HomeMy WebLinkAbout2020-10-05-H01 Waukee Towne Center LLC Development Agreement_PHAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: October 5, 2020
AGENDA ITEM:Public Hearing on a proposal to enter into a Development Agreement
with Waukee Towne Center, LLC
FORMAT:Public Hearing
SYNOPSIS INCLUDING PRO & CON: Staff has worked with Waukee Towne Center, LLC
on a development agreement for approximately 13.4 acres of property
that is located south of Hickman Road and west of Alice’s Road. The
proposed development consists of seven commercial lots and the
extension of SE Laurel Street from Alice’s Road to the Westgate
neighborhood.
The proposed agreement requires the developer to develop a portion of
the property by no later than October 1, 2022 as well as construct a
portion of SE Laurel Street within the development.
The proposed agreement obligates the City to construct the remaining
portion of SE Laurel Street to connect to SE Alice’s Road. The City’s
portion of SE Laurel Street is required to be completed by June 30, 2021.
Per the agreement, the City will be reimbursed for their portion of SE
Laurel Street improvements with the incremental taxes that are generated
from the development first and the developer will be reimbursed for their
portion of the SE Laurel Street improvements once the City has been
fully compensated. The agreement would allow for up to 12 consecutive
annual payments of incremental taxes up to a maximum of $1,100,000 or
the cost of the developer’s public improvements, whichever is less.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:City’s estimated cost of
Public Improvements - $1,000,000 and Developer’s estimated cost of
Public Improvements - $1,100,000
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT: The proposed development agreement will create the
opportunity for additional commercial development within the City of
Waukee. Additionally the proposed public improvements will address
concerns that have been brought to the City Council related to circulation
and access for those businesses along Hickman Road and Alice’s Road,
which have created safety concerns on the adjoining public streets and at
the intersection of Hickman Road and Alice’s Road.
H1
Staff received a letter of opposition to certain language pertaining to future
access to Hickman Road by the adjoining property owner to the north which is
attached. Since the letter of opposition was received, the language referenced in
the letter of opposition was removed from the development agreement that is
being considered by the City Council.
RECOMMENDATION: Hold the Public Hearing
ATTACHMENTS: I. Letter of Opposition – Waukee Marketplace
II. Proposed Development Agreement
PREPARED BY: Brad Deets, Development Services Director
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION: Dallas County News
DATE OF PUBLICATION: October 1, 2020
HOGAN LAW OFFICE
3101 INGERSOLL AVENUE, SUITE 103
DES MOINES, IOWA 50312
(515) 279-9059
October 1, 2020
Mayor Courtney Clarke
and Waukee City Council
230 W. Hickman Road
Waukee, Iowa 50263
RE: Waukee Marketplace – Hickman Road Access
Dear Mayor Clarke and City Council:
This letter will serve to set forth the objection of Hurd Waukee, LLC (“Hurd”), the owner of
Waukee Marketplace Shopping Center (“Waukee Marketplace”), to the proposed Development
Agreement between the City and Waukee Town Center, LLC (“Waukee Town Center”), the owner
of an adjoining property (the “Development Agreement”). Section 3.8 of the Development
Agreement states:
It is the City’s current intent to condition approval of any site plan for Lot 1 in
Waukee Marketplace on the provision of a public street connecting that portion of
Laurel Street being constructed by Developer as Developer Public Improvements
to Hickman Road (“Hickman Access”), but any such condition or approval is
subject to future determination by the City Council.
Hurd objects to the imposition of this requirement on its property through the use of an agreement
with a neighboring property owner. Hurd has never agreed to, and the development of Waukee
Marketplace did not contemplate, a public street running through Waukee Marketplace,
specifically including a public street connecting the newly conceived Laurel Street within the
Waukee Town Center development and Hickman Road (defined as the “Hickman Access” in the
Development Agreement). The construction and use of the Hickman Access would have a
substantial detrimental impact on Waukee Marketplace. The imposition of the requirement for the
Hickman Access in the Development Agreement would also have a substantial detrimental impact
on Waukee Marketplace.
Hurd reserves all legal rights and remedies in the event that the City approves the Development
Agreement with Section 3.8 or otherwise attempts require a public street through Waukee
Marketplace.
Sincerely,
Timothy C. Hogan
Execution Version
AGREEMENT FOR PRIVATE DEVELOPMENT
By and between
CITY OF WAUKEE, IOWA
AND
WAUKEE TOWNE CENTER, LLC
____________________ _____, 2020
Execution Version 1
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 TOWNE CENTER, 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
Amendment No. 1 to the Waukee Consolidated Urban Renewal Plan originally approved for such
area by Resolution No. 19-402, adopted November 4, 2019, which Plan has been subsequently
amended; and
WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended, has been 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 build Required Minimum Improvements on the Development
Property and use commercially reasonable efforts to cause commercial businesses to operate in
any Minimum Improvements constructed on the Development Property and employ employees
therein; and
WHEREAS, Developer shall build certain Developer 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, subject to conditions articulated herein, the City shall build certain City Public
Improvements; 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.
Execution Version 2
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.
Certificate of Completion means a certification in the form of the certificate attached hereto
as Exhibits C-1 or 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 improvements to be constructed or installed by the
City as more particularly detailed on the construction plans attached at Exhibit B-2, to be located
in or along the right of way for the “City Project” portion of SE Laurel Street on the Development
Property as shown on Exhibit B-1 and consisting generally of the following: approximately 285
linear feet by 50 feet in width of 8” thick pavement and 280 linear feet by 37 feet in width of 8”
thick pavement and 403 linear feet by 31 feet in width of 8” thick pavement and 165 linear feet by
24 feet in width of 6” thick pavement and associated subgrade preparation, along with
approximately 1200 linear feet of public water main and associated fire hydrants, approximately
952 linear feet of sanitary sewer, approximately 1266 linear feet of storm sewer and approximately
five street lights.
Code means the Code of Iowa, 2019, as amended.
Commencement Date means the date of this Agreement.
Construction Plans means the plans, specifications, drawings, and related documents
reflecting the construction work 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 means Waukee Towne Center, 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.
