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State Flood Mitigation Grant Funding Agreement_Bee Branch WatershedTHE CITY OF Dui Masterpiece on the Mississippi Dubuque band AI- America City 11111r 2007 • 2012 • 2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Bee Branch Watershed Flood Mitigation Project, State Flood Mitigation Board Funding Agreement DATE: January 29, 2014 Civil Engineer Deron Muehring is requesting City Council adoption of a resolution authorizing the City's use of $98,494,178 in sales tax increment funds for the Bee Branch Watershed Flood Mitigation Project and authorizing the execution of an agreement with the Iowa Flood Mitigation Board required for the City's receipt of the $98,494,178 in sales tax increment funds. No doubt the crown jewel of this year's five -year capital improvement program budget is the impact on flooding problems in the Bee Branch Watershed. The City of Dubuque was recently awarded $98.5 million from the Iowa Flood Mitigation Board in the form of state sales tax increment financing spread over the next 20 years. When combined with other state and federal grants and local donations, the City has received over $127 million to help fund this $179 million ($201 million including interest on debt) project to save 1,373 homes and businesses from flooding. These 70 businesses employ over 1,400 people and have over $500 million in annual sales. The Bee Branch Watershed Flood Mitigation project is a multi - phased, fiscally responsible investment to mitigate flooding, improve water quality, stimulate investment, and enhance quality of life within the Bee Branch Watershed and thereby improve the quality of life throughout the community. The Bee Branch Watershed area encompasses historic neighborhoods offering some of the community's most affordable workforce housing. This area is also hit hardest by flash flooding during significant rain events with much more than "just a little water in the basement." Too frequently, it is flooding that inundates water heaters, furnaces, and electrical boxes, and can cause fires. It rushes down streets from curb to curb — stalling vehicles, stranding motorists, displacing manhole covers, and damaging pavement, water mains, and stormwater and sanitary sewers. Flood disasters have repeatedly impacted residents and employees of the businesses within the watershed. Between 1999 and 2011, six presidential disasters were issued, with total damage estimates of almost $70 million. The flooding in the Bee Branch Watershed also has had a major impact on public infrastructure and City services both within and outside the flood- impacted area. Direct public sector costs include emergency response activities, street and utility infrastructure repairs, and debris clean -up and removal. The disruption of essential City services and street closures due to flooding and damage also has a negative economic impact on the entire community. The Bee Branch Watershed Flood Mitigation Construction Project will prevent an estimated $582 million in damages over the 100 -year design life of the project and create an incentive for individuals and businesses to reinvest in this vital area of our community. The Dubuque City Council has made infrastructure projects a high priority and the City of Dubuque is committed to the Bee Branch Watershed Flood Mitigation Project, a multi- faceted approach to addressing the severe and frequent flash flooding experienced in the watershed. $98.5 million is the largest amount ever awarded to the City of Dubuque and will enable the City to implement its comprehensive flood mitigation plan much sooner than previously anticipated at a lower cost to Dubuque citizens and businesses. The 12 project phases will reduce the volume of stormwater, slow the rate of stormwater through the upper watershed, increase the safe conveyance of stormwater through the flood -prone area, and provide floodwater protection to the City's water treatment plant on Hawthorne Street. Bee Branch Watershed Flood Mitigation Project Phases Phase Phase 1: Carter Road Detention Basin Phase 2: West 32nd Street Detention Basin Phase 3: Historic Millwork District Complete Streets Phase 4: Lower Bee Branch Creek Restoration Phase 5: Flood Mitigation Gate Replacement Phase 6: Impervious Surface Reduction (Alley Reconstruction) Phase 7: Upper Bee Branch Creek Restoration Phase 8: 22nd St. Storm Sewer Capacity Improvements Phase 9: Flood Mitigation Maintenance Facility Phase 10: North End Storm Sewer Capacity Improvements Phase 11: Water Plant Flood Protection Phase 12: 17th St. Storm Sewer Capacity Improvements 2 Status Completed in 2003 Completed in 2009 Completed in 2012 Est. Completion - 2014 Est. Completion - 2015 Est. Completion - 2033 Est. Completion - 2016 Est. Completion - 2020 Est. Completion - 2020 Est. Completion - 2019 Est. Completion - 2020 Est. Completion - 2020 Total cost, excluding interest on debt: Cost $1,076,315 $4,158,589 $7,977,311 $21,274,685 $2,099,000 $57,420,000 $64,823,636 $3,380,000 $4,360,000 $1,160,000 $3,800,000 $7,520,000 $179,049,536 A watershed is an area of land that drains to the same place. The Bee Branch Watershed drains to the Bee Branch Creek. The Bee Branch Watershed is located entirely within the City limits of Dubuque and covers approximately 6.5 square miles of Dubuque's total area of 29 square miles. This watershed area includes the City's most developed areas, where over 50% of Dubuque residents either live or work. Authorized under the Flood Mitigation Bill in 2012, the Flood Mitigation Program is administered by the Iowa Department of Homeland Security on a competitive basis by a citizen board that began accepting applications in November 2013. It is funded by a portion of state sales tax revenues. The program provides funding to cities and counties to implement long -term flood mitigation projects. Specifically, the funds are an annual sales tax increment, or a percentage of the increase in state sales tax revenue generated within the city or county. Dubuque's current stormwater utility rate is $5.60 per month for the average single - family home in Dubuque. (Properties that are exempt from property taxes, such as non- profits, only pay 50% of the stormwater fee, as do low- income individuals). Due to the costs associated with maintaining the current stormwater management system and implementing the Bee