HomeMy WebLinkAbout3 Stooges, LLC - Development Agreement (RECORDED) (9,000 SF Commercial Building) - 8.21.2023 IllI III III IIIII IIIII IIIII11111111111111111111
Doc ID: 012006660023 Type: GEN
Recorded: 09/12/2023 at 03:15:56 PM
Fee Amt: $117.00 Page 1 of 23
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
File2024-00003644
Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50704 Phone(319)234-5701
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
_ Al us - -a( , 2023 by and between 3 Stooges, LLC (the "Company") and the City of
Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as
amended (the "Urban Renewal Act"), City is engaged in carrying out urban
renewal project activities in an area known as the East Waterloo Unified
Urban Renewal and Redevelopment Plan Area (the "Urban Renewal
Area"), pursuant to the East Waterloo Unified Urban Renewal and
Redevelopment Plan (the "Urban Renewal Plan").
B. Company is willing and able to finance and erect structures and related
improvements on property located in the Urban Renewal Area, and legally
described on Exhibit "A" attached hereto (the "Property").
C. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community
to provide financial incentives so as to encourage that goal, and the City
further believes that the project is in the vital and best interests of the City
and that the project and such incentives are in accordance with the public
purposes and provisions of applicable State and local laws and
requirements under which the project has been undertaken and is being
assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Company in its as-is condition for the sum of$1.00 (the "Purchase Price").
(c '1) c3
Conveyance shall be by special warranty deed, free and clear of all encumbrances
arising by or through City except: (a) easements, servitudes, conditions and restrictions
of record; (b) general utility and right-of-way easements serving the Property; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. City
makes no representation or warranty as to the condition of the Property or its suitability
for Company's purposes. Company is responsible to conduct its own due diligence and
inspections. City shall have no duty to convey title to Company until Company delivers
to City reasonable and satisfactory proof of financial ability to undertake and carry on
the Improvements (defined below), which may take the form of a lending commitment
letter. Company shall, at its own expense, prepare an updated abstract of title, or in lieu
thereof Company may, at its own expense, obtain whatever form of title evidence it
desires. City shall provide any title documents it has in its possession, including any
abstracts, to assist in title review. If title is unmarketable or subject to matters not
acceptable to Company, and if City does not remedy or remove such objectionable
matters in timely fashion following written notice of such objections from Company,
Company may terminate this Agreement without further obligation and return the
abstract of title to City.
2. Improvements. Company shall construct on the Property a commercial
warehouse facility of approximately 9,000 square feet, as well as related landscaping,
storm water control, paving, signage and parking improvements (collectively, the
"Improvements"). Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement, the Urban Renewal Plan, and all
applicable City, state, and federal building codes and shall comply with all applicable
City ordinances and other applicable law. City may require that Company submit
specific building designs and site plans for City review and approval. Company will use
its best efforts to obtain, or cause to be obtained, in a timely manner, all required
permits, licenses and approvals, and will meet, in a timely manner, all requirements of
all applicable local, state, and federal laws and regulations which must be obtained or
met before the Improvements may be lawfully constructed. The Property, the
Improvements, and all site preparation and development-related work to make any of
the Property usable for Company's purposes as contemplated by this Agreement are
collectively referred to as the "Project."
3. Construction Plans. Company agrees that it will cause the
Improvements to be constructed on the Property in conformance with construction plans
(the "Plans") that have been submitted to the City. Company agrees that the scope and
scale of the Improvements to be constructed shall not be significantly less than the
scope and scale of such improvements as detailed and outlined in the Plans. 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
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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
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 Conveyance and Construction; Possibility of Reverter.
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 convey the Property to Company and that without said commitment City
would not do so.
A. Deadlines to commence and complete. Company must obtain a
building permit and begin construction of the Improvements within four (4)
months after the date of conveyance (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 to the extent
necessary for the City to issue a certificate of occupancy relating thereto and the
City has verified that any Project element for which no permit was necessary has
been Substantially Completed. All deadlines are subject to Unavoidable Delays
as defined in paragraph B below. The City's Community Planning and
Development Director may, but shall not be required to, consent to an extension
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of time of up to six (6) months for the construction of the Improvements. Any
additional or longer time extensions will require consent of the City Council.
