HomeMy WebLinkAboutThe Battery Building, LLC - DA_MAA -(RECORDED) 12.15.2025 Docusign Envelope ID: E34EFEFE-BC09-410C-B60C-8BE932E5F543 2025-18923
RECORDED: 12/29/2025 10:01:16 AM
RECORDING FEE: $7.00
REVENUE TAX: $
COMBINED FEE: $7.00
SANDIE L. SMITH, RECORDER
BLACK HAWK COUNTY, IOWA
64(-) c1- Wa f1 )
Preared byLeAnn M. Even, Deputy City p ty Clerk, City of Waterloo, 715 Mulberry Street,
Waterloo, IA 50703, (319) 291-4323.
RESOLUTION NO. 2025-717
RESOLUTION APPROVING A DEVELOPMENT
AGREEMENT WITH THE BATTERY BUILDING, LLC,
INCLUDING REIMBURSEMENT OF PHASE 1 EMERGENCY
REPAIRS UP TO $259,315.00, WITH A GRANT OF
$600,000.00, AND TAX REBATES OF FIFTEEN YEARS AT
SEVENTY PERCENT AND AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE SAID DOCUMENT.
WHEREAS, The Battery Building, LLC intends to proceed with development at 217-221
W. 5th Street, Waterloo, Iowa; and
WHEREAS, the development agreement includes:
• Reimbursement for Phase 1 emergency repairs up to $259,315.00,
• A grant of$600,000.00 to support the project; and
WHEREAS, the agreement provides for tax rebates over fifteen years at a rate of seventy
percent; and
WHEREAS, the City Council finds this development agreement to be supportive of
community development and urban revitalization efforts.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Waterloo,
Iowa, that:
1 . The Development Agreement with The Battery Building, LLC, is hereby approved,
including financial support and tax incentives as outlined.
2. Approval of up to $259,315.00 reimbursement for Phase 1 emergency repairs.
3. Approval of a total grant of$600,000.00 to assist with the rehabilitation project.
4. The Mayor and City Clerk are authorized and directed to execute said documents on
behalf of the City of Waterloo, Iowa.
PASSED AND ADOPTED this 15t" day of December 2025.
cDocuSigned by:
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Quentinur Hart, Mayor
ATTEST:
"—Signed by:
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Kelley Felchle, City Clerk
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RECORDED: 12/29/2025 10:01:17 AM
RECORDING FEE:$142.00
REVENUE TAX:$
COMBINED FEE:$142.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
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Prepared by: Austin J.McMahon.Lange&McMahon.PLC.222 1st St.E..Independence.IA (319)334-4488
After recording return to Community Planning&Development, 715 Mulberry Street,Waterloo,IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement(the "Agreement")is entered into as of Dec- Is" ,202 by and
between The Battery Building LLC(the "Developer" or the"Company")and the City of Waterloo, Iowa
(the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa,as amended(the "Urban
Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known
as the Downtown Waterloo Urban Renewal and Redevelopment Area("Urban Renewal Area").
B. City is the owner of the real property at 221 West 5th Street,Waterloo,Iowa,legally described on
Exhibit"A" attached hereto(the "Property").Developer desires to redevelop the Property as a
mixed-use Project.
C. City and the Developer both acknowledge that the Property is in need of emergency repairs and
stabilization,including structural repairs,to prevent further deterioration and potential loss of
eligibility for historic tax credits. The parties acknowledge that the Property has experienced
deferred maintenance,water damage, and other conditions that may present safety hazards, and
that City,as the current owner,retains all liability for such conditions until conveyance of the
Property to Developer.
D. Developer is willing and able to undertake the redevelopment of the Property,including
emergency stabilization work,pursuit of listing the Property as historic building on the National
Register,tax credit approvals,and subsequent full renovation,and to finance and complete such
improvements in a phased approach as described herein. The Project financing structure will
include multiple sources as shown on Exhibit"C" attached hereto, including federal and state
historic tax credits,which are essential to the financial feasibility of the Project.
E. City has retained a qualified environmental consultant who has completed a Phase I
Environmental Site Assessment of the Property dated September 18,2025. City will commence a
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Phase II Environmental Site Assessment and will make the results of both environmental
assessments available to Developer. The parties acknowledge that any environmental remediation
identified as necessary by the Phase I or Phase II Environmental Site Assessment is not covered
by this Agreement and is expected to be conducted by the City.
F. City considers economic development within the City and preservation of historic structures to be
a benefit to the community and is willing for the overall good and welfare of the community to
provide financial assistance and conveyance of the Property to encourage that goal,and the City
further believes that the Project is in the vital and best interests of the City and that such
assistance is 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. DEFINITIONS
For purposes of this Agreement,the following terms shall have the meanings set forth below:
a. "Closing Date" means the date on which the Property is conveyed from City to
Developer pursuant to Section 7.
b. "Phase 1" means the Emergency Repair and Stabilization work needed for the Property
as described in Section 3.
c. "Phase 1 Completion" means the date on which(a)the Emergency Repair Work has
been completed pursuant to the Phase 1 Plans,(b)Developer has delivered all other
Phase 1 Deliverables to City's satisfaction.
d. "Phase 2" means the Full Redevelopment Phase as described in Section 5.
e. "Phase 2 Commencement Conditions" means the conditions precedent to
commencement of Phase 2 as set forth in Section 5.
f. "Project" means collectively the Property,the Phase 1 Work,the Phase 2 Work,all
Improvements, and all site preparation and development-related work to make the
Property usable for Developer's purposes as contemplated by this Agreement.
g. "Substantial Completion" means,with respect to Phase 2,the date on which the Phase
2 Improvements have been completed pursuant to the Plans to the extent necessary for
City to issue a certificate of occupancy relating thereto.
2. SALE OF PROPERTY; TITLE
Subject to the terms hereof,City shall convey the Property to Company in its as-is condition for the sum
of$1.00(the"Purchase Price")Conveyance shall be by special warranty deed,free and clear of all
encumbrances arising by or through City except. (a)easements,servitudes, conditions and restrictions of
record; (b)general utility and right-of-way easements serving the Property,and(c)restrictions imposed
by the City zoning ordinances and other applicable law.City makes no representation or warranty as to
the condition of the Property or its suitability for Company's purposes. Company is responsible to conduct
its own due diligence and inspections.City shall convey title to Company in accordance with the terms of
Section 1 and Section 7. Company shall,at its own expense,prepare an updated abstract of title, or in lieu
thereof Company may,at its own option and 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. Add wording regarding documentation of financing.
3. PHASE 1 IMPROVEMENTS
The Property is currently owned by the City. City agrees to convey the Property to Developer as
described in Sections 1 and 7,and Developer agrees to undertake the Project upon the Property in
accordance with the phased approach described herein.
a. Phase 1 Property Access and License
i. License to Access Property. City hereby grants to Developer,and Developer's
contractors, consultants, architects,engineers,and other authorized
representatives(collectively, "Developer's Representatives"),a non-exclusive
license to enter upon and access the Property during Phase 1 for the following
purposes:
1. To perform all Phase 1 Work described in Section 3,including
emergency structural repairs and stabilization work;
2. To conduct inspections,assessments,and investigations necessary for the
Phase 1 Work and for preparation of the Phase 2 plans;
3. To retain and meet with consultants,contractors,and other professionals
at the Property;
4. To take photographs and measurements;
5. To perform any other activities reasonably necessary to accomplish the
Phase 1 Work and to prepare for Phase 2.
ii. Term of License. This license shall commence upon execution of this
Agreement and shall continue until the earlier of: (i)the Closing Date, or(ii)
termination of this Agreement.
b. Conditions of Access.
i. Notice: Except in emergency situations,Developer shall provide City with
reasonable advance notice before accessing the Property, specifying the nature of
the work to be performed and the personnel who will be present.
ii. Insurance: Developer shall maintain the insurance coverages required by
Section 16(a)at all times when accessing or working on the Property.
iii. Compliance with Law: Developer shall comply with all applicable laws, codes,
and regulations when accessing and working on the Property.
iv. Safety: Developer shall implement reasonable safety measures and shall not
create unreasonable safety hazards.Developer shall secure the Property after
each day's work to prevent unauthorized access.
v. City Observation: City shall have the right, but not the obligation,to observe
any work being performed on the Property upon reasonable notice to Developer.
vi. No Interference: Developer shall conduct its activities in a manner that
minimizes interference with City's ownership and control of the Property and
with neighboring properties and public rights-of-way except as provided in
Section 3 (d).
c. City's Retained Ownership and Control. During Phase 1:
i. City retains full ownership of the Property;
ii. City shall not be liable for any injuries, damages,or loss of any kind or nature
arising out of defective workmanship or negligent acts or omissions of the
Developer or Developer's Representatives. Subject to the foregoing, City shall
have liability for:
1. Injuries or damages caused by conditions of the Property preexisting the
commencement of work;
2. Structural failures due to building defects existing prior to the
commencement of work;
3. Environmental conditions preexisting the commencement of work;
4. Safety hazards preexisting the commencement of work that are the result
of deferred maintenance,water damage,or deterioration;
5. Developer is acting as City's authorized contractor and agent for
purposes of performing the Phase 1 Work;
6. City shall cooperate reasonably with Developer's access needs and shall
not unreasonably interfere with Developer's performance of Phase 1
Work.
7. For all preexisting environmental contamination and latent hazardous
conditions.
iii. Utilities and Services.
1. City shall assist Developer in getting utility services(electricity,water,
etc.)to the Property to the extent necessary for Developer to perform
Phase 1 Work,or shall authorize Developer to arrange for such services.
2. Developer shall be responsible for any temporary utilities or services
needed specifically for construction activities(temporary power,
construction toilets,etc.).
iv. Keys and Access Devices.City shall provide Developer with keys,access codes,
or other means of accessing the Property as reasonably necessary for Phase 1
Work.
v. No Rent or Fee.City shall not charge Developer any rent,license fee,or other
compensation for access to the Property during Phase 1.
vi. Right to Secure Property.Developer shall have the right to install temporary
fencing,barriers,or other security measures as reasonably necessary to secure the
Property and the Phase 1 Work,subject to City's prior approval(not to be
unreasonably withheld or delayed)and compliance with applicable codes and
ordinances.
d. Alley and Right-Of-Way Access and Restrictions
i. Cooperation on Access Needs. The parties acknowledge that the Project may
require temporary restrictions,closures,or modifications to adjacent alleys,
sidewalks, or other public rights-of-way during Phase 1 emergency work and
Phase 2 construction. City agrees to reasonably cooperate with Developer's needs
in this regard,including:
1. Processing applications for temporary right-of-way closures or
restrictions;
2. Issuing permits for temporary placement of construction equipment,
dumpsters,or materials in adjacent alleys or rights-of-way;
3. Coordinating with other City departments(Public Works,Engineering,
Police,Fire)to facilitate necessary closures or restrictions;
4. Working with Developer to minimize impacts on neighboring properties
and businesses;
5. Providing necessary traffic control or signage to the extent available,as
required by City ordinances.
e. City's Role.
i. Review and Approval: City shall review applications for temporary closures or
restrictions in a timely manner and shall not unreasonably withhold or delay
approval,provided that applications are complete and satisfy applicable legal
requirements;
ii. Coordination: City shall coordinate with Developer and affected parties to
minimize conflicts and disruptions.
