HomeMy WebLinkAbout2020-01-20-G02 Waukee Crossing Development Agreement_PHAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: January 20, 2020
AGENDA ITEM:Public hearing on a proposal to enter into a Development Agreement
with Waukee Crossing, LLC
FORMAT:Public Hearing
SYNOPSIS INCLUDING PRO & CON: Waukee Crossing, LLC is proposing a development
on the north side of Hickman Rd. that will require public improvements
on Hickman Rd and the extension of 2nd Street to the north including the
intersection of 2nd Street and Venture Drive. The cost of the public
improvements that will be rebated to the developer under this
development agreement will include the left turn lane off Hickman Rd,
additional lanes on 2nd Street as it connects to Hickman Rd and the
intersection of 2nd Street and Venture Dr. The tax rebates to the
developer are capped at $400,000.00.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT: Staff believes the proposed Development Agreement is
consistent with City’s policy for offering incentives under the approved
Incentive Policy.
RECOMMENDATION: Hold the Public Hearing
ATTACHMENTS: I. Proposed Development Agreement
PREPARED BY:Dan Dutcher
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION: Dallas County News
DATE OF PUBLICATION: 01/16/2020
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Execution Version 1
AGREEMENT FOR PRIVATE DEVELOPMENT
By and between
CITY OF WAUKEE, IOWA
AND
WAUKEE CROSSING, LLC
JANUARY____, 2020
Execution Version 2
AGREEMENT
FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT FOR PRIVATE DEVELOPMENT ("Agreement"), is made on or as
of the ____ day of ___________, 2020, by and between the CITY OF WAUKEE, IOWA, a
municipality (the "City"), established pursuant to the Code of Iowa and acting under the
authorization of Chapters 15A and 403 of the Code of Iowa, 2019, as amended ("Urban Renewal
Act") and WAUKEE CROSSING, LLC, an Iowa limited liability company having offices for the
transaction of business at 611 Monticello Drive, Burlington, Iowa 52601 ("Developer"). The City
and Developer are Parties to this Agreement.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has
undertaken a program for the development of an economic development area in the City and, in
this connection, is engaged in carrying out urban renewal project activities in an area known as the
Waukee Consolidated Urban Renewal Area (the "Urban Renewal Area"), which is described in
the Urban Renewal Plan originally approved for such area by Resolution No. 19-402, adopted
November 4, 2019, which Plan is anticipated to be further amended on January 6, 2020; and
WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended, has been or will
be recorded among the land records in the office of the Recorder of Dallas County, Iowa; and
WHEREAS, Developer owns or will own certain real property located in the foregoing
Urban Renewal Area as more particularly described in Exhibit A attached hereto and made a part
hereof ("Development Property"); and
WHEREAS, Developer shall cause the Required Minimum Improvements (as more
particularly described herein) to be constructed on the Development Property and, while owned or
controlled by Developer, Developer shall use commercially reasonable efforts to cause
commercial businesses to operate in any Minimum Improvements constructed on the Development
Property and employ employees therein until at least the Termination Date of this Agreement; and
WHEREAS, Developer shall build certain Public Improvements which benefit, among
other things, the Development Property; and which, upon acceptance by the City, shall be
dedicated to the City; and
WHEREAS, the City shall build City Public Improvements which benefit, among other
things, the Development Property; and
WHEREAS, the City believes that the development of the Development Property pursuant
to this Agreement and the fulfillment of this Agreement are in the vital and best interests of the
City and in accord with the public purposes and provisions of the applicable State and local laws
and requirements under which the foregoing project has been undertaken and is being assisted.
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NOW, THEREFORE, in consideration of the promises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all
capitalized terms used and not otherwise defined herein shall have the following meanings unless
a different meaning clearly appears from the context:
Agreement means this Agreement and all exhibits and appendices hereto, as the same may
be from time to time modified, amended or supplemented.
Approved Costs means the costs and expenses related to the design and construction of the
following portions of the Public Improvements: (a) the turning lane off of Hickman Road; (b) the
widening of NW 2nd Street as it connects to Hickman Road; (c) the intersection of NW 2nd Street
and NW Venture Drive; (d) the installation of a new access drive from Hickman Road located East
of NW 2nd Street; and (e) landscaping, grading, drainage, engineering, plans, and specifications
related to those improvements, together with a construction management fee not to exceed 7% of
the other costs, as more particularly described herein and within the right-of-way to be dedicated
to the City.
Certificate of Completion means a certification in the form of the certificates attached
hereto as Exhibits C-1 and C-2 and hereby made a part of this Agreement.
City means the City of Waukee, Iowa, or any successor to its functions.
City Public Improvements means the construction of NW 2nd Street from north of the
intersection of NW 2nd Street and NW Venture Dr. to the northwest to Sunset Dr., and the
installation of traffic signals at the intersection of NW 2nd Street and Hickman Rd., as depicted in
Exhibit B-1 attached to this Agreement, to be built or installed by the City.
Code means the Code of Iowa, 2019, as amended.
Construction Plans means the plans, specifications, drawings, and related documents
reflecting the construction work on the Public Improvements to be performed by the Developer on
the Development Property; the Construction Plans shall be as detailed as the plans, specifications,
drawings, and related documents which are submitted to the building inspector of the City as
required by applicable City codes. Developer is not obligated to provide Construction Plans for
the Required Minimum Improvements except to the extent required by any applicable City
ordinance or permitting process.
Developer means Waukee Crossing, LLC, an Iowa limited liability company, and each
assignee that assumes in writing all of the obligations of the Developer under this Agreement with
the written consent of the City as provided in Section 6.1 of this Agreement.
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Development Property means that portion of the Waukee Consolidated Urban Renewal
Area described in Exhibit A.
Economic Development Grants means the payments to be made by the City to Developer
under Article VII of this Agreement.
Event of Default means any of the events described in Section 10.1 of this Agreement that
have continued beyond applicable notice and cure periods.
Indemnified Parties means the City and the governing body members, officers, agents,
servants and employees thereof.
Minimum Improvements means the construction of commercial buildings and related
parking and site improvements on the Development Property as more particularly described in
Exhibits B and B-1 to this Agreement.
Mortgage means any mortgage or security agreement in which Developer has granted a
mortgage or other security interest in the Development Property, or any portion or parcel thereof,
or any improvements constructed thereon.
Ordinance means an Ordinance of the City, under which the taxes levied on taxable
property in the Development Property shall be divided and a portion paid into the Waukee
Consolidated Urban Renewal Tax Increment Revenue Fund under the authority of Iowa Code
Section 403.19.
Project means the construction of the Required Minimum Improvements and the Public
Improvements as described in this Agreement.
Public Improvements means the construction of NW 2nd Street from Hickman Road
through and including its intersection with NW Venture Drive, the installation of a new access
drive from Hickman Road located East of NW 2nd Street, and the north turning lane on east
bound Hickman, as more particularly depicted in Exhibit B-1 to this Agreement, to be
constructed by Developer and dedicated to the City upon completion.
Required Minimum Improvements means those Minimum Improvements as described in
Exhibit B that must be completed for Developer to be eligible to receive Economic Development
Grants.
Tax Increments means the property tax revenues on the Development Property divided and
made available to the City for deposit in the Waukee Crossing, LLC TIF Account of the Waukee
Consolidated Urban Renewal Tax Increment Revenue Fund under the provisions of Section 403.19
of the Code, as amended, and the Ordinance.
Termination Date means the date of termination of this Agreement, as established in
Section 11.8 of this Agreement.
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Unavoidable Delays means delays resulting from acts or occurrences outside the
reasonable control of the party claiming the delay including but not limited to storms, floods, fires,
explosions, or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts, or
other labor disputes, delays in transportation or delivery of material or equipment, litigation
commenced by third parties, or the acts of any federal, State, or local governmental unit (other
than the City, with respect to a City-claimed delay).
Urban Renewal Area means the area known as the Waukee Consolidated Urban Renewal
Area.
