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HomeMy WebLinkAbout2023-06-19 I01I_02 AP North Development Agr_Set PHAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: June 19, 2023 AGENDA ITEM:Consideration of approval of a resolution fixing date for a public hearing on the proposal to enter into a Development Agreement with AP North, L.C. FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: Staff has been working with AP North, L.C. on a development agreement that includes new commercial development in Kettlestone and public improvements. Public improvements include the design and construction of a regional storm water retention pond anticipated to be dedicated to the City as public infrastructure. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Staff recommends setting public hearing date. ATTACHMENTS: I. Proposed Resolution PREPARED BY:Jennifer Brown, Director of Economic Development REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: I1I2 RESOLUTION NO. ______ RESOLUTION FIXING DATE FOR A PUBLIC HEARING ON THE PROPOSAL TO ENTER INTO A DEVELOPMENT AGREEMENT WITH AP NORTH, L.C., AND PROVIDING FOR PUBLICATION OF NOTICE THEREOF WHEREAS, by Resolution No. 19-402, adopted November 4, 2019, the City approved and adopted Amendment No. 1 to the Waukee Consolidated Urban Renewal Plan (the "Plan" or "Urban Renewal Plan"), which unified the existing Gateway Economic Development Urban Renewal Area, Waukee West Urban Renewal Area, and Waukee Central Urban Renewal Area into the Waukee Consolidated Urban Renewal Area (the "Area" or "Urban Renewal Area") described therein, which Plan has been subsequently amended several times, most recently by Amendment No. 7 to the Plan approved by Resolution No. 2022-537 adopted on December 19, 2022, and which Plan, as amended, is on file in the office of the Recorder of Dallas County; and WHEREAS, it is desirable that properties within the Area be redeveloped as part of the overall redevelopment area covered by said Plan; and WHEREAS, the City has received a proposal from AP North, L.C. (the "Developer"), in the form of a proposed Development Agreement (the "Agreement") by and between the City and the Developer, pursuant to which, among other things, the Developer would agree to develop certain real property located within the Urban Renewal Area, including the "Development Property" and "Pond Property", each defined and legally described in the Agreement, by constructing: (i) "Commercial Improvements", consisting of commercial buildings to be used for office and retail development, on the Development Property, and (ii) "Public Improvements", including a storm water detention pond, on the Pond Property, which Public Improvements are expected to be dedicated to the City upon completion, all as further described in the proposed Agreement, and; WHEREAS, the Agreement further proposes that, under the terms and following Developer’s satisfaction of the conditions set forth in the Agreement, the City will make up to twelve (12) annual payments of Economic Development Grants to Developer commencing on June 1, 2026 and ending upon the earliest of: (i) June 1, 2037, (ii) the maximum cumulative total of Economic Development Grants having been paid to Developer, or (iii) the Agreement has terminated pursuant to its terms; the maximum cumulative total of the Economic Development Grants not to exceed the lesser of (i) the amount of the Developer’s certified costs and expenses in constructing the Public Improvements, or (ii) $2,000,000; and WHEREAS, the Agreement provides that the Economic Development Grants will be funded only through the "Tax Increment" generated by construction of the Commercial Improvements and collected pursuant to Iowa Code Section 403.19; which Economic Development Grants would be in the amount of 70% of the Tax Increment for the first six years and in the amount of 80% of the Tax Increment for the subsequent six years, subject to the terms and conditions of the Agreement; and WHEREAS, the Agreement further requires the Developer to use commercially reasonable efforts to obtain and retain tenants or purchasers for the Commercial Improvements who will employ employees therein; and WHEREAS, Chapters 15A and 403, Code of Iowa, (the "Urban Renewal Law") authorize cities to make grants for economic development in furtherance of the objectives of an urban renewal project and to appropriate such funds and make such expenditures as may be necessary to carry out the purposes of said Chapter, and to levy taxes and assessments for such purposes; and WHEREAS, the Council has determined that the Agreement is in the best interests of the City and the residents thereof and that the performance by the City of its obligations thereunder is a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law and, further, that the Agreement and the City's performance thereunder is in furtherance of appropriate economic development activities and objectives of the City within the meaning of Chapters 15A and 403, Code of Iowa, taking into account the factors set forth therein; and WHEREAS, neither the Urban Renewal Law nor any other Code provision sets forth any procedural action required to be taken before said economic development activities can occur under the Agreement, and pursuant to Section 364.6,Code of Iowa, it is deemed sufficient if the action hereinafter described be taken and the City Clerk publish notice of the proposal and of the time and place of the meeting at which the Council proposes to take action thereon and to receive oral and/or written objections from any resident or property owner of said City to such action. NOW THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF WAUKEE IN THE STATE OF IOWA: Section 1.That this Council meet in the Council Chambers, City Hall, 230 West Hickman Road, Waukee, Iowa, at 5:30 P.M. on July 10, 2023, for the purpose of taking action on the matter of the proposal to enter into a Development Agreement with AP North, L.C. Section 2.That the City Clerk is hereby directed to cause at least one publication to be made of a notice of said meeting, in a legal newspaper, printed wholly in the English language, published at least once weekly, and having general circulation in said City, said publication to be not less than four (4) clear