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HomeMy WebLinkAbout2003-03-19 ResolutionMarch 19, 2003 The City Council of Iowa City, Iowa, met in speci al session, in the Emma J. Harvat Hall, Civic Center, Iowa City, Iowa, at 4: 00' o'clock P__.M., on the above date. There were present the Mayor Lehman , in the chair, and the following named Council Members: Champion, Lehman, O'Donnell, Pfab, Vanderhoef, Wilburn Absent: Kanner Whereupon, Council Member Pfab introduced and delivered to the Clerk the Resolution hereinafter set out entitled "RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AGREEMENT FOR PRIVATE REDEVELOPMENT BY AND BETWEEN THE CITY OF IOWA CITY AND ALPLA OF IOWA, 1NC.", and moved: /_X/ that the Resolution be adopted. to ADJOURN and defer action on the Resolution and the proposal to the meeting to be held at o'clock .M. on the day of ,2003, at this place. Council Member called and the vote was, O'Donnell seconded the motion. The roll was AYES: Champion, Lehman, O'Donnell, Pfab, Vanderhoef, Wilburn NAYS: None Whereupon, the Mayor declared the measure duly adopted. RESOLUTION NO. 03-89 RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AGREEMENT FOR PRIVATE REDEVELOPMENT BY AND BETWEEN THE CITY OF IOWA CITY AND ALPLA OF IOWA, INC. WHEREAS, by Resolution No. 02-195 approved and adopted on May 21, 2002, the City Council has approved and adopted an urban renewal plan for the Project Area designated as the Heinz Road Urban Renewal Plan, as amended (the "Urban Renewal Plan"); and WHEREAS, it is desirable that properties within the Project Area be redeveloped as part of the overall redevelopment area covered by said Plan; and WHEREAS, the City has received a proposal from Alpla of Iowa, Inc. (the "Developer"), in the form of a proposed Agreement for Private Redevelopment (the "Agreement") by and between the City and the Developer, pursuant to which, among other things, the Developer would agree to construct certain Minimum Improvements (as defined in the Agreement) on certain real property located within the Heinz Road Urban Renewal Project Area as legally described in the Agreement hereto and incorporated herein by this reference (defined in the Agreement as the "Development Property"), consisting of the construction of improveinents and\or additions to an existing 56,000 Square Foot freestanding building and the construction of new space of approximately 86,000 Square Feet for industrial uses on the Development Property, said Minimum Improvements must result in an increase in actual assessed value of the Development Property of at least fifteen (15) percent as of the first year for which an Economic Development Grant is received, together with any new construction located on the Development Property, as outlined in the proposed Development Agreement; and WHEREAS, the Agreement further proposes that the City agrees to provide $35,000 to Developer for the construction of infrastructure no later than June 15, 2003, and tax rebates described herein subject to the Developer having received a Certificate of Completion and being and remaining in compliance with the terms of the Agreement, to assume an obligation to make up to five (5) consecutive annual payments to the Developer commencing on June 1, 2006 and ending on June 1, 2010, equal in amounts to one hundred pement (100%) per fiscal year of the Tax Increments collected by the City with respect to the Minimum Improvements on the Development Property, under the terms and following satisfaction of the conditions set forth in the Agreement; and WHEREAS, Iowa Code Chapters 15A and 403 (the "Urban Renewal Law") and authorize cities to make loans and grants for economic development in furtherance of the objectives of an urban renewal project and to appropriate such funds and make such expenditures as may be necessary to carry out the purposes of said Chapters, and to levy taxes and assessments for such purposes; and WHEREAS, the Council has determined that the Agreement is in the best interests of the City and the residents thereof and that the performance by the City of its obligations thereunder is a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law and, further, that the Agreement and the City's performance thereunder is in furtherance of appropriate economic development activities and objectives of the City within the meaning of Chapters 403 and 15A of the Iowa Code: Section 1. That the performance by the City of its obligations under the Agreement, including but not limited to making of loans and grants to the Developer in connection with the development of the Development Property under the terms set forth in the Agreement, be and is hereby declared to be a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law and, further, that the Agreement and the City's performance thereunder is in furtherance of appropriate economic development activities and objectives of the City within the meaning of Chapters 403 and 15A of the Iowa Code. Section 2. That the form and content of the Agreement, the provisions of which are incorporated herein by reference, be and the same hereby are in all respects authorized, approved and confirmed, and the Mayor and the Mayor Pro Tem and the City Clerk and the Deputy City Clerk be and they hereby are authorized, empowered and directed to execute, attest, seal and deliver the Agreement for and on behalf of the City in substantially the form and content now before this meeting, but with such changes, modifications, additions or deletions therein as shall be approved by such officers, and that from and after the execution and delivery of the Agreement, the Mayor and the Mayor Pro Tem and the City Clerk and the Deputy City Clerk are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Agreement as executed. PASSED AND APPROVED this 19th day of March, 2003. Mayor ATTEST: Cler]~ 4 CERTIFICATE CIG-3 STATE OF IOWA ) )ss COUNTY OF JOHNSON ) I, the undersigned City Clerk of Iowa City, Iowa, do hereby certify that attached is a tree and complete copy of the portion of the corporate records of said Municipality showing proceedings of the Council, and the same is a tree and complete copy of the action taken by said Council with respect to said matter at the meeting held on the date indicated in the attachment, which proceedings remain in full force and effect, and have not been amended or rescinded in any way; that meeting and all action thereat was duly and publicly held in accordance with a notice of meeting and tentative agenda, a copy of which was timely served on each member of the Council and posted on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the principal office of the Council (a copy of the face sheet of said agenda being attached hereto) pursuant to the local roles of the Council and the provisions of Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at least twenty-four hours prior to the commencement of the meeting as required by said law and with members of the public present in attendance; I further certify that the individuals named therein were on the date thereof duly and lawfully possessed of their respective city offices as indicated therein, that no Council vacancy existed except as may be stated in said proceedings, and that no controversy or litigation is pending, prayed or threatened involving the incorporation, organization, existence or boundaries of the City or the right of the individuals named therein as officers to their respective positions. WITNESS my hand and the seal of said Municipality hereto affixed this 20th dayof March ,2003. SEAL DLILLEBOX360936\\10714.000 City"Ulerk, Iowa City, Iowa 5 AGREEMENT FOR PRIVATE REDEVELOPMENT By and Between THE CITY OF IOWA CITY, IOWA ALPLA OF IOWA, INC. AGREEMENT FOR PRIVATE REDEVELOPMENT THIS AGREEMENT FOR PRIVATE REDEVELOPMENT (hereinafter called "Agreement"), is made on or as of the 2~R,a day of ~ ,2003, by and among the CITY OF IOWA CITY, IOWA, a municipality (hereinafter called "City"), established pursuant to the Code of Iowa of the State of Iowa and acting under the authorization of Chapter 403 of the Code of Iowa, 2001, as amended (hereinafter called "Urban Renewal Act") and Alpla of Iowa, Inc., having an office for the transaction of business at 2258 Heinz Road, Iowa City, Iowa 52240 (the "Developer"). W1TNESSETH: WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has undertaken a program for the revitalization of an economic development area in the City and, in this connection, is engaged in carrying out urban renewal project activities in an area known as the Heinz Road Urban Renewal Plan Area, which area is described in the Urban Renewal Plan approved for such area by Resolution No. 02-195 dated May 21, 2002; and WHEREAS, a copy of the foregoing Urban Renewal Plan has been recorded among the land records in the office of the Recorder of Johnson County, Iowa; and WHEREAS, the Developer owns or has the right to occupy certain real property located in the foregoing Urban Renewal Area as more particularly described in Exhibit A annexed hereto and made a part hereof (which property as so described is hereinafter referred to as the "Development Property"); and WHEREAS, the Developer will cause certain improvements to be constructed on the Development Property and will cause the same to be operated in accordance with this Agreement; and WHEREAS, the City believes that the development and continued operation of the Development Property pursuant to this Agreement and the fulfillment generally of this Agreement, are in the vital and best interests of the City and in accord with the public purposes and provisions of the applicable State and local laws and requirements under which the foregoing project has been undertaken and is being assisted. -1- 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: ARTICLE I. DEFINITIONS Section I. 1. Definitions. In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Agreement means this Agreement and all appendices hereto, as the same may be from time to time modified, amended or supplemented. Certificate of Completion means a certification in the form of the certificate attached hereto as Exhibit C and hereby made a part of this Agreement, provided to the Developer pursuant to Section 3.2 of this Agreement. City means the City of Iowa City, Iowa, or any successor to its functions. .Code means the Code of Iowa, 2001, as amended. Construction Plans means the plans, specifications, drawings and related documents reflecting the construction work to be performed by the Developer on the Development Property and the other properties upon which the Public Improvements will be located; the Construction Plans shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the building inspector of the City as required by applicable City codes. .County means the County of Johnson, Iowa. Developer means Alpla of Iowa, Inc., a corporation. .Development Property means that portion of the Heinz Road Urban Renewal Plan Area of the City described in Exhibit A hereto. Economic Development Grant~ mean the Tax Increment payments to be made by the City to the Developer under Article VIII of this Agreement. -2- ~ means Agreement. any of the events described in Section l 0. l of this ~ means any Mortgage granted to secure any loan made pursuant to either a mortgage commitment obtained by the Developer from a commercial lender or other financial institution to fun · operating capital · d anYPortion of the · appropriate, reqmrements of the Minimum ~,,,.~c~.n_struc!~on costs and initial '"'v,~,vements, or all such Mortgages as Heinz R~~'~ ~Zewal~c~ - A1 la TIF Account means shall be deposited all Tax Increment Rev ~.,~ e__~ a,s..ep~a, te account within the en,,,~ ,'uuu o~ me tClty, in which there Improvements. Tax Increments received by the City with respect to the M/nimum · '~ shall mean the construction °fimprovements to the ex~sting structure and the construction of a new commercial building, together related site improvements as outlined in Exhibit B hereto, with all not include increases · Minimum Improvements shall m assessed or actual value due to market factors. gran,~M°n~ means any mortea ..... tctl am o ~ oxsecuri a · . ortgage or other security interest i~t~t~gr~e~_m_e,nt m wh,ch the Developer has or parcel thereof, or any improvements constructed thereon. "~ '-'*velopment Property, or any POrt/on ~ means any Proceeds paid byan insurer to the Devel orpohc~es ofmsurance reqmred to beprovided and m i,,,~:_~.._ ~.per under a policy case may be, PUrsuant to Art/cie V of this Agreement and remaining after a..,.mm oy ~e Developer, as the expenses (including fees and disbursements of counsel) deducting all proceeds. incurred in the collection of such ~ mean ~ofthe City, under which the taxes levied on the taxable property in the Project Area shall be divided and a port/on paid into the Iowa City Urban Renewal Tax Increment Revenue Fund. Pro~ shall mean the construction and ' the Development Property, operation of the Mi~mum Improvements on as described in this Agreement. St..