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HomeMy WebLinkAboutTailwind Development Agreement (signed resolution)Prepared by Sara Hektoen, Assistant City Attorney, 410 E Washington St, Iowa City IA 52240, (319) 356-5030 Resolution No. 21-15 Resolution approving an agreement for private redevelopment by and between the City of Iowa City, Iowa, Tailwind College Street, LLC and Tailwind College Street IC, LLC. Whereas, Tailwind College Street, LLC and Tailwind College Street IC, LLC submitted a proposal for the historic rehabilitation of certain historic structures and the construction of a new 11 -story multi -family residential building located within the 100 block of East College Street Pedestrian Mail (hereinafter the "Project"); and Whereas, the property is located Within the City -University Project I Urban Renewal Area and is subject to the City -University Project I Urban Renewal Plan, as amended by City Council on May 2, 2017 (resolution 17-156)("Plan"); and Whereas, the Project for the redevelopment is consistent with the goals set forth in the City - University Project 1 Urban Renewal Plan, as amended; and Whereas, the Economic Development Committee considered said application and voted to recommend approval to the City Council at its meeting on December 9, 2020, and; Whereas, City Staff has reviewed the application and proposed Developer's Agreement and recommends approval to the City Council-, and Whereas, in exchange for grant funds not to exceed $12,250,000, the owner and developers have agreed to complete minimum improvements consisting of at least $54,400,000 in project costs ($19,040,000 for historic rehabilitation and $35,360,000 for new construction), as well as the contribution of $1,920,000 in lieu of providing affordable housing; and Whereas, it is the determination of this City Council that acceptance of the proposal of the Developer and approval of the Agreement for Private Development is in the public interest of the residents of the City and is consistent with the purposes and objectives of the Plan. Now, therefore, be it resolved by the City Council of the City of Iowa City that: 1. That the attached Agreement for Private Development by and between the City of Iowa City Iowa, Tailwind College Street, LLC and Tailwind College Street IC, LLC is in the public interest of the residents of Iowa City. 2. That said Agreement is consistent with and authorized by the Urban Renewal Plan and all applicable State and federal laws including, but not limited to, Iowa Code Chapters 15A and 403; and 3. That the Mayor is authorized and directed to execute the Agreement and the City Clerk is authorized and directed to attest his signature and to affix the seat of the City Clerk 4. That the Mayor and City Clerk be and are hereby authorized and directed to take all such actions and do all such things as they shall determine to be necessary or appropriate to ensure the City's performance as provided therein. Resolution No. 21-15 Page 2 5. That the City Manager is hereby authorized to administer the terms of the Agreement for Private Development. Passed and approved this 19th day of January 2021. MA"Ite"P, Ap7prp7d by ATTEST: CITY CLERK City Attorney's Office (Sara Greenwood Hektoen — 01/14/21) Resolution No. 2,1-15 Page 3 It was moved by Bergus andsecondedby Salih Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: x Bergus x Mims x Salih x Taylor x Teague x Thomas x Weiner is : THE CITY OF IOWA CITY, IOWA, TAILWIND COLLEGE STREET, LLC, JANUARY 19, 2021 Exhibit A — Development Property Legal Description Exhibit B — Minimum Improvements and Uses Exhibit C — Certificate of Completion Exhibit D — Memorandum of Agreement for Private Redevelopment Exhibit E — Opinion of Counsel Exhibit F — Minimum Assessment Agreement Exhibit G — Temporary Construction Easement Exhibit H — Concept Plan Exhibit I — Temporary Use of Right -of -Way Agreement Exhibit J — Annual Certification Exhibit K — Wage Theft Affidavit Exhibit L - Agreement Establishing an Economic Development Protocol between the Iowa City Area Development Group and Participating Cities 0 THIS AGREEMENT FOR PRIVATE REDEVELOPMENT (hereinafter called "Agreement" or "Development Agreement"), is made on or as of the 191 day of January, 2021, by and among the CITY OF IOWA CITY, IOWA, a municipality (hereinafter called "City"), established pursuant to the Code of Iowa of the State of Iowa and acting under the authorization of Chapters ISA and 403 of the Code of Iowa, 2021, as amended (hereinafter called "Urban Renewal Act"), TAILWIND COLLEGE STREET, LLC., a Minnesota limited liability company, having a mailing address at 530 South Front Street, Ste. 100, Mankato, MN 56001 (hereinafter "Developer"), and TAILWIND COLLEGE STREET IC, LLC., a Minnesota limited liability company, having a mailing address at 530 South Front Street, Ste. 100, Mankato, MN 56001 (hereinafter "Owner"). WITNESSETH: WHEREAS, in furtherance of the objectives ot- the Urban Renewal Act, the City has undertaken a program for the clearance and reconstruction or rehabilitation 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 City -University Project I ("Urban Renewal Ara' or "Area"), which area is described in the City -University Project I Plan ("Plan") approved for such area by Resolution No. 2157 on October 2, 1969, and which Plan has been amended from time to time; 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 Owner owns certain property in the City ("Development Property") upon which