HomeMy WebLinkAboutInternational Paper Company - DA - 1.6..2025Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50704 Phone (319) 234-5701
DEVELOPMENT AGREEMENT
Aj This Development Agreement (the "Agreement") is entered into as of
� to 2 z , by and between International Paper Company (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 East Waterloo Unified
Urban Renewal and Redevelopment Plan area ("Urban Renewal Area").
B. Company is willing and able to finance and erect structures and related
improvements on property legally described on Exhibit "A" attached hereto
(the "Property") located in the Urban Renewal Area.
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. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Company in its as -is condition for the sum of $1.00 (the "Purchase Price").
Conveyance shall be by special warranty deed, free and clear of all encumbrances arising
by or through City except: (a) easements, servitudes, conditions and restrictions of
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record; (b) general utility and right-of-way easements serving the Property; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. City makes
no representation or warranty as to the condition of the Property or its suitability for
Company's purposes. Company is responsible to conduct its own due diligence and
inspections. City shall have no duty to convey title to Company until Company delivers
to City reasonable and satisfactory proof of financial ability to undertake and carry on the
Improvements (defined below), which may take the form of a lending commitment letter.
Company shall, at its own expense, prepare an updated abstract of title, or in lieu thereof
Company may, at its own expense, obtain whatever form of title evidence it desires. City
shall provide any title documents it has in its possession, including any abstracts, to assist
in title review. If title is unmarketable or subject to matters not acceptable to Company,
and if City does not remedy or remove such objectionable matters in timely fashion
following written notice of such objections from Company, Company may terminate this
Agreement without further obligation and return the abstract of title to City.
2. Improvements by Company. Company shall construct on the Property a
commercial building of no less than 800,000 square feet (exact square footage to be
determined prior to execution), as well as related landscaping, storm water detention,
paving, signage and parking improvements (collectively, the "Improvements"), in
accordance with the Plans as provided in Section 3. Company agrees that the
Improvements shall be constructed in accordance with the terms of this Agreement, the
urban renewal plan applicable to the Property, and all applicable City, state, and federal
building codes and shall comply with all applicable City ordinances and other applicable
law. City may require that Company submit specific building designs and site plans for
City's review and reasonable approval. Company will use its best efforts to obtain, or
cause to be obtained, in a timely manner, all required permits, licenses and approvals,
and will meet, in a timely manner, all requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met before the Improvements may be
lawfully constructed, including but not limited to final permit inspections. The Property,
the Improvements, and all site preparation and development -related work to make any of
the Property usable for Company's purposes as contemplated by this Agreement are
collectively referred to as the "Project."
3. Construction Plans. Company agrees that it will cause the Improvements
to be constructed on the Property in conformance with construction plans (the "Plans")
that have been submitted to the City. Company agrees that the scope and scale of the
Improvements to be constructed shall not be significantly less than the scope and scale
of such improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is proposed,
Company shall submit modified Plans (the "Modified Plans") to the City for review.
Modified Plans shall be subject to approval by the City as provided in this Section. City
shall approve the modified Plans in writing if: (a) the Modified Plans conform to the terms
and conditions of this Agreement; (b) the Modified Plans conform to the terms and
conditions of the urban renewal plan; (c) the Modified Plans conform to all applicable
federal, state and local laws, ordinances, rules and regulations and City permit and design
review requirements; (d) the Modified Plans are adequate for purposes of this Agreement
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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 Reverter. The parties agree
that Company's commitment to undertake the Project and to construct the Improvements
in a timely manner constitutes a material inducement for the City to convey the Property
to Company and that without said commitment City would not do so.
