Approving the Development Agreement with McCoy Group, Inc., Including the Issuance of Urban Renewal Tax Increment Revenue Grant Obligations_HearingCity of Dubuque
City Council Meeting
Public Hearings # 01.
Copyrighted
January 3, 2023
ITEM TITLE: Resolution Approving the Development Agreement by and between the
City of Dubuque and McCoy Group, I nc., I ncluding the I ssuance of
Urban Renewal Tax Increment Revenue Grant Obligations
SUMMARY: Proof of publication on notice of public hearing to consider City Council
adoption of a resolution approving the Development Agreement by and
between the City of Dubuque, and McCoy Group, Inc. including the
issuance of Urban Renewal Tax Increment Revenue Grant Obligations,
and City Manager recommending approval.
RESOLUTION Approving a Development Agreement by and between
the City of Dubuque, and McCoy Group, Inc., including the issuance of
urban renewal tax increment revenue obligations
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
McCoy Group -Development Agreement- MVM Memo City Manager Memo
Staff Memo Staff Memo
Resolution of Approval Resolutions
Development Agreement Supporting Documentation
THE CITY OF
Dubuque
DUB TEE1.
All -America City
Masterpiece on the Mississippi
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Approving the Development Agreement by and between the
City of Dubuque and McCoy Group, Inc., Including the Issuance of Urban
Renewal Tax Increment Revenue Grant Obligations
DATE: December 21, 2022
Economic Development Director Jill Connors is recommending City Council adopt a
Resolution approving the Development Agreement by and between the City of
Dubuque, and McCoy Group, Inc. including the issuance of Urban Renewal Tax
Increment Revenue Grant Obligations.
McCoy Group, Inc. is proposing to build a 78,370 square foot corporate headquarters in
the same general location as its existing facility located at 2099 Southpark Court. The
company plans to invest approximately Thirty -Three Million Dollars in remodeling,
construction, and machinery/equipment. The project is anticipated to begin shortly after
the finalization of the Development Agreement.
In addition to the physical improvements, McCoy Group, Inc. is proposing to create
eighteen (18) new jobs with this expansion, all of which are considered high quality jobs
by the Iowa Economic Development Authority.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Micliael C. Van Milligen
MCVM:sv
Attachment
CC' Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
Dubuque Economic Development
Department
THE CITY OF
50 West 13th Street
All•AmerieaGiiy Dubuque, Iowa 52001-4864
U B
�1111.
Office (563) 589-4393
Df 'TTY (563) 690-6678
http://www.cityofdubuque.org
2007-2012.2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Approving the Development Agreement by and between
the City of Dubuque and McCoy Group, Inc., Including the Issuance
of Urban Renewal Tax Increment Revenue Grant Obligations
DATE: December 21, 2022
INTRODUCTION
This memorandum presents for City Council consideration and action the attached
resolution approving a Development Agreement by and between the City of Dubuque,
and McCoy Group, Inc., including providing for the issuance of Urban Renewal Tax
Increment Revenue Grant Obligations.
BACKGROUND
The McCoy Group, Inc. is a private family -owned company started in 1958. McCoy
Group, Inc. is the parent company of Foodliner (Food grade bulk hauler), Quest Liner
(Non -Food grade bulk hauler), Truck Country (Freightliner and Western Star Truck
Dealerships) and McCoy Construction & Forestry (John Deere Construction & Forestry
Dealerships). The company's customer base is nationwide and in Mexico. Its customer
base includes ADM, Ingredion, Cargill, KMG, General Mills, Walmart, Heartland
Express, CRST, Dow, Coca-Cola, Pepsi, and the United States Air Force, to name a
few.
McCoy Group, Inc. employs 3,833 people nationwide (including parent company,
subsidiaries, and other affiliated entities), with 351 of those jobs located in the City of
Dubuque.
DISCUSSION
McCoy Group, Inc. is proposing to build a 78,370 square foot corporate headquarters in
the same general location as its existing facility located at 2099 Southpark Court. The
company plans to invest approximately Thirty -Three Million Dollars in remodeling,
construction, and machinery/equipment. The project is anticipated to begin shortly after
the finalization of the Development Agreement.
In addition to the physical improvements, McCoy Group, Inc. is proposing to create
eighteen (18) new jobs with this expansion, all of which are considered high quality jobs
by the Iowa Economic Development Authority.
The key elements of the Development Agreement include the following:
1. McCoy Group, Inc. must construct an office facility of approximately
78,000 square feet with a capital investment of approximately $33,000,000
to be completed by December 31, 2024.
2. McCoy Group, Inc. must maintain its existing 248 FTE and create 18 new
full time equivalent jobs at the new facility by October 1, 2026. The 266
full-time equivalent jobs must be maintained through the term of the
Development Agreement.
3. McCoy Group, Inc. will receive 10 years of years of tax increment
financing incentives in the form of semi-annual rebates. These incentives
are calculated in relation to the number of jobs committed in the
Development Agreement. Tax increment financing incentives are
estimated to not exceed $2,978,213.
4. The City of Dubuque will make infrastructure improvements in the area,
including reconstruction, with curb and gutter, of the existing asphalt
concrete on a portion of Twin Valley Drive and resurfacing existing asphalt
pavement of Southpark Court. These infrastructure improvements are
anticipated to cost approximately $605,295 and will be funded through tax
increment captured by the City in the area.
5. The City of Dubuque will create a new Urban Renewal District and adopt
an Urban Renewal Plan to accommodate the issuance of tax increment
financing incentives.
RECOMMENDATION/ ACTION STEP
Based on the City Council's goal of creating a robust local economy, I recommend that
the City Council adopt the attached Resolution approving the Development Agreement
by and between the City of Dubuque, and McCoy Group, Inc. including the issuance of
Urban Renewal Tax Increment Revenue Grant Obligations.
