Rite Hite/AB(MC)2 Expansion Development Agreement_Initate Copyright 2014
City of Dubuque Items to be set for Public Hearing # 1.
ITEM TITLE: Rite Hite/AB(MC)2 Expansion Development Agreement
SUMMARY: City Manager recommending that a public hearing be set
for June 6, 2016, on the proposal to enter into a
Development Agreement with Rite Hite/AB(MC)2 for their
expansion project at 4343 Chavenelle Road.
RESOLUTION Fixing the date for a public hearing of the
City Council of the City of Dubuque, Iowa on the execution
of a Development Agreement with Rite Hite/AB(MC)2 and
the proposed issuance of Urban Renewal Tax Increment
Revenue Obligations and providing for the publication of
notice thereof
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolutions, Set Public Hearing for 6/6/16
ATTACHMENTS:
Description Type
Rite Hite Development Agreement-MVM Memo City Manager Memo
Staff Memo Staff Memo
Development Agreement- Rite Hite Supporting Documentation
Resolution Resolutions
Notice of Hearing Supporting Documentation
THE CITY OF Dubuque
U E 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: Development Agreement with Rite Hite/AB(MC)2 to expand its facility at
4343 Chavenelle Road
DATE: May 11, 2016
Economic Development Director Maurice Jones requests the City Council set a public
hearing for June 6, 2016, on the proposal to enter into a Development Agreement with
Rite Hite/AB(MC)2 for their expansion project at 4343 Chavenelle Road.
Rite-Hite is a privately-held producer and distributor of loading dock equipment,
industrial doors, safety barriers and industrial fans. Rite-Hite's longstanding reputation
for safety, quality and innovation has expanded through the constant introduction of
unique new products.
In 1991, Rite-Hite acquired the Dubuque-based Frommelt Industries, significantly
broadening its offerings. Frommelt Industries was one of the early businesses to build
and locate in the Dubuque Industrial Center in the early 1980's.
Today, Rite-Hite employs 270 people at the Chavenelle Road operation. Rite-Hite's
proposed expansion includes a total capital investment of $8,920,446 and the creation
of 24 new jobs in Dubuque. The proposed expansion would include 138,000 square
feet of new production space, a partial remodel of offices, and approximately $420,000
for new machinery and equipment. The proposed project will improve productivity and
operational efficiencies, as well as expand research and development capabilities.
The proposed Development Agreement provides for incentives to encourage the $8.9
million expansion project. This Agreement requires the addition or creation of 24 full-
time equivalent jobs in the next three years, including assembly workers, planners, and
engineers. The Agreement provides for 10 years of Tax Increment Finance rebates.
Additional terms and conditions of the expansion project are included within the
Development Agreement.
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
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Dubuque Economic Development Department
THE CITY OF 50 West 13th Street
All-Am,ftlily 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: Development Agreement with Rite Hite/AB(MC)2 to expand its facility
at 4343 Chavenelle Road
DATE: May 9, 2016
INTRODUCTION
This memorandum is a request for the City Council to set a public hearing on June 6,
2016 on entering into a Development Agreement for an expansion project at the
property located at 4343 Chavenelle Road.
BACKGROUND
Rite-Hite is a privately-held producer and distributor of loading dock equipment,
industrial doors, safety barriers and industrial fans. Rite-Hite rose to prominence as a
company when it introduced its groundbreaking DOK-LOKO trailer restraint in 1980.
Rite-Hite's longstanding reputation for safety, quality and innovation has expanded
through the constant introduction of unique new products.
In 1991, Rite-Hite acquired the Dubuque-based Frommelt Industries, significantly
broadening its offerings. Frommelt Industries was one of the early businesses to build
and locate in the Dubuque Industrial Center in the early 1980's.
Today, Rite-Hite employs 270 people at the Chavenelle Road operation. Rite-Hite's
proposed expansion includes a total capital investment of$8,920,446 and the creation
of 24 new jobs in Dubuque. The proposed expansion would include 138,000 square
feet of new production space, a partial remodel of offices, and approximately $420,000
for new machinery and equipment. The proposed project will improve productivity and
operational efficiencies, as well as expand research and development capabilities.
DISCUSSION
The proposed Development Agreement provides for incentives to encourage the $8.9
million expansion project. This Agreement requires the addition or creation of twenty-
four (24) full-time equivalent jobs to our community in the next three years, including
assembly workers, planners, and engineers. The Agreement provides for 10 years of
Tax Increment Finance (TIF) rebates.
Additional terms and conditions of the expansion project are included within the
attached Development Agreement.
RECOMMENDATION/ ACTION STEP
Based on the City's goal of creating high quality jobs, I recommend the City Council
adopts the attached resolution to set a public hearing on the attached Development
Agreement with Rite Hite/AB(MC)z .
