Resolution Setting a Public Hearing on a Proposed Development Agreement with Switch Homes LLC_InitiateCity of Dubuque
City Council Meeting
Copyrighted
June 5, 2023
Items to be set for Public Hearing #
04.
ITEM TITLE:
Resolution Setting a Public Hearing on a Proposed Development
Agreement between the City of Dubuque and Switch Homes, LLC
Providing for the Issuance of Urban Renewal Tax Increment Revenue
Grant Obligations Pursuant to the Development Agreement
SUMMARY:
City Manager recommending City Council adopt the attached resolution
setting a public hearing for June 20, 2023, on a proposed Development
Agreement between Switch Homes, LLC and the City of Dubuque
providing for the issuance of Urban Renewal Tax Increment Revenue
Grant Obligations.
RESOLUTION Intent to approve a Development Agreement between
the City of Dubuque and Switch Homes, LLC including the proposed
reimbursement of Switch Homes, LLC for certain infrastructure
improvements as described in the Development Agreement by the
issuance of Urban Renewal Tax Increment Revenue Grants, fixing the
date for a public hearing of the City Council of the City of Dubuque, Iowa,
and providing for the publication of notice thereof
SUGGESTED
Receive and File; Adopt Resolution(s), Set Public Hearing for June 20,
DISPOSITION:
2023Suggested Disposition:
ATTACHMENTS:
Description
Type
MVM Memo
City Manager Memo
Staff Memo
Staff Memo
Development Agreement
Supporting Documentation
Notice of Hearing
Supporting Documentation
Resolution to Set Public Hearing
Resolutions
THE CITY OF
Dubuque
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All -America City
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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 between the City of Dubuque and Switch Homes, LLC
Providing for the Issuance of Urban Renewal Tax Increment Revenue
Grant Obligations Pursuant to the Development Agreement
DATE: June 1, 2023
Economic Development Director Jill Connors is recommending City Council adopt the
attached resolution setting a public hearing for June 20, 2023, on a proposed
Development Agreement between Switch Homes, LLC and the City of Dubuque
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 Economic Development
Department
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All-Me1*109ft Dubuque, Iowa 52001-4763
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2007-2012.2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Setting a Public Hearing on a Proposed Development
Agreement between the City of Dubuque and Switch Homes, LLC Providing
for the Issuance of Urban Renewal Tax Increment Revenue Grant
Obligations Pursuant to the Development Agreement
DATE: May 30, 2023
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
setting a public hearing for June 20, 2023 on a proposed Development Agreement
between Switch Homes, LLC and the City of Dubuque providing for the issuance of Urban
Renewal Tax Increment Revenue Grant Obligations.
BACKGROUND
In September 2022, the City Council approved new housing incentives in order to facilitate
the creation of a variety of housing options in Dubuque. This action has spurred interest
in developing housing, including the construction of single-family homes.
DISCUSSION
Switch Homes, LLC proposes to construct 105 single-family homes and multifamily units
in an area locally referred to as Mozena Farms, located south of the Northwest Arterial
and east of John F. Kennedy Road. This property was recently rezoned to accommodate
residential construction. As part of that project, numerous public improvements must be
made, including the construction of streets and installation of public utilities. Certain of
these public improvements are required to be constructed within two years of the date of
the agreement, after which the Developer agrees to maintain those improvements for a
minimum of an additional two years.
The project is planned in a phased approach. The Development Agreement requires the
first phase to begin construction by August 1, 2023 and allows up to 5 years for
completion. Phase 2 must begin within 5 years, and Phase 3 must begin within 10 years,
with each of those additional phases required to be completed within 5 years.
Per Iowa code, the City may exercise its urban renewal authority and use tax increment
to reimburse expenses for public improvements. To this end, City staff have prepared an
urban renewal plan, which will be brought to City Council for approval in relation to this
development agreement.
Grants will be made available based on the actual increment received by the City, minus
the 38% set -aside for low-income housing programs, each 6-month period during the term
of the agreement. The development agreement provides for economic development
grants to reimburse up to actual costs the following activities, as allowed by Iowa law.
The principal structures, works, component parts and accessories of any of the
following:
1) Sanitary, storm and combined sewers.
2) Drainage conduits, channels and levees.
3) Street grading, paving, graveling, macadamizing, curbing, guttering,
and surfacing with oil, oil and gravel or chloride.
4) Street lighting fixtures, connections and facilities.
5) Sewage pumping stations, and disposal and treatment plants.
6) Underground gas, water, heating, sewer and electrical connections
located in streets for private property.
7) Sidewalks and pedestrian underpasses or overpasses.
8) Drives and driveway approaches located within the public right-of-
way.
9) Waterworks, water mains and extensions.
10)Plazas, arcades and malls.
11)Parking facilities.
12)Removal of diseased or dead trees from any public place, publicly
owned right-of-way or private property.
