HomeMy WebLinkAbout2019-05-06-H01 Hurd Kettlestone Development Agreement_PHAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: May 6, 2019
AGENDA ITEM:Public hearing on a proposal to enter into a Development Agreement
with Hurd Kettlestone
FORMAT:Public Hearing
SYNOPSIS INCLUDING PRO & CON: Hurd Kettlestone, LLC is the developer of a parcel
located east of Grand Prairie Parkway and north of I-80 that will be the
future home of Fleet Farm. The development agreement obligates the
City to build and pay for the extension of Kettlestone Boulevard from its
current location to the first entrance to the Fleet Farm development. This
extension will also include extension of water, storm and sanitary sewer
along with traffic signals at the intersection of Grand Prairie Parkway
and Kettlestone Boulevard. The total estimated cost of the Kettlestone
road extension is $1,900,000 and the City will use the tax rebates
generated from the Fleet Farm development to reimburse the City for the
cost of the project.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT: Staff believes the proposed Development Agreement is
consistent with City’s policy for offering incentives related to public
improvements.
RECOMMENDATION: Hold the Public Hearing.
ATTACHMENTS: I. Notice of Public Hearing
II. Proposed Development Agreement
PREPARED BY:Dan Dutcher
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION: Dallas County News
DATE OF PUBLICATION: 04/25/2019
H1
(One publication required)
NOTICE OF PUBLIC HEARING OF THE CITY COUNCIL OF THE
CITY OF WAUKEE IN THE STATE OF IOWA, ON THE MATTER
OF THE PROPOSAL TO ENTER INTO A DEVELOPMENT
AGREEMENT WITH HURD KETTLESTONE, LLC, AND THE
HEARING THEREON
PUBLIC NOTICE is hereby given that the Council of the City of Waukee in the State of Iowa,
will hold a public hearing on May 6, 2019, at 5:30 P.M. in the Council Chambers, City Hall, 230 West
Hickman Road, Waukee, Iowa, at which meeting the Council proposes to take action on the proposal to
enter into a Development Agreement (the "Agreement") with Hurd Kettlestone, LLC (the "Developer").
The Agreement would obligate the Developer to construct certain Minimum Improvements (as
defined in the Agreement) on certain real property located within the Gateway Economic Development
Urban Renewal Area as defined and legally described in the Agreement, consisting of the construction of
an approximately 185,000 square foot commercial building, together with all related site improvements,
under the terms and following satisfaction of the conditions set forth in the Agreement.
The Agreement would further obligate the City to construct certain Public Improvements (as
defined in the Agreement) in order to assist in the development of the Minimum Improvements, under the
terms and following satisfaction of the conditions set forth in the Agreement.
The Agreement also proposes that Developer and the City will enter into a Minimum Assessment
Agreement with the County setting the minimum actual value of the Minimum Improvements for tax
purposes at not less than $18,500,000.
A copy of the Agreement is on file for public inspection during regular business hours in the
office of the City Clerk, City Hall, City of Waukee, Iowa.
At the above meeting the Council shall receive oral or written objections from any resident or
property owner of said City, to the proposal to enter into the Agreement with the Developer. After all
objections have been received and considered, the Council will at this meeting or at any adjournment
thereof, take additional action on the proposal or will abandon the proposal to authorize said Agreement.
This notice is given by order of the City Council of the City of Waukee in the State of Iowa, as
provided by Section 364.6 of the City Code of Iowa.
Dated this 15th day of April, 2019.
Rebecca D. Schuett
City Clerk, City of Waukee in the State of Iowa
(End of Notice)
01581061-1\21938-182
Execution Version
AGREEMENT FOR PRIVATE DEVELOPMENT
By and among
CITY OF WAUKEE, IOWA
AND
HURD KETTLESTONE, LLC
________________, 2019
Execution Version Page 2
AGREEMENT
FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT FOR PRIVATE DEVELOPMENT ("Agreement"), is made on or as
of the ____ day of ___________, 2019, by and among the CITY OF WAUKEE, IOWA, a
municipality (the "City"), established pursuant to the Code of Iowa and acting under the
authorization of Chapters 15A and 403 of the Code of Iowa, 2019, as amended ("Urban Renewal
Act"), and Hurd Kettlestone, LLC, an Iowa limited liability company having offices for the
transaction of business at 2000 Fuller Road, West Des Moines, Iowa 50265 ("Developer"). The
City and Developer are the Parties to this Agreement.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has
undertaken a program for the development of an economic development area in the City and, in
this connection, is engaged in carrying out urban renewal project activities in an area known as the
Gateway Economic Development Urban Renewal Area (the "Urban Renewal Area" or "Area"),
which is described in the Urban Renewal Plan originally approved for such area by Resolution No.
13-257 on October 21, 2013, and which has been amended numerous times most recently by
Amendment No. 6 adopted by Resolution No. 19-023 on January 21, 2019 (the "Urban Renewal
Plan" or "Plan"); and
WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended, has been recorded
among the land records in the offices of the Recorder of Dallas County, Iowa; and
WHEREAS, Developer is the owner of certain real property located in the foregoing Urban
Renewal Area and as 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 shall cause certain Minimum Improvements (as more particularly
described hereon) to be constructed on the Development Property and cause the same to be
operated in accordance with this Agreement until at least the Termination Date of this Agreement;
and
WHEREAS, the City is willing to construct certain public improvements to assist in the
development of the Minimum Improvements, subject 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 of this Agreement are in the vital and best interests of the
City and in accord with the public purposes and provisions of the applicable State and local laws
and requirements under which the foregoing project has been undertaken and is being assisted.
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NOW, THEREFORE, in consideration of the promises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all
capitalized terms used and not otherwise defined herein shall have the following meanings unless
a different meaning clearly appears from the context:
Agreement means this Agreement and all exhibits and appendices hereto, as the same may
be from time to time modified, amended or supplemented.
Area or Urban Renewal Area shall mean the area known as the Gateway Economic
Development Urban Renewal Area.
Certificate of Completion means a certification in the form of the certificate attached hereto
as Exhibit C and hereby made a part of this Agreement.
City means the City of Waukee, Iowa, or any successor to its functions.
Code means the Code of Iowa, 2019, as amended.
Commencement Date means the date of this Agreement.
Construction Plans means the plans, specifications, drawings and related documents
reflecting the construction work caused to be performed by Developer on the Development
Property; the Construction Plans shall be as detailed as the plans, specifications, drawings and
related documents which are submitted to the building inspector of the City as required by
applicable City codes.
Developer means Hurd Kettlestone, LLC, an Iowa limited liability company, and each
assignee that assumes in writing all of the obligations of Developer under this Agreement with the
written consent of the City as provided in Section 7.1 of this Agreement.
