HomeMy WebLinkAboutZydeco Investments, LLC - Dev Agmnt and MAA - 6.16.2025 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 June IL ,
2025, by and between Zydeco Investments, LLC (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. 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.
C. Company is willing and able to finance and construct buildings and related
improvements on property located in the Urban Renewal Area and legally described on
Exhibit "A" attached hereto (the "Property").
D. The City and Company have previously entered into a Development
Agreement recorded on December 30, 2021, File 2022-00013512 or"Initial Development
Agreement", and the Company successfully delivered a project (the "Initial Project") of
economic development importance exceeding the covenanted minimum assessment
agreement of $8,000,000 by 21.7% and surpassing job creation targets as agreed with
the Iowa Economic Development Authority.
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 Seven Hundred Twelve
Thousand Dollars ($712,000.00) (the "Purchase Price"). Conveyance shall be by quit
claim deed, free and clear of all encumbrances arising by or through City except:
(a) easements, servitudes, conditions and restrictions of record; (b) 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. 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 abstracts
and title documents it has in its possession, if any, 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 an
industrial building or expansion of no less than 50,000.00 total square feet, as well as
related landscaping, paving, signage and parking improvements (collectively, the
"Improvements"), in accordance with the Plans as provided in Section 2.1. A portion of
the Improvements may be constructed on adjacent property owned by Company at 4050
Leversee Road (the "Company Property"). (The Property and Company Property are
referred to as the "Combined Properties.") Company agrees that the Improvements shall
be constructed in accordance with the terms of this Agreement, the East Waterloo Unified
Urban Renewal and Redevelopment Plan (the "Urban Renewal Plan"), and all applicable
City, state, and federal building codes and shall comply with all applicable City ordinances
and other applicable law. 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 Combined
Properties, the Improvements, and all site preparation and development-related work to
make the Property or Combined Properties, as applicable, usable for Company's
purposes as contemplated by this Agreement, are collectively referred to as the "Project."
2.1. Construction Plans. Company agrees that it will cause the Improvements
to be constructed on the Property or Combined Properties consistent with the Initial
Project in conformance with construction plans (the "Plans," which shall also include any
Modified Plans as defined below) submitted to the City. Company agrees that the scope
and scale of the Improvements to be constructed shall not be significantly less than the
2
scope and scale of the Improvements as detailed and outlined in the Plans and shall be
similar to the scope, specification and quality of the Initial Project improvements.
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.
Company shall cause Plans to be provided for the Improvements within five (5) years of
the date of this Agreement, which shall be subject to approval by the City as provided in
this Section. City shall approve the Plans in writing if: (a) the Plans conform to the terms
and conditions of this Agreement; (b) the Plans conform to the terms and conditions of
the Urban Renewal Plan; (c) the Plans conform to all applicable federal, state and local
laws, ordinances, rules and regulations and City permit and design review requirements;
(d) the 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 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 are not as detailed
or complete as the plans otherwise required for the issuance of a building permit.
Approval of Plans hereunder shall not constitute approval for any other City purpose nor
subject the City to any liability for the Improvements as constructed.
The 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 in whole or in part, Company shall submit new or corrected 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 fail to
conform to the requirements of this Section. The provisions of this Section relating to
approval, rejection and resubmission of corrected Plans shall continue to apply until the
Plans have been approved by the City; provided, however, that in any event Company
shall submit Plans which are approved by City prior to commencement of construction of
the Improvements. Approval of the 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 by City be deemed to constitute a waiver of any Event of Default.
3. Timeliness of Conveyance and Construction; Option to Repurchase.
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
sell and convey the Property to Company and that without said commitment City would
not do so.
3.1. Deadlines to commence and complete. Subject to Unavoidable Delays
(defined below), Company must obtain a building permit and begin construction on the
Improvements by April 30, 2030 (the "Start Date") and must substantially complete
construction by April 30, 2031 (the "Completion Deadline"). For purposes of this
3
Agreement, substantial completion of construction shall be evidenced by issuance of an
occupancy permit for the Improvements.
3.2. Option to Repurchase. At the time of transfer of the Property to the
Company, the Company shall execute and deliver to the City a written Option to
Repurchase (the "Option to Repurchase") the Property, pursuant to which Option to
Repurchase, the City shall have the right to purchase the Property from the Company in
the event the Company has not commenced construction of the improvements on or
before five years from the date of this Agreement. The Option to Repurchase shall be in
a mutually acceptable form and shall include provisions acceptable to the Company's
lender. A memorandum of the Option to Repurchase shall be recorded in the office of
the Recorder for Black Hawk County, Iowa.
