HomeMy WebLinkAboutPWM Companies, LLC - (RECORDED) Development Agmnt - 4.15.2024 z
2025-01736
RECORDED:02/06/2025 02:13:23 PM
RECORDING FEE:$107.00
REVENUE TAX:$
COMBINED FEE:$107.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
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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
/6a ,2024 by and between PWM 1 Warehouse, LLC,d/b/a PWM
Companies(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 Martin Road
Development Plan 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 legally
described on Exhibit"A"attached hereto(the"Property").
C. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community
to provide financial incentives so as to encourage that goal,and the City
further believes that the project is in the vital and best interests of the City
and that the project and such incentives are in accordance with the public
purposes and provisions of applicable State and local laws and
requirements under which the project has been undertaken and is being
assisted.
AGREEMENT
NOW,THEREFORE,in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Development Property. Company owns or is currently purchasing the
Property. Company will undertake the Project(defined below)upon the Property.
2. Improvements by Company. Company shall construct on the Property a
manufacturing facility consisting of no less than 83,900 square feet,as well as related
landscaping, paving, signage and parking improvements(collectively, the
"Improvements"), in accordance with the Plans as provided in Section 3. Company
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 Company submit specific building
designs and site plans for City review and approval. Company will use its best efforts to
obtain, or cause to be obtained, in a timely manner,all required permits, licenses and
approvals,and will meet, in a timely manner, all requirements of all applicable local,
state, and federal laws and regulations which must be obtained or met before the
Improvements may be lawfully constructed. The Property,the Improvements,and all
site preparation and development-related work to make any of the Property usable for
Company's purposes as contemplated by this Agreement are collectively referred to as
the"Project".
3. Construction Plans. Company agrees that it will cause the
Improvements to be constructed on the Property in conformance with construction plans
(the"Plans")that have been submitted to the City. Company agrees that the scope and
scale of the Improvements to be constructed shall not be significantly less than the
scope and scale of such improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is
proposed, Company shall submit modified Plans(the"Modified Plans")to the City for
review. Modified Plans shall be subject to approval by the City as provided in this
Section. City shall approve the modified Plans in writing if: (a)the Modified Plans
conform to the terms and conditions of this Agreement; (b)the Modified Plans conform
to the terms and conditions of the urban renewal plan;(c)the Modified Plans conform to
all applicable federal,state and local laws,ordinances, rules and regulations and City
permit and design review requirements; (d)the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements, and (e)
no Event of Default under the terms of this Agreement has occurred; provided, however,
that any such approval of the Plans or Modified Plans pursuant to this Section shall
constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building,fire, zoning or
other ordinances or regulations of the City, and shall not be deemed to be sufficient
plans to serve as the basis for the issuance of a building permit if the Plans or Modified
Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit.
The Plans or Modified Plans must be rejected in writing by City within thirty(30)
days of submission or shall be deemed to have been approved by the City. If City
rejects the Plans or Modified Plans in whole or in part, Company shall submit new or
corrected Plans or Modified Plans within thirty(30)days after receipt by Company of
written notification of the rejection, accomplished by a written statement of the City
specifying the respects in which Company's Plans or Modified Plans fail to conform to
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the requirements of this Section. The provisions of this Section relating to approval,
rejection and resubmission of corrected Plans or Modified Plans shall continue to apply
until they have been approved by the City; provided, however, that in any event
Company shall submit Plans or Modified Plans which are approved by City prior to
commencement of construction of additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve Company of
any obligation to comply with the terms and provisions of this Agreement, or the
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver
of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for
purposes of this Agreement and shall not constitute approval for any other City purpose
nor subject the City to any liability for the Improvements as constructed.
4. Timeliness of Conveyance and Construction; Possibility of Reverter.
The parties agree that Company's commitment to undertake the Project and to
construct the Improvements in a timely manner constitutes a material inducement for
the City to offer the incentives provided for in this Agreement, and that without said
commitment City would not do so.
A. Deadlines to commence and complete. Company must obtain a
building permit and begin construction of the Improvements within six (6) months
after the date of this Agreement (the "Start Date") and Substantially Complete
construction within fourteen (14) months after the permit date (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 the City to issue a certificate of
occupancy relating thereto. All deadlines are subject to Unavoidable Delays as
defined in paragraph B below.
B. Events triggering termination. If Company does not begin or
Substantially Complete construction of the Improvements on the schedule stated
above, then City may terminate this Agreement as set forth in Section 17, and
City shall then have no further obligation under this Agreement. In any
circumstance where Company's progress on the Project fails to meet the
schedule stated above, then City's Community Planning and Development
Director may, but shall not be required to, consent to an extension of time of up
to six (6) months for the construction of the Improvements, and if an extension is
granted but construction of the Improvements has not begun within such
extended period, then any further time extensions will require consent of the City
Council. If development has commenced within the required period, as the same
may be extended, and is subsequently stopped or delayed as a result of an act of
God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond
the reasonable control of Company (each an "Unavoidable Delay"), the
requirement that construction be completed by the Completion Deadline shall be
tolled for a period of time equal to the period of Unavoidable Delay.
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5. Utilities. Company 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. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other charges whatsoever levied upon or assessed or placed against the Property.