it desires, in partnership with Developer, to construct improvements in the form of historic rehabilitation of certain existing structures on the Development Property and the construction of a new II -story multi -family -residential building, and agrees that such improvements be operated in accordance with this Agreement; and WHEREAS, the City believes that the development of the real property, located in the foregoing Urban Renewal Area referred to as the Development Property and as described in Exhibit A attached hereto and made a part hereof, pursuant to this Agreement and the fulfillment generally of this Agreement, are in the vital and best interests of the City and in accord with the public purposes and provisions of Chapters 15A and 403, and other 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 premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows. ARTICLE 1. DEFINITIONS Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Agreement means this Agreement and all exhibits and appendices hereto, as the same may be from time to time modified, amended or supplemented. Assessor's Minimum Actual Value means the agreed minimum actual value after taking into consideration any factors such as "roll backs" which would reduce the taxable value of the Minimum Improvements and the Development Property for calculation and assessment of real property taxes, as set forth in the Minimum Assessment Agreement and Section 5.7. Certificate of Completion means a certification substantially in the form of the certificate attached hereto as Exhibit C and hereby made a part of this Agreement, provided to Owner and Developer pursuant to Section 2.6 of this Agreement. Cily means the City of Iowa City, Iowa, or any successor to its functions. City -University Proiect I Tax Increment Revenue Fund means the special fund of the City created under the authority of Section 403.19(2) of the Code, as amended, and the Ordinance, which fund was 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 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 Urban Renewal Area. Code means the Code of Iowa, 2021, as amended. Construction Plans means the plans, specifications, drawings and related documents reflecting the construction work to be performed by Developer and Owner on the Development Property with respect to the construction of the Minimum hnprovements; 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. Commencement Date means the date of this Agreement. Coon means the County of Johnson, Iowa. DeveloMe means TAILWIND COLLEGE STREET, LLC., a Minnesota limited liability EKWM. 110111111 iiiiiin Economic Development Grants are as described in Article VII. Minimum Improvements means the historic rehabilitation of certain existing structures on the Development Property and the construction of a new II -story multi -family residential El building of and on the Development Property, as fully detailed in Exhibit B. attached and incorporated herein by this reference. Mort2aee means any mortgage granted to secure any loan made pursuant to either a mortgage commitment obtained by Owner and Developer from a commercial lender or other financial institution to fund any portion of the construction costs and initial operating capital requirements of the Minimum Improvements, or all such Mortgages as appropriate. Net Proceeds means any proceeds paid by an insurer to Owner and Developer under a policy or policies of insurance required to be provided and maintained by Owner and Developer, pursuant to Article IV of this Agreement and remaining after deducting all deductibles, retentions, and expenses (including fees and disbursements of counsel) incurred in the collection of such proceeds. Ordinance means Ordinance No. 01-3991 of the City, passed on December 11, 2001, under which the taxes levied on the taxable property in the Area shall be divided and a portion paid into the City -University- Project I Tax Increment Revenue Fund. Owner means TAILWIND COLLEGE STREET IC, LLC., a Minnesota limited liability company. ProjW means the construction and operation of the Minimum Improvements on the Development Property, as described in this Agreement. Residential Building means a new 11-story multi -family residential building to be constructed on the Development Property, as more fully described in the Minimum Improvements in Exhibit B. State means the State of Iowa. Tailwind TIF Account means a separate account within the City -University Project I Urban Renewal Tax Increment Revenue Fund of the City in which there shall be deposited Tax Increments received by the City with respect to the Minimum Improvements. Tax Increments means the property tax revenues, with respect to the Minimum Improvements on the Development Property, divided and made available to the City for deposit in the Tailwind TIF Account of the City -University Project I Tax Increment Revenue Fund under the provisions of Section 403.19 of the Code, as amended, the Ordinance, and this Agreement. Termination Date means the date of termination of this Agreement, as established in Section 12,11 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, litigation commenced by third parties, or the acts of any federal, state or 2 local governmental unit (other than the City with respect to the City's obligations). Unavoidable Delays shall not include unanticipated acts or occurrences related to the coronavirus pandemic, including but not limited to shortages in labor or stay-at-home orders made by the