Branch Watershed Project over the next 20 years, the City is projecting annual increases to the stormwater utility rate to reach $9.00 per month on July 1, 2021. Prior to the state grant program, the rate was projected to rise to $9.00 per month on July 1, 2016, and the improvements would have taken 50 years or more. With the state grant, they will be completed in 20 years, with most completed over the next six years. The protection will be provided sooner at a lower cost to Dubuque residents and businesses. The Bee Branch Watershed Project is a 12- phase, 20 -year construction project to address stormwater management issues throughout the entire Bee Branch Watershed area, which stretches approximately from the Mississippi River west past John F. Kennedy Road, north to the Northwest Arterial, and south to West Fifth Street. The Bee Branch Creek Restoration is two of the phases of the watershed project and is scheduled to be completed in 2016. This project will impact the debt structure of the City, as most of the project will be accomplished through the issuance of debt, through a combination of State Revolving Loan Funds (SRF) and general obligation debt issuances, with payments abated by the State Sales Tax Increment awarded to the City by the State of Iowa Flood Mitigation Board and the City's Stormwater Utility Fee. The City worked closely with the Iowa Department of Homeland Security and their staff on this project and the associated funding. Our program officer is Carol Tomb, who has done an exceptional job dedicating many extra hours and taking several trips to Dubuque to help Dubuque be successful in this application process. 3 I concur with the recommendation and respectfully request Mayor and City Council approval. Mic ael C. Van Milligen MCVM:sv Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Jennifer Larson, Budget Director Gus Psihoyos, City Engineer Deron Muehring, Civil Engineer Laura Carstens, Planning Services Manager Randy Gehl, Public Information Officer Alexis Steger, Confidential Account Clerk Mark Schneider, ECIA- Community Development and Public Services Director Nicole Turpin, ECIA - Regional Planning Coordinator 4 Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Manager FROM: Deron Muehring, Civil Engineer bilyu DATE: January 29, 2014 Dubuque Al-America City 1 I I•, 2007 • 2012 •2013 SUBJECT: Bee Branch Watershed Flood Mitigation Project, State Flood Mitigation Board Funding Agreement INTRODUCTION The purpose of this memorandum is to seek authorization to enter into an agreement with the Iowa Flood Mitigation Board in order to utilize $98,474,178.00 in state sales tax increment funding for the Bee Branch Watershed Flood Mitigation Project. BACKGROUND The Drainage Basin Master Plan, completed and adopted by the City Council in 2001, established that there are more than 1,100 properties at risk of flood damage as a result of the flash flooding. Based on a subsequent study in 2009 by the Federal Emergency Management Agency (FEMA), there are 1,373 properties in the flood prone area. In addition to homes, there are over 70 businesses in the at -risk area with over $500 million in annual sales. Eighty -five percent (85 %) of the impacted properties have buildings that are potentially eligible for listing on the National Register of Historic Places, the official list of the Nation's historic places worthy of preservation. In fact, fifty - seven percent (57 %) of the buildings are more than 100 years old. The flood prone area in the Bee Branch Watershed encompasses historic neighborhoods offering some of the community's most affordable workforce housing. Most residents are working families, many are elderly -- those least likely to recover from repetitive flood loss. Repetitive flood damage leads to disinvestment; from 2004 to 2009, while commercial property values grew by 39% citywide, they fell by 6% in the Bee Branch Watershed flood prone area. The Drainage Basin Master Plan, updated in the fall of 2013, also outlined several improvements throughout the watershed to mitigate future flooding and disasters. Collectively, the improvements form the basis of the Bee Branch Watershed Flood Mitigation Project. The Bee Branch Watershed Flood Mitigation Project is a multi - phased, fiscally responsible investment. It reflects a holistic approach to mitigate flooding as it will also improve water quality, stimulate investment, and enhance the quality of life watershed residents. Having identified the flooding issue as a top priority, the Dubuque City Council. adopted the Drainage Basin Master Plan and established funding, including a stormwater management utility fee, to construct the Bee Branch Watershed Flood Mitigation Project. Having identified the flooding issue as a top priority, the Dubuque City Council established funding, including a stormwater management utility fee, to construct the various phases of the Bee Branch Watershed Flood Mitigation Project. The State Flood Mitigation Program (the Program) was created in 2012. It established two possible funding sources for Bee Branch Watershed improvements: a Flood Mitigation Fund and a Sales Tax Increment Fund. To date, no funds have been appropriated for the Flood Mitigation Fund. The Sales Tax Increment Fund is to consist of the increase in the state share of the sales tax revenues from communities with qualifying applications. The maximum state share of sales tax increment that can be diverted from the state and used instead for flood mitigation projects is $30 million a year for twenty (20) years for a total of $600 million. The maximum award for any qualifying single community is $15 million per year. To qualify for sales tax increment funding, federal financial assistance must have been secured for the project. A local match is also required and the state sales tax increment cannot exceed 50% of the total project cost. In April of 2013 the State Flood Mitigation Program Board (the Board) was established. And at its third meeting in July of 2013, the Board adopted the administrative rules for the Program. On November 18, 2013 the City Council adopted Resolution 336 -13, approving the City's application for state sales tax increment funding for the Bee Branch Watershed Flood Mitigation Project. On December 4, 2013, the Iowa Flood Mitigation Board voted to approve the City's application for construction of the Bee Branch