Company further agrees that prior to the date set forth in Section 2 of the Minimum
Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or
cause a reduction in the taxable valuation for the Property as improved pursuant to this
Agreement, which shall be fixed for assessment purposes, below the amount of
$4,200,000.00 (the "Minimum Actual Value"), through:
(a) willful destruction of the Property, the Improvements, or any part of
either;
(b) a request to the assessor of Black Hawk County; or
(c) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with its execution and
delivery of this Agreement.
7. Tax Rebates. Provided that Company has completed Substantially
Completed the Improvements before the Completion Deadline, City agrees to rebate
property tax (with the exceptions noted below) with respect to the Improvements, as
follows:
Year One through Year Eleven 95% rebate each year
Year Twelve 55% rebate
Year Thirteen through Year Seventeen 50% rebate each year
for any taxable value added by the completed Improvements (each such payment is a
"Rebate") over the initial base value. Each Rebate is payable in respect of a given
property tax fiscal year (a "Fiscal Year") only to the extent that (a) Company has actually
paid general property taxes due and owing for such Fiscal Year and (b) the city council
has made an appropriation for the payment of the Rebate. To receive a Rebate for a
given Fiscal Year, Company must, within twelve (12) months after the due date of the
last installment of the property taxes for the respective Fiscal Year (i.e., the "March
Installment"), submit a completed Rebate request to City on the form provided by or
otherwise satisfactory to City. A failure to timely submit a request for a Rebate for a
Fiscal Year will result in a forfeiture of the right to request a Rebate for such Fiscal Year.
City agrees to consider a completed application for a Rebate within sixty (60) days after
submission of the application to City.
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The taxable value of the Property as a result of the Improvements must be
increased by a minimum of 10% and must increase the annual tax by a minimum of
$500.00. Rebates shall not be paid based on any special assessment levy, debt
service levy, or any other levy that is exempted from treatment as tax increment
financing under the provisions of applicable law. The first Fiscal Year in respect of
which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which
the assessment is based upon the completed value of the Improvements and not based
on a prior Fiscal Year for which the assessment is based solely upon (x) the value of the
Property, or upon (y) the value of the Property and a partial value of the Improvements
due to partial completion of such Improvements or a partial Fiscal Year.
As an example of the above provision, in the event all Improvements on the
Property are Substantially Completed prior to January 1, 2025 and the Property and
Improvements are assessed as fully completed based on the Plans, as may be revised,
the property taxes that would be assessed based on the January 1, 2025 assessed
value would be for the Fiscal Year ending June 30, 2027, with the taxes payable one-
half by September 30, 2026 and one-half by March 31, 2027, then the first Rebate could
be applied for after March 31, 2027 and prior to April 1, 2028.
8. Limitations on Payment of Rebates.
A. Each payment of a Rebate is subject to annual appropriation by the
city council each fiscal year. City has no obligation to make any payments to
Company as contemplated under this Agreement until the city council annually
appropriates the funds necessary to make such payments. The right of non-
appropriation reserved to City in this paragraph is intended by the parties, and
shall be construed at all times, so as to ensure that City's obligation to make
future payments of Rebates shall not constitute a legal indebtedness of City
within the meaning of any applicable constitutional or statutory debt limitation
prior to the adoption of a budget which appropriates funds for the payment of that
installment or amount. In the event that any of the provisions of this Agreement
are determined by a court of competent jurisdiction or by City's bond counsel to
create, or result in the creation of, such a legal indebtedness of City, the
enforcement of the said provision shall be suspended, and the Agreement shall
at all times be construed and applied in such a manner as will preserve the
foregoing intent of the parties, and no Event of Default by City shall be deemed
to have occurred as a result thereof. If any provision of this Agreement or the
application thereof to any circumstance is so suspended, the suspension shall
not affect other provisions of this Agreement which can be given effect without
the suspended provision. To this end the provisions of this Agreement are
severable.
B. Notwithstanding the provisions of Section 7 hereof, City shall have
no obligation to make a payment of a Rebate to Company if at any time during
the term hereof City fails to appropriate funds for payment; City receives an
opinion from its legal counsel to the effect that the use of Tax Increments
resulting from the Property and Improvements to fund a Rebate payment to
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Company, as contemplated under Section 7 above, is not, based on a change in
applicable law or its interpretation since the date of this Agreement, authorized or
otherwise an appropriate urban renewal activity permitted to be undertaken by
City under the Urban Renewal Act or other applicable provisions of the Code, as
then constituted or under controlling decision of any Iowa court having jurisdiction
over the subject matter hereof; or City's ability to collect Tax Increment from the
Improvements and Property is precluded or terminated by legislative changes to
Iowa Code Chapter 403. Upon occurrence of any of the foregoing circum-
stances, City shall promptly forward notice of the same to Company. If the
circumstances continue for a period during which two (2) annual Rebate
payments would otherwise have been paid to Company under the terms of
Section 7, then City may terminate this Agreement, without penalty or other
liability to City, by written notice to Company.
C. For purposes of this Agreement, "Tax Increments" shall mean the
property tax revenues on the Improvements and Property received by and made
available to City for deposit in an account maintained under this Agreement, the
provisions of Iowa Code § 403.19 and the ordinance governing the Urban
Renewal Plan.
9. Conditions to City Funding.
A. The complete or initial funding by City of the Rebates and other
Project commitments shall be deemed an agreement of the parties that the
applicable conditions to disbursement of funds shall, as of the date of such
funding, have been satisfied or waived. If the conditions set forth in this Section
are not satisfied at a Rebate disbursement date, this Agreement shall terminate
unless a new disbursement date is established by amendment to this Agreement.
