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HomeMy WebLinkAbout2017-08-24-E02 Project Morgan Development Agr, PIF_Approval AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: August 24, 2017 AGENDA ITEM: Consideration of approval of a resolution approving and authorizing execution of an Agreement for Private Development and a Public Improvement Agreement and Fund by and between the City of Waukee and the Developer of Project Morgan FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Proposed Resolution II. Agreement for Private Development III. Public Improvement Agreement PREPARED BY: Becky Schuett REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: RESOLUTION NO. 17- RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AGREEMENT FOR PRIVATE DEVELOPMENT AND A PUBLIC IMPROVEMENT AGREEMENT AND FUND BY AND BETWEEN THE CITY OF WAUKEE AND _______________________________ (“DEVELOPER”). WHEREAS, it is expected that on September 25, 2017, this Council will find and determine that certain areas located within the City are eligible and should be designated as an urban renewal area under Iowa law, and will approve and adopt the Urban Renewal Plan (the "Plan") for the Waukee West Urban Renewal Area (the "Waukee West Urban Renewal Area" or “Area”) described therein, which Plan will be on file in the office of the Recorder of Dallas County; and WHEREAS, it is desirable that properties within the Area be redeveloped as part of the overall redevelopment area covered by said Plan; and WHEREAS, the City’s obligations under the proposed Agreement for Private Development (“Development Agreement”) are expressly conditioned upon the City approving the Plan which authorizes the Development Agreement as an urban renewal project; and WHEREAS, Developer has been awarded incentives from the State of Iowa under the High Quality Jobs Program (“HQJP”), Iowa Code Chapter 15, Part 13, in exchange for the construction of certain Data Center and Support Buildings and creation jobs on portions of the proposed Waukee West Urban Renewal Area as defined and legally described in the Development Agreement (“Development Property”); and WHEREAS, provided the Developer enters into an agreement with the Iowa Economic Development Authority for the Initial Project under the High Quality Jobs Program (the “Program”), the incentives set forth in the Development Agreement would serve as the local match under the Program in support of the Initial Project; and WHEREAS, the Development Agreement would allow the Developer to construct Data Center and Support Buildings in multiple Projects (as defined in the Development Agreement) on the Development Property, to be used in its data center business operations, together with all related site improvements, under the terms set forth in the Agreement; and WHEREAS, pursuant to the Development Agreement, the Developer would execute a Minimum Assessment Agreement for each Project pursuant to Iowa Code Section 403.6(19) whereby Developer, the holder of any Mortgage, and all prior lienholders would agree to a minimum assessed value for each Data Center Building to be constructed on the Development Property (building value only) of not less than $200,000,000 for the Initial Project and not less than $909 per square foot for each subsequent Project, commencing upon completion of each Data Center Building and continuing until the earlier of the end of the last fiscal year the City can legally collect incremental taxes based upon the construction of that defined building under Iowa Code 403.19(2) or first fiscal year the Data Center Building is no longer eligible to receive the Economic Development Abatement described in the Development Agreement; and WHEREAS, Developer would further agree in the Development Agreement to employ, at the Qualifying Wage Threshold, at least fifty (50) Full Time Equivalent Jobs for the Initial Project, and at least thirty one (31) Full Time Equivalent Jobs for each subsequent Project, upon the completion of each Project, as more particularly defined in the Development Agreement; and WHEREAS, in exchange, and subject to the terms and conditions set forth in the Development Agreement, the City would exempt, pursuant to Iowa Code Section 15.332 (the “Economic Development Abatement”), up to 71.30556% of the value added by the Data Center and Support Buildings (building value only) from property taxes for a period of up to twenty (20) years; and WHEREAS, as an additional economic development incentive, if the City were to adopt a franchise fee under Iowa Code sections 364.2(4)(f) and 384.3A, the City would rebate 100% of the franchise fees actually paid by Developer and received by the City with respect to Developer’s operation of the Data Center and Support Buildings and related operations on the Development Property, subject to the terms and conditions of the Development Agreement; and WHEREAS, Developer has requested the City install certain Public Improvements on an expedited basis in order to facilitate its development of the Development Property, and in consideration of the City’s agreement to complete those Public Improvements as set forth in the Development Agreement, and consistent with the Parties’ mutual interest in advancing the development of the community, the City and Developer propose to enter into a separate Public Improvement Agreement and Fund (“PIF Agreement”); and WHEREAS, pursuant to the terms of the PIF Agreement, the Developer agrees to contribute $500,000 per Data Center Building constructed on the Development Property each year until certain maximum contributions to the Public Improvement Fund are made, and the City agrees to utilize the Fund to advance the completion of improvements for the benefit of the community as set forth in the PIF Agreement; and WHEREAS, the Council has determined that the Development Agreement and the PIF Agreement are in the best interests of the City and the residents thereof and that the performance by the City of its obligations thereunder is a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law; and WHEREAS, Iowa Code Chapters 15, 15A, 364, 384, and 403, authorize cities to make grants or abate taxes to advance economic development activities and in furtherance of the objectives of an urban renewal project, to appropriate such funds and make such expenditures as may be necessary to carry out the purposes of said Chapters, to levy taxes and assessments for such purposes, and to enter into agreements to provide services with owners of tax exempt property; and WHEREAS, the Council has determined that the Development Agreement and the City's performance thereunder are in furtherance of appropriate economic development activities and objectives of the City within the meaning of Chapters 15, 15A and 403 of the Iowa Code taking into account any or all of the factors set forth in Chapter 15A, to wit: a. Businesses that add diversity to or generate new opportunities for the Iowa economy should be favored over those that do not. b. Development policies in the dispensing of the funds should attract, retain, or expand businesses that produce exports or import substitutes or which generate tourism-related activities. c. Development policies in the dispensing or use of the funds should be targeted toward businesses that generate public gains and benefits, which gains and benefits are warranted in comparison to the amount of the funds dispensed. d. Development policies in dispensing the funds should not be used to attract a business presently located within the state to relocate to another portion of the state unless the business is considering in good faith to relocate outside the state or unless the relocation is related to an expansion which will generate significant new job creation. Jobs created as a result of other jobs in similar Iowa businesses being displaced shall not be considered direct jobs for the purpose of dispensing funds; and WHEREAS, pursuant to notice published as required by law, this Council has held a public meeting and hearing upon the proposal to approve and authorize execution of the Development Agreement and has considered the extent of objections received from residents or property owners as to said proposed Development Agreement; and, accordingly the following action is now considered to be in the best interests of the City and residents thereof. NOW THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF WAUKEE IN THE STATE OF IOWA: Section 1. That the performance by the City of its obligations under the Development Agreement, including but not limited to making of grants or abatement of property taxes in connection with the development of the Development Property under the terms set forth in the Development Agreement, be and is hereby declared to be a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law and, further, that the Development Agreement and the City's performance thereunder is in furtherance of appropriate economic development activities and objectives of the City within the meaning of Chapters 15, 15A and 403 of the Iowa Code, taking into account the factors set forth therein. Section 2. That the form and content of the Development Agreement and the PIF Agreement, the provisions of which are incorporated herein by reference, be and the same hereby are in all respects authorized, approved and confirmed, and the Mayor and the City Clerk be and they hereby are authorized, empowered and directed to execute, attest, seal and deliver the Development Agreement the PIF Agreement for and on behalf of the City in substantially the form and content now before this meeting, but with such changes, modifications, additions or deletions therein as shall be approved by such officers, and that from and after the execution and delivery of the Agreement, the Mayor and the City Clerk are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Development Agreement and PIF Agreement as executed. PASSED AND APPROVED this 24th day of August, 2017. Mayor ATTEST: City Clerk ROLL CALL VOTE AYE NAY ABSENT ABSTAIN Anna Bergman R. Charles Bottenberg Brian Harrison Shelly Hughes Larry R. Lyon AGREEMENT FOR PRIVATE DEVELOPMENT By and Between CITY OF WAUKEE, IOWA AND PLACEHOLDER ___________________, 2017 2 AGREEMENT FOR PRIVATE DEVELOPMENT THIS AGREEMENT FOR PRIVATE DEVELOPMENT (hereinafter called "Agreement"), is made on or as of the ____ day of __________________, 2017, (the “Commencement Date”), by and between the CITY OF WAUKEE, IOWA, a municipality (hereinafter called "City"), established pursuant to the Code of Iowa of the State of Iowa and acting under the authorization of Chapters 15, 15A and 403 of the Code of Iowa, 2017, as amended, and PLACEHOLDER*, a ______________ Corporation, having offices for the transaction of business at ________________________ (hereinafter known as "Developer"). * The name of the contracting party (the “Developer”) is being withheld at this time pursuant to the limitations within Iowa Code Section 22.7(8) during the pendency of negotiations between the Developer and the Iowa Economic Development Authority. WITNESSETH: WHEREAS, Developer will be assigned the rights and obligations as the buyer in purchase and sale agreements for real property to be located in one or more urban renewal areas established by the City pursuant to Iowa Code chapter 403, which property as so described is hereinafter referred to as the "Development Property"; and WHEREAS, Developer is willing to cause a series of data center and support buildings to be constructed and operated on portions of the Development Property in accordance with this Agreement, which in turn will result in increased employment in the City; and WHEREAS, Developer has applied for and expects to receive incentives from the State of Iowa under the High Quality Jobs Program (“HQJP”), Iowa Code Chapter 15, Part 13, in exchange for the construction of the buildings and creation jobs; and WHEREAS, the City desires to further incent Developer by providing economic development abatement of a portion of the property taxes on the buildings as the local match for the State incentives, under the authority of Iowa Code Section 15.332 and in accordance with the terms of this Agreement; and WHEREAS, the City believes that the planned development pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and best interests of the City, its citizens, and the community as a whole, and in accord with the 3 public purposes and provisions of the applicable State and local laws and requirements under which the foregoing development has been undertaken and is being assisted. NOW, THEREFORE, in consideration of the promises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: ARTICLE I. DEFINITIONS Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Agreement means this Agreement and all exhibits and appendices hereto, as the same may be from time to time modified, amended or supplemented. Annual Average means the mathematical mean of the number of Full-Time Equivalent (FTE) Jobs as of October 1 of each year, and as of the first day of each of the preceding eleven (11) months. The Annual Average will be rounded to the nearest whole number. Certificate of Completion means a certification in the form of the certificate attached hereto as Exhibit B 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. County means Dallas County, Iowa. Data Center Building means each structure subject to property tax constructed by Developer on the Development Property which houses data center equipment. Developer means Placeholder, and its successors and assigns. Development Property means the property described in Exhibit A. Economic Development Abatement means the abatement of property taxes under Section 7.1 of this Agreement. 