HomeMy WebLinkAbout3 Stooges, LLC - Development Agreement - 520 W. Parker St. - 9/19/2022 (2) to make the Property usable for Company's purposes as contemplated by this
Agreement are collectively referred to as the "Project".
2. 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 the Improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is
proposed, Company shall submit modified Plans (the "Modified Plan") to the City for
review. Modified Plans shall be subject to approval by the City as provided in this
Section. City shall approve the modified Plans in writing if: (a) the Modified Plans
conform to the terms and conditions of this Agreement; (b) the Modified Plans conform
to all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (c) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements, and (d)
no Event of Default under the terms of this Agreement has occurred; provided, however,
that any such approval of the Plans or Modified Plans pursuant to this Section shall
constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building, fire, zoning or
other ordinances or regulations of the City, and shall not be deemed to be sufficient
plans to serve as the basis for the issuance of a building permit if the Plans or Modified
Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit.
The Modified Plans must be rejected in writing by City within thirty (30)
days of submission or shall be deemed to have been approved by the City. If City
rejects the Modified Plans in whole or in part, Company shall submit new or corrected
Modified Plans within thirty (30) days after receipt by Company of written notification of
the rejection, accomplished by a written statement of the City specifying the respects in
which Company's Modified Plans fail to conform to the requirements of this Section.
The provisions of this Section relating to approval, rejection and resubmission of
corrected Modified Plans shall continue to apply until the Modified Plans have been
approved by the City; provided, however, that in any event Company shall submit
Modified Plans which are approved by City prior to commencement of construction of
the additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve
Company of any obligation to comply with the terms and provisions of this Agreement,
or the provision of applicable federal, state and local laws, ordinances and regulations,
nor shall approval of the Plans or Modified Plans by City be deemed to constitute a
waiver of any Event of Default. Approval of Plans or Modified Plans hereunder is solely
for purposes of this Agreement and shall not constitute approval for any other City
purpose nor subject the City to any liability for the Improvements as constructed.
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3. Timeliness of Construction. The parties agree that Company's
commitment to undertake the Project and to construct the Improvements in a timely
manner constitutes a material inducement for the City to make the promises to
Company and to make available to Company the incentives provided for in this
Agreement, and that without said commitment City would not do so. Company must
begin construction of the Improvements within four (4) months after the date of this
Agreement, and the Improvements must be Substantially Completed by December 31,
20, 2023 (the "Completion Date"). For purposes of this Agreement, "Substantially
Completed" means the date on which the Improvements have been completed in
accordance with the Plans or Modified Plans to the extent necessary for the City to
issue a certificate of occupancy relating thereto.
If Company has not, in good faith, begun the construction of the
Improvements on the schedule stated above, then title to the Property shall revert to the
City, except as provided in this Agreement; provided, however, that if construction has
not begun within the stated period but the development of the Project is still imminent,
the City's Community Planning and Development Director may, but shall not be required
to, consent to an extension of time of up to six (6) months for the construction of the
Improvements, and if an extension is granted but construction of the Improvements has
not begun within such extended period, then the title to the Property shall revert to the
City after the end of said extended period. Any further time extensions will require
consent of the City Council. If development has commenced within the required period,
as the same may be extended, and is subsequently stopped or delayed as a result of an
act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond
the reasonable control of Company, the requirement that construction be completed by
the Completion Date shall be tolled for a period of time equal to the period of such
stoppage or delay. If, after commencement of construction, construction is not
completed by the Completion Date, as the same may be extended, then City may
terminate this Agreement as set forth in Section 13, title to the Property shall revert to
City, and City shall have no further obligation hereunder.
4. City Assistance. In addition to the other incentives provided by City to
Company under this Agreement, City agrees to provide the following incentives and
assistance to facilitate the Project:
A. Support for Applications. City agrees that it will cooperate in good
faith with Company and, if necessary for program requirements, sponsor
Company applications for available state tax credits and/or rebates and other
available government funding, if Company chooses to make any such
application(s).