Development Property means that portion of the Gateway Economic Development Urban
Renewal Area described in Exhibit A.
Event of Default means any of the events described in Section 10.1 of this Agreement that
have continued beyond applicable notice and cure periods.
Minimum Actual Value means the minimum actual value of the Minimum Improvements
on the Development Property (land and building(s)) as set forth in the Minimum Assessment
Agreement (Exhibit E).
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Minimum Improvements means the construction of an 185,000 square foot commercial
building, and related site improvements, on the Development Property as more particularly
described in Exhibit B to this Agreement.
Minimum Assessment Agreement means the minimum assessment agreement in the form
of Exhibit E attached hereto.
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.
Project shall mean the construction and operation of the Minimum Improvements on the
Development Property and the creation and maintenance of jobs therein, as described in this
Agreement.
Public Improvements means the public improvements listed and depicted in Exhibit F.
State means the State of Iowa.
Termination Date means the date of termination of this Agreement, as established in
Section 11.8 of this Agreement.
Unavoidable Delays means delays resulting from acts or occurrences outside the
reasonable control of the party claiming the delay including but not limited to storms, floods, fires,
explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other
labor disputes, delays in transportation or delivery of material or equipment, litigation commenced
by third parties, or the acts of any federal, State or local governmental unit (other than the City,
with respect to a City-claimed delay).
Urban Renewal Plan means the Urban Renewal Plan, as amended, approved with respect
to the Gateway Economic Development Urban Renewal Area, described in the preambles hereof.
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.
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b. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a breach
of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which the City is now a party or by which it is
bound, nor do they constitute a default under any of the foregoing.
c. All covenants, stipulations, promises, agreements, and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and
obligations of the City, and not of any governing body member, officer, agent, servant or employee
of the City in the individual capacity thereof.
Section 2.2. Representations and Warranties of Developer. Developer makes the
following representations and warranties:
a. Hurd Kettlestone, LLC is an Iowa limited liability company, duly organized and
validly existing under the laws of the State of Iowa, and it has all requisite power and authority to
own and operate its properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under the Agreement.
b. This Agreement has been duly and validly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is in full force and
effect and is a valid and legally binding instrument of Developer enforceable in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting creditors' rights generally.
c. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a
violation or breach of, the terms, conditions or provisions of the governing documents of
Developer or of any contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Developer is now a party or by which it or its property is bound, nor do
they constitute a default under any of the foregoing.
d. There are no actions, suits or proceedings pending or threatened against or affecting
Developer in any court or before any arbitrator or before or by any governmental body in which
there is a reasonable possibility of an adverse decision which could materially adversely affect the
business (present or prospective), financial position or results of operations of Developer or which
in any manner raises any questions affecting the validity of the Agreement or Developer's ability
to perform its obligations under this Agreement.
e. Developer has not received any notice from any local, State or federal official that
the activities of Developer 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
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filed or planned to be filed by any party relating to any violation of any local, State or federal
environmental law, regulation or review procedure applicable to the Development Property, and
Developer is not currently aware of any violation of any local, State or federal environmental law,
regulation or review procedure which would give any person a valid claim under any State or
federal environmental statute with respect thereto.
f. Developer shall cooperate with the City in resolution of any traffic, parking, trash
removal or public safety problems which may arise in connection with the construction and
operation of the Minimum Improvements.
g. Developer shall cause the Minimum Improvements to be constructed in accordance
with the terms of this Agreement, the Urban Renewal Plan, the Minimum Assessment Agreement,
and all local, State, and federal laws, ordinances, and regulations.
h. Developer shall cause to be obtained, in a timely manner, all required permits,
licenses, and approvals, and shall meet, in a timely manner, all requirements of all applicable local,
State, and federal laws and regulations which must be obtained or met before the Minimum
Improvements may be lawfully constructed.
i. The construction of the Minimum Improvements will require a total investment of
not less than $20,000,000.
j. Developer has firm commitments for construction or acquisition and permanent
financing for the Project in an amount sufficient, together with equity commitments, to
successfully complete the Minimum Improvements in accordance with the Construction Plans
contemplated in this Agreement.
k. Developer expects that, barring Unavoidable Delays, the Minimum Improvements
will be completed by June 1, 2020.
l. Developer shall transfer to the City, at no cost or expense to the City, any property,
interests, title or easements necessary for the City to construct and maintain the Public
Improvements.
m. Developer would not undertake its obligations under this Agreement without the
City’s provision of the Public Improvements pursuant to this Agreement.
ARTICLE III. CONSTRUCTION OF MINIMUM IMPROVEMENTS
Section 3.1. Construction of Minimum Improvements. Developer agrees that it will cause
the Minimum Improvements to be constructed on the Development Property in conformance with
the Construction Plans submitted to the City in accordance with Section 3.2 below. Developer
agrees that the scope and scale of the Minimum Improvements to be constructed shall not be
significantly less than the scope and scale of the Minimum Improvements as detailed and outlined
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in the Construction Plans, and shall require a total investment of not less than $20,000,000 in
construction costs.
Section 3.2. Construction Plans. Developer shall cause Construction Plans to be developed
for the Minimum Improvements, which shall be subject to approval by the City as provided in this
Section 3.2, and which approval shall not be unreasonably withheld, conditioned or delayed. The
Construction Plans shall be in conformity with the Urban Renewal Plan, this Agreement, and all
applicable federal, State and local laws and regulations. The City shall approve the Construction
Plans in writing if: (i) the Construction Plans conform to the terms and conditions of this
Agreement; (ii) the Construction Plans conform to the terms and conditions of the Urban Renewal
Plan; (iii) the Construction Plans conform to all applicable federal, State and local laws,
ordinances, rules and regulations, and City permit requirements; (iv) the Construction Plans are
adequate for purposes of this Agreement to provide for the construction of the Minimum
Improvements; and (v) no Event of Default under the terms of this Agreement has occurred and is
continuing beyond applicable notice and cure periods; provided, however, that any such approval
of the Construction Plans pursuant to this Section 3.2 shall constitute approval for the purposes of
this Agreement only and shall not be deemed to constitute approval or waiver by the City with
respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be
deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the
Construction Plans are not as detailed or complete as the plans otherwise required for the issuance
of a building permit. The site plans submitted to the building official of the City for the
Development Property and the surrounding areas where the Minimum Improvements are to be
constructed shall be adequate to serve as the Construction Plans, if such site plans are approved by
the building official.
Approval of the Construction Plans by the City shall not relieve any obligation to comply
with the terms and provisions of this Agreement, or the provision of applicable federal, State and
local laws, ordinances and regulations.
Approval of Construction Plans hereunder is solely for purposes of this Agreement, and
shall not constitute approval for any other City purpose nor subject the City to any liability for the
Minimum Improvements as constructed.
