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HomeMy WebLinkAboutCedar Valley Tech Works, Inc-10/14/2013AMENDED AND RESTATED DEVELOPMENT AGREEMENT By and Among CITY OF WATERLOO, IOWA and CEDAR VALLEY "TECH WORKS, INC. and FDP WTC, L.L.C. Dated October , 2013 TABLE OF CON TENTS DEVELOPMENT AGREEMENT ARTICLE I. DEFINITIONS 2 Section 1.1. Defmitions 2 ARTICLE II. REPRESENTATIONS AND WARRANTIES 6 Section 2.1. Representations and Warranties of the City 6 Section 2.2. Representations and Warranties of TechWorks 7 Section 2.3. Representations and Warranties of Developer 9 ARTICLE III. TECHWORKS CAMPUS SITE IMPROVEMENTS. 11 Section 3.1. Construction of TechWorks Campus Improvements 11 Section 3.2. Construction Plans 11 Section 3.3. Commencement and Completion of Construction 11-1-2 Section 3.4. Certificate of Completion 114-3 ARTICLE IV. CONSTRUCTION OF FDP IMPROVEMENTS BY DEVELOPER 1314 Section 4.1. Construction of FDP Improvements 134-1- Section 3-14Section 4.2. Construction Plans 1412 Section 4.3. Commencement and Completion of Construction 1512 Section 4.4. Certificate of Completion 15-14 ARTICLE V. SECURITY PROVISIONS 1613 Section 5.1. Execution of TechWorks Escrow Agreement. 1613 Section 5.2. Execution of FDP Escrow Agreement 164-4 Section 5.3. Execution of Mortgage or Other Collateral 174-4 Section 5.4. Release of Collateral; Additions to Same 1715 Section 5.5. Interest in Collateral 1816 ARTICLE VI. CONSTRUCTION OF TECH I BUILDING IMPROVEMENTS 184-6 Section 6.1. Construction of Tech I Building Improvements 184-6 Section 6.2. Commencement and Completion of Construction 184-6 ARTICLE VII. FDP GRANT AND TECHWORKS GRANT 194-6 Section 7.1. FDP Grant 194-4 Section 7.2. TechWorks Campus Grant 19-1-7 Section 7.3. Source of FDP Grant and TechWorks Grant Funds Limited 191-7 Section 7.4. Closing; Conditions Precedent to Funding by City /0.1-7 ARTICLE VIII. COVENANTS 20 Section 8.1. Covenants of TechWorks 2220 Section 8.2. Covenants of Developer 742 -1 - Section 8.3. Execution of Assessment Agreements -)5a2 ARTICLE IX. INDEMNIFICATION 2623 Section 9.1. Release and Indemnification Covenants 623 ARTICLE X. ASSIGNMENT OR TRANSFER 2724 Section 10.1. Status of Developer; Transfer of Substantially All Assets 2724 Section 10.2. Status of TechWorks; Transfer of Substantially All Assets 7825 ARTICLE XI. DEFAULT AND REMEDIES 2825 Section 11.1. Events of Default Defined 282 Section 11.2. Remedies on Default 302-7 Section 11.3. Remedies on Default by City 3024 Section 11.4. No Remedy Exclusive 3124 Section 11.5. No Implied Waiver 3124 Section 11.6. Agreement to Pay Attorneys' Fees and Expenses 3124 ARTICLE XII. MISCELLANEOUS 3128 Section 12.1. Notices 3124 Section 12.2. Governing Law 3229 Section 12.3. Entire Agreement 3230 Section 12.4. Severability 3330 Section 12.5. Performance by City 3330 Section 12.6. No Third Party Beneficiaries 333-0 Section 12.7. Interpretation 3330 Section 12.8. Amendment; Waiver 3330 Section 12.9. Successors and Assigns 3434 Section 12.10. Assignment of Benefits 3431 Section 12.11. Agreement 343--1- Section 12.12. Termination Date 343 -1 - EXHIBITS Exhibit A-1 Exhibit A-2 Exhibit B-1 - Exhibit B-2 - Exhibit B-3 Exhibit C - Exhibit D - - FDP Property - Tech I Building Property FDP Improvements Tech I Building Improvements TechWorks Campus Site Improvements Minimum Assessment Agreement Additional TIF Properties AMENDED AND RESTA 1'hD DEVELOPMENT AGREEMENT This Amended and Restated Development Agreement ("Agreement") is made as of the day of October, 2013, by and among the CITY OF WA 1'ERLOO, IOWA, a municipal corporation with its principal offices located at 715 Mulberry Street, Waterloo, Iowa (the "City"), CEDAR VALLEY TECH WORKS, INC., an Iowa corporation with its principal offices located at 10 West 4th Street, Suite 310, Waterloo, Iowa ("TechWorks") and FDP WTC, L.L.C., an Iowa limited liability company with its principal offices located at 201 North Harrison Street, Suite 402, Davenport, Iowa ("Developer"); collectively referred to as the "Parties" to this Agreement. WITNESSETH: WHEREAS, in furtherance of the objectives of Chapter 403 of the Code of Iowa, 2011, as amended (the "Urban Renewal Act"), the City is engaged in carrying out urban renewal project activities in an area known as the Downtown Waterloo Urban Renewal and Redevelopment Area ("Urban Renewal Area"); and WHEREAS, the Developer and TechWorks each own, or will own, certain property located within the foregoing Urban Renewal Area, as more particularly described in Exhibits A-1 and A-2 attached hereto and made a part hereof, which properties together comprise an area referred to herein as the TechWorks Campus; and WHEREAS, the Developer and TechWorks each are willing to cause certain building improvements to be constructed on their respective properties, as described herein; and WHEREAS, the City anticipates issuing municipal bonds to finance the economic development grants described herein, and Developer and TechWorks have each agreed to pay, or cause to be paid, certain projected real estate taxes by execution of a Minimum Assessment Agreement applicable to their respective properties; and WHEREAS, the Developer anticipates obtaining additional financing for the development of the FDP Improvements and the FDP Property through the use of federal and state historic tax credits and other available debt and equity financing instruments; and WHEREAS, the Parties have heretofore executed and entered into a Development Agreement dated as of January 30, 2012 ("Original Agreement") relating to the foregoing activities, and now desire to amend and restate the Original Agreement and memorialize their current understandings with respect to the foregoing project activities and other 1 matters related to this development; and WHEREAS, the City believes that the development of the TechWorks Campus is in the vital and best interests of the City and in accordance with the public purposes and provisions of the applicable State and local laws and requirements under which the project has been undertaken and is being assisted. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows: ARTICLE I. DEFINITIONS Section 1.1. Definitions. In addition to other defmitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Additional TIT Properties means those properties described on Exhibit D hereto. Affiliate means, with respect to the Developer, any other corporation or limited liability company that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, the Developer. As used in this definition, "Control" or "Controlled" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation or limited liability company, whether through the ownership of voting securities, by contract or otherwise. Agreement means this Amended and Restated Development Agreement and all Exhibits hereto, as the same may be from time to time modified, amended or supplemented. Assessment Agreement means the Minimum Assessment Agreements entered into by and between the City and each of the Developer and TechWorks pursuant to Section 83, substantially in the form of the Agreement contained in Exhibit C attached hereto in the case of the Developer, and in the case of TechWorks, in such form and content as shall be acceptable to City and TechWorks, and in each case hereby made a part of this Agreement. Assessor's Minimum Actual Value means the agreed minimum actual taxable value of (i) the FDP Improvements and the FDP Property in the case of the Developer's Assessment Agreement, and (ii) the Tech I Building and the Tech I Building Property in the case of TechWork's Assessment Agreement for calculation and assessment of ad 2 valorem real property taxes, as set forth in each of the Developer and TechWork's respective Assessment Agreements. City means the City of Waterloo, Iowa. City Bonds (First Issue) mean the general obligation bonds or notes to be issued by the City to fund the TechWorks Campus Grant to Developer, which shall be limited to a principal amount of not to exceed $3,500,000, the proceeds of which shall be used for the costs of construction of the TechWorks Campus Site improvements for the benefit of all property owners on the TechWorks Campus and the costs of issuance of the City Bonds (First Issue). City Bonds (Second Issue) mean the general obligation bonds or notes to be issued by the City to fund the FDP Grant to Developer, which shall be limited to a principal amount of not to exceed $9,250,000, the proceeds of which shall be used for the costs of construction of the FDP Improvements and the costs of issuance of the City Bonds (Second Issue). Code means the Code of Iowa, 2013, as amended. Collateral means the security instruments provided to the City by the Developer under Section 5.3 hereof, which may include a Mortgage on the FDP Property, one or more mortgages on other property owned by the Developer, assignment of rights or interests in other property owned by the Developer, guaranty agreements, letters of credit, or other security arrangements or interests, in each case which is acceptable to the City in its sole discretion. Construction Plans means the plans, specifications, drawings and related documents reflecting the construction work to be performed by the Developer and TechWorks on the TechWorks Campus, FDP Property and Tech I Building Property, as applicable. In each case, the Construction Plans shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the building inspector of the City as required by applicable City codes, and shall include at least the following: (i) site plan, (ii) floor plan for each floor, (iii) cross-sections of each floor (length and width), (iv) building elevations (all sides) and (v) adjacent parking improvements and landscaping. County means Black Hawk County, Iowa. Developer means FDP WTC, L.L.C., an Iowa limited liability company, and its successors and assigns. 3 Equity Investor means the federal historic tax credit investor with respect to the FDP Improvements, and its successors and assigns. Escrow Agreement means the agreement described in Section 5.1 and 5.2 hereof. Event of Default means any of the events described in Section 11.1 of this Agreement. FDP Grant means the economic development grant to be made by the City to Developer under the provisions of Article VII hereof, which shall be equal in amount to the net proceeds of the City Bonds (Second Issue) remaining after the payment of all normal and customary bond issuance costs are paid. FDP Improvements shall mean the hotel and office space improvements to be constructed by the Developer on the FDP Property, together with all related site improvements described in the Construction Plans for the same, described generally in Exhibit B-1 hereto. FDP Property means that portion of the TechWorks Campus owned by the Developer and described in Exhibit A-1 hereto upon which the FDP Improvements will be constructed. First Issue Closing Date means [on or before January 31, 2014], or such other date as the parties hereto may agree upon in writing. First Mortgage means one or more Mortgages granted to the Lender to secure loans made pursuant to the Lender Loan Agreement or such other agreements entered into by the Developer for the benefit of bond investors, a commercial lender or other financial institution to fund any portion of the construction costs and initial operating capital requirements of the FDP Improvements as may be consented to by the Lender, which may be recorded prior to the recording of the Assessment Agreement. Full Time Employees means either (i) a permanent "full time" employee who works at least 40 hours per week or 2,080 hours per year or (ii) any combination of "part- time" employees who, in the aggregate, work at least 2,080 hours per year. Historic Tax Credit Transaction means the making of one or more equity investments by the Equity Investor, or other investor, in "qualified rehabilitation expenditures" (as defined in Section 47(C)(2) of the Internal Revenue Code and the Treasury Regulations issued thereunder) for purposes of obtaining federal and state historic tax credits for the benefit of the Developer and the construction of the FDP Improvements. 