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Housing Enterprise Zone Program Agreement for 44 Main StreetMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Housing Enterprise Zone Program Agreement Number 11 -HEZ -009 for 44 Main Street, LLC DATE: December 15, 2010 Economic Development Director Dave Heiar recommends City Council approval of a Housing Enterprise Zone Program Agreement for 44 Main Street, LLC. This project will provide 24 new market -rate housing units in the downtown area. There is no commitment within the agreement of any further City assistance. concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David J. Heiar, Economic Development Director Dubuque kittil All- America City 11111 r 2007 Masterpiece on the Mississippi ACTION STEP The action step for the Council is to adopt the attached resolution. Attachments F: \USERS\Econ Dev \44 Main \EZ\20101208 44 Main EZ Agreement Council Memo.doc Dubuque All- AmerlcaCity 2007 TO: Michael Van Milligen, City Manager FROM: David J. Heiar, Economic Development Director SUBJECT: Housing Enterprise Zone Program Agreement Number 11 -HEZ -009 for 44 Main Street, LLC DATE: December 10, 2010 INTRODUCTION This memorandum presents for City Council approval a Housing Enterprise Zone Program Agreement by and among the Iowa Department of Economic Development (IDED), the City and 44 Main Street, LLC. The City Council is requested to adopt a resolution approving the agreement. BACKGROUND On October 13, 2010, the City Enterprise Zone Commission approved an application to IDED on behalf of 44 Main Street, LLC for Housing Enterprise Zone benefits related to the redevelopment of the 44 Main building located at 44 Main Street. IDED approved the application on October 25, 2010. DISCUSSION Attached to this memorandum is a resolution that provides for the approval of the agreement for Housing Enterprise Zone benefits for 44 Main Street, LLC. The resolution authorizes and directs the Mayor to execute the agreement on behalf of the City. The agreement outlines the State benefits that will accrue to the housing business based on their role as developer of the housing project. The project will provide 24 new market -rate housing units in the downtown area. 44 Main Street, LLC has estimated a capital investment of $5,952,930 within the Enterprise Zone. A copy of the agreement is attached to the resolution. RECOMMENDATION I recommend that the City Council approve the proposed Housing Enterprise Zone Program Agreement for 44 Main Street, LLC by adopting the attached resolution. This agreement will provide State of Iowa financial benefits to a local housing developer making a substantial investment in our downtown. There is no commitment within the agreement of any further City assistance. Prepared by: Aaron DeJong, Asst. ED Director, 50 West 13 Street, Dubuque IA 52001 563 589 -4393 Return to: Jeanne Schneider, City Clerk, 50 West 13 Street, Dubuque IA 52001 563 589 -4121 RESOLUTION NO. 468 -10 RESOLUTION APPROVING A HOUSING ENTERPRISE ZONE PROGRAM AGREEMENT BY AND AMONG THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, THE CITY OF DUBUQUE AND 44 MAIN STREET, LLC. Whereas, the City of Dubuque has established two Enterprise Zones and an Enterprise Zone Commission; and Whereas, the Enterprise Zone Commission on October 13, 2010 approved the application of 44 Main Street, LLC. for Housing Enterprise Zone benefits; and Whereas, 44 Main Street, LLC's application was approved by the Iowa Department of Economic Development on October 25, 2010; and Whereas, the Iowa Department of Economic Development has prepared and submitted for City Council approval an agreement relating to Housing Enterprise Zone benefits for 44 Main Street, LLC, a copy of which is attached hereto and by this reference made a part hereof; and Whereas, the City Council finds that the proposed agreement is acceptable and necessary to the growth and development of the city. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Iowa Department of Economic Development Housing Enterprise Zone Program Agreement, Number 11 -HEZ -009, is hereby approved. Attest: Section 2. That the Mayor is hereby authorized and directed to execute the Agreement on behalf of the City of Dubuque and forward the executed copy to the Iowa Department of Economic Development for their approval. Passed, approved and adopted this 20 day of December, 201 Jeanne F. Schneider, City Clerk F: \USERS \Econ Dev \44 Main \EZ\20101208 44 Main HEZ Agreement Resolution.doc Roy D. Buol, Mayor IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT HOUSING ENTERPRISE ZONE PROGRAM AGREEMENT EZ AGREEMENT NUMBER: APPLICATION APPROVAL DATE: AGREEMENT EFFECTIVE DATE: 11 -HEZ -009 October 25, 2010 October 25, 2010 ENTERPRISE ZONE NAME: Dubuque EZ -1A located in Dubuque County ZONE EXPIRATION DATE: July 2021 THIS ENTERPRISE ZONE AGREEMENT is made by and among the Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309 ( "Department" or "IDED "), City of Dubuque, 50 W. 13th St., 2nd FI., Dubuque, IA 52001, ( "Community ") and 44 Main Street, LLC, 1415 Foulk Rd., Ste. 104, Wilmington, DE 19803, ( "Housing Business "). WHEREAS, the purpose of the Enterprise Zone Program is to promote new economic development in economically distressed areas; and WHEREAS, the Community has designated and the Department has certified the Enterprise Zone identified above; and WHEREAS, eligible housing businesses with projects located in a certified Enterprise Zone are authorized under this program to receive certain tax incentives and assistance; and WHEREAS, the Enterprise Zone Commission responsible for the above - identified Zone has recommended approval and the Department has found the Housing Business' application to be consistent with the Act's eligibility requirements; and NOW THEREFORE, in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, it is agreed as follows: ARTICLE I DEFINITIONS As used in this Agreement, the following terms shall apply: 1.1 "Act" means 2005 Iowa Code sections 15E.191 through 15E.196 as amended by 2005 Iowa Acts, House File 857 and House File 882. 