HomeMy WebLinkAbout05-25-2010 Council Economic Development Committee
AGENDA
City of Iowa City
City Council Economic Development Committee
Tuesday, May 25,2010
4:00 p.m.
Lobby Conference Room
City Hall
1. Call to Order
2. Consider approval of the April 20, 2010 Economic Development
Committee meeting minutes
3. Consider a recommendation to the City Council on the Moss Green
Urban Village Development Agreement
4. Staff time
5. Committee time
6. Adjoumment
draft
MINUTES
CITY COUNCIL ECONOMIC DEVELOPMENT COMMITTEE
APRIL 20, 2010
LOBBY CONFERENCE ROOM, 4:30 P.M.
Members Present:
Staff Present:
Others Present:
Regenia Bailey, Matt Hayek, Susan Mims
Wendy Ford, Tracy Hightshoe
Gigi Wood
RECOMMENDATIONS TO COUNCIL:
Hayek moved to accept the staff recommendations for the Moss Green Urban
Village TIF ordinance as proposed.
Mims seconded the motion.
Motion carried 3-0.
CALL MEETING TO ORDER:
The meeting was called to order by Chairperson Bailey at 4:30 P.M.
CONSIDER APPROVAL OF THE MINUTES OF THE MARCH 16. 2010. ECONOMIC
DEVELOPMENT COMMITTEE MEETING:
Mims moved to accept the March 16, 2010, meeting minutes as amended (name
spelling).
Hayek seconded the motion.
Motion carried 3-0.
CONSIDER A RECOMMENDATION OF THE MOSS GREEN URBAN VILLAGE TIF
ORDINANCE:
Ford briefly explained the TIF ordinance which allows for development incentives using
tax increment financing. She noted the difference between the TIF ordinance, which
simply allows for development agreements to be implemented, and the Development
Agreements themselves, that are project-specific and include city-defined performance
measures for developers to meet. An economic development driven TIF district can be
set up for 20 years, according to Ford, however, a development agreements are typically
of a shorter duration. This item will go to the full City Council at their next formal
meeting.
Hayek moved to accept the staff recommendations for the Moss Green Urban
Village TIF ordinance as proposed.
Mims seconded the motion.
Motion carried 3-0.
1
Economic Development Committee Meeting
April 20, 2010
ENERGY EFFICIENCY REVOLVING LOAN FUND PROGRAM UPDATE:
Ford noted that last summer the City was awarded $692,300 to create and implement
some energy efficiency strategies. Four projects were developed, and Ford explained
the one in particular, related to Iowa City economic development. This is the Energy
Conservation Opportunity Revolving Loan Fund (ECO-RLF), which has $250,000 ready
to loan on a revolving basis for businesses who wish to upgrade, install, or build energy
efficient components for their business. The idea is to structure repayment of the loans
by the savings realized in energy bills. The interest rate for ECO-RLF loans is set at one
half percent, according to Ford. She added that a brochure is available on the City web
site, as is the application for the loan program. Bailey suggested they promote the
opportunity to the non-profit community as well.
STAFF TIME:
Ford noted a further correction to the March 2nd minutes, regarding the K-Mart
application to change their building exterior. She explained an inaccuracy in the
discussion at that meeting and noted that K-Mart had requested the changes to their
building and not the Pepperwood Place owners, Kobrin Development Company, Inc. (fka
Southgate Development Company, Inc).
Hightshoe then gave a brief update regarding the CDBG economic development funds.
She stated that since beginning this fund in FY03, they have had 30 applicants, and
have funded 18 projects. She explained how they work with private lenders to help
these small businesses achieve thefunding they need. She also gave an update on an
outstanding loan, noting that they are going through the courts to collect these funds.
Hightshoe gave Members some further history on this program, noting some of the
recent project successes and challenges they have dealt with.
Hightshoe also spoke to Members about an idea that came about through the City
STEPS process about a class for preparing high-schoolers for jobs. She stated that they
have been working with City High to implement the program, and City High has offered a
class to students who are interested. They meet twice a week with these students and
work on resumes, job skills, and interview skills, and will even be hosting a small job fair
on May 7. Economic Development staff has been working with other interested parties
including the UI Small Business Development Center on this project.
ADJOURNMENT:
Hayek moved to adjourn the meeting at 4:54 pm
Mims seconded the motion.
Motion carried 3-0.
Economic Development Committee Meeting
April 20, 2010
Council Economic Development Committee
ATTENDANCE RECORD
2010
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Regenia 01/02/11 X X X X
Bailey
Matt 01/02/11 X X X X
Hayek
Susan 01/02/11 X X X X
Mims
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o = Absent
OlE = Absent/Excused
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CITY OF IOWA CITY
MEMORANDUM
Date:
May 21,2010
To:
From:
Economic Development Committee
Jeff Davidson, Director of Planning & Community Developme"'t1-~
Wendy Ford, Economic Development Coordinator
May 25, 2010 Economic Development Committee meeting, agenda item #3: Moss
Green Urban Village TIF Development Agreement
Re:
We have had several discussions with you regarding the arrangement we are working out for
extension of municipal infrastructure to the Moss Green Urban Village site. The developer is
responsible for the construction of all roadway, storm sewer, sanitary sewer, and water service
infrastructure to enable the site to be developed. An agreement, attached for your consideration, has
been drafted which would use Tax Increment Financing (TIF) funds to reimburse the developer for
the expense of the public infrastructure to serve the development site. Details of the agreement are
still being negotiated. Following is a summary of the salient points of the proposed agreement, in the
order in which they appear:
1. The developer may not seek tax exempt status or locate a tax exempt business in the
development site.
2. The developer is required to construct the minimum improvements in accordance with City
standards. The minimum improvements are defined as installation of streets, street lighting,
sanitary sewers, storm sewers, sanitary sewer trunkline extension, sanitary sewer lift station,
sanitary sewer force main extension, water main extension, waterlines, sidewalks, extension
of Oakdale Boulevard and Moss Place, together with other related site improvements, public
utilities, public utility extensions, as well as all design, engineering, inspection, construction
supervision, legal and financing costs.
3. The developer is required to construct the minimum improvements within ten years or the
City has the option to terminate the agreement.
4. The amount of tax increment generated will be certified annually and the developer will
provide proof that all property taxes have been paid.
5. The City will make up to 20 annual grants to the developer, commencing in 2014 and ending
in 2033, not to exceed $13.7 million which is the estimated expense of the minimum
improvements that have been agreed to by the City.
6. The annual economic development grants will be equal to 50% of the newly created tax
increment from the property.
7. Total economic development grants paid to the developer will be the lesser of: a) 20 years of
50% of the tax increment collected; b) the actual cost of the minimum improvements; or c)
$13.7 million.
8. Grants are payable only from the Moss Green TIF account, which is created by the new
incremental property taxes derived from new development on the Moss Green property.
Please bring any comments or questions to the May 25 EDC meeting. We are asking for a
recommendation for the City Council to consider at their meeting on June 1. First Assistant City
Attorney Sarah Holecek, who drafted the proposed agreement, will be present to answer
questions. If the proposed agreement is not satisfactory to a majority of the Committee, we
would appreciate your clarifying what is acceptable so that we can have the agreement ready for
the June 1 City Council meeting.
cc: Sarah Holecek
ppddir/mem/EcDev-5-25-2010Meeting.doc
2
AGREEMENT FOR PRIVATE DEVELOPMENT
BY AND BETWEEN
THE CITY OF IOWA CITY, IOWA
AND
MOSS GREEN DEVELOPMENT CORPORATION
FOR DEVELOPMENT IN
THE CITY OF IOWA CITY, IOWA
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AGREEMENT FOR PRIVATE DEVELOPMENT
THIS AGREEMENT FOR PRIVATE DEVELOPMENT (the "Agreement"), is
entered into this day of ,2010, by and
between the City of Iowa City, Iowa, a political subdivision (the "City") established
pursuant to the Code of Iowa and acting under the authorization of Chapter 403
of the Code of Iowa, 2009, as amended, (hereinafter called the "Urban Renewal
Act") and Moss Green Development Corporation, an Iowa corporation, having an
office for the transaction of business at 3354 Kenruth Circle NE, Iowa City, Iowa
52240 (the "Developer").