Watershed Flood Mitigation Project. DISCUSSION The Iowa Flood Mitigation Board (the Board) has provided an agreement for the $98,494,178.00 in sales tax increment funding. Per the agreement, the disbursement or remittance from the sales tax incremental fund by the State is governed by Iowa Code section 418.12 and Iowa Administrative Code ch. 701 -238. And that pursuant to Iowa Code section 418.4(3)( d), prior to any disbursement or remittance, the City must adopt a resolution authorizing the use of sales tax increment revenue for the City project. RECOMMENDATION recommend securing the use of $98,494,178.00 in sales tax increment financing for the Bee Branch Watershed Flood Mitigation Project. BUDGET IMPACT In order to construct the improvements associated with the Bee Branch Watershed Mitigation Project per the schedule reflected in the City's application for sales tax increment funding and in the proposed agreement, gradual increases to the stormwater utility rates over an eight year period will be necessary. In contrast, without the use of sales tax increment funding, it would take fifty years to construct the improvements and stark increases to the stormwater utility rate would be required in the next three years. 2 REQUESTED ACTION I respectfully request adoption of the attached resolution authorizing the City's use of $98,494,178.00 in sales tax increment funds for the Bee Branch Watershed Flood Mitigation Project and authorizing the execution of an agreement with the Iowa Flood Mitigation Board required for the City's receipt of the $98,494,178.00 in sales tax increment funds. Attach. Cc: Barry Lindahl, City Attorney Gus Psihoyos, City Engineer Jennifer Larson, Budget Director Ken TeKippe, Finance Director Teri Goodman, Assistant City Manager 3 Prepared by: Deron Muehring, City Hall, 50 W 13th Street, Dubuque IA 52001 563 - 589 -4270 RESOLUTION NO. 31 -14 AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE STATE OF IOWA FLOOD MITIGATION BOARD AND AUTHORIZING THE CITY'S USE OF SALES TAX INCREMENT FUNDING FOR THE BEE BRANCH WATERSHED FLOOD MITIGATION PROJECT WHEREAS, Six Presidential Disaster Declarations have been issued for flooding, severe storms and tornados between 1999 and 2011 due to flash flooding; and WHEREAS, the Bee Branch Watershed, which includes the City of Dubuque's most developed areas where over 50% of city residents either live or work, has experienced flooding impacting thousands of properties and over seventy businesses; and WHEREAS, the City Council of the City of Dubuque has adopted a drainage basin master plan authored by HDR Engineering that outlines improvements to mitigate flooding collectively referred to as the Bee Branch Watershed Flood Mitigation Project (the Project); and WHEREAS, the Flood Mitigation Program was established by the Iowa Legislature and the Governor of Iowa to support community projects for the construction and reconstruction of levees, embankments, impounding reservoirs, or conduits that are necessary for the protection of property from the effects of floodwaters and may include the deepening, widening, alteration, change, diversion, or other improvement of watercourses if necessary for the protection of such property from the effects of floodwaters; and WHEREAS, the City of Dubuque submitted an application to the Iowa Flood Mitigation Board (the Board) requesting the use of $98,494,178.00 in sales tax increment funds for the Project; and WHEREAS, the Board, on December 4, 2013, voted to approve the City's application for construction of the Project, subject to the requirements set forth in Iowa Code chapter 418 and the administrative rules promulgated under it and subject to the terms and conditions set forth in an agreement; and WHEREAS, the Board presented an agreement (the Agreement) between the Board and the City; and WHEREAS, it is in the best interest of the City to enter into the Agreement as required for the City's receipt of the sales tax increment funding; and WHEREAS, a Flood Project Fund (the Project Fund) shall be created for the Project consisting of State sales tax revenue and any other moneys lawfully received by the City to be used to fund the Project and to pay principal and interest on bonds issued for the Project. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA AS FOLLOWS: Section 1. The use of sales tax increment revenue from the City's flood project fund for the above purposes is hereby authorized. Section 2. Mayor is hereby authorized to execute and deliver the Agreement and execute such other documents as the Iowa Flood Mitigation Board may reasonably require that are necessary to bind the City to the terms of the Agreement as required for the City's receipt of $98,494,178.00 in sales tax increment funds for the Bee Branch Watershed Flood Mitigation Project through the State Flood Mitigation Program. Passed, approved and adopted this 3rd day of February, 2014. Attest: Kevin F rnstahl, C y Cle w" AGREEMENT BETWEEN THE FLOOD MITIGATION BOARD AND THE CITY OF DUBUQUE, IOWA APPROVING THE APPLICATION OF THE CITY OF DUBUQUE FOR THE USE OF SALES TAX REVENUES FOR THE STATE OF IOWA FLOOD MITIGATION PROGRAM FOR THE BEE BRANCH WATERSHED FLOOD MITIGATION PROJECT NUMBER: 2013 -0 TABLE OF CONTENTS Page FLOOD MITIGATION BOARD PROGRAM AGREEMENT ARTICLE 1 THE PARTIES AND THE PROJECT 5 ARTICLE 2 AGREEMENT DURATION 5 ARTICLE 3 AGREEMENT ELEMENTS 5 ARTICLE 4 FUNDING 6 ARTICLE 5 APPROVAL OF USE OF SALES TAX REVENUES 6 ARTICLE 6 DISBURSEMENT /REMITTANCE 6 ARTICLE 7 TERMS AND CONDITIONS OF PARTICIPATION IN FLOOD MITIGATION BOARD 7.1 Use of Funds 6 7.2 Accounting Records 6 7.3 Documentation 6 7.4 Bonds and Insurance 7 7.5 Notice of Proceedings 7 7.6 Reporting Obligations 7 7.7 Covenants of City 7 7.8 Representations and Warranties of City 8 7.9 Compliance with Laws and Regulations 8 7.10 General Indemnification 8 ARTICLE 8 NONCOMPLIANCE AND TERMINATION 8.1 Notice of Noncompliance 8 8.2 Event of Noncompliance 9 8.3 Consequences of Event of Noncompliance 9 8.4 Notice to City of Event of Noncompliance 9 8.5 City Initiated Termination 10 8.6 Procedure upon Termination 10 ARTICLE 9 GENERAL PROVISIONS 9.1 Binding Effect 10 9.2 Public Record 10 9.3 Survival of Agreement 10 9.4 Immunity 10 9.5 Modification 10 9.6 Notices 10 9.7 Financial Limitation 11 9.8 Enforcement Expenses 11 9.9 Headings 11 SIGNATURES 11 2 EXHIBIT A EXHIBIT B EXHIBIT C FLOOD