A. Deadlines to commence and complete. Company must obtain a
building permit and begin construction of the Improvements within six (6) months
after the date of conveyance (the "Start Date") and Substantially Complete
construction within twenty-four (24) months after the date of conveyance (the
"Completion Deadline"). For purposes of this Agreement, "Substantially
Completed" means the date on which the Improvements have been completed to
the extent necessary for the City to issue a certificate of occupancy relating thereto
and the City has verified that any Project element for which no permit was
necessary has been Substantially Completed. All deadlines are subject to
Unavoidable Delays as defined in paragraph B below. The City's Community
Planning and Development Director may, but shall not be required to, consent to
an extension of time of up to six (6) months for the construction of the
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Improvements. Any additional or Longer time extensions will require consent of the
City Council.
B. Events triggering termination and/or reverter of title. If Company
does not begin or Substantially Complete construction of the Improvements on the
schedule stated above, subject to Unavoidable Delays, then City may terminate
this Agreement as set forth in Section 20, and City shall then have no further
obligation to Company under this Agreement. If development has commenced
within the required period, as the same may be extended, and is subsequently
stopped or delayed as a result of extreme weather such as ice, ground freezing,
and other conditions that restrict construction, as well as an act of God, war, civil
disturbance, court order, labor dispute, fire, pandemic, governmental mandates
(local, state or federal), delays in City approvals as contemplated in Section 17
below, or other cause beyond the reasonable control of Company (each an
"Unavoidable Delay"), the requirement that construction be completed by the
Completion Deadline shall be tolled for a period of time equal to the period of
Unavoidable Delay. If City terminates this Agreement as provided in Section 20,
City shall have no further obligations to Company under this Agreement, including
but not limited to any legal or equitable obligation to reimburse Company for any
costs expended by Company with respect to the Project or to compensate
Company for any value added to the Property by any Improvements. In connection
with termination of the Agreement as set forth herein, City may demand
reconveyance of the Property.
5. Reverter of Title; Indemnity. In the event of any reverter of title pursuant
to Section 4, then Company agrees that it shall, at its own expense, promptly execute all
documents, including but not limited to a special warranty deed, or take such other actions
as the City may reasonably request to effectuate said reverter and to deliver to City title
to the Property, free and clear of any lien, claim, charge, security interest, mortgage or
encumbrance (collectively, "Liens") arising by or through Company. Concurrently with
delivery of the deed, Company shall also deliver to City the abstract of title. Company
shall pay in full, so as to discharge or satisfy, all Liens on or against the Property conveyed
back to City.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, or injury made, suffered, or
incurred as a result of or in connection with the Project, Company's failure to carry on or
complete same, or any Lien or Liens on or against the Property of any type or nature
whatsoever that attaches to the Property by virtue of Company's ownership of same. The
foregoing indemnity shall include the cost of removing any improvements constructed by
Company and reverting the Property to substantially the same condition as of the date of
conveyance, but shall not include any consequential damages or perceived damages
such as lost opportunities for another user. If City files suit to enforce the terms of this
Agreement and prevails in such suit, then Company shall be liable for all legal expenses,
including but not limited to reasonable attorneys' fees, incurred by City. Company's duties
of indemnity pursuant to this Section shall survive the expiration, termination or
cancellation of this Agreement for any reason.
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6. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, Company agrees that it shall not create, incur, or suffer to exist
any Liens on the Property, other than such mortgage or mortgages as may be reasonably
necessary to finance Company's completion of the Improvements and of which Company
notifies City before Company executes any such mortgage. Company may not mortgage
the Property or any part thereof for any purpose except in connection with financing of
the Improvements.
7. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Property. Company will be responsible for payment of any associated connection
fees other than water connection fees, which will be paid by City.
8. City Incentives. In addition to the property tax rebates provided for herein,
the City agrees to provide the following Project assistance:
A. Rail Spur. City will design a rail spur extension to serve the Property,
and if another development project in the vicinity requires rail service, then City will
construct the rail spur, or cause it to be constructed. Company, subject to City's
approval of the plans and City's financial approval, may elect to design and
construct, or may request that City construct or cause to be constructed, a rail spur
extension to serve the Property. Company will provide plans for the rail spur
extension to the City for review and reasonable approval by City. City agrees that
it will not withhold approval of the plan designs if plans do not allow for rail
connection to the remainder of the business park. City will reimburse Company for
the cost of design, engineering and construction of the rail spur extension in an
amount to be agreed upon by the parties hereafter.
