Roasting Solutions, LLC - Development Agreement_InitiateCopyright 2014
City of Dubuque Items to be set for Public Hearing # 1.
ITEM TITLE: Roasting Solutions, LLC- Development Agreement
SUMMARY: City Manager recommending the City Council set a public
hearing for January 19, 2016 to approve the Development
Agreement between the City of Dubuque and Roasting
Solutions, LLC for the acquisition of 12.03 acres and a $3.2
million capital investment in a new 34,000 square -foot
facility employing 17 full-time equivalent positions in the
Dubuque Industrial Center South.
RESOLUTION Intent to dispose of an interest in City of
Dubuque real estate pursuant to a Development
Agreement between the City of Dubuque and Roasting
Solutions, LLC and fixing the date for a public hearing of
the City Council of the City of Dubuque, Iowa on the
proposed issuance of Urban Renewal Tax Increment
Revenue Grant Obligations and providing for the publication
of notice thereof
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s), Set Public Hearing for 1/19/16
ATTACHMENTS:
Description Type
Roasting Solutions, LLC Development Agreement -MVM City Manager Memo
Memo
Staff Memo Staff Memo
Development Agreement - Roasting Solutions Supporting Documentation
Resolution of Intent to Dispose and Notice Resolutions
THE CITY OF Dubuque
UBE I
erica .i
Masterpiece on the Mississippi 2007-2012-2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Setting a Public Hearing for Development Agreement between the City of
Dubuque and Roasting Solutions, LLC
DATE: December 28, 2015
Economic Development Director Maurice Jones recommends the City Council set a
public hearing for January 19, 2016 to consider the Development Agreement between
the City of Dubuque and Roasting Solutions, LLC for the acquisition of 12.03 acres in
Dubuque Industrial Center South and a $3.2 million capital investment in a new 34,000
square foot facility employing 17 full-time equivalent positions.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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
Dubuque Economic Development Department
THE CITY OF 50 West 13th Street
All-AmMmIily Dubuque,Iowa 52001-4864
DUB3 &kE1 I Office(563)589-4393
TTY(563)690-6678
® http://www.cityofdubuque.org
Masterpiece on the Mississippi 200.2012.2013
TO: Michael Van Milligen, City Manager
FROM: Maurice Jones, Economic Development Director
SUBJECT: Setting a Public Hearing for Development Agreement between the
City of Dubuque and Roasting Solutions, LLC
DATE: December 28, 2015
INTRODUCTION
This memorandum presents for City Council consideration and action the attached
resolution setting a public hearing on January 19, 2016 for the approval of a
Development Agreement between the City of Dubuque and Roasting Solutions, LLC.
BACKGROUND
Roasting Solutions, LLC is a local company that has seen tremendous growth since
opening its current coffee roasting facility five years ago. Company officials believe the
environment in Dubuque is conducive to a larger facility to help grow the business.
DISCUSSION
Roasting Solutions, LLC plans to invest over $3.2 Million to construct a new
manufacturing facility in the Dubuque Industrial Center South on Seippel Road, which
will bring 10 new jobs to Dubuque. Roasting Solutions, LLC is ready to enter into a
Development Agreement with the City of Dubuque to memorialize incentives.
The proposed Development Agreement provides several incentives to encourage the
capital investment and expansion of workforce. The total purchase price for the City's
industrial park property is $1,443,600 at $120,000 per acre for the 12.03 usable acres
on the 14.05 acre lot. Consistent with other development agreements in the City's
industrial parks, an Acquisition Grant of $60,000 per usable acre, amounting to
$721,800 will be used as a credit to offset the purchase price. Roasting Solutions, LLC
will owe $432,000 for 7.20 acres (Parcel A) of the property at the date of closing and an
additional $289,800 for the remaining 4.83 acres (Parcel B) not later than sixty (60)
months after the closing date, which obligation will be evidenced by a Promissory Note.
The developer has agreed to construct the new building by November 21, 2016 on
Parcel A. If the developer has not utilized Parcel B for the purpose of facilitating the
future expansion of its facility on Parcel A within 10 years, the developer has the option
of either re-conveying Parcel B to the City or refunding the $289,800 Acquisition Grant.
A 10-year property tax rebate has also been offered to the company. The rebate is a
form of tax increment financing without issuing a tax increment bond. As the company
pays its future tax obligations on the increased value of the expanded facility, the City
will rebate 100% (minus debt service, the School District Physical Plant and Equipment
Levy, and the Instructional Support Levy) of the incremental increase of the new
property tax for the next 10 years.
Roasting Solutions, LLC must employ a total of 17 full-time equivalent positions by
January 1 , 2020 and maintain those positions throughout the term of the Development
Agreement. If annual job certifications reveal that the company has not met its
commitment, a proportional percentage of the eligible tax rebate will be reduced.
Additionally, if Roasting Solutions, LLC does not have 17 employees as of January 1 ,
2028, the company will owe $42,458.82 per job not created or maintained to reimburse
the City for the Acquisition Grant.
RECOMMENDATION/ ACTION STEP
I recommend that the City Council set a January 19, 2016 public hearing for
consideration and action on the Development Agreement between the City of Dubuque
and Roasting Solutions, LLC for the acquisition of 12.03 acres and a $3.2 Million capital
investment in a new 34,000 square foot facility in the Dubuque Industrial Center
Economic Development District.
Prepared by: Jill Connors, Economic Development, 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
Return to: Jill Connors, Economic Development, 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 6-16
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE
PURSUANT TO A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
DUBUQUE AND ROASTING SOLUTIONS, LLC AND FIXING THE DATE FOR A
PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON
THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE
GRANT OBLIGATIONS AND PROVIDING FOR THE PUBLICATION OF NOTICE
THEREOF
Whereas, the City of Dubuque, Iowa (City) is the owner of the following real
property (the Property);
Lot 1 of Dubuque Industrial Center South Second Addition in the City of
Dubuque, Iowa
; and
Whereas, City and Roasting Solutions, LLC have entered into a Development
Agreement, subject to the approval of the City Council, pursuant to which City will convey
the Property to Roasting Solutions, LLC, and Roasting Solutions, LLC will construct on
the Property certain Improvements described in the Development Agreement; and
Whereas, the City Council has tentatively determined that it would be in the best
interests of City to approve the Development Agreement, including the conveyance of the
Property to Roasting Solutions, LLC; and
Whereas, the Development Agreement provides for the issuance by City of
economic development grants to Roasting Solutions, LLC, referred to therein as Urban
Renewal Tax Increment Revenue Grant Obligations, payable from the tax increment
revenues collected in respect of the Improvements to be constructed by Roasting
Solutions, LLC in accordance with the Development Agreement, for the purpose of
carrying out the objectives of an Urban Renewal Plan as hereinafter described; and
Whereas, before said obligations may be approved, Chapter 403 of the Code of
Iowa requires that the City Clerk publish a notice of the proposal and of the time and
place of the meeting at which the City Council proposes to take action thereon and at
which meeting the City Council shall receive oral and/or written objections from any
resident or property owner of said City to such proposed action.
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 by Deed to Roasting Solutions, LLC pursuant to the
proposed Development Agreement.
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 the City's intent to dispose of the foregoing -described Property, to be
held on the 19th day of January, 2016 at 6:30 p.m. in the City Council Chambers at the
Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa.