B. Events triggering termination and/or reverter of title. If Company
does not begin or Substantially Complete construction of the Improvements on
the schedule(s) stated above, subject to Unavoidable Delays, then City may
terminate this Agreement as set forth in Section 19, and City shall then have no
further obligation to Company under this Agreement. 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 requirement
that construction be completed by the Completion Deadline shall be tolled for a
period of time equal to the period of Unavoidable Delay. If City terminates this
Agreement as provided in Section 19, City shall have no further obligations to
Company under this Agreement, including but not limited to any legal or
equitable obligation to reimburse Company for any costs expended by Company
with respect to the Project or to compensate Company for any value added to the
Property by any Improvements. In connection with termination of the Agreement
as set forth herein, City may demand reconveyance of the Property in addition to
exercising any other available remedies.
5. Reverter of Title; Indemnity. In the event of any reverter of title pursuant
to Section 4, then Company agrees that it shall, at its own expense, promptly execute
all documents, including but not limited to a special warranty deed, or take such other
actions as the City may reasonably request to effectuate said reverter and to deliver to
City title to the Property, free and clear of any lien, claim, charge, security interest,
mortgage or encumbrance (collectively, "Liens") arising by or through Company.
Concurrently with delivery of the deed, Company shall also deliver to City the abstract of
title. Company shall pay in full, so as to discharge or satisfy, all Liens on or against the
Property. Appointment of Attorney in Fact: If Company fails to deliver such
documents, including but not limited to a special warranty deed, to City within thirty (30)
days of written demand by City, then City shall be authorized to execute, on Company's
behalf and as its attorney-in-fact, the special warranty deed or other documents
required by this Section, and for such limited purpose Company does hereby constitute
and appoint City as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, or injury made, suffered, or
incurred as a result of or in connection with the Project, Company's failure to carry on or
complete same, or any Lien or Liens on or against the Property of any type or nature
whatsoever that attaches to the Property by virtue of Company's ownership of same. If
City files suit to enforce the terms of this Agreement and prevails in such suit, then
Company shall be liable for all legal expenses, including but not limited to reasonable
attorneys' fees, incurred by City. Company's duties of indemnity pursuant to this
Section shall survive the expiration, termination or cancellation of this Agreement for
any reason.
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6. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, Company agrees that it shall not create, incur, or suffer to
exist any Liens on the Property, other than such mortgage or mortgages as may be
reasonably necessary to finance Company's completion of the Improvements and of
which Company notifies City before Company executes any such mortgage. Company
may not mortgage the Property or any part thereof for any purpose except in connection
with financing of the Improvements. Any other mortgage shall be void.
7. Utilities. Company will be responsible for extending, at its own expense,
water, sewer, telephone, telecommunications, electricity, gas and other utility services
to any location on the Property and for payment of any associated connection fees.
8. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other charges whatsoever levied upon or assessed or placed against the Property.
Company further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or
cause a reduction in the valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$350,000.00 (the "Minimum Actual Value"), through:
(i) willful destruction of the Property, the Improvements, or any part of
either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with execution
and delivery of this Agreement.
9. 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 Five 50% rebate each year
for any taxable value added by the completed Improvements (each such payment is a
"Rebate"). Each Rebate is payable in respect of a given property tax fiscal year (a
"Fiscal Year") only to the extent that (a) Company 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
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installment of the property taxes for the respective Fiscal Year (i.e., the "March
Installment"), submit a completed Rebate 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 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 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.
10. 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
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the suspended provision. To this end the provisions of this Agreement are
severable.
B. Notwithstanding the provisions of Section 9 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 9 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 9, 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.
11. 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
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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
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 14 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.
12. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
engaged in activities of comparable size and liability exposure, and shall provide
evidence of such coverages to the City upon request.
B. Until the Improvements are Substantially Completed, Company
shall make such reports to City, in such detail and at such times as may be
reasonably requested by City, as to the actual progress of Company with respect
to construction of the Improvements.
C. During construction of the Improvements and thereafter until the
MAA termination date Company will cooperate fully with the City in resolution of
any traffic, parking, trash removal or public safety problems which may arise in
connection with the construction and operation of the Improvements.
D. Company will comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses, other than laws, rules and regulations where the failure to comply
with the same or the sanctions and penalties resulting therefrom, would not have
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a material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Company.