1.2 "Administrative Rules" means 261 Iowa Administrative Code, chapter 59. 1.3 "Agreement Effective Date" means the date this Agreement becomes effective and the Housing Business is authorized to receive program benefits. 1.4 "Agreement Expiration Date" means the date this Agreement ceases to be in force and effect. This Agreement shall remain in effect until IDED receives written verification that all 24 units have been certified for occupancy. 1.5 "Application Approval Date" means the date, as identified above, on which the Director or Director's designee of the IDED approved the Housing Business' Enterprise Zone application. 1.6 'Board" means the IDED Board. 1.7 "Commission" or "Enterprise Zone Commission" means the Enterprise Zone commission established by the Community responsible for the certified Enterprise Zone. HEZ Format revised 3/2008 EZ Agreement # 11 -HEZ -009 Page 2 1.8 "IDR" means the Iowa Department of Revenue. 1.9 "Enterprise Zone" means the site within the Community certified by the Board for the purpose of attracting private investment. 1.10 "Project" means the activity, or set of activities, described in this Agreement and the Enterprise Zone application approved by IDED. 1.11 "Project Completion" means the date of completion of construction or if this Project involves rehabilitation, the date all improvements included in the Project are completed. ARTICLE II ENTERPRISE ZONE BENEFITS 2.1 Benefits. The following Enterprise Zone benefits authorized by the Act and IDED administrative rules are available to the Housing Business under this Agreement: (a) Investment Tax Credit. The Housing Business may claim an investment tax credit up to a maximum of 10 percent of the new investment which is directly related to the building or rehabilitating of the units stated in Article IV, Section 4.1 of this Agreement. New investment which is directly related to the building or rehabilitating units includes the following costs: land, surveying, architectural services, building permits, inspections, interest on the construction loan, building materials, roofing, plumbing materials, electrical materials, amounts paid to subcontractors for labor and materials provided, concrete, labor, landscaping, appliances normally provided with a new home, heating and cooling equipment, millwork, drywall and drywall materials, nails, bolts, screws, and floor coverings. New investment does not include the machinery, equipment, hand or power tools necessary to build or rehabilitate homes. The new investment that may be used to compute the tax credit shall not exceed the new investment used for the first one hundred forty thousand dollars of value for each unit. In determining the tax credit, new investment financed through federal, state, and local government tax credits, grants, and forgivable loans shall not be included. The tax credit may be used to reduce tax liabilities imposed under Iowa Code chapter 422, Division II, Division III or Division V or under Iowa Code chapter 432. Any credit in excess of the tax liability for the tax year may be credited to the tax liability for the following seven years or until depleted, whichever occurs earlier. If the business is a partnership, subchapter S corporation, limited liability company, or estate or trust electing to have the income taxed directly to the individual, an individual may claim the tax credit allowed. The amount claimed by the individual shall be based upon the pro -rata share of the individual's earnings of the partnership, subchapter S corporation, limited liability company, or estate or trust. Transferable replacement tax credit certificates may be issued by the Department to projects as described in Iowa Administrative Code 59.8(2)a.(8) and Iowa Administrative Code 59.8(2)a.(9): (i) Approved housing development projects using low- income housing tax credits authorized under Section 42 of the Internal Revenue Code and as described in Iowa Administrative Code 59.8(2)a.(8). (ii) Approved housing development projects located in a brownfield site as defined in section 15.291 or housing development projects located in a blighted area as defined in section 403.17 and as described in Iowa Administrative Code 59.8(2)a.