HomeMy WebLinkAbout2018-02-05-I02 Deery Development Agreement_PH AGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: February 5, 2018
AGENDA ITEM: Public hearing on a proposal to enter into a Development Agreement
with Deery, Deery & Deery, LLC and Fred Rose, L.C.
FORMAT: Public Hearing
SYNOPSIS INCLUDING PRO & CON: Deery Brothers has proposed the development of a
new car dealership as well as additional ground for a commercial
development to be located at the corner of 10th Street and Hickman Road.
As a part of the development, the Developer is responsible for the cost of
improving ½ of 10th Street adjacent to the property. Today 10th Street
exists as an asphalt road approximately 20 feet in width and serves
several single family homes.
The proposed development agreement would require Deery Brothers to
construct the full width of 10th Street adjacent to their property including
full intersection improvements. It is intended that over the next several
years, 10th Street will continue to be extended south eventually
connecting into Ute Avenue.
Deery Brothers has indicated that the cost of the associated
improvements is in the amount of $950,000. The proposed development
agreement would allow for reimbursement of the costs associated with
the 10th Street improvements up to a maximum of $950,000. The
reimbursement would be made based upon taxes generated from the
property over the next seven years. The City’s requirement for
reimbursement would end either at such time as the costs are fully
reimbursed or a period of seven years, whichever should first occur.
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. The proposed improvements would otherwise need to be
made by the City in the future.
RECOMMENDATION: Hold the Public Hearing
ATTACHMENTS: I. Proposed Development Agreement
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PREPARED BY: Brad Deets
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION: Dallas County News
DATE OF PUBLICATION: 1/18/18
Execution Version
AGREEMENT FOR PRIVATE DEVELOPMENT
By and between
CITY OF WAUKEE, IOWA
AND
DEERY, DEERY & DEERY, LLC
AND
FRED ROSE, L.C.
___________ _____, 2018
Execution Version 1
AGREEMENT
FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT FOR PRIVATE DEVELOPMENT (“Agreement”), is made on or as
of the ____ day of ___________, 2018, 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, 2017, as amended (“Urban Renewal
Act”), DEERY, DEERY & DEERY, LLC, an Iowa limited liability company having offices for
the transaction of business at 7404 University Avenue, Cedar Falls, Iowa 50613 (“Retailer”), and
FRED ROSE, L.C., an Iowa limited liability company having offices for the transaction of
business at 7103 Chancellor Drive, Suite 100, Cedar Falls, Iowa 50613 (“Developer”). The City,
Retailer, and Developer are Parties to this Agreement.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has
undertaken a program for the development of an economic development area in the City and, in
this connection, is engaged in carrying out urban renewal project activities in an area known as the
Waukee Central Urban Renewal Area (the “Urban Renewal Area”), which is described in the
Urban Renewal Plan originally approved for such area by Resolution No. 17-484, adopted October
16, 2017, and amended in 2018; and
WHEREAS, a copy of the foregoing Urban Renewal Plan has been recorded among the
land records in the office of the Recorder of Dallas County, Iowa; and
WHEREAS, Retailer owns certain real property located in the foregoing Urban Renewal
Area as more particularly described in Exhibit A attached hereto and made a part hereof
(“Development Property”); and
WHEREAS, Developer shall build Minimum Improvements on the Development Property;
and
WHEREAS, Developer shall build certain Public Improvements which benefit, among
other things, the Development Property; and which, upon acceptance by the City, shall be
dedicated to the City; and
WHEREAS, Retailer shall operate its business at the Minimum Improvements and hire and
retain employees at the Minimum Improvements; and
WHEREAS, the City believes that the development of the Development Property pursuant
to this Agreement and the fulfillment of this Agreement are in the vital and best interests of the
City and in accord with the public purposes and provisions of the applicable State and local laws
and requirements under which the foregoing project has been undertaken and is being assisted.
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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.
Certificate of Completion means a certification in the form of the certificate attached hereto
as Exhibits C-1 or C-2 and hereby made a part of this Agreement.
City means the City of Waukee, Iowa, or any successor to its functions.
Code means the Code of Iowa, 2017, as amended.
Commencement Date means the date of this Agreement.
Construction Plans means the plans, specifications, drawings, and related documents
reflecting the construction work to be performed by the Developer on the Development Property;
the Construction Plans shall be as detailed as the plans, specifications, drawings, and related
documents which are submitted to the building inspector of the City as required by applicable City
codes.
Deery, Deery & Deery, LLC TIF Account means a separate account within the Waukee
Central Urban Renewal Tax Increment Revenue Fund of the City in which Tax Increments
received by the City with respect to the Development Property shall be deposited.
Developer means Fred Rose, L.C., an Iowa limited liability company also doing business
under the name of The Rose Companies, and each assignee that assumes in writing all of the
obligations of the Developer under this Agreement with the written consent of the City as provided
in Section 6.1 of this Agreement.
Development Property means that portion of the Waukee Central Urban Renewal Area
described in Exhibit A.
Economic Development Grants means the payments to be made by the City to Retailer
under Article VII of this Agreement.
Event of Default means any of the events described in Section 9.1 of this Agreement that
have continued beyond applicable notice and cure periods.
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Indemnified Parties means the City and the governing body members, officers, agents,
servants and employees thereof.
Minimum Improvements means the construction of an approximately 38,975 square foot
building and paved lot, as more particularly described in Exhibits B-1 and B-2 to this Agreement.
Mortgage means any mortgage or security agreement in which Retailer has granted a
mortgage or other security interest in the Development Property, or any portion or parcel thereof,
or any improvements constructed thereon.
Ordinance means an Ordinance of the City, under which the taxes levied on taxable
property in the Development Property shall be divided and a portion paid into the Waukee Central
Urban Renewal Tax Increment Revenue Fund.
Project means the construction of the Minimum Improvements and the Public
Improvements on the Development Property as described in this Agreement.
Public Improvements means mean the construction of a street to be completed by the
Developer as part of the Project, as detailed in Exhibits B-1 and B-2 attached to this Agreement.
Public Improvement Costs means the costs and expenses related to the design and
construction of the Public Improvements, and landscaping, grading, drainage, engineering, plans,
and specifications related to those improvements, as more particularly described herein and
within the right-of-way to be dedicated to the City.
Retailer means Deery, Deery & Deery, LLC, an Iowa limited liability company, and each
assignee that assumes in writing all of the obligations of the Retailer under this Agreement with
the written consent of the City as provided in Section 6.1 of this Agreement.
Tax Increments means the property tax revenues on the Development Property divided and
made available to the City for deposit in the Deery, Deery & Deery, LLC TIF Account of the
Waukee Central Urban Renewal Tax Increment Revenue Fund under the provisions of Section
403.19 of the Code, as amended, and the Ordinance.
Termination Date means the date of termination of this Agreement, as established in
Section 10.8 of this Agreement.
