HomeMy WebLinkAbout2023-09-18 I01E_02 Waukee Towne Center Amended Restated DAAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: September 18, 2023
AGENDA ITEM:Consideration of approval of a resolution approving and authorizing
execution of an Amended and Restated Agreement for Private
Development with Waukee Towne Center, LLC, and Waukee Towne
Center II, LLC
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: This agreement amends and restates
the Agreement for Private Development between the City and Waukee Towne
Center, LLC (WTC1) which was approved by City Council on December 5, 2022.
The agreement adds Waukee Towne Center II(WTC2) as a party to the agreement.
The agreement does not make changes to the minimum improvements or
incentives.
REFERENCE: The City entered into a development agreement with Waukee
Towne Center, LLC on December 5, 2022. The project includes the development
of 48-acres located west of Alice’s Road and south of SE Laurel Street.
Phase One: construction of at least 185,000 square foot retail development, a 7-acre
lake, foundation/pad for an amphitheater and a paved trail that connects to the
regional system (Outlot Y). Completion in summer 2025.
Phase two includes construction of at least 85,000 square feet of retail development
with lifestyle amenities including the vertical component of the amphitheater, a
water feature, outdoor seating public art, ice rink and playground on development
property. Completion at the end of 2029.
Similarly, the proposed economic development grants would include two schedules
to match the phased development with each schedule including thirteen (13)
consecutive payments at 75% of the incremental taxes.
The proposed development agreement also includes $2.1M payments in exchange
for the Developer completion and dedication of Phase one quality of life
improvements and transfer of Outlot Y. An additional $400,000 Outlot Y Payment
would be made upon Developer completing and dedicating Phase Two quality of
life improvements.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
I1E2
RECOMMENDATION: Approve the resolution.
ATTACHMENTS: I. Proposed Resolution
II. Amended and Restated Agreement for Private Development with
Waukee Towne Center, LLC, and Waukee Towne Center II,
LLC
PREPARED BY:Jennifer Brown, Economic Development Director
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
RESOLUTION NO. ______
RESOLUTION APPROVING AND AUTHORIZING
EXECUTION OF AN AMENDED AND RESTATED
AGREEMENT FOR PRIVATE DEVELOPMENT BY AND
AMONG THE CITY OF WAUKEE, WAUKEE TOWNE
CENTER, LLC, AND WAUKEE TOWNE CENTER II, LLC
WHEREAS, by Resolution No. 19-402, adopted November 4, 2019, this Council found
and determined that certain areas located within the City are eligible and should be designated as
an urban renewal area under Iowa law, and approved and adopted the Waukee Consolidated Urban
Renewal Plan for the Waukee Consolidated Urban Renewal Area (the "Consolidated Urban
Renewal Area") described therein, which Waukee Consolidated Urban Renewal Plan, as
subsequently amended, is on file in the office of the Recorder of Dallas County; and
WHEREAS, by Resolution No. 2022-476, adopted November 21, 2022, this Council found
and determined that certain areas located within the City are eligible and should be designated as
an urban renewal area under Iowa law, and approved and adopted the Towne Center Commercial
Urban Renewal Plan for the Towne Center Commercial Urban Renewal Area (the "Towne Center
Urban Renewal Area") described therein, which Towne Center Commercial Urban Renewal Plan
will be filed in the office of the Recorder of Dallas County; and
WHEREAS, it is desirable that properties within the Consolidated Urban Renewal Area
and within the Towne Center Urban Renewal Area be redeveloped as part of the overall
redevelopment area covered, respectively, by the Waukee Consolidated Urban Renewal Plan and
the Towne Center Commercial Urban Renewal Plan; and
WHEREAS, the City of Waukee, Iowa ("City") and Waukee Towne Center, LLC
("WTC1") entered into an Agreement for Private Development on December 5, 2022 ("Prior
Agreement"), pursuant to which the Developer was to build certain Minimum Improvements on
certain real property located within the Consolidated Urban Renewal Area and the Towne Center
Urban Renewal Area as defined and legally described in the Agreement (the "Development
Property"); and
WHEREAS, the City has received a proposal from the WTC1 and Waukee Towne Center
II, LLC ("WTC2") (collectively the "Developer"), in the form of a proposed Amended and
Restated Agreement for Private Development (the "Agreement") by and among the City, WTC1,
and WTC2 in order to add WTC2 as a party; and
WHEREAS, the Agreement does not alter the description of the Minium Improvements or
incentives previously described in the Prior Agreement; and
WHEREAS, Chapters 15A and 403, Code of Iowa, 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 Chapters, 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 any or all of the factors set forth in Chapter 15A, Code
of Iowa.
NOW THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF
WAUKEE IN THE STATE OF IOWA:
Section 1.That the performance by the City of its obligations under the Agreement,
including but not limited to making of grants to the Developer in connection with the development
of the Development Property under the terms set forth in the Agreement, be and is hereby declared
to be 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.
Section 2.That the form and content of the Agreement, the provisions of which are
incorporated herein by reference, be and the same hereby are in all respects authorized, approved
and confirmed, and the Mayor and the City Clerk be and they hereby are authorized, empowered
and directed to execute, attest, seal and deliver the Agreement for and on behalf of the City in
substantially the form and content now before this meeting, but with such changes, modifications,
additions or deletions therein as shall be approved by such officers, and that from and after the
execution and delivery of the Agreement, the Mayor and the City Clerk are hereby authorized,
empowered and directed to do all such acts and things and to execute all such documents as may
be necessary to carry out and comply with the provisions of the Agreement as executed.
PASSED AND APPROVED this 18th day of September, 2023.
Mayor
ATTEST:
City Clerk
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AMENDED AND RESTATED AGREEMENT FOR PRIVATE DEVELOPMENT
BY AND AMONG
CITY OF WAUKEE, IOWA
AND
WAUKEE TOWNE CENTER, LLC
AND
WAUKEE TOWNE CENTER II, LLC
_________________, 2023
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AMENDED AND RESTATED AGREEMENT
FOR
PRIVATE DEVELOPMENT
THIS AMENDED AND RESTATED AGREEMENT FOR PRIVATE DEVELOPMENT
(“Agreement”), is made on or as of the ____ day of ___________, 2023, by and among the CITY OF
WAUKEE, IOWA, a municipality (“City”), established pursuant to the Code of Iowa of the State of Iowa
and acting under the authorization of Chapters 15A and 403 of the Code of Iowa, 2023, as amended
(“Urban Renewal Act”); WAUKEE TOWNE CENTER, LLC, an Iowa limited liability company having
an office for the transaction of business at 611 Monticello Drive, Burlington, Iowa 52601 (“WTC1”); and
WAUKEE TOWNE CENTER II, LLC, an Iowa limited liability company having an office for the
transaction of business at 611 Monticello Drive, Burlington, Iowa 52601 (“WTC2” and together with
WTC1, the “Developer”).
