Development Agreement with Switch Homes, LLC_HearingCity of Dubuque
City Council Meeting
Public Hearings # 02.
Copyrighted
June 20, 2023
ITEM TITLE: Resolution Approving the 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: Proof of publication on notice of public hearing to consider City Council
adopt the attached resolution approving 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, and City Manager recommending approval.
RESOLUTION Approving 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
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
MVM Memo City Manager Memo
Staff Memo Staff Memo
Development Agreement Supporting Documentation
Resolution Resolutions
Public Input Supporting Documentation
THE CITY OF
Dubuque
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Approving the 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 14, 2023
Economic Development Director Jill Connors is recommending City Council adopt the
attached resolution approving 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. This proposed Development Agreement would
further the City Council's goal Livable Neighborhoods and Housing: Great Place to Live.
In September 2022, the City Council approved new housing incentives in order to facilitate
the creation of a variety of housing options in the City of Dubuque. This action has spurred
interest in developing housing, including the construction of single-family homes.
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 of the date of the Development
Agreement, and Phase 3 must begin within 10 years of the date of the Development
Agreement, with each of those additional phases required to be completed within 5 years
after commencement of construction.
Under the 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 the City Council for approval in
for this Development Agreement.
Urban Renewal Tax Increment Revenue Grant Obligations will be made based on the
actual increment received by the City, minus the 38% set -aside for low-income housing
programs, for each 6-month period during the term of the Development Agreement. The
Development Agreement provides for Urban Renewal Tax Increment Revenue Grant
Obligations to reimburse up to the qualified costs for the following infrastructure
improvements, 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.
The City Council is also being asked to amend the Development Agreement replacing the
term "development activities" with the term "infrastructure improvements" and replacing
the term "actual costs" with the term "qualified costs."
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Micliael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
2
Dubuque Economic Development
Department
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Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Approving the 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 13, 2023
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
approving 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 the City of 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 of the date of the Development
Agreement, and Phase 3 must begin within 10 years of the date of the Development
Agreement, with each of those additional phases required to be completed within 5 years
after commencement of construction.
Under the 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 the City Council for approval in
for this Development Agreement.
Urban Renewal Tax Increment Revenue Grant Obligations will be made based on the
actual increment received by the City, minus the 38% set -aside for low-income housing
programs, for each 6-month period during the term of the Development Agreement. The
Development Agreement provides for of Urban Renewal Tax Increment Revenue Grant
Obligations to reimburse up to the qualified costs for the following infrastructure
improvements, 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.
At the public hearing, the City Council will be asked to amend the Development
Agreement replacing the term "development activities" with the term "infrastructure
2
improvements" and replacing the term "actual costs" with the term "qualified costs." The
City Council will then be asked to approve the Development Agreement as amended.
RECOMMENDATION/ ACTION STEP
I recommend that the City Council adopt the attached resolution approving 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.
3
AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
SWITCH HOMES, LLC
This Agreement, as amended, dated for reference purposes the 30"" day of
,o.,n , 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:
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 19'
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.
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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 Qualified 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 Timing of Required 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 Qualified Costs of the following
Infrastructure Improvements:
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.
"Qualified Costs means the costs and expenses incurred by Developer necessary
to construct the Infrastructure Improvements, including interest during construction
and for not more than six months thereafter, costs for acquisition of right of way,
easements, landscaping, grading, drainage, paving, underground utility
connections for private property located in the streets, engineering, architectural,
plans and specifications, labor, materials, supplies, equipment use and rental,
delivery charges, overhead, mobilization, and legal expenses related to those
improvements. To be Qualified Costs, they must be incurred by Developer with
respect to those Infrastructure Improvements that are dedicated to and accepted
by the City."
B. Grants, not to exceed Qualified Costs during the term of this Agreement, for
the Infrastructure Improvements 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
Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
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 Qualified Costs by Developer for Infrastructure Improvements.
May 1, 2035: 100% of the remaining yearly increment after the deduction
of the LMI Housing Assistance set -aside, but not to exceed the Qualified
Costs by Developer for Infrastructure Improvements.
C. Grants, not to exceed Qualified Costs during the term of this Agreement,
for the Infrastructure Improvements 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 Qualified Costs by Developer for
Infrastructure Improvements.
D. Grants, not to exceed Qualified Costs during the term of this Agreement,
for the Infrastructure Improvements 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 Qualified Costs by Developer for
Infrastructure Improvements.
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 bV 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 by 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
Adrienne N. Breitfelde , City Clerk
SWITCH HOMES, LLC
B
v*
_
Matthew Mulliaan, President & COO
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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PRELIMINARY PLAT
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DUBU4UE, IOWA
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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
Dubuque City Manager's Office
City
THE CITY OF
50 West
13th Street
All-Amerin My Dubuque, Iowa 52001-4864
N.SIF NAI.Tl-IJA,I1I
UrB E 1 1 (563) 589-41office
(563) 589-414949 fax
ctymgr@cityof dubuque. org
2007*2012*2013
Masterpiece on the Mississippi 2017*2019
(DATE)
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 , 2023.
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
balesgLa,cityofdubuque.org
(DATE)
Dear
THE CITY OF
DUB E
Masterpiece on the Mississippi
Dubuque
NI-A�Eri61 db
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 , 2023.
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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9
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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 , 2023.
