Proposed Development Agreement with Switch Development, LLC_InitiateCity of Dubuque
City Council Meeting
Copyrighted
January 17, 2023
Items to be set for Public Hearing #
01.
ITEM TITLE: Resolution Setting a Public Hearing on a Proposed Development
Agreement by and between the City of Dubuque, Iowa, and Switch
Development, LLC for the Issuance of Urban Renewal Tax Increment
Revenue Grant Obligations Pursuant to the Development Agreement
SUMMARY: City Manager recommending adoption of the attached resolution setting a
February 6, 2023, public hearing on the Development Agreement with
Switch Development, LLC providing for the issuance of Urban Renewal
Tax Increment Revenue Grant Obligations.
RESOLUTION Fixing the date for a public hearing of the City Council of
the City of Dubuque, Iowa on the Proposed Development Agreement by
and between the City of Dubuque and Switch Development, LLC.,
including the proposed issuance of Urban Renewal Tax Increment
Revenue Grant Obligations to Switch Development, LLC, and providing
for the publication of notice thereof
SUGGESTED
Receive and File; Adopt Resolution(s), Set Public Hearing for February
DISPOSITION:
6, 2023Suggested Disposition:
ATTACHMENTS:
Description
Type
MVM Memo
City Manager Memo
Staff Memo
Staff Memo
Resolution
Resolutions
Notice of Hearing
Supporting Documentation
Agreement
Supporting Documentation
THE CITY OF
Dubuque
DUB TEE1.
All -America City
Masterpiece on the Mississippi
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Setting a Public Hearing on a Proposed Development
Agreement by and between the City of Dubuque, Iowa, and Switch
Development, LLC for the Issuance of Urban Renewal Tax Increment
Revenue Grant Obligations Pursuant to the Development Agreement
DATE: January 11, 2023
Economic Development Director Jill Connors is recommending City Council adopt the
attached resolution setting a February 6, 2023, public hearing on the Development
Agreement with Switch Development, LLC providing for the issuance of Urban Renewal
Tax Increment Revenue Grant Obligations.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
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Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
Dubuque
THE CITY OF
All -America My
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DUB E
2007-2012.2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
Economic Development
Department
1300 Main Street
Dubuque, Iowa 52001-4763
Office (563) 589-4393
TTY (563) 690-6678
http://www.cityofdubuque.org
SUBJECT: Resolution Setting a Public Hearing on a Proposed Development
Agreement by and between the City of Dubuque, Iowa, and Switch
Development, LLC for the Issuance of Urban Renewal Tax Increment
Revenue Grant Obligations Pursuant to the Development Agreement
DATE: January 10, 2023
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
setting a public hearing for February 6, 2023 on a proposed Development Agreement by
and between the City of Dubuque, Iowa, and Switch Development, LLC for the issuance
of Urban Renewal Tax Increment Revenue Grant Obligations pursuant to the
Development Agreement.
BACKGROUND
Switch Development, LLC is a Dubuque based commercial real estate development
company. Switch Development is owned by Matthew Mulligan, the President & Chief
Operating Officer of Dubuque -based, Conlon Construction. Matt is also the owner of
Dubuque -based Switch Homes, LLC, which is preparing to begin construction of a 101
single-family home community along the Northwest Arterial.
DISCUSSION
Switch Development, LLC intends to make a capital investment of approximately Twelve
Million Dollars ($12,000,000) to construct an 18,000 square feet office -commercial space
and 7,500 square feet of retail building(s). The project is anticipated to begin shortly after
the finalization of the proposed Development Agreement.
The City has determined that the Project will require certain traffic safety improvements,
and Switch Development, LLC has agreed to pay for a portion of the traffic safety
improvements at the intersection of John F. Kennedy Road and West 32nd Street required
due to the additional traffic generated by the Project.
The key elements of the Development Agreement include the following:
1. The Developer must construct 18,000 square feet of office -commercial space and
7,500 square feet of retail building(s) to be completed by June 30, 2024.
2. City agrees to design and construct the Required Intersection Improvements as
shown conceptually on Exhibit G of the Agreement. The estimated cost of the
Required Improvements is Six Hundred Ten Thousand Dollars ($610,000).
Required Intersection improvements include but are not limited to turning lanes,
lane widening, median modifications, traffic signals and controls, underground
utilities, crosswalks, and curb ramps.
3. City agrees to make a good faith effort to construct the Required Intersection
Improvements so that they are operational by November 30, 2023.
4. Developer agrees to place $400,000 in escrow to be utilized for the construction
of the Required Intersection Improvements, including but not limited to
engineering, right of way acquisition, and construction.
5. Developer agrees to pay one-third (1/3) not to exceed $200,000 of actual costs of
the Required Intersection Improvements, including but not limited to engineering,
right of way acquisition, and construction.
6. City commits to providing semi-annual tax increment financing rebate payments to
Developer beginning November 2025, but only until Developer has been
reimbursed to having paid one-third (1/3) of actual costs of the Required
Intersection Improvements.
7. Developer agrees to dedicate to City by plat acquisition, all street right-of-way
necessary for the construction of the Required Improvements as conceptually
shown.
8. Developer is responsible for and must pay for all costs related to the construction
of the required sewer extension.
RECOMMENDATION / ACTION STEP
I recommend that the City Council adopt the attached resolution setting a February 6,
2023 public hearing on the Development Agreement providing for the issuance of Urban
Renewal Tax Increment Revenue Grant Obligations. This proposed Development
Agreement would further the City Council's goal Robust Local Economy: Diverse
Businesses and Jobs with Economic Prosperity.