B. Support for Applications. City agrees that it will cooperate in good
faith with Company and, if necessary for program requirements, sponsor Company
applications for available state tax credits and/or rebates, job creation and/or
training funds, and other available government funding, if Company chooses to
make any such application(s).
C. Option to Purchase Additional Land. City hereby grants to the
Company, its successors and assigns, an option to purchase, for the sum of $1.00,
up to an additional 30 acres of land abutting the Property on the north side, to the
extent necessary in connection with the Project or any future expansion project.
The option is expressly made subject to City successfully obtaining a release of
the option property from Federal Aviation Administration restrictions within nine (9)
months after the date of this Agreement. The option may be exercised by
delivering written notice of exercise to the City no later than twelve (12) months
after the date of this Agreement (the "Expiration Date"). The option shall terminate
upon the first to occur of the Expiration Date, or the termination of this Agreement
on the terms set forth herein. If Company exercises the option in connection with
an expansion project, then the parties shall negotiate the terms of a new
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development agreement or an amendment to this Agreement to address
requirements related to the expansion project. Unless governed by the terms of
such agreement or amendment, the provisions of Section 1 hereof shall govern
the transfer of title.
D. Option to Sell. Company or its affiliate currently owns or occupies
property at 800 W. Parker Street, Waterloo, Iowa (the "Company Property"). At
the time of purchase of the Property, City agrees to execute and deliver to
Company an Option to Sell (the "Option to Sell") the Company Property to the City
for an amount equal to its fair market value, as determined by an appraisal by an
MAI appraiser acceptable to both Company and the City, plus the cost of the
appraisal (the "Company Sale Price"). Pursuant to the Option to Sell, Company or
any successor owner of the Company Property shall have the right to exercise the
Option to Sell within one hundred eighty (180) days after Company has completed
the transition of its operations and equipment to the Property and, if necessary,
remedied any environmental conditions that impact or significantly impair the use
of the Company Property, by delivery to the City of a written notice of exercise of
the Option to Sell. Thereafter, the City shall purchase the Company Property for
the Company Sale Price within ninety (90) days following the receipt by the City of
the notice of exercise of the Option to Sell. City's obligation to purchase the
Company Property shall be subject to the Company Property being free and clear
of (i) any mortgages or other liens or encumbrances, and (ii) any environmental
conditions that significantly impair the use or value of the Company Property as
determined by City in its reasonable judgment. Prior to any such purchase and at
any reasonable time, City, its agents and contractors, shall have access to the
Company Property for purposes of evaluation and environmental testing. If the
Company Property is not owned by Company, then Company shall obtain
permission from the owner(s) of the Company Property for City's access for
purposes of appraisal, evaluation and testing. If access by City, its agents or
contractors, is denied or unduly restricted, City may terminate the obligation to
purchase the Company Property under the Option to Sell if reasonable access is
not allowed within thirty (30) days of advance written notice to Company.
E. Street. If Project design indicates the need for a new street on the
north side of the Property, then City will apply for funds under the State of Iowa
RISE program for construction of a new street from Leversee Road extending
eastward, to serve the Property. In the alternative, Company may elect to engineer
and construct a new street based on plans approved by both Company and City,
each acting reasonably, and City will reimburse the Company for the cost of
design, engineering and construction of the street and related infrastructure in an
amount to be agreed upon by the parties hereafter.
9. Minimum Assessment Agreement. Company acknowledges and agrees
that it will pay when due all taxes and assessments, general or special, and all other
charges whatsoever levied upon or assessed or placed against the Property. 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
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in the taxable valuation for the Property as improved pursuant to this Agreement, which
shall be fixed for assessment purposes, below the amount of $40,000,000.00 (the
"Minimum Actual Value"), through:
either;
(a) willful destruction of the Property, the Improvements, or any part of
(b) a request to the assessor of Black Hawk County; or
(c) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with its execution and
delivery of this Agreement.
