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HomeMy WebLinkAboutFDP CD, LLC - (RECORDED) DA w_MAA - 622 & 715 Mulberry St - 12.2.2024 2 2025-01742 RECORDED:02/06/2025 02:13:29 PM RECORDING FEE:$142.00 REVENUE TAX:$ COMBINED FEE:$142.00 SANDIE L.SMITH,RECORDER BLACK HAWK COUNTY,IOWA C. L4 Prepared by Christopher S Wendland PO Box 596 Waterloo IA 50704 Phone(3191 234-5701 DEVELOPMENT AGREEMENT This Development Agreement(the"Agreement")is entered into as of -)c'cx+ti.hcr"Z- ,2024,by and between FDP CD, L.L.C.(the"Company")and the City of Waterloo,Iowa(the"City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa,as amended(the"Urban Renewal Act"),City is engaged in carrying out urban renewal project activities in an area known as the Downtown Waterloo Urban Renewal and Redevelopment Area("Urban Renewal Area"). B. Company is willing and able to finance and undertake renovation of existing structures and make related improvements on properties legally described on Exhibit"A-2"attached hereto(the"Property")located in the Urban Renewal Area at 622 Mulberry Street and 715 Mulberry Street. C. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal,and the City further believes that the project is in the vital and best interests of the City and that the project and such incentives are in accordance with the public purposes and provisions of applicable State and local laws and requirements under which the project has been undertaken and is being assisted. AGREEMENT NOW,THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Development Property. On a date mutually acceptable to the parties, anticipated to be within 180 days after the date of this Agreement, but after satisfaction or waiver of any contingencies set forth herein, the parties shall close on the transactions described in paragraphs 1.D and 1.E below. A. Due Diligence. Each party shall complete its due diligence and feasibility reviews within 70 days after the date of this Agreement (the "Review Period"), and either party may terminate this Agreement for any reason on or before the last day of the Review Period. Each party shall allow the other party, its employees, contractors and agents, reasonable access for inspection or investigative purposes, provided that such activities minimize disruptions to business operations. B. Conveyance and Property Condition. At closing, each party shall deliver its respective property to the other party in the as-is condition of such property for the sum of$1.00. Conveyance shall be by special warranty deed, free and clear of all encumbrances arising by or through the transferor except: (a) easements, servitudes, conditions and restrictions of record; (b) general utility and right-of-way easements serving the property conveyed; and (c) restrictions imposed by the City zoning ordinances and other applicable law. Neither party makes, and hereby expressly disclaims, any representation or warranty as to the condition of the property it is conveying to the other party or the suitability of such property for the purposes of the other party. C. Title. Each party shall, at its own expense, prepare an updated abstract of title for the property that it will convey to the other party, or in lieu thereof the transferee may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to the proposed transferee, and if the conveying party does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from the other party, then the proposed transferee may terminate this Agreement without further obligation and return the abstract of title to the property owner. D. Conveyance by Company. Company shall convey to City the real property described on Exhibit "A-1" attached hereto, locally known as 100 E. 4th Street, Waterloo, Iowa. (the "Company Property"). Real property taxes and assessments against the Company Property shall be prorated as of the closing date, but taxes shall not be prorated with respect to any period after the closing date. E. Conveyance by City: Lease Back. City shall convey the Property to Company, subject to a new easement to be entered into by the parties with respect to the public safety communications tower and related facilities on the Property at 715 Mulberry Street. At closing, the parties shall also enter into an agreement (the "Leaseback") by which City will lease the Property from Company for a period of no less than 10 months, at a rate of$1.00. The Leaseback shall 2 contain such terms and conditions to which the parties shall mutually agree, including but not limited to City's continued use of the Property in substantially the same manner as it uses the Property before closing, City's right to extend the Leaseback term on a month-by-month basis for up to three (3) additional months, and City's right to remove all furniture, furnishings and equipment from the Property. Such Leaseback shall also provide for the City to be responsible for all expenses associated with its use of the Property, including but not limited to utilities and other services. The City shall maintain its own insurance for both general liability and personalty, on terms acceptable to both parties. F. Upon closing, the City shall assign all contracts and warranties related to the property to Company, except such contracts and warranties that Company may decline in its sole discretion. 2. Improvements by Company. After City vacates the Property, City shall (a) remove from the Property and properly dispose of all debris and furnishings, fixtures and other personal property not wanted by Company. Company shall rehabilitate the existing structures on the Property in accordance with a redevelopment plan as set forth in Section 3, and make other improvements to the building and grounds, including but not limited to parking, streetscaping, landscaping, storm water, paving and signage improvements (collectively, the "Improvements"). City represents and warrants that it has no knowledge of hazardous materials or environmental hazards on the Property, except as disclosed to Company prior to execution of this Agreement, and that City is in compliance with all rules, regulations and laws regarding these matters, whether municipal, county, state or federal, City shall defend, indemnify and hold harmless Company from any claims, damages, losses, liabilities, costs or expenses, including attorney fees and litigation expenses incurred by Company, which relate in any way to hazardous materials or environmental hazards, or violations of the above-referenced rules, regulations and laws, except for hazardous materials or environmental hazards that are uncovered or released by Company in the course of its work, such as by but not limited to the removal of floor tiles. The Improvements shall be constructed in accordance with the terms of this Agreement, the Plan, and with all applicable City, state, and federal building codes, shall comply with all applicable City ordinances and other applicable law, and shall be of a scope and scale as described in the Plans. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully constructed. The Property, the Improvements, and all other work to make the project site usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project." Studies undertaken by City indicate that an amount at least equal to the Grant (defined below) would be required to be spent to make improvements to the Property and to undertake related development activities of the scope and scale contemplated by this Agreement, and accordingly the Grant is a sum that bears a reasonable relationship to minimum expected Project costs. 3 3. Construction Plans. Company agrees that it will cause the Improvements to be constructed on the Property in conformance with construction plans (the "Plans") that will be submitted to the City before Company commences any redevelopment activity. Company agrees that the scope and scale of the Improvements to be constructed shall not be significantly less than the scope and scale of such improvements as detailed and outlined in the Plans. If any material modification in the scope, scale or nature of the Plans is proposed after the initial approval of same, Company shall submit modified Plans (the "Modified Plans") to the City for review. Modified Plans shall be subject to approval by the City as provided in this Section. City shall approve the modified Plans in writing if: (a) the Modified Plans conform to the terms and conditions of this Agreement; (b) the Modified Plans conform to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations and City permit and design review requirements; (d) the Modified Plans are adequate for purposes of this Agreement to provide for the construction of the Improvements, and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Plans or Modified Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Plans or Modified Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Plans or Modified Plans must be rejected in writing by City within thirty (30) days of submission or shall be deemed to have been approved by the City. If City rejects the Plans or Modified Plans in whole or in part, Company shall submit new or corrected Plans or Modified Plans within thirty (30) days after receipt by Company of written notification of the rejection, accomplished by a written statement of the City specifying the respects in which Company's Plans or Modified Plans fail to conform to the requirements of this Section. The provisions of this Section relating to approval, rejection and resubmission of corrected Plans or Modified Plans shall continue to apply until they have been approved by the City; provided, however, that in any event Company shall submit Plans or Modified Plans which are approved by City prior to commencement of construction of additional or modified Improvements. Approval of the Plans or Modified Plans by the City shall not relieve Company of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for purposes of this Agreement and shall not constitute approval for any other City purpose nor subject the City to any liability for the Improvements as constructed. 