Section 3.3. 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 June 1, 2020; or (ii) by such other date as the parties shall mutually
agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to extend this
date by a number of days equal to the number of days lost as a result of Unavoidable Delays. All
work with respect to the Minimum Improvements shall be in conformity with the Construction
Plans approved by the building official or any amendments thereto as may be approved by the
building official.
Developer agrees that it shall permit designated representatives of the City, upon
reasonable notice (which does not have to be written), to enter upon the Development Property
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during the construction of the Minimum Improvements to inspect such construction and the
progress thereof, subject to Developer's reasonable rules and regulations for the construction site.
Section 3.4. Certificate of Completion. Within fifteen (15) business days after written
request by Developer and after issuance of an occupancy permit for the Minimum Improvements,
the City will furnish Developer with a Certificate of Completion in recordable form, in
substantially the form set forth in Exhibit C attached hereto. Such Certificate of Completion shall
be a conclusive determination of satisfactory termination of the covenants and conditions of this
Agreement with respect to the obligations of Developer to cause construction of the Minimum
Improvements.
The Certificate of Completion may be recorded in the Dallas County Recorder's Office 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 such fifteen (15) business
day period, instead provide a written statement indicating in what respects Developer has failed to
complete the Minimum Improvements 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.
ARTICLE IV. RESERVED
ARTICLE V. INSURANCE
Section 5.1. Insurance Requirements.
a. Developer will 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 coverage or payment of premiums on):
i. Builder's risk insurance, written on the so-called "Builder's Risk–
Completed Value Basis," in an amount equal to the full replacement cost of the Minimum
Improvements, and with coverage available in non-reporting form on the so-called "all risk" form
of policy.
ii. Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations, and contractual liability
insurance) with limits against bodily injury and property damage of at least $1,000,000 for each
occurrence. The City shall be named as an additional insured for the City's liability or loss arising
out of or in any way associated with the project and arising out of any act, error, or omission of
Developer, or either entity's directors, officers, shareholders, contractors, and subcontractors or
anyone else for whose acts the City may be held responsible (with coverage to the City at least as
broad as that which is provided to Developer and not lessened or avoided by endorsement). The
policy shall contain a "severability of interests" clause and provide primary insurance over any
other insurance maintained by the City.
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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, Developer shall cause to be maintained, at its cost and expense (and
from time to time at the request of the City shall furnish proof of coverage or the payment of
premiums on), insurance as follows:
i. Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar businesses,
including (without limitation the generality of the foregoing) fire, extended coverage, vandalism
and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse
in an amount not less than the full insurable replacement value of the Minimum Improvements,
but any such policy may have a deductible amount of not more than $50,000. No policy of
insurance shall be so written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the City. The term "full insurable replacement
value" shall mean the actual replacement cost of the Minimum Improvements (excluding
foundation and excavation costs and costs of underground flues, pipes, drains, and other
uninsurable items) and equipment, and shall be determined from time to time at the request of the
City, but not more frequently than once every three years, by an insurance consultant or insurer
selected and paid for by Developer and approved by the City.
ii. Comprehensive general public liability insurance, including personal injury
liability for injuries to persons and/or property, including any injuries resulting from the operation
of automobiles or other motorized vehicles on or about the Development Property, in the minimum
amount for each occurrence and for each year of $1,000,000.
iii. Such other insurance, including workers' compensation insurance
respecting all employees of Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and 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 are authorized under the laws of the State to assume the risks covered thereby. Developer
will deposit annually with the City copies of policies evidencing all such insurance, or a certificate
or certificates or binders of the respective insurers stating that such insurance is in force and effect.
Unless otherwise provided in this Article V, each policy shall contain a provision that the insurer
shall not cancel it without giving written notice to Developer and the City at least thirty (30) days
(ten (10) days in the case of non-payment of premium) before the cancellation becomes effective.
Within ten (10) days of being notified of any modification to the policy by the insurer that would
cause a party's coverage to be less than the minimum requirements as set forth in this Agreement,
Developer will provide written notice to the City of the modification. Within fifteen (15) days
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after the expiration of any policy, Developer shall furnish the City evidence satisfactory to the City
that the policy has been renewed or replaced by another policy conforming to the provisions of
this Article 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
$25,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof
resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid directly to
Developer (as applicable to the specific policy), and Developer, as applicable, will forthwith cause
the repair, reconstruct, and restore the Minimum Improvements to substantially the same or an
improved condition or value as they existed prior to the event causing such damage and, to the
extent necessary to accomplish such repair, reconstruction and restoration, Developer will apply
the Net Proceeds of any insurance relating to such damage received by Developer to the payment
or reimbursement of the costs thereof.
e. Developer shall cause the repair, reconstruction, and restoration of the Minimum
Improvements to be completed, 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 Development Property. Developer will cause the tenant to
maintain, preserve, and keep the Development Property, including but not limited to the Minimum
Improvements, in good repair and working order, ordinary wear and tear excepted, and from time
to time will make all necessary repairs, replacements, renewals, and additions.
Section 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 the business and affairs of Developer relating to this Project, and
Developer will provide reasonable protection against loss or damage to such books of record and
account.
Section 6.3. Compliance with Laws. Developer will, and will cause the tenant to, comply
with all State, federal and local laws, rules and regulations relating to the Minimum Improvements.
Section 6.4. Non-Discrimination. In the construction and operation of the Minimum
Improvements, Developer shall not, and shall cause the tenant not to, discriminate against any
applicant, employee or tenant because of age, color, creed, national origin, race, religion, marital
status, sex, physical disability, sexual orientation, gender identity, or familial status. Developer
shall, and shall cause the tenant to, ensure that applicants, employees, and tenants are considered
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and are treated without regard to their age, color, creed, national origin, race, religion, marital
status, sex, physical disability, sexual orientation, gender identity, or familial status.
Section 6.5. Available Information. Upon request, Developer shall, and shall cause the
tenant to, promptly provide the City with copies of information reasonably requested by City that
are related to this Agreement so that City can determine compliance with the Agreement.
Section 6.6. Operation of Minimum Improvements. Developer shall use commercially
reasonable and diligent efforts to lease or sell the Minimum Improvements to commercial
enterprises to occupy the Minimum Improvements and create or retain jobs therein through the
Termination Date.
Section 6.7. 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 be completed generally within the time limits
set forth herein; (b) the Minimum Improvements shall be constructed and completed in substantial
accordance with the Construction Plans; (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
Section 7.1. Status of Developer; Transfer of Substantially All Assets; Assignment. As
security for the obligations of Developer under this Agreement, Developer represents and agrees
that, prior to the Termination Date, Developer will maintain its existence and will not wind up or
otherwise dispose of all or substantially all of its assets or transfer, convey, or assign its interest in
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 then-outstanding obligations of Developer under this Agreement; and (ii) the City
consents thereto in writing in advance thereof.
