HomeMy WebLinkAboutCamenzind Masonry, LLC - Development and Minimum Assessment Agreement - 8.15.2022(RECORDED) ll II I\II lII l\ IIIIIIIIIIIIIIIIIIIIIIIIIII\
Doc ID: 011837600020 Type: GEN
Recorded: 09/22/2022 at 03:38:06 PM
Fee Amt: $102.00 Page 1 of 20
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
File2023-00005042
AI) t ' tt i,V\t
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
s 2 c Z? , by and between Camenzind Masonry, LLC (the "Company")
and the City of Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, 2015,
as amended (the "Urban Renewal Act"), City is engaged in carrying out
urban renewal project activities in an area known as the University Avenue
Area Urban Renewal and Redevelopment Plan Area ("Urban Renewal
Area").
B. Company is willing and able to finance and construct buildings and related
improvements on property located in the East Waterloo Unified Urban
Renewal and Redevelopment Plan Area, formerly known as the Airport
Area Development Plan 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. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Company for the sum of $1.00 (the "Purchase Price"). Conveyance 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 Improvements (defined below), which may take the
form of a lending commitment letter. City 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, in which case 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. Option Property. Company shall have the option to acquire the real
property described on Exhibit "A-1" attached hereto (the "Option Property") on the terms
set forth in this Section. To exercise said option, Company shall deliver written notice of
exercise to City within three (3) years from the date of this Agreement, or said option
shall lapse. Upon City's receipt of said notice, the parties shall negotiate a new
development agreement with respect to said project, pursuant to which Company shall
construct a commercial building and related improvements at an agreed minimum
assessed value, supported by such development incentives to which the parties may
agree, if any, including but not limited to Company's purchase of the Option Property
from the City for the sum of $1.00, with abstract update to be paid for by City.
3. Improvements by Company. Company shall construct on the Property a
commercial building of approximately 10,800 square feet for office and shop, and
related landscaping, paving, signage and parking improvements (collectively, the
"Improvements"). Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement, the Urban Renewal Plan, and all
applicable City, state, and federal building codes and shall comply with all applicable
City ordinances and other applicable law. 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".
4. 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
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scale of the Improvements to be constructed shall not be significantly less than the
scope and scale of the Improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is
proposed, Company shall submit modified Plans (the "Modified 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.
5. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to cause the Project to be undertaken and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend the incentives provided for in this Agreement, and that without said commitment
City would not have done so. Subject to Unavoidable Delays (defined below), Company
must commence construction of the Improvements within six (6) months after the date
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of this Agreement and must Substantially Complete construction no later than fourteen
(14) months after the date of this Agreement (the "Completion Deadline"). For purposes
of this Agreement, "Substantially Complete" 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 and the City has verified that any Project element for which
no permit was necessary has been Substantially Completed.
If Company has not constructed the Improvements within the required period or
any extended period, then City may terminate this Agreement as set forth in Section 17,
title to the Property shall revert to the City, and City shall have no further obligation
hereunder; provided, however, that if construction has not begun within the stated
period but the development of the Project is still imminent, the City's Community
Planning and Development Director may, but shall not be required to, consent to an
extension of time of up to six (6) months for the construction of the Improvements. Any
further time extensions will require consent of the City Council. If construction has
commenced within the required period or any extended period and is stopped and/or
delayed as a result of an act of God, war, civil disturbance, court order, labor dispute,
fire, or other cause beyond the reasonable control of Company (each of the foregoing is
an "Unavoidable Delay"), then time lost as a result of Unavoidable Delays shall be
added to extend the Completion Deadlines by a number of days equal to the number of
days lost as a result of Unavoidable Delays, and thereafter if construction is not
completed within the allowed period of extension, City may terminate this Agreement as
set forth in Section 17, title to the Property shall revert to City, and City shall have no
further obligation hereunder with respect thereto. If City terminates this Agreement,
Company shall not be entitled to a refund of the Purchase Price, whether in whole or in
part.