4. Timeliness of Construction; Possibility of Termination. The parties agree that Company's commitment to undertake the Project and to construct the 4 Improvements in a timely manner constitutes a material inducement for the City to offer the incentives provided for in this Agreement, and that without said commitment City would not do so. Company shall have the option to make Improvements to either portion of the Property (designed on Exhibit "A-2" as either the "622 Phase Property" or the "715 Phase Property") in any order that it desires, and the first parcel on which commences Improvements shall be referred to as "Phase 1"and the other parcel shall be referred to as "Phase 2." A. Deadlines to commence and complete. Company must obtain a building permit and begin construction of the Phase 1 Improvements within four (4) years after the date on which City fully vacates the Property (the "Phase 1 Start Date") and Substantially Complete construction within fourteen (14) months thereafter (the "Phase 1 Completion Deadline"). The parties shall confirm the Phase 1 Start Date in writing. Company must obtain a building permit and begin construction of the Phase 2 Improvements within twelve (12) months after the Phase 1 Improvements have been Substantially Completed (the "Phase 2 Start Date"), and Company must Substantially Complete construction of Phase 2 Improvements within fourteen (14) months after the Phase 2 Start Date (the "Phase 2 Completion Deadline"). Company's adherence to the deadlines set forth in this paragraph is an essential condition in order for Company to qualify for the property tax rebates described in Section 9 below. For purposes of this Agreement, "Substantially Completed" 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 also that the City has verified that any Project element for which no permit was necessary has been substantially completed to City's reasonable satisfaction. All deadlines are subject to Unavoidable Delays as defined in paragraph 4.8 below. The City's Community Planning and Development Director may, but shall not be required to, consent to two extensions of time of up to six (6) months each 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. If Company does not commence or Substantially Complete construction of each phase of the Improvements on the schedule stated above, then City may terminate this Agreement as set forth in Section 18, and City shall then have no further obligation under this Agreement. If a phase of Improvements is begun but 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 a party hereto (each an "Unavoidable Delay"), the requirement that construction be completed by the applicable Completion Deadline shall be tolled for a period of time equal to the period of Unavoidable Delay. Company shall promptly deliver to City a written notice of any Unavoidable Delay affecting Company, including a description of same and its expected period of duration, and upon cessation of the Unavoidable Delay the Company shall promptly provide to City a written notice of same. If City terminates this Agreement as provided in Section 18, City shall have no further obligations to Company under this Agreement, including but not limited to 5 any legal or equitable obligation to reimburse Company for any costs expended by Company with respect to the Project. 5. Utilities. Company will be responsible for extending water, sewer, telephone, telecommunications, electricity, gas and other utility services to any location on the Property and for payment of any associated connection fees. 6. Development Grants; City Bonds; Deposit. A. At closing, City will pay Company a grant of$6,200,000.00 (the "Grant"), subject to City's prior completion of legal processes to authorize and sell general obligation bonds (the "City Bonds") to fully fund, at minimum, the amount of the Grant plus payment of all normal and customary bond issuance costs. The Grant shall be funded only and solely from the proceeds of the City Bonds and shall not be payable in any manner by general taxation or from any other City funds. The parties further acknowledge and agree that the City Bonds shall be sold at such times, on such terms and conditions, bear such interest rates, mature at such times and in such amounts as the City, in its sole. discretion, shall determine to be acceptable to it. The City's obligation to issue the City Bonds and make the Grant as described in this Section shall be subject in all respects to Unavoidable Delays affecting City, the provisions of this Section, and to the satisfaction of all conditions and procedures required (in the judgment of bond counsel for the City) by Iowa Code Chapters 384 and 403 with respect to the issuance of the City Bonds, including but not limited to the holding of all required public hearings relating to the same. B. The parties acknowledge that the Property is currently exempt from property tax but will become subject to tax upon conveyance to Company. Due to the extended period that Company has to Substantially Complete Phase 1 and Phase 2 Improvements, the parties agree that property tax support to Company during the development period is necessary for the economic viability of the Project. With respect to the period starting with conveyance of the Property to Company and ending with Year One (defined in Section 8 below) for purposes of Rebate payments, City will make to Company an annual grant (a "Tax Support Grant") equal to the amount of Tax Increment (defined in Section 9.0 below) collected by City with respect to the Property. The payment of each Tax Support Grant is subject to the same terms and conditions that are applicable to payment of Rebates as set forth in Sections 9 and 10, and further subject to Company's prior payment of property taxes. City shall remit payment of a Tax Support Grant to Company within sixty (60) days after Tax Increment for a given Fiscal Year is received in the City's account that is maintained for such purpose. C. Within thirty (30) days after the date of this Agreement, City shall make a deposit of$200,000.00 to Company. The deposit shall be credited toward the Grant if City pays the full remaining amount of the Grant to Company within 180 days of closing. In the event, for any reason, that City does not pay the full remaining amount of the Grant to Company within 180 days of closing, 6 then the deposit shall be refunded to City in full and Company shall have the option to terminate this Agreement without further obligation. 7. Minimum Assessment Agreement. Company acknowledges and agrees that it will pay when due all taxes and assessments, general or special, and all other charges whatsoever levied upon or assessed or placed against the Property. Company further agrees that prior to the date set forth in Section 2 of the Minimum Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or cause a reduction in the taxable valuation for the Property as improved pursuant to this Agreement, which shall be fixed for assessment purposes, below the amount of $4,500,000.00 for the 715 Phase Property (the "715 Phase Minimum Actual Value"), or below the amount of$2,100,000.00 for the 622 Phase Property (the "622 Phase Minimum Actual Value") through: (a) willful destruction of the Property, the Improvements, or any part of either; (b) a request to the assessor of Black Hawk County; or (c) any proceedings, whether administrative, legal, or equitable, with any administrative body or court within the City, Black Hawk County, the State of Iowa, or the federal government. No later than the date that Company obtains a building permit for the respective phase of Improvements, Company shall execute and deliver to City an MAA for such phase that reflects the corresponding Minimum Actual Value. 8. Tax Rebates. Provided that Company has Substantially Completed the phase Improvements before the applicable 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 of$0.00. Rebates shall be payable separately with respect to each of the 622 Phase Property and the 715 Phase Property. 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 approve a properly 7 completed application for a Rebate within sixty (60) days after timely submission of the application to City. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500.00. Rebates shall not be paid based on any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. The first Fiscal Year in respect of which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which the assessment is based upon the completed value of the respective phase Improvements and not based on a prior Fiscal Year for which the assessment is based solely upon (x) the value of the phase Property, or upon (y) the value of the phase Property and a partial value of the phase Improvements due to partial completion of such Improvements or a partial Fiscal Year. As an example of the above provision, in the event all Improvements on the 715 Phase Property are Substantially Completed prior to January 1, 2030 and the 715 Phase Property and Improvements are assessed as fully completed based on the Plans, as may be revised, the property taxes that would be assessed based on the January 1, 2030 assessed value would be for the Fiscal Year ending June 30, 2032, with the taxes payable one-half by September 30, 2031 and one-half by March 31, 2032, then the first Rebate could be applied for after March 31, 2032 and prior to April 1, 2033. 9. 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. 8 B. Notwithstanding the provisions of Section 8 hereof, City shall have no obligation to make a payment of a Rebate to Company if at any time during the term hereof City fails to appropriate funds for payment; City receives an opinion from its legal counsel to the effect that the use of Tax Increments resulting from the Property and Improvements to fund a Rebate payment to Company, as contemplated under Section 8 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 8, 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. 10. 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, 9 on or before each Rebate payment date, of each of the following conditions precedent: (i) The representations and warranties made by Company in Section 13 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. 11. 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 applicable MAA termination date to maintain, as applicable, builder's risk, property damage, and liability insurance coverages with respect to the Improvements in such amounts as are customarily carried by like organizations engaged in activities of comparable size and liability exposure, and shall provide evidence of such coverages to the City upon request. B. Until the Improvements are Substantially Completed, Company shall make such reports to City, in such detail and at such times as may be reasonably requested by City, as to the actual progress of Company with respect to construction of the Improvements. C. During construction of the Improvements and thereafter until the MAA termination date Company will cooperate fully with 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. 