13)Traffic-control devices, fixtures, connections, and facilities.
RECOMMENDATION/ ACTION STEP
I recommend that the City Council adopt the attached resolution setting a June 20, 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 Livable Neighborhoods and Housing:
Great Place to Live.
2
AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
SWITCH HOMES, LLC
This Agreement, dated for reference purposes the day of
, 2023, by and between the City of Dubuque, Iowa, a municipality
(City), established pursuant to Iowa Code and acting under authorization of Iowa Code
Chapter 489, as amended (Urban Renewal Act), and Switch Homes, LLC, an Iowa
limited liability company with its principal place of business in Dubuque, Iowa
(Developer).
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an urban renewal project (the Project) to advance the community's ongoing
economic development efforts; and
WHEREAS, the Project is located within the Switch Homes Housing Urban
Renewal Area Economic Development District (the Project Area); and
WHEREAS, as of the date of this Agreement an urban renewal plan for the
Project Area consisting of the urban renewal plan for the Switch Homes Housing Urban
Renewal Area Economic Development District, was approved by the City Council of City
on the day of 2023, (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, attached hereto as Exhibit A, is on file with the Clerk for the City; and
WHEREAS, Developer is or will be the owner of the following described real
property:
Mozena Farm South in the City of Dubuque, Iowa, according to the plat recorded
as Instrument No. 2005-17498, records of Dubuque County, Iowa; and
Lot 2 of "Dondelinger Place" in the City of Dubuque, Iowa, according to the
preliminary plat attached as Exhibit B.
(the Property) (the parties agree that the Property will be replatted and this
Agreement will be amended to add the recorded Plat)
and
WHEREAS, the Developer plans a development of single-family homes and
multifamily units on lots all of which are owned by Developer as of the date of this
Agreement (the Project) which is located in the Project Area, and thereafter to cause the
same to be operated in accordance with this Agreement; and
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WHEREAS, the Developer is willing to cause certain infrastructure improvements
to be constructed on and within the Property; and
WHEREAS, the City intends to assist the Project through grants toward
infrastructure improvements; and
WHEREAS, City believes that the Project and the development of the Property
pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the
vital and best interests of City and in accord with the public purposes and provisions of
the applicable federal, state, and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the promises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES.
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 E.
(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) 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. Developer makes the following
representations and warranties:
(1) Developer is duly organized and validly existing or authorized under the
laws of the State of Iowa and have all requisite power and authority to own and
operate their properties, to carry on their respective business as now conducted
and as presently proposed to be conducted, and to enter into and perform their
obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer, and assuming due authorization, execution and delivery by 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 good faith 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 commitments for permanent financing for the Development
Project and all of their respective obligations under this Agreement 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.
1.3 Conditions to Closing. The closing of the transaction (the Closing) contemplated
by this Agreement and all the obligations of Developer under this Agreement are subject
to fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the Closing, City shall deliver a
certificate in the form of Exhibit D.
(2) Developer has obtained any and all necessary governmental approvals,
including without limitations approval of zoning, subdivision, or platting which
might be necessary or desirable in connection with the development of the
Property. Any conditions imposed as a part of the zoning, platting or subdivision
must be satisfactory to Developer, in its sole opinion. City shall cooperate with
Developer in attempting to obtain any such approvals and shall execute any
documents necessary for this purpose, provided that City shall bear no expense
in connection therewith. In connection therewith, City agrees (a) to review all of
Developer's plans and specifications for the Project and to either reject or
approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that City
has approved such plans and specifications, and that the same are in
compliance with the Urban Renewal Plan and Developer agrees to comply with
any amendments to the Urban Renewal Plan, this Agreement and any other
applicable City or affiliated agency requirements, with the understanding that
Developer and its lenders shall have the right to rely upon the same in
proceeding with the project; (c) to identify in writing within ten (10) working days
of submission of said plans and specifications, any and all permits, approvals
and consents that are legally required, and the construction, use and occupancy
of the Project with the intent and understanding that Developer and its lenders
and attorneys will rely upon same in establishing their agreement and time
frames for construction, use and occupancy, lending on the project and issuing
legal opinions in connection therewith; and (d) to cooperate fully with Developer
to streamline and facilitate the obtaining of such permits, approvals and
consents.
(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 such party's financial ability as in the
reasonable judgment of City is required.
(5) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit C.
(6) Developer shall have the right to terminate this Agreement at any time
prior to the consummation of the closing on the Closing Date if Developer
determines in its sole discretion that conditions necessary for the successful
completion of the Project contemplated herein have not been satisfied to the full
satisfaction of such party in such party's sole and unfettered discretion. Upon the
giving of notice of termination by such terminating party to the other parties to
this Agreement, this Agreement shall be deemed null and void.
(7) Developer shall have recorded a final plat of the Property.