4 Lender means one or more qualified lenders, each of which may make a loan to the Developer, which loans will be repaid from income resulting from the operation of the FDP Property and FDP Improvements. Lender Loan Agreement means one or more loan agreements by and between or among, a Lender and the Developer, pursuant to which the Lender will make one or more loans to the Developer to finance the acquisition of the FDP Property and/or construction of the FDP Improvements. Mortgage means any mortgage or security agreement in which the Developer has granted a mortgage or other security interest in the FDP Property, or any portion or parcel thereof, or any improvements constructed thereon to a Lender. Original Agreement means the Development Agreement dated as of January 30, 2012 between and among the City, Developer and TechWorks. Second Issue Closing Date means [on or before June 30, 2014], or such other date as the parties hereto may agree upon in writing. State means the State of Iowa. Substantial Completion or Substantially Complete means the date on which the FDP Improvements have been completed in accordance with the Construction Plans to the extent necessary for the City to issue a certificate of occupancy relating thereto. Tax Increment means the tax increment revenues collected by the City under the authority of Section 403.19 of the Code and the City's ordinance implementing the division of taxes under Section 403.19 in respect of (i) the FDP Property and the FDP Improvements constructed thereon by the Developer, (ii) the Tech I Building Property and the Tech I Building Improvements constructed thereon by TechWorks and (iii) the Additional TIF Properties. Tech I Building means the approximately 156,000 square foot building located on the Tech I Building Property being rehabilitated and renovated as part of the Tech I Building Improvements. Tech I Building Improvements means the redevelopment and rehabilitation of the Tech I Building by TechWorks, together with all related site improvements described in the Construction Plans for the same, described generally in Exhibit B-2 hereto. Tech I Building Property means that portion of the TechWorks Campus owned by 5 TechWorks and described in Exhibit A-2 hereto, upon which the Tech I Building Improvements will be constructed. TechWorks means Cedar Valley Tech Works, Inc., an Iowa corporation, and its successors and assigns. TechWorks Campus means that portion of the Urban Renewal Area generally bounded by Westfield Avenue, West Commercial Street arching between the John Deere Advanced Manufacturing Plant and Jefferson Street extended to River Drive. TechWorks Campus Grant means the economic development grant to be made by the City to the Developer under the provisions of Article VII hereof, which shall be equal in amount to the net proceeds of the City Bonds (First Issue) remaining after the payment of all normal and customary bond issuance costs are paid. TechWorks Campus Site Improvements means the [curbing, sidewalk, parking and landscaping improvements] to be constructed by the Developer on the TechWorks Campus under the provisions of Article III hereof, as described in Exhibit B-3 attached hereto and made a part hereof. Termination Date means the date of termination of this Agreement, as established in Section 12.12 of this Agreement. Unavoidable Delays means delays resulting from acts or occurrences outside the reasonable control of the party claiming the delay including but not limited to storms, floods, fires, explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other labor disputes, delays in transportation or delivery of material or equipment, litigation commenced by third parties, or the acts or failure to act of any federal, State or local governmental unit (other than the City when acting in good faith). Urban Renewal Plan means the Urban Renewal Plan approved in respect of the Downtown Waterloo Urban Renewal and Redevelopment Area, described in the preambles hereof. ARTICLE II. REPRESENTATIONS AND WARRAN PIES Section 2.1. Representations and Warranties of the City. The City makes the following representations and warranties: (a) The City is a municipal corporation organized under the provisions of the Constitution and the laws of the State and has the power to enter into this Agreement and carry out its obligations hereunder. 6 (b) 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 breach of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the City is now a party or by which it is bound, nor do they constitute a default under any of the foregoing. (c) This Agreement and any other documents and instruments to be executed and delivered by the City pursuant to this Agreement, when executed and delivered pursuant hereto, will constitute the duly authorized, valid and legally binding obligations of the City and are enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. Section 2.2. Representations and Warranties of TechWorks. TechWorks makes the following representations and warranties: (a) TechWorks is a corporation duly organized and validly existing under the laws of the State of Iowa, and it 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. (b) This Agreement has been duly and validly authorized, executed and delivered by TechWorks and, assuming due authorization, execution and delivery by the other parties hereto, is in full force and effect and is a valid and legally binding instrument of TechWorks 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. (c) 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 organization or bylaws of TechWorks or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which TechWorks is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. (d) There are no actions, suits or proceedings pending or threatened against or affecting TechWorks in any court or before any arbitrator or before or by any 7 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 TechWorks or which in any manner raises any questions affecting the validity of the Agreement or TechWorks' ability to perform its obligations under this Agreement. (e) TechWorks will cause the Tech I Building Improvements to be constructed in accordance with the terms of this Agreement, the Urban Renewal Plan, and all local, State and federal laws and regulations, except for variances necessary to construct the Tech I Building Improvements contemplated in the Construction Plans. (f) TechWorks will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, State, and federal laws and regulations which must be obtained or met before the Tech I Building Improvements may be lawfully constructed. (g) Subject to Section 6.2, TechWorks will spend enough in construction of the Tech I Building Improvements, when combined with the value of the Tech I Building Property and related site improvements, to equal or exceed the Assessor's Minimum Actual Value for the Tech I Building Property and the Tech I Building Improvements, as set forth in Section 8.3 of this Agreement. (h) The financing commitments, which TechWorks will proceed with due diligence to obtain, to finance the construction of the Tech I Building Improvements will be sufficient to enable TechWorks to successfully complete the construction of the Tech I Building Improvements as contemplated in this Agreement. (i) Subject to Section 6.2, TechWorks agrees that the Assessor's Minimum Actual Value of the Tech I Building Property and the Tech I Building Improvements described in Section 8.3 hereof will be a reasonable estimate of the actual value of the same for ad valorem property tax purposes. (j) TechWorks has not received any notice from any local, State or federal official that the activities of TechWorks with respect to the Tech I Building may or will be in violation of any environmental law or regulation (other than those notices, if any, of which the City has previously been notified in writing). TechWorks is not currently aware of any State or federal claim filed or planned to be filed by any party relating to any violation of any local, State or federal environmental law, regulation or review procedure applicable to the Tech I Building, and TechWorks is not currently aware of any violation of any local, State or federal environmental law, regulation or review procedure which would give any person a valid claim under any State or federal 8 environmental statute with respect thereto. (k) TechWorks will cooperate fully with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction of the Tech I Building Improvements. (1) Subject to Section 6.2, TechWorks will proceed with reasonable diligence and in good faith to substantially complete the construction of the Tech I Building Improvements within four (4) years after the First Issue Closing Date barring Unavoidable Delays or unavailability of funding. (m) TechWorks would not undertake its obligations under this Agreement without the payment by the City of the TechWorks Campus Grant pursuant to this Agreement. (n) TechWorks reasonably expects that the construction of the Tech I Building Improvements will result in the creation of approximately 50 temporary construction jobs and approximately 240 Full Time Employees employed by tenants in the completed facility. Section 2.3. Representations and Warranties of Developer. Developer makes the following representations and warranties: (a) Developer is a limited liability company duly organized and validly existing under the laws of the State of Iowa, is authorized to conduct business in the State of Iowa, and it 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. (b) This Agreement has been duly and validly authorized, executed and delivered by Developer and, assuming due authorization, execution and delivery by the other parties hereto, 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. (c) 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 certificate of organization or operating agreement of Developer or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which 9 Developer is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. (d) 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 Developer's ability to perform its obligations under this Agreement. (e) Developer will cause the TechWorks Campus Site Improvements and the FDP Improvements to be constructed in accordance with the terms of this Agreement, the Urban Renewal Plan and all local, State and federal laws and regulations, except for variances necessary to construct the TechWorks Campus Site Improvements and FDP Improvements contemplated in the Construction Plans. (f) Developer will use its best efforts to obtain, or cause to be obtained in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements. of all applicable local, State, and federal laws and regulations which must be obtained or met before the TechWorks Campus Site Improvements and FDP Improvements may be lawfully constructed. (g) Developer will spend enough in construction of the FDP Improvements, when combined with the value of the FDP Property and related site improvements, to equal or exceed the Assessor's Minimum Actual Value thereof, as set forth in Section 8.3 of this Agreement. (h) The fmancing commitments, which Developer will proceed with due diligence to obtain, to finance the construction and rehabilitation of the FDP Improvements will be sufficient to enable Developer to successfully complete the construction of the FDP Improvements as contemplated in this Agreement, subject to additional costs incurred due to Unavoidable Delays. (i) Developer agrees that the Assessor's Minimum Actual Value of the FDP Improvements is a reasonable estimate of the actual value of the same for ad valorem property tax purposes. (j) Developer has not received any notice from any local, State or federal official that the activities of Developer with respect to the FDP Property may or will be in violation of any environmental law or regulation (other than those notices, if any, of which the City has previously been notified in writing). Developer is not currently aware 10 of any State or federal claim filed or planned to be filed by any party relating to any violation of any local, State or federal environmental law, regulation or review procedure applicable to the FDP Property, and Developer is not currently aware of any violation of any local, State or federal environmental law, regulation or review procedure which would give any person a valid claim under any State or federal environmental statute with respect thereto. (k) Developer will cooperate fully with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction and operation of the TechWorks Campus Site Improvements and the FDP Improvements. (1) Developer