10. Tax Rebates. Provided that Company has completed Substantially
Completed the Improvements before the 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 the Improvements, as follows:
Year One through Year Fifteen 50% rebate each year
for any taxable value added by the completed Improvements (each such payment is a
"Rebate") over the initial base value of $1,000,000.00. 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 (Le., the
"March Installment"), submit a completed Rebate request to City on the form provided by
or otherwise satisfactory to City. A failure to timely submit a request for a Rebate for a
Fiscal Year will result in a forfeiture of the right to request a Rebate for such Fiscal Year.
City agrees to consider a completed application for a Rebate within sixty (60) days after
submission of the application to City.
The taxable value of the Property as a result of the Improvements must be
increased by a minimum of 10% and must increase the annual tax by a minimum of
$500.00. Rebates shall not be paid based on any special assessment levy, debt service
levy, or any other levy that is exempted from treatment as tax increment financing under
the provisions of applicable law. The first Fiscal Year in respect of which a Rebate may
be given ("Year One") shall be the first full Fiscal Year for which the assessment is based
upon the completed value of the Improvements and not based on a prior Fiscal Year for
which the assessment is based solely upon (x) the value of the Property, or upon (y) the
value of the Property and a partial value of the Improvements due to partial completion of
such Improvements or a partial Fiscal Year.
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As an example of the above provision, in the event all Improvements on the
Property are Substantially Completed prior to January 1, 2027 and the Property and
Improvements are assessed as fully completed based on the Plans, as may be revised,
the property taxes that would be assessed based on the January 1, 2027 assessed value
would be for the Fiscal Year ending June 30, 2029, with the taxes payable one-half by
September 30, 2028 and one-half by March 31, 2029, then the first Rebate could be
applied for after March 31, 2029 and prior to April 1, 2030.
11. Limitations on Payment of Rebates.
A. Each payment of a Rebate is subject to annual appropriation by the
city council each fiscal year. City has no obligation to make any payments to
Company as contemplated under this Agreement until the city council annually
appropriates the funds necessary to make such payments. The right of non -
appropriation reserved to City in this paragraph is intended by the parties, and shall
be construed at all times, so as to ensure that City's obligation to make future
payments of Rebates shall not constitute a legal indebtedness of City within the
meaning of any applicable constitutional or statutory debt limitation prior to the
adoption of a budget which appropriates funds for the payment of that installment
or amount. In the event that any of the provisions of this Agreement are
determined by a court of competent jurisdiction or by City's bond counsel to create,
or result in the creation of, such a legal indebtedness of City, the enforcement of
the said provision shall be suspended, and the Agreement shall at all times be
construed and applied in such a manner as will preserve the foregoing intent of the
parties, and no Event of Default by City shall be deemed to have occurred as a
result thereof. If any provision of this Agreement or the application thereof to any
circumstance is so suspended, the suspension shall not affect other provisions of
this Agreement which can be given effect without the suspended provision. To this
end the provisions of this Agreement are severable.
B. Notwithstanding the provisions of Section 10 hereof, City shall have
no obligation to make a payment of a Rebate to Company if at any time during the
term hereof City fails to appropriate funds for payment; City receives an opinion
from its legal counsel to the effect that the use of Tax Increments resulting from
the Property and Improvements to fund a Rebate payment to Company, as
contemplated under Section 10 above, is not, based on a change in applicable law
or its interpretation since the date of this Agreement, authorized or otherwise an
appropriate urban renewal activity permitted to be undertaken by City under the
Urban Renewal Act or other applicable provisions of the Code, as then constituted
or under controlling decision of any Iowa court having jurisdiction over the subject
matter hereof; or City's ability to collect Tax Increment from the Improvements and
Property is precluded or terminated by legislative changes to Iowa Code Chapter
403. Upon occurrence of any of the foregoing circum-stances, City shall promptly
forward notice of the same to Company. If the circumstances continue for a period
during which two (2) annual Rebate payments would otherwise have been paid to
Company under the terms of Section 10, then City may terminate this Agreement,
without penalty or other liability to City, by written notice to Company.