This Agreement amends, restates and replaces that Agreement for Private Development (the
“Prior Agreement”) dated December 5, 2022 between City and WTC1, a memorandum of which
Prior Agreement was recorded December 6, 2022 in Book 2022, Page 25008.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has undertaken a
program for the development of economic development areas 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 “Consolidated Urban Renewal Area”), which is described in the Consolidated
Urban Renewal Plan originally approved for such area by Resolution No. 19-402, adopted November 4,
2019, and subsequently amended, and in an area known as the Towne Center Urban Renewal Area
(“Towne Center Urban Renewal Area”), which is described in the Towne Center Urban Renewal Plan
approved for such area on November 21, 2022 ; and
WHEREAS, copies of the foregoing urban renewal plans, as amended, have been recorded among
the land records in the office of the Recorder of Dallas County, Iowa; and
WHEREAS, Developer was or is the owner of certain real property located in the Consolidated
Urban Renewal Area and Towne Center Urban Renewal Area, said property being more particularly
described in Exhibit A attached hereto and made a part hereof (which property as so described is
hereinafter referred to as the “Development Property”); and
WHEREAS, Developer intends to cause the construction of certain Phase One Improvements, and
WTC1 intends to cause the construction of certain Phase Two Improvements, on the Development
Property (collectively the “Minimum Improvements”), and thereafter WTC2 will cause the Phase One
Improvements on the Development Property to be operated and maintained in accordance with this
Agreement and WTC1 will cause the Phase Two Improvements on the Development Property to be
operated and maintained in accordance with this Agreement (which obligations collectively are referred
to herein as the “Project”); and
WHEREAS, the Phase One Improvements includes certain “Quality of Life Improvements” (as
defined below) which WTC1 is willing to construct on the Outlot Y (described below) portion of the
Development Property and thereafter dedicate Outlot Y and any improvements thereon to the City; and
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WHEREAS, the City is willing to provide certain incentives to Developer in consideration for
Developer’s obligations pursuant to the terms and conditions of this Agreement; and
WHEREAS, the City believes that the development of the Development Property pursuant to this
Agreement and the fulfillment generally 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
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 Amended and Restated Agreement for Private Development and all exhibits
and appendices hereto, as the same may be from time to time modified, amended, or supplemented.
Anchor Tenant means an entity to whom the Developer conveyed the Anchor Tenant Property for
purposes of constructing a retail building thereon.
Anchor Tenant Property means that portion of the Development Property described as Lot 1 in
Waukee Towne Center Plat 2, an Official Plat, City of Waukee, Iowa, consisting of approximately 12.44
acres.
Certificate of Completion means a certification in the form of the certificate attached hereto as
Exhibit D 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.
Commencement Date means the date of this Agreement.
Consolidated Urban Renewal Area means the area known as the Waukee Consolidated Urban
Renewal Area.
Consolidated Urban Renewal Plan means the urban renewal plan, as may be amended from time
to time, and approved with respect to the Waukee Consolidated Urban Renewal Area, described in the
preambles hereof.
Developer means WTC1 and WTC2, collectively.
Development Property means that portion of the Consolidated Urban Renewal Area and Towne
Center Urban Renewal Area as more particularly described in Exhibit A hereto, consisting of the Phase
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One Property, Phase Two Property, and Outlot Y. Upon dedication of Outlot Y to the City pursuant to
Section 3.3, Outlot Y shall no longer be considered part of the Development Property for purposes of this
Agreement.
Economic Development Grants means the payments to be made by the City to Developer under
Section 8.1 of this Agreement.
Event of Default means any of the events described in Section 10.1 of this Agreement.
First Mortgage means any Mortgage granted to secure any loan made pursuant to either a mortgage
commitment obtained by Developer from a commercial lender or other financial institution to fund any
portion of the construction costs and initial operating capital requirements of the Minimum Improvements
or all such Mortgages as appropriate.
Minimum Improvements means the construction of the Phase One Improvements and the Phase
Two Improvements on the Development Property as more particularly described in Exhibit B.
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.
Net Proceeds means any proceeds paid by an insurer to Developer under a policy or policies of
insurance required to be provided and maintained by Developer, pursuant to Article V of this Agreement
and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the
collection of such proceeds.
Ordinance means the ordinance(s) of the City under which certain taxes levied on taxable property
in the Development Property shall be divided and a portion paid into the Waukee Towne Center Urban
Renewal Tax Increment Revenue Fund under the authority of Iowa Code Section 403.19.
Outlot Y means that portion of the Development Property described in Exhibit A and upon which
the Quality of Life Improvements are constructed. Upon dedication of Outlot Y to the City pursuant to
Section 3.3, Outlot Y shall no longer be considered part of the Development Property for purposes of this
Agreement.
Outlot Y Payments means the payments to be made by the City to WTC1 under Section 8.2 of this
Agreement associated with the acquisition of Outlot Y and the improvements thereon.
Phase One Economic Development Grants means the payments to be made by the City to WTC2
under Section 8.1(a) of this Agreement.
Phase Two Economic Development Grants means the payments to be made by the City to WTC1
under Section 8.1(b) of this Agreement.
Phase One Improvements means that portion of the Minimum Improvements constructed on the
Phase One Property and Outlot Y as more particularly described in Exhibits B and B-1.
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Phase Two Improvements means that portion of the Minimum Improvements constructed on the
Phase Two Property and Outlot Y as more particularly described in Exhibits B and B-1.
Phase One Property is that portion of the Development Property legally described in Exhibit A.
Phase Two Property is that portion of the Development Property legally described in Exhibit A.
Phase One Quality of Life Improvements means the amphitheater pad, lake, and trail to be
constructed as part of the Phase One Improvements, together with the underlying ground defined as Outlot
Y, as more particularly described in Exhibits B and B-1. The Phase One Quality of Life Improvements
includes the real estate upon which the Quality of Life Improvements will be installed, currently identified
as “Outlot Y”, which real estate will be transferred to the City by general warranty deed simultaneously
upon WTC1 dedicating the Phase One Quality of Life Improvements to the City in accordance with this
Agreement. Upon dedication of Outlot Y to the City pursuant to Section 3.3, Outlot Y shall no longer be
considered part of the Development Property for purposes of this Agreement. Likewise, upon dedication
of the Phase One Quality of Life Improvements to the City, the Phase One Quality of Life Improvements
shall no longer be considered part of the Minimum Improvements or Phase One Improvements for
purposes of this Agreement.
Phase Two Quality of Life Improvements means the vertical construction of the amphitheater upon
the amphitheater pad constructed as part of the Phase One Quality of Life Improvements, as more
particularly described in Exhibits B and B-1. Upon completion, the Phase Two Quality of Life
Improvements shall no longer be considered part of the Minimum Improvements or Phase Two
Improvements for purposes of this Agreement.
Phase One Tax Increments means the property tax revenues on the Phase One Property and Phase
One Improvements constructed thereon divided and made available to the City for deposit in the Waukee
Towne Center, LLC TIF Account of the Waukee Towne Center Urban Renewal Tax Increment Revenue
Fund under the provisions of Section 403.19 of the Code, as amended, and the Ordinance.
Phase Two Tax Increments means the property tax revenues on the Phase Two Property and Phase
Two Improvements constructed thereon divided and made available to the City for deposit in the Waukee
Towne Center, LLC TIF Account of the Waukee Towne Center Urban Renewal Tax Increment Revenue
Fund under the provisions of Section 403.19 of the Code, as amended, and the Ordinance.
Project means the construction and operation of the Minimum Improvements on the Development
Property, as described in this Agreement.
Quality of Life Improvements means collectively the Phase One Quality of Life Improvements
and the Phase Two Quality of Life Improvements.
State means the State of Iowa.
Tax Increments means the property tax revenues on the Development Property and Minimum
Improvements divided and made available to the City for deposit in the Waukee Towne Center, LLC TIF
Account of the Waukee Towne Center Urban Renewal Tax Increment Revenue Fund under the provisions
of Section 403.19 of the Code, as amended, and the Ordinance.
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Termination Date means the date of termination of this Agreement, as established in Section 11.8
of this Agreement.
Towne Center Urban Renewal Area means the area known as the Waukee Towne Center Urban
Renewal Area.