4 Economic Development Assistance Contract or EDA Contract means a contract by and among Placeholder, the City of Waukee, and Iowa Economic Development Authority under the HQJP for each Project. Event of Default means any of the events described in Section 9.1 of this Agreement. Existing City Laws means the City building, zoning, site plan and subdivision measures and regulations in effect for each Project as of the date the City approves the individual site plan for that Project, but subject to any subsequent changes to said measures and regulations to comply with the laws, rules and regulations imposed by the Federal, State or County government or agencies or other regulatory authorities. Full-Time Equivalent (FTE) Job and Qualifying Wage Threshold mean the same as the definitions in the corresponding Economic Development Assistance Contracts by and among Developer, the City of Waukee and the Iowa Economic Development Authority. HQJP or Program means the State of Iowa’s High Quality Jobs Program as codified in Iowa Code Chapter 15, Part 13. Initial Project means the construction of two (2) Data Center Buildings and additional Support Buildings on the Development Property consistent with the terms of the EDA Contract awarded in August 2017. Minimum Assessment Agreement means an agreement establishing a minimum assessed value for each Data Center Building as authorized by Iowa Code section 403.6(19) and as described in Section 4.1 of this Agreement. Parcel means the portion of the Development Property upon which a particular Data Center Building is constructed. Parties means the Developer and the City. Project shall mean the construction of those Data Center Buildings and additional Support Buildings described in a particular EDA Contract. Public Improvements means a (1) Northwest Area Trunk Sewer Extension Phase 4, extending a 24-inch trunk sewer line, the general location and end point are depicted on Exhibit F. The preliminary estimated cost of this project, exclusive of property acquisitions necessary for the sewer project, which is subject to change, is $3,015,000; (2) Northwest Area Water Main Extension Phase 1, which consists of extending a 12- inch water main adjacent to US Highway 6, the general location and end point are 5 depicted on Exhibit F; and (3) Northwest Area Water Main Extension Phase 2, which consists of extending a 16-inch water main adjacent to T Avenue south of US Highway 6 to 300th Street, then east along 300th Street, the general location and end point are depicted on Exhibit F. The preliminary estimated cost of both Phases of this water project, which is subject to change, is $2,980,000. Public Improvement Costs means any and all engineering, planning, design, financing, permitting, legal and other costs and expenses incurred by the City to design and plan the Public Improvements, plus the cost of all land acquisition, materials, labor, and associated expenses related to the construction of the Public Improvements, including but not limited to those improvement costs defined under Iowa Code Sections 364.19, 384.24(5), 384.37(19), (23), and (26), and any other costs associated with completing the Public Improvements. State means the State of Iowa. Support Building means a structure subject to property tax constructed by Developer on the Development Property which provides support to Data Center Buildings including but not limited to any or all of the following:  buildings and offices used to house administrative staff;  logistics buildings used to receive and store equipment, service materials, packages, and other items;  buildings used for maintenance of network infrastructure (commonly referred to as “NDS Buildings”); and  infrastructure buildings such as sewage lift stations and water storage tanks. Termination Date means the date of termination of this Agreement, as established in Section 11.7 of this Agreement. ARTICLE II. REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties of the City. The City makes the following representations and warranties based on the actual present knowledge of the signatory to this Agreement, said signatory having actual and apparent authority to make these representations on behalf of City: 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. 6 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 their individual capacity thereof. d. The execution and delivery of this Agreement by the City is not in violation of or in conflict with any law, regulation or ordinance. e. This Agreement has been duly and validly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Developer, is in full force and effect and is a valid and legally binding instrument of the City 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. f. There are no actions, suits or proceedings pending or threatened against or affecting the City 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 of the Agreement or the City's ability to perform its obligations under this Agreement. Section 2.2. Representations and Warranties of Developer. Developer makes the following representations and warranties based on the actual present knowledge of the signatory to this Agreement; said signatory having actual and apparent authority to make these representations on behalf of Developer: a. Developer is a _______________ corporation, duly organized and validly existing under the laws of the State of ____________, having all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under this Agreement. b. This Agreement has been duly and validly authorized, executed and delivered by Developer and, assuming due authorization, execution and delivery by the City, is in full force and effect and is a valid and legally binding instrument of Developer 7 enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting credit ors' 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 Agreement or Developer's ability to perform its obligations under this Agreement. e. Developer has not received any notice from any local, State or federal official that the activities of Developer with respect to the Development Property may or will be in violation of any environmental law or regulation (other than those notices, if any, of which the City has previously been notified in writing). Developer is not currently aware of any State or federal claim 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 would not undertake its obligations under this Agreement without the Economic Development Abatement and other consideration being made available to Developer pursuant to this Agreement. g. All covenants, stipulations, promises, agreements, and obligations of the Developer contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and obligations of the Developer, and not of any governing body member, officer, agent, servant or employee of the Developer in their individual capacity thereof. ARTICLE III. CONSTRUCTION OF BUILDINGS Section 3.1. Construction of Initial Project and Additional Projects. The Developer agrees that it shall have the right to construct two (2) Data Center Buildings 8 and additional Support Buildings on the Development Property consistent with the terms of the EDA Contract awarded in August 2017 (“Initial Project”). The Developer may also construct additional Data Center Buildings and additional Support Buildings on the Development Property as one or more additional Projects, consistent with this Agreement and the EDA Contract applicable to the particular Project. 3.2 Compliance with Applicable Laws and Agreements. a. Developer shall construct the Data Center Buildings and Support Buildings for each Project in accordance with this Agreement, the applicable EDA Contract, federal and State law, and all Existing City Laws. b. Each Project shall be constructed in conformity with the individual site plans approved by the City. Individual site plans for each Project, which are consistent with this Agreement and the applicable EDA Contract, shall be prepared and filed by the Developer with the appropriate City official under the provisions of Existing City Laws. Each individual site plan for each Project shall be processed through the normal City procedures of Planning and Zoning Commission, City Council review/approval and any other requirements per Existing City Laws. Section 3.3. Certificate of Completion. Upon written request of Developer after issuance of an occupancy permit for the Data Center and Support Buildings in a Project, the City will furnish Developer with a Certificate of Completion in recordable form, in substantially the form set forth in Exhibit B attached hereto. Section 3.4. Right to Rebuild. Developer shall have the right to (i) demolish and replace any Data Center Building or Support Building; and (ii) rebuild or replace any Data Center Building or Support Building that is damaged or destro yed by a Casualty. A “Casualty” is an event, peril or act of God, such as fire, windstorm, flood, earthquake, civil commotion, or other peril whether foreseen or unforeseen. ARTICLE IV. MINIMUM ASSESSMENT AGREEMENT Section 4.1. a. Assessment Agreement. As further consideration for this Agreement, Developer and the City shall execute a separate agreement for each Project in the form of Exhibit E, pursuant to the provisions of Iowa Code Section 403.6(19), whereby Developer shall agree to a minimum actual value for each Data Center Building to be constructed as a part of that Project for the purpose of calculating real property taxes (each agreement referred to as an “Assessment Agreement” or “Minimum Assessment Agreement”). Specifically, Developer, the holder of any Mortgage, and all prior 9 lienholders shall agree to a minimum actual value for each Data Center Building to be constructed on the Development Property (building value only) as a part of the Initial Project of not less than $200,000,000 and for each Data Center Building to be constructed on the Development Property as a part of every subsequent Project (building value only) of not less than $909 per square foot (the “Assessor’s Minimum Actual Value”), effective beginning with the first date of assessment (i.e., January 1 under current Iowa law) following the completion of each Data Center Building. Nothing in an Assessment Agreement shall: i. limit the discretion of the Assessor for the County to assign an actual value to a Data Center Building in excess of the Assessor's Minimum Actual Value; or ii. prohibit Developer from seeking, through the exercise of legal or administrative remedies, a reduction in such actual value for property tax purposes, provided, however, that Developer shall not seek a reduction of such actual value below the Assessor's Minimum Actual Value; or iii. prohibit Developer from seeking agricultural classification for property tax purposes for any parcels or property within the Development Property that qualify for such classification and are not being developed as part of any Project. Each Assessment Agreement must be certified by the Assessor for the County, as provided for in Iowa Code Section 403.6(19), and be filed for record in the office of the County Recorder. Such filing shall constitute notice to any subsequent encumbrancer or purchaser of the Development Property or any part thereof, whether voluntary or involuntary. Each Assessment Agreement will be binding and enforceable in its entirety against any such subsequent encumbrancer or purchaser, as well as all prior lienholders and the holder of a Mortgage, each of which shall sign a consent to the Minimum Assessment Agreement. b. Replacement Data Center Building. Developer shall have the right to designate a Data Center Building that is constructed to replace a Data Center Building under Section 3.4 as a “Replacement Data Center Building.” A Data Center Building may be designated as a Replacement Data Center Building regardless of whether or not it is constructed on a different Parcel from the removed Data Center Building, provided the Replacement Data Center Building constructed on a different parcel shall not be included in another Project nor be treated as part of another Project for purposes of receiving benefits under this Agreement or an EDA Contract. Such designation by Developer shall be done in writing prior to the commencement of construction of the Replacement Data Center Building. The City shall abate 100% of the property taxes on the assessed value of a Replacement Data Center Building up to the last full (prior to any Casualty, if applicable) assessed value of the Data Center Building that was replaced, but only for the remaining schedule of abatement applicable to the Data Center Building being replaced 10 and provided that such Data Center Building being replaced shall remain subject to its Minimum Assessment Agreement and abatement schedule under this Agreement as if it had not been replaced. Nothing in this Agreement shall prohibit the inclusion of new improvements (which are not designated as a Replacement Data Center Building) constructed on the Parcel of the removed Data Center Building from being included in a future Project that is approved to receive benefits under this Agreement or an EDA Contract. The City and Developer agree to cooperate in communicating with the County Assessor to effectuate the intent and purposes of this section. ARTICLE V. FURTHER COVENANTS OF DEVELOPER Section 5.1 Employment Obligations. (a) Developer shall timely submit all applications and necessary documentation to qualify each Project for participation in the HQJP at such a level so as to allow for the Economic Development Abatement contemplated by this Agreement. Developer shall likewise submit all certifications and comply with all maintenance obligations required by the HQJP and the EDA Contract for each Project. (b) Developer shall have an employment commitment in each EDA Contract (enforceable by the State under that EDA Contract) for approximately the first two years after the completion of each Project. It is anticipated that this commitment shall require Developer to create and retain an Annual Average of no fewer than fifty (50) Full-Time Equivalent (FTE) Jobs at the Qualifying Wage Threshold at the Initial Project and a minimum of thirty- one (31) Full-Time Equivalent (FTE) Jobs at the Qualifying Wage Threshold at each additional Project. This Agreement shall incorporate the terms of each EDA Contract as to employment obligation(s) to be maintained at each Project. However, under this Agreement, the employment obligation contained in each EDA Contract shall be extended for the duration of the time period that each Project receives Economic Development Abatement incentives under this Agreement, respectively. Any failure to satisfy the employment obligation(s) contained in this Paragraph shall be an Event of Default and shall render the Data Center Buildings and Support Buildings covered by the applicable EDA Contract ineligible for Economic Development Abatement under this Agreement. Section 5.2 Annual Certification. To assist the City in monitoring the Agreement and performance of Developer hereunder, a duly authorized agent of Developer shall annually provide to the City: (i) proof that all ad valorem taxes due and payable on the Development Property and Data Center and Support Buildings (to the extent not abated hereunder) have been paid as of the date of certification; (ii) proof that the Data Center and Support Buildings are completed pursuant to Article 3 and assessed according to 11 Section 4.1 of this Agreement; (iii) certification of the number of Full-time Equivalent (FTE) Jobs at the Qualifying Wage Threshold as of October 1 and as of the first day of each of the preceding eleven (11) months for each completed Project, supporting the Annual Average certification for each Project, respectively; and (iv) certification that such agent has re-examined the terms and provisions of this Agreement and that at the date of such certificate, and during the preceding twelve (12) months, Developer is not, and 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 certificate or during such period, or if the signer is aware of any such default, event or 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 statement, proof and certificate shall be provided not later than November 1 of each year, commencing November 1, 2020 and ending on the Termination Date. Developer shall provide supporting information for its Annual Certifications upon request of the City. See Exhibit D for form required for Developer's Annual Certification. Section 5.3 Additional Reports Required. Developer shall provide to the City copies of each report submitted to the IEDA under the terms of each EDA Contract, including but not limited to any Annual Project Status Report, End of Project Report, or End of Maintenance Period Report required under each EDA Contract. Developer shall not be required to provide detailed payroll records in a manner that would subject them to disclosure pursuant to Iowa Code Chapter 22. Section 5.4. Term of Operation. Developer will fulfill the employee obligations in Section 5.1 until the Termination Date of this Agreement. Section 5.5. Real Property Taxes. Subject to the potential abatement incentive in Section 7.1, Developer or its successors shall pay or cause to be paid, when due, all real property taxes and assessments payable with respect to all and any parts of the Development Property acquired and owned or leased by them and pursuant to the provisions of this Agreement. Until Developer's obligations have been assumed by any other person or legal title to the property is vested in another person, all pursuant to the provisions of this Agreement, Developer shall be solely responsible for all assessments and taxes. Developer and its successors agree that prior to the Termination Date: a. The Developer will not bring or join an action for judicial or administrative review of the constitutionality of any tax statute relating to the taxation of real property contained on the Development