~ate means the State of Iowa. -3- Heinz Road Urban Renewal Tax Increment Fund means the special fund of the City created under the authority of Section 403.19(2) of the Code and the Ordinance, which fund was created in order to pay the principal of and interest on loans, monies advanced to or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other obligations issued under the authority of Section 403.9 or 403.12 of the Code, incurred by the City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal Plan for the Project Area. Tax Increments means the property tax revenues with respect to the Minimum Improvements that are divided and made available to the City for deposit in the Heinz Road Urban Renewal Tax Increment Revenue Fund under the provisions of Section 403.19 of the Code and the Ordinance. Termination Date means the date of termination of this Agreement, as established in Section 12.8 of this Agreement. Unavoidable Dela means delays resulting from acts or occurrences outside the reasonable control of the party claiming the delay including but not limited to storms, floods, fires, explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other labor disputes, delays in transportation or delivery of material or equipment, litigation commenced by third pmties, or the acts of any federal, State or local governmental unit (other than the City). ..Urban Renewal Plan means the Urban Renewal Plan, as amended, approved in respect of the Heinz Road Urban Renewal Area, described in the preambles hereof. ARTICLE II. REPRESENTATIONS AND WARRANTIE. g Section 2.1. Representations and Warranties of the City. The City makes the following representations and warranties: (a) The City is a municipal corporation and political subdivision organized under the provisions of the Constitution and the laws of the State and has the power to enter into this Agreement and carry out its obligations hereunder. (b) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and -4- conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a breach of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the City is now a party or by which it is bound, nor do they constitute a default under any of the foregoing. Section 2.2. Covenants, Obligations,Representations and Warranties of Developer The Developer makes the following representations and warranties: (a) Developer is a corporation duly organized and validly existing under the laws of the State of Georgia, and has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under the Agreement. (b) This Agreement has been duly and validly authorized, executed and delivered by the Developer and, assuming due authorization, execution and delivery by the City, is in full fome and effect and is a valid and legally binding instrument of the Developer enforceable in accordance with its terms, except as the same maybe limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. (c) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a violation or breach of, the terms, conditions or provisions of the certificate of incorporation and bylaws of Developer or its parents or subsidiaries of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. (d) There are no actions, suits or proceedings pending or threatened against or affecting the 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 the Developer or which in any manner raises any questions affecting the validity of the Agreement or the Developer's ability to perform its obligations under this Agreement. -5- (e) Developer has not received any notice form any local, State for federal official that the activities of Developer with respect to the Development Property may or will be in violation of any environmental law or regulation (other than those notices, if any, of which the City has previously been notified in writing). Developer is not currently aware of any State or federal claim filed or planned to be filed by any party relating to any violation of any local, State or federal environmental law, regulation or review procedure applicable to the Development Property, and Developer is not currently aware of any violation of any local, State or federal environmental law, regulation or review procedure which would give any person a valid claim under any State or federal environmental statute with respect thereto. (f) Developer will fully cooperate with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction and operation of the Minimum Improvements. (g) Developer would not undertake its obligations under this Agreement without the payment by the City of the Economic Development Grants being made to the Developer pursuant to this Agreement. (h) The Developer will cause the Minimum Improvements to be constructed in accordance with the terms of this Agreement and when constructed will comply with the Urban Renewal Plan and all local, State and federal laws and regulations, except for variances that may be necessary to construct the Minimum Improvements. (i) The Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, State, and federal laws and regulations which must be obtained or met in connection with the Project. ARTICLE III. DEVELOPMENT AND OCCUPANCY REQUIREMENT' Section 3.1. Minimum Improvements. The Developer agrees to complete Minimum Improvements generally consisting of improvements to the existing 56,000 square foot Alpla Plant through the construction of additional manufacturing, warehousing or distribution space totaling approximately 86,000 square feet for industrial uses on the Development Property, all as more fully described on Exhibit B hereto. The construction of the Minimum Improvements must -6- increase the actual assessed value of the Development Property by at least 15% over the actual assessed value on January 1, 2003. Section 3.2. Certificate of Completion. Upon written request of the Developer after issuance of an occupancy permit for the Minimum Improvements, or any discreet portion thereof, the City will furnish the Developer with a Certificate of Completion for such portion in recordable form, in substantially the form set forth in Exhibit C attached hereto. Such Certificate of Completion shall be a conclusive determination of satisfactory termination of the covenants and conditions of this Agreement with respect to the obligations of the Developer to construct such portion of the Minimum Improvements. A Certificate of Completion may be recorded in the proper office for the recordation of deeds and other instruments pertaining to the Development Property at the Developers sole expense. If the City shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section 3.2, the City shall within twenty (20) days after written request to the Developer, provide the Developer with a written statement indicating with adequate detail, in what respects the Developer has failed to complete the Minimum Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and what measures or acts will be necessary in the opinion of the City, to obtain such Certificate of Completion. ARTICLE IV. RESERVED ARTICLE V. INSURANCE Section 5.1. Insurance Requirements. (a) Upon completion of construction of the Minimum Improvements and at all times prior to the Termination Date, the Developer shall maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of the City shall furnish proof of the payment of premiums on) insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured through property policies against by similar businesses, including (without limitation the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion, water -7- damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the Minimum Improvements, but any such policy may have a deductible amount of not more than $250,000. No policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto in writing by the City. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment, and shall be determined from time to time at the request of the City, but not more frequently than once every three years, by an insurance consultant or insurer selected and paid for by the Developer and approved by the City. (ii) Comprehensive general public liability insurance, including personal injury liability for injuries to persons and/or property, including any injuries resulting from the operation of automobiles or other motorized vehicles on or about the Development Property, in the minimum amount for each occurrence and for each year of $1,000,000. (iii) Such other insurance, including worker's compensation insurance respecting all employees of the Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Developer may be self-insured with respect to all or any pan of its liability for worker's compensation. (b) All insurance required by this Article V to be provided prior to the Termination Date shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. The Developer will deposit annually with the City copies of policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to the Developer and the City at least thirty (30) days before the cancellation or modification becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, the Developer shall furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another policy conforming to the provisions of this Article V, or that there is no necessity therefor under the terms hereof. In lieu of separate policies, the Developer may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event the Developer shall deposit with the City a -8- certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. (c) The Developer agrees to notify the City immediately in the case of damage exceeding $250,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid directly to the Developer, and the Developer will 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, the Developer will apply the Net Proceeds of any insurance relating to such damage received by the Developer to the payment or reimbursement of the costs thereof. (d) The Developer shall complete the repair, reconstruction and restoration of the Minimum Improvements, whether or not the Net Proceeds of insurance received by the Developer for such purposes are sufficient. ARTICLE VI. COVENANTS OF THE DEVELOPER Section 6.1. Maintenance of Properties. The Developer will maintain, preserve and keep its properties (whether owned in fee or a leasehold interest), including but not limited to the Minimum Improvements, in good repair and working order, ordinary wear and tear accepted, and from time to time will make all necessary repairs, replacements, renewals and additions. Section 6.2. Maintenance of Recorctq~ The Developer will keep at all times proper books of record and account in which full, tree and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of the Developer in accordance with generally accepted accounting principles, consistently applied throughout the period involved, and the Developer will provide reasonable protection against loss or damage to such books of record and account. Section 6.3. Co_.Q_q.~pliance with Laws. The Developer will comply with all laws, rules and regulations relating to the Minimum Improvements, other than laws, rules and regulations the failure to comply with which or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of the Developer. -9- Section 6.4. Non-Discrimination. In operating the Minimum Improvements, the Developer shall not discriminate against any applicant, employee or tenant because of race, geed, color, religion, sex, national origin, sexual orientation, age, disability, marital status or gender identity. The Developer shall ensure that applicants, employees and tenants are considered and are treated without regard to their race, creed, color, religion, sex, national origin, sexual orientation, age, disability, marital status or gender identity. Section 6.5. Continued Operation and Employment. Commencing upon the signing of the Agreement, the Developer agrees that it will operate a manufacturing plant at the Development Property and will continue operation of this business until at least the Termination Date set forth in Section 12.8 hereof. From March I, 2004 until the Termination date the Developer will maintain a minimum of 35 Full Time Employment Units at the Development Property. A Full Time Employment Unit means the equivalent of employment of one (1) person for eight (8) hours per day for a five (5) day, forty (40) hour workweek for fifty-two (52) weeks per year. Section 6.6. Annual Certification. To assist the City in monitoring and performance of the Developer hereunder, a duly authorized officer of the Developer shall annually provide to the City: (a) a written statement from the County Auditor showing the amount of Tax Increments (as defined in Section 1.1 of this Agreement) in respect of the Minimum Improvements (excluding increases in assessed or actual value due to market factors) for the following fiscal year; (b) proof that all ad valorem taxes on the Development Property