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the
City has undertaken a program for the revitalization and development of an
economic development area in the City of Iowa City, Iowa, and, in this
connection, is engaged in carrying out urban renewal project activities in an area
known as the Moss Green Urban Village Urban Renewal Plan Area, which area is
described in the Moss Green Urban Renewal Plan, approved for such area by
Resolution No. 10-137 on April 27, 2010; and
WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended,
has been recorded among the land records in the office of the Recorder of
Johnson County, Iowa; and
WHEREAS, the Developer has the right to occupy certain real property
located in the foregoing Urban Renewal Area as more particularly described in
Exhibit A attached hereto and made a part hereof (which property as so
described is hereinafter referred to as the "Development Property"); and
WHEREAS, the Developer is willing to cause certain infrastructure and
other improvements to be constructed on the Development Property and
thereafter to cause the same to be administered in accordance with this
Agreement; and
WHEREAS, the City believes that the development of the Development
Property pursuant to this Agreement and the fulfillment generally of this
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Agreement are in the vital and best interests of the City and in accord with the
public purposes and applicable provisions of State and local laws and
requirements under which the foregoing project has been undertaken and is
being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, each of them does hereby covenant and agree
with the other as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. In addition to other definitions set forth in this
Agreement, all capitalized terms used and not otherwise defined herein shall
have the following meanings unless a different meaning clearly appears from the
context:
Agreement means this Agreement and all appendices hereto, as the same
may be from time to time modified, amended or supplemented.
Certificate of Completion means one or more certifications in the form of
the certificate attached hereto as Exhibit C provided to the Developer pursuant to
Section 3.4 of this Agreement.
City means the City of Iowa City, Iowa.
Code means the Code of Iowa, 2009, as amended.
Construction Plans means the plans, specifications, drawings and related
documents reflecting the construction work to be performed by the Developer on
the Development Property; the Construction Plans shall be as detailed as the
plans, specifications, drawings and related documents which are submitted to the
city engineer and/or building inspector of the City as required by applicable City
codes.
County means the County of Johnson, Iowa.
Developer means Moss Green Development Corporation, an Iowa
Corporation, and its successors and assigns to the extent permitted in this
Agreement.
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Development Property means that portion of the Urban Renewal Area of
the City described in Exhibit A attached hereto.
Economic Development Grants mean the Tax Increment payments to be
made by the City to the Developer under Article VIII of this Agreement.
Event of Default means any of the events described in Section 10.1 of this
Agreement.
First Mortoaoe means any Mortgage granted to secure any loan made
pursuant to either a mortgage commitment obtained by the Developer from a
commercial lender or other financial institution to fund any portion of the
construction costs of the Minimum Improvements, or all such Mortgages as
appropriate.
Minimum Improvements shall mean the construction of the sanitary sewer
trunk line extension, sanitary sewer lift station, force main extension, water main
extension, extension of Oakdale Boulevard and Moss Place, together with storm
sewer and other related site improvements as outlined in Exhibit "B" attached
hereto and incorporated herein. Minimum improvements shall include the
Developer's legal, engineering and design expenses to facilitate the development
and the costs of financing the construction of said Minimum Improvements.
Mortoaoe means any mortgage or security agreement in which the
Developer has granted a mortgage or other security interest in the Development
Property, or any portion or parcel thereof, or any improvements constructed
thereon.
Moss Green Development Corporation - Moss Green TIF Account NO.1
means a separate account within the Moss Green Urban Village Urban Renewal
Tax Increment Revenue Fund of the City, in which there shall be deposited 50%
of the Tax I ncrements received by the City with respect to the Development
Property described in Exhibit A.
Moss Green Urban Villaoe Urban Renewal Area Tax Increment 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 was created in order to pay
the principal of and interest on loans, monies advanced to, indebtedness or
grants, whether funded, refunded, assumed or otherwise, including bonds or
other obligations issued under the authority of Section 403.9 or 403.12 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 Project Area.
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Net Proceeds means any proceeds paid by an insurer to the Developer
under a policy or policies of insurance required to be provided and maintained by
the Developer, as the case may be, pursuant to Article V of this Agreement and
remaining after deducting all expenses (including fees and disbursements of
counsel) incurred in the collection of such proceeds.
Ordinance means Ordinance No. of the City, under which
the taxes levied on the taxable property in the Project Area shall be divided and a
portion paid into the Moss Green Urban Village Urban Renewal Tax Increment
Revenue Fund of the City of Iowa City.
Proiect means the construction and administration of the Minimum
Improvements on the Development Property, as described in this Agreement.
State means the State of Iowa.
Tax Increments means the property tax revenues with respect to the
Development Property added since the date of this Agreement that are divided
and made available to the City by the Johnson County Auditor for deposit in the
Moss Green Urban Village Urban Renewal Area Tax Increment Revenue Fund
under the provisions of Section 403.19 of the Code and the Ordinance.
Termination Date means the date of termination of this Agreement, as
established in Section 12.9 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).
Urban Renewal Plan means the Moss Green Urban Village Urban Renewal
Plan, as amended, approved in respect of the Moss Green Urban Village Urban
Renewal Plan of the City, described in the preambles hereof.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
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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 political subdivision
organized under the provisions of the Constitution and the laws of
the State of Iowa 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.
Section 2.2 Covenants, Oblioations, Representations and Warranties of
Developer. The Developer makes the following representations and warranties:
(a) The Developer is a 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 the Developer and, assuming due authorization,
execution and delivery by the City, is in full force and effect and is a
valid and legally binding instrument of the 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. Attached hereto and
incorporated herein as Exhibit F is the opinion of Developer's
counsel confirming this covenant.
(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 Articles of
Incorporation and Bylaws of the Developer or its parents or
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subsidiaries of any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which the Developer
is now a party or by which it or its property is bound, nor do they
constitute a default under any of the foregoing.
(d) There are no actions, suits or proceedings pending or threatened
against or affecting the 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 the Developer or which in any
manner raises any questions affecting the validity of this Agreement
or the Developer's ability to perform its obligations under this
Agreement.
(e) The Developer will cause the Minimum Improvements to be
constructed in accordance with the terms of this Agreement, the
Urban Renewal Plan and all applicable local, State and federal laws
and regulations, except for permitted variances necessary to
construct the Minimum Improvements. Subject to unavoidable delay,
construction of said Minimum Improvements shall be completed
within ten (10) years of the execution of this Agreement, with the
City's remedy for failure to complete same being the option to
terminate this Agreement as outlined in Section 11.2. All
construction plans for the Minimum Improvements shall be approved
by the City in accordance with City construction standards prior to
commencement of construction of same. The Developer
acknowledges and agrees that Moss Place shall continue to be held
by Developer as a private street, and the Developer shall continue to
maintain such street unless and until Moss Place is otherwise
dedicated to and accepted by an organized and viable lot owners'
association; the City shall have no maintenance obligations for Moss
Place. However, the Developer shall grant to the City, on behalf of
the City and the general public at large, a public, emergency and
service vehicle access easement over Moss Place, the general
terms of which shall be in the form of Exhibit E attached hereto. The
Developer also acknowledges and agrees that certain outlots as
indicated on the approved preliminary plat shall be held by
Developer as private open space, and the Developer shall continue
to maintain such open space unless and until the street is otherwise
dedicated to and accepted by an organized and viable lot owners'
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association; the City shall have no maintenance obligations for any
private open space.
(f) The Developer will use its best efforts to obtain, or cause to be
obtained, in a timely manner, all required permits, licenses and
approvals, and will meet, in a timely manner, all requirements of all
applicable local, State, and federal laws and regulations which must
be obtained or met in connection with the Project.
(g) The Developer represents that the Minimum Improvements, with the
exception of Moss Place and outlots to be held as private open
space, shall be dedicated to the City subject to the terms of this
Agreement, and shall exercise its best efforts to accomplish same in
a timely manner.