MITIGATION APPLICATION, AS APPROVED BY 12 THE FLOOD MITIGATION BOARD SCHEDULE OF REMITTANCES 13 FLOOD MITIGATION BOARD APPROVAL ORDER 14 3 AGREEMENT APPROVING THE APPLICATION OF THE CITY OF DUBUQUE FOR THE USE OF SALES TAX REVENUES FOR THE STATE OF IOWA FLOOD MITIGATION PROGRAM FOR THE BEE BRANCH WATERSHED FLOOD MITIGATION PROJECT NUMBER: 2013 -0 APPLICANT: CITY OF DUBUQUE, IOWA 50 WEST 13th STREET DUBUQUE, IOWA 52001 PROJECT: Bee Branch Watershed Flood Mitigation PROJECT COMPLETION DATE: December 31, 2033 THIS AGREEMENT approving the application of the City of Dubuque for the use of sales tax revenues for the State of Iowa Flood Mitigation Program for the Bee Branch Watershed Flood Mitigation Project is made by and between the Flood Mitigation Iowa Board and the City of Dubuque, Iowa. WHEREAS, the Flood Mitigation Program was established by the Iowa Legislature and the Governor of Iowa to support community projects for the construction and reconstruction of levees, embankments, impounding reservoirs, or conduits that are necessary for the protection of property from the effects of floodwaters and may include the deepening, widening, alteration, change, diversion, or other improvement of watercourses if necessary for the protection of such property from the effects of floodwaters; and WHEREAS, the City submitted an Application (the Application) to the Flood Mitigation Board requesting approval for the use of sales tax revenues for the State of Iowa Flood Mitigation Program for the Bee Branch Watershed Flood Mitigation Project (the Project). The Project includes of the following phases: Phase Description 1 Carter Road Detention Basin 2 West 32nd Street Detention Basin 3 Historic Millwork District 4 Lower Bee Branch Creek Restoration 5 Flood Mitigation Gate Replacement 6 Impervious Surface Reduction 7 Upper Bee Branch Creek Restoration 8 22nd Street Storm Sewer Improvements 4 9 Flood Mitigation Maintenance Facility 10 North End Storm Sewer Improvements 11 Water Plant Flood Protection 12 17th Street Storm Sewer Improvements WHEREAS, the Flood Mitigation Board found the Project to meet the requirements established for participation in the Flood Mitigation Program as set forth in Iowa Code chapter 418 and the administrative rules implementing the same; and WHEREAS, the Flood Mitigation Board, on December 4, 2013, voted to approve the Application for construction of the Project, subject to the requirements set forth in Iowa Code chapter 418 and the administrative rules promulgated under it and subject to the terms and conditions herein and the execution of this Agreement. NOW THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound, the Flood Mitigation Board and the City of Dubuque agree to the following terms: ARTICLE 1 THE PARTIES AND THE PROJECT 1.1 The Flood Mitigation Board (the Board) is a public instrumentality of the State of Iowa that was created by Iowa Code section 418.5 to organize, establish, oversee and approve the administration of the Flood Mitigation Program set forth in Iowa Code chapter 418. The Board's address is 7105 NW 70th Avenue /Camp Dodge/ Bldg. W -4/ Johnston, Iowa 50131. 12 The City of Dubuque (City) is a municipality of the State of Iowa, organized and operating pursuant to the relevant statutes of the State of Iowa. Its address is 50 West 13th St, Dubuque, IA 52001. 1.3 The Project, as approved by the Board prior to the date hereof, includes the components set forth in more detail in the Application, which is incorporated herein. 1.4 The City shall be responsible for the financing, construction, operation and maintenance of the Project. ARTICLE 2 AGREEMENT DURATION This Agreement shall be in effect from the Agreement effective date through December 31, 2033. ARTICLE 3 AGREEMENT ELEMENTS This Agreement shall include as integral parts hereof: (a) Exhibit A — Application, including the Executive Summary and all exhibits thereto, as approved by the Board (b) Exhibit B — Schedule of Remittances (c) Exhibit C — Flood Mitigation Board Approval Order 5 Due to its size, Exhibit A will not be attached to this Agreement, but will be kept on file at the Board's offices in the form as originally filed with the Board. It shall, nevertheless, be considered an incorporated element of this Agreement. ARTICLE 4 FUNDING In addition to the moneys received pursuant to Iowa Code section 418.12, the City may deposit in the flood project fund any other moneys lawfully received by the City, including but not limited to local sales and services tax receipts collected under chapter 423B. ARTICLE 5 APPROVAL OF USE OF SALES TAX REVENUES The Board hereby approves the use of sales tax increment revenues under Iowa Code chapter 418 to the maximum amount of $ 98,494,178, payable over the term of this agreement and pursuant to the schedule as set out in the attached Exhibit B, or as amended during the term of this Agreement, all in accordance with and subject to the terms and conditions of this Agreement, Iowa Code chapter 418, and applicable administrative rules. ARTICLE 6 DISBURSEMENT /REMITTANCE The City acknowledges that disbursement or remittance from the sales tax incremental fund by the Iowa Department of Revenue is governed by Iowa Code section 418.12 and Iowa Administrative Code ch. 701 -238. The City further acknowledges that pursuant to Iowa Code section 418.4(3)(d), prior to any disbursement or remittance, the City must adopt a resolution authorizing the use of sales tax increment revenue and, within ten (10) days of adoption, provide a copy of the resolution to the Iowa Department of Revenue. The City shall also provide a copy of the resolution to the Board. ARTICLE 7 TERMS AND CONDITIONS OF PARTICIPATION IN FLOOD MITIGATION PROGRAM 7.1 USE OF FUNDS. The City hereby agrees to cause the Project to be constructed and operated and to maintain the Project in accordance with the representations in this Agreement and all Exhibits hereto. The funds shall be used for constructing and financing the Project described in Exhibit A and as mandated by the laws and regulations governing the Flood Mitigation Program. The City shall allow the State of Iowa and its employees and agents to inspect the Project facilities at all times in order to audit, monitor and evaluate compliance with federal, state, and local law, as well as the terms of this Agreement. 