Urban Renewal Plan means the Urban Renewal Plan, as amended from time to time, and
approved with respect to the Waukee Consolidated Urban Renewal Area, described in the
preambles hereof.
Waukee Consolidated Urban Renewal Tax Increment Revenue Fund means the special
fund of the City created under the authority of Section 403.19(2) of the Code and the Ordinance,
which fund will be created in order to pay the principal of and interest on loans, monies advanced
to or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other
obligations issued under the authority of Chapters 15A, 403, or 384 of the Code, incurred by the
City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal
Plan for the Urban Renewal Area.
Waukee Crossing, LLC TIF Account means a separate account within the Waukee
Consolidated Urban Renewal Tax Increment Revenue Fund of the City in which Tax Increments
received by the City with respect to the Development Property shall be deposited.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the City. The City makes the following
representations and warranties:
a. The City is a municipal corporation and municipality organized under the
provisions of the Constitution and the laws of the State and has the power to enter into this
Agreement and carry out its obligations hereunder.
b. 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 breach
of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness,
agreement, or instrument of whatever nature to which the Cit y is now a party or by which it is
bound, nor do they constitute a default under any of the foregoing.
c. All covenants, stipulations, promises, agreements, and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and
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obligations of the City, and not of any governing body member, officer, agent, servant , or
employee of the City in the individual capacity thereof.
Section 2.2. Representations and Warranties of Developer. Developer makes the
following representations and warranties:
a. Developer is an Iowa limited liability company, duly organized and validly existing
under the laws of the State of Iowa, and 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 the Agreement.
b. This Agreement has been duly and validly authorized, executed, and delivered by
Developer and, assuming due authorization, execution, and delivery by the City, is in full force
and effect and is a valid and legally binding instrument of Developer 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 the governing documents of
Developer or of any contractual restriction, evidence of indebtedness, agreement, or instrument of
whatever nature to which Developer 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 Developer 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 Developer
or which in any manner raises any questions affecting the validity of the Agreement or Developer's
ability to perform its obligations under this Agreement.
e. Developer has not received any notice from any local, State, or federal official that
the activities of Developer or Developer with respect to the Development Property may or will be
in violation of any environmental law or regulation (other than those notices, if any, of which the
City has previously been notified in writing). Developer is not currently aware of any State or
federal claim filed or planned to be filed by any party relating to any violation of any local, State,
or federal environmental law, regulation, or review procedure applicable to the Development
Property, and Developer is not currently aware of any violation of any local, State, or federal
environmental law, regulation, or review procedure which would give any person a valid claim
under any State or federal environmental statute with respect thereto.
f. Developer shall cooperate with the City in resolution of any traffic, parking, trash
removal, or public safety problems which may arise in connection with operation of the Minimum
Improvements.
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g. Developer shall cause the Required Minimum Improvements and Public
Improvements to be constructed in accordance with the terms of this Agreement, the Urban
Renewal Plan, and all local, State, and federal laws and regulations. Notwithstanding the
foregoing, if a person or entity not a party to this Agreement is the titleholder of the lot within the
subdivision and completes the construction of the Required Minimum Improvements in
accordance with the terms of this Agreement, Developer shall be deemed to be in compliance with
the requirement for construction of the Required Minimum Improvements in this Agreement.
h. Developer shall obtain or cause to be obtained, in a timely manner, all required
permits, licenses, and approvals, and shall 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
Minimum Improvements, as applicable, may be lawfully constructed.
i. The construction of the Public Improvements will require a total investment of at
least $492,000.
j. Developer expects that, barring Unavoidable Delays, the Public Improvements will
be completed by June 1, 2022, and the Required Minimum Improvements shall be completed by
October 1, 2022.
k. Prior to acquiring the Development Property, Developer shall have commitments
for construction or acquisition and permanent financing for the construction of the Public
Improvements in an amount sufficient, together with equity commitments, to successfully
complete the Public Improvements in accordance with the Construction Plans contemplated in this
Agreement.
l. Developer shall dedicate (1) the Public Improvements and (2) all rights-of-way in
the Development Property, if any, to the City upon acceptance by the City, at no cost to the City.
m. Developer would not undertake its obligations under this Agreement without the
payment of the Economic Development Grants being made to Developer by the City pursuant to
this Agreement.
ARTICLE III. CONSTRUCTION OF IMPROVEMENTS
Section 3.1. Construction of Required Minimum Improvements and Public Improvements.
The Developer agrees that it will cause the Required Minimum Improvements and Public
Improvements to be constructed in conformance with all applicable federal, State, and local laws,
ordinances, and regulations, including any City permit and/or building requirements. All work
with respect to the Public Improvements and Required Minimum Improvements shall be in
conformity with any plans approved and/or permits issued by the building official(s) of the City,
which approvals and issuances shall be made according to normal City processes for such plans
and permits. The Developer agrees that the scope and scale of the Required Minimum
Improvements and Public Improvements shall not be significantly less than the scope and scale as
described in this Agreement.
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Section 3.2. Commencement and Completion of Construction. Subject to Unavoidable
Delays, Developer shall cause construction of the Required Minimum Improvements and the
Public Improvements to be undertaken and completed: (i) by no later than June 1, 2022, with
respect to the Public Improvements, and no later than October 1, 2022, with respect to the Required
Minimum Improvements; or (ii) by such other date as the parties shall mutually agree upon in
writing. Time lost as a result of Unavoidable Delays shall be added to extend this date by a number
of days equal to the number of days lost as a result of Unavoidable Delays. All work with respect
to the Public Improvements shall be in conformity with the Construction Plans approved by the
building official or any amendments thereto as may be approved by the building official.
Developer agrees that they shall permit designated representatives of the City, upon
reasonable notice (which does not have to be written), to enter upon the Development Property
during the construction of the Minimum Improvements and the Public Improvements to inspect
such construction and the progress thereof, subject to Developer's rules and regulations for the
construction site.
Section 3.3. Certificates of Completion.
a. Within fifteen (15) business days after written request by Developer and after
issuance of an occupancy permit for the Required Minimum Improvements, the City shall furnish
Developer with a Certificate of Completion for the Required Minimum Improvements in
recordable form, in substantially the form set forth in Exhibit C-1 attached hereto. Such Certificate
of Completion shall be a conclusive determination of satisfactory termination of the covenants and
conditions of this Agreement with respect to the obligations of Developer to cause construction of
the Required Minimum Improvements.
b. Within fifteen (15) business days after written request by Developer and after
acceptance of dedication of the Public Improvements by the City under Section 3.4, the City shall
furnish Developer with a Certificate of Completion for the Public Improvements in recordable
form, in substantially the form set forth in Exhibit C-2 attached hereto. Such Certificate of
Completion shall be a conclusive determination of satisfactory termination of the covenants and
conditions of this Agreement with respect to the obligations of Developer to cause construction of
the Public Improvements.
c. If the City shall refuse or fail to provide a Certificate of Completion in accordance
with the provisions of this Section 3.3, the City shall, within such fifteen (15) business day period,
instead provide a written statement indicating in what respects Developer has failed to complete
the Minimum Improvements or Public Improvements, as applicable, in accordance with the
provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and
what measures or acts it will be necessary, in the opinion of the City, for Developer to take or
perform in order to obtain such Certificate of Completion.
d. The Certificates of Completion may be recorded in the Dallas County Recorder's
Office at Developer's sole expense.
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Section 3.4. Dedication of Public Improvements. Upon notice of completion of the
Public Improvements, the City shall inspect the Public Improvements and determine whether they
have been completed in accordance with this Agreement. If the City finds that the Public
Improvements have been duly completed in compliance with this Agreement and all City
ordinances, policies, and procedures, the bonds required by Section 3.6 have been provided, and
the City approves the Public Improvements, the Developer shall dedicate the Public Improvements
to the City and the City shall accept said dedication, at no cost to the City. If the City determines
that the Public Improvements are not acceptable, it shall notify the Developer and Developer in
the same manner as refusal to provide a Certificate of Completion as described in Section 3.3(c).
