HomeMy WebLinkAboutSuperior Properties, LLC - Development Agreement & Minimum Assessment Agreement - 6/20/2022Preparer: Christopher S. Wendland, P.O. Box 596, Waterloo, Iowa 50704 (319) 234-5701
After recording, return to Community Planning & Development, 715 Mulberry Street, Waterloo, IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
tJ re 2� , 2022, by and between Superior Properties, LLC (the "Company")
and the City of Waterloo, Iowa, ("City").
RECITALS
A. In furtherance of the objectives of Iowa Code Chapter 403 (the "Urban
Renewal Act"), the City is engaged in carrying out urban renewal project
activities in an area known as the East Waterloo Unified Urban Renewal
and Redevelopment Plan Area, formerly known as the Airport
Development Plan area (the "Urban Renewal Area").
B. Company is willing and able to finance and undertake construction of a
building and related improvements on property located in the Urban
Renewal Area and legally described on Exhibit "A" attached hereto (the
"Property").
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, 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 require-
ments 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. City Property; Title.
A. Subject to the terms hereof, City shall convey to Company the
property described on Exhibit "A-1" hereto (the "City Property") for the sum of
$1.00 (the "Purchase Price") within thirty (30) days after City has completed all
requirements for conveyance of same. (The Property and the City Property may
be referred to collectively as the "Project Property.") The parties acknowledge
that the City Property is excess road right-of-way that has yet to be vacated and
that City will not convey title to the vacated right-of-way until the vacation process
has been completed. In addition, sale of the City Property must be handled
under the processes required by Iowa Code § 306.23 et seq. (the "Statutory
Process"). Within thirty (30) days after completion of same, City shall convey the
City Property to Company 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 the subdivision deed of dedication, (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 City
Property and of record; and (d) restrictions imposed by City zoning ordinances
and other applicable law. Notwithstanding the foregoing, City shall have no duty
to convey title to Company until Company delivers to City reasonable and
satisfactory proof of Company's financial ability to undertake and carry on the
Project (defined below), which may take the form of a lending commitment letter.
Company shall, at its own expense, prepare an updated abstract of title, or in lieu
thereof Company may, at its own expense, obtain whatever form of title evidence
it desires. If title is unmarketable or subject to matters not acceptable to
Company, and if City does not remedy or remove such objectionable matters in
timely fashion following written notice of such objections from Company (such
time period not to exceed thirty (30) days), Company may terminate this
Agreement, and shall have no obligation to accept title to the City 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.
B. If City is not able to provide clear title to the City Property to
Company through the Statutory Process, then City agrees to enter into a long-
term lease with Company for the City Property on terms mutually acceptable to
the parties, including but not limited to rent of $1.00 and Company's agreement
to maintain the City Property, to limit its use as set forth in the lease, and not to
encumber the City Property with a mortgage or any other lien.
2. Improvements by Company. Company shall construct a building
consisting of approximately 12,000 square feet, and related landscaping 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. 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 Project Property, the Improvements,
and all site preparation and development -related work to make the Project Property
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usable for Company's purposes as contemplated by this Agreement are collectively
referred to as the "Project".
3. Construction Plans. Company agrees that it will cause the
Improvements to be constructed on the Project Property in conformance with
construction plans (the "Plans") that have been submitted to the City. Company agrees
that the scope and scale of the Improvements to be constructed shall not be
significantly less than the scope and scale of the Improvements as detailed and outlined
in the Plans.
If any material modification in the scope, scale or nature of the Plans is
proposed, Company shall submit modified Plans (the "Modified Plan") to the City for
review. Modified Plans shall be subject to approval by the City as provided in this
Section. City shall approve the modified Plans in writing if: (a) the Modified Plans
conform to the terms and conditions of this Agreement; (b) the Modified Plans conform
to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to
all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (d) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements, and (e)
no Event of Default under the terms of this Agreement has occurred; provided, however,
that any such approval of the Plans or Modified Plans pursuant to this Section shall
constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building, fire, zoning or
other ordinances or regulations of the City, and shall not be deemed to be sufficient
plans to serve as the basis for the issuance of a building permit if the Plans or Modified
Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit.
