HomeMy WebLinkAbout3 Stooges, LLC - Dev Agmnt - 1318 Martin Rd - 5/18/2020 II II II IIIIMIIII IIOI J lI I VIIl l I I IIIIII IIIIHhII II I IIIIII
Doc ID: 009902950001 Type: GEN
Recorded: 07/24/2020 at 04:02:31 PM
Fee Amt: $7.00 Paqe 1 of 1
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
Fi1e2021_00001991
*** Proof of Publication ***
Courier Communications NOTICE OF PUBLIC HEARING
100 East 4th Street, Waterloo, Iowa 50703 TO WHOM
b Is IT MAY CONCa hereby,Ivan thatt on the bete
Black Hawk County day d E. Getty
atu cif p.m., in the
HaroldH l Getty yo l Chambers, in
City Hall in the City of Waterloo,Council a
public hearing will held the pve
the City Waterloo Iowa, it goned
the saley and edconveyancesouth
ofcity owned
property the amount south of 1.0 Martin
Road, in I do solemnly swear that the annexed copy of notice was published in Ageemem 1hlegally deacribadasrotiows:0, to 3
Stooges, LLCRinduding a Development
the WATERLOO/CEDAR FALLS COURIER, a daily newspaper EXCEPTTHE NORTH15p ET, 2
printed in WATERLOO, Black Hawk County, Iowa, and that the Anyone eands place beheyaaoarmay annexed rate of advertising is the regular legal rate of said file written objection with the City Clerk,
newspaper, and that the following is a correct bill for publishingsaid set Hail,Witte ing Iowa,before the date
set for Bald hear;ng.
notice. The Ciry d Waterloo will mnl sc to hold
City Council meetings as scheduled,
however in response to COVID-19,
elected officials and city staff will
Waterloo, City of-Legals participateelected ooicials and Y shah dialing iwith
the meeting to participate.
The publics invited to speak on public
hearing items In the following ways.Call
715 MULBERRY ST. the city Clerk's Office at 319-291-4323 by
4 45 p.m. to obtain conference call
informaton.Alternatively,you may email
WATERLOO IA 50703 your comments to comment°water-
loo-ia.org and they will be read during the
public hearing- Please state the pudic
heads,g bum on which you wish to speak
By order d the Council d the Cby of
Waterloo this 4th day of May,2020.
ORDER NUMBER 181565 City C Kelley Felchle
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Signed �j�
Subscribed and sworn to before me thitday of �l(�'X-1 , 20.O
6hiumE
, ,
iMm � l J
Notary Public
Received of
the sum of Dollars in full
for publication of the above invoice.
Notary Seal: ,,.�. JODI E MCKIidSTH't(
�,+ COM S$IO td0.78241:r
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Section: Legals
Category: 950 Legal Notice
PUBLISHED ON: 05/08/2020
TOTAL AD COST: 20.55
FILED ON: 5/18/2020
t"1) i
Please return this copy to:
City Clerk & Finance Dept.
715 Mulberry St.
Waterloo, IA 50703
Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50704 Phone (319) 234-5701
DEVELOPMENT AGRE' ZMENT
(Phased Development)
This Development Agreement (the "Agreement") is entered into as j1/4kt,L\,, 1 , by and between 3 Stooges, LLC (the "Company") and the
City of Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, 2015,
as amended (the "Urban Renewal Act"), City is engaged in carrying out
urban renewal project activities in an area known as the Martin Road
Development Plan Area ("Urban Renewal Area").
B Company is willing and able to finance and construct a building and
related improvements on property located in the Urban Renewal Area.
C 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. City believes
that the development of the Property (defined below) is in the vital and
best interests of the City and in accordance with the public purposes and
provisions of the applicable State and local laws and requirements under
which the project has been undertaken and is being assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. Within 60 days from the date of this Agreement or
within 60 days after the recording of a final plat for Brock Third Addition, whichever
occurs last, City shall convey to Company, for the sum of $1.00, the real property
described on Exhibit "A" attached hereto (the "Property"). 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; (b) current and future real
e state real property taxes and assessments subject to the agreements made herein; (c)
general utility and right-of-way easements serving the Property; and (d) restrictions
imposed by the City zoning ordinances, or other applicable law.
2. Phased Development. The parties contemplate that Company will
develop the Property in phases, each of which is generally described as follows,
although more detailed plans for each phase will be developed at one or more future
dates:
Phase 1. A commercial building of no less than 8,100 square feet.