(9). The Department shall not issue more than three million dollars worth of transferable tax credits for housing developments that are located in a brownfield site as defined in section 15.291 or housing developments located in a blighted area as defined in section 403.17 in a calendar year. The Department shall not issue more than one million five hundred thousand dollars in tax credit certificates for transfer to any one eligible housing Format revised 10/2005 EZ Agreement # 11 -HEZ -009 Page 3 business assisted in a brownfield site as defined in section 291 or in a blighted area as defined in section 403.17. (b) Refund Of Sales, Service And Use Taxes Paid To Contractors Or Subcontractors. The Housing Business is eligible for a refund of sales, service and use taxes paid by an eligible business, including an eligible business acting as a contractor or subcontractor as authorized in Iowa Code section 15.331A. (i) The Housing Business may apply for a refund of the sales and use taxes paid under Iowa Code chapters 422 and 423 for gas, electricity, water or sewer utility services, goods, wares, or merchandise, or on services rendered, furnished, or performed to or for a contractor or subcontractor and used in the fulfillment of a written contract relating to the construction or rehabilitation of the units within the Enterprise Zone. (ii) Taxes attributable to intangible property and furniture and furnishings shall not be refunded. To receive a refund of the sales, service and use taxes paid to contractors or subcontractors, the Housing Business must, within one year after Project Completion, make an application to the IDR. 2.2 Duration Of Benefits. The Enterprise Zone designation shall remain in effect for ten years following the date of certification. Any state incentives or assistance that may be conferred must be conferred before the designation expires. However, the benefits of the incentive or assistance may continue beyond the expiration of the Enterprise Zone designation. ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUSINESS To induce the Department and the Community to authorize Enterprise Zone benefits referred to in this Agreement, the Housing Business represents, covenants and warrants that: 3.1 Authority. The Housing Business is a corporation duly organized and validly existing under the laws of its state of incorporation and is in good standing, and has complied with all applicable laws of the State of Iowa. The Housing Business is duly authorized and empowered to execute and deliver this Agreement. All action on the Housing Business' part (e.g. where required, appropriate resolution of its Board of Directors) for the execution and delivery of this Agreement, has been effectively taken. 3.2 Business Information. All written financial statements and related materials concerning the Housing Business and the Project provided to the Department and the Community are true and correct in all material respects and completely and accurately represent the subject matter thereof as of the effective date of the statements and related materials, and no material adverse change has occurred since that date. 3.3 Application. The contents of the application the Housing Business submitted to the Department for Enterprise Zone program benefits (Attachment A) is a complete and accurate representation of the Housing Business and the Project as of the date of submission and there has been no material adverse change in the organization, operation, business prospects, fixed properties or key personnel of the Housing Business since the date the Housing Business submitted its application to the Department. The application and any requested changes must be approved in writing by the local enterprise zone commission prior to acceptance by the Department. 3.4 Claims And Proceedings. There are no actions, lawsuits or proceedings pending or, to the knowledge of the Housing Business, threatened against the Housing Business affecting in any manner whatsoever its rights to execute this Agreement or to otherwise comply with the obligations of the Housing Business contained under this Agreement. There are no actions, lawsuits or proceedings at law or in equity, or before any governmental or administrative authority pending or, to the knowledge of the Housing Business, threatened against the Housing Business or affecting the Housing Business' ability to proceed with the Project. 3.5 Permits. All necessary permits have been issued or will be applied for in a timely manner with reasonable expectation that they will be issued. Format revised 10/2005 EZ Agreement # 11 -H EZ -009 Page 4 ARTICLE IV CONDITIONS TO RECEIPT OF ENTERPRISE ZONE BENEFITS The Enterprise Zone Benefits authorized under Article II of this Agreement are available to the Housing Business provided the Housing Business, (and where applicable, the Community) satisfies each of the following conditions: 4.1 Build or Rehabilitate. The Housing Business must rehabilitate twenty -four multi - family units in the Dubuque EZ -1A Enterprise Zone. 4.2 Modest Homes. The single - family homes and dwelling units which are rehabilitated or constructed by the Housing Business shall be modest homes or units, but shall include the necessary amenities. When completed and made available for occupancy, the single - family homes and dwelling units shall meet the United Sates Department of Housing and Urban Development's housing quality standards and local safety standards. 4.3 Completed within Two Years. The Housing Business shall complete its building or rehabilitation within two years from the time the Housing Business begins construction or rehabilitation of the units described in Section 4.1. 