The Modified Plans must be rejected in writing by City within thirty (30)
days of submission or shall be deemed to have been approved by the City. If City
rejects the Modified Plans in whole or in part, Company shall submit new or corrected
Modified Plans within thirty (30) days after receipt by Company of written notification of
the rejection, accomplished by a written statement of the City specifying the respects in
which Company's Modified Plans fail to conform to the requirements of this Section.
The provisions of this Section relating to approval, rejection and resubmission of
corrected Modified Plans shall continue to apply until the Modified Plans have been
approved by the City; provided, however, that in any event Company shall submit
Modified Plans which are approved by City prior to commencement of construction of
the additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve
Company 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 Plans or Modified Plans by City be deemed to constitute a
waiver of any Event of Default. Approval of Plans or Modified 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 Improvements as constructed.
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4. 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
convey or lease the City Property to Company and to offer the other incentives provided
for in this Agreement, and that without said commitment the City would not do so.
Company must begin construction of the Improvements within four (4) months after the
date of this Agreement, and the Improvements must be Substantially Completed by May
31, 2023 (the "Completion Date"). For purposes of this Agreement, "Substantially
Completed" means the date on which the Improvements have been completed in
accordance with the Plans or Modified Plans to the extent necessary for the City to
issue a certificate of occupancy relating thereto.
If Company has not, in good faith, begun the construction of the
Improvements on the schedule stated above, then title to the City 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 City
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 Company, the requirement that
construction be completed by the 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 Substantially Completed by the Completion Date, as the same may
be extended, then City may terminate this Agreement as set forth in Section 17, title to
the City Property shall revert to City, and City shall have no further obligation hereunder.
If the City Property is not initially conveyed to Company but is instead leased, then any
provision herein that may require a reverter of title shall instead require a termination of
such lease.
5. 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
City Property that is free and clear of any lien, claim, charge, security interest, mortgage
or encumbrance (collectively, "Liens") arising by or through Company. Company shall
pay in full, so as to discharge or satisfy, all Liens on or against the City Property. In
connection with any reverter of title, Company shall not be entitled to a refund of the
Purchase Price. 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
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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 or Liens on or against the
City Property of any type or nature whatsoever that attaches to the City 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, incurred by City.
Company's duties of indemnity pursuant to this Section shall survive the expiration,
termination or cancellation of this Agreement for any reason.
6. Utilities. Company will be responsible, at its own cost, for extending
water, sewer, telephone, telecommunications, electric, gas and other utility services to
any location on the Project Property and for payment of any associated connection fees.
7. 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
$560,000.00 (the "Minimum Actual Value"), through:
either;
(a) willful destruction of the Property, the Improvements, or any part of
(b) a request to the assessor of Black Hawk County; or
(c) 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 its execution and
delivery of this Agreement.
8. Tax Rebates. Provided that Company has completed Substantially
Completed the Improvements before the Completion Deadline, City agrees to rebate
property tax (with the exceptions noted below) with respect to the Improvements, as
follows:
Year One through Year Eight 75% rebate each year
Year Nine through Year Ten 70% rebate each year
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for any taxable value added by the completed Improvements (each such payment is a
"Rebate") over the initial base value of $25,000.00. Each Rebate is payable in respect
of a given property tax fiscal year (a "Fiscal Year") only to the extent that (a) Company
has actually paid general property taxes due and owing for such Fiscal Year and (b) the
city council has made an appropriation for the payment of the Rebate. To receive a
Rebate for a given Fiscal Year, Company must, within twelve (12) months after the due
date of the last installment of the property taxes for the respective Fiscal Year (i.e., the
"March Installment"), submit a completed Rebate request to City on the form provided
by or otherwise satisfactory to City. A failure to timely submit a request for a Rebate for
a Fiscal Year will result in a forfeiture of the right to request a Rebate for such Fiscal
Year. City agrees to consider a completed application for a Rebate within sixty (60)
days after submission of the application to City.