expects that, subject to any Unavoidable Delays, the FDP Improvements will be substantially completed by [June 15, 2014], barring Unavoidable Delays. (m) Developer would not undertake its obligations under this Agreement without the payment by the City of the FDP Grant, being made to Developer pursuant to this Agreement. (n) Developer reasonably expects that the construction of the FDP Improvements will result in the creation of approximately 50 temporary construction jobs and approximately 210 Full Time Employees of the hotel and restaurant facilities and of tenants in the office space portion of the facility. ARTICLE III. 1'ECHWORKS CAMPUS SITE IMPROVEMENTS. Section 3.1. Construction of TechWorks Campus Site Improvements. The Developer, either directly or acting through the Developer Affiliate, agrees that it will cause the TechWorks Campus Site Improvements to be constructed on the TechWorks Campus in conformance with the Construction Plans submitted to the City. The Developer agrees that the scope and scale of the TechWorks Campus Site Improvements to be constructed shall not be significantly less than the scope and scale of the TechWorks Campus Site Improvements as detailed and outlined in the Construction Plans. The Developer reasonably expects that the construction of the TechWorks Campus Site Improvements will require a total investment of not less than Six Million Dollars ($6,000,000.00). Section 3.2. Construction Plans. The Developer shall cause Construction Plans to be provided for the TechWorks Campus Site Improvements, which shall be subject to approval by the City as provided in this Section 4.2. The City shall approve the 11 Construction Plans in writing if: (a) the Construction Plans conform to the terms and conditions of this Agreement; (b) the Construction Plans conform to the terms and conditions of the Urban Renewal Plan; (c) the Construction Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations and City permit and design review requirements; (d) the Construction Plans are adequate for purposes of this Agreement to provide for the construction of the TechWorks Campus Site Improvements and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Construction Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Construction Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Construction Plans must be rejected in writing by the City within thirty (30) days of submission or shall be deemed to have been approved by the City. If the City rejects the Construction Plans in whole or in part, the Developer shall submit new or corrected Construction Plans within thirty (30) days after receipt by the Developer of written notification of the rejection, accomplished by a written statement of the City specifying the respects in which the Construction Plans submitted by the Developer fail to conform to the requirements of this Section. The provisions of this Section relating to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the City; provided, however, that in any event the Developer shall submit Construction Plans which are approved by the City prior to commencement of construction of the TechWorks Campus Site Improvements. Approval of the Construction Plans by the City shall not relieve the Developer of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Construction Plans by the City be deemed to constitute a waiver of any Event of Default. Approval of Construction Plans hereunder is solely for purposes of this Agreement, and shall not constitute approval for any other City purpose nor subject the City to any liability for the TechWorks Campus Site Improvements as constructed. Section 3.3. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Developer shall cause the TechWorks Campus Site Improvements to be Substantially Complete no later than December 31, 2014 or by such other date as the parties shall mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to extend this date by a number of days equal to the number of days lost as a result of Unavoidable Delays. All work with respect to the 12 TechWorks Campus Site Improvements to be constructed or provided by the Developer shall be in conformity with the Construction Plans. Until the TechWorks Campus Site Improvements are Substantially Complete, the Developer shall make such reports to the City, in such details and at such times as may be reasonably requested by the City, as to the actual progress of the Developer with respect to the construction of the TechWorks Campus Site Improvements. Section 3.4. Certificate of Completion. Upon written request of the Developer after Substantial Completion of the TechWorks Campus Site Improvements, the City will promptly furnish the Developer with a Certificate of Completion in recordable form. Such Certificate of Completion shall be conclusive determination of satisfactory termination of the covenants and conditions of this . Agreement with respect to the obligations of the Developer to construct the TechWorks Campus Site Improvements. The Certificate of Completion may be recorded in the proper office for the recordation of deeds and other instruments pertaining to the TechWorks Campus at the Developer's sole expense. If the City shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section, the City shall, within twenty (20) days after written request, provide the Developer with a written statement indicating in adequate detail in what respects the Developer has failed to complete the TechWorks Campus Site Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and what measures or acts it will be necessary, in the reasonable opinion of the City, for the Developer to take or perform in order to obtain such Certificate of Completion; provided, however, if the Developer has constructed the TechWorks Campus Site Improvements in accordance with the Construction Plans as approved by the City, the City shall not require the Developer to take or perform any additional actions relating thereto to obtain such Certificate of Completion. ARTICLE IV. CONSTRUCTION OF FDP IMPROVEMENTS BY DEVELOPER Section 4.1. Construction of FDP Improvements. (a) The Developer, either directly or acting through the Developer Affiliate, agrees that it will cause the FDP Improvements to be constructed on the FDP Property in conformance with the Construction Plans submitted to the City. The Developer agrees that the scope and scale of the FDP Improvements to be constructed shall not be significantly less than the scope and scale of the FDP Improvements as detailed and outlined in the Construction Plans. The Developer reasonably expects that the construction of the FDP Improvements will require a total investment of not less than Forty Million Dollars ($40,000,000). (b) For purposes of constructing the FDP Improvements, the City hereby agrees 13 that Developer, or its Affiliate, may form one or more Affiliates for the purpose of consummating a Historic Tax Credit Transaction in connection with the construction of the FDP Improvements. In furtherance of such transaction, the Developer may transfer or lease the FDP Property to such Affiliate in the form of a master lease, as customarily used in Historic Tax Credit Transactions (the "Master Lease"), so long as the terms of any such transfer of the FDP Property are consented to in writing by the City, which consent shall not be unreasonably withheld, conditioned or delayed. The Developer shall remain fully responsible for all of its obligations under this Agreement, notwithstanding any transfer of the FDP Property to an Affiliate and the assumption of any of the Developer's obligations hereunder. Section 4.2. Construction Plans. The Developer shall cause Construction Plans to be provided for the FDP Improvements, which shall be subject to approval by the City as provided in this Section 4.2. The City shall approve the Construction Plans in writing if: (a) the Construction Plans conform to the terms and conditions of this Agreement; (b) the Construction Plans conform to the terms and conditions of the Urban Renewal Plan; (c) the Construction Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations and City permit and design review requirements; (d) the Construction Plans are adequate for purposes of this Agreement to provide for the construction of the FDP Improvements and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Construction Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Construction Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Construction Plans must be rejected in writing by the City within thirty (30) days of submission or shall be deemed to have been approved by the City. If the City rejects the Construction Plans in whole or in part, the Developer shall submit new or corrected Construction Plans within thirty (30) days after receipt by the Developer of written notification of the rejection, accomplished by a written statement of the City specifying the respects in which the Construction Plans submitted by the Developer fail to conform to the requirements of this Section. The provisions of this Section relating to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the City; provided, however, that in any event the Developer shall submit Construction Plans which are approved by the City prior to commencement of construction of the FDP Improvements. Approval of the Construction Plans by the City shall not relieve the Developer of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable 14 federal, state and local laws, ordinances and regulations, nor shall approval of the Construction Plans by the City be deemed to constitute a waiver of any Event of Default. Approval of Construction Plans hereunder is solely for purposes of this Agreement, and shall not constitute approval for any other City purpose nor subject the City to any liability for the FDP Improvements as constructed. Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Developer shall cause the FDP Improvements to be Substantially Complete no later than [June 15, 2015] or by such other date as the parties shall mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to extend this date by a number of days equal to the number of days lost as a result of Unavoidable Delays. However, an extension of the completion date for the FDP Improvements shall not affect the Assessor's Minimum Actual Value thereof. All work with respect to the FDP Improvements to be constructed or provided by the Developer shall be in conformity with the Construction Plans. Until the FDP Improvements are Substantially Complete, the Developer shall make such reports to the City, in such details and at such times as may be reasonably requested by the City, as to the actual progress of the Developer with respect to the construction of the FDP Improvements. Section 4.4. Certificate of Completion. Upon written request of the Developer after issuance of an occupancy permit for the FDP Improvements, the City will promptly furnish the Developer with a Certificate of Completion in recordable form. Such Certificate of Completion shall be conclusive determination of satisfactory termination of the covenants and conditions of this Agreement with respect to the obligations of the Developer to construct the FDP Improvements. The Certificate of Completion may be recorded in the proper office for the recordation of deeds and other instruments pertaining to the FDP Property at the Developer's sole expense. If the City shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section, the City shall, within twenty (20) days after written request, provide the Developer with a written statement indicating in adequate detail in what respects the Developer has failed to complete the FDP Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and what measures or acts it will be necessary, in the reasonable opinion of the City, for the Developer to take or perform in order to obtain such Certificate of Completion; provided, however, if the Developer has constructed the FDP Improvements in accordance with the Construction Plans as approved by the City, the City shall not require the Developer to take or perform any additional actions relating thereto to obtain such Certificate of Completion. 