4. PHASE 1-EMERGENCY REPAIR AND STABILIZATION
a. Phase 1 Scope of Work.Developer shall undertake the following work during Phase 1
(collectively,the "Phase 1 Work"):
i. Emergency Structural Repairs: Developer shall cause to be performed such
emergency repairs and stabilization work,as detailed in Exhibit C,to prevent
further deterioration of the building structure,to maintain the building in a safe
condition,and to preserve the building's historic character and integrity.
ii. Structural Engineering Consultant Services: Developer shall retain a qualified
structural engineering consultant to advise on the emergency repair and
stabilization work.
iii. Historic Preservation Consultant Services: Developer shall retain a qualified
historic preservation consultant meeting the Secretary of the Interior's
Professional Qualification Standards to:
1. Advise on emergency repair methods that comply with the Secretary of
the Interior's Standards for Rehabilitation;
2. Provide oversight during Phase 1 emergency work to ensure compliance
with historic preservation standards;
iv. Architectural Services: Developer shall retain a qualified architect to:
1. Prepare Phase 1 Plans showing the scope of emergency repair work;
2. Coordinate with the historic preservation consultant and structural
engineering consultant to ensure all work complies with the Secretary of
the Interior's Standards for Rehabilitation.
b. Phase 1 Budget. The parties acknowledge that the estimated budget for Phase 1 Work is
as follows:
Hard cost $ 187,815
Soft costs(Architecture,Engineering,Historic) $ 60,000
Project Management $ 11,500
Total $ 259,315
Note: City has separately retained an environmental consultant and is responsible for the cost of
Phase I and Phase II Environmental Site Assessments.These costs are not included in the Phase 1
Budget above and are not eligible for reimbursement from Developer.Any environmental
remediation costs identified as necessary by the Phase I or Phase II Environmental Site
Assessments are also NOT included in the Phase 1 Budget and are not covered by this
Agreement.Environmental remediation will be subject to separate negotiation and written
agreement between the parties.
c. City Payment for Phase 1. Subject to the terms and conditions of this Agreement,City
agrees to pay Developer for Phase 1 Work in accordance with the following:
i. Payment Structure: City shall pay Developer up to$259,315(the"Phase 1
Payment"),with invoices submitted for work completed and accepted,with
invoices to be paid within 30 days of submittal and acceptance of work.
ii. Deliverables for Phase 1
1. Completion of the Phase 1 Emergency Repair Work as listed on Exhibit
C
2. Reports and other work generated by Consultants hired by the Developer
on the Project.
iii. Itemized Billing Required: The Phase 1 Payment is a reimbursement payment
for Developer's completed work on Phase 1 scope of work outlined in Exhibit C.
The Phase 1 Payment is earned upon completion of work. So long as there is no
default or breach with respect to Phase 1,including but not limited to, defective
workmanship,then City shall not be entitled to a refund of sums paid.
iv. Environmental Remediation Costs Not Included: Environmental
remediation costs are NOT included in the Phase 1 Payment and are NOT
covered by this Agreement.Environmental remediation,if any is required,
will be addressed through separate negotiation and a separate written
agreement between the parties.
d. Phase 1 Timeline.
i. Commencement: Developer shall commence Phase 1 Work within thirty(30)
days after the date of this Agreement.
ii. Milestones: Developer shall use commercially reasonable efforts to achieve the
following milestones: Emergency stabilization work completed within three
months of Agreement execution;
iii. Progress Updates: Developer shall provide written progress updates to City on a
monthly basis,including status of all applications, submissions,agency
responses,work completed,and historic listing strategy being pursued
(individual listing or district expansion).
e. Phase 1 Deliverables.Developer shall deliver to City:
i. As-built drawings showing all Phase 1 emergency work completed;
ii. Statement from Architect or Structural Engineer to certify the work has been
completed
f. Phase 1 Limitations
i. Developer makes no representation or warranty,express or implied,that any
emergency repair and stabilization work done during Phase 1 will be sufficient to
ensure the structural integrity or stability of the Property or improvement on the
Property.Emergency repairs are temporary measures only and do not constitute a
guarantee that any structure will remain standing or continue to be safe for
occupancy following such repairs.
ii. The parties acknowledge that emergency repairs are inherently unpredictable in
scope and outcome,and that assessment of structural conditions during
emergency circumstances may be incomplete. Developer shall have no liability
for any failure of emergency repairs to prevent structural collapse,property
damage,or other losses,except to the extent caused by defective workmanship,
gross negligence, or willful misconduct of the Developer or Developer's
Representatives.
5. PHASE 2 IMPROVEMENTS
Developer shall rehabilitate and renovate the existing structure on the Property and construct a
commercial retail space on first floor and up to nineteen(19)apartments,common spaces and supporting
amenities,and related landscaping, storm water,paving,sidewalks, signage and parking improvements
(collectively,the"Improvements"). Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement,the Urban Renewal Plan,and all applicable City, state,and
federal building codes and shall comply with all applicable City ordinances and other applicable law.
Furthermore, Company shall exercise reasonable efforts to rehabilitate the building according to the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic
Buildings and to work with the Iowa State Historical Preservation Office in order to qualify the Project
for available federal and/or State of Iowa historic tax credits. 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 maybe lawfully constructed.
6. 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 2 conditions of the urban renewal
plan;(c)the Modified Plans conform to all applicable federal, state and local laws,ordinances,rules and
regulations and City permit and design review requirements;(d)the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements,and(e)no Event of
Default under the terms of this Agreement has occurred;provided,however,that any such approval of the
Plans or Modified Plans pursuant to this Section shall constitute approval for the purposes of this
Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any
building,fire, zoning or other ordinances or regulations of the City,and shall not be deemed to be
sufficient plans to serve as the basis for the issuance of a building permit if the Plans or Modified Plans
are not as detailed or complete as the plans otherwise required for the issuance of a building permit.
The Plans or Modified Plans must be rejected in writing by City within thirty(30)days of submission or
shall be deemed to have been approved by the City.If City rejects the Plans or Modified Plans in whole or
in part,Company shall submit new or corrected Plans or Modified Plans within thirty(30)days after
receipt by Company of written notification of the rejection,accomplished by a written statement of the
City specifying the respects in which Company's Plans or Modified Plans fail to conform to the
requirements of this Section.The provisions of this Section relating to approval,rejection and
resubmission of corrected Plans or Modified Plans shall continue to apply until they have been approved
by the City; provided,however,that in any event Company shall submit Plans or Modified Plans which
are approved by City prior to commencement of construction of additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve Company of any obligation to
comply with the terms and provisions of this Agreement,or the provision of applicable federal,state and
local laws,ordinances and regulations,nor shall approval of the Plans or Modified Plans by City be
deemed to constitute a waiver of any Event of Default.Approval of Plans or Modified Plans hereunder is
solely for purposes of this Agreement and shall not constitute approval for any other City Purpose nor
subject the City to any liability for the Improvements as constructed.
7. TIMELINESS OF CONVEYANCE AND CONSTRUCTION; POSSIBILITY OF
TERMINATION AND REVERTER
The parties acknowledge that the Company's commitment to undertake the Project and timely construct
the Improvements is a material inducement for the City to convey the Property to the Company.Without
such commitment,the City would not convey the Property.
a. Deadlines to Commence and Complete Construction
The Company must obtain a building permit and begin rehabilitation and construction of
the Improvements within four(4)months after the date of conveyance(the"Start Date").
The Company must achieve Substantial Completion of the Improvements within twenty-
four(24)months after the Start Date(the"Completion Deadline").For purposes of this
Agreement, "Substantially Completed"means that the Improvements have been
completed to the extent necessary for the City to issue a certificate of occupancy and the
City has verified that any Project element not requiring a permit has also been
Substantially Completed.All deadlines are subject to Unavoidable Delays as defined
below. The City's Community Planning and Development Director may, but is not
required to,approve a single extension of up to six(6)months for construction of the
Improvements.Any additional or longer extension requires approval by the City Council.
b. Time of Conveyance. The City will convey title to the Company within thirty(30)days
of receiving a written request for conveyance from the Company,provided that prior to
such request the Project has received at least one of the following:
i. An award of 4%tax credits from the Iowa Finance Authority;
ii. An award of state and federal historic tax credits in an amount satisfactory to the
Company;
iii. An award of brownfield/grayfield tax credits from the State of Iowa;
iv. An award of infill housing grant from the City; or
v. Approval of a loan commitment for Project financing.
vi. The Company must request conveyance within forty-eight(48)months after the
date of this Agreement,or the City may, at its option,terminate this Agreement
by written notice.
c. Events Triggering Termination and Reverter of Title
If the Company fails to begin or Substantially Complete construction of the
Improvements according to the deadlines above(subject to Unavoidable Delays),the City
may terminate this Agreement pursuant to Section 19,with no further obligation of any
kind to the Company. If development was timely commenced,but later stopped or
delayed due to an act of God,war,civil disturbance,court order, labor dispute, fire,or
other cause beyond the reasonable control of the Company(each an"Unavoidable
Delay"),the Completion Deadline shall be extended for the duration of such delay. If the
City properly terminates this Agreement,it shall have no obligation to reimburse the
Company for any Project costs or compensate the Company for any value added to the
Property. Upon termination,the City may demand reconveyance of the Property in
addition to pursuing any other available remedies.