4.4 Records And Accounts. The Housing Business shall maintain information, books, records, documents and other evidence concerning the Project, in sufficient detail to permit the Department and the Community to assess compliance with the terms of this Agreement. The Housing Business shall retain the aforementioned records for a period of three (3) years from the Agreement Expiration Date. 4.5 Access To Records/Inspections. The Housing Business shall, upon prior reasonable notice and at any time (during normal business hours), permit the Community and its representatives and the Department, its representatives or the State Auditor to examine, audit and /or copy: (i) any plans and work details pertaining to the Project, (ii) all of the Housing Business' books, records and accounts relating to the Project, and (iii) all other documentation or materials related to this Agreement. The Housing Business shall provide proper facilities for making such examination and /or inspection. Records of the Housing Business furnished to the Department in connection with this Project are subject to the provisions of Iowa Code chapter 22 and administrative rules adopted by the Department concerning public records and requests for confidential treatment of records. 4.6 Notice Of Proceedings. The Housing Business shall promptly notify the Community and IDED of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Housing Business which would adversely impact the Project. 4.7 Reports; Community Monitoring /Reporting. (a) The Housing Business shall prepare, sign and submit the following reports: Report Due Date Annual Certification January 30 The Housing Business shall, for the length of its designation as an Enterprise Zone business, certify annually to the Community and the Department its compliance with the requirements of the Act. The Housing Business shall use the form provided by the Department for its annual certification. Documentation of compliance with the conditions detailed in Article IV shall be included with the annual certification. Format revised 10/2005 EZ Agreement # 11 -HEZ -009 Page 5 4.8 Notice Of Business Changes. The Housing Business shall provide prompt advance notice to the Community and the Department of any proposed change in the Housing Business ownership, structure or control which would materially and directly affect the Project. ARTICLE V DEFAULT AND REPAYMENT 5.1 Events Of Default. Enterprise Zone benefits described in Article II are only available to the Housing Business to the extent the Housing Business satisfies the conditions described in Article IV. Any of the following shall constitute an Event of Default under this Agreement: (a) Material Misrepresentation. If at any time any representation, warranty or statement made or furnished to the Department or the Community by, or on behalf of, the Housing Business in connection with this Agreement shall be determined by the Department to be incorrect, false, misleading or erroneous in any material respect when made or furnished. (b) Breach Of Agreement. If there is a failure of the Housing Business to comply with any of the covenants, terms or conditions contained in this Agreement. (c) Relocation Or Abandonment. If there is an abandonment of the Project and the Housing Business fails to renew the Project within the Enterprise Zone within 30 days. If the relocation or abandonment is due to a natural disaster (e.g. flood, tornado), the Housing Business shall have 120 days to renew the Project within the Enterprise Zone. (d) Insolvency Or Bankruptcy. If the Housing Business becomes insolvent or bankrupt, or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or the Housing Business applies for or consents to the appointment of a trustee or receiver for the Housing Business or for the major part of its property; or if a trustee or receiver is appointed for the Housing Business or for all or a substantial part of the assets of the Housing Business and the order of such appointment is not discharged, vacated or stayed within sixty (60) days after such appointment; or if bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings or other proceedings for relief under any bankruptcy or similar law or laws for the relief of debtors, are instituted by or against the Housing Business and, if instituted against the Housing Business, is consented to, or, if contested by the Housing Business is not dismissed by the adverse parties or by an order, decree or judgment within sixty (60) days after such institution. 