federal, state, or local government; provided, however, that if work is stopped by an order of the federal, state, or local government for a period of 30 consecutive days, then the schedule shall be equitably adjusted due to impacts accruing from the 3 1 " day and after. Urban Renewal Plan means the Urban Renewal Plan approved in respect of the City - University Project I Urban Renewal Area, described in the preambles hereof. ARTICLE 11. CONSTRUCTION AND USES. Section 2.1 Minimum Improvements and Uses. (a) The Owner and Developer's construction activities on the Development Property will consist of the rehabilitation of certain historic structures on the Development Property and the construction of a new 11 -story multi -family residential building as described more fully on Exhibit B ("Minimum Improvements"). The Developer hereby commits to a project that includes a minimum total of $54,400,000 in development costs, including construction costs, architectural fees, land costs, parking, developer overhead, and financing costs. The Developer finther commits to the payment of approximately $1,920,000 in lieu of providing of housing, as more particularly described in Section 2.2 below. Owner and Developer agree that they will cause the Minimum Improvements to be constructed on the Development Property (i) in substantial conformance with the Construction Plans approved by the City; (ii) in accordance with any and all certificates of appropriateness and associated conditions approved by the Historic Preservation Commission; and (iii) in accordance with any and all terms and conditions required by the Board of Adjustment pursuant to paragraph (d) below. Owner and Developer agree that the scope and scale of the Minimum Improvements to be constructed shall not be significantly less than the scope and scale of the Minimum Improvements as detailed in the Construction Plans; provided, however, the parties hereby acknowledge that through the design process, the final number of residential dwelling units and the mix thereof, may deviate slightly from the current plans, The City Manager may approve such minor deviations from the Construction Plans -upon determining that they do not constitute significant changes to the scope or scale of the Minimum Improvements. This authority, however, does not include the authority to reduce the minimum number of parking spaces required pursuant to paragraph (d) below. The design of the Minimum Improvements must be approved by the Design Review Committee for conformance with the Level I Design Review development standards, as set forth in Iowa City Code of Ordinances 14-3C-3C, and this Agreement. (b) In the event that Owner and Developer desire to stage construction on any City - owned property, including right-of-way, Owner and Developer shall first obtain from the City a Temporary Construction and/or Temporary use of Right -of -Way easement in a form substantially similar to the agreements attached hereto as Exhibits G and 1, which shall require Owner and Developer to replace any damaged concrete surfaces, among other obligations, to restore the easement areas to the satisfaction of the City upon completion of construction. R (c) In the event that Owner and Developer desire to construct off -site improvements within the area east of the Development Property upon which the City has an easement pursuant to the easement agreement recorded in Book 4543, Page 827, which easement has been amended pursuant to agreements recorded in Book 4360, Page 382, and Book 726, Page 174, all in the records of the Johnson County, Iowa Recorder's Office, Owner and Developer shall obtain further amendment thereto from the City and the off -site property owner. Any use of this easement area shall enhance the pedestrian experience and encourage public access. (d) The Minimum Improvements shall include the minimum number of parking spaces as provided by the special exception approved by the Board of Adjustment on December 9, 2020 (EXC20-0007) and recorded as Document No. 027934640020 in Book 6151, Page 514-533, of the Office of the Johnson County Recorder. Owner and Developer acknowledge the City's commitment to provide affordable housing and that because Owner and Developer are receiving tax increment financing, they are obligated pursuant to the Iowa City Council Economic Development policy to lease or sell 15% of the total residential units to income -qualified residents, as defined in the City Code of Ordinances, or pay a fee in lieu thereof to an affordable housing fund to be established by the City. Based upon an assumption that there will be 102 new dwelling units created as part of the Project, Owner and Developer hereby agree to satisfy this affordable housing occupancy obligation through the payment of a fee in lieu of leasing or selling 17 units for such purposes, in an amount determined biennially by resolution of the City Council based upon a formula that analyzes the difference between renting a market rate unit for the term of affordability and renting a dwelling unit affordable to an income qualified household. This fee in -lieu shall be paid prior to issuance of any building permit for construction of the Minimum Improvements and shall be determined based upon the resolution of the City Council in effect on the date the fee is paid. (For reference only, Resolution 20-230, effective on the date of execution of this agreement, establishes the current fee as $112,853 per unit.) The final number of affordable housing