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HomeMy WebLinkAboutCon-Trol Development Agreement & Minimum Assessment - 4/6/2020Preparer Information Christopher S. Wendland, PO Box 596, Waterloo, Iowa 50704 (319) 234.5701 Name Address City Phone DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of Phk , 2020, by and between 4F1 Waterloo, LLC (the "Developer"), Material Control Systems, Inc., d/b/a Con -Trot Container Systems (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal, and the City further believes that the project is in the vital and best interests of the City and that the project and such incentives are in accordance with the public purposes and provisions of applicable State and local laws and requirements under which the project has been undertaken and is being assisted. B. Developer is willing and able to finance and undertake construction and/or rehabilitation of buildings and related improvements on property located in the Northeast Industrial Area Urban Renewal and Redevelopment Plan area and legally described on Exhibit "A" attached hereto (the "Property"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Sale of Property; Title. Subject to the terms hereof, City shall convey the Property to Developer for the sum of $1.00 (the "Purchase Price") within thirty (30) days after approval of this Agreement by City, which conveyance shall occur no later than May 29, 2020 (the "Closing"). Conveyance shall be by special warranty deed, free and clear of all encumbrances arising by or through City except: (a) easements, conditions and restrictions of record as set forth in an amended Deed of Dedication as provided in DEVELOPMENT AGREEMENT Page 2 Section 2 (b) future real estate real property taxes and assessments arising after the date of Closing; (c) general utility and right-of-way easements serving the Property and of record; and (d) restrictions imposed by the City zoning ordinances and other applicable law. Notwithstanding the foregoing, City shall have no duty to convey title to Developer until Developer delivers to City reasonable and satisfactory proof of Developer's financial ability to undertake and carry on the Project (defined below), which may take the form of a lending commitment letter. Developer shall, at its own expense, prepare an updated abstract of title, or in lieu thereof Developer may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to Developer, and if City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Developer (such time period not to exceed thirty (30) days), Developer may terminate this Agreement, and shall have no obligation to accept title to the Property or otherwise perform under this Agreement. City shall promptly provide any title documents it has in its possession, including any abstracts, to assist in title preparation. 2. Improvements by Developer. Developer shall construct a building consisting of approximately 176,980 square feet, and related landscaping, sidewalks, signage and parking improvements (collectively, the "Improvements"). The Improvements shall be constructed in accordance with all applicable City, state and federal building codes, storm water regulations, and the Deed of Dedication for the Northeast Industrial Park Plat. It is contemplated that the value added by the Improvements will, upon completion, result in an assessed value of no less than $11,500,000.00. The Property, the Improvements, and all site preparation and development -related work to make the Property usable for Developer's or Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". Developer will be responsible to pay all applicable Project permitting fees, including but not limited to building permit fees, inspection fees (e.g., foundation, building, plumbing, heating, electrical, and plan reviews) and site plan amendment fees. City will waive the connection charges for water and sewer service. 2.1. City Activities to Aid Development. A. City agrees to amend the Deed of Dedication for the Northeast Industrial Park Plat as set forth on Exhibit "C" attached hereto, to modify the requirements for outside storage yards and related screening. In addition, if City requires any offsite infrastructure improvements, such as turn lanes, in connection with the Project, City will undertake such improvements at its sole expense and will not levy a special assessment against the Property to recover such expenses. B. Subject to the terms of this paragraph, the City of Waterloo will provide a grant of $1,515,000.00 to assist in building an improved "pad -ready" building site, suitable for new construction and permanent structures. City will pay the grant to the fee owner of the Property, whether it be Developer or Company, as appropriate. The grantee agrees to use the grant funds to defray DEVELOPMENT AGREEMENT Page 3 Project costs related to correction of poor soil conditions that have been identified, including related expenses for associated general conditions, design costs, construction fees, and development fees. Payment will be made in two equal installments, with