HomeMy WebLinkAboutTry Pie - DA_MAA - 8.17.2026 Prepared By:Austin J. McMahon, Lange&McMahon, PLC, 222 1st St. E., Independence, IA (319) 334-4488
DEVELOPMENT AGREEMENT
This Developpent Agreement (the "Agreement") is entered into as of this
day of 202��, by and between Try Pie (the
"Company") and the City of Waterloo, Iowa (the "City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as
amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project
activities in an area known as the East Waterloo Unified Urban Renewal and Redevelopment
Plan Area ("Urban Renewal Area").
B. Company is willing and able to finance development and improvements on the
real property locally known as 311 E. 4th Street and 315 E. 4th Street, collectively referred to
as the "Property" and legally described in Exhibit A (and which is located within the Urban
Renewal Area).
C. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the community to support
Company's application for Community Catalyst Grant funding so as to encourage that goal,
and the City further believes that the project is in the vital and best interests of the City and
that the project and such support 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. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property (Exhibit A) to Company in its as-is condition for the sum of$1.00 (the "Purchase
Price"). Conveyance shall be by quitclaim deed, subject to all (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 have no duty to convey title to Company
until Company delivers to City reasonable and satisfactory proof of financial ability to
undertake and carry on the Improvements (defined below), which may take the form of a
lending commitment letter. Company shall, at its own expense, prepare an updated
abstract of title, or in lieu thereof Company may, at its own expense, obtain whatever form
of title evidence it desires. City shall provide any title documents it has in its possession,
including any abstracts, to assist in title review. If title is unmarketable or subject to matters
not acceptable to Company, and if City does not remedy or remove such objectionable
matters in timely fashion following written notice of such objections from Company,
Company may terminate this Agreement without further obligation and return the abstract
of title to City.
2. Condition-Precedent to Sale of Property and Other Terms. Pursuant to a
separate Development Agreement entered into between the current owner of the Property
and the City, the current owner of the Property is to convey the Property to the City. The
terms of this Development Agreement, including the City's obligation to convey the
Property to Company as set forth in Section 1 above, is conditioned upon the City
obtaining title to the Property. The City shall not have any obligation to acquire or obtain
title to the Property by any legal process or action.
3. Improvements by Company. Company shall rehabilitate the buildings and
incidental infrastructure or features, on the Property in accordance with this Agreement,
including but not limited to, Section 4 (collectively referred to as the "Improvements" or
"Project"). Company agrees that the Improvements shall be constructed in accordance
with the terms of this Agreement, the urban renewal plan applicable to the Property, and
all applicable City, state, and federal building codes and shall comply with all applicable
City ordinances and other applicable law. City may require that Company submit specific
building designs and site plans for City's review and reasonable approval. Company will
use its best efforts to obtain, or cause to be obtained, in a timely manner, all required
permits, licenses and approvals, and will meet, in a timely manner, all requirements of all
applicable local, state, and federal laws and regulations which must be obtained or met
before the Improvements may be lawfully constructed, including but not limited to final
permit inspections. The Property, the Improvements, and all site preparation and
development-related work to make any of the Property usable for Company's purposes
as contemplated by this Agreement are collectively referred to as the "Project."
4. Construction Plans. Company agrees that it will cause the Improvements to
be constructed on the Property in conformance with construction plans (the "Plans") that
have been submitted to the City. Company agrees that the scope and scale of the
Improvements to be constructed shall not be significantly less than the scope and scale
of such improvements as detailed and outlined in the Plans.
If any material modification in the scope, scale or nature of the Plans is proposed,
Company shall submit modified Plans (the "Modified Plans") to the City for review.
Modified Plans shall be subject to approval by the City as provided in this Section. City
shall approve the modified Plans in writing if: (a)the Modified Plans conform to the terms
and conditions of this Agreement; (b) the Modified Plans conform to the terms and
conditions of the urban renewal plan; (c) the Modified Plans conform to all applicable
federal, state and local laws, ordinances, rules and regulations and City permit and design
review requirements; (d) the Modified Plans are adequate for purposes of this Agreement
to provide 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, which writing shall
explain the reason for any such rejection, 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.