E. Until termination of the MAA, Company will maintain, preserve and
keep the Property, including but not limited to the Improvements, in good repair
and working order, ordinary wear and tear excepted, and from time to time will
make all necessary repairs, replacements, renewals and additions.
F. The Property will have an assessed value as set forth in the
applicable MAA and any amendments thereto, and Company agrees that the
minimum actual value of the Property and completed Improvements as stated in
the applicable MAA and any amendments thereto will be a reasonable estimate
of the actual value of the Property and Improvements for ad valorem property tax
purposes. Company agrees that it will spend enough in construction of the
Improvements that, when combined with the value of the Property and related
site improvements, will equal or exceed the assessor's minimum actual value for
the Property and Improvements as set forth in the MAA and any amendments
thereto.
G. Until termination of the MAA, Company agrees that (1) if the
completed Improvements are to be Company's primary location for business
operations, it will not undertake, in any other municipality in Black Hawk County,
the construction or rehabilitation of any commercial property as a primary
location for Company's business operations of the type to be conducted on the
Property, and (2) it will make no conveyance, lease or other transfer of the
Property or any interest therein that would cause the Property or any part thereof
to be classified as exempt from taxation or subject to centralized assessment or
taxation by the State of Iowa.
H. Company shall pay, or cause to be paid, when due, all real property
taxes and assessments payable with respect to any and all parts of the Property.
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 or City ordinance, of the taxation of
real property included within the Property.
13. Representations and Warranties of City. City hereby represents and
warrants as follows:
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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:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of organization or bylaws of Company or of any
contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Company is now a party or by which it or its property is
bound, nor do they constitute a default under any of the foregoing.
E. Assuming due authorization, execution and delivery by the other
parties hereto, this Agreement is in full force and effect and is a valid and legally
binding instrument of Company that is enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting creditors' rights generally.
F. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
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15. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about
the Property arising after Company's lease or acquisition of the same or resulting
from any defect in the Improvements. The indemnified parties shall not be liable
for any damage or injury to the persons or property of Company or its directors,
officers, employees, contractors or agents, or any other person who may be
about the Property or the Improvements, due to any act of negligence or willful
misconduct of any person, other than any act of negligence or willful misconduct
on the part of any such indemnified party or its officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the acquisition and condition of the Property
and the construction, installation, ownership, and operation of the Improvements,
or (3) any hazardous substance or environmental contamination located in or on
the Property, but only to the extent such liability has not been previously
transferred to and accepted by the City in writing.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
16. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 180 days from the date this Agreement is approved
by the City council. If such completion does not occur, then any conveyance, benefit or
incentive of any type provided by City hereunder within said 180-day period is subject to
reverter of title, revocation, repayment or other appropriate action to restore such
property, benefit or incentive to City, and Company agrees to cooperate diligently and in
good faith with any reasonable request by City to effectuate the restoration of same, or
failing such restoration Company agrees to be liable for same or for the fair value
thereof, plus interest on any sums owing at the rate of 5% per annum commencing with
the date of demand for payment, if said payment is not remitted to City within 30 days.
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17. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of the
Project, whether in whole or in part, to any other person or entity without the prior
written consent of City. Reasonable grounds for the City to withhold its consent shall
include but are not limited to the inability of the proposed transferee to demonstrate to
the City's satisfaction that it has the financial ability to observe all of the terms to be
performed by Company under this Agreement.
18. Default. The following shall be "Events of Default" under this Agreement,
a,nd the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, any part of the Property, or this Agreement, without the prior
written consent of City;
C. Failure by Company to pay, before delinquency, all ad valorem
property taxes levied on or against any of the Property;
D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement;
E. Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to any part of 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.
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19. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Company of the Event of Default, provided that by the conclusion of such period
the Event of Default shall not have been cured, or the Event of Default cannot
reasonably be cured within 30 days and Company shall not have provided
assurances reasonably satisfactory to the City that the Event of Default will be
cured as soon as reasonably possible. Upon termination, City may exercise any
and all remedies available at law, equity, contract or otherwise for recovery of
any sums paid by City to Company before the date of termination or to recover
ownership of the Property as set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
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.
20. 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.
21. 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,
13
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.
