Gardens of Dubuque, LLC Development Agreement_Initiate Copyrighted
September 21, 2020
City of Dubuque Items to be set for Public Hearing # 1.
City Council Meeting
ITEM TITLE: Gardens of Dubuque - DevelopmentAgreement
SUM MARY: City Manager recommending that the City Council schedule a public
hearing for September 28, 2020 regarding a Development Agreement
with Gardens of Dubuque, LLC for development of property located at
1895 Radford Road.
RESOLUTION Fixing the date for a public hearing of the City Council of
the City of Dubuque, lowa on a Development Agreement by and
between the City of Dubuque, lowa and Gardens of Dubuque, LLC
including the proposed issuance of Urban Renewal Tax I ncrement
Revenue Obligations relating thereto and providing for the publication of
notice thereof
SUGGESTED Receive and File;Adopt Resolution(s), Set Public Hearing for
DISPOSITION: September 28, 2020Suggested Disposition:
ATTACHMENTS:
Description Type
Gardens of Dubuque Development Agreement-MVM City Manager Memo
Memo
Staff Memo Staff Memo
Notice of Hearing Supporting Documentation
Resolution Setting Public Hearing Resolutions
Development Agreement Supporting Documentation
Dubuque
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Gardens of Dubuque, LLC - Development Agreement for Multi-
Residential Facility at 1895 Radford Road
DATE: September 17, 2020
Economic Development Director Jill Connors requests the City Council schedule a
public hearing for September 28, 2020 regarding a Development Agreement with
Gardens of Dubuque, LLC for development of property located at 1895 Radford Road.
The Development Agreement provides for 15 years of Tax Increment Finance (TIF)
rebates of property tax increases, for an estimated total of$1.1 million to encourage the
$10 million development of the property.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v �
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Jill M. Connors, Economic Development Director
Dubuque Economic Development
Department
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All•America Eity Dubuque,lowa 52001-4763
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TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Gardens of Dubuque, LLC — Development Agreement for Multi-Residential
Facility at 1895 Radford Road
DATE: September 9, 2020
INTRODUCTION
This memorandum is a request for the City Council to set a public hearing September
28, 2020 on entering into a Development Agreement for development of the property
located at 1895 Radford Road.
BACKGROUND
Gardens of Dubuque, LLC, managed by Tony Krsnich, approached City staff in 2018 to
begin discussions on the creation of a 50-unit affordable/mixed-income residential
development on the West End of Dubuque. The housing developer was in the process
of applying to the State of lowa for Affordable Housing Tax Credits. They have since
been awarded the credits and are now working to finalize their funding and financing
package in order to secure a loan for the project.
Tony Krsnich is the founder and CEO of Flint Hills Holdings Group, LLC based in
Kansas City. FHHG specializes in historic preservation and mixed-income housing,
emphasizing the incorporation of arts and entrepreneurship within the projects. FHHG
is currently working in Kansas, Missouri, and lowa.
Mr. Krsnich began his career in the real estate business in 2007 working as a
development associate and was exposed to numerous development types. He has
been the lead developer on over a dozen projects in Kansas and Missouri, including 3
national award winners.
DISCUSSION
The Developer, Gardens of Dubuque, LLC, is proposing to build a 50-unit mixed-income
housing facility along Radford Road, between Wolff Road and Carver Drive. The
building will be three stories with a surface parking lot and a small playground. A mix of
one-, two-, and three-bedroom units will be available with a range of affordable rents
based on county median income and the affordable housing tax credit program.
The property will be purchased by the Developer and has already been zoned to
accommodate the multi-residential project.
In order to cash flow this project that meets a housing need in Dubuque, the project will
take on a private loan at closing, the beginning of the construction period. Multi-
residential loans are typically underwritten such that projects must maintain enough
income to support the required debt service. The project is also being assisted with
Affordable Housing Tax Credits and a permanent mortgage.