B. Grant. Within thirty (30) days after City has issued a certificate of
occupancy for the Improvements and has verified Company's compliance with all
requirements of this Agreement that Company is to have performed by such
date, City will pay to Company a development grant in the amount of $59,887.00.
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C. Partial Tax Exemption. Because the Property is located in a
designated Consolidated Urban Revitalization Area (CURA), the Property is
eligible for tax exemption consistent with and to the extent provided for in Iowa
law, provided that Company meets all requirements to qualify for such
exemption.
D. Street Vacate. City vacate and convey to Company by quit claim
deed no less than one-half of platted Fairview Avenue abutting the Property on
the west side, between a northwesterly extension of the southwesterly line of the
Property and a westerly extension of the north line of Property. Consistent with
City policy, if the owner of property on the west side of said portion of Fairview
Avenue declines to acquire the west one-half of the vacated street, then City will
convey all of such portion of vacated Fairview Avenue to Company. City may
reserve an easement over and across said vacated land for surface water
drainage purposes.
5. Utilities and Services. Company will be responsible, at its own cost, for
extending water, sewer, telephone, telecommunications, electric, gas and other utility
services to any location on the Property and for payment of any associated connection
fees.
6. 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 assessed valuation for the Property as improved pursuant to
this Agreement, which shall be fixed for assessment purposes, below the amount of
$2,456,910.00 (the "Minimum Actual Value"), through:
(a) willful destruction of the Property, the Improvements, or any part of
either;
(b) a request to the assessor of Black Hawk County; or
(c) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with its execution and
delivery of this Agreement.
7. Grant of Easement. No later than the date that City pays to Company
the development grant provided for in Section 4.B, Company will execute and deliver to
City, on terms reasonably satisfactory to City, a permanent easement for ingress and
egress to and across the Property for passage of emergency response vehicles
between Clark Street on the west and David Street on the east. The parties shall
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cooperate in good faith to determine a route for such easement if it is desired to be a
route other than the shortest path between the east and west access points.
8. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
engaged in activities of comparable size and liability exposure, and shall provide
evidence of such coverages to the City upon request.
B. Until the Improvements are Substantially Completed, Company
shall make such reports to City, in such detail and at such times as may be
reasonably requested by City, as to the actual progress of Company with respect
to construction of the Improvements.
C. During construction of the Improvements and thereafter until
termination of the MAA, Company will cooperate fully with the City in resolution of
any traffic, parking, trash removal or public safety problems which may arise in
connection with the construction and operation of the Improvements.
D. The Property will have an assessed value as set forth in the MAA,
and Company agrees that the minimum actual value of the Property and
completed Improvements as stated in the MAA will be a reasonable estimate of
the actual value of the Property and Improvements for ad valorem property tax
purposes. Company agrees that it will spend enough in construction of the
Improvements that, when combined with the value of the Property and related
site improvements, will equal or exceed the assessor's minimum actual value for
the Property and Improvements as set forth in the MAA.
E. Company will maintain, preserve and keep the Property, including
but not limited to the Improvements, in good repair and working order, ordinary
wear and tear excepted, and from time to time will make all necessary repairs,
replacements, renewals and additions.
F. Company will comply with all applicable land development laws,
City and county ordinances, and all laws, rules and regulations relating to its
businesses, other than laws, rules and regulations where the failure to comply
with the same or the sanctions and penalties resulting therefrom, would not have
a material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Company.
G. During the period until termination of the MAA, Company agrees
that it will make no conveyance, lease or other transfer of the Property or any
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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.
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.
9. 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.
10. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It is duly organized, validly existing, and in good standing under the
laws of the state of its organization and is duly qualified and in good standing
under the laws of the State of Iowa.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company and, assuming due authorization, execution and
delivery by the other parties hereto, is in full force and effect and is a valid and
legally binding instrument of Company that is enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
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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. 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.
F. The financing commitments, which Company will proceed with due
diligence to obtain, to finance the construction of the Improvements will be
sufficient to enable Company to successfully complete construction of the
Improvements as contemplated in this Agreement, subject to additional costs
incurred due to Unavoidable Delays.