Section 7.2. Prohibition Against Use as Non-Taxable or Centrally Assessed Property.
During the term of this Agreement, Developer or its successors or assigns, agree that, with the
exception of the transfer of right of way to the City for purposes of constructing or maintaining
Public Improvements which is specifically allowed hereunder, the Development Property or any
parcel thereof cannot be transferred or sold to a non-profit entity or used for a purpose that would
exempt the Development Property or improvements thereon from property tax liability. Nor can
the Development Property or improvements thereon 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)).
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ARTICLE VIII. PUBLIC IMPROVEMENTS; REAL PROPERTY TAXES;
MINIMUM ASSESSMENT AGREEMENT
Section 8.1. Public Improvements. Contingent on Developer's compliance with the terms
of this Agreement, including but not limited to the execution of the Minimum Assessment
Agreement as set forth in Section 8.3, and contingent upon satisfaction of the Conditions Precedent
set forth below in Section 8.1(a), the City intends to construct certain Public Improvements
associated with the construction of the Minimum Improvements. The City's obligation to construct
the Public Improvements as described in this Article shall be subject in all respects to Unavoidable
Delays, the provisions of this Article, and to the satisfaction of all conditions and procedures
required by law (in the judgment of any counsel for the City) for the planning, designing, letting,
constructing, inspecting, and funding of the Public Improvements, including but not limited to the
requirements of Iowa Code Chapters 26, 384, 403, and 573, and including the holding of all
required public hearings relating to the same. The description of the Public Improvements is
contained in Exhibit F. The obligation to construct any of the Public Improvements described in
Exhibit F is subject to the conditions precedent set forth in Section 8.1(a).
a. Conditions Precedent to Funding or Constructing the Public Improvements. It is
recognized and agreed that the ability of the City to perform the obligations described in this
Agreement with respect to the Public Improvements is subject to completion and satisfaction of
certain separate City Council actions and required legal proceedings. In addition, all obligations
of City to fund or construct Public Improvements are subject to each of the following Conditions
Precedent:
(i)The representations and warranties made by Developer in
Section 2.2 shall be true and correct;
(ii)Developer shall have provided the City, at no cost to the City,
all property, interests, title or easements necessary for the City to construct and
maintain the Public Improvements;
(iii)The City shall have annexed the Development Property and
approved all applicable zoning, subdivision, or platting of the Development
Property necessary for development and construction of the Minimum
Improvements on the Development Property;
(iv)The City shall have amended the Urban Renewal Plan to include
the Development Property in the Area and identify the Agreement and Public
Improvements as urban renewal projects;
(v)Developer shall be in compliance with all the terms and
provisions of this Agreement;
(vi)Execution by Developer of and Developer's compliance with the
Minimum Assessment Agreement between the City and Developer
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substantially in the form of Exhibit E, pursuant to Section 8.3 of this
Agreement; and
(vii)There has not been a substantial change for the worse in the
financial resources and ability of Developer, or a substantial decrease in the
financing commitments secured by Developer for construction of the Minimum
Improvements on the Development Property, which change(s) make it likely,
in the reasonable judgment of the City, that Developer will be unable to fulfill
its covenants and obligations under this Agreement.
b. Other Improvements. The City may determine to construct additional
infrastructure improvements, in its sole discretion, provided the additional infrastructure
improvements do not materially adversely affect the completion of the Minimum Improvements
or the Public Improvements.
c. Completion Date for Public Improvements. The City agrees to use its best efforts,
consistent with its obligations under Chapter 26 of the Code of Iowa, to cause the Public
Improvements described in Exhibit F to be substantially functional and/or substantially open to
traffic by December 31, 2019, subject to Unavoidable Delays.
d. Authority to Design, Engineer and Construct. The City shall design, engineer and
construct the Public Improvements in accordance with current City standards and design
guidelines, other applicable design standards, the terms of this Agreement, and in accordance with
the provisions of the Iowa Code, including required public notice and hearing on the proposed
public improvements.
e. Right of Way and Easements. Developer shall convey, at no cost to the City, such
property, interests, title or easements necessary for the City to construct, maintain, and operate the
Public Improvements, and cooperate with the City in the construction of the Public Improvements.
f. Non-responsibility of Developer. The City acknowledges and agrees that
Developer has no obligation or responsibility or liability whatsoever with respect to the design or
quality of construction of the Public Improvements.
g. No Special Legal Entitlements. Developer recognizes and agrees that all of the
Public Improvements shall be owned and maintained by the City for the benefit of the general
public; that all use thereof by Developer, their employees, customers and suppliers shall be on the
same basis as the general public; and that Developer shall have no special legal entitlements or
other rights not held by members of the general public with respect to ownership, maintenance or
use of the Public Improvements.
Section 8.2. Real Property Taxes.
a. 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. Until such
obligations have been assumed by any other person, all pursuant to the provisions of this
Execution Version Page 14
Agreement, Developer shall be responsible for all assessments and taxes. Developer and their
permitted successors agree that prior to the Termination Date:
(i) 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
(ii) They will not seek any tax exemption deferral or abatement either presently
or prospectively authorized under any State, federal or local law with respect to taxation of
real property contained on the Development Property or the Minimum Improvements
between the date of execution of this Agreement and the Termination Date; and
(iii) On or before January 1, 2020, the assessment category for the Development
Property shall be commercial/ industrial and Developer shall not take any action to request
or effect a change in such category.
Section 8.3. Minimum Assessment Agreement.
a. As further consideration for this Agreement, Developer shall execute,
contemporaneous with the execution of this Agreement, an Assessment Agreement pursuant to the
provisions of Iowa Code Section 403.6(19) specifying the Assessor's Minimum Actual Value for
the Minimum Improvements on the Development Property for calculation of real property taxes
in the form attached as Exhibit E ("Assessment Agreement" or " Minimum Assessment
Agreement"). Specifically, Developer, City, the Assessor, the holder of any Mortgage and all prior
lienholders shall agree to a Minimum Actual Value for the Minimum Improvements to be
constructed on the Development Property of not less than $18,500,000 upon completion of the
Minimum Improvements, but no later than January 1, 2021, until the Minimum Assessment
Agreement Termination Date. Such minimum actual value at the time applicable is herein referred
to as the "Assessor's Minimum Actual Value".