It is appropriate to consider this property as part of the City of Dubuque's Urban
Renewal Program. The current property is vacant and therefore under-utilized. It had
been zoned Industrial and had been for sale for many years with no activity. A better
use for the property would be for multi-residential use which is commonly proposed as a
buffer between institutional uses, such as schools, and higher intensity uses. The
property was, therefore, "downzoned" to a more appropriate use for the 50-unit
affordable housing development.
There will be significant positive impact from the proposed development. The new
housing development will provide much needed affordable housing in an area of town
where currently none exists. It will also provide a buffer from the industrial uses on
properties adjacent to the south and the Eleanor Roosevelt Middle School adjacent to
the north. A neighborhood meeting was held in August 2019 where the Developer
discussed the development and answered questions the neighbors had. The developer
received positive feedback from the neighbors.
Without the support of the City of Dubuque, the proposed project would not be
financially feasible.
The proposed Development Agreement provides for 15 years of Tax Increment Finance
(TIF) rebates of property tax increases, for an estimated total of $1.1 million to
encourage the $10 million development of the property.
RECOMMENDATION/ ACTION STEP
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Based on the critical need for affordable housing in the community, in particular on the
West End, I recommend the City Council adopts the attached resolution to set a public
hearing on the attached Development Agreement between the City of Dubuque and
Gardens of Dubuque, LLC.
3
Prepared by/Return to: Jill Connors, Economic Development. 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 297-20
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA ON A DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA AND GARDENS OF DUBUQUE, LLC, INCLUDING
THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE
OBLIGATIONS RELATING THERETO AND PROVIDING FOR THE PUBLICATION
OF NOTICE THEREOF
WHEREAS, City and Gardens of Dubuque, LLC have entered into a Development
Agreement, subject to the approval of the City Council, a copy of which is now on file at
the Office of the City Clerk, City Hall, 50 W. 13th Street, Dubuque, Iowa for the
development of property located at 1895 Radford Road; and
WHEREAS, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Development Agreement, with Gardens of Dubuque,
LLC; and
WHEREAS, it is deemed necessary and advisable that City should authorize
Urban Renewal Tax Increment Revenue obligations, as provided by Iowa Code Chapter
403 pursuant to the Development Agreement; and
WHEREAS, before said obligations may be approved, Iowa Code Chapter 403
requires that the City Clerk publish a notice of the proposal and of the time and place of
the meeting at which the City Council proposes to take action thereon and at which
meeting the City Council shall receive oral and/or written objections from any resident or
property owner of said City to such proposed action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Clerk is hereby authorized and directed to cause a notice to be
published as prescribed by Iowa Code Section 403.9 of a public hearing on the City's
intent to authorize Urban Renewal Tax Increment Revenue obligations, to be held on the
28th day of September, 2020, at 6:30 o'clock p.m.. Due to the ongoing COVID-19
pandemic, the City Council will meet virtually through GoToMeeting. The official agenda
will be posted on Friday, September 25, 2020 and will contain listening, viewing, and
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.
Section 2. The City Council will meet at said time and place for the purpose of
taking action on the matter of authorizing Urban Renewal Tax Increment Revenue
obligations and the execution of the Development Agreement relating thereto with
Gardens of Dubuque, LLC, the proceeds of which obligations will be used to carry out
090920ba1
certain of the special financing activities described in the Urban Renewal Plan for the
Radford Road Urban Renewal District, consisting of the funding of economic
developments grants to Gardens of Dubuque, LLC pursuant to the Development
Agreement. It is expected that the aggregate amount of the Tax Increment Revenue
obligations to be issued will be approximately $1,140,000.
Section 3. The Clerk is hereby directed to cause at least one publication to be
made of a notice of said meeting, in a newspaper, printed wholly in the English
language, published at least once weekly, and having general circulation in said City,
said publication to be not less than four days nor more than twenty days before the date
of said meeting on the issuance of said obligations.
Section 4. That the notice of the proposed action to issue said obligations shall
be in substantially the form attached hereto.
Passed, approved and adopted this 21 st day of September, 2020.
