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HomeMy WebLinkAboutInternational Investment Risk Trust - Development Agreement - 8.1.2022(RECORDED) 111111 III II III IIIII IIIII III II I ll II 0 II I II Doc ID: 011837670021 Type: GEN Recorded: 09/22/2022 at 03:42:55 PM Fee Amt: $107.00 Page 1 of 21 Black Hawk County Iowa SANDIE L. SMITH RECORDER File2023-00005049 **RECORDER'S NOTE: RECORDED AS PRESENTED** *Cat U{ o�r� of Prepay d by Christopher S.Wendland, P.O. Box 596,waterloo,IA 50704 Phone(319)234-5701 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of August 1, 2022 by and between International Investment Risk Trust 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, as amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known as the San Marnan Development Plan urban renewal area ("Urban Renewal Area"). B. Company is willing and able to finance and erect structures 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 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. Lease of Property; Option to Purchase. A. Lease and Purchase Option. Subject to the terms hereof, City shall lease the Property to Company for the rental amount and on the other terms and (/07) conditions set forth in the business property lease attached hereto as Exhibit "B" (the "Lease"). The Lease shall include an option for Company to purchase the Property for $1.00 (the "Option") in the event that Company will build one or more structures on the Property to house the data containers that Company will install on the Property. In connection with conveyance of the Property following Company's exercise of the Option, City may require that Company enter into a development agreement that, among other things, may require a minimum assessed value for Structural Improvements (defined below) constructed on the Property. B. Conveyance. Any conveyance of the Property to Company shall be by quit claim deed, free and clear of all encumbrances arising by or through City except: (a) easements, servitudes, conditions and restrictions of record; (b) general utility and right-of-way easements serving the Property; and (c) restrictions imposed by the City zoning ordinances and other applicable law. City shall have no duty to convey title to Company until Company delivers to City reasonable and satisfactory proof of financial ability to undertake and carry on the structural Improvements (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. City shall provide any title documents it has in its possession, including any abstracts, to assist in title review. 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, Company may terminate this Agreement without further obligation and return the abstract of title to City. 2. Improvements by Company. Company shall construct on the Property multiple data containers or centers and supporting infrastructure, fencing, and a gravel road from Shaulis Road to the Property that meets standards of the City Engineer for temporary roads (collectively, the "Initial Improvements"). In addition, in connection with exercise of the Option, Company may construct one or more buildings for enclosure of the data containers (the "Structural Improvements") (the Initial Improvements and Structural Improvements are collectively referred to as 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. City may require that Company submit specific building designs and site plans for City review and approval. 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 any of the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". 2 3. Construction Plans. Company agrees that it will cause the Improvements to be constructed on the 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 such improvements as detailed and outlined in the Plans. In connection with construction of the Structural Improvements, Company and City shall coordinate any actions reasonably necessary or advisable for construction of a paved street and installation of related public infrastructure, and Company shall promptly cooperate in providing any consultation, review or input requested by City. If any material modification in the scope, scale or nature of the Plans is proposed, Company shall submit modified Plans (the "Modified Plans") 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. 3 4. Reserved. 5. Timeliness of Conveyance and Construction; Possibility of Reverter. The parties agree that, if Company exercises the Option, then Company's commitment to undertake the Project and to construct the Structural Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Company and that without said commitment City would not do so. A. Deadlines to commence and complete. Company must obtain a building permit and begin construction on the Structural Improvements within four (4) months after the date of conveyance (the "Start Date") and Substantially Complete construction within twelve (12) months thereafter (the "Completion Deadline"). For purposes of this Agreement, "Substantially Completed" means the date on which the Improvements have been completed to the extent necessary for the City to issue a certificate of occupancy relating thereto. All deadlines are subject to Unavoidable Delays as defined in paragraph B below. B. Events triggering termination and/or reverter of title. If, by the Start Date Company has not in good faith begun construction of the Structural Improvements upon the Property, then the City may demand Company's reconveyance of the Property following Company's failure to begin construction within thirty (30) days following written notice of default from City. If development has commenced by the Start Date or within any agreed period of extension 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(each such condition or event being an "Unavoidable Delay"), the requirement that construction is to be Substantially Completed by the Completion Deadline shall be tolled for a period of time equal to the period of such stoppage or delay. If construction is not Substantially Completed by the Completion Deadline or within the allowed period of extension, then City demand Company's reconveyance of the Property following Company's failure to diligently undertake construction within thirty (30) days following written notice of default from City. If at any time Company fails to diligently undertake construction and other activities necessary to Substantially Complete the Structural Improvements, then City demand Company's reconveyance of the Property following Company's failure to resume and diligently carry on construction within thirty (30) days following written notice of default from City. After City demands reconveyance of the Property, City shall have no further obligations to Company under this Agreement except as set forth in Section 6, and City shall have no duty to reimburse Company for any costs expended by Company with respect to the Project or to compensate Company for any value added to the Property by any Improvements. 