8. REVERTER OF TITLE; INDEMNITY
In the event of any reverter of title pursuant to Section 7,the Company shall,at its sole expense,promptly
execute all documents—including but not limited to a special warranty deed—or take any other actions
reasonably requested by the City to effectuate the reverter and deliver title to the City free and clear of all
liens,claims,charges,or security interests.The Company shall also return any abstract of title previously
provided.The Company shall fully satisfy and discharge all liens on or against the Property prior to
reconveyance.Appointment of Attorney-in-Fact. If the Company fails to deliver such required
documents within thirty(30)days after written demand from the City,the City is authorized to execute
the same on the Company's behalf as its attorney-in-fact for the limited purpose of completing
reconveyance to the City.The Company acknowledges and grants the City this authority for such limited
purpose.
The Company further agrees to indemnify and hold harmless the City from any demand,claim, cause of
action,damage,or injury arising out of or in connection with the Project,the Company's failure to
commence or complete the Project,or any lien against the Property resulting from the Company's
ownership.If the City initiates legal action to enforce this Agreement and prevails,the Company shall be
responsible for all associated legal expenses,including reasonable attorneys'fees.The Company's
indemnity obligations under this Section shall survive expiration,termination,or cancellation of this
Agreement for any reason.
9. NO ENCUMBRANCES; LIMITED EXCEPTION
Until Substantial Completion of the Improvements,the Company shall not create or permit any liens
against the Property except for mortgages reasonably necessary to finance construction of the
Improvements.The Company shall provide advance notice to the City prior to executing any such
mortgage.No mortgage may be placed on the Property except as permitted above,and any non-
conforming mortgage shall be void.
10. UTILITIES
The Company shall,at its sole cost,extend and install all necessary utilities serving the Property—
including water,sewer,telephone,telecommunications,electricity,and gas—and shall be responsible for
all associated connection fees.
11. MINIMUM ASSESSMENT AGREEMENT
The Company shall pay all taxes,assessments, and charges levied upon the Property when due. The
Company further agrees that,prior to the valuation date(as may be extended)specified in Section 2 of the
Minimum Assessment Agreement("MAA")attached as Exhibit B,it will not seek or cause a reduction in
the assessed valuation of the improved Property below the Minimum Actual Value of$2,000,000,whether
by:
a. Willful destruction of the Property,the Improvements,or any part thereof;
b. Requesting a reduction from the Black Hawk County Assessor; or
c. Pursuing administrative, legal,or equitable proceedings before any governmental
authority.
The Company agrees to execute and deliver the MAA concurrently with the execution and delivery of this
Agreement.
12. PROJECT INCENTIVES
To support the Project,the City agrees to provide the following assistance:
a. Grants: Provided the Company(i)completes the Improvements prior to the Completion
Deadline,and(ii)executes the MAA as required under Section 11,the City shall make a
lumpsum Grant payment of$600,000. The Grant will be paid half within thirty(30)days
after the start of construction of Phase 2 Improvements and half within thirty(30)days
after the City issues Occupancy Permits for the Project.
b. Property Tax Rebates: City will pay property Tax Rebates as set forth in Section 13
c. Infill Housing Grant Infill Housing Grant included in above grant.
d. Support for Applications. City agrees that it will cooperate in good faith with Company
and, if necessary for program requirements,will sponsor Company applications for
available tax credits and/or rebates and other available government funding,if Company
chooses to make such application. The parties anticipate that Company may apply for
federal and State of Iowa historic tax credits and other incentives.
13. TAX REBATES.
Provided that Company has completed Substantially Completed the Improvements before the Completion
Deadline,and subject to the other terms of this Agreement,City agrees to rebate property tax(with the
exceptions noted below)with respect to the Improvements,as follows:
Year One through Year Fifteen- 70%rebate each year
for any taxable value added by the completed Improvements(each such payment is a"Rebate")over the
initial base value of$0.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 taxable value of the Property as a result of the Improvements must be increased by a minimum of
10%and must increase the annual tax by a minimum of$500.00.Rebates shall not be paid based on any
special assessment levy, debt service levy,or any other levy that is exempted from treatment as tax
increment financing under the provisions of applicable law.
The first Fiscal Year in respect of which a Rebate may be given("Year One")shall be the first full Fiscal
Year for which the assessment is based upon the completed value of the Improvements and not based on a
prior Fiscal Year for which the assessment is based solely upon(x)the value of the Property, or upon(y)
the value of the Property and a partial value of the Improvements due to partial completion of such
Improvements or a partial Fiscal Year.
14. LIMITATIONS ON PAYMENT OF REBATES
a. Each payment of a Rebate is subject to annual appropriation by the City Council each
Fiscal Year. City has no obligation to make any payments to Company as contemplated
under this Agreement until the City Council annually appropriates the funds necessary to
make such payments. The right of non-appropriation reserved to City in this paragraph is
intended by the parties,and shall be construed at all times,so as to ensure that City's
obligation to make future payments of Rebates shall not constitute a legal indebtedness of
City within the meaning of any applicable constitutional or statutory debt limitation prior
to the adoption of a budget which appropriates funds for the payment of that installment
or amount.In the event that any of the provisions of this Agreement are determined by a
court of competent jurisdiction or by City's bond counsel to create, or result in the
creation of, such a legal indebtedness of City,the enforcement of the said provision shall
be suspended, and the Agreement shall at all times be construed and applied in such a
manner as will preserve the foregoing intent of the parties,and no Event of Default by
City shall be deemed to have occurred as a result thereof. If any provision of this
Agreement or the application thereof to any circumstance is so suspended,the suspension
shall not affect other provisions of this Agreement which can be given effect without the
suspended provision. To this end the provisions of this Agreement are severable.
b. Notwithstanding the provisions of Section 13 hereof,City shall have no obligation to
make a payment of a Rebate to Company if at any time during the term hereof City fails
to appropriate funds for payment; City receives an opinion from its legal counsel to the
effect that the use of Tax Increments resulting from the Property and Improvements to
fund a Rebate payment to Company,as contemplated under Section 13 above,is not,
based on a change in applicable law or its interpretation since the date of this Agreement,
authorized or otherwise an appropriate urban renewal activity permitted to be undertaken
by City under the Urban Renewal Act or other applicable provisions of the Code,as then
constituted or under controlling decision of any Iowa court having jurisdiction over the
subject matter hereof; or City's ability to collect Tax Increment from the Improvements
and Property is precluded or terminated by legislative changes to Iowa Code Chapter 403.
Upon occurrence of any of the foregoing circumstances, City shall promptly forward
notice of the same to Company. If the circumstances continue for a period during which
two(2)annual Rebate payments would otherwise have been paid to Company under the
terms of Section 13,then City may terminate this Agreement,without penalty or other
liability to City,by written notice to Company.
c. For purposes of this Agreement,"Tax Increments"shall mean the property tax revenues
on the Improvements and Property received by and made available to City for deposit in
an account maintained under this Agreement,the provisions of Iowa Code §403.19 and
the ordinance governing the Urban Renewal Plan.
15. CONDITIONS TO CITY FUNDING
a. The complete or initial funding by City of the Rebates and other Project commitments
shall be deemed an agreement of the parties that the applicable conditions to
disbursement of funds shall,as of the date of such funding,have been satisfied or waived.
If the conditions set forth in this Section are not satisfied at a Rebate disbursement date,
this Agreement shall terminate unless a new disbursement date is established by
amendment to this Agreement. The termination of this Agreement shall be the sole
remedy available to City or Company if, for whatever reason,a condition set forth in this
Section is not satisfied at a Rebate payment date,it being understood that each party shall
nonetheless incur costs and liabilities prior thereto for which they alone are responsible.
City and Company each expressly assumes all responsibility for the costs and liabilities
they may each so incur prior to a Rebate payment date and agree to indemnify and hold
each other harmless therefrom.
b. It is recognized and agreed that the ability of the City to perform the obligations
described in this Agreement, including but not limited to the Rebate payments,is subject
to completion and satisfaction of certain separate city council actions and required legal
proceedings relating to amendment to the urban renewal plan,including the holding of
public hearings on the same.Further,all the obligations of City under this Agreement are
subject to fulfillment, on or before each Rebate payment date,of each of the following
conditions precedent:
i. The representations and warranties made by Company in Section 18 shall be true
and correct as of the Rebate disbursement date with the same force and effect as
if made at such date.
ii. Company shall be in material compliance with all the terms and provisions of
this Agreement.
iii. There has not been,as of the Rebate disbursement date,a substantial change for
the worse in the financial resources and ability of Company, or a substantial
decrease in the financing commitments secured by Company for construction of
the Improvements,which change(s)makes it likely,in the reasonable judgment
of the City,that Company will be unable to fulfill its covenants and obligations
under this Agreement.
16. 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.
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 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.
17. 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.
18. REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants as follows:
a. It has all requisite power and authority to own and operate its properties,to carry on its
business as now conducted and as presently proposed to be conducted,and to enter into
and perform its obligations under this Agreement.
b. This Agreement has been duly and validly executed and delivered by Company and,
assuming due authorization,execution and delivery by the other parties hereto, is in full
force and effect and is a valid and legally binding instrument of Company that is
enforceable in accordance with its terms,except as the same may be limited by
bankruptcy,insolvency,reorganization or other laws relating to or affecting creditors'
rights generally.
c. The execution and delivery of this Agreement,the consummation of the transactions
contemplated hereby,and the fulfillment of or compliance with the terms and conditions
of this Agreement are not prevented by,limited by, in conflict with, or result in a
violation or breach of,the terms,conditions or provisions of any contractual restriction,
evidence of indebtedness,agreement or instrument of whatever nature to which Company
is now a party or by which it or its property is bound,nor do they constitute a default
under any of the foregoing.
d. There are no actions,suits or proceedings pending or threatened against or affecting
Company in any court or before any arbitrator or before or by any governmental body in
which there is a reasonable possibility of an adverse decision which could materially
adversely affect the business(present or prospective), financial position,or results of
operations of Company or which in any manner raises any questions affecting the validity
of the Agreement or Company's ability to perform its obligations under this Agreement.
e. The financing commitments,which Company will proceed with due diligence to obtain,
to finance the construction of the Improvements will be sufficient to enable Company to
successfully complete construction of the Improvements as contemplated in this
Agreement, subject to additional costs incurred due to Unavoidable Delays.