The taxable value of the Property as a result of the Improvements must be
increased by a minimum of 10% and must increase the annual tax by a minimum of
$500.00. Rebates shall not be paid based on 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 Fiscal Year in respect of
which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which
the assessment is based upon the completed value of the Improvements and not based
on a prior Fiscal Year for which the assessment is based solely upon (x) the value of the
Property, or upon (y) the value of the Property and a partial value of the Improvements
due to partial completion of such Improvements or a partial Fiscal Year.
As an example of the above provision, in the event all Improvements on the
Property are Substantially Completed prior to January 1, 2024 and the Property and
Improvements are assessed as fully completed based on the Plans, as may be revised,
the property taxes that would be assessed based on the January 1, 2024 assessed
value would be for the Fiscal Year ending June 30, 2026, with the taxes payable one-
half by September 30, 2025 and one-half by March 31, 2026, then the first Rebate could
be applied for after March 31, 2026 and prior to April 1, 2027.
9. Limitations on Payment of Rebates.
A. Each payment of a Rebate is subject to annual appropriation by the
city council each fiscal year. City has no obligation to make any payments to
Company as contemplated under this Agreement until the city council annually
appropriates the funds necessary to make such payments. The right of non -
appropriation reserved to City in this paragraph is intended by the parties, and
shall be construed at all times, so as to ensure that City's obligation to make
future payments of Rebates shall not constitute a legal indebtedness of City
within the meaning of any applicable constitutional or statutory debt limitation
prior to the adoption of a budget which appropriates funds for the payment of that
installment or amount. In the event that any of the provisions of this Agreement
are determined by a court of competent jurisdiction or by City's bond counsel to
create, or result in the creation of, such a legal indebtedness of City, the
enforcement of the said provision shall be suspended, and the Agreement shall
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at all times be construed and applied in such a manner as will preserve the
foregoing intent of the parties, and no Event of Default by City shall be deemed
to have occurred as a result thereof. If any provision of this Agreement or the
application thereof to any circumstance is so suspended, the suspension shall
not affect other provisions of this Agreement which can be given effect without
the suspended provision. To this end the provisions of this Agreement are
severable.
B. Notwithstanding the provisions of Section 8 hereof, City shall have
no obligation to make a payment of a Rebate to Company if at any time during
the term hereof City fails to appropriate funds for payment; City receives an
opinion from its legal counsel to the effect that the use of Tax Increments
resulting from the Property and Improvements to fund a Rebate payment to
Company, as contemplated under Section 8 above, is not, based on a change in
applicable law or its interpretation since the date of this Agreement, authorized or
otherwise an appropriate urban renewal activity permitted to be undertaken by
City under the Urban Renewal Act or other applicable provisions of the Code, as
then constituted or under controlling decision of any Iowa court having jurisdiction
over the subject matter hereof; or City's ability to collect Tax Increment from the
Improvements and Property is precluded or terminated by legislative changes to
Iowa Code Chapter 403. Upon occurrence of any of the foregoing circum-
stances, City shall promptly forward notice of the same to Company. If the
circumstances continue for a period during which two (2) annual Rebate
payments would otherwise have been paid to Company under the terms of
Section 8, then City may terminate this Agreement, without penalty or other
liability to City, by written notice to Company.
C. For purposes of this Agreement, "Tax Increments" shall mean the
property tax revenues on the Improvements and Property received by and made
available to City for deposit in an account maintained under this Agreement, the
provisions of Iowa Code § 403.19 and the ordinance governing the Urban
Renewal Plan.
10. Conditions to City Funding.
A. The complete or initial funding by City of the Rebates and other
Project commitments shall be deemed an agreement of the parties that the
applicable conditions to disbursement of funds shall, as of the date of such
funding, have been satisfied or waived. If the conditions set forth in this Section
are not satisfied at a Rebate disbursement date, this Agreement shall terminate
unless a new disbursement date is established by amendment to this Agreement.