1.4 Closing. The closing shall take place on the Closing Date which shall be the 19th
day of June, 2023, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 30t" day of June, 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.
1.5 City's Obligations at Closing. At or prior to Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES.
2.1 Required Improvements. City acknowledges that Developer is developing a
residential development on the Property as shown on the plats attached hereto as
Exhibit B. Developer agrees as follows (the Required Improvements):
(1) To reduce the unimproved portions of Tiffany Court, Stones Throw Road,
Lost Goose Loop, Linger Longer Lane, and Fun Place to grade and to construct
longitudinal sub -drain, concrete curb and gutter with asphaltic concrete pavement
or with Portland Cement concrete pavement with integral curb, and temporary
cul-de-sacs, all in accordance with the City of Dubuque standard specifications in
a manner acceptable to the City Engineer, in conformance with construction
improvement plans approved by the City Engineer, and inspected and approved
by the City Engineer. The temporary cul-de-sacs to receive bituminous without
curb and gutter, all in accordance with the City's standard specifications in a
manner acceptable to the City Engineer, in conformance with construction
improvement plans approved by the City Engineer, and inspected and approved
by the City Engineer.
(2) To install sanitary sewer mains and sewer service laterals into each
individual lot, sanitary sewer lift station and force main and appurtenances, water
mains and water service laterals into each individual lot, storm water detention
basins, storm sewers and catch basins, boulevard street lighting, fiber optic
conduit and vaults, and erosion control devices all in accordance with the City of
Dubuque standard specifications in a manner acceptable to the City Engineer,
and in accordance with construction improvement plans approved by the City
Engineer, and inspected and approved by the City Engineer.
(3) To construct accessible sidewalk ramps at each intersection and street
crossings in accordance with City of Dubuque Standards and Specifications, all
in a manner acceptable to the City Engineer, and in accordance with the
construction improvement plans approved by the City Engineer and inspected
and approved by the City Engineer.
(4) To construct accessible concrete sidewalk across all lots on the Final Plat
designated to be dedicated to the City of Dubuque in accordance with the City's
standards and specifications, all in a manner acceptable to the City Engineer,
and in accordance with the construction improvement plans approved by the City
Engineer.
(5) To construct a right in right out access at the intersection of Stones Throw
Drive and the Northwest Arterial and associated deceleration lane along the
Northwest Arterial in accordance with City of Dubuque Standards and
Specifications, all in a manner acceptable to the City Engineer, and in
accordance with the construction improvement plans approved by the City
Engineer and inspected and approved by the City Engineer.
(6) To regrade the existing southern embankment along the Northwest
Arterial roadway in accordance with City of Dubuque Standards and
Specifications, all in a manner acceptable to the City Engineer, and in
accordance with the construction improvement plans approved by the City
Engineer and inspected and approved by the City Engineer.
a. Developer to pay City for ROW borrow material for the rate of $1/ CY.
Final billings to reflect actual material borrowed. ($1 per cubic yard for
approx. 35,000 cubic yard estimate).
b. Developer will restore disturb ROW area with an Iowa DOT Native
Grass Seeding mixture per spec. 2601.03.-5.
c. Developer will maintain the disturbed ROW area until final stabilization
is established per general No.2 permit requirements and City has
inspected and approved the same. After City has inspected and
approved and final stabilization is established per general No.2 permit
requirements, City will accept the turf and maintenance responsibilities.
d. After acceptance of the turf area, City will not commit to a specific turf
maintenance schedule/interval (mowing) on the disturbed ROW area.
e. Developer will install fiberglass right of way markers (at each new lot
corner) along the disturbed right of way areas (to keep homebuilder
contractor out of right of way areas).
(7) To construct the improvements outlined above within three (3) years from
the date of this Agreement.
(8) To maintain the improvements outlined above for a period of two (2) years
from the date of the acceptance of those improvements by the City Council of the
City of Dubuque, Iowa.
(9) To provide security for the performance of the foregoing conditions
specified in this Section in the amount of 110% of the estimated costs of the
improvements outlined above, in such form and with such sureties as may be
acceptable to the City Manager of the City of Dubuque, Iowa.
(10) Sanitary sewer must be sized by Developer and approved by the City
Engineer to serve the Property and the development of upstream sewer shed
properties that may be served by the sewer extension. If the upstream sewer
shed property requires Developer to increase the pipe diameter, City will
reimburse Developer for the incremental cost difference in sanitary sewer pipe
above the cost for sanitary sewer pipe needed to provide service for the
Property, as determined by the City Engineer. The reimbursement will be based
on the difference in sanitary sewer pipe costs only and no allowance will be
made for the difference in installation costs.
2.2 Plans for Construction of Required Improvements. Plans and specifications with
respect to the Property and the construction of the Required 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 applicable to the Property, 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 Required Improvements to be constructed by Developer
on the Property. All work with respect to the Required Improvements shall be in
substantial conformity with the Construction Plans approved by City. Developer
specifically acknowledges and understands the requirements and limitations of Iowa
Code §403.22 (6).
