HomeMy WebLinkAboutPWM Companies - Dev Agmnt - 10.26.2023 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
0( —•- , 2023 by and between PWM Companies, 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 San Marnan
Development Plan urban renewal area ("Urban Renewal Area").
B. Company is willing and able to finance and erect structures and related
improvements on property located in the Urban Renewal Area and
described or depicted as set forth on Exhibit "A-1" attached hereto (the
"Property" or the "Project Property") and to finance and construct the
installation of roads, related infrastructure, and other improvements and to
plat and subdivide 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.
D. In view of the Company's investment in assembling and undertaking the
Project (defined below) and its commitment to develop the Property, the
City desires to provide certain incentives to encourage the Company to
facilitate timely development of the Property.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. Subject to the terms hereof, City shall convey to
Company that part of the Property legally described as set forth on Exhibit "A-2"
attached hereto (the "Phase 1 Property") for a sum equal to $36,000 per acre, on the
terms and subject to the conditions set forth in the Offer to Buy and Acceptance (the
"Purchase Agreement") between the parties, a copy of which is attached hereto as
Exhibit "B." The parties contemplate that Company will develop the Phase 1 Property
and the remainder of the Project Property in phases or arrange for one or more third-
parties to purchase portions of the Project Property for development. Within 24 months
after the closing date of Company's purchase of the Phase 1 Property, Company shall
purchase from City an additional number of acres to be determined by the parties, and
within 48 months after the closing date of Company's purchase of the Phase 1 Property,
Company shall purchase from City the remainder of the Project Property.
2. Improvements by Company. Company shall construct, or cause to be
constructed, all streets, sewers, utilities, and water lines on the Property in phases after
acquisition of title to the respective portion of the Property, in accordance with plans to
be submitted to City (all such street and infrastructure improvements and related site
preparation, including, but not limited to, necessary grading, fill, and earth work for such
street improvements, are referred to as the "Street Improvements"). Company shall
provide all information requested by City that is reasonably necessary to verify that the
Street Improvements were properly constructed and are eligible for acceptance. In
addition to construction of the Street Improvements, Company shall plat and subdivide
the Property into multiple lots for development by Company or by third parties and shall
act with diligence to market said lots for sale and development, or develop the Property
itself. Company agrees that the Improvements shall be constructed in accordance with
the terms of this Agreement, the San Marnan Development 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 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 Street 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." The parties anticipate that Company will undertake and complete Project
activities on a phase-by-phase basis.
3. Development. It is the intention of the parties that the Project Property,
also known as the South Waterloo Business Park, will be fully developed for approved
office, commercial, and/or light industrial uses. Company or a third-party purchaser
from Company shall construct on platted lots within the Project Property the
improvements to be described in one or more separate development agreements
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between City and the project developer. For purposes of this Agreement, the party
developing a project on the Project Property, whether Company or a third party, is
referred to as a "Developer." No improvements may be constructed on any part of the
Project Property without the prior written consent of City, which consent may take the
form of a development agreement. A development agreement may provide for a
schedule on which Project improvements are to be completed, a minimum assessed
value for the improvements, Project incentives to be conditionally provided by City, and
other terms and conditions. City and Company shall work cooperatively in good faith for
business park design, including general layout, lot sizes, lot orientations, project layouts,
and location of infrastructure.
All Developer improvements shall be constructed in accordance with the terms of
the applicable development 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. For each Developer project, City may require that
the Developer submit specific building designs and site plans for City review and
approval. Developer 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.
Project improvements completed within the schedule established and on the terms
required by a development agreement may be eligible for the benefits provided for in
such agreement, and any improvements not completed within the prescribed period or
in conformity with other specified terms will not be eligible for said benefits.
4. Construction Plans. Company agrees that it will cause the Street
Improvements to be constructed on the Property in conformance with construction plans
(the "Plans") that will be submitted to the City before construction. Company agrees
that the scope and scale of the Street 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 Agreement to provide for the construction of the Street 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.
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The Modified Plans must be rejected in writing by City within thirty (30) days of
submission or shall be deemed to have been approved by the City. If City rejects the
Modified Plans in whole or in part, Company shall submit new or corrected Modified
Plans within thirty (30) days after receipt by Company of written notification of the
rejection, accomplished by a written statement of the City specifying the respects in
which Company's Modified Plans fail to conform to the requirements of this Section.
The provisions of this Section relating to approval, rejection and resubmission of
corrected Modified Plans shall continue to apply until the Modified Plans have been
approved by the City; provided, however, that in any event Company shall submit
Modified Plans which are approved by City prior to commencement of construction of
the additional or modified Street 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 Street Improvements as constructed.
5. Timeliness. To be eligible for the incentives provided by this Agreement,
Company must complete construction of all of the Street Improvements in the Phase 1
Property and must plat and subdivide the Phase 1 Property within twenty-four (24)
months from the date of this Agreement. If all such Street Improvements are not
accepted by City within thirty (30) months from the date of this Agreement, then the
grant payments provided for in Section 6 shall be suspended until acceptance of the
Street Improvements. City will accept the Street Improvements only if (a) Company has
posted a two-year maintenance bond with respect to the Street Improvements or (b)
Company has already entered into an agreement for completion of improvements that
provides for such a bond. Company's obligation to construct Street Improvements and
plat and subdivide the Property shall proceed on the same schedule as above with
respect to each separate phase of the Property purchased by Company pursuant to
Section 1, except that the applicable time line for each phase shall commence upon the
date the City conveys such phase of the Property to Company.
