HomeMy WebLinkAbout2017-11-06-I02 117 Land Company, RJ Lawn Service Development Agr_Approval AGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: November 6, 2017
AGENDA ITEM: Consideration of approval of a resolution approving and authorizing
execution of a Development Agreement by and among the City of
Waukee, 117 Land Company, LLC, and RJ Lawn Service, Inc.
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. Development Agreement
PREPARED BY: Becky Schuett
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
RESOLUTION NO. ______
RESOLUTION APPROVING AND AUTHORIZING
EXECUTION OF A DEVELOPMENT AGREEMENT BY AND
AMONG THE CITY OF WAUKEE, 117 LAND COMPANY,
LLC, AND RJ LAWN SERVICE, INC.
WHEREAS, by Resolution No. 17-483, adopted October 16, 2017, this Council found
and determined that certain areas located within the City are eligible and should be designated as
an urban renewal area under Iowa law, and approved and adopted the Southwest Business Park
Urban Renewal Plan (the "Plan") for the Southwest Business Park Urban Renewal Area (the
"Urban Renewal Area" or "Area") described therein, which Plan is 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 has received a proposal from 117 Land Company, LLC (the
"Developer") and RJ Lawn Services, Inc. (the "Employer"), in the form of a proposed
Development Agreement (the "Agreement") by and among the City, Developer, and Employer
pursuant to which Developer and Employer will develop certain property in the Area as defined
in the Agreement (the "Development Property"); and
WHEREAS, the Developer will transfer to McCarthy Brothers, LLC a portion of the
Development Property (as defined in the Agreement), which property will then be leased by
McCarthy Brothers, LLC to Employer (the "Employer Parcel"); and
WHEREAS, the Employer will construct certain Minimum Improvements on the
Employer Parcel as defined and legally described in the Agreement; and consisting of the
construction of a 4,960 square foot first floor office with a 4,300 square foot storage basement,
along with a 10,560 square foot separate warehouse building, together with all related site
improvements, as outlined in the proposed Development Agreement; and
WHEREAS, the Agreement contemplates the Developer will construct Public
Improvements described therein on the Development Property to prepare the Development
Property for further development; and
WHEREAS, the Agreement further proposes that the City will make up to two (2)
consecutive annual payments of Economic Development Grants to Employer consisting of 100%
of the Tax Increments derived from the Employer Parcel pursuant to Iowa Code Section 403.19,
as well as up to eight (8) consecutive annual payments of Economic Development Grants to
Developer consisting of 100% of the Tax Increments derived from the Employer Parcel, all such
Grants generated by the construction of the Minimum Improvements, under the terms and
following satisfaction of the conditions set forth in the Agreement; and
WHEREAS, the Agreement also proposes that the City will make up to five (5)
consecutive annual payments of Economic Development Grants to Developer consisting of
100% of the Tax Increments pursuant to Iowa Code Section 403.19, derived from those other
parcels of the Development Property that are developed, the cumulative total for all payments to
Developer not to exceed the lesser of $1,150,000, or the aggregate amount of the costs of the
Public Improvements, under the terms and following satisfaction of the conditions set forth in the
Agreement; and
WHEREAS, one of the obligations of Employer relates to employment retention and/or
creation; and
WHEREAS, Iowa Code Chapters 15A and 403 authorize cities to make loans and grants
for economic development in furtherance of the objectives of an urban renewal project and to
appropriate such funds and make such expenditures as may be necessary to carry out the
purposes of said Chapters, and to levy taxes and assessments for such purposes; and
WHEREAS, the Council has determined that the Agreement is in the best interests of the
City and the residents thereof and that the performance by the City of its obligations thereunder
is a public undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law
and, further, that the Agreement and the City's performance thereunder is in furtherance of
appropriate economic development activities and objectives of the City within the meaning of
Chapters 15A and 403 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
Agreement and has considered the extent of objections received from residents or property
owners as to said proposed 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 Agreement,
including but not limited to making of loans and grants to the Developer and the Employer in
connection with the development of the Development Property under the terms set forth in the
Agreement, be and is hereby declared to be a public undertaking and purpose and in furtherance
of the Plan and the Urban Renewal Law and, further, that the Agreement and the City's
performance thereunder is in furtherance of appropriate economic development activities and
objectives of the City within the meaning of Chapters 15A and 403 of the Iowa Code, taking into
account the factors set forth therein.
Section 2. That the form and content of the Agreement, the provisions of which are
incorporated herein by reference, be and the same hereby are in all respects authorized, approved
and confirmed, and the Mayor and the City Clerk be and they hereby are authorized, empowered
and directed to execute, attest, seal and deliver the Agreement for and on behalf of the City in
substantially the form and content now before this meeting, but with such changes,
modifications, additions or deletions therein as shall be approved by such officers, and that from
and after the execution and delivery of the Agreement, the Mayor and the City Clerk are hereby
authorized, empowered and directed to do all such acts and things and to execute all such
documents as may be necessary to carry out and comply with the provisions of the Agreement as
executed.
PASSED AND APPROVED this 6th day of November, 2017.
Mayor
ATTEST:
City Clerk
Execution Version
AGREEMENT FOR PRIVATE DEVELOPMENT
By and Among
CITY OF WAUKEE, IOWA
AND
117 LAND COMPANY, LLC
AND
RJ LAWN SERVICE, INC.
___________ _____, 2017
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AGREEMENT
FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT FOR PRIVATE DEVELOPMENT ("Agreement"), is made on or as
of the ____ day of ___________, 2017, by and among the CITY OF WAUKEE, IOWA, a
municipality (the "City"), established pursuant to the Code of Iowa and acting under the
authorization of Chapters 15A and 403 of the Code of Iowa, 2017, as amended ("Urban Renewal
Act"), and 117 LAND COMPANY, LLC, an Iowa limited liability company having offices for the
transaction of business at 9550 Hickman Road, Suite 101, Clive, IA 50325 ("Developer"), and RJ
LAWN SERVICE, INC., an Iowa Corporation, having offices for the transaction of business at
16180 SE Laurel Street, Waukee, IA 50263-8153 ("Employer"). The City, Developer, and
Employer are Parties to this Agreement.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the Ci ty has
undertaken a program for the development of an economic development area in the City and, in
this connection, is engaged in carrying out urban renewal project activities in an area known as the
Southwest Business Park Urban Renewal Area (the "Urban Renewal Area"), which is described in
the Urban Renewal Plan originally approved for such area by Resolution No.___________,
adopted______________; and
WHEREAS, a copy of the foregoing Urban Renewal Plan has been recorded among the
land records in the office of the Recorder of Dallas County, Iowa; and
WHEREAS, Developer owns or will own certain real property located in the foregoing
Urban Renewal Area as more particularly described in Exhibit A attached hereto and made a part
hereof ("Development Property"); and
WHEREAS, the Developer is willing to cause certain public infrastructure improvements
("Public Improvements") as more particular described in Exhibit B to be constructed on the
Development Property and which, upon acceptance by the City, shall be dedicated to the City; and
WHEREAS, Developer will transfer to McCarthy Brothers, LLC a portion of the
Development Property as more particularly described in Exhibit A attached hereto and made a part
hereof, which property will then be leased by McCarth y Brothers, LLC to Employer ("Employer
Parcel"); and
WHEREAS, Employer shall cause certain private improvements ("Minimum
Improvements") as more particularly described in Exhibit B to be constructed on the Employer
Parcel; and
WHEREAS, Employer shall operate its business at the Minimum Improvements and hire
and retain employees at the Minimum Improvements as set forth herein; and
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WHEREAS, the City believes that the development of the Development Property pursuant
to this Agreement and the fulfillment of this Agreement are in the vital and best interests of the
City and in accord with the public purposes and provisions of the applicable State and local laws
and requirements under which the foregoing project has been undertaken and is being assisted.
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:
117 Land Company TIF Account means a separate account within the Southwest Business
Park Urban Renewal Tax Increment Revenue Fund of the City in which Tax Increments received
by the City with respect to the Development Property shall be deposited.
Agreement means this Agreement and all exhibits and appendices hereto, as the same may
be from time to time be modified, amended, or supplemented.
Area or Urban Renewal Area shall mean the area known as the Southwest Business Park
Urban Renewal Area.
Certificate of Completion means a certification in the form of the certificate attached hereto
as Exhibit C-1 or C-2 and hereby made a part of this Agreement.
City means the City of Waukee, Iowa, or any successor to its functions.
Code means the Code of Iowa, 2017, as amended.
Commencement Date means the date of this Agreement.
Construction Plans means the plans, specifications, drawings, and related documents
reflecting the construction work to be performed by the Developer or Employer on the
Development Property; the Construction Plans shall be as detailed as the plans, specifications,
drawings, and related documents which are submitted to the building inspector of the City as
required by applicable City codes.
Developer means 117 Land Company, LLC, an Iowa limited liability company also doing
business under the name of 117 Land Company, Inc., and each assignee that assumes in writing
all of the obligations of the Developer under this Agreement with the written consent of the City
as provided in Section 8.1 of this Agreement.
Development Property means that portion of the Southwest Business Park Urban Renewal
Area described in Exhibit A.
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Economic Development Grants means the payments to be made by the City to the
Employer and Developer under Article IX of this Agreement.
Employer means RJ Lawn Service, Inc. and each assignee that assumes in writing all of
the obligations of the Employer under this Agreement with the written consent of the City as
provided in Section 8.1 of this Agreement.
