Loading...
HomeMy WebLinkAboutElk Run Energy Association, LLC-Development Agreement-05.07.2007 otrot,6046- 7-07 12 ,, adv7-33-3 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF WATERLOO, IOWA AND ELK RUN ENERGY ASSOCIATES, LLC 46 THIS DEVELOPMENT AGREEMENT, made and entered into this 7 day of May, 2007, by and between the CITY OF WATERLOO, IOWA, a municipal corporation (hereinafter called "City") established pursuant to the Iowa Code and acting under the authorization of Iowa Code Chapter 414 (2005), and ELK RUN ENERGY ASSOCIATES, LLC c/o LS Power Development, LLC, 400 Chesterfield Center, Suite 110, St. Louis, MO 63017, a Delaware limited liability company, its successors and assigns (hereinafter called "Developer"). WITNESSETH THAT: WHEREAS, the Developer has secured exclusive options to purchase several parcels of land in Black Hawk County, Iowa, legally described as set out on Appendix A (the "Site"), on which Developer plans to construct a modern electric generating facility; and WHEREAS, the development of the Site by the Developer is contingent on, inter alia, the Developer obtaining all necessary Governmental Approvals, securing acceptable contracts for the sale of electricity from the Project, securing financing for the Project and procuring the property comprising the Site, which at this time, the Developer cannot predict when or whether such contingencies will be satisfied; and WHEREAS, it is the desire of the City and the Developer to set forth herein the terms and conditions under which each of the parties hereto shall comply with their respective obligations and commitments as set forth in this Agreement; and WHEREAS, the City recognizes the significant benefits of the Project to the City, the Cedar Valley region, and the State of Iowa and desires to ensure that certain aspects of the Project's development proceed in an orderly manner. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer agree as follows: ARTICLE 1. DEFINITIONS 1.1 Definitions. In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: A. Agreement means this Development Agreement and all appendices hereto, as the same from time to time may be modified, amended, or supplanted. B. Annexation Resolution means a resolution of the City annexing the Site or any part thereof into and part of the City. C. City means the City of Waterloo, Iowa, or any successor to its functions. D. Developer means Elk Run Energy Associates, LLC, a Delaware limited liability company, and its lessees, licensees, successors and assigns. E. Governmental Approvals shall mean the approval or approvals of the federal government of the United States, and any state, county, municipal or local government or regulatory department, body, political subdivision, commission, instrumentality, agency, ministry, court,judicial or administrative body, taxing authority, or other authority having jurisdiction over either party or the Project, as applicable. F. Iowa Code shall mean the Code of Iowa(2005). G. Preliminary Site Layout shall mean the graphic depiction of Developer's conceptual development plan for the Site as shown in Appendix B attached hereto and incorporated herein by this reference. Final site layout will be determined by Developer. H. Project shall mean an electric generating plant and ancillary development to be constructed on the Site. I. Rezoning Ordinance shall mean an ordinance subjecting all or a portion of the Site to the "M-2,P Planned Industrial District" zoning regulations of the City. J. Site shall mean the land legally described in Appendix A attached hereto. ARTICLE 2. TERM AND TERMINATION 2.1 Term. This Agreement is a binding obligation of the parties immediately upon the parties' execution of this Agreement. This agreement shall continue in full force and effect from the date set forth above until the obligations of the parties set forth herein have been fulfilled, unless terminated earlier in accordance with the terms and conditions of this Agreement. 2 2.2 Conditions Precedent. The obligations of the Developer set forth in Article 4 hereof shall not become binding obligations of the Developer unless and until: (i) the Annexation Resolution and Rezoning Ordinance have become effective; (ii) the Developer has received all final, non-appealable permits and approvals including but not limited to, all Governmental Approvals necessary to construct the Project; and (iii) the Developer has determined, in Developer's sole discretion, that it will initiate construction of the Project. Developer shall notify the City in writing upon satisfaction of all conditions set forth in this Section 2.2. If the City has not received said notice or a notice pursuant to Section 2.3 below by December 31, 2009, then the City may request that the Developer provide a written notice stating whether the conditions set forth in this Section 2.2 have been satisfied. The Developer shall respond to such request within thirty (30) days. 2.3 Termination for Convenience by Developer. The parties understand and agree that the Project is currently under development and that any number of foreseeable and unforeseeable circumstances, including but not limited to change in law, permitting, and economic conditions, could cause the Developer to decide to discontinue development of the Project. Accordingly, the Developer shall have the right, in its sole discretion and at any time before notice is given pursuant to Section 2.2 above but not after, to terminate this Agreement without cause for its own convenience upon the City's receipt of written notice from the Developer. Upon the