6. Reverter of Title; Indemnity. In the event of any reverter of title pursuant to Section 5, 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 4 actions as the City may reasonably request to effectuate said reverter and to deliver to City title to the Property, free and clear of any lien, claim, charge, security interest, mortgage or encumbrance (collectively, "Liens") arising by or through Company. Concurrently with delivery of the deed, Company shall also deliver to City the abstract of title. Company shall pay in full, so as to discharge or satisfy, all Liens on or against the Property. If Company desires to continue operation of the data centers after reconveyance of title, the parties will negotiate a new lease agreement. 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 of 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, or injury made, suffered, or incurred as a result of or in connection with the Project, Company's failure to carry on or complete same, or any Lien or Liens 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, 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. 7. No Encumbrances; Limited Exception. If the Option is exercised, then until the Structural Improvements are Substantially Completed, Company agrees that it shall not create, incur, or suffer to exist any Liens on the 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 Property or any part thereof for any purpose except in connection with financing of the Structural Improvements. 8. Additional City Incentives. A. Site Plan. City will cooperate with Company in preparation of a site plan for the Project and, when the site plan is completed, will recommend the approval of same to the Waterloo Planning, Programming and Zoning Commission, subject to any appropriate conditions necessary for compliance with the zoning ordinance and the urban renewal plan. B. Refund of Lease Payments. If Company has Substantially Completed the Structural Improvements, within sixty (60) days thereafter City shall, subject to Section 11, refund the base rent Lease payments to Company in full (the "Rent Refund"). 5 C. Purchase Rights. The parties contemplate that the Project may stimulate or give rise to opportunities for supportive or synergistic development projects in the area described in City development plans as the South Waterloo Business Park. In furtherance of same, Company shall have an option (the "Development Option")to acquire additional land in the South Waterloo Business Park, for purposes of constructing a "blockchain barn," a mixed-use project, or other projects consistent with the urban renewal plan applicable to the Urban Renewal Area. The Development Option may be exercisable one or more times within five (5) years from the date of this Agreement, to acquire no less than 1 acre in any given instance, at a price of$1.00 per acre. The Expansion Option shall be exercised by written notice to City that states the number of acres to be acquired and that describes the projects) to be undertaken thereon. Sale and conveyance of any land to Company shall be contingent on the City's approval of the project concept, considering type of use proposed, number of acres requested for project(s), consistency of same with the objects that City aims to achieve in the South Waterloo Business Park, relation to other existing or proposed projects in the area, and other factors that City deems relevant in its reasonable discretion. In connection with each exercise of the Development Option, and following approval of the project concept by the Community Planning and Development Director, the parties shall negotiate the terms of a development agreement with respect to any project to be constructed on the land. 9. Utilities. Company will be responsible for extending water, sewer, telephone, telecommunications, electricity, gas and other utility services to any location on the Property and for payment of any associated connection fees. The City may be asked to assist in such extensions by further Council approval(s) through rebates, funding assistance, if applicable to City needs, and as funding allows. 10. 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 with respect to each phase of Improvements: A. Company agrees during construction of the Improvements and for a period of five (5) years after they are Substantially Completed, 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 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. 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. 6 D. Company will comply with all applicable land development laws and City and county ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of Company. E. 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. F. During the period that any option provided for in this Agreement may be exercised, Company agrees that (1) it will not undertake, in any other municipality in Black Hawk County, the construction or rehabilitation of any commercial property as a primary location for Company's business operations of the type to be conducted on the Property, and (2) it will make no conveyance, lease or other transfer of the Property or any interest therein that would cause the Property or any part thereof to be classified as exempt from taxation or subject to centralized assessment or taxation by the State of Iowa. G. 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 conveyed to it. 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. 11. Conditions to City Funding. A. The complete or initial funding by City of the Rent Refund 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 Rent Refund 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 Rent Refund payment date, it being understood that each party shall nonetheless incur costs and liabilities prior thereto for which they 7 alone are responsible. City and Company each expressly assumes all responsibility for the costs and liabilities they may each so incur prior to a Rent Refund 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 Rent Refund 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 (TIE) 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 Rent Refund payment date, of each of the following conditions precedent: (I) The representations and warranties made by Company in Section 13 shall be true and correct as of the Rent Refund 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 Rent Refund 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. 