10 E. Until the applicable MAA termination date Company will maintain, preserve and keep the Property, including but not limited to the Improvements, in good repair and working order, ordinary wear and tear excepted. F. The phase Property will have a taxable value as set forth in the applicable MAA and any amendments thereto, and Company agrees that the minimum actual value of the phase Property and completed Improvements as stated in the applicable MAA and any amendments thereto will be a reasonable estimate of the actual value of the phase Property and Improvements for ad valorem property tax purposes. Company agrees that it will spend enough in construction of the Improvements that, when combined with the value of the phase Property and related site improvements, will equal or exceed the assessor's minimum actual value for the phase Property and 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 or any interest therein that would cause the Property or any part thereof to be classified as exempt from taxation or subject to centralized assessment or taxation by the State of Iowa. H. Company shall pay, or cause to be paid, when due, all real property taxes and assessments payable with respect to any and all parts of the Property conveyed to it. Company agrees that (1) it will not seek administrative review or judicial review of the applicability or constitutionality of any Iowa tax statute or regulation relating to the taxation of real property included within the Property that is determined by any tax official to be applicable to the Property or to Company, or raise the inapplicability or constitutionality of any such tax statute or regulation as a defense in any proceedings of any type or nature, including but not limited to delinquent tax proceedings, and (2) it will not seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other state law, of the taxation of real property included within the Property. Until the Improvements are Substantially Completed, Company will not wind up or dispose of all or substantially all of its assets. 12. 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. 11 13. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. It has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under this Agreement. B. This Agreement has been duly and validly executed and delivered by 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. F. Company reasonably expects that construction of the Improvements will require a total investment of no less than the Grant amount, and Company would not undertake its obligations under this Agreement without City's payment of the Grant and without City furnishing the other incentives provided for herein. 14. Indemnification and Releases. A. Company hereby releases City, its elected officials, officers, employees, and agents (collectively, the "indemnified parties") from, covenants 12 and agrees that the indemnified parties shall not be liable for, and agrees to indemnify, defend and hold harmless the indemnified parties against, any loss or damage to property or any injury to or death of any person occurring at or about the Property arising after Company's acquisition of the same or resulting from any defect in the Improvements, except for such claims as arise during the Leaseback term that are not attributable to the negligent acts or omissions or willful misconduct of Company, its employees, contractors or agents. After expiration of the Leaseback term, the indemnified parties shall not be liable for any damage or injury to the persons or property of Company or its managers, officers, employees, contractors or agents, or any other person who may be about the Property or the Improvements, due to any act of negligence or willful misconduct of any person, other than any act of negligence or willful misconduct on the part of any such indemnified party or its officers, employees or agents. B. Except for any willful misrepresentation, any willful misconduct, or any unlawful act of the indemnified parties, Company agrees to protect and defend the indemnified parties, now or forever, and further agrees to hold the indemnified parties harmless, from any claim, demand, suit, action or other proceedings or any type or nature whatsoever by any person or entity whatsoever that arises or purportedly arises from (1) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by Company against the City to enforce its rights under this Agreement), or (2) the acquisition and condition of the Property and the construction, installation, ownership, and operation of the Improvements, or (3) any hazardous substance or environmental contamination located in or on the Property other than those caused, released or discharged during the Leaseback term. C. The provisions of this Section shall survive the expiration or termination of this Agreement. 15. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of all procedures, hearings and approvals deemed necessary by City or its legal counsel for amendment of the urban renewal plan applicable to the Property and/or Project area, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type provided by City hereunder within said 180-day period is subject to reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 16. Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property or this Agreement prior 13 to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City, which shall not be unreasonably withheld but subject to the assignee's or transferee's assumption of Company's obligations under this Agreement. The preceding prohibition against assignment shall not be applicable to any assignment made which relates to a transaction involving financing by the Company 17. Default. The following shall be "Events of Default" under this Agreement, and the term "Event of Default" shall mean any one or more of the following events that continues beyond any applicable cure periods: A. Failure by Company to cause the construction of the Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, any part of the Property, or this Agreement, without the prior written consent of City; C. Failure by Company to pay, before delinquency, all ad valorem property taxes levied on or against any of the Property; D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; (4) is adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of Company as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Company, or part thereof, shall be appointed in any proceedings brought against Company and shall not be discharged within ninety (90) days after such appointment, or if Company shall consent to or acquiesce in such appointment; or (5) defaults under any mortgage applicable to any of Property. F. Any representation or warranty made by Company in this Agreement, or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 14 18. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may (1) terminate this Agreement or (2) suspend its performance under this Agreement until it receives assurances from Company, deemed adequate by City, that Company will cure its default and continue its performance under 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, including but not limited to the Grant. If Company becomes obligated to repay the Grant or any portion thereof, it shall be liable for interest on such sum at the rate of 6% per annum, calculated from the date of original disbursement of the Grant by City. 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 of any party 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 previous, concurrent or subsequent default and shall not impair any such right or power. D. Legal Fees. In the event any suit, action or proceeding is brought by any party to establish, obtain or enforce any rights under this Agreement or for the breach of any warranty, representation, covenant, term or condition hereof, the prevailing party in such suit, action or proceeding, including an appeal to an appellate court arising therefrom, shall be entitled to recover reasonable attorneys' fees in addition to costs. For purposes of this paragraph prevailing party shall mean the party in whose favor any final, non-appealable judgment is entered. 19. Materiality of Company's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth 15 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. 20. Performance by City. Company acknowledges and agrees that all of the obligations of City under this Agreement shall be subject to, and performed by City in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with City's lawful authority. All covenants, stipulations, promises, agreements and obligations of City contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City and not of any governing body member, officer, employee or agent of City in the individual capacity of such person. 21. 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. 22. 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, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at 201 N. Harrison Street, Suite 402, Davenport, Iowa 52801, 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, or (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. A party may change the address for giving notice by any method set forth in this Section. 23. 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. 16 24. 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. 25. Severability; Reformation. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 26. 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. 27. 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. 28. 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. 29. Binding Effect and Intended Assignments. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. Notwithstanding any other provision herein, the parties agree that at any time before or after closing, Company shall have the right to assign its rights under this Agreement to other affiliated entities that are wholly or in part by Rodney Blackwell, along with title to the Property. In the event of such assignment, 17 the assignee entity shall have the same rights and obligations as Company, and City shall also have the same rights and responsibilities with respect to each such assignee entity. Company shall notify City in writing of any such assignment within ten (10) business days after the occurrence of same, and the parties shall record appropriate evidence of same in the public land records. 