the first installment to be paid upon the last to occur of (1) verified completion of all foundation work or (2) September 1, 2020, and the second installment to be paid upon the last to occur of (x) March 31, 2021, or (y) thirty (30) days after issuance of a certificate of occupancy for the Improvements. By mutual written agreement of City's Community Planning and Development Director, Chief Financial Officer and Company, City may pay up to an additional $30,000 in grant funds, but any additional grant amount above $30,000.00 will require approval by the Waterloo City Council. C. The City shall provide, at its sole expense, a topographical survey of the Property and a preliminary plat and final plat (in substantial accordance with the site plan), subdividing the Property from adjacent property to be retained by the City. In connection with platting, the City may declare certain covenants and restrictions that are consistent with those applicable to adjacent subdivisions previously platted by the City. 3. Timeliness of Construction; Possibility of Reverter. The parties agree that Developer's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Developer and that without said commitment, the City would not do so. Developer must begin construction of the Improvements before July 1, 2020, and must substantially complete said Improvements by August 31, 2021. If Developer has not, in good faith, begun the construction of the Improvements on the schedule stated above, then title to the Property shall revert to the City, except as provided in this Agreement; provided, however, that if construction has not begun within the stated period but the development of the Project is still imminent, the City's Community Planning and Development Director may, but shall not be required to, consent to an extension of time of up to six (6) months for the construction of the Improvements, and if an extension is granted but construction of the Improvements has not begun within such extended period, then the title to the Property shall revert to the City after the end of said extended period. Any further time extensions will require consent of the City Council. If development has commenced within the required period, as the same may be extended, and is subsequently stopped or delayed as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond the reasonable control of Developer, the requirement that construction be completed by the Project Completion Date shall be tolled for a period of time equal to the period of such stoppage or delay. If, after commencement of construction, construction is not completed by the Project Completion Date, as the same may be extended, then Developer shall buy out City's right of reverter of title by paying to City an amount equal to the fair market value of the Property in an unimproved condition as determined by mutually agreeable appraisal or the average of each party's appraised value. Said buy- out price shall be paid within thirty (30) days after determination of the fair market value. DEVELOPMENT AGREEMENT Page 4 4. Reverter of Title; Indemnity. In the event of any reverter of title, Developer agrees that it shall, at its own expense, promptly execute all documents, including but not limited to a special warranty deed, or take such other actions as the City may reasonably request to effectuate said reverter and to deliver to City title to the Property that is free and clear of any lien, claim, or encumbrance arising by or through Developer. Developer shall pay in full, so as to discharge or satisfy, all liens, claims, charges, and encumbrances against the Property. Developer further agrees that it shall indemnify City and hold it harmless with respect to any lien, claim, charge, or encumbrance on or against the Property or any type or nature whatsoever that attaches to the Property by virtue of Developer's ownership of same. Notwithstanding the foregoing, Developer shall have no liability or responsibility to release any easements for utilities on the Property or other easements in furtherance of the development thereof. If City files suit to enforce the terms of this Agreement and prevails in such suit, then Developer shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees. Developer's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason for a period of one year. 5. Property Tax Rebates. Provided that Developer has completed the Improvements as set forth herein and has executed the Minimum Assessment Agreement as set forth in Section 10, and subject to annual appropriation by the city council, the City agrees to rebate property taxes (with the exceptions noted below) as follows: 50% rebate for each of Years One through Eight, inclusive, for any taxable value over the January 1, 2018 value of $102,270.00. Rebates are payable in respect of a given year only to the extent that Developer has actually paid general property taxes due and owing for such year and the city council has made an appropriation for the payment of rebates. To receive rebates for a given year, Developer must, within twelve (12) months after the tax payment due date, submit a completed rebate request to City on the form provided by or otherwise reasonably satisfactory to City, otherwise Developer will forfeit its right to a rebate for that year in the City's discretion. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500. This rebate program is not applicable to any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. The first year in which a rebate may be given ("Year One") shall be the first full year for which the assessment is based upon the completed value of the Improvements and not a prior year for which the assessment is based solely upon the value of the land or upon the value of the land and a partial value of the Improvements, due to partial completion of the Improvements or a partial tax year. DEVELOPMENT AGREEMENT Page 5 The City shall extend the rebate for two additional years by up to 35% to cover the cost of qualifying additional infrastructure, which includes the cost of capping and replacing existing water line stubs, the cost of placing requested water pits and meters at the water main tap, and the cost of re -spreading stockpiled soil, in a total amount not to exceed $240,000.00. If the rebate is extended, the parties will execute an amendment of the Minimum Assessment Agreement (see Section 10) to reflect the terms of such extension. 6. No Encumbrances; Limited Exception. Until completion of the Improvements, Developer agrees that it shall not create, incur, or suffer to exist any lien, encumbrance, mortgage, security interest, or charge on the Property, other than such mortgage to finance Developer's completion of the Improvements and of which Developer notifies City in advance of Developer's execution of any such mortgage. Developer may not mortgage the Property or any part thereof for any purpose except in connection with financing of the Improvements. 7. Utilities. Developer will be responsible for extending telephone, telecommunications, electric, gas and other utility services to any location on the Property and for payment of any associated connection fees after the City has caused all utilities to be stubbed to the Property. 8. Easements Reserved. In connection with conveyance of the Property or the Option Property, City shall reserve permanent utility easements and a grading easement as marked on Exhibit "C" attached hereto. 9. Option for Additional Land and Right of First Refusal. Provided that Developer is not in default under the terms of this Agreement, then Developer, its successors and assigns, shall have an option to purchase the real property described on Exhibit "A-1" and Exhibit "A-2" attached hereto (collectively, the "Option Property") for the sum of $1.00. Developer may exercise such option with respect to either or both parcels comprising the Option Property, provided that Developer shall enter into a development agreement and minimum assessment agreement with respect to an expansion project in connection with the exercise of such option. The parties agree that a project on the Option Property will be entitled to incentives commensurate with the project as prescribed by City development policies, up to substantially the same incentives that are provided for the Project under this Agreement. The option may be exercised at any time on or before the tenth (10th) anniversary of the date of this Agreement by delivery of written notice of exercise to City. Within ten (10) days following delivery of the Option notice, the parties shall execute a written purchase agreement in form acceptable to City and Developer, which purchase agreement shall require, among other things, that Closing shall occur on a date to be agreed upon by the parties following delivery of the option exercise notice, which date shall be within sixty (60) days of delivery of said notice. Developer shall also have a right of first refusal with respect to the Option Property. Upon receipt of written notice from City that includes the terms and conditions of a bona fide third -party offer for all or any portion of the Option Property, Developer DEVELOPMENT AGREEMENT Page 6 shall have a period of fifteen (15) days in which to exercise its right of first refusal to purchase the subject portion of the Option Property, on the same terms and conditions as are set forth in the offer. Developer shall exercise the right by delivery of written notice to City, and thereafter Developer and City shall act with diligence to close on said transaction and to execute any related documents required by the offer. The Option Property shall be deed restricted so that no direct competitor of Company may, for a period of ten (10) years, own or use the Option Property so long as Company or any or its affiliates are operating on the Property. 