6. Reverter of Title; Indemnity. In the event of any reverter of title,
Company agrees that it shall, at its own expense, promptly execute all documents,
including but not limited to a special warranty deed, or take such other actions as the
City may reasonably request to effectuate said reverter and to deliver to City title to the
Property, free and clear of any lien, claim, charge, security interest, mortgage,
encumbrance or past-due or currently due property taxes (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. 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
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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
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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. Until the 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 Improvements.
8. 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.
9. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other charges whatsoever levied upon or assessed or placed against the Property.
Company further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or
cause a reduction in the taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$550,000.00 (the "Minimum Actual Value"), through:
(i) willful destruction of the Property, the Improvements, or any part of
either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with execution and
delivery of this Agreement.
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:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
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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.
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. The Property will have a taxable value as set forth in the MAA and
any amendments thereto, and Company agrees that the minimum actual value of
the Property, or applicable portion thereof, and completed Improvements as
stated in the MAA and any amendments thereto will be a reasonable estimate of
the actual value of the Property for ad valorem property tax purposes. Company
agrees that it will spend enough in construction of the Improvements that, when
combined with the value of the Property, or applicable portion thereof, and
related site improvements, will equal or exceed the assessor's minimum actual
value for the Property, or applicable portion thereof, and Improvements as set
forth in the MAA and any amendments thereto.
F. Until termination of the MAA, Company will maintain, preserve and
keep the Property, including but not limited to the Improvements, in good repair
and working order, ordinary wear and tear excepted, and from time to time will
make all necessary repairs, replacements, renewals and additions.
G. Until termination of the MAA, 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.
H. Company shall pay, or cause to be paid, when due, all real property
taxes and assessments payable with respect to any and all parts of the Property
conveyed to it. Company agrees that (1) it will not seek administrative review or
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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.
I. Special actions. No later than the date of conveyance of the
Property, Company shall convey to City by special warranty deed the real
property that is the subject of certain development agreements between the
parties dated March 15, 2021, concerning the development of property described
as Lots 2 and 5, Wagner Road Subdivision, City of Waterloo. Company shall
also deliver to City the abstract of title for each of said lots. The foregoing
actions are in compliance with Company's duties concerning reverter of title as
set forth in each of said development agreements.
11. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
12. Representations and Warranties of 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.
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.
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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.
13. 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 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.
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
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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.
14. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 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.
15. 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, except as permitted in accordance with Section 7 for security of
financing for completion of the Improvements. 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.
16. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, 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;
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D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement or an MAA;
E. Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to 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.
17. 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.
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
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the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
18. 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.
19. 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.
20. 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.
21. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 217 Rhey Street, Waterloo, Iowa 50703,
Attention: Michael Camenzind.
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Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
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27. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which, including counterparts signed electronically or signed counterparts
transmitted by facsimile or other electronic means, shall be deemed an original and all
of which, taken together, shall constitute one and the same instrument.
29. 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.
30. 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.
[signatures on next page]
13
CITY OF WATERLOO, IOWA CAMENZIND MASONRY, LLC
flj
— hBY: By: 1 � 1�09
Quentin M. Hart, Mayor IVuichael Camenzind
Managing Member
Attest:
Kelley Felc I , City Clerk
PERSONAL GUARANTY. The undersigned members and/or managers of
Company hereby agree for themselves and their heirs, personal representatives, and
assigns, to unconditionally guarantee to City, its successors and assigns, the full and
prompt performance by Company, its successors and assigns, of all promises and
covenants on the part of Company to be performed pursuant to the foregoing
Agreement, including but not limited to the duties of indemnity set forth therein, if any.
Liability of guarantors hereuner is joint and several.
f
'MicFl C r6enz
14
EXHIBIT "A"
Legal Description of Property
The South 365 feet of the West 240 feet of Tract "B" of Waterloo Air and Rail Park 1st
Addition, City of Waterloo, Black Hawk County, Iowa.