Employer Parcel means that portion of the Development Property described in Exhibit A.
Event of Default means any of the events described in Section 12.1 of this Agreement that
have continued beyond applicable notice and cure periods.
Full-Time Equivalent Employment Unit means the employment of one person:
1. For 8 hours per day for a 5-day, 40-hour workweek for 52 weeks per year,
including paid holidays, vacations, and other paid leave; or
2. The number of hours or days per week, including paid holidays, vacations, and
other paid leave, currently established by schedule, custom, or otherwise, as
constituting a week of full-time work for the kind of service an individual performs
for an employing unit, provided that the number of hours per week is at least 32
hours per week for 52 weeks per year including paid holidays, vacations, and other
paid leave.
For purposes of this definition, "employment of one person" means the employment
of one natural person and does not include "job sharing" or any other means of
aggregation or combination of hours worked by more than one natural person.
Southwest Business Park Urban Renewal Tax Increment Revenue Fund means the special
fund of the City created under the authority of Section 403.19(2) of the Code and the Ordinance,
which fund will be created in order to pay the principal of and interest on loans, monies advanced
to or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other
obligations issued under the authority of Chapters 15A, 403, or 384 of the Code, incurred by the
City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal
Plan for the Urban Renewal Area.
Indemnified Parties means the City and the governing body members, officers, agents,
servants, and employees thereof.
Minimum Improvements means the construction of an approximately 25,000 square foot
building and related improvements, as more particularly described in Exhibit B and B-1 to this
Agreement.
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Mortgage means any mortgage or security agreement in which Developer has granted a
mortgage or other security interest in the Development Property, or any portion or parcel thereof,
or any improvements constructed thereon.
Ordinance means an Ordinance of the City, under which the taxes levied on taxable
property in the Urban Renewal Area shall be divided and a portion paid into the Southwest
Business Park Urban Renewal Tax Increment Revenue Fund pursuant to Iowa Code Section
403.19.
Project shall mean the construction of the Minimum Improvements and the Public
Improvements on the Development Property as described in this Agreement.
Public Improvements shall mean the construction of a street, street lights, and water and
sanitary sewer infrastructure on or adjacent to the Development Property to be completed by the
Developer, as detailed in Exhibit B attached to this Agreement.
Qualified Costs and Expenses means the costs and expenses related to the design and
construction of the Public Improvements, including the cost for acquisition of land within the right-
of-way to be dedicated to City, interest during construction and for not more than six months
thereafter, costs for landscaping, grading, drainage, engineering, performance and maintenance
bonds, and plans and specifications, and legal expenses related to those improvements or creation
of this Agreement, as more particularly described herein.
Tax Increments means the property tax revenue derived from private improvements on the
Development Property divided and made available to the City for deposit in the 117 Land
Company TIF Account of the Southwest Business Park Urban Renewal Tax Increment Revenue
Fund under the provisions of Section 403.19 of the Code, as amended, and the Ordinance.
Termination Date means the date of termination of this Agreement, as established in
Section 13.8 of this Agreement.
Unavoidable Delays means delays resulting from acts or occurrences outside the
reasonable control of the party claiming the delay including but not limited to storms, floods, fires,
explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other
labor disputes, delays in transportation or delivery of material or equipment, litigation commenced
by third parties, or the acts of any federal, State or local governmental unit (other than the City,
with respect to a City-claimed delay).
Urban Renewal Plan means the Urban Renewal Plan, as amended, approved with respect
to the Southwest Business Park Urban Renewal Area, described in the preambles hereof.
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ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the City. The City makes the following
representations and warranties:
a. The City is a municipal corporation and municipality organized under the
provisions of the Constitution and the laws of the State and has the power to enter into this
Agreement and carry out its obligations hereunder.
b. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a breach
of, the terms, conditions or provisions of any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which the City is now a party or by which it is
bound, nor do they constitute a default under any of the foregoing.
c. All covenants, stipulations, promises, agreements, and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and
obligations of the City, and not of any governing body member, officer, agent, servant , or
employee of the City in the individual capacity thereof.
Section 2.2. Representations and Warranties of Developer. Developer makes the
following representations and warranties:
a. The Developer is an Iowa limited liability company, duly organized and validly
existing under the laws of the State of Iowa, and it has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and as presently proposed to
be conducted, and to enter into and perform its obligations under the Agreement.
b. This Agreement has been duly and validly authorized, executed and delivered by
Developer and, assuming due authorization, execution, and delivery by the City and Employer, is
in full force and effect and is a valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally. The Developer's
attorney shall provide an enforceability opinion in the form of Exhibit F to be signed concurrently
with this Agreement.
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.
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d. There are no actions, suits, or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental body
in which there is a reasonable possibility of an adverse decision which could materially adversely
affect the business (present or prospective), financial position or results of operations of Developer
or which in any manner raises any questions affecting the validity of the Agreement or Developer's
ability to perform its obligations under this Agreement.
e. Developer has not received any notice from any local, State, or federal official that
the activities of Developer or Employer with respect to the Development Property may or will be
in violation of any environmental law or regulation (other than those notices, if any, of which the
City has previously been notified in writing). Developer is not currently aware of any State or
federal claim filed or planned to be filed by any party relating to any violation of any local, State,
or federal environmental law, regulation or review procedure applicable to the Development
Property, and Developer is not currently aware of any violation of any local, State , or federal
environmental law, regulation or review procedure which would give any person a valid claim
under any State or federal environmental statute with respect thereto.
f. Developer shall cooperate with the City in resolution of any traffic, parking, trash
removal, or public safety problems which may arise in connection with the construction and
operation of the Public Improvements.
g. Developer shall cause the Public Improvements to be constructed in accordance
with the terms of this Agreement, the Urban Renewal Plan, and all local, State, and federal laws
and regulations. Developer shall obtain or cause to be obtained, in a timely manner, all required
permits, licenses, and approvals, and shall meet, in a timely manner, all requirements of all
applicable local, State, and federal laws and regulations which must be obtained or met before the
Public Improvements may be lawfully constructed.
h. Developer shall dedicate (1) the Public Improvements and (2) all rights-of-way in
the Development Property to the City upon acceptance by the City, at no cost to the City.
i. It is anticipated that the construction of the Public Improvements will require a total
investment of approximately $1,150,000.
j. Developer has firm commitments for construction or acquisition and permanent
financing for the Public Improvements in an amount sufficient, together with equity commitments,
to successfully complete the Public Improvements in accordance with the Construction Plans
contemplated in this Agreement.
k. Developer expects that, barring Unavoidable Delays, the Public Improvements will
be completed by March 1, 2018.
l. Developer shall convey to McCarthy Brothers, LLC the Employer Parcel so as to
allow the Employer to cause the Minimum Improvements to be constructed thereon and satisfy the
job obligations set forth in this Agreement.
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m. Developer would not undertake its obligations under this Agreement without the
payment by the City of the Economic Development Grants being made to Developer pursuant to
this Agreement.
Section 2.3. Representations and Warranties of Employer. Employer makes the following
representations and warranties for the benefit of both the City and Developer:
a. Employer is a an Iowa Corporation duly organized and validly existing under the
laws of the State of Iowa, and has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed to be conducted,
and to enter into and perform its obligations under the Agreement.
b. This Agreement has been duly and validly authorized, executed and delivered by
Employer and, assuming due authorization, execution and delivery by the City and Developer, is
in full force and effect and is a valid and legally binding instrument of Employer 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. The Employer's
attorney shall provide an enforceability opinion in the form of Exhibit F to be signed concurrently
with this Agreement.
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 Employer
or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever
nature to which Employer 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 Employer in any court or before any arbitrator or before or by any governmental body in
which there is a reasonable possibility of an adverse decision which could materially adversely
affect the business (present or prospective), financial position or results of operations of Employer
or which in any manner raises any questions affecting the validity of the Agreement or Employer's
ability to perform its obligations under this Agreement.
e. Employer shall cause the construction of the Minimum Improvements on the
Employer Parcel, occupy the Minimum Improvements, and maintain its business operations and
add and retain employees at the Minimum Improvements as set forth herein.
f. Employer has not received any notice from any local, State, or federal official that
the activities of Developer or Employer 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). Employer 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 Employer is not currently aware of any violation of any local, State, or federal
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environmental law, regulation or review procedure which would give any person a valid claim
under any State or federal environmental statute with respect thereto.
g. It is anticipated that the construction of the Minimum Improvements will require a
total investment of not less than $1,900,000.
h. Employer or McCarthy Brothers, LLC has firm commitments for construction or
acquisition and permanent financing in an amount sufficient, together with equity commitments,
to successfully complete the Minimum Improvements.
i. Employer expects that, barring Unavoidable Delays, the Minimum Improvements
will be completed by March 1, 2018, and in no event shall the Minimum Improvements be
completed after January 1, 2019 (the "Outside Completion Date").
j. Employer will cooperate with the City in resolution of any traffic, parking, trash
removal, or public safety problems which may arise in connection with the construction and
operation of the Minimum Improvements.
l. Employer shall cause the Minimum Improvements to be constructed in accordance
with the terms of this Agreement, the Urban Renewal Plan, and all local, State, and federal laws
and regulations. Employer shall obtain or cause to be obtained, in a timely manner, all required
permits, licenses, and approvals, and shall meet, in a timely manner, all requirements of all
applicable local, State, and federal laws and regulations which must be obtained or met before the
Public Improvements may be lawfully constructed.
m. Employer would not undertake its obligations under this Agreement without the
payment by the City of the Economic Development Grants being made to Employer pursuant to
this Agreement.