10. Minimum Assessment Agreement. Developer acknowledges and agrees that it will pay when due all taxes and assessments, general or special, and all other charges whatsoever levied upon or assessed or placed against the Property. Developer further agrees that prior to the date set forth in Section 2 of Exhibit "B" it will not seek or cause a reduction in the taxable valuation for the Property, which shall be fixed for assessment purposes, below the amount of $11,500,000.00 (the "Minimum Actual Value"), through: either; (I) willful destruction of the Property, the Improvements, or any part of (ii) a request to the assessor of Black Hawk County; or (iii) any proceedings, whether administrative, legal, or equitable, with any administrative body or court within the City, Black Hawk County, the State of Iowa, or the federal government. Developer agrees to sign said attached Exhibit "B" at the closing. 11. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 12. Representations and Warranties of Developer. Developer hereby represents and warrants as follows: A. Developer is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. DEVELOPMENT AGREEMENT Page 7 B. Developer is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Developer has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Developer. 13. Assignment or Conveyance. Developer agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property prior to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Developer may sell, convey or transfer the Property to Company at any time without such consent, subject to Company's satisfaction of the condition stated below. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Developer under this Agreement. As a condition to Developer's sale, conveyance, assignment or transfer to Company or another approved person or entity (each a "Successor"), the Successor must assume in writing each and every one of Developer's duties under this Agreement, and effective upon such assumption the Successor will succeed to all of Developer's rights under this Agreement that accrue thereafter. The written instrument of assignment and assumption will be recorded in the land records of Black Hawk County, Iowa, and promptly following execution of such instrument a copy thereof will be delivered to City. 14. Materiality of Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for the parties to enter this Agreement. Each party hereto acknowledges that without such promises, covenants, representations, and warranties of the other party, it would not have entered this Agreement. Upon breach of any promise or covenant, or in the event of the incorrectness or falsity of any representation or warranty, the non -breaching party may, at its sole option and in addition to any other right or remedy available to it, terminate this Agreement and declare it null and void. 15. Intentionally deleted. 16. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight air courier service, by United States registered or certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means), and addressed: DEVELOPMENT AGREEMENT Page 8 (a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Developer, at 1805 State Street, Suite 101, Bettendorf, IA 52722. (c) if to Company, at 375 36th Street, East Moline, IL 61244 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (1) business day following deposit for overnight delivery to an overnight air courier service which guarantees next day delivery, (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. A party may change the address for giving notice by any method set forth in this section. 17. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the City and Developer nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 18. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 19. Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 20. Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. DEVELOPMENT AGREEMENT Page 9 21. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 22. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 23. Entire Agreement. This Agreement, together with the exhibits attached hereto, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. 24. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA DEVELOPER — 4F1 Waterloo, LLC By: A s.ti'15k- By: Quentin M. Hart, Mayor Attest: Kelley FelchCity Clerk Kevin Koellner Managing Member COMPANY — Material Control Systems, i Inc., dibla on-Trol-Container Systems Donn Larson, President/CEO EXHIBIT "A" Legal Description of Property The area that will be described as Lot 1, Northeast Industrial Park Plat No. 4, City of Waterloo, Iowa. EXHIBIT "A-1" Legal Description of Option Property The area that will be described as Lot 2, Northeast Industrial Park Plat No. 4, City of Waterloo, Iowa. EXHIBIT "A-2" Legal Description of Additional Option Property The area that will be described as Lot 3, Northeast Industrial Park Plat No. 4, City of Waterloo, Iowa. EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of 4 DVi \ U , 2020 by and among the CITY OF WATERLOO, IOWA ("City"), 4FI Waterloo, LLC ("Developer"), Material Control Systems, Inc., d/b/a Con-Trol Container Systems ("Company"), and the COUNTY ASSESSOR of the City of Waterloo, Iowa ("Assessor"). WITNESSETH: WHEREAS, on or before the date hereof the City, Developer and Company have entered into a