Section 3. The City Council will also meet at said time and place for the purpose
of taking action on the matter of authorizing Urban Renewal Tax Increment Revenue
obligations and the execution of the Development Agreement relating thereto with
Roasting Solutions, LLC, the proceeds of which obligations will be used to carry out
certain of the special financing activities described in the Urban Renewal Plan for the
Dubuque Industrial Center Economic Development District, consisting of the funding of
economic development grants to Roasting Solutions, LLC pursuant to the Development
Agreement under the terms and conditions of said Urban Renewal Plan. It is expected
that the aggregate amount of the Tax Increment Revenue obligations will be approximately
$950,000.
Section 4. The City Clerk is hereby directed to cause at least one publication
to be made of a notice of said meeting, in a newspaper, printed wholly in the English
language, published at least once weekly, and having general circulation in said City,
said publication to be not less than four days nor more than twenty days before the date
of said meeting on the disposal of the City's interest in the Property and the issuance of
said obligations.
Section 5. That the notice of the proposed action shall be in substantially the
form attached hereto.
Passed, approved and adopted this 4th day of Januajy, 2016.
Attest:
Kevin S. Ijrnsta1iI, Ci
y c 9r
Roy D. BqI, Mayor
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE INTENT TO DISPOSE OF AN INTEREST IN CITY OF
DUBUQUE REAL ESTATE PURSUANT TO A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBUQUE AND ROASTING SOLUTIONS, LLC., AND IN
THE MATTER OF THE PROPOSED AUTHORIZATION OF URBAN RENEWAL TAX
INCREMENT REVENUE OBLIGATIONS AND THE APPROVAL OF THE
DEVELOPMENT AGREEMENT RELATING THERETO WITH ROASTING
SOLUTIONS, LLC,
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque,
Iowa, will hold a public hearing on the 19th day of January, 2016, at 6:30 p.m. in
the City Council Chambers at the Historic Federal Building, 350 W. 6th St.,
Dubuque, Iowa, at which meeting the City Council proposes to take action on the
intent to dispose of an interest in City of Dubuque real estate, Lot 1 of Dubuque
Industrial Center South Second Addition in the City of Dubuque, Iowa, pursuant
to a Development Agreement between the City of Dubuque and Roasting
Solutions, LLC, and for the authorization and execution of the Development
Agreement, and on the issuance of economic development grants (Urban
Renewal Tax Increment Revenue Grant Obligations) described therein in order to
carry out the purposes and objectives of the Urban Renewal Plan for the
Dubuque Industrial Center Economic Development District, consisting of the
funding of economic development grants to Roasting Solutions, LLC, under the
terms and conditions of said Development Agreement and the Urban Renewal
Plan for the Dubuque Industrial Center Economic Development District. The
aggregate amount of the Urban Renewal Tax Increment Revenue Grant
Obligations cannot be determined at the present time, but is not expected to
exceed $950,000.
At the meeting, the City Council will receive oral and written objections from any
resident or property owner of said City to the above action. After all objections have
been received and considered, the City Council may at this meeting or at any
adjournment thereof, approve the Development Agreement, and authorize such Tax
Increment Revenue Grant Obligations or abandon the proposal. By order of the City
Council said hearing and appeals therefrom shall be held in accordance with and
governed by the provisions of Section 403.9 of the Code of Iowa.
This notice is given by order of the City Council of the City of Dubuque, Iowa, as
provided by Chapter 403 of the Code of Iowa.
Dated this day of 2016.
Kevin S. Firnstahl
City Clerk of Dubuque, Iowa
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
ROASTING SOLUTIONS, LLC
THIS AGREEMENT, dated for reference purposes the day of
2016, by and among the City of Dubuque, Iowa, a municipality (City),
established pursuant to the Iowa Code and acting under authorization of Iowa Code
Chapter 403, as amended (Urban Renewal Act), and Roasting Solutions, LLC, an
Iowa limited liability company with its principal place of business in Dubuque, Iowa
(Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City
has undertaken an Urban Renewal project (the Project) to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the
Urban Renewal Plan for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof (the Urban Renewal Plan) attached
hereto as Exhibit A; and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa and is on file with the City of Dubuque City
Clerk; and
WHEREAS, Developer has determined that it requires a new manufacturing
facility to maintain and expand its operations and employment in the Project Area
(the Facility); and
WHEREAS, Developer has requested that City sell to Developer 14.05 acres
of which 12.03 are usable, legally described as follows (the Property):
Lot 1 of Dubuque Industrial Center South Second Addition in the City of
Dubuque, Iowa
as shown on Exhibits B-1 and B-2, together with all easements, tenements,
hereditaments, and appurtenances belonging thereto, so that Developer may
121815balclean
develop the Property, located in the Project Area, for the construction, use, and
occupancy of a manufacturing Facility in accordance with the uses specified in the
Urban Renewal Plan and Developer agrees to comply with any amendments to the
Urban Renewal Plan, in accordance with this Agreement; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1 .1 Purchase Price. The Property consists of two separately identified parcels,
referred to herein and in Exhibit B-2 as Parcel A and Parcel B. The aggregate
purchase price for the Property (Purchase Price) shall be the sum of $1 ,443,600
($120,000.00 per acre) with a total acquisition of 12.03 usable acres, which shall be
due and payable by Developer allocated as follows:
Parcel A: $864,000 in cash on the Closing Date; and
Parcel B: $579,600 in cash not later than sixty (60) months after the Closing
Date, which obligation may be further evidenced by a Promissory Note in the
form attached hereto as Exhibit E.
1 .2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions,
and covenants of record as of the 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 6.3, below:
(1) City, at its sole cost and expense, shall deliver to Developer an
abstract of title to the Property continued through the date of this Agreement
reflecting merchantable title in City in conformity with this Agreement and
applicable state law. The abstract shall be delivered together with full copies
of any and all encumbrances and matters of record applicable to the
Property, and such abstract shall become the property of Developer when
the Purchase Price is paid in full in the manner as aforesaid.
(2) Developer shall have until time of the Closing (as defined herein) to
render objections to title, including any easements or other encumbrances
not satisfactory to Developer, in writing to City. Developer agrees, however,
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to review the Abstract promptly following Developer's receipt of Developer's
land survey and the Abstract and to promptly provide City with any objections
to title identified therein. Nothing herein shall be deemed to limit Developer's
rights to raise new title objections with respect to matters revealed in any
subsequent title examinations and surveys and which were not identified in
the Abstract provided by the City. City shall promptly exercise its best efforts
to have such title objections removed or satisfied and shall advise Developer
of intended action within ten (10) days of such action. If City shall fail to
have such objections removed as of the 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 any sums
previously paid to City by Developer (or paid into escrow for City's benefit)
shall be returned to Developer with interest, or (b) take title subject to such
objections. City agrees to use its best reasonable efforts to promptly satisfy
any such objections.
1 .3 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents, and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agent and representatives shall also have the right to enter upon
the Property at any time after the execution and delivery hereof for any purpose
whatsoever, including inspecting, surveying, engineering, test boring, and
performing environmental tests, provided that Developer shall hold City harmless
and fully indemnify City against any damage, claim, liability or cause of action
arising from or caused by the actions of Developer, its agents, or representatives
upon the Property (except for any damage, claim, liability or cause of action arising
from conditions existing prior to any such entry upon the Property), and shall have
the further right to make such inquiries of governmental agencies and utility
companies, etc. and to make such feasibility studies and analyses as they consider
appropriate.