7.2 ACCOUNTING RECORDS. The City shall maintain or be able to readily provide all books, records and all other financial documents pertaining to this Agreement and its involvement in the Flood Mitigation Program. These records shall be available for inspection and copying by the State of Iowa and its employees and agents at all times within the term of this Agreement and during the term of any extension thereof, and for three (3) full years from the expiration date. 7.3 DOCUMENTATION. Within thirty (30) days of receipt of a written request from the Board to the City, the City shall deliver to the Board: (i) copies of all agreements or documents 6 relating to the Project, (ii) copies of all invoices, receipts, statements or vouchers relating to the Project, (iii) a list of all unpaid bills for labor and materials in connection with the Project, (iv) budgets and revisions showing estimated Project costs and funds required at any given time to complete and pay for the Project. 7.4 BONDS AND INSURANCE. The City shall maintain in effect, with insurance companies of recognized responsibility, at its own expense, insurance and bonds to the extent required under Iowa law. 7.5 NOTICE OF PROCEEDINGS. The City shall promptly notify the Board of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the City that could potentially adversely impact the Project. 7.6 REPORTING OBLIGATIONS. Pursuant to Iowa Code chapter 418, the City shall submit reports to the Board, including the following: 1. On or before December 15 of each year for the duration of this Agreement, the City shall submit to the board a report detailing all of the following: a. The total expenditures and types of expenditures that have been made related to the project; b. The amount of the total project cost remaining as of the date the report was submitted; c. The amounts, types, and sources of funding being used; and d. The amount of bonds issued, if any, or other indebtedness incurred for the project, including information related to the rate of interest, length of term, costs of issuance, and net proceeds. The report shall also include the amounts and types of moneys used for payment of such bonds or indebtedness. 2. No later than five (5) years from the date the Board approved the City's application, the City shall submit a report to the Board certifying the total amount of non - public investment, as defined in Iowa Code section 418.9(2)(d) that has occurred in the City's area as defined in Iowa Code section 418.11(3). 3. No later than ten (10) years from the date the Board approved the City's application, the City shall submit a second report to the Board certifying the total amount of non - public investment, as defined in Iowa Code section 418.9(2)(d) that has occurred in the City's area as defined in Iowa Code section 418.11(3). 4. Upon the completion of the Project, the City shall submit a final accounting and project report to the Board. 7.7 COVENANTS OF THE CITY. 1. AFFIRMATIVE COVENANTS. Throughout the term of this Agreement, the City covenants to the Flood Mitigation Board that: A PROJECT WORK. The City shall complete the Project by December 31, 2033. For the purposes of this section "complete" means the Project is fully constructed and operational. 7 B. OPERATION AND MAINTENANCE. The City shall operate, maintain, and support the Project at a professional level consistent with applicable industry standards. C. CITY BONDS. The City shall comply with Iowa Code section 418.14 and all applicable administrative rules with respect to bond issuance. 2. NEGATIVE COVENANTS. Throughout the term of this Agreement, the City shall not, without prior written disclosure to the Board and prior written consent of the Board, directly or indirectly materially change the scope or use of the Project or the nature of the business and activities being conducted, or proposed to be conducted by the City, as described in Exhibit A, unless approved in writing by the Board. 7.8 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents, covenants, and warrants that the contents of the Application submitted by the City to the Flood Mitigation Board for funding is a complete and accurate representation of the City and the Project as of the date of submission and there has been no material adverse change in the organization, operation, fixed properties, key personnel or Project plan of the City since the date the City's Application was approved by the Board. 7.9 COMPLIANCE WITH LAWS AND REGULATIONS. The City shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations, and orders when performing within the scope of this Agreement and the Project, including, without limitation, the provisions of Iowa Code chapter 418, and the administrative rules promulgated under it. 7.10 GENERAL INDEMNIFICATION. The City shall, to the extent permitted by the laws and the Constitution of the State of Iowa, indemnify, defend and hold harmless the Board, the State of Iowa, its departments, divisions, agencies, sections, commissions, officers, employees and agents from and against all losses, liabilities, penalties, fines, damages and claims (including truces), and all related costs and expenses (including reasonable attorneys' fees and disbursements and costs of investigation, litigation, settlement, judgments, interest and penalties), arising from or in connection with any of the following: 1. Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; 2. Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by the City of any representation or warranty made by City in this Agreement; 3. Any claim, demand, action, citation or legal proceeding arising out of or related to occurrences that the City is required to insure against as provided for in this Agreement; and 4. Any claim, demand, action, citation or legal proceeding which results from an act or omission of the City or agents in its capacity as an employer of a person. ARTICLE 8 NONCOMPLIANCE AND TERMINATION 8.1 NOTICE OF NONCOMPLIANCE. The City shall promptly notify the Board upon becoming aware of an actual or imminent Event of Noncompliance by the City. 8 8.2 EVENT OF NONCOMPLIANCE. Each of the following shall constitute an Event of Noncompliance: 1. MISREPRESENTATION OR INACCURATE REPRESENTATION. If at any time the Board determines, after the City is given notice and opportunity to be heard, that any representation, warranty, or statement made or furnished to the Board by, or on behalf of the City in connection with this Agreement or the Application was incorrect, false, misleading, or erroneous in any material respect when made or furnished, or if it becomes untrue due to some later occurrence, act, or omission following the Board's approval of the City's Application. 