Unavoidable Delays means delays resulting from acts or occurrences outside the
reasonable control of the party claiming the delay including but not limited to storms, floods, fires,
explosions, or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts, or
other labor disputes, delays in transportation or delivery of material or equipment, litigation
commenced by third parties, or the acts of any federal, State, or local governmental unit (other
than the City, with respect to a City-claimed delay).
Urban Renewal Area means the area known as the Waukee Central Urban Renewal Area.
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Urban Renewal Plan means the Urban Renewal Plan, as amended, approved with respect
to the Waukee Central Urban Renewal Area, described in the preambles hereof.
Waukee Central Urban Renewal Tax Increment Revenue Fund means the special fund of
the City created under the authority of Section 403.19(2) of the Code and the Ordinance, which
fund will be created in order to pay the principal of and interest on loans, monies advanced to or
indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other
obligations issued under the authority of Chapters 15A, 403, or 384 of the Code, incurred by the
City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal
Plan for the Urban Renewal Area.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the City. The City makes the following
representations and warranties:
a. The City is a municipal corporation and municipality organized under the
provisions of the Constitution and the laws of the State and has the power to enter into this
Agreement and carry out its obligations hereunder.
b. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a breach
of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness,
agreement, or instrument of whatever nature to which the City is now a party or by which it is
bound, nor do they constitute a default under any of the foregoing.
c. All covenants, stipulations, promises, agreements, and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and
obligations of the City, and not of any governing body member, officer, agent, servant, or
employee of the City in the individual capacity thereof.
Section 2.2. Representations and Warranties of Retailer. Retailer makes the following
representations and warranties:
a. The Retailer 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
Retailer and, assuming due authorization, execution, and delivery by the City and Developer, is in
full force and effect and is a valid and legally binding instrument of Retailer 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.
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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 Retailer
or of any contractual restriction, evidence of indebtedness, agreement, or instrument of whatever
nature to which Retailer 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 Retailer 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 Retailer
or which in any manner raises any questions affecting the validity of the Agreement or Retailer's
ability to perform its obligations under this Agreement.
e. Retailer has not received any notice from any local, State, or federal official that
the activities of Retailer or Developer with respect to the Development Property may or will be in
violation of any environmental law or regulation (other than those notices, if any, of which the
City has previously been notified in writing). Retailer is not currently aware of any State or federal
claim filed or planned to be filed by any party relating to any violation of any local, State, or federal
environmental law, regulation, or review procedure applicable to the Development Property, and
Retailer 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. Retailer shall cooperate with the City in resolution of any traffic, parking, trash
removal, or public safety problems which may arise in connection with operation of the Minimum
Improvements.
g. Retailer will occupy the Minimum Improvements on the Development Property and
maintain its business operations and add and retain employees at the Minimum Improvements until
at least the Termination Date.
h. Retailer shall dedicate (1) the Public Improvements and (2) all rights-of-way in the
Development Property, if any, to the City upon acceptance by the City, at no cost to the City.
i. Retailer would not undertake its obligations under this Agreement without the
payment of the Economic Development Grants being made to Retailer by the City pursuant to this
Agreement.
Section 2.3. Representations and Warranties of Developer. Developer makes the
following representations and warranties:
a. Developer is an Iowa limited liability company, duly organized and validly existing
under the laws of the State of Iowa, and it has all requisite power and authority to own and operate
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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 and Retailer, is in
full force and effect and is a valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting creditors’ rights generally.
c. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a
violation or breach of, the terms, conditions, or provisions of the governing documents of
Developer or of any contractual restriction, evidence of indebtedness, agreement, or instrument of
whatever nature to which Developer is now a party or by which it or its property is bound, nor do
they constitute a default under any of the foregoing.
d. There are no actions, suits, or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental body
in which there is a reasonable possibility of an adverse decision which could materially adversely
affect the business (present or prospective), financial position, or results of operations of Developer
or which in any manner raises any questions affecting the validity of the Agreement or Developer’s
ability to perform its obligations under this Agreement.
e. Developer has not received any notice from any local, State, or federal official that
the activities of Developer or Retailer with respect to the Development Property may or will be in
violation of any environmental law or regulation (other than those notices, if any, of which the
City has previously been notified in writing). Developer is not currently aware of any State or
federal claim filed or planned to be filed by any party relating to any violation of any local, State,
or federal environmental law, regulation, or review procedure applicable to the Development
Property, and Developer is not currently aware of any violation of any local, State, or federal
environmental law, regulation, or review procedure which would give any person a valid claim
under any State or federal environmental statute with respect thereto.
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 of the
Minimum Improvements and Public Improvements.
g. Developer shall cause the Minimum Improvements and Public Improvements to be
constructed in accordance with the terms of this Agreement, the Urban Renewal Plan, and all local,
State, and federal laws and regulations.
h. Developer shall obtain or cause to be obtained, in a timely manner, all required
permits, licenses, and approvals, and shall meet, in a timely manner, all requirements of all
applicable local, State, and federal laws and regulations which must be obtained or met before the
Minimum Improvements or Public Improvements, as applicable, may be lawfully constructed.
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i. The construction of the Minimum Improvements will require a total investment of
not less than $6,500,000.
j. Developer expects that, barring Unavoidable Delays, the Minimum Improvements
will be completed by January 31, 2019.
k. The construction of the Public Improvements will require a total investment of
approximately $950,000.
l. Developer expects that, barring Unavoidable Delays, the Public Improvements will
be completed by October 1, 2018.
m. 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 and Public Improvements in accordance with
the Construction Plans contemplated in this Agreement.
n. Developer would not undertake its obligations under this Agreement without the
payment by the City of the Economic Development Grants being made to Retailer pursuant to this
Agreement.
ARTICLE III. CONSTRUCTION OF IMPROVEMENTS
Section 3.1. Construction of Minimum Improvements and Public Improvements.
Developer agrees that it will cause the Minimum Improvements and the Public Improvements to
be constructed on the Development Property in conformance with the Construction Plans
submitted to the City in accordance with Section 3.2 below. Developer agrees that the scope and
scale of the Minimum Improvements and the Public Improvements to be constructed shall not be
significantly less than the scope and scale as detailed and outlined in the Construction Plans, the
construction of which is anticipated to require a total investment of not less than $6,500,000 for
Minimum Improvements and approximately $950,000 for Public Improvements.
Section 3.2. Construction Plans. Developer shall cause Construction Plans to be developed
for the Minimum Improvements and the Public 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 the Public 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
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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
for the Minimum Improvements, 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 or Public Improvements as constructed.
Section 3.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, Developer shall cause construction of the Minimum Improvements and the Public
Improvements to be undertaken and completed: (i) by no later than October 1, 2018, with respect
to the Public Improvements and no later than January 31, 2019, with respect to the Minimum
Improvements; 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 and Public 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 and Retailer agree that they shall permit designated representatives of the City,
upon reasonable notice (which does not have to be written), to enter upon the Development
Property during the construction of the Minimum Improvements and the Public Improvements to
inspect such construction and the progress thereof, subject to Developer's rules and regulations for
the construction site.