2.3 Developer will not adopt any covenant that prohibits or restricts the construction
of manufactured homes on the Property.
2.4 Timina of Reauired Improvements.
(1) Developer hereby agrees that construction of Required Improvements in
the Phase 1 area of the Property, as shown on Exhibit F, shall be commenced by
August 1, 2023 and completed by July 31, 2028 and shall be built in accordance
with the Final Plat and Improvement Plans as approved by the City Council
Resolution with Developer Acknowledgment for the Development.
(2) Developer hereby agrees that construction of Required Improvements on
in the Phase 2 area of the Property, as shown on Exhibit F, shall be commenced
by August 1, 2028 and completed by July 31, 2033.
(3) Developer hereby agrees that construction of Required Improvements on
in the Phase 3 area of the Property, as shown on Exhibit F, shall be commenced
by August 1, 2033 and completed by July 31, 2038.
SECTION 3. CITY PARTICIPATION.
3.1 Economic Development Grants.
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 provide Economic
Development grants to reimburse Developer for the actual cost of the following
Development Activities:
The principal structures, works, component parts and accessories of any of the
following:
1) Sanitary, storm and combined sewers.
2) Drainage conduits, channels and levees.
3) Street grading, paving, graveling, macadamizing, curbing, guttering,
and surfacing with oil, oil and gravel or chloride.
4) Street lighting fixtures, connections and facilities.
5) Sewage pumping stations, and disposal and treatment plants.
6) Underground gas, water, heating, sewer and electrical connections
located in streets for private property.
7) Sidewalks and pedestrian underpasses or overpasses.
8) Drives and driveway approaches located within the public right-of-
way.
9) Waterworks, water mains and extensions.
10)Plazas, arcades and malls.
11)Parking facilities.
12)Removal of diseased or dead trees from any public place, publicly
owned right-of-way or private property.
13)Traffic-control devices, fixtures, connections, and facilities.
B. Grants, not to exceed actual costs during the term of this Agreement, for
the Development Activities for Phase 1 will be made as follows:
City agrees to make twenty (20) consecutive semi-annual payments to
Developer. City shall certify to the County prior to December 1 of each
year, commencing at the City's option, depending on build out of Switch
Homes, 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.
November 1, 2025: 100% of the remaining yearly increment after the
deduction of the 38.1 % set -aside per Iowa Code §403.22 for low or
moderate income families including single person households, earning no
more than eighty percent of the higher of the median family income of the
county or the statewide nonmetropolitan area as determined by the latest
United States Department of Housing and Urban Development, Section 8
income guidelines (LMI Housing Assistance), but not to exceed the actual
expenditures by Developer for Development Activities.
May 1 and November 1, 2026: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2027: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2028: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2029: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2030: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2031: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2032: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2033: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1 and November 1, 2034: 100% of the remaining yearly increment
after the deduction of the LMI Housing Assistance set -aside, but not to
exceed the actual expenditures by Developer for Development Activities.
May 1, 2035: 100% of the remaining yearly increment after the deduction
of the LMI Housing Assistance set -aside, but not to exceed the actual
expenditures by Developer for Development Activities.
C. Grants, not to exceed actual costs during the term of this Agreement, for
the Development Activities for Phase 2 will be made as follows:
City agrees to make twenty (20) consecutive semi-annual payments to
Developer. City shall certify to the County prior to December 1 of each
year, commencing at the City's option, depending on build out of Switch
Homes, beginning no later than December 1, 2029, 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.
Each May and November Grant will be 100% of the remaining yearly
increment after the deduction of the 38.1 % set -aside per Iowa Code
§403.22 for low or moderate income families including single person
households, earning no more than eighty percent of the higher of the
median family income of the county or the statewide nonmetropolitan area
as determined by the latest United States Department of Housing and
Urban Development, Section 8 income guidelines (LMI Housing
Assistance), but not to exceed the actual expenditures by Developer for
Development Activities.
D. Grants, not to exceed actual costs during the term of this Agreement, for
the Development Activities for Phase 3 will be made as follows:
City agrees to make twenty (20) consecutive semi-annual payments to
Developer. City shall certify to the County prior to December 1 of each
year, commencing at the City's option, depending on build out of Switch
Homes, beginning no later than December 1, 2034, 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.
Each May and November Grant will be 100% of the remaining yearly
increment after the deduction of the 38.1 % set -aside per Iowa Code
§403.22 for low or moderate income families including single person
households, earning no more than eighty percent of the higher of the
median family income of the county or the statewide nonmetropolitan area
as determined by the latest United States Department of Housing and
Urban Development, Section 8 income guidelines (LMI Housing
Assistance), but not to exceed the actual expenditures by Developer for
Development Activities.
