HomeMy WebLinkAboutBKKS Holdings, LLC - DA_MAA - 7.7.2025 (RECORDED) • 2025-13843
RECORDED: 09/22/2025 09:22:26 AM
RECORDING FEE: $97.00
REVENUE TAX: $
COMBINED FEE: $97.00
SANDIE L. SMITH, RECORDER
BLACK HAWK COUNTY, IOWA
Prepared By: Austin J. McMahon, Lange & McMahon, PLC, 222 1st St. E., Independence, IA (319) 334-4488
DEVELOPMENT AGREEMENT
This Develspment Agreement (the "Agreement") is entered into as of this _ `7
day of t 2025, by and between BKKS Holdings, 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. Company is willing and able to finance and construct or erect structures and
improvements as provided in this Agreement on property legally described in
Exhibit A (the "Property"), which is located within the Urban Renewal Area.
C. City considers economic development within the City a benefit to the community
and is willing for the overall good and welfare of the community to provide financial
incentives so as to encourage that goal, and the City further believes that the
project is in the vital and best interests of the City and that the project and such
incentives are in accordance with the public purposes and provisions of applicable
State and local laws and requirements under which the project has been
undertaken and is being assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the
parties agree as follows:
1 . 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. 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 record; (b)general
utility and right-of-way easements sending 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. Phased Improvements by Company.The parties contemplate that Company
will develop the Property in phases, each of which is generally described as follows,
although more detailed plans for each phase will be developed at one or more future
dates.Phase 1 shall consist of the construction or development of 52,050 square feet of
storage units along with related landscaping, storm water, paving, signage and parking
improvements.Phase II shall consist of the construction or development of 42,050 square
feet of storage units along with related landscaping, storm water, paving, signage and
parking improvements. The construction and/or development as described above are
collectively referred to as the"Improvements"or the"Project."The Improvements relating
to each separate Phase will be referred to as"Phase 1 Improvements"and/or"Phase 2
Improvements,"as is applicable.
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
to provide construction to provide for the construction of the Improvements, and I 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 make the Grant to
Company and that without said commitment City would not have done so.
A. Deadlines to Begin and Substantially Complete. All deadlines are
subject to Unavoidable Delays (defined below) and other applicable provisions of this
Agreement governing modifications or extensions.
Company must obtain necessary permits and Begin Construction of the Phase
1 Improvements within the later of ten (10) months of the date of this Agreement or
closing on the Property (the "Phase 1 Start Date") and must Substantially Complete
the Phase 1 Improvements within twenty (20) months thereafter (the "Phase 1
Completion Deadline"). With respect to the Phase 2 Improvements, Company must
obtain necessary permits and Begin Construction of the Phase 2 Improvements within
four (4) months of Substantial Completion of the Phase 1 Improvements and must
Substantially Complete the Phase 2 Improvements within fourteen (14) months
thereafter. For purposes of this Agreement, "Begin Construction" shall mean the
mobilization and entry by the Company's general contractor on the Property to start
construction of the Project pursuant to the construction contract executed between the
Company and the general contractor, and "Substantially Complete" shall mean the
date on which the phase Improvements have been completed to the extent necessary
for the City to issue a certificate of occupancy relating thereto and the City has verified
that any Project element for which no permit was necessary has been completed to
City's reasonable satisfaction. 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 Improvements. Any additional or longer time
extensions will require consent of the City Council.
B. Events Triggering Termination and/or Reverter. If Company does not
timely Begin Construction or Substantially Complete construction of the Phase 1 or
Phase 2 Improvements on the schedule stated above, subject to Unavoidable Delays,
then such shall constitute a default hereunder, and the City may terminate this
Agreement as set forth in Section 18 and City shall then have no further obligation to
Company under this Agreement. In connection with the termination of this Agreement
by the City, and in addition to any other remedies available to the City under this
Agreement, the parties agree that the City is entitled to have title to the Property
conveyed to it, and 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 conveyance and to
deliver to City title to the Property, free and clear of any lien, claim, charge, security
interest, mortgage or encumbrance, or past-due or currently due property taxes
(collectively, "Liens") arising by or through Company. Concurrently with delivery of the
deed, Company shall also deliver to City the abstract of title. Company shall pay in
full, so as to discharge or satisfy, all Liens on or against the Property. Appointment
of Attorney in Fact: If Company fails to deliver such documents, including but not
limited to a special warranty deed, to City within thirty (30) days after written demand
by City, then City shall be authorized to execute, on Company's behalf and as its
attorney-in-fact, the special warranty deed or other documents required by this
Section, and for such limited purpose Company does hereby irrevocably constitute
and appoint City as its attorney-in-fact.