(h) The Developer has not received any notice from any local, State or
federal official that the activities of the Developer with respect to the
Development Property mayor 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). The
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 the 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.
(i) The Developer will cooperate fully with the City in resolution of any
traffic, parking, trash removal, excessive noise or public safety
problems which may arise in connection with the construction of the
Minimum Improvements.
(j) The Developer would not undertake its obligations under this
Agreement without the payment by the City of the Economic
Development Grants being made to the Developer pursuant to this
Agreement.
(k) As a covenant running with the land, the Developer shall not, prior to
the expiration of this aQreement, cause or voluntarilv permit the
Development Property and/or Minimum Improvements to become
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other than taxable property by applying for or seeking any industrial
property tax exemption, by being owned by a utility or any other
entity of a type where the assessed value of taxable property of such
entity is not treated as taxable or as located within the Development
Property, by beino owned by any entity havino tax exempt status or
by applyino for or seekino a deferral. abatement or exemption from
property tax pursuant to any present or future statute or ordinance.
Developer agrees to memorialize this requirement as a covenant and
restriction within any deed issued for any real estate contained, in
whole or part, within the Development Property. Said deed
restriction shall take the form of the language outlined in this
paragraph.
(I) Upon completion of the Minimum Improvements, and after the City
has issued a Certificate of Completion, the Developer will provide the
City with a deed to convey the rights for said public improvements
and related rights of way free and clear of all liens pursuant to
section 2.2(e).
(m) In amplification, and not in restriction of, the provisions of the
preceding Section, it is intended and agreed that the City and its
successors and assigns shall be deemed beneficiaries of the
agreements and covenants provided in Section 2.2 hereof, both for
and in its own right and also for the purposes of protecting the
interests of the community and other parties, public or private, in
whose favor or for whose benefit such agreements and covenants
have been provided. Such agreements and covenants shall run in
favor of the City, without regard to whether the City has at any time
been, remains, or is an owner of any land or interest therein to or in
favor of which such agreements and covenants relate.
ARTICLE III. CONSTRUCTION AND DEVELOPMENT REQUIREMENTS
Section 3.1 Construction of Minimum Improvements. The Developer
agrees that it will cause the Minimum Improvements and all related site
improvements, as more fully described on Exhibit "8" attached hereto, to be
constructed on the Development Property in conformance with the Construction
Plans submitted to, and approved by, the City. The Developer agrees that the
scope and scale of the Minimum Improvements to be constructed shall not be
significantly less than the scope and scale thereof as detailed and outlined in
Exhibit "8" and the Construction Plans, as so approved.
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Section 3.2. Construction Plans. The Developer shall present the
Construction Plans for the Minimum Improvements to the City for approval and
shall be in conformity with the Urban Renewal Plan, this Agreement, and all
applicable State and local laws and regulations. The City's approval of said
Construction Plans shall be signified by the City issuing a building permit; and the
City shall approve the Minimum Improvement Construction Plans
contemporaneously with its approval of the Final Plat for the Moss Green Urban
Village Subdivision. The Construction Plans shall (a) conform to the terms and
condition of this Agreement; (b) conform to the terms and conditions of the Urban
Renewal Plan; (c) conform to all applicable federal, State and local laws,
ordinances, rules and regulations, and (d) shall be adequate for the purposes of
this Agreement to provide for the construction of the Minimum Improvements.
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 for any other
purpose, including but not limited to, any building, fire, zoning or other ordinances
or regulations.
Approval of the Construction Plans by City shall not relieve the Developer
of any obligation to comply with the remaining terms and provisions of this
Agreement, or the provisions of applicable federal, State and local laws,
ordinances and regulations, nor shall approval of the Construction Plans by the
City be deemed to constitute a waiver of any Event of Default. Approval of
Construction Plans hereunder is solely for purposes under this section of this
Agreement, and shall not constitute approval for any other City purpose or
subject the City to any liability for the Minimum Improvements or Minimum
Improvements as constructed.
Section 3.3 Commencement and Completion of Construction of Minimum
Improvements. Subject to Unavoidable Delays, the Developer shall cause
construction of the Minimum Improvements to be undertaken and completed in
conformity with the Construction Plans approved by the applicable City building
officials or any amendments thereto as may be approved by City building officials,
with construction of said Minimum Improvements to be completed within ten (10)
years of the execution of this Agreement, with the City's remedy for failure to
complete same being the option to terminate this Agreement as outlined in
Section 11.2.
The Developer agrees that it shall permit designated representatives of the City,
upon reasonable notice to the Developer (which does not have to be written), to
enter upon the Development Property during the construction of the Minimum
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Improvements in order to inspect such construction and the progress thereof.
However, such inspection shall not relieve or release the Developer from the
responsibility to construct said Minimum Improvements pursuant to the approved
plans and specifications. Further, said inspections shall not create a duty or
warranty on the part of the City to ensure construction of said improvements in
accordance with said plans and specifications.
Upon notice of completion of the Minimum Improvements, or any portion
thereof then being dedicated to the City by the Developer, the City shall inspect
the Minimum Improvements and determine whether they have been completed in
accordance with this Agreement. If the City finds that the applicable portion of
the Minimum Improvements has been duly completed and acceptance is in the
best interests of the City, the City shall accept dedication of those completed
Minimum Improvements. If the City determines that the Minimum Improvements
are not acceptable, it shall notify the Developer within ten (10) days in the form
described in Section 3.4 below.
Section 3.4. Certificate of Completion for Minimum Improvements. Upon
written request of the Developer, after completion of any or a portion of the
Minimum Improvements, the City shall inspect, and if satisfied, shall accept said
Improvements, and, after acceptance, furnish the Developer with a Certificate of
Completion in recordable form, in substantially the form set forth in Exhibit C
attached hereto. Such Certificate of Completion shall be a conclusive
determination of satisfactory termination of the covenants and conditions of this
Agreement solely with respect to the obligations of the Developer to construct the
applicable portion of the Minimum Improvements.
The Certificate 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 3.4,
the City shall, within twenty (20) 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 applicable portion of 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 will be necessary, in the opinion of the City, for the Developer to take or
perform in order to obtain such Certificate of Completion.
ARTICLE IV. RESERVED
ARTICLE V. INSURANCE
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Section 5.1. Insurance Requirements.
(a) Insurance Durino Construction. Developer will provide and maintain
(or cause to be maintained in the case of construction by another entity) at all
times during the process of constructing the Minimum Improvements, at its sole
cost and expense (prior to acceptance of dedication of any applicable portion by
City) (and, from time to time at the request of the City, furnish the City with proof
of 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 through property policies against risk 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 $250,000. No policy of insurance
shall be so written that the proceeds thereof will produce less
than the minimum coverage required by the preceding
sentence, by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the City. The
term "full insurable replacement value" shall mean the actual
replacement cost of the Minimum Improvements (excluding
foundation and excavation costs and costs of underground
flues, pipes, drains and other uninsurable items) and
equipment, and shall be determined from time to time at the
request of the City, but not more frequently than once every
three years, by an insurance consultant or insurer selected
and paid for by the Developer and approved by the City.
(ii) Comprehensive general liability insurance (including
operations, contingent liability, operations of subcontractors,
completed operations, contractual liability and 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) with
limits against bodily injury and property damage of at least
$1,000,000 per occurrence and for each year. The City shall
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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 Developers;
Developers' 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 Developers 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.
(ii) Worker's compensation insurance, with statutory coverage.
(b) All insurance required by this Article V to be provided prior to the
Termination Date shall be taken out and maintained in responsible insurance
companies selected by the Developer which are authorized under the laws of the
State of Iowa to assume the risks covered thereby. The Developer will deposit
annually with the City copies of policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such
insurance is in force and effect. Unless otherwise provided in this Article V, each
policy shall contain a provision that the insurer shall not cancel or modify it
without giving written notice to the Developer and the City at least thirty (30) days
before the cancellation or modification becomes effective. Not less than fifteen
(15) days prior to the expiration of any policy, the Developer shall furnish the City
evidence satisfactory to the City that the policy has been renewed or replaced by
another policy conforming to the provisions of this Article V, or that there is no
necessity therefore under the terms hereof. In lieu of separate policies, the
Developer may maintain a single policy, or blanket or umbrella policies, or a
combination thereof, which provide the total coverage required herein, in which
event the Developer shall deposit with the City a certificate or certificates of the
respective insurers as to the amount of coverage in force upon the Minimum
Improvements.