Property as to which it is receiving an Economic Development Abatement or raise the constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings. 12 Notwithstanding the preceding sentence, the Developer may appeal: (i) the assessed values of the Data Center Buildings to the extent the assessed values are above the Minimum Actual Values required by the applicable Minimum Assessment Agreement, (ii) the assessed value of the Support Buildings, or (iii) the classification of any undeveloped property. In no event will the assessed values of the Data Center Buildings drop below the valuations established by the applicable Minimum Assessment Agreement. b. Other than the potential Economic Development Abatement set forth in this Agreement and the exemptions provided by the Iowa Code sections 423.3(92-95) and 427.1(35-37) for qualifying web search portal and data center businesses (which exemptions shall under no circumstances reduce the Minimum Actual Values for the Data Center Buildings below the Minimum Actual Values set forth in the applicable Minimum Assessment Agreement), they shall not seek any tax exemption, rebate, deferral, other abatement or any kind of property tax incentive either presently or prospectively authorized under any State, federal or local law with respect to taxation of Data Center Buildings contained on the Development Property between the date of execution of this Agreement and the Termination Date. c. If the statute or statutes under which property taxes are assessed and levied on the Development Property or the Data Center Buildings are ruled by a court to be unconstitutional or otherwise invalid, and that decision is final and binding, this Agreement is terminated. In the event of such termination, neither party shall have any liability to the other party under this Agreement or any related agreement, except for those obligations that expressly survive termination. d. Notwithstanding anything in this Agreement to the contrary, Developer shall not be prohibited from bringing or joining an action for judicial or administrative review of any errors made by the State or County concerning the commencement date of the exemption allowed under Iowa Code section 15.332. Section 5.6. Annexation of Development Property. Developer shall cooperate in and consent to the annexation of the Development Property by the City prior to the construction of any Data Center or Support Building on the Development Property. Section 5.7. Urban Renewal. Prior to constructing any Data Center or Support Building on the Development Property, Developer shall cooperate in and consent to the City’s establishment of an Urban Renewal Area or Areas incorporating the Development Property, and to the City’s exercise of all powers under the Urban Renewal Law – Iowa Code Chapter 403 – within the Area. To effectuate the efficient use of tax increment financing under the Urban Renewal Law, Developer shall plat the Development Property so as to allow each Data Center Building to reside on a separate legal tax parcel. 13 ARTICLE VI. ASSIGNMENT AND TRANSFER Section 6.1. Transfer of Data Center and Support Buildings; Assignment. Developer represents and agrees that, prior to the Termination Date, Developer will maintain existence as a company and will not wind up or otherwise dispose of all or substantially all of its assets. Developer may sell, lease, or otherwise transfer its interest in the Development Property or parts thereof, including the Data Center and Support Buildings. Developer may assign to an Affiliate its rights and obligations under this Agreement. Developer may also assign to a buyer or other party acquiring title to a completed or partially completed (which means the completion of some portion of the vertical improvement) Data Center or Support Building its rights and obligations under this Agreement and thereupon the transferee shall be the Developer herein with respect to that Data Center or Support Building. Developer may also assign its rights and obligations under this Agreement to a non-Affiliate party with respect to parcels that do not contain completed or partially completed Data Centers or Support Buildings with the consent of the City, which consent may not be unreasonably withheld or delayed. “Affiliate” shall mean an entity that is owned or controlled by the Developer, or is under common control, either directly or indirectly. On assignment of this Agreement, Developer shall be released of all liability and obligation hereunder. If this Agreement is to be assigned to a party who is acquiring less than all the Development Property, the parties shall amend this Agreement accordingly so that the Development Property corresponds to the property acquired. The rights and obligations under this Agreement shall not be assigned to more than one party, and if Developer assigns such rights to another party the Developer shall not retain any rights or obligations hereunder. 6.2 Prohibition against Use as Non-Taxable or Centrally Assessed Property. During the term of this Agreement, the Developer, or its successors, or assigns agree that the Development Property and Data Center and Support Buildings cannot be transferred or sold to a non-profit entity or used for a purpose that would exempt the Development Property or Buildings from property tax liability. Nor can the Development Property or Buildings 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)). This provision shall not apply to property interests conveyed to the City or to another government agency or utility for purposes of constructing or operating infrastructure or improvements, or to MidAmerican Energy for purposes of providing electricity to the Projects. 14 ARTICLE VII. ECONOMIC DEVELOPMENT ABATEMENT Section 7.1. Economic Development Abatement. For and in consideration of the obligations being assumed by Developer hereunder, and subject to Developer being and remaining in compliance with the terms of this Agreement and the applicable EDA Contract, City shall provide for the Developer a value-added property tax exemption pursuant to Iowa Code Section 15.332 (the “Economic Development Abatement”) for each Data Center and Support Building in a Project under the terms and subject to the conditions of this Article VII. a. Schedule. Subject to the satisfaction of the preconditions outlined in Section 7.1(b), 71.30556 % of the value added by each Data Center and Support Building on the Development Property shall be subject to property tax abatement. The value exempted from taxation is only the value in the improvements -- the Data Centers or Support Buildings. The value of any land comprising the Development Property is not subject to abatement. Provided the Program continues, thereby permitting the City incentives contemplated herein, the exemption for the improvements in a particular Project shall extend for twenty (20) years beginning with the year the improvements are first assessed for taxation as provided under Iowa Code Section 15.332, unless eligibility for abatement terminates sooner under the terms of this Agreement. If the percentage of commercial rollback is increased at any time during the Term of this Agreement by the State, and the State does not otherwise provide the City with funds to offset the shortfall, then beginning with the first full fiscal year following the effective date of the new rollback percentage, the abatement percentage shall be reduced consistent with the following schedule (with respect to an amount of increase in the roll-back percentage that is not specifically listed below, any reduction in abatement percentage shall be proportionate to the reductions set forth below): Rollback Percentage Abatement Percentage 10% 71.30556% 20% 67.73750% 30% 63.12858% The City and Developer shall work cooperatively to communicate with the County Assessor on the appropriate abatement percentage under this Agreement and the applicable commencement date for such exemption. 15 b. Conditions. Each Data Center and Support Building’s eligibility for the Economic Development Abatement in this Section 7.1 is conditioned on satisfaction of all of the following: 1. The structure must meet the definition of a Data Center or Support Building in this Agreement, be completed consistent with this Agreement, and be assessed as commercial or industrial property. 2. The Developer must be in material compliance with all terms of this Agreement with respect to the Data Center or Support Building, including but not limited to all of the obligations in Sections 5.1 through 5.7. 3. A Minimum Assessment Agreement for the Project containing the Data Center and Support Buildings must be executed by the County, the Parties, and all prior lienholders and mortgage holders; the applicable Minimum Assessment Agreement must remain enforceable under State law and be complied with by Developer; and each Data Center Building must be assessed consistent with the applicable Minimum Assessment Agreement. 4. The Economic Development Abatement for the Data Center and Support Building must remain available under State law. 5 The Project that includes the Data Center and Support Buildings must qualify for and be awarded incentives from the State under the HQJP, be subject to and in compliance with a valid EDA Contract, and be eligible for the designated level of abatement under the HQJP. 6. The City’s ability under State law to utilize Urban Renewal/TIF powers with respect to the tax increment created by the construction of the Data Center and Support Buildings must not be materially impaired by changes to the law or interpretations thereof after the Commencement Date. c. Termination of Abatement. 1. The Economic Development Abatement for each Data Center and Support Building may be subject to termination in accordance with the terms of this Agreement. If a Data Center or Support Building initially satisfies all of the conditions set forth in Section 7.1(b) and receives the scheduled Economic Development Abatement, but a condition in Section 7.1(b) ceases to be satisfied prior to the expiration of the 20 year abatement period, subject to the notice and cure period set forth in Section 9.2, the Economic Development Abatement shall cease with respect to any Data Center or Support Building(s) impacted by the failed condition(s) as of the first day of January following the expiration of the notice and cure period (unless the failure to satisfy the condition(s) is cured prior 16 to the end of the cure period). Taxes levied on the Data Center or Support Building thereafter will be divided and applied in accordance with State law. 2. If, at any time during the Term of this Agreement, there is a decision of a court of competent jurisdiction that is affirmed on appeal by an appellate court that the Economic Development Abatement incentive to the Developer is not authorized under any applicable provision of the Code, as then constituted, either party may terminate this Agreement by giving written notice to the other party. Both parties shall join any judicial or administrative action where a nother party is challenging the authorization of the specific Economic Development Abatement for any Project or an action that may negatively impact an Economic Development Abatement authorization. Each party shall be responsible for its own attorney’s fees, expenses and costs incurred in any judicial or administrative action in which the City or Developer is a party, which action (i) challenges the authorization or validity of the Economic Development Abatement for any Project, or (ii) may affect an Economic Development Abatement under this Agreement in a way that is adverse to either party. Section 7.2. Franchise Fee Rebate. Provided Iowa Code sections 364.2(4)(f) and 384.3A or any subsequent laws regulating the imposition, administration and use of franchise fee revenues by the City permit the use of franchise fee revenues for economic development activities and projects, in the event a franchise fee is imposed under the aforementioned Code provisions by the City during the Term of this Agreement, the City agrees, as an incentive to undertake the obligations of this Agreement, to rebate 100% of the franchise fee actually paid by the Developer through its electricity provider, and received by the City, attributable to the operation of the Data Center Buildings and Support Buildings and Developer’s related operations on the Development Property, subject to all of the following: a. The City shall create a sub-franchise fee account (the “Sub-Account”) into which it will deposit the franchise fee paid by Developer through its electricity provider attributable to the operation of the Data Center Buildings and Support Buildings and Developer’s related operations on the Development Property and received by the City into its general franchise fee account. Developer will provide quarterly reports to the City setting forth the franchise fee paid for the immediately preceding three (3) billing periods and the City will transfer from the franchise fee account into the Sub-Account the amount set forth in that quarterly report to the extent the City is in receipt of the reported amount of franchise fees. No other funds shall be deposited in the Sub-Account and all the funds in such account shall be reserved for payment of the rebate to Developer. The City is free to utilize for any legal purpose the funds retained in the general franchise fee account after the transfer is made into the Sub-Account on a quarterly basis. 17 1. If Developer fails to provide a quarterly report, the City shall transfer into the Sub-Account an amount equal to the average amount of franchise fees paid by Developer reflected in the three prior quarterly reports. 2. Developer shall submit an end–of-year report on or before May 1 each year, with documentation reasonably satisfactory to the City, substantiating the actual amount of franchise fee paid by Developer during the prior calendar year. Provided the end-of-year report substantiates the amounts claimed on the quarterly reports, the City shall reimburse the claimed amount from franchise fees held in the Sub-Account within sixty (60) days of submission of the end-of-year report (barring any City contest of the information). 3. Upon implementation of a franchise fee by the City, the Parties agree to work cooperatively to prepare additional written procedures with respect to the rebate process. 4. The franchise fee rebates shall be payable and secured only by the amount of franchise fees deposited in the Sub-Account or in the general franchise fee account. The franchise fee rebates shall not be payable in any manner by other franchise fee payments or by general taxation or from any other City funds. b. If, at any time during the Term of this Agreement, there is a decision of a court of competent jurisdiction that is affirmed on appeal by an appellate court that the franchise fee rebate is unlawful or otherwise prohibited, the City’s obligation to provide the franchise fee rebate shall terminate with no further liability or obligation to the Developer. Developer further agrees to pay the City’s expenses and costs, including reasonable attorneys’ fees, incurred in defending any action in which the City is made a party to any judicial or administrative action where another party is challenging the ability of the City to provide the franchise fee rebate, or the validity of any franchise fee imposition that may be enacted by the City, based in whole, or in part, on the existence, and/or payment, of the rebate in this Section 7.2. To the extent not precluded by the existence of a conflict of interest, the Developer may satisfy the obligation to pay the City’s reasonable attorney’s fees in defending a challenge to the rebate by hiring counsel, reasonably acceptable to the City, to represent both the City and the Developer in said action, and both Parties agree, to the extent allowed, to waive any conflicts to such joint representation. c. Each franchise fee rebate is subject to annual appropriation by the City Council. The right of non-appropriation reserved to the City in this Section 7.2 is intended by the parties, and shall be construed at all times, so as to ensure that the City's obligation to make future franchise fee rebates 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 18 installment or amount. In the event that the agreement of the City herein to rebate the franchise fee is determined by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness of the City, the City’s obligation to rebate the franchise fee 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. 