19. 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 acquisition of the
same or resulting from any defect in the Improvements.The indemnified parties shall not
be liable for any damage or injury to the persons or property of Company or its directors,
officers,employees,contractors or agents,or any other person who may be about the
Property or the Improvements,due to any act of negligence or willful misconduct of any
person,other than any act of negligence or willful misconduct on the part of any such
indemnified party or its officers,employees or agents.
b. Except for any willful misrepresentation,any willful misconduct,or any unlawful act of
the indemnified parties,Company agrees to protect and defend the indemnified parties,
now or forever, and further agrees to hold the indemnified parties harmless,from any
claim,demand, suit,action or other proceedings or any type or nature whatsoever by any
person or entity whatsoever that arises or purportedly arises from(1)any violation of any
agreement or condition of this Agreement(except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its rights
under this Agreement),or(2)the acquisition and condition of the Property and the
construction,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.
20. OBLIGATIONS CONTINGENT
Each and every obligation of City under this Agreement is expressly made subject to and contingent upon
City's completion of all procedures,hearings and approvals deemed necessary by City or its legal counsel
for amendment of the urban renewal plan applicable to the Property and/or Project area,all of which must
be completed within 180 days from the date this Agreement is approved by the City Council.
If such completion does not occur,then any conveyance,benefit or incentive of any type provided by City
hereunder within said 180-day period is subject to reverter of title,revocation,repayment or other
appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate
diligently and in good faith with any reasonable request by City to effectuate the restoration of same,or
failing such restoration Company agrees to be liable for same or for the fair value thereof,plus interest on
any sums owing at the rate of 5%per annum commencing with the date of demand for payment, if said
payment is not remitted to City within 30 days.
21. NO ASSIGNMENT OR CONVEYANCE
Company agrees that it will not sell,convey,assign or otherwise transfer its interest in the Property prior
to completion of the Project,whether in whole or in part,to any other person or entity without the prior
written consent of City.Reasonable grounds for the City to withhold its consent shall include but are not
limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the
financial ability to observe all of the terms to be performed by Company under this Agreement.
Notwithstanding the foregoing,Company may mortgage the Property to a lender as security for financing
of Project improvements,but for no other purpose.
22. DEFAULT
The following shall be"Events of Default"under this Agreement,and the term"Event of Default"shall
mean any one or more of the following events that continues beyond any applicable cure periods:
a. Failure by Company to cause the construction of the Improvements to be commenced and
completed pursuant to the terms,conditions and limitations of this Agreement;
b. Transfer by Company of any interest(either directly or indirectly)in the Improvements,
any part of the Property,or this Agreement,without the prior written consent of City
except as authorized by Section 21 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.
23. 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 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.
24. 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.
25. 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.
26. 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.
27. NOTICES
Any notice under this Agreement shall be in writing and shall be delivered in person,by overnight air
courier service,by United States registered or certified mail,postage prepaid,or by facsimile(with an
additional copy delivered by one of the foregoing means),and addressed:
a. If to City,at 715 Mulberry Street,Waterloo,Iowa 50703,facsimile number 319-291-
4571,Attention:Mayor,with copies to the City Attorney and the Community Planning
and Development Director.
b. If to Company,at 136 S Dubuque St.,Iowa City, IA 52240,Attn:Mobin Khan,C/o Astra
Commons.
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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. BINDING EFFECT
This Agreement shall be binding and shall inure to the benefit of the parties and their respective
successors,assigns,and legal representatives.
34. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and
all of which,taken together, shall constitute one and the same instrument.
35. 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.
36. TIME OF ESSENCE
Time is of the essence of this Agreement.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF,the parties have executed this Development Agreement by their duly
authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA
By:
[Name],Mayor
Date: ` "/ I 5J 2-0 7_-s
Attest:
[Name], ity Clerk
THE BATTERY BUILDING LLC
P
� 1
By: k /
[Name], [Title] A4 O6(N O1 A1' , MANAG1f_�_
Date: bF C—V-M 12>f `'), 2 0 2-5
Exhibit A
Northeasterly 60 feet of Lots 6 and 7 and the Northeasterly 60 feet of the Northwesterly 40 feet of Lot 8,
Block 9, Original Plat on the West Side of the Cedar River,in the City of Waterloo,Black Hawk County,
Iowa.
Exhibit B
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of this
' day of 1)e_c-emb-er-- , 202 , and among the CITY OF WATERLOO,
IOWA("City") and The Battery Building 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 A thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the Company will
undertake the development of an area within the City and within the Downtown Waterloo Urban
Renewal and Redevelopment Area, including the construction or development of certain
improvements as set forth in the Development Agreement (the "Minimum Improvements" or
"Improvements") on the Property (also referred to as 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 assessed 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 $2,000,000.00 (the "Minimum Actual Value") until termination of this
Agreement. The parties hereto agree that construction of the Minimum Improvements will be
substantially completed by the date set forth in the Development Agreement, and in any case
if the Minimum Improvements are not substantially completed by December 15, 2029 , the
parties agree to execute an amendment to this Agreement that will extend the date specified in
Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force and
effect,and this Minimum Assessment Agreement shall terminate,on December 31,2054. 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 Developnient 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 or
any portion thereof.
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 THE BATTERY BUILDING LLC
By: � `
By:
Quentin M. Hart, ayor
Pire?(A) -F-IA-/'J
Print Name
Attest: Title: MA-NA E
Kelley Felc e, City Clerk
STATE OF IOWA ) PEAL& BRITNI C PERKINS
) ss. Z _ _ COMMISSION NO.845529
COUNTY OF BLACK HAWK ) * ** MY COMMISSION EXPIRES
��� / IOWA JANUARY 27,2026
On this o22,,�day off a`ee/n�JG/ , 2025, before me, a notary public in and
for the State of Iowa, personally appeared Quentin M. Hart and Kelley Felchle, to me personally
known, who being duly sworn 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.
Net ublic
STATE OF . - Jin )
ss.
COUNTY OF -501./11/1.50/-ti
Subscribed and sworn before me on 12/ 1 i 2 , by F Y 1 ek j‘ KV4)it\
1A4vICtiiP.f (title) of The Battery Building LLC.
Nota Public 1p s� EMILY RODRIGUEZ
o r Commission Number 865857
* * My Commission Expires
/OWP 01/01 J�Q
Notary Public
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 and 00/100 Dollars
($2,000,000.00) until termination of this Minimum Assessment Agreement pursuant to the
terms hereof,subject to adjustment as provided in said agreement.
2irDate :lack Hawk County,Iowa
STATE OF IOWA
)ss.
COUNTY OF BLACK HAWK �" WI c1 C
Subscribed and sworn to before me on I/Pf EYY1 b,f Oc"I /XO 5 by
T.J.Koenigsfeld,Assessor for Black Hawk County,Iowa.
. LEXI SCHNEIDER
* COMMISSION Not4O.869089 k.
NOVMEMB R21,20285 Notary Public
awi•
Exhibit C
SCOPE OF WORK — PHASE 1
w.....-
TENANC
Agi11T��TJ Lire
Central Battery Building
221 West 5th Street
Waterloo,Iowa 50701
The below summary of work shall represent the initial Phase 1 of improvements to the Central Battery
Building which prioritize immediate emergency repairs with the intent of mitigating continued deterioration
of the structure.A subsequent Phase 2 shall involve major improvements to the site.All Phase 1 tasks
shall be coordinated by the contractor in cooperation with the Development team and City of Waterloo.
During Phase 1:Emergency Repairs,the City of Waterloo shall maintain ownership of the property but
shall grant access to the Development team and contractors for the purposes of completing the below
scope of work and other pre-development efforts.
The preferred schedule for emergency repairs is such that the structure be reasonably protected from
winter conditions prior to December 24th,2025.
Summary of Emergency Repairs
Basement Level
1. Shoring walls shall be constructed at northeast corner where floor/ceiling
structure is failing(near chimney and boiler)
2. Storm and sewer lines shall be scoped and any obstructions or deficiencies
identified and addressed in a subsequent proposal
3. Continue shoring wall at failing 3rd floor beam location(northwest corner or
structure)
4. Remove all debris,loose items,and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation(i.e.pigeon sh*t and
carcases)
5. Ensure roof drains are sufficiently draining and pipes are continuously connected
to main lines at alley/5th Street
6. Rebuild/repair east stair with handrail(temporary stair for construction purposes)
7. Monitor infilled windows to ensure rotted plywood and 2x framing does not fail at
alley
Level 1 (Street Level)
8. Demo portion of stair wall at southwest stair to allow access from interior space
to Level 2
9. Continue shoring wall at failing 3rd floor beam location(northwest corner or
structure)
10.Shoring wall(s)shall be constructed at building addition line(southeast'A of
structure)where original brick exterior is visible and failing
11. Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (I.e. pigeon sh*t and
carcases)
12.Ensure roof drains are sufficiently draining and pipes are continuously connected
to main lines at alley /5th Street
13.Rebuild/repair east stair with handrail (temporary stair for construction purposes)
Level 2
14.Continue shoring wall at failing 3rd floor beam location (northwest corner or
structure)
15.Shoring wall(s) shall be constructed at building addition line (southeast '/3 of
structure) where original brick exterior is visible and failing
16.Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (I.e. pigeon sh*t and
carcases)
17.Ensure roof drains are sufficiently draining and pipes are continuously connected
to main lines at alley/ 5th Street
18.Rebuild/repair east stair with handrail (temporary stair for construction purposes)
Level 3
19.Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (I.e. pigeon sh*t and
carcases)
Exterior & Building Envelope
20.Cover opening(s) in masonry at north alley wall with plywood and 2x framing
and/or heavy duty tarp as needed, avoid damaging existing masonry and roof
structure
21.Reinforce roof structure at failing roof drain location (-8'-0" x 8'-0") with shoring
walls and/or sistered roof joists, and temporary plywood roof deck
22.Patch roof opening(s) with compatible membrane and ensure roof drain(s) is(are)
providing proper drainage with minimal ponding, drain(s) shall be properly
flashed to minimize water infiltration
23.Ensure overflow scupper can provide proper drainage away from the structure at
north alley wall
24.Cap chimney at northeast corner of structure
25.Cap all pipe penetrations through roof
26.Remove vegetation at lower roof and patch roof membrane
27.Ensure all window and door openings are filled with existing windows and/or
plywood to deter animal infestation and exposure to weather
28.Drone video footage shall be collected that investigates further roof, parapet, and
upper level fenestration deterioration to assist in the identification of further
emergency repairs and/or Phase 2 improvements
29.Window sills and adjacent masonry at north alley wall Level 3 windows shall be
secured and/or covered with a temporary solution to minimize further
deterioration, solutions shall minimize damage to adjacent masonry wall
30.It shall be assumed that an alley closure can be obtained for the duration of the
Phase 1 emergency repairs, exterior walls at the north and east side of the
structure shall be braced and shored in place to ensure masonry walls do not fail,
City shall provide fencing and signage for alley closure, monitoring devices shall
be installed at major crack locations in masonry walls
General
31.Investigate roof drain heating solutions (e.g. solar powered heat tape), to be
addressed in subsequent proposal if adequate solution can be found
32.Permitting and associated fees shall be coordinated by the contractor with the
City of Waterloo
33.Access to the site shall be coordinated with the City of Waterloo
At the time of preparing this narrative, per feedback from contractor consultation,
specific shoring scope shall include the below list (the below list shall be subject to
change pending findings during demolition and emergency repairs):
• NE Corner of building
O 15'-0"x 12"x%" Steel welded around the corner and fastened to the masonry
• Shoring per callouts
• Additional shoring per contractor on each floor that would carry the weight of the shoring above
down into the basement for a full weight transfer
• Rotting Brick by telephone pole
O 3"x 2"x 15'-0" square tubing columns to be installed with through wall bolts and welding
at existing lintels where possible
• Rotting brick below windows
o 5'-0"x 3'-0" x'/<" steel plates fastened into masonry to prevent brick from falling
Prepared by: Austin J.McMahon.Lange&McMahon.PLC.222 1 st St.E..Independence.IA (319)334-4488
After recording,return to Community Planning&Development, 715 Mulberry Street,Waterloo,IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement(the"Agreement")is entered into as of Dec- l5 ,202+;' by and
between The Battery Building LLC(the "Developer" or the"Company")and the City of Waterloo,Iowa
(the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa,as amended(the "Urban
Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known
as the Downtown Waterloo Urban Renewal and Redevelopment Area("Urban Renewal Area").