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C. For purposes of this Agreement, "Tax Increments" shall mean the
property tax revenues on the Improvements and Property received by and made
available to City for deposit in an account maintained under this Agreement, the
provisions of Iowa Code § 403.19 and the ordinance governing the Urban Renewal
Plan.
12. Conditions to City Funding.
A. The complete or initial funding by City of the Rebates and other
Project commitments shall be deemed an agreement of the parties that the
applicable conditions to disbursement of funds shall, as of the date of such funding,
have been satisfied or waived. If the conditions set forth in this Section are not
satisfied at a Rebate disbursement date, this Agreement shall terminate unless a
new disbursement date is established by amendment to this Agreement. The
termination of this Agreement shall be the sole remedy available to City or
Company if, for whatever reason, a condition set forth in this Section is not satisfied
at a Rebate payment date, it being understood that each party shall nonetheless
incur costs and liabilities prior thereto for which they alone are responsible. City
and Company each expressly assumes all responsibility for the costs and liabilities
they may each so incur prior to a Rebate payment date and agree to indemnify
and hold each other harmless therefrom.
B. It is recognized and agreed that the ability of the City to perform the
obligations described in this Agreement, including but not limited to the Rebate
payments, is subject to completion and satisfaction of certain separate city council
actions and required legal proceedings relating to the expansion of a tax increment
financing (TIF) district, including the holding of public hearings on the same.
Further, all the obligations of City under this Agreement are subject to fulfillment,
on or before each Rebate payment date, of each of the following conditions
precedent:
(i) The representations and warranties made by Company in
Section 15 shall be true and correct as of the Rebate disbursement date
with the same force and effect as if made at such date.
(ii) Company shall be in material compliance with all the terms
and provisions of this Agreement.
(iii) There has not been, as of the Rebate disbursement date, a
substantial change for the worse in the financial resources and ability of
Company, or a substantial decrease in the financing commitments secured
by Company for construction of the Improvements, which change(s) makes
it likely, in the reasonable judgment of the City, that Company will be unable
to fulfill its covenants and obligations under this Agreement.
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13. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows with respect to each phase of Improvements:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the
Improvements in such amounts as are customarily carried by like organizations
engaged in activities of comparable size and liability exposure, and shall provide
evidence of such coverages to the City upon request.
B. Until the Improvements are Substantially Completed, Company shall
make such reports to City, in such detail and at such times as may be reasonably
requested by City, as to the actual progress of Company with respect to
construction of the Improvements. However, in no event shall Company be
required to submit a report more frequently than once every thirty (30) day period.
C. During construction of the Improvements and thereafter until the
MAA termination date Company will cooperate fully with the City in resolution of
any traffic, parking, trash removal or public safety problems which may arise in
connection with the construction and operation of the Improvements.
D. Company will comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses, other than laws, rules and regulations where the failure to comply with
the same or the sanctions and penalties resulting therefrom, would not have a
material adverse effect on the business, property, operations, or condition,
financial or otherwise, of Company.
E. Until the MAA termination date Company will maintain, preserve and
keep the Property, including but not limited to the Improvements, in good repair
and working order, ordinary wear and tear excepted, and from time to time will
make all necessary repairs, replacements, renewals and additions.
F. The Property will have a taxable value as set forth in the MAA and
any amendments thereto, and Company agrees that the minimum actual value of
the Property and completed Improvements as stated in the MAA and any
amendments thereto will be a reasonable estimate of the actual value of the
Property and Improvements for ad valorem property tax purposes. Company
agrees that it will spend enough in construction of the Improvements that, when
combined with the value of the Property and related site improvements, will equal
or exceed the assessor's minimum actual value for the Property and Improvements
as set forth in the MAA and any amendments thereto.