15 ARTICLE V. SECURITY PROVISIONS Section 5.1. Execution of TechWorks Campus Escrow Agreement. On or before the First Issue Closing Date, (i) the Developer shall provide evidence, satisfactory to the City in its sole discretion, that Developer has all necessary access rights, construction easements and/or ownership of the properties upon which the TechWorks Campus Site Improvements are to be constructed, and (ii) the Developer, TechWorks, the City, an agreed upon escrow agent (the "Escrow Agent"), and such other parties as they consider appropriate, shall execute and enter into an Escrow Agreement (which shall be in form satisfactory to all parties relating thereto, including the City, in its sole discretion), relating to the deposit of the proceeds of the TechWorks Campus Grant. Subsequent to the time all or a portion of the TechWorks Campus Grant is placed in escrow, Developer may draw upon the TechWorks Campus Grant proceeds in order to be reimbursed for costs and expenses incurred according to the Construction Plans and other related development costs associated with the TechWorks Campus Site Improvements. Developer shall be required to provide the Escrow Agent with satisfactory evidence of such expenses according to the terms of the Escrow Agreement in order for the Escrow Agent to release the requested portion of the TechWorks Campus Grant proceeds to the Developer. In the event that all or any portion of the TechWorks Campus is included in a "reinvestment district" under Chapter 15J of the Code during the term of this Agreement, the City may apply any or all resulting incremental sales and hotel -motel tax revenue authorized to be collected in respect of properties or from businesses located within such reinvestment district, other than the revenues generated from the FDP Improvements, for the payment of debt service on the City Bonds (First Issue), and Developer shall have no rights to the proceeds of the same. The use of such incremental sales and hotel -motel tax revenues generated from the FDP Improvements shall not be governed by this Agreement. Section 5.2. Execution of FDP Escrow Agreement. To the extent agreed upon by the Lender and Developer, on or before the Second Issue Closing Date, the Developer, the City, an agreed upon Escrow Agent, and such other parties as they consider appropriate, shall execute and enter into an Escrow Agreement (which shall be in form satisfactory to all parties relating thereto, including the City, in its sole discretion), relating to the deposit of the proceeds of the FDP Grant and such other proceeds of the construction financing obtained by the Developer, if applicable, which may include the funds obtained through the Historic Tax Credit Transaction and any private activity bonds issued on behalf of the Developer to construct the FDP Improvements in accordance with the Construction Plans. 16 Subsequent to the time all or a portion of the FDP Grant is placed in escrow, the Developer may draw upon the FDP Grant proceeds in order to be reimbursed for costs and expenses incurred according to the Construction Plans and other related development costs associated with the FDP Improvements and FDP Property. The Developer shall be required to provide the Escrow Agent with satisfactory evidence of such expenses according to the terms of the Escrow Agreement in order for the Escrow Agent to release the requested portion of the FDP Grant proceeds to the Developer. Section 5.3. Execution of Mortgage or Other Collateral. (a) To the extent, and in the form, permitted by the Lender, in its sole and absolute discretion, on or before the Second Issue Closing Date, the Developer shall execute and deliver a Mortgage in favor of the City, or shall execute and deliver such other Collateral as may be acceptable to the City, in its sole discretion, and which is agreed upon by the Lender, City and Developer or its Affiliate, as applicable. The Collateral is intended to secure the Developer's obligation to make supplementary payments to the City under Section 3 of the Assessment Agreement and any secured interest held by the City shall be reduced and terminate in accordance with Section 5.4 below. In exchange for the Developer providing the Collateral, as described under this Article V, the City shall execute and/or provide: (i) to the Developer or Lender a standstill agreement relating to the Mortgage in favor of the First Mortgage Lender, and (ii) any applicable Lender or Equity Investor with a Subordination, Non -Disturbance, and Attornment Agreement (the "SNDA"), customarily used in Historic Tax Credit Transactions, for the benefit of the Developer, any applicable Lender, and the Equity Investor. (b) On the Second Issue Closing Date, the fair market value of the Collateral shall be not less than $3,450,000, or such other amount as City may reasonably determine to be necessary to secure the Developer's obligation to make supplementary payments to the City under Section 3 of the Assessment Agreement. In determining fair market value of any Collateral, the City may rely on appraisals or such other indications of market value as it determines to be acceptable, in its reasonable discretion. Developer shall pay all reasonable costs associated with establishing the fair market value of any Collateral under this Section and under Section 5.4, including all appraisal costs, and shall hold the City harmless therefrom. Section 5.4. Release of Collateral; Additions to Same. The City and Developer intend, and the Developer covenants and agrees, that the fair market value of the Collateral shall at all times be equal to, or in excess of, the amount determined by the City to be necessary to fully pay all debt service on the City Bonds. (Second Issue) that is not expected to be paid by the Tax Increment collected by the City (a) under the Assessment Agreement with the Developer, and (b) as otherwise described in this Section. For this purpose, the City shall annually calculate, on or before June 30 of each year, the amount of the Tax Increment available to pay debt service on the City Bonds 17 (Second Issue) during the following fiscal year, which shall include (i) 100% of the Tax Increments to be collected with respect to the FDP Property and (ii) 50% of any Tax Increment to be collected in respect of other new construction valuation growth of any and all of the other Additional TIF Properties during that fiscal year, and not otherwise obligated to be used for payment or reimbursement of any incentives paid or costs incurred by the City with respect to the development of such Additional '111' Properties. The City shall release a portion of the Collateral by June 30 of any year if it determines that the committed Tax Increment from properties subject to a minimum assessment agreement that are described in (i) and (ii) above is sufficient to pay an increased amount of the debt service on the City Bonds (Second Issue) in the next fiscal year and in future fiscal years. At any time the City may request that Developer deliver additional Collateral to the City, in form satisfactory to the City in its sole discretion, if the City determines that the above-described Tax Increment is not sufficient, for whatever reason, to meet the requirements of this Section. In such event, Developer shall deliver the additional Collateral to the City within ten (10) business days of the City's request for the same. All determinations to be made by the City under this Section shall be in writing and be executed by the Mayor, shall be based on such information and documents as the City considers appropriate, and shall be made by the City in the City's reasonable discretion. Following the payment in full of the City Bonds (First Issue), the City agrees to negotiate in good faith with the Developer concerning the future use of Tax Increment collected in respect of other properties located within the Urban Renewal Area. Section 5.5. Interest in Collateral. On or before the Second Issue Closing Date, the City and Developer understand that it may be requested to amend, modify this Agreement and/or replace or reduce any Collateral or increase the amount of Collateral to be delivered, or cause to be delivered, to the City, as the same may be agreed upon by any applicable Lender, City and Developer. ARTICLE VI. CONSTRUCTION OF TECH I BUILDING IMPROVEMENTS Section 6.1. Construction of Tech I Building Improvements. TechWorks agrees that it will cause the Tech I Building Improvements to be constructed on the Tech I Building Property in conformance with the Construction Plans submitted to the City. TechWorks agrees that the scope and scale of the Tech I Building Improvements to be constructed shall not be significantly less than the scope and scale of the Tech I Building Improvements as detailed and outlined in the Construction Plans. Section 6.2. Commencement and Completion of Construction. Subject to Unavoidable Delays, TechWorks shall use reasonable efforts to cause construction of the 18 the Tech I Building Improvements to be undertaken immediately following the First Issue Closing Date and completed as soon as possible according to the Construction Plans, or by such other date as the City and TechWorks shall mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to extend any completion date by a number of days equal to the number of days lost as a result of Unavoidable Delays. All work with respect to the Tech I Building Improvements to be constructed or provided by TechWorks shall be in conformity with the Construction Plans for the Tech I Building Improvements. Until Substantial Completion of the Tech I Building Improvements, TechWorks will provide reports to the City, in such details and at such times as may be reasonably requested by the City, as to the actual progress of TechWorks with respect to the construction of the Tech I Building Improvements. ARTICLE VII. FDP GRANT AND lECHWORKS GRANT Section 7.1. FDP Grant. For and in consideration of the obligations being assumed by the Developer as set forth herein, and as a necessary means of achieving the goals and objectives of the Urban Renewal Plan, the City agrees (subject to the conditions set forth in this Article) to make the FDP Grant to Developer. The FDP Grant shall be disbursed to the Escrow Agent (as defined in Section 5.2 above), for the benefit of the Developer, in one or more installments commencing on the Second Issue Closing Date, subject to the provision of Section 7.4 hereof. Proceeds of the FDP Grant shall be used by Developer solely and only for the purposes of paying costs of constructing the FDP Improvements, and shall be drawn upon by the Developer according to Section 5.2 herein. Section 7.2. TechWorks Campus Grant. For and in consideration of the obligations being assumed by TechWorks and Developer as set forth herein, and as a necessary means of achieving the goals and objectives of the Urban Renewal Plan, the City agrees (subject to the conditions set forth in this Article) to make the TechWorks Campus Grant to Developer. The TechWorks Campus Grant shall be disbursed to the Escrow Agent (as defined in Section 5.1 above), for the benefit of the Developer, in one or more installments commencing on the First Issue Closing Date, subject to the provision of Section 7.4 hereof. Proceeds of the TechWorks Campus Grant shall be used by Developer solely and only for the purposes of paying costs of the TechWorks Campus Site improvements, and shall be drawn upon by Developer according to Section 5.1 herein. TechWorks shall have no responsibilities under the TechWorks Campus Grant. Section 7.3. Source of FDP Grant and TechWorks Campus Grant Funds Limited. The TechWorks Campus Grant and the FDP Grant shall be payable solely and only from the proceeds of the City Bonds (First Issue) and City Bonds (Second Issue), respectively, 19 and shall not be payable in any manner by general taxation or from any other City funds. The parties further acknowledge and agree that the City Bonds (First Issue) and City Bonds (Second Issue) shall be sold at such times, on such terms and conditions, bear such interest rates, mature at such times and in such amounts as the City, in its sole discretion, shall determine to be acceptable to it. The City's obligation to issue the City Bonds (First Issue) and City Bonds (Second issue) and make the TechWorks Campus Grant and FDP Grant as described in this Article shall be subject in all respects to Unavoidable Delays, the provisions of this Article, and to the satisfaction of all conditions and procedures required (in the judgment of bond counsel for the City), by Chapters 384 and 403 of the Code with respect to the issuance of the