EXHIBIT "A-1"
Legal Description of Option Property
The North 365 feet of the South 730 feet of the West 240 feet of Tract "B" of Waterloo
Air and Rail Park 1st Addition, City of Waterloo, Black Hawk County, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
, by and among the CITY OF WATERLOO, IOWA ("City"),
Camenzind Masonry, LLC ("Company"), and the COUNTY ASSESSOR of the City of
Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property, described in Exhibit "A" thereto, (the "Property") located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area ("Project") within the City and
within the East Waterloo Unified Urban Renewal and Redevelopment Plan Area,
formerly known as the Airport Area Development Plan Area; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the land and the building(s)
pursuant to this Agreement and applicable only to the Project, which shall be effective
upon substantial completion of the Project and from then until this Agreement is
terminated pursuant to the terms herein and which is intended to reflect the minimum
actual value of the land and buildings as to the Project only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which the parties contemplate
will be erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Improvements by the
Company, the minimum actual taxable value which shall be fixed for assessment
purposes for the land and Improvements to be constructed thereon by the Company as
a part of the Project shall not be less than $550,000.00 (the "Minimum Actual Value")
until termination of this Agreement. The parties hereto agree that construction of the
Improvements will be substantially completed on or before the date set forth in the
Agreement, but in any event not later than December 31, 2023. If it is not, then the
parties agree to execute an amendment to this Agreement that will extend the dates
specified in Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2033. Nothing herein shall be deemed to waive the Company's rights under Iowa Code
§ 403.6, as amended, to contest that portion of any actual value assignment made by
the Assessor in excess of the Minimum Actual Value established herein. In no event,
however, shall the Company seek or cause the reduction of the actual value assigned
below the Minimum Actual Value established herein during the term of this Agreement.
Nothing herein shall limit the discretion of the Assessor to assign at any time an actual
value to the land and Improvements in excess of the Minimum Actual Value.
3. Company agrees that it will not seek administrative review or judicial
review of the applicability or constitutionality of any Iowa tax statute or regulation
relating to the taxation of real property included within the Property that is determined by
any tax official to be applicable to the Property or to Company, or raise the
inapplicability or constitutionality of any such tax statute or regulation as a defense in
any proceedings.
4. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
5. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
6. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA CAMENZIND MASONRY, LLC
BY: 1, By: %h r
Quentin M. Hart, Mayor Michael Camenzind
Managing Member
By:
Kelley Felc , City Clerk
2
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
A
On this �� day of ��_c, L.=X -2-, before me, a Notary Public in and for
the State of Iowa, personally appeared Quentin M. Hart and Kelley Felchle, to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed
and sealed on behalf of said municipal corporation by authority and resolution of its City
Council, and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation by it and by them voluntarily executed.
F._ NANCY HIGB Notary blic (AtI
COMMISSION NO.788229
:i ' MY COMMISSION EXPIRES
'ow.. _'.-%--.,Cr"2
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on au y 51, 1/4-1 =)t� : , by Michael
Camenzind as Managing Member of Camenzind Msonry, LLC.
4, I
Notary Public
( .•.'
AL KAYSCOMMI NO. 195* MY COMMISSION EXPIRES
low, MARCH 2,2025
3
f
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon which
the improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment
Agreement appears reasonable, hereby certifies as follows: The undersigned
Assessor, being legally responsible for the assessment of the property subject to the
development, upon completion of improvements to be made on it and in accordance
with the Minimum Assessment Agreement, certifies that the actual value assigned to
such land, building and equipment upon completion of the development shall not be
less than Five Hundred Fifty Thousand Dollars ($550,000.00) until termination of this
Minimum Assessment Agreement pursuant to the terms hereof.
ssessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on r{-eMbef aa,,a„oa?,by T.J. Koenigsfeld,
Assessor for Black Hawk County, Iowa.