Developer Public Improvements means the master grading of the entire right of way for
SE Laurel Street (including the City Project portion and the Developer Project portion) depicted
on Exhibit B-1 and construction of that portion of SE Laurel Street and the sanitary sewer, storm
sewer, water main, and street lights in or along the same right of way as depicted as “Developer
Execution Version 3
Project” in Exhibit B-1 attached to this Agreement, to be completed by the Developer as part of
the Project.
Developer Public Improvement Costs means the costs and expenses related to the design
and construction of the Developer Public Improvements, and 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.
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 Minimum Improvements and the Developer Public
Improvements on the Development Property as described in this Agreement.
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 Towne Center, 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.
Execution Version 4
Termination Date means the date of termination of this Agreement, as established in
Section 11.8 of this Agreement.
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, 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, incurr ed 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 Towne Center, 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 City 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
Execution Version 5
obligations of the City, and not of any governing body member, officer, agent, servant, or
employee of the City in the individual capacity thereof.
d. City shall cause the City Public Improvements to be completed by June 30, 2021,
subject to Unavoidable Delays and the conditions set forth in this Agreement, in accordance with
the terms of this Agreement, the Urban Renewal Plan, and all local, State, and federal laws and
regulations.
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.
Execution Version 6
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.
g. Developer shall cause the Required Minimum Improvements and Developer 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 or Developer Public Improvements, as applicable, may be lawfully
constructed.
i. The construction of the Developer Public Improvements will require a total
investment of approximately $1,100,000.
j. Developer expects that, barring Unavoidable Delays, construction of the Developer
Public Improvements shall be completed by September 1, 2021, provided that Developer shall
complete the master grading for the City Project portion of right of way of SE Laurel Street (as
depicted on Exhibit B-1) and installation of storm sewer improvements, which are required for
City to commence the City Public Improvements, by December 31, 2020. The Required Minimum
Improvements shall be completed by October 1, 2022.
k. Subject to market terms and conditions, Developer has firm commitments for
construction or acquisition and permanent financing for the Developer Public Improvements in an
amount sufficient, together with equity commitments, to successfully complete the Developer
Public Improvements in accordance with the Construction Plans contemplated in this Agreement.
l. Developer shall dedicate or transfer to the City, at no cost to the City, (1) the
Developer Public Improvements and associated rights-of-way in the Development Property upon
acceptance of the Developer Pubic Improvements by the City; and (2) all rights-of-way in the
Development Property as necessary for the City’s construction of the City Public Improvements.
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
Execution Version 7
Section 3.1. Construction of Required Minimum Improvements and Developer Public
Improvements. Developer agrees that it will cause the Required Minimum Improvements and the
Developer Public Improvements to be constructed on the Development Property in conformance
with the Construction Plans submitted to the City in accordance with Section 3.2 below. Developer
agrees that the scope and scale of the Minimum Improvements and the Developer Public
Improvements to be constructed shall not be significantly less than the scope and scale as detailed
and outlined in this Agreement and the Construction Plans, the construction of which is anticipated
to require a total investment of not less than $1,100,000 for the Developer Public Improvements.
Section 3.2. Construction Plans. The Developer agrees that it will cause the Required
Minimum Improvements and Developer 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 Developer Public Improvements
and Required Minimum Improvements shall be in conformity with the terms of this Agreement,
including the terms of Exhibit B attached hereto, and any plans approved and/or permits issued by
the building official(s) of the City, which approvals and permits shall be made according to
standard City processes for such plans and permits. The Developer agrees that the scope and scale
of the Required Minimum Improvements and Developer Public Improvements shall not be
significantly less than the scope and scale as detailed and outlined in this Agreement.
Section 3.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, Developer shall cause construction of the Required Minimum Improvements and the
Developer Public Improvements to be undertaken and completed by the dates set forth in Section
2.2(j); or by such other dates as the parties shall mutually agree upon in writing. Time lost as a
result of Unavoidable Delays shall be added to extend these dates by a number of days equal to
the number of days lost as a result of Unavoidable Delays. All work with respect to the Minimum
Improvements and Developer Public Improvements shall be in conformity with the plans approved
by the building official or any amendments thereto as may be approved by the building official.
Developer agrees that it 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 Required Minimum Improvements and the Developer Public
Improvements to inspect such construction and the progress thereof, subject to Developer's rules
and regulations for the construction site.
Subject to Unavoidable Delays and the conditions set forth in this Agreement, City shall
cause construction of the City Public Improvements to be undertaken and completed by the date
set forth in Section 2.1(d); or by such other date as the parties shall mutually agree upon in writin g.
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.
Section 3.4. 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
Execution Version 8
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, the City shall
furnish Developer with a Certificate of Completion for the Developer 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 Developer Public Improvements.
c. If the City shall refuse or fail to provide a Certificate of Completion in accordance
with the provisions of this Section 3.4, 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 Developer 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.
Section 3.5. Dedication of Developer Public Improvements. Upon notice of completion
of the Developer Public Improvements, the City shall inspect the Developer Public Improvements
and determine whether they have been completed in accordance with this Agreement. If the City
finds that the Developer Public Improvements have been duly completed in compliance with this
Agreement and all City ordinances, policies, and procedures, the bonds required by Section 3.7
have been provided, and the City approves the Developer Public Improvements, the Developer
shall dedicate the Developer Public Improvements to the City and the City shall accept said
dedication, at no cost to the City. If the City determines that the Developer Public Improvements
are not acceptable, it shall notify the Developer in the same manner as refusal to provide a
Certificate of Completion as described in Section 3.4(c).
Section 3.6. No Special Legal Entitlements to Developer Public Improvements.
a. Developer recognizes and agrees that upon dedication to the City the Developer
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 Developer 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 Developer Public Improvements for any particular purpose.
Execution Version 9
Section 3.7. 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 Developer Public Improvements
and that further guarantee the prompt payment of all materials and labor. The performance bond(s)
for a given Project of the Developer Public Improvements shall remain in effect until construction
of such Developer 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 Developer 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. The City shall not exercise rights under the performance
bond or letter of credit until after the deadline for completion of the Developer Public
Improvements set forth in Section 3.3.