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Prepared by: Jill Connors, Economic Development, 50 W. 1311 Street, Dubuque IA 52001, 563 589-4393
Return to: Jill Connors, Economic Development, 50 W. 13'h Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 18-23
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA ON THE PROPOSED DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF DUBUQUE AND SWITCH DEVELOPMENT, LLC.,
INCLUDING THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX INCREMENT
REVENUE GRANT OBLIGATIONS TO SWITCH DEVELOPMENT, LLC, AND
PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
WHEREAS, Switch Development, LLC, as Developer, is the owner of the following
described real property:
Lot 2 of Switch Development @ JFK No. 1, in the City of Dubuque, Iowa, according to the
recorded Plat thereof according to the Plat recorded as Instrument No. 2021-15183,
records of Dubuque County, Iowa
(the Property)
; and
WHEREAS, the Property is located in the John F. Kennedy Road Urban Renewal
Area (the District) which is an economic development area (the Project Area) as defined
by Iowa Code Chapter 403 (the Urban Renewal Law); and
WHEREAS, Developer will be constructing an office/commercial building on the
Property, and operating the same as a retail/commercial business during the term of this
Agreement; and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (the Project); and
WHEREAS, City has determined that the Project will require certain traffic safety
improvements to the public right of way of John F. Kennedy Road and West 32"d Street
and Developer agrees that such Required Intersection Improvements are reasonable and
necessary; and
WHEREAS, Developer is willing to pay for a portion of the traffic safety
improvements at the intersection of John F. Kennedy Road and West 32"d Street required
due to the additional traffic generated by the Project; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area, City has the authority to enter into contracts
and agreements to implement the Urban Renewal Plan, as such Urban Renewal Plan
may be amended; and
WHEREAS, the Development Agreement provides for the issuance by City of
economic development grants to Switch Development, LLC, referred to therein as Urban
Renewal Tax Increment Revenue Grant Obligations, payable from the tax increment
revenues collected in respect of the Improvements to be constructed by Switch
Development, LLC in accordance with the Development Agreement, for the purpose of
carrying out the objectives of an Urban Renewal Plan as hereinafter described; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property; and
WHEREAS, before said Obligations may be approved, Chapter 403 of the Code of
Iowa requires that the City Clerk publish a notice of the proposal and of the time and place
of the meeting at which the City Council proposes to take action thereon and at which
meeting the City Council shall receive oral and/or written objections from any resident or
property owner of said City to such proposed action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Clerk is hereby authorized and directed to cause this
Resolution and a Notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City Council's intent to approve the proposed Development
Agreement, to be held on the 6th day of February, 2023 at 6:30 p.m.
Section 2. The City Council will also meet at said time and place for the purpose
of taking action on the matter of authorizing Urban Renewal Tax Increment Revenue
obligations, the proceeds of which obligations will be used to carry out certain of the special
financing activities described in the Urban Renewal Plan for the John F. Kennedy Road
Urban Renewal Area, consisting of the funding of economic development grants to Switch
Development, LLC, pursuant to the Development Agreement under the terms and
conditions of said Urban Renewal Plan. It is expected that the aggregate amount of the Tax
Increment Revenue obligations will be approximately $200,000.
Section 3. The City Clerk is hereby directed to cause at least one publication to
be made of a notice of said meeting, in a newspaper, printed wholly in the English
language, published at least once weekly, and having general circulation in said City, said
publication to be not less than four days nor more than twenty days before the date of
said meeting on the approval of the Development Agreement and the issuance of said
obligations.
Section 4. That the Notice of the proposed action shall be in substantially the
form attached hereto.
Passed, approved, and adopted this 17th day of January, 2023.
4ra J. Ro ell, ayor Pro Tern
Attest:
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Adrienne N. Breitfelder, City Clerk
CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
PUBLIC NOTICE is hereby given that the Dubuque City Council will conduct a public
hearing on the 6t" day of February, 2023, at 6:30 p.m., in the Historic Federal Building,
350 W. 6t" Street, 2nd floor, Dubuque, Iowa, at which meeting the City Council proposes
to take action to approve a Development Agreement by and between the City of Dubuque,
Iowa, and Switch Development, LLC, a copy of which is now on file at the Office of the
City Clerk, City Hall, 50 W 13t" Street, Dubuque, Iowa, providing for the issuance of
economic development grants (Urban Renewal Tax Increment Revenue Grant
Obligations) described therein in order to carry out the purposes and objectives of the
Urban Renewal Plan for the John F. Kennedy Road Urban Renewal Area, consisting of
the funding of economic development grants for Switch Development, LLC under the
terms and conditions of the Urban Renewal Plan for the John F. Kennedy Road Urban
Renewal Area. The aggregate amount of the Urban Renewal Tax Increment Revenue
Grant Obligations cannot be determined at the present time but is not expected to exceed
$200,000.
At the meeting, the City Council will receive oral and written comments from any resident
or property owner of said City to the above action. The official agenda will be posted the
Friday before the meeting and will contain public input options. The City Council agenda
can be accessed at https://cityofdubuque.novusagenda.com/AgendaPublic/ or by
contacting the City Clerk's Office at 563-589-4100, ctyclerk@cityofdubuque.org.
Written comments regarding the above public hearings may be submitted to the City
Clerk's Office via email at ctyclerk@cityofdubuque.org or by mail to City Clerk's Office,
City Hall, 50 W. 13t" St., Dubuque, IA 52001, before said time of public hearing. At said
time and place of public hearings the City Council will receive any written comments.
Copies of supporting documents for the public hearings are on file in the City Clerk's
Office and may be viewed Monday through Friday between 8:00 a.m. and 5:00 p.m.
Individuals with limited English proficiency, vision, hearing, or speech impairments
requiring special assistance should contact the City Clerk's Office at (563) 589-4100, TDD
(563) 690-6678, ctyclerk@cityofdubuque.org as soon as feasible. Deaf or hard -of -hearing
individuals can use Relay Iowa by dialing 711 or (800) 735-2942.
Published by order of the City Council given on the 17t" day of January 2023.
Adrienne N. Breitfelder, City Clerk
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
SWITCH DEVELOPMENT, LLC
This Development Agreement (Agreement), dated for reference purposes the
day of , 2023 is made and entered into by and between the City of
Dubuque, Iowa (City), and Switch Development, LLC (Developer).
