manufacturing Company, Inc.
2125 Kerper Boulevard
Dubuque, IA 52001
With a copy to:
Gary K. Norby
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001-3069
(3) Tfto city.
City Manager
City Hall
50 W. 13m Street
Dubuque, IA 52001
Phone: (563) 5894110
Fax: (563) 5894149
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.
7.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City,
Developer and Employer and their respective successors and assigns.
7.3 Termination Date. This Agreement and the fights and obligations of the parties hereunder shall
terminate on April 1, 2015 (the "Termination Date").
7.4. 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 foxed) of all the parties is binding on the parties.
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B! WITNESS WttEREOF, City has caused this Agreement to be duly executed in its name and
behalf by its Mayor mad attested to by its City Clerk, Developer has caused this Agreement to be duly executed
and Employer has caused this Agreement to be duly executed on or as of the f~rst above written.
CI;I'¥ OF DUBUQUE, IOWA
G1ESE PROPER'lIES, L.L.C.
By: By:
Terrance M. Duggan, Mayor
By:
Jeanne F. Schneider, City Clerk
Charles H. Giese, President
By:
Thomas W. Giese, Secretary
Giese Manufacturing Company, Inc.
By:
Charles H. Giese, President
By:
Thomas W. Giese, Secretary
F:WSERS\WBaun~Giese Manufaet ufing Comp an3hGiese LLC and Giese Manufacturingrev3.doc
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