days nor more than twenty (20) days before the date of said public meeting. Section 3.The notice of the proposed action shall be in substantially the following form: (One publication required) NOTICE OF PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF WAUKEE IN THE STATE OF IOWA, ON THE MATTER OF THE PROPOSAL TO ENTER INTO A DEVELOPMENT AGREEMENT WITH AP NORTH, L.C., AND THE HEARING THEREON PUBLIC NOTICE is hereby given that the Council of the City of Waukee in the State of Iowa, will hold a public hearing on July 10, 2023, at 5:30 P.M. in the Council Chambers, City Hall, 230 West Hickman Road, Waukee, Iowa, at which meeting the Council proposes to take action on the proposal to enter into a Development Agreement (the "Agreement") with AP North, L.C. (the "Developer"). The Agreement would obligate the Developer to develop certain real property located within the Waukee Consolidated Urban Renewal Area, including the "Development Property" and "Pond Property", each defined and legally described in the Agreement, by constructing: (i) "Commercial Improvements", consisting of commercial buildings to be used for office and retail development, on the Development Property, and (ii) "Public Improvements", including a storm water detention pond, on the Pond Property, which Public Improvements are expected to be dedicated to the City upon completion, all as further described in the proposed Agreement. The Agreement proposes that, under the terms and following Developer’s satisfaction of the conditions set forth in the Agreement, the City will make up to twelve (12) annual payments of Economic Development Grants to Developer commencing on June 1, 2026 and ending upon the earliest of: (i) June 1, 2037, (ii) the maximum cumulative total of Economic Development Grants having been paid to Developer, or (iii) the Agreement has terminated pursuant to its terms. The maximum cumulative total of the Economic Development Grants shall not exceed the lesser of (i) the amount of the Developer’s certified costs and expenses in constructing the Public Improvements, or (ii) $2,000,000. The Agreement provides that, for the first 6 years of possible Economic Development Grants, the Economic Development Grants will be in the amount of 70% of the "Tax Increment" generated by construction of the Commercial Improvements and collected pursuant to Iowa Code Section 403.19, and, for the subsequent 6 years of possible Economic Development Grants, in the amount of 80% of the Tax Increment, subject to the terms and conditions of the Agreement. The Agreement requires the Developer to use commercially reasonable efforts to obtain and retain tenants or purchasers for the Commercial Improvements who will employ employees therein. A copy of the Agreement is on file for public inspection during regular business hours in the office of the City Clerk, City Hall, City of Waukee, Iowa. At the above meeting the Council shall receive oral or written objections from any resident or property owner of said City, to the proposal to enter into the Agreement with the Developer. After all objections have been received and considered, the Council will at this meeting or at any adjournment thereof, take additional action on the proposal or will abandon the proposal to authorize said Agreement. This notice is given by order of the City Council of the City of Waukee in the State of Iowa, as provided by Section 364.6, Code of Iowa. Dated this 19th day of June, 2023. Rebecca D. Schuett City Clerk, City of Waukee in the State of Iowa (End of Notice) PASSED AND APPROVED this 19th day of June, 2023. Mayor ATTEST: City Clerk 1 Execution Version AGREEMENT FOR PRIVATE DEVELOPMENT By and between CITY OF WAUKEE, IOWA AND AP NORTH, L.C. ____________, 2023 2 Execution Version AGREEMENT FOR PRIVATE DEVELOPMENT THIS AGREEMENT FOR PRIVATE DEVELOPMENT ("Agreement"), is made on or as of the ____ day of ___________, 2023, 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, 2023, as amended ("Urban Renewal Act") and AP NORTH, L.C., an Iowa limited liability company having offices for the transaction of business at 5000 Westown Parkway, Suite 400, West Des Moines, Iowa 50266 ("Developer"). The City and Developer are Parties to this Agreement. WITNESSETH: WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has undertaken a program for the development of an economic development area in the City and, in this connection, is engaged in carrying out urban renewal project activities in an area known as the Waukee Consolidated Urban Renewal Area (the "Urban Renewal Area"), which is described in the Urban Renewal Plan originally approved for such area by Resolution No. 19-402, adopted November 4, 2019, and subsequently amended; and WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended, has been or will be recorded among the land records in the office of the Recorder of Dallas County, Iowa; and WHEREAS, Developer owns certain real property located in the foregoing Urban Renewal Area as more particularly described in Exhibit A attached hereto and made a part hereof ("Project Property"); and WHEREAS, Developer shall endeavor to cause Commercial Improvements (as more particularly described herein) to be constructed on a portion of the Project Property ("Development Property"); and WHEREAS, Developer shall build certain Public Improvements on another portion of the Project Property ("Pond Property") which benefit, among other things, the Development Property; and which, upon acceptance by the City, shall be dedicated to the City; and WHEREAS, the City believes that the development of the Project 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. 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 3 Execution Version 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. AP North, L.C. 