B. City is the owner of the real property at 221 West 5th Street,Waterloo,Iowa, legally described on
Exhibit"A" attached hereto(the "Property").Developer desires to redevelop the Property as a
mixed-use Project.
C. City and the Developer both acknowledge that the Property is in need of emergency repairs and
stabilization,including structural repairs,to prevent further deterioration and potential loss of
eligibility for historic tax credits. The parties acknowledge that the Property has experienced
deferred maintenance,water damage, and other conditions that may present safety hazards,and
that City,as the current owner,retains all liability for such conditions until conveyance of the
Property to Developer.
D. Developer is willing and able to undertake the redevelopment of the Property,including
emergency stabilization work,pursuit of listing the Property as historic building on the National
Register,tax credit approvals,and subsequent full renovation, and to finance and complete such
improvements in a phased approach as described herein. The Project financing structure will
include multiple sources as shown on Exhibit"C" attached hereto, including federal and state
historic tax credits,which are essential to the financial feasibility of the Project.
E. City has retained a qualified environmental consultant who has completed a Phase I
Environmental Site Assessment of the Property dated September 18,2025. City will commence a
Phase II Environmental Site Assessment and will make the results of both environmental
assessments available to Developer. The parties acknowledge that any environmental remediation
identified as necessary by the Phase I or Phase II Environmental Site Assessment is not covered
by this Agreement and is expected to be conducted by the City.
F. City considers economic development within the City and preservation of historic structures to be
a benefit to the community and is willing for the overall good and welfare of the community to
provide financial assistance and conveyance of the Property to encourage that goal, and the City
further believes that the Project is in the vital and best interests of the City and that such
assistance is 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. DEFINITIONS
For purposes of this Agreement,the following terms shall have the meanings set forth below:
a. "Closing Date" means the date on which the Property is conveyed from City to
Developer pursuant to Section 7.
b. "Phase 1" means the Emergency Repair and Stabilization work needed for the Property
as described in Section 3.
c. "Phase 1 Completion" means the date on which(a)the Emergency Repair Work has
been completed pursuant to the Phase 1 Plans,(b)Developer has delivered all other
Phase 1 Deliverables to City's satisfaction.
d. "Phase 2" means the Full Redevelopment Phase as described in Section 5.
e. "Phase 2 Commencement Conditions" means the conditions precedent to
commencement of Phase 2 as set forth in Section 5.
f. "Project" means collectively the Property,the Phase 1 Work,the Phase 2 Work, all
Improvements, and all site preparation and development-related work to make the
Property usable for Developer's purposes as contemplated by this Agreement.
g. "Substantial Completion" means,with respect to Phase 2,the date on which the Phase
2 Improvements have been completed pursuant to the Plans to the extent necessary for
City to issue a certificate of occupancy relating thereto.
2. SALE OF PROPERTY; TITLE
Subject to the terms hereof,City shall convey the Property to Company in its as-is condition for the sum
of$1.00(the "Purchase Price")Conveyance shall be by special warranty deed,free and clear of all
encumbrances arising by or through City except.(a)easements, servitudes, conditions and restrictions of
record;(b)general utility and right-of-way easements serving the Property,and(c)restrictions imposed
by the City zoning ordinances and other applicable law.City makes no representation or warranty as to
the condition of the Property or its suitability for Company's purposes. Company is responsible to conduct
its own due diligence and inspections. City shall convey title to Company in accordance with the terms of
Section 1 and Section 7. Company shall,at its own expense,prepare an updated abstract of title, or in lieu
thereof Company may,at its own option and 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. Add wording regarding documentation of financing.
3. PHASE 1 IMPROVEMENTS
The Property is currently owned by the City.City agrees to convey the Property to Developer as
described in Sections 1 and 7,and Developer agrees to undertake the Project upon the Property in
accordance with the phased approach described herein.
a. Phase 1 Property Access and License
i. License to Access Property. City hereby grants to Developer,and Developer's
contractors,consultants,architects,engineers,and other authorized
representatives(collectively, "Developer's Representatives"),a non-exclusive
license to enter upon and access the Property during Phase 1 for the following
purposes:
1. To perform all Phase 1 Work described in Section 3,including
emergency structural repairs and stabilization work;
2. To conduct inspections,assessments,and investigations necessary for the
Phase 1 Work and for preparation of the Phase 2 plans;
3. To retain and meet with consultants,contractors,and other professionals
at the Property;
4. To take photographs and measurements;
5. To perform any other activities reasonably necessary to accomplish the
Phase 1 Work and to prepare for Phase 2.
ii. Term of License. This license shall commence upon execution of this
Agreement and shall continue until the earlier of: (i)the Closing Date,or(ii)
termination of this Agreement.
b. Conditions of Access.
i. Notice: Except in emergency situations,Developer shall provide City with
reasonable advance notice before accessing the Property, specifying the nature of
the work to be performed and the personnel who will be present.
ii. Insurance: Developer shall maintain the insurance coverages required by
Section 16(a)at all times when accessing or working on the Property.
iii. Compliance with Law: Developer shall comply with all applicable laws,codes,
and regulations when accessing and working on the Property.
iv. Safety: Developer shall implement reasonable safety measures and shall not
create unreasonable safety hazards.Developer shall secure the Property after
each day's work to prevent unauthorized access.
v. City Observation: City shall have the right, but not the obligation,to observe
any work being performed on the Property upon reasonable notice to Developer.
vi. No Interference: Developer shall conduct its activities in a manner that
minimizes interference with City's ownership and control of the Property and
with neighboring properties and public rights-of-way except as provided in
Section 3 (d).
c. City's Retained Ownership and Control.During Phase 1:
i. City retains full ownership of the Property;
ii. City shall not be liable for any injuries,damages,or loss of any kind or nature
arising out of defective workmanship or negligent acts or omissions of the
Developer or Developer's Representatives. Subject to the foregoing, City shall
have liability for:
1. Injuries or damages caused by conditions of the Property preexisting the
commencement of work;
2. Structural failures due to building defects existing prior to the
commencement of work;
3. Environmental conditions preexisting the commencement of work;
4. Safety hazards preexisting the commencement of work that are the result
of deferred maintenance,water damage,or deterioration;
5. Developer is acting as City's authorized contractor and agent for
purposes of performing the Phase 1 Work;
6. City shall cooperate reasonably with Developer's access needs and shall
not unreasonably interfere with Developer's performance of Phase 1
Work.
7. For all preexisting environmental contamination and latent hazardous
conditions.
iii. Utilities and Services.
1. City shall assist Developer in getting utility services(electricity,water,
etc.)to the Property to the extent necessary for Developer to perform
Phase 1 Work,or shall authorize Developer to arrange for such services.
2. Developer shall be responsible for any temporary utilities or services
needed specifically for construction activities(temporary power,
construction toilets, etc.).
iv. Keys and Access Devices.City shall provide Developer with keys,access codes,
or other means of accessing the Property as reasonably necessary for Phase 1
Work.
v. No Rent or Fee.City shall not charge Developer any rent,license fee,or other
compensation for access to the Property during Phase 1.
vi. Right to Secure Property.Developer shall have the right to install temporary
fencing,barriers,or other security measures as reasonably necessary to secure the
Property and the Phase 1 Work,subject to City's prior approval(not to be
unreasonably withheld or delayed)and compliance with applicable codes and
ordinances.
d. Alley and Right-Of-Way Access and Restrictions
i. Cooperation on Access Needs. The parties acknowledge that the Project may
require temporary restrictions,closures,or modifications to adjacent alleys,
sidewalks,or other public rights-of-way during Phase 1 emergency work and
Phase 2 construction.City agrees to reasonably cooperate with Developer's needs
in this regard,including:
1. Processing applications for temporary right-of-way closures or
restrictions;
2. Issuing permits for temporary placement of construction equipment,
dumpsters,or materials in adjacent alleys or rights-of-way;
3. Coordinating with other City departments(Public Works,Engineering,
Police,Fire)to facilitate necessary closures or restrictions;
4. Working with Developer to minimize impacts on neighboring properties
and businesses;
5. Providing necessary traffic control or signage to the extent available, as
required by City ordinances.
e. City's Role.
i. Review and Approval: City shall review applications for temporary closures or
restrictions in a timely manner and shall not unreasonably withhold or delay
approval,provided that applications are complete and satisfy applicable legal
requirements;
ii. Coordination: City shall coordinate with Developer and affected parties to
minimize conflicts and disruptions.