development agreement (the "Development Agreement") regarding certain real property, described in Exhibit "A" thereto, located in the City; and WHEREAS, it is contemplated that pursuant to the Development Agreement, the Developer will undertake the development of an area ("Project") within the City and within the Northeast Industrial Area Urban Renewal and Redevelopment Plan Area; and WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the Developer desire to establish a minimum actual value for the land and the building(s) pursuant to this Agreement and applicable only to the Project, which shall be effective upon substantial completion of the Project and from then until this Agreement is terminated pursuant to the terms herein and which is intended to reflect the minimum actual value of the land and buildings as to the Project only; and WHEREAS, the City and the Assessor have reviewed the preliminary plans and specifications for the improvements (the "Improvements") which the parties contemplate will be erected as a part of the Project. NOW, THEREFORE, the parties hereto, in consideration of the promises, covenants, and agreements made by each other, do hereby agree as follows: 1. Upon substantial completion of construction of the Improvements by the Developer, the minimum actual taxable value which shall be fixed for assessment purposes for the land and Improvements to be constructed thereon by the Developer as a part of the Project shall not be less than $11,500,000.00 (the "Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Improvements will be substantially completed on or before August 31, 2021. 2. The Minimum Actual Value herein established shall be of no further force and effect, and this Minimum Assessment Agreement shall terminate, on December 31, 2031. Nothing herein shall be deemed to waive the Developer's rights under Iowa Code § 403.6, as amended, 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 the Developer seek or cause the reduction of the actual value assigned below the Minimum Actual Value established herein during the term of this Agreement. 3. This Agreement shall be promptly recorded by the City with the Recorder of Black Hawk County, Iowa. The City shall pay all costs of recording. 4. Neither the preambles nor provisions of this Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 5. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties, including but not limited to future owners of the Project property. IN WITNESS WHEREOF, the parties have executed this Minimum Assessment Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA BY: L VIA it;yE*, Z.Li Quentin M. Hart, Mayor Iley Felc j , City Clerk DEVELOPER — 4FI Waterloo, LLC By: Kevin Koellner Managing Member COMPA► Material Control Systems, Inc., u/b/a on -Tr onta. "er Systems By: onn Larson, President/CEO STATE OF IOWA ) ss. COUNTY OF BLACK HAWK ) On this ) off 2020, before me, a Notary Public in and for the State of Iowa, person IIy appeared Quentin M. Hart and Kelley Felchle, to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said municipal corporation, and that said instrument was signed and sealed on behalf of said municipal corporation by authority and resolution of its City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said municipal corporation by it and by them voluntarily executed. IMMIT A7WP CINDY A YOUNG COMMISSION�NO. 808904 MY .lt MISITI 9RyS STATE OF a- ss. COUNTY OF ) Subscribed and sworn to before me on A' h ) to , 2020 by Kevin Koellner as Managing Member of 4FI Waterloo, LLC. eviid vanPl Notary P lic V STEPHANIE STONE 2�` COMMISSION NUMBER 799697 MY COMMISSION EXPIRES 1001P ! o Co - 2 -2- Notary Pub is STATE OF r[14,JaiS ) ss. COUNTY OF ROCA JSL F AI D ) Subscribed and sworn to before me on j`f tACi , 2020 by Donn Larson as President/CEO of Material Control Systems, d/b/a Con-Trol Container Systems. OFFICIAL SE L J!UDY G SCOTT NOTARY PUBLIC, STATE OF ILUNOIS My Commission Expires July 24, 2020 CERTIFICATION OF ASSESSOR The undersigned, having reviewed the plans and specifications for the improve- ments to be constructed and the market value assigned to the land upon which the improvements are to be constructed for the development, and being of the opinion that the minimum market value contained in the foregoing Minimum Assessment Agreement appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible for the assessment of the property subject to the development, upon completion of improvements to be made on it and in accordance with the Minimum Assessment Agreement, certifies that the actual value assigned to such land, building and equipment upon completion of the development shall not be less than Eleven Million Five Hundred Thousand Dollars ($11,500,000.00) until termination of this Minimum Assessment Agreement pursuant to the terms hereof. Assessor for Black Hawk County, Iowa Date STATE OF IOWA ) ss. COUNTY OF BLACK HAWK Subscribed and sworn to before me on , 2020, by T.J. Koenigsfeld, Assessor for Black Hawk County, Iowa. Notary Public EXHIBIT "C" Site Map Showing Easements See attached.