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HomeMy WebLinkAboutCedar Valley Warehouse, LLC-10/28/2013Preparer Information: Noel Anderson 715 Mulberry Street Waterloo, Iowa 50703 (319) 291-4366 Name Address City Phone SPACE ABOVE THIS LINE FOR RECORDER DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of OC -kc oe r as , 2013, by and between Cedar Valley Warehouse, LLC (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal. B. Company is willing and able to finance and construct a building and related improvements on property located in the Airport Tax Increment Finance District. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree, as follows: 1. Purchase of Property. Company is purchasing the real property described on Exhibit "A" attached hereto (the "Property"). The purchase price for the Property is $271,582.00 (the "Purchase Price"). Company shall take all steps necessary or advisable to complete the purchase of the Property and to obtain marketable title thereto as promptly as possible. 2. Improvements by Company. Company shall construct on the Property one industrial building of not less than 40,000 square feet, and related improvements to the buildings and grounds (collectively, the "Improvements"). The Improvements shall be constructed in accordance with all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. It is 1 contemplated that the Improvements will have a total project cost of approximately $1,243,440. The Property, the Improvements, and all site preparation. and development -related work to make the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". 3. Grant for Land Acquisition; Mortgage. The City shall make an economic development grant (the "Grant") to the Company for the Project in an amount equal to the Purchase Price, i.e., $271,582.00, to be paid by City on Company's behalf to the seller at the time of closing on the Property purchase transaction. No later than such closing, Company shall execute and deliver to City a mortgage (the "Mortgage") to secure Company's contingent repayment obligations under Section 4 below. City will record the Mortgage in the public land records. Company shall be in default of the Mortgage if, among other terms of default stated therein, Company is in default of any Project Mortgage described in Section 6 below pursuant to the terms of such Project Mortgage. 4. Timeliness of Construction. The parties agree that Company's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to make the Grant to Company and that without said commitment City would not have done so. Measured from the date of approval of this agreement, Company must obtain a building permit and begin construction within four (4) months, and construction shall be completed within an additional seventeen (17) months. If Company has not, in good faith, begun the construction of the Improvements on the schedule stated above, this Agreement may be cancelled at the sole option of City, and Company must repay grant funds to City. If construction has not begun within the scheduled period but the development of the Project is still imminent, the City Council may, but shall not be required to, consent to an extension of time for the construction of the Improvements, and if an extension is granted but construction of the Improvements has not begun within such extended period, Company must repay Grant funds to City. If construction has begun within the required period or any extended period and is stopped and/or delayed as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond the reasonable control of Company, the Project.completion schedule shall be tolled for a period of time equal to the period of such stoppage or delay, and thereafter if construction is not completed within the allowed period of extension then this Agreement may be cancelled at the sole option of City. 5. Indemnity.. Company agrees that it shall indemnify City and hold it harmless with respect to any demand, claim, cause of action, damage, or injury made, suffered, or incurred as a result of or in connection with the Project, Company's failure to carry on or complete same, or any lien, claim, charge, or encumbrance on or against the Property of any type or nature whatsoever that attaches to the Property by virtue of Company's ownership of same, other than permitted mortgages as described in Section 6. If City files suit to enforce the terms of this Agreement or the Mortgage and prevails in such suit, then Company shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees. Company's duties of indemnity pursuant to this 2 Section 5 shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. No Encumbrances; Limited Exception. Until completion of the Improvements, Company agrees that it shall not create, incur, or suffer to exist any lien, encumbrance, mortgage, security interest, or charge on the Property, other than such mortgage or mortgages (a "Project Mortgage") as may be reasonably necessary to finance Company's completion of the Improvements and of which Company notifies City in advance of Company's execution of any such Project Mortgage. Company may not mortgage or encumber the Property or any part thereof for any purpose except in connection with financing of the Improvements, whether through a construction loan or permanent loan. City agrees to subordinate its Mortgage to any Project Mortgage. 7. Water and Sewer. Company will be responsible for extending water and sewer service to any location on the Property and for payment of any associated connection fees. 8. Minimum Assessment Agreement. Company acknowledges and agrees that it will pay when due all taxes and assessments, general or special, and all other lawful charges whatsoever levied upon or assessed or placed against the Property. Company further agrees that, prior to the date set forth in Section 2 of Exhibit "B", it will not seek or cause a reduction in the taxable valuation for the Property, which shall be fixed for assessment purposes, below the amount of $1,243,440.00 (the "Minimum Actual Value"), through: (i) willful destruction of the Property, Improvements, or any part of either; (ii) a request to the assessor of Black Hawk County; or (iii) any proceedings, whether administrative, legal, or equitable, with any administrative body or court within the City, Black Hawk County, the State of Iowa, or the federal government. Company agrees to sign the agreement attached as Exhibit "B" at closing. 