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 Commercial Improvements shall be deposited. Certificate of Completion means a certification in the form of the certificate attached hereto as Exhibit C and hereby made a part of this Agreement. City means the City of Waukee, Iowa, or any successor to its functions. Code means the Code of Iowa, 2023, as amended. Commercial Improvements means the construction of commercial buildings and related site improvements on the Development Property as more particularly described in Exhibits B and B-1 to this Agreement. Construction Plans means the plans, specifications, drawings, and related documents reflecting the construction work on the Public Improvements to be performed by the Developer on the Project 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 AP North, L.C., and its permitted successors and assigns. Development Property means that portion of the Waukee Consolidated Urban Renewal Area described in Exhibit A and upon which the Commercial Improvements shall be constructed. 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 9.1 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. 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. 4 Execution Version Ordinance means the ordinance(s) 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. Pond Property means that portion of the Waukee Consolidated Urban Renewal Area described in Exhibit A and upon which the Public Improvements shall be constructed. Project means the construction and operation of the Commercial Improvements and the completion of the Public Improvements as described in this Agreement. Project Property means the Development Property and the Pond Property. Public Improvement Costs means any and all engineering, planning, design, financing, permitting, legal and other costs and expenses related to the design and construction of the Public Improvements, including the cost for acquisition of land to be dedicated to City, interest during construction and for not more than six (6) months thereafter, and costs for landscaping, grading, and drainage, as more particularly described herein. Public Improvements means the construction of a storm water detention pond on the Pond Property, as more particularly described in Exhibit B to this Agreement, to be constructed by Developer and dedicated to the City upon completion. State means the State of Iowa. Tax Increments means the property tax revenues from the Commercial Improvements on the Development Property (commercial improvement value only) divided and made available to the City for deposit in the AP North, L.C. TIF Account of the Waukee Consolidated Urban Renewal Tax Increment Revenue Fund under the provisions of Section 403.19 of the Code, as amended, and the Ordinance. Termination Date means the date of termination of this Agreement, as established in Section 10.8 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. 5 Execution Version Urban Renewal Plan means the Urban Renewal Plan, as amended from time to time, and approved with respect to the Waukee Consolidated Urban Renewal Area, described in the preambles hereof. Waukee Consolidated Urban Renewal Tax Increment Revenue Fund means the special fund of the City created under the authority of Section 403.19(2) of the Code and the Ordinance, which fund will be created in order to pay the principal of and interest on loans, monies advanced to or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other obligations issued under the authority of Chapters 15A, 403, or 384 of the Code, incurred by the City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal Plan for the Urban Renewal Area. 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 obligations of the City, and not of any governing body member, officer, agent, servant, or employee of the City in the individual capacity thereof. Section 2.2. Representations and Warranties of Developer. Developer makes the following representations and warranties: a. AP North, L.C. is an Iowa limited liability company, duly organized and validly existing under the laws of the State of Iowa and duly registered and authorized to do business in the State of Iowa, and has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under this Agreement. b. This Agreement has been duly and validly 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 6 Execution Version 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 with respect to the Project 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 Project Property, and Developer is not currently aware of any violation of any local, State, or federal environmental law, regulation, or review procedure which would give any person a valid claim under any State or federal environmental statute with respect thereto. f. Developer shall cause the 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. g. 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 Commercial Improvements, as applicable, may be lawfully constructed. h. The construction of the Public Improvements will require a total investment of approximately $2,000,000. i. Developer expects that, barring Unavoidable Delays, the Public Improvements will be completed by December 1, 2023. j. Developer has firm commitments for construction or acquisition and permanent financing in an amount sufficient, together with equity commitments, to successfully complete the Public Improvements in accordance with the terms of this Agreement. 7 Execution Version k. Developer shall dedicate the Public Improvements to the City upon acceptance by the City, at no cost to the City. l. 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 PUBLIC IMPROVEMENTS Section 3.1. Construction of Public Improvements. The Developer agrees that it will cause the Public Improvements to be constructed in conformance with all applicable federal, State, and local laws, ordinances, and regulations, including any City permit and/or building requirements. All work with respect to the Public Improvements and Commercial Improvements shall be in conformity with any plans approved and/or permits issued by the building official(s) of the City, which approvals and issuances shall be made according to normal City processes for such plans and permits. The Developer agrees that the scope and scale of the Public Improvements shall not be significantly less than the scope and scale as described in this Agreement. Section 3.2. Commencement and Completion of Construction. Subject to Unavoidable Delays, Developer shall cause construction of the Public Improvements to be undertaken and completed by no later than December 1, 2023. Time lost as a result of Unavoidable Delays shall be added to extend this date by a number of days equal to the number of days lost as a result of Unavoidable Delays. All work with