Section 3.4. Certificates of Completion.
a. Within fifteen (15) business days after written request by Developer and after
issuance of an occupancy permit for the Minimum Improvements, the City shall furnish Developer
with a Certificate of Completion for the Minimum Improvements in recordable form, in
substantially the form set forth in Exhibit C-1 attached hereto. Such Certificate of Completion
shall be a conclusive determination of satisfactory termination of the covenants and conditions of
this Agreement with respect to the obligations of Developer to cause construction of the Minimum
Improvements.
b. Within fifteen (15) business days after written request by Developer, the City shall
furnish Developer with a Certificate of Completion for the Public Improvements in recordable
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form, in substantially the form set forth in Exhibit C-2 attached hereto. Such Certificate of
Completion shall be a conclusive determination of satisfactory termination of the covenants and
conditions of this Agreement with respect to the obligations of Developer to cause construction of
the Public Improvements.
c. If the City shall refuse or fail to provide a Certificate of Completion in accordance
with the provisions of this Section 3.4, the City shall, within such fifteen (15) business day period,
instead provide a written statement indicating in what respects Developer has failed to complete
the Minimum Improvements or Public Improvements, as applicable, in accordance with the
provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and
what measures or acts it will be necessary, in the opinion of the City, for Developer to take or
perform in order to obtain such Certificate of Completion.
d. The Certificates of Completion may be recorded in the Dallas County Recorder's
Office at Developer's sole expense.
Section 3.5. Dedication of Public Improvements. Upon notice of completion of the
Public Improvements, the City shall inspect the Public Improvements and determine whether they
have been completed in accordance with this Agreement. If the City finds that the Public
Improvements have been duly completed in compliance with this Agreement and all City
ordinances, policies, and procedures, and the City approves the Public Improvements, the Retailer
shall dedicate the Public Improvements to the City and the City shall accept said dedication, at no
cost to the City. If the City determines that the Public Improvements are not acceptable, it shall
notify the Developer and Retailer in the same manner as refusal to provide a Certificate of
Completion as described in Section 3.4(c).
Section 3.6. No Special Legal Entitlements to Public Improvements.
a. Developer and Retailer recognize and agree that upon dedication to the City the
Public Improvements shall be owned and maintained by the City and that nothing in this
Agreement grants Developer or Retailer any special legal entitlements or other rights not held by
members of the general public with respect to ownership, maintenance, or use of the Public
Improvements.
b. The Parties agree that the City and other Indemnified Parties are not responsible for
and will have no liability to Developer associated with the specifications, design, plans, quality of
construction, or sufficiency of the Public Improvements for any particular purpose.
Section 3.7. Bonding Requirements. Developer shall obtain, or require each of its general
contractors to obtain, one or more bonds that guarantee the faithful performance of this Agreement
for, in the aggregate, the anticipated full value of the completed Public Improvements and that
further guarantee the prompt payment of all materials and labor. The performance bond(s) for a
given Project of the Public Improvements shall remain in effect until construction of such Public
Improvements is completed, at which time a four-year maintenance bond shall be substituted for
each performance bond. The bonds shall clearly specify the Developer and City as joint obligees.
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The Developer shall also comply with all City requirements for the construction of the Public
Improvements.
ARTICLE IV. INSURANCE
Section 4.1. Insurance Requirements.
a. Developer and/or Retailer will provide and maintain or cause to be maintained at
all times during the process of constructing the Minimum Improvements and Public Improvements
(and, from time to time at the request of the City, furnish the City with proof of coverage or
payment of premiums on):
i. Builder’s risk insurance, written on the so-called “Builder’s Risk–
Completed Value Basis,” in an amount equal to the full replacement cost of the Minimum
Improvements, and with coverage available in non-reporting form on the so-called “all risk” form
of policy.
ii. Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations, and contractual liability
insurance) with limits against bodily injury and property damage of at least $1,000,000 for each
occurrence. The City shall be named as an additional insured for the City’s liability or loss arising
out of or in any way associated with the project and arising out of any act, error, or omission of
Developer, or either entity’s directors, officers, shareholders, contractors, and subcontractors or
anyone else for whose acts the City may be held responsible (with coverage to the City at least as
broad as that which is provided to Developer and not lessened or avoided by endorsement). The
policy shall contain a “severability of interests” clause and provide primary insurance over any
other insurance maintained by the City.
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, Retailer and/or Developer shall maintain or cause to be maintained,
at its cost and expense (and from time to time at the request of the City shall furnish proof of
coverage or the payment of premiums on), insurance as follows:
i. Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar businesses,
including (without limitation the generality of the foregoing) fire, extended coverage, vandalism
and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse
in an amount not less than the full insurable replacement value of the Minimum Improvements,
but any such policy may have a deductible amount of not more than $50,000. No policy of
insurance shall be so written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the City. The term “full insurable replacement
value” shall mean the actual replacement cost of the Minimum Improvements (excluding
foundation and excavation costs and costs of underground flues, pipes, drains, and other
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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 Retailer 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 Retailer, in such amount as is customarily carried by like organizations
engaged in like activities of comparable size and liability exposure; provided that Retailer may be
self-insured with respect to all or any part of its liability for workers’ compensation.
c. All insurance required by this Article IV to be provided prior to the Termination
Date shall be taken out and maintained in responsible insurance companies selected by Developer
or Retailer, as applicable, which are authorized under the laws of the State to assume the risks
covered thereby. Developer and Retailer, each for themselves, 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 IV, each policy shall contain a provision that the insurer shall not cancel it without
giving written notice to Developer or Retailer, as applicable, and the City at least thirty (30) days
(ten (10) days in the case of non-payment of premium) before the cancellation becomes effective.
Within ten (10) days of being notified of any modification to 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,
the Developer or Retailer, as applicable, will provide written notice to the City of the modification.
Within fifteen (15) days after the expiration of any policy, Developer or Retailer, as applicable,
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 IV, or that there is no necessity
therefor under the terms hereof. In lieu of separate policies, Developer or Retailer, as applicable,
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 or Retailer 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 and Retailer, at such time as each party has possession and control of
the Development Property, agree 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 or Retailer (as applicable to the specific policy), and Developer or Retailer, as
applicable, will forthwith repair, reconstruct, and restore the Minimum Improvements to
substantially the same or an improved condition or value as they existed prior to the event causing
such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration,
Developer or Retailer will apply the Net Proceeds of any insurance relating to such damage
received to the payment or reimbursement of the costs thereof.
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e. Developer and Retailer, at such time as each party has possession and control of
the Development Property, shall complete the repair, reconstruction, and restoration of the
Minimum Improvements, whether or not the Net Proceeds of insurance received by Developer
and/or Retailer for such purposes are sufficient.
ARTICLE V. FURTHER COVENANTS OF DEVELOPER AND RETAILER
Section 5.1. Maintenance of Development Property. Developer and Retailer, at such
time as each party has possession and control of the Development Property, will 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 5.2. Maintenance of Records. Developer and Retailer, each for themselves, 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 their business and affairs relating to this
Project, and will provide reasonable protection against loss or damage to such books of record and
account.