6. Grants to Company. As an inducement for Company to undertake the
Project, the City agrees to make development grant payments (each a "Grant") to
Company as follows, subject to the other terms of this Agreement:
A. A semi-annual Grant in an amount equal to 100% of the property
taxes collected by City (excluding Non-TIF Collections as defined in paragraph
6.0 below) from land valuations on the subject properties and minimum
assessment agreements for land valuation with a party making improvements on
the Property (a "Developer") pursuant to a separate development agreement with
City, reduced by any and all tax rebates that City is required to pay to the
Developer pursuant to the terms of any development agreement with such
Developer. For purposes of illustration only, if an agreement between City and a
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Developer provides for rebatement of 50% of qualifying property taxes for a
period of five years, then Company would receive a Grant equal to the remaining
50% of qualifying property taxes in each year of such period. No Grant with
respect to such Developer's improvements to a parcel of land for a project shall
be made to Company before a property tax rebate is first paid to the Developer.
At the end of the Developer's tax rebatement period, City will make a semi-
annual Grant to Company in an amount equal to 100% of qualifying property
taxes until Company has been paid pursuant to paragraph 6.F below. For
purposes of this paragraph, the term "Developer" may include Company with
respect to improvements made on the Property other than the improvements that
are the subject of this Agreement.
B. With respect to any taxable improvements constructed on the
Property that are not subject to a separate development agreement between City
and the owner-builder thereof(referred to as "Non-Qualifying Improvements",
which are further explained below), a semi-annual Grant in an amount equal to
100% of the property taxes collected by City (excluding Non-TIF Collections), if
not for the non-qualifying character of the improvements, starting in "Year One"
and continuing thereafter until Company has been paid pursuant to paragraph
6.F below. The Grant shall be determined with reference to the taxes paid in a
given fiscal year on the increased valuation of the subject property over the base
valuation as of January 1, 2022. For purposes of illustration, a "Non-Qualifying
Improvement" means, generally, an improvement of a type that is not eligible for
property tax rebates or similar incentives, such as property that is or becomes
exempt from taxation, or other classifications of property determined from time to
time as ineligible by City policy. "Year One" shall be the first year for which the
assessment is based upon the partial or completed value of the Non-Qualifying
Improvements, but not a prior year for which the assessment is based solely
upon the value of the land.
C. Expressly excluded from the above-described grant and rebate
program is 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 (collectively, "Non-TIF Collections").
D. Grants to Company are payable in respect of a given year only to
the extent that general property taxes that are due and owing for such year have
actually been paid. The City will pay Grants semi-annually. The Company
reserves the right to assign the semi-annual payments to a lender as an
assignment of Grant payments.
E. In respect of any Grant amount that is determined from time to
time, payment shall be made within a reasonable time following the tax
installment payment due date, provided that the tax installment was actually paid
and Company has submitted proof of payment to City or has otherwise notified
City of completed payment in a manner that is satisfactory to City.
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F. Notwithstanding anything to the contrary in this Section 6, City will
pay to Company a minimum annual Grant amount of$40,000.00, until such time
as the cumulative amount of Grants payable by City to Company under this
Agreement reaches the total documented cost of constructing the Street
Improvements (the "Grant Maximum").
G. Each Grant payment 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 Grant payments 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 parties will
negotiate in good faith how to continue development of the property.
H. Notwithstanding the provisions set forth above, City shall have no
obligation to make a payment of a Grant to Company if(i) at any time during the
term hereof City fails to appropriate funds for payment; (ii) City receives an
opinion from its legal counsel to the effect that the use of Tax Increments to fund
a Grant payment to Company 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
Iowa Urban Renewal Act or other applicable provisions of state law, as then
constituted or under controlling decision of any Iowa court having jurisdiction over
the subject matter hereof; or (iii) City's ability to collect Tax Increment is
precluded or terminated by legislative changes to Iowa Code Chapter 403. Upon
occurrence of any of the foregoing circumstances, City shall promptly forward
notice of the same to Company. If the circumstances continue for a period
during which two (2) annual Grant payments would otherwise have been paid to
Company under the terms above, then City may terminate this Agreement,
without penalty or other liability to City, by written notice to Company. For
purposes of this Agreement, "Tax Increments" shall mean the property tax
revenues on the improvements and property in the San Marnan Development
Plan area that are 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 San Marnan Development Plan. With respect to
any year for which the City Council does not appropriate funds for one or more
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Grant payments, the term of this Agreement shall be extended as necessary to
allow for Company's recovery of the Grant Maximum.
7. City's Repurchase Rights. In connection with any future development of
an unimproved portion of the Project Property, arranged by or through City with a third
party and without substantial involvement by Company, City shall have the right to
repurchase from Company, its successors, assigns or transferees, any part of the
Project Property no longer owned by City, that is (i) undeveloped and (ii) is either not
committed by binding agreement with a third party for development within a reasonable
period or for which Company or a Developer has not taken out a building permit for its
own Project (the "Buyback Land"). The repurchase price shall be $36,000 per acre,
plus the pro rata share of infrastructure development costs incurred by Company that
may be allocated to the Buyback Land in the same proportion that the number of acres
of Buyback Land bears to the number of acres of Project Property owned by Company,
its successors, assigns or transferees, minus future Grants paid against acquired
parcels. For purposes of calculating said pro rata share, the number of acres shall be
determined to the nearest hundredth of an acre. Company agrees, for itself and any
Buyback Seller, that no real estate broker commission shall be payable with respect to
any transaction for City's purchase of Buyback Land. City's acquisition of any Buyback
Land is limited as follows:
(a) City or Municipal purposes.
(b) Owner/User/Operator that is NOT in a current, nor within the
preceding four (4) months has been in, conversations, communication, inquiry or
negotiations with Company through a real estate broker, intermediary, attorney,
agent, consultant, government authority, or other representative acting on behalf
or order of the end user.
(c) End user cannot purchase the property for the use and development
of the property for the purposes of leasing or selling real estate to third party
clients, tenants, or sub-tenants or in any capacity in which real estate is rented,
leased, or sold to an individual or business, who is called a tenant, lessee or by
any other moniker.
(d) Company will receive its share of any TIF or tax abatement incentive
or rebate as provided in Section 6 and will be reimbursed for any taxes paid on
the Buyback Land.