ARTICLE III. CONSTRUCTION OF MINIMUM IMPROVEMENTS
Section 3.1. Construction of Minimum Improvements. Employer agrees that it will cause
the Minimum Improvements to be constructed on the Employer Parcel in conformance with the
Construction Plans submitted to the City in accordance with Section 3.2 below. Employer agrees
that the scope and scale of the Minimum Improvements to be constructed shall not be significantly
less than the scope and scale as detailed and outlined in the Construction Plans, the construction
of which is anticipated to require a total investment of not less than $1,900,000 in construction
costs.
Section 3.2. Construction Plans. Employer shall cause Construction Plans to be developed
for the Minimum Improvements, which shall be subject to approval by the Developer and City as
provided in this Section 3.2, and which approval shall not be unreasonably withheld, conditioned
or delayed. The Construction Plans shall be in conformity with the Urban Renewal Plan, this
Agreement, and all applicable State and local laws and regulations.
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The Developer and City shall approve the Construction Plans in writing if: (i) the
Construction Plans conform to the terms and conditions of this Agreement; (ii) the Construction
Plans conform to the terms and conditions of the Urban Renewal Plan; (iii) the Construction Plans
conform to all applicable federal, State, and local laws, ordinances, rules, and regulations, and City
permit requirements; (iv) the Construction Plans are adequate for purposes of this Agreement to
provide for the construction of the Minimum Improvements; and (v) no Event of Default under
the terms of this Agreement has occurred and is continuing beyond applicable notice and cure
periods; provided, however, that any such approval of the Construction Plans pursuant to this
Section 3.2 shall constitute approval for the purposes of this Agreement only and shall not be
deemed to constitute approval or waiver by the City with respect to any building, fire, zoning, or
other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve
as the basis for the issuance of a building permit if the Construction Plans are not as detailed or
complete as the plans otherwise required for the issuance of a building permit. The site plans
submitted to the building official of the City for the Development Property and the surrounding
areas where the Minimum Improvements are to be constructed shall be adequate to serve as the
Construction Plans for the Minimum Improvements, if such site plans are approved by the building
official.
Approval of the Construction Plans by the City shall not relieve any obligation to comply
with the terms and provisions of this Agreement, or the provision of applicable federal, State, and
local laws, ordinances and regulations.
Approval of Construction Plans hereunder is solely for purposes of this Agreement, and
shall not constitute approval for any other City purpose nor subject the City to any liability for the
Minimum Improvements as constructed.
Section 3.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, Employer shall cause construction of the Minimum Improvements to be undertaken and
completed: (i) by no later than the Outside Completion Date; or (ii) by such other date as the
parties shall mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be
added to extend this date by a number of days equal to the number of days lost as a result of
Unavoidable Delays. All work with respect to the Minimum Improvements shall be in conformity
with the Construction Plans approved by Developer and the building official or any amendments
thereto as may be approved by the building official.
Employer agrees that it shall permit designated representatives of the City, upon reasonable
notice (which does not have to be written), to enter upon the Employer Parcel during the
construction of the Minimum Improvements to inspect such construction and the progress thereof,
subject to Employer's rules and regulations for the construction site.
Section 3.4. Certificate of Completion for Minimum Improvements. Within fifteen (15)
business days after written request by Employer and after issuance of an occupancy permit for the
Minimum Improvements, the City shall furnish Employer with a Certificate of Completion for the
Minimum Improvements in recordable form, in substantially the form set forth in Exhibit C-1
attached hereto. Such Certificate of Completion shall be a conclusive determination of satisfactory
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termination of the covenants and conditions of this Agreement with respect to the obligations of
Employer to cause construction of the Minimum Improvements.
The Certificate of Completion may be recorded in the Dallas County Recorder's Office at
Employer's sole expense. If the City shall refuse or fail to provide a Certificate of Completion in
accordance with the provisions of this Section 3.4, the City shall, within such fifteen (15) business
day period, instead provide a written statement indicating in what respects Employer has failed to
complete the Minimum Improvements in accordance with the provisions of this Agreement, or is
otherwise in default under the terms of this Agreement, and what measures or acts it will be
necessary, in the opinion of the City, for Employer to take or perform in order to obtain such
Certificate of Completion.
Section 3.5. Employer Completion Guarantee. By signing this Agreement, Employer
hereby guarantees to the City and Developer performance by Employer of all the terms and
provisions of this Agreement pertaining to Employer's obligations with respect to the construction
of the Minimum Improvements. Without limiting the generality of the foregoing, Employer
guarantees that: (a) construction of the Minimum Improvements shall be completed within the
time limits set forth herein; (b) the Minimum Improvements shall be constructed and completed
in substantial accordance with the Construction Plans; (c) the Minimum Improvements shall be
constructed and completed free and clear of any mechanic's liens, materialman's liens , and
equitable liens; and (d) all costs of constructing the Minimum Improvements shall be paid when
due.
ARTICLE IV. CONSTRUCTION OF PUBLIC IMPROVEMENTS
Section 4.1. Construction of Public Improvements. Developer agrees that it will cause the
Public Improvements to be constructed on the Development Property in conformance with the
Construction Plans submitted to the City in accordance with Section 4.2 below. Developer agrees
that the scope and scale of the Public Improvements to be constructed shall not be significantly
less than the scope and scale as detailed and outlined in the Construction Plans, the construction
of which is anticipated to require a total investment of approximately $1,150,000 in construction
costs.
Section 4.2. Construction Plans. Developer shall cause Construction Plans to be developed
for the Public Improvements, which shall be subject to approval by the City as provided in this
Section 4.2, and which approval shall not be unreasonably withheld, conditioned, or delayed. The
Construction Plans shall be in conformity with the Urban Renewal Plan, this Agreement, and all
applicable State and local laws and regulations.
The City shall approve the Construction Plans in writing if: (i) the Construction Plans
conform to the terms and conditions of this Agreement; (ii) the Construction Plans conform to the
terms and conditions of the Urban Renewal Plan; (iii) the Construction Plans conform to all
applicable federal, State, and local laws, ordinances, rules, and regulations, and City permit
requirements; (iv) the Construction Plans are adequate for purposes of this Agreement to provide
for the construction of the Public Improvements; and (v) no Event of Default under the terms of
this Agreement has occurred and is continuing beyond applicable notice and cure periods;
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provided, however, that any such approval of the Construction Plans pursuant to this Section 4.2
shall constitute approval for the purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any building, fire, zoning, or other
ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the
basis for the issuance of a building permit if the Construction Plans are not as detailed or complete
as the plans otherwise required for the issuance of a building permit. The site plans submitted to
the building official of the City for the Development Property and the surrounding areas where the
Minimum Improvements are to be constructed shall be adequate to serve as the Construction Plans
for the Minimum Improvements, if such site plans are approved by the building official.
Approval of the Construction Plans by the City shall not relieve any obligation to comply
with the terms and provisions of this Agreement, or the provision of applicable federal, State, and
local laws, ordinances and regulations.
Approval of Construction Plans hereunder is solely for purposes of this Agreement, and
shall not constitute approval for any other City purpose nor subject the City to any liability for the
Public Improvements as constructed.
Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, Developer shall cause construction of the Public Improvements to be undertaken and
completed: (i) by no later than March 1, 2018; or (ii) by such other date as the parties shall
mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to
extend this date by a number of days equal to the number of days lost as a result of Unavoidable
Delays.
Developer agrees that it shall permit designated representatives of the City, upon
reasonable notice (which does not have to be written), to enter upon the Development Property
during the construction of the Public Improvements to inspect such construction and the progress
thereof, subject to Developer's rules and regulations for the construction site.
Section 4.4. Certificate of Completion for Public Improvements.
(a) Upon notice of completion of the Public Improvements by the Developer, the City shall
inspect the Public Improvements and determine whether they have been completed in accordance
with this Agreement. If the City finds that the Public Improvements have been duly completed in
compliance with this Agreement and all City ordinances, policies, and procedures, and the City
approves the Public Improvements, the Developer shall dedicate the Public Improvements to the
City and the City shall accept said dedication, at no cost to the City. If the City determines that
the Public Improvements are not acceptable, it shall notify the Developer within fifteen (15)
business days in the form described below.
(b) Upon written request of the Developer after completion of the Public Improvements,
the City will furnish the Developer with a Certificate of Completion, in substantially the form set
forth in Exhibit C-2 attached hereto. Such Certificate of Completion shall be a conclusive
determination of satisfactory termination of the covenants and conditions of this Agreement with
respect to the obligations of the Developer to construct the Public Improvements. The Certificate
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of Completion may be recorded in the proper office for the recordation of deeds and other
instruments pertaining to the Development Property at the Developer's sole expense. If the City
shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this
Section 4.4, the City shall, within fifteen (15) business days after written request by the Developer,
provide the Developer with a written statement indicating in adequate detail in what respects the
Developer has failed to complete the Public Improvements in accordance with the provisions of
this Agreement, or is otherwise in default under the terms of this Agreement, and what measures
or acts it will be necessary, in the opinion of the City, for the Developer to take or perform in order
to obtain such Certificate of Completion.
Section 4.5. No Special Legal Entitlements to Public Improvements.
