HomeMy WebLinkAboutCedar River Renaisance LLC - DA and MAA (RECORDED) - 8.5.2024 2024-21128
RECORDED: 10/01/2024 03:34:54 PM
RECORDING FEE:$137.00
REVENUE TAX:$
COMBINED FEE:$137.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50704 Phone(319)234-5701
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
AtAfmc 4- Gj , 2024, by and between Cedar River Renaissance LLC (the
"Coripany") and the City of Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as
amended (the "Urban Renewal Act"), City is engaged in carrying out urban
renewal project activities in an area known as the East Waterloo Unified
Urban Renewal and Redevelopment Plan Area, formerly known as the
Airport Area Development Plan area ("Urban Renewal Area").
B. Company is willing and able to finance and rehabilitate a duplex located at
203 Lafayette Street, Waterloo, Iowa (the "Property") and to finance and
construct a new duplex on an abutting lot owned by City (the "City
Property"). The Property and the City Property are legally described as
set forth on Exhibit "A" attached hereto.
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 rehabilitation of the Property and new residential
construction is in the 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. Property Preparation. Company is the owner of the Property. Company
shall, at its own expense, remove and properly dispose of debris, and otherwise prepare
the Property for renovation.
2. Sale of City Property; Title. Subject to the terms of this Agreement,
within ninety (90) days after approval of this Agreement by the city council, City shall
convey the City Property to Company for the sum of$5,000.00 (the "Purchase Price").
Conveyance by City shall be by quit claim deed, free and clear of all encumbrances
arising by or through City except: (a) easements, servitudes, conditions and restrictions
of record; (b) current and future real estate real property taxes and assessments subject
to the agreements made herein; (c) general utility and right-of-way easements serving
the City Property; and (d) restrictions imposed by the City zoning ordinances and other
applicable law. 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. 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. To assist in title review, City shall provide any title
documents it has in its possession, including any abstracts.
3. Improvements by Company; Phased Project. The parties contemplate
that Company may develop the Property and City Property in phases, each of which is
generally described as set forth below. The improvements relating to each separate
phase are referred to as the "Phase 1 Improvements" and "Phase 2 Improvements," as
applicable, and all such improvements are collectively referred to as the
"Improvements."
A. Phase 1 Improvements. Company shall (a) remove and properly
dispose of all debris and unwanted personal property from the structure, (b)
rehabilitate the existing structure on the Property to a finished state for a
residential duplex, and (c) make other improvements to the buildings and
grounds including but not limited to grassing and/or landscaping.
B. Phase 2 Improvements. Company agrees to accept the City
Property in its "AS IS" condition, without any warranty from City, expressed or
implied, as to the condition of the City Property, its marketability, or its fitness for
any particular purpose. Company shall construct on the City Property a new
duplex residence as further described and depicted in Exhibit "B" attached
hereto. The Phase 2 Improvements shall be completed to a finished state,
including installation of paved driveway, sidewalk, removal of all construction
debris, proper leveling or shaping of groundscape and grassing and/or
landscaping.
C. Standards. The Improvements shall be constructed in accordance
with the terms of this Agreement, all applicable City, state, and federal building
codes and shall comply with all applicable City ordinances and other applicable
law. Company shall submit specific building designs and site plans for City
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review and approval before the commencement of construction and shall not
substantially deviate from such plans, specifications or designs. 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 City Property, the Improvements, and all site preparation and
development-related work to be undertaken and completed by Company under
this Agreement are collectively referred to as the "Project."
4. Construction Plans. Company agrees that it will cause the Phase 2
Improvements to be constructed on the Property in substantial conformance with
construction plans (the "Plans") that have been submitted to the City. Company agrees
that the scope and scale of the Phase 2 Improvements to be constructed shall not be
materially 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 all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (c) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Phase 2
Improvements, and (d) 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 City delivers to Company
a written notification that specifies how Company's Plans or Modified Plans fail to
conform to the requirements of this Section. The provisions of this Section relating to
approval, rejection and resubmission of corrected Plans or Modified Plans shall
continue to apply until they have been approved by the City; provided, however, that in
any event Company shall submit Plans or Modified Plans which are approved by City
prior to commencement of construction of additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve Company of
any obligation to comply with the terms and provisions of this Agreement, or the
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver
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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.
5. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to cause the Project to be undertaken and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend 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 before it begins construction of the Phase 1 Improvements and
must Substantially Complete construction by March 31, 2025 (the "Phase 1
Completion Deadline"). Company must obtain a building permit and begin
construction of the Phase 2 Improvements by June 1, 2026 (the "Phase 2 Start
Date") and must Substantially Complete construction of Phase 2 Improvements
by December 31, 2026 (the "Phase 2 Completion Deadline"). For purposes of
this Agreement, "Substantially Complete" means the date on which the phase
Improvements have been completed to the extent necessary for the City to issue
a certificate of occupancy relating thereto and the City has verified that any
Project element for which no permit was necessary has been satisfactorily
completed. All deadlines are subject to Unavoidable Delays as defined in
paragraph B below. The City's Community Planning and Development Director
may, but shall not be required to, consent to an extension 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/or reverter of title. If Company
does not begin the Project or Substantially Complete construction of the
Improvements on the schedule(s) stated above, subject to Unavoidable Delays,
then City may terminate this Agreement as set forth in Section 20, and City shall
then have no further obligation to Company under this Agreement. If
development has commenced within the required period, as the same may be
extended, and is subsequently stopped or delayed as a result of an act of God,
war, civil disturbance, court order, labor dispute, fire, or other cause beyond the
reasonable control of Company (each an "Unavoidable Delay"), the requirement
that construction be completed by the Completion Deadline shall be tolled for a
period of time equal to the period of Unavoidable Delay. As promptly as
possible, Company shall notify City in writing of the occurrence of any
Unavoidable Delay and shall again notify City in writing when the Unavoidable
Delay has ended. If City terminates this Agreement as provided in Section 20,
City shall have no further obligations to Company under this Agreement,
including but not limited to any legal or equitable obligation to reimburse
Company for any costs expended by Company with respect to the Project, or to
compensate Company for any value added to the City Property by any
Improvements, or to refund the Purchase Price in whole or in part. In connection
with termination of the Agreement as set forth herein, City may demand
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reconveyance of the City Property in addition to exercising any other available
remedies.
6. Reverter of Title; Indemnity. In the event of any reverter of title
hereunder, then Company agrees that it shall, at its own expense, promptly execute all
documents, including but not limited to a special warranty deed, or take such other
actions as the City may reasonably request to effectuate said reverter and to deliver to
City title to the City Property, free and clear of any lien, claim, charge, security interest,
mortgage or encumbrance, or past-due or currently due property taxes (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 City Property. Appointment of
Attorney in Fact: If Company fails to deliver such documents, including but not limited
to a special warranty deed, to City within thirty (30) days after written demand by City,
then City shall be authorized to execute, on Company's behalf and as its attorney-in-
fact, the special warranty deed or other documents required by this Section, and for
such limited purpose Company does hereby irrevocably constitute and appoint City as
its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, cost, expense, liability or injury
made, suffered, or incurred as a result of or in connection with the Project, Company's
failure to carry on or complete same, or any Lien or Liens on or against the City
Property of any type or nature whatsoever that attaches to the City Property by virtue of
Company's ownership of same. A "Lien" is any lien, claim, charge, security interest,
mortgage or encumbrance on, against or affecting the City Property. 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. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services from street right
of way to any location on the Property or City Property and for payment of associated
connection fees.
8. Incentives. To aid in the Project, City will provide the following incentives
within ninety (90) days after City has verified that all of the Improvements have been
Substantially Completed:
A. Acquisition Grant. City will pay a grant of$50,000.00 to Company.
B. Infill Housing Grant. As provided in the City's infill housing policy,
City will pay a grant of$5,000.00 to Company for timely completion of each unit
of the Phase 2 Improvements, up to a total grant of$10,000.00.
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C. Refund of Purchase Price. City will refund up to $5,000.00 of the
Purchase Price to Company.
9. 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 or
the City 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 or City Property
as improved pursuant to this Agreement, which shall be fixed for assessment purposes,
below the amount of$140,000.00 for each property, or $280,000.00 total (in either case,
the "Minimum Actual Value"), through:
(a) willful destruction of the Property or City 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 execution and
delivery of this Agreement.
10. Tax Rebates. Provided that Company has completed Substantially
Completed each phase of Improvements before the respective Completion Deadline,
and subject to the other terms of this Agreement, City agrees to rebate property tax
(with the exceptions noted below) with respect to each phase of the Improvements, as
follows:
Year One through Year Fifteen 70% rebate each year
for any taxable value added by the completed phase 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. Separate Rebate requests must be submitted for
the Property and the City Property.
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The taxable value of each of the Property and the City 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 the City Property, as applicable, or upon (y) the value of the
Property or the City Property, as applicable, and a partial value of the respective phase
of Improvements due to partial completion of such Improvements or a partial Fiscal
Year.