Prepared by: Jill Connors, Economic Development, 1300 Main Street, Dubuque IA 52001, 563 589-4393
Return to: Jill Connors, Economic Development, 1300 Main Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 10-23
APPROVING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF
DUBUQUE, AND MCCOY GROUP, INC., INCLUDING THE ISSUANCE OF URBAN
RENEWAL TAX INCREMENT REVENUE OBLIGATIONS
WHEREAS, McCoy Group, Inc. is the owner of the following described real
property:
TRACT
Lot 2 of Lot 3 of Lot 3 of Southpark Addition No. 1, in the City of Dubuque, Iowa, according
to the recorded plat thereof, subject to easements of record
TRACT II
Lot 2 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the recorded
plat thereof, subject to easements of record
TRACT III
Lot 2 of Southpark Addition No.1, in the City of Dubuque, Iowa, according oto the recorded
plat thereof, subject to easements of record (the 'Property")
TRACT IV
Lot 1 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the recorded
plat thereof, subject to easement of record
TRACT V
Lots 1 and 2 of Gudenkauf Place, City of Dubuque, Iowa
(the Property); and
WHEREAS, the City Council, by Resolution No. 392-22, dated December 19,
2022, declared its intent to enter into a Development Agreement by and between the City
of Dubuque, and McCoy Group, Inc., including the issuance of Urban Renewal Tax
Increment Revenue Obligations; and
WHEREAS, pursuant to published notice, a public hearing was held on the
proposed Development Agreement on January 3, 2023 at 6:30 p.m.; and
WHEREAS, it is the determination of the City Council that approval of the
Development Agreement for redevelopment of the Property by McCoy Group, Inc.
according to the terms and conditions set out in the Development Agreement, is in the
public interest of the City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Development Agreement by and between the City of
Dubuque and McCoy Group, Inc.., a copy of which is attached hereto, including the
issuance of Urban Renewal Tax Increment Revenue Obligations, is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City of Dubuque and the City Clerk is authorized
and directed to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Development Agreement as herein approved.
Passed, approved and adopted this 3rd day of January, 2023.
Attest:
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Adrienne N. Breitfelder, CMC, City Clerk
i
Brad M. CaveO�6h,Mayor
E
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
MCCOY GROUP, INC.
This Agreement, dated for reference purposes the 3'd day of
�an0 r , 202X�by and between the City of Dubuque, Iowa, a municipality
(City), esta lished pursuant to the Iowa Code and acting under authorization of Iowa
Code Chapter 403, as amended (Urban Renewal Act) and McCoy Group, Inc., a
Wisconsin corporation with its principal place of business in Dubuque, Iowa (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an Urban Renewal Project as described herein to advance the community's
ongoing economic development efforts; and
WHEREAS, the Property is located in a proposed Twin Valley Urban Renewal
District (the District) which will be proposed as an economic development area (the
Project Area) as defined by Iowa Code Chapter 403 (the Urban Renewal Law); and
WHEREAS, The City will create an Urban Renewal Area and Plan to describe the
Urban Renewal Project being undertaken in accordance with this Agreement by no later
than December 31, 2023.
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, will be on file with the County Auditor and the City of Dubuque City Clerk by
no later than December 31, 2023; and
WHEREAS, Developer has determined that it requires a new central office facility
to maintain and expand its operations and employment in the Project Area (the Facility);
and
WHEREAS, Developer is the owner of the following described real estate:
TRACT I (PIN 1501401003)
Lot 2 of Lot 3 of Lot 3 of Southpark Addition No. 1, in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements of record
12152022bal
TRACT II (PIN 1501401005)
Lot 2 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easements of record
TRACT III (PIN 1501402003)
Lot 2 of Southpark Addition No.1, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easements of record (the "Property")
TRACT IV (PIN 1501401004)
Lot 1 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easement of record
TRACT V (PINS 1501328002 and 1501328003)
Lots 1 and 2 of Gudenkauf Place, City of Dubuque, Iowa
(the Property) with all easements, tenements, hereditaments, and appurtenances
belonging thereto so that Developer may develop the Property, located in the Project
Area, for the construction, use, and occupancy of the Facility in accordance with the uses
specified in the Urban Renewal Plan and Developer agrees to comply with any
amendments to the Urban Renewal Plan, in accordance with this Agreement; and
WHEREAS, Developer will undertake the construction of a building located on the
Property; and
WHEREAS, Developer will occupy the building and employ employees as
provided herein; and
WHEREAS, Developer will make a capital investment in building improvements,
equipment, furniture and fixtures in the Facility, all of the foregoing referred to herein as
the Project; and
WHEREAS, City believes that the Project and the development of the Property
pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital
and best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the Project has
been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement, City hereby represents and warrants to Developer that to the best of
City's knowledge:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery, and performance of this Agreement and that it has full power
and authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of
whatever nature to which City is now a party or by which it or its property is bound,
or constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
1.2 Representations and Warranties of Developer. Developer makes the following
individual representations and warranties:
(1) Developer is duly organized and validly existing or authorized under the
laws of the State of Wisconsin 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 in the State of Iowa.
(2) This Agreement has been duly authorized, executed and delivered by
Developer , and assuming due authorization, execution and delivery by City, is in
full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally. Developer's counsel shall issue legal opinions to the
City, at time of closing, confirming the representations contained herein, in the form
attached hereto as Exhibit C.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, financial position or
result of operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
state and federal laws and regulations.
(6) Developer will use good faith efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer has commitments for permanent financing for the Development
Project and all of its obligations under this Agreement in an amount sufficient,
together with equity commitments, to successfully complete the requirements of
this Agreement and shall provide evidence thereof to City prior to the Closing Date.
1.3 Conditions to Closing. The closing of the transaction (the Closing) contemplated
by this Agreement and all the obligations of Developer under this Agreement are subject
to fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.1 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the Closing, City shall deliver a
certificate in the form of Exhibit E.