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 Developer 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.
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.
Execution Version 10
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, vandalism
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 li ability exposure; provided that
Developer may be self-insured with respect to all or any part of its liability for workers'
compensation.
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 insu rance, 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 th e
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
Execution Version 11
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 Developer (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 Improvem ents, 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.
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.
Execution Version 12
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 and for so
long as Developer owns such property, 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 Developer Public Improvement Costs.
Developer shall certify to the City (the “Developer Certification”) the amount of all Developer
Public Improvement 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 Developer Public Improvement Costs as
provided in Section 7.1(a)(iv) of this Agreement. Along with its Developer Certification,
Developer shall attach documentation showing substantiation of Developer Public Improvement
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 performance by Developer of all the terms and provisions of this
Agreement pertaining to Developer's obligations with respect to the construction of the Developer
Public Improvements. Without limiting the generality of the foregoing, Developer guarantees that:
(a) construction of the Developer Public Improvements shall be completed generally within the
time limits set forth herein; (b) the Developer Public Improvements shall be constructed and
completed in substantial accordance with the Construction Plans; (c) the Developer Public
Improvements shall be constructed and completed free and clear of any mechanic's liens,
materialman's liens and equitable liens; and (d) all costs of constructing the Developer Public
Improvements shall be paid when due.
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
Execution Version 13
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 twelve (12) consecutive annual payments of Economic
Development Grants to the Developer under the following terms and conditions.
i. Schedule of Grants. Assuming completion and full assessment of the
Required Minimum Improvements on January 1, 2023, timely certification of the Developer Public
Improvement costs by Developer, and debt certification 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, 2036, 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, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2026 100% of Tax Increments for Fiscal Year 25-26, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
Execution Version 14
June 1, 2027 100% of Tax Increments for Fiscal Year 26-27, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2028 100% of Tax Increments for Fiscal Year 27-28, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2029 100% of Tax Increments for Fiscal Year 28-29, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2030 100% of Tax Increments for Fiscal Year 29-30, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2031 100% of Tax Increments for Fiscal Year 30-31, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2032 100% of Tax Increments for Fiscal Year 31-32, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2033 100% of Tax Increments for Fiscal Year 32-33, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2034 100% of Tax Increments for Fiscal Year 33-34, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2035 100% of Tax Increments for Fiscal Year 34-35, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
June 1, 2036 100% of Tax Increments for Fiscal Year 35-36, if any, remaining
after the City has used the Tax Increment to pay any debt incurred
to construct the City Public Improvements
For the avoidance of doubt, 100% of the Tax Increment shall first be utilized by the City to
reimburse any debt incurred by the City (whether through internal or external loans) to construct
the City Public Improvements. Such use of the Tax Increment by the City shall not cause the
above Grant schedule to be delayed or extended; the Parties understanding the initial Grants to the
Developer may be for $0. Notwithstanding the foregoing, if City fails to substantially complete
the construction of the City Public Improvements by June 30, 2021, subject to Unavoidable Delay,
such that Developer cannot construct the Developer Public Improvements, then each Grant to
Developer shall include 100% of the Tax Increment without any deduction to pay debt incurred
by the City to construct the City Public Improvements, subject to the te rms and conditions of this
Article VII.
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
Execution Version 15
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, 2035.
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, as adjusted to allow
the City to first pay its debt for constructing the City Public Improvements, but in no event shall
the aggregate amount of the Economic Development Grants exceed the lesser of: (a) $1,100,000,
or (b) the aggregate amount of the Developer Public Improvement Costs submitted to and
approved by the City as a part of Developer's completion of the Developer Public Improvements.
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 is less
than $1,100,000 or the amount of Developer Public Improvement Costs paid by the Developer.
Notwithstanding the foregoing, if the Development Property or adjacent property currently owned
by Robert F. Etzel Trust that is under contract by Developer (“Adjacent Development Property”)
is subject to a special assessment to help fund connecting Laurel Street to Hickman Road (“the
Hickman Access”) during the term of this Agreement, or if Developer completes the City Public
Improvements pursuant to Section 8.3 below, then the $1,100,000 figure included in this paragraph
shall be increased by an amount equal to Developer’s actual costs in completing the City Public
Improvements as shown by a cost certificate the form required for the Developer Public
Improvements in Section 5.7 or, as applicable, the amount of additional taxes assessed on the
Development Property or Adjacent Development Property as part of the special assessment
process. For the avoidance of doubt and by way of example only, if the Development Property or
Adjacent Development Property is specially assessed $250,000 to help fund the Hickman Access,
then the $1,100,000 figure included in this paragraph shall be increased to $1,350,000; or if the
cost for the Developer to complete the City Public Improvements is $800,000, then the $1,100,000
figure included in this paragraph shall be increased to $1,900,000.
iii. Limitations. Developer acknowledges that each Economic Development
Grant payment to be paid to Developer according to this Section 7.1(a) is wholly contingent upon
the actual Developer Public Improvement 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 $1,100,000 or the cost of the Developer Public
Improvements paid by Developer.
Execution Version 16
iv. Certification of Developer Public Improvement 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 Developer Public Improvement 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 the 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 Towne Center, 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
Developer Public Improvements consistent with this Agreement; and
(c) Developer's timely filing of the Annual Certifications as 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
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 Certifications have been 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
Execution Version 17
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 of the Required Minimum Improvements by October 1, 2022, and first full
assessment of the Required Minimum Improvements on January 1, 2023, if Developer timely
certifies the costs of the Developer Public Improvements, Developer provides its Annual
Certification 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, subject to the limitations set forth in Section 7.1(a)(i))).
Compliance with the terms and conditions of this Agreement 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 Towne Center, 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 Towne Center, 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 s hall
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
of the City, the enforcement of the said provision shall be suspended, and the Agreement shall at
all times be construed and applied in such a manner as will preserve the foregoing intent of the
parties, and no Event of Default by the City shall be deemed to have occurred as a result thereof.