1 .4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants to Developer that to the best of City's knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) 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
3
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.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations.
(7) Payment has been made for all labor or materials which have been
furnished to the Property or will be made prior to the Closing so that no lien
for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date (as defined herein), be free
and clear of all liens, security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and it has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at time of
4
Closing confirming the representation contained herein, in the form attached
hereto as Exhibit C.
(11) All city utilities necessary for the development and use of the Property
as a manufacturing facility adjoin the Property, and Developer shall have the
right to connect to said utilities, subject to payment of City's connection fees.
There will be no sanitary sewer connection fees associated with the project.
Only water connection fees will be assessed for connections off of Cousins
Road. All other associated fees, such as a tapping fee, will be required as
determined by the size of the service line being installed.
(12) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property or Developer.
(13) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(14) City shall exercise its best efforts to assist Developer in the
development process.
(15) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(16) With respect to the period to and during which City has 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.
(17) The Property is presently zoned to accommodate Developer's intended
improvements and processing and packaging of food products.
(18) The representations and warranties contained in this Section shall be
correct in all respects on and as of the Closing with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
1 .5 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:
5
(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 in the form of Exhibit H.
(2) Title to the 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,
transfer and development of the 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 and developer agrees to comply with any amendments to the
Urban Renewal Plan, this Agreement and any other applicable City or
affiliated agency requirements, with the understanding that Developer and its
lenders shall have the right to rely upon the same in proceeding with the
project; (c) to identify in writing within ten (10) working days of submission of
said plans and specifications, any and all permits, approvals and consents
that are legally required for the acquisition of the Property by Developer, and
the construction, use and occupancy of the project with the intent and
understanding that Developer and its lenders and attorneys will rely upon
same in establishing their agreement and time frames for construction, use
and occupancy, lending on the project and issuing legal opinions in
connection therewith; and (d) to cooperate fully with Developer to streamline
and facilitate the obtaining of such permits, approvals and consents.
(5) City having completed all required notice to or prior approval, consent
or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property; and consummation of the
Closing by 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.
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(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 the
Minimum Improvements (as defined herein) in conformance with the
Construction Plans (as defined herein), or City shall have received such
other evidence of such party's financial ability as in the reasonable judgment
of City is required.
(8) Developer shall have furnished City with evidence in a form as
required by Section 5.2 and satisfactory to City of Developer's fulltime
equivalent employees (FTE) in Dubuque County, as of January 1 , 2015.
(9) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(10) Developer shall have delivered to City its Promissory Note in the form
attached hereto as Exhibit E.
(11) Developer shall have delivered to City the Grant of Temporary
Easements for Sanitary Sewer Utility Construction in the form attached
hereto as Exhibit I.
(12) 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 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. The closing of the purchase and sale (the Closing) shall take place
on the Closing Date. The Closing Date is January 22, 2016, or such other date as
the parties agree in writing. Exclusive possession of the 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. Consummation
of the Closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing have been satisfied or waived.
1 .7 City's Obligations at Closing. At or prior to Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit F (the Deed) conveying
to Developer marketable fee simple title to the Property and all rights
appurtenant thereto, subject only to easements, restrictions, conditions and
covenants of record as of the date hereof and not objected to by Developer
as set forth in this Agreement, and to the conditions subsequent set forth in
Section 6.3 below.
(2) Deliver to Developer the Abstract of Title to the Property.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1 .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 herein, Developer shall pay the first installment of the
Purchase Price relating to Parcel A to City pursuant to Section 1 .1 hereof, but
subject to Developer receiving an 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, if any, imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1 .10.
(c) All special assessments, if any, whether levied, pending, or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorneys' 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.
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1 .10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years
prior to the fiscal year in which Closing Date occurs. 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 the Property shall be based upon such taxes for the year
currently payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that the Facility
Developer is building on Parcel A of the Property is a manufacturing facility as
shown on Exhibit B-2 attached hereto. Specifically, Developer agrees to construct
the building and certain internal systems thereto, and with finishing the building
including, without limitation, all interior improvements (the Minimum Improvements);
all as more particularly depicted and described on the plans and specifications to
be delivered to and approved by City as contemplated in this Agreement.
Developer hereby agrees the Facility will be not less than thirty-four thousand
(34,000) square feet of floor space along with the necessary site work, machinery
and equipment at an estimated cost of approximately $3,292,000.
2.2 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
the Urban Renewal Plan, this Agreement, and all applicable state and local laws
and regulations, including but not limited to the Amended and Restated Declaration
of Covenants, Conditions, Restrictions, Reservations, Easements, Liens and
Charges, recorded as Instrument No. 2014-00001147, 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.
2.3 Timing of Improvements.
(1) Developer hereby agrees that construction of the Minimum
Improvements on Parcel A shall be commenced on or before January 22,
2016, and shall be substantially completed by November 21 , 2016. The time
frames for the performance of these obligations shall be suspended due to
unavoidable delays, meaning delays outside the control of the party claiming
its occurrence in good faith, which are the direct result of strikes, other labor
troubles, unusual shortages of materials or labor, unusually severe or
prolonged bad weather, acts of God, fire or other casualty to the Minimum
Improvements, litigation commenced by third parties which, by injunction or
other similar judicial action or by the exercise of reasonable discretion
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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) Developer acknowledges that Parcel B is being conveyed by City
solely for the purpose of facilitating the future expansion of the Facility being
constructed by Developer on Parcel A, and not for purposes of land
speculation or future re-sale by the Developer to other parties, and
Developer agrees to hold and use such Parcel B exclusively for such
purpose. If Parcel B is not utilized by Developer for such purposes within ten
years from the Closing Date, Developer shall, within thirty days of such date
and without further notice from or demand by the City, re-pay to City the
Acquisition Grant paid by City to Developer under Section 3.1 for Parcel B
($289,800). In the alternative, at Developer's option, Developer may plat
Parcel B and re-convey Parcel B to City by warranty deed within such thirty
days all at Developer's cost free and clear of all liens and encumbrances and
City shall return to Developer the purchase price paid by Developer for
Parcel B of$289,800.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements and payment in full of the second
installment of the Purchase Price described in Section 1 .1 , the City Manager shall
furnish Developer with an appropriate instrument so certifying. Such certification
(the 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 the Minimum Improvements and pay the Purchase Price for the Property.
The Certificate of Completion, in the form attached hereto as Exhibit J, shall waive
all rights of re-vestment of title in City as provided in Section 6.3, and the Certificate
of Completion shall so state.
2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall
fail to complete the Minimum Improvements as required by this Agreement such
that re-vestment of title may occur (or such that the City would have the option of
exercising its re-vestment rights), then Developer's lender shall have the right, but
not the obligation, to complete such Minimum Improvements.
SECTION 3. CITY PARTICIPATION.
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to
make an Acquisition Grant to Developer on the Closing Date in the following
amount:
Parcel A: $432,000 ($60,000 per acre x 7.20 usable acres)
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City will make an Acquisition Grant for Parcel B in the following amount when
Developer pays the Purchase Price to City for Parcel B:
Parcel B: $289,800 ($60,000 per acre x 4.83 usable acres)
The parties agree that the Acquisition Grant shall be payable in the form of a credit
favoring Developer with the effect of directly offsetting the Purchase Price obligation
of Developer.