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. e. Although non-appropriation of franchise fee rebates shall under no circumstances constitute an Event of Default hereunder, if franchise fees are not rebated to Developer due to the City’s non-appropriation of funding, or due to invalidation of the rebate obligation by court decision, Developer shall have the right to terminate this Agreement and/or the Public Improvement Agreement and Fund (“PIF Agreement”) executed by the Parties simultaneously herewith, or to withhold payment under the PIF Agreement up to the amount of franchise fee rebates not paid by the City. f. Consistent with the terms of the PIF Agreement, if Developer does not make contributions to the Public Improvement Fund as required by the PIF Agreement, the amount of any annual franchise fee rebate may be reduced, at the discretion of the City, by the amount of the unpaid contributions to the Public Improvement Fund. Before instituting such set-off, the City shall provide written notice of its intent to do so to the Developer and allow the Developer thirty (30) days to submit a written explanation for nonpayment under the terms of the PIF Agreement. If the Parties cannot agree as to whether the Developer’s failure to pay into the Public Improvement Fund was a breach of the terms of the PIF Agreement, then within thirty (30) days after the notice of intent described above the Parties will submit the issue (and only that issue) to a single day binding arbitration before a single arbitrator selected pursuant to the selection process set forth in the AAA Commercial Arbitration Rules and Mediation Procedure with said arbitration to be held in the Des Moines Iowa metropolitan area. If the arbitrator finds the Developer’s non-payment of funds, or any portion thereof, into the Public Improvement Fund is a breach of the terms of the PIF Agreement, the City shall be entitled to reduce any subsequent franchise fee rebate by the amount of the contributions improperly withheld by Developer. With respect to any disputed failure to pay under the PIF Agreement, the City shall not reduce franchise fee rebate payments pending the decision of the arbitrator. ARTICLE VIII. INDEMNIFICATION Section 8.1. Release and Indemnification Covenants. 19 a. Developer shall indemnify and hold the City harmless against any fees, costs or damages owed to the State under any EDA Contract arising from Developer’s breach of any term or provision contained in this Agreement or the EDA Contract. b. 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. Subject to the Economic Development Abatement schedule in this Agreement, failure by Developer to pay ad valorem taxes on the Development Property or improvements thereon; b. Failure by Developer or City to substantially observe or perform any material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; c. Developer shall: i. file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or ii. make a general assignment for the benefit of its creditors; or iii. admit in writing its inability to pay its debts generally as they become due; or iv. be adjudicated as bankrupt or insolvent; or if a petition or answer proposing the adjudication of Developer as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Developer or the Improvements, or part thereof, shall be appointed in any proceedings brought against Developer, and shall not be discharged within ninety (90) days after such appointment, or if Developer shall consent to or acquiesce in such appointment; or 20 d. Failure of Developer to execute a Minimum Assessment Agreement for the Initial Project or any subsequent Project, or to comply with the terms thereof; e. Failure by Developer to comply with any material covenant, obligation, term or provision in an EDA Contract; or f. Any representation or warranty made by Developer in this Agreement or in any written statement or certificate furnished by Developer pursuant to this Agreement or any EDA Contract, is proven to be 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 10.1 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 ninety (90) days written notice by the City to Developer of the Event of Default, but only if the Event of Default has not been cured within said ninety (90) days, or if the Event of Default cannot reasonably be cured within ninety (90) days and Developer does not provide assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible: a. The City may terminate the provisions of Article VII with respect to any uncompleted Data Center or Support Buildings; any completed Data Center or Support Buildings shall continue to receive incentives previously awarded under Article VII pursuant and subject to the terms of Article VII and for so long as the conditions set forth in Section 7.1(b) of the Agreement remain satisfied with respect to the buildings; or b. 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, as the case may be, under this Agreement. 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 provision contained in this Agreement should be breached by any party and thereafter waived by any other party, 21 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. Attorneys' Fees and Expenses. Developer and the City shall each pay for its own attorney's fees associated with this Agreement, except as otherwise expressly stated herein. ARTICLE X. CONDITIONS OF CITY AND DEVELOPER Section 10.1. Urban Renewal. The City's performance under this Agreement is conditioned upon the formal adoption of one or more urban renewal areas covering the Development Property, including all public hearings, consultations and public notices necessitated by the legal and legislative processes related thereto. The City agrees to proceed with diligence to initiate and complete the urban renewal process, and to notify Developer in writing if additional information needs to be provided to complete the Plan or adoption process and/or if all such information has been received. If the City does not adopt an urban renewal plan covering the Development Property (except for that portion of the Development Property that has not been annexed by the City as of the Commencement Date) within sixty (60) days of receipt of all information from Developer that is necessary to complete the Urban Renewal Plan(s) and adoption process, Developer may terminate this Agreement on written notice to the City within sixty (60) days after of the missed deadline. In the event of such termination, neither party shall have any liability to the other except for those obligations that expressly survive termination. Section 10.2. Annexation and Zoning. Subject to all legal and legislative processes and the Developer’s compliance with the terms of this agreement, the City shall annex and zone the Development Property as M1 Light Industrial with PD 1 Overlay and consider any properly filed rezoning requests by Developer. The City agrees to notify Developer in writing if additional information needs to be provided to complete the annexation or rezoning process and/or if all such information has been received. If the City does not complete the anticipated annexation within four (4) months of receipt of all information from Developer that is necessary to complete the annexation process, or re- zoning within ninety (90) days of receipt of all information from Developer that is necessary to complete the rezoning process (including but not limited to a conceptual site plan), Developer may terminate this Agreement on written notice to the City within sixty (60) days after the missed deadline. In the event of such termination, neither party shall have any liability to the other except for those obligations that expressly survive termination. Section 10.3 Provision of Water and Wastewater Service. The Developer has requested the City install the Public Improvements in order to facilitate its development of the Development Property it may to acquire. The City will use its best efforts to obtain, or cause to be obtained, in a timely manner, public approval as required by the laws of 22 the State, and all required permits, licenses and approvals necessary to construct the Public Improvements, which improvements Developer acknowledges and agrees are sufficient for its purposes for its Initial Project at the capacity levels set forth herein. The City has indicated that the capacity in the Public Improvements available for use by the Development Property is .75 million gallons per day (MGD) for water and 1.5 million gallons per day (MGD) for sewer. Unless this section is otherwise amended or addressed by the Parties as provided in Paragraph b of this section, provided Developer obtains a grading permit for a Data Center Building on the Development Property, works toward completion of such permitted grading, and dedicates any necessary property interests as required by Paragraph c of this Section on or before March 1, 2018, the City will: (i) complete the Northwest Area Water Main Extension Phase 1 and the Northwest Area Trunk Sewer Extension Phase 4 on or before November 30, 2018; and (ii) complete the Northwest Area Water Main Extension Phase 2 on or before November 30, 2019. If the City does not complete the Public Improvements by the deadlines set forth herein, Developer may terminate this Agreement on written notice to the City within sixty (60) days after the deadline. In the event of such termination, neither party shall have any liability to the other under this Agreement except for those obligations that expressly survive termination. a. Cost of Public Improvements. The City will finance and/or pay for the Public Improvement Costs incurred in completing the Public Improvements and may recover a portion of those cost through the establishment of a connection fee district consistent with Iowa Code. Developer acknowledges and agrees that it will be responsible for paying connection fees associated with connecting the Development Property to the Public Improvements, and for completing all improvements on the Development Property as may be necessary to connect the Development Property to said Public Improvements. b. Additional Utility Infrastructure Improvements. Developer understands and agrees that additional site-specific infrastructure improvements may be required as part of site plan approval that were not known or otherwise contemplated at the time of execution of this Agreement, including but not limited to specific water and sewer main locations to serve Developer’s Data Center Buildings. As that information becomes available, and Developer’s site-specific plans and designs are processed, Developer understands and agrees that any additional public infrastructure improvements that are required to serve the Development Property will be completed at Developer’s sole cost and expense and unless addressed in a site plan or plat, will be addressed in a separate agreement acceptable to both parties. It is further understood and agreed, that Developer may determine its public infrastructure needs are different than those contemplated at the time of execution 23 of this Agreement as set forth herein. Any additional public infrastructure improvements that are required to serve the Development Property will be completed at Developer’s sole cost and expense unless addressed in a separate agreement acceptable to both parties. Developer agrees that it shall notify the City, on or before February 1, 2018, that its public infrastructure needs have changed, and upon such notification the obligation of the City to provide Public Improvements pursuant to Section 10.3 shall be terminated, unless otherwise agreed in a separate agreement acceptable to both parties. c. Dedication of Necessary Property. Developer, with respect to property it owns or controls, shall provide all necessary easements and dedicate right of way to the City for public infrastructure purposes, at no cost to the City, as necessary to effectuate the construction of the Public Improvements. Section 10.4. Effect of Termination. If this Agreement terminates under the Provisions of this Article X, any Minimum Assessment Agreement and the PIF Agreement also terminates. Section 10.5. Timeliness re Subdivision Plats and Site Plans. Subject to all legal and legislative processes and the Developer’s compliance with the terms of this Agreement, the City shall make a decision with respect to the approval of subdivision plats and individual site plans for the Initial Project within one hundred eighty (180) days of the timely submission of a complete application by Developer. If such approval is not received within the required timeframe, Developer may terminate this Agreement and the Minimum Assessment Agreement on written notice to the City within sixty (60) days after the missed deadline. In the event of such termination, neither party shall have any liability to the other under this Agreement except for those obligations that expressly survive termination. ARTICLE XI. MISCELLANEOUS Section 11.1. Notices and Demands. Any notice under this Agreement shall be in writing and shall be effective upon receipt or refusal to accept delivery and shall be deemed properly given if: (i) personally delivered; (ii) deposited in the United States registered or certified mail, postage prepaid; or (iii) sent by Federal Express or similar nationally recognized overnight courier service. For purposes of notice, the addresses of the parties shall be as set forth below, provided that a party may change its address for notices by giving written notice of such change to the other party in accordance with this provision: 24 a. In the case of Developer, is addressed or delivered personally to Placeholder, at______________ Attn:___________; and, Nyemaster Goode, P.C., 700 Walnut St, Ste 1600, Des Moines, IA 50309, Attn: Kathy Law; b. In the case of the City, is addressed to or delivered personally to the City at 230 West Hickman Road, Waukee, Iowa 50263, Attn: Becky Schuett, City Clerk. Section 11.2. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11.3. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 11.4. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Iowa. Section 11.5. Amendment. This Agreement may not be amended except by a subsequent writing signed by all parties hereto. Section 11.6. 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 successors, transferees and assigns. Section 11.7. Termination Date. Unless terminated earlier under the provisions of this Agreement, this Agreement shall terminate and be of no further force or effect as of the date 30 years after the Commencement Date, but any Economic Development Abatement and Minimum Assessment Agreement will continue and apply for its full term, subject to the terms of Section 7.1 and 4.1, respectively, for any Data Center or Support Building that is completed prior to the Termination Date. Section 11.8. Memorandum of Agreement. The parties agree to execute and record a Memorandum of Agreement for Private Development, in substantially the form attached as Exhibit C, to serve as notice to the public of the existence and provisions of this Agreement, and the rights and interests held by the City by virtue hereof. Developer shall reimburse the City for all costs of recording. 