Towne Center Urban Renewal Plan means the urban renewal plan, as may be amended from time
to time, and approved with respect to the Waukee Towne Center Urban Renewal Area, described in the
preambles hereof.
Unavoidable Delays means reasonably unforeseeable 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, COVID-19 or other pandemics (or governmental or quasi-governmental restrictions or
closures related thereto), 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). Notwithstanding the foregoing, each party acknowledges and
agrees that it is entering into this Agreement and committing to perform its respective obligations with an
awareness of the effects of the COVID-19 outbreak, as of the Commencement Date, the continuation of
which the parties agree will not be deemed an Unavoidable Delay absent changes in circumstances o r
occurrence of events beyond the parties’ reasonable control which would independently meet the
definition of an Unavoidable Delay.
Waukee Towne Center 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 was
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 Towne Center Urban Renewal Plan for the Towne Center Urban
Renewal Area.
Waukee Towne Center, LLC TIF Account means a separate account within the Waukee Towne
Center Urban Renewal Tax Increment Revenue Fund of the City, in which there shall be deposited Tax
Increments received by the City with respect to the Development Property under the Ordinance and Iowa
Code Section 403.19.
ARTICLE I-A. ANCHOR TENANT PROPERTY
Section 1-A.1. Developer transferred the Anchor Tenant Property to Anchor Tenant on or before
March 1, 2023 as required by the Prior Agreement; however, any failure of a retail building to be
constructed and operated by Anchor Tenant on the Anchor Tenant Property as part of the Phase One
Improvements consistent with the terms of this Agreement shall be an Event of Default under this
Agreement.
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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. City has duly authorized the execution, delivery, and performance of this
Agreement. This Agreement constitutes a valid and binding obligation of the City, enforceable according
to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application
affecting creditors' rights.
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
only, 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. Waukee Towne Center, LLC and Waukee Towne Center II, LLC are each 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 have 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 respective 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 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 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
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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 shall cause the Minimum 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.
f. Developer will use its commercially best efforts to obtain or cause to be obtained, in a
timely manner, all required permits, licenses, and approvals, and will meet, in a timely manner, all
requirements of all applicable local, State, and federal laws and regulations which must be obtained or
met before the Minimum Improvements may be lawfully constructed.
g. The construction of the Phase One Improvements will require a total investment of
approximately $25,000,000. The combined total investment of the Phase One Improvements and Phase
Two Improvements will be approximately $90,000,000.
h. Developer has not received any notice from any local, State, or federal official that the
activities of 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.
i. Developer, on or before October 1, 2023, will have firm commitments for construction for
Phase One Improvements in an amount sufficient, together with equity commitments, to successfully
complete the Phase One Improvements in accordance with the terms of this Agreement; and WTC1
reasonably expects that it will be able to obtain financing in an amount sufficient to enable WTC1 to
successfully construct the Phase Two Improvements.
j. Developer will reasonably cooperate with the City in resolution of any traffic, parking,
trash removal, or public safety problems which may arise in connection with the construction of the
Minimum Improvements and business operations on the Development Property.
k. Subject to Unavoidable Delays, Developer expects WTC1 to complete construction of the
Phase One Quality of Life Improvements and WTC2 to complete construction of the remainder of the
Phase One Improvements by July 31, 2025, and WTC1 expects to complete the construction of the Phase
Two Improvements by December 31, 2029.
l. Developer would not undertake its obligations under this Agreement without the payment
by the City of the Economic Development Grants being made to Developer pursuant to this Agreement.
ARTICLE III. CONSTRUCTION
Section 3.1. Construction of Minimum Improvements; Construction Plans.
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a. Developer agrees that it will cause the Minimum Improvements to be constructed on the
Development Property in accordance with the terms of this Agreement. Developer agrees that the scope
and scale of the Minimum Improvements to be constructed shall not be significantly less than the scope
and scale of the Minimum Improvements as outlined in this Agreement, and shall require a total
investment of approximately $90,000,000, provided that total investment for Phase One need not exceed
$25,000,000.
b. Developer agrees that it shall cause the Minimum 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 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.
c. 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 Minimum Improvements to inspect such construction and the progress thereof.
Section 3.2. Commencement and Completion of Construction. Subject to Unavoidable Delays,
Developer shall cause construction of the Minimum Improvements to be undertaken and completed: (i)
by no later than the dates set forth in Section 2.2(k) for each phase; or (ii) by such other date as the parties
shall mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to extend
this date by a number of days equal to the number of days lost as a result of Unavoidable Delays.
Section 3.3 Dedication of Quality of Life Improvements.
a. Upon completion of either phase of the Quality of Life Improvements, WTC1 shall notify
City of such completion and the City shall inspect the Quality of Life Improvements. If (i) the Quality of
Life Improvements for the applicable phase have been completed in conformance with all applicable
federal, State, and local laws and regulations, including all City ordinances and land use requirements,
and (ii) the City is in receipt of copies of the maintenance bonds required by Section 3.3(c) for such
improvements, then WTC1 shall dedicate, and the City shall accept dedication, of the conforming phase
of the Quality of Life Improvements from WTC1.
b. The Phase One Quality of Life Improvements includes the real estate upon which the
Quality of Life Improvements will be installed, currently identified as Outlot Y, which real estate will be
transferred to the City by general warranty deed simultaneously upon WTC1 dedicating the Phase One
Quality of Life Improvements to the City in accordance with this Agreement; provided that in connection
with the dedication of the Phase One Quality of Life Improvements, WTC1 shall reserve easements for
(i) stormwater outlets consistent with stormwater management plans approved by the City; and (ii) access
and construction as reasonably necessary for WTC1 to complete the Phase Two Quality of Life
Improvements. City agrees that the Outlot Y shall serve in substantial part or whole the stormwater
detention requirements for the Project pursuant to written stormwater management plans approved by the
City.
c. Prior to completion of each phase of the Quality of Life Improvements, WTC1 shall obtain,
or require each of its general contractors to obtain, four-year maintenance bonds covering the applicable
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phase of the Quality of Life Improvements and guaranteeing the full replacement cost of the applicable
improvement(s). The bonds shall clearly specify WTC1 and City as joint obligees.
d. WTC1 recognizes and agrees, with respect to any portion of the Quality of Life
Improvements WTC1 dedicates to the City and the City accepts, the Quality of Life Improvements
thereafter shall be owned by the City and that Developer shall not retain any special legal entitlements or
other rights not held by members of the general public with respect to ownership, sufficiency for any
particular purpose, or use of the Quality of Life Improvements, except as provided in Section 3.3(e) below.
e. Notwithstanding Section 3.3(d), upon completion of the amphitheater, the parties agree to
negotiate in good faith the terms of a facilities use agreement whereby the lot owner’s association for the
Project will be responsible for event scheduling and gener al maintenance of the amphitheater; provided
that a breach of this Section 3.3(e) or the facilities use agreement will not be deemed a material breach of
this Agreement by any party.
f. For the avoidance of doubt, the Phase Two Improvements also include a water feature
(separate from the 7 acre lake), outdoor seating, public art, ice rink, landscaping, and a playground on the
Development Property; however, such improvements do not constitute Quality of Life Improvements as
defined herein, and shall not be dedicated to the City.
Section 3.4. Certificates of Completion. Upon written request of Developer after receipt of a
certificate of occupancy for either the Phase One Improvements or Phase Two Improvements, the City
will inspect the Minimum Improvements and, if the Minimum Improvements for the applicable phase
have been completed in accordance with this Agreement, then the City will furnish Developer with a
Certificate of Completion for the applicable phase in recordable form, in substantially the form set forth
in Exhibit D 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 Phase One Improvements or Phase Two Improvements, as
applicable.