have been paid for the prior fiscal year; and (c) certification 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, the 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 statement, proof and certificate shall be provided not later than November 1 of each year, commencing November 1, 2004, and ending on November 1, 2009 both dates inclusive. Upon certification by the Developer on or before November 1, 2004, the City will certify to establish a base value as of January 1, 2003. - 10- ARTICLE VII. ASSIGNMENT AND TRANSFER Section 7.1. Status of the Developer; Transfer of Substantially All Assets. As security for the obligations of the Developer under this Agreement, the Developer represents and agrees that, prior to the issuance of the Certificate of Completion and prior to the Termination Date, the Developer will maintain existence as an adequately capitalized corporation and will not wind up or otherwise dispose of all substantially all of the Development Property and Minimum Improvements, or assign its interest in this Agreement to any other party unless (i) the transferee partnership, corporation, limited liability company or individual assumes in writing all of the obligations of the Developer under this Agreement and (ii) the City consents thereto in writing in advance thereof. Notwithstanding the foregoing, however, or any other provisions of this Agreement, (a) Developer may transfer its interest in and to this Agreement to any affiliate which is controlled by under common control with or controls, Developer or to any entity that acquires all or substantially all of the assets of the Developer or to any corporate successor to Developer by consolidation, merger, or otherwise, and (b) the Developer may (1) pledge and any/or all of its assets as security for any financing of the Minimum Improvements; (2) assign its fights under this Agreement to a third party, provided such assi~tmment shall not release the Developer of its obligations hereunder, and the City agrees that Developer may assign its interest under this Agreement for such purpose; and (3) the Developer may transfer its ownership interest to a third-party under an arrangement whereby Developer will lease the Development Property back and continue to satisfy the requirements of this Agreement. ARTICLE VIII. ECONOMIC DEVELOPMENT GRANTS Section 8.1. Economic Development Grants. (a) For and in consideration of the obligations being assumed by the Developer hereunder, and in furtherance of the goals and objectives of the Urban Renewal Plan for the Project Area and the Urban Renewal Act, the City agrees to provide a grant in the amount of $35,000 to Developer for the construction of infrastructure no later than June 15, 2003. In addition the City will make up to five annual grants to the Developer, subject to the Developer having received a Certificate of Completion and being and remaining in compliance with the terms of this Agreement. and subject to the terms of this Article VIII. The annual grants shall commence on June 1, 2006 and end on June 1, 2010, or when the total of all grants, including the $35,000 initial grant and all annual grants total $510,000. All annual grants shall be equal to one hundred percent (100%) per fiscal year of the Tax Increments collected by the City with respect to the Minimum Improvements on Development Property pursuant to Section 403.9 of the Urban Renewal Act under the terms of the -11- Ordinance (without regard to any averaging that may othenvise be utilized under Section 403.19(6) and excluding any interest that may accrue thereon prior to payment to the Developer) during the preceding twelve-month period in respect of the Development Property and the Minimum Improvements, but subject to adjustment and conditions precedent as provided in this Article (such payments being referred to collectively as the "Economic Development Grants"). (b) The obligation of the City to make an Economic Development Grant to the Developer in any year as specified above shall be subject to and conditioned upon the timely filing by the Developer of all previous annual statements, proofs and certifications required under Section 6.6 hereof and the City Manager's approval thereof. Beginning with the November 1, 2004 certification, if the Developer's annual statement, proof and certification is timely filed and contains the information required under Section 6.6 and the City Manager approves of the same, the City shall certify to the County prior to December 1 of that year its request for the available Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by the City as taxes are paid during the following fiscal year and which shall thereafter be disbursed to the Developer on June 1 of the following fiscal year. (For example, if the Developer and the City each so certify on November and December 2003 and 2004, respectively, the first Economic Development Grant would be paid to the Developer on June 1, 2006). (c) In the event that the annual statement, proof or certificate required to be delivered by the Developer under Section 6.6 is not delivered to the City by November 1 of any year, the Developer recognizes and agrees that the City may have insufficient time to review and approve the same and certify its request for Tax Increments to the County and that, as a result, no Economic Development Grant may be made to the Developer in respect thereof. The City covenants to act in good faith to appropriately review and consider any late certification on the part of the Developer, but the City shall not be obligated to make any certification to the County for the available Tax Increments or make any corresponding payment of the Economic Development Grant to the Developer if, in the reasonable judgment of the City, it is not able to give appropriate consideration (which may include, but not be limited to, specific discussion before the City Council at a regular City Council meeting with respect thereto) to the Developer's certification due to its late filing. In the event Developer fails to timely file an annual statement, proof or certificate due to an Unavoidable Delay and, as a result, and Economic Development Grant cannot be made, Developer may give written notice to the City and, if the City finds that Developer's failure is due to an Unavoidable Delay, the missed Economic Development Grant shall be made in the year succeeding the last scheduled Economic -12- Development Grant under Section 8.1, subject to Developer's filing under Section 6.6 and all other provisions of this Article VIII with respect to such a grant, it being the intention of the patties to allow five (5) annual Economic Development Grants if Developer is in compliance with this Agreement. (d) The total, aggregate amount of all Economic Development Grants under this Agreement shall not exceed $510,000. Except the initial grant of $35,000, each Economic Development Grant shall be equal to one hundred percent (100%) of all Tax Increments collected per fiscal year in respect of the assessments imposed on the Development Property and Minimum Improvements as of January 1, 2004, and on January 1 of each of the following five (5) years, until the total, aggregate of all such Economic Development Grants equals no more than the sum of $510,000. The final grant shall be adjusted, if necessary, if payment of 100% of Tax Increments for that grant would result in total, aggregate Economic Development Grants in an amount exceeding $510,000. Such Economic Development Grants shall at all times be subject to termination in accordance with the terms of this Article VIII and Article X. Thereafter, the taxes levied on the Development Property and Minimum Improvements shall be divided and applied in accordance with the Urban Renewal Act and the Ordinance. It is recognized by all parties that the total aggregate amount set fourth above is a maximum amount only and that the actual payment amounts will be determined after the Minimum Improvements are completed and the valuations of said Improvements have been determined by the City Assessor. (e) In the event that any certificate filed by the Developer under Section 6.6 or other information available to the City discloses the existence or prior occurrence of an Event of Default that was not cured or cannot reasonably be cured under the provisions of Section 10.2 (or an event that, with the passage of time or giving of notice, or both, would become an Event of Default that cannot reasonably be cured under the provisions of Section 10.2), the City shall have no obligation thereafter to make any further payments to the Developer in respect of the Economic Development Grants and may proceed to take one or more of the actions described in Section 10.2 hereof. Section 8.2. Source of Grant Funds Limited. (a) The Economic Development Grants shall be payable from and secured solely and only by amounts deposited and held in the ALPLA OF IOWA, INC. - Alpla TIF Account of the City. The City hereby covenants and agrees to maintain the Ordinance in force during the term hereof and to apply the incremental taxes collected in respect of the Minimum Improvements and allocated to the ALPLA OF IOWA, INC. - Alpla TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 8.1 hereof. The Economic -13- Development Grants shall not be payable in any manner by other tax increment revenues or by general taxation or from any other City funds. (b) Notwithstanding the provisions of Section 8.1 hereof, the City shall have no obligation to make an Economic Development Grant to the Developer if at any time during the term hereof the City receives an opinion of its legal counsel to the effect that the use of Tax Increments resulting from the Minimum Improvements to fund an Economic Development Grant to the Developer, as contemplated under said Section 8.1, is not authorized or otherwise an appropriate project activity permitted to be undertaken by the City under the Urban Renewal Act or other applicable provisions of the Code, as then constituted, or under a controlling decision of an Iowa court having jurisdiction over the subject matter hereof. Upon receipt of such an opinion, the City shall promptly forward a copy of the same to the Developer. If the circumstances or legal constraints giving rise to the opinion continue for a period during which two (2) Economic Development Grants would otherwise have been paid to the Developer under the terms of Section 8.1, the City may terminate this Agreement, without penalty or other liability to the Developer, by written notice to the Developer. (c) The City makes no representation with respect to the amounts that may finally be paid to the Developer as the Economic Development Grants, and under no circumstances shall the City in any manner be liable to the Developer so long as the City timely applies the Tax Increments actually collected and held in the ALPLA OF IOWA INC. - Alpla T1F Account (regardless of the amounts thereof) to the payment of the Economic Development Grants to the Developer, as and to the extent described in this Article. Section 8.3. Use of Other Tax Increment.q Subject to this Article VIII, the City shall be free to use any and all Tax Increments collected in respect of increases in valuation on the Development Property unrelated to construction of the Minimum Improvements (i.e. increases in assessed or actual value due to market factors) any other properties within the Project Area, or any available Tax Increments resulting from the suspension or termination of the Economic Development Grants under Section 8.1 hereof, for any purpose for which the Tax Increments may lawfully be used pursuant to the provisions of the Urban Renewal Act, and the City shall have no obligations to the Developer with respect to the use thereof. - 14- ARTICLE IX. INDEMNIFICATION Section 9.1. Release and Indemnification Covenants. (a) The Developer releases the City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Article IX, the "indemnified parties") from, 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. Co) Except for any willful misrepresentation or any willful or wanton misconduct or any unlawful act of the indemnified parties, the Developer agrees to protect and defend the indemnified parties, now or forever, and further agree 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 (i) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by the Developer against the City to enforce his rights under this Agreement), (ii) the acquisition and condition of the Development Property and the construction, installation, ownership, and operation of the Minimum Improvements or (iii) any hazardous substance or environmental contamination located in or on the Development Property relating to conditions caused by Developer after the effective date of this Agreement. (c) The indemnified parties shall not be liable for any damage or injury to the persons or property of the Developer or its officers, agents, servants or employees or any other person who may be 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. (d) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City, and not of any governing body member, officer, agent, servant or employee of the City in the individual capacity thereof. (e) The provisions of this Article IX shall survive the termination of this Agreement. -15- ARTICLE X. DEFAULT AND REMEDIES Section 10.1. 