City's receipt of the termination notice from Developer, neither party shall have any further obligations hereunder. ARTICLE 3. OBLIGATIONS OF THE CITY 3.1 Annexation Resolution and Rezoning Ordinance Procedure. The Developer anticipates filing or causing to be filed with the city council of the City a petition for voluntary annexation pursuant to Iowa Code § 368.7 and an application for rezoning pursuant to Iowa Code § 414.4 for the applicable portions of the property encompassing the Site. In accordance with the applicable statutory procedures, the city council, and such other applicable administrative agencies of the City, shall review these petitions and determine whether and under what conditions such petitions should be approved. If the applicable authorities of the City determine that the petition for voluntary annexation and the application for rezoning should be approved, and approve the same, the City shall, in accordance with all applicable Iowa law and regulations: (i) in the case of the Annexation Resolution, either file or cause to be filed with the City Development Board or the Iowa Secretary of State, as applicable, such approved Annexation Resolution as required to become effective pursuant to Iowa Code § 368.7; and (ii) in the case of the Rezoning Ordinance, publish or cause to be published such approved Rezoning Ordinance as required to become effective pursuant to Iowa Code § 380.6; and (iii) take such other actions as are necessary and required pursuant to 3 all applicable Iowa law and regulations to effectuate the Annexation Resolution and Rezoning Ordinance. 3.2 Site Taxation. In the event that the City annexes and rezones the Site or any part thereof prior to Developer acquiring the property comprising the Site, the City shall, notwithstanding said annexation and rezoning of the Site or any part thereof to M-2,P Planned Industrial District, provide exemptions from taxation to the property owners within said Site so that the property owners pay tax in an amount equivalent to the tax payment on said property had it not been annexed into the City and rezoned, until: (i) the Developer acquires the property comprising the Site; or (ii) the Site, or portions thereof, is severed from the City in accordance with Section 3.3 hereof. The foregoing covenant of the City is hereby expressly made subject to the limitations set forth in Iowa Code § 368.7(5). In the event that one or more property owners elects not be severed from the City in accordance with Section 3.3 hereof, the City shall have the right, on and after the date in which such property owner or owners make such election, to impose a tax rate on such property owner or owners that is consistent with each such property owner's actual use of its respective property. 3.3 Voluntary Severance. The parties acknowledge that there are a number of circumstances that could arise in the future that could cause the Developer to abandon or terminate the Project. The parties further acknowledge that abandonment or termination of the Project by the Developer may occur after the City has annexed and rezoned the Site or any part thereof in accordance with this Agreement. If the Project is abandoned or terminated after the City has annexed and rezoned the Site or any part thereof, it is the intent of the parties that the City will undertake proceedings to voluntarily sever same from the City in accordance with applicable law. However, the parties also acknowledge that, regardless of any change in circumstances, the City cannot obligate any future city council to act in a prescribed manner in the exercise of its sovereign powers. In light of the foregoing, in the event that the Developer: (i) affirmatively abandons the Project by providing written notice of the same to the City, or (ii) has not initiated construction of the Project on or before December 31, 2010, or other date as mutually agreed by and between the City and Developer by amendment to this Agreement, the City shall deem the Project abandoned or terminated, and shall as soon as practicable thereafter, in accordance with Iowa Code Section 368.8 and subject to city council approval at that time, take such actions as are required to voluntarily sever from the City: (y) the Site or such portions of the Site for which consent from landowners is received, and (z) any other property the City annexed in contemplation of the Project, provided the owners of such other property consent to such severance as required by Iowa Code Section 368.8. 3.4 Annexation Moratorium. The City acknowledges that there are certain property owners with property adjacent to or near the Site that do not wish to be annexed into the City and have 4 requested assurance from the City that the City will not take action to annex such property. The City represents that it does not intend to take such action to annex any of the property set forth in Appendix C unless and until an applicable property owner agrees to allow its respective property to be annexed by the City at such property owner's sole discretion. However, the parties acknowledge that the City cannot obligate any future city council to refrain from the exercise of its sovereign powers. 