units required, and thus the fee in lieu thereof, shall be based upon the number of total dwelling units shown on the final approved Construction Plans. No refund shall be provided if the number of dwelling units constructed is reduced for any reason, with or without City approval, during construction. Section 2.3. Construction Plans. Owner and Developer shall cause Construction Plans to be provided to the City for the Minimum Improvements, which shall be subject to approval by the City as provided in this section. The Construction Plans shall be in conformity with the Urban Renewal Plan, this Agreement, and all applicable federal, state and local laws and regulations. The City shall approve the Construction Plans in writing if (i) the Construction Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans conform to the terms and conditions of the Urban Renewal Plan; (iii) the Construction Plans conform to all applicable federal, State and local laws, ordinances, rules and regulations, and City permit requirements; (iv) the Construction Plans conform to the terms and conditions of the h Certificate of Appropriateness approved by the Historic Preservation Commission; (y) the Construction Plans are adequate for purposes of this Agreement to provide for the construction of the Minimum Improvements; and (vi) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Construction Plans pursuant to this section 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. 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, 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 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. 1 61 11'111111flm�W F110011� The City shall not issue a building permit for any work contemplated by this Agreement unless and until Owner and Developer have satisfied the following obligations: a) Developer shall have caused the Development Property to be zoned CB-10/0111) in accordance with the Iowa City Zoning Code; b) Developer shall demonstrate compliance with the special exception approved by the Board of Adjustment on December 9, 2020 (EXC20-0007) and recorded as Document No. 027934640020 in Book 6151, Page 514-533, of the Office of the Johnson County Recorder; c) Issuance of Certificate(s) of Appropriateness from the Historic, Preservation Commission for the Minimum Improvements and compliance with any conditions set forth therein, including: i) documentation of the rear window and door condition prior to replacement; ii) documentation of the condition of the the entry at the Crescent Block and any new tile shall match the existing; iii) the new storefront at the Crescent Block shall have recessed entries, pursuant to Section 2.1 herein. Satisfaction of these conditions shall be reviewed by the Director of Neighborhood and Development Services, or designee; d) approval of the Construction Plans by the Design Review Committee, pursuant to Section 2.3 herein; e) approval of the traffic operations analysis and construction management plan required by Section 3.2(i) herein; f) payment of the Affordable Housing in -lieu fee, pursuant to Section 2.2 herein; I: execution of any necessary easement agreements, pursuant to Section 2.1 herein; h) provide the City with sufficient evidence to establish compliance with the Contractor Labor Law requirement set forth in Section 5.9 below; and i) any other conditions precedent established through this Agreement or any other written agreement among the City and/or Owner and/or Developer regarding development of the Development Property. Section 2.5 Commencement and Completion of Construction. Subject to Unavoidable Delays, Owner and Developer shall cause construction of the Minimum Improvements to be undertaken and completed no later than December 31, 2022. Time lost as a result of Unavoidable Delays shall be added to equitably 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 to be constructed or provided by Owner and Developer shall he in substantial conformity with the Construction Plans approved by the building official or any amendments thereto as may be approved by the building official. Owner and Developer agree that they shall permit designated representatives of the City, upon reasonable notice (which does not have to be written), to enter upon the Development Property during the construction of the Minimum Improvements to inspect such construction and the progress thereof. Section 2.6. Certificate of Completion. Upon written request of Owner and Developer after issuance of an occupancy pen -nit for the Minimum Improvements, the City will famish Owner and Developer with a Certificate of Completion for the Minimum Improvements in recordable form, in substantially the form set forth in Exhibit C attached hereto. Such Certificate of Completion shall be a conclusive determination of satisfactory termination of the covenants and conditions of this Agreement with respect to the obligations of Owner and Developer to construct 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 Owner and 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 2.6, the City shall, within twenty (20) days after written request by Owner and Developer, provide Owner and Developer with a written statement indicating in adequate detail in what respects Owner and Developer have failed to complete the Minimum Improvements in accordance with the provisions of this Agreement, or are otherwise in default under the terms of this Agreement, and what measures or acts are necessary, in the opinion of the City, for Owner and Developer to take or perform in order to obtain such Certificate of Completion. ARTICLE 111. REPRESENTATIONS AND WARRANTIES. 