As an example of the above provision, in the event all Phase 1 Improvements on
the Property are Substantially Completed prior to January 1, 2026 and the Property and
Phase 1 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, 2026
assessed value would be for the Fiscal Year ending June 30, 2028, with the taxes
payable one-half by September 30, 2027 and one-half by March 31, 2028, then the first
Rebate could be applied for after March 31, 2028 and prior to April 1, 2029.
11. 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 10 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
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opinion from its legal counsel to the effect that the use of Tax Increments
resulting from the Property and Improvements to fund a Rebate payment to
Company, as contemplated under Section 10 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 10, 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.
12. 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 amendment to the
urban renewal plan, including the holding of public hearings on the same.
Further, all the obligations of City under this Agreement are subject to fulfillment,
on or before each Rebate payment date, of each of the following conditions
precedent:
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(i) The representations and warranties made by Company in
Section 15 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.
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 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 each
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 each MAA termination date Company will maintain, preserve
and keep the Property and the City Property, as applicable, including but not
limited to the Improvements, in good repair and working order, ordinary wear and
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tear excepted, and from time to time will make all necessary repairs,
replacements, renewals and additions.
F. The Property and the City Property will each have a taxable value
as set forth in the respective MAA and any amendments thereto, and Company
agrees that the minimum actual value of the Property and the City Property and
completed phase Improvements as stated in each MAA and any amendments
thereto will be a reasonable estimate of the actual value of the Property or the
City Property, as applicable, and respective phase 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, the City
Property, and related site improvements, will equal or exceed the assessor's
minimum actual value for the Property and the City Property and respective
phase Improvements as set forth in the MAA and any amendments thereto.
G. Until the MAA termination date Company agrees that it will make no
conveyance, lease or other transfer of the Property, the City Property, or any
interest therein that would cause the Property, the City 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 the Property and the City
Property. Company agrees that (1) it will not seek administrative review or
judicial review of the applicability or constitutionality of any Iowa tax statute or
regulation relating to the taxation of real property included within the Property or
the City Property that is determined by any tax official to be applicable to the
Property, to the City 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 or
the City Property.
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:
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A. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
B. This Agreement has been duly and validly executed and delivered
by 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.
C. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of any contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which 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.
D. 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.
E. 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.
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 Property or the City Property arising after Company's 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, the Company Property or the Improvements, due to
any act of negligence or willful misconduct of any person, other than any act of
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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
or the City 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 or the City 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 Property, the City 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.
18. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, Company agrees that it shall not create, incur, or suffer to
exist any Liens on the City Property, other than such mortgage or mortgages as may be
reasonably necessary to finance Company's completion of the Improvements and of
which Company notifies City before Company executes any such mortgage. Company
may not mortgage the City Property or any part thereof for any purpose except in
connection with financing of the Phase 2 Improvements. Any other mortgage shall be
void.
19. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the City Property prior to completion
of the Project thereon, 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
12
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.
20. 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 City Property, the Phase 2 Improvements, 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 or the City 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.
13
21. 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 or to recover ownership of the City Property as set forth in this
Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
22. 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.
23. 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,
14
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.
24. 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.
25. 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 5312 Red Oak Lane, Cedar Falls, Iowa 50613,
Attention: Managing Member.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
26. 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.
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
15
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. Governing Law; Litigation. This Agreement shall be governed by and
construed and interpreted in accordance with the internal laws of the State of Iowa. The
parties hereby agree and consent, with respect to any action to enforce or defend any
claim, counterclaim, cross-claim, cause of action, or any matter arising from or in any
way related to this Agreement or the transactions contemplated hereby, (a) to WAIVE
ANY RIGHT TO A TRIAL BY JURY; (b) to submit to the exclusive jurisdiction of the
Iowa District Court for Black Hawk County; and (c) to irrevocably waive, to the fullest
extent possible, the defense of any inconvenient forum or improper venue to the
maintenance of any such action or proceeding.
32. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
33. 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.
34. 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.
35. 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.
16
CITY OF WATERLOO, IOWA CEDAR RIVER RENAISSANCE LLC
By: 0By:C,._. c -
Quentin M. Hart, Mayor Cod Vanasse
Managing Member
Attest:
Kelley Fel e, City Clerk
PERSONAL GUARANTY. The undersigned members and/or managers of
Company hereby agree for themselves and their heirs, personal representatives, and
assigns, to unconditionally guarantee to City, its successors and assigns, the full and
prompt performance by Company, its successors and assigns, of all promises and
covenants on the part of Company to be performed pursuant to the foregoing
Agreement, including but not limited to the duties of indemnity set forth therein, if any.