(c) The Developer agrees to notify the City immediately in the case of
damage exceeding $250,000 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 the Developer, and the
Developer 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, the Developer will
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apply the Net Proceeds of any insurance relating to such damage received by the
Developer to the payment or reimbursement of the costs thereof.
(d) The Developer shall complete the repair, reconstruction and
restoration of the Minimum Improvements, whether or not the Net Proceeds of
insurance received by the Developer for such purposes are sufficient.
ARTICLE VI. COVENANTS OF THE DEVELOPER
Section 6.1. Maintenance of Properties. The Developer will maintain,
preserve and keep the Development Property and the Minimum Improvements in
good repair and working order, ordinary wear and tear excepted, and from time to
time will make all necessary repairs, replacements, renewals and additions. This
duty shall cease as to any Minimum Improvements dedicated to or conveyed to
and accepted by the City, and/or upon a permitted sale of any Minimum
Improvements.
Section 6.2. Maintenance of Records. The Developer will keep at all times
proper books of record and account in which full, true and correct entries will be
made of all dealings and transactions of or in relation to the business and affairs
of the Developer in accordance with generally accepted accounting principles,
consistently applied throughout the period involved, and the Developer will
provide reasonable protection against loss or damage to such books of record
and account.
Section 6.3. Compliance with Laws. The Developer will comply with all
applicable laws, rules and regulations relating to the Development Property.
Section 6.4. Non-Discrimination. In constructing the Minimum
Improvements and selling lots within the Development Property, the Developer
shall not discriminate against any person because of race, creed, color, sex,
national origin, age, gender identity, marital status, religion, disability or sexual
orientation. The Developer shall ensure that applicants, employees, potential
purchasers and tenants are considered and are treated without regard to their
race, creed, color, sex, national origin, age, gender identity, marital status,
religion, physical disability, sexual orientation or familial status
Section 6.5 Reserved.
Section 6.6. Reserved.
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Section 6.7. Annual Certification. To assist the City in monitoring the
performance of the Developer hereunder, a duly authorized officer of the
Developer shall annually provide to the City for each phase of the project the
following: (a) a written statement from the County Auditor showing the amount of
estimated Tax Increments (as defined in Section 1.1 of this Agreement) in respect
of each phase of the project (excluding increases in assessed or actual value due
to market factors) for the following fiscal year; (b) proof that all ad valorem taxes
on the Development Property due and payable by Developer or other third parties
have been paid for the prior fiscal year; and (c) certification that such officer has
re-examined the terms and provisions of this Agreement and, to the best of that
officer's knowledge and belief at the date of such certificate, and during the
preceding twelve (12) months, the Developer was not in default in the fulfillment
of any of the terms and conditions of this Agreement and that no Event of Default
(or event which, with the lapse of time or the given of notice, or both, would
become an Event of Default) is occurring or has occurred as of the date of such
certificate or during such period, or if the signer is aware of any such default,
event or Event of Default, said officer shall disclose in such statement the nature
thereof, its period of existence and actions taken to correct any such default; (d)
receipts, invoices and any other proof of payment or expense for which it seeks
reimbursement for construction of the Minimum Improvements with a
corresponding spreadsheet in both hard-copy and electronic format. Such
statement, proof and certificate described above, shall be provided to the City for
each phase of the Project not later than November 1 of each year, commencing
November 1, 2011.
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ARTICLE VII. ASSIGNMENT AND TRANSFER
Section 7.1. Status of the Developer: Transfer of Substantiallv All Assets.
As security for the obligations of the Developer under this Agreement, the
Developer represents and agrees that, prior to the Termination Date, the
Developer will maintain its existence as an adequately capitalized corporation
and will not wind up or otherwise dispose of all or substantially all of the Minimum
Improvements and Development Property, or assign, participate, or otherwise act
in such manner as to convey to any third party any 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 obligations of the Developer
under this agreement and (ii) the City consents thereto in writing in advance
thereof, which consent shall not be unreasonably denied, delayed or withheld.
Notwithstanding the foregoing, however, or any other provisions of this
Agreement, the Developer may (1) pledge any and/or all of its assets and real
estate as security for any financing of the Minimum Improvements or construction
of other improvements on the Project to a commercial lender, or; (2) sell one or
more individual lots in the Development Property to third parties after approval of
a final plat containing the Minimum Improvements or a portion thereof in
accordance with the terms of any Subdivider's Agreement for said final plat.
ARTICLE VIII. ECONOMIC DEVELOPMENT GRANTS
Section 8.1. Economic Development Grants.
(a) For and in consideration of the obligations being assumed by the
Developer hereunder, and in furtherance of the goals and objectives
of the Urban Renewal Plan for the Project Area and the Urban
Renewal Act, the City agrees to make up to a maximum of twenty
(20) annual grants to the Developer, subject to the Developer having
received a Certificate of Completion and being and remaining in
compliance with the terms of this Agreement and subject to the
terms of this Article VIII. Such annual grants will commence once the
developer requests to certify debt, which must occur no later than
November 1 of the year in which the Developer wishes to certify
debt. If the Developer wishes to certify debt and the City certifies
debt to the County Auditor per section 6.7, the Developer shall
receive the first economic development grant on June 1 following the
fiscal year after such certification (for example, if the City shall certify
to the County prior to December 1 of the year of Developer's
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request, it shall be eligible 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 City as taxes are paid during the
following fiscal year and which shall thereafter be disbursed to the
Developer on June 1 of that fiscal year. (Example: if Developer and
the City each so certify in November 2012, the first Economic
Development Grant would be paid to Developer on June 1,2014.)
Such economic development grants shall cease when the total of all
grants is equal to the lesser of $13,700,000, the total amount of
certified expenditures on the Minimum Improvements or twenty (20)
years from the date of the first certification of debt. All annual grants
shall be equal to fifty percent (50%) per fiscal year of the Tax
Increments or the total of receipts, invoices and any other proof of
payment or expense for which it seeks reimbursement for
construction of the Minimum Improvements per section 6.7 (unless
the total grant amount of $13,700,000 or twenty (20) years from the
date of certification is reached first) collected by the City with respect
to the Development Property pursuant to Section 403.9 of the Urban
Renewal Act under the terms of the Ordinance (without regard to any
averaging that may otherwise be utilized under Section 403.19(6)
and excluding any interest that may accrue thereon prior to payment
to the Developer) during the preceding twelve month period in
respect of the Development Property and Minimum Improvements,
but subject to adjustment and conditions precedent as provided in
this Article (such payments being referred to collectively as the
"Economic Development Grants").
(b) The obligation of the City to make an Economic Development Grant
to the Developer in any year shall be subject to and conditioned
upon the terms of this Article and timely filing by the Developer of the
annual statement, proof and certification required under Section 6.7
hereof. Beginning with the first November 1 certification, if such
annual statement, proof and certification is timely filed and contains
the information required under Section 6.7 and the City approves of
the same, the City shall certify to the appropriate County office 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 as taxes
are paid during the following fiscal year and which shall thereafter be
disbursed to the Developer pursuant to 8.1 (a). (For example, if the
Developer and the City each so certify on November and December
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2012, respectively, the first Economic Development Grant would be
paid to the Developer on June 1, 2014).