Section 3.5. No Special Legal Entitlements to Public Improvements.
a. Developer recognizes and agrees that upon dedication to the City the Public
Improvements shall be owned and maintained by the City and that nothing in this Agreement
grants Developer any special legal entitlements or other rights not held by members of the general
public with respect to ownership, maintenance, or use of the Public Improvements.
b. The Parties agree that the City and other Indemnified Parties are not responsible for
and will have no liability to Developer associated with the specifications, design, plans, quality of
construction, or sufficiency of the Public Improvements for any particular purpose.
Section 3.6. Bonding Requirements. Developer shall obtain, or require each of its general
contractors to obtain, one or more bonds that guarantee the faithful performance of this Agreement
for, in the aggregate, the anticipated full value of the completed Public Improvements and that
further guarantee the prompt payment of all materials and labor. The performance bond(s) for a
given Project of the Public Improvements shall remain in effect until construction of such Public
Improvements is completed, at which time a four-year maintenance bond shall be substituted for
each performance bond. The bonds shall clearly specify the Developer and City as joint obligees.
The Developer shall also comply with all City requirements for the construction of the Public
Improvements. Subject to conformance with any applicable City ordinance and provided the
Developer nonetheless provides the required four-year maintenance bonds, the City agrees to
accept a letter of credit in form and substance acceptable to City in lieu of the performance bond.
ARTICLE IV. INSURANCE
Section 4.1. Insurance Requirements.
a. Developer will provide and maintain or cause to be maintained at all times during
the process of constructing the Minimum Improvements and Public Improvements (and, from time
to time at the request of the City, furnish the City with proof of coverage or payment of premiums
on):
i. Builder's risk insurance, written on the so-called "Builder's Risk–
Completed Value Basis," in an amount equal to the full replacement cost of the Minimum
Improvements, and with coverage available in non-reporting form on the so-called "all risk" form
of policy.
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ii. Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations, and contractual liability
insurance) with limits against bodily injury and property damage of at least $1,000,000 for each
occurrence. The City shall be named as an additional insured for the City's liability or loss arising
out of or in any way associated with the project and arising out of any act, error, or omission of
Developer, or either entity's directors, officers, shareholders, contractors, and subcontractors or
anyone else for whose acts the City may be held responsible (with coverage to the City at least as
broad as that which is provided to Developer and not lessened or avoided by endorsement). The
policy shall contain a "severability of interests" clause and provide primary insurance over any
other insurance maintained by the City.
iii. Workers' compensation insurance with at least statutory coverage.
b. Upon completion of construction of the Minimum Improvements and at all times
prior to the Termination Date while the Minimum Improvements are owned or possessed by
Developer, Developer shall maintain or cause to be maintained, at its cost and expense (and from
time to time at the request of the City shall furnish proof of coverage or the payment of premiums
on), insurance as follows:
i. Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar businesses,
including (without limitation the generality of the foregoing) fire, extended coverage, vandalis m
and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse
in an amount not less than the full insurable replacement value of the Minimum Improvements,
but any such policy may have a deductible amount of not more than $50,000. No policy of
insurance shall be so written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the City. The term "full insurable replacement
value" shall mean the actual replacement cost of the Minimum Improvements (excluding
foundation and excavation costs and costs of underground flues, pipes, drains, and other
uninsurable items) and equipment, and shall be determined from time to time at the request of the
City, but not more frequently than once every three years, by an insurance consultant or insurer
selected and paid for by Developer and approved by the City.
ii. Comprehensive general public liability insurance, including personal injury
liability for injuries to persons and/or property, including any injuries resulting from the operation
of automobiles or other motorized vehicles on or about the Development Property, in the minimum
amount for each occurrence and for each year of $1,000,000.
iii. Such other insurance, including workers' compensation insurance
respecting all employees of Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided that
Developer may be self-insured with respect to all or any part of its liability for workers '
compensation.
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c. All insurance required by this Article IV to be provided prior to the Termination
Date shall be taken out and maintained in responsible insurance companies selected by Developer,
as applicable, which are authorized under the laws of the State to assume the risks covered thereby.
Developer will deposit annually with the City copies of policies evidencing all such insurance, or
a certificate or certificates or binders of the respective insurers stating that such insurance is in
force and effect. Unless otherwise provided in this Article IV, each policy shall contain a provision
that the insurer shall not cancel it without giving written notice to Developer, as applicable, and
the City at least thirty (30) days (ten (10) days in the case of non-payment of premium) before the
cancellation becomes effective. Within ten (10) days of being notified of any modification to the
policy by the insurer that would cause a party's coverage to be less than the minimum requirements
as set forth in this Agreement, the Developer will provide written notice to the City of the
modification. Within fifteen (15) days after the expiration of any policy, Developer shall furnish
the City evidence satisfactory to the City that the policy has been renewed or replaced by another
policy conforming to the provisions of this Article IV, or that there is no necessity therefor under
the terms hereof. In lieu of separate policies, Developer may maintain a single policy, or blanket
or umbrella policies, or a combination thereof, which provide the total coverage required herein,
in which event Developer shall deposit with the City a certificate or certificates of the respective
insurers as to the amount of coverage in force upon the Minimum Improvements.
d. Developer, at such time as it owns or has possession and control of the Minimum
Improvements, agrees to notify the City immediately in the case of damage exceeding $25,000 in
amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from
fire or other casualty. Net Proceeds of any such insurance shall be paid directly to Dev eloper (as
applicable to the specific policy), and Developer will forthwith repair, reconstruct, and restore the
Minimum Improvements to substantially the same or an improved condition or value as they
existed prior to the event causing such damage and, to the extent necessary to accomplish such
repair, reconstruction and restoration, Developer will apply the Net Proceeds of any insurance
relating to such damage received to the payment or reimbursement of the costs thereof.
e. Developer, at such time as it owns or has possession and control of the Minimum
Improvements, shall complete the repair, reconstruction, and restoration of the Minimum
Improvements, whether or not the Net Proceeds of insurance received by Developer for such
purposes are sufficient.
ARTICLE V. FURTHER COVENANTS OF DEVELOPER
Section 5.1. Maintenance of Development Property. Developer, at such time as it owns
or has possession and control of the Development Property, shall maintain, preserve, and keep the
Development Property, including but not limited to the Minimum 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.
Section 5.2. Maintenance of Records. Developer shall keep at all times proper books of
record and account in which full, true, and correct entries will be made of all dealings and
transactions of or in relation to their business and affairs relating to this Project, and will provide
reasonable protection against loss or damage to such books of record and account.
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Section 5.3. Compliance with Laws/Non-Discrimination. Developer, at such time as it
owns or has possession and control of the Development Property, will comply with all State,
federal, and local laws, rules, and regulations relating to the Minimum Improvements and
Development Property. In the construction and operation of the Minimum Improvements,
Developer shall not discriminate against any applicant, employee or tenant because of age, color,
creed, national origin, race, religion, marital status, sex, physical disability, or familial status.
Developer shall ensure that applicants, employees, and tenants are considered and are treated
without regard to their age, color, creed, national origin, race, religion, marital status, sex, physical
disability, or familial status.
Section 5.4. Available Information. Upon request, Developer shall promptly provide the
City with copies of information reasonably requested by City that are related to this Agreement so
that City can determine compliance with the Agreement.
Section 5.5. Employment. Developer is developing the Project with the anticipation that
the Minimum Improvements will be occupied by commercial enterprises that will be employing
individuals therein at least until the Termination Date of this Agreement. Through the termination
date, Developer, for such portion of the Development Property that Developer owns, shall use
commercially reasonable efforts to obtain and retain tenants or purchasers for the Minimum
Improvements who will employ employees therein.
Section 5.6. Certification. To assist the City in monitoring the Agreement and
performance of Developer hereunder, duly authorized officers of Developer shall provide an
Annual Certification to the City, the form of which is provided in Exhibit E. Upon request,
Developer shall promptly provide the City with copies of additional information reasonably
requested by City that are related to this Agreement so that City can determine compliance with
the Agreement. Such statement, proof and certificates required above shall be provided not later
than October 15 of each year, commencing on October 15, 2021 and ending on October 15, 2035.