5. Timeliness of Construction; Possibility of Reverter. The parties agree that
Company's commitment to undertake the Project and to construct the Improvements in a
timely manner constitutes a material inducement for the City to convey the Property to
Company and that without said commitment City would not do so.
A. Deadlines to Commence and Complete. Company must obtain all
required permits or licenses and begin development or construction of the
Improvements within eighteen (18) months from the date that the City conveys the
Property to Company (the "Commencement Date"). Company must Substantially
Complete development or construction within thirty-six (36) months from the date of
conveyance (the "Completion Deadline"). For purposes of this Agreement,
"Substantially Completed" means the date on which the Improvements have been
completed to the extent necessary for the City to issue a certificate of occupancy
relating thereto and the City has verified that any Project element for which no permit
was necessary has been Substantially Completed. All deadlines are subject to
Unavoidable Delays as described below. The City's Community Planning and
Development Director may, but shall not be required to, consent to an extension of
time of up to six (6) months for the construction of the Improvements. Any additional
or longer extensions will require approval and consent of the City Council.
B. Time of Conveyance. The City shall not convey title of the Property to
Company unless and until Company delivers a written request for the conveyance,
after which City shall complete the conveyance of the Property within thirty (30) days
of said written request. Unless otherwise agreed to in a writing signed by the parties,
Company shall have forty-eight (48) months from the date of this Agreement to deliver
a written request for conveyance of the Property, and in the event that Company does
not deliver such written request within that time period, then this Agreement shall be
terminated without any further or additional action by the parties.
C. Events Triggering Termination and/or Reverter of Title. If Company does
not commence or does not Substantially Complete development or construction of the
Improvements in accordance with the deadlines stated above, then, subject to
Unavoidable Delays, City may terminate this Agreement as set forth elsewhere in this
Agreement, and City shall then have no further obligation to Company under this
Agreement. If development has commenced within the required period, as the same
may be extended, and is subsequently stopped or delayed as a result of extreme
weather such as ice, ground freezing, and other conditions that restrict construction,
as well as an Act of God, war, civil disturbance, court order, labor dispute, fire,
pandemic, governmental mandates (local, state or federal), delays in City approvals,
or other cause beyond the reasonable control of Company (each an "Unavoidable
Delay"), the requirement that construction be completed by the Completion Deadline
shall be tolled for a period of time equal to the period of Unavoidable Delay. If City
terminates this Agreement, City shall have no further obligations to Company under
this Agreement, including but not limited to, any legal or equitable obligation to
reimburse Company for any costs expended by Company with respect to the Project
or to compensate Company for any value added to the Property by any Improvements.
6. City Incentives. City agrees to provide the following incentives in support of
the Project:
a. Community Catalyst Grant Support. The City will support an application to Iowa
Economic Development Authority for the Community Catalyst Grant for the
Project.
7. Reverter of Title; Indemnity. If City terminates this Agreement, then Company
agrees that it shall, at its own expense, promptly execute all documents, including but not
limited to a special warranty deed, or take such other actions as the City may reasonably
request to effectuate said reverter and to deliver to City title to the Property, free and clear
of any lien, claim, charge, security interest, mortgage or encumbrance (collectively,
"Liens") arising by or through Company. Concurrently with delivery of the deed, Company
shall also deliver to City the abstract of title. Company shall pay in full, so as to discharge
or satisfy, all Liens on or against the Property conveyed back to City. In connection with
any reverter of title, Company shall not be entitled to, or otherwise recover any amounts
paid to City to acquire property or other amounts it expended for the Improvements,
Project, or other activities.