WHEREAS, Developer is the owner of the following real estate described as follows:
Lot 2 of Switch Development @ JFK No. 1, in the City of Dubuque, Iowa,
according to the recorded Plat thereof
(the Property); and
WHEREAS, the Property is located in a proposed JFK Urban Renewal District (the
District) which is being proposed as an economic development area (the Project Area) as
defined by Iowa Code Chapter 403 (the Urban Renewal Law); and
WHEREAS, Developer will be constructing an office/commercial building on the
Property, and operating the same as a retail/commercial business during the term of this
Agreement; and
WHEREAS, Developer will make an additional capital investment in building
improvements, equipment, furniture and fixtures in the Property (the Project); and
WHEREAS, City has determined that the Project will require certain traffic safety
improvements, including but not limited to street lane widening, concrete median relocation,
construction of traffic signal base and mast arm, signal heads, controller, street lighting,
ADA ramps and crosswalks, and associated pavement markings and signage, underground
utilities and other appurtenances, to the public right of way of John F. Kennedy Road and
West 32"d Street as set forth herein and as shown conceptually on Exhibit C (the Required
Intersection Improvements) and Developer agrees that such Required Intersection
Improvements are reasonable and necessary; and
WHEREAS, Developer is willing to pay for a portion of the traffic safety
improvements at the intersection of John F. Kennedy Road and West 32"d Street required
due to the additional traffic generated by the Project; and
01052023ba1
WHEREAS, City is planning to design and construct the Required Intersection
Improvements as part of a future CIP project; and
WHEREAS, because the Project property is not currently served by City sanitary
sewer, an extension of the City sanitary sewer from the Northwest Arterial Right of Way to
the Property (the Required Sewer Extension) is required and Developer has agreed to
design and construct and City has agreed to own and maintain the Required Sewer
Extension; and
WHEREAS, the Project plans include a storm water detention basin outfall pipe on
the east side of the Project that encroaches on the City -owned right of way of the
Northwest Arterial and City has agreed to grant an easement for the storm water detention
basin outfall pipe (Storm Sewer Easement) as shown on attached Exhibit I; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
proposed Urban Renewal Plan for the Project Area, a copy of which is attached hereto as
Exhibit A (the Urban Renewal Plan) City has the authority to enter into contracts and
agreements to implement the Urban Renewal Plan, as such Urban Renewal Plan may be
amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration of
the promises, covenants and agreements made by each other, do hereby agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES.
1.1 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and that it has full power and authority
to execute, deliver and perform its obligations under this Agreement. City's attorney
shall issue a legal opinion to Developer at time of closing confirming the
representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of whatever
nature to which City is now a party or by which it or its property is bound, or
constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which affects
the validity of the Agreement or City's ability to perform its obligations under this
Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies, the
cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against the
Property.
(7) The representations and warranties contained in this article shall be correct in
all respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
(1) Developer is a Limited Liability Company duly organized and validly existing
under the laws of the State of Iowa and has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as
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presently proposed to be conducted, and to enter into and perform its obligations
under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution, and delivery by the City, is
in full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors'
rights generally. Developer's counsel shall issue a legal opinion to the City, at time
of closing, confirming the representations contained herein, in the form attached
hereto as Exhibit C.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or result of
operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State, and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in an
amount sufficient, together with equity commitments, to successfully complete the
requirements of this Agreement and shall provide evidence thereof to City prior to
the Closing Date.
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1.3 Closing. The closing shall take place on the Closing Date which shall be the 15tn
day of January, 2023, or such other date as the parties shall agree in writing but in no event
shall the Closing Date be later than the 15t" day of February, 2023. Consummation of the
closing shall be deemed an agreement of the parties to this Agreement that the conditions
of closing shall have been satisfied or waived.
1.4 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit D.
(2) Developer shall have the right to terminate this Agreement at anytime prior to
the consummation of the closing on the Closing Date if Developer determines in its
sole discretion that conditions necessary forthe successful completion of the Project
contemplated herein have not been satisfied in Developer's sole discretion. Upon
the giving of notice of termination by Developer to City, this Agreement shall be
deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein) in
conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
(5) Developer's counsel shall issue a legal opinion to the City confirming the
representations contained herein in the form attached hereto as Exhibit C.
1.5 City's Obligations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
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SECTION 2. DEVELOPMENT ACTIVITIES.
2.1 Required Minimum Improvements.
(1) Developer will make a capital investment of approximately Twelve Million
Dollars ($12,000,000) to improve the Property (the Minimum Improvements). The
Minimum Improvements include the construction of 18,000 square feet of office -
commercial space and 7,500 square feet of retail building(s).
(2) Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, recorded in the records of Dubuque
County, Iowa. Developer shall submit to City, for approval by City, plans, drawings,
specifications, and related documents with respect to the improvements to be
constructed by Developer on the Property. All work with respect to the Minimum
Improvements shall be in substantial conformity with the Construction Plans
approved by City, in its sole discretion.
(3) Timing of Improvements.
(a) Developer hereby agrees that construction of the Minimum
Improvements on the Property shall be commenced within sixty (60) days
after the Closing Date and shall be substantially completed by June 30, 2024.
(b) The time frames for the performance of these obligations shall be
suspended due to unavoidable delays meaning delays, outside the control of
the party claiming its occurrence in good faith, which are the direct result of
strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third parties
which, by injunction or other similar judicial action or by the exercise of
reasonable discretion directly results in delays, or acts of any federal, state or
local government which directly result in extraordinary delays. The time for
performance of such obligations shall be extended only for the period of such
delay.
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(4) Certificate of Completion. Promptly following the request of Developer
upon completion of the Minimum Improvements, the City Manager shall
furnish Developer with an appropriate instrument so certifying. Such
certification (the Certificate of Completion) shall be in recordable form and
shall be a conclusive determination of the satisfaction and termination of the
agreements and covenants in this Agreement with respect to the obligations
of Developer to construct the Minimum Improvements.