9. Tax Rebates. Provided that Company has completed the Improvements as set forth herein and has executed the Minimum Assessment Agreement as set forth in Section 8, City agrees to rebate property tax (with the exceptions noted below) as follows: Year One Year Two Year Three Year Four Year Five 50% rebate 50% rebate 50% rebate 50% rebate 50% rebate 3 for any taxable value over the January 1, 2013 value of $43,440. Rebates are payable in respect of a given year only to the extent that Company has actually paid general property taxes due and owing for such year. To receive rebates for a given year, Company must, within twelve (12) months after the tax payment due date, submit a completed rebate request to City on the form provided by or otherwise satisfactory to City. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500.00. This rebate program is not applicable to any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. 10. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 11. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Company. 12. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property prior to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. 4 13. Materiality of Company's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of Company to be performed is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for City to enter this Agreement. Company acknowledges that without such promises, covenants, representations, and warranties, City would not have entered this Agreement. Upon breach of any promise or covenant, or in the event of the incorrectness or falsity of any representation or warranty, City may, at its sole option and in addition to any other right or remedy available to it, terminate this Agreement and declare it null and void. 14. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight air courier service, by United States registered or certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means), and addressed: (a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at Attention: Brent Dahlstrom. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (1) business day following deposit for ovemight delivery to an overnight air courier service which guarantees next day delivery, (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. 15. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the City and Company nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 16. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 5 17. Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 18. Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 19. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 21. Entire Agreement. This Agreement, together with the Minimum Assessment Agreement attached hereto as Exhibit "B", constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. 22. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement as of the date first set forth above. [signatures on next page] 6 CITY OF WATERLOO, IOWA By: Ernest G. Clark, Mayor rTh Attest: Su y Schar4s, City Clerk CEDAR VALLEY WAREHOUSE, LLC By: Title: PERSONAL GUARANTY. The undersigned, being either an officer, shareholder, manager, or member of Company, hereby agree for themselves and their heirs, personal representatives, and assigns, to unconditionally guarantee to City, its successors and assigns, the full and prompt performance by Company, its successors and assigns, of all promises and covenants on the part of Company to be performed pursuant to the foregoing Agreement, including but not limited to the duties of indemnity set forth therein. Liability of guarantors hereunder is joint and several. Bred! Dahlstrom 7 EXHIBIT "A" Legal Description of the Property South Port Second Addition Lots 7, 8, and 9, City of Waterloo, Black Hawk County, Iowa. 1 EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of this (Q8 day of Qc-Arbt( , 2013, by and among the CITY OF WATERLOO, IOWA ("City"), Cedar Valley Warehouse, LLC ("Company"), and the COUNTY ASSESSOR of the City of Waterloo, Iowa ("Assessor"). WITNESSETH: WHEREAS, on or before the date hereof the City and Company have entered into a development agreement (the "Development Agreement") regarding certain real property, described in Exhibit "A" thereto, located in the City; and WHEREAS, it is contemplated that pursuant to the Development Agreement, the Company will undertake the development of an area ("Project") within the City and within the Airport Tax Increment Finance District; and WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the Company desire to establish a minimum actual value for the land and the building(s) pursuant to this Agreement and applicable only to the Project, which shall be effective upon substantial completion of the Project and from then until this Agreement is terminated pursuant to the terms herein and which is intended to reflect the minimum actual value of the land and buildings as to the Project only; and WHEREAS, the City and the Assessor have reviewed the preliminary plans and specifications for the improvements (the "Improvements") which the parties contemplate will be erected as a part of the Project. NOW, THEREFORE, the parties hereto, 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 Improvements by the Company, the minimum actual taxable value which shall be fixed for assessment purposes for the land and Improvements to be constructed thereon by the Company as a part of the Project shall not be less than $1,243,440.00 (the "Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Improvements will be substantially completed on or before the date that is seventeen (17) months from the date hereof. 