respect to the Public Improvements and Commercial Improvements shall be in conformity with the Construction Plans approved by the building official or any amendments thereto as may be approved by the building official. Developer agrees that they shall permit designated representatives of the City, upon reasonable notice (which does not have to be written), to enter upon the Project Property during the construction of the Commercial Improvements and the Public Improvements to inspect such construction and the progress thereof, subject to Developer's rules and regulations for the construction site. Section 3.3. Certificate of Completion. a. Within fifteen (15) business days after written request by Developer and after acceptance of dedication of the Public Improvements by the City under Section 3.4, the City shall furnish Developer with a Certificate of Completion for the Public Improvements in recordable form, in substantially the form set forth in Exhibit C attached hereto. Such Certificate of Completion shall be a conclusive determination of satisfactory termination of the covenants and conditions of this Agreement with respect to the obligations of Developer to cause construction of the Public Improvements. b. If the City shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section 3.3, the City shall, within such fifteen (15) business day period, instead provide a written statement indicating in what respects Developer has failed to complete 8 Execution Version the 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. c. The Certificate of Completion may be recorded in the Dallas County Recorder's Office at Developer's sole expense. Section 3.4. Dedication of Public Improvements. Upon notice of completion of the Public Improvements, the City shall inspect the Public Improvements and determine whether they have been completed in accordance with this Agreement. If the City finds that the Public Improvements have been duly completed in compliance with this Agreement and all City ordinances, policies, and procedures, the bonds required by Section 3.6 have been provided, and the City approves the Public Improvements, the Developer shall dedicate the Public Improvements to the City and the City shall accept said dedication, at no cost to the City. If the City determines that the Public Improvements are not acceptable, it shall notify the Developer in the same manner as refusal to provide a Certificate of Completion as described in Section 3.3(c). Section 3.5. No Special Legal Entitlements to Public Improvements. Developer recognizes and agrees that upon dedication to the City the Public Improvements shall be owned and maintained by the City and that nothing in this Agreement grants Developer any special legal entitlements or other rights not held by members of the general public with respect to ownership, maintenance, or use of the Public Improvements. The Parties agree that the City and other Indemnified Parties are not responsible for and will have no liability to Developer associated with the specifications, design, plans, quality of construction, or sufficiency of the Public Improvements for any particular purpose. Section 3.6. Bonding Requirements. Developer shall obtain, or require each of its general contractors to obtain, one or more bonds that guarantee the faithful performance of this Agreement for, in the aggregate, the anticipated full value of the completed Public Improvements and that further guarantee the prompt payment of all materials and labor. The performance bond(s) for a given Project of the Public Improvements shall remain in effect until construction of such Public Improvements is completed, at which time a four-year maintenance bond shall be substituted for each performance bond. The bonds shall clearly specify the Developer and City as joint obligees. The Developer shall also comply with all City requirements for the construction of the Public Improvements. Section 3.7. Real Property Taxes. Developer, or its successors, 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 Commercial Improvements. Until Developer’s obligations have been assumed by any other person or legal title to the property is vested in another person, all pursuant to the provisions of this Agreement, Developer shall be solely responsible for all assessments and taxes on the Development Property. Developer, and its permitted successors and assigns, agree that prior to the Termination Date: 9 Execution Version 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 Commercial 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 between the date of execution of this Agreement and the Termination Date. Nothing in this Section 3.7 shall prohibit Developer from appealing the County Assessor’s valuation of the Development Property during the term of the Agreement following all applicable assessment appeal processes. 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 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 Commercial 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. iii. Workers' compensation insurance with at least statutory coverage. 10 Execution Version 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 Commercial Improvements, in good repair and working order, ordinary wear and tear excepted, and from time to time will make all necessary repairs, replacements, renewals, and additions. Section 5.2. Maintenance of Records. Developer shall keep at all times proper books of record and account in which full, true, and correct entries will be made of all dealings and transactions of or in relation to their business and affairs relating to this Project, and will provide reasonable protection against loss or damage to such books of record and account. 