Appointment of Attorney in Fact: If Company fails to deliver such documents,
including but not limited to a special warranty deed, to City within thirty (30) days after
written demand by City, then City shall be authorized to execute, on Company's behalf
and as its attorney-in-fact, the special warranty deed or other documents required by this
Section, and for such limited purpose Company does hereby constitute and appoint City
as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, or injury made, suffered, or
incurred as a result of or in connection with the Project, Company's failure to carry on or
complete same, or any Lien or Liens on or against the Property of any type or nature
whatsoever that attaches to the Property by virtue of Company's ownership of same. The
foregoing indemnity shall include the cost of removing any improvements constructed by
Company and reverting the Property to substantially the same condition as of the date of
conveyance, but shall not include any consequential damages or perceived damages
such as lost opportunities for another user. If City files suit to enforce the terms of this
Agreement and prevails in such suit, then Company shall be liable for all legal expenses,
including but not limited to, reasonable attorneys'fees, incurred by City. Company's duties
of indemnity pursuant to this Section shall survive the expiration, termination or
cancellation of this Agreement for any reason.
8. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, Company agrees that it shall not create, incur, or suffer to exist
any Liens on the Property, other than such mortgage or mortgages as may be reasonably
necessary to finance Company's completion of the Improvements and of which Company
notifies City before Company executes any such mortgage. Company may not mortgage
the Property or any part thereof for any purpose except in connection with financing of the
Improvements.
9. Utilities. Company will be responsible for extending water, sewer, telephone,
telecommunications, electricity, gas and other utility services to any location on the
Property. Company will be responsible for payment of any associated connection fees
other than water connection fees, which will be paid by City.
10. Minimum Assessment Agreement. Company acknowledges and agrees that
it will pay when due all taxes and assessments, general or special, and all other charges
whatsoever levied upon or assessed or placed against the Property. Company further
agrees that prior to the date set forth in Section 2 of the Minimum Assessment Agreement
(the 1"MAA"') attached hereto as Exhibit "B" it will not seek or cause a reduction in the
assessed value for the Property as improved pursuant to this Agreement, which shall be
fixed for assessment purposes, below the amount of$565,000.00 (the "Minimum Actual
Value"), through:
(a) Willful destruction of the Property, the Improvements, or any part of either;
(b) a request to the Assessor of Black Hawk County; or
(c) any proceedings, whether legal, or equitable, with any administrative body or
court within the City, Black Hawk County, the State of Iowa, or the federal government.
Company agrees to execute and deliver the MAA concurrently with its execution and
delivery of this Agreement.
11. Applicability of MAA and Other Terms Regarding Property Taxes to
Company and Successors/Assigns. Notwithstanding any other term of this Agreement or
the terms of the MAA, Company shall not be prohibited or prevented from seeking and
obtaining an exemption from property taxes under Iowa Code § 427.1. The seeking,
obtaining, or maintaining of any such exemption by Company shall not constitute a violation
of this Agreement or the MAA, an Event of Default, or a reduction of the Minimum Actual
Value established pursuant to the MAA. However, Company's successors or assigns,
including any person or entity to which Company conveys or transfers ownership of the
Property, shall be prohibited from seeking or obtaining any exemption from property taxes,
and the terms of the MAA shall be binding on Company's successors or assigns; provided,
however, that the foregoing prohibition shall not apply to any entity that directly or indirectly
controls, is controlled by, or is under common control or ownership with Company, including
any such entity formed or utilized in connection with obtaining federal or state historic
rehabilitation tax credit for the Project (a "Qualified Affiliate"). Any such entity shall remain
subject to the Minimum Actual Value established pursuant to the MAA, and the seeking,
obtaining, or maintaining of an exemption from property taxes under Iowa Code §427.1 shall
not constitute or be deemed to cause a reduction of such Minimum Actual Value.
12. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows with respect to each phase of Improvements:
A. Company agrees during construction of the Improvements and
thereafter until the MAA termination date to maintain, as applicable, builder's risk,
property damage, and liability insurance coverages with respect to the Improvements
in such amounts as are customarily carried by like organizations engaged in activities
of comparable size and liability exposure, and shall provide evidence of such
coverages to the City upon request.
B. Until the Improvements are Substantially Completed, Company shall
make such reports to City, in such detail and at such times as may be reasonably
requested by City, as to the actual progress of Company with respect to construction
of the Improvements. However, in no event shall Company be required to submit a
report more frequently than once every thirty (30) day period.