The undersigned hereby agree(s) to be unconditionally bound by all terms, conditions,
consents and obligations of or relating to Company in the Agreement. Liability of
guarantors hereunder is joint and several.
Cody Varrasse
17
EXHIBIT "A"
Legal Description of Property
Phase 1 Property (referred to in the Agreement as the Property)
The Northwesterly 55 feet of Lot 10 and The Northwesterly 55 feet of the Southwesterly One-half of Lot 7,
all in Block No. 32, Original Plat on the East Side of the Cedar River, City of Waterloo, Black Hawk
County, Iowa. (aka 203 Lafayette Street)
Phase 2 Property (referred to in the Agreement as the City Property)
The Southeasterly 45 feet in width of the Northwesterly 100 feet in width of Lot 10 and the Southeasterly
45 feet in width of the Northwesterly 100 feet in width of the Southwesterly 1/2 of Lot 7, Block 32, Original
Plat on the East Side of the Cedar River, City of Waterloo, Black Hawk County, Iowa. (aka parcel no.
8913-23-478-013)
• ,•
EXHIBIT "B"
Phase 2 Building Plans
Sheet Number 203 L 000
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EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
AThis Minimum Assessment Agreement (the "Agreement") is entered into as of
k us-' 5 , 2024, by and among the CITY OF WATERLOO, IOWA ("City"),
Cedar River Renaissance LLC ("Company"), and the COUNTY ASSESSOR of the City
of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto and divided between the
Phase 1 Property and the Phase 2 Property, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the
Airport Area 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 $140,000.00 for the
Phase 1 Property and $140,000.00 for the Phase 2 Property (collectively, 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
for each phase set forth in the Development Agreement, and in any case if the Minimum
Improvements are not substantially completed by December 31, 2025 with respect to
the Phase 1 Property and by December 31, 2026 with respect to the Phase 2 Property,
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:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property
contained as a part of the Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
2
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; or
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board of review of the city, county, state or to the
Director of Revenue of the State of Iowa to reduce the Minimum Actual Value; or
(e) cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
7. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
8. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
9. Each provision, section, sentence, clause, phrase, and word of this
Agreement is intended to be severable. If any portion of this Agreement shall be
deemed invalid or unenforceable, whether in whole or in part, the offending provision or
part thereof shall be deemed severed from this Agreement and the remaining provisions
of this Agreement shall not be affected thereby and shall continue in full force and
effect. If, for any reason, a court finds that any portion of this Agreement is invalid or
unenforceable as written, but that by limiting such provision or portion thereof it would
become valid and enforceable, then such provision or portion thereof shall be deemed
to be written, and shall be construed and enforced, as so limited.
10. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
3
CITY OF WATERLOO, IOWA CEDAR RIVER RENAISSANCE LLC
BY: By:
c
Y
Quentin Hart, Mayor Cody anasse
Man ging Member
By:
elley Felc , City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this ? day of Ati2024, before me, a Notary Public in
and for the State of Iowa, personall appeared Quentin Hart and Kelley Felchle, to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed
and sealed on behalf of said municipal corporation by authority and resolution of its City
Council, and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation by it and by them voluntarily executed.
Nota lc
40" BRITNI C PERKINS
2 COMMISSION NO.845529
*-- * MY COMMISSION EXPIRES
IOWA JANUARY 27,2028
4
STATE OF IOWA )
) ss.
BLACK HAWK COUNTY )
Subscribed and sworn to before me on AU9AS 5 , 2024 by Cody
Vanasse as Managing Member of Cedar River Renaissance LLC.
h ( EMILY SELIGA 44/
=&I, Commission Number 849716
*, My Commission Expires Notary Public
IOWP July 27,2026
5
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Two Hundred Eighty Thousand and 00/100 Dollars ($280,000.00) until termination of
this Minimum Assessment Agreement pursuant to the terms hereof, subject to
adjustment as provided in said agreement.
• for Black Hawk County, Iowa
r2_ i? r 2 �J
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on PitAg , 2024 by T.J.
Koenigsfeld, Assessor for Black Hawk County, loa.
4.041 ADRIENNE MILLER tary Public
z Commission Number 809109
* My Commission Expires
,0WA February 23,2027
Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50704 Phone (319)234-5701
DEVELOPMENT AGREEMENT
nn This Development Agreement (the "Agreement") is entered into as of
!HU ukc,-1- �j , 2024, by and between Cedar River Renaissance LLC (the
"Corgpany") and the City of Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as
amended (the "Urban Renewal Act"), City is engaged in carrying out urban
renewal project activities in an area known as the East Waterloo Unified
Urban Renewal and Redevelopment Plan Area, formerly known as the
Airport Area Development Plan area ("Urban Renewal Area").