The Certificate of Completion for each phase may be recorded in the proper office for the
recordation of deeds and other instruments pertaining to the Development Property at Developer’s sole
expense. 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 twenty (20) days after written request by Developer
provide a written statement indicating in adequate detail in what respects Developer has failed to complete
the Minimum Improvements for the applicable phase 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. For sake of clarification only, upon satisfaction of the conditions herein for a particular phase
of the Minimum Improvements, City agrees to issue a separate Certificate of Completion for that phase.
Issuance by the City of the Certificate of Completion pursuant to this Section 3.4 is solely for the
purposes of this Agreement and shall not constitute approval for any other City purpose nor shall it subject
the City to any liability for the Development Property or the Minimum Improvements as constructed.
ARTICLE IV. PROPERTY TAXES
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Section 4.1. Real Property Taxes. Developer 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
(excepting any portion of the Development Property or Minimum Improvements no longer owned b y
Developer). Until such obligations have been assumed by any other person, all pursuant to the provisions
of this Agreement, Developer shall be solely responsible for all such assessments and taxes.
Developer, and their permitted successors and assigns, agrees 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 ad valorem taxes upon land,
real estate, or real property contained on the Development Property between the date of execution of this
Agreement and the Termination Date.
Section 4.2. Appeal of Assessed Value. Notwithstanding anything in this Agreement to the
contrary, the Developer may appeal the assessed value of the Minimum Improvements pursuant to the
regular appeal process. Should Developer successfully protest the assessed value of the Minimum
Improvements and be reimbursed by the County for overpaid taxes for any fiscal year in which Developer
has already received Economic Development Grants, the City may: (i) reduce any subsequent Grants by
an amount equivalent to the portion of the prior Grants that would not have been paid if the Minimum
Improvements had originally been assessed at the adjusted value; or (ii) recoup from Developer an amount
equivalent to the portion of the prior Grants that would not have been paid if the Minimum Improvements
had originally been assessed at the adjusted value, if the set off in (i) is not available or feasible. If there
is an open PAAB appeal or related proceeding or protest that is unresolved as of the Termination Date
with respect to any fiscal year for which an Economic Development Grant was paid to Developer, this
Section 4.2 shall survive the termination of the Agreement.
Section 4.3. Non-payment of Taxes. Developer and the City acknowledge and agree that while
non-payment of property taxes or any effort to reduce property taxes for that portion of the Development
Property that is no longer owned by Developer or its successors or assigns is not an Event of Default, such
non-payment or reduction will necessarily reduce the amount of Tax Increment to be rebated to the
Developer as Economic Development Grants.
ARTICLE V. INSURANCE
Section 5.1. 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, from time to time at the request of the City,
furnish the City with proof of 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 one hundred percent (100%) of the insurable value of the Minimum
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Improvements at the date of completion, 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, its directors, officers,
shareholders, contractors, and subcontractors or anyone else for whose acts the City may be held
responsible (with coverage to the City at least as broad as that which is provided to Developer and not
lessened or avoided by endorsement). The policy shall contain a “severability of interests” clause and
provide primary insurance over any other insurance maintained by the City.
iii. Workers’ compensation insurance with at least statutory coverage.
b. Upon completion of construction of the Minimum Improvements and at all times prior to
the Termination Date (excepting any portion of the Minimum Improvements no longer owned by
Developer, whether following sale to a third-party or dedication to and acceptance by the City), 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 the payment of premiums on), insurance as follows:
i. Insurance against loss and/or damage to the Minimum Improvements under a policy
of policies covering such risks as are ordinarily insured against by similar businesses, including (without
limiting 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 or self-insurance up to not more than $1,000,000. 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
of each occurrence and for each year of $1,000,000.
iii. Such other insurance, including workers’ compensation insurance respecting all
employees of Developer on the Development Property, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided that Developer
may be self-insured with respect to all or any part of its liability for workers’ compensation.
c. All insurance required by this Article V to be provided prior to the Termination Date shall
be taken out and maintained in responsible insurance companies selected by Developer, which is
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authorized under the laws of the State to assume the risks covered thereby. Developer will deposit annually
with the City copies of policies evidencing all such insurance, or a certificate or certificates or binders of
the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this
Article V, each policy shall contain a provision that the insurer shall not cancel or modify it without giving
written notice to Developer, and the City at least thirty (30) days before the cancellation or modification
becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, Developer shall
furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another
policy conforming to the provisions of this Article V, 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 agrees to notify the City immediately in the case of damage exceeding $250,000
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, 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 to any insurance relating to such damage received by Developer to the payment or
reimbursement of the costs thereof.
e. Developer shall complete the repair, reconstruction, and restoration of the Minimum
Improvements (excepting any portion of the Minimum Improvements no longer owned by Developer,
whether following sale to a third-party or dedication to and acceptance by the City), whether or not the
Net Proceeds of insurance received by Developer for such purposes are sufficient.
ARTICLE VI. FURTHER COVENANTS OF DEVELOPER
Section 6.1. Maintenance of Properties. Developer will maintain, preserve, and keep its
properties within the City (whether owned in fee or a leasehold interest), including but not limited to the
Development Property and Minimum Improvements (for so long as it is owned by Developer), 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. Developer’s obligation under this Section 6.1 shall cease
to apply to those portions of the Development Property for which title is conveyed to bona fide third party
buyers.
Section 6.2. Maintenance of Records. Developer will 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 its business and affairs relating to this Project in accordance with generally accepted accounting
principles, consistently applied throughout the period involved, and will provide reasonable protection
against loss or damage to such books of record and account.
Section 6.3. Compliance with Laws. For so long as Developer owns the Minimum
Improvements, Developer will comply with all State, federal, and local laws, rules, and regulations
relating to the Development Property, Minimum Improvements, and the Project.
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Section 6.4. Non-Discrimination. In the construction and operation of the Minimum
Improvements, and for so long as Developer owns the Minimum Improvements, Developer shall not
discriminate against any applicant, employee, or customer because of age, color, creed, national origin,
race, religion, marital status, sex, physical disability, or familial status. Developer shall ensure that
applicants, employees, and customers 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 6.5. Available Information. Upon request, Developer shall, to the extent in Developer’s
reasonable control or possession, promptly provide the City with copies of information requested by City
that are related to this Agreement or the Project so that City can determine compliance with this
Agreement.
Section 6.6. Operation. Developer shall take all commercial reasonable efforts to obtain and
retain tenants at the Minimum Improvements on the Development Property who will operate businesses
and employ employees therein. Developer’s obligation under this Section 6.6 shall cease to apply to those
portions of the Development Property for which title is conveyed to bona fide third-party buyers.
Section 6.7. Annual Certification. To assist the City in monitoring the Agreement and
performance of Developer hereunder, prior to issuance of the Certificate of Completion for a particular
phase of the Minimum Improvements, duly authorized officers of Developer shall provide an Annual
Certification to the City for each phase of the Minimum Improvements, 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 certificate shall be provided not later than October 15 of
each year, commencing October 15, 2024.
Section 6.8. Failure to Pay Taxes by Third Party Owner. Notwithstanding anything in this
Agreement to the contrary, absent contrary written agreement in an assignment or other written document,
failure by a subsequent owner (other than WTC 1 or WTC2) of any portion of the Development Property
or Minimum Improvements to timely pay its property taxes shall not be considered an Event of Default.