The Option to Repurchase shall provide that if construction of the
improvements has not commenced by the Start Date or within any agreed period of
extension and is stopped and/or delayed as a result of an act of God, war, civil
disturbance, court order, labor dispute, fire, supply chain disruption or other cause beyond
the reasonable control of Company (each such condition or event being an "Unavoidable
Delay"), the right to repurchase the Property shall not accrue until the expiration of the
period of time equal to the period of the Unavoidable Delay.
4. Option to Repurchase; Indemnity. In the event the City exercises the
Option to Repurchase, Company agrees that it shall 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 the transfer of the Property to the City, free and
clear of any lien, claim, charge, security interest, mortgage or encumbrance (collectively,
"Liens") arising by or through Company, in exchange for the payment by the City of an
amount equal to the Purchase Price. 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.
4.1. Appointment of Attorney in Fact. If Company fails to deliver such documents,
including but not limited to a special warranty deed, to City within thirty (30) days of written
demand by City, then City shall be authorized to execute, on Company's behalf and as
its attorney-in-fact, the special warranty deed required by this Section, and for such limited
purpose Company does hereby constitute and appoint City as its attorney-in-fact.
4.2. Indemnification. 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. If City files suit to enforce the terms of this Agreement or the Option to Purchase
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.
4
5. No Encumbrances; Limited Exception. Until completion of the
Improvements, 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 pay the Purchase Price and 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 Purchase Price and the Improvements.
6. Utilities and Services. 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.
7. Additional City Assistance. The incentives described in the following
subsections of this Section 7 are in addition to the other Project incentives extended by
City to Company hereunder.
7.1. 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, community college job training funds, and other
available government funding, if Company chooses to make any such application(s).
7.2. Progress Incentive Payment. Within thirty (30) days after Company has
submitted the Plans to a reasonable degree of completion for City's initial review, the City
shall pay the Company the amount of seven hundred twenty-five thousand ($ 725,000.00)
as an incentive payment based on the progress of the Project.
7.3 Pad-Ready. The City shall provide up to 46,560 cubic yards of soil fill on the
Property on or before the Start Date for the Project. In the event that the City is either
unable to do so, fails to do so, or otherwise delivers less than what is required for the
Project (but still not exceeding 46,560 cubic yards of soil), the City shall pay to or
reimburse the Company for soil fill it purchases. The amount that the City pays or
reimburses shall not exceed $10.00 per cubic yard. The City will not pay to or reimburse
Company for any quantity of soil fill exceeding 46,560 cubic yards.
7.4 Site Maintenance. The City shall provide vegetation maintenance on the
Property consistent with other City-owned properties in the Urban Renewal Area until the
Start Date for the Project or as otherwise agreed by the Company, and Company hereby
grants to City, its employees, contractors and agents, a license for reasonable access to
the Property for such purposes. City shall be entitled to keep any and all revenue
generated by maintenance activities, if any.
8. Minimum Assessment Agreement. Company acknowledges and agrees
that it, or its assign according to Section 16.2, will pay or cause to be paid 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
5
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 $3,000,000.00 (the "Minimum Actual Value"), through:
(i) willful destruction of the Property, the Improvements, or any part of
either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk County, the State of
Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with execution and delivery
of this Agreement. The parties agree that if a portion of the Improvements are constructed
on the Combined Property, then the parties agree to amend the MAA and also the MAA
related to the Initial Development Agreement to make an equitable apportionment
between the Property and the Company Property of the value added by the
Improvements, with a result that the minimum actual value of the Combined Properties is
no less than $11,000,000.00.
9. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth in this Agreement, City agrees to rebate property tax, subject
to the exceptions and limitations otherwise set forth in this Agreement, as follows:
If the Improvements are solely made on the Property and not the Combined Properties:
Year One through Year Fifteen 50% rebate each year
for any taxable value added by the completed Improvements on the Property over the
base value of $0.00 (each such payment a "Rebate")
If Improvements are made on the Combined Properties, then the Initial Development
Agreement shall be amended to provide for the above rebate schedule for property tax
paid on the added value of the Improvements contributed to the Company Property, which
shall be in addition to rebates as provided for in the Initial Development Agreement (i.e.,
the Initial Development Agreement shall then have two rebate schedules).
Each Rebate is payable in respect of a given property tax fiscal year(a "Fiscal Year") only
to the extent that (i) Company, or its assign according to Section 16.2, has actually paid
general property taxes due and owing for such Fiscal Year and (ii) the city council has
made an appropriation for the payment of the Rebate. To receive a Rebate for a given
Fiscal Year, Company or its assign 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
6
Year will result in a forfeiture of the right to request a Rebate for such Fiscal Year. The
City agrees to consider a completed application for a Rebate within sixty (60) days after
submission of the application to the 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 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.