3.5 Reclaimed Water Supply Agreement. Immediately upon execution of this Agreement, the City and the Developer shall in good faith begin negotiating the terms and conditions of a definitive Reclaimed Water Supply Agreement. The definitive Reclaimed Water Supply Agreement shall include provisions requiring the City to provide to Developer, for a reasonable fee to be negotiated by the parties, effluent from the City's wastewater treatment plant for use by the Project, as well as access to rights-of-way to extend existing utility pipelines and construct new utility pipelines as required by the Developer for the benefit of the Project, whereby such pipelines may include, but are not limited to, reclaimed water supply, cooling water discharge, sanitary sewer, potable water supply, and waste methane gas supply. The obligations to provide and pay for water under the Reclaimed Water Supply Agreement shall be based solely on the Developer's scheduled need for reclaimed water supply for the Project and such obligations shall not be triggered unless and until such need is determined by Developer. 3.6 Rights-of-Way Access. The City hereby agrees to provide to Developer access via license or other instrument to the City's rights-of-way for the purpose of installing or having installed water supply, discharge or other utilities necessary to support operation of the Project, provided the use of such rights-of-way by the Developer does not impair the City's current use of such rights-of-way and complies with all existing City rules and regulations and requirements. The parties acknowledge: (i) that there may be fees that the City assesses to third parties to access and occupy the City's rights-of-way; (ii) any fees the City assesses to Developer to access the City's rights-of-way shall be reasonable, commensurate with the access provided to the City's rights-of-way and Developer's occupancy of same; (iii) the fees to access and occupy the City's rights-of-way have yet to be negotiated by the parties. For purposes of this Agreement and the Reclaimed Water Supply Agreement, such rights-of-way include property owned in fee simple by the City, including property adjacent to the Cedar River which may be suitable for construction of a wastewater discharge outfall location. 3.7 Waste Methane Gas Agreement. The City has entered into a Gas Rights Purchase and Operation Agreement, dated May 1, 2006, with Planergy Capital, LLC ("Gas Rights Agreement"). Upon termination of the Gas Rights Agreement, the City shall notify the Developer and provide to Developer a first right of refusal to the waste methane gas made available as a result of the termination of the Gas Rights Agreement. The right of first refusal must be exercised 5 by the Developer within ninety (90) days of written notice with terms to be negotiated thereafter between the parties. 3.8 Sewer and Water Services. The City agrees to permit Developer to extend sanitary sewer services and water services to the Site in accordance with terms and conditions mutually agreeable to the parties, including satisfactory terms for the payment of all costs by Developer. The terms and conditions of any agreement concerning water services must be negotiated between Developer and Waterloo Water Works. 3.9 Road Improvements. The Developer has made certain pledges in Article 4 herein regarding the funding of road improvements on Newell Street. The City shall apply for and use good faith efforts to obtain a RISE grant with the State of Iowa to assist with such road improvements. The City shall reduce the Developer's financial obligation pursuant to Article 4.4 by the amount of the RISE funds ultimately received by the City to perform the Road Upgrade (as such term is defined in Article 4.4 below), and if applicable, City shall reimburse the Developer for any sums already advanced to the City for the Road Upgrade that are offset by the RISE funds received by the City. ARTICLE 4. OBLIGATIONS OF THE DEVELOPER 4.1 Beneficial Use of Waste Methane. In the event City notifies Developer of available waste methane gas per Section 3.7 above, and subject to the conditions precedent set forth in Section 2.2 above, Developer agrees to explore in good faith the potential incorporation of waste methane as a supplemental fuel source for the Project, and if deemed viable in Developer's sole discretion, to enter into negotiations on a Waste Gas Purchase Agreement with City. Incorporation of waste methane as part of the Project shall be determined based on Developer's sole discretion. 4.2 Renewable Fuels. Subject to the conditions precedent set forth in Section 2.2 above, Developer plans to incorporate the capability to burn biomass fuels in the power generation facility as a supplement to low sulfur coal. Developer shall investigate in good faith the technical and economic feasibility of incorporating the use of biomass as a supplemental fuel source for the Project and to identify economically viable sources of biomass fuels. Incorporation of biomass fuels as part of the Project shall be determined based on Developer's sole discretion. 6 4.3 Development of Excess Land. Subject to the conditions precedent set forth in Section 2.2 above, Developer shall endeavor in good faith to incorporate agriculture, green space, conservation best management practices and recreational opportunities on the portions of the Site not developed as part of the power generation facility. Developer shall coordinate such efforts with applicable local, state and federal agencies including, but not limited to, the U.S. Department of Agriculture, the Iowa Department of Natural Resources, the City's Department of Leisure Services, and the Black Hawk County Soil and Water Conservation District. Potential uses of the undeveloped land may include, but not be limited to, buffer area, green space, agricultural production, recreation, park lands, wetlands restoration, prairie restoration, and demonstration of urban and rural best management