The parties acknowledge that failure by such subsequent owner to timely pay its property taxes will result
in a reduction of Tax Increment available to fund the Economic Development Grants.
Section 6.9. 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 Minimum Improvements.
Without limiting the generality of the foregoing, Developer guarantees that: (a) construction of the
Minimum Improvements shall commence and be completed within the time limits set forth herein; (b)
the Minimum Improvements shall be constructed and completed in accordance with the terms of this
Agreement and any site/construction plans submitted to the City’s building officials; (c) the Minimum
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 Minimum Improvements shall be paid when
due.
ARTICLE VII. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
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Section 7.1. Status of Developer; Transfer of Substantially All Assets; Assignment. For the
foregoing reasons and as security for the obligations of Developer under this Agreement, the Developer
represents and agrees for itself and its respective successors and assigns:
a. Prior to the Termination Date, it will maintain existence as a company and will not wind
up or otherwise dispose of all or substantially all of its assets; and
b. With the exceptions noted in subsection (c), it will not transfer, convey, or assign its interest
in the Development Property, Minimum Improvements, or this Agreement to any other party unless: (i)
the transferee partnership, corporation, limited liability company, or individual assumes in writing all of
the obligations of Developer under this Agreement; and (ii) the City consents thereto in writing in advance
thereof, which consent shall not be unreasonably withheld. In the event that Developer wishes to assign
this Agreement, Developer and the transferee individual or entity shall request that the City consent to an
amendment or assignment of this Agreement to accommodate the transfer and to provide for the
assumption of all Developer’s obligations, as applicable, under this Agreement. Such transfer shall not
be effective unless and until the City consents in writing to an amendment or assignment of this Agreement
authorizing the transfer, which consent shall be given or withheld in the sole discretion of the City.
c. The limitations on transfer/assignment set forth in subsection (b) shall not apply to the
following:
i. Developer’s transfer of Outlot Y and dedication of the Quality of Life
Improvements to the City pursuant to the terms of this Agreement;
ii. Developer’s pledge of any and/or all of its assets as security to finance the
construction of the Minimum Improvements, and the City agrees that Developer may assign its
interest in the Economic Development Grants for such purpose;
iii. WTC2’s transfer of any portion of the Phase One Property to a third party purchaser
following receipt of a Certificate of Completion for the Phase One Improvements or WTC1’s
transfer of any portion of the Phase Two Property to a third party purchaser following receipt of a
Certificate of Completion for the Phase Two Improvements.
Section 7.2. Prohibition Against Use as Non-Taxable or Centrally Assessed Property. During
the term of this Agreement, the Developer, and their successors or assigns, agree that the 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. Notwithstanding the prior
sentence, Developer may convey portions of the Development Property to the City to be used by the City
for public infrastructure, parks, trails, or other public purposes. 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 VIII. ECONOMIC DEVELOPMENT GRANTS AND OUTLOT Y PAYMENT
Section 8.1. Payment of Economic Development Grants.
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a. Phase One. For and in consideration of the obligations being assumed by Developer
hereunder, and in furtherance of the goals and objectives of Iowa Code Chapter 403, the City agrees,
subject to Developer being and remaining in compliance with the terms of this Agreement at the time of
payment, and subject to the terms and conditions of this Article VIII, to make up to thirteen (13)
consecutive annual payments of Phase One Economic Development Grants to WTC2 under the following
terms and conditions.
i. Schedule of Phase One Economic Development Grants. Assuming completion of
the Phase One Improvements on December 31, 2024, first full assessment of the Phase One Improvements
on January 1, 2025, and the City’s debt certification to the County Auditor prior to December 1, 2025, the
Phase One Economic Development Grants shall commence on June 1, 2027, and end on June 1, 2039,
pursuant to Section 403.19 of the Urban Renewal Act under the following formula and schedule:
June 1, 2027 75% of Phase One Tax Increments for Fiscal Year 26-27
June 1, 2028 75% of Phase One Tax Increments for Fiscal Year 27-28
June 1, 2029 75% of Phase One Tax Increments for Fiscal Year 28-29
June 1, 2030 75% of Phase One Tax Increments for Fiscal Year 29-30
June 1, 2031 75% of Phase One Tax Increments for Fiscal Year 30-31
June 1, 2032 75% of Phase One Tax Increments for Fiscal Year 31-32
June 1, 2033 75% of Phase One Tax Increments for Fiscal Year 32-33
June 1, 2034 75% of Phase One Tax Increments for Fiscal Year 33-34
June 1, 2035 75% of Phase One Tax Increments for Fiscal Year 34-35
June 1, 2036 75% of Phase One Tax Increments for Fiscal Year 35-36
June 1, 2037 75% of Phase One Tax Increments for Fiscal Year 36-37
June 1, 2038 75% of Phase One Tax Increments for Fiscal Year 37-38
June 1, 2039 75% of Phase One Tax Increments for Fiscal Year 38-39
Each annual payment shall be equal in amount to the incremental property tax revenues attributable to
Phase One Property that are received by the City from the Dallas County Treasurer and that are equal to
the above percentages of the Phase One Tax Increments collected by the City with respect to the Phase
One Property and Phase One Improvements constructed thereon 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 WTC2) during the preceding twelve-month period in respect of the Phase One Property, but
subject to limitation and adjustment as provided in this Article (such payments being referred to
collectively as the “Phase One Economic Development Grants”). If the completion of the Phase One
Improvements is delayed so that the Phase One Improvements are not fully assessed as of January 1, 2025,
then the initial Phase One Economic Development Grant will not begin as scheduled, but will be delayed
one year with all subsequent payments also delayed one year. However, in no event shall the schedule of
Phase One Economic Development Grants be delayed more than one year, meaning that the latest potential
date for WTC2’s initial Phase One Economic Development Grant, if eligible, is June 1, 2028.
ii. Payment Schedule. After the Phase One Improvements are first fully assessed and
if in compliance with this Agreement, if Developer’s Annual Certification is timely filed under Section
6.7, the City shall certify to Dallas County, Iowa (the “County”) prior to December 1 of that year its
request for the available Phase One Tax Increments resulting from the assessments imposed by the County
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as of January 1 of that year, to be collected by the County and paid to the City as taxes are paid during the
following fiscal year and a percentage of which shall thereafter be disbursed to WTC2 on the following
June 1 provided Developer is in compliance with this Agreement at the time of payment. (Example:
Assuming completion of the Phase One Improvements in 2024 and first full assessment on January 1,
2025, if Developer timely submits its Annual Certification in October 2025, and the City certifies to the
County by December 1, 2025, the first Phase One Economic Development Grant would be paid to WTC2
on June 1, 2027 (for 75% of the Tax Increment for Fiscal Year 2026-2027)).
iii. Conditions Precedent. Notwithstanding the provisions of Section 8.1(a) above, the
obligation of the City to make a Phase One Economic Development Grant in any year shall be subject
to and conditioned upon the following:
A. Developer’s timely completion of the Phase One Improvements pursuant to
the terms of this Agreement; and
B. Transfer of the Phase One Quality of Life Improvements and Outlot Y to
the City pursuant to Section 3.3; and
C. Developer completing the platting of the Development Property such that
the Phase One Property is comprised of tax parcels(s) that are separate from
the Phase Two Property; and
D. WTC2 being and remaining in compliance with the terms of this Agreement
as it relates to the Phase One Property and Phase One Improvements at the
time of payment.