(2) Developer having obtained any and all necessary governmental approvals,
including without limitations approval of zoning, subdivision, or platting which might
be necessary or desirable in connection with the development of the Development
Property. Any conditions imposed as a part of the zoning, platting or subdivision
must be satisfactory to Developer, in its sole opinion. City shall cooperate with
Developer in attempting to obtain any such approvals and shall execute any
documents necessary for this purpose, provided that City shall bear no expense in
connection therewith. In connection therewith, City agrees (a) to review all of
Developer's plans and specifications for the Project and to either reject or approve
the same in a prompt and timely fashion; (b) to issue a written notification to
Developer, following City's approval of same, indicating that City has approved
such plans and specifications, and that the same are in compliance with the Urban
Renewal Plan and Developer agrees to comply with any amendments to the Urban
Renewal Plan, this Agreement and any other applicable City or affiliated agency
requirements, with the understanding that Developer and its lenders shall have the
right to rely upon the same in proceeding with the project; (c) to identify in writing
within ten (10) working days of submission of said plans and specifications, any
and all permits, approvals and consents that are legally required for the acquisition
of the Property by Developer, and the construction, use and occupancy of the
project with the intent and understanding that Developer and its lenders and
attorneys will rely upon same in establishing their agreement and time frames for
construction, use and occupancy, lending on the project and issuing legal opinions
in connection therewith; and (d) to cooperate fully with Developer to streamline and
facilitate the obtaining of such permits, approvals and consents.
(3) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein)
in conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of such party's financial ability as in the reasonable
judgment of City is required.
(5) Developer shall have furnished City with evidence in a form as required by
Section 5.2 and satisfactory to City of Developer's fulltime equivalent employees
(FTE) at 2099 Southpark Ct. in the City of Dubuque, Iowa, as of January 1, 2022.
(6) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit C.
(7) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines
in its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied to the full satisfaction of such
party in such party's sole and unfettered discretion. Upon the giving of notice of
termination by such terminating party to the other parties to this Agreement, this
Agreement shall be deemed null and void.
1.4 Closing. The closing shall take place on the Closing Date which shall be the March
1, 2023, or such other date as the parties shall agree in writing but in no event shall the
Closing Date be later than the 1st day of June, 2023. Consummation of the closing shall
be deemed an agreement of the parties to this Agreement that the conditions of closing
shall have been satisfied or waived.
1.5 City's Obligations at Closing. At or prior to Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that the Facility Developer
is building on the Property is a first-class home office facility for a multistate business.
Developer agrees to construct the building and add certain internal systems thereto,
including all interior improvements to the building (the Minimum Improvements); all as
more particularly depicted and described on the plans and specifications to be delivered
to and approved by City as contemplated in this Agreement. Developer hereby agrees
the Facility will be approximately seventy-eight thousand three hundred seventy (78,370)
square feet of floor space along with the necessary site work and equipment at an
estimated cost of approximately Thirty -Three Million Dollars ($33,000,000).
2.2 Plans for Construction of Minimum Improvements. Developer shall provide City
with an approved Site Plan, at City's sole discretion. The parties agree that this
Development Agreement shall be amended to include such Site Plan. 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 the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations. 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 Improvements shall
be in substantial conformity with the Construction Plans approved by City.
2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before March 1, 2023
and shall be substantially completed by December 31, 2024. The time frame 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, shut down due to COVID-19, 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, 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.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, the City Manager shall furnish Developer with
an appropriate instrument so certifying. 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 and in the Deed with
respect to the obligations of Developer to construct the Minimum Improvements. The
Certificate of Completion, in the form attached hereto as Exhibit E, shall waive all rights
of re -vestment of title to the Property as provided in Section 6.3(1), and the Certificate of
Completion shall so state.
SECTION 3. CITY PARTICIPATION.
3.1 Economic Development Grants.
(1) Developer Economic Development Grants
(a) For and in consideration of Developer's obligations hereunder, and
in furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Developer
being and remaining in compliance with the terms of this Agreement, to
make semi-annual payments (such payments being referred to collectively
as the Developer Economic Development Grants) to Developer
commencing November 1, 2026. However, the initial Economic
Development Grant payments shall be retained by City to reimburse City
for its incurred costs for the Infrastructure Work, as set forth in paragraph
3.2. Upon completion of the Infrastructure Work City shall, as set forth
below, certify to Developer the actual costs of the Infrastructure Work. The
Certification shall be by written certification supported by appropriate
documentation. City shall retain the November 1, 2026 Economic
Development Grant and each grant thereafter until City has been
reimbursed in full for the certified costs of the Infrastructure Work. With each
retained payment City shall notify Developer in writing of the amount of the
Economic Development Grant withheld and the remaining balance of the
Infrastructure Work costs yet to be recovered. As long as any sums remain
due to City for the cost of the Infrastructure Costs, City shall retain the
entirety of the Economic Development Grant.
At such time as City has been reimbursed for all certified actual, direct, costs
incurred for the Infrastructure Work set forth in paragraph 3.2 as determined
by City, twenty (20) Grant payments (10 years) shall be paid to Developer.
The parties shall, prior to closing, agree upon a process and procedure by
which City shall certify the Infrastructure Work costs pursuant to Iowa Code
Section 403.9 of the Urban Renewal Law, in amounts equal to the actual
amount of tax increment revenues collected by City under Iowa Code
Section 403.19 (without regard to any averaging that may otherwise be
utilized under Iowa Code Section 403.19 and excluding any interest that
may accrue thereon prior to payment to Developer) during the preceding six
(6) month period in respect of the Property and Minimum Improvements
constructed by Developer (the Developer Tax Increments). City and
Developer agree that for purposes of this Section 3.1(1), the assessed value
of the Property as of January 1, 2022 is Two Million Eight Hundred Fifty -
Seven Thousand One Hundred Ninety Dollars ($2,857,190). Developer
recognizes and agrees that the Developer 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 Iowa law, and thus such incremental taxes will
not include all amounts paid by Developer as regular property taxes.
(b) To fund the Developer Economic Development Grants, City shall
certify to the County prior to December 1 of each year, commencing
December 1, 2025, its request for the available Developer Tax Increments
resulting from the assessments imposed by the County as of January 1 of
that year, to be collected by City as taxes are paid during the following fiscal
year and which shall thereafter be disbursed to Developer on November 1
and May 1 of that fiscal year. (Example: If City so certifies by December 1,
2025, the Developer Economic Development Grants in respect thereof
would be determined on November 1, 2026, and May 1, 2027.)
(c) The Developer 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 McCoy Group TIF Account of City.