The termination of this Agreement shall be the sole remedy available to City or
Company if, for whatever reason, a condition set forth in this Section is not
satisfied at a Rebate payment date, it being understood that each party shall
nonetheless incur costs and liabilities prior thereto for which they alone are
responsible. City and Company each expressly assumes all responsibility for the
costs and liabilities they may each so incur prior to a Rebate payment date and
agree to indemnify and hold each other harmless therefrom.
B. It is recognized and agreed that the ability of the City to perform the
obligations described in this Agreement, including but not limited to the Rebate
payments, is subject to completion and satisfaction of certain separate city
council actions and required legal proceedings relating to the creation of a tax
increment financing (TIF) district, including the holding of public hearings on the
same. Further, all the obligations of City under this Agreement are subject to
fulfillment, on or before each Rebate payment date, of each of the following
conditions precedent:
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(i) The representations and warranties made by Company in
Section 12 shall be true and correct as of the Rebate disbursement date
with the same force and effect as if made at such date.
(ii) Company shall be in material compliance with all the terms
and provisions of this Agreement.
(iii) There has not been, as of the Rebate disbursement date, a
substantial change for the worse in the financial resources and ability of
Company, or a substantial decrease in the financing commitments
secured by Company for construction of the Improvements, which
change(s) makes it likely, in the reasonable judgment of the City, that
Company will be unable to fulfill its covenants and obligations under this
Agreement.
10. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows with respect to each phase of Improvements:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
engaged in activities of comparable size and liability exposure, and shall provide
evidence of such coverages to the City upon request.
B. Until the Improvements are Substantially Completed, Company
shall make such reports to City, in such detail and at such times as may be
reasonably requested by City, as to the actual progress of Company with respect
to construction of the Improvements.
C. During construction of the Improvements and thereafter until the
MAA termination date Company will cooperate fully with the City in resolution of
any traffic, parking, trash removal or public safety problems which may arise in
connection with the construction and operation of the Improvements.
D. Company will comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses, other than laws, rules and regulations where the failure to comply
with the same or the sanctions and penalties resulting therefrom, would not have
a material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Company.
E. Until the MAA termination date Company will maintain, preserve
and keep the Property, including but not limited to the Improvements, in good
repair and working order, ordinary wear and tear excepted, and from time to time
will make all necessary repairs, replacements, renewals and additions.
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F. The Property will have a taxable value as set forth in the MAA and
any amendments thereto, and Company 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. Company
agrees that it will spend enough in construction of the Improvements that,when
combined with the value of the Property and related site improvements, will equal
or exceed the assessor's minimum actual value for the Property and
Improvements as set forth in the MAA and any amendments thereto.
G. Until the MAA termination date Company 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 Company's
business operations of the type to be conducted on the Property, and (2) it will
make no conveyance, lease or other transfer of the Property or any interest
therein that would cause the Property or any part thereof to be classified as
exempt from taxation or subject to centralized assessment or taxation by the
State of Iowa.
H. Company shall pay, or cause to be paid,when due, all real property
taxes and assessments payable with respect to any and all parts of the Property
conveyed to it. Company agrees that(1) it will not seek administrative review or
judicial review of the applicability or constitutionality of any Iowa tax statute or
regulation relating to the taxation of real property included within the Property
that is determined by any tax official to be applicable to the Property or to
Company, or raise the inapplicability or constitutionality of any such tax statute or
regulation as a defense in any proceedings of any type or nature, including but
not limited to delinquent tax proceedings,and (2)it will not seek any tax deferral,
credit or abatement, either presently or prospectively authorized under Iowa
Code Chapter 403 or 404, or any other state law, of the taxation of real property
included within the Property.
I. Company agrees that it shall be responsible to repair, maintain and
replace all street and other paving within the dedicated right of way for Marnie
Avenue(i.e., lying outside of Property boundary),depicted on Exhibit"C"
attached hereto an identified as the"truck court"area thereon. All paved areas
shall conform to City's requirements for street paving and shall be subject to such
approvals, permits and inspections as apply to street projects generally and are
then in effect.
11. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation,agreement, instrument,
restriction, order or judgment.
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B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
12. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It is duly organized, validly existing, and in good standing under the
laws of the state of its organization and is duly qualified and in good standing
under the laws of the State of Iowa.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company and, assuming due authorization, execution and
delivery by the other parties hereto, is in full force and effect and is a valid and
legally binding instrument of Company that is enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of organization or operating agreement of Company or
of any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Company is now a party or by which it or its property
is bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
F. The financing commitments, which Company will proceed with due
diligence to obtain, to finance the construction of the Improvements will be
sufficient to enable Company to successfully complete construction of the
Improvements as contemplated in this Agreement, subject to additional costs
incurred due to Unavoidable Delays.