2. NONCOMPLIANCE WITH PROVISION OF LAW. If the City fails to comply with all applicable federal, state, and local laws, rules, ordinances, regulations, and orders when performing within the scope of this Agreement and the Project, including, without limitation, the provisions of Iowa Code chapter 418, and the administrative rules promulgated under it. 3. NONCOMPLIANCE WITH PROVISION OF AGREEMENT. If the City fails to materially comply with this Agreement and its Exhibits. 4. SCOPE OF PROJECT. If the City, directly or indirectly, materially changes the scope or use of the Project, or the milestones, or the nature of the business and activities being conducted, or proposed to be conducted, all as described in Exhibit A, unless the City first obtains Board approval to amend or modify the Project. 5. MISSPENDING. If the City expends funds in contravention of the laws or rules restricting the use of Flood Mitigation funds or if the City expends such funds for purposes not described in this Agreement unless the City first obtains Board approval to amend or modify the Project. 6. FAILURE TO COMPLETE. If the Scope of Project, as approved and /or amended by the Board, is not completed on or before December 31, 2033. For the purposes of this section "completed" means the Project is constructed and operational. 7. FAILURE TO OPERATE, MAINTAIN, AND SUPPORT. If the City fails to operate, maintain, and support all property and improvements relating to the Project as set forth in Iowa Code section 418.15 8.3 CONSEQUENCES OF EVENT OF NONCOMPLIANCE. Upon the occurrence of an event of noncompliance, the Board may, after providing notice and an opportunity to be heard by the City, take any action in its sole discretion authorized by law, including, but not limited to rescinding its approval to the City's Application, terminating this Agreement, suspending further remittances to the City, or ordering the City to file with the Board a request to amend its Application and /or Project. The Board may, at its discretion, transmit a copy of such action to the Iowa Department of Revenue, which shall result in the suspension or termination of the City's right to receive any further remittances under Iowa Code chapter 418. 8.4 NOTICE TO THE CITY OF EVENT OF NONCOMPLIANCE. In lieu of any other remedy authorized by law, the Board may, in its sole discretion, provide the City notice of the event of noncompliance with instructions to cure the noncompliance within a period of time determined by the Board. The Board's decision to provide Notice of Event Noncompliance in no manner or 9 respect inhibits the Board's ability to take any other action authorized by law in response to the event of noncompliance. 8.5 CITY INITIATED TERMINATION. If the City ceases to need the sales tax revenue prior to the conclusion of the Project or this Agreement, the City shall notify the Director of the Iowa Department of Revenue. The effect of such notification will be governed by Iowa Code section 418.15. 8.6 PROCEDURE UPON TERMINATION. If the Agreement is terminated by agreement of the parties, due to an Event of Noncompliance, disbursements may be allowed, in the discretion of the Board, for costs incurred prior to the date of termination if allowed under Iowa law. ARTICLE 9 GENERAL PROVISIONS 9.1 BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the Board, the City, and their respective successors, legal representatives and assigns. 9.2 PUBLIC RECORD. This Agreement is a public record governed by Iowa Code chapter 22. 9.3 SURVIVAL OF AGREEMENT. Each provision of this Agreement shall be deemed to be severable from all other provisions of the Agreement and, if one or more of the provisions of the Agreement shall be declared invalid, the remaining provisions of the Agreement shall remain in full force and effect. 9.4 IMMUNITY. By entering into this Agreement, the State of Iowa and the Board are not waiving any immunity to suit or liability, in state or federal court. 9.5 MODIFICATION. Neither this Agreement nor any documents incorporated by reference in connection with this Agreement may be changed, waived, discharged or terminated orally, but only as provided below: 1. WRITING REQUIRED. This Agreement may only be amended through written prior approval of the Board. Examples of situations where amendments are required include extensions for completion of the Project, changes to the Project including, but not limited to, alteration of existing approved activities, inclusion of new activities, or amendments to the schedule of remittances. 2. BOARD REVIEW. The Board will consider whether an amendment request is so substantial as to necessitate reevaluating the Board's approval of the Application. An amendment will be denied by the Board if it does not meet requirements set forth in Iowa Code Chapter 418 or Iowa Administrative Code chapter 605 -14. 9.6 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) days after posting. The Board may rely on the addresses of the City as set forth heretofore. 10 • 9.7 FINANCIAL LIMITATION. It is agreed by the City that the Board shall not, under any circumstances, be obligated financially under this Agreement. 9.8 ENFORCEMENT EXPENSES. The City shall pay upon demand any and all reasonable fees and expenses of the Board relating to the successful enforcement of this Agreement, including the fees and expenses of its attorneys, experts and agents, in connection with the exercise or enforcement of any of the rights of the Board under this Agreement. 