30. 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. 31. 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. 32. 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. [signatures on next page] 18 CITY OF WATERLOO, IOWA FDP CD, L.L.C. By: L .Ut~.1ui—c--(-%0' y. Gam- —. Quentin M. Hart, Mayor Rodney A. Blackwell Managing Member Attest ` Kelley Felchle, ity Clerk 19 EXHIBIT "A-1" Legal Description of Company Property Tract 1: Lot 9, except the Northwesterly 40 feet in width thereof, Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 2: The Northwest 40 feet of Lot 9, Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 3: The Southeasterly 55 feet of Lot 10, Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 4: That part of vacated Water Street lying between the Southeasterly line of Fourth Street and the Northwesterly line of Fifth Street as established by extending the Northwesterly and the Southeasterly line of Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 5: All that part of a tract of land in the fractional block opposite Block 3 between Water Street and the Cedar River and between Fourth Street and Fifth Street, Original Plat East Waterloo, Iowa, which is described as follows: Commencing at the most Southerly corner of Block 3, Original Plat of East Waterloo, Black Hawk County, Iowa; thence Southwesterly along the Southeasterly line of said Block 3 extended 49.5 feet to the Easterly corner of fractional block opposite said Block 3 and the point of beginning: thence continuing southwesterly 104.92 feet along said extension, said line being the Northwesterly line of 5th Street; thence Northwesterly parallel with Water Street, 83.5 feet; thence Northeasterly parallel with 5th Street, 38.0 feet; thence Northwesterly parallel with Water Street, 23.0 feet; thence Northeasterly parallel with 5th Street, 66.92 feet to the Southwest line of Water Street; thence Southeasterly along said line, 106.50 feet to the point of beginning, except that part lying within the following described parcel: Commencing at the point of intersection of the extension of the Northwest line of Block 3, Original Plat of East Waterloo and the Southwest line of Water Street; thence North 48 degrees, 15 minutes West, 3 .10 feet to the extension of the Southeast line of Fourth Street Bridge, said Southeast line of the bridge being parallel to and 28.5 feet from the center line of said concrete bridge; thence Southwesterly 78.25 feet along said Southeast line of the bridge to the Southwesterly face of the old stone wall connecting the bridge and the foundation of the old Mill Company building; thence along the Southwest face of the wall connecting the bridge with the Mill Company building to the Westerly corner of the old Mill Building, said point being South 41 degrees 27 minutes West, 89.85 feet and North 47 degrees 49 minutes West 2.0 feet from the place of beginning; thence South 4 7 degrees 49 minutes East 62.0 along the line of the old Mill Company building to the intersection with the River Front line as established by decree of the District Court of Black Hawk County; thence South 45 degrees 36 minutes East 138.6 feet along said River Front line to the point of intersection of said line with the North line of a certain private alley deeded to the Corn Belt Telephone Company in 61 TLD 119, said point being 106.5 feet Northwest of Fifth Street and 96.67 feet from Water Street; thence North 41 degrees 29 minutes East, 96.67 feet parallel with the Northwest line of Fifth Street, to the Southwesterly line of Water Street; thence North 48 degrees 15 minutes West, 198.6 feet to the point of beginning. 1 Tract 6: All that part of a tract of land in the fractional block opposite Block 3 between Water Street and the Cedar River and between Fourth Street and Fifth Street, Original Plat East Waterloo, Iowa, which is described as follows: Commencing at the point of intersection of the extension of the Northwest fine of Block 3, Original Plat of East Waterloo and the Southwest line of Water Street; thence North 48 degrees, 15 minutes West, 3 .10 feet to the extension of the Southeast line of Fourth Street Bridge, said Southeast line of the bridge being parallel to and 28.5 feet from the center line of said concrete bridge; thence Southwesterly 78.25 feet along said Southeast line of the bridge to the Southwesterly face of the old stone wall connecting the bridge and the foundation of the old Mill Company building; thence along the Southwest face of the wall connecting the bridge with the Mill Company building to the Westerly corner of the old Mill Building, said point being South 41 degrees 27 minutes West, 89.85 feet and North 47 degrees 49 minutes West 2.0 feet from the place of beginning; thence South 4 7 degrees 49 minutes East 62.0 along the line of the old Mill Company building to the intersection with the River Front line as established by decree of the District Court of Black Hawk County; thence South 45 degrees 36 minutes East 138.6 feet along said River Front line to the point of intersection of said line with the North line of a certain private alley deeded to the Corn Belt Telephone Company in 61 TLD 119, said point being 106.5 feet Northwest of Fifth Street and 96,67 feet from Water Street; thence North 41 degrees 29 minutes East, 96.67 feet parallel with the Northeast line of Fifth Street, to the Southwesterly line of Water Street; thence North 48 degrees 15 minutes West, 198.6 feet to the point of beginning, that lies within the following described parcel: Commencing at the most Southerly corner of Block 3, Original Plat of East Waterloo, Black Hawk County, Iowa; thence Southwesterly along the Southeasterly line of said Block 3 extended, 49.5 feet to the Easterly corner of fractional block opposite said Block 3 and the point of beginning: thence continuing southwesterly 104.92 feet along said extension, said line being the Northwesterly line of 5th Street; thence Northwesterly parallel with Water Street, 83.5 feet; thence Northeasterly parallel with 5th Street, 38.0 feet; thence Northwesterly parallel with Water Street, 23.0 feet; thence Northeasterly parallel with 5th Street, 66.92 feet to the Southwest line of Water Street; thence Southeasterly along said line, 106.50 feet to the point of beginning. Tract 7: The Northwesterly eighty and five tenths (80.5) feet of Lot Ten (10), Block Three (3), Original Plat on the east side of the Cedar River in the City of Waterloo, Black Hawk County, Iowa. Tract 8: The Northwesterly thirteen and sixty-six hundredths (13.66) feet of the Southeasterly sixty-eight and sixty-six hundredths (68.66) feet of Lot Ten (10), Block Three (3), Original Plat on the east side of Cedar River in City of Waterloo, Black Hawk County, Iowa. 2 EXHIBIT "A-2" Legal Description of City Property Phase 622 Property Original Plat Waterloo East, Lots 1 and 4, Block 28, except Southwest 28 feet of Lot 4, Phase 715 Property Original Plat Waterloo East, Lots 1 through 10, Block 40. 1 EXHIBIT "B" Form of MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of , by and among the CITY OF WATERLOO, IOWA ("City"), and , L.L.C. ("Company"). 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 "City Property"), described in Exhibit "A-2" thereto as the [622 or 715] Phase 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 Downtown Waterloo Urban Renewal and Redevelopment Plan area, including the construction of certain improvements as described in the Development Agreement (the "Minimum Improvements") on the City 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 City 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 expects to authorize the issuance of general obligation bonds, the proceeds of which will be used to fund an economic development grant to the Company (the "City Bonds"), the principal of and interest on which City Bonds are expected to be paid in part from the real property taxes paid with respect to the City Property and the Minimum Improvements located thereon. WHEREAS, the City and the Assessor of Black Hawk County, Iowa (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 City Property and Minimum Improvements to be 1 constructed thereon by Company as a part of the Project shall not be less than $ (the "Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Minimum Improvements will be substantially completed by the date set forth in the Development Agreement, and in any case if the Minimum Improvements are not substantially completed by December 31, 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, [date 30 years after date stated in Section 1]. 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 City 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 City 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 City Property or the Minimum Improvements, any interruption in, or discontinuance of, the use, occupancy, ownership or operation of the City 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 City 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 2 contained as a part of the City Property or the Minimum Improvements determined by any tax official to be applicable to the City Property or the Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; or (b) seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other state law, of the taxation of real property, including improvements and fixtures thereon, contained in the City 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 [Company name] By: By: Mayor Rodney A. Blackwell Managing Member City lerk STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) On this day of , before me, a Notary Public in and for the State of Iowa, personally appeared and to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said municipal corporation, and that said instrument was signed and sealed on behalf of said municipal corporation by authority and resolution of its City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said municipal corporation by it and by them voluntarily executed. BRITNI C PERKINS No - • P Mic * y COMMISSION NO.845529 * * MY COMMISSION EXPIRES iowA JANUARY 27,2026 I 1 4 STATE OF IOWA ) ) ss. COUNTY ) Subscribed and sworn to before me on , by Rodney A. Blackwell as Managing Member of [company name]. Notary Public 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 Million Hundred Thousand and 00/100 Dollars ($ .