Conveyances to the City shall be by warranty deed, free and clear of all encumbrances
arising by or through Company, its successor, assign or transferee (each a "Buyback
Seller"), except: (a) easements, servitudes, conditions and restrictions of record; (b)
general utility and right-of-way easements serving the Buyback Land; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. Company
shall prepare, at the expense of City, an updated abstract of title, or in lieu thereof City
may, at its own expense, obtain whatever form of title evidence it desires. The Buyback
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Seller shall provide any title documents it has in its possession, including any abstracts,
to assist in title review.
8. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows with respect to each phase of Improvements:
A. Company agrees that it will make no conveyance, lease or other
transfer of the Project Property or any interest therein that would cause the
Project Property or any part thereof to be classified as exempt from taxation or
subject to centralized assessment or taxation by the State of Iowa.
B. 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 Project
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 Project
Property that is determined by any tax official to be applicable to the Project
Property or to Company, or raise the inapplicability or constitutionality of any
such tax statute or regulation as a defense in any proceedings of any type or
nature, including but not limited to delinquent tax proceedings, and (2) it will not
seek any tax deferral, credit or abatement, either presently or prospectively
authorized under Iowa Code Chapter 403 or 404, or any other state law, of the
taxation of real property included within the Project Property.
C. Until the Street 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 Street Improvements.
D. Company will cooperate fully with City in resolution of any traffic,
parking, trash removal or public safety problems which may arise in connection
with construction of the Street Improvements.
9. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
10. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
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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.
11. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties")from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about
the Project Property arising after Company's acquisition of same. 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,
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or any other person who may be about the Project Property, due to any act of
negligence or willful misconduct of any person, other than any act of gross
negligence or willful misconduct on the part of any such indemnified party or its
officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the acquisition and condition of the Project
Property, or (3) any hazardous substance or environmental contamination
located in or on the Project Property, but only to the extent such liability has not
been previously transferred to and accepted by the City in writing.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
12. 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 Project 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.
13. Assignment or Conveyance. To effectuate the parties' firm intention to
develop the Project Property, any sale, conveyance, assignment or other transfer by
Company of its interest in the Project Property to any other person or entity shall be
subject to the terms of this Agreement.
14. 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 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;
B. Transfer by Company of any interest (either directly or indirectly) in
any part of the Project Property or this Agreement, without the prior written
consent of City, except as expressly permitted by this Agreement;
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C. Failure by Company to pay, before delinquency, all ad valorem
property taxes levied on or against any of the Project Property after City's
conveyance of same to Company;
D. 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 Project Property.
E. 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.
15. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement as to
any sale transaction that has not closed as of the date of termination. 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.
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.
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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.
16. 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 as to any sale transaction
between the parties that has not closed as of the date of termination.
17. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
18. 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.
19. 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 760 Liberty Way, North Liberty, IA. 52317,
Attention: Manager, Scott Wilson.
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Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) four (4) 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.
20. Relationship of Parties. 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.
21. Conflicting Terms. In the event of any conflict between the terms of this
Agreement and the Purchase Agreement, the terms of this Agreement shall prevail.
22. 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.
23. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the
offending provision or part thereof shall be deemed severed from this Agreement and
the remaining provisions of this Agreement shall not be affected thereby and shall
continue in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
24. 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.
25. 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.
{00506292} 13
26. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
27. Counterparts. This Agreement may be executed in multiple counterparts,
each of which, including counterparts signed electronically or signed counterparts
delivered by facsimile or other electronic means, shall be deemed an original and all of
which, taken together, shall constitute one and the same instrument.
28. 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.
29. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA PWM COMPANIES, LLC
By: i c p-
Quentin M. Hart, May S tt Wilson
hief Financial Officer
Attest:eV.
Kelley Felc I , City Clerk
{00506292} 14
EXHIBIT "A-1"
Legal Description of Project Property
The Southwest Quarter(SW 1/4)of the Northwest Quarter (NW 1/4) of Section 9, Township 88
North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk County,
State of Iowa, except the west 33 feet thereof, and except Tracts A and B as described in LD
Book 539 Page 982, and except Fee Tracts A and B as described in Document No. 2006-873,
and except that part described in Document No. 2012-16922, all filed in the Black Hawk County
Recorder's Office;
and
That part of the East Half(E 1/2)of the Northwest Quarter(NW 1/4)of Section 9, Township 88
North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk County,
State of Iowa, lying southerly of US Highway No. 20 as described in LD Book 539 Page 996,
and except that part conveyed to the State of Iowa in Doc. No. 2006-18278, all filed in the Black
Hawk County Recorder's Office;
and
The Northwest Quarter(NW 1/4) of the Southwest Quarter(SW 1/4)of Section 9, Township 88
North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk County,
State of Iowa, except the west 33 feet thereof, and except that part thereof described in
Document No. 2012-16922, and except that part thereof described in Land Deeds Book 567
Page 633, and except that part thereof described in Land Deeds Book 569 Page 42, all filed in
the Black Hawk County Recorder's Office;
and
The Northeast Quarter (NE 1/4)of the Southwest Quarter (SW 1/4) of Section 9, Township 88
North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk County,
State of Iowa;
and
The North Half(N 1/2) of the South Half(S 1/2) of the Southwest Quarter(SW 1/4) of Section 9,
Township 88 North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk
County, State of Iowa, except the West 385 feet thereof;
and
That part of the West Half(W 1/2) of the Northeast Quarter (NE 1/4)of Section 9, Township 88
North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk County,
State of Iowa, described as beginning at the center of said section; thence North 0° 03'West
1033.5 feet along the west line of said Northeast Quarter; thence South 89° 19%' West 920.5
feet; thence South 26° 56' West 508.5 feet; thence South 0° 54' ' West 561.8 feet to a point on
the south line of said Northeast Quarter; thence South 89° 21'/z ' West 680.4 feet along said
south line to the point of beginning.