(a) Developer and Employer recognize and agree that upon dedication to the City the Public
Improvements shall be owned and maintained by the City and that nothing in this Agreement
grants Developer or Employer any special legal entitlements or other rights not held by members
of the general public with respect to ownership, maintenance, or use of the Public Improvements.
(b) The Parties agree that the City and other Indemnified Parties are not responsible for and
will have no liability to Developer or Employer associated with the specifications, design, plans,
quality of construction, or sufficiency of the Public Improvements for any particular purpose.
Section 4.6. Certification. The Developer shall certify to the City the amount of all
Qualified Costs and Expenses of the Public Improvements submitted for reimbursement as
Economic Development Grants and that such amounts are true and correct. See Exhibit G for
the form of Certification. Such Certification shall be provided not later than October 15 of each
year in which Developer incurs Qualified Costs and Expenses for construction of the Public
Improvements as provided in Section 9.1 of this Agreement. Along with its Certification,
Developer shall attach documentation showing substantiation of Qualified Costs and Expenses
incurred for construction of the Public Improvements as provided in Section 9.1 of this
Agreement. Developer shall provide additional supporting information for its Certification upon
request of the City.
Section 4.7. Bonding Requirements. Developer shall obtain, or require each of its
general contractors to obtain, one or more bonds that guarantee the faithful performance of this
Agreement for, in the aggregate, the anticipated full value of the completed Public Improvements
and that further guarantee the prompt payment of all materials and labor. The performance
bond(s) for the Public Improvements shall remain in effect until construction of such Public
Improvements is completed, at which time a four-year maintenance bond shall be substituted for
each performance bond. The bonds shall clearly specify the Developer and City as joint
obligees. The Developer shall also comply with all City requirements for the construction of the
Public Improvements.
Section 4.8. Developer Completion Guarantee. By signing this Agreement,
Developer hereby guarantees to the City performance by Developer of all the terms and
provisions of this Agreement pertaining to Developer's obligations with respect to the
construction of the Public Improvements. Without limiting the generality of the foregoing,
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Developer guarantees that: (a) construction of the Public Improvements shall be completed
generally within the time limits set forth herein; (b) the Public Improvements shall be
constructed and completed in substantial accordance with the Construction Plans; (c) the Public
Improvements shall be constructed and completed free and clear of any mechanic's liens,
materialman's liens and equitable liens; and (d) all costs of constructing the Public Improvements
shall be paid when due.
ARTICLE V. RESERVED
ARTICLE VI. INSURANCE
Section 6.1. Insurance Requirements.
a. Employer will provide and maintain or cause to be maintained at all times during
the process of constructing the Minimum Improvements (and, from time to time at the request of
the City, furnish the City with proof of coverage or payment of premiums on):
i. Builder's risk insurance, written on the so-called "Builder's Risk–
Completed Value Basis," in an amount equal to the full replacement cost of the Minimum
Improvements, and with coverage available in non-reporting form on the so-called "all risk" form
of policy.
ii. Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations, and contractual liability
insurance) with limits against bodily injury and property damage of at least $1,000,000 for each
occurrence. The City shall be named as an additional insured for the City's liability or loss arising
out of or in any way associated with the project and arising out of any act, error, or omission of
Employer, or either entity's directors, officers, shareholders, contractors, and subcontractors or
anyone else for whose acts the City may be held responsible (with coverage to the City at least as
broad as that which is provided to Employer and not lessened or avoided by endorsement). The
policy shall contain a "severability of interests" clause and provide primary insurance over any
other insurance maintained by the City.
iii. Workers' compensation insurance with at least statutory coverage.
b. Upon completion of construction of the Minimum Improvements and at all times
prior to the Termination Date, Employer shall maintain or cause to be maintained, at its cost and
expense (and from time to time at the request of the City shall furnish proof of coverage or the
payment of premiums on), insurance as follows:
i. Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar businesses,
including (without limitation the generality of the foregoing) fire, extended coverage, vandalism
and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse
in an amount not less than the full insurable replacement value of the Minimum Improvements,
but any such policy may have a deductible amount of not more than $50,000. No policy of
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insurance shall be so written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the City. The term "full insurable replacement
value" shall mean the actual replacement cost of the Minimum Improvements (excluding
foundation and excavation costs and costs of underground flues, pipes, drains, and other
uninsurable items) and equipment, and shall be determined from time to time at the request of the
City, but not more frequently than once every three years, by an insurance consultant or insurer
selected and paid for by Employer and approved by the City.
ii. Comprehensive general public liability insurance, including personal injury
liability for injuries to persons and/or property, including any injuries resulting from the operation
of automobiles or other motorized vehicles on or about the Development Property, in the minimum
amount for each occurrence and for each year of $1,000,000.
iii. Such other insurance, including workers' compensation insurance
respecting all employees of Employer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided that
Employer may be self-insured with respect to all or any part of its liability for workers'
compensation.
c. All insurance required by this Article VI to be provided prior to the Termination
Date shall be taken out and maintained in responsible insurance companies selected by Employer,
which are authorized under the laws of the State to assume the risks covered thereby. Empl oyer
will deposit annually with the City copies of policies evidencing all such insurance, or a certificate
or certificates or binders of the respective insurers stating that such insurance is in force and effect.
Unless otherwise provided in this Article VI, each policy shall contain a provision that the insurer
shall not cancel it without giving written notice to Employer and the City at least thirty (30) days
(ten (10) days in the case of non-payment of premium) before the cancellation becomes effective.
Within ten (10) days of being notified of any modification to the policy by the insurer that would
cause a party's coverage to be less than the minimum requirements as set forth in this Agreement,
the Employer will provide written notice to the City of the modification. Within fifteen (15) days
after the expiration of any policy, Employer shall furnish the City evidence satisfactory to the City
that the policy has been renewed or replaced by another policy conforming to the provisions of
this Article VI, or that there is no necessity therefor under the terms hereof. In lieu of separate
policies, Employer may maintain a single policy, or blanket or umbrella policies, or a combination
thereof, which provide the total coverage required herein, in which event Employer shall deposit
with the City a certificate or certificates of the respective insurers as to the amount of coverage in
force upon the Minimum Improvements.
d. Employer agrees to notify the City immediately in the case of damage exceeding
$25,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof
resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid directly to
Employer (as applicable to the specific policy), and Employer, as applicable, will forthwith repair,
reconstruct, and restore the Minimum Improvements to substantially the same or an improved
condition or value as they existed prior to the event causing such damage and, to the extent
necessary to accomplish such repair, reconstruction and restoration, Employer will apply the Net
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Proceeds of any insurance relating to such damage received by Employer to the payment or
reimbursement of the costs thereof.
e. Employer shall complete the repair, reconstruction, and restoration of the Minimum
Improvements, whether or not the Net Proceeds of insurance received by Employer for such
purposes are sufficient.
ARTICLE VII. FURTHER COVENANTS OF DEVELOPER/EMPLOYER
Section 7.1. Maintenance of Records. Developer and Employer will keep at all times
proper books of record and account in which full, true, and correct entries will be made of all
dealings and transactions of or in relation to the business and affairs of Developer and Employer
relating to this Project, and Developer and Employer will provide reasonable protection against
loss or damage to such books of record and account.
Section 7.2. Compliance with Laws/Non-Discrimination. Developer and Employer will
comply with all federal, State, and local laws, rules and regulations relating to the Minimum
Improvements, Public Improvements, and Development Property. In the construction and
operation of the Minimum Improvements and Public Improvements, Developer and Employer,
each for themselves, shall not discriminate against any applicant, employee, or tenant because of
age, color, creed, national origin, race, religion, marital status, sex, physical disability, or familial
status. Developer and Employer, each for themselves, shall ensure that applicants, employees, and
tenants are considered and are treated without regard to their age, color, creed, national origin,
race, religion, marital status, sex, physical disability, or familial status.
Section 7.3. Available Information. Upon request, Developer and Employer shall
promptly provide the City with copies of information reasonably requested by City that are related
to this Agreement so that City can determine compliance with the Agreement.
Section 7.4 Employment. Employer shall employ at least a Monthly Average of 25 Full-
Time Equivalent Employment Units at the Minimum Improvements from their completion through
October 1, 2029. "Monthly Average" means the average number of Full-Time Equivalent
Employment Units employed as of October 1 of each year and as of the first day of each of the
preceding months as shown in Employer's Annual Certifications in Exhibit E.
Section 7.5. Annual Certification. To assist the City in monitoring the Agreement and
performance of Employer hereunder, duly authorized officers of Employer shall provide Annual
Certifications to the City.
Employer shall annually provide to the City (i) proof that all ad valorem taxes on the
Employer Parcel and Minimum Improvements have been paid for the prior fiscal year and for the
current fiscal year as of the date of certification (if due and payable); (ii) the date of the first full
assessment of the Minimum Improvements and the fully assessed value; (iii) a certification of the
number of Full-Time Equivalent Employment Units as of October 1 and as of the first da y of each
of the preceding eleven (11) months; and (iv) a certification that such officer is familiar with the
terms and provisions of this Agreement and that at the date of such certification, there is no Event
of Default by Employer hereunder, or if the signer is aware of any such Event of Default, said
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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 certificates required above shall be provided not later than
October 15 of each year, commencing October 15, 2018, and ending on October 15, 2029, both
dates inclusive. Employer shall provide supporting information germane to the Annual
Certifications upon request of the City. See Exhibit E for the form required for Employer's Annual
Certifications.