If any provision of this Agreement or the application thereof to any circumstance is so suspended,
the suspension shall not affect other provisions of this Agreement which can be given effect
without the suspended provision. To this end the provisions of this Agreement are severable.
Execution Version 18
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
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
Execution Version 19
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
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.
Execution Version 20
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 shall 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.
Notwithstanding anything in this Agreement to the contrary, provided Developer is in
compliance with the terms of this Agreement, if City for any reason other than Unavoidable Delay
fails to commence construction of the City Public Improvements by June 1, 2021, Developer may
elect, after providing thirty (30) days written notice to the City, to undertake and thereafter
complete the construction of the City Public Improvements. If Developer completes the City
Public Improvements under this paragraph, City agrees that the maximum aggregate amount of
Economic Development Grants shall be increased as set forth in Section 7.1(a)(ii) above.
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 May 31, 2021. 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. Developer shall make reasonable efforts to ensure that construction of the
Required Minimum Improvements and Developer Public Improvements on the Development
Property shall not materially interfere with or delay City in the construction of the City Public
Improvements, and City shall make reasonable efforts to ensure that construction of the City Public
Improvements shall not materially interfere or delay the Developer in constructing the Developer
Public Improvements.
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,
Developer 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
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
Execution Version 21
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 Developer 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 Developer 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 Developer 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 Grants;
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 or City 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
ii. make an assignment for the benefit of its creditors; or
Execution Version 22
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 by
the non-defaulting party and the holder of any Mortgage (but only to the extent the City has been
informed in writing of the existence of a Mortgage and been provided with the address of the
holder thereof) 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 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 t he non-defaulting party, that
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.
Execution Version 23
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 unde r
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 City or Developer, as applicable, 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 City or Developer, as
applicable, herein contained, and the City or Developer, as applicable, prevails in an action to
enforce this Agreement, then City or Developer, as applicable, agrees that City or Developer, as
applicable, shall, upon demand therefor, pay to the other the reasonable fees of such attorneys and
such other expenses as may be reasonably and appropriately incurred by the City or Developer, as
applicable, 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 Ci ty
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 Towne
Center, 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.
Execution Version 24
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, 2038 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 thirty (30) days after recording of Waukee Towne Center
Plat 1.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
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 name and behalf by its
authorized representative, all on or as of the day first above written.
[Signatures start on the next page]
Execution Version 25
(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
Execution Version 26
WAUKEE TOWNE CENTER, LLC,
an Iowa limited liability company
By: ____________________________
Mike Pierson, Manager
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2020, 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 Towne Center, LLC and t hat
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
Execution Version A-1
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is described as follows:
A PARCEL OF LAND IN PARCEL 'BB' OF THE E1/2 NE1/4 OF SECTION 34,
TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., AN OFFICIAL PARCEL
RECORDED IN BOOK 2012, PAGE 22929 AT THE DALLAS COUNTY
RECORDER’S OFFICE, CITY OF WAUKEE, DALLAS COUNTY, IOWA THAT IS
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NW CORNER OF SAID PARCEL ‘BB’, SAID NW CORNER
ALSO BEING THE SW CORNER OF WAUKEE MARKET PLACE PLAT 1, AN
OFFICIAL PLAT RECORDED IN BOOK 2017, PAGE 9595 AT THE DALLAS
COUNTY RECORDER’S OFFICE; THENCE N89°37'30"E, 832.69 FEET ALONG THE
NORTH LINE OF SAID PARCEL ‘BB’, SAID NORTH LINE ALSO COINCIDING
WITH THE SOUTH LINE OF SAID WAUKEE MARKET PLACE PLAT 1 TO A POINT
OF CURVATURE; THENCE SOUTHEASTERLY ALONG A CURVE TO THE RIGHT
HAVING A RADIUS OF 77.50 FEET AND A CHORD BEARING S45°11’16”E, AN
ARC LENGTH OF 122.24 FEET ALONG SAID NORTH LINE TO A POINT OF
TANGENCY; THENCE S00°00’03”E, 215.99 FEET ALONG SAID NORTH LINE TO
A POINT; THENCE N89°55’17”E, 325.01 FEET ALONG SAID NORTH LINE TO THE
SE CORNER OF LOT 7 OF SAID WAUKEE MARKET PLACE PLAT 1, SAID SE
CORNER ALSO BEING THE NW CORNER OF THE WARRANTY DEED AND
ATTACHED ACQUISITION PLAT RECORDED IN BOOK 2017, PAGE 23499 AT
THE DALLAS COUNTY RECORDER’S OFFICE, THENCE SOUTHERLY ALONG A
NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 3437.50 FEET AND
A CHORD BEARING S01°12’23”W, AN ARC LENGTH OF 153.28 FEET ALONG
THE WEST LINE OF SAID WARRANTY DEED TO A POINT OF REVERSE
CURVATURE; THENCE SOUTHERLY ALONG A CURVE TO THE RIGHT HAVING
A RADIUS OF 3562.50 FEET AND A CHORD BEARING S01°12’09”W, AN ARC
LENGTH OF 159.33 FEET ALONG SAID WEST LINE TO A POINT OF TANGENCY;
THENCE S00°04’43”E, 443.32 FEET ALONG SAID WEST LINE TO A POINT;
THENCE N89°44'09"W, 376.67 FEET TO A POINT; THENCE N00°04’43”W, 408.62
FEET TO A POINT OF CURVATURE; THENCE NORTHWESTERLY ALONG A
CURVE TO THE LEFT HAVING A RADIUS OF 303.00 FEET AND A CHORD
BEARING N45°13'37"W, AN ARC LENGTH OF 477.52 FEET TO A POINT OF
TANGENCY; THENCE S89°37'40"W, 208.53 FEET TO A POINT OF CURVATURE;
THENCE NORTHWESTERLY ALONG A CURVE TO THE RIGHT HAVING A
RADIUS OF 363.00 FEET AND A CHORD BEARING N59°50'42"W, AN ARC
LENGTH OF 383.06 FEET TO A POINT OF REVERSE CURVATURE; THENCE
WESTERLY ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 25.00 FEET
AND A CHORD BEARING N61°06'47"W, AN ARC LENGTH OF 27.55 FEET TO A
POINT ON THE WEST LINE OF SAID PARCEL ‘BB’; THENCE N00°00'05"E, 135.57
FEET ALONG SAID WEST LINE TO THE POINT OF BEGINNING AND
CONTAINING 13.41 ACRES MORE OR LESS AND SUBJECT TO EASEMENTS,
AGREEMENTS AND LICENSES OF RECORD.