C. Unavoidable Delays. If development has commenced within the
required period, as the same may be extended, and is subsequently stopped or
delayed as a result of an act of God, war, civil disturbance, court order, labor dispute,
fire, or other cause beyond the reasonable control of Company (each an "Unavoidable
Delay"), the requirement that construction be completed by the Completion Deadline
shall be tolled for a period of time equal to the period of Unavoidable Delay. As
promptly as possible, Company shall notify City in writing of the occurrence of any
Unavoidable Delay and shall again notify City in writing when the Unavoidable Delay
has ended.
5. Indemnity. Company 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 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.
6. No Encumbrances; Limited Exception. Until Substantial Completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any lien,
encumbrance, mortgage, security interest, or charge 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 in advance of
Company's execution of any such mortgage. Company may not mortgage or encumber
the Property or any part thereof for any purpose except in connection with financing of the
Improvements, whether through a construction loan or permanent loan.
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. Minimum Assessment Agreement. Company acknowledges and agrees that
it will pay when due all taxes and assessments, general or special, and all other charges
whatsoever levied upon or assessed or placed against the Property. Company further
agrees that prior to the date set forth in Section 2 of the Minimum Assessment Agreement
(the "MAA"') attached hereto as Exhibit "B"' it will not seek or cause a reduction in the
taxable value for the Property as improved pursuant to this Agreement, which shall be
fixed for assessment purposes, below the amount of $2,515,000 (the "Phase 1 Minimum
Actual Value"), through:
(a) Willful destruction of the Property, the Improvements, or any part of
either;
(b) a request to the Assessor of Black Hawk County; or
(c) any proceedings, whether 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. In connection with the construction of Phase 2
Improvements, the parties will execute and record a separate amendment to the minimum
assessment agreement for the purpose of increasing the Minimal Actual Value to an
amount that reflects the value added by Phase 2 Improvements, which shall yield a total
value of not less than $4,266,000 for Phase 1 and Phase 2 Improvements combined.
9. Tax Rebates. Provided that Company has completed the Phase 1
improvements and the Phase 2 Improvements as set forth in this Agreement before the
respective Substantial Completion Deadlines and has executed, as appropriate, the
Minimum Assessment Agreement or an amendment to the Minimum Assessment
Agreement, City agrees to rebate property tax (with the exceptions noted below) with
respect to Phase 1 Improvements and Phase 2 Improvements as follows:
50% rebate for each of Years One through Five
for any assessed value added by the completed Phase 1 Improvements and Phase 2
Improvements (each such payment is a "Rebate") over the base value of$5,412.00. 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 (i.e., the "March Installment"), submit a completed Rebate request
to City on the form provided by or otherwise satisfactory to City. A failure to timely submit
a request for a Rebate for a Fiscal Year will result in a forfeiture of the right to request a
Rebate for such Fiscal Year. City agrees to consider a completed application for a Rebate
within sixty (60) days after submission of the application to City.
The assessed value of the Property as a result of the Improvements constructed
thereon 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 Phase 1 Improvements and Phase
2 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 Phase 2 Improvements due to partial completion of such Improvements or a
partial Fiscal Year.
10. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction contemplated
in this Agreement by any law, regulation, agreement, instrument, restriction, order or
judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized.to do so on behalf of
City.
11. 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.
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.
12. 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
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.
13. 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.
14. 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.
15. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers, employees,
and agents (collectively, the "indemnified parties") from, covenants and agrees that
the indemnified parties shall not be liable for, and agrees to indemnify, defend and
hold harmless the indemnified parties against, any loss or damage to property or any
injury to or death of any person occurring at or about the Property 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
conditions 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.
C. The provisions of this Section shall survive the expiration or termination
of this Agreement.
16. Obligations Contingent. Each and every obligation of the City under this
Agreement is subject to and contingent upon the Company purchasing or acquiring the
Property. Furthermore and in addition, 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.
17. Default. The following shall be "Events of Default" under this Agreement, and
the term -Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements to
be commenced and completed pursuant to the terms, conditions and limitations of this
Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in the
Improvements, any part of the Property, or this Agreement, without the prior written
consent of City except or otherwise as security for financing of Project improvements;
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.
18. 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 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. The
remedies arising under this Agreement or under law shall survive the termination of
this Agreement irrespective of the reason for termination.
19. 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.
20. 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.
21. Notices. 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, 715 Mulberry Street, Waterloo, Iowa 50703, Attention: Mayor,
with copies to the City Attorney and the Community Planning and Development
Director.
(b) If to Company, Tyler Kunkle , 3132 Big Woods Road, Cedar Falls, Iowa
50613.
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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
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 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 set forth above.
CITY OF WATERLOO, IOWA BKKS Holdings, LLC
By: ai-Lie--Aft--c-c.�-; By:
Quentin M. Hart, Mayor Tyl r Kunkle
Attes . Title: rif-eS
e ley Fel , ity Clerk
EXHBIIT A
DESCRIPTION
Lot 34, Lot 35, Lot 36, Lot 37, Lot 38, and Lot 39 of the Waterloo Air and Rail Park, 4th
Addition, Waterloo, Black Hawk County, Iowa.
EXHIBIT B
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of this
_ F, day of , j cl f , 2025, and among the CITY OF WATERLOO,
IOWA ("City") and BKKS Hdings/LLC ("Company"), and the COUNTY ASSESSOR of the
BLACK HAWK COUNTY, 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 "B" 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 Codes 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 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 $2,515,000 (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 February 28, 2027, the parties agree to execute an amendment to this Agreement that
will extend the date specified in Section 2 below. The parties contemplate a later
amendment to this Agreement that increases the Minimum Actual Value in connection with
Phase 2 Improvements.
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, 2037.
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
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board 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 det forth above.
[signatures on next page]
CITY OF WATERLOO, IOWA BKKS Holdings, LLC
By: By: rr-'
Quentin M. Hart, Mayor Tyler Kunkle
Attest: Title:
elley Fe le, City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this 671c day of- -� � , 2025, before me, a notary public in
and for the State of Iowa, perso Irk I appeared Quentin M. Hart and Kelley Felchle, to me
personally known, who being duly sworn ho 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.
OPRA(S BRITNI C PERKINS
* `
IOWA COMMISSON N0.845529 mm►t, MY COMM
ISSION EXPIRES .4 - r. 'ubli
JANUARY 27,
2026
STATE OF )
) ss.
COUNTY OF 6(of C )
Subscribed and sworn before me on
by Tyler Kunkle as r��'r deg (title) of BKKS Holdings, LLC.
.'`.v l KARLA J TRI No a Public
y-`COMMISSION NO. 171479 rY
;a u,,mm*1{Ili MY COMMISSION EXPIRES
row*j OCTOBER 11,2026
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment Agreement
appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally
responsible for the assessment of the property described in the foregoing Minimum
Assessment Agreement, certifies that the actual value assigned to that land and
improvements upon completion shall not be less than Two Million Five Hundred Fifteen
Thousand and 00/ 100 Dollars ($2,515,000.00) until termination of this Minimum Assessment
Agreement pursuant to the terms hereof, subject to adjustment as provided in said
agreement.
2 2--
Date ssor for Black Hawk County, Iowa
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on `1i3 - . / 33 by
T.J . Koenigsfeld , Assessor for Black Hawk County, Iowa.