The termination of this Agreement shall be the sole remedy available to City or
Company if, for whatever reason, a condition set forth in this Section is not
satisfied at a Rebate payment date, it being understood that each party shall
nonetheless incur costs and liabilities prior thereto for which they alone are
responsible. City and Company each expressly assumes all responsibility for the
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costs and liabilities they may each so incur prior to a Rebate payment 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 but not limited to the Rebate
payments, is subject to completion and satisfaction of certain separate city
council actions and required legal proceedings relating to the creation of a tax
increment financing (TIF) district, including the holding of public hearings on the
same. Further, all the obligations of City under this Agreement are subject to
fulfillment, on or before each Rebate payment date, of each of the following
conditions precedent:
(i) The representations and warranties made by Company in
Section 14 shall be true and correct as of the Rebate disbursement date
with the same force and effect as if made at such date.
(ii) Company shall be in material compliance with all the terms
and provisions of this Agreement.
(iii) There has not been, as of the Rebate disbursement date, a
substantial change for the worse in the financial resources and ability of
Company, or a substantial decrease in the financing commitments
secured by Company for construction of the Improvements, which
change(s) makes it likely, in the reasonable judgment of the City, that
Company will be unable to fulfill its covenants and obligations under this
Agreement.
11. No Encumbrances; Limited Exception. Until completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any
Liens on the City Property, other than such mortgage or mortgages as may be
reasonably necessary to finance Company's completion of the Improvements and of
which Company notifies City before Company executes any such mortgage. Company
may not mortgage the City Property or any part thereof for any purpose except in
connection with financing of the Improvements.
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.
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B. Until the Improvements are Substantially Completed, 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. During construction of the Improvements and thereafter until
termination of the MAA, Company 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 Improvements.
D. 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.
E. Company will maintain, preserve and keep the Project 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.
F. Company will comply with all applicable land development laws,
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 Company.
G. During the period until termination of the MAA, Company agrees
that it will make no conveyance, lease or other transfer of the Project Property or
any interest therein that would cause the Project Property or any part thereof to
be classified as exempt from taxation or subject to centralized assessment or
taxation by the State of Iowa.
H. 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 Project
Property. 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 Project
Property that is determined by any tax official to be applicable to the Project
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
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authorized under Iowa Code Chapter 403 or 404, or any other state law, of the
taxation of real property included within the Project Property.
13. 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.
14. 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 bylaws 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
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any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
F. The financing commitments, which Company will proceed with due
diligence to obtain, to finance the construction of the Improvements will be
sufficient to enable Company to successfully complete construction of the
Improvements as contemplated in this Agreement, subject to additional costs
incurred due to Unavoidable Delays.
15. 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 occurring at or about
the Project Property or resulting from any defect in the Improvements. The
indemnified parties shall not be liable for, and Company shall indemnify, defend
and hold such parties harmless against, 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 Project Property or the Improvements,
due to any act of negligence or willful misconduct of any person, other than any
act of gross negligence or willful misconduct on the part of any such indemnified
party or its officers, employees or agents.
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 arises 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 City
Property and the construction, installation, ownership, and operation of the
Improvements, or (3) any hazardous substance or environmental contamination
located in or on the City 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.
16. 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:
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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 Project 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 Project 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
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
under 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.
17. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may suspend its performance under
this Agreement until it receives assurances from Company, deemed adequate by
City, that Company will cure its default and continue its performance under 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
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will be cured as soon as reasonably possible. Further, after suspension of
performance in the manner set forth above, City may terminate this Agreement
and exercise any and all remedies available at law, equity, contract or otherwise.
B. Default by City. Whenever any Event of Default in respect of City
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
not 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
equity 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.