Execution Version B-1
EXHIBIT B
MINIMUM IMPROVEMENTS AND DEVELOPER PUBLIC IMPROVEMENTS
Minimum Improvements shall mean the construction of commercial buildings and related
parking and site improvements on the Development Property as depicted on Exhibit B-1. 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 in Exhibit B-1, with the commercial buildings 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 the January 1, 2023. The Dallas
County Assessor will make the final determination as to the assessed value.
Developer Public Improvements shall mean the construction of an extension of that portion
of SE Laurel Street across the Development Property and the sanitary sewer, storm sewer, water
main, and street lights in or along the same right of way as depicted as “Developer Project” in
Exhibit B-1.
The construction of the Developer Public Improvements shall be completed by September
1, 2021, provided that Developer shall complete the master grading for the City Project portion of
the right of way of SE Laurel Street (as depicted on Exhibit B-1) and installation of storm sewer
improvements, which are required for City to commence the City Public Improvements, by
December 31, 2020. Construction costs for the Developer Public Improvements are anticipated to
be approximately $1,100,000.00.
Execution Version B-1-1
EXHIBIT B-1
DEPICTION OF PUBLIC IMPROVMENTS (CITY AND DEVELOPER PROJECTS)
Execution Version B-2-1
EXHIBIT B-2
CITY PUBLIC IMPROVEMENT CONSTRUCTION PLANS
(See Following 21 Pages)
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Cover.dwg, 9/4/2020 3:26:28 PM, ltwiford, 1:1
LOT 4LOT 6OUTLOT 'Z'LOT 2LOT 5LOT 3LOT 7LOT 'A'LOT 1OUTLOT 'X'OUTLOT 'Y'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Dimension Plan.dwg, 9/4/2020 3:27:17 PM, ltwiford, 1:1
LOT 7LOT 'A'(SERVICE)Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Sanitary Sewer Plan - 3.dwg, 9/4/2020 3:28:44 PM, ltwiford, 1:1
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Sanitary Sewer Plan - 2A.dwg, 9/4/2020 3:30:05 PM, ltwiford, 1:1
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Sanitary Sewer Plan - 2.dwg, 9/4/2020 3:31:26 PM, ltwiford, 1:1
LOT 5LOT 5LOT 6Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Storm Sewer Plan - 5.dwg, 9/4/2020 3:33:13 PM, ltwiford, 1:1
LOT 7LOT 7LOT 'A'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Storm Sewer Plan - 6.dwg, 9/4/2020 3:34:57 PM, ltwiford, 1:1
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Water Main Plan - 3.dwg, 9/4/2020 3:36:41 PM, ltwiford, 1:1
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Water Main Plan - 4.dwg, 9/4/2020 3:38:26 PM, ltwiford, 1:1
LOT 5LOT 6LOT 7Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Water Main Plan - 4A.dwg, 9/4/2020 3:40:16 PM, ltwiford, 1:1
LOT 'A'LOT 7OUTLOT 'X'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Water Main Plan - 5.dwg, 9/4/2020 3:42:06 PM, ltwiford, 1:1
LOT 3OUTLOT 'Y'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Paving Private.dwg, 9/4/2020 3:43:59 PM, ltwiford, 1:1
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Jointing Plan - 2.dwg, 9/4/2020 3:45:19 PM, ltwiford, 1:1
LOT 7OUTLOT 'X'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Jointing Plan - 3.dwg, 9/4/2020 3:46:34 PM, ltwiford, 1:1
OUTLOT 'X'LOT 7LOT 3OUTLOT 'Y'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\INTERSECTION DETAILS.dwg, 9/4/2020 3:49:11 PM, ltwiford, 1:1
LOT 6LOT 4T 'Z'LOT 5OUTLOT 'X'LOT 7LOT 'A'LOT 3OUTLOT 'Y'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Grading Plan.dwg, 9/4/2020 3:50:53 PM, ltwiford, 1:1
Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com3. THE LAST THREE PIPE JOINTSARE TO BE TIED AND APRONGUARD IS REQUIRED.3.THE LAST THREE PIPE JOINTSARE TO BE TIED AND APRONGUARD IS REQUIRED.q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Details.dwg, 9/4/2020 3:51:14 PM, ltwiford, 1:1
xxxxxxxxxxxxxxxxxxxxq:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Grading Plan.dwg, 9/4/2020 3:52:38 PM, ltwiford, 1:1
LOT 6LOT 4T 'Z'LOT 5OUTLOT 'X'LOT 7LOT 'A'LOT 3OUTLOT 'Y'q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Grading Plan.dwg, 9/4/2020 3:52:43 PM, ltwiford, 1:1