practices. For illustrative purposes, a conceptual site layout showing the power generation facility and potential uses for the undeveloped land is provided in Appendix B. The final determination regarding incorporation of any such potential uses for the undeveloped portion of the Site shall be determined at the sole discretion of Developer but shall include at least one and potentially more of the above potential uses. 4.4 Road Improvements. Once the conditions precedent set forth in Section 2.2 hereof have been fully satisfied, Developer shall provide funding to the City for purposes of upgrading that portion of Newell Street between Elk Run Road and Raymond Road (hereinafter "Road Upgrade") or construct the Road Upgrade itself. The parties agree that the Road Upgrade will consist of a two-lane rural section road with ten-foot shoulders. Developer's agreement to fund the actual costs and expenses for the Road Upgrade is contingent on the Developer being provided with the right and reasonable opportunity to participate in the design of the Road Upgrade, including the right to review and approve technical specifications prepared for bidding on the Road Upgrade, and the right to review any contract offer received by the City for work associated with the Road Upgrade In addition, Developer retains the right to review and approve any requested variations or change orders related to the Road Upgrade. Notwithstanding anything to the contrary in this Section 4.4, Developer maintains the right at its sole discretion to design and/or construct, to the City's minimum standard specifications, all of the Road Upgrade. Whether performed by the City or Developer, the construction of the Road Upgrade will be performed according to a schedule to be mutually agreed between Developer and the City. In the event the Developer elects not to design and/or construct the Road Upgrade, Developer shall pay to the City the sum of $500,000 before the commencement of construction of the Road Upgrade and the remainder thereof as invoiced by the City upon its incurring additional expenses related to the Road Upgrade. Recognizing that a portion of the Road Upgrade will be outside the corporate limits of the City, the City shall be the lead governmental agency for all improvements to be made to Newell Street, whether done within or outside of the City limits, and shall have primary responsibility for planning and implementation of the road improvement project. Such responsibility includes the acquisition of rights-of-way whether the Road Upgrade is performed by the City or Developer. The City anticipates entering into an agreement with Black Hawk County to formalize the verbal commitment already given for the City to function in this 7 manner. The Developer agrees to cooperate with the City and Black Hawk County as it pertains to the handling and disbursement of road improvement funds and to the performance of other administrative matters relating to the road project. 4.5 Recreational Trail. Subject to the conditions precedent set forth in Section 2.2 above, and no later than twelve (12) months following the full satisfaction of the conditions precedent set forth in Section 2.2, Developer shall provide to the City a one time grant of$150,000.00 for recreational improvements as selected by the City in that portion of the City located north and east of the Cedar River. Such recreational improvements may include, in the City's sole discretion, one or more of the following: (i) construction, operation, and maintenance of a recreational trail suitable for pedestrian and bicycle use on certain portions of the Site acceptable to Developer, subject to conveyance of required property rights to the City, or (ii) extension of the City's existing recreational trail to a connection point with any recreational trail constructed by the Developer upon the Site, or (iii) other improvement(s) selected by the City that are not on the Site. 4.6 East Side Revitalization. Subject to the conditions precedent set forth in Section 2.2 above, Developer will grant a total of $400,000, payable in annual installments of $100,000 over four years beginning in the year that full satisfaction of the conditions precedent set forth in Section 2.2 above has occurred, to the Highway 63 Gateway Community Development Corporation ("Gateway CDC") to assist with operational costs and grant matching to ignite revitalization and redevelopment opportunities in the neighborhoods surrounding the US Highway 63 corridor on the east side of Waterloo. Developer understands that the intent of the Gateway CDC is to provide technical and management resources to assist the City to combat community deterioration and blight through community redevelopment efforts designated to assist in the creation of housing, small business and employment opportunities, to revitalize the east side of Waterloo. Within one (1) year of each installment paid by Developer, the Gateway CDC shall provide an annual report to Developer along with an invoice for the subsequent year's installment. Such annual report should demonstrate, at the sole determination of the Developer, that tangible progress has been made toward the stated goals of the Gateway CDC (see Appendix D), and that further progress is anticipated in the years to come. In the event the Developer determines that tangible progress has not been made, the remaining installments may be cancelled in Developer's sole discretion. This Section 4.6 is included in the Agreement for reference only and is not enforceable as between the City and Developer. For purposes of this Section 4.6, Gateway CDC shall be deemed a third-party beneficiary solely for purposes of enforcing Section 4.6 of this Agreement. The City shall not enforce any provision of this Section 4.6. 