9.9 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. IN WITNESS WHEREOF, in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have• entered into the above Agreement and have caused their duly authorized representatives to execute this Agreement. CITY OF DUBUQUE, IOWA FLOOD MITIGATION BOARD • By: By: Roy D. Be, Mayor Mark J. outen, Chair Date February 3 , 2014 Date: Z `tp Attest: Al/�� Ke in S. Firnstahl, City Clerk Date: February 3 , 2014 11 EXHIBIT A APPLICATION OF THE CITY OF DUBUQUE FOR THE USE OF SALES TAX REVENUES FOR THE STATE OF IOWA FLOOD MITIGATION PROGRAM FOR THE BEE BRANCH WATERSHED FLOOD MITIGATION PROJECT (On file with the Flood Mitigation Board) 12 EXHIBIT B SCHEDULE OF REMITTANCES OF THE CITY OF DUBUQUE FOR THE USE OF SALES TAX REVENUES FOR THE STATE OF IOWA FLOOD MITIGATION PROGRAM FOR THE BEE BRANCH WATERSHED FLOOD MITIGATION PROJECT CITY OF DUBUQUE Flood Mitigation Program YEAR AMOUNT 2014 332,469.00 2015 1,407,664.00 2016 2,132, 255.00 2017 2,871,049.00 2018 $ 3, 624, 322.00 2019 4,392,361.00 2020 5,175,452.00 2021 5,973,893.00 2022 $ 6,787,982.00 2023 6,944,414.00 2024 6, 968, 288.00 2025 6,946,514.00 2026 $ 6,957,577.00 2027 6,947,487.00 2028 6, 947, 500.00 2029 6,500, 000.00 2030 6, 000, 000.00 2031 5,500, 000.00 2032 3, 260, 000.00 2033 2,824,951.00 2034 $ 2035 TOTAL 98,494,178.00 13 EXHIBIT C BEFORE THE FLOOD MITIGATION BOARD STATE OF IOWA IN THE MATTER OF THE FLOOD ) FINDINGS OF FACT AND MITIGATION PROJECT APPLICATION OF ) CONCLUSIONS OF LAW AND THE CITY OF DUBUQUE FOR THE USE OF ) DETERMINATION SALES TAX REVENUES FOR THE STATE OF ) IOWA FLOOD MITIGATION PROGRAM TO: City of Dubuque STATEMENT OF THE CASE The City of Dubuque (hereinafter the "City ") filed its Flood Mitigation Project Application and Project Plan (hereinafter the "Application ") for the use of sales tax revenues for the State of Iowa Flood Mitigation Program for the Bee Branch Watershed Flood Mitigation Project with the Iowa Flood Mitigation Board (hereinafter the "Board ") on November 8, 2013. On November 21, 2013, the Board conducted a public meeting on the Application as required by law and accepted presentations by Iowa Homeland Security and Emergency Management Department and the City, oral and written public comment, and additional written material submitted by and other members of the public. On December 4, 2013, the Board reconvened and considered the City's Application for the use of sales tax revenues and the supporting documentation submitted by the City. After due consideration, the Board made the following findings of fact, conclusions of law and determination: FINDINGS OF FACT 1. On November 8, 2013, the City filed with the Board the Application for the use of sales tax revenues for the State of Iowa Flood Mitigation Program for the Bee Branch Watershed Flood Mitigation Project. 2. On November 21, 2013, the Board convened a meeting at 10;00 aim. at the State Capitol, Room 102, Des Moines, Iowa. The Board conducted a; public meeting on the City's request and accepted presentations by Iowa Homeland Security and Emergency Management Department and the City, oral and written public comment, and additional written material submitted by other members of the public. Page ► 1 14 3. Or December 4, 2013, the Board convened a meeting at 1:00 p.m. at the State Capitol, Room 102, Des Moines, Iowa. The Board Chair accepted a motion that the Board approve the Application for the City filed with the Board on the eighth day of November, 2013. It was further moved that the Board approve the use of sales tax increment revenue to support the Application in a total amount not to exceed $98,494,178.00, pursuant to a schedule set out in the Application. R was further moved that annual sales tax increment amounts shall be limited to the lesser of the state fiscal year annual protection submitted as a part of the approved Application for the City or the actual annual eligible tax Increment as determined by the Iowa Department of Revenue. The motion to approve was seconded and the Board discussed the motion. The Board chair asked for a roll call vote and the Board voted 9 -0 to approve the motion. CONCLUSIONS OF LAW 1. The City is a governmental entity as the term is defined in Iowa Code § 418.1(4). 2, The City's proposed flood mitigation project meets the requirements as an eligible project type as defined in Iowa Code § 418.1(6). 3 The City has applied for and /or received approved federal financial assistance In an amount equal to at least twenty percent (20 %) of the total cost of the protect, or $30 million, whichever is less, as required under the Iowa Code § 418.4(3)(b). 4. The City has agreed to provide a local match, when combined with the federal share, of a minimum of fifty percent (50%) of the total project cost as required under the Iowa Code §`418.9(2)(d). 5. The City's proposed flood mitigation project will result in nonpublic investment in the City's area, as defined in Iowa Code § 418.11(3), of an amount equal to at least fifty percent (50 %) of the total cost of the flood mitigation project as required under the Iowa Code § 418.9(2)(d), 6. The Board has duly considered all other provisions of Iowa Code § 418.9 (2) (a) — (h). ORDER THEREFORE, IT IS ORDERED that pursuant to Iowa Code §418.9 (4), the Board hereby approves the City's Application for the Bee Branch Watershed Flood Mitigation Project and the use of the sales tax increment revenues under Iowa Code Chapter 418, not to exceed $15 million In any one fiscal year or 70% of the total yearly amount of increased sales tax Page 1 2 15 revenue in the City's applicable area and deposited in the City's account, whichever is less, to the maximum amount of $98,494,178.00, This amount shall be payable over to the City pursuant_ to the schedule as set out in the City's Application. All this is in accordance with and subject to the terms and conditions of Iowa Code Chapter 418 and the administrative rules promulgated thereunder, Dated this 41" day of December, 2013. Page I 3 IOWA FLO+t MITIGATION BOARD Mark J. Schouten, Chairperson 16 BEFORE THE FLOOD MITIGATION BOARD STATE OF IOWA IN THE MATTER OF THE FLOOD ) FINDINGS OF FACT AND MITIGATION PROJECT APPLICATION OF ) CONCLUSIONS OF LAW AND THE CITY OF DUBUQUE FOR THE USE OF ) DETERMINATION SALES TAX REVENUES FOR THE STATE OF ) IOWA FLOOD MITIGATION PROGRAM TO: City of Dubuque STATEMENT OF THE CASE The City of Dubuque (hereinafter the "City ") filed its Flood Mitigation Project Application and Project Plan (hereinafter the "Application ") for the use of sales tax revenues for the State of Iowa Flood Mitigation Program for the Bee Branch Watershed. Flood Mitigation Project with the Iowa Flood Mitigation Board (hereinafter the "Board ") on November 8, 2013. On November 21, 2013, the Board conducted a public meeting on the Application as required by law and accepted presentations by Iowa Homeland Security and Emergency Management Department and the City, oral and written public comment, and additional written material submitted by and other members of the public. On December 4, 2013, the Board reconvened and considered the City's Application for the use of sales tax revenues and the supporting documentation submitted by the City. After due consideration, the Board made the following findings of fact, conclusions of law and determination: FINDINGS OF FACT 1. On November 8, 2013, the City filed with the Board the Application for the use of sales tax revenues for the State of Iowa Flood Mitigation Program for the Bee Branch Watershed Flood Mitigation Project. 