0 Section 3. 1. ReDresentations 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 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, nor will 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 3.2. Representations and Warranties of Owner and Developer. The Owner and Developer make the following representations and warranties: (a) Owner and Developer are companies duty organized and validly existing under the laws of the State of Minnesota and registered to do business in the State of Iowa that have all requisite power and authority to develop and construct the Project, to carry on their businesses as now conducted and as presently proposed to be conducted, and to enter into and perform their obligations under this Agreement. (b) This Agreement has been duly and validly authorized, executed and delivered by the Owner and 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 Owner and 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, Owner and Developer shall provide an Opinion of Counsel substantially in the form attached as ExWbit 1E, to be signed concurrently with this Agreement and at other times requested by the City- (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, nor will not result in a violation or breach of, the terms, conditions or provisions of the articles of incorporation, bylaws, or any applicable governing document of Owner or Developer, or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the Owner or Developer are now a party or by which they or their 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 Owner or 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 Owner or Developer or which in any manner raises any questions affecting the validity of the 10 Agreement or the Owner or Developer's ability to perform their obligations under this Agreement. (e) Neither Owner nor Developer have received any notice from any local, state or federal official that the activities of Owner or Developer with respect to the Development Property may or will be in violation of any environmental law or regulation. Neither Owner nor Developer are 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 enviromnental law, regulation or review procedure applicable to the Development Property, and neither Owner nor Developer are 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) Owner and Developer will cause the Minimum Improvements to be constructed in substantial accordance with the terms of this Agreement, the Urban Renewal Plan and all local, state and federal laws and regulations. (g) Owner and Developer will use their 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 before the Minimum Improvements may be lawfully constructed. (h) Owner and Developer have firm commitments for permanent financing for the Project in an amount sufficient together with equity commitments, to successfully complete the Minimum Improvements in substantial accordance with the Construction Plans contemplated in this Agreement. (i) Owner and Developer will cooperate fully 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. Owner and Developer shall submit a written construction management plan to the Director of Public Works for approval. Owner and Developer shall conduct a traffic operations analysis of the Burlington Street / Dubuque Street intersection, identifying existing peak hour vehicular/pedestrian level of service and comparing them to the expected level of service at full -build and occupancy of the proposed development. This may be achieved through the use of Synchro or similar software. A full Iowa Department of Transportation traffic impact study is not required. Owner and Developer will coordinate staging for construction of the Minimum Improvements with the Public Works Director. Owner and Developer shall obtain from the City any necessary temporary construction easements in accordance with Section 2.1 herein. 0) Owner and Developer expect that, barring Unavoidable Delays, the Minimum Improvements and Uses outlined in Exhibit B will be completed by December 31, 2022. (k) Owner and Developer would not undertake their obligations under this Agreement without the Economic Development Grants contemplated by Section 7.1 hereof (the "Economic Development Grants") to Owner and Developer pursuant to this Agreement. 11 (1) Neither Owner, nor Developer, nor any person or entity with an ownership interest of more than 25% of Owner or Developer have been adjudicated guilty or liable in any judicial or administrative proceeding of committing a repeated or willful violation of the Iowa Wage Payment Collection law, the Iowa Minimum Wage Act, the Federal Fair Labor Standards Act or any comparable state statute or local ordinance, which governs the payment of wages in the last 5 years. (m) In marketing space to sell or lease within the Project, Owner and Developer shall not actively pursue a business located in the cities of Coralville and North Liberty and encourage it to relocate. "Actively pursue" means to initiate contact with the business directly, with the intent of luring the business through phone calls, visits, mail solicitations, marketing, through a third party or otherwise. This does not preclude Owner and Developer from generally promoting the benefits of the Project, or responding to questions and requests for information posed by a business. Owner and Developer acknowledge that they have received a copy of the Agreement Establishing an Economic Development Protocol between the Iowa City Area Development Group and Participating Cities (attached hereto as Exhibit L) and agree to act consistently with the principles articulated therein. This provision shall be binding upon Owner and Developer's successors and assigns. ARTICLE IV. INSURANCE. Section4.1. Insurance Reouirements (a) Upon completion of construction of the Minimum improvements and at all times prior to the Termination Date, Owner and Developer shall maintain, or cause to be maintained, at their cost and expense (and from time to time at the request of the City shall ftmiish proof of 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 $100,000, unless otherwise approved in writing by the City. 