25 Section 11.9. No Third-Party Beneficiaries, Agency or Partnership. 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. Nothing contained in this Agreement shall constitute the City as a joint venture, partner or agent of the Developer, or render the City liable for any debts, obligations, acts, omissions, representations or contracts of the Developer. 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, Developer has caused this Agreement to be duly executed in its name and behalf by its authorized representatives, all on or as of the day first above written. [Signatures start on the next page] 26 (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 ________________________, 2017, 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 27 PLACEHOLDER By: ___________________________________ ATTEST: By: _____________________________ STATE OF _____ ) ) SS COUNTY OF_______ ) On this _______ day of ________________, 2017, before me the undersigned, a Notary Public in and for said State, personally appeared _________ and________________, to me personally known, who, being by me duly sworn, did say that they are the _____________and____________, respectively, of Placeholder, and that said instrument was signed on behalf of said corporation; and that the said ______________ and ________________ as such officers, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by them voluntarily executed. ______________________________________ Notary Public in and for the State of ________ 28 EXHIBIT A DEVELOPMENT PROPERTY The Development Property is legally described as follows: NORTH OF HWY 6 The South 45 acres of the South Fractional Half (S frl 1/2) of the Northwest Fractional Quarter (NW frl 1/4) of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, The South Half (S1/2) of the Northeast Quarter (NE1/4) of Section 25, Township 79 North, Range 27 West of the 5th P.M., Dallas County, Iowa; and, The Southeast Quarter of Section 25, Township 79 North, Range 27 West of the 5th P.M., Dallas County, Iowa, EXCEPT Railroad Right of Way on the South Half (S1/2) thereof and EXCEPT land deeded to the State of Iowa in Warranty Deed recorded in Book 844 Page 328 and EXCEPT Parcel "A" as shown on the Plat of Survey recorded in Book 2006 Page 18481; and, The Northwest Fractional Quarter (NW frl 1/4) of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa, EXCEPT the South 45 acres thereof and EXCEPT a parcel of land located in the East Half of the Northwest Quarter of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa, more particularly described as follows: Beginning at the North Quarter corner of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; thence along the East line of the NW1/4 of said Section 30, South 00°00'00", 1,967.62 feet; thence South 89°27'41" West 644.0 feet; thence North 00°00'00", 1,967.53 feet to the North line of said NW1/4; thence along said North line, North 89°27'14" East 644.00 feet to the point of beginning; and, A PARCEL OF LAND LOCATED IN THE EAST HALF (E 1/2) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION THIRTY (30), TOWNSHIP (79) NORTH, RANGE TWENTY-SIX (26) WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH QUARTER CORNER OF SECTION 30, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE ALONG THE EAST LINE OF THE NW 1/4 OF SAID SECTION 30, SOUTH 00°00'00" 1,967.62 FEET; THENCE SOUTH 89°27'41"WEST 644.00 FEET; THENCE NORTH 00°00’00” 1,967.53 FEET TO THE NORTH LINE OF SAID NW 1/4; THENCE ALONG SAID NORTH LINE, NORTH 89°27'14” EAST 644.00 FEET TO THE POINT OF BEGINNING, EXCEPT PARCEL "B" OF THE SURVEY OF THE NE 1/4 OF THE NW 1/4 OF SECTION 30, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., AS SHOWN IN BOOK 802, PAGE 672 IN THE OFFICE OF THE RECORDER OF DALLAS COUNTY, IOWA AND EXCEPT A TRACT OF LAND ON THE EAST SIDE OF PARCEL "B", ACCORDING TO THE PLAT THEREOF RECORDED IN BOOK 802, PAGE 672, DALLAS COUNTY RECORDER’S OFFICE. SAID TRACT IS LOCATED IN THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 30, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, AND DESCRIBED AS FOLLOWS: BEGINNING AT A CAPPED IRON PIPE AT THE NORTHEAST CORNER OF SAID PARCEL “B"; THENCE N 89°26’19" E A DISTANCE OF 47.00' TO A CAPPED IRON ROD; THENCE S 00°01'20" E A DISTANCE OF 933.32' TO A CAPPED IRON ROD; THENCE S 89°26'37" W A DISTANCE OF 47.00' TO A CAPPED IRON PIPE; THENCE N 00°01’20”W A DISTANCE OF 933.31’ TO POINT OF BEGINNING. CONTAINING 1.00 ACRES INCLUDING 0.04 ACRES OF COUNTY ROAD RIGHT OF EASEMENT: and, 29 The West Half (W1/2) of the Southwest Quarter (SW 1/4) and the West 7/8 of the East Half (W 7/8 E1/2) of the Southwest Quarter (SW1/4) all in Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, The North Half (N1/2) of the Northeast Quarter (NE1/4) of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) AND THE WEST 38.50 ACRES OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER (SW 1/4 SE 1/4) AND THE EAST 4 ACRES OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE 1 /4 SW 1/4) AND THE WEST 38.50 ACRES OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER (NW 1/4 SE 1/4) AND THE EAST 4 ACRES OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER (NE 1/4 SW 1/4) AND 80 ACRES OFF THE EAST SIDE OF THE SOUTHEAST QUARTER (SE 1/4) WHICH INCLUDES 3 ACRES IN THE WEST HALF (W 1/2) OF THE SOUTHEAST QUARTER (SE 1/4), ALL IN SECTION THIRTY (30), TOWNSHIP SEVENTY-NINE (79) NORTH, RANGE TWENTY-SIX (26) WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA SOUTH OF HWY 6 THE EAST HALF (E ½) OF THE NORTHEAST QUARTER (NE ¼) OF SECTION 35 IN TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, EXCEPTING THE EAST 2 RODS OF THE NORTH 82 RODS OF THE SAID EAST 1/2 OF THE NORTHEAST ¼; ALSO EXCEPT THE NORTH 440 FEET OF THE WEST 262 FEET OF SAID NE ¼; EXCEPT THEREFROM U.S. HIGHWAY NO. 6 RIGHT-OF-WAY ON THE NORTH 50 FEET, AND SUBJECT TO COUNTY ROAD RIGHT-OF-WAY ON THE WEST 12 FEET OF THE SOUTH 160.8 FEET OF THE FOREGOING DESCRIBED PARCEL, ALL NOW BEING IN AND FORMING A PART OF DALLAS COUNTY, IOWA; and, THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER (SE¼ SE¼) OF SECTION 35, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE NORTHWEST 1/4 OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M. AND THE EAST 2 RODS OF THE NORTH 82 RODS OF EAST 1/2 OF THE NORTHEAST 1/4 OF SECTION 35, TOWNSHIP 79, RANGE 27 WEST OF THE 5TH P.M, DALLAS COUNTY, IOWA; EXCEPT LAND DEEDED TO THE STATE OF IOWA AS RECORDED IN BOOK 849, AT PAGE 375; and, THE NORTHEAST QUARTER (NE1/4) OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, EXCEPT LAND DEEDED TO THE STATE OF IOWA IN WARRANTY DEED RECORDED IN BOOK 844, PAGE 328, IN THE OFFICE OF DALLAS COUNTY RECORDER; and, THE SOUTHWEST QUARTER (SW1/4) AND THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER (NW1/4 SE1/4) OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE WEST 73 ACRES OF THE S1/2 OF THE SE1/4 OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE EAST 57 ACRES OF THE NORTH ½ OF THE SOUTHEAST ¼ OF SECTION 31, TOWNSHIP 79 NORTH OF RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, BEGINNING AT THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE S00°58'53"W, ALONG THE EAST LINE OF THE NW1/4 OF THE NW1/4 30 OF SAID SECTION 31-79-26, 1,313.46 FT. TO THE SOUTHEAST CORNER OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26; THENCE S89°51'29"E, ALONG THE NORTH LINE OF THE SE1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 1,317.53 FT. TO THE NORTHEAST CORNER OF THE SE1/4 OF THE NW1/4 OF SAID SECTION 31-79-26; THENCE S01°00'17"W, ALONG THE EAST LINE OF THE SE1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 1,305.44 FT. TO THE CENTER OF SAID SECTION 31-79-26; THENCE S01°03'22"W, ALONG THE EAST LINE OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 860.52 FT.; THENCE N89°42'57"W, 1,320.15 FT. TO A POINT ON THE WEST LINE OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N01°05'55"E, ALONG THE WEST LINE OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 854.83 FT. TO THE NORTHWEST CORNER OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N89°57'48"W, ALONG THE SOUTH LINE OF THE SW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 660.98 FT.; THENCE N01°03'33"E, 2,620.95 FT. TO A POINT ON THE NORTH LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31 -79-26; THENCE N90°00'00"E, ALONG THE NORTH LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 660.00 FT TO THE POINT OF BEGINNING. ALL OF SAID PARCEL BEING LOCATED IN THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA. SAID PARCEL IS SUBJECT TO AN EXISTING PUBLIC ROAD EASEMENT ON THE NORTH 100.00 FT. THEREOF (1.5153 ACRES) EXCEPT BEGINNING AT THE NE CORNER OF THE NW1/4 NW1/4 OF SAID SECTION 31; THENCE S0°16'34"W ALONG THE EAST LINE OF SAID NW1/4 NW1/4 OF SEC. 31, 194.81 FT; THENCE S89°57'26"W, 661.11 FT.; THENCE N0°46'58"E, 192.13 FT. TO A POINT ON THE NORTH LINE OF SAID SEC. 31; THENCE N89°43'25"E ALONG SAID NORTH LINE, 659.43 FT. TO THE POINT OF BEGINNING; and, BEGINNING AT THE NORTHWEST CORNER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE N90°00'00"E, ALONG THE NORTH LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 912.34 FT.; THENCE S01°03'33"W, 2,620.95 FT. TO A POINT ON THE SOUTH LINE OF THE SW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26; THENCE N89°57'48"W, ALONG THE SOUTH LINE OF THE SW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 884.19 FT. TO THE WEST ¼ CORNER OF SAID SECTION 31-79-26; THENCE N 00°26'36"E, ALONG THE WEST LINE OF THE NW1/4 OF SAID SECTION 31-79-26, 2,620.02 FT. TO THE POINT OF BEGINNING. ALL OF SAID PARCEL BEING LOCATED IN THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA. SAID PARCEL IS SUBJECT TO AN EXISTING PUBLIC ROADWAY EASEMENT ON THE NORTH 100.00 FT. THEREOF (2.0932 ACRES) EXCEPT BEGINNING AT THE NW CORNER OF SAID SEC. 31; THENCE N89°43'25"E ALONG THE NORTH LINE OF SAID SEC. 31, 911.55 FT.; THENCE S0°46'58"W, 192.13 FT.; THENCE S89°57'26"W, 909.37 FT TO A POINT ON THE WEST LINE OF SAID SEC. 31; THENCE N0°08'15"E ALONG SAID WEST LINE, 188.39 FT. TO THE POINT OF BEGINNING; and, THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, BEGINNING AT THE WEST ¼ CORNER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE S89°57'48"E, ALONG THE NORTH LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 884.19 FT.; THENCE S01°03'33"W, 1,312.92 FT TO A POINT ON THE SOUTH LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N89°31'38"W, ALONG THE SOUTH LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 874.47 FEET TO THE SOUTHWEST CORNER OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N00°38'13"E, ALONG THE WEST LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 1,306.12 FT TO THE POINT OF BEGINNING. ALL OF SAID PARCEL BEING LOCATED IN THE NW1/4 SW1/4 OF SECTION 31, TOWNSHIP 79 31 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, Beginning at the Southeast corner of the Northwest Quarter of the Southwest Quarter of Section Thirty-one (31), Township Seventy-nine (79) North, Range Twenty-six (26) West of the 5th P.M., Dallas County, Iowa; thence N 89°31'38" W along the South line of the NW 1/4 of the SW 1/4 of said Section 31-79-26, 660.00 feet; thence N 01°03'33" E, 1312.92 feet to a point on the North line of the NW 1/4 of SW 1/4 of said Section 31-79-26; thence S 89°57'48" E, along the North line of the NW 1/4 of the SW 1/4 of said Section 31-79-26, 660.98 feet to the Northeast corner of the NW 1/4 of the SW 1/4 of said Section 31-79-26; thence S 01°05'55" W, along the East line of the NW 1/4 of the SW 1/4 of said Section 31-79-26, 1317.96 feet to the point of beginning. All of said parcel being part of the Northwest Quarter of the Southwest Quarter of Section 31, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, THE SOUTHEAST ¼ OF THE SOUTHEAST ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; EXCEPT PARCEL A AS SHOWN ON THE PLAT OF SURVEY RECORDED IN BOOK 2002, AT PAGE 14752; and, THE NORTHEAST QUARTER (NE ¼) OF THE NORTHWEST QUARTER (NW ¼), EXCEPT A PARCEL OF LAND LOCATED IN THE NE ¼ NW ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NW CORNER OF THE NE ¼ NW ¼ OF SAID SECTION 31; THENCE N 89°43'25" E ALONG THE NORTH LINE OF SAID SECTION 31, 1,193.34 FEET TO THE N ¼ CORNER OF SAID SECTION 31; THENCE S 0°16'34" W ALONG THE EAST LINE OF THE NW ¼, 199.67 FEET; THENCE S 89°57'26" W, 1002.08 FEET, THENCE S 0°02'34" E, 39.37 FEET; THENCE S 89°57'26" WEST, 191.44 FEET TO A POINT ON THE WEST LINE OF THE NE ¼ NW ¼ OF SAID SECTION 31; THENCE N 0°16'34" E ALONG SAID WEST LINE, 234.18 FEET TO THE POINT OF BEGINNING; and, THE NORTHEAST QUARTER (NE ¼) OF THE NORTHEAST QUARTER (NE ¼), EXCEPT THE SOUTH 466.70 FEET OF THE NORTH 541.70 FEET OF THE EAST 496.70 FEET OF THE NE ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, ALL OF WHICH IS MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NE CORNER OF SAID SECTION 31, THENCE S 0°00' E, ALONG THE EAST LINE OF THE NE ¼ OF SAID SECTION 31, 75.0 FEET, TO THE POINT OF BEGINNING, THENCE CONTINUING S 0°00' E, ALONG THE EAST LINE OF THE NE ¼ OF SAID SECTION 31, 466.70 FEET, SAID EAST LINE OF THE NE ¼ OF SAID SECTION 31 IS PARALLEL WITH AND 10.0 FEET WEST OF THE CENTER LINE OF AN EXISTING NORTH SOUTH COUNTY ROAD, AS IT IS PRESENTLY ESTABLISHED, THENCE S 89°01' W, 496.70 FEET; THENCE N 0°00' E, 466.70 FEET TO A POINT THAT IS ON THE SOUTH RIGHT-OF-WAY LINE OF U.S. HIGHWAY NO. 6, AS IT IS PRESENTLY ESTABLISHED, THENCE N 89°01' E, ALONG THE SOUTH RIGHT-OF-WAY LINE OF SAID U.S. HIGHWAY NO. 6, 496.70 FEET, TO THE POINT OF BEGINNING. AND EXCEPT A PARCEL OF LAND IN THE NE ¼ NE ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SAID SECTION 31; THENCE S 89°41'48" W ALONG THE NORTH LINE OF SAID SECTION 31, 496.70 FEET TO THE POINT OF BEGINNING, THENCE S 0°29'46" W, 205.42 FEET; THENCE S 89°09'34" W, 887.13 FEET; THENCE N 0°23'11" E, 213.74 FEET TO A POINT ON SAID NORTH LINE OF SECTION 31; THENCE N 89°41'48" E ALONG SAID NORTH LINE, 887.38 FEET TO THE POINT OF BEGINNING; and, THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHEAST QUARTER (NE 1/4), EXCEPT A PARCEL OF LAND IN THE NW 1/4 NE 1/4 OF SECTION 31-79-26 OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE N 1/4 CORNER OF SAID SECTION 31; THENCE N 89°59'35" E, ALONG THE NORTH LINE OF SAID SECTION 31, 1384.08 FEET; THENCE S 0°23'11" W, 213.74 FT.; THENCE N 89°59'35" W, 755.20 32 FT.; THENCE N 89°23'41" W, 628.42 FT., TO A POINT ON THE WEST LINE OF THE NW 1/4 NE 1/4 OF SAID SECTION 31; THENCE N 0°16'34" E, ALONG SAID WEST LINE, 199.67 FT TO THE POINT OF BEGINNING; AND THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) ALL IN SECTION THIRTY-ONE (31), TOWNSHIP SEVENTY-NINE (79) NORTH, RANGE TWENTY-SIX (26) WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE SOUTHWEST QUARTER (SW1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA. 33 EXHIBIT B CERTIFICATE OF COMPLETION FOR PROJECT NO. ____ ONLY WHEREAS, the City of Waukee, Iowa (the "City") and Placeholder, a _______________ Corporation, (known as "Developer"), did on or about the _____ day of ____________________, 2017, make, execute and deliver, each to the other, an Agreement for Private Development (the "Agreement"), wherein and whereby Developer agreed, in accordance with the terms of the Agreement, to develop and maintain certain real property located within the City and as more particularly described as follows: [insert legal for that portion of Development Property supporting applicable Project] (the "Project ____ Development Property"); and WHEREAS, the Agreement incorporated and contained certain covenants and restrictions with respect to the development of the Development Property, and allowed the Developer to construct Projects (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 Project No. ___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 Project No. ____ on the Project _____ 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 Project No. ___ on the Project ____ Development Property. All other provisions of the Agreement shall otherwise remain in full force and effect until termination as provided therein. 