12. 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. 13. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. 8 B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Company. 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. Assuming due authorization, execution and delivery by the other parties hereto, this Agreement 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. F. 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. 14. 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 Property arising after Company's lease or acquisition of the same 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. 9 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 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. 15. 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 180 days from the date this Agreement is approved by the City council. 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, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 16. 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. 17. 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; 10 B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, any part of 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 any of 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; 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 any of 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. 18. 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 or portion thereof as set forth in this Agreement. 11 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. 19. 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. 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: 12 (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 30 N Gould St. Suite R, Sheridan, WY 82801 Attention: Timothy Webb and Steven White. 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) four (4) 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 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. 13 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. CITY OF WATERLOO, IOWA INTERNATI AL I VESTMENT RIS RUST LLC Quertun 9-tart By: By: Quentin M. Hart, Mayor Timothy L. . Webb, CEO Attest: "qe"" By: Kelley Felchle, City Clerk Steven D. White, COO 14 EXHIBIT "A" Legal Description of Property Property to be described by survey, consisting generally of land described on below map as Lots 45-50, including land shown for detention pond abutting said lots. SOUTH WATERLOO BUSINESS PARK (183.7ACRES) \��j�� WATERLOO, IOWA-MASTER DEVELOPMENT PLAN V Yf-l- � . �� 6 4ssocrates ( .? 5 : / � �'' p, jY L- Mc I .t-'-,is W Y, `' YNaYaalaas Line ' '` 10 Gb Fiber Ln -- ,, 41{ k"i i( trod ® ` I ®s,.- II Dealbut r.L Y- 4 111 = Natural Gn litre r II 20 27 1n•�..a,.e l - a _ aaa.'s Legend " e a A ci Vrater'.lain'CA-of Waterloo Lots1-6 22Acres Acres l 00 10 : [ nabs j 1 1at70 20Ac.os r i Leo s..1/.d nor-- L12s Sanitary Main(City ofVr`aterloo) 1.. Lot 11 2.2 Acres ( l 0 / - "*-^TM-^ t 34 I 6 Acres —Natural Gas Line thAd4menpn Energy! 0 Lot 12 1.8 Aces l L. 12 J L 95 3 e z' 76Jun4 NWi W.tlanG ! I Lot 13 1.7Acres ( I r a Ne1>ap01' toff site) 13.2 K.Electric ergs)el o r Lute #iII Lot 14 20Acres .._ L z .�.. (ht'dAmedcln Energy) lott6 19Ayes _ _ ,� — — '` g$ 1•' A electric Transmission tine Lots 17-18 15 Acres s, 48, I L t a L t 6 :1- c w,y. ;s =tfrfifidMleripn Energy} Lots 19-20 1.6Acres r 2 re "tt�, _ lot 21 1 SAae< �t t..r 1 A�r" '"' Telecommunications(h1e1iac0m) Las 22.23 1 9 Acres k E e t Proposed Road Lots 26 27 1.4 Acres ,€.„,. _ - 10128 1 6Aaes z S� y rcpJ ed c.g Road Access Points Noy.AN aaeagefigues rammed Lot29 1.0Acres '".k.. ,L r } .1 Q Pad °t, boN eacfgge. (Proposed) Lot 30 1.1 Acres total 12 Acres c I 5. 250.W0 i 1aYess o9Nrxm state0- 41etlarid Delineation Lot36 12Acres I t ..Z SF �' �[stanrecSep-2015-no wetlands at sae)I' Lots 37-40 11Acres `, ! ra r i_ •Lots4'_-40 16Acres ,? L`a,I a 4 Total Developable:181 2Acres Lot 49 15Acres I , r Expansion to . 124 '"'1 toted 1.7.Acres r Lot4 ; 750,000 SF All dashed lines indicate *These Agues raPresent - Lot3 a r ,, -. proposed Utility routes Lot 2 w Lot 51 I a.. . Lot 1 52.79 Acres L 1 I4. ..tvc. -.v..T'T ® " .FUTURE EXPANSION' * I I i Map Prepared Marts 2018 i i .. -...........� Feet - . EXHIBIT "B" Form of Business Property Lease See attached. BUSINESS PROPERTY LEASE This Business Property Lease (the 1eaua] is made and entered into as of Ju»«8tb . 2022 by and between the City of Waterloo, Iowa, on Iowa municipal corporation ("Land|nnd^), whose address for the purpose of this Lease is 715 Mulberry 8teei, VVatedoo, Iowa, 50703. and International Investment Risk Trust, LLC. ("Tenant"), whose add roas for purposes o/ this Lease iu3U North Gould Street. Suite R. Shehdan. VVY828O1. 1. PREMISES AND TERM. The Landlord, in consideration of the rents herein nnsamad and of the agreements and conditions herein contained, on the part of the Tenant \obe kept and performed, leases unto the Tenant, and Tenant hereby rents and leases from Landlord, according to the terms and provisions herein, the following described real estate, situated in Black Hawk County, Iowa, to wit: Propertyto be desciribed by survey, consisting generally of land described on attached map as Lots 45-50, including land shown ford,tandon pond, abutting said lots: fora term commencing upon execution of this Lease and ending at 11:59pm.on the day immediately preceding the fifth(5(h)anniversary of the commencement date. 2. RENTAL. Tenant agrees to pay 1n Landlord ao base rent forouid term, asfollows: $1,000.0D per month, in advance, due upon signing of this Lease and the first day of each month during the Lease tern. No security deposit. 3. POSSESSION. Tenant shall be entitled to possession on the f irst day of the term of this Lease and shall yield possession to the Landlord at the time and date of the close of this Lease term, except as herein otherwise expressly provided. 