C. During construction of the Improvements and thereafter until the MAA
termination date Company will cooperate fully with the City in resolution of any traffic,
parking, trash removal or public safety problems which may arise in connection with
the construction and operation of the Improvements.
D. Company will comply with all applicable land development laws and City
and county ordinances, and all laws, rules and regulations relating to its businesses,
other than laws, rules and regulations where the failure to comply with the same or the
sanctions and penalties resulting therefrom, would not have a material adverse effect
on the business, property, operations, or condition,financial or otherwise, of Company.
E. Until the MAA termination date Company will maintain, preserve and
keep the Property, including but not limited to the Improvements, in good repair and
working order, ordinary wear and tear excepted, and from time to time will make all
necessary repairs, replacements, renewals and additions.
F. The Property will have an assessed value as set forth in the MAA and
any amendments thereto, and Company agrees that the minimum assessed 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 assessed value for the Property and Improvements as set forth in the MAA
and any amendments thereto.
G. Until the MAA termination date Company agrees that (1) it will not
undertake, in any other municipality in Black Hawk County, the construction or
rehabilitation of any commercial property as a primary location for Company's
business operations of the type to be conducted on the Property, and (2) it will make
no conveyance, lease or other transfer of the Property or any interest therein that
would cause the Property or any part thereof to be classified as exempt from taxation
or subject to centralized assessment or taxation by the State of Iowa. Notwithstanding
the foregoing, Company may convey, lease or otherwise transfer the Property of any
interest therein to a Qualified Affiliate in accordance with Section 11, and such
Qualified Affiliate may seek, obtain, and maintain an exemption from property taxes
under Iowa Code § 427.1, provide that the Property shall remain subject to the
Minimum Actual Value established pursuant to the MAA.
13. 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.
14. Representations and Warranties of Company. Company hereby represents
and warrants as follows:
A. It is duly organized, validly existing, and in good standing under the laws
of the state of its organization and is duly qualified and in good standing under the
laws of the State of Iowa.
B. It has all requisite power and authority to own and operate its properties,
to carry on its business as now conducted and as presently proposed to be conducted,
and to enter into and perform its obligations under this Agreement.
C. This Agreement has been duly and validly executed and delivered by
Company and, assuming due authorization, execution and delivery by the other
parties hereto, is in full force and effect and is a valid and legally binding instrument of
Company that is enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally.
D. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms
and conditions of this Agreement are not prevented by, limited by, in conflict with, or
result in a violation or breach of, the terms, conditions or provisions of any contractual
restriction, evidence of indebtedness agreement or instrument of whatever nature to
which Company is now a party or by which it or its property is bound, nor do they
constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business (present or prospective), financial
position, or results of operations of Company or which in any manner raises any
questions affecting the validity of the Agreement or Company's ability to perform its
obligations under this Agreement.
F. The financing commitments, which Company will proceed with due
diligence to obtain, to finance the construction of the Improvements will be sufficient
to enable Company to successfully complete construction of the Improvements as
contemplated in this Agreement, subject to additional costs incurred due to
Unavoidable Delays.
15. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers, employees,
and agents (collectively, the "indemnified parties") from, covenants and agrees that
the indemnified parties shall not be liable for, and agrees to indemnify, defend and
hold harmless the indemnified parties against, any loss or damage to property or any
injury to or death of any person occurring at or about the Property arising after
Company's acquisition of the Property to the extent arising out of or resulting from the
acts or omissions of Company or its officers, employees, contractors, agents, tenants,
invitees or anyone claiming through Company, 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,
except to the extent caused by the negligence or willful misconduct of any such
indemnified party or its officers, employees or agents.
B. Except for any willful misrepresentation, willful misconduct, negligence,
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 construction, ownership, maintenance, use, and operation of the Property or
the Improvements by Company, or (3) any hazardous substance or environmental
contamination located in or on the Property first occurring after the conveyance of the
Property to Company or resulting from the acts or omissions of Company or its officers,
employees, contractors, agents, tenants, or invitees. Notwithstanding the foregoing,
Company shall have no responsibility under this Section for any hazardous substance
or environmental contamination that existed on, under, or migrated to the Property
prior to conveyance to the Company, except to the extent Company exacerbates,
disturbs, or causes the spread of any such pre-existing condition.