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 , by T.J. Koenigsfeld, Assessor for Black Hawk County, Iowa. Notary Public 1 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 Le -mhee 2- , 2024, by and between FDP CD, L.L.C. (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known as the Downtown Waterloo Urban Renewal and Redevelopment Area ("Urban Renewal Area"). B. Company is willing and able to finance and undertake renovation of existing structures and make related improvements on properties legally described on Exhibit "A-2" attached hereto (the"Property") located in the Urban Renewal Area at 622 Mulberry Street and 715 Mulberry Street. C. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal, and the City further believes that the project is in the vital and best interests of the City and that the project and such incentives are in accordance with the public purposes and provisions of applicable State and local laws and requirements under which the project has been undertaken and is being assisted. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Development Property. On a date mutually acceptable to the parties, anticipated to be within 180 days after the date of this Agreement, but after satisfaction or waiver of any contingencies set forth herein, the parties shall close on the transactions described in paragraphs 1.D and 1.E below. A. Due Diligence. Each party shall complete its due diligence and feasibility reviews within 70 days after the date of this Agreement (the "Review Period"), and either party may terminate this Agreement for any reason on or before the last day of the Review Period. Each party shall allow the other party, its employees, contractors and agents, reasonable access for inspection or investigative purposes, provided that such activities minimize disruptions to business operations. B. Conveyance and Property Condition. At closing, each party shall deliver its respective property to the other party in the as-is condition of such property for the sum of$1.00. Conveyance shall be by special warranty deed, free and clear of all encumbrances arising by or through the transferor except: (a) easements, servitudes, conditions and restrictions of record; (b) general utility and right-of-way easements serving the property conveyed; and (c) restrictions imposed by the City zoning ordinances and other applicable law. Neither party makes, and hereby expressly disclaims, any representation or warranty as to the condition of the property it is conveying to the other party or the suitability of such property for the purposes of the other party. C. Title. Each party shall, at its own expense, prepare an updated abstract of title for the property that it will convey to the other party, or in lieu thereof the transferee may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to the proposed transferee, and if the conveying party does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from the other party, then the proposed transferee may terminate this Agreement without further obligation and return the abstract of title to the property owner. D. Conveyance by Company. Company shall convey to City the real property described on Exhibit "A-1" attached hereto, locally known as 100 E. 4th Street, Waterloo, Iowa. (the "Company Property"). Real property taxes and assessments against the Company Property shall be prorated as of the closing date, but taxes shall not be prorated with respect to any period after the closing date. E. Conveyance by City: Lease Back. City shall convey the Property to Company, subject to a new easement to be entered into by the parties with respect to the public safety communications tower and related facilities on the Property at 715 Mulberry Street. At closing, the parties shall also enter into an agreement (the "Leaseback") by which City will lease the Property from Company for a period of no less than 10 months, at a rate of$1.00. The Leaseback shall 2 contain such terms and conditions to which the parties shall mutually agree, including but not limited to City's continued use of the Property in substantially the same manner as it uses the Property before closing, City's right to extend the Leaseback term on a month-by-month basis for up to three (3) additional months, and City's right to remove all furniture, furnishings and equipment from the Property. Such Leaseback shall also provide for the City to be responsible for all expenses associated with its use of the Property, including but not limited to utilities and other services. The City shall maintain its own insurance for both general liability and personalty, on terms acceptable to both parties. F. Upon closing, the City shall assign all contracts and warranties related to the property to Company, except such contracts and warranties that Company may decline in its sole discretion. 2. Improvements by Company. After City vacates the Property, City shall (a) remove from the Property and properly dispose of all debris and furnishings, fixtures and other personal property not wanted by Company. Company shall rehabilitate the existing structures on the Property in accordance with a redevelopment plan as set forth in Section 3, and make other improvements to the building and grounds, including but not limited to parking, streetscaping, landscaping, storm water, paving and signage improvements (collectively, the "Improvements"). City represents and warrants that it has no knowledge of hazardous materials or environmental hazards on the Property, except as disclosed to Company prior to execution of this Agreement, and that City is in compliance with all rules, regulations and laws regarding these matters, whether municipal, county, state or federal. City shall defend, indemnify and hold harmless Company from any claims, damages, losses, liabilities, costs or expenses, including attorney fees and litigation expenses incurred by Company, which relate in any way to hazardous materials or environmental hazards, or violations of the above-referenced rules, regulations and laws, except for hazardous materials or environmental hazards that are uncovered or released by Company in the course of its work, such as by but not limited to the removal of floor tiles. The Improvements shall be constructed in accordance with the terms of this Agreement, the Plan, and with all applicable City, state, and federal building codes, shall comply with all applicable City ordinances and other applicable law, and shall be of a scope and scale as described in the Plans. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully constructed. The Property, the Improvements, and all other work to make the project site usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project." Studies undertaken by City indicate that an amount at least equal to the Grant (defined below) would be required to be spent to make improvements to the Property and to undertake related development activities of the scope and scale contemplated by this Agreement, and accordingly the Grant is a sum that bears a reasonable relationship to minimum expected Project costs. 3 3. Construction Plans. Company agrees that it will cause the Improvements to be constructed on the Property in conformance with construction plans (the "Plans") that will be submitted to the City before Company commences any redevelopment activity. Company agrees that the scope and scale of the Improvements to be constructed shall not be significantly less than the scope and scale of such improvements as detailed and outlined in the Plans. If any material modification in the scope, scale or nature of the Plans is proposed after the initial approval of same, Company shall submit modified Plans (the "Modified Plans") to the City for review. Modified Plans shall be subject to approval by the City as provided in this Section. City shall approve the modified Plans in writing if: (a) the Modified Plans conform to the terms and conditions of this Agreement; (b) the Modified Plans conform to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations and City permit and design review requirements; (d) the Modified Plans are adequate for purposes of this Agreement to provide for the construction of the Improvements, and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Plans or Modified Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Plans or Modified Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Plans or Modified Plans must be rejected in writing by City within thirty (30) days of submission or shall be deemed to have been approved by the City. If City rejects the Plans or Modified Plans in whole or in part, Company shall submit new or corrected Plans or Modified Plans within thirty (30) days after receipt by Company of written notification of the rejection, accomplished by a written statement of the City specifying the respects in which Company's Plans or Modified Plans fail to conform to the requirements of this Section. The provisions of this Section relating to approval, rejection and resubmission of corrected Plans or Modified Plans shall continue to apply until they have been approved by the City; provided, however, that in any event Company shall submit Plans or Modified Plans which are approved by City prior to commencement of construction of additional or modified Improvements. Approval of the Plans or Modified Plans by the City shall not relieve Company of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for purposes of this Agreement and shall not constitute approval for any other City purpose nor subject the City to any liability for the Improvements as constructed. 