34 (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 ________________________, 2017, 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 35 EXHIBIT C MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT WHEREAS, the City of Waukee, Iowa (the "City"), and Placeholder, a ______ Corporation, (known as "Developer"), did on or about the _____ day of _______________, 2017, make, execute and deliver, each to the other, an Agreement for Private Development (the "Agreement"), wherein and whereby Developer agreed, in accordance with the terms of the Agreement and the Waukee West Urban Renewal Plan (the "Plan"), to develop certain real property to be located within the City and within the Waukee West Urban Renewal Area. The Development Property is described as follows: NORTH OF HWY 6 The South 45 acres of the South Fractional Half (S frl 1/2) of the Northwest Fractional Quarter (NW frl 1/4) of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, The South Half (S1/2) of the Northeast Quarter (NE1/4) of Section 25, Township 79 North, Range 27 West of the 5th P.M., Dallas County, Iowa; and, The Southeast Quarter of Section 25, Township 79 North, Range 27 West of the 5th P.M., Dallas County, Iowa, EXCEPT Railroad Right of Way on the South Half (S1/2) thereof and EXCEPT land deeded to the State of Iowa in Warranty Deed recorded in Book 844 Page 328 and EXCEPT Parcel "A" as shown on the Plat of Survey recorded in Book 2006 Page 18481; and, The Northwest Fractional Quarter (NW frl 1/4) of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa, EXCEPT the South 45 acres thereof and EXCEPT a parcel of land located in the East Half of the Northwest Quarter of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa, more particularly described as follows: Beginning at the North Quarter corner of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; thence along the East line of the NW1/4 of said Section 30, South 00°00'00", 1,967.62 feet; thence South 89°27'41" West 644.0 feet; thence North 00°00'00", 1,967.53 feet to the North line of said NW1/4; thence along said North line, North 89°27'14" East 644.00 feet to the point of beginning; and, A PARCEL OF LAND LOCATED IN THE EAST HALF (E 1/2) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION THIRTY (30), TOWNSHIP (79) NORTH, RANGE TWENTY-SIX (26) WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH QUARTER CORNER OF SECTION 30, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE ALONG THE EAST LINE OF THE NW 1/4 OF SAID SECTION 30, SOUTH 00°00'00" 1,967.62 FEET; THENCE SOUTH 89°27'41"WEST 644.00 FEET; THENCE NORTH 00°00’00” 1,967.53 FEET TO THE NORTH LINE OF SAID NW 1/4; THENCE ALONG SAID NORTH LINE, NORTH 89°27'14” EAST 644.00 FEET TO THE POINT OF BEGINNING, EXCEPT PARCEL "B" OF THE SURVEY OF THE NE 1/4 OF THE NW 1/4 OF SECTION 30, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., AS SHOWN IN BOOK 802, PAGE 672 IN THE OFFICE OF THE RECORDER OF DALLAS COUNTY, IOWA AND EXCEPT A TRACT OF LAND ON THE EAST SIDE OF PARCEL "B", ACCORDING TO THE PLAT 36 THEREOF RECORDED IN BOOK 802, PAGE 672, DALLAS COUNTY RECORDER’S OFFICE. SAID TRACT IS LOCATED IN THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 30, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, AND DESCRIBED AS FOLLOWS: BEGINNING AT A CAPPED IRON PIPE AT THE NORTHEAST CORNER OF SAID PARCEL “B"; THENCE N 89°26’19" E A DISTANCE OF 47.00' TO A CAPPED IRON ROD; THENCE S 00°01'20" E A DISTANCE OF 933.32' TO A CAPPED IRON ROD; THENCE S 89°26'37" W A DISTANCE OF 47.00' TO A CAPPED IRON PIPE; THENCE N 00°01’20”W A DISTANCE OF 933.31’ TO POINT OF BEGINNING. CONTAINING 1.00 ACRES INCLUDING 0.04 ACRES OF COUNTY ROAD RIGHT OF EASEMENT: and, The West Half (W1/2) of the Southwest Quarter (SW 1/4) and the West 7/8 of the East Half (W7/8 E1/2) of the Southwest Quarter (SW1/4) all in Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, The North Half (N1/2) of the Northeast Quarter (NE1/4) of Section 30, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) AND THE WEST 38.50 ACRES OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER (SW 1/4 SE 1/4) AND THE EAST 4 ACRES OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER (SE 1/4 SW 1/4) AND THE WEST 38.50 ACRES OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER (NW 1/4 SE 1/4) AND THE EAST 4 ACRES OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER (NE 1/4 SW 1/4) AND 80 ACRES OFF THE EAST SIDE OF THE SOUTHEAST QUARTER (SE 1/4) WHICH INCLUDES 3 ACRES IN THE WEST HALF (W 1/2) OF THE SOUTHEAST QUARTER (SE 1/4), ALL IN SECTION THIRTY (30), TOWNSHIP SEVENTY-NINE (79) NORTH, RANGE TWENTY-SIX (26) WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA SOUTH OF HWY 6 THE EAST HALF (E ½) OF THE NORTHEAST QUARTER (NE ¼) OF SECTION 35 IN TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, EXCEPTING THE EAST 2 RODS OF THE NORTH 82 RODS OF THE SAID EAST 1/2 OF THE NORTHEAST ¼; ALSO EXCEPT THE NORTH 440 FEET OF THE WEST 262 FEET OF SAID NE ¼; EXCEPT THEREFROM U.S. HIGHWAY NO. 6 RIGHT-OF-WAY ON THE NORTH 50 FEET, AND SUBJECT TO COUNTY ROAD RIGHT-OF-WAY ON THE WEST 12 FEET OF THE SOUTH 160.8 FEET OF THE FOREGOING DESCRIBED PARCEL, ALL NOW BEING IN AND FORMING A PART OF DALLAS COUNTY, IOWA; and, THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER (SE¼ SE¼) OF SECTION 35, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE NORTHWEST 1/4 OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M. AND THE EAST 2 RODS OF THE NORTH 82 RODS OF EAST 1/2 OF THE NORTHEAST 1/4 OF SECTION 35, TOWNSHIP 79, RANGE 27 WEST OF THE 5TH P.M, DALLAS COUNTY, IOWA; EXCEPT LAND DEEDED TO THE STATE OF IOWA AS RECORDED IN BOOK 849, AT PAGE 375; and, THE NORTHEAST QUARTER (NE1/4) OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, EXCEPT LAND DEEDED TO THE STATE OF IOWA IN WARRANTY DEED RECORDED IN BOOK 844, PAGE 328, IN THE OFFICE OF DALLAS COUNTY RECORDER; and, THE SOUTHWEST QUARTER (SW1/4) AND THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER (NW1/4 SE1/4) OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH 37 P.M., DALLAS COUNTY, IOWA; and, THE WEST 73 ACRES OF THE S1/2 OF THE SE1/4 OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE EAST 57 ACRES OF THE NORTH ½ OF THE SOUTHEAST ¼ OF SECTION 31, TOWNSHIP 79 NORTH OF RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, BEGINNING AT THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE S00°58'53"W, ALONG THE EAST LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 1,313.46 FT. TO THE SOUTHEAST CORNER OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26; THENCE S89°51'29"E, ALONG THE NORTH LINE OF THE SE1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 1,317.53 FT. TO THE NORTHEAST CORNER OF THE SE1/4 OF THE NW1/4 OF SAID SECTION 31-79-26; THENCE S01°00'17"W, ALONG THE EAST LINE OF THE SE1/4 OF THE NW1/4 OF SAID SECTION 31 -79-26, 1,305.44 FT. TO THE CENTER OF SAID SECTION 31-79-26; THENCE S01°03'22"W, ALONG THE EAST LINE OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 860.52 FT.; THENCE N89°42'57"W, 1,320.15 FT. TO A POINT ON THE WEST LINE OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N01°05'55"E, ALONG THE WEST LINE OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 854.83 FT. TO THE NORTHWEST CORNER OF THE NE1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N89°57'48"W, ALONG THE SOUTH LINE OF THE SW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 660.98 FT.; THENCE N01°03'33"E, 2,620.95 FT. TO A POINT ON THE NORTH LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31 -79-26; THENCE N90°00'00"E, ALONG THE NORTH LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 660.00 FT TO THE POINT OF BEGINNING. ALL OF SAID PARCEL BEING LOCATED IN THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA. SAID PARCEL IS SUBJECT TO AN EXISTING PUBLIC ROAD EASEMENT ON THE NORTH 100.00 FT. THEREOF (1.5153 ACRES) EXCEPT BEGINNING AT THE NE CORNER OF THE NW1/4 NW1/4 OF SAID SECTION 31; THENCE S0°16'34"W ALONG THE EAST LINE OF SAID NW1/4 NW1/4 OF SEC. 31, 194.81 FT; THENCE S89°57'26"W, 661.11 FT.; THENCE N0°46'58"E, 192.13 FT. TO A POINT ON THE NORTH LINE OF SAID SEC. 31; THENCE N89°43'25"E ALONG SAID NORTH LINE, 659.43 FT. TO THE POINT OF BEGINNING; and, BEGINNING AT THE NORTHWEST CORNER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE N90°00'00"E, ALONG THE NORTH LINE OF THE NW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 912.34 FT.; THENCE S01°03'33"W, 2,620.95 FT. TO A POINT ON THE SOUTH LINE OF THE SW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26; THENCE N89°57'48"W, ALONG THE SOUTH LINE OF THE SW1/4 OF THE NW1/4 OF SAID SECTION 31-79-26, 884.19 FT. TO THE WEST ¼ CORNER OF SAID SECTION 31-79-26; THENCE N 00°26'36"E, ALONG THE WEST LINE OF THE NW1/4 OF SAID SECTION 31-79-26, 2,620.02 FT. TO THE POINT OF BEGINNING. ALL OF SAID PARCEL BEING LOCATED IN THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA. SAID PARCEL IS SUBJECT TO AN EXISTING PUBLIC ROADWAY EASEMENT ON THE NORTH 100.00 FT. THEREOF (2.0932 ACRES) EXCEPT BEGINNING AT THE NW CORNER OF SAID SEC. 31; THENCE N89°43'25"E ALONG THE NORTH LINE OF SAID SEC. 31, 911.55 FT.; THENCE S0°46'58"W, 192.13 FT.; THENCE S89°57'26"W, 909.37 FT TO A POINT ON THE WEST LINE OF SAID SEC. 31; THENCE N0°08'15"E ALONG SAID WEST LINE, 188.39 FT. TO THE POINT OF BEGINNING; and, THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 36, TOWNSHIP 79 NORTH, RANGE 27 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, 38 BEGINNING AT THE WEST ¼ CORNER OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; THENCE S89°57'48"E, ALONG THE NORTH LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 884.19 FT.; THENCE S01°03'33"W, 1,312.92 FT TO A POINT ON THE SOUTH LINE OF THE NW1/4 OF THE SW 1/4 OF SAID SECTION 31-79-26; THENCE N89°31'38"W, ALONG THE SOUTH LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 874.47 FEET TO THE SOUTHWEST CORNER OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26; THENCE N00°38'13"E, ALONG THE WEST LINE OF THE NW1/4 OF THE SW1/4 OF SAID SECTION 31-79-26, 1,306.12 FT TO THE POINT OF BEGINNING. ALL OF SAID PARCEL BEING LOCATED IN THE NW1/4 SW1/4 OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, Beginning at the Southeast corner of the Northwest Quarter of the Southwest Quarter of Section Thirty-one (31), Township Seventy-nine (79) North, Range Twenty-six (26) West of the 5th P.M., Dallas County, Iowa; thence N 89°31'38" W along the South line of the NW 1/4 of the SW 1/4 o f said Section 31-79-26, 660.00 feet; thence N 01°03'33" E, 1312.92 feet to a point on the North line of the NW 1/4 of SW 1/4 of said Section 31-79-26; thence S 89°57'48" E, along the North line of the NW 1/4 of the SW 1/4 of said Section 31-79-26, 660.98 feet to the Northeast corner of the NW 1/4 of the SW 1/4 of said Section 31-79-26; thence S 01°05'55" W, along the East line of the NW 1/4 of the SW 1/4 of said Section 31-79-26, 1317.96 feet to the point of beginning. All of said parcel being part of the Northwest Quarter of the Southwest Quarter of Section 31, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa; and, THE SOUTHEAST ¼ OF THE SOUTHEAST ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; EXCEPT PARCEL A AS SHOWN ON THE PLAT OF SURVEY RECORDED IN BOOK 2002, AT PAGE 14752; and, THE NORTHEAST QUARTER (NE ¼) OF THE NORTHWEST QUARTER (NW ¼), EXCEPT A PARCEL OF LAND LOCATED IN THE NE ¼ NW ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NW CORNER OF THE NE ¼ NW ¼ OF SAID SECTION 31; THENCE N 89°43'25" E ALONG THE NORTH LINE OF SAID SECTION 31, 1,193.34 FEET TO THE N ¼ CORNER OF SAID SECTION 31; THENCE S 0°16'34" W ALONG THE EAST LINE OF THE NW ¼, 199.67 FEET; THENCE S 89°57'26" W, 1002.08 FEET, THENCE S 0°02'34" E, 39.37 FEET; THENCE S 89°57'26" WEST, 191.44 FEET TO A POINT ON THE WEST LINE OF THE NE ¼ NW ¼ OF SAID SECTION 31; THENCE N 0°16'34" E ALONG SAID WEST LINE, 234.18 FEET TO THE POINT OF BEGINNING; and, THE NORTHEAST QUARTER (NE ¼) OF THE NORTHEAST QUARTER (NE ¼), EXCEPT THE SOUTH 466.70 FEET OF THE NORTH 541.70 FEET OF THE EAST 496.70 FEET OF THE NE ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, ALL OF WHICH IS MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NE CORNER OF SAID SECTION 31, THENCE S 0°00' E, ALONG THE EAST LINE OF THE NE ¼ OF SAID SECTION 31, 75.0 FEET, TO THE POINT OF BEGINNING, THENCE CONTINUING S 0°00' E, ALONG THE EAST LINE OF THE NE ¼ OF SAID SECTION 31, 466.70 FEET, SAID EAST LINE OF THE NE ¼ OF SAID SECTION 31 IS PARALLEL WITH AND 10.0 FEET WEST OF THE CENTER LINE OF AN EXISTING NORTH SOUTH COUNTY ROAD, AS IT IS PRESENTLY ESTABLISHED, THENCE S 89°01' W, 496.70 FEET; THENCE N 0°00' E, 466.70 FEET TO A POINT THAT IS ON THE SOUTH RIGHT-OF-WAY LINE OF U.S. HIGHWAY NO. 6, AS IT IS PRESENTLY ESTABLISHED, THENCE N 89°01' E, ALONG THE SOUTH RIGHT-OF-WAY LINE OF SAID U.S. HIGHWAY NO. 6, 496.70 FEET, TO THE POINT OF BEGINNING. AND EXCEPT A PARCEL OF LAND IN THE NE ¼ NE ¼ OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SAID SECTION 31; THENCE S 89°41'48" W ALONG THE NORTH LINE OF SAID 39 SECTION 31, 496.70 FEET TO THE POINT OF BEGINNING, THENCE S 0°29'46" W, 205.42 FEET; THENCE S 89°09'34" W, 887.13 FEET; THENCE N 0°23'11" E, 213.74 FEET TO A POINT ON SAID NORTH LINE OF SECTION 31; THENCE N 89°41'48" E ALONG SAID NORTH LINE, 887.38 FEET TO THE POINT OF BEGINNING; and, THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHEAST QUARTER (NE 1/4), EXCEPT A PARCEL OF LAND IN THE NW 1/4 NE 1/4 OF SECTION 31-79-26 OF THE 5TH P.M., DALLAS COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE N 1/4 CORNER OF SAID SECTION 31; THENCE N 89°59'35" E, ALONG THE NORTH LINE OF SAID SECTION 31, 1384.08 FEET; THENCE S 0°23'11" W, 213.74 FT.; THENCE N 89°59'35" W, 755.20 FT.; THENCE N 89°23'41" W, 628.42 FT., TO A POINT ON THE WEST LINE OF THE NW 1/4 NE 1/4 OF SAID SECTION 31; THENCE N 0°16'34" E, ALONG SAID WEST LINE, 199.67 FT TO THE POINT OF BEGINNING; AND THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) ALL IN SECTION THIRTY-ONE (31), TOWNSHIP SEVENTY-NINE (79) NORTH, RANGE TWENTY-SIX (26) WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA; and, THE SOUTHWEST QUARTER (SW1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION 31, TOWNSHIP 79 NORTH, RANGE 26 WEST OF THE 5TH P.M., DALLAS COUNTY, IOWA. (the "Development Property"); and WHEREAS, the term of the Agreement commenced on the ____ day of ________________, 2017 and terminates as set forth in the Agreement; and WHEREAS, the City and Developer desire to record a Memorandum of the Agreement referring to the 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. 