City hereby covenants and agrees to maintain its TIF ordinance in force
during the term and to apply the incremental taxes collected in respect of
the Property and Minimum Improvements and allocated to the McCoy
Group TIF Account to pay the Developer Economic Development Grants,
as and to the extent set forth in Section 3.1(1) hereof. The Developer
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 Developer Economic Development Grants in any one
year and under no circumstances shall City in any manner be liable to
Employer so long as City timely applies the Developer Tax Increments
actually collected and held in the McCoy Group TIF Account (regardless of
the amounts thereof) to the payment of the Developer Economic
Development Grants to Developer as and to the extent described in this
Section.
(7) City shall be free to use any and all tax increment revenues collected in respect of
other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development
Grants under this Section 3.1 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.
(7) All of City's obligations under this Agreement, including but not limited to City's
obligation to pay the Economic Development Grants to Developer, shall be subject
to City having completed all hearings and other procedures required to create an
Urban Renewal Area and Plan to describe the Urban Renewal Project being
undertaken in accordance with this Agreement by no later than December 31,
2023.
3.2 City shall make the following street improvement projects related to the Facility
(the "Infrastructure Work"):
A. Complete reconstruction, with curb and gutter, of the existing asphalt concrete
portion of Twin Valley Drive from the intersection with Highway 151 to SouthPark
Court, including installation of sidewalks (along approximately 425 feet of
roadway from Southpark Court to the east).
Construct curb and gutter and sidewalks on the south side of the existing
Portland Cement concrete portion of Twin Valley Drive from the intersection with
Highway 151 to Southpark Court (along approximately 225 feet of roadway
westerly of Highway 151).
This Infrastructure Work will include improving the curb radius at the northwest
and northeast quadrants of the intersection of Twin Valley Road and South Park
Court to accommodate a WB-67 design vehicle.
This Infrastructure Work will commence by May 2025 and be complete by
December 2025 so as not to interfere with the Facility Project. This Infrastructure
Work cost is estimated at $562,216.04. City will not charge to the Developer
Economic Development Grants any costs that are assessed to adjoining property
owners.
B. Resurface existing asphalt pavement, by mill and fill method with 1.5" hot mix
asphalt pavement overlay, of Southpark Court from Twin Valley Drive to the
Facility, including installation of sidewalks. Sidewalks will be included for at least
one side of the street. Sidewalks and any required retaining walls will be 100%
assessed to abutting property owners as part of this Infrastructure Work. This
Infrastructure Work will be complete by July 2026 so as not to interfere with the
sidewalk/retaining wall project and the Facility Project. No estimate for the
sidewalks and retaining wall have been calculated at this time.
The 2025 costs for This Infrastructure Work without the sidewalk and retaining
wall is estimated to be $43,079.60.
C. Sell to Developer, at $5.80 per square foot, such property as determined by City
to allowing shifting of the current location of Southpark Court to the proposed
location as shown generally on Exhibit G subject to final approval of the design
by City.
Developer shall be responsible for all costs associated with the cul-de-sac
relocation, including but not limited to pavement, curb and gutter, base course,
and any affected utilities.
3.3 Other than the Economic Development Grants required by Section 3.1, City shall
have no obligation to provide any other funds to Developer.
SECTION 4. NOW APPROPRIATION / LIMITED SOURCE OF FUNDING.
4.1 Non -Appropriation.
(1) Notwithstanding anything in this Agreement to the contrary, the obligation
of City to pay any installment of the Economic Development Grants from
the pledged tax increment revenues shall be an obligation limited to
currently budgeted funds, and not a general obligation or other
indebtedness of City or a pledge of its full faith and credit within the meaning
of any constitutional or statutory debt limitation, and shall be subject in all
respects to the right of non -appropriation by the City Council of City as
provided in this Section. City may exercise its right of non -appropriation as
to the amount of the installments to be paid during any fiscal year during the
term of this Agreement without causing a termination of this Agreement.
The right of non -appropriation shall be exercised only by resolution
affirmatively declaring City's election to non -appropriate funds otherwise
required to be paid in the next fiscal year under this Agreement.
(7) In the event the City Council of City elects to not appropriate sufficient funds in the
budget for any future fiscal year for the payment in full of the installments on the
Economic Development Grants due and payable in that future fiscal year, then City
shall have no further obligation to Developer for the payment of any installments
due in that future fiscal year which cannot be paid with the funds then appropriated
for that purpose.
4.2 The right of non -appropriation reserved to City in this Section is intended by the
parties, and shall be construed at all times, so as to ensure that City's obligation to pay
future installments on the Economic Development Grants shall not constitute a legal
indebtedness of City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the payment of
that installment or amount. In the event that any of the provisions of this Agreement are
determined by a court of competent jurisdiction to create, or result in the creation of, such
a legal indebtedness of City, the enforcement of the said provision shall be suspended,
and the Agreement shall at all times be construed and applied in such a manner as will
preserve the foregoing intent of the parties, and no event of default shall be deemed to
have occurred as a result thereof. If any provision of this Agreement or the application
thereof to any circumstance is so suspended, the suspension shall not affect other
provisions of this Agreement which can be given effect without the suspended provision,
and to this end the provisions of this Agreement are severable.
SECTION 5. COVENANTS OF DEVELOPER.
5.1 Job Creation and Maintenance. During the term of this Agreement, Developer
shall comply with the following employment -related covenants for the Property:
(1) Developer represents that the number of fulltime equivalent (FTE)
employees employed by Developer at 2099 Southpark Court as of January 1, 2022
is Two Hundred Forty -Eight (248). Developer shall create and maintain eighteen
(18) additional FTE employees employed by Developer by October 1, 2025 and
during the remaining Term of this Agreement for a total of Two Hundred Sixty -Six
(266) FTE employees at 2099 Southpark Court and the Facility. FTE employees
shall be calculated by adding fulltime and part-time employees together using 2080
hours per year as a FTE employee.
(7) For the FTE positions that Developer fails to create and maintain for any year
during the term of this Agreement, the semi-annual Developer Economic
Development Grants for such year under Section 3.1(1) shall be reduced by the
percentage that the number of positions Developer fails to create or maintain as
required by this Section 5.1 bears to the total number of positions required to be
created and maintained (266 FTEs) by this Section 5.1. (For example, if Developer
has 200 FTE employees employed by Employer, the semi-annual Economic
Development Grants to be paid for that year would be 75% (200/266 employees)
of the Tax Increment Revenues received by City). The reduction of the semi-
annual Economic Development Grants shall be City's sole remedy for the failure
of Developer to meet the job creation requirements of this subsection 5.1(2).