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 Owner and Developer and approved by the City; and 12 (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; and (iii) Such other insurance, including worker's compensation insurance respecting all employees of Owner and Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure, provided that Owner and Developer may be self -insured with respect to all or any part of its liability for worker's compensation. (b) All insurance required by this Article IV to be provided prior to the Termination Date shall be taken out and maintained in responsible insurance companies selected by Owner and Developer, which are authorized under the laws of the State to assume the risks covered thereby. Owner and Developer will deposit annually with the City copies of policies evidencing such insurance or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article IV, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to Owner and 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 party responsible for obtaining the same shall furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another policy conforming to the provisions of this Article IV, or that there is no necessity therefor under the terms hereof (c) Owner and Developer agree to notify the City immediately in the case of damage exceeding $25,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid directly to Owner or Developer, and Owner and 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, Developer will apply the Net Proceeds of any insurance relating to such damage received by Owner or Developer to the payment or reimbursement of the costs thereof. (d) owner and Developer shall complete the repair, reconstruction, and restoration of the Minimum Improvements, or other similar improvements agreed upon by and between the City, Owner and Developer, whether or not the Net Proceeds of insurance received by Owner or Developer for such purposes are sufficient; provided, however, that the City acknowledges and agrees that in the case of historic structures it may be impracticable to repair, reconstruct, or restore such structures to substantially the same or an imp -roved condition and such structures may need to be entirely replaced, in which case said structures shall be replaced in conformance with the CB-10/0111) zoning designations required by Section 2.4(a) above. ARTICLE V. COVENANTS 13 Section 5. 1. Maintenance of Property. Owner and Developer will maintain, preserve and keep the Development Property, including but not limited to the Minimum Improvements, in good repair and working order, ordinary wear and tear excepted, and from time to time will make all necessary repairs, replacements, renewals and additions. Section 5.2. Maintenance of Records. Owner and 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 Owner and Developer in accordance with generally accepted accounting principles, consistently applied throughout the period involved, and Owner and Developer will provide reasonable protection against loss Or damage to such books of record and account. Section 5.3. Comoliance with Laws. Owner and Developer will comply with all laws, rules and regulations relating to the Minimum Improvements. Section 5.4. Non -Discrimination. In operating the Minimum Improvements, Owner and Developer shall not discriminate against any applicant or tenant because of age, color, creed, disability, gender identity, marital status, national origin, race, religion, sex, sexual orientation, presence or absence of dependents or public assistance source of income. Developer shall ensure that any such applicants, employees, and tenants are considered and are treated without regard to their age, color, creed, disability, gender identity, marital status, national origin, race, religion, sex, sexual orientation, presence or absence of dependents or public assistance source of income. Section 5.5. Available Information. Upon request, Owner and Developer shall promptly provide the City with copies of information requested by the City that are related to this Agreement so that the City can determine compliance with the Agreement. Section 5.6. Annual Certification. To assist the City in monitoring and performance of Owner and Developer hereunder, a duly -authorized officer of Owner and Developer shall annually certify to the City-. (a) proof that all ad valorem taxes on the Development Property and Minimum Improvements have been paid for the prior fiscal year; and (b) certification that such officer has re-examined the terms and provisions of this Agreement and that at the date of such certification, and during the preceding twelve (12) months, Developer