HomeMy WebLinkAboutDamir Dzanic - Dev Agmnt - 2/5/2024 (RECORDED) 2024-21117
RECORDED:10/01/2024 03:34:43 PM
RECORDING FEE:$92.00
REVENUE TAX:$
COMBINED FEE:$92.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
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
14004 2.4 , 202 y and between Damir Dzanic (the "Developer") and the City of
Waterloo/ Iowa (the "City").
RECITALS
A. Developer is the owner of real property on Dunham Place identified as
parcel no. 8912-30-304-030, legally described as set forth on Exhibit "A"
attached hereto (the "Property"), and Company is willing and able to
finance and undertake construction of a building and related
improvements on the Property.
B. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community
to provide financial incentives so as to encourage that goal, and the City
further believes that the project is in the vital and best interests of the City
and that the project and such incentives are in accordance with the public
purposes and provisions of applicable State and local laws and require-
ments under which the project has been undertaken and is being assisted
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Improvements by Developer. Developer shall construct on the Property
a new commercial building having approximate dimensions of 60 x 112 feet, as well as
related landscaping, storm water detention, paving, signage and parking improvements
(collectively, the "Improvements"), in accordance with the Plans as provided in Section
3. Developer agrees that the Improvements shall be constructed in accordance with the
terms of this Agreement, the urban renewal plan applicable to the Property, 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 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. The Property, the
Improvements, and all site preparation and development-related work to make any of
the Property usable for Developer's purposes as contemplated by this Agreement are
collectively referred to as the "Project."
3. Construction Plans. Developer 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. Developer 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, Developer shall submit modified Plans (the "Modified Plans") to the City for
review. Modified Plans shall be subject to approval by the City as provided in this
Section. City shall approve the modified Plans in writing if: (a) the Modified Plans
conform to the terms and conditions of this Agreement; (b) the Modified Plans conform
to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to
all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (d) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements, and (e)
no Event of Default under the terms of this Agreement has occurred; provided, however,
that any such approval of the Plans or Modified Plans pursuant to this Section shall
constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building, fire, zoning or
other ordinances or regulations of the City, and shall not be deemed to be sufficient
plans to serve as the basis for the issuance of a building permit if the Plans or Modified
Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit.
The 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, Developer shall submit new or
corrected Plans or Modified Plans within thirty (30) days after receipt by Developer of
written notification of the rejection, accomplished by a written statement of the City
specifying the respects in which Developer'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
Developer 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 Developer of
any obligation to comply with the terms and provisions of this Agreement, or the
2
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver
of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for
purposes of this Agreement and shall not constitute approval for any other City purpose
nor subject the City to any liability for the Improvements as constructed.
4. Timeliness of Construction; Possibility of Termination. The parties
agree that Developer's commitment to undertake the Project and to construct the
Improvements in a timely manner constitutes a material inducement for the City to offer
the incentives provided for in this Agreement, and that without said commitment City
would not do so.
A. Deadlines to commence and complete. Developer must begin
construction of the Improvements within eight (8) months after the date of this
Agreement and Substantially Complete construction within twenty (20) months
after the date of this Agreement (the "Completion Deadline"). For purposes of
this Agreement, "Substantially Complete" means the date on which the
Improvements have been completed pursuant to the Plans or Modified Plans to
the extent necessary for City to issue a certificate of occupancy relating thereto
and City has also verified that any Project element for which no permit was
necessary has been Substantially Completed. All deadlines are subject to
Unavoidable Delays as defined in paragraph B below.
B. Events triggering termination. If Developer does not Substantially
Complete construction of the Improvements on the schedule stated above, then
City may terminate this Agreement as set forth in Section 15, and City shall then
have no further obligation under this Agreement. In any circumstance where
Developer's progress on the Project fails to meet the schedule stated above,
then City's Community Planning and Development Director may, but shall not be
required to, consent to an extension of time of up to six (6) months for the
construction of the Improvements, and if an extension is granted but construction
of the Improvements has not begun within such extended period, then any further
time extensions will require consent of the City Council. If development has
commenced within the required period, as the same may be extended, and is
subsequently stopped or delayed as a result of an act of God, war, civil
disturbance, court order, labor dispute, fire, or other cause beyond the
reasonable control of Developer (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.
5. Utilities. Developer will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Property and for payment of any associated connection fees.