G. Until the MAA termination date Company agrees that (1) it will not
undertake, in any other municipality in Black Hawk County, the construction or
rehabilitation of any commercial property as a primary location for Company's
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business operations of the type to be conducted on the Property, and (2) it will
make no conveyance, lease or other transfer of the Property or any interest therein
that would cause the Property or any part thereof to be classified as exempt from
taxation or subject to centralized assessment or taxation by the State of Iowa.
H. Company shall pay, or cause to be paid, when due, all real property
taxes and assessments payable with respect to any and all parts of the Property
conveyed to it. Company agrees that (1) it will not seek administrative review or
judicial review of the applicability or constitutionality of any Iowa tax statute or
regulation relating to the taxation of real property included within the Property that
is determined by any tax official to be applicable to the Property or to Company, or
raise the inapplicability or constitutionality of any such tax statute or regulation as
a defense in any proceedings of any type or nature, including but not limited to
delinquent tax proceedings, and (2) it will not seek any tax deferral, credit or
abatement, either presently or prospectively authorized under Iowa Code Chapter
403 or 404, or any other state law, of the taxation of real property included within
the Property.
14. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on behalf
of City.
15. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It is duly organized, validly existing, and in good standing under the
laws of the state of its organization and is duly qualified and in good standing under
the laws of the State of Iowa.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly 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.
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D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of any
contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Company is now a party or by which it or its property is
bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
F. The financing commitments, which Company will proceed with due
diligence to obtain, to finance the construction of the Improvements will be
sufficient to enable Company to successfully complete construction of the
Improvements as contemplated in this Agreement, subject to additional costs
incurred due to Unavoidable Delays.
16. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified parties against, any Toss or
damage to property or any injury to or death of any person occurring at or about
the Property arising after Company's lease or acquisition of the same or resulting
from any defect in the Improvements. The indemnified parties shall not be liable
for any damage or injury to the persons or property of Company or its directors,
officers, employees, contractors or agents, or any other person who may be about
the Property or the Improvements, due to any act of negligence or willful
misconduct of any person, other than any act of negligence or willful misconduct
on the part of any such indemnified party or its officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and defend
the indemnified parties, now or forever, and further agrees to hold the indemnified
parties harmless, from any claim, demand, suit, action or other proceedings or any
type or nature whatsoever by any person or entity whatsoever that arises or
purportedly arises from (1) any violation of any agreement or condition of this
Agreement (except with respect to any suit, action, demand or other proceeding
brought by Company against the City to enforce its rights under this Agreement),
or (2) the acquisition and condition of the Property and the construction,
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installation, ownership, and operation of the Improvements, or (3) any hazardous
substance or environmental contamination located in or on the Property.
C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
17. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or Project area, all
of which must be completed within 90 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 90-day period is subject to
reverter of title, revocation, repayment or other appropriate action to restore such
property, benefit or incentive to City, and Company agrees to cooperate diligently and in
good faith with any reasonable request by City to effectuate the restoration of same, or
failing such restoration Company agrees to be liable for same or for the fair value thereof,
plus interest on any sums owing at the rate of 5% per annum commencing with the date
of demand for payment, if said payment is not remitted to City within 30 days.
18. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of the
Project, whether in whole or in part, to any other person or entity without the prior written
consent of City. Reasonable grounds for the City to withhold its consent shall include but
are not limited to the inability of the proposed transferee to demonstrate to the City's
satisfaction that it has the financial ability to observe all of the terms to be performed by
Company under this Agreement. Notwithstanding the foregoing, (a) Company may
assign the Property to an affiliate of Company without prior approval of City provided (i)
the assignee assumes the obligations of Company under this Agreement, (ii) the assignee
shall receive all Rebates payable as of and after the date of assignment, and (Hi)
Company provides written notice of assignment to City within five (5) business days after
execution of assignment and (b) Company may mortgage the Property to a lender as
security for financing of Project improvements, but for no other purpose.