is not, or was not, in default in the fulfillment of any of the terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of such certification or during such period, or if the signer is aware of any such default, event or Event of Default, said officer shall disclose in such statement the nature thereof, its period of existence and what action, if any, has been taken or is proposed to be taken with -respect thereto. Such statement, proof and certificate shall be provided not later than November I of each year, commencing November 1, 2023 and ending on November 1, 2037, both dates inclusive. Upon certification by the Owner and Developer on or before November 1, 2023, the City will certify to establish a base value for the Development Property as of January 1, 2022. Owner and Developer shall provide supporting information for their annual certifications upon request of the City. A sample form of such an Annual Certification is attached hereto as Exhibit J. El Section 5.7 Minimum Assessment Agreement. Owner and Developer (and the holder of any Mortgage) shall agree to, and with the City shall execute, an Assessment Agreement pursuant to the provisions of Iowa Code Section 403.6(19) specifying the Assessor's Minimum Actual Value for the Minimum Improvements on the Development Property for calculation of real property taxes substantially in the form attached as Exhibit F ("Assessment Agreement" or "Minimum Assessment Agreement"). Specifically, Owner and Developer (and the holder of any Mortgage) shall agree to an Assessor's Minimum Actual Value for the Minimum Improvements to be constructed on the Development Property of not less than $24,525,000, after taking into consideration any factors such as "roll backs" which would reduce the taxable value of the property, as of January 1, 2023, until the Assessment Agreement Termination Date (as defined below). Such minimum actual value at the time applicable is herein referred to as the "Assessor's Minimum Actual Value." Nothing in the Assessment Agreement shall limit the discretion of the Assessor to assign an actual value to the Development Property in excess of such Assessoes Minimum Actual Value nor prohibit Owner and Developer from seeking through the exercise of legal or administrative remedies a reduction in such actual value for property tax purposes; provided, however, that Owner and Developer shall not seek a reduction of such actual value below the Assessor's Minimum Actual Value in any year so long as the Minimum Assessment Agreement shall remain in effect. The Assessment Agreement shall remain in effect until December 31, 2037 ("Assessment Agreement Termination Date"). The Assessment Agreement shall be certified by the Assessor for the County as provided in Iowa Code Section 403.6(19) and shall be filed for record in the office of the Johnson County Recorder, and such filing shall constitute notice to any subsequent encumbrancer or purchaser of the Development Property (or part thereof), whether voluntary or involuntary. Such Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent purchaser or lienholder, as well as all prior lienholders (such as the holder of any Mortgage), each of which shall sign a statement of consent to the Minimum Assessment Agreement. The Minimum Assessment Agreement shall be recorded at Owner and Developer's expense Section 5.8. Real Property Taxes and Assessments. Owner and Developer shall pay or cause to be paid when due all real property taxes and assessments with respect to all and any parts of the Development Property. Owner and Developer agree that they will not seek: (a) Administrative or judicial review of the applicability or constitutionality of any Iowa tax statute relating to the taxation of property contained on the Development Property determined by any tax official to be applicable to the Development Property, the Minimum Improvements, or Owner and Developer, or raise the inapplicability or constitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; and (b) Any tax deferral or abatement either presently or prospectively authorized under Iowa Code Chapters 403 and 404 or any other local or State law, of the taxation of real property contained on the Development Property. 15 Section 5.9 Contractor Labor Law Compliance. Owner and Developer will require, in their agreement with their general contractor, that the General contractor i) comply with all state, federal and local laws and regulations, including, but not limited to the requirements of Iowa Code Chapter 91C (Contractor Registration with the Iowa Division of Labor), Iowa Code Chapter 91 A (Iowa Wage Payment Collection Law), Iowa Code Chapter 91 D (Minimum Wage), the Federal Fair Labor Standards Act, and the Internal Revenue Code; ii) provide to the Developer and the City, no later than the filing of an application for issuance of a building permit, the names and addresses of each subcontractor and the dollar value of the work the subcontractor is expected to perform; iii) demonstrate it has the capacity to meet all performance, and labor and material payment, bonding requirements relative to the Minimum Improvements; iv) provide to the City a certificate by the General Contractor's insurer that it has in force all insurance required with respect to construction of the Minimum Improvements; v) demonstrate that it has required all subcontractors to agree, in writing, that the subcontractor will comply with all state, federal and local laws and administrative rules and