5.2 Notice Of Default. (a) From Department. If, through the annual certification report or other means, the Department has reason to believe the Housing Business is in default of the terms of this Agreement, the Department will issue a written notice of default to the Housing Business, setting forth the nature of the default in reasonable specificity, and providing therein a reasonable period of time, which shall not be less than 30 days from the date of the notice of default, in which the Housing Business shall have an opportunity to cure, provided that cure is possible and feasible. A copy of any Notice of Default will also be provided to the Community and IDR. (b) From Community. If, through monitoring, auditing or other means, the Community has reason to believe the Housing Business is in default of the terms of this Agreement, the Community will issue a written notice of default to the Housing Business, setting forth the nature of the default in reasonable specificity, and providing therein a reasonable period of time,which shall not be less than 30 days from the date of the notice of default, in which the Housing Business shall have an opportunity to cure, provided that cure is possible and feasible. A copy of any Notice of Default will also be provided to the Department and IDR. Format revised 1012005 EZ Agreement # 11 -HEZ -009 Page 6 5.3 Repayment: Loss of Benefits. (a) Failure to meet/maintain requirements. If the Housing Business fails in any year to meet or maintain any one of the requirements of the Act, the Housing Business shall repay the value of the incentives received for each year during which it was not in compliance. (b) IDR recovery. Once it has been established, through the Housing Business' annual certification, monitoring, audit or otherwise, that the Housing Business is required to repay all or a portion of the incentives received, the IDR shall collect the amount owed. IDR has the authority, pursuant to the Act, to recover the value of state taxes or incentives provided under the Act. The value of state incentives provided under the Act includes applicable interest and penalties. ARTICLE VI GENERAL TERMS AND PROVISIONS 6.1 Compliance With Laws And Regulations. The Housing Business shall comply with all applicable State and federal laws, rules (including the administrative rules adopted by the Department for the Enterprise Zone Program - 261 Iowa Administrative Code, chapter 59), ordinances, regulations and orders. 6.2 Termination. This Agreement may be terminated by the Department or the Community: (a) in the event of an unremedied material Event of Default by the Housing Business under Article V of this Agreement; or (b) by mutual agreement of all parties. 6.3 Survival Of Agreement. If any portion of this Agreement is held to be invalid or unenforceable, the remainder shall be valid and enforceable. 6.4 Governing Law. This Agreement shall be interpreted in accordance with the law of the State of Iowa, and any action relating to this Agreement shall only be commenced in the Iowa District Court for Polk County or the United States District Court for the Southern District of Iowa. 6.5 Modification. This Agreement may only be modified by a written document signed by all Parties. 6.6 Notices. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be in writing, enclosed in an envelope, addressed to the party to be notified at the address heretofore stated (or at such other address as may have been designated by written notice), properly stamped, sealed and deposited in the United States Mail. Any such notice given hereunder shall be deemed delivered upon the earlier of actual receipt or three (3) business days after posting. The Department may rely on the addresses of the Housing Business and Community set forth heretofore, as modified from time to time, as being the addresses of the Community and Housing Business. 6.7 Waivers. No waiver by a party of any Event of Default hereunder shall operate as a waiver of any other Event of Default or of the same Event of Default on any future occasion. No delay on the part of a party in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by a party shall preclude future exercise thereof or the exercise of any other right or remedy. 6.8 Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction and interpretation of this Agreement. 6.9 Integration. This Agreement contains the entire understanding between the Community, Housing Business and the Department and any representations that may have been made before or after the signing of this Agreement, which are not contained herein, are nonbinding, void and of no effect. None of the parties have relied on any such prior representation in entering into this Agreement. 6.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. Format revised 10/2005 r 6.11 reference: 6.12 Order Of Priority. In the event of a conflict between documents of this Agreement, the following order of priority shall govern: IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date first stated: FOR THE COMMUNITY: FOR IDED: City of Dubuque Signature Bret L. Mills, Director Type or Print Name, Title FOR THE HOUSING BUSINESS: 44 Main Street, LLC Signature EZ Agreement # 11 -HEZ -009 Page 7 (a) Attachment A, "Housing Business' Enterprise Zone Application." Due to its size, Attachment A will not be attached to this Agreement, but will be kept on file at the Iowa Department of Economic Development. It shall, nevertheless, be considered an incorporated element of this Agreement. (a) Articles 1 through 6 herein. (b) Attachment A, "Housing Business' Enterprise Zone Application." Type or Print Name, Title Document Incorporated By Reference. The following document is hereby incorporated by Format revised 10/2005 ATTACHMENT A Housing Business' Enterprise Zone Application Due to its size, Attachment A will not be attached to this Agreement, but will be kept on file at the Iowa Department of Economic Development. It shall, nevertheless, be considered an incorporated element of this Agreement. HEZ Format revised 3/2008