B. Phase 2. A second commercial building of no less than 6,000
square feet.
C. Phase 3. A third commercial building of no less than 6,000 square
feet.
For each phase, City may require that Company submit specific building designs and
site plans for City review and approval. Improvements to the Property completed within
the schedule established by Section 5 below will be eligible for the benefits provided for
in this Agreement, and any Phase of the Improvements not completed within the
prescribed period will not be eligible for said benefits. For purposes of this Agreement,
the Property may be deemed to be divisible into three areas, one for each Phase, with
e ach Phase Area corresponding to the respective Improvements that are planned to be
constructed or are in fact constructed on such area, including any setback indicated in
an approved site plan.
3. Improvements by Company. Company shall construct on the Property
the improvements described in Section 2 above, and related landscaping, paving
signage and parking improvements (collectively, the "Improvements"). Company
agrees that the Improvements shall be constructed in accordance with the terms of this
Agreement, the Urban Renewal Plan, and all applicable City, state, and federal building
codes and shall comply with all applicable City ordinances and other applicable law.
Company 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 Improvements may be lawfully constructed. The
Property, the Improvements, and all site preparation and development -related work to
make the Property usable for Company's purposes as contemplated by this Agreement
are collectively referred to as the "Project".
4. Floodplain; Storm Water Detention. City hereby confirms that there are
n o restrictions for filling in the floodplain on the Property subject to use of suitable fill
material. City shall allow Company to fill in the floodplain as may be necessary to
complete the Project. Storm water runoff from the Property shall flow to a shared
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detention system located on adjacent land to the north, and Company shall design site
layout and the Improvements to utilize the shared detention system.
5. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to undertake the Project and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend the development incentives provided for in this Agreement, including but not
limited to its commitment to convey the Property to Company, and that without said
commitment City would not have done so.
A. Deadlines to commence and complete. Subject to Unavoidable
Delays (defined below), Company must obtain a building permit and begin
construction on Phase 1 Improvements within twelve (12) months after the date
of this Agreement (the "Phase 1 Start Date") and must complete construction no
later than June 1, 2021 (the "Phase 1 Completion Deadline'). If Company
desires to undertake the Phase 2 and Phase 3 Improvements it must complete
construction of Phase 2 Improvements no later than June 1, 2023 and Phase 3
Improvements no later than June 1, 2025 (the Phase 3 Completion Deadline").
For any phase, completion of construction shall be evidenced by issuance of an
occupancy permit.
B. Events triggering reverter of title.
(i) Subject to Unavoidable Delays as set forth below, if Company
has not, in good faith, begun the construction of any phase of the
Improvements on the schedule set forth in paragraph A above, then City
may terminate this Agreement as to such Phase Area(s) and title to the
applicable Phase Area(s) shall revert to the City, except as provided in this
Agreement provided, however, that if construction has not begun at the
e nd of any phase commencement period but the development of the
Project is still imminent, the City Council may but shall not be required to,
consent to an extension of time for the construction of the Improvements,
and if an extension is granted but construction of the Improvements has
n ot begun within such extended period, then City may terminate this
Agreement as to such Phase Area(s) and title to the applicable Phase
Area(s) shall revert to the City after the end of said extended period In
the event of any termination, City shall have no further obligations under
this Agreement with respect to any affected Phase Area.
(ii) If Company determines at any time that the Project, in whole or
in part, is not economically feasible, then after giving thirty (30) days'
advance written notice to City, Company may convey the applicable
u ndeveloped Phase Area(s) to City by special warranty deed, free and
clear of any lien, claim, or encumbrance arising by or through Company,
and thereupon neither party shall have any further obligation under this
Agreement with respect to any such Phase Area conveyed, except as
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expressly provided. In connection with any conveyance to City, Company
shall pay in full, so as to discharge or satisfy, all liens, claims, charges,
and encumbrances on or against the Property or any Phase Area deeded
to City.
(iii) Notwithstanding anything to the contrary in paragraphs (i) or (ii)
above, if an undeveloped Phase Area that is subject to reverter of title is,
as to total area or configuration of area, practicably unbuildable in the
City's judgment (an "Unbuildable Remnant"), then City may refuse to
receive conveyance of the Unbuildable Remnant, and in such instance
Company shall be compelled to purchase same as set forth in Section 7.
