Loading...
HomeMy WebLinkAboutMann Road Storage, LLC - Dev Agmnt & Minimum Assessment Agmnt - 5.15.2023Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50703. 319-234-5701 DEVELOPMENT AGREEMENT — Phased Development This Development Agreement (the "Agreement") is entered into as of buy , 2023 by and between Mann Road Storage, LLC (the "Company"), am id the Gity of Waterloo, Iowa (the "City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known as the University Avenue Area Urban Renewal and Redevelopment Plan Area ("Urban Renewal Area"). B. Company is willing and able to finance and undertake rehabilitation of an existing commercial property located in the Urban Renewal Area and to construct additional improvements. C. City considers remedying blight and supporting economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal. City believes that the development of the Property (defined below) is in the vital and best interests of the City and in accordance with the public purposes and provisions of the applicable State and local laws and requirements under which the project has been undertaken and is being assisted. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Development Property. Company is the owner, or is under contract to acquire, commercial structures located on real property at 3810 and 3840 University Avenue, Waterloo, described on Exhibit "A" attached hereto (the "Property") and consisting of tax parcel nos. 8913-20-254-015, 8913-20-354-016 and 8913-20-276-016. Company will undertake the Project (defined below) upon the Property or sell the Property in one or more transactions to one or more third -party developers for construction of buildings for office or commercial use or mixed office -commercial use, and related parking, landscape, and other improvements to the building and grounds. Company will divide the Property into three parcels, referred to herein as the "Main Parcel," the "Corner Parcel," and the "Remnant Parcel," the approximate area and dimensions of which are indicated on Exhibit "A-1" attached hereto. Legal descriptions for the divided parcels will be determined at a later time. 2. Improvements by Company; Schedules. Company agrees that the Phase 1 Improvements, Phase 2 Improvements, and the Outlot Improvements (all as defined below) and related landscaping and parking improvements (collectively, the "Improvements") shall be constructed in accordance with the terms of this Agreement, the Urban Renewal Plan, and all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully constructed. The Main Parcel, the Remnant Parcel, the Improvements, and all development -related work to make the Main Parcel and the Remnant Parcel usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". A. Phase 1. Company shall upgrade and renovate the Main Parcel structure to make it suitable for a climate -controlled storage building, and shall further make improvements to building exterior and parking lot, and shall otherwise renovate and improve the Property in accordance with the Plans or Modified Plans (defined below) (all of the foregoing renovations and improve- ments are collectively referred to as the "Phase 1 Improvements"). Company's minimum estimated investment in the Improvements is $6,000,000. Company shall obtain a building permit and commence the Phase 1 Improvements within six (6) months after the date of this Agreement and shall Substantially Complete same within twenty-four (24) months after the date of this Agreement (the "Phase 1 Completion Deadline"). For purposes of this Agreement, "Substantially Complete" means the date on which a phase of 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. B. Phase 2. Company shall construct, or cause to be constructed, upon the Remnant Parcel a mixed used commercial building and related landscaping and parking improvements (collectively, the "Phase 2 Improve- ments"). Company shall obtain a building permit and commence the Phase 2 Improvements within sixty (60) months after the date of this Agreement and shall Substantially Complete said improvements within eighteen (18) months thereafter. 7 4874-0161-1832, v. 1 C. Future Phases. Company is exploring and developing plans to construct, or cause to be constructed, upon the Property one or more additional outlot buildings and related landscaping and parking improvements (collectively, the "Outlot Improvements"). Development criteria and related incentives may be added to this Agreement by a mutually agreeable amendment. Company may obtain a building permit and commence the future phased Improvements within fifteen (15) years after the date of this Agreement and with the expectation that it will Substantially Complete said improvements within eighteen (18) months of each commencement date. 3. Construction Plans. Company agrees that it will cause the Improvements to be constructed on the Property in conformance with construction plans (the "Plans") that have been submitted to the City. Company agrees that the scope and scale of the Improvements to be constructed shall not be significantly less than the scope and scale of 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. 3 4874-0161-1832, v. 1 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. 