HomeMy WebLinkAboutCedar Valley Tech Works, Inc-1/30/2012Please return this copy to:
City Clerk & Finance Department
715 Mulberry Street
Waterloo, IA 50703
DEVELOPMENT AGREEMENT
By and Among
CITY OF WA I ERLOO, IOWA
and
CEDAR VALLEY TECH WORKS, INC.
and
FDP WTC, L.L.C.
TABLE OF CONTENTS
DEVELOPMENT AGREEMENT
ARTICLE I. DEFINITIONS 2
Section 1.1. Definitions 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 6
Section 2.3. Representations and Warranties of Developer 8
ARTICLE III. PRELIMINARY ACTIONS. 11
Section 3.1. Reserved 11
ARTICLE IV. CONSTRUCTION OF FDP IMPROVEMENTS BY DEVELOPER 11
Section 4.1. Construction of FDP Improvements 11
Section 4.2. Construction Plans 11
Section 4.3. Commencement and Completion of Construction 12
Section 4.4. Certificate of Completion 12
ARTICLE V. SECURITY PROVISIONS 13
Section 5.1. Execution of Escrow Agreement 13
Section 5.2. Execution of Mortgage or Other Collateral 13
Section 5.3. Release of Collateral; Additions to Same 14
Section 5.4 Receipt of Additional Tax Increment 15
Section 5.5 Interest in Collateral 15
ARTICLE VI. CONSTRUCTION OF TECH I BUILDING IMPROVEMENTS 15
Section 6.1. Construction of Tech I Building Improvements 15
Section 6.2. Commencement and Completion of Construction 15
ARTICLE VII. CITY GRANT 16
Section 7.1. City Grant 16
Section 7.2. Source of City Grant Funds Limited 16
Section 7.3.
Section 8.1.
Section 8.2.
Section 8.3.
ARTICLE IX.
Section 9.1.
ARTICLE X.
Section 10.1
Section 10.2
ARTICLE XI.
Section 11.1
Section 11.2
Section 11.3
Section 11.4
Section 11.5
Section 11.6
ARTICLE XII.
Closing; Conditions Precedent to Funding by City 16
Covenants of TechWorks 18
Covenants of Developer 19
Execution of Assessment Agreements 21
INDEMNIFICATION 22
Release and Indemnification Covenants 22
ASSIGNMENT OR TRANSFER 23
. Status of Developer; Transfer of Substantially All Assets 23
. Status of TechWorks; Transfer of Substantially All Assets 24
DEFAULT AND REMEDIES 24
. Events of Default Defined 24
. Remedies on Default 25
. Remedies on Default by City 26
. No Remedy Exclusive 26
. No Implied Waiver 26
. Agreement to Pay Attorneys' Fees and Expenses 26
MISCELLANEOUS 27
Section 12.1. Notices 27
Section 12.2. Governing Law 28
Section 12.3. Entire Agreement 28
Section 12.4. Severability 28
Section 12.5. Performance by City 28
Section 12.6. No Third Party Beneficiaries 28
Section 12.7. Interpretation 29
Section 12.8. Amendment; Waiver 29
Section 12.9. Successors and Assigns 29
Section 12.10. Assignment of Benefits 29
Section 12.11. Agreement 29
Section 12.12. Termination Date 29
EXHIBITS
Exhibit A-1 - FDP Property
Exhibit A-2 - Tech I Building Property
Exhibit B-1 - FDP Improvements
Exhibit B-2 - Tech I Building Improvements
Exhibit C - Minimum Assessment Agreement
Exhibit D - Additional TIP Properties
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is made as of the -<-5e3day of
a , 2012, by and among the CITY OF WA 1'ERLOO, IOWA, a municipal
corporationrith 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 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 an economic
development grant to Developer, and Developer and TechWorks have agreed to pay, or
cause to be paid, certain projected real estate taxes by execution of a Minimum
Assessment Agreement; and
WHEREAS, the Developer anticipates obtaining additional financing for the
development of the FDP Improvements and the FDP Property through the use of new
markets tax credits and other financing instruments; and
WHEREAS, the parties desire to memorialize their understandings with respect to
the foregoing project activities and other 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
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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 definitions 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 TIF 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" 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 Agreement and all Exhibits hereto, as the same may be
from time to time modified, amended or supplemented.
Assessment Agreement means the Minimum Assessment Agreement, substantially
in the form of the Agreement contained in Exhibit C attached hereto and hereby made a
part of this Agreement, or in the case of TechWorks an agreement in form and content
acceptable to the City, by and between the City and each of the Developer, and
TechWorks, and the Assessor, entered into pursuant to Section 8.3 of this Agreement.