Nothing in the Minimum Assessment Agreement shall limit the discretion of the Assessor
to assign an actual value to the Development Property in excess of such Assessor's Minimum
Actual Value nor prohibit Developer from seeking through the exercise of legal or administrative
remedies a reduction in such actual value for property tax purposes; provided, however, that
Developer shall not seek a reduction of such actual value below the Assessor's Minimum Actual
Value in any year so long as the Minimum Assessment Agreement shall remain in effect. The
Minimum Assessment Agreement shall remain in effect until it terminates in accordance with its
terms. The Minimum Assessment Agreement shall be certified by the Assessor for the County as
provided in Iowa Code Section 403.6(19) and shall be filed for record in the office of the County
Recorder, and such filing shall constitute notice to any subsequent encumbrancer or purchaser of
the Development Property or parts thereof, whether voluntary or involuntary. Such Minimum
Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent
Execution Version Page 15
purchaser or encumbrancer, as well as all prior lienholders and the holder of any Mortgage, each
of which shall sign a consent to the Minimum Assessment Agreement.
ARTICLE IX. INDEMNIFICATION
Section 9.1. Release and Indemnification Covenants - Developer.
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 to
indemnify, defend, and hold harmless the indemnified parties against, any loss or damage to
property or any injury to or death of any person occurring at or about or resulting from any defect
in the Minimum Improvements or Development Property.
b. Except to the extent arising from any willful misrepresentation, gross negligence,
or any willful or wanton misconduct or any unlawful act of the indemnified parties, Developer
agrees to protect and defend the indemnified parties, now or forever, and further agree to hold the
indemnified parties harmless, from any claim, demand, suit, action or other proceedings
whatsoever by any person or entity whatsoever arising or purportedly arising from: (i) any
violation of any agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Developer against the City to enforce its rights under this
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.
Section 9.2. The provisions of this Article IX shall survive the termination of this
Agreement.
ARTICLE X. EVENTS OF DEFAULT, REMEDIES
Section 10.1. Events of Default Defined. The following shall be "Events of Default" under
this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events during the Term of this Agreement:
a. Failure by Developer to cause the construction of the Minimum Improvements to
be completed and the operations to continue pursuant to the terms and conditions of this
Agreement;
Execution Version Page 16
b. Transfer of Developer's interest in the Development Property, Minimum
Improvements, or this Agreement in violation of the provisions of this Agreement;
d. Failure by Developer to cause the ad valorem taxes on the Development Property
or Minimum Improvements to be paid;
e. Failure by City or Developer to substantially observe or perform any covenant,
condition, obligation or agreement on its part to be observed or performed under this Agreement;
f. The holder of any Mortgage on the Development Property, or any improvements
thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under
the applicable Mortgage documents;
g. Developer shall:
i. file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United States
Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or
ii. make an assignment for the benefit of its creditors; or
iii. admit in writing its inability to pay its debts generally as they become due;
or
iv. be adjudicated as bankrupt or insolvent; or if a petition or answer proposing
the adjudication of Developer as bankrupt or either entity's reorganization under any present or
future federal bankruptcy act or any similar federal or state law shall be filed in any court and such
petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof;
or a receiver, trustee or liquidator of Developer 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;
h. Any representation or warranty made by Developer in this Agreement or in any
written statement or certificate furnished by Developer pursuant to this Agreement, shall prove to
have been incorrect, incomplete or misleading in any material respect on or as of the date of the
issuance or making thereof; or
i. Failure of the Developer or any lienholder to execute or perform under the
Minimum Assessment Agreement.
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 non-defaulting party may take any one or
more of the following actions after the giving of thirty (30) days' written notice by the non-
defaulting party to the defaulting party of the Event of Default, but only if the Event of Default
has not been cured within said thirty (30) days, or if the Event of Default cannot reasonably be
Execution Version Page 17
cured within thirty (30) days and the defaulting party does not provide assurances reasonably
satisfactory to the non-defaulting party that the Event of Default will be cured as soon as
reasonably possible:
a. With regard to any Event of Default by the Developer:
(i) The City may suspend its performance under this Agreement with respect
to the construction of any Public Improvements until it receives assurances from
Developer, deemed adequate by the City, that the defaulting party will cure the default and
continue its performance under this Agreement;
(ii) The City may terminate this Agreement;
(iii) The City may withhold the Certificate of Completion; or
(iv) 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.
b. With regard to any Event of Default by the City:
(i) Developer 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 City under this Agreement.
Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
no-defaulting party 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.
a. Developer shall pay to the City an amount equal to the actual costs incurred by the
City in connection with the drafting and execution of this Agreement, including, but not limited to
publication fees for legal notices, actual costs associated with City Council meetings, and
reasonable legal fees of the City, associated with the preparation and adoption of the amendment
to the Urban Renewal Plan and negotiation, drafting and authorization of this Agreement. Payment
Execution Version Page 18
by Developer of such costs will be made by the Developer to the City within thirty (30) days of
the date on which the City presents a statement to the Developer demonstrating such costs.
b. Whenever any Event of Default occurs and the non-defaulting party shall employ
attorneys or incur other expenses for the collection of payments due or to become due or for the
enforcement or performance or observance of any obligation or agreement on the part of the
defaulting party herein contained, and the non-defaulting party prevails in an action to enforce this
Agreement, the defaulting party agrees that the defaulting party 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 its best
knowledge and belief after due inquiry, no officer or employee of the City, or their designees or
agents, nor any consultant or member of the governing body of the City, and no other public
official of the City who exercises or has exercised any functions or responsibilities with respect to
the Project during his or her tenure, or who is in a position to participate in a decision-making
process or gain insider information with regard to the Project, has had or shall have any interest,
direct or indirect, in any contract or subcontract, or the proceeds thereof, for work or services to
be performed in connection with the Project, or in any activity, or benefit therefrom, which is part
of the Project at any time during or after such person's tenure.
Section 11.2. Notices and Demands. A notice, demand or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and
a. In the case of Developer, is addressed or delivered personally to Hurd Kettlestone,
LLC at 2000 Fuller Road, West Des Moines, Iowa 50265, Attn: Richard W. Hurd,
Manager;
b. In the case of the City, is addressed to or delivered personally to the City at
230 West Hickman Road, Waukee, Iowa 50263, Attn: Becky Schuett, City Clerk;
or to such other designated individual or officer or to such other address as any party shall have
furnished to the other in writing in accordance herewith.
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.
Execution Version Page 19
Section 11.5. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Iowa.
Section 11.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement among the parties regarding the subject matter hereof, and supersedes and replaces all
prior agreements, negotiations or discussions, whether oral or written. This Agreement may not
be amended except by a subsequent writing signed by all parties hereto.
Section 11.7. Successors and Assigns. This Agreement is intended to and shall inure to
the benefit of and be binding upon the parties hereto and their respective permitted successors and
assigns.
Section 11.8. Termination Date. This Agreement shall terminate and be of no further force
or effect on and after December 31, 2030, unless terminated earlier under the provisions of this
Agreement.
Section 11.9. Memorandum of Agreement. The parties agree to execute and record a
Memorandum of Agreement for Private Development, in substantially the form attached as Exhibit
D, to serve as notice to the public of the existence and provisions of this Agreement, and the rights
and interests held by the City by virtue hereof. The City shall pay for all costs of recording.