4. USE OF PREMISES, Tenant covenants and agrees duhng the tenn of this Lease to use and to occupy th* |eouedpnemiaaoon|yforconotmcdonondopera\ionofadu8anen\arasdosohbadinthe8oertainOovo|opment Agreement between the parties (tha ^DA"). 5. QUIET ENJOYMENT. Landlord covenants that its estate in said premises is fee simple and that the Tenant on paying the rent herein moon,ed and performing all the agreements by the Tenant to be performed as provided in this Lease, shall and may peaceably have, hold and enjoy the demised premises for the term of this Lease free from mo|eotahon, eviction or disturbance by the Landlord or any other persons or legal entity whatsoeve,, except as othemMse provided herein. 8' CARE AND MAINTENANCE OF PREMISES. Tenant takes said premises in their present condition and shall oonotroc(, operate and maintain thereon the improvements described in the OA. Landlord shall have no duty whatsoever to care for ormaintain the premises or any part thereof. Tenant will not allow trash of any kind to accumulate on said pnumioao, and it will remove same from the premises at its own expense. Tenant ahuU, after taking possession of said premises and until the termination of this Lease and the actual removal from the pemisex, at its own expenoe, care for and maintain the premises in u reasonably safe and serviceable condition consistent with its own needs and pursuant to applicable law, ordinance o, regulation. Tenant shall make no atmotuno| improvements without the Landlord's phorwd<ten approval of the plans and specifications therefor. Tenant shall bo responsible foraUnecessary upkeep of grounds and weed control. Tenant shall be responsible to clear snow. T. FACILITY SERVICES. Tenant, during the tunn of this Leane, shall pay before delinquency all charges for use of to|ephone, water, oewor, gas, o|ecthui\y, powmr, garbage or trash diaposa|, and all other utilities or services of whatever kind and nature which may be used inor upon the leased premises. 8. END OF TERM; RENEWAL OPTION. This Lease nhoU terminate upon oxp\mUnn of the original tonn in accordance with Section 1. provided, however,that the Lease shall automatically renew for en additional term of five(5) years unless one party delivers to the other a w6tten notice of non-renewal ao least 1zO days before the end of the initial term. Tenant agrees that upon the termination of this Lease it will surrende,, yield up and deliver the leased premises as required by Sectinn3. Tenant shall not continue to occupy the premises beyond the Lease term without the oxpesepho,whtten consent of Landlord. 9. PURCHASE OPTION. Tenant shall have an option topurchase the premises fnr$1.OU (the "Option"), provided that,if requested by Landlord,it will enter into a development agreement with Landlord that, among other termo, may require Tenant to cons tmot one nrmore structures to house the data containers that Tenant will install on the premises and to maintain a minimum noaoeoed value for improvements upon the premises. Tenant improvements and incentives \nbopmvidodby Landlord \oTenant shall conform to requirements set fnrthin\he DA, exceptto the extent varied bytha hanna of anew agreement relating specifically to such improvements. The Option may be exercised by Tenant's delivery of written notice of exercise to Landlord no less than ninety (SU) days before expiration of the Lease tenn, and if not timely exercised the Option shall |epon. Tenant shall be eligible forrefundofbasanon\ payments hereunder i/it completes improvements after Option exercise aaprovided in the OA. 10. ASSIGNMENT AND SUBLETTING. Tenant may not assign this Lease or sublet the premises o/any part thereof without the prior written consent ofLandlord. Notwithstanding anything to the contrary in this paragraph, Tenant may assign this Lease to the surviving entity in connection Wth any corporate mengor, consolidation or reorganization to which Tenant is party. 11. PROPERTY TAXES. The premises is currently tax exempt. Tenant shall be responsible!o pay before delinquency any general property taxes that may be assessed against the premises during the term hereof. Tenant shall also timely pay all taxes, assessments, orother public charges levied orassessed by lawful authority against its personal property on the premises during the term of this Lease. Tenant shall pay all special assessments that would become delinquent if not paid during the term of this Lease. Each party maomos the right to protest any assessment o/taxes. 12. INSURANCE. (a) Tenant agrees that it will at its own expense procure and maintain hazard insurance (i.e.' fire and extended coverage)on the premises furthe benefit of the parties as their respective interest may appear. Landlord shall provide nn fire and extended coverage insurance on said premises for the benefit of Tenant. Certificates or copies nfsaid po|ioioa, naming the Landlord as an additional insured, and providing for thirty (30) days' advance notice to the Landlord before cancellation, shall be delivered to the Landlord no |s1a, than the date that Tenant begins to occupy the }ouaad premises, A renewal certificate shall be provided to Landlord prior to expiration of any policy. Tenant's share of such insurance proceeds is hereby assigned and made payable to the Landlord to aacuno rent or other obligations then due and owing by Tenant to Landlord. To the extent permitted by their policies, Landlord and Tenant waive all rights of recovery against each other. (b) Tenant agrees that it will at its own expense procure and maintain commercial general liability insurance in the amount of not |000 than $1.000.000 per occurrence and $1.000.000 annual aggregate, Such insurance shall cover fiabifity arising from premises operations,independent contractors,personalinjury, products, and completed operations and liability assumed under on insured contract,including bu1no1 limited to the activities of Tenant, its employees and agents, Certificates or copies of said policies, naming the Landlord as an additional insured, and providing fmrthirty(30) days'advance notice tothe Landlord before cancellation, shall be delivered to the Landlord within no later than the date that Tenant begins to occupy the leased pmrniaae. A renewal certificate shall bo provided tu Landlord phorto expiration of any policy. (c) Tenant *0} not do or omit the doing of any act wNch would v\1\a\n any insurance, or increase the insurance rates in force upon the real estate improvements on the premises or upon any personal property of the Tenant upon which the Landlord by law orby the terms of this Lease, has or shall have alien. (d) Tenant further agrees to comply Wth recommendations of Iowa Insurance Services Office, or its successor office, and 1obo liable for and to promptly pay, usif current rental, any increase in insurance rates on said premises and on the building of which said premises are a part, duo to increased risks or hazards resulting from Tenant's use of the premises otherwise than as herein contemplated and agreed. 