Section 5.3. Compliance with Laws/Non-Discrimination. Developer and Retailer, at
such time as each party has possession and control of the Development Property, will comply with
all State, federal, and local laws, rules, and regulations relating to the Minimum Improvements,
Public Improvements, and Development Property. In the construction and operation of the
Minimum Improvements, Developer and Retailer, each for themselves, shall not discriminate
against any applicant, employee or tenant because of age, color, creed, national origin, race,
religion, marital status, sex, physical disability, or familial status. Developer and Retailer, each
for themselves, shall ensure that applicants, employees, and tenants are considered and are treated
without regard to their age, color, creed, national origin, race, religion, marital status, sex, physical
disability, or familial status.
Section 5.4. Available Information. Upon request, Developer and Retailer shall
promptly provide the City with copies of information reasonably requested by City that are related
to this Agreement so that City can determine compliance with the Agreement.
Section 5.5. Employment. Retailer shall employ and retain a total Monthly Average of
at least 35 Full-Time Equivalent Employment Units at the Development Property by at least March
31, 2019, until the Termination Date.
“Full-Time Equivalent Employment Unit” means the employment of one natural person:
1.For 8 hours per day for a 5-day, 40-hour workweek for 52 weeks per year,
including paid holidays, vacations, and other paid leave; or
2.The number of hours or days per week, including paid holidays, vacations, and
other paid leave, currently established by schedule, custom, or otherwise, as
constituting a week of full-time work for the kind of service an individual
performs for an employing unit, provided that the number of hours per week is
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at least 32 hours per week for 52 weeks per year including paid holidays,
vacations, and other paid leave.
“Monthly Average” means the average number of Full-Time Equivalent Employment
Units employed as of October 1 of each year and as of the first day of each of the preceding eleven
(11) months, as shown in the Retailer Annual Certification in Section 5.6 and in Exhibit E.
Section 5.6. Retailer Certifications.
a. Retailer shall certify to the City the date of the first full assessment of the Minimum
Improvements by October 1 of the year in which the Minimum Improvements are fully assessed.
b. Until the Termination Date, Retailer shall annually provide to the City (collectively,
the “Retailer Annual Certification”): (i) proof that all ad valorem taxes on the Development
Property in the Urban Renewal Area have been paid for the prior fiscal year; (ii) the date of the
first full assessment of the Minimum Improvements, the fully assessed value, and the current
assessed value; (iii) certifications of the number of Full-Time Equivalent Employment Units as of
October 1 and as of the first day of each of the preceding eleven (11) months; and (iv) certification
that such officer is familiar with the terms and provisions of this Agreement and that at the date of
such certification, there is no Event of Default by Retailer hereunder, or if the signer is aware of
any such Event of Default, said officer shall disclose in such statement the nature thereof, its period
of existence and what action, if any, has been taken or is proposed to be taken with respect thereto.
Such statements, proof, and certificates shall be provided not later than October 15 of each year,
commencing October 15, 2019, and ending on October 15, 2025, both dates inclusive. Retailer
shall provide supporting information germane to its Retailer Annual Certifications upon request of
the City. See Exhibit E for the form required for the Retailer Annual Certification.
Section 5.7. Developer’s Certification of Public Improvement Costs. Developer shall
certify to the City (the “Developer Certification”) the amount of all Public Improvement Costs
submitted for reimbursement as Economic Development Grants to be paid to the Retailer and shall
certify that such amounts are true and correct. See Exhibit F for the form of Developer
Certification. Such Developer Certification shall be provided not later than October 15 of each
year in which Developer incurs Public Improvement Costs as provided in Section 7.1(a)(iv) of this
Agreement. Along with its Developer Certification, Developer shall attach documentation
showing substantiation of Public Improvement Costs as provided in Section 7.1(a)(iv) of this
Agreement. Developer shall provide additional supporting information for its Developer
Certification upon request of the City.
Section 5.8. Developer Completion Guarantee. By signing this Agreement, Developer
hereby guarantees to the City 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 and Public Improvements. Without limiting the generality of the foregoing,
Developer guarantees that: (a) construction of the Minimum Improvements and Public
Improvements shall be completed generally within the time limits set forth herein; (b) the
Minimum Improvements and Public Improvements shall be constructed and completed in
substantial accordance with the Construction Plans; (c) the Minimum Improvements and Public
Improvements shall be constructed and completed free and clear of any mechanic’s liens,
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materialman’s liens and equitable liens; and (d) all costs of constructing the Minimum
Improvements and Public Improvements shall be paid when due.
ARTICLE VI. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
Section 6.1. Status of Developer and Retailer; Transfer of Substantially All Assets;
Assignment. As security for the obligations of Developer and Retailer under this Agreement,
Developer and Retailer represent and agree that, prior to the Termination Date, Developer and
Retailer will maintain their existence as companies and will not wind up or otherwise dispose of
all or substantially all of their assets or transfer, convey, or assign their interest in the Development
Property (with the exception of right-of-way transferred to the City under this Agreement),
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 and Retailer (as the case may be) under this Agreement; and
(ii) the City consents thereto in writing in advance thereof.
Section 6.2. Prohibition Against Use as Non-Taxable or Centrally Assessed Property.
During the term of this Agreement, Retailer or its successors or assigns, agree that (except with
respect to the dedication of any right of way to the City) the Minimum Improvements and
Development Property cannot be transferred or sold to a non-profit entity or used for a purpose
that would exempt the Development Property or Minimum Improvements from property tax
liability. Nor can the Development Property or Minimum Improvements be used as centrally
assessed property (including but not limited to, Iowa Code § 428.24 to 428.29 (Public Utility Plants
and Related Personal Property); Chapter 433 (Telegraph and Telephone Company Property);
Chapter 434 (Railway Property); Chapter 437 (Electric Transmission Lines); Chapter 437A
(Property Used in the Production, Generation, Transmission or Delivery of Electricity or Natural
Gas); and Chapter 438 (Pipeline Property)).