4.7 Technical Scholarship Fund. Subject to the conditions precedent set forth in Section 2.2 above, Developer desires to establish, with the assistance of the City, an educational scholarship fund to 8 assist with post-secondary educational funding for students who reside in Black Hawk County. Developer will contribute a total of $100,000 over four years to establish the fund. Contributions shall be made in four annual installments of$25,000 each beginning in the year that satisfaction of the conditions precedent set forth in Section 2.2 hereof has occurred. Prior to payment of the first installment, Developer shall enter into a Scholarship Fund Agreement with the Community Foundation of Waterloo/Cedar Falls and Northeast Iowa (the "Community Foundation") to establish the criteria for initiating and managing the fund. Said agreement shall designate the Community Foundation, or such other entity mutually designated by the City and Developer in the event that the Community Foundation declines, as the recipient of the Developer's contributions and as administrator of the scholarship fund. The fund shall encourage technical education including engineering, physical sciences, and vocational trades. For purposes of this Section 4.7, the Community Foundation shall be deemed a third-party beneficiary solely for purposes of enforcing Section 4.7 of this Agreement after execution of the Scholarship Fund Agreement. The City shall not enforce any provision of this Section 4.7 after execution of the Scholarship Fund Agreement. 4.8 Transportation Study. Developer has retained an independent expert consultant to perform a study (the "Transportation Study") evaluating the potential impacts of the Project on the local transportation system including railway and roadway traffic. Subject to the conditions precedent set forth in Section 2.2 above, Developer agrees to use commercially reasonable efforts to employ all of the recommended mitigation measures identified in the Transportation Study with the intent of minimizing adverse impacts to the local community. In the event one or more of the mitigation measures are deemed commercially unreasonable or if the assumptions or circumstances upon which the mitigation measures were recommended have materially changed, Developer will seek to identify and implement, in consultation with the City, alternative mitigation measures which are useful for minimizing potential impacts and which are reasonably practicable to implement. ARTICLE 5. REMEDIES 5.1 In General. Except as otherwise specifically provided in this Agreement, in the event of a default by either party under this Agreement, the aggrieved party may, by written Notice of Default to the party in default, demand that it proceed immediately to cure or remedy such default, and in any event, complete such cure or remedy within ninety (90) days after receipt of such notice. In the event that Notice of Default is given as provided above and action to cure or remedy the default is not promptly taken or not diligently pursued, or the default is not cured or remedied within the time allowed, then the party in default may be declared to be in breach of this Agreement by the aggrieved party. 9 In the event of a breach of this Agreement, in addition to such other rights as the aggrieved party may have hereunder, the aggrieved party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in breach of its obligations. 5.2 Other Rights and Remedies, No Waiver by Delay. City and Developer shall have the right to institute such actions or proceedings, as each may deem desirable for effectuating the purposes of this Article. Provided, that any delay by City or Developer in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights shall not operate as a waiver of such rights or to deprive either City or Developer of or limit such rights in any way; it being the intent of this provision that City and Developer should not be constrained to exercise such remedies at a time when such party may still hope otherwise to resolve the problems created by the default involved so as to avoid the risk of being deprived of or limited in the exercise of such remedies because of concepts of waiver, laches, or otherwise. No waiver in fact made by City or Developer with respect to any specific default by the other party shall be considered or treated as a waiver of the rights of City or Developer with respect to any other defaults by the other party or with respect to the particular default, as the case may be, except to the extent specifically waived in writing by City or Developer. 5.3 Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any default or breach by the other party. No waiver made by either party shall be deemed a waiver in any respect in regard to any other rights of the party making the waiver or of any other obligations of the other party. ARTICLE 6. MISCELLANEOUS 6.1 Representatives Not Individually Liable. No member, official, employee, or agent of City shall be personally liable to Developer in the event of any default or breach by City or for any amount that may become due to Developer or for any obligations under the terms of this Agreement. No member, manager, employee, or agent of Developer shall be personally liable to City in the event of any default or breach by Developer or for any amount that may become due to the City or for any obligations of Developer under the terms of this Agreement. 