13. INDEMNITY. Except as to any negligence of the Landlord or its agents in the performance of any obligation of Landlord under this Loaao, and to the extont not covered by insurance maintained by Landlord or Tonnnt. Tenant will protect, indemnify, and save harmless the Land|ond, its officers, officials. employees, and mgonta, from and against any and all c|aimo, demanda, causes of action, |oss, noyts, expenses, damages and liabilities of any typaorna1um (including but not limited to attomeys'fees and expenses) occasioned by,orarising out of, any accident or other occurrence causing or \nfUn6ng injury and/or damage to any person or property, 2 happening or done, in, upon, or about the leased premises, or due directly or indirectly to the tenancy, use, or occupancy thereof, or any part thereof by the Tenant or any person claiming through or under the Tenant. Prior to occupancy of the leased premises hereunder, Tenant has had the opportunity to test the premises for toxic or hazardous substances, mold, and other environmental matters, and Tenant agrees that the indemnities set forth in this paragraph shall include but not be limited to any claims, demands, losses, or causes of action arising from or relating to such matters. The provisions of this paragraph shall survive the expiration, abandonment, or termination of this Lease. 14. FIRE AND CASUALTY. (a) PARTIAL DESTRUCTION OF PREMISES. In the event of a partial destruction or damage of the leased premises after Tenant's construction of improvements which causes a business interference by preventing the conduct of anormal business operation, and which damage is reasonably repairable within sixty (60) days after its occurrence, this Lease shall not terminate but the rent for the leased premises shall abate during the time of such business interference. In the event of partial destruction, Tenant shall have the option to repair such damages. (b) ZONING. If the zoning ordinance of the municipality in which this property is located makes it impossible for Landlord, using diligent and timely effort, to obtain necessary permits and to repair and/or rebuild so that Tenant is able to conduct its business on these premises, then such partial destruction shall be treated as a total destruction as in the next paragraph provided. (c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or damage of the leased premises after Tenant's construction of improvements so that Tenant is not able to conduct its business on the premises, and which damages cannot be repaired within sixty (60) days, this Lease may be terminated at the option of either the Landlord or Tenant. Such termination in such event shall be effected by written notice of one party to the other, within twenty (20) days after such destruction. Tenant shall surrender possession within ten (10) days after such notice issues and, each party shall be released from all future obligations hereunder, Tenant paying rental pro rata only to the date of such destruction. 15. CONDEMNATION. (a) DISPOSITION OF AWARDS. Should the whole or any part of the demised premises be condemned or taken by a competent authority for any public or quasi-public use or purpose, each party shall be entitled to retain, as its own property, any award payable to it. Or in the event that a single entire award is made on account of the condemnation, each party will then be entitled to take such proportion of said award as may be fair and reasonable. (b) DATE OF LEASE TERMINATION. If the whole of the demised premises shall be so condemned or taken, the Landlord shall not be liable to the Tenant except and as its rights are preserved as in paragraph 1 5(a) above. 16. TERMINATION OF LEASE AND DEFAULTS OF TENANT. (a) TERMINATION UPON EXPIRATION OR UPON NOTICE OF DEFAULTS. This Lease shall terminate upon expiration of the term. Upon default by Tenant in accordance with the terms and provisions of this Lease, or upon Tenant's abandonment of the premises by failure to engage in its business activities on the premises for more than thirty (30)consecutive days,this Lease may at the option of the Landlord be canceled and forfeited,provided, however, before any such cancellation and forfeiture except as provided in paragraph 16(b)below, Landlord shall give Tenant a written notice specifying the default,or defaults, and stating that this Lease will be canceled and forfeited ten(10)days after the giving of such notice, unless such default, or defaults, are remedied within such grace period. As an additional optional procedure or as an alternative to the foregoing (and neither being exclusive of the other), Landlord may pro teed as provided in Section 21 below. (b) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant is adjudicated a bankrupt or in the event of a judicial sale or other transfer of Tenant's leasehold interest by reason of any bankruptcy or insolvency proceedings or by other operation of law, but not by death, and such bankruptcy, judicial sale, or transfer has not been vacated or set aside within ten (10) days from the giving of notice thereof by Landlord to Tenant, then and in any such events Landlord may, at its option. immediately terminate this Lease and, upon giving of ten(10) days'written notice by Landlord to Tenant, re-enter said premises, all to the extent permitted by applicable law. 3 (u) In (a)and (b)above,waiver as to any default shall notconstitutea waiver of any otheror subsequent defaub. (d) Waiver ou0o any defauKo hall no\nnnsthuteo waiver nf any otheror sub nequuntdefauk. 17. SIGNS. Tenant shall have the right and privilege nf attaching, affixing,painting, or exhibiting signs onthe leased pemiseo, provided only that any and all signs shall comply with the ordinances of the municipality in which the property is located and with the laws of the State of Iowa. 18. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by, thmugh, or under the Tonant, smd| have the right to file or place any mechanic's lien or other lien of any kind or character whatsoever upon said premises or upon any building orimprovement thereon, ur upon the leasehold interest of the Tenant therein, and notice iahereby given that no contractor, subcontractor, or anyone else who may furnish any material, momice, or labor forany bui|dinO, impmvemnmm, alteskion, nupoim, salvaging or any part themmf, shall at any time be or become entitled \o any lien thereon, and for the further security of the Landlord, the Tenant covenants and agrees to give actual notice thereof in advance toany and all contractors and subcontractors who may furnish oragree tofumioh any such material, service,orlabor. iQ. LANDLORD'S LIEN AND SECURJITY INTEREST. Landlord shall have, in addition tuthe lien given by |aw, a security interest as provided by the Uniform Connmonoio| Code as codified in the State of Iowa upon all personal property, and all substitutions, replacements, mcc0000deo, and accessions thereto and thereof, kept ard used on the[eased premises by Tenant. Landlord may proceed at law orin equity with any remedy provided by law orby this Lease for the recovery of rent or for termination of this Lease because ofTenant's default in its performance. 20. SUBSTITUTION OF EC%UipN8ENT. MERCHANDISE. ETC. Tenant shall have the right, from time to time during the term of this Lease, to sell or otherwise dispose of any personal property of the Tenant situated on the leased premises, when in the judgment of the Tenant i\ shall have become obsolete, outworn, or unnecessary in connection with the operation ofTenant's business on the leased premises. 21. RIGHTS CUMULATIVE. The various hghts, powers, nphons, e|achnne. and remedies of either party as provided in this Lease shall be construed as cumulative and no one of them as exclusive of the others or exclusive of any hghto, mmedieo, or priorities allowed either party by |mm, and shall in no way affect or impair the right of ei\her party to pursue any other equitable or legal remedy to which either party may be entitled as long as any default remains in any way unnemedied. unaahshed. urundiochapged. 23. NOTICES AND DEMANDS. Notices ao provided for in this Lease shall be given tu the respective parties hereto at the respective addresses designated on page one of this Lease un|000 either party notifies the nihor, in wrihng, of different address. Without prejudice to any other method of notifying a party in writing o, making u demand or other cummunioahon, such message shall he considered given under the terms of this Lease when sent, addressed ao above designated, postage prepaid, by registered orcertified mail, return receipt requested, by the United States mail and so deposited in United States mail box. 23. BINDING EFFECT. Each and every covenant and agreement herein contained oheU extend to and be binding upon the respective heirs, personal representatives, successors,and assigns o/the parties hereto;except that if any part o(this Lease iuheld in joint tenancy, the successor in interest shall bo the surviving ioint tenant 24. CHANGES TOBE |NWRITING. None of the covenants, provisions, terms, or conditions uf this Lease Vo be kept or performed by Landlord nrTenant shall boin any manner modi/ipd. waived, or abandoned, except by whtten instrument duly signed by the parties and delivered \u the Landlord and Tenant. This Lease contains the entire agreement of the parties and supersedes any and all diacusoiona, nagotiatinnx, underotondingo, or agreements pertaining to the subject matter hereof. 25. CONSTRUCTION. Words and phrases hoein, including acknowdeUgmnnt hoeof, shall be construed as \n the singular orplural number, and as masculine, feminine, nrneuter, according to the context. 4 IN WITNESS WHEREOF, the parties hereto have duly executed this Business Property Lease as of the date first written above. LANDLORD TENANT City of Waterloo, Iowa International Investment isk Trust, LLC 6�tuatut ?larl Pht,t4- QuentinBy' �„��� By.Hart, Mayor =7: 022 Tim O. Webb, CEO K,effey Fe&b4 Attest: By: Kelley Felchle, City Clerk Steven D.White, COO 5 Prepared by Christopher S. Wendland, P.O. Box 596,, Waterloo, IA 50704 Phone (319) 234-5701 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of August 1, 2022 by and between International Investment Risk Trust 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, as amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known as the San Marnan Development Plan urban renewal area ("Urban Renewal Area"). B. Company is willing and able to finance and erect structures 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 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. Lease of Property; Option to Purchase. A. Lease and Purchase Option. Subject to the terms hereof, City shall lease the Property to Company for the rental amount and on the other terms and conditions set forth in the business property lease attached hereto as Exhibit "B" (the "Lease"). The Lease shall include an option for Company to purchase the Property for $1.00 (the "Option") in the event that Company will build one or more structures on the Property to house the data containers that Company will install on the Property. In connection with conveyance of the Property following Company's exercise of the Option, City may require that Company enter into a development agreement that, among other things, may require a minimum assessed value for Structural Improvements (defined below) constructed on the Property. B. Conveyance. Any conveyance of the Property to Company shall be by quit claim deed, free and clear of all encumbrances arising by or through City except: (a) easements, servitudes, conditions and restrictions of record; (b) general utility and right-of-way easements serving the Property; and (c) restrictions imposed by the City zoning ordinances and other applicable law. City shall have no duty to convey title to Company until Company delivers to City reasonable and satisfactory proof of financial ability to undertake and carry on the structural Improvements (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. City shall provide any title documents it has in its possession, including any abstracts, to assist in title review. 