Section 11.10. No Third-Party Beneficiaries. No rights or privileges of either party hereto
shall inure to the benefit of any landowner, contractor, subcontractor, material supplier, or any
other person or entity, and no such contractor, landowner, subcontractor, material supplier, or any
other person or entity shall be deemed to be a third-party beneficiary of any of the provisions
contained in this Agreement.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk,
and Developer has caused this Agreement to be duly executed in its name and behalf by its
authorized representatives, all on or as of the day first above written.
[Signatures start on the next page]
Execution Version Page 20
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
William F. Peard, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 2019, before me a Notary Public
in and for said State, personally appeared William F. Peard and Becky Schuett, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the
City of Waukee, Iowa, a Municipality created and existing under the laws of the State of Iowa,
and that the seal affixed to the foregoing instrument is the seal of said Municipality, and that said
instrument was signed and sealed on behalf of said Municipality by authority and resolution of its
City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and
deed of said Municipality by it voluntarily executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature Page to Agreement for Private Development – City of Waukee]
Execution Version Page 21
HURD KETTLESTONE, LLC
By: ____________________________
Richard W. Hurd, Manager
ATTEST:
By: _____________________________
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2019, before me the undersigned, a Notary
Public in and for said State, personally appeared Richard W. Hurd and ________________, to me
personally known, who, being by me duly sworn, did say that they are the Manager and
________________of Hurd Kettlestone, LLC, and that said instrument was signed on behalf of
said limited liability company; and that the said Richard W. Hurd and ________________as such
officers, acknowledged the execution of said instrument to be the voluntary act and deed of said
limited liability company, by them voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature Page to Agreement for Private Development – Hurd Kettlestone, LLC]
Exhibit A-1
EXHIBIT A
LEGAL DESCRIPTION
The Development Property is described as follows:
Lot 1 in Hurd Kettlestone, an Official Plat in the City of Waukee, Dallas County, Iowa.
Exhibit B
EXHIBIT B
MINIMUM IMPROVEMENTS
Minimum Improvements shall mean the construction of a 185,000 square foot commercial
building. The construction of the Minimum Improvements is expected to be completed by June 1,
2020. Construction costs for the Minimum Improvements are expected to be no less than
$20,000,000. The increased value after construction of all of the Minimum Improvements for the
purpose of this Agreement is required to be at least $18,500,000 pursuant to the Minimum
Assessment Agreement entered into by and among the City, Developer and the Dallas County
Assessor.
A site plan depicting the Minimum Improvements is attached as Exhibit B-1.
Exhibit B-1
EXHIBIT B-1
SITE PLAN
Exhibit C-1
EXHIBIT C
CERTIFICATE OF COMPLETION
WHEREAS, the City of Waukee, Iowa (the "City") and Hurd Kettlestone, LLC (the "Developer")
did on or about the _____ day of ____________________, ____, make, execute and deliver, each to the
other, an Agreement for Private Development (the "Agreement"), wherein and whereby the Developer
agreed, in accordance with the terms of the Agreement, to develop and maintain certain real property
located within the City and as more particularly described as follows:
Lot 1 in Hurd Kettlestone, an Official Plat in the 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
Minimum Improvements (as defined therein) in accordance with the Agreement; and
WHEREAS, Developer has to the present date performed said covenants and conditions insofar as
they relate to the construction of said Minimum Improvements in a manner deemed by the City to be in
conformance with the Agreement to permit the execution and recording of this certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement with
respect to the obligations of Developer and its successors and assigns, to construct the Minimum
Improvements on the Development Property have been completed and performed by Developer and are
hereby released absolutely and forever terminated insofar as they apply to the land described herein. The
County Recorder of Dallas County is hereby authorized to accept for recording and to record the filing of
this instrument, to be a conclusive determination of the satisfactory termination of the covenants and
conditions of said Agreement with respect to the construction of the Minimum Improvements on the
Development Property.
Exhibit C-2
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
ATTEST: William F. Peard, Mayor
By: ______________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 20___, before me a Notary Public in and
for said State, personally appeared William F. Peard and Becky Schuett, to me personally known, who
being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee,
Iowa, a Municipality created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipality, and that said instrument was signed and sealed
on behalf of said Municipality by authority and resolution of its City Council, and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily
executed.
__________________________________
Notary Public in and for the State of Iowa
Draft Version Exhibit D
EXHIBIT D
MEMORANDUM OF AGREEMENT
Type of Document: MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
BETWEEN THE CITY OF WAUKEE AND HURD KETTLESTONE, LLC
Return Document to: City Administrator
City of Waukee
230 W. Hickman Road,
Waukee, Iowa 50263
Preparer Information: Nathan J. Overberg
Ahlers & Cooney, P.C.
100 Court Ave., Ste. #600
Des Moines, IA 50309
(515) 243-7611
Taxpayer Information: N/A
GRANTORS: N/A
GRANTEES: N/A
LEGAL DESCRIPTION: Lot 1 in Hurd Kettlestone, an Official Plat in the City of Waukee, Dallas County,
Iowa
Exhibit D-1
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Waukee, Iowa (the "City") and Hurd Kettlestone, LLC, an Iowa limited
liability company ("Developer"), did on or about the _____ day of _______________, 2019, make,
execute and deliver, each to the other, an Agreement for Private Development (the "Agreement"), wherein
and whereby Developer agreed, in accordance with the terms of the Agreement and the Gateway
Economic Development Urban Renewal Plan (the "Plan"), to develop and operate certain real property
located within the City and within the Gateway Economic Development Urban Renewal Area.
The Development Property is described as follows:
Lot 1 in Hurd Kettlestone, an Official Plat in the City of Waukee, Dallas County, Iowa
(the "Development Property"); and
WHEREAS, the term of the Agreement commenced on __________, 2019 and terminates on
December 31, 2030, unless otherwise terminated as set forth in the Agreement; and
WHEREAS, the City and Developer desire to record a Memorandum of the Agreement referring
to the Development Property and their respective interests therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. That the recording of this Memorandum of Agreement for Private Development shall serve
as notice to the public that the Agreement contains provisions restricting development and use of the
Development Property and the improvements located and operated on such Development Property.
2. That all of the provisions of the Agreement and any subsequent amendments thereto, if
any, even though not set forth herein, are by the filing of this Memorandum of Agreement for Private
Development made a part hereof by reference, and that anyone making any claim against any of said
Development Property in any manner whatsoever shall be fully advised as to all of the terms and
conditions of the Agreement, and any amendments thereto, as if the same were fully set forth herein.
3. That a copy of the Agreement and any subsequent amendments thereto, if any, shall be
maintained on file for public inspection during ordinary business hours in the office of the City Clerk,
Waukee, Iowa.