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 Commercial Improvements and Development Property. In the construction and operation of the Commercial Improvements, Developer shall not discriminate against any applicant, employee or tenant because of age, color, creed, national origin, race, religion, marital status, sex, physical disability, or familial status. Developer shall ensure that applicants, employees, and tenants are considered and are treated without regard to their age, color, creed, national origin, race, religion, marital status, sex, physical disability, or familial status. Section 5.4. Available Information. Upon request, Developer shall promptly provide the City with copies of information reasonably requested by City that are related to this Agreement so that City can determine compliance with the Agreement. Section 5.5. Employment. Developer is developing the Project with the anticipation that the Commercial Improvements will be occupied by commercial enterprises that will be employing individuals therein at least until the Termination Date of this Agreement. Through the Termination Date, Developer, for such portion of the Development Property that Developer owns, shall use commercially reasonable efforts to obtain and retain tenants or purchasers for the Commercial 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, 2024 and ending on October 15, 2036. Section 5.7. Developer's Certification of Public Improvement Costs. Developer shall certify to the City (the "Developer Certification") the amount of all 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 11 Execution Version Certification. Such Developer Certification shall be provided not later than October 15 of each year in which Developer incurs 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 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 to use reasonable best efforts in the performance by Developer of all the terms and provisions of this Agreement pertaining to Developer's obligations with respect to the construction of the Public Improvements. Without limiting the generality of the foregoing, Developer guarantees via reasonable best efforts that: (a) construction of the Public Improvements shall be completed generally within the time limits set forth herein; (b) the Public Improvements shall be constructed and completed in substantial accordance with the Construction Plans; (c) the Public Improvements shall be constructed and completed free and clear of any mechanic's liens, materialman's liens and equitable liens (excepting any liens that are being contested by Developer with written consent from the City, which consent shall not be unreasonably withheld, conditioned or delayed); and (d) all costs of constructing the Public Improvements shall be paid when due by the Developer. ARTICLE VI. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER Section 6.1. Status of Developer; Transfer of Substantially All Assets; Assignment. As security for the obligations of Developer under this Agreement, Developer represents and agrees that, prior to the Termination Date, Developer will maintain its existence and will not wind up or otherwise dispose of all or substantially all of its assets or transfer, convey, or assign its interest in 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 property to the City for the Public Improvements) the Commercial 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 Commercial Improvements from property tax liability. Nor can the Development Property or Commercial 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)). Notwithstanding anything to the contrary in this Section 6.2, up to fifty percent (50%) of the Development Property or Commercial Improvements’ square footage may be transferred to a non-profit entity for use as a medical clinic or related medical facility. 12 Execution Version 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 terms and conditions set forth in this Article VII. i.Schedule of Grants. The Economic Development Grants shall commence on June 1, 2026, and end on the earlier of (A) June 1, 2037; (B) the date when the Developer has received the Maximum Amount of Grants set out in Section 7.1(a)(ii); or (C) the date the Agreement is terminated, with such Grants being calculated pursuant to Section 403.19 of the Urban Renewal Act under the following formula: June 1, 2026 70% of Tax Increments for Fiscal Year 25-26 June 1, 2027 70% of Tax Increments for Fiscal Year 26-27 June 1, 2028 70% of Tax Increments for Fiscal Year 27-28 June 1, 2029 70% of Tax Increments for Fiscal Year 28-29 June 1, 2030 70% of Tax Increments for Fiscal Year 29-30 June 1, 2031 70% of Tax Increments for Fiscal Year 30-31 June 1, 2032 80% of Tax Increments for Fiscal Year 31-32 June 1, 2033 80% of Tax Increments for Fiscal Year 32-33 June 1, 2034 80% of Tax Increments for Fiscal Year 33-34 June 1, 2035 80% of Tax Increments for Fiscal Year 34-35 June 1, 2036 80% of Tax Increments for Fiscal Year 35-36 June 1, 2037 80% of Tax Increments for Fiscal Year 36-37 The above schedule of Economic Development Grant payments is based on the assumption that some portion of the Commercial Improvements have been completed and that the City has received Tax Increments from the County with respect to the completed Commercial Improvements during the relevant fiscal year. If no portion of the Commercial Improvements has been completed to produce Tax Increments during an applicable fiscal year, then no Economic Development Grant payment shall be made that fiscal year. The failure to receive an Economic Development Grant payment in a given year shall not extend the payment schedule. If no Tax Increments are received by the City by Fiscal Year 2036-37, this Agreement shall automatically terminate. Compliance with the terms and conditions of this Agreement at the time of payment is a condition precedent to receiving an Economic Development Grant. 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 Commercial Improvements, but in no event shall the aggregate amount of the Economic Development Grants exceed the lesser of: (a) 13 Execution Version $2,000,000, or (b) the aggregate amount of the Public Improvement Costs submitted to and approved by the City. It is further agreed and understood that in no event shall Developer be entitled to receive more than calculated under the formula set forth in this Section 7.1(a), even if the aggregate amount is less than maximum amount stated herein or the amount of Public Improvement Costs paid by the Developer. 