Subject to easements, restrictions, covenants, ordinances, and limited access provisions of
record and not of record.
{00506292} 15
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{00506292} 16
EXHIBIT "A-2"
Description of Phase 1 Property
[Property to be described by survey or subdivision plat, consisting of approximately 60
acres, more or less.]
{00506292} 17
EXHIBIT "B"
Purchase Agreement
See attached.
{00506292} 18
OFFER TO BUY AND ACCEPTANCE
TO: City of Waterloo,Iowa("Seller")
FROM: PWM Companies,LLC,or assign("Buyer")
Buyer hereby offers to buy, and the Seller by its acceptance agrees to sell, the real property situated in
Waterloo,Black Hawk County, Iowa, legally described as in the abstract of title and being a part of Section 9,
Township 88 North, Range 13 West of the Fifth Principal Meridian, City of Waterloo, Black Hawk County,
State of Iowa, consisting of_183.7 _ acres, m/I, and further described or delineated on an exhibit attached
hereto, together with any easements and appurtenant servient estates, but subject to (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 (the "Property"), upon the
following terms and conditions:
1. EARNEST MONEY AND PURCHASE PRICE. The Purchase Price shall be $ 6,613,200.00
($36,000.00 per acre), Split into three (3) phases. Phase 1 will consist of sixty (60) acres +/-, Phase 2 will
consist of sixty (60) acres +/-, and Phase 3 will consist of 63.7 acres +/-. The proposed delineation of the
phased closing are denoted in Exhibit A. of which$_50,000_is on deposit with the law firm of Clark,Butler,
Walsh&Hamann to be held in trust as earnest money, and the balance of the Purchase Price shall be due and
payable in full at closing,to be delivered to Seller upon performance of Seller's obligations and satisfaction of
Buyer's contingencies, if any. If this Agreement is not accepted by Seller or if it is rescinded by Buyer for
failure of title or any other reason provided for in this Agreement, then the earnest money shall be returned to
Buyer. Any other release of earnest money shall require the written consent of both parties.
2. POSSESSION AND CLOSING. If Buyer timely performs all obligations, possession of the Property
shall be delivered to Buyer at closing. Closing shall occur by Phase 1: Sixty(60) acres on or about February
15,2024 or as defined below under"Closing."2. Phase 2 closing will be within 24 months of closing on Phase
1. Phase 3 closing will be within 48 months of closing on Phase 1._, unless extended to a later date by the
parties in writing, but in any event after the approval of title by Buyer and satisfaction or waiver of other
contingencies. Buyer does not agree to take possession subject to the rights of non-owner occupants, if any,
now in possession.
3. REAL ESTATE TAXES. Seller shall pay taxes prorated to the closing date and any unpaid real estate
taxes payable in prior years. Buyer shall pay all subsequent real estate taxes. Unless otherwise provided in
this Agreement, at closing Seller shall pay Buyer, or Buyer shall be given a credit for,taxes from the first day
of July prior to possession to the date of possession based upon the last known actual net real estate taxes
payable according to public records. However, if such taxes are based upon a partial assessment of the present
property improvements or a changed tax classification as of the date of possession, such proration shall be
based on the current levy rate, assessed value,legislative tax rollbacks and real estate tax exemptions that will
actually be applicable as shown by the assessor's records on the closing date.
4. SPECIAL ASSESSMENTS. Seller shall pay at time of closing all installments of special assessments
which are a lien on the Property as of closing, and all prior installments thereof. All charges for solid waste
removal, sewage and maintenance that are attributable to Seller's possession, including those for which
assessments arise after closing, shall be paid by Seller. Any preliminary or deficiency assessment which
cannot be discharged by payment shall be paid by Seller through an escrow account with sufficient funds to
pay such liens when payable, with any unused funds returned to Seller. Buyer shall pay all other special
assessments or installments not payable by Seller.
5. RISK OF LOSS AND INSURANCE. Seller shall bear the risk of loss or damage to the Property prior
to closing. Seller agrees to maintain existing insurance,and Buyer may purchase additional insurance.
6. FIXTURES.Omitted.
7. CONDITION OF PROPERTY.The Property as of the date of this Agreement will be preserved by the
Seller in its present condition until possession. Except as expressly set forth in this Agreement, Seller sells the
Property "AS IS" and makes no warranties, expressed or implied, as to the condition of the Property, its
marketability, fitness for any particular use or purpose, or otherwise. Buyer is responsible to conduct its own
investigations and inspections.
8. ABSTRACT AND TITLE. Seller, at its expense, shall promptly obtain an abstract of title to the
Property continued through the date of acceptance of this Agreement, and deliver it to Buyer's attorney for
examination,or in lieu thereof Buyer may,at its own expense,obtain whatever form of title evidence it desires.
It shall show marketable title in Seller in conformity with this Agreement, Iowa law, and title standards of the
Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect title. if closing
is delayed due to Seller's inability to provide marketable title,this Agreement shall continue in force and effect
until either party rescinds the Agreement after giving ten (10) days' written notice to the other party. The
abstract shall become the property of Buyer when the Purchase Price is paid in full. Seller shall pay the costs
of any additional abstracting and title work due to any act or omission of Seller, including transfers by or the
death of Seller or its assignees. After all valid objections have been satisfied or provided for, Seller shall have
no obligation to pay for further abstracting,excepting any made necessary by its own affairs.
9. SURVEY. If a survey is required under Iowa Code Chapter 354,or city or county ordinances,Buyer
shall pay the costs thereof. Buyer may, at Buyer's expense prior to closing, have the Property surveyed and
certified by a registered land surveyor. If the survey shows an encroachment on the Property or if any
improvements located on the Property encroach on lands of others,the encroachments shall be treated as a title
defect.