IN WITNESS WHEREOF, the City and Developer have executed this Memorandum of
Agreement for Private Development on the ______ day of ___________________, 2019.
[Signatures Start on Next Page]
Exhibit D-2
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
William F. Peard, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 2019, before me a Notary Public in and
for said State, personally appeared William F. Peard and Becky Schuett, to me personally known, who
being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee,
Iowa, a Municipality created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipality, and that said instrument was signed and sealed
on behalf of said Municipality by authority and resolution of its City Council, and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily
executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature Page to Memorandum of Agreement – City of Waukee]
Exhibit D-3
HURD KETTLESTONE, LLC
By ______________________________
Richard W. Hurd, Manager
ATTEST:
By: _____________________________
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2019, before me the undersigned, a Notary Public in
and for said State, personally appeared Richard W. Hurd and______________, to me personally known,
who, being by me duly sworn, did say that they are the Manager and ________________ of Hurd
Kettlestone, LLC, and that said instrument was signed on behalf of said limited liability company; and
that the said Richard W. Hurd and_____________, as such officers, acknowledged the execution of said
instrument to be the voluntary act and deed of said limited liability company, by them voluntarily
executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature Page to Memorandum of Agreement – Hurd Kettlestone, LLC]
Exhibit E-1
EXHIBIT E
MINIMUM ASSESSMENT AGREEMENT
Type of Document: MINIMUM ASSESSMENT AGREEMENT BETWEEN THE CITY
OF WAUKEE AND HURD KETTLESTONE, LLC
Return Document to: City Administrator
City of Waukee
230 W. Hickman Road,
Waukee, Iowa 50263
Preparer Information: Nathan J. Overberg
Ahlers & Cooney, P.C.
100 Court Ave., Ste. #600
Des Moines, IA 50309
(515) 243-7611
Taxpayer Information: N/A
GRANTORS: N/A
GRANTEES: N/A
LEGAL DESCRIPTION:Lot 1 in Hurd Kettlestone, an Official Plat in the City of Waukee, Dallas
County, Iowa
Exhibit E-2
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENT AGREEMENT ("Minimum Assessment Agreement"
or "Assessment Agreement"), is dated as of _____________, 2019, by and between the City of
Waukee, Iowa (the "City"), a municipal corporation established pursuant to the Code of Iowa
and acting under the authorization of Chapter 403 of the Code of Iowa, 2017, as amended (the
"Urban Renewal Act"), and Chapter 15A, and Hurd Kettlestone, LLC, an Iowa limited liability
company having an office for the transaction of business at2000 Fuller Road, West Des
Moines, Iowa 50265 ("Developer").
WITNESSETH:
WHEREAS, the City and Developer have entered into an Agreement for Private
Development dated as of _________________, 2019 ("Development Agreement" or
"Agreement") regarding certain real property located in the City which is legally described as
follows ("Development Property"):
Lot 1 in Hurd Kettlestone, an Official Plat in the City of Waukee, Dallas County, Iowa
WHEREAS, the defined terms in the Development Agreement will also apply to this
Minimum Assessment Agreement; and
WHEREAS, it is contemplated that Developer will undertake the construction of
Minimum Improvements (as defined in the Development Agreement) on the Development
Property, as provided in the Development Agreement; and
WHEREAS, pursuant to Section 403.6(19) of the Code of Iowa, as amended, the City
and Developer desire to establish a minimum actual value for the Minimum Improvements to
be constructed on the Development Property by Developer pursuant to the Development
Agreement; and
WHEREAS, the City and the Assessor for the County have reviewed the preliminary
plans and specifications for the Minimum Improvements that are contemplated to be
constructed.
NOW, THEREFORE, the parties to this Developer's Minimum Assessment Agreement,
in consideration of the promises, covenants and agreements made by each other, do hereby
agree as follows:
1. Upon completion of construction of the above-referenced Minimum
Improvements, but no later than January 1, 2021, the minimum actual value which shall be
fixed for assessment purposes for the Minimum Improvements (land and building value) to be
constructed on the Development Property shall be not less than Eighteen Million Five Hundred
Exhibit E-3
Thousand Dollars ($18,500,000) (hereafter referred to as the "Minimum Actual Value"). The
Minimum Actual Value is the value before commercial rollback.
The Minimum Actual Value shall continue to be effective until the earlier of: (a) January
1, 2030, or (b) the date the City certifies in writing that it has received tax increment
reimbursement for all costs (including but not limited to any debt service on bonds or other
obligations incurred to pay said costs) incurred by the City in support of the Public
Improvements (the "Assessment Agreement Termination Date"). The Minimum Actual Value
shall be maintained during such period regardless of: (a) any failure to complete the Minimum
Improvements; (b) destruction of all or any portion of the Minimum Improvements; (c)
diminution in value of the Development Property or the Minimum Improvements; or (d) any
other circumstance, whether known or unknown and whether now existing or hereafter
occurring.
2. 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 and the
Minimum Improvements pursuant to the provisions of this Minimum Assessment Agreement
and the Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Development Property or the Minimum Improvements, any
interruption in, or discontinuance of, the use, occupancy, ownership or operation of the
Development Property or the Minimum Improvements by Developer, or any other matter or
thing which for any reason interferes with, prevents or renders burdensome the use or
occupancy of the Development Property or the Minimum Improvements.
3. Developer agrees that, prior to the Assessment Termination Date, it will not:
a. seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of property contained as
a part of the Development Property or the Minimum Improvements determined by any
tax official to be applicable to the Development Property, or raise the inapplicability or
constitutionality of any such tax statute as a defense in any proceedings, including
delinquent tax proceedings; or
b. seek any tax deferral or abatement, either presently or prospectively
authorized under Iowa Code Chapter 403 or 404, or any other local or State law, of the
taxation of real property, including improvements and fixtures thereon, contained in the
Development Property or the Minimum Improvements between the date of execution of
this Agreement and the Assessment Termination Date; or
c. request the Assessor to reduce the Minimum Actual Value; or
d. appeal to the board of review of the County, State, District Court or to the
Director of Revenue of the State to reduce the Minimum Actual Value; or
Exhibit E-4
e. cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings
4. This Minimum Assessment Agreement shall be promptly recorded by the City
with the Recorder of Dallas County, Iowa. Such filing shall constitute notice to any subsequent
purchaser or encumbrancer of the Development Property (or part thereof), whether voluntary or
involuntary, and this Minimum Assessment Agreement shall be binding and enforceable in its
entirety against any such subsequent purchaser or encumbrancer, including the holder of any
mortgage. The City shall pay all costs of recording.
5. Neither the preambles nor provisions of this Minimum Assessment Agreement
are intended to, or shall be construed as, modifying the terms of the Development Agreement.