LOT 4LOT 6OUTLOT 'Z'LOT 50.10.20.20.20.20.10.20.20.20.10.10.20.20.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.20.20.20.10.20.20.20.20.10.10.20.20.20.20.20.20.20.20.20.20.20.30.30.20.20.30.30.40.30.30.40.40.40.40.30.30.40.50.60.60.50.40.60.70.70.80.30.50.70.80.90.20.30.50.70.91.00.10.20.20.30.50.60.80.10.20.20.30.40.40.50.10.10.20.20.30.30.30.10.10.20.20.20.20.20.10.10.10.10.20.20.20.20.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.20.20.20.20.10.10.10.10.10.10.20.20.20.20.20.20.20.10.10.10.10.30.40.40.40.30.30.30.30.20.20.20.10.10.00.00.10.10.10.10.10.10.10.10.10.10.20.20.20.20.20.20.20.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.20.20.20.20.20.20.20.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.20.20.30.40.50.60.60.50.50.40.40.30.20.20.10.00.00.10.10.10.10.10.20.20.20.20.20.20.30.30.30.30.30.20.20.20.20.20.20.20.20.10.10.10.10.20.20.20.10.20.20.20.30.30.30.30.30.30.20.20.20.20.20.20.10.10.10.10.10.10.10.10.10.20.20.20.20.30.30.40.60.80.80.70.60.50.40.30.00.00.10.10.10.10.20.20.20.20.30.30.30.40.50.60.50.40.30.30.30.30.20.20.20.20.20.20.20.20.20.20.20.20.20.20.30.40.50.60.60.50.40.30.30.30.20.20.20.20.10.10.10.10.10.10.10.20.20.20.30.30.30.40.50.70.91.00.90.70.50.00.00.10.10.10.10.10.20.20.30.30.40.40.50.70.80.70.60.50.40.30.30.20.20.20.20.20.20.20.20.20.20.20.30.30.30.40.50.70.80.70.60.50.40.40.30.20.20.20.10.10.10.10.10.10.10.10.10.20.20.20.30.30.40.60.80.00.00.00.10.10.10.10.20.20.20.30.40.50.70.90.90.90.70.60.40.30.30.20.20.20.10.10.10.10.10.20.20.20.30.30.40.50.60.80.90.90.80.60.50.30.30.20.20.10.10.10.10.10.10.10.10.10.10.10.00.00.00.10.10.10.10.10.20.20.30.40.50.70.90.50.20.10.10.10.10.10.10.10.20.20.00.00.00.00.00.10.10.10.10.20.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.00.10.10.10.00.00.00.10.10.10.10.10.00.00.10.10.10.10.10.10.00.10.10.10.10.10.10.00.10.10.10.10.10.10.00.10.10.20.20.10.10.00.10.20.20.20.20.10.10.10.20.20.20.20.20.10.10.20.20.30.30.20.10.10.20.20.30.40.30.10.10.20.30.40.40.40.10.20.20.30.50.60.60.10.20.30.40.60.70.80.20.20.30.50.70.80.90.10.20.20.30.50.80.81.00.10.10.20.30.50.60.80.90.10.10.20.30.40.50.60.70.10.10.10.20.30.40.50.50.10.10.10.20.30.40.40.40.00.10.10.20.20.30.30.30.00.10.10.20.20.30.20.20.00.10.10.20.20.20.20.20.00.10.10.20.20.20.20.10.00.10.10.20.20.20.20.10.00.10.10.10.20.20.20.10.00.10.10.10.20.20.10.10.00.10.10.10.10.20.20.10.00.00.10.10.10.20.20.10.00.00.10.10.10.20.20.20.00.00.10.10.10.20.20.20.00.00.00.10.10.20.20.20.00.00.00.10.10.20.20.30.00.00.00.10.10.10.20.30.00.00.00.10.10.20.20.30.00.00.10.10.10.20.20.30.250.250.250.250.250.250.250.25 0
.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.250.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.50.5LOT 3LOT 7LOT 'A'OUTLOT 'Y'OUTLOT 'X'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Lighting Plan.dwg, 9/4/2020 3:53:44 PM, ltwiford, 1:1
LOT 4LOT 6OUTLOT 'Z'LOT 2LOT 5LOT 3OUTLOT 'X'LOT 7LOT 'A'LOT 1OUTLOT 'Y'Civil Engineering Consultants, Inc.
2400 86th Street . Unit 12 . Des Moines, Iowa 50322
515.276.4884 . Fax: 515.276.7084 . mail@ceclac.com
q:\A-FILES\A-2000\A2073\_c3d drawings\construction documents\public improvements\Marking Plan.dwg, 9/4/2020 3:54:42 PM, ltwiford, 1:1
Execution Version C-1-1
EXHIBIT C-1
CERTIFICATE OF COMPLETION
MINIMUM IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the "City") and Waukee Towne Center, 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:
A PARCEL OF LAND IN PARCEL 'BB' OF THE E1/2 NE1/4 OF SECTION 34,
TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., AN OFFICIAL PARCEL
RECORDED IN BOOK 2012, PAGE 22929 AT THE DALLAS COUNTY
RECORDER’S OFFICE, CITY OF WAUKEE, DALLAS COUNTY, IOWA THAT IS
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NW CORNER OF SAID PARCEL ‘BB’, SAID NW CORNER
ALSO BEING THE SW CORNER OF WAUKEE MARKET PLACE PLAT 1, AN
OFFICIAL PLAT RECORDED IN BOOK 2017, PAGE 9595 AT THE DALLAS
COUNTY RECORDER’S OFFICE; THENCE N89°37'30"E, 832.69 FEET ALONG THE
NORTH LINE OF SAID PARCEL ‘BB’, SAID NORTH LINE ALSO COINCIDING
WITH THE SOUTH LINE OF SAID WAUKEE MARKET PLACE PLAT 1 TO A POINT
OF CURVATURE; THENCE SOUTHEASTERLY ALONG A CURVE TO THE RIGHT
HAVING A RADIUS OF 77.50 FEET AND A CHORD BEARING S45°11’16”E, AN
ARC LENGTH OF 122.24 FEET ALONG SAID NORTH LINE TO A POINT OF
TANGENCY; THENCE S00°00’03”E, 215.99 FEET ALONG SAID NORTH LINE TO
A POINT; THENCE N89°55’17”E, 325.01 FEET ALONG SAID NORTH LINE TO THE
SE CORNER OF LOT 7 OF SAID WAUKEE MARKET PLACE PLAT 1, SAID SE
CORNER ALSO BEING THE NW CORNER OF THE WARRANTY DEED AND
ATTACHED ACQUISITION PLAT RECORDED IN BOOK 2017, PAGE 23499 AT