(c) In the event that the annual statement, proof or certificate required to
be delivered by the Developer under Section 6.7 is not delivered to
the City by November 1 of any year, the Developer recognizes and
agrees that the City may have insufficient time to review and approve
the same and certify its request for Tax Increments to the County
and that, as a result, no Economic Development Grant may be made
to the Developer in respect thereof. The City covenants to act in
good faith to appropriately review and consider any late certification
on the part of the Developer, but the City shall not be obligated to
make any certification to the County for the available Tax Increments
or make any corresponding payment of the Economic Development
Grant to the Developer if, in the reasonable judgment of the City, it is
not able to give appropriate consideration (which may include, but
not be limited to, specific discussion before the City Council at a
regular meeting with respect thereto) to the Developer's certification
due to its late filing. In the event Developer fails to timely file an
annual statement, proof or certificate due to an Unavoidable Delay
and, as a result, an Economic Development Grant cannot be made,
Developer may give written notice to the City and, if the City finds
that Developer's failure is due to an Unavoidable Delay, the missed
Economic Development Grant shall be made in the year succeeding
the last scheduled Economic Development Grant under Section 8.1,
subject to Developer's filing under Section 6.7 and all other
provisions of this Article VIII with respect to such grant, it being the
intention of the parties to allow twenty (20) annual Economic
Development Grants if Developer is in compliance with this
Agreement.
(d) The total aggregate amount of all Economic Development Grants
that may be paid to the Developer under this Agreement shall be
equal to the lesser of: (a) 50% of the Tax Increments collected with
respect to the assessments imposed on the Development Property
as of January 1 after the date of first certification of debt and on
January 1 of each of the following nineteen (19) years; (b) the actual
cost of the Minimum Improvements for which bills and proof of
payment have been submitted to the City as of the date of any
payment, but constructed by the Developer; or c) Thirteen Million,
Seven Hundred Thousand Dollars ($13,700,000). It is understood
and agreed by the parties hereto that no Economic Development
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Grant will be paid to the Developer unless and until Developer
provides to the City bona fide copies of receipts, invoices and any
other proof of payment or expense for each amount for which
Developer seeks reimbursement as defined in Exhibit "B" of this
Agreement. Economic Development Grants shall, at all times, be
subject to suspension and termination, in accordance with the terms
of this Article VIII and Article X. Thereafter, the taxes levied on the
Development Property shall be divided and applied in accordance
with the Urban Renewal Act and the Ordinance. The parties
recognize that the total aggregate amount set forth above is a
maximum amount 'only and that the actual amount of each Economic
Development Grant will be determined after the Minimum
Improvements are completed and valuations of the Development
Property with the improvements thereon, have been determined by
the City Assessor.
(e) In the event that any certificate filed by the Developer under Section
6.7 or other information available to the City discloses the existence
or prior occurrence of an Event of Default that was not cured or
cannot reasonably be cured under the provisions of Article X (or an
event that, with the passage of time or giving of notice, or both,
would become an Event of Default that cannot reasonably be cured
under the provisions of Article X), the City shall have no obligation
thereafter to make any further payments to the Developer in respect
of the Economic Development Grants and may proceed to take one
or more of the actions described in Article X hereof.
Section 8.2. Source of Grant Funds Limited.
(a) The Economic Development Grants shall be payable from and
secured solely and only by amounts deposited and held in the Moss
Green Development Corporation-Moss Green TIF Account NO.1 of
the City. The City hereby covenants and agrees to maintain the
Ordinance in force during the term hereof and, subject to Developer
compliance and annual appropriation by the City Council, to apply
the incremental taxes collected in respect of the Development
Property and allocated to the Moss Green Development Corporation-
Moss Green TIF Account NO.1 to pay the Economic Development
Grants, as and to the extent set forth in Section 8.1 hereof. 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.
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(b) Notwithstanding the provisions of Section 8.1 hereof, the City shall
have no obligation to make an Economic Development Grant to the
Developer if at any time during the term hereof the City fails to
appropriate funds into the Moss Green Development Corporation-
Moss Green TIF Account No.1, or receives an opinion from its legal
counselor a controlling decision of an Iowa court having jurisdiction
over the subject matter hereof to the effect that the use of Tax
Increments resulting from the Development Property to fund an
Economic Development Grant to the Developer, as contemplated
under said Section 8.1, is not authorized or otherwise an appropriate
project activity permitted to be undertaken by the City under the
Urban Renewal Act or other applicable provisions of the Code, as
then constituted. The right of non-appropriation reserved to the City
in this Section is intended by the parties, and shall be construed at
all times, so as to ensure that the City's obligation to make future
Economic Development Grants shall not constitute a legal
indebtedness of the City within the meaning of any applicable
constitutional or statutory debt limitation prior to the adoption of a
budget which appropriates funds for the payment of that installment
or amount. In the event that any of the provisions of this Agreement
are determined by a court of competent jurisdiction to create, or
result in the creation of, such a legal indebtedness of the City, the
enforcement of the said provision shall be suspended, and the
Agreement shall at all times be construed and applied in such a
manner as will preserve the foregoing intent of the parties, and no
event of default by the City shall be deemed to have occurred as a
result thereof. If any provision of this Agreement or the application
thereof to any circumstance is so suspended, the suspension shall
not affect other provisions of this Agreement which can be given
effect without the suspended provision. To this end the provisions of
this Agreement are severable.
(c) The City makes no representation with respect to the amounts that
may finally be paid to the Developer as the Economic Development
Grants, and under no circumstances shall the City, its agents,
governing body members, attorneys, employers, successors or
assigns, in any manner be liable to the Developer so long as the City
timely applies the Tax Increments actually collected and held in the
Moss Green Development Corporation-Moss Green TIF Account No.
1...(regardless of the amounts thereof) to the payment of the
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Economic Development Grants to the Developer, as and to the
extent described in this Article.
Section 8.3. Use of Other Tax Increments. Subject to this Article VIII, the
City shall be free to use any and all Tax Increments collected in respect of
increases in valuation on the Development Property or any other properties within
the Urban Renewal Area, or any available Tax Increments resulting from the
suspension or termination of the Economic Development Grants under Section
8.1 hereof, for any purpose for which the Tax Increments may lawfully be used
pursuant to the provisions of the Urban Renewal Act, and the City shall have no
obligations to the Developer with respect to the use thereof.
ARTICLE IX. INDEMNIFICATION
Section 9.1. Release and Indemnification Covenants.
(a) The Developer releases the City and the governing body members,
officers, agents, attorneys, servants and employees thereof
(hereinafter, for purposes of this Article IX, the "Indemnified Parties")
from, covenants and agrees that the Indemnified Parties shall not be
liable for, and agrees to indemnify, defend and hold harmless the
Indemnified Parties against, any claim, demand, lawsuit, loss or
damage to any person in connection with the Minimum
Improvements, the Development Property or this Agreement.
(b) Except for any willful misrepresentation or any willful or wanton
misconduct or any unlawful act of the indemnified parties, the
Developer agrees to protect and defend the indemnified parties, now
or forever, and further agrees 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 the Developer against the City to enforce his
rights under this Agreement), (ii) the acquisition and condition of the
Development Property and the construction, installation, ownership,
and administration of the Minimum Improvements or (iii) any
hazardous substance or environmental contamination located in or
on the Development Property relating to conditions caused by
Developer after the effective date of this Agreement.
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(c) The indemnified parties shall not be liable for any damage or injury to
the persons or property of the Developer or its officers, agents,
servants or employees or any other person who may be on or about
the Minimum Improvements 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) 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, attorney, servant
or employee of the City in the individual capacity thereof.
(e) The provisions of this Article IX shall survive the termination of this
Agreement.