City Bonds (First Issue) and City Bonds (Second Issue), including the holding of all required public hearings relating to the same. Section 7.4. Closing; Conditions Precedent to Funding by City. (a) The complete or initial funding by the City of the TechWorks Campus Grant and the FDP Grant on the First Issue Closing Date and Second Issue Closing Date, respectively, shall be deemed an agreement of the parties that the applicable conditions of closing shall have been satisfied or waived. If the conditions set forth in this Section are not satisfied at the First Issue Closing Date or the Second Issue Closing Date, as applicable, this Agreement shall terminate unless a new First Issue Closing Date or Second Issue Closing Date, as applicable, is established by amendment to this Agreement. The termination of this Agreement shall be the sole remedy available to City, TechWorks or Developer if, for whatever reason, a condition set forth in this Section is not satisfied at the First Issue Closing Date or Second Issue Closing Date, as applicable, it being understood that each party shall nonetheless incur costs and liabilities prior to the First Issue Closing Date or Second Issue Closing Date for which they alone are responsible. The City, TechWorks and Developer each expressly assume all responsibility for the costs and liabilities they may each so incur prior to the First Issue Closing Date and Second Issue Closing Date, respectively, and agree to indemnify and hold each other harmless therefrom. (b) It is recognized and agreed that the ability of the City to perform the obligations described in this Agreement, including the payment of the TechWorks Campus Grant and FDP Grant, is subject to completion and satisfaction of certain separate City Council actions and required legal proceedings relating to the issuance of the City Bonds (First Issue) and City Bonds (Second Issue), including the holding of a public hearing on the same, and the approval of the Collateral and Escrow Agreement. Specifically, the closing of the transactions contemplated by this Agreement and all the obligations of City, TechWorks and Developer, as applicable, under this Agreement are subject to fulfillment, on or before the First Issue Closing Date and Second Issue Closing Date, respectively, of each of the following conditions precedent: 20 (i) The representations and warranties made by TechWorks in Section 2.2 and by the Developer in Section 2.3 shall be true and correct as of the First Issue Closing Date with the same force and effect as if made at such date. The representations and warranties made by Developer in Section 2.3 shall be true and correct as of the Second Issue Closing Date with the same force and effect as if made at such time. (ii) The City shall have approved all applicable zoning, subdivision, or platting of the Techworks Property necessary for immediate development and construction of the Tech I Building Improvements, and shall have amended the Urban Renewal Plan to include the project activities described in this Agreement, by the First Issue Closing Date. The City shall have approved all applicable zoning, subdivision, or platting of the FDP Property necessary for immediate development and construction of the FDP Improvements by the Second Issue Closing Date. (iii) Developer and TechWorks shall be in material compliance with all the terms and provisions of this Agreement as of the First Issue Closing Date. The Developer shall be in material compliance with all the terms and provisions of this Agreement as of the Second Issue Closing Date. (iv) The City shall have completed the sale of all or a portion of the authorized City Bonds (First Issue) and City Bonds (Second Issue), as applicable, on such terms and conditions as it shall deem necessary or desirable in its sole discretion. (v) The City Council shall have approved the Construction Plans for the TechWorks Campus Site Improvements by the First Issue Closing Date. The City Council shall have approved the Construction Plans for the FDP Improvements by the Second Issue Closing Date. (vi) The Developer shall have furnished the City with evidence, in a form satisfactory to the City, that Developer has firm contractual commitments, including guaranteed maximum prices for all components thereof, for construction of the TechWorks Campus Site Improvements and the FDP Improvements in conformance with the Construction Plans by the First Issue Closing Date and the Second Issue Closing Date, respectively. (vii) The Developer shall have provided the City with evidence, in a form satisfactory to the City in its sole discretion, that Developer has firm contractual commitments from Lenders and investors for funds that are sufficient, without further reinvestment or the deposit of additional proceeds, to complete the 21 construction of the TechWorks Campus Site Improvements and the FDP Improvements in accordance with the Construction Plans, including reasonable contingencies for change orders and other customary matters. (viii) Execution and recording of the Developer Assessment Agreement between the City and the Developer pursuant to Section 8.3 of this Agreement shall have occurred by the Second Issue Closing Date. (ix) The City Council shall have approved the Collateral to be delivered to the City under Section 5.3 hereof, and the form, execution and delivery of the Escrow Agreement by the Second Issue Closing Date. (x) Execution and delivery to the City of the Mortgage or other Collateral required under Section 5.3 of this Agreement by the Second Issue Closing Date; (xi) Execution by TechWorks, Developer, City and all other parties of the Escrow Agreement required under Section 5.1 of this Agreement on or before the First Issue Closing Date. Execution by the Developer, City and all other parties of the Escrow Agreement required under Section 5.2 of this Agreement shall be required on or before the Second Issue Closing Date. (xii) Receipt by the City of legal opinions rendered on behalf of the Developer related to the authority and enforceability of this Agreement and any and all other agreements entered into between the City and the Developer, in the form reasonably requested by the City on or before the First Issue Closing Date and Second Issue Closing Date. (xiii) There has not been a substantial change for the worse in the fmancial resources and ability of the Developer, or a substantial decrease in the fmancing commitments secured by the Developer for construction of the FDP Improvements, which change(s) makes it likely, in the reasonable judgment of the City, that the Developer will be unable to fulfill its covenants and obligations under this Agreement. ARTICLE VIII. COVENANTS Section 8.1. Covenants of TechWorks. TechWorks agrees with the City as follows: 22 (a) TechWorks will maintain, preserve and keep its properties (whether owned in fee or a leasehold interest), including but not limited to the Tech I Building, in good repair and working order, ordinary wear and tear excepted, and from time to time will make all necessary repairs, replacements, renewals and additions. (b) In carrying out the construction and operation of the Tech I Building Improvements, TechWorks shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, age, religion, marital status, familial status, or physical disability. TechWorks shall ensure that applicants for employment are considered, and that employees are treated during employment, without regard to their race, creed, color, sex, national origin, age, religion, marital status, familial status, or physical disability. (c) TechWorks shall pay, or cause to be paid, when due, all real property taxes and assessments payable with respect to all and any parts of the Tech I Building Property. TechWorks agrees that (i) it will not seek administrative review or judicial review of the applicability or constitutionality of any Iowa tax statute relating to the taxation of property contained on the Tech I Building Property determined by any tax official to be applicable to the Tech I Building Property, or TechWorks or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings and (ii) it will not seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other State law, of the taxation of real property contained on the Tech I Building Property, except on such terms as shall be acceptable to City in connection with any phase or segment of the Tech I Building Improvements for the benefit of a tenant or occupant other than Tech Works. (d) TechWorks will comply with all applicable land development laws and City ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of TechWorks. (e) TechWorks agrees during construction of the Tech I Building Improvements and thereafter until the Termination Date to maintain builder's risk, property damage, and liability insurance coverages with respect to the Tech I Building in such amounts as are customarily carried by like organizations engaged in activities of comparable size and liability exposure with insurance companies reasonably satisfactory to the City, together with such additional coverages as the City may reasonably request, and shall provide evidence of such coverages to the City upon request. 23 (f) On or before the First Issue Closing Date, and no less than quarterly thereafter, TechWorks shall report to the City the status of its efforts to secure firm commitments for construction and permanent financing for the Tech I Building Improvements in an amount sufficient, together with all funding commitments, to complete the Tech I Building Improvements in conformance with the applicable Construction Plans. When such commitments have been secured to the reasonable satisfaction of TechWorks and the City, TechWorks shall undertake construction of the Tech I Building Improvements as provided in Article VI. Before undertaking such Improvements or any phase of Improvements for a limited portion of the Tech I Building, TechWorks shall execute one or more Assessment Agreements in the form and content acceptable to City to fix the Assessor's Minimum Actual Value for the Tech I Building Improvements and the Tech I Building Property, or any portion of such Improvements or Property if developed in phases. Section 8.2. Covenants of Developer. The Developer agrees with the City as follows: (a) The Developer will maintain, preserve and keep the FDP Property (whether owned in fee or a leasehold interest), including but not limited to the FDP Improvements, in good repair and working order, ordinary wear and tear excepted, and from time to time will make all necessary repairs, replacements, renewals and additions. (b) In carrying out the construction and operation of the FDP Improvements, the Developer shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, age, religion, marital status, familial status, or physical disability. The Developer shall ensure that applicants for employment are considered, and that employees are treated during employment, without regard to their race, creed, color, sex, national origin, age, religion, marital status, familial status, or physical disability. (c) The Developer shall pay, or cause to be paid, when due, all real property taxes and assessments payable with respect to all and any parts of the FDP Property. The Developer agrees that (i) it will not seek administrative review or judicial review of the applicability or constitutionality of any Iowa tax statute relating to the taxation of property contained on the FDP Property determined by any tax official to be applicable to the FDP Property, or the Developer, or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings and (ii) it will not seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other State law, of the taxation of real property contained on the FDP Property. 