22. 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.
23. 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 3510 Kimball Avenue, Suite H, Waterloo, Iowa
50702, Attention: Anthony Fischels.
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.
24. 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.
25. 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.
26. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
14
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.
27. 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.
28. Interpretation. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it may have
been prepared by counsel for one of the parties, it being recognized that the parties
hereto and their respective attorneys have contributed substantially and materially to the
preparation of each and every provision of this Agreement.
29. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
30. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
31. 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.
32. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
15
CITY OF WATERLOO, IOWA 3 STOOGES, LLC
By: }(Azt, By:
Quentin M. Hart, Mayor Antho Fischels
Managing Member /
Attest:
elley Felch , 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.
Anthony ischels
16
EXHIBIT "A"
Legal Description of Property
The South 145.15 feet of Lots 1 and 2, Waterloo Air and Rail Park 2nd Addition, City of
Waterloo, Black Hawk County, State of Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
s , 2023, by and among the CITY OF WATERLOO, IOWA ("City"), 3
STO GES, LLC ("Company"), and the COUNTY ASSESSOR of the City of Waterloo,
Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment 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 and the
Company desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Company pursuant to the Development
Agreement, which shall be effective upon substantial completion of the Project and from
then until this Agreement is terminated pursuant to the terms herein and which is
intended to reflect the minimum actual value of the land and buildings as to the Project
only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which the parties contemplate will be
erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Minimum
Improvements by 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 $350,000.00 (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,
2034. The Minimum Actual Value shall be maintained during such period regardless of:
(a) any failure to complete the Minimum Improvements; (b) destruction of all or any
portion of the Minimum Improvements; (c) diminution in value of the Property or the
Minimum Improvements; or (d) any other circumstance, whether known or unknown and
whether now existing or hereafter occurring.
3. Company shall pay, or cause to be paid, when due, all real property taxes
and assessments payable with respect to all and any parts of the Property and the
Minimum Improvements pursuant to the provisions of this Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Property or the Minimum Improvements, any interruption in,
or discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property
or the Minimum Improvements.
4. Company agrees that its obligation to make the tax payments required
hereby, to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes) and that Company
shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to
any early termination of this Agreement for any reason whatsoever.
5. Nothing herein shall be deemed to waive the Company's rights under Iowa
Code § 403.6, as amended, to contest that portion of any actual value assignment
made by the Assessor in excess of the Minimum Actual Value established herein. In no
event, however, shall the Company seek or cause the reduction of the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement. Nothing herein shall limit the discretion of the Assessor to assign at any
time an actual value to the land and Minimum Improvements in excess of the Minimum
Actual Value.
6. Company agrees that during the term of this Agreement it will not:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property
contained as a part of the Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; or
2
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board of review of the city, county, state or to the
Director of Revenue of the State of Iowa to reduce the Minimum Actual Value; or
(e) cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
7. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
8. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
9. Each provision, section, sentence, clause, phrase, and word of this
Agreement is intended to be severable. If any portion of this Agreement shall be
deemed invalid or unenforceable, whether in whole or in part, the offending provision or
part thereof shall be deemed severed from this Agreement and the remaining provisions
of this Agreement shall not be affected thereby and shall continue in full force and
effect. If, for any reason, a court finds that any portion of this Agreement is invalid or
unenforceable as written, but that by limiting such provision or portion thereof it would
become valid and enforceable, then such provision or portion thereof shall be deemed
to be written, and shall be construed and enforced, as so limited.
10. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
3
CITY OF WATERLOO, IOWA 3 STOOGES, LLC
By: 1;„e By:
( -
Quentin Hart, Mayor / Anthon ' chels, Manag
i
By:
I /
_Lk._
Kelley Felchle, ity Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this �, day of ' ' , 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.
�ts'AtBRITNI C PERKINS ��
i A1IJJANUARY27,2O26 �/_ ����
No.-WOUblic
II
4
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on 54/13 , 2023 by Anthony
Fischels as Managing Member of 3 Stooges, LLC.