ARTICLE VII. ECONOMIC DEVELOPMENT GRANTS
Section 7.1. Economic Development Grants.
a.Payment of Economic Development Grants. For and in consideration of the
obligations being assumed by Developer and Retailer hereunder, and in furtherance of the goals
and objectives of the Urban Renewal Plan for the Urban Renewal Area and the Urban Renewal
Act, the City agrees, subject to the Developer and Retailer being and remaining in compliance with
this Agreement at the time of each payment, to make up to seven (7) consecutive annual payments
of Economic Development Grants to the Retailer under the following terms and conditions.
i.Schedule of Grants. Assuming completion of the Minimum Improvements
by January 31, 2019, full assessment of the Minimum Improvements on January 1, 2020, timely
certification of the Public Improvement costs by Developer, and debt certification to the Dallas
County Auditor by the City prior to December 1, 2020, the Economic Development Grants shall
commence on June 1, 2022, and end on June 1, 2026, pursuant to Section 403.19 of the Urban
Renewal Act under the following formula:
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June 1, 2022 100% of Tax Increments for Fiscal Year 21-22
June 1, 2023 100% of Tax Increments for Fiscal Year 22-23
June 1, 2024 100% of Tax Increments for Fiscal Year 23-24
June 1, 2025 100% of Tax Increments for Fiscal Year 24-25
June 1, 2026 100% of Tax Increments for Fiscal Year 25-26
June 1, 2027 100% of Tax Increments for Fiscal Year 26-27
June 1, 2028 100% of Tax Increments for Fiscal Year 27-28
The above schedule of the payments for Economic Development Grants is based on the first full
assessment of the Minimum Improvements being January 1, 2020. If the completion of the
Minimum Improvements is delayed so that the Minimum Improvements are not fully assessed as
of January 1, 2020, then the first Economic Development Grant will not begin as scheduled, but
will be delayed one year. However, in no event shall the schedule of Economic Development
Grants be delayed more than one year, meaning that the latest potential date for Retailer's first
Economic Development Grant, if eligible, is June 1, 2023.
ii.Maximum Amount of Grants. The aggregate amount of the Economic
Development Grants that may be paid to the Retailer under Section 7.1(a) of this Agreement shall
be equal to the sum of the total amount of the applicable percentages of Tax Increments collected
in respect of the assessments imposed on the Development Property, but in no event shall the
aggregate amount of the Economic Development Grants exceed the lesser of: (a) $950,000, or (b)
the aggregate amount of the Public Improvement Costs submitted to and approved by the City as
a part of Developer’s completion of the Public Improvements. It is further agreed and understood
that in no event shall Retailer be entitled to receive more than calculated under the formula set
forth in this Section 7.1(a), even if the aggregate amount is less than $950,000 or the amount of
Public Improvement Costs paid by the Developer.
iii. Limitations. Retailer and Developer acknowledge that each Economic
Development Grant payment to be paid to Retailer according to this Section 7.1(a) is wholly
contingent upon the actual Public Improvement Costs paid by Developer, and payment shall come
solely and only from incremental taxes received by the City under Iowa Code Section 403.19 from
levies upon the Development Property. The City makes no assurance that the Retailer will receive
Economic Development Grants which equal the cost of the Public Improvements paid by
Developer.
iv. Certification of Public Improvement Costs. The obligation of the City to
make any Economic Development Grants to the Retailer shall be subject to and conditioned
upon, among other things, the timely filing by the Developer of the Developer Certification
required under Section 5.7 hereof and the City=s approval thereof. Developer must submit
accurate and sufficient documentation of the Public Improvement Costs to the City as part of its
Developer Certification.
b. Calculation of Grants. Each annual payment shall be equal in amount to the
incremental property tax revenues attributable to the Development Property that are received by
the City from the Dallas County Treasurer and that are equal to the above percentages of the Tax
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Increments collected by the City with respect to the Development Property under the terms of the
Ordinance and deposited into the Deery, Deery & Deery, LLC TIF Account (without regard to any
averaging that may otherwise be utilized under Section 403.19 and excluding any interest that may
accrue thereon prior to payment to Retailer) during the preceding twelve-month period in respect
of the Development Property, but subject to limitation and adjustment as provided in this Article
(such payments being referred to collectively as the “Economic Development Grants”).
Section 7.2. Conditions Precedent. Notwithstanding the provisions of Section 7.1 above,
the obligation of the City to make an Economic Development Grant in any year shall be subject to
and conditioned upon the following:
(a) compliance with the terms of this Agreement by Developer and Retailer at the
time of payment; and
(b) Developer’s construction of the Minimum Improvements and Public
Improvements consistent with this Agreement; and
(c) Retailer’s timely filing of the certifications set forth in Section 5.6, including
the Retailer Annual Certification; and
(d) Developer’s timely filing of the Developer Certification as set forth in Sections
5.7 and 7.1(a)(iv).
Under no circumstances shall the failure by Retailer to qualify for an Economic
Development Grant in any year serve to extend the term of this Agreement beyond the Termination
Date or the years during which Economic Development Grants may be awarded to Retailer or the
total amount thereof, it being the intent of parties hereto to provide Retailer with an opportunity to
receive Economic Development Grants only if Retailer and Developer fully comply with the
provisions hereof and the Retailer becomes entitled thereto, up to the maximum aggregate amounts
set forth in Section 7.1(a)(ii).
After the Minimum Improvements are first fully assessed and if in compliance with this
Agreement, if the Retailer’s Annual Certification is timely filed under Section 5.6(a) and the
Developer Certification is timely filed under Section 5.7, the City shall certify to Dallas County,
Iowa (the “County”) prior to December 1 of that year its request for the available Tax Increments
resulting from the assessments imposed by the County as of January 1 of that year, to be collected
by the County and paid to the City as taxes are paid during the following fiscal year and a
percentage of which shall thereafter be disbursed to Retailer on the following June 1 provided
Retailer and Developer are in compliance with this Agreement at the time of payment. (Example:
assuming completion by January 31, 2019, and first full assessment on January 1, 2020, if
Developer timely certifies the costs of the Public Improvements, Retailer certifies in October 2020,
and the City certifies to the County by December 1, 2020, the first Economic Development Grant
would be paid to Retailer on June 1, 2022 (for 100% of the Tax Increment for fiscal year 2021-
2022)). Compliance with the terms and conditions of this Agreement is a condition precedent to
receiving an Economic Development Grant.
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Section 7.3. Source of Grant Funds Limited.
a. The Economic Development Grants shall be payable from and secured solely and
only by amounts of incremental property tax revenues attributable to the Development Property
that are received by the City from the Dallas County Treasurer and that are deposited and held in
the Deery, Deery & Deery, LLC TIF Account of the Waukee Central Urban Renewal Tax
Increment Revenue Fund of the City. The City hereby covenants and agrees to maintain the
Ordinance covering the Development Property in force during the term hereof and to apply the
appropriate percentage of Tax Increments collected in respect of the Development Property and
allocated to the Deery, Deery & Deery, LLC TIF Account to pay the Economic Development
Grants, as and to the extent set forth in this Article. The Economic Development Grants shall not
be payable in any manner by other tax increment revenues or by general taxation or from any other
City funds. Any commercial and industrial property tax replacement monies that may be received
under Chapter 441.21A of the Code shall not be included in the calculation to determine the
amount of Economic Development Grants for which Retailer is eligible, and any monies received
back under Chapter 426C of the Code relating to the Business Property Tax Credit shall not be
included in the calculation to determine the amount of Economic Development Grants for which
Retailer is eligible.
b. Each Economic Development Grant is subject to annual appropriation by the City
Council of the City (the “City Council”). The right of non-appropriation reserved to the City in
this Section is intended by the parties, and shall be construed at all times, so as to ensure that the
City's obligation to make future Economic Development Grants shall not constitute a legal
indebtedness of the City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the payment of that
installment or amount. In the event that any of the provisions of this Agreement are determined
by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness
of the City, the enforcement of the said provision shall be suspended, and the Agreement shall at
all times be construed and applied in such a manner as will preserve the foregoing intent of the
parties, and no Event of Default by the City shall be deemed to have occurred as a result thereof.