ARTICLE VIII. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
Section 8.1. Status of Developer and Employer; Transfer of Substantially All Assets;
Assignment. As security for the obligations of Developer and Employer under this Agreement,
Developer and Employer represent and agree that, prior to the Termination Date, Developer and
Employer will maintain existence as companies and will not wind up or otherwise dispose of all
or substantially all of their assets; nor transfer, convey, or assign their interest in this Agreement
to any other party unless: (i) the transferee partnership, corporation, limited liability company or
individual assumes in writing all of the then-outstanding obligations of the transferring party under
this Agreement; and (ii) the City consents thereto in writing in advance thereof, which consent
shall not be unreasonably withheld. After the full assessment of the Minimum Improvements and
the completion and dedication of the Public Improvements, Developer shall be able to transfer,
convey or assign its obligations and benefits under this Agreement to any party without any
conditions and without seeking the consent of the City.
Section 8.2. Prohibition Against Use as Non-Taxable or Centrally Assessed Property.
During the term of this Agreement, Developer, Employer, or their successors or assigns, agree that
(except with respect to the dedication of right of way to the City) the Minimum Improvements and
Development Property cannot be transferred or sold to a non-profit entity or used for a purpose
that would exempt the Development Property or Minimum Improvements from property tax
liability. Nor can the Development Property or Minimum Improvements be used as centrally
assessed property (including but not limited to, Iowa Code § 428.24 to 428.29 (Public Utility Plants
and Related Personal Property); Chapter 433 (Telegraph and Telephone Company Property);
Chapter 434 (Railway Property); Chapter 437 (Electric Transmission Lines); Chapter 437A
(Property Used in the Production, Generation, Transmission or Delivery of Electricity or Natural
Gas); and Chapter 438 (Pipeline Property)).
ARTICLE IX. ECONOMIC DEVELOPMENT GRANTS
Section 9.1. Economic Development Grants. For and in consideration of the obligations
being assumed by Developer and Employer hereunder, and in furtherance of the goals and
objectives of the Urban Renewal Plan for the Urban Renewal Area and the Urban Renewal Act,
the City agrees, subject to the Developer and Employer being and remaining in compliance with
this Agreement, to make Economic Development Grants to Employer and Developer, under the
following terms and conditions.
(a) Grants Derived from Employer Parcel. Assuming completion of the Minimum
Improvements and Public Improvements by December 31, 2018, full assessment of the Minimum
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Improvements on January 1, 2019, and debt certification to the Auditor by the City prior to
December 1, 2019, the City shall make the following Economic Development Grants, subject to
the Developer and Employer being and remaining in compliance with this Agreement at the time
of each payment:
The following two annual Grants to be paid to Employer:
Date of Grant Calculation
June 1, 2021 100% of Tax Increments from Employer Parcel for Fiscal Year 20-21
June 1, 2022 100% of Tax Increments from Employer Parcel for Fiscal Year 21-22
The following annual Grants to be paid to Developer:
Date of Grant Calculation
June 1, 2023 100% of Tax Increments from Employer Parcel for Fiscal Year 22-23
June 1, 2024 100% of Tax Increments from Employer Parcel for Fiscal Year 23-24
June 1, 2025 100% of Tax Increments from Employer Parcel for Fiscal Year 24-25
June 1, 2026 100% of Tax Increments from Employer Parcel for Fiscal Year 25-26
June 1, 2027 100% of Tax Increments from Employer Parcel for Fiscal Year 26-27
June 1, 2028 100% of Tax Increments from Employer Parcel for Fiscal Year 27-28
June 1, 2029 100% of Tax Increments from Employer Parcel for Fiscal Year 28-29
June 1, 2030 100% of Tax Increments from Employer Parcel for Fiscal Year 29-30
The above schedule of the payments for Economic Development Grants is based on the first full
assessment of the Minimum Improvements being January 1, 2019. If the completion of the
Minimum Improvements is delayed so that the Minimum Improvements are not fully assessed as
of January 1, 2019, then the first Economic Development Grant will not begin as scheduled, but
will be delayed one year. However, in no event shall the above schedule of Economic
Development Grants be delayed more than two years, meaning that the latest potential date for
Employer's first Economic Development Grant, if eligible, is June 1, 2023.
(i) Conditions. Notwithstanding the provisions of Section 9.1(a) above, the
obligation of the City to make an Economic Development Grant in any year shall be subject
to and conditioned upon the following:
(a) compliance with the terms of this Agreement by Developer and Employer; and
(b) the construction of the Minimum Improvements and Public Improvements
consistent with this Agreement; and
(c) timely filing by Developer of the certification of Qualified Costs and Expenses
as set forth in Section 4.6 and the Council's approval thereof, provided that
Developer shall have 10 days' notice to cure any breach of this requirement; and
(d) timely filing by Employer of the Annual Certifications required under Section
7.5 hereof and the Council's approval thereof; and
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(e) continual use of the Minimum Improvements by Employer for its business
consistent with this Agreement.
Each Annual Certification filed by Employer under Section 7.5 hereof shall be considered
separately in determining whether the City shall make any of the Economic Development
Grant payments under this Section 9.1(a). Under no circumstances shall the failure to
qualify for an Economic Development Grant in any year serve to extend the years during
which Economic Development Grants may be awarded to Employer or Developer or the
total amount thereof, it being the intent of parties hereto to provide them with an
opportunity to receive Economic Development Grants only if Developer and Employer
fully comply with the provisions hereof. Compliance with the terms and conditions of this
Agreement is a condition precedent to receiving each and any Economic Development
Grant.
(ii) Calculation of Grants. Each annual payment shall be equal in amount to the
incremental property tax revenues attributable to the Minimum Improvements on the
Employer Parcel that are received by the City from the Dallas County Treasurer and that
are equal to the above percentages of the Tax Increments collected by the City with respect
to the Minimum Improvements on the Employer Parcel (building and land value) under
the terms of the Ordinance and deposited into the 117 Land Company TIF Account
(without regard to any averaging that may otherwise be utilized under Section 403.19 and
excluding any interest that may accrue thereon prior to payment to Developer) during the
preceding twelve-month period in respect of the Minimum Improvements, but subject to
limitation and adjustment as provided in this Article. After the Minimum Improvements
are first fully assessed, if the Employer's Annual Certification is timely filed and contain
the information required under Section 7.5 and the Council approves of the same, the City
shall certify to the County prior to December 1 of that year its request for the available Tax
Increments resulting from the assessments imposed by the County as of January 1 of that
year, to be collected by the County and paid to the City as taxes are paid during the
following fiscal year and which shall thereafter be disbursed to Developer on the following
June 1 provided Developer and Employer remain in compliance with the Agreement at the
time of payment. (Example: assuming completion by December 31, 2018, and first full
assessment on January 1, 2019, if Employer certifies in October 2019 and the City certifies
to the County by December 1, 2019, the first Economic Development Grant would be paid
to Employer on June 1, 2021, provided Developer and Employer are in compliance with
the Agreement at the time of payment (for 100% of the Tax Increment from the Employer
Parcel for fiscal year 2020-2021)).
(b) Grants Derived from Remainder of Development Property. For each additional
parcel (other than the Employer Parcel) of the Development Property that is developed with a
private commercial or industrial project, the City shall make five (5), consecutive annual Economic
Development Grants to Developer, each Economic Development Grant comprised of 100% of Tax
Increment derived from the individual, developed parcel (land and building value), subject to the
following conditions and limitations:
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(i) Certification of Development. Upon completion and first full assessment
of the development on each parcel, Developer shall file a certification in the form attached
hereto as Exhibit H, which certification will (a) identify the parcel; (b) describe the
completed development; and (c) identify the date of first full assessment and full
assessment value. The Certification of Development must be filed by October 1 of the year
in which the development on the parcel is fully assessed to qualify for Economic
Development Grants. If the Developer timely files the Certification of Development by
October 1 after the parcel is fully assessed and the City Council approves of the same, the
City shall certify to the County prior to December 1 of that year its request for the available
Tax Increments resulting from the assessments imposed by the County as of January 1 of
that year on the parcel, to be collected by the County and paid to the City as taxes are paid
during the following fiscal year and which shall thereafter be disb ursed to Developer on
the following June 1 provided Developer remains in compliance with the Agreement as of
the payment date. (Example: assuming completion by July 31, 2020, and first full
assessment on January 1, 2021, if Developer certifies completion in October 2021 and the
City certifies to the County by December 1, 2021, the first Economic Development Grant
for that parcel would be paid to Developer on June 1, 2023 provided Developer remains in
compliance with the Agreement at the time of payment (for 100% of the Tax Increment
from that parcel for fiscal year 2022-2023)).
(ii) Conditions. Notwithstanding the provisions of Section 9.1(b) above, the
obligation of the City to make an Economic Development Grant in any year shall be subject
to and conditioned upon the following:
(a) compliance with the terms of this Agreement by Developer at the time of each
payment; and
(b) the construction of the Public Improvements consistent with this Agreement;
and
(c) timely filing by Developer of the certification of Qualified Costs and Expenses
as set forth in Section 4.6. and the City=s approval thereof; and
(d) timely filing by Developer of the Certification of Development as set forth in
Section 9.1(b)(i).
Under no circumstances shall the failure to qualify for an Economic Development Grant
in any year serve to extend the years during which Economic Development Grants may
be awarded to Developer or the total amount thereof, it being the intent of parties hereto
to provide them with an opportunity to receive Economic Development Grants only if
Developer fully complies with the provisions hereof. Compliance with the terms and
conditions of this Agreement is a condition precedent to receiving each and any
Economic Development Grant.