C. The provisions of this Section shall survive the expiration or termination
of this Agreement.
16. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or Project area, all
of which must be completed within 90 days from the date this Agreement is approved by
the City council. If such completion does not occur, then any conveyance, benefit or
incentive of any type provided by City hereunder within said 90-day period is subject to
reverter of title, revocation, repayment or other appropriate action to restore such property,
benefit or incentive to City, and Company agrees to cooperate diligently and in good faith
with any reasonable request by City to effectuate the restoration of same, or failing such
restoration Company agrees to be liable for same or for the fair value thereof, plus interest
on any sums owing at the rate of 5% per annum commencing with the date of demand for
payment, if said payment is not remitted to City within 30 days.
17. No Assignment or Conveyance. Company agrees that it will not sell, convey,
assign or otherwise transfer its interest in the Property prior to completion of the Project,
whether in whole or in part, to any other person or entity without the prior written consent
of City. Reasonable grounds for the City to withhold its consent shall include but are not
limited to the inability of the proposed transferee to demonstrate to the City's satisfaction
that it has the financial ability to observe all of the terms to be performed by Company
under this Agreement. Notwithstanding the foregoing, (a) Company may sell, convey,
assign, or otherwise transfer the Property, in whole or in part, to a Qualified Affiliate without
prior approval of City provided (i) such Qualified Affiliate assumes the obligations of
Company under this Agreement applicable to the interest so transferred, and (ii) Company
provides written notice of such sale, conveyance, assignment, or transfer to City within
five (5) business days after execution thereof, and (b) Company may mortgage the
Property to a lender as security for financing of Project improvements, but for no other
purpose.
18. 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 security for financing of Improvements or the Project, or
except as expressly permitted pursuant to Sections 11 and 17;
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.
19. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, City may terminate this Agreement after first
providing to Company 60 days'written notice of the Event of Default, and the Event of
Default having not been cured within said 60-day period coupled by Company not
diligently pursuing such cure. Upon termination, City may exercise any and all
remedies available at law, equity, contract or otherwise for recovery of any sums paid
by City to Company before the date of termination or to recover ownership of the
Property as set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of City occurs
and is continuing, Company may take such action against City to require it to
specifically perform its obligations hereunder. Before exercising such remedy,
Company shall give 30 days' written notice to City of the Event of Default, provided
that by the conclusion of such period the Event of Default shall not have been cured,
or if the Event of Default cannot reasonably be cured within 30 days and City shall not
have provided assurances reasonably satisfactory to the Company that the Event of
Default will be cured as soon as reasonably possible.
C. Remedies under this Agreement shall be cumulative and in addition to
any other right or remedy given under this Agreement or existing at law or in equity or
by statute. Waiver as to any particular default, or delay or omission in exercising any
right or power accruing upon any default, shall not be construed as a waiver of any
other or any subsequent default and shall not impair any such right or power. The
remedies available to the City shall survive any termination of this Agreement.
20. 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. Notwithstanding the foregoing, the provisions of
this Section 20 are subject to the notice and cure provisions in Section 19.
21. 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.
22. 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.
23. Notices. Notice under this Agreement shall be in writing and shall be delivered
in person, by overnight air courier service, by United States registered or certified mail,
postage prepaid, and addressed:
(a) If to City, 715 Mulberry Street, Waterloo, Iowa 50703, Attention: Mayor,
with copies to the City Attorney and the Community Planning and Development
Director.
(b) If to Company, Megan Tensen, 522 Mulberry Street, Waterloo, Iowa
50703
Delivery of notice shall be deemed completed upon: (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 or electronic mail so long as the
sender obtains electronic confirmation that such transmission was successful.A party may
change the address for giving notice by any method set forth in this Section.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. Binding Effect. This Agreement shall be binding and shall inure to the benefit
of the parties and their respective successors, assigns, and legal representatives.
30. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, taken together, shall constitute
one and the same instrument.