The foregoing grants will be made pursuant to Iowa Code §403.9 of the Urban
Renewal Law, in amounts equal to the actual amount of tax increment revenues
collected by City under Iowa Code §403.19 (without regard to any averaging that
may otherwise be utilized under Iowa Code §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 improvements constructed by
Developer (the Developer Tax Increments), and no Grant may exceed such
Developer Tax Increment nor may the total of such Grants exceed the total
Developer Tax Increments. Developer recognizes and agrees that the Economic
Development Grants shall be paid solely and only from the incremental taxes
collected by City in respect to the Property and 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.
E. To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing at the City's option, depending on
build out of Switch Homes, December 1, 2024 or December 1, 2025, 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 the Developer if Developer owns or leases the Property and/or
improvements thereon during the period such tax increment revenues accrue, on
November 1 and May 1 of that fiscal year. (Example: If City so certifies by
December 2024, the Economic Development Grants in respect thereof would be
paid to Developer on November 1, 2025 and May 1, 2026.)
F. The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments paid to City that, upon receipt,
shall be deposited and held in a special account created for such purpose and
designated as the Switch Homes Housing 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
improvements and allocated to the Switch Homes Housing TIF Account to pay
the Economic Development Grants, as and to the extent set forth in Section
3.3(A) hereof. The Economic Development Grants shall not be payable in any
manner by other tax increments revenues or by general taxation or from any
other City funds. City makes no representation with respect to the amounts that
may be paid to Developer as the Economic Development Grants in any one year
and under no circumstances shall City in any manner be liable to Developer so
long as City timely applies the Developer Tax Increments actually collected and
held in the Switch Homes Housing TIF Account (regardless of the amounts
thereof) to the payment of the Economic Development Grants to Developer as
and to the extent described in this Section.
City shall be free to use any and all tax increment revenues collected in respect
of other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development
Grants under Section 3.2 hereof, for any purpose for which such tax increment
revenues may lawfully be used pursuant to the provisions of the Urban Renewal
Law, and City shall have no obligations to Developer with respect to the use
thereof.
SECTION 4. NOW APPROPRIATION / LIMITED SOURCE OF FUNDING.
4.1 Non -Appropriation. Notwithstanding anything in this Agreement to the contrary,
the obligation of City to pay any installment of the Economic Development Grants from
the pledged tax increment revenues shall be an obligation limited to currently budgeted
funds, and not a general obligation or other indebtedness of City or a pledge of its full
faith and credit within the meaning of any constitutional or statutory debt limitation, and
shall be subject in all respects to the right of non -appropriation by the City Council of
City as provided in this Section. City may exercise its right of non -appropriation as to
the amount of the installments to be paid during any fiscal year during the term of this
Agreement without causing a termination of this Agreement. The right of non -
appropriation shall be exercised only by resolution affirmatively declaring City's election
to non -appropriate funds otherwise required to be paid in the next fiscal year under this
Agreement.
In the event the City Council of City elects to not appropriate sufficient funds in the
budget for any future fiscal year for the payment in full of the installments on the
Economic Development Grant 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 Books and Records. During the term of this Agreement, Developer shall keep at
all times proper books of record and account in which full, true, and correct entries will
be made of all dealings and transactions of or in relation to the business and affairs of
Developer in accordance with generally accepted accounting principles consistently
applied throughout the period involved, and Developer shall provide reasonable
protection against loss or damage to such books of record and account.
5.2 No Other Exemptions. During the term of this Agreement, Developer agrees not
to apply for any state or local property tax exemptions which are available with respect
to the Property or the 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.
5.3 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve, and keep, or cause others to maintain, preserve, and keep, the
improvements in good repair and working order, except for ordinary wear and tear, and
from time to time shall make all necessary repairs, replacements, renewals, and
additions. Nothing in this Agreement, however, shall be deemed to alter any
agreements between Developer or any other party including, without limitation, any
agreements between the parties regarding the care and maintenance of the Property.
5.4 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.
5.5 Conflict of Interest. Developer agrees that no member, officer, or employee of
City, or its designees or agents, nor any consultant or member of the governing body of
City, and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the Project during his or her tenure, or who is in a
position to participate in a decision -making process or gain insider information with
regard to the Project, shall have any interest, direct or indirect, in any contract or
subcontract, or the proceeds thereof, for work to be performed in connection with the
project, or in any activity, or benefit therefrom, which is part of this Project at any time
during or after such person's tenure. In connection with this obligation, Developer shall
have the right to rely upon the representations of any party with whom it does business
and shall not be obligated to perform any further examination into such party's
background.
5.6 Non -Transferability. Until such time as the improvements are complete this
Agreement may not be assigned by Developer nor may the Property be transferred by
Developer to another party without the prior written consent of City, which shall not be
unreasonably withheld. Thereafter, Developer shall have the right to assign this
Agreement and upon assumption of the Agreement by the assignee, Developer shall no
longer be responsible for its obligations under this Agreement.