(c) Maximum Amount of Grants. The aggregate amount of the Economic
Development Grants that may be paid to the Developer under Section 9.1(a) and 9.1(b) of this
Agreement shall not exceed the lesser of: (i) the aggregate amount of the Public Improvement
Costs submitted to and approved by the City; or (ii) $1,150,000. It is further agreed and
understood that in no event shall Developer be entitled to receive more than calculated under the
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formula set forth in this Section 9.1, even if the aggregate amount is less than the amount of
Public Improvement Costs paid by the Developer. The City makes no assurance that the
Developer will receive Economic Development Grants which cover the cost of the Public
Improvements paid by Developer or reach the $1,150,000 maximum.
(d) Time Limitation. Notwithstanding the provisions of Sections 9.1(a) and (b)
above, the obligation of the City to make any Economic Development Grant to Developer shall
automatically terminate upon the expiration or termination of the City's ability to collect tax
increment from the Development Property under Iowa Code chapter 403 and the Ordinance.
(e) Additional Employer. Should the person or entity developing a particular parcel of
the Development Property (other than the Employer Parcel) request incentives in support of the
development that may otherwise qualify for incentives from the City, Developer agrees that, upon
written request from the City, the Developer will consider, in good faith, executing an amendment
to this Agreement which amendment would divert not more than two years of 100% of the Tax
Increment derived from that parcel to the person or entity developing the parcel. Whether to ask
for such an amendment is subject to the City's sole discretion. Notwithstanding anything herein to
the contrary, it shall not be considered "bad faith" by Developer to deny an amendment to this
Agreement which Developer believes may threaten Developer's ability to recover, prior to
expiration of this Agreement, the full Qualified Cost and Expenses for the Public Improvements
subject to the terms of this Agreement.
Section 9.2. Source of Grant Funds Limited.
a. The Economic Development Grants shall be payable from and secured solely and
only by amounts of incremental property tax revenues attributable to the Development Property
that are received by the City from the Dallas County Treasurer and that are deposited and held in
the 117 Land Company TIF Account of the Southwest Business Park Urban Renewal Tax
Increment Revenue Fund of the City. The City hereby covenants and agrees to maintain the
Ordinance covering the Development Property in force during the term hereof and to apply the
appropriate percentage of Tax Increments collected and allocated to the 117 Land Company TIF
Account to pay the Economic Development Grants, as and to the extent set forth in this Article.
The Economic Development Grants shall not be payable in any manner by other tax increment
revenues or by general taxation or from any other City funds. Any commercial and industrial
property tax replacement monies that may be received under chapter 441.21A shall not be included
in the calculation to determine the amount of Economic Development Grants for which Developer
is eligible, and any monies received back under chapter 426C relating to the Business Property
Tax Credit shall not be included in the calculation to determine the amount of Economic
Development Grants for which Developer is eligible.
b. Each Economic Development Grant is subject to annual appropriation by the City
Council. The right of non-appropriation reserved to the City in this Section is intended by the
parties, and shall be construed at all times, so as to ensure that the City's obligation to make future
Economic Development Grants shall not constitute a legal indebtedness of the City within the
meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a
budget which appropriates funds for the payment of that installment or amount. In the event that
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any of the provisions of this Agreement are determined by a court of competent jurisdiction to
create, or result in the creation of, such a legal indebtedness of the City, the enforcement of the
said provision shall be suspended, and the Agreement shall at all times be construed and applied
in such a manner as will preserve the foregoing intent of the parties, and no Event of Default by
the City shall be deemed to have occurred as a result thereof. If any provision of this Agreement
or the application thereof to any circumstance is so suspended, the suspension shall not affect other
provisions of this Agreement which can be given effect without the suspended provision. To this
end the provisions of this Agreement are severable.
c. Notwithstanding the provisions of Section 9.1 hereof, the City shall have no
obligation to make an Economic Development Grant if at any time during the term hereof the City
fails to appropriate funds for payment, or Chapters 15A, 403, or 384 of the Code are revised by
the legislature or newly interpreted by a court of competent jurisdiction in such a way that the
Economic Development Grants or the use of the Tax Increments resulting from the Minimum
Improvements and Development Property to fund the Economic Development Grants would
violate the laws of the State of Iowa. Upon a failure to appropriate or change in the Code or a new
interpretation as described herein, the City shall promptly forward written notice of the same to
Developer and this Agreement shall terminate, without penalty or other liability to the City.
Section 9.3. Use of Other Tax Increments. The City shall be free to use any and all Tax
Increments above and beyond the percentages to be given to Employer or Developer in this
Agreement, or any available Tax Increments resulting from the suspension or termination of the
Economic Development Grants, for any purpose for which the Tax Increments may lawfully be
used pursuant to the provisions of the Urban Renewal Act (including an allocation of all or any
portion thereof to the reduction of any eligible City costs), and the City shall have no obligations
to Developer with respect to the use thereof.
Section 9.4. Real Property Taxes. Developer, Employer, and their permitted successors
and assigns, shall pay or cause to be paid, when due, all real property taxes and assessments
payable with respect to all and any parts of the Development Property and Minimum
Improvements.
Developer and Employer and their permitted successors agree that prior to the Termination
Date:
a. They will not seek administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of real property contained on the
Development Property determined by any tax official to be applicable to the Development Property
or Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute
as a defense in any proceedings, including delinquent tax proceedings; and
b. They will not seek any tax exemption deferral or abatement either presently or
prospectively authorized under any federal, State, or local law with respect to taxation of real
property contained on the Development Property, or the Minimum Improvements, between the
date of execution of this Agreement and the Termination Date.
Execution Version 22
c. The assessment category for the Development Property is commercial/industrial,
and Developer and Employer shall not take any action to request or effect a change in such
category.
ARTICLE X. RESERVED
ARTICLE XI. INDEMNIFICATION
Section 11.1. Release and Indemnification Covenants.
a. Developer and Employer release the City and the governing body members,
officers, agents, servants and employees thereof (hereinafter, for purposes of this Article X I, the
"Indemnified Parties") from, covenant and agree that the Indemnified Parties shall not be liable
for, and agree to indemnify, defend, and hold harmless the indemnified parties against, any loss or
damage to property or any injury to or death of any person occurring at or about or resulting from
any defect in the Minimum Improvements or Development Property.
b. Except to the extent arising from any willful misrepresentation, gross negligence,
or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, Developer
and Employer agree to protect and defend the indemnified parties, now or forever, and further
agree to hold the Indemnified Parties harmless, from any claim, demand, suit, action or other
proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from:
(i) any violation of any agreement or condition of this Agreement (except with respect to any suit,
action, demand or other proceeding brought by Developer or Employer against the City to enforce
its rights under this Agreement); (ii) the acquisition and condition of the Development Property
and the construction, installation, ownership, and operation of the Minimum Improvements and,
until accepted by the City, the Public Improvements; or (iii) any hazardous substance or
environmental contamination located in or on the Development Property.
c. The Indemnified Parties shall not be liable for any damage or injury to the persons
or property of Developer or Employer, or their officers, agents, servants, or employees or any other
person who may be about the Public Improvements, Minimum Improvements, or Development
Property due to any act of negligence of any person, other than any act of negligence on the part
of any such indemnified party or its officers, agents, servants, or employees.
d. The provisions of this Article XI shall survive the termination of this Agreement.
ARTICLE XII. REMEDIES
Section 12.1. Events of Default Defined. The following shall be "Events of Default" under
this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events during the Term of this Agreement:
a. Failure by Employer to cause the construction of the Minimum Improvements and
the operations to continue pursuant to the terms and conditions of this Agreement;
Execution Version 23
b. Failure by Developer to cause the construction of the Public Improvements
pursuant to the terms and conditions of this Agreement;
c. Failure of Developer or Employer to substantially observe or perform any covenant,
condition, obligation, or agreement on its part to be observed or performed under this Agreement;
d. Any representation or warranty made by Developer or Employer in this Agreement
or in any written statement or certificate furnished by Developer or Employer pursuant to this
Agreement, that shall prove to have been incorrect, incomplete, or misleading in any material
respect on or as of the date of the issuance or making thereof.
Section 12.2. Remedies on Default. Whenever any Event of Default referred to in Section
12.1 of this Agreement occurs and is continuing, the City, as specified below, may take any one
or more of the following actions after the giving of thirty (30) days' written notice by the City to
Developer, Employer, and the holder of any Mortgage (but only to the extent the City has been
informed in writing of the existence of a Mortgage and been provided with the address of the
holder thereof) of the Event of Default, but only if the Event of Default has not been cured within
said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days
and Developer or Employer does not provide assurances reasonably satisfactory to the City that
the Event of Default will be cured as soon as reasonably possible:
a. The City may suspend its performance under this Agreement until it receives
assurances from Developer or Employer, deemed adequate by the City, that Developer or
Employer will cure the default and continue its performance under this Agreement;
b. The City may terminate this Agreement; or
c. The City will have no obligation to make payment of Economic Development
Grants to Employer or Developer subsequent to the Event of Default.
Notwithstanding anything in this Agreement to the contrary, the City's sole and exclusive
remedy in the event the only default is under Section 12.1(a) for failure to construct the Minimum
Improvements or operate them consistent with this Agreement, shall be the termination of any
future Economic Development Grants under Section 9.1(a) above.