ADRIENNE MILLER Lir
* * CMYOMMI COMMISSION EXPIIRRES9 otary PUbI
k w►k FEBRUARY 23,2024 -
V
4_
83AfgX 001 :iiMM:"):Yk4 * t=t. **
k i,I Yf4AUr: 3% .acv;r
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
Aq use �s z�2-2 , by and between Camenzind Masonry, LLC (the "Company")
and thle City of Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, 2015,
as amended (the "Urban Renewal Act"), City is engaged in carrying out
urban renewal project activities in an area known as the University Avenue
Area Urban Renewal and Redevelopment Plan Area ("Urban Renewal
Area").
B. Company is willing and able to finance and construct buildings and related
improvements on property located in the East Waterloo Unified Urban
Renewal and Redevelopment Plan Area, formerly known as the Airport
Area Development Plan 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. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Company for the sum of $1.00 (the "Purchase Price"). Conveyance 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 Improvements (defined below), which may take the
form of a lending commitment letter. City 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, in which case 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. Option Property. Company shall have the option to acquire the real
property described on Exhibit "A-1" attached hereto (the "Option Property") on the terms
set forth in this Section. To exercise said option, Company shall deliver written notice of
exercise to City within three (3) years from the date of this Agreement, or said option
shall lapse. Upon City's receipt of said notice, the parties shall negotiate a new
development agreement with respect to said project, pursuant to which Company shall
construct a commercial building and related improvements at an agreed minimum
assessed value, supported by such development incentives to which the parties may
agree, if any, including but not limited to Company's purchase of the Option Property
from the City for the sum of $1.00, with abstract update to be paid for by City.
3. Improvements by Company. Company shall construct on the Property a
commercial building of approximately 10,800 square feet for office and shop, and
related landscaping, paving, signage and parking improvements (collectively, the
"Improvements"). Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement, the Urban Renewal Plan, and all
applicable City, state, and federal building codes and shall comply with all applicable
City ordinances and other applicable law. 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".
4. 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
2
scale of the Improvements to be constructed shall not be significantly less than the
scope and scale of the Improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is
proposed, Company shall submit modified Plans (the "Modified 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.
5. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to cause the Project to be undertaken and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend the incentives provided for in this Agreement, and that without said commitment
City would not have done so. Subject to Unavoidable Delays (defined below), Company
must commence construction of the Improvements within six (6) months after the date
3
of this Agreement and must Substantially Complete construction no later than fourteen
(14) months after the date of this Agreement (the "Completion Deadline"). For purposes
of this Agreement, "Substantially Complete" 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 and the City has verified that any Project element for which
no permit was necessary has been Substantially Completed.
If Company has not constructed the Improvements within the required period or
any extended period, then City may terminate this Agreement as set forth in Section 17,
title to the Property shall revert to the City, and City shall have no further obligation
hereunder; provided, however, that if construction has not begun within the stated
period but the development of the Project is still imminent, the City's Community
Planning and Development Director may, but shall not be required to, consent to an
extension of time of up to six (6) months for the construction of the Improvements. Any
further time extensions will require consent of the City Council. If construction has
commenced within the required period or any extended period and is stopped and/or
delayed as a result of an act of God, war, civil disturbance, court order, labor dispute,
fire, or other cause beyond the reasonable control of Company (each of the foregoing is
an "Unavoidable Delay"), then time lost as a result of Unavoidable Delays shall be
added to extend the Completion Deadlines by a number of days equal to the number of
days lost as a result of Unavoidable Delays, and thereafter if construction is not
completed within the allowed period of extension, City may terminate this Agreement as
set forth in Section 17, title to the Property shall revert to City, and City shall have no
further obligation hereunder with respect thereto. If City terminates this Agreement,
Company shall not be entitled to a refund of the Purchase Price, whether in whole or in
part.