2.2 Required Intersection Improvements.
(1) City Obligations.
(a) City agrees to design and construct the Required Intersection
Improvements as shown conceptually on Exhibit G. The estimated cost of
the Required Improvements is Six Hundred Ten Thousand Dollars
($610,000). Required Intersection improvements include but are not limited to
turning lanes, lane widening, median modifications, traffic signals and
controls, underground utilities, crosswalks, and curb ramps.
(b) City agrees to make a good faith effort to construct the Required
Intersection Improvements so that they are operational by November 30,
2023. That date may be affected by several factors including, but not limited
to, the right of way acquisition process, and, if necessary, the condemnation
process.
(2) Developer Obligations.
(a) Developer agrees to pay to City one-third (1/3) not to exceed
$200,000 of actual costs of the Required Intersection Improvements,
including but not limited to engineering, right of way acquisition, and
construction (Developer's Required Contribution), as provided in Sec. 3.1.
(b) On or prior to March 31, 2023, Developer must place Four Hundred
Thousand Dollars ($400,000) (the Escrow Amount) in an escrow account for
the benefit of City (the Escrow Account) pursuant to an Escrow Agreement
acceptable in form to City. Funds in the Escrow Account will be available to
City any time City in its sole discretion deems necessary to pay for the
Required Intersection Improvements; provided, however, that City's total
draw shall not exceed 2/3 of the actual costs incurred as those costs are
incurred. Any Escrow Amount in the Developer Fund remaining in the
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Developer Fund after the payment of all costs of the Required Intersection
Improvements shall be promptly refunded to Developer.
(c) Developer agrees, at no cost to City, to dedicate to City by plat
acquisition, the plat to be prepared by City, all street right-of-way necessary
for the construction of the Required Improvements as conceptually shown on
Exhibit H. Developer also agrees to pay to City upon receipt of a statement
from City the property taxes prorated to the date of recording of the plat for
the property dedicated to City.
(d) Developer agrees to be solely responsible for the costs of any
necessary utility connections for the Project.
(3) Issuance of Permits. City will issue all required permits for construction of the
Project after all required approvals of the site plan are granted for the Project. No
site developer will receive a certificate of occupancy for the Project until all of the
Required Intersection Improvements and the dedication of property for right of way
are complete to City's satisfaction in its sole discretion.
2.3 Required Sewer Extension.
(1) Developer Obligations
(a) Developer is responsible and must pay for all costs related to the
construction of the Required Sewer Extension. Because Developer is paying
for the Required Sewer Extension, there are no connection fees related to
the Project. There are no interceptor sewer fees related to the Project.
(b) Developer must obtain and submit to City copies of all applicable
permits necessary for the Required Sewer Extension prior to commencing
work.
(c) Developer must obtain all applicable permits and licenses required for
working in the City right-of-way.
(d) Work on the Required Extension may not commence until this
Agreement is executed by Developer and City, Developer has obtained and
submitted copies to City of all applicable licenses and permits, Developer has
obtained all required bonds or other acceptable form of security.
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(e) Developer must submit to City final design plans that meet current City
standards for the Required Extension prior to commencing work. City will
review and approve such plans before work on the Sewer Extension
commences. If such plans are not approved, City will provide feedback
regarding the modifications necessary for approval.
(f) Developer must obtain a construction bond or other suitable security
for one hundred ten percent (110%) of the estimated total construction cost
of the Required Sewer Extension. Developer must obtain a maintenance
bond, letter of credit or other acceptable security for twenty-five percent
(25%) of the estimated total construction cost of the Required Sewer
Extension. Developer must maintain this maintenance bond for two (2) years
after date that the City Council accepts the completed Sewer Extension.
(2) City Obligations
(a) City will inspect the Required Sewer Extension throughout its
implementation and at its completion to ensure compliance with the approved
plans and specifications. City will be responsible for all costs associated with
inspection and testing.
(b) City will conduct a final inspection upon the completion of the
Required Sewer Extension. If the inspection establishes that the Required
Sewer Extension has been completed in accordance with the approved plans
and City requirements and specifications, the Required Sewer Extension will
be accepted by City Council starting the two (2) year warranty period.
(c) Developer must provide City with an easement dedicating the
proposed sanitary sewer utility easement (the Easement) over the Property
as shown on attached Exhibit I, for access and activities associated with the
sanitary sewer, including but not limited to the maintenance and repair of the
sewers by the City. Developer must provide City with a plat or exhibit of said
Easement. The Grant of Easement shall be in a form acceptable to City.
City will record the Grant of Easement with the Dubuque County Recorder.
Developer is responsible for all recording fees associated with the Easement.
(d) After Developer has dedicated the Easement to City, and the Project
has been completed, inspected and accepted by the City Council, City will be
responsible for the maintenance and repair of the Required Sewer Extension
from the date of City Council acceptance in accordance with the Grant of
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Easement. City shall be responsible for limited site restoration following any
future sanitary sewer work (future repairs, inspections, replacement).
Restoration by the City shall only include disturbed turf areas. Restoration of
all other landscaping, paving and other improvements shall be the
responsibility of the property owner or others.
(e) At all times during the construction of the Required Sewer Extension in
City right of way, any contractors or subcontractors hired by Developer to
perform work on the storm sewer must comply with the insurance
requirements set forth in the Insurance Schedule A, attached.
2.4 Required Storm Sewer Easement.
(1) City shall grant Developer a permanent storm sewer utility easement (the City
Easement) over the Northwest Arterial right of way area as shown on Exhibit 1.
(2) Developer must provide the City with a plat or exhibit of the City Easement.
Grant of Easement shall be in a form acceptable to City. City will record the Grant
of Easement with the Dubuque County Recorder. Developer is responsible for all
recording fees associated with City Easement.