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 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 Commercial Improvements (commercial improvement value only). The City makes no assurance that the Developer will receive Economic Development Grants which equal the cost of the Public Improvements paid by Developer. iv. Certification of 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 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 Commercial Improvements (commercial improvement value only) 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 Commercial Improvements under the terms of the Ordinance and deposited into the AP North, L.C. 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 Commercial Improvements, 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) Completion of some portion of the Commercial Improvements and the City’s receipt of Tax Increments therefrom; and (c) Developer’s timely completion and dedication of the Public Improvements consistent with this Agreement; and (d) Developer's timely filing of the certifications set forth in Section 5.6; and 14 Execution Version (e) 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 amount set forth in Section 7.1(a)(ii). 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 Commercial Improvements (commercial improvement value only) that are received by the City from the Dallas County Treasurer and that are deposited and held in the AP North, L.C. 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 Commercial Improvements and allocated to the AP North, L.C. TIF Account to pay the Economic Development Grants, as and to the extent set forth in this Article. The Economic Development Grants shall not be payable in any manner by other tax increment revenues or by general taxation or from any other City funds. Any commercial and industrial property tax replacement monies that may be received under Chapter 441.21A of the Code shall not be included in the calculation to determine the amount of Economic Development Grants for which Developer is eligible, and any monies received back under Chapter 426C of the Code relating to the Business Property Tax Credit shall not be included in the calculation to determine the amount of Economic Development Grants for which Developer is eligible. b. Each Economic Development Grant is subject to annual appropriation by the City Council of the City (the "City Council"). The right of non-appropriation reserved to the City in this Section is intended by the parties, and shall be construed at all times, so as to ensure that the City's obligation to make future Economic Development Grants shall not constitute a legal indebtedness of the City within the meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates funds for the payment of that installment or amount. In the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness 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. 15 Execution Version 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, the City’s ability to collect Tax Increment from the Development Property terminates, or the City receives an opinion from its legal counsel to the effect that the use of Tax Increments resulting from the Commercial 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. ARTICLE VIII. INDEMNIFICATION Section 8.1. 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 Commercial Improvements, Public Improvements (until such time as they are conveyed to the City), or Project 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 Agreement); (ii) the acquisition and condition of the Project Property and the construction, installation, ownership, and operation of the Commercial Improvements and, until accepted by the City, the Public Improvements; or (iii) any hazardous substance or environmental contamination located in or on the Project Property. 16 Execution Version c. The Indemnified Parties shall not be liable for any damage or injury to the persons or property of Developer, or their officers, agents, servants, or employees or any other person who may be about the Public Improvements, Commercial Improvements, or Project 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 VIII shall survive the termination of this Agreement. ARTICLE IX. REMEDIES Section 9.1. 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 Public Improvements to be completed pursuant to the terms and conditions of this Agreement; b. Failure by Developer 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 Project 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 Commercial Improvements; e. The holder of any Mortgage on the Project Property, or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable Mortgage documents; f. Developer shall: i. file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or ii. make an assignment for the benefit of its creditors; or iii. admit in writing its inability to pay its debts generally as they become due; or iv. be adjudicated as bankrupt or insolvent; or if a petition or answer proposing the adjudication of Developer as bankrupt or either entity's reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Developer or the Commercial Improvements, or part thereof, 17 Execution Version 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 in this Agreement or in any written statement or certificate furnished by Developer 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 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 of this Agreement occurs and is continuing, the City may take any one or more of the following actions after the giving of thirty (30) days' written notice the Developer of the Event of Default, but only if the Event of Default has not been cured within said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days and the Developer does not provide assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible: a. The City may suspend its performance under this Agreement until it receives assurances from Developer, deemed adequate by the City, that Developer will cure the default and continue performance under this Agreement; b. The City may terminate this Agreement; c. The City may withhold the Certificates of Completion; d. The City 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 Developer under this Agreement; or e. The City shall have no obligation to pay any Economic Development Grants to Developer subsequent to an Event of Default, and the City shall be entitled to recover from Developer, and Developer shall repay to the City, an amount equal to the full amount of the Economic Development Grants previously paid to Developer, with interest thereon at the highest rate permitted by State law. The City may take any action, including any legal action it deems necessary, to recover such amount from Developer. Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 9.4. 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 18 Execution Version limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 9.5. Agreement to Pay Attorneys' Fees and Expenses. Whenever any Event of Default occurs and City shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the Developer agrees that it shall, upon demand therefor, pay to the City the reasonable fees of such attorneys and such other expenses as may be reasonably and appropriately incurred by the City in connection therewith. ARTICLE X. MISCELLANEOUS Section 10.1. Conflict of Interest. Developer warrants that, to its best knowledge and belief after due inquiry, no officer or employee of the City, or their designees or agents, nor any consultant or member of the governing body of the City, and no other public official of the City who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a decision-making process or gain insider information with regard to the Project, has had or shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work or services to be performed in connection with the Project, or in any activity, or benefit therefrom, which is part of the Project at any time during or after such person's tenure. Section 10.2. 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 AP North, L.C. at 5000 Westown Parkway, Suite 400, West Des Moines, Iowa 50266, Attn: Gerard D. Neugent; 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: Rebecca D. 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. Section 10.3. 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 10.4. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 10.5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Iowa. 19 Execution Version Section 10.6. 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 10.7. 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 10.8. Termination Date. This Agreement shall terminate and be of no further force or effect on and after the earlier of December 31, 2037 or the date the Developer is no longer eligible for Economic Development Grants hereunder, unless terminated earlier under the provisions of this Agreement. Section 10.9. 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 10.10. 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. 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 names and behalf by its authorized representatives, all on or as of the day first above written. [Signatures start on the next page] 20 Execution Version (SEAL) CITY OF WAUKEE, IOWA By: ___________________________ Courtney Clarke, Mayor ATTEST: By: ________________________ Rebecca D. Schuett, City Clerk STATE OF IOWA ) ) SS COUNTY OF DALLAS ) On this ________ day of ________________________, 2023, before me a Notary Public in and for said State, personally appeared Courtney Clarke and Rebecca D. 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 Agreement for Private Development – City of Waukee] 21 Execution Version AP NORTH, L.C., an Iowa limited liability company By: ____________________________ Gerard D. Neugent, Manager STATE OF IOWA ) ) SS COUNTY OF ___________ ) On this _______ day of ________________, 2023, before me the undersigned, a Notary Public in and for said State, personally appeared Gerard D. Neugent, to me personally known, who, being by me duly sworn, did say that he is the Manager of AP North, L.C. 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 Agreement for Private Development – AP North, L.C. ] A-1 Execution Version EXHIBIT A PROJECT PROPERTY The Project Property includes the Development Property and Pond Property, each as described below: Development Property: Parcel 23-24 of the Survey of a part of Outlot ‘Z’, Ashworth North Plat 1, an Official Plat, now included in and forming a part of the City of Waukee, Dallas County, Iowa, as shown in Book 2023, Page 5185 in the Office of the Recorder of Dallas County, Iowa; and Outlot Z, Outlot W, Outlot U, Outlot X, Outlot Y, and Lot 1 of Ashworth North Plat 3, City of Waukee, Dallas County, Iowa Pond Property: Lot B of Ashworth North Plat 3, City of Waukee, Dallas County, Iowa B-1 Execution Version EXHIBIT B COMMERCIAL IMPROVEMENTS AND PUBLIC IMPROVEMENTS Commercial Improvements means the construction of commercial buildings to be used for office and retail development, together with all related site improvements. See Exhibit B-1 for preliminary site plan of the Commercial Improvements. Public Improvements means the design and construction of a regional stormwater detention pond as depicted below, which improvements are anticipated to be dedicated to the City as public infrastructure. B-2 Execution Version EXHIBIT B-1 SITE PLANS C-1 Execution Version EXHIBIT C CERTIFICATE OF COMPLETION PUBLIC IMPROVEMENTS WHEREAS, the City of Waukee, Iowa (the "City") and AP North, L.C. (the "Developer") did on or about the _____ day of ____________________, 20__, 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: Lot B of Ashworth North Plat 3, City of Waukee, Dallas County, Iowa (the "Pond Property"); and WHEREAS, the Agreement incorporated and contained certain covenants and restrictions with respect to the development of the Pond Property, and obligated the Developer to construct certain Public Improvements (as defined therein) in accordance with the Agreement; and WHEREAS, Developer has to the present date performed said covenants and conditions insofar as they relate to the construction of said Public Improvements in a manner deemed by the City to be in conformance with the Agreement to permit the execution and recording of this certification. NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement with respect to the obligations of Developer and its successors and assigns, to construct the Public Improvements on the Pond Property have been completed and performed by Developer and are hereby released absolutely and forever terminated insofar as they apply to the land described herein. The County Recorder of Dallas County is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the covenants and conditions of said Agreement with respect to the construction of the Public Improvements set forth in the Agreement. All other provisions of the Agreement shall otherwise remain in full force and effect until termination as provided therein. [Signatures Start on Next Page] C-2 Execution Version (SEAL) CITY OF WAUKEE, IOWA By: ___________________________ ____________________, Mayor ATTEST: By: ________________________ ____________________, 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 ____________________ and ____________________, 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 Public Improvements] D-1 Execution Version Prepared by: Nathan J. Overberg, Ahlers & Cooney, 100 Court Ave. #600, Des Moines, IA 50309, 515-243-7611 Return to: Rebecca D. Schuett, City Clerk, Waukee City Hall, 230 W. Hickman Road, Waukee, IA 50263 EXHIBIT D MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT WHEREAS, the City of Waukee, Iowa (the "City") and AP North, L.C.