4. PHASE 1 -EMERGENCY REPAIR AND STABILIZATION
a. Phase 1 Scope of Work.Developer shall undertake the following work during Phase 1
(collectively,the"Phase 1 Work"):
i. Emergency Structural Repairs: Developer shall cause to be performed such
emergency repairs and stabilization work,as detailed in Exhibit C,to prevent
further deterioration of the building structure,to maintain the building in a safe
condition,and to preserve the building's historic character and integrity.
ii. Structural Engineering Consultant Services: Developer shall retain a qualified
structural engineering consultant to advise on the emergency repair and
stabilization work.
iii. Historic Preservation Consultant Services: Developer shall retain a qualified
historic preservation consultant meeting the Secretary of the Interior's
Professional Qualification Standards to:
1. Advise on emergency repair methods that comply with the Secretary of
the Interior's Standards for Rehabilitation;
2. Provide oversight during Phase 1 emergency work to ensure compliance
with historic preservation standards;
iv. Architectural Services: Developer shall retain a qualified architect to:
1. Prepare Phase 1 Plans showing the scope of emergency repair work;
2. Coordinate with the historic preservation consultant and structural
engineering consultant to ensure all work complies with the Secretary of
the Interior's Standards for Rehabilitation.
b. Phase 1 Budget. The parties acknowledge that the estimated budget for Phase 1 Work is
as follows:
Hard cost $ 187,815
Soft costs(Architecture,Engineering,Historic) $ 60,000
Project Management $ 11,500
Total $ 259,315
Note: City has separately retained an environmental consultant and is responsible for the cost of
Phase I and Phase II Environmental Site Assessments.These costs are not included in the Phase 1
Budget above and are not eligible for reimbursement from Developer.Any environmental
remediation costs identified as necessary by the Phase I or Phase II Environmental Site
Assessments are also NOT included in the Phase 1 Budget and are not covered by this
Agreement.Environmental remediation will be subject to separate negotiation and written
agreement between the parties.
c. City Payment for Phase 1. Subject to the terms and conditions of this Agreement,City
agrees to pay Developer for Phase 1 Work in accordance with the following:
i. Payment Structure: City shall pay Developer up to$259,315 (the "Phase 1
Payment"),with invoices submitted for work completed and accepted,with
invoices to be paid within 30 days of submittal and acceptance of work.
ii. Deliverables for Phase 1
1. Completion of the Phase 1 Emergency Repair Work as listed on Exhibit
C
2. Reports and other work generated by Consultants hired by the Developer
on the Project.
iii. Itemized Billing Required: The Phase 1 Payment is a reimbursement payment
for Developer's completed work on Phase 1 scope of work outlined in Exhibit C.
The Phase 1 Payment is earned upon completion of work. So long as there is no
default or breach with respect to Phase 1,including but not limited to,defective
workmanship,then City shall not be entitled to a refund of sums paid.
iv. Environmental Remediation Costs Not Included: Environmental
remediation costs are NOT included in the Phase 1 Payment and are NOT
covered by this Agreement.Environmental remediation,if any is required,
will be addressed through separate negotiation and a separate written
agreement between the parties.
d. Phase 1 Timeline.
i. Commencement: Developer shall commence Phase 1 Work within thirty(30)
days after the date of this Agreement.
ii. Milestones: Developer shall use commercially reasonable efforts to achieve the
following milestones: Emergency stabilization work completed within three
months of Agreement execution;
iii. Progress Updates: Developer shall provide written progress updates to City on a
monthly basis,including status of all applications, submissions,agency
responses,work completed,and historic listing strategy being pursued
(individual listing or district expansion).
e. Phase 1 Deliverables.Developer shall deliver to City:
i. As-built drawings showing all Phase 1 emergency work completed;
ii. Statement from Architect or Structural Engineer to certify the work has been
completed
f. Phase 1 Limitations
i. Developer makes no representation or warranty, express or implied,that any
emergency repair and stabilization work done during Phase 1 will be sufficient to
ensure the structural integrity or stability of the Property or improvement on the
Property.Emergency repairs are temporary measures only and do not constitute a
guarantee that any structure will remain standing or continue to be safe for
occupancy following such repairs.
ii. The parties acknowledge that emergency repairs are inherently unpredictable in
scope and outcome,and that assessment of structural conditions during
emergency circumstances may be incomplete. Developer shall have no liability
for any failure of emergency repairs to prevent structural collapse,property
damage,or other losses, except to the extent caused by defective workmanship,
gross negligence,or willful misconduct of the Developer or Developer's
Representatives.
5. PHASE 2 IMPROVEMENTS
Developer shall rehabilitate and renovate the existing structure on the Property and construct a
commercial retail space on first floor and up to nineteen(19)apartments, common spaces and supporting
amenities, and related landscaping, storm water,paving, sidewalks, signage and parking improvements
(collectively,the"Improvements"). Company agrees that the Improvements shall be constructed in
accordance with the terms of this Agreement,the Urban Renewal Plan,and all applicable City, state,and
federal building codes and shall comply with all applicable City ordinances and other applicable law.
Furthermore,Company shall exercise reasonable efforts to rehabilitate the building according to the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic
Buildings and to work with the Iowa State Historical Preservation Office in order to qualify the Project
for available federal and/or State of Iowa historic tax credits. 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 maybe lawfully constructed.
6. 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 2 conditions of the urban renewal
plan;(c)the Modified Plans conform to all applicable federal,state and local laws,ordinances,rules and
regulations and City permit and design review requirements; (d)the Modified Plans are adequate for
purposes of this Agreement to provide for the construction of the Improvements,and(e)no Event of
Default under the terms of this Agreement has occurred;provided,however,that any such approval of the
Plans or Modified Plans pursuant to this Section shall constitute approval for the purposes of this
Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any
building,fire,zoning or other ordinances or regulations of the City,and shall not be deemed to be
sufficient plans to serve as the basis for the issuance of a building permit if the Plans or Modified Plans
are not as detailed or complete as the plans otherwise required for the issuance of a building permit.
The Plans or Modified Plans must be rejected in writing by City within thirty(30)days of submission or
shall be deemed to have been approved by the City. If City rejects the Plans or Modified Plans in whole or
in part,Company shall submit new or corrected Plans or Modified Plans within thirty(30)days after
receipt by Company of written notification of the rejection, accomplished by a written statement of the
City specifying the respects in which Company's Plans or Modified Plans fail to conform to the
requirements of this Section.The provisions of this Section relating to approval,rejection and
resubmission of corrected Plans or Modified Plans shall continue to apply until they have been approved
by the City;provided,however,that in any event Company shall submit Plans or Modified Plans which
are approved by City prior to commencement of construction of additional or modified Improvements.
Approval of the Plans or Modified Plans by the City shall not relieve Company of any obligation to
comply with the terms and provisions of this Agreement,or the provision of applicable federal,state and
local laws, ordinances and regulations,nor shall approval of the Plans or Modified Plans by City be
deemed to constitute a waiver of any Event of Default.Approval of Plans or Modified Plans hereunder is
solely for purposes of this Agreement and shall not constitute approval for any other City Purpose nor
subject the City to any liability for the Improvements as constructed.
7. TIMELINESS OF CONVEYANCE AND CONSTRUCTION; POSSIBILITY OF
TERMINATION AND REVERTER
The parties acknowledge that the Company's commitment to undertake the Project and timely construct
the Improvements is a material inducement for the City to convey the Property to the Company.Without
such commitment,the City would not convey the Property.
a. Deadlines to Commence and Complete Construction
The Company must obtain a building permit and begin rehabilitation and construction of
the Improvements within four(4)months after the date of conveyance(the"Start Date").
The Company must achieve Substantial Completion of the Improvements within twenty-
four(24)months after the Start Date(the"Completion Deadline").For purposes of this
Agreement,"Substantially Completed"means that the Improvements have been
completed to the extent necessary for the City to issue a certificate of occupancy and the
City has verified that any Project element not requiring a permit has also been
Substantially Completed.All deadlines are subject to Unavoidable Delays as defined
below.The City's Community Planning and Development Director may,but is not
required to,approve a single extension of up to six(6)months for construction of the
Improvements.Any additional or longer extension requires approval by the City Council.
b. Time of Conveyance. The City will convey title to the Company within thirty(30)days
of receiving a written request for conveyance from the Company,provided that prior to
such request the Project has received at least one of the following:
i. An award of 4%tax credits from the Iowa Finance Authority;
ii. An award of state and federal historic tax credits in an amount satisfactory to the
Company;
iii. An award of brownfield/grayfield tax credits from the State of Iowa;
iv. An award of infill housing grant from the City;or
v. Approval of a loan commitment for Project financing.
vi. The Company must request conveyance within forty-eight(48)months after the
date of this Agreement, or the City may,at its option,terminate this Agreement
by written notice.
c. Events Triggering Termination and Reverter of Title
If the Company fails to begin or Substantially Complete construction of the
Improvements according to the deadlines above(subject to Unavoidable Delays),the City
may terminate this Agreement pursuant to Section 19,with no further obligation of any
kind to the Company. If development was timely commenced,but later stopped or
delayed due to an act of God,war,civil disturbance,court order, labor dispute,fire,or
other cause beyond the reasonable control of the Company(each an"Unavoidable
Delay"),the Completion Deadline shall be extended for the duration of such delay. If the
City properly terminates this Agreement,it shall have no obligation to reimburse the
Company for any Project costs or compensate the Company for any value added to the
Property.Upon termination,the City may demand reconveyance of the Property in
addition to pursuing any other available remedies.
8. REVERTER OF TITLE; INDEMNITY
In the event of any reverter of title pursuant to Section 7,the Company shall, at its sole expense,promptly
execute all documents—including but not limited to a special warranty deed—or take any other actions
reasonably requested by the City to effectuate the reverter and deliver title to the City free and clear of all
liens,claims,charges, or security interests.The Company shall also return any abstract of title previously
provided.The Company shall fully satisfy and discharge all liens on or against the Property prior to
reconveyance.Appointment of Attorney-in-Fact. If the Company fails to deliver such required
documents within thirty(30)days after written demand from the City,the City is authorized to execute
the same on the Company's behalf as its attorney-in-fact for the limited purpose of completing
reconveyance to the City.The Company acknowledges and grants the City this authority for such limited
purpose.
The Company further agrees to indemnify and hold harmless the City from any demand,claim,cause of
action,damage, or injury arising out of or in connection with the Project,the Company's failure to
commence or complete the Project,or any lien against the Property resulting from the Company's
ownership.If the City initiates legal action to enforce this Agreement and prevails,the Company shall be
responsible for all associated legal expenses,including reasonable attorneys'fees.The Company's
indemnity obligations under this Section shall survive expiration,termination,or cancellation of this
Agreement for any reason.