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, Company may terminate this Agreement without further obligation and return the abstract of title to City. 2. Improvements by Company. Company shall construct on the Property multiple data containers or centers and supporting infrastructure, fencing, and a gravel road from Shaulis Road to the Property that meets standards of the City Engineer for temporary roads (collectively, the "Initial Improvements"). In addition, in connection with exercise of the Option, Company may construct one or more buildings for enclosure of the data containers (the "Structural Improvements") (the Initial Improvements and Structural Improvements are collectively referred to as 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. City may require that Company submit specific building designs and site plans for City review and approval. 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 any of the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". 2 3. Construction Plans. Company agrees that it will cause the Improvements to be constructed on the 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 such improvements as detailed and outlined in the Plans. In connection with construction of the Structural Improvements, Company and City shall coordinate any actions reasonably necessary or advisable for construction of a paved street and installation of related public infrastructure, and Company shall promptly cooperate in providing any consultation, review or input requested by City. If any material modification in the scope, scale or nature of the Plans is proposed, Company shall submit modified Plans (the "Modified Plans") 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. 3 4. Reserved. 5. Timeliness of Conveyance and Construction; Possibility of Reverter. The parties agree that, if Company exercises the Option, then Company's commitment to undertake the Project and to construct the Structural Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Company and that without said commitment City would not do so. A. Deadlines to commence and complete. Company must obtain a building permit and begin construction on the Structural Improvements within four (4) months after the date of conveyance (the "Start Date") and Substantially Complete construction within twelve (12) months thereafter (the "Completion Deadline"). For purposes of this Agreement, "Substantially Completed" means the date on which the Improvements have been completed to the extent necessary for the City to issue a certificate of occupancy relating thereto. All deadlines are subject to Unavoidable Delays as defined in paragraph B below. B. Events triggering termination and/or reverter of title. If, by the Start Date Company has not in good faith begun construction of the Structural Improvements upon the Property, then the City may demand Company's reconveyance of the Property following Company's failure to begin construction within thirty (30) days following written notice of default from City. If development has commenced by the Start Date or within any agreed period of extension 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 (each such condition or event being an "Unavoidable Delay"), the requirement that construction is to be Substantially Completed by the Completion Deadline shall be tolled for a period of time equal to the period of such stoppage or delay. If construction is not Substantially Completed by the Completion Deadline or within the allowed period of extension, then City demand Company's reconveyance of the Property following Company's failure to diligently undertake construction within thirty (30) days following written notice of default from City. If at any time Company fails to diligently undertake construction and other activities necessary to Substantially Complete the Structural Improvements, then City demand Company's reconveyance of the Property following Company's failure to resume and diligently carry on construction within thirty (30) days following written notice of default from City. After City demands reconveyance of the Property, City shall have no further obligations to Company under this Agreement except as set forth in Section 6, and City shall have no duty to reimburse Company for any costs expended by Company with respect to the Project or to compensate Company for any value added to the Property by any Improvements. 6. Reverter of Title; Indemnity. In the event of any reverter of title pursuant to Section 5, 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 4 actions as the City may reasonably request to effectuate said reverter and to deliver to City title to the Property, free and clear of any lien, claim, charge, security interest, mortgage or encumbrance (collectively, "Liens") arising by or through Company. Concurrently with delivery of the deed, Company shall also deliver to City the abstract of title. Company shall pay in full, so as to discharge or satisfy, all Liens on or against the Property. If Company desires to continue operation of the data centers after reconveyance of title, the parties will negotiate a new lease agreement. 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 of 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, or injury made, suffered, or incurred as a result of or in connection with the Project, Company's failure to carry on or complete same, or any Lien or Liens 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, 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. 7. No Encumbrances; Limited Exception. If the Option is exercised, then until the Structural Improvements are Substantially Completed, Company agrees that it shall not create, incur, or suffer to exist any Liens on the 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 Property or any part thereof for any purpose except in connection with financing of the Structural Improvements. 8. Additional City Incentives. A. Site Plan. City will cooperate with Company in preparation of a site plan for the Project and, when the site plan is completed, will recommend the approval of same to the Waterloo Planning, Programming and Zoning Commission, subject to any appropriate conditions necessary for compliance with the zoning ordinance and the urban renewal plan. B. Refund of Lease Payments. If Company has Substantially Completed the Structural Improvements, within sixty (60) days thereafter City shall, subject to Section 11, refund the base rent Lease payments to Company in full (the "Rent Refund"). 