Prepared by/Return to: Jill Connors, Economic Development. 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 194-16
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA ON THE EXECUTION OF A DEVELOPMENT AGREEMENT
WITH RITE HITE/AB(MC)2AND THE PROPOSED ISSUANCE OF URBAN RENEWAL
TAX INCREMENT REVENUE OBLIGATIONS AND PROVIDING FOR THE
PUBLICATION OF NOTICE THEREOF
WHEREAS, City of Dubuque, Iowa (City) and Rite Hite/AB(MC)2 have entered into a
Development Agreement, subject to the approval of the City Council, a copy of which is
now on file at the Office of the City Clerk, City Hall, 50 W. 13th Street, Dubuque, Iowa; and
WHEREAS, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Development Agreement with Rite Hite/AB(MC)2; and
WHEREAS, it is deemed necessary and advisable that City should authorize
Urban Renewal Tax Increment Revenue obligations, as provided by Chapter 403 of the
Code of Iowa, and to enter into the Development Agreement for the purpose of carrying
out the expansion of property located at 4343 Chavenelle Drive as described in the
Development Agreement; 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 Clerk is hereby authorized and directed to cause a notice to be
published as prescribed by Iowa Code Section 403.9 of a public hearing on the City's
intent to enter into a Development Agreement with Rite Hite/AB(MC)2 and to authorize
Urban Renewal Tax Increment Revenue obligations, to be held on the 6th day of June,
2016, at 6:30 o'clock p.m. in the City Council Chambers at the Historic Federal Building,
350 W. 6th St, Dubuque, Iowa.
Section 2. The City Council will meet at said time and place for the purpose of
taking action on approving the execution of the Development Agreement with Rite
Hite/AB(MC)2 and authorizing Urban Renewal Tax Increment Revenue obligations, the
proceeds of which obligations will be used to carry out certain of the special financing
activities described in the Amended and Restated Urban Renewal Plan for the Dubuque
Industrial Center Economic Development District, consisting of the funding of economic
developments grants to Hite/AB(MC)2 pursuant to the Development Agreement. It is
expected that the aggregate amount of the Tax Increment Revenue obligations to be
issued will be approximately $1,236,700.
Section 3. The 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, and having general circulation in said City, said publication to be not Tess
than four days nor more than twenty days before the date of said meeting on the
issuance of said obligations.
Section 4. That the notice of the proposed action to issue said obligations
shall be in substantially the form attached hereto.
Passed, approved and adopted this 16th day of M fir, 2016.
Ili 9,
Roy D. Buol, Mayor
Attest:
Kevi F'rnstahl, City tI6rk
CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE MATTER OF THE PROPOSED AUTHORIZATION OF
URBAN RENEWAL TAX INCREMENT REVENUE OBLIGATIONS AND THE
APPROVAL OF THE DEVELOPMENT AGREEMENT RELATING THERETO WITH
RITE HITE/AB(MC)2
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will
hold a public hearing on the 6th day of June, 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 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 Rite Hite/AB(MC)2, 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 $1,236,700.
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.
Any visual or hearing impaired persons needing special assistance or persons with
special accessibility needs should contact the City Clerk's Office at (563) 589-4100 or
TDD (563) 690-6678 at least 48 hours prior to the meeting.
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 20th day of May 2016.
Kevin S. Firnstahl
City Clerk of Dubuque, Iowa
1t 5/20
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
RITE-HITE/AB(MC)Z
THIS AGREEMENT, dated for reference purposes the day of
2016, by and between 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 Rite-Hite/AB(MC)z, 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) which as of the date of this
Agreement has no expiration date; 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 an addition to its current
manufacturing facility to maintain and expand its operations and employment in the
Project Area (the Facility Addition) and that the Facility Addition would not be
economically feasible without the assistance and benefit provided to the Developer by
the City under this Agreement; and
WHEREAS, Developer has requested that City enter into an agreement for the
development of property, legally described as follows (the Property):
LOTS 1 & 2 OF FINAL PLAT OF LOT 1 OF DUBUQUE INDUSTRIAL
CENTER FIRST ADD in the City of Dubuque, Iowa
051016ba1
as shown on Exhibit B, so that Developer may develop the Property, located in the
Project Area, for the construction, use, and occupancy of the Facility Addition 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. REPRESENTATIONS AND WARRANTIES OF CITY
1 .1 Representations and Warranties of City. In order to induce Developer to enter
into this Agreement and further develop the Property, City hereby represents and
warrants to Developer that:
(1) 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 City is 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 City may be
subject.
(2) 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 Closing
confirming the representation contained herein, in the form attached hereto as
Exhibit C.