10 Notwithstanding anything contained in this Agreement to the contrary, the person or persons executing this Agreement on behalf of either party shall incur no personal liability with respect to either party's performance hereunder. 6.2 No Third Party Beneficiaries. Except as explicitly stated otherwise in this Agreement, this Agreement does not create or vest in any person or organization other than the City, the Developer, and their successors and assigns, any rights or cause of action with respect to any performance, obligation, plan, schedule or undertaking stated in this Agreement. 6.3 Representations and Warranties of City. City represents and warrants that the following are true, legal and correct: A. The City is a municipal corporation organized and existing under the laws of the State of Iowa and possesses all requisite power and authority to enter into and perform this Agreement and to carry out the obligations contemplated herein. B. This Agreement has been duly executed and delivered on behalf of the City and constitutes the legal, valid and binding obligation of the City except as the enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditor's rights generally and general equitable principles. C. The execution and delivery of this Agreement and its performance by the City will not violate, result in a breach of or conflict with any law, rule, regulation, order or decree applicable to it, its organizational documents or the terms of any other agreement binding on it. 6.4 Representations and Warranties of the Developer. Developer represents and warrants that the following are true, legal and correct: A. The Developer is an entity validly existing and in good standing under the laws of the jurisdiction in which it is organized, and that it is qualified to do business in all jurisdictions where failure to qualify would materially interfere with its ability to perform its obligations under this Agreement and that it possesses all requisite power and authority to enter into and perform this Agreement and to carry out the obligations contemplated herein. B. This Agreement has been duly executed and delivered on behalf of the Developer and constitutes the legal, valid and binding obligation of the Developer except as the enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditor's rights generally and general equitable principles. 11 C. The execution and delivery of this Agreement and its performance by the Developer will not violate, result in a breach of or conflict with any law, rule, regulation, order or decree applicable to it, its organizational documents or the terms of any other agreement binding on it. 6.5 City Not a Guarantor, Surety or Partner. City is not a guarantor or surety for the completion of the Site improvements nor for any indebtedness incurred by Developer. It is mutually understood that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of copartners between the parties hereto, or as constituting Developer as a contractor, agent or representative of City for any purpose of in any manner whatsoever. 6.6 Reserved. 6.7 Titles of Articles and Sections. Titles of the several sections, subsections, and paragraphs of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement. 6.8 Assignment. Developer shall have the right to assign this Agreement or any of Developer's rights and obligations hereunder at any time without the consent of the City; and from the date of such assignment, the term Developer as used herein shall mean and include such assignee. Developer shall promptly notify the City of any assignment and the name of the assignee. 6.9 Agreement Binding on Successors in Interest. This Agreement shall inure to the benefit of and shall be binding upon successors and assigns of the parties. 6.10 Extensions for Non-Working Days. In the event the last date for performing any act required by this Agreement falls upon a weekend day or holiday, then the time for performing such act shall be extended to the next following working day. 6.11 Notices. A notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested; delivered personally; or sent by overnight courier service, as follows: 12 In the case of Developer, addressed to: Elk Run Energy Associates, LLC Attention: Project Manager 400 Chesterfield Center Suite 110 St. Louis, MO 63017 In the case of City, addressed to: City of Waterloo Attention: City Clerk City Hall, 715 Mulberry Street Waterloo, Iowa 50703 With a copy to: City of Waterloo Attention: City Attorney 715 Mulberry Street Waterloo, Iowa 50703 or to such other address as either may, from time to time, designate in writing and forward to the other as provided in this Article. 6.12 Counterparts. This Agreement may be executed in two (2) counterparts, each of which shall constitute one and the same instrument. A copy of this Agreement, including all the Appendices shall be maintained in the office of the City Clerk of City. 6.13 Severability. If any provision of this Agreement shall be determined to be unenforceable, void or otherwise contrary to any requirement of law, such condition shall in no manner operate to render any other provision of this Agreement unenforceable, void or contrary to any requirement of law, and this Agreement shall continue in force in accordance with the remaining terms and provisions hereof. 6.14 Amendment. Any amendment of this Agreement must be in writing and signed by proper representatives of both the City and the Developer. 