HomeMy WebLinkAboutFreedom Truck and Trailer Wash, LLC - Dev Amnt - 6.20.2023 Preparer: Christopher S.Wendland, P.O. Box 596,Waterloo, Iowa 50704 (319)234-5701
After recording, return to Community Planning&Development, 715 Mulberry Street, Waterloo, IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
�t)ne 20 , 2023, by and between Freedom Truck and Trailer Wash LLC (the
"Company") and the City of Waterloo, Iowa, ("City"). Deer Creek Development, LLC
(the "Owner") also executes this Agreement for the limited purposes stated herein.
RECITALS
A. In furtherance of the objectives of Iowa Code Chapter 403 (the "Urban
Renewal Act"), the City is engaged in carrying out urban renewal project
activities in an area known as the Martin Road Development Plan Area
(the "Urban Renewal Area").
B. Company is willing and able to finance and undertake construction of a
building and related improvements on property located in the Urban
Renewal Area and legally described on Exhibit "A" attached hereto (the
"Property").
C. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community
to provide financial incentives so as to encourage that goal, and the City
further believes that the project is in the vital and best interests of the City
and that the project and such incentives are in accordance with the public
purposes and provisions of applicable State and local laws and require-
ments under which the project has been undertaken and is being assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Development Property. Company is leasing from Owner, or will lease
from Owner, for a term exceeding fifteen (15) years, certain real property located on
Cyclone Drive, described on Exhibit "A" attached hereto (the "Property"). Company will
undertake the Project (defined below) upon the Property.
2. Improvements by Company. Company shall construct a building
consisting of approximately 4,600 square feet, containing an automated truck wash
facility, and related landscaping, storm water detention, paving, signage and parking
improvements (collectively, the "Improvements") in accordance with the Plans as
provided in Section 4. Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement, the urban renewal plan applicable to the
Project Property, and all applicable City, state, and federal building codes and shall
comply with all applicable City ordinances and other applicable law. Attached hereto as
Exhibit "B" and Exhibit "C" are a site plan and building plan. City may require that
Company submit other specific building designs and site plans for City review and
approval. Company will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all required permits, licenses and approvals, and will meet, in a timely
manner, all requirements of all applicable local, state, and federal laws and regulations
which must be obtained or met before the Improvements may be lawfully constructed.
The Project Property, the Improvements, and all site preparation and development-
related work to make any of the Project Property usable for Company's purposes as
contemplated by this Agreement are collectively referred to as the "Project."
3. Construction Plans. Company agrees that it will cause the
Improvements to be constructed on the Property in conformance with construction plans
(the "Plans") that have been submitted to the City. Company agrees that the scope and
scale of the Improvements to be constructed shall not be significantly less than the
scope and scale of the Improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is
proposed, Company shall submit modified Plans (the "Modified Plan") to the City for
review. Modified Plans shall be subject to approval by the City as provided in this
Section. City shall approve the modified Plans in writing if: (a) the Modified Plans
conform to the terms and conditions of this Agreement; (b) the Modified Plans conform
to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to
all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (d) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements, and (e)
no Event of Default under the terms of this Agreement has occurred; provided, however,
that any such approval of the Plans or Modified Plans pursuant to this Section shall
constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building, fire, zoning or
other ordinances or regulations of the City, and shall not be deemed to be sufficient
plans to serve as the basis for the issuance of a building permit if the Plans or Modified
Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit.
The Plans or 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 Plans or Modified Plans in whole or in part, Company shall submit new
or corrected Plans or Modified Plans within thirty (30) days after receipt by Company of
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written notification of the rejection, accomplished by a written statement of the City
specifying the respects in which Company's Plans or Modified Plans fail to conform to
the requirements of this Section. The provisions of this Section relating to approval,
rejection and resubmission of corrected Plans or Modified Plans shall continue to apply
until they have been approved by the City; provided, however, that in any event
Company shall submit Plans or Modified Plans which are approved by City prior to
commencement of construction of 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.
4. 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 offer the incentives provided
for in this Agreement and that without said commitment City would not do so.
A. Deadlines to commence and complete. Company must obtain a
building permit and begin construction of the Improvements within six (6) months
after the date of this Agreement (the "Start Date") and Substantially Complete
construction within fourteen (14) months thereafter (the "Completion Deadline").
For purposes of this Agreement, "Substantially Completed" means the date on
which the Improvements have been completed pursuant to the Plans or Modified
Plans to the extent necessary for the City to issue a certificate of occupancy
relating thereto and the City also has verified that any Project element for which
no permit was necessary has been Substantially Completed. All deadlines are
subject to Unavoidable Delays as defined in paragraph B below.