(3) City shall exercise its best efforts to assist Developer in the development
process.
(4) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
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(5) 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 .2 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1 .1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the Closing, City shall deliver a
certificate in the form of Exhibit F.
(2) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(3) 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.
(4) 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 27, 2016.
(5) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit D.
(6) 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 .3 Closing. The closing shall take place on the Closing Date. The Closing Date is
June 9, 2016, at 10:00 a.m., at the City Attorney's Office, or such other date as the
parties agree in writing. 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.
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1 .4 City's Obligations at Closing. At or prior to Closing Date, City shall Deliver to
Developer such documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that the Facility is a
manufacturing facility as shown on Exhibit B attached hereto. Specifically, Developer
agrees to construct the Facility Addition and certain internal systems thereto, and with
finishing the Facility Addition 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 one hundred
thirty-eight thousand (138,000) square feet of floor space along with the necessary site
work, at an estimated cost of approximately $8,266,721 .
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 the Property shall be commenced on or before June 1 , 2016, and shall be
substantially completed by December 31 , 2017. 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 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.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements the Property, the City Manager shall
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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 with respect to the obligations of Developer to
construct the Minimum Improvements to the Property.
SECTION 3. CITY PARTICIPATION.
3.1 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 no Event of Default
existing beyond applicable notice and cure periods and 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 , 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
November 1 , 2028 May 1 , 2029
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). For purposes of calculating the
amount of the Economic Development Grants provided in this Section, the
Developer Tax Increments shall be only those tax increment revenues collected
by City in respect of the increase in the assessed value of the Property above the
assessment of January 1 , 2015 ($4,810,270.00). Developer recognizes and
agrees that the Economic Development Grants shall be paid solely and only from
the full 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
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incremental taxes will not include all amounts paid by Developer as regular
property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1 , 2018, 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 , 2018, the Economic Development Grants in respect
thereof would be paid to Developer on November 1 , 2019, and May 1 , 2020.)
(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 Rite Hite/AB(MC)2 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 Rite Hite/AB(MC)2 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 Rite Hite/AB(MC)2 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.
3.2 Site Preparation. City reserves the right to approve the design and
specifications for any site preparation work.
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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 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 retain two
hundred sixty-nine (269) and add or create a minimum of twenty-four (24) additional
fulltime equivalent (FTE) employees in Dubuque, Iowa prior to January 1 , 2019, and
shall endeavor to maintain those jobs during the term of this Agreement. It is agreed by
the parties that Developer has two hundred sixty-nine (269) fulltime equivalent
employees (FTE) in Dubuque, Iowa, as of January 27, 2016. FTE employees shall be
calculated by adding fulltime and part-time employees together using 2080 hours per
year as a FTE employee. For the FTE positions that Developer fails to add or 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 added or created and maintained (293 FTE's) by this Section 5.1 . (For
example, if Developer has 263 FTE employees, the semi-annual Economic
Development Grants to be paid for that year would be reduced to 90% (263/293
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 Section 5.1 .
5.2 Certification. To assist City in monitoring the performance of Developer
hereunder, as of January 1 , 2019, 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 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,
2019, 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
8
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, naming City as an additional insured and
loss payee.
(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 the full insurable replacement value of
Minimum Improvements naming City as an additional insured. 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 $250,000.00 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
9
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 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 until a certificate of completion
has been issued by City for the Minimum Improvements. 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
10
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 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 and further agrees to hold
the Indemnified Parties harmless, from any claim, demand, suit, action or other
proceedings whatsoever by any person or entity whatsoever arising or
purportedly arising from (1) any violation of any agreement or condition of this
Agreement (except with respect to any suit, action, demand or other proceeding
brought by Developer against City based on an alleged breach of any
representation, warranty or covenant of City under this Agreement and/or to
enforce its rights under this Agreement); or (2) the acquisition, construction,
installation, 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
11
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.
(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 or City to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be observed
or performed under this Agreement.
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 may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments due
12
under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
6.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to either
Party is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity or by
statute. 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.
6.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
6.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief, 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, as the case may be, or may
be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
6.6 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer may take any action, including legal, equitable or administrative
action that may appear necessary or desirable to collect any payments due under this
Agreement, to recover expenses of Developer, or to enforce performance and
observance of any obligation, agreement, or covenant of City under this Agreement.
Developer may suspend 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:
Rite-Hite/AB(MC)2
Attn: Mark Kirkish
13
8900 North Arbon Drive
Milwaukee, WI 53223
Phone: 414-362-4470
With copy to:
Attorney
Tony Catalano
8900 North Arbon Drive
Milwaukee, WI 53223
Phone: 414-362-4471
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, 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 June 1 , 2029 (the Termination Date).