13 IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk, and the Developer has caused this Agreement to be duly executed in its name and behalf on or as of the day first above written. CITY OF WATERLOO, IOWA, an Iowa municipal corporation By: adj- Timothy J. r y, Mayor B . ( b Nancy cke ity Clerk STATE OF IOWA, BLACK HAWK COUNTY, ss: This instrument was acknowledged before me on the (I ' da of May, 2007, g Yby Timothy J. Hurley and Nancy Eckert, as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa on behalf of whom this instrument was ex cuted. Not y Public in and for the Stat of Iowa `T 14 ELK RUN ENERGY ASSOCIATES,LLC, a Delaware limited liability company 's/Zit_ By. eh Paul G. essen Vice President STATE OF I\N, , , S 4. (irk, S COUNTY, ss: This instrument was acknowledged before me on the `iJj day of m , 2007 by Paul G. Thessen, Vice President of Elk Run Energy Associates, LLC on{ehalf of whom this instrument was executed. Notary Public in and for said State _ — — JOANN R.BOVA Notary Pubic-Notary Seal State of M uoui,St louts County Commission•04456750 My Commission Expires Nov 3,2008 0 15 APPENDIX A LEGAL DESCRIPTION OF THE SITE The following described real property located in Black Hawk County, Iowa: Owner: Arthur Kass Parcel ID: 8912-14-401-001 Legal Description: NW SE SEC 14 T 89 R 12 Parcel ID: 8912-14-451-001 Legal Description: SW SE SEC 14 T 89 R 12 EXC S 313 FT W 241 FT E 858 FT & EXC HWY Owner(s): Douglas Miller and Debra Miller Parcel ID: 8912-15-476-003 Legal Description: THAT PART SE SE SEC 15 T 89 R 12 DESC AS FOL: COM AT SE COR SAID SE SE TH W 699.68 FT ALONG S LINE SAID SE SE TO PT OF BEG TH CONT W 523.27 FT ALONG SAID S LINE TH N 415.88 FT THE 313.55 FT TH S O1 DEG 49 MIN 44 SEC W 93.97 FT THE 211.91 FT TH S 316.59 FT TO PT OF BEG EXC RD R-O-W Owner(s): L K R Farms, Inc. Parcel ID: 8912-14-426-006 Legal Description: NE SE EXC N 547.4 FT SEC 14 T 89 R 12 Parcel ID: 8912-14-476-001 Legal Description: SE SE EXC S 844.4 FT & EXC N 320 FT OF S 1164.4 FT OF E 325 FT& EXC HWY SEC 14T89R12 Parcel ID: 8912-14-251-002 Legal Description: SW NE SEC 14 T 89 R 12 EXC N 540 FT OF E 665 FT OF W 855 FT & EASE Parcel ID: 8912-14-276-007 Legal Description: SE NE EXC E 455 FT N 1094 FT SEC 14 T 89 R 12 EXC HWY Parcel ID: 8912-14-276-009 Legal Description: S 958 FT OF N 1094 FT OF E 455 FT OF SE NE SEC 14 T 89 R 12 EXC THAT PART DESC AS FOL S 335 FT N 695 FT E 455 FT SE NE SAID SEC 14 Owner(s): Marvena Ryan Parcel ID: 8912-14-326-001 Legal Description: NE SW SEC 14 T 89 R 12 Parcel ID: 8912-14-376-002 Legal Description: SE SW SEC 14 T 89 R 12 EXC COM AT PT 33 FT N OF SE COR SW SEC 14 TO PT OF BEG TH 310 FT N TH 532 FT W TH 310 FT S TH 532 FT E TO PT OF BEG Owner(s): Merle Bell Parcel ID: 8912-14-176-001 Legal Description: SE NW EXC RR SEC 14 T 89 R 12 Owner(s): Marlene Pearl Miller, Darrel Oldenburger and Jeanne Mae Oldenburger Parcel ID: 8912-15-476-002 Legal Description: SE SE SEC 15 T 89 R 12 EXC N 17 FT OF THE S 50 FT OF THE W 300 FT SEE BK 493 P 631 AND EXC RD AND EXC THAT PART DESC AS FOL: COM AT SE COR SAID SE SE TH W 699.98 FT ALONG S LINE SAID SE SE TO PT OF BEG TH CONT W 523.27 FT ALONG SAID S LINE TH N 415.88 FT THE 313.55 FT TH S 01 DEG 49 MIN 44 SEC W 93.97 FT THE 211.91 FT TH S 316.59 FT TO PT OF BEG AND EXC RD R-O-W Parcel ID: 8912-15-426-001 Legal Description: NE SE EXC RR SEC 15 T 89 R 12 Parcel ID: 8912-14-351-001 Legal Description: SW SW SEC 14 T 89 R 12 Parcel ID: 8912-14-301-001 Legal Description: NW SW SEC 14 T 89 R 12 Parcel ID: 8912-14-151-001 Legal Description: SW NW EXC RR SEC 14 T 89 R 12 2 APPENDIX B PRELIMINARY SITE LAYOUT .t/�� <<0 u'a^'a U�Q �33d avow aNOWAvN 1.r : ': ' .:: :::1' 4 of El .: ar ,”.1,!,1,1"010110.1�m41wstt,• 9 ' „ 'L--: ‘ t T r ti It 1 41. - r 1 kH: i ' f 4, '4""r"-"""-"''--"'"'"'"..4 '--g-orcritT.RmYrj—.._J 1 +• c f au ♦ i` `J x 4+ / i i 1 Z t,, / Q 0' " � ; > , -,t7 W U , l t 1` tw 6. €-_ �\ w•1T44 w,. 1y° 'tii.-- ,44 1 7 \\ // " + A i _I 4s.oo '1:14' r: 111ZttJ I i YU a Q : Q ) r' L 1 1 Q Qvi tn 0 ti .:l t _ i °� m� oaicm mo„am °Nc F°dm° �> > cc �co �a �w RI!L!i ; dH!U I wmm oNrn 3 $ - NN u� oya��-° n ac�� LN9 Uin3 >-mco E omc .r. m-m0��-°pamiuim Z ° � 3���t Q� °'o`° mm °' ° � °crn E >..:'.:,', �� ' ZE Emp� mN OTxm3� aN ZO E mac �ToZ gw � �a� m D Z N a o W c m N >.a m N N H L m U U N _ - m c m m m J Q N '��, p �N m W m a > L m w c N D S C o C f' J m C m c o U Q w�� � BEY �� � o F� Z Em 0gE w �� ° dd O- _ N J S o U v E ° o ° E cc, . a J 'Om �' - c Q 4 J o c k o W o E p ° p c m m m Z- -$ 0)-O.O N a'C,m N 3 Z m Y N t0 m C C W m C d 23 L N a t m m 0> Z E E a 0-0 m 0 O 7 b > a>i m Q 3-O °d c "0 n Y c m m o F m N- C C Z m 'p N o Zm an d w N Q O C m L p Q 3 N- m d 0 0 0 m 5 E O J F E y L E w > a W 3 m m Q c c t J 3 2 52, 2Z_ C U-a- O`.2 Q mL d m« m m« O m J me a N- mm aE CLNmno VCUm03mm QmY ° `O)OIL �N C 3 p m 0 U J m U m L U G C m "p 4 .-0-5NN >- 'm F- E00 0c3 in0 2- > ZQ« ON-pO>acf, aU Z- Y > m C _ o N ZZ5m y c Z N 0I N C C'� m x N a C)?-m E o,O O U O Z5 O J m N m m N O U m N m m C m o O O m d n U y a` Q C N N a m r2 °L > m 1- m U C J J U O N C .O H Kiacm0d �� N9 wErnmm�-Jm wmmm um m OEo maE-per=° @� U2o`rnaamo.c ,_ a OQa-om.3 > m` �Uo.EQ3w 3� `p> ■+£ Em� aNi ��8 iiT oto- 11 -<« ,, - �` o m t Sgp t7� 3mO5oc Hoa % >`oEE ZmLomNma vi� wmod Ymom3YE'o Z p _ N p c m Z N �p N O J O« o �j E p N m m« « Z p C N p U O C C . N ` m C m O dc"paac2 al E00-0 Fy EU. CNU �' J32c3 Oymrna� N.� m JNo O 2.2: oomc- Q o m I= m S ',3EmY a o 8 ci N U N C W o > m E f- E c m m o c 47, 2112t Q >c� N m? o 0 O m a- o m m' c o rim--; aL23E UccN o .o O� c TN m Em Ud Nm0 Ummb' y'O Z ° O1UmCJ . ceym0 N U dm ° m JO)m a« NOdN d 'mnL3o a Q »iacm E'o OJ � ma°, Nm �03� omm mac>c � � a�d K TL. �� a � OJa-cmmm LOCO NmY TCL p-p � JmN N.