6. Minimum Assessment Agreement. Developer 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.
3
Developer 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 taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$200,000.00 (the "Minimum Actual Value"), through:
(a) willful destruction of the Property, the Improvements, or any part of
either;
(b) a request to the assessor of Black Hawk County; or
(c) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Developer agrees to execute and deliver the MAA concurrently with its execution and
delivery of this Agreement.
7. Tax Abatement. Because the Property is located in a designated
Consolidated Urban Revitalization Area (CURA), the Property is eligible for tax
exemption consistent with and to the extent provided for in Iowa law, provided that
Developer meets all requirements to qualify for such exemption.
8. Additional Covenants of Developer. In addition to the other promises,
covenants and agreements of Developer as provided elsewhere in this Agreement,
Developer agrees as follows with respect to the Improvements:
A. Developer 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, Developer
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 Developer with
respect to construction of the Improvements.
C. During construction of the Improvements and thereafter until the
MAA termination date Developer 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. Developer 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
4
with the same or the sanctions and penalties resulting therefrom, would not have
a material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Developer.
E. Until the MAA termination date Developer 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 a taxable value as set forth in the MAA and
any amendments thereto, and Developer agrees that the minimum actual value
of the Property and completed Improvements as stated in the 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. Developer
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 the MAA termination date Developer agrees that (1) 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 Developer'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. Developer 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 conveyed to it. Developer 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 Developer, or raise the inapplicability or constitutionality of any such tax
statute or regulation as a defense in any proceedings of any type or nature,
including but not limited to delinquent tax proceedings, and (2) it will not seek any
tax deferral, credit or abatement, either presently or prospectively authorized
under Iowa Code Chapter 403 or 404, or any other state law, of the taxation of
real property included within the Property.
Developer acknowledges that its current use of the Property does
not comply with City ordinances. Until the Improvements have been
Substantially Completed, Developer shall not increase the utilization of the
Property for non-conforming uses or activities from the extent to which the
Property is currently utilized for such uses or activities. Developer acknowledges
that the promises of performance it makes in this Agreement are consideration
5
for City's willingness to forbear from charging Developer with ordinance violations
relating to such uses and activities, and that upon Developer's breach of this
Agreement the City shall be free to charge Developer with such violations.
Nothing herein shall be construed as a limitation on City's ability or prerogative to
charge Developer, at any time, for other violations of applicable law or ordinance.
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 Developer. Developer hereby
represents and warrants as follows:
A. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
B. This Agreement has been duly and validly executed and delivered
by Developer and, assuming due authorization, execution and delivery by the
other parties hereto, is in full force and effect and is a valid and legally binding
instrument of Developer 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.
C. 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 any contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which Developer is now a party or by which it or
its property is bound, nor do they constitute a default under any of the foregoing.
D. There are no actions, suits or proceedings pending or threatened
against or affecting Developer 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 Developer or which in
any manner raises any questions affecting the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
6
E. The financing commitments, which Developer will proceed with due
diligence to obtain, to finance the construction of the Improvements will be
sufficient to enable Developer to successfully complete construction of the
Improvements as contemplated in this Agreement, subject to additional costs
incurred due to Unavoidable Delays.
11. Indemnification and Releases.
A. Developer 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 Developer'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 Developer 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, Developer 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 Developer 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.
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 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 Developer agrees to cooperate diligently and
7
in good faith with any reasonable request by City to effectuate the restoration of same,
or failing such restoration Developer 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.
13. No Assignment or Conveyance. Developer 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 Developer under this Agreement. Notwithstanding the foregoing,
Developer may mortgage the Property to a lender as security for financing of Project
improvements, but for no other purpose.
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 Developer 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 Developer 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 except as authorized by Section 13 or otherwise as
security for financing of Project improvements;
C. Failure by Developer 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. Developer (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
Developer 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 Developer, or part
thereof, shall be appointed in any proceedings brought against Developer and
shall not be discharged within ninety (90) days after such appointment, or if
8
Developer shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to any of Property.
F. Any representation or warranty made by Developer in this
Agreement, or made by Developer in any written statement or certificate
furnished by Developer 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 Developer. Whenever any Event of Default in respect of
Developer occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Developer 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 Developer 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 Developer before the date of termination as set forth in
this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Developer may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Developer 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 Developer 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.
16. Materiality of Developer's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Developer 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. Developer
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
9
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.