40 IN WITNESS WHEREOF, the City and Developer have executed this Memorandum of Agreement for Private Development on the ______ day of ___________________, 2017. (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 ________________________, 2017, 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 41 PLACEHOLDER By: ___________________________________ ATTEST: By: _____________________________ STATE OF _____ ) ) SS COUNTY OF_______ ) On this _______ day of ________________, 2017, before me the undersigned, a Notary Public in and for said State, personally appeared _________ and________________, to me personally known, who, being by me duly sworn, did say that they are the _____________and____________, respectively, of Placeholder, and that said instrument was signed on behalf of said corporation; and that the said ______________ and ________________ as such officers, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by them voluntarily executed. ______________________________________ Notary Public in and for the State of _________ 42 EXHIBIT D DEVELOPER ANNUAL CERTIFICATION (due before November 1st as required under terms of Development Agreement) The Developer certifies the following: A. During the time period covered by this Certification, the Developer is and was in compliance with Section 6.7 as follows: (i) attached hereto is proof that all ad valorem taxes on the Development Property and Buildings that are not abated have been paid for the prior fiscal year and any taxes due and payable for the current fiscal year as of the date of certification; and (ii) the Buildings in Projects _____ are completed pursuant to Article III and assessed according to Section 4.1 of the Agreement; and (iii) the number of Full-time Equivalent (FTE) Jobs at the Qualifying Wage Threshold as of October 1, _____ and as of the first day of each of the preceding eleven (11) months were as follows for each completed Project: Project No. ______ 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, __:_______ (Please attach like information for each completed Project); and (iv) the officer signing below has re-examined the terms and provisions of this Agreement and that at the date of such certificate, and during the preceding twelve (12) months, Developer is not, and 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 certificate or during such period, or if the signer is aware of any such default, event or 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. . 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___. PLACEHOLDER By: ______________________________ 43 EXHIBIT E Minimum Assessment Agreement between the City of Waukee and Placeholder THIS MINIMUM ASSESSMENT AGREEMENT ("Minimum Assessment Agreement" or "Assessment Agreement"), is dated as of the ___day of ________________2017, by and between the CITY OF WAUKEE, IOWA (the "City"), an Iowa municipal corporation, acting under the authorization of Chapter 403 of the Code of Iowa, 2017, as amended, and PLACEHOLDER, a __________ corporation, having an office for the transaction of business at _____________________ ("Developer"). RECITALS WHEREAS, the City and Developer have entered into a Development Agreement dated as of ___day of ______________ 2017 ("Agreement" or "Development Agreement") regarding certain real property located in the City, which is legally described as follows: [insert legal for that portion of Development Property supporting applicable Project] ("Project ____ Development Property"); WHEREAS, the defined terms in the Development Agreement will also apply to this Minimum Assessment Agreement; and WHEREAS, it is contemplated that Developer undertake the construction of Data Center Buildings (as described in the Development Agreement) on the Project ____ Development Property, as provided in the Development Agreement; and WHEREAS, pursuant to Section 403.6(19) of the Code of Iowa, as amended, the City and Developer desire to establish a minimum actual value for each Data Center Building to be constructed on the Project ____ Development Property by Developer pursuant to the Development Agreement; and WHEREAS, the City and the Dallas County Assessor have reviewed the preliminary plans and specifications for the Data Center Buildings that are contemplated to be constructed; and NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in consideration of the promises, covenants and agreements made by each other, do hereby agree as follows: 1. Upon substantial completion of construction of each Data Center Building, the Minimum Actual Value fixed for assessment purposes for each Data Center Building on the Project _____ Development Property (building only) shall be not less than Two Hundred Million Dollars ($200,000,000) [for Projects after the Initial Project, the Minimum Actual Value for each Data 44 Center Building shall be not less than $909 per square foot]. The Minimum Actual Value is the value before commercial rollback. The Minimum Actual Value(s) for each Data Center Building shall terminate and be of no further force or effect as of the earlier of (i) the last fiscal year the City can legally collect incremental taxes based upon the construction of that Data Center Building under Iowa Code 403.19(2); or (ii) the first fiscal year that the Data Center Building is no longer eligible to receive the Economic Development Abatement described in the Development Agreement ("Assessment Termination Date"). Upon the occurrence of the Assessment Termination Date for each Data Center Building, the City shall certify to the Assessor and to the Developer that the Assessment Termination Date has occurred for that Data Center Building and this Minimum Assessment Agreement shall no longer control the assessment of that Data Center Building. The Minimum Actual Value shall be maintained until the Assessment Termination Date regardless of (a) destruction of all or any portion of the Data Center Building; (b) diminution in value of the Data Center Building; or (c) any other circumstance, whether known or unknown and whether now existing or hereafter occurring. 2. Developer shall pay or cause to be paid when due all real property taxes and assessments payable with respect to all and any parts of the Project ____ Development Property and the Data Center Buildings pursuant to the provisions of this Minimum Assessment Agreement and the Development Agreement. Such tax payments shall be made without regard to any loss, complete or partial, to the Project ____ Development Property or the Data Center Buildings, any interruption in, or discontinuance of, the use, occupancy, ownership or operation of the Data Center Buildings by Developer, or any other matter or thing which for any reason interferes with, prevents or renders burdensome the use or occupancy of the Project ____ Development Property or the Data Center Buildings. 3. Developer agrees that its obligations to make the tax payments required hereby, to pay the other sums provided for herein, and to perform and observe its other agreements contained in this Minimum Assessment Agreement shall be absolute and unconditional obligations of Developer (not limited to the statutory remedies for unpaid taxes) and that Developer shall not be entitled to any diminution thereof, or set off therefrom, nor to any early termination of this Minimum Assessment Agreement for any reason. 4. Developer agrees that, prior to the termination of this Assessment Agreement for a particular Data Center Building, it will not: (a) bring or join an action for judicial or administrative review of the constitutionality of any property tax statute relating to the taxation of the Data Center Building or raise the constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; or (b) seek any property tax exemption, deferral or abatement, either presently or prospectively authorized under Iowa Code Chapter 403 or 404, or any other local, City, or State law or regulation, of the taxation of the Data Center Building, with the exception of 45 the Economic Development Abatement specifically provided for in the Development Agreement; or (c) request the Assessor to reduce the Minimum Actual Value for the Data Center Building; or (d) appeal to the board of review of the County, State, District Court, or to the Director of Revenue of the State to reduce the Minimum Actual Value for the Data Center Building; or (e) cause a reduction in the actual value or the Minimum Actual Value for the Data Center Building through any other proceedings. 5. The parties agree that the Minimum Actual Value(s) set forth in this Assessment Agreement take into account the expectation that Developer may avail itself of the property tax exemptions provided by the State of Iowa's web search portal or data center exemptions (Iowa Code Sections 423.3(92-95) and 427.1(35-37)), and that such exemptions shall not reduce the property tax assessments for any Data Center Building below the Minimum Actual Value(s) set forth herein. 6. This Minimum Assessment Agreement shall be promptly recorded by the City with the Recorder of Dallas County, Iowa. Such filing shall constitute notice to any subsequent encumbrancer of the Project _____ Development Property (or part thereof), whether voluntary or involuntary, and this Minimum Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent encumbrancer, including the holder of any mortgage. The City shall pay all costs of recording. 7. Neither the preambles nor provisions of this Minimum Assessment Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 8. This Minimum Assessment Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. 9. Nothing herein shall be deemed to waive the rights of Developer under Iowa Code Section 403.6(19) to contest that portion of any actual value assignment made by the Assessor in excess of the Minimum Actual Value established herein. In no event, however, shall Developer seek to reduce the actual value for any Data Center Building to an amount below the Minimum Actual Value(s) established herein during the term of this Agreement. This Minimum Assessment Agreement may be amended or modified and any of its terms, covenants, representations, warranties or conditions waived, only by a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. 9. If any term, condition or provision of this Minimum Assessment Agreement is for any reason held to be illegal, invalid or inoperable, such illegality, invalidity or inoperability 46 shall not affect the remainder hereof, which shall at the time be construed and enforced as if such illegal or invalid or inoperable portion were not contained herein. 10. The Minimum Actual Value(s) herein established shall be of no further force and effect and this Minimum Assessment Agreement shall terminate for each Data Center Building pursuant to the Assessment Termination Date set forth in Section 1 above. 11. Developer has provided a title opinion or lien or title search/certificate to City listing all lienholders of record as of the date of this Assessment Agreement and all such lienholders have signed a consent to this Assessment Agreement substantially in the form of the Lienholder Consent attached hereto, which consents are attached hereto and made a part hereof. Remainder of this page is blank. Signatures start on the next page. 47 (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 ________________________, 2017, 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 48 PLACEHOLDER By: ___________________________________ ATTEST: By: _____________________________ STATE OF _____ ) ) SS COUNTY OF_______ ) On this _______ day of ________________, 2017, before me the undersigned, a Notary Public in and for said State, personally appeared _________ and________________, to me personally known, who, being by me duly sworn, did say that they are the _____________and____________, respectively, of Placeholder, and that said instrument was signed on behalf of said corporation; and that the said ______________ and ________________ as such officers, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by them voluntarily executed. ______________________________________ Notary Public in and for the State of ________ 49 EXHIBIT E (Cont.) LIENHOLDER CONSENT In consideration of one dollar and other valuable consideration, the receipt of which is hereby acknowledged, and notwithstanding anything in any loan or security agreement to the contrary, the undersigned ratifies, approves, consents to and confirms the Minimum Assessment Agreement entered into between the parties, and agrees to be bound by its terms and subordinates any previously acquired mortgage, lien or other interest in the Development Property to the City of Waukee, Iowa. This provision shall be binding on the parties and their respective successors and assigns. _________________________________ Name of Lienholder By: ______________________________ Signature By: ______________________________ Signature ______________________________ Date STATE OF IOWA ) ) SS COUNTY OF __________ ) On this _____ day of __________________, 2017, before me the undersigned, a Notary Public in and for said County, in said State, personally appeared _________________________ and ______________________, to me personally known, who, being by me duly sworn, did say that they are the __________________ and ______________________ of ______________________________ and that said instrument was signed on behalf of said company, and that the said acknowledged the execution of said instrument to be the voluntary act and deed of said domestic company, by them voluntarily executed. ______________________________________ Notary Public in and for the State of Iowa [add additional pages for each lienholder] Note: If there are no lienholders, this page shall have no signatures. 50 EXHIBIT E (Cont.) CERTIFICATION OF ASSESSOR The undersigned, having reviewed the plans and specifications for the Data Center Buildings to be constructed, and being of the opinion that the minimum market value contained in the foregoing Minimum Assessment Agreement appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible for the assessment of the Data Center Buildings on the Project ___ Development Property described in the foregoing Minimum Assessment Agreement, certifies that the actual value assigned to each Data Center Building (building only) upon completion shall be at least Two Hundred Million Dollars ($200,000,000) [for Projects after the Initial Project, the Minimum Actual Value for each Data Center Building shall be not less than $909 per square feet] until the Assessment Termination Date contained in Section 1 of the Assessment Agreement. The Minimum Actual Value is the value before commercial rollback. ____________________________________ Assessor for the County of Dallas, Iowa ______________________________ Date STATE OF IOWA ) ) SS COUNTY OF DALLAS ) Subscribed and sworn to before me by ________________________, Assessor for the County of Dallas, Iowa on this _____ day of ____________________, 2017. ________________________________ Notary Public for the State of Iowa - 51 - EXHIBIT E (cont.) Consistent with Iowa Code §403.6(19)(b), filed with this assessor certification is a copy of subsection 19 as follows: 19. a. A municipality, upon entering into a development or redevelopment agreement pursuant to section 403.8, subsection 1, o r as otherwise permitted in this chapter, may enter into a written assessment agreement with the developer of taxable property in the urban renewal area which establishes a minimum actual value of the land and completed improvements to be made on the land until a specified terminatio n date which shall not be later than the date after which the tax increment will no longer be remitted to the municipality pursuant to section 403.19, subsection 2. The assessment agreement shall be presented to the appropriate assessor. The assessor shall review the plans and specificatio ns for the improvements to be made and if the minimum actual value contained in the assessment agreement appears to be reasonable, the a ssessor shall execute the following certification upon the agreement: The undersigned assessor, being legally responsible for the assessment of the above described property upon completion of the improvements to be made on it, certifies that the actual value assigned to that land and improvements upon completion shall not be less than $ ......... b. This assessment agreement with the certification of the assessor and a copy of this subsection shall be filed in the office of the county recorder of the county where the property is located. Upon completion of the improvements, the assessor shall value the property as re quired by law, except that the actual value shall not be less than the minimum actual value contained in the assessment