(3) When constructing the storm sewer, Developer must obtain all applicable
permits and licenses required forworking in the City right-of-way. At all times during
the construction of the storm sewer in the City right of way, any contractors or
subcontractors hired by Developer to perform work on the storm sewer must comply
with the insurance requirements set forth in the Insurance Schedule A, attached.
SECTION 3. CITY PARTICIPATION
3.1 Economic Development Grant to Developer. For and in consideration of Developer's
obligations hereunder, and in furtherance of the goals and objectives of the urban renewal
plan for the Project Area and the Urban Renewal Law, City agrees, subject to Developer
being and remaining in compliance with the terms of this Agreement to reimburse one-third
(1 /3) of actual costs of the Intersection Improvements, such reimbursement to be paid with
Economic Development Grants commencing on November 1, 2025 until Developer has
been reimbursed one-third (1/3) of the actual costs of the Intersection Improvements.
(1) Developer Economic Development Grants
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(a) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Developer
being and remaining in compliance with the terms of this Agreement, to make
consecutive semi-annual payments but only until Developer has been
reimbursed one-third (1/3) of actual costs of the Intersection Improvements,
(such payments being referred to collectively as the Developer Economic
Development Grants) to Developer, as follows:
November 1, 2025
May 1, 2026
November 1, 2026
May 1, 2027
November 1, 2027
May 1, 2028
November 1, 2028
May 1, 2029
November 1, 2029
May 1, 2030
November 1, 2030
May 1, 2031
November 1, 2031
May 1, 2032
November 1, 2032
May 1, 2033
November 1, 2033
May 1, 2034
November 1, 2034
May 1, 2035
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the actual amount of tax increment revenues collected by City under
Iowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under Iowa Code Section 403.19 and excluding any
interest that may accrue thereon prior to payment to Developer) during the
preceding six (6) month period in respect of the Property and Minimum
Improvements constructed by Developer (the Developer Tax Increments).
City and Developer agree that for purposes of this Section 3.1(1), the
assessed value of the Property as of January 1, 2022 is $781,010.00.
Developer recognizes and agrees that the Developer Economic Development
Grants shall be paid solely and only from the incremental taxes collected by
City in respect to the Property and Minimum Improvements, which does not
include property taxes collected for the payment of bonds and interest of
each taxing district, and taxes for the regular and voter -approved physical
plant and equipment levy, instructional support levy, and any other portion
required to be excluded by Iowa law, and thus such incremental taxes will not
include all amounts paid by Developer as regular property taxes.
(b) To fund the Developer Economic Development Grants, City shall
certify to the County prior to December 1 of each year, commencing
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December 1, 2024, its request for the available Developer Tax Increments
resulting from the assessments imposed by the County as of January 1 of
that year, to be collected by City as taxes are paid during the following fiscal
year and which shall thereafter be disbursed to Developer on November 1
and May 1 of that fiscal year. (Example: If City so certifies by December 1,
2024, the Developer Economic Development Grants in respect thereof would
be paid to Developer on November 1, 2025, and May 1, 2026.)
(c) The Developer Economic Development Grants shall be payable from
and secured solely and only by the Developer Tax Increments paid to City
that, upon receipt, shall be deposited and held in a special account created
for such purpose and designated as the Switch Development TIF Account of
City. City hereby covenants and agrees to maintain its TIF ordinance in force
during the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the Switch
Development TIF Account to pay the Employer Economic Development
Grants, as and to the extent set forth in Section 3.1(1) hereof. The Employer
Economic Development Grants shall not be payable in any manner by other
tax increments revenues or by general taxation or from any other City funds.
City makes no representation with respect to the amounts that may be paid
to Developer as the Developer Economic Development Grants in any one
year and under no circumstances shall City in any manner be liable to
Developer so long as City timely applies the Developer Tax Increments
actually collected and held in the Switch Development TIF Account
(regardless of the amounts thereof) to the payment of the Developer
Economic Development Grants to Developer as and to the extent described
in this Section.
(2) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development
Grants under this Section 3.1 hereof, for any purpose for which such tax increment
revenues may lawfully be used pursuant to the provisions of the Urban Renewal
Law, and City shall have no obligations to Developer with respect to the use thereof.
3.2 Other than the Economic Development Grants required by Section 3.1, City shall
have no obligation to provide any other funds to Developer.
SECTION 4. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING.
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4.1 Non -Appropriation. Notwithstanding anything in this Agreement to the contrary, the
obligation of City to pay any installment of the Economic Development Grants from the
pledged tax increment revenues shall be an obligation limited to currently budgeted funds,
and not a general obligation or other indebtedness of City or a pledge of its full faith and
credit within the meaning of any constitutional or statutory debt limitation, and shall be
subject in all respects to the right of non -appropriation by the City Council of City as
provided in this Section. City may exercise its right of non -appropriation as to the amount
of the installments to be paid during any fiscal year during the term of this Agreement
without causing a termination of this Agreement. The right of non -appropriation shall be
exercised only by resolution affirmatively declaring City's election to non -appropriate funds
otherwise required to be paid in the next fiscal year under this Agreement.
In the event the City Council of City elects to not appropriate sufficient funds in the budget
for any future fiscal year for the payment in full of the installments on the Economic
Development Grants due and payable in that future fiscal year, then City shall have no
further obligation to Developer for the payment of any installments due in that future fiscal
year which cannot be paid with the funds then appropriated for that purpose.
4.2 The right of non -appropriation reserved to City in this Section is intended by the
parties, and shall be construed at all times, so as to ensure that City's obligation to pay
future installments on the Economic Development Grants shall not constitute a legal
indebtedness of City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the payment of that
installment or amount. In the event that any of the provisions of this Agreement are
determined by a court of competent jurisdiction to create, or result in the creation of, such a
legal indebtedness of City, the enforcement of the said provision shall be suspended, and
the Agreement shall at all times be construed and applied in such a manner as will
preserve the foregoing intent of the parties, and no event of default shall be deemed to
have occurred as a result thereof. If any provision of this Agreement or the application
thereof to any circumstance is so suspended, the suspension shall not affect other
provisions of this Agreement which can be given effect without the suspended provision,
and to this end the provisions of this Agreement are severable.