Assessor's Minimum Actual Value means the agreed minimum actual value of (i)
the FDP Improvements and the FDP Property, and (ii) the Tech I Building and the Tech I
Building Property, as applicable, for calculation and assessment of ad valorem real
property taxes, as set forth in the applicable Assessment Agreement.
CDE Lender means one or more qualified lenders, each of which may make a
"qualified low income investment" in Developer, which loans will be repaid from the
proceeds of the CDE Lender's "qualified low income community investment loans" in
Developer as part of the New Markets Tax Credit Transaction, and any lender that makes
a bridge loan to the Developer, which loan will be repaid from the proceeds of the CDE
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Lender's qualified low income community investment loans.
CDE Lender Loan Agreement means one or more loan agreements by and
between or among, a CDE Lender and the Developer, pursuant to which the CDE Lender
will make one or more loans to the Developer to finance the construction of the FDP
Improvements.
City means the City of Waterloo, Iowa.
City Bonds mean the general obligation bonds or notes to be issued by the City to
fund the City Grant to the Developer, which shall be limited to a principal amount of
approximately $12,750,000.
City 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 remaining after the payment of all normal and
customary bond issuance costs are paid.
Closing Date means September 30, 2012, or such other date as the parties hereto
may agree upon in writing.
Code means the Code of Iowa, 2011, as amended.
Collateral means the security instruments provided to the City by the Developer,
under Section 5.2 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 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.
Deere means Deere & Company, a Delaware corporation, and its successors and
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assigns.
Developer means FDP WTC, L.L.C., an Iowa limited liability company, and its
successors and assigns.
Developer Affiliate means FDP DC, Inc., an Iowa corporation, and its successors
and assigns.
Escrow Agreement means the agreement described in Section 5.1 hereof.
Event of Default means any of the events described in Section 11.1 of this
Agreement.
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 Mortgage means one or more Mortgages granted to the CDE Lender to
secure the qualified low income loans made pursuant to the CDE Lender Loan
Agreement or such other agreements relating to the New Markets Tax Credit Transaction,
or such other agreement 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 CDE 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.
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.
New Markets Tax Credit Transaction means the making of one or more loans or
equity investments by the CDE Lender that constitute "qualified low-income community
investments" (as defined in Section 45D of the Internal Revenue Code and the Treasury
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Regulations issued thereunder) for purposes of obtaining new Markets tax credits for the
benefit of the Developer and the construction of the FDP Improvements.
State means the State of Iowa.
Substantial Completion or Substantially Complete means the date on which the
Developer's 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 111. 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
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 the TechWorks Campus, and Jefferson Street
extended to River Drive.
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,
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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 WARRANTIES
Section 2.1. Representations and Warranties of the City. The City makes the
following representations and warranties:
(a) The City is a municipal corporation organised 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.
(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
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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
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 thereof, 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
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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 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
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 Developer substantially completes
construction of the FDP Improvements, barring Unavoidable Delays or unavailability of
funding.
(m) TechWorks would not undertake its obligations under this Agreement
without the payments by the City of the City Grant, being made to Developer 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
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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, reorganisation 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
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 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 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 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
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of this Agreement.
(h) The financing 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
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 FDP Improvements.
(1) Developer expects that, subject to any Unavoidable Delays, the FDP
Improvements will be substantially completed by December 31, 2013, subject to the
issuance of the City Bonds and the receipt of the City Grant by the Developer.
(m) Developer would not undertake its obligations under this Agreement
without the payment by the City of the City 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.
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ARTICLE III. PRELIMINARY ACTIONS.
Section 3.1. Reserved.
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, Developer (or the
Developer Affiliate) may form one or more Affiliates for the purpose of consummating a
New Markets Tax Credit Transaction, which may include historic tax credits, in
connection with the construction of the FDP Improvements. In furtherance of such
transaction, the Developer may transfer the FDP Property to such Affiliate, 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
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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
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 December 31, 2013 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 substantial construction of the FDP Improvements has been completed, 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
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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.
ARTICLE V. SECURITY PROVISIONS
Section 5.1. Execution of Escrow Agreement. To the extent agreed upon by the
CDE Lender and Developer, on or before the Closing Date, the Developer, City, the CDE
Lender, an escrow agent, and such other parties as they consider appropriate, shall
execute and enter into an agreement ("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 City Grant and such other proceeds of the
construction financing obtained by the Developer (including but not limited to that
portion of the funds obtained through the New Market 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. The parties intend that the
proceeds held under the Escrow Agreement on the Closing Date shall be sufficient,
without further reinvestment or the deposit of additional proceeds, to complete the
construction of the FDP Improvements in accordance with the Construction Plans,
including reasonable contingencies for change orders and other customary matters.