31. Entire Agreement.This Agreement, together with the exhibits attached hereto,
constitutes the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
32. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development Agreement by
their duly authorized representatives as of the date set forth above.
CITY OF WATERLOO, IOWA TRY PIE
By: By: U\N Ur-L E >50
David Boesen, Mayor
1,1
Attest: Q t� ( vl/�� Name:(
1,..e.lieN0
elley Felch(e, City Clerk
1!
Title: L.,Xe.,C )
EXHIBIT A
Description
A part of Lots Nos. 5 and 6 in Block No. 29 in the Original Plat, on the East Side of the Cedar
River, in the City of Waterloo, Black Hawk County, Iowa, described as follows: Commencing
at a point on the Southeasterly line of said Lot No. 5 that is 140 feet Southwesterly of the
Northeasterly corner of said Block No. 29; thence running Northwesterly along a line parallel
with the Northeasterly line of said Lots Nos. 5 and 6 to the Southeasterly line of the alley
running through said Block No. 29, thence Southwesterly along the Southeasterly line of said
alley 20 feet more or less to a point that is 20 feet Northeasterly of the Southwesterly line of
said Lot No. 6; thence Southeasterly to a point on the Southeasterly line of said Lot No. 5 that
is 20 feet Northeasterly of the most Southerly corner of said Lot No. 5; thence Northeasterly
along the Southeasterly line of said Lot No 5 a distance of 20 feet more or less to the point of
beginning.
(Locally known as 315 E. 4th Street, Waterloo, Iowa)
And
The Southwesterly 20 feet of Lot No. 5, the Northeasterly 20 feet of Lot No. 8 in Block No. 29
in the Original Plat, on the East side of the Cedar River, in the City of Waterloo, Black Hawk
County, Iowa, except the Northwesterly 1 foot thereof
(Locally known as 311 E. 4th Street, Waterloo, Iowa)
EXHIBIT B
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agrement") is entered into as of this
day of 1\;\ , 202 , and among the CITY OF
WATERLOO, IOWA ("City") and Try-Pie ("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 East
Waterloo Unified Urban Renewal and Redevelopment Plan area, including the construction
of certain improvements as described in the Development Agreement (the "Minimum
Improvements") on the Property (the "Project"); and
WHEREAS, pursuant to Iowa Codes 403.6, as amended, the City and the Company
desire to establish a Minimum Assessed 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 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 $565,000.00 (the "Minimum Assessed Value") until
termination of this Agreement. The parties hereto agree that construction of the Minimum
Improvements will be substantially completed by the date set forth in the Development
Agreement, and in any case if the Minimum Improvements are not substantially completed
by December 31, 2030, the parties agree to execute an amendment to this Agreement
that will extend the date specified in Section 2 below.
2. The Minimum Assessed Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2042. The Minimum Actual Value shall be maintained during such period regardless of:
(a) any failure to complete the Minimum Improvements; (b) destruction of all or any portion
of the Minimum Improvements; (c) diminution in value of the Property or the Minimum
Improvements; or (d) any other circumstance, whether known or unknown and whether
now existing or hereafter occurring.
3. Company shall pay, or cause to be paid, when due, all real property taxes and
assessments payable with respect to all and any parts of the Property and the Minimum
Improvements pursuant to the provisions of this Agreement and the Development
Agreement. Such tax payments shall be made without regard to any loss, complete or
partial, to the Property or the Minimum Improvements, any interruption in, or
discontinuance of, the use, occupancy, ownership or operation of the Property or the
Minimum Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Property or
the Minimum Improvements.
4. Company agrees that its obligation to make the tax payments required hereby,
to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Agreement shall be absolute and unconditional obligations
of Company (not limited to the statutory remedies for unpaid taxes).
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 assessment assignment
made by the Assessor in excess of the Minimum Assessment Value established herein.
In no event, however, shall the Company seek or cause the reduction of the actual
assessment value assigned below the Minimum Assessment 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 Assessment Value.