3.2 Economic Development Grants.
(1) 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,
as follows:
November 1 , 2018 May 1 , 2019
November 1 , 2019 May 1 , 2020
November 1 , 2020 May 1 , 2021
November 1 , 2021 May 1 , 2022
November 1 , 2022 May 1 , 2023
November 1 , 2023 May 1 , 2024
November 1 , 2024 May 1 , 2025
November 1 , 2025 May 1 , 2026
November 1 , 2026 May 1 , 2027
November 1 , 2027 May 1 , 2028
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of 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 Property and Minimum
Improvements constructed by Developer (the Developer Tax Increments).
Developer recognizes and agrees that the Economic Development Grants
shall be paid solely and only from the incremental taxes collected by City in
respect to the Property and Minimum Improvements, which does not include
property taxes collected for the payment of bonds and interest of each taxing
district, and taxes for the regular and voter-approved physical plant and
equipment levy, instructional support levy, and 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.
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(2) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1 , 2017,
its request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to Developer on November 1 and May 1 of that
fiscal year. (Example: If City so certifies by December 1 , 2017, the Economic
Development Grants in respect thereof would be paid to Developer on
November 1 , 2018, and May 1 , 2019.)
(3) 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 Roasting Solutions, LLC TIF Account of
City. City hereby covenants and agrees to maintain its TIF ordinance in force
during the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the Roasting
Solutions, LLC 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 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 Roasting Solutions, LLC 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.
(4) 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
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.
(5) All of City's obligations under this Agreement, including but not limited
to City's obligation to pay the Economic Development Grants to Developer,
shall be subject to City having completed all hearings and other procedures
required to amend the Urban Renewal Plan to describe the Urban Renewal
Project being undertaken in accordance with this Agreement.
3.3 Site Preparation.
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(1) City reserves the right to approve the design and specifications for
any site preparation work. City shall not remove any dirt from the Property
prior to Closing, to the end that Developer may utilize dirt presently stored on
the Property in Developer's grading of the Property. Any topsoil currently on
the Property which will not be used by Developer, will be removed by City, at
City's expense.
(2) City will extend the sanitary sewer as shown on Exhibit B-2 at City's
cost.
(3) City agrees to construct an entrance road as shown on Exhibit B-2 at
City's cost.
SECTION 4. NON-APPROPRIATION / LIMITED SOURCE OF FUNDING.
4.1 Non-Appropriation. Notwithstanding anything in this Agreement to the
contrary, the obligation of City to pay any installment of the Economic Development
Grants from the pledged tax increment revenues shall be an obligation limited to
currently budgeted funds, and not a general obligation or other indebtedness of City
or a pledge of its full faith and credit within the meaning of any constitutional or
statutory debt limitation, and shall be subject in all respects to the right of non-
appropriation by the City Council of City as provided in this Section. City may
exercise its right of non-appropriation as to the amount of the installments to be
paid during any fiscal year during the term of this Agreement without causing a
termination of this Agreement. The right of non-appropriation shall be exercised
only by resolution affirmatively declaring City's election to non-appropriate funds
otherwise required to be paid in the next fiscal year under this Agreement.
In the event the City Council of City elects to not appropriate sufficient funds in the
budget for any future fiscal year for the payment in full of the installments on the
Economic Development Grants due and payable in that future fiscal year, then City
shall have no further obligation to Developer for the payment of any installments
due in that future fiscal year which cannot be paid with the funds then appropriated
for that purpose.
4.2 The right of non-appropriation reserved to City in this Section is intended by
the parties, and shall be construed at all times, so as to ensure that City's obligation
to pay future installments on the Economic Development Grants shall not constitute
a legal indebtedness of City within the meaning of any applicable constitutional or
statutory debt limitation prior to the adoption of a budget which appropriates funds
for the payment of that installment or amount. In the event that any of the
provisions of this Agreement are determined by a court of competent jurisdiction to
create, or result in the creation of, such a legal indebtedness of City, the
enforcement of the said provision shall be suspended, and the Agreement shall at
all times be construed and applied in such a manner as will preserve the foregoing
intent of the parties, and no event of default shall be deemed to have occurred as a
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result thereof. If any provision of this Agreement or the application thereof to any
circumstance is so suspended, the suspension shall not affect other provisions of
this Agreement which can be given effect without the suspended provision, and to
this end the provisions of this Agreement are severable.
SECTION 5. COVENANTS OF DEVELOPER.
5.1 Job Creation. During the term of this Agreement, Developer shall comply
with the following employment-related covenants:
(1) Developer shall retain seven (7) and create a minimum of ten (10)
additional fulltime equivalent (FTE) employees in Dubuque, Iowa prior to
January 1 , 2020, and shall maintain those jobs during the term of this
Agreement. It is agreed by the parties that Developer has seven (7) fulltime
equivalent employees (FTE) in Dubuque County, Iowa, as of January 1 ,
2015. FTE employees shall be calculated by adding fulltime and part-time
employees together using 2080 hours per year as a FTE employee. In the
event that the certificate provided to City under Section 5.2 hereof on
January 1 , 2028 discloses that Developer does not as of that date have at
least seventeen (17) FTE employees as provided hereinabove, Developer
shall pay to City, promptly upon written demand therefor, an amount equal to
$42,458.82 per job not created or maintained ($721 ,800 divided by 17 FTE _
$42,458.82). The payments provided for herein shall be the City's sole
remedy for the failure of Developer to meet the job creation requirements of
this subsection 5.1(1).
(2) In addition, for the FTE positions that Developer fails to create and
maintain for any year during the term of this Agreement, the semi-annual
Economic Development Grants for such year under Section 3.2 shall be
reduced by the percentage that the number of such positions bears to the
total number of positions required to be created and maintained (17 FTE's)
by this Section 5.1 . (For example, if Developer has 15 FTE employees, the
semi-annual Economic Development Grants to be paid for that year would
be reduced to 88.24% (15/17 employees) of the Tax Increment Revenues
received by City). The reduction of the semi-annual Economic Development
Grants shall be the City's sole remedy for the failure of Developer to meet
the job creation requirements of this subsection 5.1 (2).
5.2 Certification. To assist City in monitoring the performance of Developer
hereunder, as of January 1 , 2017, and again as of January 1 of each year
thereafter during the term of this Agreement, a duly authorized officer of Developer
shall certify to City in a form acceptable to City (a) the number of FTE positions
employed by Developer in Dubuque, Iowa, 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, Developer 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
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the giving of notice, or both, would become an Event of Default) is occurring or has
occurred as of the date of such certificate or during 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 February 28, 2017, and by February 28 of each
year thereafter during the term of this Agreement.
5.3 Books and Records. During the term of this Agreement, Developer shall
keep at all times proper books of record and account in which full, true and correct
entries will be made of all dealings and transactions of or in relation to the business
and affairs of 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.
5.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due and before delinquency, 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.
5.5 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 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 427, as amended.
5.6 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,
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):
All risk builder's risk insurance, written on a Completed Value Form in
an amount equal to one hundred percent (100%) of the replacement
value when construction is completed.