(iv) If development has commenced within the required period or
any extended period and is stopped and/or delayed as a result of an act of
God, war, civil disturbance, court order, labor dispute, fire, or other cause
beyond the reasonable control of Company, the requirement that
construction of any phase or of the entire Project shall be tolled for a
period of time equal to the period of such stoppage or delay, and
thereafter if construction is not completed within the allowed period of
extension then title to the Phase Area(s) shall revert to City, except as
provided in Section 7.
6. Reverter of Title; Indemnity. In the event of any reverter of title,
Company 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
Company. Company shall pay in full, so as to discharge or satisfy, all liens, claims,
charges, and encumbrances on or against the Property. Appointment of Attorney in
Fact. If Company fails to deliver such documents, including but not limited to a special
warranty deed, to City within thirty (30) days after written demand by City then City
shall be authorized to execute, on Company's behalf and as its attorney -in -fact, the
special warranty deed required by this Section, and for such limited purpose Company
does hereby constitute and appoint City as its attorney -in -fact.
Company further agrees that it shall indemnify City and hold it harmless
with respect to any demand, claim, cause of action, damage, cost expense, liability or
injury made, suffered, or incurred as a result of or in connection with the Project, or
Company's failure to carry on or complete same, or any lien claim, charge, or
encumbrance on or against the Property of any type or nature whatsoever that attaches
to the Property by virtue of Company's ownership of same. If City files suit to enforce
the terms of this Agreement and prevails in such suit, then Company shall be liable for
all legal expenses, including but not limited to reasonable attorneys' fees. Company's
duties of indemnity pursuant to this Section shall survive the expiration, termination or
cancellation of this Agreement for any reason.
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7. Purchase in Lieu of Reverter. Following the occurrence of any event
that triggers a reverter of title under Section 5 and Section 6, Company shall have an
option to purchase the Property or the applicable undeveloped Phase Area in lieu of
conveying title to City. Said option shall not apply to an Unbuildable Remnant with
respect to an Unbuildable Remnant, purchase on the terms set forth in this Section shall
be mandatory Company shall exercise this option by delivery of written notice to City
within thirty (30) days after City's demand for a deed pursuant to Section 6. Within an
additional fourteen (14) days Company shall complete the purchase by delivering
payment to City in an amount equal to $0.8533 multiplied by the number of square feet
in the area being purchased. The parties shall cooperate in good faith to determine the
square footage of such area, and if the parties are unable to agree then the square
footage of said area shall be determined by survey at the parties' joint expense.
8. Water and Sewer. On or before December 1, 2020, City will provide
water main and sewer main infrastructure in the public right of way to the Property line,
and Company will be responsible for extending water, sewer, telephone,
telecommunications, electric, gas and other utility services to any location on the
Property that it desires and for payment of any associated connection fees.
9. Minimum Assessment Agreement. Company 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.
Company further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the ` MAA") attached hereto as Exhibit "B" it will not seek or
cause a reduction in the taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$250,000.00 (the "Phase 1 Minimum Actual Value") through:
(i)
either;
willful destruction of the Property, Improvements, or any part of
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with execution and
delivery of this Agreement. In connection with construction of Phase 2 Improvements
and Phase 3 Improvements, the parties will execute and record for each such phase a
separate amendment to the minimum assessment agreement for the purpose of
increasing the Minimum Actual Value by $200,000.00 for each additional phase.
10. No Encumbrances; Limited Exception. Until completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any lien,
encumbrance, mortgage, security interest, or charge on the Property, other than such
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mortgage or mortgages as may be reasonably necessary to finance Company's
completion of the Improvements and of which Company notifies City in advance of
Company s execution of any such mortgage. Company may not mortgage the Property
or any part thereof for any purpose except in connection with financing of the
Improvements.
11. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of the
Project, whether in whole or in part, to any other person or entity, without the prior
written consent of City. Reasonable grounds for the City to withhold its consent shall
include but are not limited to the inability of the proposed transferee to demonstrate to
the City s satisfaction that it has the financial ability to observe all of the terms to be
performed by Company under this Agreement.
12. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
engaged in activities of comparable size and liability exposure, and shall provide
evidence of such coverages to the City upon request.
B. Until substantial completion of the Improvements, Company shall
make such reports to City, in such detail and at such times as may be reasonably
requested by City, as to the actual progress of Company with respect to
construction of the Improvements.