Under no circumstances shall the failure by WTC2 to qualify for a Phase One Economic
Development Grant in any year serve to extend the term of this Agreement beyond the Termination
Date or the years during which Phase One Economic Development Grants may be awarded to
WTC2 or the total amount thereof, it being the intent of parties hereto to provide WTC2 with an
opportunity to receive Phase One Economic Development Grants only if Developer fully complies
with the provisions hereof and WTC2 becomes entitled thereto, up to the maximum aggregate
amount set forth in Section 8.1(c).
b. Phase Two. For and in consideration of the obligations being assumed by Developer
hereunder, and in furtherance of the goals and objectives of Iowa Code Chapter 403, the City agrees,
subject to Developer being and remaining in compliance with the terms of this Agreement at the time of
payment, and subject to the terms and conditions of this Article VIII, to make up to thirteen (13)
consecutive annual payments of Phase Two Economic Development Grants to WTC1 under the following
terms and conditions.
i. Schedule of Phase Two Economic Development Grants. Assuming completion of
the Phase Two Improvements on December 31, 2029, first full assessment of the Phase Two
Improvements on January 1, 2030, and the City’s debt certification to the County Auditor prior to
December 1, 2030, the Economic Development Grants shall commence on June 1, 2032, and end on June
1, 2044, pursuant to Section 403.19 of the Urban Renewal Act under the following formula and schedule:
June 1, 2032 75% of Phase Two Tax Increments for Fiscal Year 31-32
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June 1, 2033 75% of Phase Two Tax Increments for Fiscal Year 32-33
June 1, 2034 75% of Phase Two Tax Increments for Fiscal Year 33-34
June 1, 2035 75% of Phase Two Tax Increments for Fiscal Year 34-35
June 1, 2036 75% of Phase Two Tax Increments for Fiscal Year 35-36
June 1, 2037 75% of Phase Two Tax Increments for Fiscal Year 36-37
June 1, 2038 75% of Phase Two Tax Increments for Fiscal Year 37-38
June 1, 2039 75% of Phase Two Tax Increments for Fiscal Year 38-39
June 1, 2040 75% of Phase Two Tax Increments for Fiscal Year 39-40
June 1, 2041 75% of Phase Two Tax Increments for Fiscal Year 40-41
June 1, 2042 75% of Phase Two Tax Increments for Fiscal Year 41-42
June 1, 2043 75% of Phase Two Tax Increments for Fiscal Year 42-43
June 1, 2044 75% of Phase Two Tax Increments for Fiscal Year 43-44
Each annual payment shall be equal in amount to the incremental property tax revenues attributable to
Phase Two Property that are received by the City from the Dallas County Treasurer and that are equal to
the above percentages of the Phase Two Tax Increments collected by the City with respect to the Phase
Two Property and Phase Two Improvements 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 WTC1)
during the preceding twelve-month period in respect of the Phase Two Property, but subject to limitation
and adjustment as provided in this Article (such payments being referred to collectively as the “Phase Two
Economic Development Grants”). If the completion of the Phase Two Improvements is delayed so that
the Phase Two Improvements are not fully assessed as of January 1, 2030, then the initial Phase Two
Economic Development Grant will not begin as scheduled, but will be delayed one year with all
subsequent payments also delayed one year. However, in no event shall the schedule of Phase Two
Economic Development Grants be delayed more than one year, meaning that the latest potential date for
WTC1’s initial Phase Two Economic Development Grant, if eligible, is June 1, 2033.
ii. Payment Schedule. After the Phase Two Improvements are first fully assessed and
if in compliance with this Agreement, if Developer’s Annual Certification is timely filed under Section
6.7, the City shall certify to Dallas County, Iowa (the “County”) prior to December 1 of that year its
request for the available Phase Two Tax Increments resulting from the assessments imposed by the County
as of January 1 of that year, to be collected by the County and paid to the City as taxes are paid during the
following fiscal year and a percentage of which shall thereafter be disbursed to WTC1 on the following
June 1 provided Developer is in compliance with this Agreement at the time of payment. (Example:
Assuming completion of the Phase Two Improvements in 2029 and first full assessment on January 1,
2030, if Developer timely submits its Annual Certification in October 2030, and the City certifies to the
County by December 1, 2030, the first Phase Two Economic Development Grant would be paid to WTC1
on June 1, 2032 (for 75% of the Tax Increment for Fiscal Year 2031-2032)).
iii. Conditions Precedent. Notwithstanding the provisions of Section 8.1(b) above, the
obligation of the City to make a Phase Two Economic Development Grant in any year shall be subject
to and conditioned upon the following:
A. Developer’s timely completion of the Phase One Improvements and
WTC1’s transfer of the Phase One Quality of Life Improvements and Outlot
Y to the City pursuant to Section 3.3; for the avoidance of doubt,
Developer’s failure to timely complete the Phase One Improvements or
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transfer the Phase One Quality of Life Improvements and Outlot Y to the
City shall, in addition to other available remedies, render WTC1 ineligible
to receive any Phase Two Economic Development Grants; and
B. WTC1’s timely completion of the Phase Two Improvements pursuant to the
terms of this Agreement; and
C. Transfer of the Phase Two Quality of Life Improvements to the City
pursuant to Section 3.3; and
D. Developer completing the platting of the Development Property such that
the Phase Two Property is comprised of tax parcels(s) that are separate from
the Phase One Property; and
E. WTC1 being and remaining in compliance with the terms of this Agreement
as it relates to the Phase Two Property and Phase Two Improvements at the
time of payment.
Under no circumstances shall the failure by WTC1 to qualify for a Phase Two Economic
Development Grant in any year serve to extend the term of this Agreement beyond the Termination
Date or the years during which Phase Two Economic Development Grants may be awarded to
WTC1 or the total amount thereof, it being the intent of parties hereto to provide WTC1 with an
opportunity to receive Phase Two Economic Development Grants only if Developer fully complies
with the provisions hereof and WTC1 becomes entitled thereto, up to the maximum aggregate
amount set forth in Section 8.1(c).
c. Maximum Amount of Grants. The aggregate amount of the Economic Development Grants
that may be paid to the Developer under Section 8.1 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 and Minimum Improvements, but in no event shall the aggregate
amount of the Economic Development Grants exceed Twenty-One Million Nine Hundred Thousand
Dollars ($21,900,000). It is further agreed and understood that in no event shall Developer be entitled to
receive more than calculated under the formulas set forth in this Section 8.1, even if the aggregate amount
is less than maximum amount stated herein.
d. Limitations. The Economic Development Grants are only derived from the increase in
assessed value of the Minimum Improvements and Development Property (land and building value)
caused by the completion of the Minimum Improvements described in this Agreement and not any
expansions or improvements not included within the definition of the Minimum Improvements which, to
be eligible for Economic Development Grants, would be the subject of an amendment or new agreement,
at the sole discretion of the City Council.
Section 8.2 Outlot Y Payments. Subject to Developer being and remaining in compliance with
this Agreement, the City agrees to provide the following payments to WTC1 in exchange for the City’s
acquisition of Outlot Y and the improvements thereon (the “Outlot Y Payments”):
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a. Within thirty (30) days after WTC1 completes and dedicates the Phase One Quality
of Life Improvements to the City and transfers Outlot Y to the City pursuant to Section 3.3, the
City shall provide WTC1 with an Outlot Y Payment in the amount of $2,100,000; and
b. Within thirty (30) days after the later of: (i) WTC1 completing and dedicating the
Phase Two Quality of Life Improvements to the City pursuant to Section 3.3, or (ii) a building
permit being procured for any commercial portion of the Phase Two Improvements, the City shall
provide WTC1 with an Outlot Y Payment in the amount of $400,000.