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13. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about
the Property arising after Company's lease or acquisition of the same or resulting
from any defect in the Improvements. The indemnified parties shall not be liable
for any damage or injury to the persons or property of Company or its directors,
officers, employees, contractors or agents, or any other person who may be
about the Property or the Improvements, due to any act of negligence or willful
misconduct of any person, other than any act of negligence or willful misconduct
on the part of any such indemnified party or its officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the acquisition and condition of the Property
and the construction, installation, ownership, and operation of the Improvements,
or (3) any hazardous substance or environmental contamination located in or on
the Property.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
14. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 180 days from the date this Agreement is approved
by the City council. If such completion does not occur, then any conveyance, benefit or
incentive of any type provided by City hereunder within said 180-day period is subject to
reverter of title, revocation, repayment or other appropriate action to restore such
property, benefit or incentive to City, and Company agrees to cooperate diligently and in
good faith with any reasonable request by City to effectuate the restoration of same, or
failing such restoration Company agrees to be liable for same or for the fair value
thereof, plus interest on any sums owing at the rate of 5% per annum commencing with
the date of demand for payment, if said payment is not remitted to City within 30 days.
15. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of the
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Project, whether in whole or in part, to any other person or entity without the prior
written consent of City. Reasonable grounds for the City to withhold its consent shall
include but are not limited to the inability of the proposed transferee to demonstrate to
the City's satisfaction that it has the financial ability to observe all of the terms to be
performed by Company under this Agreement.
16. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements
to be commenced and completed pursuant to the terms, conditions and
limitations of this Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in
the Improvements, any part of the Property, or this Agreement, without the prior
written consent of City;
C. Failure by Company to pay, before delinquency, all ad valorem
property taxes levied on or against any of the Property;
D. Failure by any party hereto to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement;
E. Company (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to any of Property.
F. Any representation or warranty made by Company in this
Agreement, or made by Company in any written statement or certificate furnished
by Company pursuant to this Agreement, shall prove to have been incorrect,
incomplete or misleading in any material respect on or as of the date of the
issuance or making thereof.
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17. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Company of the Event of Default, provided that by the conclusion of such period
the Event of Default shall not have been cured, or the Event of Default cannot
reasonably be cured within 30 days and Company shall not have provided
assurances reasonably satisfactory to the City that the Event of Default will be
cured as soon as reasonably possible. Upon termination, City may exercise any
and all remedies available at law, equity, contract or otherwise for recovery of
any sums paid by City to Company before the date of termination as set forth in
this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
18. 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.
19. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
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the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
20. No Third-Party Beneficiaries. No rights or privileges of any party hereto
shall inure to the benefit of any contractor, subcontractor, material supplier, or any other
person or entity, and no such contractor, subcontractor, material supplier, or other
person or entity shall be deemed to be a third-party beneficiary of any of the provisions
of this Agreement.
21. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 760 Liberty Way, North Liberty, IA 52317,
Attention: Manager, Scott Wilson
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.
22. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or
construed to, create or constitute any joint venture, partnership, agency, employment, or
any other relationship between the City and Company nor to create any liability for one
party with respect to the liabilities or obligations of the other party or any other person.
23. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
effect unless made in writing, signed by the party or parties to be bound or by the duly
authorized representative of same, and specifying with particularity the extent and
nature of the amendment, modification, or waiver. Any waiver by any party of any
default by another party shall not affect or impair any rights arising from any subsequent
default.
24. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the
13
offending provision or part thereof shall be deemed severed from this Agreement and
the remaining provisions of this Agreement shall not be affected thereby and shall
continue in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
25. Captions. All captions, headings, or titles in the paragraphs or sections of
this Agreement are inserted only as a matter of convenience and/or reference, and they
shall in no way be construed as limiting, extending, or describing either the scope or
intent of this Agreement or of any provisions hereof.
26. Interpretation. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it may have
been prepared by counsel for one of the parties, it being recognized that the parties
hereto and their respective attorneys have contributed substantially and materially to the
preparation of each and every provision of this Agreement.
27. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
29. Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
30. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA PWM 1 WAREHOUSE, LLC, d/b/a
PWM Companies
By: By: 3-----Lowis°2 •/
Quentin M. Hart, Mayor Scott Wilson, Managing Member
Attest:
Kelley Felc e City Clerk
14
EXHIBIT"A"
Legal Description of Property
Lots 8-10,Cedar Valley Crossing,City of Waterloo,Black Hawk County, Iowa.
EXHIBIT"B"
MINIMUM ASSESSMENT AGREEMENT
his Minimum Assessment Agreement(the"Agreement")is entered into as of
,2024,by and among the CITY OF WATERLOO,IOWA("City"),
PW 1 WAREHOUSE, LLC,d/b/a PWM Companies("Company"),and the COUNTY
ASSESSOR of the City of Waterloo, Iowa("Assessor").
WITNESSETH:
WHEREAS,on or before the date hereof the City and Company have entered
into a development agreement(the"Development Agreement")regarding certain real
property(the"Property"),described in Exhibit"A"thereto,located in the City;and
WHEREAS,it is contemplated that pursuant to the Development Agreement,the
Company will undertake the development of an area within the City and within the
Martin Road Development Plan area,including the construction of certain improvements
as described in the Development Agreement(the"Minimum Improvements")on the
Property(the"Project");and
WHEREAS,pursuant to Iowa Code§403.6,as amended,the City and the
Company desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Company pursuant to the Development
Agreement,which shall be effective upon substantial completion of the Project and from
then until this Agreement is terminated pursuant to the terms herein and which is
intended to reflect the minimum actual value of the land and buildings as to the Project
only;and
WHEREAS,the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which the parties contemplate will be
erected as a part of the Project.