7.4 Execution By Facsimile. The parties agree that this Agreement may be
transmitted among them by facsimile machine or electronic transmission. The parties
intend that the faxed or electronic transmission signatures constitute original signatures
and that a faxed or electronically transmitted 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.
14
the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for
so recording.
7.6 Successors. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
7.7 Choice of Law. This Agreement shall be deemed to be a contract made under
the laws of the State of Iowa.
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 RITE-HITE/AB(MC)Z
By: By:
Roy D. Buol, Mayor Mark Kirkish,
CFO & Treasurer
By:
Kevin S. Firnstahl
City Clerk
FAUSERS\tsteckleUndahRRite Hite\Rde Hite DA 041916bal.doc
15
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B Site Exhibit
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Memorandum of Development Agreement
Exhibit F City Certificate
Exhibit G Certificate of Completion
16
EXHIBIT A
URBAN RENEWAL PLAN
A copy of the Plan and amendments is on file in the Office of the City Clerk, City Hall, 50 West 13th Street, Dubuque, Iowa
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Ewnomic Development District
City of Dubuque, Iowa
III Amended and ReffiIeJ wbn Renesal ma pmnJ¢
1n the carried Jwetgmair or 8¢ ni6upae Irol
Center Ecom Development LtiAlq mgnelly
established by Resauraa 130.a a me cry coca Was
M of Di Ivan on May z 1969 aed mega
an Med nd m9Atl by Reason l819]a0.nber
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7, mm, Resonance 10i on MN 17,zone, Resonmon
10108 on Ppa 7,3008,Rm1Aa 8]-11 on March 7,2011,
Resdirom 171-13 on Jure 3, 2013, R Aaron 197-15 on
Ame 1,2015,nd RmlNa DH15 on September 8,2015.
neem bvue emms ozvr�m mom[
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17
EXHIBIT B
SITE EXHIBIT
18
Lots 1 & 2 of Final Plat of Lot 1 of Dubuque Industrial
Center First Add
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20
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
21
BARRY A. LINDAHL , ESO. 7rxecrtr
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
22
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
23
Mayor and City Councilmembers
City Hall
13th 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 Wisconsin 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.
Very truly yours,
24
EXHIBIT E
MEMORANDUM OF DEVELOPMENT AGREEMENT
25
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 Rite Hite/AB(MC)2, an Iowa limited
liability company, was made regarding the following described premises:
LOTS 1 & 2 OF FINAL PLAT OF LOT 1 OF DUBUQUE INDUSTRIAL
CENTER FIRST ADD in the City of Dubuque, Iowa
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 MAI , 2016 .
CITY OF DUBUQUE, IOWA RITE-HITE/AB(MC)2
By: By:
Roy D. Buol, Mayor Mark Kirkish,
CFO & Treasurer
By:
Kevin S. Firnstahl
City Clerk
26
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 WISCONSIN
: ss:
MILWAUKEE COUNTY
On this 2a day of 7 , 20/6 , before me, a Notary Public in and for
the State of dewa! n and fo said county, personally appeared Mark Kirkish, to
me personally known, who being by me duly sworn did say that he is the CFO
and Treasurer of Rite Hite/AB(MC)2, 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.
Xz
Iota— ubfic; $tae of W s onsin
27
EXHIBIT F
CITY CERTIFICATE
28
THEcr OF
DUB E
0 Manager's
5
50 West 13th Street �t6�✓a r(/.vr+C,
Dubuque,Iowa 52001-4864
(563)589-4110 phone
(563)589-4149 fax
ctymgr§dtyofdubuque.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) 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 City is 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 City may be
subject.
(2) 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.
(3) City shall exercise its best efforts to assist with Developer in the
development process.
29
(4) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
(5) 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
30
EXHIBIT G
CERTIFICATE OF COMPLETION
31
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 (City) entered
into a Development Agreement (the Agreement) with Rite Hite/AB(MC)2 (Rite Hite)
dated as of [Date], by and among City and Rite Hite related to certain real property
located within the Dubuque Industrial Center Economic Development District of City and
as more particularly described as follows:
LOTS 1 & 2 OF FINAL PLAT OF LOT 1 OF DUBUQUE INDUSTRIAL
CENTER FIRST ADD in the City of Dubuque, Iowa
(the Property); and
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions with respect to the development of the Property, and obligated Rite Hite to
construct certain Minimum Improvements in accordance with the Agreement; and
WHEREAS, Rite Hite has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements in a
manner deemed sufficient by City 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 Agreement with respect to the obligations of
Rite Hite, and its successors and assigns, to construct the Minimum Improvements
have been completed and performed by Rite Hite to the satisfaction of City 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 Agreement.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen, City Manager
32
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
33