(7) Developer's job creation and maintenance obligation under Section 5.1(1) will
continue during the Term of this Agreement.
5.2 Certification. To assist City in monitoring the performance of Developer hereunder,
as of October 1, 2026, and again as of October 1 of each year thereafter during the term
of this Agreement, a duly authorized officer of Developer shall certify to City in a form
acceptable to City (a) the number of FTE positions employed by Developer at the 2099
Southpark Court Facility, and (b) to the effect that such officer has re-examined the terms
and provisions of this Agreement and that at the date of such certificate, and during the
preceding twelve (12) months, Developer is not or was not in default in the fulfillment of
any of the terms and conditions of this Agreement and that no Event of Default (or event
which, with the lapse of time or the giving of notice, or both, would become an Event of
Default) is occurring or has occurred as of the date of such certificate or during such
period, or if the signer is aware of any such default, event or Event of Default, said officer
shall disclose in such statement the nature thereof, its period of existence and what
action, if any, has been taken or is proposed to be taken with respect thereto. Such
certificate shall be provided not later than October 15, 2025, and by October 15 of each
year thereafter. Developer's certification obligations under this Section 5.2 terminate
following the final certification on October 1, 2034 (due by October 15, 2034).
5.3 Books and Records. During the term of this Agreement, Developer shall keep at
all times proper books of record and account in which full, true and correct entries will be
made of all dealings and transactions of or in relation to the business and affairs of
Developer in accordance with generally accepted accounting principles consistently
applied throughout the period involved, and Developer shall provide reasonable
protection against loss or damage to such books of record and account.
5.4 Real Property Taxes. From and after the Closing Date, Developer shall pay or
cause to be paid, when due and before delinquency, 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.
5.5 No Other Exemptions. During the term of this Agreement, Developer agrees not
to apply for any state or local property tax exemptions which are available with respect to
the Property or the 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 Iowa Code Chapters 404 and 427, as amended.
5.6 Insurance Requirements.
(7) 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 (and, from time to time at the request of City, furnish
City with proof of insurance in the form of a certificate of insurance for each
insurance policy):
Builder's risk insurance, written on a completed value in an amount equal to one
hundred percent (100%) of the replacement value of the Minimum Improvements,
naming City as a named insured and lender loss payable. Coverage shall include
the "special perils" form.
The City of Dubuque, Owners, Contractors, Subcontractors, and Sub -
Subcontractors shown as additional named insureds are only additional named
insured with respect to their interest in the Covered Property at the premises
shown in the declarations.
(7) 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 (and from time to time at the request of City shall
furnish proof of insurance in the form of a certificate of insurance) property
insurance against loss and/or damage to the Minimum Improvements under
an insurance policy written in an amount not less than the full insurable
replacement value of Minimum Improvements naming City as lender loss
payable. Coverage shall include the "special perils" form.
(7) The term "replacement value" shall mean the actual replacement cost of
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 agrees to notify City immediately in the case of damage
exceeding One Hundred Thousand Dollars ($100,000.00) in amount to, or
destruction of, the Minimum Improvements or any portion thereof resulting from
fire or other casualty. The net proceeds of any such insurance (the 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.
(5) Developer shall be responsible for deductibles and self -insured retention.
5.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, Minimum
Improvements in good repair and working order, ordinary wear and tear excepted, and
from time to time shall make all necessary repairs, replacements, renewals and additions.
Nothing in this Agreement, however, shall be deemed to alter any agreements between
Developer or any other party including, without limitation, any agreements between the
parties regarding the care and maintenance of the Property.
5.8 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of age, color, familial status,
gender identity, marital status, mental/physical disability, national origin, race,
religion/creed, sex, or sexual orientation.
5.9 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position
to participate in a decision -making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the project, or in any
activity, or benefit therefrom, which is part of this project at any time during or after such
person's tenure. In connection with this obligation, Developer shall have the right to rely
upon the representations of any party with whom it does business and shall not be
obligated to perform any further examination into such party's background.
5.10 Non -Transferability. 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, which consent shall not
be unreasonably withheld. City has no obligation to consent to any assignment or sale.
5.11 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:
(7) 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 consistent with its current zoning is in full compliance
with the Urban Renewal Plan and Developer agrees to comply with any
amendments to 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
(7) Not discriminate upon the basis of age, color, familial status, gender identity,
marital status, mental/physical disability, national origin, race,
religion/creed, sex, or sexual orientation in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party
in breach of same).
5.12 Release and Indemnification Covenants. Developer agrees to the following
conditions of release and indemnification, except that each company only agrees to
indemnify the Indemnified Parties (defined below), with respect to the negligence,
misrepresentation, or misconduct of their own respective acts. Developer do not
individually agree to any indemnification from conduct of another party.
(7) Developer releases City and the governing body members, officers, agents,
servants and employees thereof (hereinafter, for purposes of this Section,
the Indemnified Parties) from and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend
and hold harmless the Indemnified Parties against any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(7) Except for any gross negligence, willful misrepresentation or any willful or
wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and/or to enforce its
rights under this Agreement); or (2) the acquisition, construction,
installation, ownership, and operation of the Minimum Improvements or (3)
the condition of the Property and any hazardous substance or
environmental contamination located in or on the Property, caused and
occurring after Developer takes possession of the Property.
(7) The Indemnified Parties shall not be liable to Developer for any damage or
injury to the persons or property of Developer or its officers, agents,
servants or employees or any other person who may be on, in or about the
Minimum Improvements due to any act of negligence of any person, other
than any act of negligence on the part of any such Indemnified Party or its
officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member,
officer, agent, servant or employee of City in their individual capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
5.13 Compliance with Laws. Developer shall comply with all federal, state, and local
laws, rules and regulations relating to its businesses, other than laws, rules and
regulations for which the failure to comply with or the sanctions and penalties resulting
therefrom, would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
6.1 Events of Default Defined. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(7) 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.
(7) 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.
(7) Transfer of any interest by Developer in any portion of the Property or the
Minimum Improvements in violation of the provisions of this Agreement.