.A f
bra
Nofa' ry
1,44 s TARA JOHNSON
Commission Number 767467
tip.? 7 My Commission Expires
%wN _ April 5, 2026
Prepared By:Austin J. McMahon, Lange&McMahon, PLC, 222 15t St. E., Independence, IA (319)334-4488
DEVELOPMENT AGREEMENT
This Devel2spment Agreement (the "Agreement") is entered into as of this -7
day of ` v 1' 2025, by and between BKKS Holdings, 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. Company is willing and able to finance and construct or erect structures and
improvements as provided in this Agreement on property legally described in
Exhibit A(the "Property"), which is located within the Urban Renewal Area.
C. City considers economic development within the City a benefit to the community
and is willing for the overall good and welfare of the community to provide financial
incentives so as to encourage that goal, and the City further believes that the
project is in the vital and best interests of the City and that the project and such
incentives are in accordance with the public purposes and provisions of applicable
State and local laws and requirements under which the project has been
undertaken and is being assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the
parties agree as follows:
1. 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. 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 record; (b) general
utility and right-of-way easements sending 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. Phased Improvements by Company. The parties contemplate that Company
will develop the Property in phases, each of which is generally described as follows,
although more detailed plans for each phase will be developed at one or more future
dates. Phase 1 shall consist of the construction or development of 52,050 square feet of
storage units along with related landscaping, storm water, paving, signage and parking
improvements. Phase II shall consist of the construction or development of 42,050 square
feet of storage units along with related landscaping, storm water, paving, signage and
parking improvements. The construction and/or development as described above are
collectively referred to as the "Improvements" or the "Project." The Improvements relating
to each separate Phase will be referred to as "Phase 1 Improvements" and/or "Phase 2
Improvements," as is applicable.
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
to provide construction to provide for the construction of the Improvements, and I 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 make the Grant to
Company and that without said commitment City would not have done so.
A. Deadlines to Begin and Substantially Complete. All deadlines are
subject to Unavoidable Delays (defined below) and other applicable provisions of this
Agreement governing modifications or extensions.
Company must obtain necessary permits and Begin Construction of the Phase
1 Improvements within the later of ten (10) months of the date of this Agreement or
closing on the Property (the "Phase 1 Start Date") and must Substantially Complete
the Phase 1 Improvements within twenty (20) months thereafter (the "Phase 1
Completion Deadline"). With respect to the Phase 2 Improvements, Company must
obtain necessary permits and Begin Construction of the Phase 2 Improvements within
four (4) months of Substantial Completion of the Phase 1 Improvements and must
Substantially Complete the Phase 2 Improvements within fourteen (14) months
thereafter. For purposes of this Agreement, "Begin Construction" shall mean the
mobilization and entry by the Company's general contractor on the Property to start
construction of the Project pursuant to the construction contract executed between the
Company and the general contractor, and "Substantially Complete" shall mean the
date on which the phase Improvements have been completed to the extent necessary
for the City to issue a certificate of occupancy relating thereto and the City has verified
that any Project element for which no permit was necessary has been completed to
City's reasonable satisfaction. 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 Improvements. Any additional or longer time
extensions will require consent of the City Council.
B. Events Triggering Termination and/or Reverter. If Company does not
timely Begin Construction or Substantially Complete construction of the Phase 1 or
Phase 2 Improvements on the schedule stated above, subject to Unavoidable Delays,
then such shall constitute a default hereunder, and the City may terminate this
Agreement as set forth in Section 18 and City shall then have no further obligation to
Company under this Agreement. In connection with the termination of this Agreement
by the City, and in addition to any other remedies available to the City under this
Agreement, the parties agree that the City is entitled to have title to the Property
conveyed to it, and 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 conveyance and to
deliver to City title to the Property, free and clear of any lien, claim, charge, security
interest, mortgage or encumbrance, or past-due or currently due property taxes
(collectively, "Liens") arising by or through Company. Concurrently with delivery of the
deed, Company shall also deliver to City the abstract of title. Company shall pay in
full, so as to discharge or satisfy, all Liens on or against the Property. Appointment
of Attorney in Fact: If Company fails to deliver such documents, including but not
limited to a special warranty deed, to City within thirty (30) days after written demand
by City, then City shall be authorized to execute, on Company's behalf and as its
attorney-in-fact, the special warranty deed or other documents required by this
Section, and for such limited purpose Company does hereby irrevocably constitute
and appoint City as its attorney-in-fact.