agreement. This subs ection does not prohibit the assessor from assigning a higher actual value to the property or prohibit the owner from seeking administrative or legal remedies to reduce the actual value assigned except that the actual value shall not be reduced below the minimum actual value contained i n the assessment agreement. An assessor, county auditor, board of review, director of revenue, or court of this state shall not reduce or order the reduction of the actual value below the minimum actual value in the agreement during the term of the agreement regardless of the actual value which may result from the incomplete construction of improvements, destruction or diminution by any cause, insured or uninsured, except in the case of acquisition or reacquisition of the property by a public entity. Recording of an assessment agreement complying with this sub section constitutes notice of the assessment agreement to a subsequent purchaser or encumbrancer of the land or any part of it, whether voluntary or involuntary, and is binding upon a subsequent purchaser or encumbrancer. - 52 - EXHIBIT F Illustration of Public Improvements - 53 - 01396160-1\21938-138 1 PUBLIC IMPROVEMENT AGREEMENT AND FUND This PUBLIC IMPROVEMENT AGREEMENT AND FUND ("Agreement") is made and entered into, to be effective as of ____________________, 2017, by and between the City of Waukee, Iowa, an Iowa municipality ("City") and PLACEHOLDER*, a __________________ Corporation ("Developer"). * The name of the contracting party (the “Developer”) is being withheld at this time pursuant to the limitations within Iowa Code Section 22.7(8) during the pendency of negotiations between the Developer and the Iowa Economic Development Authority. WITNESSETH: WHEREAS, the Developer entered into an Agreement for Private Development with the City, dated _______, 2017, concerning the development of certain land within the City and executed contemporaneously herewith (“Development Agreement”); and WHEREAS, Developer is embarking on a significant development in the City which is requiring the City to expedite the completion of certain infrastructure as described in the Development Agreement; and WHEREAS, the increased pace of economic development is anticipated to increase demands on the City’s infrastructure, public safety buildings, cultural, civic and educational facilities and other amenities; and WHEREAS, to accommodate the increased demand for public facilities and services, the City plans to extend certain public infrastructure, enhance service capabilities, and provide amenities for the benefit of the community, the Developer and its employees; and WHEREAS, the Developer wishes to support the City’s development of City infrastructure, public safety buildings, cultural, civic and educational facilities and other amenities; and WHEREAS, the Developer has agreed to make certain payments to the City to assist the City to improve and develop other City infrastructure, public safety buildings, cultural and educational facilities and other amenities, and the City has agreed to plan and develop such public infrastructure, facilities and amenities as funds allow; and WHEREAS, a Public Improvement Fund is being designed to leverage the resources of the City to improve the quality of life for all citizens both today and into the future, and WHEREAS, the City plans to develop a Civic Campus with a focus on meeting the needs of Waukee residents and Waukee School District students; and 2 WHEREAS, to further the purposes of this Agreement, the City may expedite work on the anticipated improvements for the benefit of the growing community and the Developer, and reduce its reliance on property and other tax revenues to do the same; and WHEREAS, the purpose and intent of this Agreement is to reduce to writing the agreements of the parties and to further memorialize how the Public Improvement Fund created herein shall be enabled, operated and managed; and WHEREAS, the City agrees to administer the Public Improvement Fund in accordance with this Agreement. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein and in the Development Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions. The following terms used in this Agreement shall have the meanings set forth below in this Section. Any term used in this Agreement and not defined shall have the meaning given to that term in the Development Agreement. a) "Campus" means Property acquired by the City, and the associated street, water, gas, storm sewer, green space, park, detention/retention pond infrastructure installed by the City consistent with this Agreement for the purpose of the construction of community facilities contemplated by Section 3(b) of this Agreement. b) “Public Improvements” means public improvements acquired and undertaken by the City for the benefit of the Developer, the public and its citizens. c) "Committee" means the Public Improvement Fund Committee established by the City in accordance with Section 4 of this Agreement. d) “Data Center Building” means each structure subject to property tax constructed by Developer on the Development Property which houses data center equipment. e) “Development Property” means the property described in Exhibit A to the Development Agreement. f) “District” means the Waukee Community School District. g) "Fund" means the Public Improvement Fund established pursuant to this Agreement. h) “Public Improvement Costs” means any and all engineering, planning, design, financing, permitting, legal and other costs and expenses incurred by the City to design and plan the Public Improvements, plus the cost of all land acquisition, materials, labor, and associated expenses related to the construction of the Public Improvements, including but not limited to those improvement costs defined under Iowa Code Section 384.24(5), 384.37(19), (23), and (26), and/or 364.19 and any other costs associated with completing the Public Improvements. 3 2. Expedited Public Improvements. The Developer has requested the City install certain Public Improvements on an expedited basis in order to facilitate its development of the Development Property it may acquire. City’s agreement to complete those Public Improvements as set forth in the Development Agreement, in addition to the other obligations assumed by the City in the Development Agreement and this Agreement, provide consideration for Developer’s obligations hereunder. 3. Public Improvements Fund. a) Developer Contribution to the Fund. The Developer agrees to make payments to the City for deposit into the Public Improvement Fund (“Fund”) in the annual amount of $500,000.00 for each Data Center Building constructed, commencing on the January 31 following issuance of the building permit for each such Data Center Building and continuing on each subsequent January 31 until the maximums set forth herein are reached. The total of the payments accruing for each separate Data Center Building shall not exceed $10,000,000.00 (Ten Million Dollars). The total of the payments for all Data Center Buildings shall not exceed $100,000,000.00 (One Hundred Million Dollars). The City shall issue a bill to Developer in a manner consistent with Section 6 by January 31 of each year for the payments due hereunder and Developer shall have forty five (45) days following receipt to issue payment to the City. b) Purpose of the Fund. The Fund shall be kept segregated in an interest bearing account and used by the City for the planning, property acquisition, construction, development and Public Improvement Costs related to: (i) City public infrastructure; (ii) the Campus and associated City buildings; (iii) common interest buildings whereby the City plans, constructs and operate buildings for the benefit of the residents and youth in the City; and (iv) other City owned off-Campus public facilities including but not limited to public safety facilities, sports facilities, recreational trails, parks, golf buildings and grounds and other recreational facilities for the benefit of the public. c) Interest. Any interest earned on the Fund shall remain in the Fund and disbursed in accordance with the provisions of this Agreement. d) City Use of Fund. Upon funds being received by the City, the Fund may be used by the City for the purposes set out in Section 3(b). At such time as the Committee established in Section 4 is constituted, the Fund may be used by the City for purposes set out in Section 3(b), after due consideration by the City Council of the recommendations by the Public Improvement Trust Committee established in Section 4. Except that in the event the City issues its bonds, notes or utilizes other financing mechanisms for the purposes contemplated in Section 3(b), the Fund, revenues thereof or future payments from the Developer may be pledged or otherwise utilized by the City towards the retirement of any such indebtedness. e) Reconciliation and Accounting. Beginning with fiscal year ending June 30, 2018, as part of the annual City audit undertaken by an auditor designated by the City, the Fund account shall be audited to assure compliance with the terms of this Agreement. 4 f) City's Ability to Borrow from Fund. The parties agree that the City may, as allowed by Iowa law for municipal inter-fund loans, borrow available funds from the Fund for uses outside this Agreement. All inter-fund loans from the Fund shall be reimbursed to the Public Infrastructure Fund with interest at a rate established in the most recent bond issue by the City preceding any such inter-fund loan. 4. Public Improvement Fund Committee. Upon the Fund receiving $20,000,000 in deposits, the City shall establish and maintain a committee known as the Public Improvement Fund Committee in accordance herewith. The Committee shall consist of the Mayor, a City Council Member appointed by the Mayor, the City administrator, a City staff member appointed by the Mayor with the approval of the City Council; the District Administrator, a District Board Member, and a District staff member appointed by the District Board. The Committee shall hold meetings at least annually so long as the Fund continues to have a balance. The Committee shall make recommendations to the City Council concerning those projects to be undertaken, in whole or in part, with funding from the Fund. The Committee meetings will be held in accordance with Iowa Code Chapter 21 and the public will be invited to attend and participate. 5. Off-set/Remedies/Termination. a. Should the City fail to rebate franchise fees under the terms of the Development Agreement, including due to the City’s non-appropriation of funding, then, in addition to any other legal or equitable remedies, the Developer shall have the right to terminate this Agreement or, in Developer’s election, to withhold and be relieved of the payments hereunder up to the amount of the franchise fee rebates owed the Developer. Under no circumstances, however, shall Developer be allowed to recover from the City any previous contributions to the Fund. b. Should the Developer fail to contribute to the Public Improvement Fund pursuant to the terms of this Agreement, then, in addition to any other legal or equitable remedies, the City shall have the right, in City’s election, to withhold and be relieved of making franchise fee rebate payments under the Development Agreement up to the amount of the unpaid contributions to the Public Improvement Fund pursuant to Section 7.2(f) of the Development Agreement. Under no circumstances, however, shall the City be allowed to terminate the Development Agreement as a remedy for Developer’s breach of this Agreement. c. If the Development Agreement terminates, this Agreement shall also terminate. d. Unless this Agreement is earlier terminated pursuant to the terms herein, this Agreement shall terminate upon the complete fulfillment of the Developer's obligations to make deposits into the Fund, unless otherwise amended or modified in writing by agreement of both parties. 6. Notices and Demands. Any notice under this Agreement shall be in writing and shall be effective upon receipt or refusal to accept delivery and shall be deemed properly given if: (i) personally delivered; (ii) deposited in the United States registered or certified mail, postage 5 prepaid; or (iii) sent by Federal Express or similar nationally recognized overnight courier service. For purposes of notice, the addresses of the parties shall be as set forth below, provided that a party may change its address for notices by giving written notice of such change to the other party in accordance with this provision: a. In the case of Developer, is addressed or delivered personally to Developer, at [NAME/ADDRESS]; and, Nyemaster Goode, P.C., 700 Walnut St, Ste 1600, Des Moines, IA 50309, Attn: Kathy Law; b. In the case of the City, is addressed to or delivered personally to the City at 230 West Hickman Road, Waukee, Iowa 50263, Attn: Becky Schuett, City Clerk.. 7. No Amendment. Nothing contained in this Agreement shall be construed to amend, modify, alter, change or supersede the terms and provisions of any other agreement with Developer. This Agreement shall not be modified or otherwise amended unless done so in writing and approved by the Developer and the City Council of the City of Waukee. 8. Choice of Law. This Agreement shall be construed and enforced in accordance with the laws of Iowa. 9. Successors and Assigns. The terms used to designate any of the parties herein shall be deemed to include the heirs, legal representatives, successors and assigns of such parties. The Developer may not assign its rights, interests, or obligations under this Agreement without first obtaining the City's prior written consent, which consent may not unreasonably be withheld or delayed. However, this Agreement may be assigned to the assignee of the Development Agreement without the City’s consent, provided the requirements, if any, set forth in the Development Agreement with respect to assigning the Development Agreement are satisfied. Assignment of this Agreement releases the Developer from liability and obligations hereunder. 10. Attorneys' Fees. In the event that any party shall engage the services of an attorney at law to enforce the provisions of this Agreement, the prevailing party shall pay all costs of such enforcement, including any reasonable attorneys' fees and costs actually incurred. 11. No Agency or Partnership. Nothing contained in this Agreement shall constitute the City as a joint venture, partner or agent of the Developer, or render the City liable for any debts, obligations, acts, omissions, representations or contracts of the Developer. 12. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original document and all of which together shall constitute one agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written. CITY OF WAUKEE, IOWA 6 By___________________________________, Mayor By___________________________________, City Clerk 7 ______________________________________ [Name of Developer] By: ________________________________________ Print Name: ___________________________ Print Title: ____________________________ STATE OF ____________ ) ) ss. COUNTY OF ____________) On this ____ day of ______________, 2017, before me, the undersigned, a Notary Public in and for the State of _____________, personally appeared _______________________, to me personally known, who being by me duly sworn, did say that the person is the ____________ of _______________________, a __________ ________________________, and that the instrument was signed on behalf of said Developer by authority of its _______________; and that said person acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the Developer and by it voluntarily executed. ____________________________________ Notary Public in and for the State of ______ My Commission expires ___________