Section 5.7. Developer's Certification of Approved Costs. Developer shall certify to the
City (the "Developer Certification") the amount of all Approved Costs submitted for
reimbursement as Economic Development Grants to be paid to the Developer and shall certify that
such amounts are true and correct. See Exhibit F for the form of Developer Certification. Such
Developer Certification shall be provided not later than October 15 of each year in which
Developer incurs Approved Costs as provided in Section 7.1(a)(iv) of this Agreement. Along with
its Developer Certification, Developer shall attach documentation showing substantiation of
Approved Costs as provided in Section 7.1(a)(iv) of this Agreement. Developer shall provide
additional supporting information for its Developer Certification upon request of the City.
Section 5.8. Developer Completion Guarantee. By signing this Agreement, Developer
hereby guarantees to the City to use reasonable best efforts in the performance by Developer of all
the terms and provisions of this Agreement pertaining to Developer 's obligations with respect to
the construction of the Public Improvements. Without limiting the generality of the foregoing,
Developer guarantees via reasonable best efforts that: (a) construction of the Public Improvements
shall be completed generally within the time limits set forth herein; (b) the Public Improvements
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shall be constructed and completed in substantial accordance with the Construction Plans; (c) the
Public Improvements shall be constructed and completed free and clear of any mechanic's liens,
materialman's liens and equitable liens (excepting any liens that are being contested by Developer
with written consent from the City, which consent shall not be unreasonably withheld, conditioned
or delayed); and (d) all costs of constructing the Public Improvements shall be paid when due by
the Developer.
ARTICLE VI. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
Section 6.1. Status of Developer; Transfer of Substantially All Assets; Assignment. As
security for the obligations of Developer under this Agreement, Developer represents and agrees
that, prior to the Termination Date, Developer will maintain its existence and will not wind up or
otherwise dispose of all or substantially all of their assets or transfer, convey, or assign its interest
in the Development Property (with the exception of right-of-way transferred to the City under this
Agreement or any portion of the Development Property upon which Minimum Improvements have
been completed) or this Agreement to any other party unless: (i) the transferee partnership,
corporation, limited liability company, or individual assumes in writing all of the then-outstanding
obligations of Developer under this Agreement; and (ii) the City consents thereto in writing in
advance thereof.
Section 6.2. Prohibition Against Use as Non-Taxable or Centrally Assessed Property.
During the term of this Agreement, Developer or its successors or assigns, agree that (except with
respect to the dedication of any right of way to the City) the Minimum Improvements and
Development Property cannot be transferred or sold to a non-profit entity or used for a purpose
that would exempt the Development Property or Minimum Improvements from property tax
liability. Nor can the Development Property or Minimum Improvements be used as centrally
assessed property (including but not limited to, Iowa Code § 428.24 to 428.29 (Public Utility Plants
and Related Personal Property); Chapter 433 (Telegraph and Telephone Company Property);
Chapter 434 (Railway Property); Chapter 437 (Electric Transmission Lines); Chapter 437A
(Property Used in the Production, Generation, Transmission or Delivery of Electricity or Natural
Gas); and Chapter 438 (Pipeline Property)).
ARTICLE VII. ECONOMIC DEVELOPMENT GRANTS
Section 7.1. Economic Development Grants.
a. Payment of Economic Development Grants. For and in consideration of the
obligations being assumed by Developer hereunder, and in furtherance of the goals and objectives
of the Urban Renewal Plan for the Urban Renewal Area and the Urban Renewal Act, the City
agrees, subject to the Developer being and remaining in compliance with this Agreement at the
time of each payment, to make up to nine (9) consecutive annual payments of Economic
Development Grants to the Developer under the following terms and conditions.
i. Schedule of Grants. Assuming completion of the Required Minimum
Improvements by October 1, 2022, full assessment of the Required Minimum Improvements on
January 1, 2023, timely certification of the Approved Costs by Developer, and debt certification
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to the Dallas County Auditor by the City prior to December 1, 2023, the Economic Development
Grants shall commence on June 1, 2025, and end on June 1, 2033, pursuant to Section 403.19 of
the Urban Renewal Act under the following formula:
June 1, 2025 100% of Tax Increments for Fiscal Year 24-25
June 1, 2026 100% of Tax Increments for Fiscal Year 25-26
June 1, 2027 100% of Tax Increments for Fiscal Year 26-27
June 1, 2028 100% of Tax Increments for Fiscal Year 27-28
June 1, 2029 100% of Tax Increments for Fiscal Year 28-29
June 1, 2030 100% of Tax Increments for Fiscal Year 29-30
June 1, 2031 100% of Tax Increments for Fiscal Year 30-31
June 1, 2032 100% of Tax Increments for Fiscal Year 31-32
June 1, 2033 100% of Tax Increments for Fiscal Year 32-33
The above schedule of the payments for Economic Development Grants is based on the first full
assessment of the Required Minimum Improvements being January 1, 2023. If the completion of
the Required Minimum Improvements is delayed so that the Required Minimum Improvements
are not fully assessed as of January 1, 2023, then the first Economic Development Grant will not
begin as scheduled, but will be delayed by up to two years. However, in no event shall the schedule
of Economic Development Grants be delayed more than two years, meaning that the latest
potential date for Developer's first Economic Development Grant, if eligible, is June 1, 2027. If
(a) the Required Minimum Improvements are fully assessed as of January 1, 2022, (b) Developer
timely files the certification required under Section 5.6 by October 15, 2022 and the certification
identifies the full assessment date, (c) the Developer requests in writing on or before October 15,
2022 that the City accelerate the Grant schedule under this provision, and (d) the other terms and
conditions of this Agreement are satisfied, then the above schedule may be accelerated by one year
such that the first Economic Development Grant would commence on June 1, 2024 and the
schedule would end on June 1, 2032.
ii. Maximum Amount of Grants. The aggregate amount of the Economic
Development Grants that may be paid to the Developer under Section 7.1(a) of this Agreement
shall be equal to the sum of the total amount of the applicable percentages of Tax Increments
collected in respect of the assessments imposed on the Development Property, but in no event shall
the aggregate amount of the Economic Development Grants exceed the lesser of: (a) $400,000, or
(b) the aggregate amount of the Approved Costs submitted to and approved by the City. If the City
Council approves an Amendment to the Urban Renewal Plan authorizing an increase to the
aggregate maximum grant amount under this Agreement to not to exceed $492,000, then the
preceding sentence shall be replaced with the following sentence: “The aggregate amount of the
Economic Development Grants that may be paid to the Developer under Section 7.1(a) of this
Agreement shall be equal to the sum of the total amount of the applicable percentages of Tax
Increments collected in respect of the assessments imposed on the Development Property, but in
no event shall the aggregate amount of the Economic Development Grants exceed the lesser of:
(a) $492,000, or (b) the aggregate amount of the Approved Costs submitted to and approved by
the City.” It is further agreed and understood that in no event shall Developer be entitled to receive
more than calculated under the formula set forth in this Section 7.1(a), even if the aggregate amount
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is less than maximum amount stated herein or the amount of Approved Costs paid by the
Developer.
iii. Limitations. Developer and Developer acknowledge that each Economic
Development Grant payment to be paid to Developer according to this Section 7.1(a) is wholly
contingent upon the actual Approved Costs paid by Developer, and payment shall come solely and
only from incremental taxes received by the City under Iowa Code Section 403.19 from levies
upon the Development Property. The City makes no assurance that the Developer will receive
Economic Development Grants which equal the cost of the Public Improvements paid by
Developer.
iv. Certification of Approved Costs. The obligation of the City to make any
Economic Development Grants to the Developer shall be subject to and conditioned upon, among
other things, the timely filing by the Developer of the Developer Certification required under
Section 5.7 hereof and the City's approval thereof. Developer must submit accurate and sufficient
documentation of the Approved Costs to the City as part of its Developer Certification.
b. Calculation of Grants. Each annual payment shall be equal in amount to the
incremental property tax revenues attributable to Development Property that are received by the
City from the Dallas County Treasurer and that are equal to the above percentages of the Tax
Increments collected by the City with respect to the Development Property under the terms of the
Ordinance and deposited into the Waukee Crossing, LLC TIF Account (without regard to any
averaging that may otherwise be utilized under Section 403.19 and excluding any interest that may
accrue thereon prior to payment to Developer) during the preceding twelve-month period in respect
of the Development Property, but subject to limitation and adjustment as provided in this Article
(such payments being referred to collectively as the "Economic Development Grants").