2. On November 21, 2013, the Board convened a meeting at 10:00 a.m. at the State Capitol, Room 102, Des Moines, Iowa. The Board conducted a public meeting on the City's request and accepted presentations by Iowa Homeland Security and Emergency Management Department and the City, oral and written public comment, and additional written material submitted by other members of the public. Page 1 1 3. On December 4, 2013, the Board convened a meeting at 1:00 p.m. at the State Capitol, Room 102, Des Moines, Iowa. The Board Chair accepted a motion that the Board approve the Application for the City filed with the Board on the eighth day of November, 2013. It was further moved that the Board approve the use of sales tax increment revenue to support the Application in a total amount not to exceed $98,494,178.00, pursuant to a schedule set out in the Application. It was further moved that annual sales tax increment amounts shall be limited to the lesser of the state fiscal year annual projection submitted as a part of the approved Application for the City or the actual annual eligible tax increment as determined by the Iowa Department of Revenue. The motion to approve was seconded and the Board discussed the motion. The Board chair asked for a roll call vote and the Board voted 9 -0 to approve the motion. CONCLUSIONS OF LAW 1. The City is a governmental entity as the term is defined in Iowa Code § 418.1(4). 2. The City's proposed flood mitigation project meets the requirements as an eligible project type as defined in Iowa Code § 418.1(5). 3. The City has applied for and /or received approved federal financial assistance in an amount equal to at least twenty percent (20 %) of the total cost of the project, or $30 million, whichever is less, as required under the Iowa Code § 418.4(3)(b). 4. The City has agreed to provide a local match, when combined with the federal share, of a minimum of fifty percent (50 %) of the total project cost as required under the Iowa Code § 418.9(2)(d). 5. The City's proposed flood mitigation project will result in nonpublic investment in the City's area, as defined in Iowa Code § 418.11(3), of an amount equal to at least fifty percent (50 %) of the total cost of the flood mitigation project as required under the Iowa Code § 418.9(2)(d). 6. The Board has duly considered all other provisions of Iowa Code § 418.9 (2) (a) — (h). ORDER THEREFORE, IT IS ORDERED that pursuant to Iowa Code §418.9 (4), the Board hereby approves the City's Application for the Bee Branch Watershed Flood Mitigation Project and the use of the sales tax increment revenues under Iowa Code Chapter 418, not to exceed $15 million in any one fiscal year or 70% of the total yearly amount of increased sales tax Page 1 2 revenue in the City's applicable area and deposited in the City's account, whichever is less, to the maximum amount of $98,494,178.00. This amount shall be payable over to the City pursuant to the schedule as set out in the City's Application. All this is in accordance with and subject to the terms and conditions of Iowa Code Chapter 418 and the administrative rules promulgated thereunder. Dated this 4th day of December, 2013. IOWA FLO MITIGATION BOARD Mark J. Schouten, Chairperson Page 1 3 PROOF OF SERVICE The undersigned hereby certifies that a true copy of the foregoing instrument was served upon: Teri Goodmann City of Dubuque 50 West 13(h Street Dubuque, IA 52001 Said copy was mailed in an envelope addressed to them at the address shown above, with postage fully paid and by depositing same in a United States Post Office depository in Des Moines, Iowa, on the fi." day of January, 2014. Pa ge 1 4 y-7 MihIIe Matthes, Administrative Assistant 17 Page of >> Kevin Firnstahl Dubuque Flood Mitigation Project Resolution > From:Kevin Firnstahl To:Carol.Tomb@iowa.gov Date:2/6/2014 3:26 PM Subject:Dubuque Flood Mitigation Project Resolution CC:Bradley, Kerry; Goodmann, Teri; Hilkin, Juanita; Muehring, Deron; Va... Attachments:Dubuque Resolution 3114.pdf > Hi Carol, Attached is executed Resolution No. 3114 Authorizing the Execution of an Agreement with the State of Iowa > Flood Mitigation Board and Authorizing the Citys use of Sales Tax Increment Funding for the Bee Branch > Watershed Flood Mitigation Project. Please contact me if you have questions, need more information or have difficultly with the attachment. Thank you. Kevin S. Firnstahl, CMC City Clerk ity of Dubuque, Iowa > 50 W. 13th Street Dubuque, IA 52001 563.589.4121 kfirnsta@cityofdubuque.org >>> Kevin Firnstahl 2/4/2014 2:42 PM >>> I spoke with Carol. The original 2 agreements are in the mail with the envelope that was provided me. However, the Mayor missed the signature page on the Resolution. When he returns from DC, I'll scan the executed Resolution and send it to Carol. Carol is ok with receiving it by the end of the week. I've sent copies of the agreement to both Deron and Teri. Thank you, Kevin Kevin S. Firnstahl, CMC City Clerk City of Dubuque, Iowa 50 W. 13th Street Dubuque, IA 52001 563.589.4121 kfirnsta@cityofdubuque.org >>> Teri Goodmann <Tgoodman@cityofdubuque.org> 2/4/2014 2:16 PM >>> Can you assist please. Sent from my iPhone Begin forwarded message: file:///C:/Users/kfirnsta/AppData/Local/Temp/XPgrpwise/52F3A9ABDBQ_...2/6/2014 Page of >> From:"Tomb, Carol [HSEMD]" <Carol.Tomb@iowa.gov > Date: February 4, 2014 at 2:59:36 PM EST To: "Deron Muehring" <Dmuehrin@cityofdubuque.org>, "Teri Goodmann" Tgoodman@cityofdubuque.org >> Subject:FMP resolution Teri or Deron Would you please scan and email to me the city councils resolution approving the use of Sales > Tax Increment, etc.? Thanks. /Ăŉ◘▄ Ç◘▓Ľ [śĂŕ a╜Ċ╜┼ĂĊ╜◘■ tŉ◘╨śľĊ hźź╜ľśŉL■źŉĂℓĊŉĵľĊĵŉś L! I{9a5wśľ◘ōśŉŦ 5╜ō╜ℓ╜◘■ ƹƻƲƲ I╜ľ╫▓Ă■ wŕẽ {ĵ╜Ċś ƷƲƲ í╜■ŕℓ◘ŉ Iś╜┼╙Ċℓẽ L! 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