9. NO ENCUMBRANCES; LIMITED EXCEPTION
Until Substantial Completion of the Improvements,the Company shall not create or permit any liens
against the Property except for mortgages reasonably necessary to finance construction of the
Improvements.The Company shall provide advance notice to the City prior to executing any such
mortgage.No mortgage may be placed on the Property except as permitted above,and any non-
conforming mortgage shall be void.
10. UTILITIES
The Company shall,at its sole cost,extend and install all necessary utilities serving the Property—
including water,sewer,telephone,telecommunications,electricity,and gas—and shall be responsible for
all associated connection fees.
11. MINIMUM ASSESSMENT AGREEMENT
The Company shall pay all taxes,assessments,and charges levied upon the Property when due.The
Company further agrees that,prior to the valuation date(as may be extended)specified in Section 2 of the
Minimum Assessment Agreement("MAA")attached as Exhibit B,it will not seek or cause a reduction in
the assessed valuation of the improved Property below the Minimum Actual Value of$2,000,000,whether
by:
a. Willful destruction of the Property,the Improvements,or any part thereof;
b. Requesting a reduction from the Black Hawk County Assessor;or
c. Pursuing administrative, legal, or equitable proceedings before any governmental
authority.
The Company agrees to execute and deliver the MAA concurrently with the execution and delivery of this
Agreement.
12. PROJECT INCENTIVES
To support the Project,the City agrees to provide the following assistance:
a. Grants: Provided the Company(i)completes the Improvements prior to the Completion
Deadline,and(ii)executes the MAA as required under Section 11,the City shall make a
lumpsum Grant payment of$600,000. The Grant will be paid half within thirty(30)days
after the start of construction of Phase 2 Improvements and half within thirty(30)days
after the City issues Occupancy Permits for the Project.
b. Property Tax Rebates: City will pay property Tax Rebates as set forth in Section 13
c. Infill Housing Grant Infill Housing Grant included in above grant.
d. Support for Applications. City agrees that it will cooperate in good faith with Company
and, if necessary for program requirements,will sponsor Company applications for
available tax credits and/or rebates and other available government funding, if Company
chooses to make such application. The parties anticipate that Company may apply for
federal and State of Iowa historic tax credits and other incentives.
13. TAX REBATES.
Provided that Company has completed Substantially Completed the Improvements before the Completion
Deadline,and subject to the other terms of this Agreement,City agrees to rebate property tax(with the
exceptions noted below)with respect to the Improvements,as follows:
Year One through Year Fifteen- 70%rebate each year
for any taxable value added by the completed Improvements(each such payment is a"Rebate")over the
initial base value of$0.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 taxable value of the Property as a result of the Improvements must be increased by a minimum of
10%and must increase the annual tax by a minimum of$500.00.Rebates shall not be paid based on any
special assessment levy,debt service levy,or any other levy that is exempted from treatment as tax
increment financing under the provisions of applicable law.
The first Fiscal Year in respect of which a Rebate may be given("Year One")shall be the first full Fiscal
Year for which the assessment is based upon the completed value of the Improvements and not based on a
prior Fiscal Year for which the assessment is based solely upon(x)the value of the Property,or upon(y)
the value of the Property and a partial value of the Improvements due to partial completion of such
Improvements or a partial Fiscal Year.
14. LIMITATIONS ON PAYMENT OF REBATES
a. Each payment of a Rebate is subject to annual appropriation by the City Council each
Fiscal Year. City has no obligation to make any payments to Company as contemplated
under this Agreement until the City Council annually appropriates the funds necessary to
make such payments. The right of non-appropriation reserved to City in this paragraph is
intended by the parties,and shall be construed at all times,so as to ensure that City's
obligation to make future payments of Rebates shall not constitute a legal indebtedness of
City within the meaning of any applicable constitutional or statutory debt limitation prior
to the adoption of a budget which appropriates funds for the payment of that installment
or amount.In the event that any of the provisions of this Agreement are determined by a
court of competent jurisdiction or by City's bond counsel to create, or result in the
creation of, such a legal indebtedness of City,the enforcement of the said provision shall
be suspended,and the Agreement shall at all times be construed and applied in such a
manner as will preserve the foregoing intent of the parties,and no Event of Default by
City shall be deemed to have occurred as a result thereof. If any provision of this
Agreement or the application thereof to any circumstance is so suspended,the suspension
shall not affect other provisions of this Agreement which can be given effect without the
suspended provision. To this end the provisions of this Agreement are severable.
b. Notwithstanding the provisions of Section 13 hereof,City shall have no obligation to
make a payment of a Rebate to Company if at any time during the term hereof City fails
to appropriate funds for payment; City receives an opinion from its legal counsel to the
effect that the use of Tax Increments resulting from the Property and Improvements to
fund a Rebate payment to Company,as contemplated under Section 13 above,is not,
based on a change in applicable law or its interpretation since the date of this Agreement,
authorized or otherwise an appropriate urban renewal activity permitted to be undertaken
by City under the Urban Renewal Act or other applicable provisions of the Code,as then
constituted or under controlling decision of any Iowa court having jurisdiction over the
subject matter hereof; or City's ability to collect Tax Increment from the Improvements
and Property is precluded or terminated by legislative changes to Iowa Code Chapter 403.
Upon occurrence of any of the foregoing circumstances,City shall promptly forward
notice of the same to Company. If the circumstances continue for a period during which
two(2)annual Rebate payments would otherwise have been paid to Company under the
terms of Section 13,then City may terminate this Agreement,without penalty or other
liability to City,by written notice to Company.
c. For purposes of this Agreement,"Tax Increments"shall mean the property tax revenues
on the Improvements and Property received by and made available to City for deposit in
an account maintained under this Agreement,the provisions of Iowa Code §403.19 and
the ordinance governing the Urban Renewal Plan.
15. CONDITIONS TO CITY FUNDING
a. The complete or initial funding by City of the Rebates and other Project commitments
shall be deemed an agreement of the parties that the applicable conditions to
disbursement of funds shall,as of the date of such funding,have been satisfied or waived.
If the conditions set forth in this Section are not satisfied at a Rebate disbursement date,
this Agreement shall terminate unless a new disbursement date is established by
amendment to this Agreement. The termination of this Agreement shall be the sole
remedy available to City or Company if, for whatever reason,a condition set forth in this
Section is not satisfied at a Rebate payment date,it being understood that each party shall
nonetheless incur costs and liabilities prior thereto for which they alone are responsible.
City and Company each expressly assumes all responsibility for the costs and liabilities
they may each so incur prior to a Rebate payment date and agree to indemnify and hold
each other harmless therefrom.
b. It is recognized and agreed that the ability of the City to perform the obligations
described in this Agreement, including but not limited to the Rebate payments, is subject
to completion and satisfaction of certain separate city council actions and required legal
proceedings relating to amendment to the urban renewal plan, including the holding of
public hearings on the same.Further, all the obligations of City under this Agreement are
subject to fulfillment, on or before each Rebate payment date, of each of the following
conditions precedent:
i. The representations and warranties made by Company in Section 18 shall be true
and correct as of the Rebate disbursement date with the same force and effect as
if made at such date.
ii. Company shall be in material compliance with all the terms and provisions of
this Agreement.
iii. There has not been,as of the Rebate disbursement date, a substantial change for
the worse in the financial resources and ability of Company, or a substantial
decrease in the financing commitments secured by Company for construction of
the Improvements,which change(s)makes it likely,in the reasonable judgment
of the City,that Company will be unable to fulfill its covenants and obligations
under this Agreement.
16. 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.
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 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.
17. 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.
18. REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants as follows:
a. It has all requisite power and authority to own and operate its properties,to carry on its
business as now conducted and as presently proposed to be conducted,and to enter into
and perform its obligations under this Agreement.
b. This Agreement has been duly and validly executed and delivered by Company and,
assuming due authorization,execution and delivery by the other parties hereto,is in full
force and effect and is a valid and legally binding instrument of Company that is
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency,reorganization or other laws relating to or affecting creditors'
rights generally.
c. The execution and delivery of this Agreement,the consummation of the transactions
contemplated hereby,and the fulfillment of or compliance with the terms and conditions
of this Agreement are not prevented by,limited by, in conflict with, or result in a
violation or breach of,the terms, conditions or provisions of any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which Company
is now a party or by which it or its property is bound,nor do they constitute a default
under any of the foregoing.
d. There are no actions, suits or proceedings pending or threatened against or affecting
Company in any court or before any arbitrator or before or by any governmental body in
which there is a reasonable possibility of an adverse decision which could materially
adversely affect the business(present or prospective), financial position,or results of
operations of Company or which in any manner raises any questions affecting the validity
of the Agreement or Company's ability to perform its obligations under this Agreement.
e. The financing commitments,which Company will proceed with due diligence to obtain,
to finance the construction of the Improvements will be sufficient to enable Company to
successfully complete construction of the Improvements as contemplated in this
Agreement,subject to additional costs incurred due to Unavoidable Delays.
19. 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 acquisition of the
same or resulting from any defect in the Improvements.The indemnified parties shall not
be liable for any damage or injury to the persons or property of Company or its directors,
officers,employees,contractors or agents, or any other person who may be about the
Property or the Improvements, due to any act of negligence or willful misconduct of any
person, other than any act of negligence or willful misconduct on the part of any such
indemnified party or its officers,employees or agents.
b. Except for any willful misrepresentation,any willful misconduct,or any unlawful act of
the indemnified parties,Company agrees to protect and defend the indemnified parties,
now or forever, and further agrees to hold the indemnified parties harmless,from any
claim,demand,suit,action or other proceedings or any type or nature whatsoever by any
person or entity whatsoever that arises or purportedly arises from(1)any violation of any
agreement or condition of this Agreement(except with respect to any suit,action,
demand or other proceeding brought by Company against the City to enforce its rights
under this Agreement),or(2)the acquisition and condition of the Property and the
construction,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.
20. OBLIGATIONS CONTINGENT
Each and every obligation of City under this Agreement is expressly made subject to and contingent upon
City's completion of all procedures,hearings and approvals deemed necessary by City or its legal counsel
for amendment of the urban renewal plan applicable to the Property and/or Project area,all of which must
be completed within 180 days from the date this Agreement is approved by the City Council.
If such completion does not occur,then any conveyance, benefit or incentive of any type provided by City
hereunder within said 180-day period is subject to reverter of title,revocation,repayment or other
appropriate action to restore such property,benefit or incentive to City,and Company agrees to cooperate
diligently and in good faith with any reasonable request by City to effectuate the restoration of same,or
failing such restoration Company agrees to be liable for same or for the fair value thereof,plus interest on
any sums owing at the rate of 5%per annum commencing with the date of demand for payment, if said
payment is not remitted to City within 30 days.