Section 7.2. Conditions Precedent. Notwithstanding the provisions of Section 7.1 above,
the obligation of the City to make an Economic Development Grant in any year shall be subject to
and conditioned upon the following:
(a) Compliance with the terms of this Agreement by Developer at the time of
payment; and
(b) Developer's construction of the Required Minimum Improvements and Public
Improvements consistent with this Agreement; and
(c) Developer's timely filing of the certifications set forth in Section 5.6; and
(d) Developer's timely filing of the Developer Certification as set forth in Sections
5.7 and 7.1(a)(iv).
Under no circumstances shall the failure by Developer to qualify for an Economic
Development Grant in any year serve to extend the term of this Agreement beyond the Termination
Date or the years during which Economic Development Grants may be awarded to Developer or
the total amount thereof, it being the intent of parties hereto to provide Developer with an
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opportunity to receive Economic Development Grants only if Developer fully complies with the
provisions hereof and the Developer becomes entitled thereto, up to the maximum aggregate
amounts set forth in Section 7.1(a)(ii).
After the Required Minimum Improvements are first fully assessed and if in compliance
with this Agreement, if the Developer's Annual Certification is timely filed under Section 5.6 and
the Developer Certification is timely filed under Section 5.7, the City shall certify to Dallas
County, Iowa (the "County") prior to December 1 of that year its request for the available Tax
Increments resulting from the assessments imposed by the County as of January 1 of that year, to
be collected by the County and paid to the City as taxes are paid during the following fiscal year
and a percentage of which shall thereafter be disbursed to Developer on the following June 1
provided Developer is in compliance with this Agreement at the time of payment. (Example:
assuming completion by October 1, 2022, and first full assessment on January 1, 2023, if
Developer timely certifies the costs of the Public Improvements, Developer certifies in October
2023, and the City certifies to the County by December 1, 2023, the first Economic Development
Grant would be paid to Developer on June 1, 2025 (for 100% of the Tax Increment for fiscal year
2024-2025)). Compliance with the terms and conditions of this Agreement at the time of payment
is a condition precedent to receiving an Economic Development Grant.
Section 7.3. Source of Grant Funds Limited.
a. The Economic Development Grants shall be payable from and secured solely and
only by amounts of incremental property tax revenues attributable to the Development Property
that are received by the City from the Dallas County Treasurer and that are deposited and held in
the Waukee Crossing, LLC TIF Account of the Waukee Consolidated Urban Renewal Tax
Increment Revenue Fund of the City. The City hereby covenants and agrees to maintain the
Ordinance covering the Development Property in force during the term hereof and to apply the
appropriate percentage of Tax Increments collected in respect of the Development Property and
allocated to the Waukee Crossing, LLC TIF Account to pay the Economic Development Grants,
as and to the extent set forth in this Article. The Economic Development Grants shall not be
payable in any manner by other tax increment revenues or by general taxation or from any other
City funds. Any commercial and industrial property tax replacement monies that may be received
under Chapter 441.21A of the Code shall not be included in the calculation to determine the
amount of Economic Development Grants for which Developer is eligible, and any monies
received back under Chapter 426C of the Code relating to the Business Property Tax Credit shall
not be included in the calculation to determine the amount of Economic Development Grants for
which Developer is eligible.
b. Each Economic Development Grant is subject to annual appropriation by the City
Council of the City (the "City Council"). The right of non-appropriation reserved to the City in
this Section is intended by the parties, and shall be construed at all times, so as to ensure that the
City's obligation to make future Economic Development Grants shall not constitute a legal
indebtedness of the City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the payment of that
installment or amount. In the event that any of the provisions of this Agreement are determined
by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness
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of the City, the enforcement of the said provision shall be suspended, and the Agreeme nt shall at
all times be construed and applied in such a manner as will preserve the foregoing intent of the
parties, and no Event of Default by the City shall be deemed to have occurred as a result thereof.
If any provision of this Agreement or the application thereof to any circumstance is so suspended,
the suspension shall not affect other provisions of this Agreement which can be given effect
without the suspended provision. To this end the provisions of this Agreement are severable.
c. Notwithstanding the provisions of Section 7.1 hereof, the City shall have no
obligation to make an Economic Development Grant to Developer if at any time during the term
hereof the City fails to appropriate funds for payment, or receives an opinion from its legal counsel
to the effect that the use of Tax Increments resulting from the Minimum Improvements to fund an
Economic Development Grant to Developer, as contemplated under said Section 7.1, is not
authorized or is not an otherwise appropriate urban renewal activity permitted to be undertaken by
the City under the Urban Renewal Act or other applicable provisions of the Code, as then
constituted or under controlling decision of any Iowa court having jurisdiction over the subject
matter hereof. Upon receipt of any such legal opinion or non-appropriation, the City shall
promptly forward notice of the same to Developer. If the non-appropriation or circumstances or
legal constraints giving rise to the decision continue for a period during which two (2) annual
Economic Development Grants would otherwise have been paid to Developer under the terms of
Section 7.1, the City may terminate this Agreement, without penalty or other liability to the City,
by written notice to Developer.
Section 7.4. Use of Other Tax Increments. The City shall be free to use any and all Tax
Increments above and beyond the percentages to be given to Developer in this Agreement, or any
available Tax Increments resulting from the suspension or termination of the Economic
Development Grants, for any purpose for which the Tax Increments may lawfully be used pursuant
to the provisions of the Urban Renewal Act (including an allocation of all or any portion thereof
to the reduction of any eligible City costs), and the City shall have no obligations to Developer
with respect to the use thereof.
Section 7.5. Real Property Taxes. Developer, and its permitted successors and assigns,
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 Development Property and Minimum Improvements. Until such
obligations have been assumed by any other person, all pursuant to the provisions of this
Agreement, Developer shall be responsible for all assessments and taxes.
Developer and its permitted successors agree that prior to the Termination Date:
a. They will not seek administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of real property contained on the
Development Property determined by any tax official to be applicable to the Development Property
or Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute
as a defense in any proceedings, including delinquent tax proceedings; and
b. They will not seek any tax exemption deferral or abatement either presently or
prospectively authorized under any State, federal, or local law with respect to taxation of real
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property contained on the Development Property, or the Minimum Improvements, between the
date of execution of this Agreement and the Termination Date.
c. The assessment category for the Development Property is commercial/industrial,
and Developer shall not take any action to request or effect a change in such category.
ARTICLE VIII. CITY PUBLIC IMPROVEMENTS
Section 8.1. Conditions Precedent to Construction of City Public Improvements. It is
recognized and agreed that the City’s ability to perform the obligations described in this
Agreement, with respect to construction of the City Public Improvements, is subject to completion
and satisfaction of certain separate City Council actions and required legal proceedings and each
of the following Conditions Precedent:
a. The ability of the City to meet its commitments under this Agreement is subject in
all respects to completion of all required proceedings under Chapter 403 of the Code to authorize
this Project as an urban renewal project; and
b. The City shall have completed all applicable public bidding requirements for the
City Public Improvements in the City’s sole discretion and shall have awarded a contract for the
City Public Improvements acceptable to the City in its sole discretion; and
c. The Developer negotiating in good faith with the City to provide and providing all
necessary public utility easements and right of way for the City Public Improvements, if any, over
and through the Development Property with no compensation to Developer; and
d. The completion and satisfaction of certain separate City Council actions and all
required legal proceedings relating to the issuance of any bonds necessary for the construction of
the City Public Improvements, if any, (in the sole judgment of bond counsel for the City); and
e. The City shall have completed the sale of all or a portion of the bonds, if any, on
such terms and conditions as it shall deem necessary or desirable in its sole discretion; and
f. There has not been a substantial change for the worse in the financial resources and
the ability of Developer, or a substantial decrease in the financing commitment secured by
Developer for construction of the Required Minimum Improvements and Public Improvements,
which changes make the Developer unable to fulfill its covenants and obligations under this
Agreement; and
g. Developer in material compliance with all of the terms and provisions of this
Agreement; and
h. Completion of any other hearings related to other financing sources.