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: (a) Failure by the Developer to cause the construction of the Minimum Improvements to be commenced and completed pursuant to the terms, conditions and limitations of Article III of this Agreement; (b) Transfer of any interest in this Agreement or the assets of the Developer in violation of the provisions of Article VII of this Agreement; (c) Failure by the Developer to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; (d) The holder of any Mortgage on the Development Property, or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable Mortgage documents; (e) The Developer shall: (A) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or due; or (B) make an assignment for the benefit of its creditors; or (C) admit in writing its inability to pay its debts generally as they become (D) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of the Developer as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of the Developer or the Minimum Improvements, or part thereof, shall be appointed in any proceedings brought -16- against the Developer, and shall not be discharged within ninety (90) days after such appointment, or if the Developer shall consent to or acquiesce in such appointment; or (f) Any representation or warranty made by the Developer in this Agreement, or made by the Developer in any written statement or certificate furnished by the Developer pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. Section 10.2. Remedies on Default. Whenever any Event of Default referred to in Section 10.1 of this Agreement occurs and is continuing, the City, as specified below, may take any one or more of the following actions after (except in the c~se of an Event of Default under subsections (d) or (e) of said Section 10.1 in which case action may be taken immediately) the giving of thirty (30) days' written notice by the City to the Developer and the holder of the First Mortgage (but only to the extent the City has been informed in writing of the existence of a First Mortgage and been provided with the address of the holder thereof) of the Event of Default, but only if the Event of Default has not been cured within said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days and the Developer does not provide assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible: (a) The City may suspend its performance under this Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under this Agreement; (b) The City may terminate this Agreement; (c) The City may withhold the Certificate of Completion; (d) The City may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of the Developer, as the case may be, under this Agreement; or (e) The City shall be entitled to recover from the Developer, and the Developer shall re-pay to the City, an mount equal to the most recent Economic Development Grant previously made to the Developer under Article VIII hereof, and the City may take any action, including any legal action it deems necessary, to recover such amount from the Developer. -17- Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every 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 exemise 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 exemised from time to time and as often as may be deemed expedient. Section 10.4. 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. Section 10.5. Agreement to Pay Attorneys' Fees and Expenses. Whenever any Event of Default occurs and the party who is not in default shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the party in default herein contained, the party in default agrees that it shall, on demand therefor, pay to the part not in default the reasonable fees of such attorneys and such other expenses as may be reasonably and appropriately incurred by the party not in default in connection therewith. ARTICLE XI. OPTION TO TERMINATE AGREEMENT Section 11.1. Option to Terminate. This Agreement may be terminated by the Developer if (i) the Developer is in compliance with all material terms of this Agreement and no Event of Default has occurred which has not been cured in accordance with the provisions of Section 10.2 hereof; and (ii) the City fails to comply with any material term of this Agreement, and, after written notice by the Developer of such failure, the City has failed to cure such noncompliance within ninety (90) days of receipt of such notice, or, if such noncompliance cannot reasonably be cured by the City within ninety (90) days of receipt of such notice, the City has not provided assurances reasonably satisfactory to the Developer that such noncompliance will be cured as soon as reasonably possible. Section 11.2. Effect of Termination. If this Agreement is terminated pursuant to this Article XI, this Agreement shall be from such date forward null and void and of no -18- further effect; provided, however, that the City's fights to indemnification under Article IX hereof shall in all events survive and provided further that the termination of this Agreement shall not affect the rights of any party to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by another party, or to recover amounts which had accrued and become due and payable as of the date of such termination. In any such action, the prevailing party shall be entitled to recover its reasonable attorneys fees and related expenses incurred in connection therewith (but only, in the case of the City, to the extent permitted by applicable law). Upon termination of this Agreement pursuant to this Article XI, the Developer shall be free to proceed with the construction and operation of the Minimum Improvements at its own expense and without regard to the provisions of this Agreement. ARTICLE XII. MISCELLANEOUS Section 12.1. Conflict of Interest. The Developer represents and warrants that, to its best knowledge and belief after due inquiry, no officer or employee of the City, or its designees or agents, nor any consultant or member of the governing body of the City, and no other public official of the 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, has had or shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work or services to be performed in connection with the Project, or in any activity, or benefit therefrom, which is part of the Project at any time during or after such person's tenure. Section 12.2. Notices and Demands. A notice, demand or other communication under this Agreement by any pan'y to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and (a) In the case of the Developer, is addressed or delivered personally to the Developer at 2258 Heinz Road, Iowa City, Iowa 52240. (b) In the case of the City, is addressed to or delivered personally to the City at Civic Center, 410 E. Washington Street, Iowa City, Iowa, 52240, Attn: City Manager; -19- or to such other designated individual or to such other address as any party shall have furnished to the other in writing in accordance herewith. Section 12.3. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.4. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 12.5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Iowa. Section 12.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire agreement between the parties regarding the subject matter hereof, and supersedes and replaces all prior agreements, negotiations or discussions, whether oral or written. This Agreement may not be amended except by a subsequent writing signed by all parties hereto. Section 12.7. Successors and Assigns. This Agreement is intended to and shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Section 12.8. Termination Date. This Agreement shall terminate and be of no further force or effect on and after December 31, 2010. IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk, the Developer has caused this Agreement to be duly executed in its name and behalf by Alpla of Iowa, Inc. (SEAL) ATTEST: CITY OF IO~A CITY, IOWA Mayor City~lerk - 20 - ATTEST: By: ALPLA OF IOWA, INC. · .(title) STATE OF IOWA ) ) SS coum ov, v. ) On this 3~ed- day of .,~. ~'. [ ,2003, before me a Notary Public in and for said County, personally appeared Ernest W. Lehman and Marian Karr to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City of Iowa City, 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 instrmnent 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. ~ Commissio~ Nu bet 1757S3 Notary PU~bt~ in and for Johnson County, Iowa -21 - STATE OF _~_OID~' ) ) SS COUNTY OF ) On this ~'~3-~day of ~,~ t. ., 2003, before me the undersigned, a Notary Public in and for said County, in said State, personally appeared I(~v g,z~,,~ and g~e,~ ~to..~,~ , to me personally known, who, being by me duly sworn, did say that they are the ~-~o~- V? and ~er..%,.~ ~.*-~-~'~- of Alpla of Iowa, Inc. and that said instrument was signed on behalf of said corporation; and that the said l('~,~'r ~-.~t-,~,t~ and ~ ~o,...*~ , as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by them voluntarily executed. I I I Not Pu li?'m s ary b 'c' and for ~t,mqffexe~ County and State - 22 - EXHIBIT A DEVELOPMENT PROPERTY The Development Property is described as consisting of all that certain parcel or parcels of land located in the City of Iowa City, County of Johnson, State of Iowa, more particularly described as follows: LEGAL DESCRIPTION Lots 2 and 3, BDI 5th Addition, Section 24, Township 79N, Range 6W, Johnson County, Iowa. A-1 EXHIBIT B MINIMUM IMPROVEMENTS The Developer agrees to complete Minimum Improvements generally consisting of improvements to the existing 56,000 square foot Alpla Plant through the construction of additional manufacturing, warehousing or distribution space totaling approximately 86,000 square feet for industrial uses on the Development Property, all as more fully described on Exhibit B hereto. The construction of the Minimum Improvements must increase the actual assessed value of the Development Property by at least 15% over the actual assessed value on January 1, 2003. B-1 EXHIBIT C CERTIFICATE OF COMPLETION WHEREAS, the City of Iowa City, Iowa (the "City") and ALPLA OF IOWA, INC., having an office for the transaction of business at 2258 Heinz Road, Iowa City, Iowa (the "Developer"), did on or about the O/t,-' day of ~ ,2003, make, execute and deliver, each to the other, an Agreement for Private Redevelopment (the "Agreement"), wherein and whereby the Developer agreed, in accordance with the terms of the Agreement, to develop and maintain certain real property located within the City and as more particularly described as follows: LEGAL DESCRIPTION Lots 2 and 3, BDI 5th Addition, Section 24, Township 79N, Range 6W, Johnson County, Iowa. WHEREAS, the Agreement incorporated and contained certain covenants and restrictions with respect to the development of the Development Property, and obligated the Developer to construct certain Minimum Improvements (as defined therein) in accordance with the Agreement; and WHEREAS, the Developer has to the present date performed said covenants and conditions insofar as they relate to the construction of said Minimum Improvements in a manner deemed by the City to be in conformance with the approved building plans to permit the execution and recording of this certification. NOW, THEREFORE, pursuant to Section 3.2 of the Agreement, this is to certify that all covenants and conditions of the Agreement with respect to the obligations of the Developer, and its successors and assigns, to construct the Minimum Improvements on the Development Property have been completed and performed by the Developer and are hereby released absolutely and forever terminated insofar as they apply to the land described herein. The County Recorder of Johnson County is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the covenants and conditions of said Agreement with respect to the construction of the Minimum Improvements on the Development Property. C-1 All other provisions of the Agreement shall otherwise remain in full force and effect until termination as provided therein. (SEAL) CITY OF IOWA CITY, IOWA By: Mayor ATTEST: By: City Clerk C-2 STATE OF IOWA ) ) SS COUNTY OF JOHNSON ) On this day of ,2003, before me a Notary Public in and for said County, personally appeared Ernest W. Lehman and Marian Karr, to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City of Iowa City, 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 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 Johnson County, Iowa C-3 WHEREAS, it is desirable that properties within the as part of the overall redevelopment area covered by said Plan; WHEREAS, the City has received a "Developbr"), in the form of a "Agreement") by and between the City and other things, the Developer would agree to construct defined in the Agreement) on certain real property Renewal Project Area as legally described in the A herein by this reference (defined in the Agreement consisting of the Square Foot freestanding building and the 86,000 Square Feet for industrial uses on the Improvements must result in an increase in Property of at least fifteen (15) percent as Development Grant is received,.together Development Property, as Inc. (the which, among Minimum Improvements (as the Heinz Road Urban hereto and incorporated "Development Property"), additions to an existing 56,000 ~f new space of approximately said Minimum assessed value of the Development first year for which an Economic ' new construction located on the proposed Development Agreement; and WHEREAS. $35,000 to Developer for and tax rebates described herein Completion and being and assume an obligation to make Developer commencing on one hundred percent (100%) with res terms and followin~ / WHEREAS, Iow~Code Chapters 15A and 4£ authorize cities to makejoans and grants for economic objectives of an urban r'enewal project and expenditures as may t~ necessary to carry out the taxes and assessmen~ for such purposes; and / WHEREAS1 the Council has determined that the A of the City and t~ residents thereof and that the performance obligations ther~¢under is a public undertaking and purpose and and the Urban:Renewal Law and, further, that the Agreement thereunder is/in furtherance of appropriate economic development objectives 0~f the City within the meaning of Chapters 403 and / / proposes that the City agrees to provide of infrastructure no later than May 1, 2003, ect.