(the "Developer") did on or about the _____ day of _______________, 20__, 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: Parcel 23-24 of the Survey of a part of Outlot ‘Z’, Ashworth North Plat 1, an Official Plat, now included in and forming a part of the City of Waukee, Dallas County, Iowa, as shown in Book 2023, Page 5185 in the Office of the Recorder of Dallas County, Iowa; and Outlot Z, Outlot W, Outlot U, Outlot X, Outlot Y, and Lot 1 of Ashworth North Plat 3, City of Waukee, Dallas County, Iowa; and Lot B of Ashworth North Plat 3, City of Waukee, Dallas County, Iowa (the "Project Property"); and WHEREAS, the term of the Agreement commenced on the ____ day of ________________, 2023 and terminates as set forth in the Agreement; and WHEREAS, the City and Developer desire to record a Memorandum of the Agreement referring to the Project Property and their respective interests therein. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: D-2 Execution Version 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 Project Property and the improvements located and operated on such Project 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 Project 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 ___________________, 2023. [Signature pages follow] D-3 Execution Version (SEAL) CITY OF WAUKEE, IOWA By: ________________________________ Courtney Clarke, Mayor ATTEST: By: ________________________ Rebecca D. Schuett, City Clerk STATE OF IOWA ) ) SS COUNTY OF DALLAS ) On this ________ day of ________________________, 2023, before me a Notary Public in and for said State, personally appeared Courtney Clarke and Rebecca D. 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 Private Development – City of Waukee] D-4 Execution Version AP NORTH, L.C., an Iowa limited liability company By: ____________________________ Gerard D. Neugent, Manager STATE OF IOWA ) ) SS COUNTY OF ___________ ) On this _______ day of ________________, 2023, before me the undersigned, a Notary Public in and for said State, personally appeared Gerard D. Neugent, to me personally known, who, being by me duly sworn, did say that he is the Manager of AP North, L.C. 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 Private Development – AP North, L.C.] E-1 Execution Version EXHIBIT E DEVELOPER'S ANNUAL CERTIFICATION Developer certifies the following: During the time period covered by this Certification, Developer is and was in compliance with Section 5.6 as follows: (i) All ad valorem taxes on the Development Property then owned by the Developer in the Urban Renewal Area have been paid for the prior fiscal year (and for the current year, if due) and attached to this Annual Certification are proof of payment of said taxes; (ii) Commercial Improvements were first fully assessed on January 1, ______, at a full assessment value of $____________, and the most recent assessment is $ ______________ as of _____________; (iii) The following Commercial Improvements are completed and occupied by the following commercial enterprise(s) employing individuals therein: 1 2 3 Description of Improvement/Building Name of Occupant Square Footage of Commercial 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___. AP NORTH, L.C., an Iowa limited liability company By: _____________________________ Attachments: (a) Proof of payment of taxes (b) Proof of Occupancy F-1 Execution Version EXHIBIT F DEVELOPER CERTIFICATION OF PUBLIC IMPROVEMENT COSTS AP North, L.C. (the "Developer") certifies that the expenses shown on the table below were/are the actual expenses incurred by the Developer for the Public Improvements defined in an Agreement for Private Development entered into the _____ day of __________, 2023 between the City of Waukee, Iowa and the Developer (the "Agreement"). Certified Costs of Public Improvements Project Cost Category Engineering, Plans, Specifications Construction Costs Legal Costs Drainage, Landscaping, Grading Cost for acquisition of land within the ROW Interest during construction and for not more than six months thereafter Miscellaneous Invoice description and cost Invoice description and cost Invoice description and cost Invoice description and cost Invoice description and cost Invoice description and cost Invoice description and cost Invoice description and cost Total Cost per category If you need additional space please attach another table. Attach actual receipts and invoices [Remainder of this page intentionally left blank. Signature page to follow.] F-2 Execution Version I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct to the best of my knowledge and belief. AP NORTH, L.C., an Iowa limited liability company By: ____________________________ Gerard D. Neugent, Manager STATE OF IOWA ) ) SS COUNTY OF _______ ) On this _______ day of ________________, 2023, before me the undersigned, a Notary Public in and for said State, personally appeared Gerard D. Neugent, to me personally known, who, being by me duly sworn, did say that he is the Manager of AP North, L.C., and that said instrument was signed on behalf of said company; and that the said Gerard D. Neugent as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said company, by him voluntarily executed. ______________________________________ Notary Public in and for the State of Iowa [Signature page to Developer Certification of Costs] 02099831-1\21938-291