ARTICLE X. DEFAULT AND REMEDIES
Section 10.1. Events of Default Defined. The following shall be "Events of
Default" under this Agreement and the term "Event of Default" shall mean,
whenever it is used in this Agreement, anyone or more of the following events:
(a) Failure by the Developer to cause the construction of the Minimum
Improvements to be commenced and completed within ten (10)
years of the execution of this agreement and pursuant to the terms,
conditions and limitations of this Agreement;
(b) Transfer of any interest (either directly or indirectly) in this
Agreement or the Development Property and minimum
improvements in violation of the provisions of Article VII of this
Agreement;
(c) Failure by the Developer to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement;
(d) If the holder of any Mortgage on the Development Property owned by
Developer, or any improvements thereon, or any portion thereof,
commences foreclosure proceedings as a result of any default by
Developer under the applicable Mortgage documents;
(e) If the Developer shall:
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(A) file any petition in bankruptcy or for any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under the United States
Bankruptcy Act of 1978, as amended, or under any similar
federal or State law; or
(B) make an assignment for the benefit of its creditors; or
(C) admit in writing its inability to pay its debts generally as they
become due; or
(D) be adjudicated as bankrupt or insolvent; or if a petition or
answer proposing the adjudication of the Developer as a
bankrupt or its reorganization under any present or future
federal bankruptcy act or any similar federal or State law shall
be filed in any court and such petition or answer shall not be
discharged or denied within ninety (90) days after the filing
thereof; or a receiver, trustee or liquidator of the Developer or
the Development Property or part thereof, shall be appointed
in any proceedings brought against the Developer, and shall
not be discharged within ninety (90) days after such
appointment, or if the Developer shall consent to or acquiesce
in such appointment;
(f) If any representation or warranty made by the Developer in this
Agreement, or made by the Developer in any written statement or
certificate furnished by the Developer pursuant to this Agreement
which shall be proven to have been incorrect, incomplete or
misleading and such misstatement was known by Developer at the
time it was made, in any material respect on or as of the date of the
issuance or making thereof.
Section 10.2. Remedies on Default. Whenever any Event of Default
referred to in Section 10.1 of this Agreement occurs and is continuing, the City as
specified below, may take anyone or more, or a combination, of the following
actions after (except in the case of an Event of Default under subsection (d) or (e)
of said Section 10.1, in which case action may be taken immediately) the giving
of thirty (30) days' written notice by the City to the Developer and the holder of the
First Mortgage (but only to the extent the City has been informed in writing of the
existence of a First 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
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cured within said thirty (30) days and the Developer does not provide assurances
reasonably satisfactory to the City that the Event of Default will be cured as soon
as reasonably possible:
(a) The City may suspend its performance under this Agreement until it
receives assurances from the Developer, deemed adequate by the
City, that the Developer will cure its default and continue its
performance under this Agreement;
(b) The City may terminate this Agreement;
(c) The City may withhold a Certificate of Completion;
(d) The City may take any action, including legal, equitable or
administrative action, which may appear necessary or desirable to
recover damages or to enforce performance and observance of any
obligation, agreement, or covenant of the Developer, as the case
may be, under this Agreement; or
(e) The City shall be entitled to recover from the Developer, and the
Developer shall re-pay to the City, as amount equal to all Economic
Development Grants previously made to the Developer under Article
VIII hereof, and the City may take any action, including any legal
action it deems necessary, to recover such amount from the
Developer.
Section 10.3 No Remedy Exclusive. No remedy herein conferred upon or
reserved to the City is intended to be exclusive of any other available remedy or
remedies, but each and every remedy shall be cumulative and shall be in addition
to every other remedy given under this Agreement or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
Section 10.4. No Implied Waiver. In the event any agreement contained in
this Agreement should be breached by any party and thereafter waived by any
other party, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other concurrent, previous or subsequent
breach hereunder.
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Section 10.5. Aoreement to Pay Attorneys' Fees and Expenses.
Whenever any Event of Default occurs and either party shall employ attorneys or
incur other expenses for the collection of payments due or to become due or for
the enforcement or performance or observance of any obligation or agreement
herein contained, the party in default agrees that it shall, on demand therefor, pay
to the other party the reasonable fees of such attorneys and such other expenses
as may be reasonably and appropriately incurred by them in connection
therewith.
ARTICLE XI. OPTION TO TERMINATE AGREEMENT
Section 11.1. Developer's Option to Terminate. This Agreement may be
terminated by the Developer if (i) the Developer is in compliance with all material
terms of this Agreement and no Event of Default has occurred which has not
been cured in accordance with the provisions of Section 10.2 hereof; and (ii) the
City fails to appropriate under Section 8.2(b) hereof, or fails to comply with any
material term of this Agreement, and, after written notice by the Developer of
such failure, the City has failed to cure within ninety (90) days of receipt of such
notice, or, if such action cannot reasonably be cured by the City within ninety (90)
days of receipt of such notice, the City has not provided assurances reasonably
satisfactory to the Developer that such action will be cured as soon as reasonably
possible.
Section 11.2. City's Option to Terminate. This Agreement may be
terminated by the City if (i) the City is in compliance with all material terms of this
Agreement and no Event of Default has occurred which has not been cured in
accordance with the provisions of Section 10.2 hereof (with the exception of
nonappropriation under Section 8.2(b )); and (ii) the Developer fails to complete all
of the Minimum Improvements outlined in Exhibit "8" within ten (10) years of the
execution of this agreement, or fails to comply with any material term of this
Agreement, and, after written notice by the City of such failure, the Developer has
failed to cure within ninety (90) days of receipt of such notice, or, if such action
cannot reasonably be cured by the Developer within ninety (90) days of receipt of
such notice, the Developer has not provided assurances reasonably satisfactory
to the City that such action will be cured as soon as reasonably possible.
Section 11.3. Effect of Termination. If this Agreement is terminated
pursuant to this Article XI, this Agreement shall be from such date forward null
and void and of no further effect; provided, however, that the City's rights to
indemnification under Article IX hereof shall in all events survive and provided
further that the termination of this Agreement shall not affect the rights of any
party to institute any action, claim or demand for damages suffered as a result of
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breach or default of the terms of this Agreement by another party, or to recover
amounts which had accrued and become due and payable as of the date of such
termination. In any such action, the prevailing party shall be entitled to recover its
reasonable attorneys fees and related expenses incurred in connection therewith
(but only, in the case of the City to the extent permitted by applicable law). Upon
termination of this Agreement pursuant to this Article XI, the Developer shall be
free to proceed with the construction and administration of the Minimum
Improvements at its own expense and without regard to the provisions of this
Agreement.
ARTICLE XII. MISCELLANEOUS
Section 12.1. Conflict of Interest. The Developer represents and warrants
that, to its best knowledge and belief after due inquiry, no officer, agent, attorney
or employee of the City, or its 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 12.2. 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 the Developer, is addressed or delivered personally to
the Developer at 3354 Kenruth Circle NE, Iowa City, Iowa 52240
with a copy to Developer's attorney addressed to Mark C. Danielson,
Leff Law Firm, L.L.P., 222 South Linn Street, Iowa City, Iowa 52240.
(b) In the case of the City, is addressed to or delivered personally to the
City at the City Hall, 410 E. Washington Street, Iowa City, Iowa
52240, Attn: City Clerk, with a copy to the City Attorney at the same
address;
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.
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Section 12.3. 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 12.4. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall constitute one and the same
instrument.
Section 12.5. Governino Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Iowa.
Section 12.6. Memorandum of Aoreement. The parties agree to execute
and record a Memorandum of Agreement for Private Development, in
substantially the form attached as Exhibit 8, 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 Developer shall pay all costs of recording.
Section 12.7. Entire Aoreement. This Agreement and the exhibits hereto
reflect the entire agreement between 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 12.8. Successors and Assions. This Agreement is intended to
and shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
Section 12.9. Termination Date. Unless terminated earlier, this Agreement
shall terminate and be of no further force or effect on and after December 31,
2034.
[Remainder of this page intentionally left blank. Signature pages to follow.]
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IN WITNESS WHEREOF, the City has caused this Agreement to be duly
executed in its name and behalf by its Mayor of the City and its seal to be
hereunto duly affixed and attested by the Clerk, and the Developer has caused
this Agreement to be duly executed in its name and behalf by its President, all on
or as of the day first above written.
(SEAL)
CITY OF IOWA CITY, IOWA
By:
Matthew J. Hayek, Mayor
ATTEST:
By:
Marian K. Karr, City Clerk
MOSS GREEN DEVELOPMENT CORPORATION
By:
Stephen Moss, President
ATTEST:
By:
Title:
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STATE OF IOWA )
)
COUNTY OF JOHNSON)
On this day of , 2010, before me a Notary Public in
and for said State, personally appeared Matthew J. Hayek and Marian K. Karr to
me personally known, who being duly sworn, did say that they are the Mayor and
City Clerk, respectively, of the City of Iowa City, Iowa, a municipal corporation,
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 City, and that said instrument was
signed and sealed on behalf of said City 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 City by it voluntarily executed.