(4) Failure by Developer to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement.
6.2 Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 6.1 of this Agreement occurs and is continuing, City, as specified below, may take
any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and the Developer does not provide
assurances to City that the Event of Default will be cured as soon as reasonably possible
thereafter:
(7) City may suspend its performance under this Agreement until it receives
assurances from the Developer , deemed adequate by City, that the
Developer will cure the default and continue the performance under this
Agreement;
(7) Until the Closing Date, City may cancel and rescind this Agreement;
(7) 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
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
6.3 No Remedy 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.
6.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
6.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of such action or by the arbitrator, as
the case may be, or may be enforced in a separate action brought for that purpose. Such
fees and costs of litigation shall be in addition to any other relief that may be awarded.
6.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that
may appear necessary or desirable to collect any payments due under this Agreement,
to recover expenses of Developer , or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may
suspend 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 7. GENERAL TERMS AND PROVISIONS.
7.1 Notices and Demands. Whenever this Agreement requires or permits any notice
or written request by one party to another, it shall be deemed to have been properly given
if and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer: McCoy Group, Inc.
2099 Southpark Court
Dubuque, IA 52002
Phone: (563) 584-2670
With copy to: Flint Drake
Drake Law Firm PC
300 Main St., Suite 323
Dubuque, Iowa 52001
If to City: City Manager
50 W. 13t" Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13t" Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
7.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and their respective successors and assigns.
7.3 Force Maleure. A party shall be excused from its obligations under this Agreement
if and to the extent and during such time as the party is prevented, impeded, or hindered,
unable to perform its obligations or is delayed in doing so due to events or conditions
outside of the party's reasonable control and after the party has taken reasonable steps
to avoid or mitigate such event or its consequences (each a "Force Majeure Event")
including, without limitation in any way, as the result of any acts of God, war, fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes and/or labor
disputes, pandemic, epidemic, quarantines, government stay-at-home orders, municipal
and other government orders, failure of Internet, or other matter beyond the control of
such party. Upon the occurrence of a Force Majeure Event, the party incurring such
Force Majeure Event will promptly give notice to the other party identifying the Force
Majeure Event, explaining how it impacts performance and the estimated duration,
identifying the relief requested, agreeing to limit damages to the other party and to
immediately resume performance upon termination of the Force Majeure Event, and
agreeing to supplement the notice as more information becomes available, and thereafter
the parties shall meet and confer in good faith in order to identify a cure of the condition
affecting its performance as expeditiously as possible. No obligation to make a payment
required by this Agreement is excused by a Force Majeure Event. The nonperforming
party shall not be entitled to any damages or additional payments of any kind for any such
delay.
7.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1 following the last payment to Developer under
Section 3.1..
7.5 Execution By Facsimile. The parties agree that this Agreement may be transmitted
among them by email or facsimile machine. The parties intend that the emailed or faxed
signatures constitute original signatures and that an emailed or faxed Agreement
containing the signatures (original, emailed or faxed) of all the parties is binding on the
parties.
7.6 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit F in the
office of the Recorder of Dubuque County, Iowa. 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.
CITY OF DUBUQUE, IOWA MCCOY GROUP, INC.
Attest:
By.OA,-&/Pz A Aufl"-
Adrienne N. Breitfeider, City Clerk
LIST OF EXHIBITS
EXHIBIT A Urban Renewal Plan
EXHIBIT B Opinion of Counsel to City
EXHIBIT C Opinion of Counsel to Developer
EXHIBIT D City Certificate
EXHIBIT E Certificate of Completion
EXHIBIT F Memorandum of Development Agreement
EXHIBIT G Proposed Location for Southpark Court
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13t" Street, Dubuque, IA 52001)
EXHIBIT B
OPINION OF COUNSEL TO CITY
Barry A. Lindahl, Esq.
Senior Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563)583-1040 fax
balesc(a,cityofdubuque •ors
RE:
Dear
THE CITY OF
DUB E
Masterpiece on the Mississippi
(DATE)
Dubuque
orityl
AII•Amerin pq
Mx'hv.. rik,iv all
2007-2012-2013
2017*2019
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement by and between McCoy Group, Inc.
(Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the
day of , 20_.
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to execute,
deliver and perform its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
, 20 , are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:JLM
EXHIBIT C
OPINION OF DEVELOPER'S COUNSEL
Mayor and City Councilmembers
City Hall
1 Sh and Central Avenue
Dubuque IA 52001
Re: Development Agreement By and Between the City of Dubuque, Iowa, and McCoy
Group, Inc.
Dear Mayor and City Councilmembers:
We have acted as counsel for McCoy Group. Inc. (Developer) in connection with
the execution and delivery of a certain Development Agreement (Development
Agreement) between Developer and the City of Dubuque, Iowa (City) dated for reference
purposes the day of 120.
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Developer is a Wisconsin corporation with its principal place of business at
Dubuque, Iowa and has full power and authority to execute, deliver and perform in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Developer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Developer enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer,
any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree,
order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. To the best of our knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting Developer in any court or before any arbitrator
or before or by any governmental body in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the Developer's
ability to perform Developer's obligations thereunder.
We have examined such documents and certificates of public officials and officers
of the Developer as we have deemed necessary for the purposes of this opinion. As to
the existence of facts which are material to this opinion, we have relied upon certificates
of public officials, statements by officers and resolutions of the Members of the Developer.
In rendering our opinion, we have assumed (i) the legal capacity of all natural persons
and the capacity and corporate power of all parties to the documents examined by us
other than the Developer, (ii) the due authorization, execution and delivery of each
document examined by us, by all parties to such documents other than the Developer,
(iii) the genuineness of all signatures other than the signatures of the representatives of
the Developer, (iv) the authenticity of all documents submitted to us as originals; (v) the
conformity to original documents of all documents submitted to us as copies; and (vi) the
City has no knowledge, direct or through their counsel, which would render any of the
representations set forth herein inaccurate or incorrect. We have not made any
independent investigation to verify any assumptions made herein, and have not
undertaken any factual investigation into the business, properties, agreements or litigation
of the Developer for the purpose of rendering the opinions expressed herein. There may
exist matters of a factual nature which could have a bearing on our opinions expressed
herein, with respect to which we have not been consulted or are otherwise unaware.