5.7 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:
A. Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a residential development 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
B. 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).
5.8 Release and Indemnification Covenants.
A. Developer releases City and the governing body members, officers,
agents, servants, and employees thereof (hereinafter, for purposes of this
Section, 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 resulting from any defect in
the improvements.
B. Except for any gross negligence, willful misrepresentation, or any willful or
wanton misconduct or any unlawful act of the Indemnified Parties, Developer
agrees to protect and defend the Indemnified Parties, now or forever, and further
agrees to hold the Indemnified Parties harmless, from any claim, demand, suit,
action, or other proceedings whatsoever by any person or entity whatsoever
arising from:
(1) Developer's violation of any agreement or condition of this
Agreement (except with respect to any suit, action, demand, or other
proceeding brought by Developer against City based on an alleged breach
of any representation, warranty, or covenant of City under this Agreement
and/or to enforce its rights under this Agreement); or
(2) The acquisition, construction, installation, ownership, and operation
of the improvements in accordance with the Final Plat and Improvement
Plans as approved by the City Council Resolution with Developer
Acknowledgment until such time as Developer's warranty of the
improvements has expired or, for individual lots, upon sale of a lot to a
new owner; or
(3) the condition of the Property and any hazardous substance or
environmental contamination located in or on the Property, caused by
Developer and occurring after Developer takes possession of the
Property.
C. The Indemnified Parties shall not be liable to Developer for any damage or
injury to the persons or property of Developer or its officers, agents, servants, or
employees or any other person who may be on, in or about the 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 City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements, and obligations of City, and not of any governing body member,
officer, agent, servant, or employee of City in their individual capacity thereof.
E. The provisions of this Section shall survive the termination of this
Agreement.
5.9 Compliance with Laws. Developer shall comply with all laws, rules, and
regulations relating to its businesses, other than laws, rules, and regulations for which
the failure to comply with or the sanctions and penalties resulting therefrom, would not
have a material adverse effect on the business, property, operations, financial, or
otherwise, of Developer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
6.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
A. Failure by Developer to pay or cause to be paid, before delinquency, all
real property taxes assessed with respect to the improvements and the Property.
After the issuance of the Certificate of Completion, however, such event shall not
entitle City to the remedy provided in Section 6.2.
B. Failure by Developer to cause the construction of the Required
Improvements to be commenced and completed pursuant to the terms,
conditions, and limitations of the Final Plat and Improvement Plans as approved
by the City Council Resolution with Developer Acknowledgment and this
Agreement.
C. 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.
D. Developer has no obligation under the term of Agreement to sell lots and
shall not be in default for a lack of sales but must make good faith effort at
reasonable return on investment. The Parties understand neither is responsible
for the status of the real estate market in the community. A good faith effort shall
be met if the lots are listed for sale at a fair market value with a reasonable return
on the investment of Developer. Developer shall not be forced to list lots for sale
which would result in Developer taking a loss on the development.
6.2 Remedies on Default by Developer. Whenever any Event of Default referred to
in Section 6.1 of this Agreement occurs and is continuing, City, as specified below, may
take any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and Developer does not provide
assurances to City that the Event of Default will be cured as soon as reasonably
possible thereafter:
A. City may suspend its performance under this Agreement until it receives
assurances from the defaulting party, deemed adequate by City, that the
defaulting party will cure its default and continue its performance under this
Agreement;
B. 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. Except as otherwise provided in this Agreement, 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 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 Homes, LLC
Attn: Matthew T. Mulligan
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 of Dubuque
Attn: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
With copy to: City Attorney's Office
300 Main Street, Suite 330
Dubuque, IA 52001
or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
7.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
7.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 30 following the last payment for Grants for Phase 3
(the Termination Date) pursuant to Iowa Code §403.22.
7.4 Execution bV Facsimile or Email. The parties agree that this Agreement may be
transmitted among them by facsimile machine or email. The parties intend that the
faxed or scanned signatures constitute original signatures and that a faxed or scanned
Agreement containing the signatures (original, faxed, or scanned) of all the parties is
binding on the parties.
7.5 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit G in
the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for
so recording.
CITY OF DUBUQUE, IOWA
An
Brad M. Cavanagh, Mayor
Adrienne N. Breitfelder, City Clerk
SWITCH HOMES, LLC
By: Aw/z �
Printed Name, Title
LIST OF EXHIBITS
Exhibit A
Urban Renewal Plan
Exhibit B
Plat(s)
Exhibit C
Opinion of Developer's Counsel
Exhibit D
City Certificate
Exhibit E
Opinion of City's Counsel
Exhibit F
Required Improvements
Exhibit G
Memorandum of Development Agreement
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13th Street, Dubuque, IA 52001)
EXHIBIT B
PRELIMINARY PLAT
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EXHIBIT C
OPINION OF DEVELOPER'S COUNSEL
Mayor and City Councilmembers
City Hall
13t" and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa, and Switch Homes,
LLC
Dear Mayor and City Councilmembers:
We have acted as counsel for Switch Homes, 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 12023.