If any provision of this Agreement or the application thereof to any circumstance is so suspended,
the suspension shall not affect other provisions of this Agreement which can be given effect
without the suspended provision. To this end the provisions of this Agreement are severable.
c. Notwithstanding the provisions of Section 7.1 hereof, the City shall have no
obligation to make an Economic Development Grant to Retailer if at any time during the term
hereof the City fails to appropriate funds for payment, or receives an opinion from its legal counsel
to the effect that the use of Tax Increments resulting from the Minimum Improvements to fund an
Economic Development Grant to Retailer, as contemplated under said Section 7.1, is not
authorized or is not an otherwise appropriate urban renewal activity permitted to be undertaken by
the City under the Urban Renewal Act or other applicable provisions of the Code, as then
constituted or under controlling decision of any Iowa court having jurisdiction over the subject
matter hereof. Upon receipt of any such legal opinion or non-appropriation, the City shall
promptly forward notice of the same to Retailer. If the non-appropriation or circumstances or legal
constraints giving rise to the decision continue for a period during which two (2) annual Economic
Development Grants would otherwise have been paid to Retailer under the terms of Section 7.1,
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the City may terminate this Agreement, without penalty or other liability to the City, by written
notice to Retailer.
Section 7.4. Use of Other Tax Increments. The City shall be free to use any and all Tax
Increments above and beyond the percentages to be given to Retailer in this Agreement, or any
available Tax Increments resulting from the suspension or termination of the Economic
Development Grants, for any purpose for which the Tax Increments may lawfully be used pursuant
to the provisions of the Urban Renewal Act (including an allocation of all or any portion thereof
to the reduction of any eligible City costs), and the City shall have no obligations to Retailer with
respect to the use thereof.
Section 7.5. Real Property Taxes. Retailer, and its permitted successors and assigns, shall
pay or cause to be paid, when due, all real property taxes and assessments payable with respect to
all and any parts of the Development Property and Minimum Improvements. Until such
obligations have been assumed by any other person, all pursuant to the provisions of this
Agreement, Retailer shall be responsible for all assessments and taxes.
Retailer and its permitted successors agree that prior to the Termination Date:
a. They will not seek administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of real property contained on the
Development Property determined by any tax official to be applicable to the Development Property
or Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute
as a defense in any proceedings, including delinquent tax proceedings; and
b. They will not seek any tax exemption deferral or abatement either presently or
prospectively authorized under any State, federal, or local law with respect to taxation of real
property contained on the Development Property, or the Minimum Improvements, between the
date of execution of this Agreement and the Termination Date.
c. The assessment category for the Development Property is commercial/industrial,
and Retailer shall not take any action to request or effect a change in such category.
ARTICLE VIII. INDEMNIFICATION
Section 8.1. Release and Indemnification Covenants.
a. Developer and Retailer release the City and 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, Public Improvements (until such time as they are conveyed to the City), or
Development Property.
b. Except to the extent arising from any willful misrepresentation, gross negligence,
or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, Developer
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and Retailer agree 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 or Retailer 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 and,
until accepted by the City, the Public Improvements; or (iii) any hazardous substance or
environmental contamination located in or on the Development Property.
c. The Indemnified Parties shall not be liable for any damage or injury to the persons
or property of Developer or Retailer, or their officers, agents, servants, or employees or any other
person who may be about the Public Improvements, Minimum Improvements, or Development
Property due to any act of negligence of any person, other than any act of negligence on the part
of any such indemnified party or its officers, agents, servants or employees.
d. The provisions of this Article VIII shall survive the termination of this Agreement.
ARTICLE IX. REMEDIES
Section 9.1. Events of Default Defined. The following shall be “Events of Default” under
this Agreement and the term “Event of Default” shall mean, whenever it is used in this Agreement,
any one or more of the following events during the Term of this Agreement:
a. Failure by Developer to cause the construction of the Minimum Improvements and
Public Improvements to be completed pursuant to the terms and conditions of this Agreement;
b. Failure by Retailer or Developer to substantially observe or perform any covenant,
condition, obligation, or agreement on their part to be observed or performed under this
Agreement;
c. Transfer of Retailer’s or Developer’s interest in the Development Property,
Minimum Improvements, or this Agreement in violation of the provisions of this Agreement;
d. Failure by Retailer to pay ad valorem taxes on the Development Property or
Minimum Improvements;
e. Failure by Retailer to employ employees on the Development Property as required
herein;
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. Retailer shall:
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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 Retailer 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 Retailer or the Minimum Improvements, or part thereof, shall
be appointed in any proceedings brought against Retailer, and shall not be discharged within ninety
(90) days after such appointment, or if Retailer shall consent to or acquiesce in such appointment;
or
h. Any representation or warranty made by Retailer or Developer in this Agreement
or in any written statement or certificate furnished by Retailer or Developer pursuant to this
Agreement, shall prove to have been incorrect, incomplete, or misleading in any material respect
on or as of the date of the issuance or making thereof.
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section
9.1 of this Agreement occurs and is continuing, the City, as specified below, may take any one or
more of the following actions after the giving of thirty (30) days' written notice by the City to
Developer, Retailer, and the holder of any Mortgage (but only to the extent the City has been
informed in writing of the existence of a Mortgage and been provided with the address of the
holder thereof) of the Event of Default, but only if the Event of Default has not been cured within
said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days
and Developer and/or Retailer does not provide assurances reasonably satisfactory to the City that
the Event of Default will be cured as soon as reasonably possible:
a. The City may suspend its performance under this Agreement until it receives
assurances from Developer and/or Retailer, deemed adequate by the City, that Developer and/or
Retailer will cure the default and continue its performance under this Agreement;
b. The City may terminate this Agreement;
c. The City may withhold the Certificates of Completion;
d. The City may take any action, including legal, equitable, or administrative action,
which may appear necessary or desirable to enforce performance and observance of any obligation,
agreement, or covenant of Developer and/or Retailer, as the case may be, under this Agreement;
or
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e. The City will have no obligation to make payment of Economic Development
Grants to Retailer subsequent to the Event of Default and shall be entitled to recover from Retailer,
and Retailer shall repay to the City, an amount equal to the full amount of the Economic
Development Grants previously made to Retailer under Article VII hereof, with interest thereon at
the highest rate permitted by State law. The City may take any action, including any legal action
it deems necessary, to recover such amounts from Retailer.
Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
City is intended to be exclusive of any other available remedy or remedies, but each and every
remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient.