B. Company is willing and able to finance and rehabilitate a duplex located at
203 Lafayette Street, Waterloo, Iowa (the "Property") and to finance and
construct a new duplex on an abutting lot owned by City (the "City
Property"). The Property and the City Property are legally described as
set forth on Exhibit "A" attached hereto.
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 rehabilitation of the Property and new residential
construction is in the 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. Property Preparation. Company is the owner of the Property. Company
shall, at its own expense, remove and properly dispose of debris, and otherwise prepare
the Property for renovation.
2. Sale of City Property; Title. Subject to the terms of this Agreement,
within ninety (90) days after approval of this Agreement by the city council, City shall
convey the City Property to Company for the sum of $5,000.00 (the "Purchase Price").
Conveyance by City shall be by quit claim deed, free and clear of all encumbrances
arising by or through City except: (a) easements, servitudes, conditions and restrictions
of record; (b) current and future real estate real property taxes and assessments subject
to the agreements made herein; (c) general utility and right-of-way easements serving
the City Property; and (d) restrictions imposed by the City zoning ordinances and other
applicable law. 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. 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. To assist in title review, City shall provide any title
documents it has in its possession, including any abstracts.
3. Improvements by Company; Phased Project. The parties contemplate
that Company may develop the Property and City Property in phases, each of which is
generally described as set forth below. The improvements relating to each separate
phase are referred to as the "Phase 1 Improvements" and "Phase 2 Improvements," as
applicable, and all such improvements are collectively referred to as the
"Improvements."
A. Phase 1 Improvements. Company shall (a) remove and properly
dispose of all debris and unwanted personal property from the structure, (b)
rehabilitate the existing structure on the Property to a finished state for a
residential duplex, and (c) make other improvements to the buildings and
grounds including but not limited to grassing and/or landscaping.
B. Phase 2 Improvements. Company agrees to accept the City
Property in its "AS IS" condition, without any warranty from City, expressed or
implied, as to the condition of the City Property, its marketability, or its fitness for
any particular purpose. Company shall construct on the City Property a new
duplex residence as further described and depicted in Exhibit "B" attached
hereto. The Phase 2 Improvements shall be completed to a finished state,
including installation of paved driveway, sidewalk, removal of all construction
debris, proper leveling or shaping of groundscape and grassing and/or
landscaping.
C. Standards. The Improvements shall be constructed in accordance
with the terms of this Agreement, all applicable City, state, and federal building
codes and shall comply with all applicable City ordinances and other applicable
law. Company shall submit specific building designs and site plans for City
2
review and approval before the commencement of construction and shall not
substantially deviate from such plans, specifications or designs. 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 City Property, the Improvements, and all site preparation and
development-related work to be undertaken and completed by Company under
this Agreement are collectively referred to as the "Project."
4. Construction Plans. Company agrees that it will cause the Phase 2
Improvements to be constructed on the Property in substantial conformance with
construction plans (the "Plans") that have been submitted to the City. Company agrees
that the scope and scale of the Phase 2 Improvements to be constructed shall not be
materially 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 all applicable federal, state and local laws, ordinances, rules and regulations and City
permit and design review requirements; (c) the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Phase 2
Improvements, and (d) 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 City delivers to Company
a written notification that specifies how Company's Plans or Modified Plans fail to
conform to the requirements of this Section. The provisions of this Section relating to
approval, rejection and resubmission of corrected Plans or Modified Plans shall
continue to apply until they have been approved by the City; provided, however, that in
any event Company shall submit Plans or Modified Plans which are approved by City
prior to commencement of construction of additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve Company of
any obligation to comply with the terms and provisions of this Agreement, or the
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver
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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.
5. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to cause the Project to be undertaken and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend 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 before it begins construction of the Phase 1 Improvements and
must Substantially Complete construction by March 31, 2025 (the "Phase 1
Completion Deadline"). Company must obtain a building permit and begin
construction of the Phase 2 Improvements by June 1, 2026 (the "Phase 2 Start
Date") and must Substantially Complete construction of Phase 2 Improvements
by December 31, 2026 (the "Phase 2 Completion Deadline"). For purposes of
this Agreement, "Substantially Complete" means the date on which the phase
Improvements have been completed to the extent necessary for the City to issue
a certificate of occupancy relating thereto and the City has verified that any
Project element for which no permit was necessary has been satisfactorily
completed. All deadlines are subject to Unavoidable Delays as defined in
paragraph B below. The City's Community Planning and Development Director
may, but shall not be required to, consent to an extension 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/or reverter of title. If Company
does not begin the Project or Substantially Complete construction of the
Improvements on the schedule(s) stated above, subject to Unavoidable Delays,
then City may terminate this Agreement as set forth in Section 20, and City shall
then have no further obligation to Company under this Agreement. If
development has commenced within the required period, as the same may be
extended, and is subsequently stopped or delayed as a result of an act of God,
war, civil disturbance, court order, labor dispute, fire, or other cause beyond the
reasonable control of Company (each an "Unavoidable Delay"), the requirement
that construction be completed by the Completion Deadline shall be tolled for a
period of time equal to the period of Unavoidable Delay. As promptly as
possible, Company shall notify City in writing of the occurrence of any
Unavoidable Delay and shall again notify City in writing when the Unavoidable
Delay has ended. If City terminates this Agreement as provided in Section 20,
City shall have no further obligations to Company under this Agreement,
including but not limited to any legal or equitable obligation to reimburse
Company for any costs expended by Company with respect to the Project, or to
compensate Company for any value added to the City Property by any
Improvements, or to refund the Purchase Price in whole or in part. In connection
with termination of the Agreement as set forth herein, City may demand
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reconveyance of the City Property in addition to exercising any other available
remedies.
6. Reverter of Title; Indemnity. In the event of any reverter of title
hereunder, then Company agrees that it shall, at its own expense, promptly execute all
documents, including but not limited to a special warranty deed, or take such other
actions as the City may reasonably request to effectuate said reverter and to deliver to
City title to the City Property, free and clear of any lien, claim, charge, security interest,
mortgage or encumbrance, or past-due or currently due property taxes (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 City Property. Appointment of
Attorney in Fact: If Company fails to deliver such documents, including but not limited
to a special warranty deed, to City within thirty (30) days after written demand by City,
then City shall be authorized to execute, on Company's behalf and as its attorney-in-
fact, the special warranty deed or other documents required by this Section, and for
such limited purpose Company does hereby irrevocably constitute and appoint City as
its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, cost, expense, liability or injury
made, suffered, or incurred as a result of or in connection with the Project, Company's
failure to carry on or complete same, or any Lien or Liens on or against the City
Property of any type or nature whatsoever that attaches to the City Property by virtue of
Company's ownership of same. A "Lien" is any lien, claim, charge, security interest,
mortgage or encumbrance on, against or affecting the City Property. 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. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services from street right
of way to any location on the Property or City Property and for payment of associated
connection fees.
8. Incentives. To aid in the Project, City will provide the following incentives
within ninety (90) days after City has verified that all of the Improvements have been
Substantially Completed:
A. Acquisition Grant. City will pay a grant of$50,000.00 to Company.
B. Infill Housing Grant. As provided in the City's infill housing policy,
City will pay a grant of$5,000.00 to Company for timely completion of each unit
of the Phase 2 Improvements, up to a total grant of$10,000.00.
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C. Refund of Purchase Price. City will refund up to $5,000.00 of the
Purchase Price to Company.
9. 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 or
the City 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 or City Property
as improved pursuant to this Agreement, which shall be fixed for assessment purposes,
below the amount of $140,000.00 for each property, or $280,000.00 total (in either case,
the "Minimum Actual Value"), through:
(a) willful destruction of the Property or City 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 execution and
delivery of this Agreement.
10. Tax Rebates. Provided that Company has completed Substantially
Completed each phase of Improvements before the respective Completion Deadline,
and subject to the other terms of this Agreement, City agrees to rebate property tax
(with the exceptions noted below) with respect to each phase of the Improvements, as
follows:
Year One through Year Fifteen 70% rebate each year
for any taxable value added by the completed phase 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. Separate Rebate requests must be submitted for
the Property and the City Property.
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The taxable value of each of the Property and the City 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 the City Property, as applicable, or upon (y) the value of the
Property or the City Property, as applicable, and a partial value of the respective phase
of Improvements due to partial completion of such Improvements or a partial Fiscal
Year.
As an example of the above provision, in the event all Phase 1 Improvements on
the Property are Substantially Completed prior to January 1, 2026 and the Property and
Phase 1 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, 2026
assessed value would be for the Fiscal Year ending June 30, 2028, with the taxes
payable one-half by September 30, 2027 and one-half by March 31, 2028, then the first
Rebate could be applied for after March 31, 2028 and prior to April 1, 2029.
11. 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 10 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
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opinion from its legal counsel to the effect that the use of Tax Increments
resulting from the Property and Improvements to fund a Rebate payment to
Company, as contemplated under Section 10 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 10, 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.