Section 5.2. Execution of Mortgage or Other Collateral. (a) To the extent, and in
the form, permitted by the CDE Lender, in its sole and absolute discretion, on or before
the 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 CDE 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
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terminate in accordance with Section 5.3 below.
(b) On the Closing Date, the fair market value of the Collateral shall be not less
than $9,400,000, or such other amount as may 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 5.3, including all appraisal costs, and shall hold the City harmless
therefrom.
Section 5.3. Release of Collateral; Additions to Same. The parties 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 that is not expected to be paid by the Tax
Increment collected by the City (a) under the Assessment Agreement with the Developer,
(b) in respect of all new assessed value added as a result of new construction on the
Additional 1'11i' Properties, and (c) 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 during the
following fiscal year, which shall include (i) 100% of the Tax Increments to be collected
with respect to the FDP Property, (ii) 100% of the Tax Increments to be collected with
respect to any and all of the Additional TIE Properties that are then subject to a minimum
assessment agreement between the City and the owner of the Additional TIF Property,
net of any incentives or costs incurred as described in (iv) below, (iii) 50% of the Tax
Increment collected above the valuations of January 1, 2011 for all parcels owned by
Deere in the Urban Renewal Area, and (iv) the "net" amount 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. For purposes of the preceding sentence,
the "net" amount of Tax Increment shall mean the amount remaining and available to the
City after the payment or reimbursement of any incentives paid or costs incurred by the
City with respect to the development of such Additional TIF 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 (i), (ii), (iii) and (iv) above is sufficient to pay an
increased amount of the debt service on the City Bonds in the next fiscal year and in
future fiscal years for properties subject to a minimum assessment agreement. At any
time the City may request that the 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
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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.
Section 5.4 Receipt of Additional Tax Increment. On or prior to the issuance of
the City Bonds, the City, Developer and TechWorks agree they shall enter into an
agreement, or amend this Agreement to reflect the fact that in the event that, as a result of
the development provided by the FDP Improvements and the Additional TIF Properties,
the City receives Tax Increment in excess of the amount needed to pay all debt service on
the City Bonds, net of any incentives and payments made as described in Section 5.3, the
Developer and TechWorks shall each be entitled to receive, on an annual basis, a
percentage of such additional Tax Increment as mutually agreed upon by the City, the
Developer and Techworks. The Developer and TechWorks shall use such funds for
tenant improvements to their subject developments.
Section 5.5 Interest in Collateral. On or before the 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 the CDE 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 and the availability of funding, TechWorks shall use reasonable
efforts to cause construction of the Tech I Building Improvements to be undertaken and
completed within four (4) years after the Developer substantially completes construction
of the FDP Improvements, 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 Tech I Building Improvements to be constructed or provided
by TechWorks shall be in conformity with the Construction Plans.
Until construction of the Tech I Building Improvements has been completed,
TechWorks shall make such reports to the City , in such details and at such times as may
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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. CITY GRANT
Section 7.1. City Grant. For and in consideration of the obligations being
assumed by the Developer and TechWorks 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 City Grant to Developer. The City
Grant shall be disbursed to the Escrow Agent (as defined in Section 5.1 above) , for the
benefit of the Developer, in one installment on the Closing Date, subject to the provision
of Section 7.3 hereof. Proceeds of the City Grant shall be used by Developer solely and
only for the purposes of paying costs of constructing the FDP Improvements.
Section 7.2. Source of City Grant Funds Limited. The City Grant shall be payable
solely and only from the proceeds of the City Bonds, 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 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 and make the City 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,
including the holding of all required public hearings relating to the same.
Section 7.3. Closing; Conditions Precedent to Funding by City.
(a) Funding by the City of the City Grant on the Closing Date shall be deemed
an agreement of the parties that the conditions of closing shall have been satisfied or
waived. If the conditions set forth in this Section are not satisfied at the Closing Date,
this Agreement shall terminate unless a new Closing Date is established by amendment to
this Agreement. The termination of this Agreement shall be the sole remedy available to
either City or Developer if, for whatever reason, a condition set forth in this Section is not
satisfied at the Closing Date, it being understood that each party shall nonetheless incur
costs and liabilities prior to the Closing Date for which they alone are responsible. The
City and Developer each expressly assume all responsibility for the costs and liabilities
they may each so incur prior to the Closing Date, 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 City Grant, is
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subject to completion and satisfaction of certain separate City Council actions and
required legal proceedings relating to the issuance of the City Bonds, including the
holding of a public hearing on the same, and the approval of the Collateral and Escrow
Agreement. Specifically, the closing of the transaction contemplated by this Agreement
and all the obligations of City and Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of each of the following conditions precedent:
(i) The representations and warranties made by Developer in Section
2.3 shall be true and correct as of the 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 FDP Property necessary for immediate development and
construction of the FDP Improvements.