B. Events triggering termination. If Company does not begin or
Substantially Complete construction of the Improvements on the schedule stated
above, then City may terminate this Agreement as set forth in Section 18, and
City shall then have no further obligation under this Agreement. In any
circumstance where Company's progress on the Project fails to meet the
schedule stated above, then 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 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 (each an "Unavoidable Delay"), the
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requirement that construction be completed by the Completion Deadline shall be
tolled for a period of time equal to the period of Unavoidable Delay.
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 and Owner acknowledge
and agree that either or both of them, as agreed between Company and Owner, 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 and
Owner each further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the "MAA") attached hereto as Exhibit "D" it will not seek or
cause a reduction in the taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$2,200,000.00 (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 and Owner each agrees to execute and deliver the MAA concurrently with its
execution and delivery of this Agreement.
7. Tax Rebates. Provided that Company has completed Substantially
Completed the Improvements before the Completion Deadline, City agrees to rebate
property tax (with the exceptions noted below) with respect to the Improvements, as
follows:
Year One through Year Two 85% rebate each year
Year Three through Year Seven 80% rebate each year
Year Eight through Year Ten 75% rebate each year
Year Eleven and Year Twelve 50% rebate each year
for any taxable value added by the completed Improvements (each such payment is a
"Rebate") over the initial base value. Each Rebate is payable in respect of a given
property tax fiscal year (a "Fiscal Year") only to the extent that (a) Company and/or
Owner has actually paid general property taxes due and owing for such Fiscal Year and
(b) the city council has made an appropriation for the payment of the Rebate. To
receive a Rebate for a given Fiscal Year, Company must, within twelve (12) months
after the due date of the last installment of the property taxes for the respective Fiscal
Year (i.e., the "March Installment"), submit a completed Rebate request to City on the
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form provided by or otherwise satisfactory to City. A failure to timely submit a request
for a Rebate for a Fiscal Year will result in a forfeiture of the right to request a Rebate
for such Fiscal Year. City agrees to consider a completed application for a Rebate
within sixty (60) days after submission of the application to City.
The taxable value of the Property as a result of the Improvements must be
increased by a minimum of 10% and must increase the annual tax by a minimum of
$500.00. Rebates shall not be paid based on any special assessment levy, debt
service levy, or any other levy that is exempted from treatment as tax increment
financing under the provisions of applicable law. The first Fiscal Year in respect of
which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which
the assessment is based upon the completed value of the Improvements and not based
on a prior Fiscal Year for which the assessment is based solely upon (x) the value of the
Property, or upon (y) the value of the Property and a partial value of the Improvements
due to partial completion of such Improvements or a partial Fiscal Year.
As an example of the above provision, in the event all Improvements on the
Property are Substantially Completed prior to January 1, 2025 and the Property and
Improvements are assessed as fully completed based on the Plans, as may be revised,
the property taxes that would be assessed based on the January 1, 2025 assessed
value would be for the Fiscal Year ending June 30, 2027, with the taxes payable one-
half by September 30, 2026 and one-half by March 31, 2027, then the first Rebate could
be applied for after March 31, 2027 and prior to April 1, 2028.
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
the suspended provision. To this end the provisions of this Agreement are
severable.
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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. Conditions to City Funding.
A. The complete or initial funding by City of the Rebates and other
Project commitments shall be deemed an agreement of the parties that the
applicable conditions to disbursement of funds shall, as of the date of such
funding, have been satisfied or waived. If the conditions set forth in this Section
are not satisfied at a Rebate disbursement date, this Agreement shall terminate
unless a new disbursement date is established by amendment to this Agreement.
The termination of this Agreement shall be the sole remedy available to City or
Company if, for whatever reason, a condition set forth in this Section is not
satisfied at a Rebate payment date, it being understood that each party shall
nonetheless incur costs and liabilities prior thereto for which they alone are
responsible. City and Company each expressly assumes all responsibility for the
costs and liabilities they may each so incur prior to a Rebate payment date and
agree to indemnify and hold each other harmless therefrom.