THE DALLAS COUNTY RECORDER’S OFFICE, THENCE SOUTHERLY ALONG A
NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 3437.50 FEET AND
A CHORD BEARING S01°12’23”W, AN ARC LENGTH OF 153.28 FEET ALONG
THE WEST LINE OF SAID WARRANTY DEED TO A POINT OF REVERSE
CURVATURE; THENCE SOUTHERLY ALONG A CURVE TO THE RIGHT HAVING
A RADIUS OF 3562.50 FEET AND A CHORD BEARING S01°12’09”W, AN ARC
LENGTH OF 159.33 FEET ALONG SAID WEST LINE TO A POINT OF TANGENCY;
THENCE S00°04’43”E, 443.32 FEET ALONG SAID WEST LINE TO A POINT;
THENCE N89°44'09"W, 376.67 FEET TO A POINT; THENCE N00°04’43”W, 408.62
FEET TO A POINT OF CURVATURE; THENCE NORTHWESTERLY ALONG A
CURVE TO THE LEFT HAVING A RADIUS OF 303.00 FEET AND A CHORD
BEARING N45°13'37"W, AN ARC LENGTH OF 477.52 FEET TO A POINT OF
TANGENCY; THENCE S89°37'40"W, 208.53 FEET TO A POINT OF CURVATURE;
THENCE NORTHWESTERLY ALONG A CURVE TO THE RIGHT HAVING A
RADIUS OF 363.00 FEET AND A CHORD BEARING N59°50'42"W, AN ARC
LENGTH OF 383.06 FEET TO A POINT OF REVERSE CURVATURE; THENCE
WESTERLY ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 25.00 FEET
AND A CHORD BEARING N61°06'47"W, AN ARC LENGTH OF 27.55 FEET TO A
POINT ON THE WEST LINE OF SAID PARCEL ‘BB’; THENCE N00°00'05"E, 135.57
FEET ALONG SAID WEST LINE TO THE POINT OF BEGINNING AND
Execution Version C-1-2
CONTAINING 13.41 ACRES MORE OR LESS AND SUBJECT TO EASEMENTS,
AGREEMENTS AND LICENSES OF RECORD.
(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]
Execution Version C-1-3
(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]
Execution Version C-2-1
EXHIBIT C-2
CERTIFICATE OF COMPLETION
DEVELOPER PUBLIC IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the "City") and Waukee Towne Center, 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:
A PARCEL OF LAND IN PARCEL 'BB' OF THE E1/2 NE1/4 OF SECTION 34,
TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., AN OFFICIAL PARCEL
RECORDED IN BOOK 2012, PAGE 22929 AT THE DALLAS COUNTY
RECORDER’S OFFICE, CITY OF WAUKEE, DALLAS COUNTY, IOWA THAT IS
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NW CORNER OF SAID PARCEL ‘BB’, SAID NW CORNER
ALSO BEING THE SW CORNER OF WAUKEE MARKET PLACE PLAT 1, AN
OFFICIAL PLAT RECORDED IN BOOK 2017, PAGE 9595 AT THE DALLAS
COUNTY RECORDER’S OFFICE; THENCE N89°37'30"E, 832.69 FEET ALONG THE
NORTH LINE OF SAID PARCEL ‘BB’, SAID NORTH LINE ALSO COINCIDING
WITH THE SOUTH LINE OF SAID WAUKEE MARKET PLACE PLAT 1 TO A POINT
OF CURVATURE; THENCE SOUTHEASTERLY ALONG A CURVE TO THE RIGHT
HAVING A RADIUS OF 77.50 FEET AND A CHORD BEARING S45°11’16”E, AN
ARC LENGTH OF 122.24 FEET ALONG SAID NORTH LINE TO A POINT OF
TANGENCY; THENCE S00°00’03”E, 215.99 FEET ALONG SAID NORTH LINE TO
A POINT; THENCE N89°55’17”E, 325.01 FEET ALONG SAID NORTH LINE TO THE
SE CORNER OF LOT 7 OF SAID WAUKEE MARKET PLACE PLAT 1, SAID SE
CORNER ALSO BEING THE NW CORNER OF THE WARRANTY DEED AND
ATTACHED ACQUISITION PLAT RECORDED IN BOOK 2017, PAGE 23499 AT
THE DALLAS COUNTY RECORDER’S OFFICE, THENCE SOUTHERLY ALONG A
NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 3437.50 FEET AND
A CHORD BEARING S01°12’23”W, AN ARC LENGTH OF 153.28 FEET ALONG
THE WEST LINE OF SAID WARRANTY DEED TO A POINT OF REVERSE
CURVATURE; THENCE SOUTHERLY ALONG A CURVE TO THE RIGHT HAVING
A RADIUS OF 3562.50 FEET AND A CHORD BEARING S01°12’09”W, AN ARC
LENGTH OF 159.33 FEET ALONG SAID WEST LINE TO A POINT OF TANGENCY;
THENCE S00°04’43”E, 443.32 FEET ALONG SAID WEST LINE TO A POINT;
THENCE N89°44'09"W, 376.67 FEET TO A POINT; THENCE N00°04’43”W, 408.62
FEET TO A POINT OF CURVATURE; THENCE NORTHWESTERLY ALONG A
CURVE TO THE LEFT HAVING A RADIUS OF 303.00 FEET AND A CHORD
BEARING N45°13'37"W, AN ARC LENGTH OF 477.52 FEET TO A POINT OF
TANGENCY; THENCE S89°37'40"W, 208.53 FEET TO A POINT OF CURVATURE;
THENCE NORTHWESTERLY ALONG A CURVE TO THE RIGHT HAVING A
RADIUS OF 363.00 FEET AND A CHORD BEARING N59°50'42"W, AN ARC
LENGTH OF 383.06 FEET TO A POINT OF REVERSE CURVATURE; THENCE
WESTERLY ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 25.00 FEET
AND A CHORD BEARING N61°06'47"W, AN ARC LENGTH OF 27.55 FEET TO A
POINT ON THE WEST LINE OF SAID PARCEL ‘BB’; THENCE N00°00'05"E, 135.57
FEET ALONG SAID WEST LINE TO THE POINT OF BEGINNING AND
Execution Version C-2-2
CONTAINING 13.41 ACRES MORE OR LESS AND SUBJECT TO EASEMENTS,
AGREEMENTS AND LICENSES OF RECORD.