4. City Activities in Aid of Project. A. Rebates and Grants. City shall provide property tax rebates and grant payments to Company as set forth elsewhere in this Agreement. B. Street Vacate. Subject to the conditions set forth in this paragraph, City will vacate and deed to Company a portion of the frontage road (the "Vacated Frontage") as indicated on Exhibit "A-2" attached hereto within ninety (90) days after the date of this Agreement. Conveyance shall be by quit claim deed, free and clear of all encumbrances arising by or through City except: (a) easements, conditions and restrictions of record; (b) current and future real estate real property taxes and assessments subject to the agreements made herein; and (c) general utility and right-of-way easements. 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 Project, which may take the form of a lending commitment letter. Company shall, at its own expense, prepare an updated abstract of title, or in lieu thereof Company may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to Company, and if City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Company, Company may terminate this Agreement. For purposes of this Agreement, the parties agree that the Vacated Frontage has a value of $100,000.00. The Vacated Frontage will contribute to the increase in assessed value as determined by the Black Hawk County Assessor. C. Infill Grant. As provided in the City's infill housing policy, City will pay a grant of $5,000.00 for timely completion of each dwelling unit within the Phase 2 Improvements. Each such grant will be payable to Company with respect to a given unit within ninety (90) days after City has verified that such unit has been Substantially Completed. 5. Utilities. Company will be responsible, at its own cost, for extending water, sewer, telephone, telecommunications, electric, gas and other utility services to any location on the 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 4 4874-0161-1832, v. 1 other charges whatsoever levied upon or assessed or placed against the Main Parcel. 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 Main Parcel as improved pursuant to this Agreement, which shall be fixed for assessment purposes, below the amount of $4,561,900.00 (the "Minimum Actual Value"), through: (i) willful destruction of the Main Parcel, 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. In connection with construction of Phase 2 Improvements, the parties will execute and record a separate amendment to the MAA for the purpose of increasing the Minimum Actual Value by no less than $2,000,000.00. If Company undertakes and completes construction of Outlot Improvements that increase the Minimum Actual Value by an amount to be determined by amendment hereto, and if Company desires to obtain Rebates with respect to such additional improvements, then Company shall execute and deliver an appropriate additional amendment to the MAA. 7. Property Tax Rebates. Provided that Company has, in the opinion of the county assessor, completed the Improvements as set forth herein to an assessed value of at least $3,400,000.00 and has executed the MAA as set forth in Section 6, and subject to annual appropriation by the city council, the City agrees to semi-annually rebate property taxes (with the exceptions noted below) as follows: 50% rebate for each of Years One through Ten, inclusive, for any taxable value over the January 1, 2022 value of $1,973,060.00 (each such payment is a "Rebate"). If Company timely completes the Phase 2 Improvements as provided in this Agreement, then the Rebate payment schedule shall be extended with respect to Phase 1 and Phase 2 for an additional five (5) years. Rebates with respect to any Outlot Improvements, and a schedule for payment of such Rebates, shall be determined by amendment hereto, but shall be for a period of at least five (5) years on the same basis as set forth above. Each Rebate is payable in respect of a given property tax fiscal year (a "Fiscal Year") only to the extent that (a) Company or a developer, and successors, have actually paid general property taxes due and owing for such Fiscal Year and (b) the city council has made an appropriation for the payment of the Rebate. To receive a Rebate for a given Fiscal Year, Company must, within twelve (12) months after the due date of the last installment of the property taxes for the respective Fiscal Year (i.e., the "March Installment"), submit a completed Rebate s 4874-0161-1832, v. 1 request to City on the form provided by or otherwise satisfactory to City. A failure to timely submit a request for a Rebate for a Fiscal Year will result in a forfeiture of the right to request a Rebate for such Fiscal Year. City agrees to consider a completed application for a Rebate within sixty (60) days after submission of the application to City. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500.00. Rebates shall not be paid based on any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. The first Fiscal Year in respect of which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which the assessment is based upon an assessed value of the Improvements of no less than $3,400,000.00 and not based on a prior Fiscal Year for which the assessment is based solely upon (x) the initial value of the Property, or upon (y) the value of the Property and a partial value of the Improvements due to completion of such Improvements to an extent less than $3,400,000.00 in assessed value, or a partial Fiscal Year. As an example of the above provision, in the event the Phase 1 Improvements on the Property are completed in 2023 and the Property and Improvements are assessed as completed to the extent of at least $3,400,000.00 as of January 1, 2024 based on the Plans or Modified Plans, the property taxes that would be assessed based on the January 1, 2024 assessed value would be for the Fiscal Year ending June 30, 2026, with the taxes payable one-half by September 30, 2025 and one-half by March 31, 2026, then the first Rebate could be applied for after March 31, 2026 and prior to April 1, 2027. 8. Limitations on Payment of Rebates. A. Each payment of a Rebate is subject to annual appropriation by the city council each fiscal year. City has no obligation to make any payments to Company as contemplated under this Agreement until the city council annually appropriates the funds necessary to make such payments. The right of non - appropriation reserved to City in this Paragraph is intended by the parties, and shall be construed at all times, so as to ensure that City's obligation to make future payments of Rebates shall not constitute a legal indebtedness of City within the meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates funds for the payment of that installment or amount. In the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction or by City's bond counsel to create, or result in the creation of, such a legal indebtedness of City, the enforcement of the said provision shall be suspended, and the Agreement shall at all times be construed and applied in such a manner as will preserve the foregoing intent of the parties, and no Event of Default by City shall be deemed to have occurred as a result thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended, the suspension shall not affect other provisions of this Agreement which can be given effect without 6 4874-0161-1832, v. 1 the suspended provision. To this end the provisions of this Agreement are severable. B. Notwithstanding the provisions of Section 7 hereof, City shall have no obligation to make a payment of a Rebate to Company if at any time during the term hereof City fails to appropriate funds for payment; City receives an opinion from its legal counsel to the effect that the use of Tax Increments resulting from the Property and Improvements to fund a Rebate payment to Company, as contemplated under Section 7 above, is not, based on a change in applicable law or its interpretation since the date of this Agreement, authorized or otherwise an appropriate urban renewal activity permitted to be undertaken by City under the Urban Renewal Act or other applicable provisions of the Code, as then constituted or under controlling decision of any Iowa court having jurisdiction over the subject matter hereof; or City's ability to collect Tax Increment from the Improvements and Property is precluded or terminated by legislative changes to Iowa Code Chapter 403. Upon occurrence of any of the foregoing circum- stances, City shall promptly forward notice of the same to Company. If the circumstances continue for a period during which two (2) annual Rebate payments would otherwise have been paid to Company under the terms of Section 7, then City may terminate this Agreement, without penalty or other liability to City, by written notice to Company. C. For purposes of this Agreement, "Tax Increments" shall mean the property tax revenues on the Improvements and Property received by and made available to City for deposit in an account maintained under this Agreement, the provisions of Iowa Code § 403.19 and the ordinance governing the Urban Renewal Plan. 9. Contingent Grant Payments. The parties contemplate that improvement projects for new construction may occur on the Main Parcel, Corner Parcel and the Remnant Parcel by third -party developers. If, during the period that any Rebate is payable to Company hereunder, City, with the consent of Company, enters into a development agreement (a "Third -Party DA") providing rebates to the developer (a "Developer") of any of such parcels, then the Developer shall be entitled to such rebates, but if the Third -Party DA does not provide for rebates to the Developer, Company shall be entitled to a semi-annual grant (a "Grant") equal to 50% of qualifying property taxes actually collected by City (excluding non-TIF Collections) for the 5-year period after the first full Fiscal Year for which the assessment of a Developer parcel is based upon the completed value of the improvements and not based on a prior Fiscal Year for which the assessment is based solely upon (x) the initial value of such parcel, or upon (y) the value of such parcel and a partial value of the improvements due to partial completion of such improvements or a partial Fiscal Year. Grant payments are payable in respect to a given year only to the extent that general property taxes that are due and owing for such year have actually been paid. Grant payments shall be subject to the limitations of Section 8, as if such payments were Rebate payments. 