12. 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 amendment to the
urban renewal plan, including the holding of public hearings on the same.
Further, all the obligations of City under this Agreement are subject to fulfillment,
on or before each Rebate payment date, of each of the following conditions
precedent:
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(i) The representations and warranties made by Company in
Section 15 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.
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 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 each
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 each MAA termination date Company will maintain, preserve
and keep the Property and the City Property, as applicable, including but not
limited to the Improvements, in good repair and working order, ordinary wear and
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tear excepted, and from time to time will make all necessary repairs,
replacements, renewals and additions.
F. The Property and the City Property will each have a taxable value
as set forth in the respective MAA and any amendments thereto, and Company
agrees that the minimum actual value of the Property and the City Property and
completed phase Improvements as stated in each MAA and any amendments
thereto will be a reasonable estimate of the actual value of the Property or the
City Property, as applicable, and respective phase 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, the City
Property, and related site improvements, will equal or exceed the assessor's
minimum actual value for the Property and the City Property and respective
phase Improvements as set forth in the MAA and any amendments thereto.
G. Until the MAA termination date Company agrees that it will make no
conveyance, lease or other transfer of the Property, the City Property, or any
interest therein that would cause the Property, the City 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 the Property and the City
Property. Company agrees that (1) it will not seek administrative review or
judicial review of the applicability or constitutionality of any Iowa tax statute or
regulation relating to the taxation of real property included within the Property or
the City Property that is determined by any tax official to be applicable to the
Property, to the City 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 or
the City Property.
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:
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A. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
B. This Agreement has been duly and validly executed and delivered
by 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.
C. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of any contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which 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.
D. 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.
E. 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.
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 Property or the City Property arising after Company's 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, the Company Property or the Improvements, due to
any act of negligence or willful misconduct of any person, other than any act of
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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
or the City 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 or the City 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 Property, the City 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.
18. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, Company agrees that it shall not create, incur, or suffer to
exist any Liens on the City Property, other than such mortgage or mortgages as may be
reasonably necessary to finance Company's completion of the Improvements and of
which Company notifies City before Company executes any such mortgage. Company
may not mortgage the City Property or any part thereof for any purpose except in
connection with financing of the Phase 2 Improvements. Any other mortgage shall be
void.
19. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the City Property prior to completion
of the Project thereon, 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
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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.
20. 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 City Property, the Phase 2 Improvements, 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 or the City 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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21. 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 or to recover ownership of the City Property as set forth in this
Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require
it to specifically perform its obligations hereunder. Before exercising such
remedy, Company shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
the Company that the Event of Default will be cured as soon as reasonably
possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed
as a waiver of any other or any subsequent default and shall not impair any such
right or power.
22. 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.
23. 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,
14
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.
24. 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.
25. 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 5312 Red Oak Lane, Cedar Falls, Iowa 50613,
Attention: Managing Member.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
26. 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.
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
15
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. Governing Law; Litigation. This Agreement shall be governed by and
construed and interpreted in accordance with the internal laws of the State of Iowa. The
parties hereby agree and consent, with respect to any action to enforce or defend any
claim, counterclaim, cross-claim, cause of action, or any matter arising from or in any
way related to this Agreement or the transactions contemplated hereby, (a) to WAIVE
ANY RIGHT TO A TRIAL BY JURY; (b) to submit to the exclusive jurisdiction of the
Iowa District Court for Black Hawk County; and (c) to irrevocably waive, to the fullest
extent possible, the defense of any inconvenient forum or improper venue to the
maintenance of any such action or proceeding.
32. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
33. 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.
34. 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.
35. 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.
16
CITY OF WATERLOO, IOWA CEDAR RIVER RENAISSANCE LLC
By: ii v
Quentin M. Hart, Mayor Co Vanasse
Managing Member
Attest: (44/GA
Kelley Fel e, City Clerk
PERSONAL GUARANTY. The undersigned members and/or managers of
Company hereby agree for themselves and their heirs, personal representatives, and
assigns, to unconditionally guarantee to City, its successors and assigns, the full and
prompt performance by Company, its successors and assigns, of all promises and
covenants on the part of Company to be performed pursuant to the foregoing
Agreement, including but not limited to the duties of indemnity set forth therein, if any.
The undersigned hereby agree(s) to be unconditionally bound by all terms, conditions,
consents and obligations of or relating to Company in the Agreement. Liability of
guarantors hereunder is joint and several.