~.o the Developer having received a Certificate of ~Qmpliance with the terms of the Agreement, to five (5}~onsecutive annual payments to the 1, 2006 and~qnding on June 1, 2010, equal in amounts to fiscal year of't~ Tax Increments collected by the City on Development Property, under the forth in the Agreement; and and furtherance of the funds and make such and to levy the best interests · of its Plan City's performance ~ode: ~RELI~iNARY I Subject to ,q,~;~prova I By THE CITY OF IOWA AGREEMENT FOR PRIVATE REDEVELOPMENT THIS X'GREEMENT FOR PRIVATE REDEVELOPMENT (hereinafter called "Agreement"), is~made on or as of the __ day of__, 2003, by and among the CI/~X~ OF IOWA CITY, IOWA, a municipality (hereinafter called "City"), established pursuant h~.the Code of Iowa of the State of Iowa and acting under the authorization of Chapter403 of the Code of Iowa, 2001, as ame~l~d (hereinafter called "Urban Renewal Act") an'dxAlpla of Iowa, Inc., having an office/for the transaction of business at 2258 Heinz Roa~Iowa City, Iowa 52240 (the "DTeloper"). WITNESSETH: ~ WHEREAS, has undertaken a City and, in this connection, ' an area known as the Heinz Road the Urban Renewal Plan approved for dated May 21, 2002; and objectives of the Urban Renewal Act, the City of an eg~nomic development area in the ~n carrying Ob{ urban renewal project activities in Renewal P!fin Area, which area is described in ~ area b~ 'Resolution No. 02-195 WHEREAS, a copy of the foregoing among the land records in the office of the al Plan has been recorded ohnson County, Iowa; and WHEREAS, the Developer owns located in the foregoing Urban Renewal annexed hereto and made a part hereof referred to as the "Development Prope~7~y"); and WHEREAS, the Developer w~il cause certain ' occupy certain real property ' described in Exhibit A so described is hereinafter constructed on accordance with this the Development Property and will ~ause the same to Agreement; and / / \ WHEREAS, the City believes that the development and con}~ued operation of the Development Property pursuan~to this Agreement and the fulfillment generally of this Agreement, are in the vital ancO/best interests of the City and in accord with the public purposes and provisions of tl~ applicable State and local laws and requirements under which the foregoing project?as been undertaken and is being assisted. -1- 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: ARTICLE I. DEFINITIONS Agreement followin from time 1.1. Definitions. In addition to other definitions s~et forth in this capitalized terms used and not otherwise defied herein shall have the unless a different meaning clearly app~s from the context: / all appendif/es hereto, as the same may be Certificate of I attached hereto as Exhibit Developer pursuant to Ci_ty means the Cit) , made a' k2 of this A ity, Iowa, n the form of the certificate of this Agreement, provided to the successor to its functions. Code means tmended. Construction Plans means the plans, reflecting the construction work to be Property and the other properties upon the Construction Plans shall related document. applicable City codes. /o/hn County means the County of son, Iowa. Developer means Alpla of I6wa, Inc., a corporation. Development Property me .~s that portion of the Heinz Road [Jrban Renewal Plan Area of the City described in E~hibit A hereto. Economic Development Qrants mean the Tax Increment payments to be made by the City to the Developer und, pr Article VIII of this Agreement. / / -2- drawings and related documents ~ the Developer on the Development Public Improvements will be located; specifications, drawings and g inspector of the City as required by Event of Default means any of the events described in Section Agreement. of this First Mortgage means any Mortgage granted to secure eithYq a mortgage commitment obtained by other financial institution to fund any portion operating capital requirements of the Minimum appropriate. lender or costs and initial or all such Mortgages as OF IOWA, INC. - Alpla TIF Heinz Road shall all Tax Increments received b' Improvements. a separate account within the of the City, in which there with respect to the Minimum existing structure related site improvements not include increases in of improvements to the g, together with all hereto. Minimum Improvements shall due to market factors. Mortgage granted a mortgage or other security or parcel thereof, or any improvements co Net Proceeds means any proceeds,Paid by or policies of insurance required to be provided case may be, pursuant to Article V of this expenses (including fees and disbursements of counsel proceeds. the Developer has in the Development Property, or any portion to the Developer under a policy y the Developer, as the · ' after deducting all collection of such Ordinance mean Ordinance No. 02-195 of the City, the taxable property in the Project Area shall be divided and a City Urban Renewal Tax Increment Revenue Fund. taxes levied on into the Iowa Project shall mean the construction and operation of the Minimum Improvements on the Development Property, at described in this Agreement. State means the State ~of Iowa. -3- Heinz Road Urban Renewal Tax Increment Fund means the special fund of the City ,'d under the authority of Section 403.19(2) of the Code and the Ordinance, which s created in order to pay the principal of and interest on loans, monies advanced whether funded, refunded, assumed or otherwise, including bonds or other obli authority of Section 403.9 or 403.12 of the Code, incurred ~'ity to finance or refinance in whole or in part projects undertaken pursuant to the Renewal Plan for the Project Area. Tax Increments Improvements that Road Urban Renewal Tax 403.19 of the Code and the property tax revenues with respect to the Minimum and made available to the City for deposit in the Heinz Fund under the provisions of Section Termination Date means the Section 12.8 of this Agreement. Agreement, as established in Unavoidable Delays means reasonable control of the party claiming the floods, fires, explosions or other casualty boycotts, lockouts or other labor disputes, or equipment, litigation commenced by third local governmental unit (other than the City). from acts or occurrences outside the including but not limited to storms, weather conditions, strikes, of material the acts of any federal, State or Urban Renewal Plan means the Urban Renewal Plan. approved in respect of the Heinz Road Urban Renewal Area, described in th'"6'xp~xexambles hereof. ARTICLE II. REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties of the Ci _ty. The City mak& the following representations and warranties: (a) The City is a ~ ?unicipal corporation and political subdivision organized under the provisions of the Cons itution and the laws of the State and has the power to enter into this Agreement and carr 6ut its obligations hereunder. (b) The executio a and delivery of this Agreement, the consummation of the transactions contemplate · hereby, and the fulfillment of or compliance with the terms and -4- conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a breach of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which City is now a party or by which it is bound, nor do they constitute a , of the foregoing. Section 2.2. Covenants. the following representations of Developer. (a) of the State conducted, is a corporation duly organized and has all requisite power ~ , on its business as now and perform its obli as existing under the laws to own and operate its the Agreement. (b) This A been duly by the Developer and, due in full force and effect ; a valid and enforceable in accordance ~ h its bankruptcy, insolvency, rights generally. authorized, executed and delivered execution and delivery by the City, is instrument of the Developer as the same may be limited by relating to or affecting creditors' (c) The execution and transactions contemplated conditions of this Agreement are not a violation or breach of, the terms, incorporation and bylaws restriction, evidence of indebtedness, which the Developer is now a party or by of this Agreement, the consummation of the fulfillment of or compliance with the terms and by, limited by, in conflict with, or result in or provisions of the certificate of or subsidiaries of any contractual : instrument of whatever nature to its property is bound, nor do they constitute a default under any of the foregoing. (d) There are no actions, suits or affecting the Developer in any court or before any arbitrato~ governmental body in which there is a reasonable possibility could materially adversely affect the business (present or or results of operations of the Developer or which in any manner ra affecting the validity of the Agreement or the Developer's ability to obligations under this Agreement. or threatened against or any decision which financial position -5- (e) Developer has not received any notice form any local, State for federal official that the activities of Developer with respect to the Development Property may or will be in violation of any environmental law or regulation (other than those notices, if 'which the City has previously been notified in writing). Developer is not currently awan violati applicable which would statute State or federal claim filed or planned to be filed' relating to any local, State or or review procedure Development Property, and Developer currently aware of any State or federal environmental 1, or review procedure ~ person a valid claim under (f) with parking, trash removal or safety construction and G Minimum ' in resolution of any traffic, may arise in connection with the (g) Developer would the payment by the City Developer pursuant to this Agreement. obligations under this Agreement without g made to the (h) The Developer will. accordance with the terms Urban Renewal Plan and all local variances that may be necessary t. be constructed in constructed will comply with the laws and regulations, except for (i) The Develc timely manner, all required i manner, all requirements of, which must be ARTICLE III. Section 3.1. se its best efforts to o~in, or cause to be obtained, in a ;s, licenses and approvalbx, and will meet, in a timely applicable local, State, _and. fe~ral laws and regulations :in connection with the Project. ~ AND OCCUPANCY REQUIREMENT The D to complete Minimum Improvements generally consisting of improvements to the ¢ 56,000 square foot Alpla Plant through the construction of warehousing or distribution space totaling approximately 86,000 sq industrial uses on the Development Property, all as more fully ~ hereto. The construction of the Minimum Improvements must -6- increase the actual assessed value of the Development Property by at least 15% over the actual assessed value on January 1, 2003. Section 3.2. Certificate of Completion. Comlc covenants written request of the Developer after ' Improvements, or any discreet portion a Certificate of Completion for such : forth in Exhibit C attached be a conclusive determination of s Agreement with r such portion of the occupancy permit for the ' will furnish the recordable form, in Such Certificate of r termination of the ations of the Improvements· A deeds and sole expense. If