L.,
Roy D. Bu,Mayor
Attest:
/2
Kev S. Firnstah , City Clerk
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NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON A DEVELOPMENT AGREEMENT BY AND BETWEEN THE
CITY OF DUBUQUE, IOWA AND GARDENS OF DUBUQUE, LLC FOR THE
DEVELOPMENT OF PROPERTY AT 1895 RADFORD ROAD, INCLUDING THE
PROPOSED AUTHORIZATION OF URBAN RENEWAL TAX INCREMENT REVENUE
OBLIGATIONS
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, lowa, will
hold a public hearing on the 28t" day of September, 2020, at 6:30 p.m. Due to the ongoing
COVID-19 pandemic, the City Council will meet virtually through GoToMeeting. The
official agenda will be posted on Friday, September 25, 2020 and will contain listening,
viewing, and 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., At said meeting the City Council
proposes to take action on the authorization and execution of the Development
Agreement, and on the issuance of economic development grants (Urban Renewal Tax
Increment Revenue Grant Obligations) described therein in order to carry out the
purposes and objectives of the Urban Renewal Plan for the Radford Road Urban Renewal
District, consisting of the funding of economic development grants to Gardens of
Dubuque, LLC, under the terms and conditions of said Development Agreement and the
Urban Renewal Plan for the Radford Road Urban Renewal District. The aggregate
amount of the Urban Renewal Tax Increment Revenue Grant Obligations cannot be
determined at the present time, but is not expected to exceed $1,140,000.
At the meeting, the City Council will receive oral and written objections from any resident
or property owner of said City to the above action. After all objections have been received
and considered, the City Council may at this meeting or at any adjournment thereof,
approve the Development Agreement, and authorize such Tax Increment Revenue Grant
Obligations or abandon the proposal. By order of the City Council said hearing and
appeals therefrom shall be held in accordance with and governed by the provisions of
lowa Code Section 403.9.
This notice is given by order of the City Council of the City of Dubuque, lowa, as provided
by lowa Code Chapter 403.
Dated this 21 St day of September 2020.
Kevin S. Firnstahl
City Clerk of Dubuque, lowa
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
GARDENS OF DUBUQUE, LLC
THIS DEVELOPMENT AGREEMENT (Agreement) dated for reference purposes
the day of , 2020 is made and entered into by and between the City
of Dubuque, lowa (City) and Gardens Of Dubuque, LLC, an lowa limited liability company
(Developer).
WHEREAS, Developer will be as of the Closing the owner of the following
described real estate (the Property):
LOT 1 OF LOT 1 OF WOLFF PLACE NO. 2 IN THE CITY OF DUBUQUE, IOWA,
according to the recorded plats thereof
locally known as 1895 Radford Road; and
WHEREAS, the Property is located in the Radford Road Urban Renewal District
(the District) which has been so designated by City Council Resolution -20 as an
economic development area (the Project Area) defined by lowa Code Chapter 403 (the
Urban Renewal Law); and
WHEREAS, Developer will undertake the development of a multi-residential
building located on the Property and will be operating the same during the term of this
Agreement; and
WHEREAS, Developer will make a capital investment in building improvements,
equipment, furniture and fixtures in the Property (Project); and
WHEREAS, pursuant to lowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on , 2020, City has the
authority to enter into contracts and agreements to implement the Urban Renewal Plan;
and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain
incentives as set forth herein.
NOW, THEREFORE, the parties to this Development Agreement, in consideration
of the promises, covenants and agreements made by each other, do hereby agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
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1.1 Re resentations and Warranties of Cit . 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 A.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of
whatever nature to which City is now a party or by which it or its property is bound,
or constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
the cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re-align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against
the Property.
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
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(8) As of the date of this Agreement there has been prepared and approved by
City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal
Plan for the Radford Road Urban Renewal Plan, approved by City Council of City
on , 2020, attached as Exhibit E (the Urban Renewal Plan). A copy
of the Urban Renewal Plan, as constituted on the date of this Agreement and in
the form attached hereto.