10. ENVIRONMENTAL MATTERS. Seller warrants to the best of its knowledge and belief that there
are no abandoned wells, solid waste disposal sites, hazardous wastes or substances, or underground storage
tanks located on the Property, the Property does not contain levels of radon gas, asbestos, or urea-
formaldehyde foam insulation which require remediation under current governmental standards, and Seller has
done nothing to contaminate the Property with hazardous wastes or substances. Seller warrants that the
property is not subject to any local,state,or federal judicial or administrative action, investigation or order, as
the case may be, regarding wells, solid waste disposal sites, hazardous wastes or substances, or underground
storage tanks. If required by law, Seller shall also provide Buyer with a properly executed groundwater hazard
statement showing no wells, solid waste disposal sites,hazardous wastes and underground storage tanks on the
Property unless disclosed here:
11. DEED. Upon payment of the Purchase Price, Seller shall convey the Property to Buyer by special
warranty deed,free and clear of all liens,restrictions, and encumbrances except as provided in this Agreement.
General warranties of the title shall extend to the time of delivery of the deed excepting liens and
encumbrances suffered or permitted by Buyer.
12. USE OF PURCHASE PRICE. At time of settlement, funds of the Purchase Price may be used to pay
taxes and other liens and to acquire outstanding interests,if any,of others.
13.REMEDIES OF THE PARTIES.
A. If Buyer fail to timely perform this Agreement, Seller may forfeit it as provided in the Iowa Code
(Chapter 656), and all payments made shall be forfeited; or, at Seller's option, upon thirty days written
notice of intention to accelerate the payment of the entire balance because of Buyer's default (during
which thirty days the default is not corrected), Seller may declare the entire balance immediately due and
payable. Thereafter this Agreement may be foreclosed in equity and the Court may appoint a receiver.
B. If Seller fails to timely perform this Agreement, Buyer has the right to have all payments made
returned to it,or Buyer may require specific performance by Seller.
2
A. Buyer and Seller are also entitled to utilize any and all other remedies or actions at law or in
equity available to them, and the prevailing parties shall also be entitled to obtain judgment for costs and
attorney fees.
14. NOTICE. Any notice under this Agreement shall be in writing and be deemed served when it is
delivered by personal delivery or mailed by certified mail, addressed to the parties at the addresses given
below.
15. GENERAL PROVISIONS. In the performance of each part of this Agreement, time shall be of the
essence. Failure to promptly assert rights herein shall not, however, be a waiver of such rights or a waiver of
any existing or subsequent default. This Agreement shall apply to and bind the successors in interest of the
parties. This Agreement shall survive the closing. This Agreement contains the entire agreement of the parties
and shall not be amended except by a written instrument duly signed by Seller and Buyer. Paragraph headings
are for convenience of reference and shall not limit or affect the meaning of this Agreement. Words and
phrases herein shall be construed as in the singular or plural number, and as masculine, feminine or neuter
gender according to the context.
er-breker-in-eannectien-with-this-transeetien. REAL ESTATE AGENT OR BROKER. Both parties recognize
that the Buyer is represented in this transaction by CBRE, Inc. Both parties also recognize that a commission
agreement and agency disclosure documents were executed with the Letter of Intent to Purchase as a precursor
to this document fully executed on May 3, 2023. Both Parties also recognize that CBRE's appointed agent
representing the Buyer in this transaction will be Mike Macri III in connection with this transaction. All
commissions due on the closing of each phase will be payable predicated on the separate commission
agreement attached as an exhibit to this document.
17. FOREIGN PERSON STATUS (FIRPTA, Foreign Investment in Real Property Tax Act). Seller
represents that it is not a foreign person as defined in Internal Revenue Code § 1445 and any related
regulations. At closing,Buyer will have no duty to collect withholding taxes for Seller pursuant to FIRPTA.
18. ADDITIONAL PROVISIONS.
(a) Special contingencies to effectiveness of Agreement. Notwithstanding any signatures below by
representatives of Buyer,this Agreement is expressly subject to approval by the city council of
Buyer.
(b) Buyer and Seller are parties to a certain development agreement with respect to the Property and
agree that Buyer's purchase and use of the Property shall be subject to the terms and conditions of
said agreement.
(c) Buyer's obligation to purchase the Property will be contingent upon Buyer's determining(in its
sole discretion)during the Due Diligence Period that it is satisfied:
(d) With the results of all environmental investigations,studies and tests completed by an
environmental testing firm acceptable to Buyer.
(e) With the results of all soil and other site engineering investigations,studies and tests,which Buyer
deems appropriate.
(f) With utilities,storm water detention and all on-site and off-site infrastructure to the Property,as
well as all planed storm water detention an infrastructure plans for the site being approved in a
site plan submitted to the City of Waterloo and full approval from the City prior to closing.
(g) With all government approvals desired and necessary for Buyer to develop the Property.These
approvals will include but are not limited to: (a)Site Plan approve(b)Appropriate zoning
approval and all associated covenants,code,and restrictions(CCR's)as well as permitted
building design and materials uses for the development. (c)development agreement(s)between
the City of Waterloo and the Buyer/Developer for(i):Development agreement for the
construction of roadways and infrastructure and associated,grants,loans,public funding or Tax
Increment Financing methods to pay for the development.(ii):Development Agreement for the
construction of the first plans buildings by the Buyer/Developer.(iii):Development agreement
3
between the City of Waterloo and the Buyer/Developer for the sale of land to City procured
prospective Owner/Occupants with TIF incentives from said projects remaining in control of the
Buyer/Developer in exchange for land to be sold at acquisition cost plus amortized infrastructure
expense on a per acre basis. Details of these document will be formalized and memorialized in
the associated development agreements.(d)RISE Grant application,if applicable.(e)Any
required development agreements or planned assessment for the upgrading or improves to the
surrounding roadway and infrastructure systems necessitated by this development.(f)Iowa
Department of Transportation approve of access and interchange locations for the development in
all phases.