7 4874-0161-1832, v. 1 10. Additional Covenants of Company. In addition to the other promises, covenants and agreements of Company as provided elsewhere in this Agreement, Company agrees as follows with respect to each phase of Improvements: A. Company agrees during construction of the Improvements and 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 have been Substantially Completed, when reasonably requested by the City the Company shall make such reports to City, in such detail 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. The Main Parcel will have a taxable value as set forth in the MAA, and Company agrees that the minimum actual value of the Main Parcel and completed Phase 1 Improvements as stated in the MAA will be a reasonable estimate of the actual value of the Main Parcel and Phase 1 Improvements for ad valorem property tax purposes. Company agrees that it will spend enough in construction of the Phase 1 Improvements that, when combined with the value of the Main Parcel and related site improvements, will equal or exceed the assessor's minimum actual value for the Main Parcel and Phase 1 Improvements as set forth in the MAA. E. The Main Parcel and the Remnant Parcel will have an aggregate assessed value as set forth in the amended MAA, and Company agrees that the minimum actual value of said parcels and completed Improvements as stated in the amended MAA will be a reasonable estimate of the actual value of said parcels and Improvements for ad valorem property tax purposes. Company agrees that it will spend enough in construction of the Phase 2 Improvements and, if applicable, the subsequent Improvements, that, when combined with the value of the Main Parcel and related site improvements, will equal or exceed the assessor's minimum actual value for the Main Parcel, the Remnant Parcel, and the Improvements as set forth in the amended MAA. F. Until termination of the MAA, Company will maintain, preserve and keep the Main Parcel and the Remnant Parcel, 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. 8 4874-0161-1832,v.1 G. 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. H. During the period that any Rebate or Grant is payable to Company under this Agreement, Company agrees that 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. 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. 11. Conditions to City Funding. A. The complete or initial funding by City of the Rebates, Grants and other Project commitments shall be deemed an agreement of the parties that the applicable conditions to disbursement of funds shall, as of the date of such funding, have been satisfied or waived. If the conditions set forth in this Section are not satisfied at a Rebate or Grant disbursement date, this Agreement shall not terminate but payment of a Rebate or Grant may be delayed until the applicable conditions to disbursement of funds are satisfied or waived. The delay in payments shall be the sole remedy available to City or Company if, for whatever reason, a condition set forth in this Section is not satisfied at a Rebate or Grant payment date, it being understood that each party shall nonetheless incur costs and liabilities prior thereto for which they alone are responsible. City and Company each expressly assumes all responsibility for the costs and liabilities they may each so incur prior to a Rebate or Grant payment date and agree to indemnify and hold each other harmless therefrom. B. It is recognized and agreed that the ability of the City to perform the obligations described in this Agreement, including but not limited to the Rebate 9 4874-0161-1832, v. 1 and Grant payments, is subject to completion and satisfaction of certain separate city council actions and required legal proceedings relating to the creation of a tax increment financing (TIF) district, including the holding of public hearings on the same. Further, all the obligations of City under this Agreement are subject to fulfillment, on or before each Rebate or Grant payment date, of each of the following conditions precedent: (i) The representations and warranties made by Company in Section 14 shall be true and correct as of the Rebate or Grant disbursement date with the same force and effect as if made at such date. (ii) Company shall be in material compliance with all the terms and provisions of this Agreement and the MAA. (iii) There has not been, as of the Rebate or Grant disbursement date, a substantial change for the worse in the financial resources and ability of Company, or a substantial decrease in the financing commitments secured by Company for construction of the Improvements, which change(s) makes it likely, in the reasonable judgment of the City, that Company will be unable to fulfill its covenants and obligations under this Agreement. 12. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of all procedures, hearings and approvals deemed necessary by City or its legal counsel for amendment of the urban renewal plan applicable to the Property and/or project area, all of which must be completed within 120 days from the date this Agreement is approved by the City council. If such completion does not occur, then this Agreement shall be deemed canceled and shall be null and void. 13. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 14. Representations and Warranties of Company. Company hereby represents and warrants as follows: 10 4874-0161-1832, v. 1 A. It is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. B. It has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under this Agreement. C. This Agreement has been duly and validly authorized, executed and delivered by Company and, assuming due authorization, execution and delivery by the other parties hereto, is in full force and effect and is a valid and legally binding instrument of Company that is enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. D. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a violation or breach of, the terms, conditions or provisions of the articles of organization or operating agreement of Company or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which Company is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. E. There are no actions, suits or proceedings pending or threatened against or affecting Company in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position, or results of operations of Company or which in any manner raises any questions affecting the validity of the Agreement or Company's ability to perform its obligations under this Agreement. 15. 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. 11 4874-0161-1832, v. 1 16. 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 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 misconduct of any person, other than any act of negligence or misconduct on the part of any such indemnified party or its officers, employees or agents. B. Except for any misrepresentation, any 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 of 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 construction, installation, ownership, and operation of the Improvements, or (3) any hazardous substance or environmental contamination located in or on the Property. C. The provisions of this Section shall survive the expiration or termination of this Agreement. 17. Default. The following shall be "Events of Default" under this Agreement, and the term "Event of Default" shall mean any one or more of the following events that continues beyond any applicable cure periods: A. Failure by Company to cause the construction of the Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, the Property (except to a Developer as such term is used in Paragraph 9), or this Agreement (other than an assignment to a secured party of the interest of Company in Rebates or Grants), 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; 12 4874-0161-1832, v. 1 D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement or the MAA; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; (4) is adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of Company as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Company, or part thereof, shall be appointed in any proceedings brought against Company and shall not be discharged within ninety (90) days after such appointment, or if Company shall consent to or acquiesce in such appointment; or (5) defaults under any mortgage applicable to the Property. F. Any representation or warranty made by Company in this Agreement or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 18. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Company of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or the Event of Default cannot reasonably be cured within 30 days and Company shall not have provided assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible. Upon termination, City may exercise any and all remedies available at law, equity, contract or otherwise (excluding recovery of any sums paid by City to Company before the date of termination). 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 13 4874-0161-1832, v. 1 the Company that the Event of Default will be cured as soon as reasonably possible. C. Remedies under this Agreement shall be cumulative and in addition to any other right or remedy given under this Agreement or existing at law or in equity or by statute. Waiver as to any particular default, or delay or omission in exercising any right or power accruing upon any default, shall not be construed as a waiver of any other or any subsequent default and shall not impair any such right or power. 19. 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 6407 Partners Avenue, Marion, IA 52302, Attn: Chad Pelley. 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. 14 4874-0161-1832,v.1 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. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 27. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 28. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. 29. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement by their duly authorized representatives as of the date first set forth above. 15 4874-0161-1832, v. 1 CITY OF WATERLOO, IOWA By: LAMiA.q yam _ MANN ROAD STORAGE, LLC By: W Quentin M. Hart, Mayor Chad Pelley, Managing Memb r Attest: Kelley Fel 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. Qr,„?,) 16 4874-0161-1832, v. 1 EXHIBIT "A" Legal Description of Property UNPLATTED WLOO WEST PART OF SE NE & NE SE SEC 20 T 89 R 13 DESC AS COM AT A PT 193 FT N OF THE SE COR LOT 30 CENTENNIAL ADDITION TH N 539 FT TH E 579. 