Notary Public in and for the State of Iowa
STATE OF IOWA )
)
COUNTY OF JOHNSON)
On this day of , 2010, before me the undersigned,
a Notary Public in and for said State, personally appeared Stephen Moss and
to me personally known, who being duly
sworn, did say that they are the President and
respectively of Moss Green Development Corporation and that said instrument
was signed on behalf of said corporation; and that the said President and
, as such officers acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation, by them
voluntarily executed.
Notary Public in and for the State of Iowa
-29-
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is described as consisting of all that certain
parcel or parcels of land located in the City of Iowa City, County of Johnson,
State of Iowa, more particularly described as follows:
MOSS-GREEN URBAN VILLAGE
A part of the subdivision of the Northeast One-Quarter of Section 35, Township
80 North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa, as
recorded in Plat Book 1 at Page 11 in the Records of the Johnson County
Recorder, Johnson County, Iowa, more particularly described as follows: Lots
Four (4), Five (5) and Ten (10) and the South nine (9) acres of Lot Six (6), and
the South 12-1/2 acres of Lot Eight (8), all of the subdivision of Northeast Quarter
of Section 35, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa, containing 60.67 acres, more or less; and
All of the Northeast Quarter of the Southeast Quarter, a part of the Southeast
Quarter of the Southeast Quarter lying North of the Interstate 80 Right-of-Way
line and the East 63.75 acres of the West Half of the Southeast Quarter lying
North of the Interstate 80 Right-of-Way line, all of said Section 35, Township 80
North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa, being
more particularly described as follows: BEGINNING at the East Quarter Corner of
Section 35, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa;
THENCE South 00046'46" East, a distance of 1,980.54 feet to the North Right-of-
Way line of Interstate 80;
THENCE South 82024'15" West, along the North Right-of-Way line of Interstate
80, a distance of 646.23 feet;
THENCE continuing west along the North. Right-of-Way line of Interstate 80,
North 88011'05" West, a distance of 1,731.77 feet;
THENCE North 00054'55" West, a distance of 2,023.65 feet to the North line of
the Southeast Quarter of said Section 35, Township 80 North, Range 6 West of
the Fifth Principal Meridian, Johnson County, Iowa;
THENCE South 89041 '57" East, along said North line of the Southeast Quarter of
Section 35, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa, a distance of 2,376.88 feet to the POINT OF
BEGINNING, containing 111.22 acres, more or less; and
HILLS BANK & TRUST and NEAL N. LLEWELLYN:
The Southwest Quarter of the of the Northwest Quarter of Section 36, Township
80 North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa
A-I
and that portion of The Southeast Quarter of the of the Northwest Quarter of
Section 36, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa lying West of Iowa Highway 1 (North Dodge Street)
containing 71.35 acres, more or less.
A - 2
EXHIBIT B
MINIMUM IMPROVEMENTS
Minimum Improvements shall consist of the installation of streets, street
lighting, sanitary sewers, storm sewers, sanitary sewer trunk line extension,
sanitary sewer lift station, force main extension, water main extension, waterlines,
sidewalks, extension of Oakdale Boulevard and Moss Place together with other
related site improvements, public utilities, public utility extensions and the lands
thereunder, as well as all design, engineering, inspection, construction
supervision, legal and financing costs, within the Development Property directly
related to the Minimum Improvements which are outlined and depicted on the
Moss Green Urban Village Master Plan, approved Sensitive Areas Development
Plan, approved Overlay Planned Development, the approved Preliminary Plat and
as described in the Construction Plans to be submitted and approved by the City
under Article III, all of which are incorporated by reference herein. The Developer
shall submit copies of actual receipts, invoices and any other proof of payment or
expense for which it seeks reimbursement for the Minimum Improvements as
required by Section 8.1 (d).
It is anticipated that actual construction costs of the Minimum
Improvements will be:
MOSS GREEN URBAN VILLAGE
Oakdale Boulevard
Item Amount Unit Unit Cost Total
$ $
Paving 35640 S.Y. 60.00 2,138,400
$ $
Trail 6072 S.Y. 25.00 151,800
$ $
Sidewalk 3036 S.Y. 20.00 60,720
$ $
Water Main 5400 L.F. 25.00 135,000
$ $
Water Main Encasement 675 L.F. 75.00 50,625
$ $
Bridges 39550 S.F. 70.00 2,768,500
$ $
Road Fill/Pond Excavation 270,000 C.Y. 4.00 1,080,000
$ $
Storm Water Chambers 300 E.A. 530.00 159,000
$ $
15" Storm Sewer 5900 L.F. 30.00 177,000
$ $
Storm Sewer Intake 20 EA. 2,500.00 50,000
$ $
Street Lighting 1 L.S. 300,000.00 300,000
A - 3
$
Un forsee nil ncede n to Is 10% $ 7,071,045 707,105
$
7,778,150
Moss Place
$ $
Paving with Trails, Porous Pavement, Parking 24000 S.Y. 60.00 1,440,000
$ $
Water Main 5200 L.F. 25.00 130,000
$ $
Water Main Encasement 225 L.F. 75.00 16,875
$ $
Bridge 9000 S.F. 70.00 630,000
$ $
Road Fill/Pond Excavation 30,000 C.Y. 2.50 75,000
$ $
Storm Water Chambers 660 E.A. 530.00 349,800
$ $
15" Storm Sewer 4800 L.F. 30.00 144,000
$ $
Storm Sewer Intake 34 EA. 2,500.00 85,000
$ $
Street Lighting 1 L.S. 200,000.00 200,000
$
Un forsee nil ncede n to Is 10% $ 3,070,675 307,068
$
3,377,743
Sanitary Sewer New System
$ $
24" San. Sewer 6300 L.F. 360.00 2,268,000
$ $
6" Force Main 6300 L.F. 18.00 113,400
$ $
8" San. Sewer 4238 L.F. 26.00 110,188
$ $
Lift station 180 TDH @ 200 gpm 1 L.S. 300,000.00 300,000
$
Unforsee nil ncede n to Is 10% $ 2,791,588 279,159
$
3,070,747
Fees
$
Engineering, Legal, Accounting and others 906,000
$
Interest on Construction Loan(assumed 8 year return) 2,100,000
$
TOTAL PROJECT ESTIMATE 13,632,639
A-4
Prepared By:
Return To:
EXHIBIT C
CERTIFICATE OF COMPLETION
WHEREAS, the City of Iowa City, Iowa (the "City") and Moss Green
Development Corporation, having an office for the transaction of business at
3354 Kenruth Circle NE, Iowa City, Iowa 52240 (the "Developer"), did on or about
the day of , 2010, make, execute and deliver, each
to the other, an Agreement for Private Redevelopment (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:
MOSS-GREEN URBAN VILLAGE
A part of the subdivision of the Northeast One-Quarter of Section 35, Township
80 North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa, as
recorded in Plat Book 1 at Page 11 in the Records of the Johnson County
Recorder, Johnson County, Iowa, more particularly described as follows: Lots
Four (4), Five (5) and Ten (10) and the South nine (9) acres of Lot Six (6), and
the South 12-1/2 acres of Lot Eight (8), all of the subdivision of Northeast Quarter
of Section 35, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa, containing 60.67 acres, more or less; and
All of the Northeast Quarter of the Southeast Quarter, a part of the Southeast
Quarter of the Southeast Quarter lying North of the Interstate 80 Right-of-Way
line and the East 63.75 acres of the West Half of the Southeast Quarter lying
North of the Interstate 80 Right-of-Way line, all of said Section 35, Township 80
North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa, being
more particularly described as follows: BEGINNING at the East Quarter Corner of
Section 35, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa;
THENCE South 00046'46" East, a distance of 1,980.54 feet to the North Right-of-
Way line of Interstate 80;
THENCE South 82024'15" West, along the North Right-of-Way line of Interstate
80, a distance of 646.23 feet;
THENCE continuing west along the North Right-of-Way line of Interstate 80,
C - 1
North 88011'05" West, a distance of 1,731.77 feet;
THENCE North 00054'55" West, a distance of 2,023.65 feet to the North line of
the Southeast Quarter of said Section 35, Township 80 North, Range 6 West of
the Fifth Principal Meridian, Johnson County, Iowa;
THENCE South 89041 '57" East, along said North line of the Southeast Quarter of
Section 35, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa, a distance of 2,376.88 feet to the POINT OF
BEGINNING, containing 111.22 acres, more or less; and
HILLS BANK & TRUST and NEAL N. LLEWELLYN:
The Southwest Quarter of the of the Northwest Quarter of Section 36, Township
80 North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa
and that portion of The Southeast Quarter of the of the Northwest Quarter of
Section 36, Township 80 North, Range 6 West of the Fifth Principal Meridian,
Johnson County, Iowa lying West of Iowa Highway 1 (North Dodge Street)
containing 71.35 acres, more or less.