Section 12.3. No Remedy Exclusive. Except as otherwise stated above, 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 12.4. No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver shall be
Execution Version 24
limited to the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 12.5. Agreement to Pay Attorneys' Fees and Expenses.
a. Employer shall pay to the City an amount equal to the actual costs incurred by the
City in connection with the drafting and execution of this Agreement, including, but not limited to
publication fees for legal notices, actual costs associated with City Council meetings, and
reasonable legal fees of the City, associated with the negotiation, drafting and authorization of this
Agreement. If not previously paid by Employer, the costs shall be deducted from the Economic
Development Grant(s) to be paid to Employer.
b. Whenever any Event of Default occurs and the City shall employ attorneys or incur
other expenses for the collection of payments due or to become due or for the enforcement or
performance or observance of any obligation or agreement on the part of Developer or Employer
herein contained, and the City prevails in an action to enforce this Agreement, Developer and
Employer agree that the defaulting party shall, upon demand therefor, pay to the City the
reasonable fees of such attorneys and such other expenses as may be reasonably and appropriately
incurred by the City in connection therewith.
ARTICLE XIII. MISCELLANEOUS
Section 13.1. Conflict of Interest. Developer and Employer warrant that, to their best
knowledge and belief after due inquiry, no officer or employee of the City, or their designees or
agents, nor any consultant or member of the governing body of the City, and no other public
official of the City who exercises or has exercised any functions or responsibilities with respect to
the Project during his or her tenure, or who is in a position to participate in a decision-making
process or gain insider information with regard to the Project, has had or shall have any interest,
direct or indirect, in any contract or subcontract, or the proceeds thereof, for work or services to
be performed in connection with the Project, or in any activity, or benefit therefrom, which is part
of the Project at any time during or after such person's tenure.
Section 13.2. Notices and Demands. A notice, demand or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and
a. In the case of Developer, is addressed or delivered personally to 117 Land
Company, LLC at 9550 Hickman Road, Suite 101, Clive, IA 50325;
b. In the case of Employer, is addressed or delivered personally to RJ Lawn Service,
Inc., 16180 SE Laurel Street, Waukee, IA 50263-8153; and
c. In the case of the City, is addressed to or delivered personally to the City at 230
West Hickman Road, Waukee, Iowa 50263, Attn: Becky Schuett, City Clerk;
or to such other designated individual or officer or to such other address as any party shall have
furnished to the other in writing in accordance herewith.
Execution Version 25
Section 13.3. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of this Agreement are inserted for convenience of reference only and shall be disregarded
in construing or interpreting any of its provisions.
Section 13.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 13.5. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Iowa.
Section 13.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement among the parties regarding the subject matter hereof, and supersedes and replaces all
prior agreements, negotiations or discussions, whether oral or written. This Agreement may not
be amended except by a subsequent writing signed by all parties hereto.
Section 13.7. Successors and Assigns. This Agreement is intended to and shall inure to
the benefit of and be binding upon the parties hereto and their respective permitted successors and
assigns.
Section 13.8. Termination Date. This Agreement shall terminate and be of no further force
or effect on and after the earlier of (a) the date Developer receives Economic Development Grants
totaling the aggregate Maximum set forth in Section 9.1(c); or (b) twenty years from the calendar
year following the calendar year in which the City first certifies to the County Auditor debt in the
Urban Renewal Area, unless terminated earlier under the provisions of this Agreement.
Section 13.9. Memorandum of Agreement. The parties agree to execute and record a
Memorandum of Agreement for Private Development, in substantially the form attached as Exhibit
D, to serve as notice to the public of the existence and provisions of this Agreement, and the rights
and interests held by the City by virtue hereof. The City shall pay for all costs of recording.
Section 13.10. No Third-Party Beneficiaries. No rights or privileges of either party hereto
shall inure to the benefit of any landowner, contractor, subcontractor, material supplier, or any
other person or entity, and no such contractor, landowner, subcontractor, material supplier, or any
other person or entity shall be deemed to be a third-party beneficiary of any of the provisions
contained in this Agreement.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk,
and Developer and Employer have caused this Agreement to be duly executed in their names and
behalf by their authorized representatives, all on or as of the day first above written.
[Signatures start on the next page]
Execution Version 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
Execution Version 27
117 LAND COMPANY, LLC, an Iowa limited liability
company
By: ____________________________
Michael Sobotka,
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2017, before me the undersigned, a Notary
Public in and for said State, personally appeared Michael Sobotka, to me personally known, who,
being by me duly sworn, did say that he is the ____________ of 117 Land Company, LLC and
that said instrument was signed on behalf of said company; and that the said Michael Sobotka as
such officer, acknowledged the execution of said instrument to be the voluntary act and deed of
said company, by him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
Execution Version 28
RJ LAWN SERVICE, INC.,
By: ____________________________
Ryan J. McCarthy, Owner
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2017, before me the undersigned, a Notary
Public in and for said State, personally appeared Ryan J. McCarthy, to me personally known, who,
being by me duly sworn, did say that he is the Owner of RJ Lawn Service, Inc., and that said
instrument was signed on behalf of said company; and that the said Owner acknowledged the
execution of said instrument to be the voluntary act and deed of said company, by him voluntarily
executed.
______________________________________
Notary Public in and for the State of Iowa
Execution Version A-1
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is described as follows:
Lots 1 through 6 in I-80 West Industrial Park Plat 1, an Official Plat, City of Waukee,
Iowa.
The Employer Parcel is that portion of the Development Parcel described as follows:
Lot 5 in I-80 West Industrial Park Plat 1, an Official Plat, City of Waukee, Iowa.
Execution Version B-1
EXHIBIT B
MINIMUM IMPROVEMENTS AND PUBLIC IMPROVEMENTS
Minimum Improvements shall mean the construction of an approximately 4,960 SF first floor
office with a 4,300 SF storage basement below, along with a 10,560 SF separate warehouse building,
along with site improvements including an enclosed yard, exterior showroom space with pond, and
adequate parking. Said Minimum Improvements shall be constructed on the Employer Parcel which is
presently a vacant parcel of land.
The construction of the Minimum Improvements are expected to be completed by March 1, 2018.
Construction costs for the Minimum Improvements are anticipated to be no less than approximately
$1,900,000. The Dallas County Assessor will make the final determination as to the assessed value.
A site plan further describing the Minimum Improvements is attached as Exhibit B-1.
Public Improvements shall mean the construction of a public street and related infrastructure
improvements, including street lights water, sewer, and storm infrastructure.
The construction of the Public Improvements are expected to be completed by March 1, 2018.
Construction costs for the Public Improvements are anticipated to be approximately $1,150,000.
A site plan further depicting the Public Improvements is attached as Exhibit B-2.
Execution Version B-2
EXHIBIT B-1
SITE PLAN FOR EMPLOYER PARCEL
Execution Version B-3
EXHIBIT B-2
SITE PLAN FOR PUBLIC IMPROVEMENT
Execution Version C-1.1
EXHIBIT C-1
CERTIFICATE OF COMPLETION
MINIMUM IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the "City"), 117 Land Company, LLC (the "Developer"),
and RJ LAWN SERVICE, INC. (the "Employer") 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 the Employer 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:
(the "Employer Parcel"); and
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions with
respect to the development of the Employer Parcel, and obligated the Employer to construct certain
Minimum Improvements (as defined therein) in accordance with the Agreement; and
WHEREAS, Employer has to the present date performed said covenants and conditions insofar as
they relate to the construction of said Minimum Improvements in a manner deemed by the City to be in
conformance with the Agreement to permit the execution and recording of this certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement with
respect to the obligations of Employer and its successors and assigns, to construct the Minimum
Improvements on the Employer Parcel have been completed and performed by Employer and are hereby
released absolutely and forever terminated insofar as they apply to the land described herein. The County
Recorder of Dallas County is hereby authorized to accept for recording and to record the filing of this
instrument, to be a conclusive determination of the satisfactory termination of the covenants and
conditions of said Agreement with respect to the construction of the Minimum Improvements on the
Employer Parcel.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Signatures Start on Next Page]
Execution Version C-1.2
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
ATTEST: William F. Peard, Mayor
By: ______________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 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
Execution Version C-2.1
EXHIBIT C-2
CERTIFICATE OF COMPLETION
PUBLIC IMPROVEMENTS
WHEREAS, the City of Waukee, Iowa (the "City"), 117 Land Company, LLC (the "Developer"),
and RJ Lawn Service, Inc. (the "Employer") 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 the Developer agreed, in accordance with the terms of the
Agreement, to develop and maintain certain real property located within the City and as more particularly
described as follows:
(the "Development Property"); and
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions with
respect to the development of the Development Property, and obligated the Developer to construct certain
Public Improvements (as defined therein) in accordance with the Agreement; and
WHEREAS, Developer has to the present date performed said covenants and conditions insofar as
they relate to the construction of said Public Improvements in a manner deemed by the City to be in
conformance with the Agreement to permit the execution and recording of this certification.
NOW, THEREFORE, this is to certify that all covenants and conditions of the Agreement with
respect to the obligations of Developer and its successors and assigns, to construct the Public
Improvements on the Development Property have been completed and performed by Developer and are
hereby released absolutely and forever terminated insofar as they apply to the land described herein. The
County Recorder of Dallas County is hereby authorized to accept for recording and to record the filing of
this instrument, to be a conclusive determination of the satisfactory termination of the covenants and
conditions of said Agreement with respect to the construction of the Public Improvements set forth in the
Agreement.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Signatures Start on Next Page]
Execution Version C-2.2
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
ATTEST: William F. Peard, Mayor
By: ______________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 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 sign ed and sealed
on behalf of said Municipality by authority and resolution of its City Council, and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipality by it voluntarily
executed.