C. The Property will have a taxable value as set forth in the MAA and
Company agrees that the minimum actual value of the Property and completed
Improvements as stated in the MAA will be a reasonable estimate of the actual
value of the Property and Improvements for ad valorem property tax purposes.
Company agrees that it will spend enough in construction of the Improvements
that, when combined with the value of the Property and related site improvements,
will equal or exceed the assessor's minimum actual value for the Property and
Improvements as set forth in the MAA.
D. Until termination of the MAA, Company will maintain, preserve and
keep the Property, including but not limited to the 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.
E Company shall pay, or cause to be paid, when due, all real property
taxes and assessments payable with respect to any and all parts of the Property.
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Company agrees that (1) it will not seek administrative review or judicial review of
the applicability or constitutionality of any Iowa tax statute or regulation relating to
the taxation of real property included within the Property that is determined by any
tax official to be applicable to the Property or to Company, or raise the
inapplicability or constitutionality of any such tax statute or regulation as a defense
in any proceedings of any type or nature, including but not limited to delinquent tax
proceedings, and (2) it will not seek any tax deferral, credit or abatement, either
presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any
other state law, of the taxation of real property included within the Property.
13. Reserved.
14. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 120 days from the date this Agreement is approved
by the City council. If such completion does not occur, then this Agreement shall be
deemed canceled and shall be null and void.
15. 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.
16. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It 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.
B. 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 this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company 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 Company that is 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.
D. 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 operating agreement of Company or
of any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Company is now a party or by which it or its property
is bound, nor do they constitute a default under any of the foregoing.
E There are no actions suits or proceedings pending or threatened
against or affecting Company 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 Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
17. Materiality of Company's Promises, Covenants, Representations,
and Warranties Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company to be performed is a material term of
this Agreement, and each and every such promise, covenant, representation, and
warranty constitutes a material inducement for City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
or in the event of the incorrectness or falsity of any representation or warranty, City
may at its sole option and in addition to any other right or remedy available to it,
terminate this Agreement and declare it null and void.
18. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the 'indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurnng at or about
the Property or resulting from any defect in the Improvements. The indemnified
parties shall not be liable for any damage or injury to the persons or property of
Company or its directors, officers, employees, contractors or agents, or any other
person who may be about the Property or the Improvements, due to any act of
negligence or willful misconduct of any person, other than any act of negligence
or willful misconduct on the part of any such indemnified party or its officers,
employees or agents.
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B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever by any person or entity
whatsoever that anses or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the acquisition and condition of the Property
and the construction, installation, ownership, and operation of the Improvements,
or (3) any hazardous substance or environmental contamination located in or on
the Property, but only to the extent such liability has not been previously
transferred to and accepted by the City in writing.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
19. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default' shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, the Property, or this Agreement, without the prior written
consent of City;
C. Failure by Company to pay, before delinquency, all ad valorem
property taxes levied on or against the Property;
D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement or the MAA;
E Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company 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 Company, or part
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thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
u nder any mortgage applicable to the Property.
F. Any representation or warranty made by Company in this
Agreement, or made by Company in any written statement or certificate furnished
by Company 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.
20. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days written notice to
Company of the Event of Default, provided that by the conclusion of such period
the Event of Default shall not have been cured, or the Event of Default cannot
reasonably be cured within 30 days and Company shall not have provided
assurances reasonably satisfactory to the City that the Event of Default will be
cured as soon as reasonably possible. Upon termination City may exercise any
and all remedies available at law, equity contract or otherwise for recovery of
any sums paid by City to Company before the date of termination or to recover
ownership of the Property as set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of
Company occurs and is continuing, Company may take such action against City
to require it to specifically perform its obligations hereunder. Before exercising
such remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
n ot have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
e quity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
21. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
10
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
22. No Third -Party Beneficiaries. No rights or privileges of any party hereto
shall inure to the benefit of any contractor, subcontractor, material supplier, or any other
person or entity, and no such contractor, subcontractor, material supplier, or other
person or entity shall be deemed to be a third -party beneficiary of any of the provisions
of this Agreement.
23. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention Mayor, with copies to the City Attorney and
the Community Planning and Development Director.
(b) if to Company, at 3510 Kimball Avenue, Suite H, Waterloo, Iowa
50702, Attn: Anthony Fischels.
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.
24. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or
construed to, create or constitute any joint venture, partnership, agency, employment, or
any other relationship between the City and Company nor to create any liability for one
party with respect to the liabilities or obligations of the other party or any other person.
25. 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.
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26. Severability; Reformation. 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.
27. 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.
28. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
29. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
30. Entire Agreement. This Agreement 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.
31. 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
BY: flac stitit-st"
Quentin M. Hart, Mayor
Attest:
Kelley Felch�le, City Clerk
v
12
3 STOOGES, LLC
By:
Anthony,i chefs, Manage'
PERSONAL GUARANTY. The undersigned, being either an officer, shareholder,
manager or member of Company hereby agree for themselves and their heirs, personal
representatives, and assigns, to unconditionally guarantee to City, its successors and
assigns, the full and prompt performance by Company, its successors and assigns, of all
promises and covenants on the part of Company to be performed pursuant to the
foregoing Agreement, including but not limited to the duties of indemnity set forth therein.
Liability of guarantors hereunder is joint and several.
13
EXHIBIT "A"
Legal Description of Property
Lot 2, except the North 150 feet thereof, Brock Third Addition, City of Waterloo, Black Hawk
County, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement') is entered into as of
12020, by and among the CITY OF WATERLOO, IOWA ("City"),
3 STOOGES, LLC ("Company'), and the COUNTY ASSESSOR of the City of Waterloo,
Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property, described in Exhibit "A' thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake, or cause to be undertaken, the development of an area
("Project") within the Martin Road Development Plan area of the City; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the land and the building
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, the
minimum actual value which shall be fixed for assessment purposes for the land and
Improvements to be constructed thereon as a part of the Project shall not be less than
$250,000.00 (the "Minimum Actual Value") until termination of this Agreement. The
parties agree that construction of the Improvements will be substantially completed on
or before June 1 2021 If it is not, then the parties agree to execute an amendment to
this Agreement that will extend the dates specified in Section 2 below.
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,
2032. Nothing herein shall be deemed to waive the Company's rights under Iowa Code
§ 403.6, as amended, to contest that portion of any actual value assignment made by
the Assessor in excess of the Minimum Actual Value established herein. In no event,
however, shall the Company seek or cause the reduction of the actual value assigned
below the Minimum Actual Value established herein during the term of this Agreement.
Nothing herein shall limit the discretion of the Assessor to assign at any time an actual
value to the land and Improvements in excess of the Minimum Actual Value.
3. Company agrees that it will not seek administrative review or judicial
review of the applicability or constitutionality of any Iowa tax statute or regulation
relating to the taxation of real property included within the Property that is determined by
any tax official to be applicable to the Property or to Company, or raise the
inapplicability or constitutionality of any such tax statute or regulation as a defense in
any proceedings.
4. 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.
5. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
6. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
CITY OF WATERLOO, IOWA
3 STOOGES, LLC
By: cz_v, By:
Quentin M. Hart, Mayor
Attest:
Kelley Fe l • le, City Clerk
STATE OF IOWA
ss.
COUNTY OF BLACK HAWK )
P1
Anthon F*hots, Manager?
/�
On this day of J'4&4 , 2020, before me, a Notary Public in
and for the State of Iowa, personally a peared 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
2
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.
STATE OF IOWA
ss.
BLACK HAWK COUNTY )
Acknowledged before me on
Manager of 3 Stooges, LLC
QN N*\\ \)1001/4Arl
Notary Public
''CCINDY A YOUNG
COMMISSION NO. 808904
MY C011WIL !ON EXPIRES
Y a
'( �'S , 2020 by Anthony Fischels as
3
Notary Public
omo
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon which
the improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment
Agreement appears reasonable, hereby certifies as follows: The undersigned
Assessor, being legally responsible for the assessment of the property subject to the
development, upon completion of improvements to be made on it and in accordance
with the Minimum Assessment Agreement, certifies that the actual value assigned to
such land, building and equipment upon completion of the development shall not be
less than Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate, until
termination of this Minimum Assessment Agreement pursuant to the terms hereof.
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
As ssor for Black Hawk County, Iowa
Date
Subscribed and sworn to before me on id 'tt,' tp , by T.J.
Koenigsfeld, Assessor for Black Hawk County to
ADRIENNE MILLER
COMMISSION NO. 809109
MY COMMISSION EXPIRES
FEBRUARY 23, 2021
� &L.! NAlit :V�
o ary Public