19. Default. The following shall be "Events of Default" under this Agreement,
and the term "Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by 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 except as provided by Section 18 or otherwise as security
for financing of Project improvements;
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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.
20. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement. Before
exercising such remedy, City shall give 30 days' written notice to Company of the
Event of Default, provided that by the conclusion of such period the Event of
Default shall not have been cured, or the Event of Default cannot reasonably be
cured within 30 days and Company shall not have provided assurances reasonably
satisfactory to the City that the Event of Default will be cured as soon as reasonably
possible. Upon termination, City may exercise any and all remedies available at
law, equity, contract or otherwise for recovery of any sums paid by City to Company
before the date of termination or to recover ownership of the Property as set forth
in this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
occurs and is continuing, Company may take such action against City to require it
to specifically perform its obligations hereunder. Before exercising such remedy,
Company shall give 30 days' written notice to City of the Event of Default, provided
that by the conclusion of such period the Event of Default shall not have been
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cured, or if the Event of Default cannot reasonably be cured within 30 days and
City shall not have provided assurances reasonably satisfactory to the Company
that the Event of Default will be cured as soon as reasonably possible.
C. Remedies under this Agreement shall be cumulative and in addition
to any other right or remedy given under this Agreement or existing at law or in
equity or by statute. Waiver as to any particular default, or delay or omission in
exercising any right or power accruing upon any default, shall not be construed as
a waiver of any other or any subsequent default and shall not impair any such right
or power.
21. Materiality of Company's Promises, Covenants, Representations, and
Warranties. Each and every promise, covenant, representation, and warranty set forth
in this Agreement on the part of Company to be performed is a material term of this
Agreement, and each and every such promise, covenant, representation, and warranty
constitutes a material inducement for City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
or in the event of the incorrectness or falsity of any representation or warranty, City 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.
22. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
23. No Third -Party Beneficiaries. No rights or privileges of any party hereto
shall inure to the benefit of any contractor, subcontractor, material supplier, or any other
person or entity, and no such contractor, subcontractor, material supplier, or other person
or entity shall be deemed to be a third -party beneficiary of any of the provisions of this
Agreement.
24. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, , 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.
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(b) if to Company, at 6400 Poplar Avenue, Memphis, TN 38197,
Attention: Real Estate Director, with required copies to International Paper
Company, Attention: Holly Holt, Legal Department.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail, postage
prepaid, or (iv) when transmitted by facsimile so long as the sender obtains written
electronic confirmation from the sending facsimile machine that such transmission was
successful. A party may change the address for giving notice by any method set forth in
this Section.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
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30. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal representatives.
31. 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.
32. 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.
33. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development Agreement
by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA INTERNATIONAL PAPER COMPANY
r°
By:
Quentin M. Hart, Mayor
Attest:
Kelley Felch� , City Clerk
17
By:
Title: ctrtcAtif GL
E-skak
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EXHIBIT "A"
Legal Description of Property
See attached diagram, consisting of approximately 66 acres, more or less, in the SW'/4 and the S'/2 of
the NW 1/4 of Section 5, Township 89 North, Range 13 West of the 5th P.M., City of Waterloo, Black Hawk
County, Iowa [formal legal description to be determined following survey or platting]
`Project Blacknav:k Expansion Areat�0 ac
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EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimp Assessment Agreement (the "Agreement") is entered into as of
Z �Z� , and among the CITY OF WATERLOO, IOWA ("City"),
IN PtNATIONAL PAPER COMPANY ("Company"), and the COUNTY ASSESSOR of
the City of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property (the "Property"), described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area within the City and within the East
Waterloo Unified Urban Renewal and Redevelopment Plan area, including the
construction of certain improvements as described in the Development Agreement (the
"Minimum Improvements") on the Property (the "Project"); and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the Property and the Minimum
Improvements to be constructed thereon by Company pursuant to the Development
Agreement, which shall be effective upon substantial completion of the Project and from
then until this Agreement is terminated pursuant to the terms herein and which is
intended to reflect the minimum actual value of the land and buildings as to the Project
only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which the parties contemplate will be
erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Minimum
Improvements by Company, the minimum actual taxable value which shall be fixed for
assessment purposes for the Property and Minimum Improvements to be constructed
thereon by Company as a part of the Project shall not be less than $40,000,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Minimum Improvements will be substantially completed by the
date set forth in the Development Agreement, and in any case if the Minimum
Improvements are not substantially completed by December 31, 2026 the parties agree
to execute an amendment to this Agreement that will extend the date specified in
Section 2 below.