4. Timeliness of Construction; Possibility of Termination. The parties agree that Company's commitment to undertake the Project and to construct the 4 Improvements in a timely manner constitutes a material inducement for the City to offer the incentives provided for in this Agreement, and that without said commitment City would not do so. Company shall have the option to make Improvements to either portion of the Property (designed on Exhibit "A-2" as either the "622 Phase Property" or the "715 Phase Property") in any order that it desires, and the first parcel on which commences Improvements shall be referred to as "Phase 1" and the other parcel shall be referred to as "Phase 2." A. Deadlines to commence and complete. Company must obtain a building permit and begin construction of the Phase 1 Improvements within four (4) years after the date on which City fully vacates the Property (the "Phase 1 Start Date") and Substantially Complete construction within fourteen (14) months thereafter (the "Phase 1 Completion Deadline"). The parties shall confirm the Phase 1 Start Date in writing. Company must obtain a building permit and begin construction of the Phase 2 Improvements within twelve (12) months after the Phase 1 Improvements have been Substantially Completed (the "Phase 2 Start Date"), and Company must Substantially Complete construction of Phase 2 Improvements within fourteen (14) months after the Phase 2 Start Date (the "Phase 2 Completion Deadline"). Company's adherence to the deadlines set forth in this paragraph is an essential condition in order for Company to qualify for the property tax rebates described in Section 9 below. For purposes of this Agreement, "Substantially Completed" 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 also that the City has verified that any Project element for which no permit was necessary has been substantially completed to City's reasonable satisfaction. All deadlines are subject to Unavoidable Delays as defined in paragraph 4.B below. The City's Community Planning and Development Director may, but shall not be required to, consent to two extensions of time of up to six (6) months each 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. If Company does not commence or Substantially Complete construction of each phase of the Improvements on the schedule stated above, then City may terminate this Agreement as set forth in Section 18, and City shall then have no further obligation under this Agreement. If a phase of Improvements is begun but 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 a party hereto (each an "Unavoidable Delay"), the requirement that construction be completed by the applicable Completion Deadline shall be tolled for a period of time equal to the period of Unavoidable Delay. Company shall promptly deliver to City a written notice of any Unavoidable Delay affecting Company, including a description of same and its expected period of duration, and upon cessation of the Unavoidable Delay the Company shall promptly provide to City a written notice of same. If City terminates this Agreement as provided in Section 18, City shall have no further obligations to Company under this Agreement, including but not limited to 5 any legal or equitable obligation to reimburse Company for any costs expended by Company with respect to the Project. 5. Utilities. Company will be responsible for extending water, sewer, telephone, telecommunications, electricity, gas and other utility services to any location on the Property and for payment of any associated connection fees. 6. Development Grants; City Bonds; Deposit. A. At closing, City will pay Company a grant of$6,200,000.00 (the "Grant"), subject to City's prior completion of legal processes to authorize and sell general obligation bonds (the "City Bonds") to fully fund, at minimum, the amount of the Grant plus payment of all normal and customary bond issuance costs. The Grant shall be funded only and solely from the proceeds of the City Bonds and shall not be payable in any manner by general taxation or from any other City funds. The parties further acknowledge and agree that the City Bonds shall be sold at such times, on such terms and conditions, bear such interest rates, mature at such times and in such amounts as the City, in its sole discretion, shall determine to be acceptable to it. The City's obligation to issue the City Bonds and make the Grant as described in this Section shall be subject in all respects to Unavoidable Delays affecting City,the provisions of this Section, and to the satisfaction of all conditions and procedures required (in the judgment of bond counsel for the City) by Iowa Code Chapters 384 and 403 with respect to the issuance of the City Bonds, including but not limited to the holding of all required public hearings relating to the same. B. The parties acknowledge that the Property is currently exempt from property tax but will become subject to tax upon conveyance to Company. Due to the extended period that Company has to Substantially Complete Phase 1 and Phase 2 Improvements, the parties agree that property tax support to Company during the development period is necessary for the economic viability of the Project. With respect to the period starting with conveyance of the Property to Company and ending with Year One (defined in Section 8 below) for purposes of Rebate payments, City will make to Company an annual grant (a "Tax Support Grant") equal to the amount of Tax Increment (defined in Section 9.0 below) collected by City with respect to the Property. The payment of each Tax Support Grant is subject to the same terms and conditions that are applicable to payment of Rebates as set forth in Sections 9 and 10, and further subject to Company's prior payment of property taxes. City shall remit payment of a Tax Support Grant to Company within sixty (60) days after Tax Increment for a given Fiscal Year is received in the City's account that is maintained for such purpose. C. Within thirty (30) days after the date of this Agreement, City shall make a deposit of$200,000.00 to Company. The deposit shall be credited toward the Grant if City pays the full remaining amount of the Grant to Company within 180 days of closing. In the event, for any reason, that City does not pay the full remaining amount of the Grant to Company within 180 days of closing, 6 then the deposit shall be refunded to City in full and Company shall have the option to terminate this Agreement without further obligation. 7. Minimum Assessment Agreement. Company acknowledges and agrees that it will pay when due all taxes and assessments, general or special, and all other charges whatsoever levied upon or assessed or placed against the Property. Company further agrees that prior to the date set forth in Section 2 of the Minimum Assessment Agreement (the "MAA") attached hereto as Exhibit "B" it will not seek or cause a reduction in the taxable valuation for the Property as improved pursuant to this Agreement, which shall be fixed for assessment purposes, below the amount of $4,500,000.00 for the 715 Phase Property (the "715 Phase Minimum Actual Value"), or below the amount of$2,100,000.00 for the 622 Phase Property (the "622 Phase Minimum Actual Value") through: (a) willful destruction of the Property, the Improvements, or any part of either; (b) a request to the assessor of Black Hawk County; or (c) any proceedings, whether administrative, legal, or equitable, with any administrative body or court within the City, Black Hawk County, the State of Iowa, or the federal government. No later than the date that Company obtains a building permit for the respective phase of Improvements, Company shall execute and deliver to City an MAA for such phase that reflects the corresponding Minimum Actual Value. 8. Tax Rebates. Provided that Company has Substantially Completed the phase Improvements before the applicable 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 of$0.00. Rebates shall be payable separately with respect to each of the 622 Phase Property and the 715 Phase Property. 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 approve a properly 7 completed application for a Rebate within sixty (60) days after timely submission of the application to City. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500.00. Rebates shall not be paid based on any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. The first Fiscal Year in respect of which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which the assessment is based upon the completed value of the respective phase Improvements and not based on a prior Fiscal Year for which the assessment is based solely upon (x) the value of the phase Property, or upon (y) the value of the phase Property and a partial value of the phase Improvements due to partial completion of such Improvements or a partial Fiscal Year. As an example of the above provision, in the event all Improvements on the 715 Phase Property are Substantially Completed prior to January 1, 2030 and the 715 Phase Property and Improvements are assessed as fully completed based on the Plans, as may be revised, the property taxes that would be assessed based on the January 1, 2030 assessed value would be for the Fiscal Year ending June 30, 2032, with the taxes payable one-half by September 30, 2031 and one-half by March 31, 2032, then the first Rebate could be applied for after March 31, 2032 and prior to April 1, 2033. 9. 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. 8 B. Notwithstanding the provisions of Section 8 hereof, City shall have no obligation to make a payment of a Rebate to Company if at any time during the term hereof City fails to appropriate funds for payment; City receives an opinion from its legal counsel to the effect that the use of Tax Increments resulting from the Property and Improvements to fund a Rebate payment to Company, as contemplated under Section 8 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 8, 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. 10. 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, 9 on or before each Rebate payment date, of each of the following conditions precedent: (i) The representations and warranties made by Company in Section 13 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. 11. 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 applicable MAA termination date to maintain, as applicable, builder's risk, property damage, and liability insurance coverages with respect to the Improvements in such amounts as are customarily carried by like organizations engaged in activities of comparable size and liability exposure, and shall provide evidence of such coverages to the City upon request. B. Until the Improvements are Substantially Completed, Company shall make such reports to City, in such detail and at such times as may be reasonably requested by City, as to the actual progress of Company with respect to construction of the Improvements. C. During construction of the Improvements and thereafter until the MAA termination date Company will cooperate fully with 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. 