B. It is recognized and agreed that the ability of the City to perform the
obligations described in this Agreement, including but not limited to the Rebate
payments, is subject to completion and satisfaction of certain separate city
council actions and required legal proceedings relating to the creation of a tax
increment financing (TIF) district and/or amendment of the urban renewal plan,
including the holding of public hearings on the same. Further, all the obligations
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of City under this Agreement are subject to fulfillment, on or before each Rebate
payment date, of each of the following conditions precedent:
(i) The representations and warranties made by Company in
Section 12 shall be true and correct as of the Rebate disbursement date
with the same force and effect as if made at such date.
(ii) Company shall be in material compliance with all the terms
and provisions of this Agreement.
(iii) There has not been, as of the Rebate disbursement date, a
substantial change for the worse in the financial resources and ability of
Company, or a substantial decrease in the financing commitments
secured by Company for construction of the Improvements, which
change(s) makes it likely, in the reasonable judgment of the City, that
Company will be unable to fulfill its covenants and obligations under this
Agreement.
10. Additional Covenants of Company and Owner. In addition to the other
promises, covenants and agreements of Company as provided elsewhere in this
Agreement, Company agrees as set forth in paragraphs A through H below, and Owner
agrees as set forth in paragraphs G and H below:
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 a taxable value as set forth in the MAA, and
Company agrees that the minimum actual value of the Property and completed
Improvements as stated in the MAA will be a reasonable estimate of the actual
value of the Property and Improvements for ad valorem property tax purposes.
Company agrees that it will spend enough in construction of the Improvements
that, when combined with the value of the Property and related site
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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 and
Owner each 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.
H. As agreed separately between them, Company and/or Owner 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 and Owner
each 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 Owner, 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. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
12. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
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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 or lease and to
operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under this Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company and, assuming due authorization, execution and
delivery by the other parties hereto, is in full force and effect and is a valid and
legally binding instrument of Company that is enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of organization or bylaws of Company or of any
contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Company is now a party or by which it or its property is
bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
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.
13. Representations and Warranties of Owner. Owner 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.
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B. It has all requisite power and authority to own and operate its
properties, to lease the Property to Company, 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 Owner 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 Owner 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 Owner or of
any contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Owner 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 Owner 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 Owner or which in any
manner raises any questions affecting the validity of the Agreement or Owner's
ability to perform its obligations under this Agreement.
14. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about
the Property 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
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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 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).
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
15. 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 or Owner of any interest (either directly or
indirectly) in this Agreement without the prior written consent of City;
C. Failure by Company or Owner 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 or Owner in this
Agreement, or made by Company or Owner in any written statement or certificate
furnished by such party pursuant to this Agreement, shall prove to have been
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incorrect, incomplete or misleading in any material respect on or as of the date of
the issuance or making thereof.
16. Remedies.
A. Default by Company or Owner. Whenever any Event of Default in
respect of Company or Owner occurs and is continuing, the City may suspend its
performance under this Agreement until it receives assurances from Company or
Owner, as applicable, deemed adequate by City, that the party alleged to be in
default will cure its default and continue its performance under this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to the
defaulting party 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 or Owner, as
applicable, 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.
17. 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-
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day period is subject to reverter of title, revocation, repayment or other appropriate
action to restore such property, benefit or incentive to City, and Company agrees to
cooperate diligently and in good faith with any reasonable request by City to effectuate
the restoration of same. To the extent permitted by applicable law, City agrees to
indemnify Company and hold it harmless from and against any claims, damages, costs,
expenses or loss of value suffered by Company and arising from such revocation or
repayment.
18. Materiality of Promises, Covenants, Representations, and Warranties
of Company and Owner. Each and every promise, covenant, representation, and
warranty set forth in this Agreement on the part of Company or Owner 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 and Owner each acknowledges that without such promises,
covenants, representations, and warranties, City would not have entered this
Agreement. Upon breach of any promise or covenant, or in the event of the
incorrectness or falsity of any representation or warranty, City may, at its sole option
and in addition to any other right or remedy available to it, terminate this Agreement and
declare it null and void.
19. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
20. No Third-Party Beneficiaries; Assignment. 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. Notwithstanding anything in this Agreement to the
contrary, Company may assign this Agreement or its right to receive Rebates to any
third party as security for Project financing or for repayment of Project financing.
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.
13
(b) if to Company, at 3300 290"' Street, Fredericksburg, Iowa 50630,
Attn: Brent Johnson, Managing Member.
(c) if to Owner, at 643 E. Griffith Road, Waterloo, Iowa 50701, Attn:
Harold Youngblut.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
22. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or
construed to, create or constitute any joint venture, partnership, agency, employment, or
any other relationship between any party hereto and any other party hereto, nor to
create any liability for one party with respect to the liabilities or obligations of the other
party or any other person.
23. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
effect unless made in writing, signed by the party or parties to be bound or by the duly
authorized representative of same, and specifying with particularity the extent and
nature of the amendment, modification, or waiver. Any waiver by any party of any
default by another party shall not affect or impair any rights arising from any subsequent
default.
24. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the
offending provision or part thereof shall be deemed severed from this Agreement and
the remaining provisions of this Agreement shall not be affected thereby and shall
continue in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
25. Captions. All captions, headings, or titles in the paragraphs or sections of
this Agreement are inserted only as a matter of convenience and/or reference, and they
shall in no way be construed as limiting, extending, or describing either the scope or
intent of this Agreement or of any provisions hereof.
26. Interpretation. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it may have
14
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.
27. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which, including counterparts signed electronically or signed counterparts
transmitted by electronic means, shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
29. Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
30. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA FREEDOM TRUCK AND TRAILER
WASH LLC
By: a m. w1 By: /
Quentin Hart, Mayor Brent Johnson
Managing Member
Attest: r LC,K.tzt( 3
Kelley Felche, City Clerk DEER CREEK DEVELOPMENT,
L.L.C.
By: i`10.Abk
Harold You lut anager
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
15
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.
Brent Johnson Carolynhnso
16
EXHIBIT "A"
Legal Description of Property
Lots 6 and 7, except the South 62 feet thereof, Greenbelt Centre Plat No. 8, City of Waterloo,
Iowa.
EXHIBIT "B"
Site Plan
See attached.
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Building Plan
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EXHIBIT "D"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
1.-U c= , 2023, by and among the CITY OF WATERLOO, IOWA ("City"),
FREEDOM TRUCK AND TRAILER WASH LLC ("Company"), DEER CREEK
DEVELOPMENT, L.L.C. ("Owner") and the COUNTY ASSESSOR of the City of
Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City, Company and Owner have
entered into a development agreement (the "Development Agreement") regarding
certain real property (the "Property"), described in Exhibit "A" thereto, located in the City;
and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the
Martin Road Development Plan Area, including the construction of certain
improvements as described in the Development Agreement (the "Minimum
Improvements") on the Property (the "Project"); and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City, Company
and Owner desire to establish a minimum actual value for the Property and the
Minimum Improvements to be constructed thereon by Company pursuant to the
Development Agreement, which shall be effective upon substantial completion of the
Project and from then until this Agreement is terminated pursuant to the terms herein
and which is intended to reflect the minimum actual value of the land and buildings as to
the Project only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which the parties contemplate will be
erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Minimum
Improvements by Company, the minimum actual taxable value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by Company as a part of the Project shall not be less than $2,200,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by the
date set forth in the Development Agreement, and in any case if the Minimum
Improvements are not substantially completed by December 31, 2024 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,
2049. 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 or Owner shall pay, or cause to be paid, as separately agreed
between them, 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 and Owner each 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 their absolute
and unconditional obligations (not limited to the statutory remedies for unpaid taxes)
and that Company and Owner 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 rights of Company or Owner
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 or Owner 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 and Owner each 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
2
(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
(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 FREEDOM TRUCK AND TRAILER
WASH LLC
By: By:
Quentin Hart, Mayor Brent Johnso
Managing Member
By: I _ .
Kelley Felchle, City Clerk DEER CREEK DEVELOPMENT,
L.L.C.I
By: I r(
Harold Youn ut, nager
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK a )
On this day of TTne , 2023, 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.
PS BRITNI C f PERKIN ' '
COMMISSION NO. 845529
*,,„inn* MY COMMISSION EXPIRES �'4� s 1
IOWA JANUARY 27,2026 , ,• Y P
4
ese;a 8, t t1 4f.)1821MMOO6
i i �9X3 t9t}ii.c:IMM `14 1 mi+
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on , 2023 by Brent •
Johnson as Managing Member of Freedom Truck and Trailer W h L C.
Notary Public `- „ a,z -21.0;.. t„=
:
' Ca':SF1 Gj
fi'//i 11 t11Y1 ' '
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on Zi.,t\.Q� , 2023 by Harold
Youngblut as Manager of Deer Creek Development, L.L.C.
DAWN K.YUUNG
` Commission Number 184534
My Commission Expires
otary Public
5
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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 Two Hundred Thousand and 00/100 Dollars ($2,200,000.00) until
termination of this Minimum Assessment Agreement pursuant to the terms hereof,
subject to adjustment as provided in said agreement.
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on , 2023 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public