08 FT TH S 441.27 FT TH W 200 FT TH S 355 FT TH NELY 385.52 FT TH N 145.43 FT TH NWLY 10.7 5 FT TO PT OF BEG; AND CENTENNIAL ADDITION ALL LOTS 2 6, 27, 28 & 29 EXC W 26 FT OF EACH & ALL THAT PART LOT 30 EX C W 26 FT IN EVEN WIDTH LYING N OF REAL ESTATE CONVEYED TO CITY OF WATERLOO IN QUIT CLAIM DEED B 489 P 163 & CEDARLOO PARK WATERLOO LOT W-115, AND CENTENNIAL ADDITION PART OF LOT 30 COM AT SE COR SAID LOT 30 TH NWLY ALONG SLY LINE LOT 30 41.8 FT TO PT OF BEG TH NWLY ALONG SLY LINE LOT 30 A DIST OF 139.5 FT TH N 150 FT TH SELY ALONG A LINE PAR WITH SLY LINE SAID LOT 30 139.5 FT TH S 150 FT TO PT OF BEG & ALSO E 6 FT W 26 FT LOTS 27, 28, 26 & 29 CENTENNIAL ADDITION & E 16 FT W 26 FT LOT 30 CENTENNIAL ADDITION; AND Portion of frontage road described on Exhibit "A-2" hereto. EXHIBIT "A-1" Depiction of Main Parcel, Corner Parcel and Remnant Parcel See attached. EXHIBIT "A-2" Description of Vacated Frontage See attached. EXHIBIT "A-3" Legal Description of Main Parcel [to be furnished] EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Milr}imum Assessment Agreement (the "Agreement") is entered into as of 162023, by and among the CITY OF WATERLOO, IOWA ("City"), MANN ROAD STORAGE, LLC ("Company"), and the COUNTY ASSESSOR of Black Hawk County, 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 "Main Parcel"), described in Exhibit "A-3" thereto, located in the City; and WHEREAS, it is contemplated that pursuant to the Development Agreement, the Company will undertake the development of an area within the City and within the University Avenue Area Urban Renewal and Redevelopment Plan Area including the construction of certain improvements as described in the Development Agreement (the "Minimum Improvements") on the Main Parcel, 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 Main Parcel 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 actual assessed value which shall be fixed for assessment purposes for the Main Parcel and Minimum Improvements to be constructed thereon by the Company as a part of the Project shall not be less than $4,561,900.00 (the "Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Minimum Improvements will be substantially completed by the Phase 1 Completion Deadline stated in the Development Agreement. 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, 2038. 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 Main Parcel 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 Main Parcel 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 Main Parcel or the Minimum Improvements, any interruption in, or discontinuance of, the use, occupancy, ownership or operation of the Main Parcel 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 Main Parcel 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 Main Parcel or the Minimum Improvements determined by any tax official to be applicable to the Main Parcel or the Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; or (b) seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other state 2 4874-0161-1832,v.1 law, of the taxation of real property, including improvements and fixtures thereon, contained in the Main Parcel or the Minimum Improvements; or (c) request the Assessor to reduce the Minimum Actual Value; or (d) appeal to the board of review of the city, county, state or to the Director of Revenue of the State of Iowa to reduce the Minimum Actual Value; or (e) cause a reduction in the actual value or the Minimum Actual Value through any other proceedings. 7. This Agreement shall be promptly recorded by the City with the Recorder of Black Hawk County, Iowa. The City shall pay all costs of recording. 8. Neither the preambles nor provisions of this Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 9. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 10. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties, including but not limited to future owners of the Project property. IN WITNESS WHEREOF, the parties have executed this Minimum Assessment Agreement by their duly authorized representatives as of the date first set forth above. [signatures on next page] 3 4874-0161-1832, v. 1 CITY OF WATERLOO, IOWA MANN ROAD STORAGE, LLC By: 1 k L��v�— By: Quentin M. Hart, Mayor Chad Pelley, Manager Attest: elley FelIe, City Clerk STATE OF IOWA ) ss. COUNTY OF BLACK HAWK On this 117441 day of , 2023, before me, a Notary Public in and for the State of Iowa, personally app red Quentin M. Hart and Kelley Felchle, to me personally known, who being duly s rn, 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. BRITNI C PERKINS COMMISSION NO. 845529 MY COMMISSION EXPIRES JANUARY 27, 2026 STATE OF IOWA COUNTY OF (-1 %1 ✓A ) ss. Acknowledged before me on j , 2023, by Chad Pelley, as Managing Member of Mann Road Stor Alge, LLC. STEFAN PATRICK DOERRFELD Commission Number 847584 My Commission Expires LZ Z 4 4874-0161-1832,v.1 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 and building upon completion of the development shall not be less than Four Million Five Hundred Sixty -One Thousand Nine Hundred Dollars ($4,561,900.00) in the aggregate, until termination of the Minimum Assessment Agreement pursuant to the terms thereof. Assessor for Black Hawk County, Iowa Date STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on , 2023, by T.J. Koenigsfeld, Assessor for Black Hawk County, Iowa. Notary Public