the Cit~ accordance with the after written request to indicating with adequate detail Minimum Improvements otherwise in default under the terms c necessary in the opinion of the City. ' be recorded: refuse or fail · ' of this Sec ~ for the recordation of at the Developer's provide a Certificate of Completion in 3.2, the City shall within twenty (20) days Developer with a written statement Developer has failed to complete the with the provisions of this Agreement, or is is Agreement, and what measures or acts will be Certificate of Completion. [CLE IV. Section 5.1. (a) Upon times prior to the Termin maintained, at its cost furnish proof of the of th~ Date, the Developer shall maintain. (and from time to time at the premiums on) insurance as follows: at all City shall (i) against loss and/or damage to the Minimum Improvements under a policy or 1~ covering such risks as are ordinarily insured through property policies against by similar businesses, including (without limitation the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion, water -7- damage, demolition cost, debris removal, and collapse in an insurable replacement value of the have a deductible amount of not more than $250,000. No written that the proceeds thereof will produce less than sentence, by reason of co-insurance nt thereto in writing by the City. The shall actual replacement cost ~ and costs of~ equipment, and shall request of the City, not consultant or paid for by t Ihe full such policy may · of insurance shall be so coverage required · ' or otherwise, without the insurable replacement value" Improvements (excluding ~, pipes, drains and other from time to time at the years, by an insurance approved by the City· (ii) injury liability for injuries to from the operation Development Property, in $1,000,000. general ions liability insurance, including personal including any injuries resulting or about the each occurrence and for each year of (iii) Such respecting all employees of the like organizations engaged in like provided that liability for worker's in worker's compensation insurance amount as is customarily carded by liability exposure; to all or any part of its (b) All' Termination Date shall be selected by risks covered thereby. policies evidencing all such respective insurers stating t provided in this Article V cancel or modify thirty (30) days before fifteen (15) days prior to~ evidence satisfactory to poll% under the terms hereof. policy, or blanket 'this Article V to be prior to the out and maintained in le insurance companies authorized under the laws, State to assume the copies of or a certificate or certificates o)'binders of the ~nsurance is in force and effect. Unless otherwise shall contain a provision that the insurer shall not giving written notice to the Developer and the City at least cancellation or modification becomes effective. Not less than of any policy, the Developer shall furnish the City ' that the policy has been renewed or replaced by another provisions of this Article V, or that there is no necessity therefor In lieu of separate policies, the Developer may maintain a single policies, or a combination thereof, which provide the total coverage required herein, in which event the Developer shall deposit with the City a -8- certificate or certificates of the respective insurers as tc upon the Minimum Improvements. lc) shall be reconstruct to the Developer will b) The Developer agrees to notify the City $250,000 in amount to, or destruction of, the from fire or other casualty. directly to the Developer, restore the Minimum Improvements existed prior to the ~ to accomlc the Net Proceeds of any ' payment or reimbursement (d) The shall complete Minimum Improvements or Developer for such purposes sufficient. s in force the case of damage such insurance ' the same or an causing such damage and, restoration, the such damage received reconstruction and restoration of the , the ARTICLE VI. OF THE DEVELOPER Section 6.1. and keep its properties (' limited and tear accepted, and from time to renewals and additions. will The Developer will maintain, preserve or a leasehold interest), including but not lair and working order, ordinary wear all necessary repairs, replacements, Section 6.2. books of record and account in dealings and transactions of or: accordance with throughout the Maintenance, Records. > at all times proper tree entries will be made of all relation to the flairs of the Developer in applied and the Developer will' protection books of record and account. against loss or damage to Section 6.3. rules and regulations regulations the failure to c therefrom, with Laws. The Developer will comp~with all laws, to the Minimum Improvements, other than~aws, rules and with which or the sanctions and penaltieg'resulting a material adverse effect on the business, property, operations, >therwise, of the Developer. -9- Section 6.4. Non-Discrimination. In operating the Minimum Improvements, the Developer shall not discriminate against any applicant, employee or tenant because of race, creed, color, religion, sex, national origin, sexual orientation, age, disability, marital ' gender identity. The Developer shall ensure that applicants, employees and tenants ~ considered and are treated without regard to creed, color, religion, sex, ' ' sexual orientation, age, disability, or gender identity. Section 6.5. signing of the A at Termination Date set the Termination date the Employment Units Operation the Developer agrees ~ and will continue 12.8 oper will the equivalent of employment of, day, forty (40) hour workweek operate a manufacturing plant of this business until at least the From the date of this Agreement until a minimum of 35 Full Time A Full Time Employment Unit means for eight (8) hours per day for a five (5) weeks per year. Section 6.6. Annual Certification. performance of the annually provide to the City: (a) amount of Tax Increments (as defin Minimum Improvements (excluding factors) for the following fiscal Development Property have been such officer has re-examined the date of such certificate, and not, or was not, in default in Agreement (including but not i hereto) and that no Event of I of notice, or both, the date of such certificate ( default, event or Event ~ thereof, its period taken with later than November 1 November 1, November 1, 2004, in monitoring and authorized officer of the Developer shall : from the County Auditor showing the Section )f this Agreement) in respect of the value due to market (b) proof that d for the prior fiscal and twelve (12) of any of the terms or event which, with the lapse an Event of Default) is >eriod, or if the signer is aware said officer shall disclose in such~ and what action, if any, has been taken or is Such statement, proof and certificate shall be :s on the and (c) certification that that at the the Developer is conditions of this 3.3 or the giving of any such the nature be not ~.ach year, commencing November 1, 2004, and ending on inclusive. Upon certification by the Developer on or before will certify to establish a base value as of January 1, 2003. -10- ARTICLE VII. ASSIGNMENT AND TRANSFER Section 7.1. Status of the Developer; Transfer of Substantially All Assets. As for the obligations of the Developer under this Agreement, the Developer and agrees that, prior to the issuance of the Certificate of Completion and prior to Date, the Developer will maintain existence as an adequately ca and will not wind up or otherwise dispose of all substantially all of the and Minimum Improvements, or assign its interest in this other party unless (i) the transferee partnership, corporation, limited liabilit, individual assumes in writing all of the obligations of the Developer under this A and (ii) the City consents,thereto in writing in advance thereof. Notwithstanding the however, or a~ other provisions of this Agreement, (a) Developer may transfer and to th~s Agreement to any affiliate which is controlled by acquires all or substantially all successor to Developer by consoli may (1) pledge and any/or all of its as Improvements; (2) assign its rights assignment shall not agrees that Developer may assign its (3) the Developer may transfer its arrangement whereby Developer v to satisfy the requirements ARTICLE VIII. .gontrols, Developer to any entity that Developer or to any corporate or otherwise, and (b) the Developer security for any financing of the Minimum Agreement to a third party, provided such s obligations hereunder, and the City Lgreement for such purpose; and a third-party under an ~ ~~P~iPlr tYRAb~C~[ iand cOntinue Agreement and subject' commence on June 1, 2t including the $35. shall be equal to one collected by the City Section 8.1. Economic (a) For and in cor~deration of the obligations being assumed Developer hereunder, and in fur~rance of the goals and objectives of the wal Plan for the Project Area and th~ Urban Renewal Act, the City agrees ~ant in the amount of $35,000 to De,loper for the constmcti ater than June 15, 2003. In addition th~xxCity will make up to five annual Developer, subject to the Dev.eloper h~t_vin_g i~ceived a Certificate and being and remaining in compliance with the terms of this . the terms of this Article VIII. The annual grants shall and end on June 1, 2010, or when the total of all grants, grant and all annual grants total $510,000. All annual grants percent (100%) per fiscal year of the Tax Increments the Minimum Improvements on Development Property pursuant to Section 403.9 of the Urban Renewal Act under the terms of the -11- Ordinance (without regard to any averaging that may otherwise be utilized 403.1 , and excluding any interest that may accrue thereon prior during the preceding twelve-month period in respect ~. Minimum Improvements, but subject to adj this Article (such "Economic ). ~the , as the (b) The obli Developer in any year as: timely filing by the required under Section with the November 1, 2003 certification is timely the City Manager approves of the December 1 of that year its request assessments imposed by the County as City as taxes are paid during the followin disbursed to the Developer on June 1 Developer and the City each so certify on respectively, the first Economic June 1, 2006). of the City to make an above shall be subject of all previous the City Manag the City to the conditioned upon the proofs and certifications approval thereof. Beginning annual statement, proof and Section 6.6 and ' to the County prior to Tax Increments resulting from the 1 of that year, to be collected by the and which shall thereafter be fiscal year. (For example, if the 2003 and 2004, be paid to the Developer on (c) In the event that the delivered by the Developer under of any year, to review and approve the same and that, as a result, no respect thereof. The consider any late obligated to make make any corresponding if, in the reasonable (which may include regular City its late filing. In the, certificate due to an Grant statement, and agrees that ~ its request Grant may good faith to a part of the Developer, but the County for the Economic Development Grant City, it is not able to ~or certificate required to be ~ November 1 may have insufficient time the County to the Developer in ~ review and not be specific discussion before the Cie at a with respect thereto) to the Developer's certification : to to timely file an annual ' and, as a result, and Economic Development ~pcr may give written notice to the City and, if the City finds that Developer's failure is due to an Unavoidable Delay, the missed Economic Development Grant shall be made in the year succeeding the last scheduled Economic - 12- Development Grant under Section 8.1, subject to Developer's filing under Section 6.6 and all other provisions of this Article VIII with respect to such a the intention of the parties to allow five (5) annual Economic Development if Developer is in compliance with this Agreement. (d) $35. imposed 2004, and on all The final that exceeding $510,000. The total, aggregate amount Agreement shall not exceed $510,C Economic Development Grant shall Tax Increments collected per fiscal' and of each of the followin :velopment Grants equal adjusted, total, aggregate termination in accordance ~a the terms Thereafter, the taxes levied. shall be divided and applied Ordinance. It is recognized by all is a maximum amount only and that the Minimum Improvements been determined by the City Asse Except the initial grant of aal to one hundred percent ~pect of the assessments as of January 1, years, until the total, aggregate of than the sum of $510,000. 