24 (d) The Developer will comply with all applicable land development laws and City and County ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, fmancial or otherwise, of the Developer. (e) The Developer agrees during construction of the FDP Improvements and thereafter until the Termination Date to maintain builder's risk, property damage, and liability insurance coverages with respect to the FDP Improvements in such amounts as are customarily carried by like organizations engaged in activities of comparable size and liability exposure with insurance companies reasonably satisfactory to the City, together with such additional coverages as the City may reasonably request, and shall provide evidence of such coverages to the City upon request. (f) To assist the City in monitoring the performance of the Developer hereunder, a duly authorized officer of the Developer shall determine and certify to the City, on an annual basis, the number of Full Time Employees employed at the FDP Improvements as of the date of the certification and as the first day of each of the preceding eleven (11) months. The first such certification shall be provided within 10 days of November 1, 2014, with subsequent certifications being provided within 10 days of November 1 of each year until November 1, 2034 or such earlier date in which no City Bonds (Second Issue) are outstanding. Developer shall collect the information required from tenants of the FDP Improvements to verify the employment information provided by Developer in the annual certifications; provided, however, that employee names and other personal information need not be provided. Section 8.3. Execution of Assessment Agreements. (a) The Developer and TechWorks (and the holders of any applicable First Mortgages, including the Lender) each shall agree to, and with the City shall execute, an Assessment Agreement pursuant to the provisions of Section 403.6(19) of the Code of Iowa specifying the Assessor's Minimum Actual Value of the FDP Property and the Tech I Building Property, respectively, and the improvements located thereon for calculation of real property taxes. (b) The Developer (and the holders of any First Mortgages or lienholders, including the Lender) shall agree to a minimum actual value for the FDP Improvements and the FDP Property which will result in an assessment as of January 1, 2015 of not less than Fifteen Million Five Hundred Thousand Dollars ($15,500,000) for the completed improvements (such minimum actual value at the time applicable is herein referred to as the "Assessor's Minimum Actual Value"). (c) TechWorks shall enter into an Assessment Agreement prior to commencing any construction of the Tech I Building Improvements, or any separate phase of 25 Improvements for a limited portion of the Tech I Building, fixing the Assessor's Minimum Actual Value for the completed improvements as of January 1 of the year following substantial completion of the Tech I Building Improvements, or such phase of Improvements as are the subject of the Assessment Agreement. (d) Nothing in the Assessment Agreements shall limit the discretion of the Assessor to assign an actual value to the property in excess of the applicable Assessor's Minimum Actual Value nor prohibit the Developer or TechWorks, as applicable, from seeking through the exercise of legal or administrative remedies a reduction in such actual value for property tax purposes; provided, however, that the Developer or TechWorks, as applicable, shall not seek a reduction of such actual value below the applicable Assessor's Minimum Actual Value in any year so long as the Assessment Agreement shall remain in effect. The Assessment Agreements shall remain in effect until the Termination Date set forth in Section 12.12 hereof. The Assessment Agreements shall be certified by the County Assessor as provided in Iowa Code Section 403.6(19) and shall be filed for record in the office of the County Recorder of the County, and such filing shall constitute notice to any subsequent encumbrancer or purchaser of the applicable property (or part thereof), whether voluntary or involuntary, and such Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent purchaser or encumbrancer, including the holder of any First Mortgage or lienholder. ARTICLE IX. INDEMNIFICATION Section 9.1. Release and Indemnification Covenants. (a) The Developer and TechWorks each releases the City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Article, the "indemnified parties") from, covenant and agree that the indemnified parties shall not be liable for, and agree 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 FDP Improvements or the Tech I Building Improvements, as applicable. (b) Except for any willful misrepresentation, any willful or wanton misconduct, or any unlawful act of the indemnified parties, the Developer and TechWorks each agree to protect and defend the indemnified parties, now or forever, and further agree 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 (i) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by the Developer or TechWorks against the City to enforce its rights under this Agreement), or (ii) the 26 acquisition and condition of the FDP Property or the Tech I Building Property, as applicable, and the construction, installation, ownership, and operation of the FDP Improvements and Tech I Building Improvements or (iii) any hazardous substance or environmental contamination located in or on the FDP Property or the Tech I Building Property, as applicable, but only to the extent such liability has not been previously transferred to and accepted by the City in writing. (c) The indemnified parties shall not be liable for any damage or injury to the persons or property of the Developer and TechWorks or their officers, agents, servants or employees or any other person who may be about the FDP Improvements or the Tech I Building Improvements, respectively, due to any act of negligence of any person, other than any act of negligence on the part of any such indemnified party or its officers, agents, servants or employees. (d) The enforcement of the indemnification provisions under this Article IX, and elsewhere in this Agreement, shall only be enforced individually against the Developer or TechWorks depending on the party responsible for the occurrence resulting in the need for such indemnification. The City agrees that if such occurrence resulted on or as a result of the FDP Property and FDP Improvements, such indemnification may be sought only from the Developer. The City agrees that if such occurrence resulted on or as a result of the Tech I Building Property or the Tech I Building Improvements, such indemnification may be sought only from TechWorks. It shall be the City's responsibility to show cause consistent with this Section 9.1(d) to request such indemnification from either the Developer or Techworks. (e) The provisions of this Article shall survive the termination of this Agreement. ARTICLE X. ASSIGNMENT OR TRANSFER Section 10.1. Status of Developer; Transfer of Substantially All Assets. As security for the obligations of the Developer under this Agreement, to the extent expressly permitted by the Lender, the Developer represents and agrees that prior to the Termination Date, the Developer will not transfer the FDP Property or the FDP Improvements or wind up or dispose of all or substantially all of its assets or assign its interest in this Agreement to any other party; provided that the Developer may sell or otherwise transfer the FDP Improvements to a partnership, corporation or limited liability company organized under the laws of one of the United States, or an individual, or dispose of all or substantially all of its assets as an entirety or assign its interest in this Agreement to any other party and thereafter wind up and be discharged from liability hereunder if (i) the Lender, or assignee thereof, or the transferee partnership, corporation, limited liability company or individual assumes in writing all of the obligations of the 27 Developer or its Affiliate under this Agreement and the Assessment Agreement; and (ii) the City receives such new security from the successor developer to assure the completion of construction and the continued operation of the FDP Improvements during the term of this Agreement as the City deems necessary or desirable and receives such evidence as the City shall reasonably require, including an opinion of counsel, that the existing guarantees and security provided pursuant to this Agreement will remain in effect and will be enforceable against the existing Developer upon a default by the successor developer with respect to completion or operation of the FDP Improvements. Notwithstanding the provisions of clauses (i) or (ii) to the contrary, if the Lender is the successor developer, the Lender shall not be required to provide any additional security to the City. Notwithstanding this Section 10.1 to the contrary, the City affirmatively acknowledges that leasing the FDP Property and FDP Improvements by the Developer according to the terms of a Master Lease used in accordance to customary Historic Tax Credit Transactions shall not be considered an assignment or transfer of substantially all assets as such term is used in this Section 10.1. Section 10.2. Status of TechWorks; Transfer of Substantially All Assets. As security for the obligations of TechWorks under this Agreement, TechWorks represents and agrees that prior to the Termination Date, TechWorks will not transfer the Tech I Building or wind up or dispose of all or substantially all of its assets or assign its interest in this Agreement to any other party; provided that TechWorks may sell or otherwise transfer the Tech I Building to a partnership, corporation or limited liability company organized under the laws of one of the United States, or an individual, or assign its interest in this Agreement to any other party and thereafter wind up and be discharged from liability hereunder if (i) the transferee partnership, corporation, limited liability company or individual assumes in writing all of the obligations of TechWorks under this Agreement and the Assessment Agreement; and (ii) the City receive such new security from the successor developer to assure the completion of construction and the continued operation of the Tech I Building Improvements during the term of this Agreement as the City deem reasonably necessary or desirable. ARTICLE XI. DEFAULT AND REMEDIES Section 11.1. 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 continuing beyond any applicable cure periods: (a) Failure by the Developer or TechWorks to cause the construction of the TechWorks Campus Site Improvements, FDP Improvements or Tech I Building Improvements, respectively, to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; 28 (b) Transfer by the Developer or TechWorks of any interest (either directly or indirectly) in the FDP Improvements or the Tech I Building, respectively, or in this Agreement or any other assignment in violation of the provisions of Article X of this Agreement; (c) Failure by the Developer or TechWorks to timely pay (before delinquency) all ad valorem property taxes levied on the FDP Property or Tech I Building, respectively; (d) Failure by the City, Developer or TechWorks to substantially observe or perform any covenant, condition, obligation or agreement on their part to be observed or performed under this Agreement or the Assessment Agreement; (e) The Developer: (A) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or (B) makes an assignment for the benefit of its creditors; or (C) admits in writing its inability to pay its debts generally as they become due; or (D) is adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of the Developer as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of the Developer or part thereof, shall be appointed in any proceedings brought against the Developer and shall not be discharged within ninety (90) days after such appointment, or if the Developer shall consent to or acquiesce in such appointment; or (f) Any representation or warranty made by the Developer or TechWorks in this Agreement, or made by the Developer in any written statement or certificate furnished by the Developer pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 29 (g) The City acknowledges and affirms that the Events of Default listed in this Article 11, and elsewhere in this Agreement, shall only be applied against the defaulting party. An Event of Default by TechWorks will not result in an Event of Default by the Developer under this Agreement, and any remedies sought by the City due to such Event of Default by TechWorks shall solely be sought from TechWorks and not the Developer. An Event of Default by the Developer will not result in an Event of Default by TechWorks under this Agreement, and any remedies sought by the City due to such Event of Default by the Developer shall solely be sought from the Developer and not TechWorks. Section 11.2. Remedies on Default. Whenever any Event of Default referred to in Section 11.1 of this Agreement occurs and is continuing, the City, as specified below, may take any one or more of the following actions against the defaulting party, and only the defaulting party, after giving of thirty (30) days' written notice by the City to the defaulting party of the Event of Default, but only if the Event of Default has not been cured within said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days and the defaulting party does not provide assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible: (a) The City may suspend its performance under this Agreement until it receives assurances from the defaulting party, deemed adequate by the City, that the defaulting party will cure its default and continue its performance under this Agreement; (b) Subject to the SNDA, if the Event of Default is attributable to the Developer, the City shall be entitled to recover, and Developer shall pay to the City, an amount equal to the amount remaining to be paid on the principal and interest on the outstanding City Bonds (Second Issue), and the City may take any action, including any legal action, it considers necessary or desirable to recover such amount from Developer; or (c) Subject to the SNDA, the City may take any other action, including legal, equitable or administrative action, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of the defaulting party, as the case may be, under this Agreement; provided, however, the City shall not be permitted to exercise any remedy that would adversely impact the Historic Tax Credit Transaction. The Lender shall have the right, but not the obligation, to cure any default by the Developer during the period described above. 