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
Prepared by: Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque fA 52001 (563) 583-4113
Return to: Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque lA 52001
RESOLUTION NO. 199-23
APPROVING 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
WHEREAS, Switch Homes, LLC is 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 the
Development Agreement will be amended to add the recorded Plat); and
WHEREAS, the City Council, by Resolution No. 176-23, dated June 5, 2023,
declared its intent to enter into a Development Agreement with Switch Homes, LLC
pursuant to which Switch Homes, LLC will construct on the Property certain infrastructure
improvements as described in the Agreement; and
WHEREAS, the parties intend to adopt and the Development Agreement is subject
to a conditioned upon adopting an Urban Renewal Plan which will be on file with the
County Auditor and the Dubuque City Cleric by no later than December 31, 2023; 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 infrastructure 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, pursuant to published notice, a public hearing was held on the
proposed Development Agreement on June 20, 2023 at 6:30 p.m.; and
WHEREAS, it is the determination of the City Council that the approval of the
Development Agreement for the construction of certain infrastructure improvements on
the Property, according to the terms and conditions set out in the Development
Agreement, is in the public interest of the City of Dubuque.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the Development Agreement by and between the City of
Dubuque and Switch Homes, LLC, a copy of which is attached hereto, including the
issuance of Urban Renewal Tax Increment Revenue Obligations, is hereby approved,
subject to and conditioned upon the adoption of the Urban Renewal Plan by no later than
December 31, 2023.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City of Dubuque and the City Clerk is authorized
to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to comply with the terms and conditions of the Development Agreement as
herein approved.
Passed, approved and adopted this 20th day of June, 2023
Brad M. Ca nagh, Mayor
Attest:
��''u kze."
Adrienne N. Breitfelder, City Clerk
IHMES11 L
1]M1 FORM MGOOW DRIVE
DUBUOUE, IOWA 52001
lone V. 2013
ad: wne 20,2M Ful Varying Ml Fesownnn Rppmine Me oevebpmemaereemem
b co the an or OOWeoe and 3wlW Xomw rr< treating far the lswano or urban
eerewalnerrrtrcmeM Rerenue Grant O511pXon5 PaWl to the Dammonml Kreement
xonm.ble ob or and nry Drunk,
I would lib: up the an reraa hart l am oil worming on m/ U n Park Flare apanmem aria
Thimmimn aerelgr l m be Im¢a an Mre N woes I own an the n,M aae or the
shorthl Arteelal µMN is directly north or Me Sal Harma, LIX de opment may mmine
muni
i loved at me Mor 3,=3 IDnI ne so lmry(nmmMlm with Is realest thatI
moartY the pramil mnamloll Onelopmml FEE m omm, m on mu and
Kommaalum" Pdi mi me proceed right in ma riot out mha�b my,
rt4pmot weld not oofar my deromment, Aare Men, I have been w ne on
wsse(uneepwal Onwnpmem plan pwri ,roll LenalM Mormon to YlmR at the
is in, Iombn a. Me dam In. ad ]am vet only W a to the xnnMn9 Aneral M Me AtlN
am rommone the Development nneement beewem the C" Wbueua and swrcd Homes,
"arlodea PiORbe Urban oe Gran e to betmaMd In
s s�enalea inRnesa m on the Honh W W Fnenal that v'wld
m "I'll to n IV berelaomam a na the Swum Homes aevaopnem I I am able to
nerpeNnlywerait.q�
n F
Doc ID: 011170130002 Type: GEN
Kind: AGREEMENT
Recorded: 12/01/2023 at 04:27:48 PM
Fee Amt: $12.00 Paqe 1 of 2
Dubuque County Iowa
Karol Kennedy Recorder
File2023-00011381
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 between the City of Dubuque, Iowa, an Iowa
municipal corporation, of Dubuque, Iowa and Switch Homes, LLC was made regarding
the following described premises:
Switch Homes of Dubuque, in the City of Dubuque, Iowa
The Development Agreement is dated for reference purposes the 20th day of June,
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 (JWX , 2023.
CITY OF DUB E, IOWA
By:lt"'
Barry A Lindahl, Esq., Senior Counsel
STATE OF IOWA
DUBUQUE COUNTY
On this 204' day of c-Uu , 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.
JONI LYN NIZINCER
r Comml"Ion Number 832198
Notary V ic, State o Iowa t o�rRb Expires
STATE OF IOWA SS:
DUBUQUE COUNTY
CERTIFICATE OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc,, an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
06/09/2023
and for which the charge is 43.21
5u scribed to be ore me, a Notary Publt n and for
Dubuque County, Iowa,
this 9th day of June, 2023
QM4 &� K--1 24vvva�
Notary P li in and for Dubuque Coilunty, Iowa.
gut s JAN£T K. PAP£
o* p Commission Number 199659
My Commission Fxpires
,p�va 12111/2025
Ad text : 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 20th day of June,
2023, at 6:30 p.m., in the Historic Federal Building, 350 W.
6th 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 13th 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 continents regarding the above public hearing may be
submitted to the City Clerk's Office via email at
ctyclerk f! cityofdubuque. org or by mail to City Clerk's Office,
City Hall, 50 W. 13th 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) 589-4I00, 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 5th day
of June 2023.
Adrienne N. Breitfelder, City Clerk
I t 6/9