NOW,THEREFORE,the parties hereto,in consideration of the promises,
covenants,and agreements made by each other,do hereby agree as follows:
1. Upon substantial completion of construction of the Minimum
Improvements by Company, the minimum actual taxable value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by Company as a part of the Project shall not be less than $4,200,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by the
date set forth in the Development Agreement, and in any case if the Minimum
Improvements are not substantially completed by December 31, 2025 the parties agree
to execute an amendment to this Agreement that will extend the date specified in
Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2055. The Minimum Actual Value shall be maintained during such period regardless of:
(a) any failure to complete the Minimum Improvements; (b) destruction of all or any
portion of the Minimum Improvements; (c) diminution in value of the Property or the
Minimum Improvements; or (d) any other circumstance, whether known or unknown and
whether now existing or hereafter occurring.
3. Company shall pay, or cause to be paid, when due, all real property taxes
and assessments payable with respect to all and any parts of the Property and the
Minimum Improvements pursuant to the provisions of this Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Property or the Minimum Improvements, any interruption in,
or discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property
or the Minimum Improvements.
4. Company agrees that its obligation to make the tax payments required
hereby, to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes) and that Company
shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to
any early termination of this Agreement for any reason whatsoever.
5. Nothing herein shall be deemed to waive the Company's rights under Iowa
Code § 403.6, as amended, to contest that portion of any actual value assignment
made by the Assessor in excess of the Minimum Actual Value established herein. In no
event, however, shall the Company seek or cause the reduction of the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement. Nothing herein shall limit the discretion of the Assessor to assign at any
time an actual value to the land and Minimum Improvements in excess of the Minimum
Actual Value.
6. Company agrees that during the term of this Agreement it will not:
2
(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
(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 PWM 1 WAREHOUSE,tLLC, d/b/a
PWM Companies .
c
l ,
By: "�--r-C_ASb,, V-, r By: ("-"�
Quentin Hart, Mayor Scott Wilson, Managing Member
f
'Ke ey Felchle, City Clerk
\\
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this I`7 day of JQntUary , before me, a Notary Public in and for
the State of Iowa, personally appeared Q ntin Hart and Kelley Felchle, to me
personally known, who being duly sw 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.
BAR'" ,v BRITNI C PERKINS t� ubli
2 r. COMMISSION NO.845529
* --�- * MY COMMISSION EXPIRES
IOWA JANUARY 27,2026
STATE OF IOWA )
) ss.
COUNTY OF3CO'1fl Y1 )
Subscribed and sworn to before me on, J(,U'l«QyL{ 121ZO -t-, by Scott Wilson as
Managing Member of PWM 1 Warehouse, LLC, d/b/a PWM Companies.
•
CHRISTINA M4RIE HARKEY ` JUUtU I - ;,k
Notarial Seal-Iowa ► Notary Public
Commission Number 842073
My Commission Expires Sep 1, 2025
4
EXHIBIT "C"
Truck Court Depiction
See attached.
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UNLIMITED AREA SETBACK
AUTO PARKING STALLS ; 1
n ! 1 VI I I I 1 I [ I I I 1 I 1 I I II ! 1
•
552.
in
b a- PROPOSED BUILDING SO'
=$3,900 GSF Np
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171
1 MARINE AVENUE
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1
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
Four Million Two Hundred Thousand and 00/100 Dollars ($4,200,000.00) until
termination of this Minimum Assessment Agreement pursuant to the terms hereof,
subject to adjustment as provided in said agreement.
sessor for Black Hawk County, Iowa
Date
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on i-�-aa5 , by T.J. Koenigsfeld,
Assessor for Black Hawk County, Iowa.
ry Pu
,,,..5.1A4TARA JOHNSON
o Jep Commission Number 767467
. My Commission Expires
/ow.. April 5,2026
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
. 1 , 2024 by and between PWM Companies, LLC (the "Company") and
the City of Waterloo, Iowa (the "City").
RECITALS
A. This agreement is intended to amend and restate the development
agreement approved and agreed by City and Company dated October
17t", 2023.
B. 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").
C. 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.
D. 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.
E. In view of the Company's investment in assembling and undertaking the
Project (defined below) and its commitment to develop the Property, the
{00529338}
City desires to provide certain incentives to encourage the Company to
facilitate timely development of the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. Subject to the terms and conditions hereof, City shall
convey the Property to Company as follows:
A. Phase 1 Property. City shall convey that part of the Property legally
described as set forth on Exhibit "A-2" attached hereto (the "Phase 1 Property")
in its as-is condition for the sum of $1.00. Conveyance shall be by special
warranty deed, free and clear of all encumbrances arising by or through City
except: (a) easements, servitudes, conditions and restrictions of record; (b)
general utility and right-of-way easements serving the Property; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. City
makes no representation or warranty as to the condition of the Property or its
suitability for Company's purposes. Company is responsible to conduct its own
due diligence and inspections. City shall convey the Phase 1 Property to the
Company on or before , 2024, provided City shall have no duty to convey
title to Company until Company delivers to City reasonable and satisfactory proof
of financial ability to undertake and carry on the Street Improvements (defined
below), which may take the form of a lending commitment letter. Company shall,
at its own expense, prepare an updated abstract of title, or in lieu thereof
Company may, at its own expense, obtain whatever form of title evidence it
desires. City shall provide any title documents it has in its possession, including
any abstracts, to assist in title review. If title is unmarketable or subject to
matters not acceptable to Company, and if City does not remedy or remove such
objectionable matters in timely fashion following written notice of such objections
from Company, Company may terminate this Agreement without further
obligation and return the abstract of title to City.