(h) With its review of all leases,easement agreements,maintenance agreements,or any other
agreements relating to the Property.
(i) With its review of all documents provided to Buyer by Seller.
(j) With its review of the status of title to the Property.
(k) That the Property is suitable to Buyer in accordance with Buyer's development plans.
(1) With lease termination agreements between Seller and any tenant(s)on the Property. Buyer will
request notice be provided to any cash rent or crop share fanning leases or agreement on the
property prior to September 1,2024. Buyer will negotiation new agreements with any farming
operations on the property to accommodate for proposed development work in 2024.
(m) Seller agrees that after the Purchase Agreement is signed,Seller will not(i)promote the sale of
the Property to,or solicit offers to purchase the Property from,other parties or(ii)discuss or
negotiate with other parties regarding the sale of the Property.
(n) Upon mutual execution of a purchase agreement for the property.
(o) Buyer my engage a real estate broker to market their proposed development.
19. ENTIRE AGREEMENT. Except as stated in paragraph 18(b), this Agreement represents the entire
agreement between the parties, superseding all prior or contemporaneous understandings, negotiations,
discussions,or agreements between the parties with respect to the subject matter hereof.
20.ACCEPTANCE. When accepted,this Agreement shall become a binding contract.
Dated 10-17-2023
Accepted by Seller on
SELLER BUYER
City of Waterloo,Iowa PWM Companies,LLC(or assignee identified
below)
ut 1�a�
By:
QuertE By .
Mayor
Title: CFO
Tpli"ey TFekfife `+
Attest: Assignee:
City Clerk
4
Exhibit A:PWM,LLC/OPUS Design Build—Development Plan
n w
Phase 1:Approx. Phase 2
60 acres+/-
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5
Exhibit B:"South Waterloo Business Park"- Parcel Map
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Exhibit C:Appointed Agency&Commission Documents
CBRE
DISCLOSURE OF APPOINTED AGENCY
(Iowa)
CBRE,INC.
Licensed Real Estate Broker
To:City of Waterloo.IA ("Seller/Landlord")and PWM.LLC.("Buyer/Tennnt")
Property: "The South Waterloo Business Park"consisting of a total of six(6)parcels totaling 183.7 acres
herein refereed to a("Property")Subject parcels Include:
I. Parcel#:881309326008-79.66 Acres(3,469,990 SF)
2. Parcel#:881309176004-28.39 Acres(1,236,668 SF)
3. Parcel#:881309176005-3.15 Acres(137,214 SF)
4. Parcel#:881309326010-9.53 Acres(415,127 SF)
5. Parcel#:881309326011-10.42 Acres(453,895 SF)
6. Parcel#:88[309351001-33.66 Acres(1,466,230 SF)
Hereby refened to as"Property".
CBRE, Inc.. ("CBRE") represents both Seller/Landlerd and Buyer/Tenant in the sale, lease; or other
transaction concerning the above-referenced Property(the"Transaction").For purposes of the Transaction,
CBRE end-SelleatLandlerd have a e nted rh ri_1.4 •El ("o „ n
pp n.."��.,"a-:--- '.._..,:'c,.,e::dlerd's Appointed Agent")to
actas-the-aele-brokerage agent of Sellertlendlard to the-ertelusien of all-ether For
purposes of the Transaction,CBRE and Buyer/Tenant have appointed jMike Maori IBl("Buyer's/Tenant's
Appointed Agent")to act as the sole brokerage agent of Buyer/Tenant to the exclusion of all other licensees
of CBRE.
In the event that,during the course of the Transaction,any client's appointed agent is not be able to fulfill
the terms of the applicable brokerage agreement or,as such client and CBRE's Iowa designated broker may
, otherwise agree,another licensee affiliated with CBRE may be appointed as such client's appointed agent
provided that,at such time,CBRE complies with the requirements of Iowa Admin.Cade Rule 193E-
12.7(543B). Any such appointment of another affiliated licensee or an additional affiliated licensee does
not relieve the first appointed agent of any of the duties owed to the client.
Seller's/Landlord's Appointed Agent and Buyer's/Tenant's Appointed Agent each represents solely and
exclusively the interests of such licensee's respective client in the Transaction. Seller's/Landlord's
Appointed Agent and Buyer's/Tenant's Appointed Agent may not disclose, except to CBRE's Iowa
"designated broker"or such licensee's supervising broker(if different),any information made confidential
by request or instructions of the client such licensee is representing or otherwise deemed confidential by
statute or rule,except information permitted or required to be disclosed by applicable law.
Buyer/Tenant acknowledges that Seller's/Landlord's Appointed Agent owes the duties to a client set forth
in Iowa Code section 543B.56,subsection 2(below)exclusively to Seller/Landlord;and Seller/Landlord
acknowledges that Buyer's/Tenant's Appointed Agent owes such duties exclusively to Buyer/Tenant.
Seller's/Landlord's Appointed and Buyer's/Tenant's Appointed Agent each owe the duties set forth in
543B.56,subsection 1(below)to all parties to the Transaction,
7
LICENSEE'S DUTIES TO ALL PARTIES IN A TRANSACTION
(IOWA CODE SECTION 543B.56(1))
In providing brokerage services to all parties to a transaction,a licensee shall do all of the following:
a. Provide brokerage services to all parties to the transaction honestly and in good faith.
b. Diligently exercise reasonable skill and care in providing brokerage services to all parties.
c, Disclose to each party all material adverse facts that the licensee knows except for the following:
(I) Material adverse facts known by the party.
(2) Material adverse facts the party could discover through a reasonably diligent inspection,
and which would be discovered by a reasonably prudent person under like or similar
circumstances.
(3) Material adverse facts the disclosure of which is prohibited by law,
(4) Material adverse fads that are known to a person who conducts an inspection on behalf of
the party.
d. Account for all property coming into the possession of a licensee that belongs to any party within
a reasonable time of receiving the property.