30 Section 11.3. Remedies on Default by City. Whenever any Event of Default referred to in Section 11.1(d) of this Agreement occurs and is continuing by the City, the Developer or TechWorks may take or cause to be taken, such action against the City to require it to specifically perform its obligations set forth herein. Section 11.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to any party herein is intended to be exclusive of any other available remedy or remedies, but each and every 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. Section 11.5. 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. Section 11.6. Agreement to Pay Attorneys' Fees and Expenses. Whenever any Event of Default occurs and the City shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance -of any obligation or agreement on the part of the defaulting party herein contained, the defaulting party agrees that it shall, on demand therefor, pay to the City the reasonable fees of such attorneys and such other expenses as may be reasonably and appropriately incurred by the City in connection therewith. In the event any suit, action or proceeding is brought by any party to establish, obtain or enforce any rights under this Agreement or for the breach of any warranty, representation, covenant, term or condition hereof, the prevailing party in such suit, action or proceeding, including an appeal to an appellate court arising therefrom, shall be entitled to recover reasonable attorneys' fees in addition to costs. For purposes of this paragraph prevailing party shall mean the party in whose favor any fmal, non -appealable judgment is entered. ARTICLE XII. MISCELLANEOUS Section 12.1. Notices. Any notice, demand, or other communication under this Agreement by either party to the other shall be effective upon receipt or refusal of receipt to the following addresses: (a) in the case of Developer, is addressed or delivered personally to Developer at: 31 FDP WTC, L.L.C. 201 North Harrison Street, Suite 402 Davenport, Iowa 52801 Attention: Rodney A. Blackwell (b) in the case of TechWorks, is addressed or delivered personally to TechWorks at: Cedar Valley Tech Works, Inc. 10 West 4th Street, Suite 300 Waterloo, Iowa 50701 Attention: President (c) in the case of the City, is addressed to or delivered personally to the City at: City of Waterloo, Iowa 715 Mulberry Street Waterloo, Iowa 50703 Attn: City Clerk Any party may change the address for notices to be delivered to it, and copies thereof to any address other than a post office box by serving not less than ten (10) days prior written notice to the other party in accordance with the provisions contained in this paragraph. Section 12.2. Governing Law. The parties intend that this Agreement and the relationship of the parties shall be governed by the laws of the State of Iowa applicable to contracts wholly to be performed therein. The parties agree that any action, suit or proceeding based upon any matter, claim or controversy arising hereunder or relating hereto shall be brought solely in the state or federal courts located in Black Hawk County, Iowa. The parties irrevocably waive objection to the venue of the above- mentioned courts, including any claim that such action, suit or proceeding has been brought in an inconvenient forum. Section 12.3. Entire Agreement. This Agreement and exhibits attached constitute the entire agreement of the parties and supersedes and replaces the Original Agreement and all other prior offers, agreements, arrangements and contracts, whether oral or 32 written, concerning the subject matter hereof. The Original Agreement is hereby terminated and no longer binding upon the Parties. Section 12.4. Severability. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held invalid, then the remainder of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby and the parties shall thereupon amend this Agreement to legally and most closely embody the spirit and intent of the invalid provisions. Section 12.5. Performance by City. (a) Developer and TechWorks each acknowledge and agree that all of the obligations of the City under this Agreement shall be subject to, and performed by the City in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with the City's lawful authority. (b) All covenants, stipulations, promises, agreements and obligations of the City contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City, and not of any governing body member, officer, agent, servant or employee of the City in the individual capacity thereof. Section 12.6. No Third Party Beneficiaries. No rights or privileges of any party hereto shall inure to the benefit of any landowner, contractor, subcontractor, material supplier, or any other person or entity and no such contractor, landowner, subcontractor, material supplier, or any other person or entity shall be deemed to be a third -party beneficiary of any of the provisions contained in this Agreement. Section 12.7. Interpretation. Section headings are for convenience of reference only and are in no way intended to interpret, define or limit the scope or content of this Agreement or any provision hereof and shall be given no legal effect in the interpretation of this Agreement. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that the parties hereto and their respective attorneys have contributed substantially and materially to the preparation of each and every provision of this Agreement. Section 12.8. Amendment; Waiver. This Agreement may not be amended, waived or modified in any respect unless the same shall be in writing and signed by all parties. No waiver by a party of any default by another party shall constitute a waiver of any other breach or default by another party, whether of the same or any other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give another party any contractual right by custom, estoppel, or otherwise. 33 Section 12.9. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the City, Developer and TechWorks and their affiliates, and their respective successors and assigns, including any and all covenants and conditions contained in this Agreement. Section 12.10. Assignment of Benefits. The Developer may, to the extent not otherwise prohibited by law, assign the payments and benefits under this Agreement to an investor or lender previously approved by the City, said approval not to be unreasonably withheld; provided, however, that the City hereby approves the collateral assignment of this Agreement by the Developer to the Lender. It is anticipated by the parties that Developer will assign its rights to payments and benefits hereunder to the lender financing the development of the FDP Improvements. Notwithstanding the foregoing, the Developer may transfer the payments and benefits under this Agreement, under the constraints of the Urban Renewal Act, to any Affiliate of the Developer, so long as such transfer or payment is not done to avoid Developer's responsibilities hereunder. Section 12.11. Agreement. The parties may agree to file of record a Memorandum of Development Agreement in a form and content to be mutually agreed upon by the parties. If no such memorandum can be mutually agreed upon, then this Agreement may be recorded in its entirety. The Assessment Agreements shall be filed of record as required by law. Section 12.12. Termination Date. This Agreement will terminate on a date which is the earlier to occur of the December 31, 2032 or the date that is one year after all of the City Bonds (First Issue) and City Bonds (Second Issue) are paid in full. 34 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year above first written. CITY OF WATERLOO, IOWA Mayor ATTEST: City Clerk STATE OF IOWA ) ) SS COUNTY OF BLACK HAWK ) On this day of , 2013, before me a Notary Public in and for said State, personally appeared Ernest G. Clark and Suzy Schares, to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a Municipality created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said Municipality, and that said instrument was signed and sealed on behalf of said Municipality by authority and resolution of its City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily executed. Notary Public in and for the State of Iowa 35 By: STATE OF IOWA ) ) SS COUNTY OF BLACK HAWK ) CEDAR VALLEY TECH WORKS, INC. Steven J. Dust, President On this day of , 2013, before me the undersigned, a Notary Public in and for said State, personally appeared Steven J. Dust, to me personally known, who, being by me duly sworn, did say that he is the President of Cedar Valley Tech Works, Inc., and that said instrument was signed on behalf of said corporation; and that the said Steven J. Dust, as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said company, by it voluntarily executed. Notary Public in and for the State of Iowa 36 STALL, OF COUNTY OF ) SS FDP WTC, L.L.C. By: Its: On this day of , 2013, before me the undersigned, a Notary Public in and for said State, personally appeared , to me personally known, who, being by me duly sworn, did say that he/she is the of FDP WTC, L.L.C., and that said instrument was signed on behalf of said limited liability company; and that the said as such officer acknowledged the execution of said instrument to be the voluntary act and deed of said limited liability company, by it voluntarily executed. Notary Public in and for said City and State 37 EXHIBIT A-1 LEGAL DESCRIPTION OF FDP PROPERTY 38 EXHIBIT A-2 LEGAL DESCRIPTION OF "TECH I BUILDING PROPERTY 39 EXHIBIT B-1 FDP IMPROVEMENTS The FDP Improvements consist generally of the rehabilitation and renovation of the existing "Tech 2 Building" located on the TechWorks Campus to create "The Green @ TechWorks Campus", a mixed-use facility including: • An upscale travel hotel of approximately 100 guest rooms on , having amenities comparable to a business -class hotel facility; • A full service restaurant in the hotel; • A proprietary training facility , of approximately 15,000 gross square feet of which shall be leased to Deere for at least 10 years; • On the ground floor of the office space side of the facility, an interactive Advanced Tech Energy Center displaying renewable energy systems and products; • Approximately 45,000 square feet on three floors of "Class A" showroom and office space for lease to other tenants; and 40 EXHIBIT B-2 TECH I BUILDING IMPROVEMENTS The Tech I Building Improvements consist generally of the redevelopment and rehabilitation of the approximately 156,000 square foot building located on the Tech I Building Property into the offices and laboratories for the Center for Technology Advancement, and for future use and occupancy by new businesses focused on bio - products and renewable energy, including an industrial incubator operation on the second floor, and private manufacturing for the balance of the renovated space. 