17. Performance by City. Developer 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 Developer, at 1826 Meadow View Circle, Cedar Falls, Iowa
50613.
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.
20. 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 Developer nor to create any liability for one
party with respect to the liabilities or obligations of the other party or any other person.
21. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
10
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.
22. 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.
23. 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.
24. 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.
25. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
26. 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.
27. 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.
28. 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.
11
CITY OF WATERLOO, IOWA DEVELOP
By:
Quentin M. Hart, Mayor Damir"Dzanic
Attest:
Kelley F chle, City Clerk
12
EXHIBIT "A"
Legal Description of Property
Lot 14, except the South 20 feet thereof, and all Lot 15, all in "Guenther's Out Lots" in the City of
Waterloo, Black Hawk County, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
O/1146.1 L{ l u , 2024;Iby and among the CITY OF WATERLOO, IOWA ("City"),
DAMIR DZANIC ("Developer"), and the COUNTY ASSESSOR of the City of Waterloo,
Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Developer 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
Developer 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
Developer desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Developer 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 Developer, the minimum actual taxable value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by Developer as a part of the Project shall not be less than $200,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by the
date set forth in the Development Agreement.
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,
2040. 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. Developer 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 Developer 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. Developer 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 Developer (not limited to the statutory remedies for unpaid taxes) and that Developer
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 Developer'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 Developer 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. Developer 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
(c) request the Assessor to reduce the Minimum Actual Value; or
2
(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 DEVEL—
Quentin Hart, Mayor 'r Dzanic
By:
Kelley Fe hle, City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
141
On this n
/ day of ' --ekkj , 202L1, 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.
z _-___
o P"'"`00.r COMM BRITISSION NI ICON
ry _� -
*nimn* MY COMMISSION EXPIRES Not C
IOWA JANUARY 27,2026
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on Jallr4 v2c.0 , 202A by Damir
Dzanic.
EMILY SELIGA
t ^ Commission Number 84.9716 Notary Public
s * My Commission Expires
MO My
27,2026
4
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Two Hundred Thousand and 00/100 Dollars ($200,000.00) until termination of this
Minimum Assessment Agreement pursuant to the terms hereof, subject to adjustment
as provided in said agreement.
or f r ack Hawk County, Iowa
q, ,,.... 3 , ,, ,
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on JLk , 2023 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa. �J
1 ADRIENNE MILLER WLL'L-
I_c 109
° ^iv commission Expires o ary Public
"Rbniary 23,2027
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
7�,iu(W 'ZLG , 2022Noy and between Damir Dzanic (the "Developer") and the City of
Waterloo, Iowa (the "City").
RECITALS
A. Developer is the owner of real property on Dunham Place identified as
parcel no. 8912-30-304-030, legally described as set forth on Exhibit "A"
attached hereto (the "Property"), and Company is willing and able to
finance and undertake construction of a building and related
improvements on the Property.
B. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community
to provide financial incentives so as to encourage that goal, and the City
further believes that the project is in the vital and best interests of the City
and that the project and such incentives are in accordance with the public
purposes and provisions of applicable State and local laws and require-
ments under which the project has been undertaken and is being assisted
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Improvements by Developer. Developer shall construct on the Property
a new commercial building having approximate dimensions of 60 x 112 feet, as well as
related landscaping, storm water detention, paving, signage and parking improvements
(collectively, the "Improvements"), in accordance with the Plans as provided in Section
3. Developer agrees that the Improvements shall be constructed in accordance with the
terms of this Agreement, the urban renewal plan applicable to the Property, 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 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. The Property, the
Improvements, and all site preparation and development -related work to make any of
the Property usable for Developer's purposes as contemplated by this Agreement are
collectively referred to as the "Project."
3. Construction Plans. Developer 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. Developer 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, Developer shall submit modified Plans (the "Modified Plans") to the City for
review. Modified Plans shall be subject to approval by the City as provided in this
Section. City shall approve the modified Plans in writing if: (a) the Modified Plans
conform to the terms and conditions of this Agreement; (b) the Modified Plans conform
to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to
all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (d) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements, and (e)
no Event of Default under the terms of this Agreement has occurred; provided, however,
that any such approval of the Plans or Modified Plans pursuant to this Section shall
constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building, fire, zoning or
other ordinances or regulations of the City, and shall not be deemed to be sufficient
plans to serve as the basis for the issuance of a building permit if the Plans or Modified
Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit.