B. Phase 2 Property. Following written request from Company, City
shall convey to Company that part of the Property legally described as set forth
on Exhibit "A-3" attached hereto (the "Phase 2 Property") in its as-is condition for
the sum of $1.00, and on the same terms as set forth in paragraph A above with
respect to the Phase 1 Property. Company shall not be eligible to request
conveyance of the Phase 2 Property until the following conditions have been
satisfied in the reasonable judgment of City: (1) Street Improvements within the
Phase 1 Property area as depicted on Exhibit "B" attached hereto have been
completed by Company and accepted by City, and (2) more than 48 acres of the
Phase 1 Property are the subject of an approved agreement with City for project
development or have been sold or leased to a third party unrelated to Company
by common ownership or control for development under an agreement with City
or have been sold with a contractual obligation for the purchaser to commence
{00529338} 2
construction on the parcel within 12 months and finish construction within 24
months.
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
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.
Any development Agreement or Project incentives between the City and a
Developer as it relates to the Property shall limit the Developer to 50% of the tax
increment financing or similar incentives available under law to a Developer. The
remaining 50% shall be reserved for the Company.
{00529338} 3
City and Company shall work cooperatively in good faith in developing the
business park design, including general layout, lot sizes, lot orientations, project layouts,
and location of infrastructure. Company shall have the right to market and promote the
Project Property, whether or not Company is titleholder of record of the Project Property
in its entirety but said right shall lapse as to any portion of the Project Property for which
City has demanded repurchase pursuant to Section 5.B below.
All Developer improvements shall be constructed in accordance with the terms of
the development agreement, if applicable, the Urban Renewal Plan, and all applicable
City, state, and federal building codes and shall comply with all applicable City
ordinances and other applicable law. City may require that the Developer of a parcel
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.
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.
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
{00529338} 4
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 of Construction. The parties agree that Company's
commitment to undertake the Project and to construct the Street Improvements in a
timely manner constitutes a material inducement for the City to convey the Project
Property to Company and that without said commitment City would not do so.
A. Deadlines to commence and complete. To be eligible for the
incentives provided by this Agreement, Company must Substantially 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 after City
conveys the Phase 1 Property to Company (the "Completion Deadline"). For
purposes of this Agreement, "Substantially Complete" means the date on which
the Street Improvements have been completed to the extent necessary for the
City to formally accept them by resolution adopted by the Waterloo City Council.
If all Street Improvements are not accepted by City within thirty (30) months from
the date of this Agreement, then the Payments provided for in Section 10 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 to plat and
subdivide the Project Property shall proceed on the same schedule as above
with respect to the Phase 2 Property, except that the applicable timeline for such
phase shall commence upon the date the City conveys the Phase 2 Property to
Company. All deadlines are subject to Unavoidable Delays as defined in
paragraph B below. The City's Community Planning and Development Director
may, but shall not be required to, consent to an extension of time of up to six (6)
months for the construction of any phase of the Improvements. Any additional or
longer time extensions will require consent of the City Council.
B. Events triggering termination and City's Repurchase Option. If
Company does not Substantially Complete construction of the Street
Improvements on the schedule stated above, subject to Unavoidable Delays,
then City may terminate this Agreement as set forth in Section 20, and City shall
then have no further obligation to Company under this Agreement, except as
stated herein. If development has commenced within the required period, as the
{00529338} 5
same may be extended, and is subsequently stopped or delayed as a result of an
act of God, war, civil disturbance, court order, labor dispute, fire, or other cause
beyond the reasonable control of Company (each an "Unavoidable Delay"), the
requirement that construction be completed by the Completion Deadline shall be
tolled for a period of time equal to the period of Unavoidable Delay. If City
terminates this Agreement as provided in Section 20, City shall have no further
obligations to Company under this Agreement except to reimburse Company for
the documented costs actually incurred by Company related to the construction
of the Street Improvements (the "Repurchase Price"), but City shall have no legal
or equitable obligation to reimburse Company for any other costs expended by
Company with respect to the Project or to compensate Company for any value
added to the Project Property by any improvements. In connection with
termination of the Agreement as set forth herein, City may repurchase the Project
Property, or undeveloped parts thereof, in addition to exercising any other
available remedies, as provided in attached Exhibit "C." If Company is in default
only with respect to Phase 2 then only the Phase 2 Property shall be subject to
repurchase.
6. Repurchase; Indemnity. In the event of a repurchase pursuant to
Section 5, then Company agrees that it shall, at its own expense, promptly execute all
documents, including but not limited to a special warranty deed, or take such other
actions as the City may reasonably request to effectuate said repurchase and to deliver
to City title to the Property or applicable portion thereof, free and clear of any lien, claim,
charge, security interest, mortgage or encumbrance (collectively, "Liens") arising by or
through Company. Concurrently with delivery of the deed, Company shall also deliver
to City the abstract of title. Company shall pay in full, so as to discharge or satisfy, all
Liens on or against the Property conveyed back to City.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, or injury made, suffered, or
incurred as a result of or in connection with the Project, or any Lien or Liens on or
against the Property of any type or nature whatsoever that attaches to the Property by
virtue of Company's ownership of same. If City files suit to enforce the terms of this
Agreement and prevails in such suit, then Company shall be liable for all legal
expenses, including but not limited to reasonable attorneys' fees, incurred by City.