__________________________________
Notary Public in and for the State of Iowa
Execution Version D-1
EXHIBIT D
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
Type of Document: MEMORANDUM OF AGREEMENT FOR PRIVATE
DEVELOPMENT AMONG THE CITY OF WAUKEE, 117
LAND COMPANY, LLC, AND RJ LAWN SERVICE, INC.
Return Document to: City of Waukee, 230 West Hickman Road, Waukee, Iowa 50263,
Attn: Becky Schuett, City Clerk
Preparer Information: Nathan J. Overberg, Ahlers & Cooney, P.C., 100 Court Avenue,
Ste. #600, Des Moines, IA 50309, 515-243-7611
Taxpayer Information: N/A
GRANTORS: N/A
GRANTEES: N/A
LEGAL DESCRIPTION: Lots 1 through 6 in I-80 West Industrial Park Plat 1, an Official
Plat, City of Waukee, Iowa.
Execution Version D-2
WHEREAS, the City of Waukee, Iowa (the "City"), 117 Land Company, LLC, an Iowa
limited liability company ("Developer"), and RJ LAWN SERVICE, INC. (the "Employer") 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 Southwest Business Park Urban
Renewal Plan (the "Plan"), to develop and operate certain real property located within the City and
within the Southwest Business Park Urban Renewal Area.
The Development Property is described as follows:
Lots 1 through 6 in I-80 West Industrial Park Plat 1, an Official Plat, City of Waukee, Iowa.
(the "Development Property"); and
WHEREAS, the term of the Agreement commenced on the ____ day of
________________, 2017 and terminates as set forth in Section 13.8 of 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.
[Signatures Start on Next Page]
IN WITNESS WHEREOF, the City, Developer, and Employer have executed this
Memorandum of Agreement for Private Development on the ______ day of
___________________, 2017.
Execution Version D-3
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
William F. Peard, Mayor
ATTEST:
By: ________________________
Becky Schuett, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this ________ day of ________________________, 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
Execution Version D-4
117 LAND COMPANY, LLC, an Iowa limited liability
company
By: ____________________________
Michael Sobotka,
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2017, before me the undersigned, a Notary
Public in and for said State, personally appeared Michael Sobotka, to me personally known, who,
being by me duly sworn, did say that he is the ______________of 117 Land Company, LLC and
that said instrument was signed on behalf of said company; and that the said Michael Sobotka as
such officer, acknowledged the execution of said instrument to be the voluntary act and deed of
said company, by him voluntarily executed.
______________________________________
Notary Public in and for the State of Iowa
Execution Version D-5
RJ LAWN SERVICE, INC.,
By: _________________________
Ryan J. McCarthy, Owner
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2017, before me the undersigned, a Notary
Public in and for said State, personally appeared Ryan J. McCarthy, to me personally known, who,
being by me duly sworn, did say that he is the Owner of RJ LAWN SERVICE, INC. and that said
instrument was signed on behalf of said company; and that the said Owner acknowledged the
execution of said instrument to be the voluntary act and deed of said company, by him voluntarily
executed.
______________________________________
Notary Public in and for the State of Iowa
Execution Version E-1
EXHIBIT E
EMPLOYER ANNUAL CERTIFICATION
(due by October 15th as required under terms of Development Agreement)
Employer certifies the following:
During the time period covered by this Certification, Employer is and was in compliance with
Section 7.5 as follows:
(i) all ad valorem taxes on the Employer Parcel of the Development Property and Minimum
Improvements have been paid for the prior fiscal year and for the current fiscal year as of the
date of certification (if due and payable);
(ii) the Minimum Improvements were first fully assessed on January 1, 20___, at a full assessment
value of $______________, and are currently assessed at $______________;
(iii) the number of Full-Time Equivalent Employment Units employed at the Minimum Improvements
as of October 1, 20___ and as of the first day of each of the preceding ____ months were are follows:
October 1, 20__: ______ April 1, 20__:_________
September 1, 20__:_________ March 1, 20__:_________
August 1, 20__:_________ February 1, 20___:________
July 1, 20__:_________ January 1, 20__:_______
June 1, 20__:_________ December 1, 20__:_______
May 1, 20__: __________ November 1, 20__:_______
(iv) the undersigned officer of Employer is familiar with the terms and provisions of this
Agreement and certifies that Employer is not in default in the fulfillment of any of the terms and
conditions of this Agreement, or if the signer is aware of any such Event of Default, said officer
has disclosed the nature thereof, its period of existence and what action, if any, has been taken or
is proposed to be taken with respect thereto.
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true
and correct to the best of my knowledge and belief.
Signed this _________ day of _____________________, 20___.
RJ LAWN SERVICE, INC.
By: _____________________________
____, ___
Execution Version F-1
EXHIBIT F
FORM OF LEGAL OPINION
(On firm letterhead)
Re: Development Agreement between Waukee, Iowa ("City"), 117 Land Company, LLC
("Developer"), and RJ LAWN SERVICE, INC. ("Employer").
As counsel for ________________ (the "Entity" in this letter) in connection with the execution
and delivery of a certain Development Agreement (the "Development Agreement") between the Entity
and the City dated as of ________________ 2017 and referenced above, we hereby render the following
opinion:
We have examined the original certified copy, or copies otherwise identified to our satisfaction
as being true copies, of the following:
a. The governing documents of the Entity;
b. Resolution of the Entity at which action was taken with respect to the transactions
covered by this opinion;
c. The Development Agreement (the term "Development Agreement includes all Exhibits to
the "Development Agreement");
and such other documents and records as we have deemed relevant and necessary as a basis for the
opinion set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as we have
deemed appropriate, we are of the opinion that:
1. The Entity is duly organized and validly exists as a _____________ under the laws of the
State of Iowa and is qualified to do business in the State of Iowa. The Entity has full power and
authority to execute, deliver and perform in full the Development Agreement; and the Development
Agreement has been duly and validly authorized, executed and delivered by the Entity, and, assuming
due authorization, execution and delivery by the other parties thereto, is in full force and effect and is
valid and legally binding instrument of the Entity 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.
2. The consummation of the transaction contemplated by the Development Agreement and
the carrying out of the terms thereof, will not result in violation of any provision of, or in default under,
the operating agreement or any other governing documents of the Entity, or any indenture, mortgage,
deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to
which the Entity is a party or by which it or its property is bound or subject.
Very truly yours,
Execution Version G-1
EXHIBIT G
DEVELOPER CERTIFICATION OF COSTS OF PUBLIC IMPROVEMENTS
117 Land Company, LLC (the "Developer") certifies that the expenses shown on the table below
were/are the actual expenses incurred by the Developer for the Public Improvements that are the subject
of a Development Agreement entered into the _____ day of __________, 2017 between the City of
Waukee, Iowa and the Developer (the "Agreement"). The Developer certifies that no expenses claimed
or shown on this table relate to personal or unallowable expenses.
In the event of an overpayment by the City for expenses not actually incurred, or if payment was
received from another source for any portion of the expenses claimed, the Developer assumes
responsibility for repaying the City in full for those expenses.
Certified Costs of Public Improvements
Project
Cost
Category
Engineering,
Plans,
Specifications
Construction Costs Legal
Costs
Drainage,
Landscaping,
Grading
Cost for
acquisition
of land
within the
ROW
Interest during
construction
and for not
more than six
months
thereafter
Miscellaneous
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Total Cost
per
category
If you need additional space please attach another table.
Attach actual receipts and invoices
[Remainder of this page intentionally left blank. Signature page to follow.]
Execution Version G-2
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct
to the best of my knowledge and belief.
117 LAND COMPANY, LLC, an Iowa limited liability company
By: ____________________________
Michael Sobotka,
STATE OF IOWA )
) SS
COUNTY OF DALLAS )
On this _______ day of ________________, 2017, before me the undersigned, a Notary Public in
and for said State, personally appeared Michael Sobotka, to me personally known, who, being by me duly
sworn, did say that he is the _____________of 117 Land Company, LLC and that said instrument was
signed on behalf of said company; and that the said Michael Sobotka as such officer, acknowledged the
execution of said instrument to be the voluntary act and deed of said company, by him voluntarily
executed.
______________________________________
Notary Public in and for the State of Iowa
[Signature page to Developer Certification of Costs]
Execution Version H-1
EXHIBIT H
DEVELOPMENT COMPLETION CERTIFICATION
(due by October 1 as required under terms of Development Agreement)
Developer certifies the following:
(i) The following development has been completed on Parcel __________________ of the
Development Property:
_______________________________________________
_______________________________________________
(ii) The development on said Parcel was first fully assessed on January 1, 20___, at a full
assessment value of $______________.
(iii) the undersigned officer of Developer is familiar with the terms and provisions of this
Agreement and certifies that Developer is not in default in the fulfillment of any of the terms and
conditions of this Agreement, or if the signer is aware of any such Event of Default, said officer has
disclosed the nature thereof, its period of existence and what action, if any, has been taken or is proposed
to be taken with respect thereto.
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true
and correct to the best of my knowledge and belief.
Signed this _________ day of _____________________, 20___.
117 LAND COMPANY, LLC
By: _____________________________
Michael Sobotka,
01400124-1\21938-135