LICENSEE'S DUTIES TO A CLIENT
(IOWA CODE 543B.56(2))
In addition to the licensee's duties under the Section 543B.56 subsection(1)above,a licensee providing
brokerage services to a client shall do all of the following:
a. Placethe client's interests ahead of the interests of any other party,unless loyalty to a clientviolates
the licensee's duties under subsection 1,section 543B.58,or under other applicable law.
b. Disclose to the client all information known by the licensee that is material to the transaction and
that is not known by the client or could not be discovered by the client through a reasonably diligent
inspection.
c. Fulfill any obligation that is within the scope of the agency agreement,except those obligations
that arc inconsistent with other duties that the licensee has under this chapter or any other law.
d. Disclose to a client any financial interests the licensee or the brokerage has in any business entity
to which the licensee or brokerage refers a client for any service or product related to the
transaction.
Seller/Landlord and Buyer/Tenant acknowledge and agree that their representation by separate appointed
agents affiliated with CBRE does not result in a dual agency by CBRE or CBRE's designated broker for
Iowa.
8
The undersigned Sellentandlord and Buyerfreoant acknowledge that they havens/land understood this
form end each hereby consents to the appointed agency relationships described Iteieht.
(City of Waterloo,JAI t + ex milord):
Dace: 543,23
Name: lk`I. Audtgitaio3
Tiger era Ainu4rn+R4rutsµtQbyr:,enitur Decittic.
IPW M,LLCI(Bum/tenant):
o.eueyvae,:
Sr L1 . Datel/6/2023
/Nti 1 son
Title:A/111 yr
CBRE,lac.:
Jut JSgre J v,.
1 tko d Date_51`3i2023
tilumetwiaiaw 3. Wright
Title: Managing Director
9
CBRE
Iowa Sale/Lease Disclosures
Property:"The South Waterloo Business Park"consisting of a total of six(6)parcels totaling
183,7 acres herein referred to a("Property")Subject parcels Include:
1. Parcel#:881309326008-79.66 Acres(3,469,990 SF)
2. Parcel#:881309176004-28.39 Acres(1,236,668 SF)
3. Parcel#:881309176005-3.15 Acres(137,214 SF)
4. Parcel#:881309326010-9.53 Acres(415,127 SF)
5. Parcel#:881309326011-10.42 Acres(453,895 SF)
6. Parcel#:881309351001-33.66 Acres(1,466,230 SF)
Hereby referred to as"Property".
Seller/Landlord Disclosure of Material Facts,Delivery of Reports,and Compliance with Laws.Sellers/landlords
are hereby requested to disclose directly to buyers/tenants all facts known to sellers/landlords that materially affect
the value or desirability of the Property and are not readily observable nor known to the buyer/tenant,including,but
not limited to,facts regarding hazardous materials,zoning,eonstnretion,design,engineering,soils,title,survey,
fire/life safety,proneness to natural hazards such its earthquakes,and other matters,and to provide buyers/tenants with
copies of all reports in the possession of or accessible to sellets/landlords regarding the Property. Sellers/landlords
and buyers/tenants nmst comply with all applicable federal,state and local laws,regulations,codes,ordinances and
orders,including,but not limited to,the 1964 Civil Rights Act and all amendments thereto,the Foreign Investment in
Real Property Tax Act,the Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
Americans with Disabilities Act(ADAI. The Americans With Disabilities Act(42 United States Code§12101 et
seq.)and other federal,state and local requirements may require changes to the Property. Have your experts
investigate and evaluate these natters.
Taxes. Sales,leases and other real estate transactions can have federal,state and local tax consequences. In sales
transactions,Internal Revenue Code§1445 requires buyers to withhold and pay to the IRS 15%of the gross sales
price within 20 days of the date of a sale unless the buyers can establish that the sellers are not foreigners,generally
by having the sellers sign a Non-Foreign Seller Affidavit. Depending on the structure of the transaction,the tax
withholding liability can exceed the net cash proceeds to be paid to sellers at closing. Have your experts investigate
and evaluate these matters.
Flood Zones.Many lenders require flood insurance for properties located in flood zones,and government authorities
may regulate development and construction in flood zones. Whether or not located in a flood zone,properties can be
subject to flooding and moisture problems,especially properties on a slope or in low-lying areas. Buyers/tenants
should have their experts confirm whether the Property is in a flood zone and otherwise investigate and evaluate these
matters.
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)'it•m. Properties,whether or not located in a fire hazard zone,are subject to fire/life safety risks and may he subject
to state and local fire/life safety-related requirements,including retrofit requirements. Have your experts investigate
and evaluate these matters.
Hazardous Materials and Underground Storage Tanks,Bile to prior or current uses of the Property or in the areas
or the construction materials used,the Property may have hazardous ar undesirable metals(including but not limited
to lead-based paint),minerals(including but not limited to asbestos),chemicals,hydrocarbons,petroleum-related
compounds,or biological or radioactivefemissive items(including but not limited to electrical and magnetic fields)in
soils,water,building components,above or below-ground tanks/containers or elsewhere in areas that may or may not
be accessible or noticeable. Such items may leak or otherwise be released. if the Property was built before 1978 and
has a residential unit,sellers/landlords must disclose all reports,surveys and other information known to them
regarding lead-based paint to buyers/tenants and allow for inspections(42 United States Code 84851 et seq.). Have
your experts investigate and evaluate these matters.
Property Inspections rind Evaluations.Buyers/tenants should have the Property thoroughly inspected and all parties
should have the transaction thoroughly evaluated by the experts of their choice. Ask your experts what investigations
and evaluations may be appropriate as well as the risks of not performing any such investigations or evaluations.