Company's duties of indemnity pursuant to this Section shall survive the expiration,
termination or cancellation of this Agreement for any reason.
7. No Encumbrances; Limited Exception. Until the Street Improvements
are Substantially Completed, Company agrees that it shall not create, incur, or suffer to
exist any Liens on the Property, other than such mortgage or mortgages as may be
reasonably necessary to finance Company's completion of the Street Improvements
and of which Company notifies City before Company executes any such mortgage.
Company may not mortgage the Property or any part thereof for any purpose except in
connection with financing of the Street Improvements.
{00529338} 6
8. Utilities. Company, or its successors or assigns, will be responsible for
extending, at its own expense, water, sewer, telephone, telecommunications, electricity,
gas and other utility services to any location on the Project Property and for payment of
any associated connection fees, provided, however, that City shall ensure installation of
suitable gas infrastructure to at least one point of access at the Phase 1 Property
boundary.
9. Valuation of Property and Establishment of Payments. For purposes
of calculating Incremental Property Tax Revenues (as herein defined) under this
Agreement and Section 403.19 of the Code of Iowa, the base valuation (the "Base
Valuation") of the Property shall be the assessed taxable valuation of the Property as of
January 1, 2024. For purposes of this Agreement, "Incremental Property Tax Revenues"
shall mean, and are calculated by: (1) determining the consolidated property tax levy
(city, county, school, etc.) then in effect with respect to taxation of the Property; (2)
subtracting (a) the debt service levies of all taxing jurisdictions, (b) the school district
instructional support and physical plant and equipment levies and (c) any other levies
which may be exempted from such calculation by action of the Iowa General Assembly;
(3) multiplying the resulting modified consolidated levy rate times any incremental
growth in the taxable valuation of the Property, as shown on the property tax rolls of
Black Hawk County, above and beyond the Base Valuation; and (4) deducting any
property tax credits which shall be available with respect to the incremental valuation of
the Property. Such amount shall be calculated annually and distributed to the Company
as Payments as provided in Section 10.
10. Payments to Company. As an inducement for Company to undertake
the Project, the City agrees to make payments as follows:
A. In recognition of the Company's obligations set out above, the City
agrees to make economic development tax increment payments (the "Payments"
and, individually each, a "Payment") to the Company pursuant to Chapters 15A
and 403 of the Code of Iowa, until the aggregate, total amount of the Payments
made under this Agreement totals the documented cost of constructing the Street
Improvements, including Company's documented carrying costs with respect to
the Street Improvements and its loan therefor of an estimated $4,000,000 (the
"Maximum Payment Total"). All Payments under this Agreement shall be subject
to annual appropriation by the City Council.
The Payments shall not constitute general obligations of the City but shall
be made solely and only from Incremental Property Tax Revenues received by
the City from the Black Hawk County Treasurer attributable to the taxable
valuation of the Property.
Each Payment shall not exceed an amount which represents the amount
of Incremental Property Tax Revenues available to the City with respect to the
Property during the six (6) months immediately preceding each Payment date.
{00529338}
It is assumed that the new valuation from the Project will go on the
property tax rolls as of January 1, 2025 and shall be adjusted each year
thereafter. Accordingly, the Payments will be made by the City on November 1st
and May 1st of each fiscal year, beginning on November 1, 2026 and continuing
until such date upon which total Payments equal to the Maximum Payment Total
have been made. Such Payments shall be made 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. If such tax installment is not timely paid, the payment of the Payment
amount that is to be paid to the Company shall paid by the City within thirty (30)
days following the payment of the tax installment.
The City may hereafter enter into development agreements with
Developers of the Property or a portion thereof regarding minimum assessment
agreements for improvements on the Property pursuant to separate development
agreements with City. Amounts payable to a Developer shall be reduced or
limited by any and all tax rebates that City is required to pay to the Company
pursuant to the terms of any development agreement with Company. Further,
any Developer's maximum grant or payment from tax increment financing, or
similar incentive shall be limited to 50% of the available amount of tax revenues
available for such incentive for the Property.
For purposes of illustration only, if an agreement between City and a
Developer provides for rebatement of 50% of Incremental Property Tax
Revenues for a period of five years for the construction of improvements on a
portion of the Project Property, then the Company and Developer would each
receive Payments equal to the remaining 50% Incremental Property Tax
Revenues each year of such period related to such property. If an agreement
between the City and a Developer provides for a rebatement of 25% of the
Incremental Property Tax Revenues to a Developer for a period of 10 years, then
the Company would receive Payments equal to 75% of the Incremental Property
Tax Revenues for such property. No Payments or grant with respect to such
Developer's improvements to a parcel of land for a Project shall be made to a
Developer before a property tax Payment is first paid to the Company pursuant to
this Agreement.
B. Payments 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 make Payments semi-annually as provided
above. The Company reserves the right to assign the semi-annual payments to
a lender as an assignment of Payment payments.
C. Each 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
{00529338} 8
construed at all times, so as to ensure that City's obligation to make future
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 written opinion of 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.
D. Notwithstanding the provisions set forth above, City shall have no
obligation to make a Payment to Company if (i) at any time during the term
hereof City fails to appropriate funds for payment; (ii) City's ability to collect Tax
Increment is precluded by law or terminated by legislative changes to Iowa Code
Chapter 403; or (iii) City receives an opinion from its legal counsel to the effect
that the use of Tax Increments to fund a 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. 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 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.