� Od >L t6 N 3 m d N N - N C- p E V T V p N m V 0 m p ° n V.N.. N X "m J m C m ym T, n �:�oam � E O > >,Jrn E d3Ew ° mmrn Um �E Oc3m di m m w_ N °� J coc 'o ma ycd odmd O cmmmw > c Z ` E J n°« R 0 0)m m C U E Q N >N a V T N a 0` Z T m 1�U y N Q o c-o F m U m rn- d a O m L m c •n fQ a t T a m ZN m m �2m ma W- Tamy- � 3 � Nvc N ° v, m � h5 dNmmam Z «L� E� o-f (1mcN�' mpE t~A Lm. '" m� OEEcEOcmac za°? Q .E, Ei-. > N � c rnmm QEmm -oc°+ c �yoEL , mmONdmN � 33mOE�8 wmgdad>., Q' 7m�dmEmc w' my > ac3 2 052. 2 '"13i QE c2 %4= e u.">,sacd a'.2z- , m;om .1dm�' o00 Y`�w �mcyE u' _ mU0E > yN mZm03 oo! mL � oo LLy� �c.mc Qm�amY � Cad jam O 0 wf°aa-p cc' o V O° m`U-'1' " Z > o` mcsY � afi t = mLLm Ornp.NT3EmN Km = c m O >.c m . o E > a 0 � Ec?m.O 2J F C O O N N N'm0_ a c U« 3 a 0)C U w > N 0 N j m > Vi E m m g-o m Q V.N f0 J T ' D) ZE mmm0'> Om'mco» °ccaa E mEm- o m = 2 =2 °�,�m-a 1-1,30um0 ,,,v O m=Lm L m-cc - C ° tr m J O c y E O c� o o m m a c L o L o 0 o F ° m rn 2 d m ° E ULLt 3E1- a USN mc� o. UQ m. as«o KtnmUH$asN Nain > mm Np�m gyp . 'r'ga1( tt` t e \\ E �.�j cZ K1\ �{YiN�f 104, m o m N m f Y C m T L m 0 0 N- N O >�01 m 'O U - C 013] d o O.- m d a c 0 .E d N.G>L O J m C O N m N .L...d 0 L m 5 M `' O a L N E w K C N N ° N m O a C 3 rr U n m y Y O m 3'y Q-o m N U m m 3 M n a N U ° N m m L 2 . c a m L d O, Lcoo . -Toc N Qw N m d Y 7 a m L C J T m y m C 3 m N- '0 N- d m a' J N m 0)m >« m N .0 01`._4= m 5 c m O reW CaE �;amNO HUd N-2I- o °a mNmdF"' gJcm � J � p QW 28= d 80 Z J m >, c co Z U C_-0 > a w n O m 01 'O C 0- > N N pNJma3mma �° JNomd c Mm« m.Em,2'oc ym5Og ° Z V hHII mm c 3 r W �c4al"O m m Q Cm C m W C41 Y-LiF,Ta 'pU 2 $" 3.L. m,g atNNCmmN Z m m~ O C A'C.J. I d a f`i l i° a C C m p E N J N V y,F O F- O Cas., m LL.0 O N 3 a'O N F N O.. N- O m W m -- m m m m N p m Q i-Ot ti'ONw= drem .3a3E Qm >,aci3mm� o Q� rmmm� - E o o /� pwpoo °c ° jdmd Om�°acm 3cm0- 0 =-p;.. Nm2Hy32doi. LL K N N n L^ m Z n I3 GU`1 C (CO O w m 3 U m C Vmi l 16102, O N m-C m W mLQ w W mo � ,YEU No _ 3 "oYm 2gg2L« Em QLmc -mp'om I— v2 ; m.0�gd«a z maomo>o NQcE-m2i-mo a'm32 .wN § � �Am _co Z = o c o X c o 3 m > o m c c > y > t, K r ,ac m c y o W C pn m p m 0 W NQ3amm« `oE zw > 3c� m-o-c Orn-`pd3mmJa Q N o m c4 m m a n O WI— W ,. J Z bg&›- 8 0 2 'I ',' '' \, moll LLI IX < r APPENDIX C LEGAL DESCRIPTION OF PROPERTIES SUBJECT TO ANNEXATION MORATORIUM Owner: Carver, Deanna Parcel ID: 8912-14-451-002 Legal Description: S 313 FT W 241 FT E 858 FT SW Owner: Milota, Thomas C. Parcel ID: 8912-15-451-002 Legal Description: E 170 FT W 602 FT SW SE SEC 15 Owner: Morgan, Phyllis Joan Parcel ID: 8912-15-401-005 Legal Description: NW SE SEC 15 T 89 R 12 Parcel ID: 8912-15-451-004 Legal Description: W 235 FT OF THAT PART SW 1/4 Parcel ID: 8912-15-451-005 Legal Description: SW SE SEC 15 T 89 R 12 EXC W Parcel ID: 8912-15-451-006 Legal Description: E 197 FT OF W 432 FT SW SE SEC Parcel ID: 8912-15-451-007 Legal Description: COM AT PT 602 FT E SW COR SE Owner: Oberhauser, Michael Parcel ID: 8912-14-376-003 Legal Description: PART SE SW SEC 14 T 89 R 12 APPENDIX D HIGHWAY 63 GATEWAY CDC EAST SIDE DEVELOPMENT GOALS The Highway 63 Gateway Community Development Corporation(CDC)has been created to guide the revitalization and redevelopment initiatives in the neighborhoods surrounding the US Highway 63 corridor. The primary purpose of the CDC is to plan, coordinate, and implement public and private redevelopment efforts within neighborhoods, generally on the east side of Waterloo. The CDC and a neighborhood economic develop group will provide technical and management resources to assist the City of Waterloo to combat community deterioration and blight through community redevelopment efforts. Specific redevelopment initiatives include the development of housing, entrepreneur support, workforce development,transportation improvements, and the acquisition of commercial and residential properties for future development consistent with community development plans. The CDC is currently focusing on priority catalytic projects including: • Assessing pedestrian circulation patterns and coordinating with City and State officials • Strategic planning with the school district to increase attendance within school boundary districts • Planning for the reuse of the contaminated Chamberlain site(former munitions manufacturing)and negotiating with the responsible party • Assessing senior housing needs in the neighborhood • Assembling property for a senior housing development • Encouraging local employers to participate in an employer assisted housing program • Seeking developers for infill housing development and/or neighborhood housing development • Pursuing retail development for underserved neighborhoods on the east side of Waterloo • Facilitating the cleanup and revitalization of old industrial areas such as the Rath and CMC Brownfield sites • Creating partnerships that result in neighborhood residents getting the necessary training and education to qualify for the new jobs that are being created • Recruitment and/or creation of additional small businesses and services to the area In order to continue to pursue these objectives aimed at increasing the economic vitality of Waterloo's east side,the Highway 63 Gateway CDC will use the grant from Elk Run Energy to support the important initiatives outlined above for both operations and to provide matching funds for additional grant applications. The CDC plans to apply for targeted grants to help fund community and economic development project costs, including property assembly and capital costs.