(iii) The Developer and TechWorks each shall be in material compliance
with all the terms and provisions of this Agreement;
(iv) The City shall have completed the sale of the City Bonds 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
FDP Improvements;
(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 FDP Improvements in conformance with the Construction Plans;
(vii) Execution and recording of the Assessment Agreement between the
City and the Developer pursuant to Section 8.3 of this Agreement;
(viii) The City Council shall have approved the Collateral to be delivered
to the City under Section 5.2 hereof, and the form, execution and delivery of the
Escrow Agreement;
(ix) Execution and delivery to the City of the Mortgage or other
Collateral required under Section 5.2 of this Agreement;
(x) Execution by the Developer, City and all other parties of the Escrow
Agreement required under Section 5.1 of this Agreement;
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(xi) Execution by TechWorks and Deere of an agreement, containing
terms and provisions reasonably acceptable to the City, relating to the construction
by Deere of the John Deere Tractor and Engine Museum on property owned by
Deere adjacent to the Tech I Building Property;
(xii) Execution by TechWorks and the Developer of an agreement,
containing terms reasonably acceptable to the City, relating to the operation and
development of the [Tech I/Tech II Building];
()dii) Receipt by the City of legal opinions rendered on behalf of the
Developer and TechWorks, in the forms reasonably requested by the City; and
(xiv) There has not been a substantial change for the worse in the financial
resources and ability of the Developer, or a substantial decrease in the financing
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:
(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
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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 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, fmancial 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.
(f) On or before the 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 fmancing 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:
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(a) The Developer will maintain, preserve and keep its properties (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 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.
(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, financial 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 certificationand as the first day of each of the
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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 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.
(g) An Affiliate of the Developer, as owner, agrees to convey by bill of sale to
the City, ownership of the existing brown Courier warehouse as referenced in Section 3
of that certain development agreement between the City and Lee Enterprises dated
August 18, 2005 as assigned by Lee Enterprises to FDP OC, L.L.C., upon written request
of the City, at no cost, for the purpose of enabling the City to move the same at its cost
and expense to another location for development by other parties. For purposes of
clarification, said conveyance is of said building/warehouse only and not of the
underlying land. The foregoing right may be exercised by the City at any time prior to
September 30, 2012. In the event that the City does not exercise its rights as set forth
above, prior to the demolition of the brown Courier warehouse, the Developer shall cause
notice to be provided to the City indicating that the building will be demolished with 60
days of receipt of such notice. The City shall, upon receipt of such notice have the right
to exercise its right to removal prior to the scheduled demolition date. Upon exercise of
the option herein by the City, said Affiliate of the Developer (namely FDP OC, L.L.C.) is
released of any obligation to replace the walls of said warehouse/building with a brick
exterior/brick facade as required under said development agreement; provided, however
the Affiliate stated above shall not be released from its obligations set forth in the
development agreement if the City does not exercise the right set forth in this paragraph.
Section 8.3. Execution of Assessment Agreements. (a) The Developer and
TechWorks (and the holders of any applicable First Mortgages, including the CDE
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,
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
CDE 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, 2014 of not less than
Fifteen Million Five Hundred Thousand Dollars ($15,500,000) for the completed
improvement (such minimum actual value at the time applicable is herein referred to as
the "Assessor's Minimum Actual Value").
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(c) As described in Section 8.2(0, TechWorks shall enter into an Assessment
Agreement prior to commencing any construction of the Tech I Building Improvements,
or any separate phase of 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 or 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
22
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
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. 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 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 CDE Lender, the Developer represents and agrees that prior to
the Termination Date, the Developer will not transfer 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) to the CDE Lender, or
assignee thereof; (ii) the transferee partnership, corporation, limited liability company or
individual assumes in writing all of the obligations of the Developer or its Affiliate under
this Agreement and the Assessment Agreement; and (iii) 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
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clauses (ii) or (iii) to the contrary, if the CDE Lender is the successor developer, the CDE
Lender shall not be required to provide any additional security to the City.
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:
(a) Failure by the Developer or TechWorks to cause the construction of the
FDP Improvements or Tech I Building Improvements, respectively, to be commenced
and completed pursuant to the terms, conditions and limitations of this Agreement;
(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:
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(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.
Provided, however, the City shall not declare an event stated above as an Event of
Default until such time as the CDE Lender has failed to exercise its right to cure such
Event of Default, if any.