18. 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 Project Property and/or project
area, all of which must be completed within 180 days from the date this Agreement is
approved by the City council. City hereby agrees to timely undertake and complete all
such procedures, hearings and approvals so that the benefits that City promises to
Company hereunder as an inducement for Company to undertake and complete the
Project as set forth in this Agreement will not be lost. If such completion does not occur,
then any conveyance, benefit or incentive of any type provided by City hereunder within
said 180-day period is subject to reverter of title, revocation, repayment or other
appropriate action to restore such property, benefit or incentive to City, and Company
agrees to cooperate diligently and in good faith with any reasonable request by City to
effectuate the restoration of same. To the extent permitted by applicable law, City
agrees to indemnify Company and hold it harmless from and against any claims,
damages, costs, expenses or loss of value suffered by Company and arising from such
revocation or repayment.
19. Materiality of Promises, Covenants, Representations, and Warranties
of Company. 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
13
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.
20. 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,
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.
21. 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.
22. 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 4177 W. Cedar Wapsi Road, Cedar Falls, Iowa
50613, Attention: Manager.
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.
23. 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.
24. 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
14
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.
25. 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.
26. 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.
27. Interpretation. 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.
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 multiple 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, 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.
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.
15
CITY OF WATERLOO, IOWA
By:
Quentin Hart�M yore
Attest:
Ke ley elchle, C
16
SUPERIOR PROPERTIES, LLC
icholas Bonewitz, Manager
By:
EXHIBIT "A"
Legal Description of Property
Lot 1 of South Port 2' Addition, City of Waterloo, Black Hawk County, Iowa.
EXHIBIT "A-1"
City Property
The South 67 Feet of the North 100 Feet of Section 8, Township 89 North, Range 13 West of
the Fifth Principal Meridian, Black Hawk County, Iowa, lying directly North of the North property
line of Lot 1, South Port 2nd Addition, City of Waterloo.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
U he Z , 2022, by and among the CITY OF WATERLOO, IOWA ("City"),
SUPERIOR PROPERTIES, 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 (the "Property"), described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the
Airport Area Development Plan Area, including the construction of certain improvements
as described in the Development Agreement (the "Minimum Improvements") on the
Property (the "Project"); and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Company pursuant to the Development
Agreement, 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 Minimum 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 Minimum
Improvements by Company, the minimum actual taxable value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by Company as a part of the Project shall not be less than $560,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by the
date set forth in the Development Agreement, and in any case by December 31, 2023.
If the Minimum Improvements are not substantially completed by said date, then the
parties agree to execute an amendment to this Agreement that will extend the date
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,
2043. 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 Property or the
Minimum Improvements; or (d) any other circumstance, whether known or unknown and
whether now existing or hereafter occurring.
3. Company 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 Property and the
Minimum Improvements pursuant to the provisions of this Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Property or the Minimum Improvements, any interruption in,
or discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property
or the Minimum Improvements.
4. Company 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 Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes) and that Company
shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to
any early termination of this Agreement for any reason whatsoever.
5. 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 Minimum Improvements in excess of the Minimum
Actual Value.
6. Company agrees that during the term of this Agreement 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 Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
2
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; 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 of Iowa to reduce the Minimum Actual Value; or
(e) cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
7. 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.
8. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
9. 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.
10. 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.
[signatures on next page]
3
CITY OF WATERLOO, IOWA
By: (^)
Quentin Hart, Mayor 1
By:
K-Iley Felchle City Clerk
SUPERIOR PROPERTIES, LLC
olas Bone , Manager
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
On this �� day of j,I _ , 2022, before me, a Notary Public in and
for the State of Iowa, personally appeared Quentin 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.
•
NANCY HIGBY
_._
.
COMMISSION NO.788229
MY QOMMISSION EXPIRES
•0 w 1..
-S SS I-02-q___
4
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
Subscribed and sworn to before me on Jue I , 2022 by Nicholas
Bonewitz as Manager of Superior Properties, LLC.
.1/40``1"4., ADRIENNE MILLER
_ r COMMISSI ON NO. 809109
' MY COMMISSION EXPIRES
'bW' FEBRUARY 23 2024
5
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 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
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
Five Hundred Sixty Thousand and 00/100 Dollars ($560,000.00) until termination of this
Minimum Assessment Agreement pursuant to the terms hereof, subject to adjustment
as provided in said agreement.
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on , 2022 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public