Where used herein, the language "to the best of our knowledge" or language of similar
nature means to our actual knowledge with no duty to inquire further of any person or
document. Said language is intended to be limited to the actual knowledge of the
attorneys within our firm who have been directly involved in representing the Developer,
or whom we reasonably believe have knowledge of the affairs of the Developer. We have
assumed that all representations and warranties made by any party to the Development
Agreement are true and correct. We have examined the law, the resolutions of the
members of Developer, the Development Agreement, and such company proceedings of
the Developer and such other documents, certificates, instruments and matters as we
deem necessary to render this opinion.
The foregoing opinions are subject to:
(a) Equitable principles of general applicability (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, public policy,
equitable subordination and the possible unavailability of specific performance or
injunctive relief), regardless of whether considered in a proceeding in equity or at law or
whether codified by statute;
(b) The unenforceability of provisions purporting to waive rights, claims,
demands, liabilities or defenses to obligations, known or unknown, suspected or
unsuspected, where such waivers are contrary to any applicable law or against public
policy;
(c) The unenforceability, under certain circumstances, of provisions of
agreements to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not preclude
recourse to one or another remedy;
(d) The unenforceability under certain circumstances, of provisions which
purport to govern forum selection or consent to jurisdiction; and
(e) The potential to vary the terms of the Development Agreement on the basis
of parol evidence.
The opinions set forth herein are given as of the date hereof. We disclaim any
obligation to notify you or any other person after the date of this letter if any change in
fact and/or law should change our opinion with respect to any matters set forth herein.
This opinion is for your benefit only and may not be quoted in whole or in part or otherwise
referred to in any documents, or delivered to or filed with any person or entity, or relied
upon by any other person or entity, without our prior written consent.
Very truly yours,
EXHIBIT D
CITY CERTIFICATE
Dubuque
THE CITY
All-Amerin City
UtBNAA Nv � ni, r iv �i ii k kE 11111y
Masterpiece on the Mississippi 20z0i7*z007;2012;2101g3
(DATE)
City Manager's Office
City Hall
50 West 131h Street
Dubuque, Iowa 52001-4864
(563) 589-4110 office
(563) 589-4149 fax
ctymgr@cityofdubuque.org
Re: Development Agreement By and Between the City of Dubuque, Iowa, and McCoy
Group, Inc.
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement by and
between and McCoy Group, Inc. (Developer), and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 2022.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(2) City shall exercise its best efforts to assist 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 representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:JLM
EXHIBIT E
CERTIFICATE OF COMPLETION
Prepared By: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
Return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (City) has entered
into a Development Agreement with McCoy Group, Inc. (Developer) dated as of [Date],
related to certain real property located within the Dubuque Industrial Center Economic
Development District of the Grantor and as more particularly described as follows:
TRACT
Lot 2 of Lot 3 of Lot 3 of Southpark Addition No. 1, in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements of record
TRACT II
Lot 2 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easements of record
TRACT III
Lot 2 of Southpark Addition No.1, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easements of record (the "Property")
TRACT IV
Lot 1 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easement of record
TRACT V
Lots 1 and 2 of Gudenkauf Place, City of Dubuque, Iowa
(the "Property"); and
WHEREAS, the Development Agreement contained certain covenants and
conditions with respect to the development of the Property, and obligated Developer to
construct certain Minimum Improvements in accordance with the Agreement; and
WHEREAS, Developer has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements in a
manner deemed sufficient by City to permit the execution and recording of this
certification; and
NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify
that all covenants and conditions of the Development Agreement with respect to the
obligations of Developer, and its successors and assigns, to construct the Minimum
Improvements on the Property have been completed and performed by Developer to the
satisfaction of City and such covenants and conditions are hereby terminated.
The Recorder of Dubuque County is hereby authorized to accept for recording and
to record the filing of this instrument, to be a conclusive determination of the satisfaction
of the covenants and conditions of the Development Agreement and the Development
Agreement shall otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
la
Michael C. Van Milligen, City Manager
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of , 20 , before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Michael C. Van Milligen, to me
personally known, who, being by me duly sworn, did say that he is the City Manager of
the City of Dubuque, Iowa, a municipal corporation, and that the instrument was signed
on behalf of the corporation, and Michael C. Van Milligen acknowledged the execution of
the instrument to be his voluntary act and deed.
Notary Public in and for said State
EXHIBIT F
MEMORANDUM OF DEVELOPMENT AGREEMENT
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and between the City of Dubuque, Iowa, an Iowa municipal
corporation, of Dubuque, Iowa, and McCoy Group, Inc.
was made regarding the following described premises:
TRACT
Lot 2 of Lot 3 of Lot 3 of Southpark Addition No. 1, in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements of record
TRACT II
Lot 2 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easements of record
TRACT I I I
Lot 2 of Southpark Addition No.1, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easements of record (the "Property")
TRACT IV
Lot 1 of Southpark Addition No. 2, in the City of Dubuque, Iowa, according to the
recorded plat thereof, subject to easement of record
TRACT V
Lots 1 and 2 of Gudenkauf Place, City of Dubuque, Iowa
The Development Agreement is dated for reference purposes the day of
, 20_, and contains covenants, conditions, and restrictions concerning the
use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of
the Development Agreement, together with any amendments thereto, is in the possession
of the City of Dubuque and may be examined at its offices as above provided.
Dated this day of 120.
CITY OF DUBUQUE, IOWA
IN
Barry A. Lindahl, Esq., Senior Counsel
STATE OF IOWA
: SS:
DUBUQUE COUNTY
On this day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Barry A. Lindahl, , to me personally
known, who being by me duly sworn did say that he is Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
Iowa and that said instrument was signed on behalf of said Municipal corporation by
authority and resolution of its City Council and said Senior Counsel acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
Notary Public, State of Iowa
EXHIBIT G
PROPOSED LOCATION FOR SOUTHPARK COURT
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STATE OF IOWA SS:
DUBUQUE COUNTY
CERTIFICATE OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
12/23/2022
and for which the charge is 121.74
Subscribed to befo e me, a NotyiPublic in and for
Dubuque County, Iowa,
this 27th day of December, 2022
Notary Public in and for Dubuque County, Iowa.