SECTION 5. COVENANTS OF DEVELOPER
5.1 The Minimum Improvements shall conform to all city, state, and federal codes.
5.2 Books and Records. During the term of this Agreement, Developer shall keep at all
times and make available to City upon reasonable request proper books of record and
13
account in which full, true and correct entries will be made of all dealings and transactions
of or in relation to the business and affairs of Developer to verify the cost of the Minimum
Improvements in accordance with generally accepted accounting principles consistently
applied throughout the period involved, and Developer shall provide reasonable protection
against loss or damage to such books of record and account.
5.3 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
5.4 No Other Exemptions. During the term of this Agreement, Developer agrees not to
apply for any state or local property tax exemptions which are available with respect to the
Development Property or the Minimum Improvements located thereon that may now be, or
hereafter become, available under state law or city ordinance during the term of this
Agreement, including those that arise under Iowa Code Chapters 404 and 427, as
amended.
5.5 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense (and, from time to time at the request of City, furnish City with proof of
insurance in the form of a certificate of insurance for each insurance policy):
Builder's risk insurance, written on a completed value in an amount equal to one
hundred percent (100%) of the replacement value of the Minimum Improvements,
naming City as a named insured and lender loss payable. Coverage shall include
the "special perils" form.
The City of Dubuque, Owners, Contractors, Subcontractors, and Sub -
Subcontractors shown as additional named insureds are only additional named
insured with respect to their interest in the Covered Property at the premises shown
in the declarations.
(2) Upon completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense (and from time to time at the request of City shall furnish proof of
insurance in the form of a certificate of insurance) property insurance against loss
and/or damage to the Minimum Improvements under an insurance policy written in
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an amount not less than the full insurable replacement value of Minimum
Improvements naming City as lender loss payable. Coverage shall include the
"special perils" form.
(3) The term "replacement value" shall mean the actual replacement cost of
Minimum Improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and equipment, and
shall be reasonably determined from time to time at the request of City, but not more
frequently than once every three (3) years.
(4) Developer agrees to notify City immediately in the case of damage exceeding
One Hundred Thousand Dollars ($100,000.00) in amount to, or destruction of, the
Minimum Improvements or any portion thereof resulting from fire or other casualty.
The net proceeds of any such insurance (the Net Proceeds) shall be paid directly to
Developer as its interests may appear, and Developer shall forthwith repair,
reconstruct and restore the Minimum Improvements to substantially the same or an
improved condition or value as they existed prior to the event causing such damage
and, to the extent necessary to accomplish such repair, reconstruction and
restoration, Developer shall apply the Net Proceeds of any insurance relating to
such damage received by Developer to the payment or reimbursement of the costs
thereof, subject, however, to the terms of any mortgage encumbering title to the
Property (as its interests may appear). Developer shall complete the repair,
reconstruction and restoration of Minimum Improvements whether or not the Net
Proceeds of insurance received by Developer for such Purposes are sufficient.
(5) Contractor shall be responsible for deductibles and self -insured retention.
5.6 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the Minimum
Improvements in good repair and working order, ordinary wear and tear accepted, and from
time to time shall make all necessary repairs, replacements, renewals and additions.
5.7 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of age, color, familial status,
gender identity, marital status, mental/physical disability, national origin, race,
religion/creed, sex, or sexual orientation.
5.8 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
15
responsibilities with respect to the project during his or her tenure, or who is in a position to
participate in a decision -making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, forwork to be performed in connection with the project, or in any activity,
or benefit therefrom, which is part of this project at any time during or after such person's
tenure. In connection with this obligation, Developer shall have the right to rely upon the
representations of any party with whom it does business and shall not be obligated to
perform any further examination into such party's background.
5.9 Non -Transferability. Until such time as the Minimum Improvements are complete (as
certified by City under Section 2.1(4)), this Agreement may not be assigned by Developer,
nor may the Property be transferred by Developer to another party. Thereafter, with the
prior written consent of City, which shall not be unreasonably withheld, Developer shall
have the right to assign this Agreement, and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
5.10 No change in Tax Classification. Developer agrees that it will not take any action
to change, or otherwise allow, the classification of the Property for property tax
purposes to become other than commercial property and to be taxed as such under
Iowa law.
5.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of the
Property as retail/commercial, is in full compliance with the Urban Renewal Plan)
(however, Developer shall not have any liability to City to the extent that a successor
in interest shall breach this covenant and City shall seek enforcement of this
covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of age, color, familial status, gender identity,
marital status, mental/physical disability, national origin, race, religion/creed, sex, or
sexual orientation in the sale, lease, rental, use or occupancy of the Property or any
improvements erected or to be erected thereon, or any part thereof (however,
Developer shall not have any liability to City to the extent that a successor in interest
shall breach this covenant and City shall seek enforcement of this covenant directly
against the party in breach of same).
16
5.12 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse effect
on the business, property, operations, financial or otherwise, of Developer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
6.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum Improvements
to be commenced and completed pursuant to the terms, conditions and limitations of
this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any other
material covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
6.2. Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 5.1 of this Agreement occurs and is continuing, City, as specified below, may take
any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
17
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) Until issuance of the Certificate of Completion, City shall be entitled to
recover from Developer the sum of all amounts expended by City in connection with
the City's costs of the Intersection Improvements and City may take any action,
including any legal action it deems necessary, to recover such amounts from the
Developer;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation, agreement,
or covenant under this Agreement.
6.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
6.4 No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
6.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation
may be set by the court in the trial of such action or by the arbitrator, as the case may be,
or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief that may be awarded.