10 E. Until the applicable MAA termination date Company will maintain, preserve and keep the Property, including but not limited to the Improvements, in good repair and working order, ordinary wear and tear excepted. F. The phase Property will have a taxable value as set forth in the applicable MAA and any amendments thereto, and Company agrees that the minimum actual value of the phase Property and completed Improvements as stated in the applicable MAA and any amendments thereto will be a reasonable estimate of the actual value of the phase Property and Improvements for ad valorem property tax purposes. Company agrees that it will spend enough in construction of the Improvements that, when combined with the value of the phase Property and related site improvements, will equal or exceed the assessor's minimum actual value for the phase Property and 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 or any interest therein that would cause the Property or any part thereof to be classified as exempt from taxation or subject to centralized assessment or taxation by the State of Iowa. H. Company shall pay, or cause to be paid, when due, all real property taxes and assessments payable with respect to any and all parts of the Property conveyed to it. Company agrees that (1) it will not seek administrative review or judicial review of the applicability or constitutionality of any Iowa tax statute or regulation relating to the taxation of real property included within the Property that is determined by any tax official to be applicable to the Property or to Company, or raise the inapplicability or constitutionality of any such tax statute or regulation as a defense in any proceedings of any type or nature, including but not limited to delinquent tax proceedings, and (2) it will not seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other state law, of the taxation of real property included within the Property. I. Until the Improvements are Substantially Completed, Company will not wind up or dispose of all or substantially all of its assets. 12. 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. 11 13. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. It has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under this Agreement. B. This Agreement has been duly and validly executed and delivered by 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. F. Company reasonably expects that construction of the Improvements will require a total investment of no less than the Grant amount, and Company would not undertake its obligations under this Agreement without City's payment of the Grant and without City furnishing the other incentives provided for herein. 14. Indemnification and Releases. A. Company hereby releases City, its elected officials, officers, employees, and agents (collectively, the "indemnified parties") from, covenants 12 and agrees that the indemnified parties shall not be liable for, and agrees to indemnify, defend and hold harmless the indemnified parties against, any loss or damage to property or any injury to or death of any person occurring at or about the Property arising after Company's acquisition of the same or resulting from any defect in the Improvements, except for such claims as arise during the Leaseback term that are not attributable to the negligent acts or omissions or willful misconduct of Company, its employees, contractors or agents. After expiration of the Leaseback term, the indemnified parties shall not be liable for any damage or injury to the persons or property of Company or its managers, officers, employees, contractors or agents, or any other person who may be about the Property or the Improvements, due to any act of negligence or willful misconduct of any person, other than any act of negligence or willful misconduct on the part of any such indemnified party or its officers, employees or agents. B. Except for any willful misrepresentation, any willful misconduct, or any unlawful act of the indemnified parties, Company agrees to protect and defend the indemnified parties, now or forever, and further agrees to hold the indemnified parties harmless, from any claim, demand, suit, action or other proceedings or any type or nature whatsoever by any person or entity whatsoever that arises or purportedly arises from (1) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by Company against the City to enforce its rights under this Agreement), or (2) the acquisition and condition of the Property and the construction, installation, ownership, and operation of the Improvements, or (3) any hazardous substance or environmental contamination located in or on the Property other than those caused, released or discharged during the Leaseback term. C. The provisions of this Section shall survive the expiration or termination of this Agreement. 15. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of all procedures, hearings and approvals deemed necessary by City or its legal counsel for amendment of the urban renewal plan applicable to the Property and/or Project area, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type provided by City hereunder within said 180-day period is subject to reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 16. Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property or this Agreement prior 13 to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City, which shall not be unreasonably withheld but subject to the assignee's or transferee's assumption of Company's obligations under this Agreement. The preceding prohibition against assignment shall not be applicable to any assignment made which relates to a transaction involving financing by the Company 17. Default. The following shall be "Events of Default" under this Agreement, and the term "Event of Default" shall mean any one or more of the following events that continues beyond any applicable cure periods: A. Failure by Company to cause the construction of the Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, any part of the Property, or this Agreement, without the prior written consent of City; C. Failure by Company to pay, before delinquency, all ad valorem property taxes levied on or against any of the Property; D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; (4) is adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of Company as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Company, or part thereof, shall be appointed in any proceedings brought against Company and shall not be discharged within ninety (90) days after such appointment, or if Company shall consent to or acquiesce in such appointment; or (5) defaults under any mortgage applicable to any of Property. F. Any representation or warranty made by Company in this Agreement, or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 14 18. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may (1) terminate this Agreement or (2) suspend its performance under this Agreement until it receives assurances from Company, deemed adequate by City, that Company will cure its default and continue its performance under 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, including but not limited to the Grant. If Company becomes obligated to repay the Grant or any portion thereof, it shall be liable for interest on such sum at the rate of 6% per annum, calculated from the date of original disbursement of the Grant by City. 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 of any party 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 previous, concurrent or subsequent default and shall not impair any such right or power. D. Legal Fees. In the event any suit, action or proceeding is brought by any party to establish, obtain or enforce any rights under this Agreement or for the breach of any warranty, representation, covenant, term or condition hereof, the prevailing party in such suit, action or proceeding, including an appeal to an appellate court arising therefrom, shall be entitled to recover reasonable attorneys' fees in addition to costs. For purposes of this paragraph prevailing party shall mean the party in whose favor any final, non-appealable judgment is entered. 19. Materiality of Company's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth 15 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. 20. Performance by City. Company acknowledges and agrees that all of the obligations of City under this Agreement shall be subject to, and performed by City in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with City's lawful authority. All covenants, stipulations, promises, agreements and obligations of City contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City and not of any governing body member, officer, employee or agent of City in the individual capacity of such person. 21. 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. 22. 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, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at 201 N. Harrison Street, Suite 402, Davenport, Iowa 52801, 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, or (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. A party may change the address for giving notice by any method set forth in this Section. 23. 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. 16 24. 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. 25. Severability; Reformation. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 26. 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. 27. 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. 28. 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. 29. Binding Effect and Intended Assignments. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. Notwithstanding any other provision herein, the parties agree that at any time before or after closing, Company shall have the right to assign its rights under this Agreement to other affiliated entities that are wholly or in part by Rodney Blackwell, along with title to the Property. In the event of such assignment, 17 the assignee entity shall have the same rights and obligations as Company, and City shall also have the same rights and responsibilities with respect to each such assignee entity. Company shall notify City in writing of any such assignment within ten (10) business days after the occurrence of same, and the parties shall record appropriate evidence of same in the public land records. 