Section 8.2. Design of the City Public Improvements; No Special Rights. The design of
the City Public Improvements shall be the City’s responsibility. Developer recognizes and agrees
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that the City Public Improvements shall be owned and maintained by the City and that nothing in
this Agreement grants Developer any special legal entitlements or other rights not held by
members of the general public with respect to ownership, maintenance, or use of the City Public
Improvements. The Parties agree that the City and other Indemnified Parties are not responsible
for and will have no liability to Developer associated with the specifications, design, plans, quality
of construction, or sufficiency of the City Public Improvements for any particular purpose.
Section 8.3. Construction of the City Public Improvements. Contingent on the
Developer’s compliance with the terms of this Agreement and contingent upon satisfaction of the
Conditions Precedent in Section 8.1 of this Agreement, the City intends to fund and then construct
the City Public Improvements. The City’s obligation to construct the City Public Improvements
as described in this Article shall be subject in all respects to Unavoidable Delays, the provisions
of this Article, and to the satisfaction of all conditions and procedures required (in the judgment
of bond counsel for the City) by Chapters 384 and 403 of the Code including the holding of all
required public hearings relating to the same.
Section 8.4. Completion of the City Public Improvements. Subject to Unavoidable
Delays, the City shall cause construction of the City Public Improvements to be undertaken and
completed by no later than June 1, 2022. Time lost as a result of Unavoidable Delays shall be
added to extend this date by a number of days equal to the number of days lost as a result of
Unavoidable Delays. Construction of the City Public Improvements shall not materially interfere
with or delay Developer in the construction of the Minimum Improvements. Construction of the
Required Minimum Improvements and Public Improvements on the Development Property shall
not materially interfere with or delay City in the construction of the City Public Improvements.
Section 8.5. Location of the City Public Improvements. If that portion of NW 2nd Street
described as the City Public Improvements is constructed in a location that is materially different
than the location depicted in Exhibit B-1, such that the revised location has a material detrimental
impact on the value of the Development Property, such change in location shall be considered an
Event of Default under this Agreement.
ARTICLE IX. INDEMNIFICATION
Section 9.1. Release and Indemnification Covenants.
a. Developer releases the City and 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 or resulting from any defect in the Minimum Improvements,
Public Improvements (until such time as they are conveyed to the City), or Development Property.
b. Except to the extent arising from any willful misrepresentation, gross negligence,
or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, Developer
agrees to protect and defend the Indemnified Parties, now or forever, and further agree to hold the
Indemnified Parties harmless, from any claim, demand, suit, action, or other proceedings
whatsoever by any person or entity whatsoever arising or purportedly arising from: (i) any
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violation of any agreement or condition of this Agreement (except with respect to any suit, action,
demand, or other proceeding brought by Developer against the City to enforce its rights under this
Agreement); (ii) the acquisition and condition of the Development Property and the construction,
installation, ownership, and operation of the Minimum Improvements and, until accepted by the
City, the Public Improvements; or (iii) any hazardous substance or environmental contamination
located in or on the Development Property.
c. The Indemnified Parties shall not be liable for any damage or injury to the persons
or property of Developer, or their officers, agents, servants, or employees or any other person who
may be about the Public Improvements, Minimum Improvements, or Development Property due
to any act of negligence of any person, other than any act of negligence on the part of any such
indemnified party or its officers, agents, servants or employees.
d. The provisions of this Article IX shall survive the termination of this Agreement.
ARTICLE X. REMEDIES
Section 10.1. Events of Default Defined. The following shall be "Events of Default" under
this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events during the Term of this Agreement:
a. Failure by Developer to cause the construction of the Required Minimum
Improvements and Public Improvements to be completed pursuant to the terms and conditions of
this Agreement;
b. Failure by Developer or City to substantially observe or perform any covenant,
condition, obligation, or agreement on their part to be observed or performed under this
Agreement;
c. Transfer of Developer's interest in the Development Property or this Agreement in
violation of the provisions of this Agreement;
d. Failure by Developer to pay ad valorem taxes on the Development Property or
Minimum Improvements; provided that, unless the Developer is the owner of the parcel on which
the taxes have not been paid, the only remedy for any such violation shall be a proportionate
reduction in the Economic Development Grant;
e. The holder of any Mortgage on the Development Property, or any improvements
thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under
the applicable Mortgage documents;
f. Developer shall:
i. file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United States
Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or
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ii. make an assignment for the benefit of its creditors; or
iii. admit in writing its inability to pay its debts generally as they become due;
or
iv. be adjudicated as bankrupt or insolvent; or if a petition or answer proposing
the adjudication of Developer as bankrupt or either entity's 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 Developer or the Minimum Improvements, or part thereof,
shall be appointed in any proceedings brought against Developer, and shall not be discharged
within ninety (90) days after such appointment, or if Developer shall consent to or acquiesce in
such appointment; or
g. Any representation or warranty made by Developer or City in this Agreement or in
any written statement or certificate furnished by Developer or City 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 or thereafter.
Section 10.2. Remedies on Default. Whenever any Event of Default referred to in Section
10.1 of this Agreement occurs and is continuing, the City or Developer, as specified below, may
take any one or more of the following actions after the giving of thirty (30) days' written notice the
defaulting party of the Event of Default, but only if the Event of Default has not been cured within
said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days
and the defaulting party does not provide assurances reasonably satisfactory to the non-defaulting
party that the Event of Default will be cured as soon as reasonably possible:
a. The non-defaulting party may suspend its performance under this Agreement until
it receives assurances from defaulting party, deemed adequate by the non-defaulting party, that the
defaulting party will cure the default and continue its performance under this Agreement;
b. The non-defaulting party may terminate this Agreement;
c. If the default is by the Developer, the City may withhold the Certificates of
Completion;
d. The non-defaulting party may take any action, including legal, equitable, or
administrative action, which may appear necessary or desirable to enforce performance and
observance of any obligation, agreement, or covenant of defaulting party, as the case may be, under
this Agreement; or
e. If the default is by the Developer, the City will have no obligation to make payment
of Economic Development Grants to Developer subsequent to the Event of Default.
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Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
City or Developer is intended to be exclusive of any other available remedy or remedies, but each
and every remedy shall be cumulative and shall be in addition to every other remedy given under
this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient.
Section 10.4. No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 10.5. Agreement to Pay Attorneys' Fees and Expenses. Whenever any Event of
Default occurs and the non-defaulting party shall employ attorneys or incur other expenses for the
collection of payments due or to become due or for the enforcement or performance or observance
of any obligation or agreement on the part of the defaulting party herein contained, and the non-
defaulting party prevails in an action to enforce this Agreement, the defaulting party agrees that it
shall, upon demand therefor, pay to the non-defaulting party the reasonable fees of such attorneys
and such other expenses as may be reasonably and appropriately incurred by the non-defaulting
party in connection therewith.
ARTICLE XI. MISCELLANEOUS
Section 11.1. Conflict of Interest. Developer warrants that, to its best knowledge and
belief after due inquiry, no officer or employee of the City, or their designees or agents, nor any
consultant or member of the governing body of the City, and no other public official of the City
who exercises or has exercised any functions or responsibilities with respect to the Project during
his or her tenure, or who is in a position to participate in a decision-making process or gain insider
information with regard to the Project, has had or shall have any interest, direct or indirect, in any
contract or subcontract, or the proceeds thereof, for work or services to be performed in connection
with the Project, or in any activity, or benefit therefrom, which is part of the Project at any time
during or after such person's tenure.