5 C. Purchase Rights. The parties contemplate that the Project may stimulate or give rise to opportunities for supportive or synergistic development projects in the area described in City development plans as the South Waterloo Business Park. In furtherance of same, Company shall have an option (the "Development Option") to acquire additional land in the South Waterloo Business Park, for purposes of constructing a "blockchain barn," a mixed -use project, or other projects consistent with the urban renewal plan applicable to the Urban Renewal Area. The Development Option may be exercisable one or more times within five (5) years from the date of this Agreement, to acquire no less than 1 acre in any given instance, at a price of $1.00 per acre. The Expansion Option shall be exercised by written notice to City that states the number of acres to be acquired and that describes the project(s) to be undertaken thereon. Sale and conveyance of any land to Company shall be contingent on the City's approval of the project concept, considering type of use proposed, number of acres requested for project(s), consistency of same with the objects that City aims to achieve in the South Waterloo Business Park, relation to other existing or proposed projects in the area, and other factors that City deems relevant in its reasonable discretion. In connection with each exercise of the Development Option, and following approval of the project concept by the Community Planning and Development Director, the parties shall negotiate the terms of a development agreement with respect to any project to be constructed on the land. 9. Utilities. Company will be responsible for extending water, sewer, telephone, telecommunications, electricity, gas and other utility services to any location on the Property and for payment of any associated connection fees. The City may be asked to assist in such extensions by further Council approval(s) through rebates, funding assistance, if applicable to City needs, and as funding allows. 10. 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 with respect to each phase of Improvements: A. Company agrees during construction of the Improvements and for a period of five (5) years after they are Substantially Completed, 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 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. 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. 6 D. Company will comply with all applicable land development laws and City and county ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of Company. E. 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. F. During the period that any option provided for in this Agreement may be exercised, Company agrees that (1) it will not undertake, in any other municipality in Black Hawk County, the construction or rehabilitation of any commercial property as a primary location for Company's business operations of the type to be conducted on the Property, and (2) it will make no conveyance, lease or other transfer of the Property or any interest therein that would cause the Property or any part thereof to be classified as exempt from taxation or subject to centralized assessment or taxation by the State of Iowa. G. 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 conveyed to it. 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. 11. Conditions to City Funding. A. The complete or initial funding by City of the Rent Refund 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 Rent Refund 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 Rent Refund payment date, it being understood that each party shall nonetheless incur costs and liabilities prior thereto for which they 7 alone are responsible. City and Company each expressly assumes all responsibility for the costs and liabilities they may each so incur prior to a Rent Refund 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 Rent Refund 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 Rent Refund payment date, of each of the following conditions precedent: (i) The representations and warranties made by Company in Section 13 shall be true and correct as of the Rent Refund 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 Rent Refund 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. 12. 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. 13. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. 8 B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Company. 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. Assuming due authorization, execution and delivery by the other parties hereto, this Agreement 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. F. 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. 14. 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 Property arising after Company's lease or acquisition of the same 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. 9 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 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. 15. 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 180 days from the date this Agreement is approved by the City council. 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, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 16. 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. 17. 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; 10 B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, any part of 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 any of 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; 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 any of 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. 18. 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 or portion thereof as set forth in this Agreement. 11 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. 19. 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. 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: 12 (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 30 N Gould St. Suite R, Sheridan, WY 82801 Attention: Timothy Webb and Steven White. 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) four (4) 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 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. 13 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. CITY OF WATERLOO, IOWA INTERNATIONAL INVESTMENT RISIfI/MRUST LLC // Ouert6 . ilrcr'E By: By: Quentin M. Hart, Mayor Timothy L Webb, CEO Attest: 71e(Cey rfercfre S By: Kelley Felchle, City Clerk Steven D. White, COO 14 EXHIBIT "A" Legal Description of Property Property to be described by survey, consisting generally of land described on attached map as Lots 45-50, including land shown for detention pond abutting said lots. EXHIBIT "B" Form of Business Property Lease See attached.