We have examined the original certified copy, or copies otherwise identified to
our satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries
as we have deemed appropriate, we are of the opinion that:
1. Developer is an Iowa limited liability company with its principal place of
business at Dubuque, 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 articles of incorporation and bylaws
of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement,
judgment, decree, order, statute, rule, regulation or restriction to which Developer is a
party or by which Developer's property is bound or subject.
3. To the best of our knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting Developer in any court or before any
arbitrator or before or by any governmental body in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the business
(present or prospective), financial position or results of operations of Developer or which
in any manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
We have examined such documents and certificates of public officials and
officers of the Developer as we have deemed necessary for the purposes of this
opinion. As to the existence of facts which are material to this opinion, we have relied
upon certificates of public officials, statements by officers and resolutions of the
Members of the Developer. In rendering our opinion, we have assumed (i) the legal
capacity of all natural persons and the capacity and corporate power of all parties to the
documents examined by us other than the Developer, (ii) the due authorization,
execution and delivery of each document examined by us, by all parties to such
documents other than the Developer, (iii) the genuineness of all signatures other than
the signatures of the representatives of the Developer, (iv) the authenticity of all
documents submitted to us as originals; (v) the conformity to original documents of all
documents submitted to us as copies; and (vi) the City has no knowledge, direct or
through their counsel, which would render any of the representations set forth herein
inaccurate or incorrect. We have not made any independent investigation to verify any
assumptions made herein, and have not undertaken any factual investigation into the
business, properties, agreements or litigation of the Developer for the purpose of
rendering the opinions expressed herein. There may exist matters of a factual nature
which could have a bearing on our opinions expressed herein, with respect to which we
have not been consulted or are otherwise unaware. Where used herein, the language
"to the best of our knowledge" or language of similar nature means to our actual
knowledge with no duty to inquire further of any person or document. Said language is
intended to be limited to the actual knowledge of the attorneys within our firm who have
been directly involved in representing the Developer, or whom we reasonably believe
have knowledge of the affairs of the Developer. We have assumed that all
representations and warranties made by any party to the Development Agreement are
true and correct. We have examined the law, the resolutions of the members of
Developer, the Development Agreement, and such company proceedings of the
Developer and such other documents, certificates, instruments and matters as we deem
necessary to render this opinion.
The foregoing opinions are subject to:
(a) Equitable principles of general applicability (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, public policy,
equitable subordination and the possible unavailability of specific performance or
injunctive relief), regardless of whether considered in a proceeding in equity or at law or
whether codified by statute;
(b) The unenforceability of provisions purporting to waive rights, claims,
demands, liabilities or defenses to obligations, known or unknown, suspected or
unsuspected, where such waivers are contrary to any applicable law or against public
policy;
(c) The unenforceability, under certain circumstances, of provisions of
agreements to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not preclude
recourse to one or another remedy;
(d) The unenforceability under certain circumstances, of provisions which
purport to govern forum selection or consent to jurisdiction; and
(e) The potential to vary the terms of the Development Agreement on the
basis of parol evidence.
The opinions set forth herein are given as of the date hereof. We disclaim any
obligation to notify you or any other person after the date of this letter if any change in
fact and/or law should change our opinion with respect to any matters set forth herein.
This opinion is for your benefit only and may not be quoted in whole or in part or
otherwise referred to in any documents, or delivered to or filed with any person or entity,
or relied upon by any other person or entity, without our prior written consent.
Very truly yours,
EXHIBIT D
CITY CERTIFICATE
THE CITY OF
E
Masterpiece on the Mississippi
(DATE)
Dubuque City Manager's Office
City Hall
50 West 13th Street
All-Amerin City Dubuque, Iowa 52001-4864
N,AIFTAl � R1-IIA,Itl
®� (563) 589-4110 office
(563) 589-4149 fax
ctymgr@cityofdubuque.org
2007*2012.2013
2017*2019
Re: Development Agreement between the City of Dubuque, Iowa, and Switch Homes,
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
between Switch Homes, LLC (Developer) and the City of Dubuque, Iowa (City) dated for
reference purposes the day of 12023.
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 E.
(3) City shall exercise its best efforts to assist with Developer in the
development process.
(4) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
(5) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of the
Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
EXHIBIT E
OPINION OF CITY'S COUNSEL
Barry A. Lindahl, Esq.
Senior Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563)583-4113 office
(563)583-1040 fax
balesq @cityofdubuque. ort
(DATE)
0:1
Dear
THE CITY OF
DUB E
Masterpiece on the Mississippi
Dubuque
All-Amerin lip
nz
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 between Switch Homes, LLC
(Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the
day of 12023.