1.2 Representations and Warranties of Developer. The Developer makes the following
representations and warranties that to the best of Developer's knowledge:
(1) Developer is an lowa limited liability company duly organized and validly
existing under the laws of the State of lowa and has all requisite power and
authority to own and operate its properties, to carry on its business as now
conducted and as presently proposed to be conducted, and to enter into and
perform its obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is
in full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally. Developer's counsel shall issue a legal opinion to the
City, at time of closing, confirming the representations contained herein, in the form
attached hereto as Exhibit B.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, financial position or
result of operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
3
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has firm commitments for permanent financing for the Project in
an amount sufficient, together with equity commitments, to successfully complete
the requirements of this Agreement and shall provide evidence thereof to City prior
to the Closing Date.
1.3 Closin . The closing shall take place on the Closing Date which shall be the 30tn
day of September, 2020, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 30th day of December, 2020.
Consummation of the closing shall be deemed an agreement of the parties to this
Agreement that the conditions of closing shall have been satisfied or waived.
1.4 Conditions _to Closinp. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2} 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 in Developer's sole discretion.
Upon the giving of notice of termination by Developer to City, this Agreement shall
be deemed null and void.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein)
in conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
(5) Developer's counsel shall issue a legal opinion to the City confirming the
representations contained herein in the form attached hereto as Exhibit B.
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1.5 City's Obliqations at Closing. At or prior to the Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer will make a capital investment of
approximately Ten Million Dollars ($10,000,000.00)to improve the Property(the Minimum
Improvements). The Minimum Improvements shall consist of the creation of fifty (50)
housing units.
2.2 [This section intentionally left blank]
2.3 Plans for Construction of Minimum Im rovements. Plans and specifications with
respect to the development of the Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with Urban
Renewal Plan, this Agreement, and all applicable state and local laws and regulations,
including but not limited to any covenants, conditions, restrictions, reservations,
easements, liens and charges, recorded in the records of Dubuque County, lowa.
Developer shall submit to City, for approval by City, plans, drawings, specifications, and
related documents with respect to the improvements to be constructed by Developer on
the Property. All work with respect to the Minimum Impro�ements shall be in substantial
conformity with the Construction Plans approved by City.
2.4 Timing of Imt�rovements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within thirty (30) days after
the Closing Date and shall be substantially completed by December 31, 2022. The time
frames for the perFormance of these obligations shall be suspended due to unavoidable
delays meaning delays, outside the control of the party claiming its occurrence in good
faith, which are the direct result of strikes, other labor troubles, unusual shortages of
materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third parties which, by
injunction or other similar judicial action or by the exercise of reasonable discretion
directly results in delays, pandemic or other similar health crisis impacting normal
development operations or acts of any federal, state or local government which directly
result in extraordinary delays. The time for performance of such obligations shall be
extended only for the period of such delay.
2.5 Certificate of Com letion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying in the form attached as Exhibit F. Such certification
(the Certificate of Completion) shall be in recordable form and shall be a conclusive
determination of the satisfaction and termination of the agreements and covenants in this
Agreement.
SECTION 3. CITY PARTICIPATION
s
3,1 This section intentionall left blank.