C. Unavoidable Delays. If development has commenced within the
required period, as the same may be extended, and is subsequently stopped or
delayed as a result of an act of God, war, civil disturbance, court order, labor dispute,
fire, or other cause beyond the reasonable control of Company (each an "Unavoidable
Delay"), the requirement that construction be completed by the Completion Deadline
shall be tolled for a period of time equal to the period of Unavoidable Delay. As
promptly as possible, Company shall notify City in writing of the occurrence of any
Unavoidable Delay and shall again notify City in writing when the Unavoidable Delay
has ended.
5. Indemnity. Company 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 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.
6. No Encumbrances; Limited Exception. Until Substantial Completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any lien,
encumbrance, mortgage, security interest, or charge 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 in advance of
Company's execution of any such mortgage. Company may not mortgage or encumber
the Property or any part thereof for any purpose except in connection with financing of the
Improvements, whether through a construction loan or permanent loan.
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. Minimum Assessment Agreement. Company acknowledges and agrees that
it will pay when due all taxes and assessments, general or special, and all other charges
whatsoever levied upon or assessed or placed against the Property. Company further
agrees that prior to the date set forth in Section 2 of the Minimum Assessment Agreement
(the -MAA"') attached hereto as Exhibit "B"' it will not seek or cause a reduction in the
taxable value for the Property as improved pursuant to this Agreement, which shall be
fixed for assessment purposes, below the amount of $2,515,000 (the "Phase 1 Minimum
Actual Value"), through:
(a) Willful destruction of the Property, the Improvements, or any part of
either;
(b) a request to the Assessor of Black Hawk County; or
(c) any proceedings, whether 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. In connection with the construction of Phase 2
Improvements, the parties will execute and record a separate amendment to the minimum
assessment agreement for the purpose of increasing the Minimal Actual Value to an
amount that reflects the value added by Phase 2 Improvements, which shall yield a total
value of not less than $4,266,000 for Phase 1 and Phase 2 Improvements combined.
9. Tax Rebates. Provided that Company has completed the Phase 1
Improvements and the Phase 2 Improvements as set forth in this Agreement before the
respective Substantial Completion Deadlines and has executed, as appropriate, the
Minimum Assessment Agreement or an amendment to the Minimum Assessment
Agreement, City agrees to rebate property tax (with the exceptions noted below) with
respect to Phase 1 Improvements and Phase 2 Improvements as follows:
50% rebate for each of Years One through Five
for any assessed value added by the completed Phase 1 Improvements and Phase 2
Improvements (each such payment is a "Rebate") over the base value of$5,412.00. 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 (i.e., the "March Installment"), submit a completed Rebate request
to City on the form provided by or otherwise satisfactory to City. A failure to timely submit
a request for a Rebate for a Fiscal Year will result in a forfeiture of the right to request a
Rebate for such Fiscal Year. City agrees to consider a completed application for a Rebate
within sixty (60) days after submission of the application to City.
The assessed value of the Property as a result of the Improvements constructed
thereon 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 Phase 1 Improvements and Phase
2 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 Phase 2 Improvements due to partial completion of such Improvements or a
partial Fiscal Year.
10. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction contemplated
in this Agreement by any law, regulation, agreement, instrument, restriction, order or
judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized.to do so on behalf of
City.
11. 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.
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.
12. 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
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.
13. 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.
14. 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.
15. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers, employees,
and agents (collectively, the "indemnified parties") from, covenants and agrees that
the indemnified parties shall not be liable for, and agrees to indemnify, defend and
hold harmless the indemnified parties against, any loss or damage to property or any
injury to or death of any person occurring at or about the Property 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
conditions 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.
C. The provisions of this Section shall survive the expiration or termination
of this Agreement.