6.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that may
appear necessary or desirable to collect any payments due under this Agreement, to
m
recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may suspend
their performance under this Agreement until they receive assurances from City, deemed
adequate by Developer, that City will cure its default and continue its performance under
this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS.
7.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if
and when delivered in person or three (3) business days after having been deposited in any
U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as
follows:
If to Developer: Switch Development, LLC
Attn: Matthew T. Mulligan
Managing Member
1167 Hunters Ridge
Dubuque IA 52003
Phone: (563) 583-1724
With copy to: Simmons Perrine Moyer Bergman PLC
Matt Hektoen
115 3rd Street SE, Suite 1200
Cedar Rapids, Iowa 52401-1266
Phone: (319) 896-4030
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589.4110
With copy to: City Attorney
City Hall
50 W. 13th Street
Dubuque IA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
19
7.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
7.3 Force Majeure. A party shall be excused from its obligations underthis Agreement if
and to the extent and during such time as the party is prevented, impeded, or hindered,
unable to perform its obligations or is delayed in doing so due to events or conditions
outside of the party's reasonable control and after the party has taken reasonable steps to
avoid or mitigate such event or its consequences (each a "Force Majeure Event") including,
without limitation in any way, as the result of any acts of God, war, fire, or other casualty,
riot, civil unrest, extreme weather conditions, terrorism, strikes and/or labor disputes,
pandemic, epidemic, quarantines, government stay-at-home orders, municipal and other
government orders, failure of Internet, or other matter beyond the control of such party.
Upon the occurrence of a Force Majeure Event, the party incurring such Force Majeure
Event will promptly give notice to the other party identifying the Force Majeure Event,
explaining how it impacts performance and the estimated duration, identifying the relief
requested, agreeing to limit damages to the other party and to immediately resume
performance upon termination of the Force Majeure Event, and agreeing to supplement the
notice as more information becomes available, and thereafter the parties shall meet and
confer in good faith in order to identify a cure of the condition affecting its performance as
expeditiously as possible. No obligation to make a payment required by this Agreement is
excused by a Force Majeure Event. The nonperforming party shall not be entitled to any
damages or additional payments of any kind for any such delay.
7.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate thirty (30) days after the last payment required by Section
3.1(1)(a) (the Termination Date).
7.5 Execution By Facsimile. The parties agree that this Agreement may be transmitted
among them by email or facsimile machine. The parties intend that the emailed or faxed
signatures constitute original signatures and that an emailed or faxed Agreement
containing the signatures (original, emailed or faxed) of all the parties is binding on the
parties.
7.6 Memorandum of Development Agreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit E in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreementto be duly executed in its
name and behalf by its Mayor and attested to by its City Clerk and Developer has caused
this Agreement to be duly executed on or as of the first above written.
20
CITY OF DUBUQUE, IOWA
Brad M. Cavanagh, Mayor
Attest:
Adrienne N. Breitfelder
City Clerk
(City Seal)
21
SWITCH DEVELOPMENT, LLC
By: A4 --
Matt M9,digan, Managing Member
STATE OF IOWA
SS
COUNTY OF DUBUQUE
On this day of 2023, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Brad M. Cavanagh and
Adrienne N. Breitfelder, to me personally known, who, being by me duly sworn, did say that
they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal
corporation executing the instrument to which this is attached; that the seal affixed hereto is
the seal of said municipal corporation; that said instrument was signed and sealed on
behalf of the City of Dubuque, Iowa, by authority of its City Council; and that said Mayor
and City Clerk acknowledged the execution of said instrument to be the voluntary act and
deed of said City, by it and by them voluntarily executed.
Notary Public
STATE OF IOWA
SS
COUNTY OF DUBUQUE
On this -GLA day of ? . /i 2023, before me the undersigned, a Notary
Public in and for the State ofJlowa, personally appeared Matthew T. Mulligan, to me
personally known, who, being by me duly sworn, did say that he is the Managing Member
of Switch Development, LLC, the corporation executing the instrument to which this is
attached and that as said Managing Member of Switch Development, LLC, acknowledged
the execution of said instrument to be the voluntary act and deed of said company, by it
and by them voluntarily executed.
o�"I"` a HMARIE STEFFEN
Commisalon Number 7 3023
fMICELE
My Comm. UP.
Notary Public
22
LIST OF EXHIBITS
EXHIBIT A — Urban Renewal Plan
EXHIBIT B — City Attorney's Certificate
EXHIBIT C — Opinion of Developer's Counsel
EXHIBIT D — City Certificate
EXHIBIT E — Memorandum of Development Agreement
EXHIBIT F — Certificate of Completion
EXHIBIT G — Intersection Improvements
EXHIBIT H — Right of Way Dedication Plat
EXHIBIT I — Sanitary and Storm Sewer
23
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13t" Street, Dubuque, IA 52001)
24
EXHIBIT B
CITY ATTORNEY'S CERTIFICATE
25
Barry A. Lindahl, Esq.
Senior Counsel
THE CITY OF
Suite 330, Harbor View Place
300 Main StreetDUBQ
Dubuque, Iowa 52001-6944
E
(563) 583-4113 office
(563) 583-1040 fax
Masterpiece on the Mississippi
balcsquicitv,olclubugue.or��
(DATE)
RE:
Dear
Dubuque
All-Ame W City
2007,2012.2013
2017*2019
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement by and between Switch Development,
LLC (Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the
day of , 20_.
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
, 20_, are correct.