6. This Minimum Assessment Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors and
permitted assigns.
7. Nothing herein shall be deemed to waive the rights of Developer under Iowa
Code Section 403.6(19) to contest that portion of any actual value assignment made by the
Assessor in excess of the Minimum Actual Value established herein. In no event, however,
shall Developer seek to reduce the actual value to an amount below the Minimum Actual Value
established herein during the term of this Agreement. This Minimum Assessment Agreement
may be amended or modified and any of its terms, covenants, representations, warranties or
conditions waived, only by a written instrument executed by the parties hereto, or in the case of
a waiver, by the party waiving compliance.
8. If any term, condition or provision of this Minimum Assessment Agreement is
for any reason held to be illegal, invalid or inoperable, such illegality, invalidity or
inoperability shall not affect the remainder hereof, which shall at the time be construed and
enforced as if such illegal or invalid or inoperable portion were not contained herein.
9. The Minimum Actual Value herein established shall be of no further force and
effect and this Minimum Assessment Agreement shall terminate on the Assessment Agreement
Termination Date set forth in Section 1 above.
10. Developer has provided a title opinion or lien or title search/certificate to City
listing all lienholders of record as of the date of this Assessment Agreement and all such
lienholders have signed a consent to this Assessment Agreement substantially in the form of
the Lienholder Consent set forth in this Exhibit E, which consents are attached hereto and made
a part hereof.
[Signatures Start on Next Page]
Exhibit E-5
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
William P. Peard, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 2019, before me a Notary Public
in and for said State, personally appeared William F. Peard and Becky Schuett, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the
City of Waukee, Iowa, a Municipality created and existing under the laws of the State of Iowa,
and that the seal affixed to the foregoing instrument is the seal of said Municipality, and that said
instrument was signed and sealed on behalf of said Municipality by authority and resolution of its
City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and
deed of said Municipality by it voluntarily executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature Page to Minimum Assessment Agreement – City of Waukee]
Exhibit E-6
HURD KETTLESTONE, LLC
By ______________________________
Richard Hurd, Manager
ATTEST:
By: _____________________________
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2019, before me the undersigned, a Notary
Public in and for said State, personally appeared Richard Hurd and _____________________, to
me personally known, who, being by me duly sworn, did say that they are the Manger and
________________ of Hurd Kettlestone, LLC, and that said instrument was signed on behalf of
said limited liability company; and that the said Richard Hurd and _____________________, as
such officers, acknowledged the execution of said instrument to be the voluntary act and deed of
said limited liability company, by them voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature Page to Minimum Assessment of Agreement – Hurd Kettlestone, LLC]
Exhibit E-7
LIENHOLDER CONSENT
In consideration of one dollar and other valuable consideration, the receipt of which is
hereby acknowledged, and notwithstanding anything in any loan or security agreement to the
contrary, the undersigned ratifies, approves, consents to and confirms the Minimum Assessment
Agreement entered into between the parties, and agrees to be bound by its terms and subordinates
any previously acquired mortgage, lien or other interest in the Development Property to the City
of Waukee, Iowa. This provision shall be binding on the parties and their respective successors
and assigns.
_________________________________
Name of Lienholder
By: ______________________________
Signature
By: ______________________________
Signature
______________________________
Date
STATE OF IOWA )
) SS
COUNTY OF __________ )
On this _____ day of __________________, 2019, before me the undersigned, a Notary
Public in and for said County, in said State, personally appeared _________________________
and ______________________, to me personally known, who, being by me duly sworn, did say
that they are the __________________ and ______________________ of
______________________________ and that said instrument was signed on behalf of said
company, and that the said acknowledged the execution of said instrument to be the voluntary
act and deed of said domestic company, by them voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
Exhibit E-8
EXHIBIT E (Cont.)
CERTIFICATION OF DALLAS COUNTY ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements already constructed or to be constructed and the market value assigned to the land
upon which the Minimum Improvements are constructed, and being of the opinion that the
minimum market value contained in the foregoing Minimum Assessment Agreement appears
reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible for
the assessment of the Development Property described in the foregoing Minimum Assessment
Agreement, certifies that the actual value assigned to the land and improvements located in
Dallas County upon completion, but no later than January 1, 2021, shall be at least Eighteen
Million Five Hundred Thousand Dollars ($18,500,000) until the Assessment Agreement
Termination Date contained in Section 1 of the Assessment Agreement. The Minimum Actual
Value is the value before commercial rollback.
____________________________________
Assessor for the County of Dallas, Iowa
______________________________
Date
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
Subscribed and sworn to before me by ________________________, Assessor for the County
of Dallas, Iowa on this _____ day of ____________________, 2019.
________________________________
Notary Public for the State of Iowa
Exhibit E-9
Consistent with Iowa Code §403.6(19)(b), filed with this assessor certification is a copy of
subsection 19 as follows:
19. a. A municipality, upon entering into a development or redevelopment agreement pursuant to section 403.8, subsection 1, or
as otherwise permitted in this chapter, may enter into a written assessment agreement with the developer of taxable property in
the urban renewal area which establishes a minimum actual value of the land and completed improvements to be made on the
land until a specified termination date which shall not be later than the date after which the tax increment will no longer be
remitted to the municipality pursuant to section 403.19, subsection 2. The assessment agreement shall be presented to the
appropriate assessor. The assessor shall review the plans and specifications for the improvements to be made and if the minimum
actual value contained in the assessment agreement appears to be reasonable, the assessor shall execute the following certification
upon the agreement:
The undersigned assessor, being legally responsible for the assessment of the above described property upon completion of the
improvements to be made on it, certifies that the actual value assigned to that land and improvements upon completion shall not
be less than $ .........
b. This assessment agreement with the certification of the assessor and a copy of this subsection shall be filed in the office of the
county recorder of the county where the property is located. Upon completion of the improvements, the assessor shall value the
property as required by law, except that the actual value shall not be less than the minimum actual value contained in the
assessment agreement. This subsection does not prohibit the assessor from assigning a higher actual value to the property or
prohibit the owner from seeking administrative or legal remedies to reduce the actual value assigned except that the actual value
shall not be reduced below the minimum actual value contained in the assessment agreement. An assessor, county auditor, board
of review, director of revenue, or court of this state shall not reduce or order the reduction of the actual value below the minimum
actual value in the agreement during the term of the agreement regardless of the actual value which may result from the
incomplete construction of improvements, destruction or diminution by any cause, insured or uninsured, except in the case of
acquisition or reacquisition of the property by a public entity. Recording of an assessment agreement complying with this
subsection constitutes notice of the assessment agreement to a subsequent purchaser or encumbrancer of the land or any part of it,
whether voluntary or involuntary, and is binding upon a subsequent purchaser or encumbrancer.