11. Rebates. In addition to any Payments, Company shall be entitled to
receive property tax rebates ("Rebates") with respect to any development projects that
are undertaken by Company, any Company affiliate, or any unaffiliated third party, on
the terms and conditions set forth in a separate development agreement for each such
project. All additional and separate development agreements will be subordinate to this
Agreement.
By way of illustration, if a development agreement with a Developer other than
Company provides that the Developer gets Rebates or Payments over a 10-year period,
with the first five years at 25% and the second five years at 40%, then Company shall
receive Rebates or Payments under that agreement at 75% for five years and 60% for
the following five years. All Rebates shall be as calculated in the development
agreement, with reference to any minimum assessed value fixed by such agreement,
payable on the schedule set forth in such agreement, and subject to any other terms,
conditions or limitations set forth in such agreement, which terms, conditions and
{00529338} 9
limitations shall continue to apply to any Rebates payable to Company after the period
for payment of Rebates to the developer has ended.
12. City's Development Rights. In connection with any future development
of an unimproved portion (a `Development Parcel") of the Project Property, arranged by
or through City with a third party and without substantial involvement by Company,
Company shall provide good-faith, timely and reasonable cooperation to City and will,
subject to satisfaction of the conditions set forth in this section, convey the Development
Parcel to the City for the sum of $1.00 plus the pro rata cost (based on acreage within
such phase) of any Street Improvements that have occurred, by special warranty deed,
substantially on the same terms as the City's conveyance of the Phase 1 Property
pursuant to Section1. No more than twenty (20) acres of each phase of development,
or no more than twenty-two percent (22%) of each phase will be eligible for repurchase
by the City, if the Company has commenced Street Improvements in such Phase.
Notwithstanding the foregoing limitations, an area of greater size can be purchased by
City if needed for a proposed development project, subject to the parties working
together in good faith to (a) identify additional land that Company's lender(s) will accept
as substitute collateral for any obligations of Company that are secured by the Project
Property of portion thereof, or (b) obtain the consent of Company's lender(s) to
Company's sale of such greater area based on expected cash flow to Company from
Payments and/or Rebates derived from tax revenues of the project(s) to be developed
on the area purchased by City. Closing on acquisition of the Development Property by
the City must occur within 90 days of execution and delivery of a purchase agreement
between Company and a developer. Any property purchased by the City shall be
subject to the Payments provided herein to the Company.
13. 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 to the best of its ability,
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
(00529338} 10
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.
E. Company agrees during construction of the Street Improvements to
maintain, as applicable, builder's risk, property damage, and liability insurance
coverages with respect to the Street 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.
14. 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.
15. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
{00529338} 11
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.
16. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about
the 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,
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
{00529338} 12
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 or was
determined to exist before the Company's acquisition of the Property.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
17. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the 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.
18. 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.
19. 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;
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
{00529338} 13
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.
20. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing beyond the applicable cure period, the City
may terminate this Agreement. Before exercising such remedy, City shall give
Company no less than 30 days' written notice to cure an Event of Default,
provided that if the Event of Default cannot reasonably be cured within said time
period, and Company is diligent pursuing the same, the Company shall not be in
default and this Agreement shall not be terminated provided Company has given
the City 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.
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.
21. 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
{00529338} 14
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.
22. 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.
23. 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.
24. 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.
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, or (iii) four (4) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid. A party may change the address for giving notice by any method set
forth in this Section.
25. 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.
26. 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.
{00529338} 15
27. 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.
28. 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.
29. 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.
30. 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.
31. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives, but shall not run with the land.
32. 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.
33. 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.
34. Time of Essence. Time is of the essence of this Agreement.
{0052933B} 16
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
{00529338} 17
CITY OF WATERLOO, IOWA PWM COMPANIES, LLC
By: atx.- c-t, By: 444
Quentin M. Hart, Mayor ' cott Wilson
Chief Financial Officer
Attest: jelelAj_.._
Kelley Felch , City Clerk
{00529338} 18
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'h' 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.
{00529336} 19
EXHIBIT "A-2"
Description of Phase 1 Property
[Property to be described by survey or subdivision plat, consisting of approximately 93.7
acres, more or less.]
{00529338) 20
EXHIBIT "A-3"
Description of Phase 2 Property
[Property to be described by survey or subdivision plat, consisting of approximately 90
acres, more or less.]
(00529338} 21
EXHIBIT "B"
Depiction of Project Property
See attached.
{00529338} 22
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EXHIBIT "C"
Offer to Buy Form
See attached.
{00529338} 23
OFFER TO BUY AND ACCEPTANCE
FROM: City of Waterloo,Iowa("Buyer")
TO: PWM Companies,LLC,or assign("Seller")
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 acres, mil, 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$1.00,plus the incurred
and accrued carrying costs of the Seller related to Seller's ownership or development of the Property,and 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 , 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.
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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.
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.
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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.
16. NO REAL ESTATE AGENT OR BROKER. Neither party has used the service of a real estate agent
or broker in connection with this transaction. Buyer is advised that members of the Seller are licensed real
estate agents and/or brokers.No commission will be paid as a result of this transaction.
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.
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
Accepted by Seller on
BUYER SELLER
City of Waterloo,Iowa PWM Companies,LLC(or assignee identified
below)
By: By:
Mayor
Title:
Attest: Assignee:
City Clerk
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