Loading...
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. Execution Version Page 3 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). Execution Version Page 4 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. Execution Version Page 5 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 Execution Version Page 6 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 Execution Version Page 7 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 Execution Version Page 8 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. Execution Version Page 9 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 Execution Version Page 10 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 Execution Version Page 11 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)). Execution Version Page 12 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 Execution Version Page 13 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.