(2) 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 (and from time to time at the request of
City shall furnish proof of insurance in the form of a certificate of insurance)
all risk property insurance against loss and/or damage to the Minimum
Improvements under an insurance policy written in an amount not less than
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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, and shall be reasonably determined from time to time at the
request of City, but not more frequently than once every three (3) years.
(3) Developer agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty.
The net proceeds of any such insurance (the 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.
5.7 Preservation of Property. During the term of this 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
excepted, 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 or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
5.8 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.
5.9 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
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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.
5.10 Non-Transferability. This Agreement may not be assigned by Developer nor
may any portion of the Property be sold or otherwise transferred by Developer
without the prior written consent of City in City's sole discretion. City has no
obligation to consent to any assignment or sale.
5.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as a manufacturing facility is in full compliance with the
Urban Renewal Plan and Developer agrees to comply with any amendments
to 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).
5.12 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, the Indemnified Parties) from and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, 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 the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful 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
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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,
ownership, and operation of the Minimum Improvements or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the 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 their individual
capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
5.13 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations for
which the failure to comply with or the sanctions and penalties resulting therefrom,
would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
6.1 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.
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(3) Transfer of any interest by Developer in any portion of the Property or
the Minimum Improvements in violation of the provisions of this Agreement.
(4) Failure by Developer to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
(5) Failure by Developer to pay the Purchase Price for Parcel B when
due.
6.2 Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 6.1 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 the 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) City shall be entitled to recover from Developer 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, including any legal action
it deems necessary, to recover such amounts from the Developer;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
6.3 Re-vesting Title in City Upon Happening of Event Subsequent to
Conveyance to Developer. In the event that, subsequent to conveyance of the
Property to Developer by City and prior to receipt by Developer of the Certificate of
Completion, but subject to the terms of the mortgage granted by Developer to
secure a loan obtained by Developer from a commercial lender or other financial
institution to fund the acquisition of the Property or construction of Minimum
Improvements (First Mortgage), an Event of Default under Section 6.1 of this
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Agreement occurs and is not cured within the times specified in Section 6.2, then
City shall have the right to re-enter and take possession of Property and any portion
of the Minimum Improvements thereon and to terminate (and re-vest in City
pursuant to the provisions of this Section 6.3 subject only to any superior rights in
any holder of the First Mortgage) the estate conveyed by City to Developer, it being
the intent of this provision, together with other provisions of this Agreement, that the
conveyance of 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 all Developer's
rights and interests in and to Property conveyed to Developer, and that such title
and all rights and interests of Developer, and any assigns or successors in interests
of Developer, and any assigns or successors in interest to and in Property, shall
revert to City (subject to the provisions of Section 6.3 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.
6.4 Resale of Reacquired Property: Disposition of Proceeds. Upon the re-
vesting in City of title to the Property as provided in Section 6.3 of this Agreement,
City shall, pursuant to its responsibility under law, use its best efforts, subject to any
rights or interests in such property or resale granted to any holder of a First
Mortgage, to resell the Property or part thereof as soon and in such manner as City
shall find feasible and consistent with the objectives of such law and of the Urban
Renewal Plan to a qualified and responsible party or parties (as determined by City
in its sole discretion) who will assume the obligation of making or completing
Minimum Improvements or such other improvements in their stead as shall be
satisfactory to City and in accordance with the uses specified for such the Property
or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on
the Property, or any portion thereof, or any improvements thereon,
previously acquiesced in by City pursuant to this Agreement. If more than
one mortgage on the Property, or any portion thereof, or any improvements
thereon, has been previously acquiesced in by City pursuant to this
Agreement and insufficient proceeds of the resale exist to pay the principal
of, and interest on, each such mortgage in full, then such proceeds of the
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resale as are available shall be used to pay the principal of and interest on
each such mortgage in their order of priority, or by mutual agreement of all
contending parties, including Developer, or by operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred
by City, including but not limited to salaries of personnel, in connection with
the recapture, management and resale of the Property or part thereof (but
less any income derived by City from the Property or part thereof in
connection with such management); any payments made or necessary to be
made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by the City) existing on the Property or part thereof
at the time of re-vesting of title thereto in City or to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to
obligations, default or acts of Developer, its successors or transferees
(except with respect to such mortgage(s)), any expenditures made or
obligations incurred with respect to the making or completion of the Minimum
Improvements or any part thereof on the Property or part thereof, and any
amounts otherwise owing to City (including water and sewer charges) by
Developer and its successors or transferees; and
(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum
of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property.
6.5 No Remedy Exclusive. No remedy herein conferred upon or reserved to City
is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity
or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient.
6.6 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed
to waive any other concurrent, previous or subsequent breach hereunder.
6.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
21
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
6.8 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer may take any action, including legal, equitable or
administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer, or to
enforce performance and observance of any obligation, agreement, or covenant of
City under this Agreement. Developer may suspend performance under this
Agreement until it receives assurances from City, deemed adequate by Developer,
that City will cure its default and continue its performance under this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS.
7.1 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:
(1) If to Developer:
Roasting Solutions, LLC
Attn: Michael Gantz
10529 Highway 52 North
Dubuque, Iowa 52001
Phone: 563-556-3931
With copy to:
Attorney
John O'Connor
700 Locust Street, Suite 200
Dubuque, Iowa 52001
Phone: 563-557-8400
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
22
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any 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 and Developer and their respective successors and assigns.
7.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1 , 2028 (the Termination Date).
7.4 Execution By Facsimile. The parties agree that this Agreement may be
transmitted among 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.
7.5 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit G
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.
CITY OF DUBUQUE, IOWA ROASTING SOLUTIONS, LLC
By: By:
Roy D. Buol, Mayor Michael Gantz, Member
By:
Kevin S. Firnstahl
City Clerk
23
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B-1 Plat
Exhibit B-2 Site Exhibit
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Promissory Note
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
Exhibit I Temporary Easement
Exhibit J Certificate of Completion
24
EXHIBITA
URBAN RENEWAL PLAN
A copy of the Plan and amendments is on filed in the Office of the City Clerk, City Hall, 50 West 131h
Street, Dubuque, Iowa
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Economic Development Distrid
City of Dubuque, Iowa
TJ5 Amended and Restated ONan Renewal Mai provides
for the emllnuM development a the Dubuque IMJAIaI
Center Econi Devedpmad deal engines
evaboehed by Rewluem 13DSB of the any Cows of fine
buy N Dubuque, II on May 2, 19M and areal
mended and regaled by Rewlam 481 9]on Deouni
17, 1990, Rreeldhm 142-97 on 4d ], 1997, RasolAon
4]89]on November 17, 1991 Rowland 15-08 on January
1, MOB, Rewlu4m 10195 on all 17,MOB, Re Touton
10MO on April],MOB,Resouton 51-11 on Mai],2011,
Rewlu4m 91-13 on June 3, 2013, R Aulm 19]-15 on
June 1,2015,and Boni Juana on September B,2015.
n�mMue Fmmsn�renw�ema
version 152
25
EXHIBIT B-1
PLAT
26
PLAT OF SURVEY
DUBUQUE INDUSTRIAL CENTER SOUTH SECOND ADDITION 114 THE CITY OF DUBUQUE, IOWA
EASZMENT NOTE: NE ACCESS. STORM NATER 56756' CW 221.44'
ORNNAOC. STORM SEACR. AND SANITARY SOWER
5c,0$
EASEMENTS ARE SHOWN AS PER DOC. 20'4-1397
NW COYER LOT 0 1.PS4
R.0000*
01j 1. 56756', ."W 646.74' 646.4
Cops.