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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,
2047. The Minimum Actual Value shall be maintained during such period regardless of:
(a) any failure to complete the Minimum Improvements; (b) destruction of all or any
portion of the Minimum Improvements; (c) diminution in value of the Property or the
Minimum Improvements; or (d) any other circumstance, whether known or unknown and
whether now existing or hereafter occurring.
3. Company shall pay, or cause to be paid, when due, all real property taxes
and assessments payable with respect to all and any parts of the Property and the
Minimum Improvements pursuant to the provisions of this Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Property or the Minimum Improvements, any interruption in,
or discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property
or the Minimum Improvements.
4. Company agrees that its obligation to make the tax payments required
hereby, to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes) and that Company
shall not be entitled to any abatement or diminution thereof, or set off therefrom, nor to
any early termination of this Agreement for any reason whatsoever.
5. Nothing herein shall be deemed to waive the Company's rights under Iowa
Code § 403.6, as amended, to contest that portion of any actual value assignment
made by the Assessor in excess of the Minimum Actual Value established herein. In no
event, however, shall the Company seek or cause the reduction of the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement. Nothing herein shall limit the discretion of the Assessor to assign at any
time an actual value to the land and Minimum Improvements in excess of the Minimum
Actual Value.
6. Company agrees that during the term of this Agreement it will not:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property
contained as a part of the Property or the Minimum Improvements determined by
any tax official to be applicable to the Property or the Minimum Improvements, or
raise the inapplicability or constitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings; or
(b) seek any tax deferral, credit or abatement, either presently or
prospectively authorized under Iowa Code Chapter 403 or 404, or any other state
law, of the taxation of real property, including improvements and fixtures thereon,
contained in the Property or the Minimum Improvements; or
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(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 tofuture owners of the
Project property. - !v1 i E, to hl 1
IN WITNESS WHEREOF, the parties have executed this Minimum Assessr lent
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
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CITY OF WATERLOO, IOWA
By: i*Z®"
Quentin Hart, Mayor
1
Attest:
Kelley Felchle ity Clerk
STATE OF IOWA
ss.
COUNTY OF BLACK HAWK
On this day of , before me, a Notary Public in and for
the State of Iowa, personally appearecu ntin Hart and Kelley Felchle, to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed
and sealed on behalf of said municipal corporation by authority and resolution of its City
Council, and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation by it and by them voluntarily executed.
INTERNATIONAL PAPER COMPANY
By: 'V,
Title: NileC.t o
rvt0
GLL r �
BRITNI C PERKINS
COMMISSION NO. 845529
MY JANUARYO271, 2026RES
STATE OF \R-w`V-SSak )
) ss.
COUNTY OF \1\0,\,\0t-( )
Subscribed and sworn to before me on \(3- `\ 2-'0.02ki , by
W . IjeA y ) . \\arras $ c 4 -roc. Ps,ropf of International Paper Company.
```,�tA1111/111
`z-. • .• ,`�.. ,••,• c 1
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o �'/11iit"o00'
OMMisSlo
Notary Public
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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
Forty Million and 00/100 Dollars ($40,000,000.00) until termination of this Minimum
Assessment Agreement pursuant to the terms hereof, subject to adjustment as provided
in said agreement.
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
Assessor for Black Hawk County, Iowa
Date
Subscribed and sworn to before me on , by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public
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