=s,r i RACIA S ROSS ,� Re----J-LJ
`'_ 1COMMISSION NO.811963 C� u� iy
';'; ;* MY CO MISSION EXPIRESl C l�
__.10::. _.i. Notary Public
5
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00) until termination of
this Minimum Assessment Agreement pursuant to the terms hereof, subject to
adjustment as provided in said agreement.
fre_..--viacksorfor Hawk County, Iowa
(
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on or-Pi =Y� // , 2023 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
1,1
�r"'"`�+ TIM ANDERA
COMMISSION NO.772518 L"
trwa * COMMISSION APRIL 1,2024 EXPIRES Notary Public N ota
Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50704 Phone(319)234-5701
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
2� , 2023 by and between 3 Stooges, LLC (the "Company") and the City of
Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as
amended (the "Urban Renewal Act"), City is engaged in carrying out urban
renewal project activities in an area known as the East Waterloo Unified
Urban Renewal and Redevelopment Plan Area (the "Urban Renewal
Area"), pursuant to the East Waterloo Unified Urban Renewal and
Redevelopment Plan (the "Urban Renewal Plan").
B. Company is willing and able to finance and erect structures and related
improvements on property located in the Urban Renewal Area, and legally
described on Exhibit "A" attached hereto (the "Property").
C. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community
to provide financial incentives so as to encourage that goal, and the City
further believes that the project is in the vital and best interests of the City
and that the project and such incentives are in accordance with the public
purposes and provisions of applicable State and local laws and
requirements under which the project has been undertaken and is being
assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Company in its as-is condition for the sum of$1.00 (the "Purchase Price").
Conveyance shall be by special warranty deed, free and clear of all encumbrances
arising by or through City except: (a) easements, servitudes, conditions and restrictions
of record; (b) general utility and right-of-way easements serving the Property; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. City
makes no representation or warranty as to the condition of the Property or its suitability
for Company's purposes. Company is responsible to conduct its own due diligence and
inspections. City shall have no duty to convey title to Company until Company delivers
to City reasonable and satisfactory proof of financial ability to undertake and carry on
the Improvements (defined below), which may take the form of a lending commitment
letter. Company shall, at its own expense, prepare an updated abstract of title, or in lieu
thereof Company may, at its own expense, obtain whatever form of title evidence it
desires. City shall provide any title documents it has in its possession, including any
abstracts, to assist in title review. If title is unmarketable or subject to matters not
acceptable to Company, and if City does not remedy or remove such objectionable
matters in timely fashion following written notice of such objections from Company,
Company may terminate this Agreement without further obligation and return the
abstract of title to City.
2. Improvements. Company shall construct on the Property a commercial
warehouse facility of approximately 9,000 square feet, as well as related landscaping,
storm water control, paving, signage and parking improvements (collectively, the
"Improvements"). Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement, the Urban Renewal Plan, and all
applicable City, state, and federal building codes and shall comply with all applicable
City ordinances and other applicable law. City may require that Company submit
specific building designs and site plans for City review and approval. Company will use
its best efforts to obtain, or cause to be obtained, in a timely manner, all required
permits, licenses and approvals, and will meet, in a timely manner, all requirements of
all applicable local, state, and federal laws and regulations which must be obtained or
met before the Improvements may be lawfully constructed. The Property, the
Improvements, and all site preparation and development-related work to make any of
the Property usable for Company's purposes as contemplated by this Agreement are
collectively referred to as the "Project."
3. Construction Plans. Company agrees that it will cause the
Improvements to be constructed on the Property in conformance with construction plans
(the "Plans") that have been submitted to the City. Company agrees that the scope and
scale of the Improvements to be constructed shall not be significantly less than the
scope and scale of such improvements as detailed and outlined in the Plans. 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
2
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
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 Conveyance and Construction; Possibility of Reverter.
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 convey the Property to Company and that without said commitment City
would not do so.
A. Deadlines to commence and complete. Company must obtain a
building permit and begin construction of the Improvements within four (4)
months after the date of conveyance (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 to the extent
necessary for the City to issue a certificate of occupancy relating thereto and the
City has verified that any Project element for which no permit was necessary has
been Substantially Completed. All deadlines are subject to Unavoidable Delays
as defined in paragraph B below. The City's Community Planning and
Development Director may, but shall not be required to, consent to an extension
3
of time of up to six (6) months for the construction of the Improvements. Any
additional or longer time extensions will require consent of the City Council.