Section 11.2. Notices and Demands. A notice, demand or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and
a. In the case of Developer, is addressed or delivered personally to Waukee Crossing,
LLC at 611 Monticello Drive, Burlington, Iowa 52601, Attn: Mike Pierson;
b. In the case of the City, is addressed to or delivered personally to the City at 230
West Hickman Road, Waukee, Iowa 50263, Attn: Becky Schuett, City Clerk;
or to such other designated individual or officer or to such other address as any party shall have
furnished to the other in writing in accordance herewith.
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Section 11.3. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of this Agreement are inserted for convenience of reference only and shall be disregarded
in construing or interpreting any of its provisions.
Section 11.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 11.5. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Iowa.
Section 11.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement among the parties regarding the subject matter hereof, and supersedes and replaces all
prior agreements, negotiations or discussions, whether oral or written. This Agreement may not
be amended except by a subsequent writing signed by all parties hereto.
Section 11.7. Successors and Assigns. This Agreement is intended to and shall inure to
the benefit of and be binding upon the parties hereto and their respective permitted successors and
assigns.
Section 11.8. Termination Date. This Agreement shall terminate and be of no further force
or effect on and after the earlier of December 31, 2035 or the date the Developer is no longer
eligible for Economic Development Grants hereunder, unless terminated earlier under the
provisions of this Agreement.
Section 11.9. Memorandum of Agreement. The Parties agree to execute and record a
Memorandum of Agreement for Private Development, in substantially the form attached as Exhibit
D, to serve as notice to the public of the existence and provisions of this Agreement, and the rights
and interests held by the City by virtue hereof. The City shall pay for all costs of recording.
Section 11.10. No Third-Party Beneficiaries. No rights or privileges of either party hereto
shall inure to the benefit of any landowner, contractor, subcontractor, material supplier, or any
other person or entity, and no such contractor, landowner, subcontractor, material supplier, or any
other person or entity shall be deemed to be a third-party beneficiary of any of the provisions
contained in this Agreement.
Section 11.11. Contingency. This Agreement is contingent on Developer obtaining title to
the Development Property on or before January 31, 2020.
Section 11.12. Hy-Vee Parcel. It is anticipated that after Developer acquires the
Development Property it may transfer Lot 3 of the Development Property to Hy-Vee, Inc., or a
related party (“Hy-Vee”). The City hereby consents to such a transfer of Lot 3 to Hy-Vee, and,
notwithstanding anything to the contrary herein, this Agreement shall thereafter be deemed not
applicable to Lot 3; provided, however, improvements constructed on Lot 3 shall continue to
satisfy the Developer’s requirements with respect to Minimum Required Improvements and Tax
Increments from Lot 3 shall continue to be eligible for funding of Economic Development Grants
to Developer as and to the extent provided for in Article VII. Notwithstanding anything to the
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contrary set forth herein, the terms of this Section 11.12 shall not be amended without the approval
of the City, Developer and Hy-Vee, Inc.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in i ts
name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk,
and Developer has caused this Agreement to be duly executed in its names and behalf by its
authorized representatives, all on or as of the day first above written.
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(SEAL) CITY OF WAUKEE, IOWA
By: ___________________________
Courtney Clarke, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 2020, before me a Notary Public
in and for said State, personally appeared Courtney Clarke and Becky Schuett, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the
City of Waukee, Iowa, a Municipality 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 Municipality, and that said
instrument was signed and sealed on behalf of said Municipality 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 Municipality by it voluntarily executed.
___________________________________
Notary Public in and for the State of Iowa
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WAUKEE CROSSING, LLC,
an Iowa limited liability company
By: ____________________________
Mike Pierson, Manager
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 20___, before me the undersigned, a Notary
Public in and for said State, personally appeared Mike Pierson, to me personally known, who,
being by me duly sworn, did say that he is the Manager of Waukee Crossing, LLC and that said
instrument was signed on behalf of said company; and that the said Manager as such officer,
acknowledged the execution of said instrument to be the voluntary act and deed of said company,
by him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
A-1
Execution Version
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is described as follows:
Lots 1, 2, 3, and 4 and Outlot Y in Waukee Crossing Plat 1, an Official Plat, City of
Waukee, Iowa
B-1
Execution Version
EXHIBIT B
MINIMUM IMPROVEMENTS/REQUIRED MINIMUM IMPROVEMENTS
Minimum Improvements shall mean the construction of commercial buildings and related
parking and site improvements on the Development Property as depicted below. The Minimum
Improvements are anticipated to house a diverse mix of restaurants, retail, children's services, and
automotive services.
Required Minimum Improvements shall mean the construction of commercial buildings
and related parking and site improvements on at least one of the lots on the Development Property
as depicted below, with the commercial building being assessed at no less than $500,000 in the
aggregate (before rollback). The construction of the Required Minimum Improvements shall be
completed by October 1, 2022 and fully assessed by January 1, 2023. The Dallas County Assessor
will make the final determination as to the assessed value.
B-2
Execution Version
Exhibit B-1
DEPICTION OF PUBLIC IMPROVEMENTS (YELLOW) AND CITY PUBLIC
IMPROVEMENTS (GREEN)
C-1-1
Execution Version
EXHIBIT C-1
CERTIFICATE OF COMPLETION
REQUIRED MINIMUM IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the "City") and Waukee Crossing, LLC (the
"Developer") did on or about the _____ day of ____________________, 2020, make, execute, and
deliver, each to the other, an Agreement for Private Development (the "Agreement"), wherein and
whereby the Developer agreed, in accordance with the terms of the Agreement, to develop and
operate certain real property located within the City and as more particularly described as follows:
Lots 1, 2, 3, and 4 and Outlot Y in Waukee Crossing Plat 1, an Official Plat, City of Waukee,
Iowa
(the "Development Property"); and
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions
with respect to the development of the Development Property, and obligated the Developer to
construct certain Required Minimum Improvements (as defined therein) in accordance with the
Agreement; and
WHEREAS, Developer has to the present date performed said covenants and conditions
insofar as they relate to the construction of said Required Minimum Improvements in a manner
deemed by the City to be in conformance with the Agreement to permit the execution and recording
of this certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement
with respect to the obligations of Developer and its successors and assigns, to construct the
Required Minimum Improvements on the Development Property have been completed and
performed by Developer and are hereby released absolutely and forever terminated insofar as they
apply to the land described herein. The County Recorder of Dallas County is hereby authorized
to accept for recording and to record the filing of this instrument, to be a conclusive determination
of the satisfactory termination of the covenants and conditions of said Agreement with respect to
the construction of the Required Minimum Improvements on the Development Property.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Signatures Start on Next Page]
C-1-2
Execution Version
(SEAL) CITY OF WAUKEE, IOWA
By: __________________________
ATTEST: Courtney Clarke, Mayor
By: ______________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 20__, before me a Notary Public
in and for said State, personally appeared Courtney Clarke and Becky Schuett, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the
City of Waukee, Iowa, a Municipality 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 Municipality, and that said
instrument was signed and sealed on behalf of said Municipality 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 Municipality by it voluntarily executed.