3.2 Economic Develo ment Grants to Develo er. 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 material compliance with the terms of this
Agreement, to make thirty (30) consecutive semi-annual payments (such payments being
referred to collectively as the Economic Development Grants) to Developer, as follows:
November 1, 2023 May 1, 2024
November 1, 2024 May 1, 2025
November 1, 2025 May 1, 2026
November 1, 2026 May 1, 2027
November 1, 2027 May 1, 2028
November 1, 2028 May 1, 2029
November 1, 2029 May 1, 2030
November 1, 2030 May 1, 2031
November 1, 2031 May 1, 2032
November 1, 2032 May 1, 2033
November 1, 2033 May 1, 2034
November 1, 2034 May 1, 2035
November 1, 2035 May 1, 2036
November 1, 2036 May 1, 2037
November 1, 2037 May 1, 2038
pursuant to lowa Code Section 403.9 of the Urban Renewal Law, in amounts equal to the
actual amount of tax increment revenues collected by City under lowa Code Section
403.19 (without regard to any averaging that may otherwise be utilized under lowa Code
Section 403.19 and excluding any interest that may accrue thereon prior to payment to
Developer) during the preceding six-month period in respect of the Property and Minimum
Improvements constructed by Developer (the Developer Tax Increments). For purposes
of calculating the amount of the Economic Development Grants provided in this Section,
the Developer Tax Increments shall be only those tax increment revenues collected by
City in respect of the increase in the assessed value of the Property above the
assessment of January 1, 2019 ($199,500.00). 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 Minimum Improvements, which does not
include property taxes collected for the payment of bonds and interest of each taxing
district, and taxes for the regular and voter-approved physical plant and equipment levy,
instructional support levy, and any other portion required to be excluded by lowa law, and
thus such incremental taxes will not include all amounts paid by Developer as regular
property taxes.
6
3.3 To fund the Economic Development Grants, City shall certify to the County prior to
December 1, 2021, its request for the available Developer Tax Increments resulting from
the assessments imposed by the County as of January 1 of that year and each year
thereafter until and including January 1, 2036, to be collected by City as taxes are paid
during the following fiscal year and which shall thereafter be disbursed to the Developer
on November 1 and May 1 of that fiscal year. (Example: if City so certifies in December,
2022, the Economic Development Grants in respect thereof would be paid to the
Developer on November 1, 2023, and May 1, 2024.)
3.4 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 Gardens
TIF Account of City. City hereby covenants and agrees to maintain its TIF ordinance in
force during the term hereof and to apply the incremental taxes collected in respect of the
Minimum Improvements and allocated to the Gardens TIF Account to pay the Economic
Development Grants, as and to the extent set forth in Section 3.2 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 Gardens TIF Account (regardless of the
amounts thereofl to the payment of the Economic Development Grants to Developer as
and to the extent described in this Section.
3.5 City shall be free to use any and all tax increment revenues collected in respect of
other properties within the Project Area and the remaining actual amount of the property
taxes paid by Developer to City, 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.
(1) Non-appropriation/Limited Source of Funding. Notwithstanding anything in
this Agreement to the contrary, the obligation of City to pay any installment of the
Economic Development Grant 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 under 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 as provided in this Section 3.5(1). 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 to Developer in the next fiscal year under this Agreement. Such
resolution shall be considered for adoption by the City Council at a public hearing
�
held on or before December 1st of any year and notice of such hearing shall be
given to Developer at least 30 days prior to the hearing. The resolution shall be
approved by not less than a majority of the total number of inembers to which the
City Council is entitled. Developer and all other persons having an interest in the
matter shall be given an opportunity to be heard at such hearing and prior to the
adoption of such resolution.
(a) In the event the City Council 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
fiscal year, then: i) City shall have no further obligation to Developer for the
payment of all installments due in the next fiscal year which cannot be paid
with the funds then appropriated for that purpose; and, ii) Developer shall
be released from all further obligations under this Agreement during that
same fiscal year.
(b) Each installment of the Economic Development Grant shall be paid
by City solely from funds appropriated for that purpose by the City Council
from taxes levied on the Property that are allocated to the special fund
pursuant to lowa Code §403.19(2).
(c) The right of non-appropriation reserved to City in this Section 3.5(1)
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. To this end the provisions of this
Agreement are severable.