Section 9.4. No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses.
a. 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 creation of the Urban Renewal Area and the negotiation, drafting, and
authorization of this Agreement shall be deducted from the first Economic Development Grant
paid to the Retailer.
b. Whenever any Event of Default occurs and the City shall employ attorneys or incur
other expenses for the collection of payments due or to become due or for the enforcement or
performance or observance of any obligation or agreement on the part of Developer and/or Retailer
herein contained, and the City prevails in an action to enforce this Agreement, Developer and
Retailer agree that the defaulting party shall, upon demand therefor, pay to the City the reasonable
fees of such attorneys and such other expenses as may be reasonably and appropriately incurred
by the City in connection therewith.
ARTICLE X. MISCELLANEOUS
Section 10.1. Conflict of Interest. Developer and Retailer warrant that, to their 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
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be performed in connection with the Project, or in any activity, or benefit therefrom, which is part
of the Project at any time during or after such person's tenure.
Section 10.2. Notices and Demands. A notice, demand or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and
a.In the case of Retailer, is addressed or delivered personally to Deery, Deery &
Deery, LLC at 7404 University Avenue, Cedar Falls, Iowa 50613, Attn: Brad
Deery;
b.In the case of Developer, is addressed or delivered personally to Fred Rose, L.C.
d/b/a The Rose Companies at 7103 Chancellor Drive, Suite 100, Cedar Falls, Iowa
50613, Attn: Fred Rose;
c.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 10.3. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of this Agreement are inserted for convenience of reference only and shall be disregarded
in construing or interpreting any of its provisions.
Section 10.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.5. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Iowa.
Section 10.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement among the parties regarding the subject matter hereof, and supersedes and replaces all
prior agreements, negotiations or discussions, whether oral or written. This Agreement may not
be amended except by a subsequent writing signed by all parties hereto.
Section 10.7. Successors and Assigns. This Agreement is intended to and shall inure to
the benefit of and be binding upon the parties hereto and their respective permitted successors and
assigns.
Section 10.8. Termination Date. This Agreement shall terminate and be of no further force
or effect on and after December 31, 2029, unless terminated earlier under the provisions of this
Agreement.
Section 10.9. Memorandum of Agreement. The Parties agree to execute and record a
Memorandum of Agreement for Private Development, in substantially the form attached as Exhibit
D, to serve as notice to the public of the existence and provisions of this Agreement, and the rights
and interests held by the City by virtue hereof. The City shall pay for all costs of recording.
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Section 10.10. No Third-Party Beneficiaries. No rights or privileges of either party hereto
shall inure to the benefit of any landowner, contractor, subcontractor, material supplier, or any
other person or entity, and no such contractor, landowner, subcontractor, material supplier, or any
other person or entity shall be deemed to be a third-party beneficiary of any of the provisions
contained in this Agreement.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk,
and Retailer and Developer have caused this Agreement to be duly executed in their names and
behalf by their authorized representatives, all on or as of the day first above written.
[Signatures start on the next page]
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(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 ________________________, 2018, 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
Execution Version 25
DEERY, DEERY & DEERY, LLC,
an Iowa limited liability company
By: ____________________________
Brad Deery, Manager
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2018, before me the undersigned, a Notary
Public in and for said State, personally appeared Brad Deery, to me personally known, who, being
by me duly sworn, did say that he is the Manager of Deery, Deery & Deery, LLC and that said
instrument was signed on behalf of said company; and that the said Manager as such officer,
acknowledged the execution of said instrument to be the voluntary act and deed of said company,
by him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
Execution Version 26
FRED ROSE, L.C.,
an Iowa limited liability company
By: ____________________________
Fred Rose, President
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2018, before me the undersigned, a Notary
Public in and for said State, personally appeared Fred Rose, to me personally known, who, being
by me duly sworn, did say that he is the President of Fred Rose, L.C., and that said instrument was
signed on behalf of said company; and that the said President as such officer, acknowledged the
execution of said instrument to be the voluntary act and deed of said company, by him voluntarily
executed.
______________________________________
Notary Public in and for the State of Iowa
Execution Version A-1
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is described as follows:
PARCEL 17-140 AS DESCRIBED WITHIN THE PLAT OF SURVEY RECORDED IN BOOK
2016 PAGE 24530, DALLAS COUNTY, IOWA 50236
INCLUDES PARCEL # 1232200005
Execution Version B-1
EXHIBIT B-1
MINIMUM IMPROVEMENTS AND PUBLIC IMPROVEMENTS
Minimum Improvements shall mean the construction of an approximately 38,975 square
foot building to be used as a car dealership on the Development Property and all necessary site
improvements including but not limited to a paved lot.
The construction of the Minimum Improvements are expected to be completed by January
31, 2019. Construction costs for the Minimum Improvements are anticipated to be no less than
approximately $6,500,000. The Dallas County Assessor will make the final determination as to
the assessed value.
Public Improvements shall mean the construction of a street currently referred to as 10th
Street, as reflected in the preliminary plat attached as Exhibit B-2 hereto.
The construction of the Public Improvements are expected to be completed by October 1,
2018. Construction costs for the Public Improvements are anticipated to be approximately
$950,000.
Execution Version C-1
EXHIBIT C-1
CERTIFICATE OF COMPLETION
MINIMUM IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the “City”), Deery, Deery & Deery, LLC (the
“Retailer”), and Fred Rose, L.C. (the “Developer”) did on or about the _____ day of
____________________, 2018, make, execute, and deliver, each to the other, an Agreement for
Private Development (the “Agreement”), wherein and whereby the Retailer and Developer agreed,
in accordance with the terms of the Agreement, to develop and operate certain real property located
within the City and as more particularly described as follows:
PARCEL 17-140 AS DESCRIBED WITHIN THE PLAT OF SURVEY RECORDED IN
BOOK 2016 PAGE 24530, DALLAS COUNTY, IOWA 50236
INCLUDES PARCEL # 1232200005
(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.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Signatures Start on Next Page]
Execution Version C-2
(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 ________________________, 2018, 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 Certificate of Completion for Minimum Improvements]
Execution Version C-3
EXHIBIT C-2
CERTIFICATE OF COMPLETION
PUBLIC IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the “City”), Deery, Deery & Deery, LLC (the
“Retailer”), and Fred Rose, L.C. (the “Developer”) did on or about the _____ day of
____________________, 2018, make, execute, and deliver, each to the other, an Agreement for
Private Development (the “Agreement”), wherein and whereby the Developer agreed, in
accordance with the terms of the Agreement, to develop certain real property located within the
City and as more particularly described as follows:
PARCEL 17-140 AS DESCRIBED WITHIN THE PLAT OF SURVEY
RECORDED IN BOOK 2016 PAGE 24530, DALLAS COUNTY, IOWA 50236
INCLUDES PARCEL # 1232200005
(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 Public Improvements (as defined therein) in accordance with the Agreement; and
WHEREAS, Developer has to the present date performed said covenants and conditions
insofar as they relate to the construction of said Public Improvements in a manner deemed by the
City to be in conformance with the Agreement to permit the execution and recording of this
certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement
with respect to the obligations of Developer and its successors and assigns, to construct the Public
Improvements on the 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 Public Improvements set forth in the Agreement.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Signatures Start on Next Page]
Execution Version C-4
(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 ________________________, 2018, 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 Certificate of Completion for Public Improvements]
Execution Version D-1
EXHIBIT D
Type of Document: MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
AMONG THE CITY OF WAUKEE, DEERY, DEERY & DEERY, LLC,
and FRED ROSE, L.C.