BAL:JLM
INN
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
EXHIBIT C
OPINION OF DEVELOPER'S COUNSEL
27
Mayor and City Councilmembers
City Hall
13th and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Switch Development, LLC
Dear Mayor and City Councilmembers:
We have acted as counsel for Switch Development, LLC, (Developer) in connection
with the execution and delivery of a certain Development Agreement (Development
Agreement) between Developer and the City of Dubuque, Iowa ("City") dated for reference
purposes the day of , 20_
We have examined the copies identified to our satisfaction as being true copies of
the Development Agreement and such other documents and records as we have deemed
relevant and necessary as a basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under the laws
of the State of Iowa and has full power and authority to execute, deliver and perform in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Developer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Developer enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the certificate of organization and operating agreement of
Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment,
decree, order, statute, rule, regulation or restriction to which Developer is a party or by
which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
W
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
Very truly yours,
29
EXHIBIT D
CITY CERTIFICATE
3l7
THE CITY OF
DU-B9 E
Masterpiece on the Mississippi
(DATE)
Dubuque
City Manager's Office
City Hall
50 West 131h Street
All•America City
Dubuque, Iowa 520014864
(563) 589-4110 office
(563) 589-4149 fax
ctymgr@cityofdubuque.org
2007-2012.2013
2017*2019
Re: Development Agreement By and Among the City of Dubuque, Iowa, and Switch
Development, LLC
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement by and
among Switch Development, LLC, (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and shall
not result in any material breach of any terms or conditions of any mortgage, bond,
indenture, agreement, contract, license, or other instrument or obligation to which
City is a party or by which either the City or the Property being conveyed are bound,
nor shall the execution, delivery and performance of this Agreement violate any
statute, regulation, judgment, writ, injunction or decree of any court threatened or
entered in a proceeding or action in which City may be bound or to which either City
or the Property being conveyed may be subject.
(2) City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement, and has full power and authority to
execute, deliver and perform its obligations under this Agreement. City's attorney
shall issue a legal opinion to Developer at time of closing confirming the
representation contained herein, in the form attached hereto as Exhibit C.
(3) City shall exercise its best efforts to assist with Developer in the development
process.
31
(4) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(5) The representations and warranties contained in this article shall be correct in
all respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
32
EXHIBIT E
MEMORANDUM OF DEVELOPMENT AGREEMENT
33
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an Iowa municipal
corporation, of Dubuque, Iowa, and Switch Development, LLC was made regarding the
following described premises:
Lot 2 of Switch Development @ JFK No. 1, in the City of Dubuque, Iowa,
according to the recorded Plat thereof.
The Development Agreement is dated for reference purposes the day of
, 20 , and contains covenants, conditions, and restrictions concerning the sale
and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of the
Development Agreement, together with any amendments thereto, is in the possession of
the City of Dubuque and may be examined at its offices as above provided.
Dated this day of 120
CITY OF DUBUQUE, IOWA SWITCH DEVELOPMENT, LLC
34
By By
Brad M. Cavanagh Matthew ulligan
Mayor Managing ember
Attest:
Adrienne N. Breitfelder
City Clerk
STATE OF IOWA
SS
COUNTY OF DUBUQUE
On this day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Brad M. Cavanagh and Adrienne N.
Breitfelder, to me personally known, who being by me duly sworn did say that they are the
Mayor and City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to said instrument
is the seal of said Municipal Corporation and that said instrument was signed and sealed
on behalf of said Municipal corporation by authority and resolution of its City Council and
said Mayor and City Clerk acknowledged said instrument to be the free act and deed of
said Municipal Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of 20_, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Matthew T. Mulligan, to me
35
personally known, who, being by me duly sworn, did say that he is Managing Member of
Switch Development, LLC, the corporation executing the instrument to which this is
attached and that as said Managing Member of Switch Development, LLC, acknowledged
the execution of said instrument to be the voluntary act and deed of said company, by it
and by them voluntarily executed.
0
EXHIBIT F
CERTIFICATE OF COMPLETION
37
Prepared By: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
Return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (City)
has entered into a Development Agreement with Switch Development, LLC (Developer)
dated as of [Date], related to certain real property located within the John F. Kennedy Road
Urban Renewal Area of the Grantor and as more particularly described as follows:
Lot 2 of Switch Development @ JFK No. 1, in the City of Dubuque, Iowa, according to
the recorded Plat thereof
(the "Property"); and
WHEREAS, the Development Agreement contained certain
covenants and conditions with respect to the development of the Property, and
obligated Developer to construct certain Minimum Improvements in accordance with the
Agreement; and
WHEREAS, Developer has to the present date performed said
covenants and conditions insofar as they relate to the construction of the Minimum
Improvements in a manner deemed sufficient by City to permit the execution and
recording of this certification; and
NOW, THEREFORE, pursuant to Section 2.1(4) of the Agreement,
this is to certify that all covenants and conditions of the Development Agreement with
respect to the obligations of Developer, and its successors and assigns, to construct the
Minimum Improvements on the Property have been completed and performed by
Developer to the satisfaction of City and such covenants and conditions are hereby
terminated.
38
The Recorder of Dubuque County is hereby authorized to accept for recording and to
record the filing of this instrument, to be a conclusive determination of the satisfaction of
the covenants and conditions of the Development Agreement and the Development
Agreement shall otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
Michael C. Van Milligen, City Manager
STATE OF IOWA
SS
COUNTY OF DUBUQUE
On this day of , 20 , before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen,
to me personally known, who, being by me duly sworn, did say that he is the City
Manager of the City of Dubuque, Iowa, a municipal corporation, and that the instrument
was signed on behalf of the corporation, and Michael C. Van Milligen acknowledged the
execution of the instrument to be his voluntary act and deed.
Notary Public in and for said State
39
EXHIBIT G
INTERSECTION IMPROVEMENTS
41
EXHIBIT H
RIGHT OF WAY DEDICATION PLAT
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PLAT OF SURVEY
SWITCH DEVELOPMENT @ JFK NO. 1,
IN THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA
PART OF LOT 3 OF LOT 2, HELEN E. & MARY H. STEWART
SUBDIVISION;
LOT 5 AND LOT 2 OF LOT 6 OF THE NE 114 - SECTION 16,
T89N, R2E OF
THE 5TH P.M. IN THE CITY OF DUBUQUE:, DUBUQUE COUNTY,
IOWA
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EXHIBIT I
SANITARY AND STORM SEWER
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45