(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 Developer 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 Developer 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
Developer 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 autho rized
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 Developer 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]
Execution Version C-2-3
(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 Developer Public Improvements]
Execution Version D
EXHIBIT D
Type of Document: MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
BETWEEN THE CITY OF WAUKEE and WAUKEE TOWNE CENTER,
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: See page D-1 of the Memorandum of Agreement.
Execution Version D-1
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Waukee, Iowa (the "City") and Waukee Towne Center, 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 and 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:
A PARCEL OF LAND IN PARCEL 'BB' OF THE E1/2 NE1/4 OF SECTION 34, TOWNSHIP 79
NORTH, RANGE 26 WEST OF THE 5TH P.M., AN OFFICIAL PARCEL RECORDED IN BOOK
2012, PAGE 22929 AT THE DALLAS COUNTY RECORDER’S OFFICE, CITY OF WAUKEE,
DALLAS COUNTY, IOWA THAT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NW CORNER OF SAID PARCEL ‘BB’, SAID NW CORNER ALSO
BEING THE SW CORNER OF WAUKEE MARKET PLACE PLAT 1, AN OFFICIAL PLAT
RECORDED IN BOOK 2017, PAGE 9595 AT THE DALLAS COUNTY RECORDER’S
OFFICE; THENCE N89°37'30"E, 832.69 FEET ALONG THE NORTH LINE OF SAID PARCEL
‘BB’, SAID NORTH LINE ALSO COINCIDING WITH THE SOUTH LINE OF SAID WAUKEE
MARKET PLACE PLAT 1 TO A POINT OF CURVATURE; THENCE SOUTHEASTERLY
ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 77.50 FEET AND A CHORD
BEARING S45°11’16”E, AN ARC LENGTH OF 122.24 FEET ALONG SAID NORTH LINE
TO A POINT OF TANGENCY; THENCE S00°00’03”E, 215.99 FEET ALONG SAID NORTH
LINE TO A POINT; THENCE N89°55’17”E, 325.01 FEET ALONG SAID NORTH LINE TO
THE SE CORNER OF LOT 7 OF SAID WAUKEE MARKET PLACE PLAT 1, SAID SE
CORNER ALSO BEING THE NW CORNER OF THE WARRANTY DEED AND ATTACHED
ACQUISITION PLAT RECORDED IN BOOK 2017, PAGE 23499 AT THE DALLAS COUNTY
RECORDER’S OFFICE, THENCE SOUTHERLY ALONG A NON-TANGENT CURVE TO
THE LEFT HAVING A RADIUS OF 3437.50 FEET AND A CHORD BEARING S01°12’23”W,
AN ARC LENGTH OF 153.28 FEET ALONG THE WEST LINE OF SAID WARRANTY DEED
TO A POINT OF REVERSE CURVATURE; THENCE SOUTHERLY ALONG A CURVE TO
THE RIGHT HAVING A RADIUS OF 3562.50 FEET AND A CHORD BEARING
S01°12’09”W, AN ARC LENGTH OF 159.33 FEET ALONG SAID WEST LINE TO A POINT
OF TANGENCY; THENCE S00°04’43”E, 443.32 FEET ALONG SAID WEST LINE TO A
POINT; THENCE N89°44'09"W, 376.67 FEET TO A POINT; THENCE N00°04’43”W, 408.62
FEET TO A POINT OF CURVATURE; THENCE NORTHWESTERLY ALONG A CURVE TO
THE LEFT HAVING A RADIUS OF 303.00 FEET AND A CHORD BEARING N45°13'37"W,
AN ARC LENGTH OF 477.52 FEET TO A POINT OF TANGENCY; THENCE S89°37'40"W,
208.53 FEET TO A POINT OF CURVATURE; THENCE NORTHWESTERLY ALONG A
CURVE TO THE RIGHT HAVING A RADIUS OF 363.00 FEET AND A CHORD BEARING
N59°50'42"W, AN ARC LENGTH OF 383.06 FEET TO A POINT OF REVERSE CURVATURE;
THENCE WESTERLY ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 25.00
FEET AND A CHORD BEARING N61°06'47"W, AN ARC LENGTH OF 27.55 FEET TO A
POINT ON THE WEST LINE OF SAID PARCEL ‘BB’; THENCE N00°00'05"E, 135.57 FEET
ALONG SAID WEST LINE TO THE POINT OF BEGINNING AND CONTAINING 13.41
ACRES MORE OR LESS AND SUBJECT TO EASEMENTS, AGREEMENTS AND LICENSES
OF RECORD.
(the "Development Property"); and
WHEREAS, the term of the Agreement commenced on the ____ day of _____________, 2020
and terminates on the Termination Date set forth in the Agreement; and
Execution Version D-2
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.
IN WITNESS WHEREOF, the City and Developer have executed this Memorandum of
Agreement for Private Development on the ______ day of _____________, 2020.
[Remainder of page intentionally left blank; Signature pages follow]
Execution Version D-3
(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]
Execution Version D-4
WAUKEE TOWNE CENTER, LLC,
an Iowa limited liability company
By: ____________________________
Mike Pierson, Manager
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2020, 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 Towne Center, 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]
Execution Version E-1
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___.
WAUKEE TOWNE CENTER, LLC
By: _____________________________
Print Name: _____________________________
Its: _______________________________
Attachments: (a) Proof of payment of taxes (b) Proof of Occupancy
Execution Version F-1
EXHIBIT F
DEVELOPER CERTIFICATION OF DEVELOPER PUBLIC IMPROVEMENT COSTS
Waukee Towne Center, LLC (the "Developer") certifies that the expenses shown on the table below
were/are the actual expenses incurred by the Developer for the Developer Public Improvements that are
the subject of 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 Developer 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.]
Execution Version F-2
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 TOWNE CENTER, LLC,
an Iowa limited liability company
By: ____________________________
Name: __________________________
Its: _____________________________
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 s/he is the _______________________ of Waukee Towne Center,
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/her voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature page to Developer Certification of Costs]
01763844-1\21938-210