Cam-
Cody Va asse
17
EXHIBIT "A"
Legal Description of Property
Phase 1 Property (referred to in the Agreement as the Property)
The Northwesterly 55 feet of Lot 10 and The Northwesterly 55 feet of the Southwesterly One-half of Lot 7,
all in Block No. 32, Original Plat on the East Side of the Cedar River, City of Waterloo, Black Hawk
County, Iowa. (aka 203 Lafayette Street)
Phase 2 Property (referred to in the Agreement as the City Property)
The Southeasterly 45 feet in width of the Northwesterly 100 feet in width of Lot 10 and the Southeasterly
45 feet in width of the Northwesterly 100 feet in width of the Southwesterly '/z of Lot 7, Block 32, Original
Plat on the East Side of the Cedar River, City of Waterloo, Black Hawk County, Iowa. (aka parcel no.
8913-23-478-013)
EXHIBIT "B"
Phase 2 Building Plans
See attached.
EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
, 2024, by and among the CITY OF WATERLOO, IOWA ("City"),
Cedar River Renaissance LLC ("Company"), and the COUNTY ASSESSOR of the City
of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto and divided between the
Phase 1 Property and the Phase 2 Property, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the
Airport Area 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 $140,000.00 for the
Phase 1 Property and $140,000.00 for the Phase 2 Property (collectively, 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
for each phase set forth in the Development Agreement, and in any case if the Minimum
Improvements are not substantially completed by December 31, 2025 with respect to
the Phase 1 Property and by December 31, 2026 with respect to the Phase 2 Property,
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:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property
contained as a part of the Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
2
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; or
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board of review of the city, county, state or to the
Director of Revenue of the State of Iowa to reduce the Minimum Actual Value; or
(e) cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
7. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
8. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
9. Each provision, section, sentence, clause, phrase, and word of this
Agreement is intended to be severable. If any portion of this Agreement shall be
deemed invalid or unenforceable, whether in whole or in part, the offending provision or
part thereof shall be deemed severed from this Agreement and the remaining provisions
of this Agreement shall not be affected thereby and shall continue in full force and
effect. If, for any reason, a court finds that any portion of this Agreement is invalid or
unenforceable as written, but that by limiting such provision or portion thereof it would
become valid and enforceable, then such provision or portion thereof shall be deemed
to be written, and shall be construed and enforced, as so limited.
10. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
3
CITY OF WATERLOO, IOWA CEDAR RIVER RENAISSANCE LLC
By: '� By: �w
Quentin Hart, Mayor Cody anasse
Man ging Member
By:
elley Felc , City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK ) ,J�
On this ]"day of � J , 2024, before me, a Notary Public in
and for the State of Iowa, personall, appeared Quentin Hart and Kelley Felchle, to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed
and sealed on behalf of said municipal corporation by authority and resolution of its City
Council, and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation by it and by them voluntarily executed.
Nota is
,o0"0 BRITNI C PERKINS
2 COMMISSION NO.845529
* * MY COMMISSION EXPIRES
IOWA JANUARY 27,2028
4
„
u;A}#1''C57;1}o 1M' tV i f'zta CeS
STATE OF IOWA )
) ss.
BLACK HAWK COUNTY )
Subscribed and sworn to before me on AL4/ust- 5 , 2024 by Cody
Vanasse as Managing Member of Cedar River Renai sance LLC.
EMILY SELIGA
Z a`" Commission Number 849716 Notary Public
*�* My Commission Expires
/00 July 27,2026
5
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which
the Minimum Improvements are to be constructed for the development, and being of the
opinion that the minimum market value contained in the foregoing Minimum
Assessment Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the property
described in the foregoing Minimum Assessment Agreement, certifies that the actual
value assigned to that land and improvements upon completion shall not be less than
Two Hundred Eighty Thousand and 00/100 Dollars ($280,000.00) until termination of
this Minimum Assessment Agreement pursuant to the terms hereof, subject to
adjustment as provided in said agreement.
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK
Subscribed and sworn to before me on , 2024 by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public
EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
/k This Minimum Assessment Agreement (the "Agreement") is entered into as of
ust 5 , 2024, by and among the CITY OF WATERLOO, IOWA ("City"),
Cedr River Renaissance LLC ("Company"), and the COUNTY ASSESSOR of the City
of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto and divided between the
Phase 1 Property and the Phase 2 Property, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the
Airport Area 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 $140,000.00 for the
Phase 1 Property and $140,000.00 for the Phase 2 Property (collectively, 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
for each phase set forth in the Development Agreement, and in any case if the Minimum
Improvements are not substantially completed by December 31, 2025 with respect to
the Phase 1 Property and by December 31, 2026 with respect to the Phase 2 Property,