SECTION 4. COVENANTS OF DEVELOPER
4.1. Operation of Development Pro�ertv; Housina� Vouchers. For and in consideration
of the incentives ofFered under this Agreement, during the operation of the Development
Property as a rental residential property, Developer shall accept, or cause to be accepted,
applications from prospective tenants with housing vouchers issued under the U.S. HUD's
Section 8 voucher program or a similar program who are otherwise qualified prospective
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tenants. Developer shall not deny any tenant a lease based solely on a public assistance
source of income. A public assistance source of income means income and support
derived from any tax supported federal, state or local funds, including, but not limited to,
social security, supplemental security income, temporary assistance for needy families,
family investment program, general relief, food stamps, and unemployment
compensation, housing choice voucher subsidies and similar rent subsidy programs. This
Section 4.1 shall survive the termination of this Agreement. If Developer, or Developer's
successors or assigns violates the requirements of this Section 4.1 as determined by the
City Manager in the City Manager's sole discretion after the termination of this Agreement,
Developer or Developer's successors or assigns shall not be eligible for any City financial
assistance programs.
4.2 Books and Records. During the term of this Agreement, Developer shall keep at
all times and make available to City upon reasonable request proper books of record and
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.
4.3 Real Property Taxes. Developer shall pay or cause to be paid, when due, all real
property taxes and assessments payable with respect to all and any parts of the Property
unless Developer's obligations have been assumed by another person pursuant to the
provisions of this Agreement.
4.4 No Other Exem ti� ons. During the term of this Agreement, Developer agrees not
to apply for any state or local property tax exemptions which are available with respect to
the Development Property or the Minimum Improvements located thereon that may now
be, or hereafter become, available under state law or city ordinance during the term of
this Agreement, including those that arise under lowa Code Chapters 404 and 427, as
amended.
4.5 Insurance Re�uirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100%) of the building (including Minimum
Improvements) replacement value when construction is completed, naming City
as an additional insured and Ioss payee. Coverage shall include the "special
perils" form and developer shall furnish City with proof of insurance in the form of
a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and up to
the Termination Date, Developer shall maintain, or cause to be maintained, at its
cost and expense property insurance against loss and/or damage to the building
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(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
value of the building (including the Minimum Improvements), naming City as loss
payee. Developer shall furnish to City proof of insurance in the form of a certificate
of insurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance
(Net Proceeds), shall be paid directly to Developer as its interests may appear,
and Developer shall forthwith repair, reconstruct and restore the Minimum
Improvements to substantially the same or an improved condition or value as they
existed prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall apply the
Net Proceeds of any insurance relating to such damage received by Developer to
the payment or reimbursement of the costs thereof, subject, however, to the terms
of any mortgage encumbering title to the Property (as its interests may appear).
Developer shall complete the repair, reconstruction and restoration of Minimum
Improvements whether or not the Net Proceeds of insurance received by
Developer for such purposes are sufficient.
4.6 Preservation of Pro ert . During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
accepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions.
4.7 Non-Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
4.8 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
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
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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.
4.9 Non-Transferabili�.
During the Term of this Agreement, this Agreement may not be assigned by Developer
nor may any portion of the Property be sold or otherwise transferred by Developer without
the prior written consent of City in City's sole discretion. City has no obligation to consent
to any assignment or sale. Notwithstanding the language in this Paragraph 4.9,
Developer shall be permitted to assign to any affiliate of the Developer, who is under
common control, without the consent of the City, so Iong as such affiliate agrees to be
bound by all of the terms and conditions of this Agreement and the Developer provides
notification of such assignment in writing to the City.
4.10 No chan e in Tax Classification. Developer agrees that it will not take any action
to change, or otherwise allow, the classification of the Property for property tax purposes
to become other than residential property and to be taxed as such under lowa law.
4.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a residential housing condominium association, is in full
compliance with the Urban Renewal Plan) (however, Developer shall not have any
liability to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identify, national origin, age or disability in the sale, lease,
rental, use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof (however, Developer shall not have any
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).
4.12 Com liance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with
or the sanctions and penalties resulting therefrom, would not have a material adverse
effect on the business, property, operations, financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND R�EMEDIES.
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5.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by De�eloper of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perForm any other
material covenant, condition, obligation or agreement on its part to be observed or
perFormed under this Agreement.
Notwithstanding to the contrary contained herein, Developer's Investor Member shall
have the right, but not the obligation, to cure an Event of Default hereunder and the City
agrees to accept such cure as if provided by Developer itself.