•0‘,.6
EK Q 40 WOE
STORM WATER
DRANACE
EASEMENT
LOT 2
7.20 ACRES
NORTH
L-147.62'
R•64.00'
A•132'09'O9'
CHORDANS2N13181V 1.363.40'
117.00
117.00' R.T050.00'
6.1919'47"
p{CWD.NW9013'30%
N1316'16'E 361.59' �..^"
Mae •
Ex 2 40 AIDE
sTmRM WATER
DRAMACE
DC 20' WOE
PUEI C SANITARY
SOWS EASEMENT
2
UtAPNIC .AL ". RSA ,1
0 120 2h7 \ 0. 00. 0
rAsy
1' - 120'. (Ag'_ J�4f1.
CRANING MAY NAI£ REE/ REDUCED /6I`
NOTE
`
:..1- _URL(Y IS SUBJECT TO EASEMENTS
,ATgIS. RESTRICTIONS AN>
_O: -WAY OF RECORD AND NOT Or RECORD
LEGEND
+NMI: 101 1 OVEAIDX PLAT OCURCARY
.;TRIAL CENTER SWIM — - - — 101 (NE
I'
List ` ~
046
•
.+U01RDN IN THE °TY 0r — ' - — ' - — PROPOSED EASDADC1 UNE •�'"� S 9}
:,E. IOWA — ' — — EASEMENT UNC CRMO - \ i ,w w „
t. E -
REBAR Will- L5 U
R]SER
siscricet
RD Dad Ra_ _lJ
Ot
PPAPCS
•0 It MOM tan IOU .. 01:611.11. 1C u,a w
tav w.».0 WOW. /.1.11. . K. WOOD IMO;11c.WM.. IW M 4N W Mt Mi>.1R (f••••
QTY a DUBJOUC
• FO'tel • J��a
:NO 36/6' ll • MOB °>''
11308
IAyg
MR: Ott Cf DURUO.E YELLOW PGs1c CAP
-FD
IJIAL AREA 91RKSED: 11EARLY: ED: 21ER J. 2015 •s-
.35 ACRES 0 REO PLASTIC CAP N0. 21468
SET 5/6' MAR MT
...::.1/„ uar
h620116atlKIDWMW lomp- Wwa.�3Wfl.Pf
Shea[2 oft
EASEhJFW NOTES:
As shown an Document NO 2014-1399
t)Ao Access Easement is reserved across curb lot for Ingress and Egress purposes in favor of the City of
Dubuque City Services Departments for the mamteaaace of ground cover on the slopes.
2)A 15-foot wide Access Easement is reserved across Lot t for Ingress and Egress purposes in favor of
the City of Dubuque City Services Departments to Lot B for the covatrvctio4 maintenance and repair a
improvements and amenities located within I B.
3)An Access Easement is reserved across the entire Lot 1 for Ingress and Egress purposes is favor of the
City of Dubuque City Services Departments to Lot B for the coastructioq maintemvce and repay of
improvements and amenities located within Lot B.
4)Storm Water Drainage Eassanents shown are easements in favor of of Dubuque City Services
Departments for the construction,main[enmce rand repair of drainage swales, including the rightto
conduct vegetation trimming and grading within the easements.
5)Public Stam Sewer Easements shown are for the construction,maintenance and repair of City of
Dubuque-ovmed norm water-related facilities.
6)Public Sanitary Sewer Easements shown are for the construction,maintenance and repair of City a
Dubuque-owned saedt y sewer related farilities.
SURVEYOR'S CERTIFICATE
I, Craig L. Geisn, a Duty Licensed Land Surveyor in the State of Iowa, do hereby certify that the
following real enure was surveyed and platted by me or under my direct Personal supervision,To Wit
Lot I in Dubuque Industrial Center South FirstAddition to the Ciry ojDubuque, Iowa
This survey was performed for the purpose of subdividing and platting said real estate henceforth to be
knowa as Dubuque Industrial Center South Second Addition in the City of Dubuque,Iowa,
Containing 2L25 unions, mom in Jess, and subject to easements, reservations, restrictloos, and righhroE
way of record and not of record,the plat of which is attached hereto and made a part of ibis certificate.
28
OWNER'S CONSENT
Dubuque,have 2015
The foregoing plat of Dubuque Industrial Center South Second Addition in the City of Dubuque,
lawn, is made with me bee consent and m accordance with the desires of me underaigned owners and
proprietors of said real estate.
FOR DIE CITY OF DUBUQUE,IOWA
By
Ray D.pool,Mayor
By
Kevin Roasted,City Clerk
State of Iowa )
ss:
County of Dubuque)
On this_day of AD.2015,before me,a Notary Public in and for me County of
Dubuque and State of Iowa,personally appeared Roy D.Boot and Kevin S. FimstmL.to me personally
known who,being duly sworn did say mat the said Roy D.Dual is Mayor and the said Kevin S.Pimatshl
is City Clerk of the City of Dubuque, Iowa, and that the seat affixed m the above instrument is the
corporaze send of the City of Dubuque,Iowa,and that said instrument was signed and sealed on behalf of
the said City of Dubuque,Iowa,by authority of me City Council of said city and the said Roy D. Bml
and Kevin S.Finumil l acknowledge me execntiou of said instrument to bs the voluntary act and deed of
said City of Dubuque,Iowa,by it voluntarily executed.
Notary Public
m and for State oflowa
My Commission Expires:
CITY OF DUBUOUE PLANNING SERVICES
n/���
Dubuquq Iowa _ Kc' 16 2015
The foregoing plat of Dubuque Tormented Center Son& Second Addition in the City of Dubuque,
have, or within me two mile jurisdiction of me City of Dubuque, as defined under Section 354 of the
Cade of Iowa,has been reviewed by me City Plainer,(or desigand of the City of Dubuque in accordance
with Title 16 of the City of Dubuque Code of On inmces Chapter 11, Unified Development Code and
said approval has been endorsed herein on me date fust written above.
� t0
Lawn Carstens,City Planter
City of Dubuque,Iowa
29
ColINTY A=OR
D qu lots W15
The fompieg rho of Mbuque 1.amWtl Ce.br Souu Ston AatlMomW Me aty or Doonqu•.
Ime; wee m d of in Me ofRce of ue Dubuque Cw AWi wu dry of
2g1s.
Wpupprove Of%,euhiivism mmoorinle to bemmNed.
Dowse M.Do1m
Cou AWN of DubNue,lows
SSBSS
Dotogoe.mwe 2015
The fompmg pW of Debegre Nd mMd CmYr S th Smmd AddWov he rhe Clty of Doboquq
10 was mol of mmM m Me oRm of Me Wbugm G\ly luemne Mia My of
015.
R hvd A.Eogvl4eo
Dubugm Civ Me
RPWRDRR'S MRTDIC M
Dubogce.Iowa 1015
11m foregoing pW of Debegee LtlmfAl Cm4r S & Seeoal Mtl Woo lu Me Clty of Dubuque,
lava lue Menrc it W the Duawee Comty Rvemdm.
fow lAt v
onbnque Courcy NemNe.