100% of Tax Increments for Development Grants in an amount Grants shall at all times be subject to and Article X. , and Minimum Improvements with the Urban Renewal Act and the total aggregate amount set fourth above amounts will be determined after t and the valuations of said Improvements have (e) In the event that other information available to Event of Default that was not Section 10.2 (or an event 1 become an Event Section 10.2), the Cie the Developer in respect one or more ' the Developer under Section 6.6 or 'discloses the or prior occurrence of an cured under the provisions of with the passage of time or of notice, or both, would y the provisions of no obligation thereafter to mak, ' further payments to the Economic Development Grants and to take described in Section 10.2 hereof. Section 8.2. Grants shall be in the ALPLA ( covenants and agrees apply the incremental of Grant Funds Limited. (a) The Economic Development and secured solely and only by amounts deposited and held 1NC. Jla TIF Account of the City. The City hereby maintain the Ordinance in force during the term hereof and to collected in respect of the Minimum Improvements and allocated to the ALPLA OF IOWA, 1NC. - Alpla TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 8.1 hereof. The Economic -13- Development Grants shall not be payable in any manner by other or by general taxation or from any other City funds. (b) Notwithstanding the provisions of Section 8. obll~tion to make an Economic Development Grant to duringXtxhe term hereof the City receives an opinio the use o'fxTax Increments resulting from the Mini Economic D, evelopment Grant to the Developer, a authonXz~d or otherwise an appropriate is not b3 the Urban Renewal Act or then c the subj Upon receipt forward a copy of the to giving rise to the a Section 8.1, the City may the Developer, by written notice to increment revenues , the City shall have no Developer if at any time :ounsel to the effect that an )lated under said Section 8.1, )ermitted to be undertaken provisions of the Code, as t of an Iowa court having jurisdiction over an opinion, the City shall promptly If the circumstances or legal constraints which two (2) Economic paid to the Developer under the terms of ~greement, without penalty or other liability to (c) The City makes be paid to the Developer as the circumstances shall the City ' timely apt 1NC. - Alpla TIF Account Economic Development Article. Section 8.3. Use shall be free to use any valuation Developer, with respect to the amounts that may finally Grants, and under no to the Developer so long as the City and held in the ALPLA OF IOWA~ thereof) to the payment of the ~nd to the extent described in this Tax Increments Property unrelated this Article VIII, the City of increases in of the Minimum Improvements ( properties within suspension or for any purpose for provisions of the I ~n assessed or actual value due to ect Area, or any of the Economic Development Grants ch the Tax Increments may lawfully be used Renewal Act, and the City shall have no obli the use thereof. factors) any other from the ection 8.1 hereof, to the - 14- ARTICLE IX. INDEMNIFICATION Section 9.1. Release and Indemnification Covenants. (a) The Developer releases the City and the servants and employees thereof (hereinafter, for ) from, covenants and agrees that the: agrees to indemnify, defend and hold against, ,ss or damage to property or any injury to at or ab from any defect in the ' members, officers, of this Article IX, the parties shall not the indemnified parties ~f any person occurring (b) any willful mi or any unlawful act indemnified the indemnified parties, r forever, harmless, from any claim, suit, action person or entity whatsoever ' ' agreement or condition of this A or other proceeding brought by the Devel this Agreement), (ii) the acquisition and construction, (iii) any hazardous substance or Development Property relating to of this Agreement. willful or wanton misconduct to protect and defend agree to hold the indemnified parties other gs whatsoever by any (,i) any violation of any suit, action, demand City to enforce his rights under of the Development Property and the of the Minimum Improvements or located in or on the caused the effective date (c) The indemnified persons or property of the other person who may be about of any person, other than or its officers, agents, liable or its officers, agents, the part of an, r employees. or injury to the or employees or any 'act of negligence party (d) All covenants, contained herein shall be and obligations of the ~ servant or s, promises, agreements and obligations of the City be the covenants, stipulations, promises, agreements ~nd not of any governing body member, officer, agent, in the individual capacity thereof. (e) The prow~ A Article IX shall survive the termination of this -15- ARTICLE X. DEFAULT AND REMEDIES Section 10.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" s.hall mean, whenever it is use/d in this Agreement, any one or more Failure by the Developer to cause to be 'Article III of this Agreement; (b) violation of the r of any interest in VII of this (c) Failure condition, obligation or a Agreement; on its (d) The holder of am improvements thereon, or result of any default under the (e) The Developer shall: (A) composition, readjustment, States Bankruptcy Act of 197: of the Minimum terms, conditions and or the assets of the Developer in ; due; or ' observe or perform any covenant, observed or performed under this Development Property, or any commences foreclosure proceedings as a documents; in bankruptcy dissolution, or amended, any reorganization, arrangement, United , or (B) make an for the benefit of its or (C) admit eqriting its inability to pay its debts become (D) udicated a bankrupt or insolvent; or if a petition answer proposing the Developer as a bankrupt or its ~ under any present or future [ bankruptcy act or any similar federal or state law be filed in any court and such or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of the Developer or the Minimum Improvements, or part thereof, shall be appointed in any proceedings brought -16- against the Developer, and shall not be discharged within ninety (90) days after such appointment, or if the Developer shall consent to or acquiesce in such appointment; or (f) Any representation or warranty made by the Devele made by the Developer in any written statement or certificate pursuant to ~ Agreement, shall prove to have in any materiaI'~pect on or as of the date of the issuance Section 10.2. Re~mqdies on Default. Section 10.1 of this Agree~qnt occurs and is continuin may take any one or more : following actions Default under subsections of said Section taken immediately) the. Developer and the holder of th, informed in writing of the existence address of the holder thereof) of the not been cured within said thirty (30) be cured within thirty (30) days and the reasonably satisfactory to the City that the reasonably possible: this Agreement, or by the Developer ~lete or misleading thereofi in as specified below, in the case of an Event of in which case action may be the City to the only to the extent the City has been and been provided with the but only if the Event of Default has Event of Default cannot reasonably ~er does not provide assurances : of Default will be cured as soon as (a) The receives assurances from the Develc will cure its default and continue its deemed ade¢ under this Agreement until it the City, that the Developer Agreement; (b) The City may A (c) The 'withhold the Certificate ~letion; (d) The City administrative action. and observance of any may be, under (e) Developer shall Development Grant City may take any take any action, including le or desirable to or covenant of the or uitable or as the case · shall be entitled to recover from the Developer, and the the City, an amount equal to the most recent Economic y made to the Developer under Article VIII hereof, and the :ion, including any legal action it deems necessary, to recover such amount from the Developer. -17- Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and ' shall be cumulative and shall be in remedy No right and power expedient. Dr hereafter existing at law or ~ statute. to exercise any right or power ' default shall ~ower or shall be construed to thereof, but any such ~ be exercised from time to time and,as c as may be deemed Section 10.4. No Agreement should be such waiver shall be waive any other concurrent. Waiver. In the event any party and the or in this other party, waived and shall not be deemed to Section 10.5. Event of Default occurs and the' other expenses for the collection of enforcement or the party in default herein contained, thc therefor, pay to the part not in expenses as may be reasonably connection therewith. Fees and Expenses. Whenever any who is shall employ attorneys or incur become due or for the tgreement on the part of ~ in default agrees that it shall, on demand fees of such attorneys and such other r incurred by the party not in default in ARTICLE XI. ) TERMINATE AGREEMENT Section 11.1. Developer if (i) the and no Event provisions of Section 10.2 of this Agreement, and, ~ failed to cure such noncompliance receipt of such notice Developer that such This A be terminated by the is in compliance with all terms of this Agreement accordance with the (ii) the City fails to comply with any material term written notice by the Developer of such failure, the City has within ninety (90) days of receipt of such notice, or, if ~ be cured by the City within ninety (90) days of ' has not provided assurances reasonably satisfactory to the will be cured as soon as reasonably possible. Section 11.~ Effect of Termination. If this Agreement is terminated pursuant to this Article XI, this Agreement shall be from such date forward null and void and of no -18- further effect; provided, however, that the City's rights to indemnification under Article IX hereof shall in all events survive and provided further that the termination of this Agreement shall not affect the rights of any party to institute any action, claim or demand for damages suffered as a result of breach or another or to recover amounts which oft to recover its therewith (but Upon termination free to proceed with own expense In any such action, the ys fees in the case of the City, to pursuant to construction and c to the ' ' ,greement by .. due and payable as shall be entitled ; incurred in connection applicable law). , the Developer shall be Minimum Improvements at its XII. ;CELLANEOUS Section 12.1. its best knowledge and belief after due designees or agents, nor any no other public official of the City v responsibilities with respect to the to participate in a Project, has had or subcontract, or the proceeds with the Project, or' time during or after such iect gain for work or benefit therefrom, Developer represents and warrants that, to no officer or employee of the City, or its aber of the governing body of the City, and ; or has exercised any functions or or her tenure, or who is in a position ;ider information with regard to the any contract or be performed in connection )f the Project at any Section 12.2. under this Agreement by is dispatched delivered personally, Demands. A notice. r to the other shall , postage prepaid, or delivered if it aested, or (a) In the Developer case of the Developer, is addressed or delivered personally to ; Heinz Road, Iowa City, Iowa 52240. (b) the case of the City, is addressed to or delivered personally to the City at Civic Center, 410 E. Washington Street, Iowa City, Iowa, 52240, Attn: City Manager; -19- or to such other designated individual or to such other address as any party shall have furnished to the other in writing in accordance herewith. Section 12.3. Titles of Articles and Sections. An' Articles, and Sections of this and shall be disregarded in construing several parts, only 12.4. Counterparts. This A of which shall constitute one executed in any number of same instrument. Section Governing Law. This A accordance with t laws of the State of Iowa. shall be governed and construed in Section 12.6· entire a and replaces all This Agreement may not hereto. This md the exhibits hereto reflect the the subject matter hereof, and supersedes or discussions, whether oral or written. a subsequent writing signed by all parties Section 12.7. Successors inure to the benefit of and be bindin successors and assigns. This Agreement is intended to and shall parties hereto and their respective Section 12.8. Termination i further force or effect on and IN WITNESS in its name and behalf by its by its City Clerk, the name and behalf by Alpla (SEAL) ATTEST: '. and be of no r December 31, 20~x the City has caused this'~greement to be duly executed or and its seal to be hereun'~ duly affixed and attested has caused this Agreement to'h~xduly executed in its Iowa, Inc.