SH.ARON VoiEL.BORN
C•onnii,ss:iom Number 8274•08
Ca4mmExp., NOY 10, 2023
Ad text : CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
PUBLIC NOTICE is hereby given that the Dubuque City Council
will conduct a public hearing on the 3rd day of January, 2023,
at 6:30 p.m., in the Historic Federal Building, 350 W. 6th
Street, 2nd floor, Dubuque, Iowa, at which meeting the City
Council proposes to take action to approve a Development
Agreement between the City of Dubuque, Iowa and McCoy Group,
Inc., a copy of which is now on file at the Office of the City
Clerk, City Hall, 50 W 13th Street, Dubuque, Iowa, providing
for the issuance of economic development grants (Urban Renewal
Tax Increment Revenue Grant Obligations) described therein in
order to carry out the purposes and objectives of an Urban
Renewal Plan for the proposed Twin Valley Urban Renewal Area
Economic Development District, consisting of the funding of
economic development grants for McCoy Group, Inc., under the
terms and conditions of the Urban Renewal Plan for the Urban
Renewal Area Economic Development 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 $2,978,213.
At the meeting, the City Council will receive oral and
written comments from any resident or property owner of said
City to the above action. The official agenda will be posted
the Friday before the meeting and will contain public input
options. The City Council agenda can be accessed at
https://cityofdabuque.novusagenda.com/AgendaPublic/ or by
contacting the City Clerks Office at 563-589-4100,
ctyclerk@cityofdubuque.org.
Written comments regarding the above public hearings may be
submitted to the City Clerks Office via email at
ctyclerk@cityofdubuque.org or by mail to City Clerk's Office,
City Hall, 50 W. 13th St., Dubuque, IA 52001, before said
time of public hearing. At said time and place of public
hearings the City Council will receive any written comments.
Copies of supporting documents for the public hearings are
on file in the City Clerk's Office and may be viewed Monday
through Friday between 8:00 a.m. and 5:00 p.m.
Individuals with limited English proficiency, vision,
hearing, or speech impairments requiring special assistance
should contact the City Clerk's Office at (563) 589-4100, TDD
(563) 690-6678, ctyclerk@cityofdubuque.org as soon as
feasible. Deaf or hard -of -hearing individuals can use Relay
Iowa by dialing 711 or (800) 735-2942.
Published by order of the City Council given on the 19th day
of December 2023.
Adrienne N. Breitfelder, City Clerk
RESOLUTION NO. 392-22
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA ON THE PROPOSED DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF DUBUQUE AND MCCOY GROUP, INC.,
INCLUDING THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX INCREMENT
REVENUE GRANT OBLIGATIONS TO MCCOY GROUP, INC., AND PROVIDING
FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, McCoy Group, Inc. is the owner of the following
described real property:
TRACT I
Lot 2 of Lot 3 of Lot 3 of Southpark Addition No. 1, in the
City of Dubuque, Iowa, according to the recorded plat thereof,
subject to easements of record
TRACT II
Lot 2 of Southpark Addition No. 2, in the City of Dubuque,
Iowa, according to the recorded plat thereof, subject to
easements of record
TRACT III
Lot 2 of Southpark Addition No.1, in the City of Dubuque,
Iowa, according oto the recorded plat thereof, subject to
easements of record (the Property)
TRACT IV
Lot 1 of Southpark Addition No. 2, in the City of Dubuque,
Iowa, according to the recorded plat thereof, subject to
easement of record
TRACT V
Lots 1 and 2 of Gudenkauf Place, City of Dubuque, Iowa
(the Property)
; and
Whereas, City of Dubuque, Iowa (City) and McCoy Group, Inc.
have entered into a Development Agreement, subject to the
approval of the City Council, pursuant to which McCoy Group,
Inc. will construct on the Property certain Improvements
described in the Development Agreement; and
Whereas, the City Council has tentatively determined that it
would be in the best interests of City to approve the
Development Agreement; and
Whereas, the Development Agreement provides for the issuance
by City of economic development grants to McCoy Group, Inc.,
referred to therein as Urban Renewal Tax Increment Revenue
Grant Obligations, payable from the tax increment revenues
collected in respect of the Improvements to be constructed by
McCoy Group, Inc. in accordance with the Development
Agreement, for the purpose of carrying out the objectives of
an Urban Renewal Plan as hereinafter described; and
Whereas, before said obligations may be approved, Chapter
403 of the Code of Iowa requires that the City Clerk publish a
notice of the proposal and of the time and place of the
meeting at which the City Council proposes to take action
thereon and at which meeting the City Council shall receive
oral and/or written objections from any resident or property
owner of said City to such proposed action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1."The City Clerk is hereby authorized and directed
to cause this Resolution and a Notice to be published as
prescribed by Iowa Code Section 364.7 of a public hearing on
the City Councils intent to approve the proposed Development
Agreement, to be held on the 3rd day of January, 2023 at 6:30
p.m.
Section 2."The City Council will also meet at said time and
place for the purpose of taking action on the matter of
authorizing Urban Renewal Tax Increment Revenue obligations,
the proceeds of which obligations will be used to carry out
certain of the special financing activities to be described in
an Urban Renewal Plan for the Urban Renewal Area Economic
Development District, consisting of the funding of economic
development grants to McCoy Group, Inc., pursuant to the
Development Agreement under the terms and conditions of said
Urban Renewal Plan. It is expected that the aggregate amount
of the Tax Increment Revenue obligations will be approximately
$2,978,213. •
Section 3. "The City Clerk is hereby directed to cause at
least one publication to be made of a notice of said meeting,
in a newspaper, printed wholly in the English language,
published at least once weekly, and having general circulation
in said City, said publication to be not less than four days
nor more than twenty days before the date of said meeting on
the issuance of said obligations.
Section 4. "That the Notice of the proposed action shall be
in substantially the form attached hereto.
Passed, approved and adopted this 19th day of December,
2022.
/s/Brad M. Cavanagh, Mayor
Attest: /s/Adrienne N. Breitfelder,
City Clerk
It 12/23