30
EXHIBIT B-2
SITE EXHIBIT
31
® ♦♦
ALL OF PAD LITFIRMLOT MMEEI RICHITLOT NORTH "w
IT FEET
w
IT i THE IT r _E I TOTAL mr AREA zo^ACRES TOTAL mr AREA. 41 ACRES TOTAL mr AREA un ew
• T-L L T � E E AREA TO) BE P-RCHASED AT COST 5 79 ACRES Mi RAN HAVE NEEN REFFEEM
,AREA 70 BE PURCHASED AT COST A 82 ACRES AREA TO BE PURCHASED AT'DST 7 20 AFTER
MI INIMMN,
E, 7 RE PHROESEP AT FORT 17 8' ACRES AREA AT NO COST D 93 ACRES iAREA AT NO COST D ISO ACRES AREA AT DO CAST F 02 ACRES
• T E HALT OF WAY 048 ACRES
BE EST NO MST 2 A-'ACRES I
PIN AREA LEARN)
O BE PURCHASES AT msr
ALL ANNALE
HANAREARNAREASEETANNEANTAN
—> m o
70
i
i
BERTHA ls'
EC El a .m. �\
t T — \
ET SA, IF ET IEN \ \
NOIC
:. r E- E
I
.E _EE EE . i� . . - T - _ � a
\ IT
- x W !n w � 'o
TO �C �" 11 ILTEP
5 p T.i.
9
E v aa:
�p e X LEP 'i' T� z .� i �� - REE <. I�I� I sF EXISTED 20
�N A, AN '� IIiPvFb-
�A, iT eeT —
L FIT _= p
PRO OSE., -
xs <yF ENROAC E .¢ EXIE NET
ARE
g s
eAseeENT
- - — pE 3 �
o �� _ 6agp ®YB®
9 /� - LITUTY -ADEN ENn d— u � gsve—TRWPROPER
A TY IN
A IsA
PROPOSE ENTRANCE ROAR °"�„
32
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
33
BARRY A. L I N D A H L, E s Q. THE CITY oP
CITY ATTORNEY DUB E
(DATE)
RE:
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the
day of , 20_.
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
20_, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
BAL:tIs
34
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
35
Mayor and City Councilmembers
Cit Hall
13 and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for (Developer) in connection
with the execution and delivery of a certain Development Agreement (Development
Agreement) between Developer and the City of Dubuque, Iowa (City) dated for
reference purposes the day of 20_
We have examined the original certified copy, or copies otherwise identified to
our satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries
as we have deemed appropriate, we are of the opinion that:
1 . Developer is a limited liability company organized and existing under the
laws of the State of and has full power and authority to execute, deliver
and perform in full Development Agreement. 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 valid and
legally binding instrument of Developer enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of incorporation and bylaws
of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement,
judgment, decree, order, statute, rule, regulation or restriction to which Developer is a
party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against
or affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business (present or prospective), financial
position or results of operations of Developer or which in any manner raises any
questions affecting the validity of the Agreement or the Developer's ability to perform
Developer's obligations thereunder.
36
Very truly yours,
37
EXHIBIT E
PROMISSORY NOTE
38
s«wmx Offi.1 F.US 136Barry A.Liudahl FOR THE LEGAL EFFECT OF THE USE OF
? THIS FORM,CONSULT YOUR LWYEAR
I S
.,,'FIs= PROMISSORY NOTE
$ 57960000 [Cbswg Date]
FOR VALUE RECEIVED,the undersigned,each as prinripal,jointly and severally,pmmise(s)to pay to
the order of City otlTdvmre
at 50 W.13th Stuct Debwrve Iowa,fire sum of
Five local Seventy Now Thousand Sm Hundred and 0/100 DOLLARS
with interest thereon from fClosum Darel ,payable at the
rate of per cent per annum until payment hereof as follows:
$579600 or cash w or before[sixty(60)mw@s after the Closing Date]
Interest shall first be Forecast from the payment and any balance shall be applied on principal.
Forupal and interest not paid when due shall draw interest at the rate of %per annum Upon
default in payment of any interest,or any installment of principal,Me whole amount then unpaid shall
become immediat*due and payable at fire olden of Me holder without notice_The undersigned,in rase
of suit on this Four,agrees to pay adeeney's fees.
Makers,endorsers and sureties waive demand of payment,notice of non-payment,protest and notice.
Sureties,endorsers and guarantees agree to all of the previsions of this note,and consent that Me time or
Firms of payment of all or any part hereof may be extended after maturity,from time to time,without notice_
Important. Read Before Signing: The terms of this Agreement should be read carefully because
only those terms in writing are enforceable. No other terms or oral promises not contained in this
written contract may be legally enforced. You may change the terms of this Agreement only by
pother written agreement. Borrower acknowledges the receipt of a copy of this document at the
time it was signed BOASTING SOLO]IONS,I C
Address: 10529 HmmS ay 52North
DobHutuc U 52001 by 11whoel Gmq Member
Plv¢: (563)556-3931
Caveat: This form notto be used for a Consumer Credit Transaction.
a:mnaxs mmsson��s
39
EXHIBIT F
DEED
40
Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and no/100
Dollars ($ ) in hand paid, and other good and valuable consideration, and
pursuant to the authority of Chapter 403, Code of Iowa, does hereby GRANT, SELL
AND CONVEY unto , an Iowa limited liability
company (Grantee), the following described parcel(s) situated in the County of
Dubuque, State of Iowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of the
City Council of the City of Dubuque adopted the day of 20_, the
terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated
the day of 20_ (the Agreement), a memorandum of which was
recorded on the day of 20_, in the records of the Recorder of
Dubuque County, Iowa, Instrument Number
Promptly after completion of the improvements and payment in full of the
Purchase Price for the Property in accordance with the provisions of the Agreement,
Grantor will furnish Grantee with a Certificate of Completion in the form set forth in the
Agreement. Such certification by Grantor shall be, and the certification itself shall so
state, a conclusive determination of satisfaction and termination of the agreements and
covenants of the Agreement and of this Deed with respect to the obligation of Grantee,
41
and its successors and assigns, to construct improvements and the dates for the
beginning and completion thereof and pay the Purchase Price for the Property, it being
the intention of the parties that upon the granting and filing of the Certificate of
Completion that all restrictions, re-vesting of title, and reservations of title contained in
this Deed be forever released and terminated and that any remaining obligations of
Grantee pursuant to the Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them to
be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse or fail
to provide any such certification in accordance with the provisions of the Agreement
and this Deed, Grantor shall, within twenty days after written request by Grantee,
provide Grantee with a written statement indicating in adequate detail in what respects
Grantee has failed to complete the improvements in accordance with the provisions of
the Agreement or is otherwise in default, and what measures or acts will be necessary,
in the opinion of Grantor, for Grantee to take or perform in order to obtain such
certification.
In the event that an Event of Default occurs under the Agreement and Grantee
herein shall fail to cure such default within the period and in the manner stated in the
Agreement, then Grantor shall have the right to re-enter and take possession of the
Property and to terminate and re-vest in Grantor the estate conveyed by this Deed to
Grantee, its assigns and successors in interest, in accordance with the terms of the
Agreement.