~ CITY OF IOWA CITY, IOWa,x By: Mayor By: City Clerk - 20 - ALPLA OF IOWA, INC. By: ATTEST: By: _(title) STATE OF IOWA ) ) SS COUNTY OF __ ) On this __ day of for said County, personally personally known, who respectively of the City of Iowa City under the laws of the State of Iowa is the seal of said Municipal on behalf of said Municipal and said Mayor and City Clerk of said Municipal Corporation that t and that said 2003, before me a Notary Public in and and Marian Karr to me are the Mayor and City Clerk, Corporation, created and existing the foregoing instrument ~gned and sealed ~f its City Council to be the free act and deed ~ it voluntarily executed. Notary Public Iowa -21 - STATE OF COUNTY OF ) ) SS ) On 's day of , Notary ', in and for said County, in said State, and , to me me duly sworn, say that they are the Alpla of Iowa. was s~ that the said and acknowledged the instrumen corporation, by them ily executed. the undersigned, a ~ known, who, being by and of on behalf of said corporation; and , as such officers voluntary act and deed of said and for County and State - 22 - EXHIBIT A DEVELOPMENT The Deve'i'opment Property is described as, parcels of land located in the City particularly described as follows: of all that certain parcel or of Johnson, State of Iowa, more Lots 2 and 3, BDI 5th Addition, County, Iowa. 24, Township 79N, Range 6W, Johnson A-1 and\or additions to the Development actual assessed value of the first year for which EXHIBIT B MINIMUM consist of 56,000 Square Minimum construction of improvements :building and the Square Feet for industrial uses on must result in an increase in ~ of at least fifteen (15) percent as of the Grant is received. B-1 EXHIBIT C CERTIFICATE OF the City of Iowa City, Iowa (the "{ having ce for the transaction of business at on or about the __. day and deliver, the other, an Agreement for 1 "Agreement"), of the Agreement, to > and maintain and as more particularl . and ALPLA OF IOWA, INC., Heinz Road, Iowa City, Iowa (the ., 2003, make, execute Redevelopment (the accordance with the terms real property located within the City Lots 2 and 3, BDI 5th / County, Iowa. Township 79N, Range 6W, Johnson WHEREAS, the Agreement restrictions with respect to the Developer to construct certain accordance with the Agreement; ~ certain covenants and and obligated (as defined therein) in WHEREAS. conditions insofar as they manner deemed by the Cit, permit the execution and r the conformance with' of this certification. performed said covenants and Minimum Improvements in a building plans to NOW, that all covenants and Developer, and its succes~ the hereby released ~ described herein. for recording and to rec of the satisfactory term respect to the Section 3.2 of the A this is to certify the Agreement with respect to ~bligations of the ~signs, to construct the Iv have been completed and performed by are and forever terminated insofar as they apply to e land ~ P, eeorder of Johnson County is hereby to accept the filing of this instrument, to be a conclusive determination covenants and conditions of said Agreement with the Minimum Improvements on the Development Property. C-1 All other provisions of the Agreement shall otherwise' a in full force and effect until termination as provided therein. CITY CITY, IOWA By: __ ATTEST: By: City Clerk C-2 STATE OF IOWA ) ) SS £ JOHNSON ) On this said County, known, who being respectively under the laws of the is the seal of said Municipal on beha and said Mayor and City Clerk of said Municipal Corporation by it, appeared Ernest W. om, did say a City, Iowa, a __ day of ,2003, me a Notary Public in and for and Marian Karr, to me personally the Mayor and City Clerk, Corporation, created and existing tl affixed to the foregoing instrument instrument was signed and sealed , authority and resolution of its City Council said instrument to be the free act and deed Notary Public 'ohnson County, Iowa C-3 City of Iowa City MEMORANDUM DATE: TO: FROM: RE: March 18, 2003 City Council and City Manager Steven Nasby, Community and Economic Development CoordinatorC~:~1 T[F Development Agreement for Alpla of iowa, [nc. Alpla is a bottle manufacturing company that recently located in Iowa City. in 2002, AIpla constructed a 56,000 square foot plant at 2258 Heinz Road creating approximately 24 jobs. Sales growth from out of state clients has lead Alpla to consider building another plant outside of Iowa or expanding their facilities in iowa City. Alpla has requested that the City of Towa City consider Tax increment Financing ('I'[F) to assist the company with the completion of a $3.1 million expansion. This expansion would add 86,000 square feet of manufacturing\distrubution\warehouse space and create additional employment opportunities. The proposed development agreement includes T~F tax rebates of 100% for five years (that would apply only to the new portion of the plant) and an up front payment of $35,000 to the company for the construction\installation of an electrical transformer. The development agreement caps the amount of the 'I'[F tax rebates at $475,000. [n sum, the total assistance provided by the City would not exceed $5:[0,000 over the term of the agreement. [n considering Alpla's request for assistance, staff consulted the City's financial assistance guidelines. The proposed project is consistent with these established guidelines. Some of the key points are as follows: · Significant private contribution relative to the public assistance requested ($3,:[00,000 vs. $5:[0,000) · No new municipal capital improvements are required · The property tax base will be increased through local expansion · Full-time, long-term jobs with competitive benefits · Potential for future growth · Builds on the resources and workforce of the local community · Environmentally sound company operations Since development agreements are negotiable between the City and the Developer, there is not a specific formula to determine the amount of assistance, as each project is unique. For this project, we have looked at the current plant and operations, the amount of the new investment, the size of the expansion and the overall number of jobs to be provided by the company. Cc: Karin Franklin, Director of Planning and Community Development Ken Sigman, Alpla of Iowa, Tnc. City of Iowa City MEMORANDUM DATE: TO: FROM: RE: March ].9, 2003 Council Member Pfab Steven Nasby, Community and Economic Development Coordinator Repayment of Debt Through Tax Increment Financing Tn the proposed development agreement, between the City of Iowa City and Alpla of Iowa Incorporated, an up front payment of $35,000 is included that will enable the business to make site improvements. Council member Pfab requested a brief explanation of how the City would recover this proposed $35,000 payment to Alpla of Iowa, Incorporated. Attached is a copy of the State Code, 403.19(2), that describes the process the City would use to recapture this investment. Essentially, the City would certify this as debt to the City Assessor's Office and would be repaid through the future property taxes that are generated by the business. Since this development agreement also provides for five years of tax rebates to Alpla of Iowa, Incorporated, we are anticipating that the $35,000 (plus a reasonable amount of interest) would be repaid to the City of Iowa City in 2009 or 2010. Cc: City Council City Hanager Karin Franklin, Director of Planning and Community Development Kevin O'Malley, Finance Director sum of~he assessed value of the taxable property in the urban renewal area, as shown on the assess- ment roll as of January 1 of the calendar year pro- ceding the effective date of the ordinance. Tiffs choice to divide a portion of the taxes shall not be construed to change the effective date of the divi- sion of property tax revenue with respect to an ur- ban renewal plan in existence on July 1, 1994. b. For the purpose of allocating taxas levied by or for any taxing district which did not include the territory in an urban renewal area on the effective date of the ordinance or initial adoption of the plan, but to which the territory has been annexed or otherwise included after the effective date, the assessment roll applicable to property in the an- hexed territory as of January 1 of the calendar year preceding the effective date of the ordinance, which amends the plan to include the annexed area, shall be used in determining the assessed valuation of the taxable property in the annexed area. c. For the purposes ofdividingtaxes under sec- tion 260E.4, the applicable assessment roll for purposes of paragraph "a"shall be the assessment roll as of January 1 of the calendar year preceding the first written agreement providing that all or a portion of program costs are to be paid for by incre- mental property taxes. The COmmunity college shall file a copy of the agreement with the ap- propriate assessor. The assessor may, within four- teen days of such filing, physically inspect the ap- plicable tawable business property. If upon such inspection the assessor determines that there has been a change in the value of the property from the value as shown on the assessment roll as of Janu- ary 1 of the calendar year preceding the filing of the agreement and such change in value is due to new construction, additions or improvements to existing structures, or remodeling of existing structures for which a building permit was re-j qulred, the assessor shall promptly determine the ! value of the property as of the inspection in the] manner provided in chapter 441 and that value- shall be included for purposes of the jobs tralulng project in the assessed value of the employer's tax- able business property as shown on the assess- ment roll as of January 1 of the calendar year pre- ceding the filing of the agreement. The assessor, within thirty days of such filing, shall notify the community college and the employer or business of that valuation which shall be included in the as- sassed valuation for purposes of this subsection and section 260E.4. The value determined by the assessor shall reflect the change in value due sole- ly to new construction, additions or improvements to existing structures, or remodeling of existing structures for which a building permit was re- qnired. 2. That pertion of the taxes each year in excess of such amount shall be allocated to and when col- lected be paid into a special fund of the municipali- ty to pay the principal of and interest on loans, moneys advanced to, or indebtedness, whether funded, refunded, assumed, or otherwise, includ- ing bonds issued under the authority of section 403.9, subsection 1, incurred by the municipality to finance or refinance, in whole or in part, an ur. ban renewal project within the area, and to pro. vide assistance for low and moderate income fami- ly housing as provided in section 403.22, except that taxes for the regular and voter-approved physical plant and equipment levy of a school dis- trict imposed pursuant to section 298.2 and taxes for the payment of bonds and interest of each tax- ing district must be collected against all taxable property within the taxing district without limita. tion by the provisions of this subsectian. However, all or a portion of the taxes for the physical plant and equipment levy shall be paid by the school dis- trict to the municipality if the municipality certi- fies to the school district by July I the amount of such levy that is necessary to pay the principal and interest on indebtedness incurred by the munici. pality to finance an urban renewal project, which indebtedness was incurred before July 1, 2000. Such school district shall pay over the amount cer- tiffed by November 1 following certification to the school district. Unless and until the total assessed valuation of the taxable property in an urban re- newal area exceeds the total assessed value of the taxable property in such area as shown by the last equalized assessment roll referred to in subsec- tion 1, all of the taxes levied and collected upon the taxable property in the urban renewal area shall be paid into the funds for the rospsetive taxing dis. tricts as taxes by or for the taxing districts in the same manner as all other property taxes. When such loans, advances, indebtedness, and bonds, if any, and interest thereon, have been paid, all mon- eys thereafter received from taxes upon the tax- able property in such urban renewal area shall be I paid into the funds for the respective taxing dis- ] tricts in the same manner as taxes on all other ~ property. . · 3. The portion of taxes mentioned in subsec- tion 2 and the special fund into which they shall be paid, may be irrevocably pledged by a municipali- ty for the payment of the principal and interest on loans, advances, bonds issued under the authority of sectian 403.9, subsection 1, or indebtedness in- curred by a municipality to finance or refinance, in whole or in part, the urban renewal project within the area. 4. As used in this section the word '?:axes"in. cludes, but is not limited to, all levies on an ad val- orem basis upon land or real property. 5. A municipality shall certify to the county auditor on or before December 1 the amount of loans, advances, indebtedness, or bonds which qualify for payment from the special fund referred to in subsection 2, and the filing of the certificate shall make it a duty of the auditor to provide for the division of taxes in each subsequent year until the amount of the loans, advances, indebtedness,