Information regarding the Property supplied by the real estate brokers has been received front third party sources and
has not been independently verified by the brokers. Have your experts verify all information regarding the Property,
including any linear or area measurements,the availability of all utilities,applicable zoning,and entitlements for the
intended use.All work should be inspected and evaluated by your experts,as they deem appropriate.Any projections
or estimates are for example only,are based on assumptions that may not occur,and do not represent the current or
haute performance of the property. Real estate brokers era not experts concerning,nor can they detemnm if any
expert is qualified to provide advice on,legal,tax,design,ADA,engineering,construction,soils,title,survey,fire/life
safety,insurance,hazardous materials,or other such matters. Such areas require special education and,generally,
special licenses not possessed by real estate brokers. Consult with the experts of your choice regarding these matters.
CONSULT YOUR ADVISORS—This document has legal consequences. No representation or
recommendation is made by Broker as to the legal or tax consequences of this Agreement or the transaction(s)
which it contemplates.This farm is not intended to substitute for any disclosures the law requires that the parties
make to each other. These are questions for your attorney and financial advisors.
•
•
•
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COMMISSION AGREEMENT
THIS COMMISSION AGREEMENT('Agreement")made this Atari'4,2023 by and between CBRE
Inc("Broker"),and the following person or entity,("Owner"):
City of Waterloo,lowo
715 Mulberry St.
Waterloo,IA 50703
IN CONSIDERATION OF THE MUTUAL PROMISES IN THIS AGREEMENT,OWNER AGREES:
1. For a period of Twelve (12) months from the dole of this Agreement (the"Term') to pay Broker a
commission as provided herein If the Buyer/Tenant client (named below) represented by Broker's
Appointed Agent[s](named below)purchases or leases the following described property:
Property:"The South Waterloo Business Park"consisting of a total of six(6)parcels totaling 183.7
acres herein referred too("Property")Subject parcels Include:
1. Parcel#:881309326008-79.66 Acres(3,469,990 SF)
2. Parcel#:881309176004-28.39 Acres(1,236,668 SF)
3. Parcel#:881309176005-3.15 Acres(137,214 SF)
4. Parcel#:881309326010.9.53 Acres(415,127 SF)
5. Parcel#:881309326011-10.42 Acres(453,895 SF)
6. Porcel#:881309351001-33.66 Acres(1,466,230 SF)
Name of Broker's Appointed Agent: Mike Maori III
2. In the event of a sole of the Property,the commission shall be Three percent gm of the sales price and
shall be paid at Closing.
3. In the event of o lease of the property,the commission shall be Three percent g%)of the gross rent during
the lease term.(including negotiated renewals,exercised options or extensions by tenant).Should tenant
lease additional space from Owner during the term of any lease resulting from this Agreement(including
negotiated renewals,exercised options or extensions), Owner agrees to pay Broker of the time such
additional space is leased an additional Three percent(..a%)commission on the gross rent during the
lease term for said additional space. Should tenant, during the term of any lease negotiated in
conjunction with this Agreement,purchase the Property,Owner ogress to pay Broker,at Closing,a three
)%)commission of the soles price, Broker,upon execution of the lease,may record on affidavit setting
forth its rights to additional commissions upon any negotiated renewals,exercised options,extensions,
additions to the lease or sole of the Property. The original commission shall be paid when the lease Is
executed by tenant;future commissions shall be paid when on option is exercised,when a lease extension
or negotiated renewal is executed by tenant,or when o purchase agreement is executed by tenant.
Owner understands and agrees that a portion of the commission paid to Broker can be paid to the
Appointed Agent(s).
NO AGENCY RELATIONSHIP
The Owner acknowledges that the Broker's Appointed Agent(sj represents exclusively the above named client of
Broker's Appointed Agents]with respect to the Property and that no agency relationship exists between Broker or
any of Its real estate agents and the Owner.
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DUTIES TO ALL PARTIES AND TO A CLIENT
Tire Appointed Agerd[s)hove disclosed toll's Onner the duties of Broker and she Appointed Agentls(to
all parties and to the Appoin7ed Agent(:)'Cieni through a Disclosure of Agency Reletlonshfp given to Owner prior
to the Owner's execution of this Agreement,which disclosure is incorporcled herein as i fully set forth.
BROKER AND OWNER FURTHER AGREE
1. Conveyance of the Property by ot'rar means(i.e.,a Ike•Ildnd exchange)shell be considered a"sole"within
the meaning of this Agreement.
2. Owner has furnished to Broker and its Appointed Agenl[s) all telemru information concerring the
Properly, Including specific-ply all information regarding underground storage tarns,hazardous wastes
or welts sltuoted on the Property. Owner warrants and represents that the Information provided is true,
correct and complete to the hest of Owner's knowledge. Owner agrees to Indemnity and hold Broker
and the Appointed Agent[s) harmless from any and all loss, domoge, Lability or expense {Including
attorney's fees)In connection with any breads of this representation and warranty by Owner.
3. Broker shall be protected for a period of one hundred elghry(180) days otter the term hereof on all
prospects Introduced to the Property during the Term by the Brokers Appointed Agent[s).This Agreement
shall be biadng upon the heirs,successors and assigns of the Owner. Nothing In unit Agreement shell
be construed to make Broker the marsoger of the Property. In the event of a suit to collect commissions
due Broker under This Agreement,Owner agrees to pay Broker's allomey's fees and expenses.
THI5 15 A LEGALLY BINDIN GR- MEW. IF NOT UNDERSTOOD SEEK LEGAL ADVICE BEFORE SIGNING.
[CI r'We : A)(Sellerl ilard):
/ Data: 63. 23
Name: &L ;,, �
Title: I
[PWNI LLC)(Buyer/Tenats):
-vet (AS* Date: 4/6/2023
14P-ftsetiEletttrtairril son
Title:).etebetr
CBRE,Luc.:
I�{ inn, [b49AY1 Dete;S/3/2023
Iar� sscMl 1171aen ). Wright
Title: hi,fanett)n¢Director
13