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this of , 20_ at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
Attest: By:
Roy D. Buol, Mayor
By:
Kevin S. Firnstahl, City Clerk
42
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of 20—, before me a Notary Public in and
for said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me
personally known, who being duly sworn, did say that they are the Mayor and Acting
City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to the
foregoing instrument is the seal of said Municipal Corporation, and that said instrument
was signed and sealed on behalf of said Municipal Corporation by authority and
resolution of its City Council and said Mayor and Acting City Clerk acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
Notary
Public in and for Dubuque County, Iowa
43
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
44
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an Iowa
municipal corporation, of Dubuque, Iowa, and
ROASTING SOLUTIONS, LLC
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day of
, 20—, and contains covenants, conditions, and restrictions concerning the
sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments thereto, is
in the possession of the City of Dubuque and may be examined at its offices as above
provided.
Dated this day of , 20_.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
45
By:
Kevin S. Firnstahl, City Clerk
STATE OF IOWA
ss:
DUBUQUE COUNTY
On this _day of 20_, before me, a Notary Public in and for the State
of Iowa, in and for said county, personally appeared 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
ss:
DUBUQUE COUNTY
On this day of 20_, before me, a Notary Public in and for
the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are the
and that said instrument was signed on behalf of said company by authority of its
members and that they acknowledged the execution of this instrument to be the
voluntary act and deed of said company by it voluntarily executed.
Notary Public, State of Iowa
46
EXHIBIT H
CITY CERTIFICATE
47
T CITY OP
DUB E
City Manager's Office " /A
50 West 13th Street �✓Y+(/'�-`�-
Dubuque,Iowa 52001-4864
(563)589-4110 phone
(563)589-4149 fax
ctymgl@cityofdubuque.org
(DATE)
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated for
reference purposes the _ day of 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking.
(2) 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.
(3) All leases, contracts, licenses, and permits between City and third parties
in connection with the maintenance, use, and operation of the Property have
been provided to Developer and City has provided true and correct copies of all
such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
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(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other matters
that have not been corrected. City has notified Developer in writing of any past
notices, orders, suits, judgments or other proceedings relating to fire, building,
zoning, air pollution or health violations as they relate to the Property of which it
has actual notice. The Property is in material compliance with all applicable
zoning, fire, building, and health statutes, ordinances, and regulations. The
Property is currently zoned PUD and Developer's intended use of the Property
as a corporate office/industrial facility is a permitted use in such zoning
classification.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no lien
for labor performed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument or
obligation to which City is a party or by which either the City or the Property being
conveyed are bound, nor shall the execution, delivery and performance of this
Agreement violate any statute, regulation, judgment, writ, injunction or decree of
any court threatened or entered in a proceeding or action in which City may be
bound or to which either City or the Property being conveyed may be subject.
(10) 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.
City's attorney shall issue a legal opinion to Developer at time of closing
confirming the representation contained herein, in the form attached hereto as
Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property that shall in any way be
binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
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harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
(15) 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.
(16) All city 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 connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of the
Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
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EXHIBIT I
EASEMENT AGREEMENT
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Prepared by: Nate Kieffer. City of Dubuque. 50W. 13t°Street. Dubuque. Iowa 52001 (563)589-4270
Return to: Nate Kieffer, City of Dubuque, 50 W. 13 Street, Dubuque, Iowa 52001 (563)589-4270
GRANT OF TEMPORARY EASEMENTS FOR SANITARY SEWER UTILITY
CONSTRUCTION
For and in consideration of the sum of TEN ($10.00) and other good and valuable
consideration, the receipt whereof is hereby acknowledged,
Roasting Solutions, LLC
10529 Highway 52 North
Dubuque, IA 52001
of Dubuque County, State of Iowa, for themselves, their heirs and assigns, do hereby
grant, sell and convey to the CITY OF DUBUQUE, IOWA, a municipal corporation, its
agents and contractors, from the date hereof, a temporary easement through, under
and across the following described real estate situated in Dubuque, Iowa, to wit:
Part of Lot 1 of Dubuque Industrial Center South Second Addition in the City of
Dubuque, Iowa as shown on Exhibit A attached hereto and by reference made a
part hereof.
Said temporary easement shall be as shown on the attached Exhibit A for the purpose
of constructing sanitary sewer and other appurtenances in accordance with the Plans
and Specifications currently on file in the office of the City Engineer. Said easement
shall also include the right to cut, trim or remove trees, bushes and roots as may be
required incident to rights given herein.
Said easement shall be null and void upon completion and acceptance of the
construction project by the City Council.
It is understood and agreed that the grantee herein shall restore the disturbed area due
to the construction.
To have and to hold unto the said City of Dubuque, Iowa, for the duration of the project,
and the undersigned do hereby expressly covenant that they are the owners in fee of
said real estate and have good right to execute this agreement, and that the grantee, its
agents or contractors, shall at all times during construction have free access to and
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egress from and over said real estate to construct said sanitary sewer thereon or
therein.
Dated at Dubuque, Iowa this day of 20_.
ROASTING SOLUTIONS, LLC
By:
Michael Gantz, Member
NOTARY PUBLIC
STATE OF IOWA,
COUNTY OF DUBUQUE, SS:
On this day of A.D., 20_ before me, the undersigned, a
Notary Public in and for said County, in said State, personally appeared Michael Gantz
to me known to be the identical person(s) named in and who executed the within and
foregoing instrument, to which this is attached, and acknowledged that they executed
the same as their voluntary act and deed.
Notary Public In and For Said State
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EXHIBIT J
CERTIFICATE OF COMPLETION
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Prepared By: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
Return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"),
by a Special Warranty Deed (the "Deed") recorded on [Date] as Instrument Number
[Insert Number] in the office of the County Recorder of Dubuque County, State of Iowa,
has conveyed to Roasting Solutions, LLC (the "Grantee"), in accordance with a
Development Agreement dated as of [Date], by and among the Grantor, and the
Grantee (collectively, the "Agreement'), certain real property located within the
Dubuque Industrial Center Economic Development District of the Grantor and as more
particularly described as follows:
Lot 1 of Dubuque Industrial Center South Second Addition in the City of
Dubuque, Iowa
(the "Property"); and
WHEREAS, said Deed incorporated and contained certain covenants and
conditions with respect to the development of the Property, and obligated the Grantee
to construct certain Minimum Improvements and pay for the Property 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 and
payment for the Property in a manner deemed sufficient by the Grantor to permit the
execution and recording of this certification; and
NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify
that all covenants and conditions of the Deed and the Agreement with respect to the
obligations of the Grantee, and its successors and assigns, to construct the Minimum
Improvements on the Property and pay for the same have been completed and
performed by the Grantee to the satisfaction of the Grantor and such covenants and
conditions are hereby terminated.
The Recorder of Dubuque County is hereby authorized to accept for recording and to
record the filing of this instrument, to be a conclusive determination of the satisfaction
of the covenants and conditions of said Deed and the Agreement which would result in
a forfeiture by the Grantee and right of the Grantor to re-enter and take possession of
the Property as set forth in said Deed and the Agreement, and that said Deed and the
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Agreement shall otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen, City Manager
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of 20 , before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen,
to me personally known, who, being by me duly sworn, did say that he is the City
Manager of the City of Dubuque, Iowa, a municipal corporation, and that the instrument
was signed on behalf of the corporation, and Michael C. Van Milligen acknowledged the
execution of the instrument to be his voluntary act and deed.
Notary Public in and for said State
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