B. Events triggering termination and/or reverter of title. If Company
does not begin or Substantially Complete construction of the Improvements on
the schedule(s) stated above, subject to Unavoidable Delays, then City may
terminate this Agreement as set forth in Section 19, and City shall then have no
further obligation to Company under this Agreement. 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 requirement
that construction be completed by the Completion Deadline shall be tolled for a
period of time equal to the period of Unavoidable Delay. If City terminates this
Agreement as provided in Section 19, City shall have no further obligations to
Company under this Agreement, including but not limited to any legal or
equitable obligation to reimburse Company for any costs expended by Company
with respect to the Project or to compensate Company for any value added to the
Property by any Improvements. In connection with termination of the Agreement
as set forth herein, City may demand reconveyance of the Property in addition to
exercising any other available remedies.
5. Reverter of Title; Indemnity. In the event of any reverter of title pursuant
to Section 4, then Company agrees that it shall, at its own expense, promptly execute
all documents, including but not limited to a special warranty deed, or take such other
actions as the City may reasonably request to effectuate said reverter and to deliver to
City title to the Property, free and clear of any lien, claim, charge, security interest,
mortgage or encumbrance (collectively, "Liens") arising by or through Company.
Concurrently with delivery of the deed, Company shall also deliver to City the abstract of
title. Company shall pay in full, so as to discharge or satisfy, all Liens on or against the
Property. Appointment of Attorney in Fact: If Company fails to deliver such
documents, including but not limited to a special warranty deed, to City within thirty (30)
days of written demand by City, then City shall be authorized to execute, on Company's
behalf and as its attorney-in-fact, the special warranty deed or other documents
required by this Section, and for such limited purpose Company does hereby constitute
and appoint City as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, or injury made, suffered, or
incurred as a result of or in connection with the Project, Company's failure to carry on or
complete same, or any Lien or Liens on or against the Property of any type or nature
whatsoever that attaches to the Property by virtue of Company's ownership of same. If
City files suit to enforce the terms of this Agreement and prevails in such suit, then
Company shall be liable for all legal expenses, including but not limited to reasonable
attorneys' fees, incurred by City. Company's duties of indemnity pursuant to this
Section shall survive the expiration, termination or cancellation of this Agreement for
any reason.
4
6. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, Company agrees that it shall not create, incur, or suffer to
exist any Liens on the Property, other than such mortgage or mortgages as may be
reasonably necessary to finance Company's completion of the Improvements and of
which Company notifies City before Company executes any such mortgage. Company
may not mortgage the Property or any part thereof for any purpose except in connection
with financing of the Improvements. Any other mortgage shall be void.
7. Utilities. Company will be responsible for extending, at its own expense,
water, sewer, telephone, telecommunications, electricity, gas and other utility services
to any location on the Property and for payment of any associated connection fees.
8. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other charges whatsoever levied upon or assessed or placed against the Property.
Company further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or
cause a reduction in the valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$350,000.00 (the "Minimum Actual Value"), through:
(i) willful destruction of the Property, the Improvements, or any part of
either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with execution
and delivery of this Agreement.
9. 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 Five 50% rebate each year
for any taxable value added by the completed Improvements (each such payment is a
"Rebate"). Each Rebate is payable in respect of a given property tax fiscal year (a
"Fiscal Year") only to the extent that (a) Company 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
5
installment of the property taxes for the respective Fiscal Year (i.e., the "March
Installment"), submit a completed Rebate 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 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 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.
10. 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
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the suspended provision. To this end the provisions of this Agreement are
severable.
B. Notwithstanding the provisions of Section 9 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 9 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 9, 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.
11. 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
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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
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 14 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.
12. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
engaged in activities of comparable size and liability exposure, and shall provide
evidence of such coverages to the City upon request.
B. Until the Improvements are Substantially Completed, Company
shall make such reports to City, in such detail and at such times as may be
reasonably requested by City, as to the actual progress of Company with respect
to construction of the Improvements.
C. During construction of the Improvements and thereafter until the
MAA termination date Company will cooperate fully with the City in resolution of
any traffic, parking, trash removal or public safety problems which may arise in
connection with the construction and operation of the Improvements.
D. Company will comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses, other than laws, rules and regulations where the failure to comply
with the same or the sanctions and penalties resulting therefrom, would not have
8
a material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Company.