2. The Minimum Actual Value herein established shall be of no further force and effect, and this Minimum Assessment Agreement shall terminate, on December 31, 2024. Nothing herein shall be deemed to waive the Company's rights under Iowa Code § 403.6, as amended, to contest that portion of any actual value assignment made by 1 the Assessor in excess of the Minimum Actual Value established herein. In no event, however, shall the Company seek or cause the reduction of the actual value assigned below the Minimum Actual Value established herein during the term of this Agreement. The City shall not unreasonably withhold its consent to permit the Company to contest its taxable valuations in full, commencing with the assessment of January 1, 2025. 3. This Agreement shall be promptly recorded by the City with the Recorder of Black Hawk County, Iowa. The City shall pay all costs of recording. 4. Neither the preambles nor provisions of this Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 5. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties, including but not limited to future owners of the Project property. CITY OF WATERLOO, IOWA By: Ernest G. Clark, Mayor By: t c_ Suzy Schares, City Clerk STATE OF IOWA ) ss. COUNTY OF BLACK HAWK CEDAR VALLEY WAREHOUSE, LLC By: Brent Dahlstrom, Mana By: , Manager On this rf-day of ®do) , 2013, before me, a Notary Public in and for the State of Iowa, 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 municipal corporation, 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 municipal corporation, and that said instrument was signed and sealed on behalf of said municipal corporation 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 municipal corporation by it and by them voluntarily executed. A•••"` •. • • SHEWE L CRISMAN COMMISSION NO.778700 MY «....f..,I ,-,.• EXPIRES Nota ublic 2 eliao& STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on 1/ IZOV> J1e.. , 2013 by Brent Dahlstrom and as Managers of Cedar Valley Warehouse, LLC. Ca -14. Sowte__ Notary Public CALI LYNN SORBE Commission Number 777870 My Commission Expires AriI8 2016 3 CERTIFICATION OF ASSESSOR The undersigned, having reviewed the plans and specifications for the improvements to be constructed and the market value assigned to the land upon which the improvements are to be constructed for the development, 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 subject to the development, upon completion of improvements to be made on it and in accordance with the Minimum Assessment Agreement, certifies that the actual value assigned to such land, building and equipment upon completion of the development shall not be less than One Million Two Hundred Forty Three Thousand Four Hundred Forty Dollars ($1,243,440) in the aggregate, until termination of this Minimum Assessment Agreement pursuant to the terms hereof. Assessor for Black Hawk County, Iowa \alo`aa3 Date STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on //42 2 , 2013 by Tami McFarland, Assessor for Black Hawk County, Iowa. 7/ Notary Public 1 idee s EBORAH L. BOECKMANN ' COMMISSION NO. 195788 MY CO MI SI • EXPIRES mror ort oel Ande) sdn Name IiII(IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII!1IIIII!jJiii;jiijjjiiiijiiiiiiiiiiiij111 ilii ilii Doc ID: 005398870012 Type: GEN Kind AGREEMENT Recorded: 02/10/2014 at 12:16:12 PM Fee Amt: $62.00 Page 1 of 12 Black Hawk County Iowa JUDITH A MCCARTHY RECORDER Fi1e2014_00015025 715 Mulberry Street Waterloo, Iowa 50703 (319) 291-4366 Address City Phone SPACE ABOVE THIS UNE FOR RECORDER DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of a3 , 2013, by and between Cedar Valley Warehouse, LLC (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal. B. Company is willing and able to finance and construct a building and related improvements on property located in the Airport Tax Increment Finance District. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree, as follows: 1. Purchase of Property. Company is purchasing the real property described on Exhibit "A" attached hereto (the "Property"). The purchase price for the Property is $271,582.00 (the "Purchase Price"). Company shall take all steps necessary or advisable to complete the purchase of the Property and to obtain marketable title thereto as promptly as possible. 2. Improvements by Company.. Company shall construct on the Property one industrial building of not less than 40,000 square feet, and.related improvements to the buildings and grounds (collectively, the "Improvements"). The Improvements shall be constructed in accordance with all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. It is 1 contemplated that the Improvements will have a total project cost of approximately $1,243,440. The Property, the Improvements, and all site preparation, and development -related work to make the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project".. 3. Grant for Land Acquisition; Mortgage. The City shall make an economic development grant (the "Grant") to the Company for the Project in an amount equal to the Purchase Price, i.e., $271,582.00, to be paid by City on Company's behalf to the seller at the time of closing on the Property purchase transaction. No later than such closing, Company shall execute and deliver to City a mortgage (the "Mortgage") to secure Company's contingent repayment obligations under Section 4 below. City will record the Mortgage in the public land records. Company shall be in default of the Mortgage if, among other terms of default stated therein, Company is in default of any Project Mortgage described in Section 6 below pursuant to the terms of such Project Mortgage. 