The 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, Developer shall submit new or
corrected Plans or Modified Plans within thirty (30) days after receipt by Developer of
written notification of the rejection, accomplished by a written statement of the City
specifying the respects in which Developer'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
Developer 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 Developer of
any obligation to comply with the terms and provisions of this Agreement, or the
2
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver
of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for
purposes of this Agreement and shall not constitute approval for any other City purpose
nor subject the City to any liability for the Improvements as constructed.
4. Timeliness of Construction; Possibility of Termination. The parties
agree that Developer's commitment to undertake the Project and to construct the
Improvements in a timely manner constitutes a material inducement for the City to offer
the incentives provided for in this Agreement, and that without said commitment City
would not do so.
A. Deadlines to commence and complete. Developer must begin
construction of the Improvements within eight (8) months after the date of this
Agreement and Substantially Complete construction within twenty (20) months
after the date of this Agreement (the "Completion Deadline"). For purposes of
this Agreement, "Substantially Complete" means the date on which the
Improvements have been completed pursuant to the Plans or Modified Plans to
the extent necessary for City to issue a certificate of occupancy relating thereto
and City has also verified that any Project element for which no permit was
necessary has been Substantially Completed. All deadlines are subject to
Unavoidable Delays as defined in paragraph B below.
B. Events triggering termination. If Developer does not Substantially
Complete construction of the Improvements on the schedule stated above, then
City may terminate this Agreement as set forth in Section 15, and City shall then
have no further obligation under this Agreement. In any circumstance where
Developer's progress on the Project fails to meet the schedule stated above,
then City's Community Planning and Development Director may, but shall not be
required to, consent to an extension of time of up to six (6) months for the
construction of the Improvements, and if an extension is granted but construction
of the Improvements has not begun within such extended period, then any further
time extensions will require consent of the City Council. If development has
commenced within the required period, as the same may be extended, and is
subsequently stopped or delayed as a result of an act of God, war, civil
disturbance, court order, labor dispute, fire, or other cause beyond the
reasonable control of Developer (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.
5. Utilities. Developer will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Property and for payment of any associated connection fees.
6. Minimum Assessment Agreement. Developer 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.
3
Developer 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 taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$200,000.00 (the "Minimum Actual Value"), through:
either;
(a) willful destruction of the Property, the Improvements, or any part of
(b) a request to the assessor of Black Hawk County; or
(c) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Developer agrees to execute and deliver the MAA concurrently with its execution and
delivery of this Agreement.
7. Tax Abatement. Because the Property is located in a designated
Consolidated Urban Revitalization Area (CURA), the Property is eligible for tax
exemption consistent with and to the extent provided for in Iowa law, provided that
Developer meets all requirements to qualify for such exemption.
8. Additional Covenants of Developer. In addition to the other promises,
covenants and agreements of Developer as provided elsewhere in this Agreement,
Developer agrees as follows with respect to the Improvements:
A. Developer 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, Developer
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 Developer with
respect to construction of the Improvements.
C. During construction of the Improvements and thereafter until the
MAA termination date Developer 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. Developer 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
4
with the same or the sanctions and penalties resulting therefrom, would not have
a material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Developer.
E. Until the MAA termination date Developer 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 a taxable value as set forth in the MAA and
any amendments thereto, and Developer agrees that the minimum actual value
of the Property and completed Improvements as stated in the 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. Developer
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 the MAA termination date Developer agrees that (1) 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 Developer'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. Developer 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 conveyed to it. Developer 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 Developer, or raise the inapplicability or constitutionality of any such tax
statute or regulation as a defense in any proceedings of any type or nature,
including but not limited to delinquent tax proceedings, and (2) it will not seek any
tax deferral, credit or abatement, either presently or prospectively authorized
under Iowa Code Chapter 403 or 404, or any other state law, of the taxation of
real property included within the Property.
Developer acknowledges that its current use of the Property does
not comply with City ordinances. Until the Improvements have been
Substantially Completed, Developer shall not increase the utilization of the
Property for non -conforming uses or activities from the extent to which the
Property is currently utilized for such uses or activities. Developer acknowledges
that the promises of performance it makes in this Agreement are consideration
5
for City's willingness to forbear from charging Developer with ordinance violations
relating to such uses and activities, and that upon Developer's breach of this
Agreement the City shall be free to charge Developer with such violations.