16. Obligations Contingent. Each and every obligation of the City under this
Agreement is subject to and contingent upon the Company purchasing or acquiring the
Property. Furthermore and in addition, 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.
17. Default. The following shall be "Events of Default" under this Agreement, and
the term -Event of Default" shall mean any one or more of the following events that
continues beyond any applicable cure periods:
A. Failure by Company to cause the construction of the Improvements to
be commenced and completed pursuant to the terms, conditions and limitations of this
Agreement;
B. Transfer by Company of any interest (either directly or indirectly) in the
Improvements, any part of the Property, or this Agreement, without the prior written
consent of City except or otherwise as security for financing of Project improvements;
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.
18. 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 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. The
remedies arising under this Agreement or under law shall survive the termination of
this Agreement irrespective of the reason for termination.
19. 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.
20. 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.
21. Notices. 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, 715 Mulberry Street, Waterloo, Iowa 50703, Attention: Mayor,
with copies to the City Attorney and the Community Planning and Development
Director.
(b) If to Company, Tyler Kunkle , 3132 Big Woods Road, Cedar Falls, Iowa
50613.
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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
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 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 set forth above.
CITY OF WATERLOO, IOWA BKKS Holdings, LLC
By: R....Lk-L T,�cam, By:
Quentin M. Hart, Mayor Tyl r Kunkle
Attes . Title: �`������ 1
e ley Fel , ity Clerk
EXHBIIT A
DESCRIPTION
Lot 34, Lot 35, Lot 36, Lot 37, Lot 38, and Lot 39 of the Waterloo Air and Rail Park, 4th
Addition, Waterloo, Black Hawk County, Iowa.
EXHIBIT B
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessmenj Agreement (the "Agreement") is entered into as of this
day of , J V , 2025, and among the CITY OF WATERLOO,
IOWA ("City") and BKKS HIdingss LLC ("Company"), and the COUNTY ASSESSOR of the
BLACK HAWK COUNTY, 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 "B" 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 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 $2,515,000 (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 February 28, 2027, the parties agree to execute an amendment to this Agreement that
will extend the date specified in Section 2 below. The parties contemplate a later
amendment to this Agreement that increases the Minimum Actual Value in connection with
Phase 2 Improvements.
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, 2037.
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
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board 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 det forth above.
[signatures on next page]
CITY OF WATERLOO, IOWA BKKS Holdings, LLC
By: �. Fu/ By: 42:fr
Quentin M. Hart, Mayor Tyler Kunkle
Attest: JW/OL-- Title: ri^ ,UCh
elley Fe le, City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this O day of- , 2025, before me, a notary public in
and for the State of Iowa, perso Irk Iy appeared Quentin M. Hart and Kelley Felchle, to me
personally known, who being duly sworn ho being duly sworn, did say that they are the Mayor
and City Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was signed and
sealed on behalf of said municipal corporation by authority and resolution of its City Council,
and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of
said municipal corporation by it and by them voluntarily executed.
BRITNI C PERKINS flit
n COMMISSION NO.S
'f Rirtiin* MY COMMISSION P41RES9 IIPP
Iowa JANUARY 27,2026 ubll
STATE OF COCA-)cf )
��,,// ) ss.
COUNTY OF 6.// W
( C a )
Subscribed and sworn before me on O "f l-z/
byTyler Kunkle as /
y �i'Ps�GI'e4 t (title) of BKKS Holdings, LLC.
y
r COMMISSION NO. 171479
*,gym* MY COMMISSION EXPIRES
ro ;;_j OCTOBER 11,2026
f
r s`
•
21
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'[I4,Y't .1 Ilp, ,ri ;.,...:? `'
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment Agreement
appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally
responsible for the assessment of the property described in the foregoing Minimum
Assessment Agreement, certifies that the actual value assigned to that land and
improvements upon completion shall not be less than Two Million Five Hundred Fifteen
Thousand and 00/ 100 Dollars ($2,515,000.00) until termination of this Minimum Assessment
Agreement pursuant to the terms hereof, subject to adjustment as provided in said
agreement.
Date Assessor for Black Hawk County, Iowa
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