4. Timeliness of Construction. The parties agree that Company's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to make the Grant to Company and that without said commitment City would not have done so. Measured from the date of approval of this agreement, Company must obtain a building permit and begin construction within four (4) months, and construction shall be completed within an additional seventeen (17) months. If Company has not, in good faith, begun the construction of the Improvements on the schedule stated above, this Agreement may be cancelled at the sole option of City, and 'Company must repay grant funds to City. If construction has not begun within the scheduled period but the development of the Project is still imminent, the City Council may, but shall not be required to, consent to an extension of time for the construction of the Improvements, and if an extension is granted but construction of the Improvements has. not begun within such extended period, Company must repay Grant funds to City. If construction has begun within the required period or any extended period and is stopped and/or delayed as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond the reasonable control of Company, the Projectcompletion schedule shall be tolled for a period of time equal to the period of such stoppage or delay, and thereafter if construction is not.completed within the allowed period of extension then this Agreement may be cancelled at the sole option of City. 5. Indemnity. Company agrees that it shall indemnify City and hold it harmless with respect to any demand, claim, cause of action, damage, or injury made, suffered, or incurred as a result of or in connection with the Project; Company's failure to carry on or complete same, or any lien, claim, charge, or encumbrance on or against the Property of any type or nature whatsoever that attaches to the Property by virtue of Company's ownership of same, other than permitted mortgages as described in Section 6, If City files suit to enforce the terms of this Agreement or the Mortgage and prevails in such suit, then Company shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees. Company's duties of indemnity pursuant to this 2 Section 5 shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. No Encumbrances; Limited Exception. Until completion of the Improvements, Company agrees that it shall. not create, incur, or suffer to exist any lien, encumbrance, mortgage, security interest, or charge on the Property, other than such mortgage or mortgages (a "Project Mortgage") as may be reasonably necessary to finance Company's completion of the Improvements and of which Company notifies City in advance of Company's execution of any such Project Mortgage. Company may not mortgage or encumber the Property or any part thereof for any purpose except in connection with financing of the Improvements, whether through a construction loan or permanent loan. City agrees to subordinate its Mortgage to any Project Mortgage. 7. Water and Sewer. Company will be responsible for extending water and sewer service to any location on the Property and for payment of any associated connection fees. 8. Minimum Assessment Agreement. Company acknowledges and agrees that it will pay when due all taxes and assessments, general or special, and all other lawful charges whatsoever levied upon or assessed or placed against the Property. Company further agrees that, prior to the date set forth in Section 2 of Exhibit "B", it will not seek or cause a reduction in the taxable valuation for the Property, which shall be fixed for assessment purposes, below the amount of $1,243,440.00 (the "Minimum Actual Value"), through: either; (1) willful destruction of the Property, Improvements, or any part of (ii) a request to the assessor of Black Hawk County; or (iii) any proceedings, whether administrative, legal, or equitable, with any administrative body or court within the City, Black Hawk County, the State of Iowa, or the federal government. Company agrees to sign the agreement attached as Exhibit "B" at closing. 9. Tax Rebates. Provided that Company has completed the Improvements as set forth herein and has executed the Minimum Assessment Agreement as set forth in Section 8, City agrees to rebate property tax (with the exceptions noted below) as follows: Year One Year Two Year Three Year Four Year Five 50% rebate 50% rebate 50% rebate 50% rebate 50% rebate 3 for any,taxable value over the January 1, 2013 value of $43,440. Rebates are payable .in respect of a given year only to the extent that Company has actually paid general property taxes due and owing for such year. To receive rebates for a given year, Company must, within twelve (12) months after the tax payment due date, submit a completed rebate request to City on the form provided by or otherwise satisfactory to City. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500.00. This rebate program is not applicable to any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. 10. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 11. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Company. 12. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property prior to.completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. . 4 13. Materiality of Company's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of Company to be performed is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for City to enter this Agreement. Company acknowledges that without such promises, covenants, representations, and warranties, City would not have entered this Agreement. Upon breach of any promise or covenant, or in the event of the incorrectness or falsity of any representation or warranty, City may, at its sole option and in addition to any other right or remedy available to it, terminate this Agreement and declare it null and void. 14. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by ovemight air courier service, by United States registered or certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means), and addressed: (a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at Attention: Brent Dahlstrom. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (1) business day following deposit for ovemight delivery to an overnight air courier service which guarantees next day delivery, (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. 15. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the City and Company nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 16. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 5 17. Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 18. Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 19. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 21. Entire Agreement. This Agreement, together with the Minimum Assessment Agreement attached hereto as Exhibit "B", constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. 22. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement as of the date first set forth above. [signatures on next page] 6 CITY OF WATERLOO, IOWA CEDAR VALLEY WAREHOUSE, LLC By:-�--� Emest G. Clark, Mayor Title: Attest" Suzy Sch. res, City Clerk PERSONAL GUARANTY. The undersigned, being either an officer, shareholder, manager, or member of Company, hereby agree for themselves and their heirs, personal representatives, and assigns, to unconditionally guarantee to City, its successors and assigns, the full and prompt performance by Company, its successors and assigns, of all promises and covenants on the part of Company to be performed pursuant to the foregoing Agreement, including but not limited to the duties of indemnity set forth therein. Liability of guarantors hereunder is joint and several. Brent Dahlstrom 7 EXHIBIT 0A" Legal Description of the Property South Port Second Addition Lots 7, 8, and 9, City of Waterloo, Black Hawk County, Iowa. 1 EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of this c8 day of QC- nber , 2013, by and among the CITY OF WATERLOO, IOWA ("City"), Cedar Valley Warehouse, LLC ("Company"), and the COUNTY ASSESSOR of the City of Waterloo, Iowa ("Assessor"). WITNESSETH: WHEREAS, on or before the date hereof the City and Company have entered into a development agreement (the "Development Agreement") regarding certain real property, described in Exhibit "A" thereto, located in the City; and WHEREAS, it is contemplated that pursuant to the Development Agreement, the Company will undertake the development of an area ("Project") within the City and within the Airport Tax Increment Finance District; and WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the Company desire to establish a minimum actual value for the land and the building(s) pursuant to this Agreement and applicable only to the Project, which shall be effective upon substantial completion of the Project and from then until this Agreement is terminated pursuant to the terms herein and which is intended to reflect the minimum actual value of the land and buildings as to the Project only; and WHEREAS, the City and the Assessor have reviewed the preliminary plans and specifications for the improvements (the "Improvements") which the parties contemplate will be erected as a part of the Project. NOW, THEREFORE, the parties hereto, 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 Improvements by the Company, the minimum actual taxable value which shall be fixed for assessment purposes for the land and Improvements to be constructed thereon by the Company as a part of the Project shall not be Tess than $1,243,440.00 (the "Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Improvements will be substantially completed on or before the date that is seventeen (17) months from the date hereof. 2. The Minimum Actual Value herein established shall be of no further force and effect, and this Minimum Assessment Agreement shall terminate, on December 31, 2024. Nothing herein shall be deemed to waive the Company's rights under Iowa Code § 403.6, as amended, to contest that portion of any actual value assignment made by 1 the Assessor in excess of the Minimum Actual Value established herein. In no event, however, shall the Company seek or cause the reduction of the actual value assigned below the Minimum Actual Value established herein during the term of this Agreement. The City shall not unreasonably withhold its consent to permit the Company to contest its taxable valuations in full, commencing with the assessment of January 1, 2025. 3. This Agreement shall be promptly recorded by the City with the Recorder of Black Hawk County, Iowa. The City shall pay all costs of recording. 4. Neither the preambles nor provisions of this Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 5. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties, including but not limited to future owners of the Project property. CITY OF WATERLOO, IOWA By: By: CEDAR VALLEY WAREHOUSE, LLC By: Ernest G. Clark, Mayor : r nt Dahlstrom, Manager Suzy Schar4s, City Clerk STATE OF IOWA ) ss. COUNTY OF BLACK HAWK ) By: , Manager On this O day of 6-4,A) , 2013, before me, a Notary Public in and for the State of Iowa, personally appeared Emest 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 municipal corporation, 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 municipal corporation, and that said instrument was signed and sealed on behalf of said municipal corporation 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 municipal corporation by it and by them voluntarily executed. 4dht Nota ili Public 2 STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on f 6vtriiaern-1" , 2013 by Brent Dahlstrom and as Managers of Cedar Valley Warehouse, LLC. Notary Public CALI LYNN SORBE Commission Number 777870 My Commission E1xxpires 3 CERTIFICATION OF ASSESSOR The undersigned, having reviewed the plans and specifications for the improvements to be constructed and the market value assigned to the land upon which the improvements are to be constructed for the development, 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 subject to the development, upon completion of improvements to be made on it and in accordance with the Minimum Assessment Agreement, certifies that the actual value assigned to such land, building and equipment upon completion of the development shall not be Tess than One Million Two Hundred Forty Three Thousand Four Hundred Forty Dollars ($1,243,440) in the aggregate, until termination of this Minimum Assessment Agreement pursuant to the terms hereof. �W�rv�i,`c`c1 ,c1\ Assessor for Black Hawk County, Iowa \\p�' Date STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on ///024 , 2013 by Tami McFarland, Assessor for Black Hawk County, Iowa. Notary Public 1..,.A: 4,o DEBORAH L. BOECKMANN MY COMMISSION NO. 185768 MY COMMI$SIO �IIRES 1