Nothing herein shall be construed as a limitation on City's ability or prerogative to
charge Developer, at any time, for other violations of applicable law or ordinance.
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 Developer. Developer hereby
represents and warrants as follows:
A. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
B. This Agreement has been duly and validly executed and delivered
by Developer and, assuming due authorization, execution and delivery by the
other parties hereto, is in full force and effect and is a valid and legally binding
instrument of Developer 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.
C. 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 any contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which Developer is now a party or by which it or
its property is bound, nor do they constitute a default under any of the foregoing.
D. There are no actions, suits or proceedings pending or threatened
against or affecting Developer 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 Developer or which in
any manner raises any questions affecting the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
6
E. The financing commitments, which Developer will proceed with due
diligence to obtain, to finance the construction of the Improvements will be
sufficient to enable Developer to successfully complete construction of the
Improvements as contemplated in this Agreement, subject to additional costs
incurred due to Unavoidable Delays.
11. Indemnification and Releases.
A. Developer 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 Developer'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 Developer 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, Developer 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 Developer 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.
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 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 Developer agrees to cooperate diligently and
7
in good faith with any reasonable request by City to effectuate the restoration of same,
or failing such restoration Developer 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.
13. No Assignment or Conveyance. Developer 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 Developer under this Agreement. Notwithstanding the foregoing,
Developer may mortgage the Property to a lender as security for financing of Project
improvements, but for no other purpose.
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 Developer 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 Developer 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 except as authorized by Section 13 or otherwise as
security for financing of Project improvements;
C. Failure by Developer 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. Developer (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
Developer 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 Developer, or part
thereof, shall be appointed in any proceedings brought against Developer and
shall not be discharged within ninety (90) days after such appointment, or if
8
Developer shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to any of Property.
F. Any representation or warranty made by Developer in this
Agreement, or made by Developer in any written statement or certificate
furnished by Developer 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 Developer. Whenever any Event of Default in respect of
Developer occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Developer 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 Developer 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 Developer before the date of termination as set forth in
this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Developer may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Developer 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 Developer 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.
16. Materiality of Developer's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Developer 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. Developer
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
9
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.
17. Performance by City. Developer 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 Developer, at 1826 Meadow View Circle, Cedar Falls, Iowa
50613.
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.
20. 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 Developer nor to create any liability for one
party with respect to the liabilities or obligations of the other party or any other person.
21. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
10
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.
22. 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.
23. 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.
24. 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.
25. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
26. 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.
27. 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.
28. 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.
11
CITY OF WATERLOO, IOWA
By:
Quentin M. Hart, Mayor
Attest:
Kelley Fhle, City Clerk
DEVELOP
arnir Dzanic
12
EXHIBIT "A"
Legal Description of Property
Lot 14, except the South 20 feet thereof, and all Lot 15, all in "Guenther's Out Lots" in the City of
Waterloo, Black Hawk County, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
all '2 2 , 202% lby and among the CITY OF WATERLOO, IOWA ("City"),
DAMIR DZA IC ("Developer"), and the COUNTY ASSESSOR of the City of Waterloo,
Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Developer 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
Developer 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
Developer desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Developer 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 Developer, the minimum actual taxable value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by Developer as a part of the Project shall not be less than $200,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by the
date set forth in the Development Agreement.
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,
2040. 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. Developer 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 Developer 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. Developer 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 Developer (not limited to the statutory remedies for unpaid taxes) and that Developer
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 Developer'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 Developer 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. Developer 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
(c) request the Assessor to reduce the Minimum Actual Value; or
2
(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
By:
Quentin Hart, Mayor
By:
Kelley Fehle, City Clerk
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
On this �vd1 day of',igrifit. . , 202Lj, 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.
BRITNI C PERKINS
COMMISSION NO. 845529
MY COMMISSION EXPIRES
JANUARY 27, 2026
STATE OF IOWA
COUNTY OF BLACK HAWK
)
) ss.
Subscribed and sworn to before me on
Dzanic.
1010
EMILY SELIGA
Commission Number 849716
My Commission Expires
July 27, 2026
tt
, 202$ by Damir
4
21111A{IRq ;i W T 9 iI3
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Two Hundred Thousand and 00/100 Dollars ($200,000.00) until termination of this
Minimum Assessment Agreement pursuant to the terms hereof, subject to adjustment
as provided in said agreement.
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on , 2023 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public