E. Until termination of the MAA, Company will maintain, preserve and
keep the Property, including but not limited to the Improvements, in good repair
and working order, ordinary wear and tear excepted, and from time to time will
make all necessary repairs, replacements, renewals and additions.
F. The Property will have an assessed value as set forth in the
applicable MAA and any amendments thereto, and Company agrees that the
minimum actual value of the Property and completed Improvements as stated in
the applicable MAA and any amendments thereto will be a reasonable estimate
of the actual value of the Property and Improvements for ad valorem property tax
purposes. Company agrees that it will spend enough in construction of the
Improvements that, when combined with the value of the Property and related
site improvements, will equal or exceed the assessor's minimum actual value for
the Property and Improvements as set forth in the MAA and any amendments
thereto.
G. Until termination of the MAA, Company agrees that (1) if the
completed Improvements are to be Company's primary location for business
operations, it will not undertake, in any other municipality in Black Hawk County,
the construction or rehabilitation of any commercial property as a primary
location for Company's business operations of the type to be conducted on the
Property, and (2) it will make no conveyance, lease or other transfer of the
Property or any interest therein that would cause the Property or any part thereof
to be classified as exempt from taxation or subject to centralized assessment or
taxation by the State of Iowa.
H. Company shall pay, or cause to be paid, when due, all real property
taxes and assessments payable with respect to any and all parts of the Property.
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 or City ordinance, of the taxation of
real property included within the Property.
13. Representations and Warranties of City. City hereby represents and
warrants as follows:
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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:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of organization or bylaws of Company or of any
contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Company is now a party or by which it or its property is
bound, nor do they constitute a default under any of the foregoing.
E. Assuming due authorization, execution and delivery by the other
parties hereto, this Agreement is in full force and effect and is a valid and legally
binding instrument of Company that is enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting creditors' rights generally.
F. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
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15. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about
the Property arising after Company's lease or acquisition of the same or resulting
from any defect in the Improvements. The indemnified parties shall not be liable
for any damage or injury to the persons or property of Company or its directors,
officers, employees, contractors or agents, or any other person who may be
about the Property or the Improvements, due to any act of negligence or willful
misconduct of any person, other than any act of negligence or willful misconduct
on the part of any such indemnified party or its officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the acquisition and condition of the Property
and the construction, installation, ownership, and operation of the Improvements,
or (3) any hazardous substance or environmental contamination located in or on
the Property, but only to the extent such liability has not been previously
transferred to and accepted by the City in writing.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
16. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 180 days from the date this Agreement is approved
by the City council. If such completion does not occur, then any conveyance, benefit or
incentive of any type provided by City hereunder within said 180-day period is subject to
reverter of title, revocation, repayment or other appropriate action to restore such
property, benefit or incentive to City, and Company agrees to cooperate diligently and in
good faith with any reasonable request by City to effectuate the restoration of same, or
failing such restoration Company agrees to be liable for same or for the fair value
thereof, plus interest on any sums owing at the rate of 5% per annum commencing with
the date of demand for payment, if said payment is not remitted to City within 30 days.
11
17. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of the
Project, whether in whole or in part, to any other person or entity without the prior
written consent of City. Reasonable grounds for the City to withhold its consent shall
include but are not limited to the inability of the proposed transferee to demonstrate to
the City's satisfaction that it has the financial ability to observe all of the terms to be
performed by Company under this Agreement.
18. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, any part of the Property, or this Agreement, without the prior
written consent of City;
C. Failure by Company to pay, before delinquency, all ad valorem
property taxes levied on or against any of the Property;
D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement;
E. Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to any part of 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.
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19. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Company of the Event of Default, provided that by the conclusion of such period
the Event of Default shall not have been cured, or the Event of Default cannot
reasonably be cured within 30 days and Company shall not have provided
assurances reasonably satisfactory to the City that the Event of Default will be
cured as soon as reasonably possible. Upon termination, City may exercise any
and all remedies available at law, equity, contract or otherwise for recovery of
any sums paid by City to Company before the date of termination or to recover
ownership of the Property as set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
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.
20. 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.
21. 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,
13
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.
22. 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.
23. 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 3510 Kimball Avenue, Suite H, Waterloo, Iowa
50702, Attention: Anthony Fischels.