10. Limitations on Payment of Rebates.
10.1. Each payment of a Rebate is subject to annual appropriation by the City
Council each fiscal year. The 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 the
City in this subsection 10.1 is intended by the parties, and shall be construed at all times,
so as to ensure that the City's obligation to make future payments of Rebates shall not
constitute a legal indebtedness of the 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 the City's bond counsel to create, or result in the creation of, such a legal indebtedness
of the 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 the 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.
10.2. Notwithstanding the provisions of Section 9 hereof, the City shall have no
obligation to make a payment of a Rebate to Company if at any time during the term
hereof the City fails to appropriate funds for payment; the City receives an opinion from
its legal counsel to the effect that the use of Tax Increments resulting from the
Development Property and Minimum Improvements to fund a Rebate payment to
Company, as contemplated under Section 9 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 the 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 the City's ability to collect Tax Increment from the Minimum
7
Improvements and Development Property is precluded or terminated by legislative
changes to Iowa Code Chapter 403. Upon occurrence of any of the foregoing
circumstances, the 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 9, the City may
terminate this Agreement, without penalty or other liability to the City, by written notice to
Company.
10.3. For purposes of this Agreement, "Tax Increments" shall mean the property
tax revenues on the Improvements and Property received by and made available to the
City for deposit in an account maintained under this Agreement, the provisions of Section
403.19 of the Code and the ordinance governing the Urban Renewal Plan.
10-1. 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 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
8
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:
11 .1. 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.
11.2. Until substantial completion of the Improvements, 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.
11.3. 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.
11.4. 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.
11.5. 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.
11 .6. Until termination of the MAA, 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.
11.7. During the period that any rebate is payable to Company under this
Agreement, Company agrees that (1) it will not undertake, in any other municipality in
9
Black Hawk County, the construction or rehabilitation of any commercial property as a
primary location for the business operations of the type to be conducted on the Property
by Company, 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.
11.8. 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. 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.
12. Representations and Warranties of City. City hereby represents and
warrants as follows:
12.1. City is not prohibited from consummating the transaction contemplated in
this Agreement by any law, regulation, agreement, instrument, restriction, order or
judgment.
12.2. Each person who executes and delivers this Agreement and all documents
to be delivered hereunder is and shall be authorized to do so on behalf of City.
12.3 City will cause City and other entities to abandon overlaying easements at
the adjacent property line of Company Property and Property which interfere with
Improvements. In the event that one or more of the easements to be terminated or
abandoned is a drainage easement, then Zydeco shall be required to dedicate, convey,
or otherwise establish a substitute drainage easement. The location that Zydeco
proposes for said newly established drainage easement shall be included in Zydeco's
development/project/site plans and provided to the City.
In the event that the City is unable to cause the termination or abandonment of any
easements subject to this Section 12.3, then this Agreement shall become voidable at the
option of either party, and shall be considered null-and-void in its entirety upon either
party's written notice to the other of the exercise of its option to void this Agreement.
13. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
13.1. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
10
13.2. Company is duly organized, validly existing, and in good standing under the
laws of the state of its organization and is duly qualified and in good standing under the
laws of the State of Iowa.
13.3. Company has full right, title, and authority to execute and perform this
Agreement and to consummate all of the transactions contemplated herein, and each
person who executes and delivers this Agreement and all documents to be delivered to
City hereunder is and shall be authorized to do so on behalf of Company.
13.4. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in
a violation or breach of, the terms, conditions or provisions of the articles of organization
or bylaws of Company or of any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which Company is now a party or by which
it or its property is bound, nor do they constitute a default under any of the foregoing.
13.5. Assuming due authorization, execution and delivery by the other parties
hereto, this Agreement is in full force and effect and is a valid and legally binding
instrument of Company that is enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or other laws relating to
or affecting creditors' rights generally.
13.6. 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.
14. Indemnification and Releases.
14.1. Company hereby releases City, its elected officials, officers, employees,
and agents (collectively, the "indemnified parties") from, covenants and agrees that the
indemnified parties shall not be liable for, and agrees to indemnify, defend and hold
harmless the indemnified parties against, any loss or damage to property or any injury to
or death of any person occurring at or about the Property or 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.
14.2. Except for any willful misrepresentation, any willful misconduct, or any
unlawful act of the indemnified parties, Company agrees to protect and defend the
11
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, but
only to the extent such liability has not been previously transferred to and accepted by
the City in writing.
14.3. 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. No Assignment or Conveyance.
16.1. Company agrees that it will not sell, convey, assign or otherwise transfer its
interest in the Property or this Agreement 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.