__________________________________
Notary Public in and for the State of Iowa
[Signature page to Certificate of Completion for Minimum Improvements]
C-2-1
Execution Version
EXHIBIT C-2
CERTIFICATE OF COMPLETION
PUBLIC IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the "City") and Waukee Crossing, LLC (the
"Developer") did on or about the _____ day of ____________________, 2020, make, execute, and
deliver, each to the other, an Agreement for Private Development (the "Agreement"), wherein and
whereby the Developer agreed, in accordance with the terms of the Agreement, to develop certain
real property located within the City and as more particularly described as follows:
Lots 1, 2, 3, and 4 and Outlot Y in Waukee Crossing Plat 1, an Official Plat, City of Waukee,
Iowa
(the "Development Property"); and
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions
with respect to the development of the Development Property, and obligated the Developer to
construct certain Public Improvements (as defined therein) in accordance with the Agreement; and
WHEREAS, Developer has to the present date performed said covenants and conditions
insofar as they relate to the construction of said Public Improvements in a manner deemed by the
City to be in conformance with the Agreement to permit the execution and recording of this
certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement
with respect to the obligations of Developer and its successors and assigns, to construct the Public
Improvements on the Development Property have been completed and performed by Developer
and are hereby released absolutely and forever terminated insofar as they apply to the land
described herein. The County Recorder of Dallas County is hereby authorized to accept for
recording and to record the filing of this instrument, to be a conclusive determination of the
satisfactory termination of the covenants and conditions of said Agreement with respect to the
construction of the Public Improvements set forth in the Agreement.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Signatures Start on Next Page]
C-2-2
Execution Version
(SEAL) CITY OF WAUKEE, IOWA
By: ___________________________
ATTEST: Courtney Clarke, Mayor
By: ______________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 20__, before me a Notary Public
in and for said State, personally appeared Courtney Clarke and Becky Schuett, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the
City of Waukee, Iowa, a Municipality 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 Municipality, an d that said
instrument was signed and sealed on behalf of said Municipality 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 Municipality by it voluntarily executed.
__________________________________
Notary Public in and for the State of Iowa
[Signature page to Certificate of Completion for Public Improvements]
D
Execution Version
EXHIBIT D
Type of Document: MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
BETWEEN THE CITY OF WAUKEE and WAUKEE CROSSING, LLC
Return Document to: City Clerk
City of Waukee
230 West Hickman Road,
Waukee, Iowa 50263
Preparer Information: Nathan J. Overberg
Ahlers & Cooney, P.C.
100 Court Ave., Ste. #600
Des Moines, IA 50309
(515) 243-7611
Taxpayer Information: N/A
GRANTORS: N/A
GRANTEES: N/A
LEGAL DESCRIPTION: Lots 1, 2, 3, and 4 and Outlot Y in Waukee Crossing Plat 1, an Official Plat, City of
Waukee, Iowa
D-1
Execution Version
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Waukee, Iowa (the "City") and Waukee Crossing, LLC (the "Developer")
did on or about the _____ day of _______________, 2020, make, execute and deliver, each to the other,
an Agreement for Private Development (the "Agreement"), wherein and whereby Developer agreed, in
accordance with the terms of the Agreement an d the Waukee Consolidated Urban Renewal Plan (the
"Plan"), to develop and operate certain real property located within the City and within the Waukee
Consolidated Urban Renewal Area, more particularly described as follows:
Lots 1, 2, 3, and 4 and Outlot Y in Waukee Crossing Plat 1, an Official Plat, City of Waukee, Iowa
(the "Development Property"); and
WHEREAS, the term of the Agreement commenced on the ____ day of ________________, 2020
and terminates on December 31, 2030, unless otherwise terminated as set forth in the Agreement; and
WHEREAS, the City and Developer desire to record a Memorandum of the Agreement referring
to the Development Property and their respective interests therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. That the recording of this Memorandum of Agreement for Private Development shall serve
as notice to the public that the Agreement contains provisions restricting development and use of the
Development Property and the improvements located and operated on such Development Property.
2. That all of the provisions of the Agreement and any subsequent amendments thereto, if
any, even though not set forth herein, are by the filing of this Memorandum of Agreement for Private
Development made a part hereof by reference, and that anyone making any claim against any of said
Development Property in any manner whatsoever shall be fully advised as to all of the terms and
conditions of the Agreement, and any amendments thereto, as if the same were fully set forth herein.
3. That a copy of the Agreement and any subsequent amendments thereto, if any, shall be
maintained on file for public inspection during ordinary business hours in the office of the City Clerk,
Waukee, Iowa.
4. That at such time as Lot 3 of the Development Property is transferred to Hy-Vee, Inc., or
a related party (“Hy-Vee”), the terms of the Agreement shall no longer be applicable to Lot 3 ; provided,
however, Tax Increments from Lot 3 shall continue to be eligible for funding of Economic Development
Grants to Developer as and to the extent provided for in Section 11.12 of the Agreement.
IN WITNESS WHEREOF, the City and Developer have executed this Memorandum of
Agreement for Private Development on the ______ day of ___________________, 2020.
D-2
Execution Version
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
Courtney Clarke, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 2020, before me a Notary Public in and
for said State, personally appeared Courtney Clarke and Becky Schuett, to me personally known, who
being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee,
Iowa, a Municipality 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 Municipality, and that said instrument was signed and sealed
on behalf of said Municipality 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 Municipality by it voluntarily
executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature page to Memorandum of Agreement for City]
D-3
Execution Version
WAUKEE CROSSING, LLC,
an Iowa limited liability company
By: ____________________________
Mike Pierson, Manager
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 20__, before me the undersigned, a Notary Public in and for
said State, personally appeared Mike Pierson, to me personally known, who, being by me duly sworn, did
say that he is the Manager of Waukee Crossing, LLC and that said instrument was signed on behalf of
said company; and that the said Manager as such officer, acknowledged the execution of said instrument
to be the voluntary act and deed of said company, by him voluntarily executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature page to Memorandum of Agreement for Developer]
E-1
Execution Version
EXHIBIT E
DEVELOPER'S ANNUAL CERTIFICATION
Developer certifies the following:
During the time period covered by this Certification, Developer is and was in compliance with Section 5.6
as follows:
(i) All ad valorem taxes on the Development Property then owned by the Developer in the Urban
Renewal Area have been paid for the prior fiscal year (and for the current year, if due) and attached to this Annual
Certification are proof of payment of said taxes;
(ii) The Required Minimum Improvements were first fully assessed on January 1, ______, at a full
assessment value of $____________, and the most recent assessment is $ ______________ as of _____________;
(iii) The Minimum Improvements are occupied by the following commercial enterprise(s) employing
individuals therein:
1 2
Name of Occupant Square Footage of Minimum
Improvements Utilized by Occupant
Please attach proof of occupancy (e.g. – a rent roll or a signed statement on tenant's letterhead).
(iv) The undersigned officer of Developer is familiar with the terms and provisions of this Agreement
and certifies that Developer is not in default in the fulfillment of any of the terms and conditions of this Agreement,
or if the signer is aware of any such Event of Default, said officer has disclosed the nature thereof, its period of
existence and what action, if any, has been taken or is proposed to be taken with respect thereto.
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct
to the best of my knowledge and belief.
Signed this _________ day of _____________________, 20___.
By: _____________________________
Attachments: (a) Proof of payment of taxes (b) Proof of Occupancy
F-1
Execution Version
EXHIBIT F
DEVELOPER CERTIFICATION OF APPROVED COSTS
Waukee Crossing, LLC (the "Developer") certifies that the expenses shown on the table below were/are
the actual expenses incurred by the Developer for the Approved Costs defined in an Agreement for Private
Development entered into the _____ day of __________, 2020 between the City of Waukee, Iowa and
the Developer (the "Agreement").
Certified Costs of Public Improvements
Project
Cost
Category
Engineering,
Plans,
Specifications
Construction
Costs
Legal
Costs
Drainage,
Landscaping,
Grading
Cost for
acquisition
of land
within the
ROW
Interest
during
construction
and for not
more than six
months
thereafter
Miscellaneous
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Total
Cost per
category
If you need additional space please attach another table.
Attach actual receipts and invoices
[Remainder of this page intentionally left blank. Signature page to follow.]
F-2
Execution Version
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true
and correct to the best of my knowledge and belief.
WAUKEE CROSSING, LLC,
an Iowa limited liability company
By: ____________________________
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 20__, before me the undersigned, a Notary Public in and for
said State, personally appeared _____________________, to me personally known, who, being by me
duly sworn, did say that he is the ____________of Waukee Crossing, LLC, and that said instrument was
signed on behalf of said company; and that the said _____________________as such officer,
acknowledged the execution of said instrument to be the voluntary act and deed of said company, by him
voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature page to Developer Certification of Costs]
01632571-1\21938-211