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.
24. 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.
25. 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.
26. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
14
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.
27. 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.
28. Interpretation. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it may have
been prepared by counsel for one of the parties, it being recognized that the parties
hereto and their respective attorneys have contributed substantially and materially to the
preparation of each and every provision of this Agreement.
29. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
30. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
31. 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.
32. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
15
CITY OF WATERLOO, IOWA 3 STOOGES, LLC
By: , By: ,f7t,
Quentin M. Hart, Mayor Antho Fischels
Managing Member
Attest:
elley Felch , 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.
Anthony chels
16
EXHIBIT "A"
Legal Description of Property
The South 145.15 feet of Lots 1 and 2, Waterloo Air and Rail Park 2nd Addition, City of
Waterloo, Black Hawk County, State of Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
v s .t , 2023, by and among the CITY OF WATERLOO, IOWA ("City"), 3
STO GES, LLC ("Company"), and the COUNTY ASSESSOR of the City of Waterloo,
Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment 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 and the
Company desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Company pursuant to the Development
Agreement, which shall be effective upon substantial completion of the Project and from
then until this Agreement is terminated pursuant to the terms herein and which is
intended to reflect the minimum actual value of the land and buildings as to the Project
only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which the parties contemplate will be
erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1 . Upon substantial completion of construction of the Minimum
Improvements by 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 $350,000.00 (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,
2034. The Minimum Actual Value shall be maintained during such period regardless of:
(a) any failure to complete the Minimum Improvements; (b) destruction of all or any
portion of the Minimum Improvements; (c) diminution in value of the Property or the
Minimum Improvements; or (d) any other circumstance, whether known or unknown and
whether now existing or hereafter occurring.
3. Company shall pay, or cause to be paid, when due, all real property taxes
and assessments payable with respect to all and any parts of the Property and the
Minimum Improvements pursuant to the provisions of this Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Property or the Minimum Improvements, any interruption in,
or discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property
or the Minimum Improvements.
4. Company agrees that its obligation to make the tax payments required
hereby, to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes) and that Company
shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to
any early termination of this Agreement for any reason whatsoever.
5. Nothing herein shall be deemed to waive the Company's rights under Iowa
Code § 403.6, as amended, to contest that portion of any actual value assignment
made by the Assessor in excess of the Minimum Actual Value established herein. In no
event, however, shall the Company seek or cause the reduction of the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement. Nothing herein shall limit the discretion of the Assessor to assign at any
time an actual value to the land and Minimum Improvements in excess of the Minimum
Actual Value.
6. Company agrees that during the term of this Agreement it will not:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property
contained as a part of the Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; or
2
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board of review of the city, county, state or to the
Director of Revenue of the State of Iowa to reduce the Minimum Actual Value; or
(e) cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
7. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
8. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
9. Each provision, section, sentence, clause, phrase, and word of this
Agreement is intended to be severable. If any portion of this Agreement shall be
deemed invalid or unenforceable, whether in whole or in part, the offending provision or
part thereof shall be deemed severed from this Agreement and the remaining provisions
of this Agreement shall not be affected thereby and shall continue in full force and
effect. If, for any reason, a court finds that any portion of this Agreement is invalid or
unenforceable as written, but that by limiting such provision or portion thereof it would
become valid and enforceable, then such provision or portion thereof shall be deemed
to be written, and shall be construed and enforced, as so limited.
10. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
3
CITY OF WATERLOO, IOWA 3 STOOGES, LLC
..----
By: is,15% .,_ - ;Q By:
Quentin Hart, Mayor/ Anthon . chels, Manag
By:
Kelley Felchle, ity Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this day of ; -' ' - , 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.
,0'"00 1 BRITNI C PERKINS
_ COMMISSION N0.845529
lit,
it MY COMMISSION EXPIRES . gab
IOWA JANUARY 27,2026 �/_
No.. Public
f,
4
„..,
81r11.)4Fi.T-1 ”)
• i
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on 5�(7. ,tcS,� 3 , 2023 by Anthony
Fischels as Managing Member of 3 Stooges, LLC.t 00
"i RACIA S ROSS C G� b�y-L_
* MY C MISSION EXPIRES `}LY
_. Notary Public
5
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00) 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