41 EXHIBIT B-3 1'ECHWORKS CAMPUS SI'Z'E IMPROVEMENTS Prepared by: Return to: EXHIBIT C MINIMUM ASSESSMENT AGREEMENT THIS MINIMUM ASSESSMENT AGREEMENT, is dated as of 2013, by and between the City of Waterloo, Iowa, a municipal corporation (the "City"), and FDP WTC, L.L.C., an Iowa limited liability company (the "Developer"). WITNESSETH: WHEREAS, the City and Developer are parties to an Amended and Restated Development Agreement dated as of , 2013 ("Development Agreement"), regarding certain real property located in the City, the legal description of which is contained in Attachment 1 attached hereto (the "Development Property"); and WHEREAS, it is contemplated that Developer will undertake the construction of certain building improvements as described in the Development Agreement (the "Minimum Improvements") on the Development Property, as provided in the Development Agreement; and WHEREAS, pursuant to Section 403.6 of the Code of Iowa, as amended, the City and Developer desire to establish a minimum actual value for the Development Property and the Minimum Improvements to be constructed thereon by the Developer pursuant to the Development Agreement; and WHEREAS, the City and the Assessor for the City of Waterloo, Iowa have reviewed the preliminary plans and specifications for the Minimum Improvements which it is contemplated will be erected; and WHEREAS, the City expects to authorize the issuance of General Obligation Bonds and/or Urban Renewal Tax Increment Revenue Bonds, the proceeds of which will be used to fund an economic development grant to the Developer (collectively, the "City Bonds"), the principal of and interest on which City Bonds are expected to be paid in part from the real property taxes paid with respect to the Development Property and the Minimum Improvements located thereon. 43 NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in consideration of the promises, covenants and agreements made by each other, do hereby agree as follows: 1. Upon substantial completion of construction of the above -referenced Minimum Improvements, but no later than January 1, 2015, the minimum actual taxable value which shall be fixed for assessment purposes for the Development Property and the Minimum Improvements to be constructed thereon shall be not less than Fifteen Million Five Hundred Thousand Dollars ($15,500,000) (hereafter referred to as the "Minimum Actual Value"). The Minimum Actual Value shall continue to be effective until termination of this Minimum Assessment Agreement on January 31, 2032 (the "Termination Date") or the date that is one year after all of the City Bonds (First Issue) and City Bonds (Second Issue) are paid in full. . The Minimum Actual Value shall be maintained during such period regardless of: (a) any failure to complete the Minimum Improvements; (b) destruction of all or any portion of the Minimum Improvements; (c) diminution in value of the Development Property or the Minimum Improvements; or (d) any other circumstance, whether known or unknown and whether now existing or hereafter occurring. 2. The Developer shall pay, or cause to be paid, when due, all real property taxes and assessments payable with respect to all and any parts of the Development Property and the Minimum Improvements pursuant to the provisions of this Minimum Assessment Agreement and the Development Agreement. Such tax payments shall be made without regard to any loss, complete or partial, to the Development Property or the Minimum Improvements, any interruption in, or discontinuance of, the use, occupancy, ownership or operation of the Development Property or the Minimum Improvements by Developer or any other matter or thing which for any reason interferes with, prevents or renders burdensome the use or occupancy of the Development Property or the Minimum Improvements. 3. In the event that the manner of valuing properties for real estate tax purposes should change from the method existing at the time of the execution of this Assessment Agreement, or if for any other reason (including a change in property tax laws of the State of Iowa) the amount of the tax increment revenues realized by the City from the properties described in clauses (i) — (ii) of Section 5.4 of the Development Agreement in any year is insufficient to pay the scheduled payments of principal and interest on the City Bonds (Second Issue), Developer agrees to pay as taxes, or, if and to the extent necessary, to make other supplementary payments in lieu of taxes to the City in 44 an aggregate amount necessary to pay when due the principal of and interest on the City Bonds (Second Issue), it being the intent of the parties that the annual amount of the foregoing tax increment revenues and such supplementary payments received by the City be no less than the annual requirement for scheduled principal and interest on the City Bonds (Second Issue). In such event, the Developer shall pay any such shortfall amount promptly upon written demand from the City. 4. The Developer agrees that its obligation to make the tax payments required hereby, to pay the other sums provided for herein, and to perform and observe its other agreements contained in this Minimum Assessment Agreement shall be absolute and unconditional obligations of the Developer (not limited to the statutory remedies for unpaid taxes) and that the Developer shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to any early termination of this Minimum Assessment Agreement for any reason whatsoever. 5. The Developer agrees that prior to the Termination Date it will not: (a) seek administrative review or judicial review of the applicability or constitutionality of any Iowa tax statute relating to the taxation of property contained as a part of the Development Property or the Minimum Improvements determined by any tax official to be applicable to the Development Property or the Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; or (b) seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other State law, of the taxation of real property, including improvements and fixtures thereon, contained in the Development Property or the Minimum Improvements between the date of execution of this Agreement and the Termination Date; or (c) request the Assessor to reduce the Minimum Actual Value; or (d) appeal to the board of review of the City, County, State or to the Director of Revenue of the State to reduce the Minimum Actual Value; or (e) cause a reduction in the actual value or the Minimum Actual Value through any other proceedings. 6. This Minimum Assessment Agreement shall be promptly recorded by the City with the Recorder of Black Hawk County, Iowa. Such filing shall constitute notice to any subsequent encumbrancer or purchaser of the Development Property (or part 45 thereof), whether voluntary or involuntary, and this Minimum Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent purchaser or encumbrancer, including the holder of any mortgage. The City shall pay all costs of recording. 7. Neither the preambles nor provisions of this Minimum Assessment Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 8. This Minimum Assessment Agreement shall not be assignable without the consent of the City and shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, subject to Article IX of the Development Agreement. 9. Nothing herein shall be deemed to waive the rights of the Developer under Iowa Code Section 403.6(19) to contest that portion of any actual value assignment made by the Assessor in excess of the Minimum Actual Value established herein. In no event, however, shall Developer seek to reduce the actual value to an amount below the Minimum Actual Value established herein during the term of this Agreement. This Minimum Assessment Agreement may be amended or modified and any of its terms, covenants, representations, warranties or conditions waived, only by a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. 10. If any term, condition or provision of this Minimum Assessment Agreement is for any reason held to be illegal, invalid or inoperable, such illegality, invalidity or inoperability shall not affect the remainder hereof, which shall at the time be construed and enforced as if such illegal or invalid or inoperable portion were not contained herein. 11. The Minimum Actual Value herein established shall be of no further force and effect and this Minimum Assessment Agreement shall terminate on the Termination Date. 12. Developer has provided to the City a listing all lienholders of record as of the date of this Assessment Agreement and all such lienholders have signed consents to this Assessment Agreement, which consents are attached hereto and made a part hereof. 46 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year above first written. CITY OF WATERLOO, IOWA Mayor ATTEST: City Clerk STATE OF IOWA ) SS COUNTY OF BLACK HAWK ) On this day of , 2013, before me a Notary Public in and for said State, personally appeared Ernest G. Clark and Suzy Schares, to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a Municipality created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said Municipality, and that said instrument was signed and sealed on behalf of said Municipality by authority and resolution of its City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily executed. Notary Public in and for the State of Iowa 47 FDP WTC, L.L.C. By: Its: STATE OF ) ) SS COUNTY OF ) On this day of , 2013, before me the undersigned, a Notary Public in and for said State, personally appeared , to me personally known, who, being by me duly sworn, did say that he/she is the of FDP WTC, L.L.C., and that said instrument was signed on behalf of said limited liability company; and that the said , as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said limited liability company, by it voluntarily executed. Notary Public in and for said City and State 48 LIENHOLDER' S CONSENT The undersigned Lienholder hereby consents to this Minimum Assessment Agreement and agrees to be bound hereby. NAME OF LIENHOLDER: By: Signature Date STA 1E OF COUNTY OF ) SS On this day of , 2013, before me the undersigned, a Notary Public in and for said County, in said State, personally appeared and , to me personally known, who, being by me duly sworn, did say that they are the and , respectively, of and that said instrument was signed on behalf of said company; and that the said , and acknowledged the execution of said instrument to be the voluntary act and deed of said domestic company, by them voluntarily executed. Notary Public in and for said City and State 49 CERTIFICATION OF ASSESSOR The undersigned, having reviewed the plans and specifications for the Minimum Improvements to be constructed and the market value assigned to the land upon which the Minimum Improvements are to be constructed, and being of the opinion that the minimum market value contained in the foregoing Minimum Assessment Agreement appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible for the assessment of the property described in the foregoing Minimum Assessment Agreement, certifies that the actual value assigned to that land and improvements upon completion shall not be less than Million Hundred Thousand Dollars ($ ), all until termination of this Minimum Assessment Agreement. Assessor for the City of Waterloo, Iowa Date STATE OF IOWA ) ) SS COUNTY OF BLACK HAWK ) Subscribed and sworn to before me by , Assessor for the City of Waterloo, Iowa. 50 Notary Public in and for the State of Iowa Date ATTACHMENT 1 TO MINIMUM ASSESSMENT AGREEMENT LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY 51 EXHIBIT D DESCRIPTION OF ADDITIONAL TIF PROPERTIES 1. Tech I Building Property 2. All parcels located in the area bounded by U.S. Highway 63 (1st Street) to Iowa Highway 218 expressway, to Ansborough Avenue and to the Cedar River, and back to U.S. Highway 63 3. The FDP (old Courier) known as parcel no. 8913-26-236-006 as legally described on Exhibit D-1 attached hereto and the River Plaza property known as parcel no. 8913-26-235-001 and all such other parcels located between or associated with the development or redevelopment of parcel no. 8913-26-236-006 and parcel no. 8913-26-235-001(the "Superblock") 4. 100 East Fourth Street 00970019-1\11310-092 7565004v10 52