11. 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 or resulting from any defect in the Improvements. The indemnified
parties shall not be liable for, and Company shall indemnify, defend and hold
such parties harmless against, any damage or injury to the persons or property of
Company or its directors, officers, employees, contractors or agents, or any other
person who may be about the Property or the Improvements, due to any act of
negligence or willful misconduct of any person, other than any act of gross
negligence or willful misconduct on the part of any such indemnified party or its
officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
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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.
12. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, the Property, or this Agreement, without the prior written
consent of City;
C. Failure by Company to pay, before delinquency, all ad valorem
property taxes levied on or against the Property;
D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement or the MAA;
E. Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to the Property.
F. Any representation or warranty made by Company in this
Agreement, or made by Company in any written statement or certificate furnished
by Company pursuant to this Agreement, shall prove to have been incorrect,
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incomplete or misleading in any material respect on or as of the date of the
issuance or making thereof.
13. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may suspend its performance under
this Agreement until it receives assurances from Company, deemed adequate by
City, that Company will cure its default and continue its performance under this
Agreement. Before exercising such remedy, City shall give 30 days' written
notice to Company of the Event of Default, provided that by the conclusion of
such period the Event of Default shall not have been cured, or the Event of
Default cannot reasonably be cured within 30 days and Company shall not have
provided assurances reasonably satisfactory to the City that the Event of Default
will be cured as soon as reasonably possible. Further, after suspension of
performance in the manner set forth above, City may terminate this Agreement
and exercise any and all remedies available at law, equity, contract or otherwise.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
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. City hereby agrees to timely undertake and complete all such
procedures, hearings and approvals so that the benefits that City promises to Company
hereunder as an inducement for Company to undertake and complete the Project as set
forth in this Agreement will not be lost. If such completion does not occur, then any
conveyance, benefit or incentive of any type provided by City hereunder within said 180-
day period is subject to reverter of title, revocation, repayment or other appropriate
action to restore such property, benefit or incentive to City, and Company agrees to
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cooperate diligently and in good faith with any reasonable request by City to effectuate
the restoration of same. To the extent permitted by applicable law, City agrees to
indemnify Company and hold it harmless from and against any claims, damages, costs,
expenses or loss of value suffered by Company and arising from such revocation or
repayment.
15. Materiality of Promises, Covenants, Representations, and Warranties
of Company. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company to be performed is a material term of
this Agreement, and each and every such promise, covenant, representation, and
warranty constitutes a material inducement for City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
or in the event of the incorrectness or falsity of any representation or warranty, City
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.
16. 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.
17. 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.
18. 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, # Stooges LLC, PO Box 203, Waterloo, Iowa 50704.
Attention: Manager.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
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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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
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25. 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.
26. 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.
27. 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]
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CITY OF WATERLOO, IOWA 3 STOOGES, LLC
By: a. .-e-A.-4.-.�' t By:
//'","-.
Quentin Hart, Mayor ger
Attest:
Kelley F le, 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 hereunder is joint and several.
le401:044161
Robert Fischels Anthon Fischels
opher ischels
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EXHIBIT "A"
Legal Description of Property
All that part of the Northwest Quarter of the Southeast Quarter of Section No. Fourteen (14),
Township No. Eighty-nine (89) North, Range No. Thirteen (13) West of the Fifth (5th) Principal
Meridian in the City of Waterloo, Iowa, that lies North of the North line of Parker Street and
Northeasterly of the Northeasterly line of the right-of-way of the Illinois Central Gulf Railroad
Company formerly the Illinois Central Railroad and West of the west line of the right-of-way of
the Waterloo Railroad Company formerly the Waterloo, Cedar Falls and Northern Railroad,
except the North One Hundred Fifty (150) feet thereof.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
. ''x .7' r '\ , 2022, by and among the CITY OF WATERLOO, IOWA ("City"), 3
STOOGES, LLC ("Company"), and the COUNTY ASSESSOR of the City of Waterloo,
Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City, including the
construction of certain improvements as described in the Development Agreement (the
"Minimum Improvements") on the Property, as provided in the Development Agreement
(the "Project"); and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Company pursuant to the Development
Agreement, which shall be effective upon substantial completion of the Project and from
then until this Agreement is terminated pursuant to the terms herein and which is
intended to reflect the minimum actual value of the land and buildings as to the Project
only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which the parties contemplate will be
erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Minimum
Improvements by the Company, the minimum assessed value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by the Company as a part of the Project shall not be less than $2,456,910 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by
December 31, 2023. If the Minimum Improvements are not substantially completed by
said date, then the parties agree to execute an amendment to this Agreement that will
extend the date specified in Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2035. The Minimum Actual Value shall be maintained during such period regardless of:
(a) any failure to complete the Minimum Improvements; (b) destruction of all or any
portion of the Minimum Improvements; (c) diminution in value of the Property or the
Minimum Improvements; or (d) any other circumstance, whether known or unknown and
whether now existing or hereafter occurring.