5.2. Remedies on Default b Develo er. Whenever any Event of Default referred to in
Section 5.1 of this Agreement occurs and is continuing, subject to any applicable notice
and/or cure period, City, as specified below, may take any one or more of the following
actions after the giving of written notice by City to Developer (and the holder of any
mortgage encumbering any interest in the Property of which City has been notified of in
writing) of the Event of Default, but only if the Event of Default has not been cured within
sixty (60) days following such notice, or if the Event of Default cannot be cured within
sixty (60) days and Developer does not provide assurances to City that the Event of
Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from Developer deemed adequate by City, in its reasonable judgment,
that the Developer will cure its default and continue its perFormance under this
Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
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Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 No Remedv Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient.
5.4 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.
5.5 A reement to Pa Attorne s' Fees and Ex enses. 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.
5.6 Remedies on Default bv Citv. 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 its performance under this Agreement until it receives assurances from City,
deemed adequate by Developer, that City will cure its default and continue its
perFormance under this Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS.
6.1 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: Gardens of Dubuque, LLC
Anthony Krsnich, Manager
7301 Mission Rd., Suite 326
Prairie Village, KS 66208
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With copy to: S. Shawn Whitney, Partner
Spencer Fane, LLP
2144 E. Republic Road, Suite B300
Springfield, MO 65804
With copy to: Red Stone Equity Partners, LLC
Attn: President and General Counsel
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
If to City: City Manager
50 W. 13th Street
Dubuque, lowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13t" Street
Dubuque IA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2037 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine or electronic transmission. The parties intend that
the faxed or electronic transmission signatures constitute original signatures and that a
faxed or electronically transmitted Agreement containing the signatures (original, faxed
or electronically transmitted) of all the parties is binding on the parties.
6.5 Memorandum of Develo ment A reement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D in the
office of the Recorder of Dubuque County, lowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in
its name and behalf by its Mayor and attested to by its City Clerk and Developer has
caused this Agreement to be duly executed on or as of the first above written.
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CITY OF DUBUQUE, IOWA GARDENS OF DUBUQUE, LLC
By BY
Roy D. Buol, Mayor Anthony Krs ' , Manager
Attest:
Kevin S. Firnstahi
City Clerk
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(City Seal)
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of 20_, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin
S. Firnstahl, to me personally known, who, being by me duly sworn, did say that they are
the Mayor and City Clerk, respectively, of the City of Dubuque, lowa, a municipal
corporation executing the instrument to which this is attached; that the seal affixed hereto
is the seal of said municipal corporation; that said instrument was signed and sealed on
behalf of the City of Dubuque, lowa, by authority of its City Council; and that said Mayor
and City Clerk acknowledged the execution of said instrument to be the voluntary act and
deed of said City, by it and by them voluntarily executed.
Notary Public
STATE OF F9'6��i4-1��NS�1� )
�hnsar� ) SS
COUNTY OF )
On this � 1 day of ��`�'�'� �e-�' 20�Qbefore me the undersigned, a Notary
Public in and for the State of , personally appeared Anthony Krsnich, to me
personally known, who, being by me duly sworn, did say that he is the Manager of
Gardens of Dubuque, LLC, the lowa limited liability company executing the instrument to
which this is attached and that as said Manager of Gardens of Dubuque, LLC
acknowledges the execution of said instrument to be the voluntary act and deed of said
company, by it and by him, an individual, voluntarily executed.
.
�,
���L ���--
Not ry Public MARCIA L. WAL`�`���
Notary Publ�•Stete vf K�nsas
My Appt. Explres�iLa�
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LIST OF EXHIBITS
EXHIBIT A— City Attorney Certificate
EXHIBIT B — Opinion of Developer Counsel
EXHIBIT C — City Certificate
EXHIBIT D — Memorandum of Development Agreement
EXHIBIT E — Urban Renewal Plan
EXHIBIT F — Certificate of Completion
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