Section 8.3. Source of Grant Funds Limited/Subject to Annual Appropriation.
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 and Minimum
Improvements 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 Towne Center Urban Renewal Tax
Increment Revenue Fund of the City. The City hereby covenants and agrees to timely adopt Ordinances
covering the Phase One Property and Phase Two Property and to apply the appropriate percentage of Tax
Increments collected in respect of the Development Property and Minimum Improvements, 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 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 and Outlot Y Payment is subject to annual
appropriation by the City Council of the City. The Developer expressly agrees that in the event of a non-
appropriation, the City's obligation to make the Economic Development Grants or Outlot Y Payments for
the next fiscal year shall become null and void and the Developer expressly agrees that the Developer
shall have no recourse of any kind against the City for such non-appropriation made in good faith,
including, but not limited to any costs, damages or expenses incurred by the Developer as a result of said
non-appropriation. 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 or Outlot Y Payment 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 o ccurred
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. In the event
the Developer is not otherwise in default under the Agreement and the Economic Development Grants or
Outlot Y Payments are not appropriated for the following fiscal year, City shall:
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i. Within thirty (30) days of the non-appropriation, give notice of such non-
appropriation to the Developer;
ii. Confer with the Developer about alternate incentives that may be reasonably
available to Developer; Developer acknowledges that under no circumstances would such an
incentive involve the City borrowing funds from any source or expending funds from its general
fund; and
iii. Provide notice of the non-appropriation to the MSRB’s Electronic Municipal
Market and applicable rating agencies if required by law.
c. Notwithstanding the provisions of Section 8.1 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 receives an opinion from its legal counsel to the effect that the
use of incremental taxes, as contemplated under said Section 8.1, 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; or the City’s ability to collect incremental taxes
from the Development Property is precluded or terminated by legislative changes to Iowa Code Chapter
403 or under controlling decision of any Iowa court having jurisdiction over the subject matter hereof .
Upon occurrence of any of the foregoing circumstances, the City shall promptly forward notice of the
same to Developer. If the circumstances continue for a period during which two (2) annual Economic
Development Grants would otherwise have been paid to Developer under the terms of Section 8.1, the
City may terminate this Agreement, without penalty or other liability to the City, by written notice to
Developer.
Section 8.4. 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 IX. INDEMNIFICATION
Section 9.1. Release and Indemnification Covenants.
a. Developer releases the City and the governing body members, officers, agents, servants,
and employees thereof (hereinafter, for purposes of this Article IX, the “Indemnified Parties”) from,
covenant and agree that the Indemnified Parties shall not be liable for, and agree t o 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 or
Development Property.
b. Except for any willful misrepresentation 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
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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 Development Property and the construction,
installation, ownership, and operation of the Minimum 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 its officers, agents, servants, or employees or any other person who may be
about the 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. 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.
e. 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 Minimum Improvements to be constructed pursuant to
the terms and conditions of this Agreement;
b. Transfer of any of Developer’s interests in the Development Property, Minimum
Improvements, or this Agreement or the assets of Developer in violation of the provisions of this
Agreement;
c. 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;
d. Failure by Developer to substantially observe or perform any covenant, condition,
obligation, or agreement on its part to be observed or performed under this Agreement;
e. At any time prior to completion of the Phase One Improvements or Phase Two
Improvements, as applicable, Developer:
i. files 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. makes an assignment for the benefit of its creditors; or
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iii. admits in writing its inability to pay its debts generally as they become due; or
iv. is adjudicated as bankrupt or insolvent; or if a petition or answer proposing the
adjudication of Developer, as applicable, as a bankrupt or its reorganization under any present or future
federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or
answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver,
trustee or liquidator of 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;
f. 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.
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 may take any one or more of the following actions
after giving thirty (30) days’ written notice (except for Events of Default under subsections e and f of
Section 10.1 which do not require a notice and cure period) to Developer and the holder of the First
Mortgage (but only to the extent the City has been informed in writing of the existence of a First 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 to the satisfaction of the City within said thirty (30) days, or if the Event of
Default cannot reasonably be cured within thirty (30) days and 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; provided that if Developer timely completes the
Phase One Improvements and transfers the Phase One Quality of Life Improvements and Outlot Y to the
City pursuant to Section 3.3, and if the breach of the terms of the Agreement can be attributed directly to
a phase of the Project, then the City shall only terminate the Agreement with respect to that phase; or
c. The City will have no obligation to make payment of Economic Development Grants or
Outlot Y Payments to Developer subsequent to the Event of Default; provided that if Developer timely
completes the Phase One Improvements and transfers the Phase One Quality of Life Improvements and
Outlot Y to the City pursuant to Section 3.3, and if the breach of the terms of the Agreement can be
attributed directly to a particular phase, then the City shall only terminate the Economic Development
Grants or Outlot Y Payment with respect to that phase. The City shall also be entitled to recover from the
Developer an amount equal to the full amount of the Economic Development Grants previously made to
Developer, with interest thereon at the highest rate permitted by State law; provided that if Developer
timely completes the Phase One Improvements and transfers the Phase One Quality of Life Improvements
and Outlot Y to the City pursuant to Section 3.3, and if the breach of the terms of the Agreement can be
attributed directly to a particular phase of the Project, then the City shall only recover the amount of the
previously paid Economic Development Grants with respect to that phase. For purposes of clarity,
following City’s acceptance and Developer’s transfer of Outlot Y and dedication of the Quality of Life
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Improvements to the City, and subsequent payment of the Outlot Y Payment, no subsequent Event of
Default shall require any repayment by Developer of the Outlot Y Payment. The City may take any action,
including any legal action it deems necessary, to recover such amounts from the Developer; or
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.
Section 10.3. 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 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 employs attorneys or incurs 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 other party, the defaulting party agrees that they shall, on demand therefor, pay to the non -
defaulting party the reasonable fees of such attorneys and such other expenses as may be reasonably and
appropriately incurred by the non-defaulting party in connection therewith.
ARTICLE XI. MISCELLANEOUS
Section 11.1. Conflict of Interest. Developer represents and warrants that, to the best of its
knowledge and belief after due inquiry, no officer or employee of the City, or its designees or agents, nor
any consultant or member of the governing body of the City, and no other public official of the City who
exercises or has exercised any functions or responsibilities with respect to the Project during his or her
tenure, or who is in a position to participate in a decision-making process or gain insider information with
regard to the Project, has had or shall have any interest, direct or indirect, in any contract or subcontract,
or the proceeds thereof, for work or services to be performed in connection with the Project, or in any
activity, or benefit therefrom, which is part of the Project at any time during or after such person’s tenure.
Section 11.2. Notices and Demands. A notice, demand, or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by registered
or certified mail, postage prepaid, return receipt requested, or delivered personally, and
a. In the case of Developer, is addressed or delivered personally to Waukee Towne Center,
LLC and Waukee Town Center II, LLC at 611 Monticello Drive, Burlington, Iowa 52601,
Attn: Mike Pierson, Manager;
b. In the case of the City, is addressed to or delivered personally to the City at City of Waukee
at Waukee City Hall, 230 W. Hickman Road, Waukee, Iowa 50263, Attn: City Clerk;
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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 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 b e 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 December 31, 2045, unless terminated earlier under the provisions of this Agreement.
Upon the termination of this Agreement, the City will, at the request of any owner of any portion of the
Development Property, provide a recordable termination of the Memorandum of Agreement for Private
Development described in Section 11.9.