21. NO ASSIGNMENT OR CONVEYANCE
Company agrees that it will not sell,convey,assign or otherwise transfer its interest in the Property prior
to completion of the Project,whether in whole or in part,to any other person or entity without the prior
written consent of City.Reasonable grounds for the City to withhold its consent shall include but are not
limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the
financial ability to observe all of the terms to be performed by Company under this Agreement.
Notwithstanding the foregoing,Company may mortgage the Property to a lender as security for financing
of Project improvements, but for no other purpose.
22. DEFAULT
The following shall be"Events of Default"under this Agreement,and the term"Event of Default"shall
mean any one or more of the following events that continues beyond any applicable cure periods:
a. Failure by Company to cause the construction of the Improvements to be commenced and
completed pursuant to the terms,conditions and limitations of this Agreement;
b. Transfer by Company of any interest(either directly or indirectly)in the Improvements,
any part of the Property,or this Agreement,without the prior written consent of City
except as authorized by Section 21 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.
23. 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 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.
24. 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.
25. 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.
26. 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.
27. NOTICES
Any notice under this Agreement shall be in writing and shall be delivered in person,by overnight air
courier service,by United States registered or certified mail,postage prepaid,or by facsimile(with an
additional copy delivered by one of the foregoing means),and addressed:
a. If to City,at 715 Mulberry Street,Waterloo,Iowa 50703,facsimile number 319-291-
4571,Attention:Mayor,with copies to the City Attorney and the Community Planning
and Development Director.
b. If to Company,at 136 S Dubuque St.,Iowa City, IA 52240,Attn:Mobin Khan,C/o Astra
Commons.
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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. BINDING EFFECT
This Agreement shall be binding and shall inure to the benefit of the parties and their respective
successors,assigns,and legal representatives.
34. COUNTERPARTS
This Agreement may be executed in multiple counterparts,each of which shall be deemed an original and
all of which,taken together,shall constitute one and the same instrument.
35. 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.
36. TIME OF ESSENCE
Time is of the essence of this Agreement.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF,the parties have executed this Development Agreement by their duly
authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA
By:
[Name],Mayor
Date: 74
I C/ �—�
Attest: 4ga R
[Name], ity Clerk
THE BATTERY BUILDING LLC
By:
[Name], [Title] Orb(N 0-(1W , MANIAC1E.
Date: 'bE-c'.x.M E 1 ,, 2 0 2--5
Exhibit A
Northeasterly 60 feet of Lots 6 and 7 and the Northeasterly 60 feet of the Northwesterly 40 feet of Lot 8,
Block 9,Original Plat on the West Side of the Cedar River,in the City of Waterloo,Black Hawk County,
Iowa.
Exhibit B
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of this
5441 day of ciyy,b-e--- , 202 5, and among the CITY OF WATERLOO,
IOWA("City") and The Battery Building LLC ("Company"), and the COUNTY ASSESSOR of
the BLACK HAWK COUNTY, IOWA("Assessor").
WITNES SETH:
WHEREAS,on or before the date hereof the City and Company have entered into a development
agreement (the "Development Agreement") regarding certain real property (the "Property"),
described in Exhibit A thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the Company will
undertake the development of an area within the City and within the Downtown Waterloo Urban
Renewal and Redevelopment Area, including the construction or development of certain
improvements as set forth in the Development Agreement (the "Minimum Improvements" or
"Improvements") on the Property(also referred to as 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 assessed 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 $2,000,000.00 (the "Minimum Actual Value") until termination of this
Agreement. The parties hereto agree that construction of the Minimum Improvements will be
substantially completed by the date set forth in the Development Agreement, and in any case
if the Minimum Improvements are not substantially completed by December 15, 2029 , the
parties agree to execute an amendment to this Agreement that will extend the date specified in
Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force and
effect,and this Minimum Assessment Agreement shall terminate, on December 31,2054. 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 Developrrlent 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 or
any portion thereof.
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 THE BATTERY BUILDING LLC
By: - By: `
Quentin M. Hart, Mayor
Met' fit-(M )
Print Name
Attest: 0_,e,e6t4Title: M (A-NA .
Kelley Felc ��'�-�, City Clerk
STATE OF IOWA ) a�AC BRITNI C PERKINS
) ss. z COMMISSION NO. 845529
COUNTY OF BLACK HAWK ) * * MY COMMISSION EXPIRES
,��,�,-�,�((�, / IOWA JANUARY 27,2026
On this old`"day off eee/ 4e..l , 2025, before me, a notary public in and
for the State of Iowa, personally appeared Quentin M. Hart and Kelley Felchle, to me personally
known,who being duly sworn 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.
Net ublic
STATE OF -1- n i ) V
) ss.
COUNTY OF -5(.11InJ().-,
Subscribed and sworn before me on 1'Li /(i) I 2`�$ , by '"`'CV}- K\rit,�
NAw:l.Gii'r (title) of The Battery Building LLC.
N Ota PUbIIC ti0�,pL s� EMILY RODRIGUEZ
o r Commission Number 865857
* My Commission Expires
,ow P. 01/0 /2Yre
Notary Public
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 and 00/100 Dollars
($2,000,000.00) 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
Exhibit C
SCOPE OF WORK—PHASE 1
_17iNANC _
A�1 C1H � r��
Central Battery Building
221 West 5th Street
Waterloo, Iowa 50701
The below summary of work shall represent the initial Phase 1 of improvements to the Central Battery
Building which prioritize immediate emergency repairs with the intent of mitigating continued deterioration
of the structure. A subsequent Phase 2 shall involve major improvements to the site.All Phase 1 tasks
shall be coordinated by the contractor in cooperation with the Development team and City of Waterloo.
During Phase 1: Emergency Repairs, the City of Waterloo shall maintain ownership of the property but
shall grant access to the Development team and contractors for the purposes of completing the below
scope of work and other pre-development efforts.
The preferred schedule for emergency repairs is such that the structure be reasonably protected from
winter conditions prior to December 24th, 2025.
Summary of Emergency Repairs
Basement Level
1. Shoring walls shall be constructed at northeast corner where floor/ceiling
structure is failing (near chimney and boiler)
2. Storm and sewer lines shall be scoped and any obstructions or deficiencies
identified and addressed in a subsequent proposal
3. Continue shoring wall at failing 3rd floor beam location (northwest corner or
structure)
4. Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (i.e. pigeon sh*t and
carcases)
5. Ensure roof drains are sufficiently draining and pipes are continuously connected
to main lines at alley / 5th Street
6. Rebuild/repair east stair with handrail (temporary stair for construction purposes)
7. Monitor infilled windows to ensure rotted plywood and 2x framing does not fail at
alley
Level 1 (Street Level)
8. Demo portion of stair wall at southwest stair to allow access from interior space
to Level 2
9. Continue shoring wall at failing 3rd floor beam location (northwest corner or
structure)
10.Shoring wall(s) shall be constructed at building addition line (southeast '/3 of
structure) where original brick exterior is visible and failing
11. Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (I.e. pigeon sh*t and
carcases)
12.Ensure roof drains are sufficiently draining and pipes are continuously connected
to main lines at alley / 5th Street
13.Rebuild/repair east stair with handrail (temporary stair for construction purposes)
Level 2
14.Continue shoring wall at failing 3rd floor beam location (northwest corner or
structure)
15.Shoring wall(s) shall be constructed at building addition line (southeast '/3 of
structure) where original brick exterior is visible and failing
16.Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (I.e. pigeon sh*t and
carcases)
17.Ensure roof drains are sufficiently draining and pipes are continuously connected
to main lines at alley / 5th Street
18.Rebuild/repair east stair with handrail (temporary stair for construction purposes)
Level 3
19.Remove all debris, loose items, and previous owner belongings from the building,
clear all floors of growth and signs of animal infestation (I.e. pigeon sh*t and
carcases)
Exterior & Building Envelope
20.Cover opening(s) in masonry at north alley wall with plywood and 2x framing
and/or heavy duty tarp as needed, avoid damaging existing masonry and roof
structure
21.Reinforce roof structure at failing roof drain location (-8'-0" x 8'-0") with shoring
walls and/or sistered roof joists, and temporary plywood roof deck
22.Patch roof opening(s) with compatible membrane and ensure roof drain(s) is(are)
providing proper drainage with minimal ponding, drain(s) shall be properly
flashed to minimize water infiltration
23.Ensure overflow scupper can provide proper drainage away from the structure at
north alley wall
24.Cap chimney at northeast corner of structure
25.Cap all pipe penetrations through roof
26.Remove vegetation at lower roof and patch roof membrane
27.Ensure all window and door openings are filled with existing windows and/or
plywood to deter animal infestation and exposure to weather
28.Drone video footage shall be collected that investigates further roof, parapet, and
upper level fenestration deterioration to assist in the identification of further
emergency repairs and/or Phase 2 improvements
29.Window sills and adjacent masonry at north alley wall Level 3 windows shall be
secured and/or covered with a temporary solution to minimize further
deterioration, solutions shall minimize damage to adjacent masonry wall
30.It shall be assumed that an alley closure can be obtained for the duration of the
Phase 1 emergency repairs, exterior walls at the north and east side of the
structure shall be braced and shored in place to ensure masonry walls do not fail,
City shall provide fencing and signage for alley closure, monitoring devices shall
be installed at major crack locations in masonry walls
General
31.Investigate roof drain heating solutions (e.g. solar powered heat tape), to be
addressed in subsequent proposal if adequate solution can be found
32.Permitting and associated fees shall be coordinated by the contractor with the
City of Waterloo
33.Access to the site shall be coordinated with the City of Waterloo
At the time of preparing this narrative, per feedback from contractor consultation,
specific shoring scope shall include the below list (the below list shall be subject to
change pending findings during demolition and emergency repairs):
• NE Corner of building
O 15'-0" x 12"x 1/" Steel welded around the corner and fastened to the masonry
• Shoring per callouts
• Additional shoring per contractor on each floor that would carry the weight of the shoring above
down into the basement for a full weight transfer
• Rotting Brick by telephone pole
O 3" x 2" x 15'-0" square tubing columns to be installed with through wall bolts and welding
at existing lintels where possible
• Rotting brick below windows
O 5'-0"x 3'-0" x%" steel plates fastened into masonry to prevent brick from falling