Notwithstanding the preceding sentence, the Company shall be permitted to assign all of
the member interest in the Company to any lender or guarantor of the Company's debt,
St. Martin Land Company or a wholly owned subsidiary of St. Martin Land Company prior
to completion of the Project without any consent of the City (other than this provision).
Reasonable grounds for the City to withhold its consent shall include but are not limited
to the inability of the proposed transferee to demonstrate to the City's satisfaction that it
has the financial ability to observe all of the terms to be performed by Company under
this Agreement.
16.2. Company shall have the right to assign the right to apply for and receive a
Rebate under this Agreement for one or more years to (i) a tenant of the Property, (ii) a
lender to Company and/or (iii) a purchaser of the Property. In the event of any such
assignment, Company shall provide the City with written notice of such assignment.
12
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:
17.1. 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;
17.2. Transfer by Company of any interest (either directly or indirectly) in the
Improvements, the Property, or this Agreement, without the prior written consent of City,
except as permitted in Section 16 above;
17.3. Failure by Company to pay, before delinquency, all ad valorem property
taxes levied on or against the Property;
17.4. 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 or an MAA;
17.5. 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
Project Property.
17.6. 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.
18. Remedies.
18.1. 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
13
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.
18.2. Default by City. Whenever any Event of Default in respect of Company
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.
18.3. 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.
19. 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.
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. Except as provided in Section 16 above,
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
14
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 115 3rd St. SE, #806, Cedar Rapids, IA 52401,
email nick.taiber@stmartinholdings.com, Attention: President, with copies to
kwebster@stmartinholdings.com.
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.
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.
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.
15
27. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal representatives.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, taken together, shall constitute
one and the same instrument.
29. Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
30. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development Agreement
by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
16
CITY OF WATERLOO, IOWA ZYDECO INVESTMENTS, LLC
By: LA) By:
Quentin M. Hart, Mayor Nicholas Taiber, Manager
Attes •
ell y Fel le, ity Clerk
17
EXHIBIT "A"
Legal Description of Property
Lot 5, Waterloo Air and Rail Park 2nd Addition, City of Waterloo, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
, 2025, by and among the CITY OF WATERLOO, IOWA ("City"),
ZYDECO INVESTMENTS, LLC ("Company"), and the COUNTY ASSESSOR of the City
of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered into
a development agreement (the "Development Agreement") regarding certain real
property, 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 ("Project") within the City and within
the East Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known
as the Airport Area Development Plan Area, including the construction of certain
improvements as described in the Development Agreement (the "Minimum
Improvements"); and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the land and the Minimum
Improvements pursuant to this Agreement and applicable only to the Project, 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 the Company, the minimum actual taxable value which shall be fixed for assessment
purposes for the Property and Minimum Improvements to be constructed thereon by the
Company as a part of the Project shall not be less than $3,000,000.00 (the "Minimum
Actual Value") until termination of this Agreement. The parties hereto agree that
construction of the Minimum Improvements will be substantially completed on or before
the Completion Deadline stated in the Development Agreement. If the Minimum
Improvements are not completed within the same calendar year as the Completion
Deadline, then the parties agree to execute an amendment to this Agreement that will
extend the dates 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,
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 or regulation relating to the taxation of real
property included within the Property or the Minimum Improvements that is
determined by any tax official to be applicable to the Property, the Minimum
Improvements or to Company, or raise the inapplicability or constitutionality of any
such tax statute or regulation 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
2
(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.
CITY OF WATERLOO, IOWA ZYDECO INVESTM TS, LLC
By: ,/cc :HA,
'/ By:
Quentin M. Hart, Mayor Nicholas Taiber, Manager
By: KARA SUE SHU ; ' •' IS
ell y Felch , City Clerk ommi • lumber777104
�: mission Expires
3
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this day of , 2025, before me, a Notary Public in
and for the State of Iowa, personally appeared Quentin M. 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.
kPP,ACS'E` BRITNI C PERKINS
Z COMMISSION NO. 845529 N t
* - * MY COMMISSION EXPIRES
IOWA JANUARY 27,2026
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK ) G
Subscribed and sworn to before me on L Ut�� , 2025, by Nicholas
Taiber as Manager of Zydeco Investments, LLC.
K:ARA SUE SHUGAR-DAVIS r an/-
C-omm
4• 4 ission Number 777104 i� '�
• My Commission Ex Tres
c Notary Public
4
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 subject to the development,
upon completion of improvements to be made on it and in accordance with the Minimum
Assessment Agreement, certifies that the actual value assigned to such land, building
and equipment upon completion of the development shall not be less than Three Million
Dollars ($3,000,000.00) until termination of this Minimum Assessment Agreement
pursuant to the terms hereof.
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