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 C, 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 Anchor Tenant Obligations. Notwithstanding anything to the contrary in this
Agreement, the City acknowledges and agrees that Anchor Tenant as owner of the Anchor Tenant
Property, shall not be liable for the performance of Developer’s obligations under this Agreement,
including without limitation, the obligation to complete the site work improvements, construct a retail
building, post financial security, or incur any costs pursuant to the Development Agreement. Furthermore,
the failure by Developer to satisfy any terms or conditions under this Agreement will not preclude Anchor
Tenant from obtaining building permits and/or a certificate of occupancy so long as Anchor Tenant
otherwise complies with the generally applicable requirements of the City relating to the issuance of such
items. Likewise, nothing in this Agreement shall be deemed to provide any benefit or right to Anchor
Tenant.
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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 each have 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.
[Remainder of page intentionally left blank; Signature pages follow]
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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 Amended and Restated Agreement for Private Development – City of Waukee]
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WAUKEE TOWNE CENTER, LLC,
WAUKEE TOWNE CENTER II, LLC
Each an Iowa limited liability company
By: _______________________________
Name: Mike Pierson
Its: Manager of each company
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 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 Waukee Towne Center II, LLC,
and that said instrument was signed on behalf of each limited liability company; and that the said officer
acknowledged the execution of said instrument to be the voluntary act and deed of each said limited
liability company, by it and by him voluntarily executed.
_____________________________________
Notary Public in and for State of Iowa
[Signature page to Amended and Restated Agreement for Private Development – Waukee Towne Center,
LLC and Waukee Towne Center II, LLC]
A-1
Execution Version
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is comprised of the Phase One Property, the Phase Two Property, and Outlot
Y legally described as follows:
The Phase One Property is that portion of the Development Property legally described as:
Lot 1 and 2 in Waukee Towne Center Plat 2, an Official Plat, City of Waukee,
Dallas County, Iowa.
The Phase Two Property is that portion of the Development Property legally described as:
Outlot Z in Waukee Towne Center Plat 2, an Official Plat, City of Waukee, Dallas
County, Iowa
The Outlot Y is that portion of the Development Property legally described as:
Outlot Y in Waukee Towne Center Plat 2, an Official Plat, City of Waukee, Dallas
County, Iowa
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Execution Version
EXHIBIT B
MINIMUM IMPROVEMENTS
The Minimum Improvements consist of the Phase One Improvements, Phase Two Improvements,
and related site improvements to be constructed by the Developer on the Development Property, consistent
with approved plats and plans, the Urban Renewal Plan, and the terms of the Agreement, including this
Exhibit B and the diagrams in Exhibit B-1.
The Phase One Improvements include the construction of at least 185,000 square feet of retail
development, a 7.0 acre lake, drainage system, the grading and foundation/pad for an amphitheater, and a
paved trail that connects to the regional system along the south side of the property on the Development
Property, and related site improvements. The construction of Phase One Improvements will be completed
by July 31, 2025.
The Phase Two Improvements include the construction of at least 85,000 square feet of retail
development with lifestyle amenities including the vertical component of the amphitheater, a water
feature, outdoor seating, public art, ice rink, landscaping, and playground on the Development Property,
and related site improvements. The construction of Phase Two Improvements will be completed by
December 31, 2029.
Construction costs for Phase One Improvements and Phase Two Improvements are expected to be
approximately $90,000,000, provided the total investment for Phase One Improvements need not exceed
$25,000,000.
See Exhibit B-1 for preliminary diagrams of the Minimum Improvements.
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Execution Version
EXHIBIT B-1
DIAGRAM OF MINIMUM IMPROVEMENTS
C-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 C
MEMORANDUM OF AMENDED AND RESTATED AGREEMENT FOR PRIVATE
DEVELOPMENT
WHEREAS, the City of Waukee, Iowa (“City”), WAUKEE TOWNE CENTER, LLC
(“WTC1”), and WAUKEE TOWNE CENTER II, LLC (“WTC2” and with WTC1 referred to as
“Developer”), did on or about the _____ day of _______________, 202 3, make, execute and
deliver, each to the other, an Amended and Restated 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 and Waukee Towne Center Urban
Renewal Plan, as may be amended, to develop certain real property located within the City legally
described as follows:
Lots 1 and 2 and Outlots Y and Z in Waukee Towne Center Plat 2, an Official Plat,
City of Waukee, Dallas County, Iowa
(the “Development Property”); and
WHEREAS, the term of the Agreement commenced on the ____ day of _______________,
2023 and terminates on December 31, 2045, unless otherwise terminated as set forth in the
Agreement; and
WHEREAS, the City and Developer desire to record a Memorandum of the Agreement
referring to the Development Property and their respective interests therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. That the Agreement amends, restates and replaces that Agreement for Private
Development (the “Prior Agreement”) dated December 5, 2022 between City and WTC1, a
memorandum of which Prior Agreement was recorded December 6, 2022 in Book 2022, Page
25008.
2. That the recording of this Memorandum of Amended and Restated Agreement for
Private Development shall serve as notice to the public that the Agreement contains provisions
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restricting development and use of the Development Property and the improvements located and
operated on such Development Property.
3. 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 Amended
and Restated 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.
4. 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.
[Remainder of page intentionally left blank; signature pages follow]
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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 Municip ality 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 Amended and Restated Agreement for Private Development –
City of Waukee]
C-4
Execution Version
WAUKEE TOWNE CENTER, LLC,
WAUKEE TOWNE CENTER II, LLC
each an Iowa limited liability company
By: _______________________________
Name: Mike Pierson
Its: Manager of each Company
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 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
Waukee Towne Center II, LLC, and that said instrument was signed on behalf of each limited
liability company; and that the said officer acknowledged the execution of said instrument to be
the voluntary act and deed of each said limited liability company, by it and by him voluntarily
executed.
_____________________________________
Notary Public in and for State of Iowa
[Signature page to Memorandum of Amended and Restated Agreement for Private Development
- Waukee Towne Center, LLC and Waukee Towne Center II, LLC]
D-1
Execution Version
EXHIBIT D
CERTIFICATE OF COMPLETION FOR PHASE _____
WHEREAS, the City of Waukee, Iowa, (“City”) and [WAUKEE TOWNE CENTER, LLC,
an Iowa limited liability company or WAUKEE TOWNE CENTER II, LLC, as applicable]
(“Developer”), did on or about the _____ day of _______________, 2023, 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, to develop and
maintain certain real property located within the City and as more particularly described as
follows:
Lots 1 and 2 and Outlots Y and Z in Waukee Towne Center Plat 2, an Official Plat,
City of Waukee, Dallas County, Iowa
(the “Development Property”); and
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions
with respect to the development of the Development Property, and obligated the Developer to
construct certain Phase ____ 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 the Phase ____ 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 Phase
____ 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 Phase ___ Improvements on the Development Property.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Remainder of page intentionally left blank; signature pages follow]
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(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 - City of Waukee]
E-1
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EXHIBIT E
ANNUAL CERTIFICATION
(due October 15th as required under terms of Development Agreement)
The Developer certifies the following:
During the time period covered by this Certification, the Developer is and was in compliance with
Section 6.7 of the Agreement as follows:
(i) All ad valorem taxes on the Development Property then owed by the Developer in the
Urban Renewal Area have been timely 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 Minimum Improvements were first fully assessed on January 1, 20___, at a full
assessment value of $______________, and are currently assessed at $__________________;
(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
(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: ___________________________________
Its: ___________________________________
WAUKEE TOWNE CENTER II, LLC
By: ___________________________________
Its: ___________________________________
Attachments: Proof of payment of taxes
02244312-1\21938-328