6. Reverter of Title; Indemnity. In the event of any reverter of title,
Company agrees that it shall, at its own expense, promptly execute all documents,
including but not limited to a special warranty deed, or take such other actions as the
City may reasonably request to effectuate said reverter and to deliver to City title to the
Property, free and clear of any lien, claim, charge, security interest, mortgage,
encumbrance or past -due or currently due property taxes (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. 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
4
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. Until the 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 Improvements.
8. 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.
9. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other charges whatsoever levied upon or assessed or placed against the Property.
Company further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or
cause a reduction in the taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$550,000.00 (the "Minimum Actual Value"), through:
either;
(i) willful destruction of the Property, the Improvements, or any part of
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with execution and
delivery of this Agreement.
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:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
5
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.
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. The Property will have a taxable value as set forth in the MAA and
any amendments thereto, and Company agrees that the minimum actual value of
the Property, or applicable portion thereof, and completed Improvements as
stated in the MAA and any amendments thereto will be a reasonable estimate of
the actual value of the Property for ad valorem property tax purposes. Company
agrees that it will spend enough in construction of the Improvements that, when
combined with the value of the Property, or applicable portion thereof, and
related site improvements, will equal or exceed the assessor's minimum actual
value for the Property, or applicable portion thereof, and Improvements as set
forth in the MAA and any amendments thereto.
F. Until termination of the MAA, Company will maintain, preserve and
keep the Property, including but not limited to the Improvements, in good repair
and working order, ordinary wear and tear excepted, and from time to time will
make all necessary repairs, replacements, renewals and additions.
G. Until termination of the MAA, 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.
H. Company shall pay, or cause to be paid, when due, all real property
taxes and assessments payable with respect to any and all parts of the Property
conveyed to it. Company agrees that (1) it will not seek administrative review or
6
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.
Special actions. No later than the date of conveyance of the
Property, Company shall convey to City by special warranty deed the real
property that is the subject of certain development agreements between the
parties dated March 15, 2021, concerning the development of property described
as Lots 2 and 5, Wagner Road Subdivision, City of Waterloo. Company shall
also deliver to City the abstract of title for each of said lots. The foregoing
actions are in compliance with Company's duties concerning reverter of title as
set forth in each of said development agreements.
11. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
12. Representations and Warranties of 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.
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.
7
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.
13. 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 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.
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
8
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.
14. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 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.
15. 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, except as permitted in accordance with Section 7 for security of
financing for completion of the Improvements. 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.
16. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, 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;
9
D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement or an MAA;
E. Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to 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.
17. 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.
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
10
the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
18. 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.
19. 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.
20. 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.
21. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 217 Rhey Street, Waterloo, Iowa 50703,
Attention: Michael Camenzind.
11
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
12
27. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which, including counterparts signed electronically or signed counterparts
transmitted by facsimile or other electronic means, shall be deemed an original and all
of which, taken together, shall constitute one and the same instrument.
29. 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.
30. 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.
[signatures on next page]
13
CITY OF WATERLOO, IOWA
By: L �j.� e� �16+')
Quentin M. Hart, Mayor
Attest:
JatiAL-
Kelley Felc, City Clerk
CAMENZIND MASONRY, LLC
BY: // (741' .--/-111'74/
14/7/
Michael Camenzind
Managing Member
PERSONAL GUARANTY. The undersigned members and/or managers of
Company hereby agree for themselves and their heirs, personal representatives, and
assigns, to unconditionally guarantee to City, its successors and assigns, the full and
prompt performance by Company, its successors and assigns, of all promises and
covenants on the part of Company to be performed pursuant to the foregoing
Agreement, including but not limited to the duties of indemnity set forth therein, if any.
Liability of guarantors hereunc}er is joint and several.
&lel enznie
14
EXHIBIT "A"
Legal Description of Property
The South 365 feet of the West 240 feet of Tract "B" of Waterloo Air and Rail Park 1st
Addition, City of Waterloo, Black Hawk County, Iowa.