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
, 2023, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL-JLM
EXHIBIT F
REQUIRED IMPROVEMENTS
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EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
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
►yil4Jilei :7_1zIBill ►y,11010 Q :kVj 4 Its] :JlLTA 14ZkW-IT-Ci044Lh1:4►k0
A Development Agreement between the City of Dubuque, Iowa, an Iowa
municipal corporation, of Dubuque, Iowa and Switch Homes, LLC was made regarding
the following described premises:
Mozena Farm South in the City of Dubuque, Iowa, according to the plat recorded as
Instrument No. 2005-17498, records of Dubuque County, Iowa; and
Lot 2 of "Dondelinger Place" in the City of Dubuque, Iowa, according to the preliminary
plat attached as Exhibit B.
(the Property) (the parties agree that the Property will be replatted and this Agreement
will be amended to add the recorded Plat)
The Development Agreement is dated for reference purposes the day of
, 2023, and contains covenants, conditions, and restrictions concerning the
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 12023.
CITY OF DUBUQUE, IOWA
Barry A. Lindahl, Esq., Senior Counsel
STATE OF IOWA
: SS:
DUBUQUE COUNTY
On this day of , 2023, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Barry A. Lindahl, to me personally
known, who being by me duly sworn did say that he is Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
Iowa and that said instrument was signed on behalf of said Municipal corporation by
authority and resolution of its City Council and said Senior Counsel acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
Notary Public, State of Iowa
CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
PUBLIC NOTICE is hereby given that the City of Dubuque City Council will conduct a
public hearing on the 20t" day of June, 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 Homes, 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 Switch Homes Housing Urban Renewal Area, consisting of the funding of
economic development grants for Switch Homes, LLC, under the terms and conditions
of the Urban Renewal Plan for the Switch Homes Housing 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 $4,091,173.
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 hearing 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 the public hearing. At
said time and place of the public hearing 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 5t" day of June 2023.
Adrienne N. Breitfelder, City Clerk
Prepared by: Barry A. Lindahi, Esq. 300 Main Street Suite 330 Dubuque IA 52001 (563) 583-4113
Return to: Barry A. Undahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001
RESOLUTION NO. 176-23
INTENT TO APPROVE A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
DUBUQUE AND SWITCH HOMES, LLC INCLUDING THE PROPOSED
REIMBURSEMENT OF SWITCH HOMES, LLC FOR CERTAIN INFRASTRUCTURE
IMPROVEMENTS AS DESCRIBED IN THE DEVELOPMENT AGREEMENT BY THE
ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE GRANTS, FIXING
THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
WHEREAS, the City of Dubuque and Switch Homes, LLC have entered into a
Development Agreement, subject to the approval of the City Council, pursuant to which
Switch Homes, LLC will cause certain infrastructure improvements to be constructed on
and within Development Property as described in the Agreement; and
WHEREAS, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Development Agreement; and
WHEREAS, the Development Agreement provides for reimbursement of Switch
Homes, LLC by the issuance of Tax Increment Revenue Grants from the tax increment
revenues collected in respect of the improvements to be constructed in accordance with
the Development Agreement, for the purpose of carrying out the objectives of an Urban
Renewal Plan as described therein; and
WHEREAS, before said Tax Increment Revenue Grants 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 Council intends to approve the proposed Development
Agreement with Switch Homes, LLC.
Section 2. The City Clerk is hereby authorized and directed to cause a notice to
be published as prescribed by Iowa Code Section 403.9 of a public hearing to be held on
the 201h day of June, 2023 at 6.30 p.m. in the City Council Chambers at the Historic
Federal Building, 350 W. 6th Street, Dubuque, Iowa.
Section 3. The City Council will meet at said time and place for the purpose of
taking action on the matter of authorizing the execution of the Development Agreement
with Switch Homes, LLC, pursuant to and in accordance with the proposed Switch Homes
Housing Urban Renewal Area, including but not limited to the funding of reimbursement
for improvements by the issuance of Tax Increment Revenue Grants under the terms and
conditions of the Development Agreement and said Urban Renewal Plan. It is expected
that the aggregate amount of the Tax Increment Revenue Grants will not exceed
$4, 091,173.
Section 4. The City Clerk is hereby directed to cause at least one publication to
be made of a notice of said meeting, in a newspaper, printed wholly in the English
language, published at least once weekly, and having general circulation in said City, said
publication to be not less than four days nor more than twenty days before the date of
said meeting.
Section 5. That the notice of the proposed action shall be in substantially the
form attached hereto.
Passed, approved and adopted this 51h day of June, 2023.
Brad M. Cavanagh, Mayor
Attest:
'�7'4 "-, Ae�Zw"
Adrienne N. Breitfelder, City Clerk