30. 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. 31. 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. 32. 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. [signatures on next page] 18 CITY OF WATERLOO, IOWA FDP CD, L.L.C. r By: f'-) '�- y. Quentin M. Hart, Mayor Rodney A. Blackwell Managing Member Attest�`rX Kelley Felchle, ity Clerk 19 EXHIBIT "A-1" Legal Description of Company Property Tract 1: Lot 9, except the Northwesterly 40 feet in width thereof, Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 2: The Northwest 40 feet of Lot 9, Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 3: The Southeasterly 55 feet of Lot 10, Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 4: That part of vacated Water Street lying between the Southeasterly line of Fourth Street and the Northwesterly line of Fifth Street as established by extending the Northwesterly and the Southeasterly line of Block 3, in the Original Plat on the East side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa. Tract 5: All that part of a tract of land in the fractional block opposite Block 3 between Water Street and the Cedar River and between Fourth Street and Fifth Street, Original Plat East Waterloo, Iowa, which is described as follows: Commencing at the most Southerly corner of Block 3, Original Plat of East Waterloo, Black Hawk County, Iowa; thence Southwesterly along the Southeasterly line of said Block 3 extended 49.5 feet to the Easterly corner of fractional block opposite said Block 3 and the point of beginning: thence continuing southwesterly 104.92 feet along said extension, said line being the Northwesterly line of 5th Street; thence Northwesterly parallel with Water Street, 83.5 feet; thence Northeasterly parallel with 5th Street, 38.0 feet; thence Northwesterly parallel with Water Street, 23.0 feet; thence Northeasterly parallel with 5th Street, 66.92 feet to the Southwest line of Water Street; thence Southeasterly along said line, 106.50 feet to the point of beginning, except that part lying within the following described parcel: Commencing at the point of intersection of the extension of the Northwest line of Block 3, Original Plat of East Waterloo and the Southwest line of Water Street; thence North 48 degrees, 15 minutes West, 3 .10 feet to the extension of the Southeast line of Fourth Street Bridge, said Southeast line of the bridge being parallel to and 28.5 feet from the center line of said concrete bridge; thence Southwesterly 78.25 feet along said Southeast line of the bridge to the Southwesterly face of the old stone wall connecting the bridge and the foundation of the old Mill Company building; thence along the Southwest face of the wall connecting the bridge with the Mill Company building to the Westerly corner of the old Mill Building, said point being South 41 degrees 27 minutes West, 89.85 feet and North 47 degrees 49 minutes West 2.0 feet from the place of beginning; thence South 4 7 degrees 49 minutes East 62.0 along the line of the old Mill Company building to the intersection with the River Front line as established by decree of the District Court of Black Hawk County; thence South 45 degrees 36 minutes East 138.6 feet along said River Front line to the point of intersection of said line with the North line of a certain private alley deeded to the Corn Belt Telephone Company in 61 TLD 119, said point being 106.5 feet Northwest of Fifth Street and 96.67 feet from Water Street; thence North 41 degrees 29 minutes East, 96.67 feet parallel with the Northwest line of Fifth Street, to the Southwesterly line of Water Street; thence North 48 degrees 15 minutes West, 198.6 feet to the point of beginning. 1 Tract 6: All that part of a tract of land in the fractional block opposite Block 3 between Water Street and the Cedar River and between Fourth Street and Fifth Street, Original Plat East Waterloo, Iowa, which is described as follows: Commencing at the point of intersection of the extension of the Northwest line of Block 3, Original Plat of East Waterloo and the Southwest line of Water Street; thence North 48 degrees, 15 minutes West, 3 .10 feet to the extension of the Southeast line of Fourth Street Bridge, said Southeast line of the bridge being parallel to and 28.5 feet from the center line of said concrete bridge; thence Southwesterly 78.25 feet along said Southeast line of the bridge to the Southwesterly face of the old stone wall connecting the bridge and the foundation of the old Mill Company building; thence along the Southwest face of the wall connecting the bridge with the Mill Company building to the Westerly comer of the old Mill Building, said point being South 41 degrees 27 minutes West, 89.85 feet and North 47 degrees 49 minutes West 2.0 feet from the place of beginning; thence South 4 7 degrees 49 minutes East 62.0 along the line of the old Mill Company building to the intersection with the River Front line as established by decree of the District Court of Black Hawk County; thence South 45 degrees 36 minutes East 138.6 feet along said River Front line to the point of intersection of said line with the North line of a certain private alley deeded to the Corn Belt Telephone Company in 61 TLD 119, said point being 106.5 feet Northwest of Fifth Street and 96.67 feet from Water Street; thence North 41 degrees 29 minutes East, 96.67 feet parallel with the Northeast line of Fifth Street, to the Southwesterly line of Water Street; thence North 48 degrees 15 minutes West, 198.6 feet to the point of beginning, that lies within the following described parcel: Commencing at the most Southerly corner of Block 3, Original Plat of East Waterloo, Black Hawk County, Iowa; thence Southwesterly along the Southeasterly line of said Block 3 extended, 49.5 feet to the Easterly corner of fractional block opposite said Block 3 and the point of beginning: thence continuing southwesterly 104.92 feet along said extension, said line being the Northwesterly line of 5th Street; thence Northwesterly parallel with Water Street, 83.5 feet; thence Northeasterly parallel with 5th Street, 38.0 feet; thence Northwesterly parallel with Water Street, 23.0 feet; thence Northeasterly parallel with 5th Street, 66.92 feet to the Southwest line of Water Street; thence Southeasterly along said line, 106.50 feet to the point of beginning. Tract 7: The Northwesterly eighty and five tenths (80.5) feet of Lot Ten (10), Block Three (3), Original Plat on the east side of the Cedar River in the City of Waterloo, Black Hawk County, Iowa. Tract 8: The Northwesterly thirteen and sixty-six hundredths (13.66) feet of the Southeasterly sixty-eight and sixty-six hundredths (68.66) feet of Lot Ten (10), Block Three (3), Original Plat on the east side of Cedar River in City of Waterloo, Black Hawk County, Iowa. 2 EXHIBIT "A-2" Legal Description of City Property Phase 622 Property Original Plat Waterloo East, Lots 1 and 4, Block 28, except Southwest 28 feet of Lot 4. Phase 715 Property Original Plat Waterloo East, Lots 1 through 10, Block 40. 1 EXHIBIT "B" Form of MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of , by and among the CITY OF WATERLOO, IOWA ("City"), and , L.L.C. ("Company"). 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 "City Property"), described in Exhibit "A-2" thereto as the [622 or 715] Phase 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 Downtown Waterloo Urban Renewal and Redevelopment Plan area, including the construction of certain improvements as described in the Development Agreement (the "Minimum Improvements") on the City 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 City 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 expects to authorize the issuance of general obligation bonds, the proceeds of which will be used to fund an economic development grant to the Company (the "City Bonds"), the principal of and interest on which City Bonds are expected to be paid in part from the real property taxes paid with respect to the City Property and the Minimum Improvements located thereon. WHEREAS, the City and the Assessor of Black Hawk County, Iowa (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 City Property and Minimum Improvements to be 1 constructed thereon by Company as a part of the Project shall not be less than $ (the "Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Minimum Improvements will be substantially completed by the date set forth in the Development Agreement, and in any case if the Minimum Improvements are not substantially completed by December 31, 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, [date 30 years after date stated in Section 1]. 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 City 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 City 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 City Property or the Minimum Improvements, any interruption in, or discontinuance of, the use, occupancy, ownership or operation of the City 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 City 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 2 contained as a part of the City Property or the Minimum Improvements determined by any tax official to be applicable to the City Property or the Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; or (b) seek any tax deferral, credit or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other state law, of the taxation of real property, including improvements and fixtures thereon, contained in the City 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 [Company name] By: gy: Mayor f Rodney A. Blackwell Managing Member B City lerk STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) On this day of '' - ' , before me, a Notary Public in and for the State of Iowa, personally appeared and 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. �PR:cs BRITNI C PERKINS No P blic °_mar COMMISSION NO.845529 * * MY COMMISSION EXPIRES IOWA JANUARY 27,2026 4 1 • • • • -'1 11'4X J till .'r MMO;i +L . ernRrr i . e3St�4 C YfiftM _ 1__ f STATE OF IOWA ) ) ss. COUNTY ) Subscribed and sworn to before me on , by Rodney A. Blackwell as Managing Member of [company name]. Notary Public 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 Million Hundred Thousand and 00/100 Dollars ($ .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 , by T.J. Koenigsfeld, Assessor for Black Hawk County, Iowa. Notary Public 1