6. Notwithstanding any other term or provision in the Development Agreement or
in this MAA, Company shall not be prohibited or prevented from applying for, obtaining,
or maintaining an exemption from taxation under Iowa Code § 427.1. The applying for,
obtaining, or maintaining of any such exemption shall not constitute a violation of the
Development Agreement or this MAA, an Event of Default under the Development
Agreement, or a reduction of the Minimum Assessed Value established pursuant to this
Agreement. Except as otherwise provided for in Section 7 below, Company's successors
or assigns, including any person or entity that Company conveys or transfers ownership
of the Property to, shall not do any of the following:
(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 exemption, 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 of the Property and Minimum
Improvements below the Minimum Assessed Value through any other proceedings.
7. Notwithstanding Section 6 above, Company may sell, convey, assign, lease, or
otherwise transfer the Property or any interest therein to a Qualified Affiliate (as defined
in the Development Agreement), and such Qualified Affiliate shall not be prohibited or
prevented from applying for, obtaining, or maintaining an exemption from property taxes
under Iowa Code § 427.1. The applying for, obtaining, or maintaining of such exemption
by a Qualified Affiliate shall not constitute a violation of the Development Agreement or
this Agreement, an Event of Default under the Development Agreement, or a reduction of
the Minimum Assessed Value established pursuant to this Agreement. Each Qualified
Affiliate shall remain subject to the Minimum Assessed Value and all other obligations
imposed upon the owner of the Property pursuant to this Agreement, except to the extent
expressly provided otherwise herein or in the Development Agreement.
8. For clarification, notwithstanding any exemption from property taxes obtained
or maintained by Company or a Qualified Affiliate pursuant to Iowa Code § 427.1 and this
MAA, the Minimum Assessed Value of the Property shall not be set below $565,000.00
during the term of this MAA, and neither the Company or any Qualified Affiliate shall seek
or cause the assessed value assigned by the Assessor to be reduced below said stated
Minimum Assessed Value. Nothing herein shall prohibit Company or any Qualified Affiliate
from contesting that portion of any actual value assigned by the Assessor in excess of the
Minimum Assessed Value, as provided for in Section 5, above.
9. 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.
10. Neither the preambles nor provisions of this Agreement are intended to, or shall
be construed as, modifying the terms of the Development Agreement.
11. 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.
12. This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties, including but not limited to future owners of the Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date set forth above.
[signatures on next page]
CITY OF WATERLOO, IOWA TRY PIE
By: 114-ees,‘•^- By: P\ (\ HtLU E V
David Boesen, Mayor
4
Attest: ri '`-'------- Name: \---\_elle},63
Kelley Felchl City Clerk
STATE OF IOWA ) Title: (-A_e_C-0A\vse. \ 1 rc_Ck\,i-
) ss.
COUNTY OF BLACK HAWK )
On this ?} day of v\t— , 202t(2, before me, a notary public in and for
the State of Iowa, personally appearedDavid Boesen and Kelley Felchle, to me personally known,
who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of
Waterloo, Iowa, a municipal corporation, created and existing under the laws of the State of Iowa,
and that the seal affixed to the foregoing instrument is the seal of said municipal corporation, and
that said instrument was signed and sealed on behalf of said municipal corporation by authority
and resolution of its City Council, and said Mayor and City Clerk acknowledged said instrument
to be the free act and deed of said municipal corporation by it and by them voluntarily executed.
,�'"<< NANCYAI41
H.
,g Notary Public
STATE OF _Le:t` \ )
) ss.
COUNTY OF 1 I, ,( , 1",1 ' i'. )
,, Su scrib d I�n and sworn before e Q n A UC Lt �r IR ;� by
1 j)(Z((U\ f'_ iefi, as �j(Q,('(,19;;�'£ 0) (c V (title) of
Try Pie.
"`� LEXI SCHNEIDER /. C . r&
ry
_ � COMMISSION N0.869089 Nota Public
* # MY COMMISSION EXPIRES
*Mk NOVEMBER 21,202i
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CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment Agreement
appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally
responsible for the assessment of the property described in the foregoing Minimum
Assessment Agreement, certifies that the actual value assigned to that land and
improvements upon completion shall not be less than Five Hundred Sixty-Five Thousand and
00/ 100 Dollars ($565,000.00) 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