Return Document to: City Clerk
City of Waukee
230 West Hickman Road,
Waukee, Iowa 50263
Preparer Information: Nathan J. Overberg
Ahlers & Cooney, P.C.
100 Court Ave., Ste. #600
Des Moines, IA 50309
(515) 243-7611
Taxpayer Information: N/A
GRANTORS: N/A
GRANTEES: N/A
LEGAL DESCRIPTION:
PARCEL 17-140 AS DESCRIBED WITHIN THE PLAT OF SURVEY RECORDED IN BOOK 2016
PAGE 24530, DALLAS COUNTY, IOWA 50236
INCLUDES PARCEL # 1232200005
Execution Version D-2
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Waukee, Iowa (the “City”), Deery, Deery & Deery, LLC (the “Retailer”),
and Fred Rose, L.C. (the “Developer”) did on or about the _____ day of _______________, 2018, make,
execute and deliver, each to the other, an Agreement for Private Development (the “Agreement”), wherein
and whereby Developer and Retailer agreed, in accordance with the terms of the Agreement and the
Waukee Central Urban Renewal Plan (the “Plan”), to develop and operate certain real property located
within the City and within the Waukee Central Urban Renewal Area, more particularly described as
follows:
PARCEL 17-140 AS DESCRIBED WITHIN THE PLAT OF SURVEY RECORDED IN
BOOK 2016 PAGE 24530, DALLAS COUNTY, IOWA 50236
INCLUDES PARCEL # 1232200005
(the “Development Property”); and
WHEREAS, the term of the Agreement commenced on the ____ day of ________________, 2018
and terminates on December 31, 2029, unless otherwise terminated as set forth in the Agreement; and
WHEREAS, the City, Retailer, 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, Retailer, and Developer have executed this Memorandum
of Agreement for Private Development on the ______ day of ___________________, 2018.
Execution Version D-3
(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 ________________________, 2018, 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 for City]
Execution Version D-4
DEERY, DEERY & DEERY, LLC,
an Iowa limited liability company
By: ____________________________
Brad Deery, Manager
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2018, before me the undersigned, a Notary Public in and
for said State, personally appeared Brad Deery, to me personally known, who, being by me duly sworn,
did say that he is the Manager of Deery, Deery & Deery, LLC and that said instrument was signed on
behalf of said company; and that the said Manager as such officer, acknowledged the execution of said
instrument to be the voluntary act and deed of said company, by him voluntarily executed.
___________________________________
Notary Public in and for the State of Iowa
[Signature page to Memorandum of Agreement for Retailer]
Execution Version D-5
FRED ROSE, L.C.,
an Iowa limited liability company
By: ____________________________
Fred Rose, President
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2018, before me the undersigned, a Notary Public in
and for said State, personally appeared Fred Rose, to me personally known, who, being by me duly sworn,
did say that he is the President of Fred Rose, L.C., and that said instrument was signed on behalf of said
company; and that the said President as such officer, acknowledged the execution of said instrument to be
the voluntary act and deed of said company, by him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature page to Memorandum of Agreement for Developer]
Execution Version E-1
EXHIBIT E
RETAILER ANNUAL CERTIFICATION
(due by October 15th as required under terms of Development Agreement)
Deery, Deery & Deery, LLC (the “Retailer”) certifies the following:
During the time period covered by this Retailer Annual Certification, Retailer is and was in
compliance with Section 5.7 of the Agreement as follows:
(i) all ad valorem taxes on the Development Property in the Waukee Central Urban Renewal
Area have been paid for the prior fiscal year (and for the current year, if due) and attached to this Retailer
Annual Certification are proof of payment of said taxes;
(ii) the Minimum Improvements were first fully assessed on January 1, 20___, at a full
assessment value of $______________, and are currently assessed at $_________________;
(iii) the number of Full-Time Equivalent Employment Units employed at the Minimum
Improvements as of October 1, 20___ and as of the first day of each of the preceding eleven (11) months
were are follows:
October 1, 20__: ______ April 1, 20__:_________
September 1, 20__:_________ March 1, 20__:_________
August 1, 20__:_________ February 1, 20___:________
July 1, 20__:_________ January 1, 20__:_______
June 1, 20__:_________ December 1, 20__:_______
May 1, 20__: __________ November 1, 20__:_______
(iv) the undersigned officer of Retailer have re-examined the terms and provisions of this
Agreement and that at the date of such certification, and during the preceding twelve (12) months, certify
that Retailer is not, or was not, in default in the fulfillment of any of the terms and conditions of this
Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or
both, would become an Event of Default) is occurring or has occurred as of the date of such certification,
or if the signers are aware of any such Event of Default, said officers have disclosed the nature thereof, its
period of existence and what action, if any, has been taken or is proposed to be taken with respect thereto.
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding
is true and correct to the best of my knowledge and belief.
Signed this _________ day of _____________________, 20___.
DEERY, DEERY & DEERY, LLC
By: _____________________________
Execution Version F-1
EXHIBIT F
DEVELOPER CERTIFICATION OF PUBLIC IMPROVEMENT COSTS
Fred Rose, L.C. (the “Developer”) certifies that the expenses shown on the table below were/are the
actual expenses incurred by the Developer for the Public Improvements that are the subject of an
Agreement for Private Development entered into the _____ day of __________, 2018 between the City
of Waukee, Iowa; Deery, Deery & Deery, LLC; and the Developer (the “Agreement”).
Certified Costs of Public Improvements
Project
Cost
Category
Engineering,
Plans,
Specifications
Construction
Costs
Legal
Costs
Drainage,
Landscaping,
Grading
Cost for
acquisition
of land
within the
ROW
Interest
during
construction
and for not
more than six
months
thereafter
Miscellaneous
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Total
Cost per
category
If you need additional space please attach another table.
Attach actual receipts and invoices
[Remainder of this page intentionally left blank. Signature page to follow.]
Execution Version F-2
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true
and correct to the best of my knowledge and belief.
FRED ROSE, L.C.,
an Iowa limited liability company
By: ____________________________
Fred Rose, President
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2018, before me the undersigned, a Notary Public in and
for said State, personally appeared Fred Rose, to me personally known, who, being by me duly sworn,
did say that he is the President of Fred Rose, L.C., and that said instrument was signed on behalf of said
company; and that the said President as such officer, acknowledged the execution of said instrument to
be the voluntary act and deed of said company, by him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature page to Developer Certification of Costs]
01403718-1\21938-152