3. Company shall pay, or cause to be paid, when due, all real property taxes
and assessments payable with respect to all and any parts of the Property and the
Minimum Improvements pursuant to the provisions of this Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Property or the Minimum Improvements, any interruption in,
or discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property
or the Minimum Improvements.
4. Company agrees that its obligation to make the tax payments required
hereby, to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes) and that Company
shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to
any early termination of this Agreement for any reason whatsoever.
5. Nothing herein shall be deemed to waive the Company's rights under Iowa
Code § 403.6, as amended, to contest that portion of any actual value assignment
made by the Assessor in excess of the Minimum Actual Value established herein. In no
event, however, shall the Company seek or cause the reduction of the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement. Nothing herein shall limit the discretion of the Assessor to assign at any
time an actual value to the land and Minimum Improvements in excess of the Minimum
Actual Value.
6. Company agrees that during the term of this Agreement it will not:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property
contained as a part of the Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; or
2
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board of review of the city, county, state or to the
Director of Revenue of the State of Iowa to reduce the Minimum Actual Value; or
(e) cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
7. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
8. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
9. Each provision, section, sentence, clause, phrase, and word of this
Agreement is intended to be severable. If any portion of this Agreement shall be
deemed invalid or unenforceable, whether in whole or in part, the offending provision or
part thereof shall be deemed severed from this Agreement and the remaining provisions
of this Agreement shall not be affected thereby and shall continue in full force and
effect. If, for any reason, a court finds that any portion of this Agreement is invalid or
unenforceable as written, but that by limiting such provision or portion thereof it would
become valid and enforceable, then such provision or portion thereof shall be deemed
to be written, and shall be construed and enforced, as so limited.
10. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
3
CITY OF WATERLOO, IOWA 3 STOOGES, LLC
By: D-t- By:
Quentin Hart, Mayor M ger
By: % 1
Kelley Felchle, City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this t day of '€),(Dirihrnts)er' , 2022, before me, a Notary Public in and
for the State of Iowa, personally appeared Quentin Hart and Kelley Felchle, to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed
and sealed on behalf of said municipal corporation by authority and resolution of its City
Council, and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation by it and by them voluntarily executed.
4°,A` NANCY HIGBY
CO3UIMISSION N0.788229
Nota P blic
* 7.. * MY COMMISSION!WIRES rY
4
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on r -t s , 2022 by
l� f b ►`� 1`7C. l as Manager of 3 Stooges, LLC
.0.5""1-0 MELISSA YOUNGBLUT ,U J%)(J ( �1t 1'�1c L
Z COMMISSION NO.747753 Notary J
* * MY COMMISSION EXPIRES
IOWA JULY 6,2025
5
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Two Million Four Hundred Fifty Six Thousand Nine Hundred Ten Dollars
($2,456,910.00) until termination of this Minimum Assessment Agreement pursuant to
the terms hereof, subject to adjustment as provided in said agreement.
sor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on NoJtkt✓V' of , 2022 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
,ApiA[,e, ADRIENNE MILLER •
4:Yr COMMISSION NO. 809109i
* MY COMMISSION EXPIRES tary Public
bvos FEBRUARY 23,2024