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 after (except in the case of an Event of
Default under subsections (f) or (g) of said Section 11.1) the 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
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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) 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, and the City may take any action, including any legal action, it considers
necessary or desirable to recover such amount from Developer; or
(c) 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 impair the rights of
the CDE Lender or adversely impact the New Markets Tax Credit Transaction.
Section 11.3. Remedies on Default by City. Whenever any Event of Default
referred to in Section 11.1(e) 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 attomeys and such other expenses as may be reasonably and
26
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 final, 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:
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
27
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 all prior offers, agreements,
arrangements and contracts, whether oral or written, concerning the subject matter hereof.
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.
28
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.
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 CDE 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 are paid in full.
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IN WITNESS WHEREOF, the parties have set their hands and seals the day and
year above first written.
CI WA 1hRLOO, IOWA
AlLEST:
STATE OF IOWA
) SS
COUNTY OF BLACK HAWK )
� b
On this day of cru, , 2012, before me a Notary
Public in and for said State, personally appeared E est G. Clark and Suzy Schares, to me
personally known, who being duly sworn, did sa .s at 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.
ayor
30
tary ' ublic in and for the to of Iowa
*Agtk'
By:
STATE OF IOWA )
) SS
COUNTY OF BLACK HAWK )
CEDAR VALLEY TECH WORKS,
INC.
Steven J. Dust, President
On this day of , 2012, 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
31
STA 1'B OF
COUNTY OF
) SS
FDP WTC, L.L.C.
By:
Its:
On this day of , 2012, 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
32
EXIIIBIT A-1
LEGAL DESCRIPTION OF FDP PROPERTY
33
EXHIBIT A-2
LEGAL DESCRIPTION OF TECH I BUILDING PROPERTY
34
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
• An integrated solar and small wind renewable energy generation system
designed to maximize energy production for the Tech I Building and The Green @
TechWorks Campus.
The FDP Improvements include the renovation and reconfiguration of the parking
lots surrounding the Tech I Building and the FDP Property and all landscaping relating
thereto and such other improvements in the TechWorks Campus area as permitted and
agreed upon.
35
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.
36
Prepared by:
Return to:
EXHIBIT C
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENT AGREEMENT, is dated as of OJr i
2012, by and between the City of Waterloo, Iowa, a municipal corporation (the "C
and FDP WTC, L.L.C., an Iowa limited liability company (the "Developer").
WITNESSETH:
WHEREAS, the City and Developer are parties to a Development Agreement
dated as of ,y p.;r , 2012 ("Development Agreement"), regarding certain real
property located in the ity, 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) (together,
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.
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:
37
1. Upon substantial completion of construction of the above -referenced
Minimum Improvements, but no later than January 1, 2014, 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, 20 (the
"Termination Date"). 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) — (iv) of Section 5.3 of the Development
Agreement in any year is insufficient to pay the scheduled payments of principal and
interest on the City Bonds, 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 an
aggregate amount necessary to pay when due the principal of and interest on the City
Bonds, 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. In
such event, the Developer shall pay any such shortfall amount promptly upon written
demand from the City.
38
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 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
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.
39
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.
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 a title opinion to City 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.
40
IN WITNESS WHEREOF, the parties have set their hands and seals the day and
year above first written.
CITYF WATERLOO, IOWA
Mayor
ATTEST:
STATE OF IOWA
) SS
COUNTY OF BLACK HAWK )
1
On this 2J " day of , 2012, before mea Notary
Public in and for said State, personally appeared est 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 ac d deed of said Municipality by it
voluntarily executed.
41
ublic in . : for the State o owa
Ar9\
N),
FDP WTC, L.L.C.
By:
Its:
STATE OF )
) SS
COUNTY OF )
On this day of , 2012, 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
42
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
STATE OF )
) SS
COUNTY OF )
On this day of , 2012, 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 swom, 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
43
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 Fifteen Million Five Hundred
Thousand Dollars ($15,500,000), 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.
Notary Public in and for the State of Iowa
Date
44
ATTACHMENT 1 TO MINIMUM ASSESSMENT AGREEMENT
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
45
EXHIBIT D
DESCRIPTION OF ADDITIONAL IIF 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
5. All parcels owned by Deere in the Urban Renewal Area; provided, however, that
no minimum assessment agreement with Deere shall be required with respect to
any such parcels, and provided further that 50% of the Tax Increment collected
above the valuations of January 1, 2011 for all parcels owned by Deere in the
Urban Renewal Area, shall be taken into account for purposes of Section 5.3.
00810110-1\11310-092
46