EXHIBIT "A-1"
Legal Description of Option Property
The North 365 feet of the South 730 feet of the West 240 feet of Tract "B" of Waterloo
Air and Rail Park 1st Addition, City of Waterloo, Black Hawk County, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
Al\tkcyl t— is 2072__ , by and among the CITY OF WATERLOO, IOWA ("City"),
Camenzind Masonry, LLC ("Company"), and the COUNTY ASSESSOR of the City of
Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property, described in Exhibit "A" thereto, (the "Property") located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area ("Project") within the City and
within the East Waterloo Unified Urban Renewal and Redevelopment Plan Area,
formerly known as the Airport Area Development Plan Area; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the land and the building(s)
pursuant to this Agreement and applicable only to the Project, which shall be effective
upon substantial completion of the Project and from then until this Agreement is
terminated pursuant to the terms herein and which is intended to reflect the minimum
actual value of the land and buildings as to the Project only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which the parties contemplate
will be erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Improvements by the
Company, the minimum actual taxable value which shall be fixed for assessment
purposes for the land and Improvements to be constructed thereon by the Company as
a part of the Project shall not be less than $550,000.00 (the "Minimum Actual Value")
until termination of this Agreement. The parties hereto agree that construction of the
Improvements will be substantially completed on or before the date set forth in the
Agreement, but in any event not later than December 31, 2023. If it is not, then the
parties agree to execute an amendment to this Agreement that will extend the dates
specified in Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2033. Nothing herein shall be deemed to waive the Company's rights under Iowa Code
§ 403.6, as amended, to contest that portion of any actual value assignment made by
the Assessor in excess of the Minimum Actual Value established herein. In no event,
however, shall the Company seek or cause the reduction of the actual value assigned
below the Minimum Actual Value established herein during the term of this Agreement.
Nothing herein shall limit the discretion of the Assessor to assign at any time an actual
value to the land and Improvements in excess of the Minimum Actual Value.
3. Company agrees that it will not seek administrative review or judicial
review of the applicability or constitutionality of any Iowa tax statute or regulation
relating to the taxation of real property included within the Property that is determined by
any tax official to be applicable to the Property or to Company, or raise the
inapplicability or constitutionality of any such tax statute or regulation as a defense in
any proceedings.
4. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
5. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
6. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA
By: V
Quentin M. Hart, Mayor
2
CAMENZIND MASONRY, LLC
By:
ichael Camenzind
Managing Member
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK )
i
On this I day ofAtc Us'i— 2k7Z , before me, a Notary Public in and for
the State of Iowa, personally appeared Quentin M. Hart and Kelley Felchle, to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed
and sealed on behalf of said municipal corporation by authority and resolution of its City
Council, and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation by it and by them voluntarily executed.
•• NANCY HIGBY
T. COMMISSION NO.788229
MY COMMISSION EXPIRES
--2
STATE OF IOWA )
ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on Glu: ;; sl `I 3u $ , by Michael
Camenzind as Managing Member of Camenzind r asonry, LLC.
BARBARA J KAYSER
COMMISSION NO. 195095
MY CO
MARCH I22,EXPIRES
, 2025
3
A3eYA)! L R
aft .00 tiaa IMMO-
2eW14X3 P10122114,0400
SUS ,C HMAIVI
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon which
the improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment
Agreement appears reasonable, hereby certifies as follows: The undersigned
Assessor, being legally responsible for the assessment of the property subject to the
development, upon completion of improvements to be made on it and in accordance
with the Minimum Assessment Agreement, certifies that the actual value assigned to
such land, building and equipment upon completion of the development shall not be
less than Five Hundred Fifty Thousand Dollars ($550,000.00) until termination of this
Minimum Assessment Agreement pursuant to the terms hereof.
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA
COUNTY OF BLACK HAWK
Subscribed and sworn to before me on , by T.J. Koenigsfeld,
Assessor for Black Hawk County, Iowa.
Notary Public