WHEREAS, the Agreement incorporated and contained certain covenants
and restrictions with respect to the development of the Development Property,
and obligated the Developer to construct certain Minimum Improvements (as
defined therein) in accordance with the Agreement; and
WHEREAS, the Developer has to the present date performed said
covenants and conditions insofar as they relate to the construction of said
Minimum Improvements in a manner deemed by the City to be in conformance
with the approved building plans to permit the execution and recording of this
certification.
NOW, THEREFORE, pursuant to Section 3.4 of the Agreement, this is to
certify that all covenants and conditions of the Agreement with respect to the
obligations of the Developer, and its successors and assigns, to construct the
Minimum Improvements on the Development Property have been completed and
performed by the Developer and are hereby released absolutely and forever
terminated insofar as they apply to the land described herein. The County
Recorder of Johnson County is hereby authorized to accept for recording and to
record the filing of this instrument, to be a conclusive determination of the
satisfactory termination of the covenants and conditions of said Agreement 'with
respect to the construction of the Minimum Improvements on the Development
Property.
C-2
All other provisions of the Agreement shall otherwise remain in full force and
effect until termination as provided therein.
(SEAL)
CITY OF IOWA CITY, IOWA
By:
Matthew J. Hayek, Mayor
ATTEST:
By:
Marian K. Karr, City Clerk
STATE OF IOWA )
) SS
COUNTY OF JOHNSON )
On this _day of , 2010, before me a Notary
Public in and for said County, personally appeared Matthew Hayek and Marian
Karr, to me personally known, who being duly sworn, did say that they are the
Mayor and City Clerk, respectively of the City of Iowa City, Iowa, a Municipal
Corporation, 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 Municipal
Corporation, and that said instrument was signed and sealed on behalf of said
Municipal Corporation 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 Municipal Corporation by it voluntarily executed.
Notary Public in and for Johnson County,
Iowa
C - 3
EXHIBIT D
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, City of Iowa City, Iowa, (the "City" ) and Moss Green
Development Corporation (the "Developer") did on or about the day
of June 2010, make, execute and deliver 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 more particularly described
as follows:
MOSS-GREEN URBAN VILLAGE
A part of the subdivision of the Northeast One-Quarter of Section 35,
Township 80 North, Range 6 West of the Fifth Principal Meridian, Johnson
County, Iowa, as recorded in Plat Book 1 at Page 11 in the Records of the
Johnson County Recorder, Johnson County, Iowa, more particularly
described as follows: Lots Four (4), Five (5) and Ten (10) and the South
nine (9) acres of Lot Six (6), and the South 12-1/2 acres of Lot Eight (8), all
of the subdivision of Northeast Quarter of Section 35, Township 80 North,
Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa,
containing 60.67 acres, more or less; and
All of the Northeast Quarter of the Southeast Quarter, a part of the
Southeast Quarter of the Southeast Quarter lying North of the Interstate 80
Right-of-Way line and the East 63.75 acres of the West Half of the
Southeast Quarter lying North of the Interstate 80 Right-of-Way line, all of
said Section 35, Township 80 North, Range 6 West of the Fifth Principal
Meridian, Johnson County, Iowa, being more particularly described as
follows: BEGINNING at the East Quarter Corner of Section 35, Township
80 North, Range 6 West of the Fifth Principal Meridian, Johnson County,
Iowa;
THENCE South 00046'46" East, a distance of 1,980.54 feet to the North
Right-of-Way line of Interstate 80;
THENCE South 82024'15" West, along the North Right-of-Way line of
Interstate 80, a distance of 646.23 feet;
THENCE continuing west along the North Right-of-Way line of Interstate
80, North 88011'05" West, a distance of 1,731.77 feet;
THENCE North 00054'55" West, a distance of 2,023.65 feet to the North
line of the Southeast Quarter of said Section 35, Township 80 North,
Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa;
THENCE South 89041 '57" East, along said North line of the Southeast
Quarter of Section 35, Township 80 North, Range 6 West of the Fifth
C-4
Principal Meridian, Johnson County, Iowa, a distance of 2,376.88 feet to
the POINT OF BEGINNING, containing 111.22 acres, more or less; and
HillS BANK & TRUST and NEAL N. llEWEll YN:
The Southwest Quarter of the of the Northwest Quarter of Section 36,
Township 80 North, Range 6 West of the Fifth Principal Meridian, Johnson
County, Iowa and that portion of The Southeast Quarter of the of the
Northwest Quarter of Section 36, Township 80 North, Range 6 West of the
Fifth Principal Meridian, Johnson County, Iowa lying West of Iowa Highway
1 (North Dodge Street) containing 71.35 acres, more or less.
WHEREAS, the terms of this Agreement shall commence on the
day of June, 2010, and terminate on or about the 31st day of
December, 2032, as set forth in the Agreement; and
WHEREAS, the City and the 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, City Hall,
Iowa City, Iowa.
C - 5
IN WITNESS WHEREOF, the City and the Developer has executed
this Memorandum of Agreement for Private Development as of the
day of June, 2010.
(SEAL)
CITY OF IOWA CITY, IOWA
By:
Matthew J. Hayek,
Mayor
ATTEST:
By:
Marian K. Karr, City Clerk
MOSS GREEN DEVELOPMENT CORPORATION
By:
Stephen Moss, President
ATTEST:
By:
Title:
C-6
STATE OF IOWA )
)
COUNTY OF JOHNSON)
On this day of , 2010, before me a Notary
Public in and for said State, personally appeared Matthew J. Hayek and
Marian K. Karr to me personally known, who being duly sworn, did say that
they are the Mayor and City Clerk, respectively, of the City of Iowa City,
Iowa, a municipal corporation, 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 City, and that said instrument was signed and sealed on behalf
of said City 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 City by it voluntarily executed.
Notary Public in and for the State of
Iowa
STATE OF IOWA )
)
COUNTY OF JOHNSON)
On this day of I 2010, before me the
undersigned, a Notary Public in and for said State, personally appeared
Stephen Moss and to me personally
known, who being duly sworn, did say that they are the President and
respectively of Moss Green Development
Corporation and that said instrument was signed on behalf of said
corporation; and that the said President and , as
such officers acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation, by them voluntarily executed.
Notary Public in and for the State of
Iowa
C -7
EXHIBIT E
PUBLIC, EMERGENCY AND SERVICE VEHICLE ACCESS EASEMENT
AGREEMENT
C - 8
EXHIBIT F
FORM OF LEGAL OPINION
City of Iowa City
410 E. Washington Street
Iowa City, Iowa 52240
RE: Agreement for Private Development by and between the City of
Iowa City, Iowa and Moss Green Development Corporation
Gentlemen:
As counsel for Moss Green Development Corporation (the
"Developer"), and in connection with the execution and delivery of a certain
Development Agreement (the "Development Agreement") between the
Developer and the City of Iowa City, Iowa (the "City") dated as of
,2010, 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 such 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:
The Development Agreement has been duly and validly authorized,
executed and delivered by Moss Green Development Corporation, 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 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.
Very truly yours,
C-9