regulations, including, but not limited to the requirements of Iowa Code Chapter 91C (Contractor Registration with the Iowa Division of Labor), Iowa Code Chapter 91 A (Iowa Wage Payment Collection Law), Iowa Code Chapter 91D (Minimum Wage), the Federal Fair Labor Standards Act, and the Internal Revenue Code. Owner and Developer shall provide the City with sufficient evidence to establish compliance with this requirement prior to issuance of any building permit. ARTICLE VI. ASSIGNMENT AND TRANSFER (a) As security for the obligations of Owner and Developer under this Agreement, Owner and Developer represent and agree that, prior to the Termination Date, Owner and Developer will maintain existence as Minnesota limited liability companies registered to do business in the State of Iowa, and will not wind up or otherwise dispose of all or substantially all of their assets or assign their interest in the Development Property or Minimum Improvements, or 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 obligations of Owner and Developer under this Agreement, and (ii) the City consents thereto in writing in advance thereof, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, however, or any other provisions of this Agreement, Owner and Developer may pledge any and/or all of its assets as security for any financing of the Minimum Improvements, and the City agrees that Developer may assign its interest in the Economic Development Grants being paid under this Agreement for such purpose. (b) Upon completion of construction of the Minimum Improvements, the Owner and Developer may submit the Development Property to a horizontal pro ' perty regime pursuant to Iowa Code Chapter 499B. The City Manager is authorized to execute an amendment to this Agreement and the Minimum Assessment Agreement in accordance with Section 12.8 and 12.11 for the limited purpose of allocating the rights and obligations set forth in this Agreement to respective condominium units to be owned by one or more of the Owner or Developer. Any other amendment to this Agreement must be approved by City Council unless specifically stated herein. 16 ( 'e) Notwithstanding anything herein to the contrary, however, the parties expressly agree and acknowledge that Owner intends to transfer ownership of the Development Property to the Developer prior to the commencement of construction of the Minimum Improvements and that the City hereby consents to said transfer. Therefore, no ftirther consent from the City to the Owner's transfer of the Development Property to the Developer is required. It is ftirther acknowledged and agreed that upon the transfer of the Development Property by the Owner to the Developer, Owner shall, without the further action of any party to this Agreement, be released from any further obligation under this Agreement of any kind and that all fin1her rights, title and obligations owed to or due from the City under this Agreement shall vest solely in the Developer. Section 6.2. Revresentation as to Development. Owner and Developer represent and agree that their development of the Development Property, and their other undertakings pursuant to this Agreement, are and will be used for the purpose of development of the Development Property and not for speculation in land holding. Owner and Developer Rirther recognize and acknowledge: (a) The importance of developing the Development Property to the general welfare of the community; (b) The substantial financing and other public aids that have been made available by law and by the City for the purpose of making such development possible; (c) The minimum assessment established in Section 5.7 above is not anticipated to result in payment of the maximum amount of Economic Development grants described in Section 7.1. (d) Except for a change in the ownership or control of Owner and/or Developer(s) caused by or related to the death of a member, estate planning of a member or retirement of a member, when the remaining original controlling members of the Owner and/or Developer(s) remain unchanged, the fact that any act or transaction involving or resulting in a significant change in the ownership or with respect to the identity of the parties in control of Owner and Developer or the degree thereof, is for practical purposes a transfer or disposition of the Development Property then owned by Owner and Developer and the qualifications and identity of Owner and Developer are of particular concern to the City. Owner and Developer further recognize that it is because of such qualifications and identity that the City is entering into this Agreement with Owner and Developer. Section 6.3. Prohibition Against Transfer of Property and Assignment of Agreement. For the reasons identified in Section 6.2, Owner and Developer represent and agree for themselves and their successors and assigns, that: (a) Except for a change in the ownership or control of Owner and/or Developer(s) caused by or related to the death of a member, estate planning of a member or retirement of a member, when the remaining original controlling members of the Owner and/or Developer(s) Z remain unchanged or only by way of security for (i) the purpose of obtaining financing necessary to enable Owner and Developer or any successor in interest to the Development Property, or any part thereof, to perform their obligations with respect to constructing the Minimum Improvements under this Agreement•, and (ii) any other purpose authorized by this Agreement, Owner and Developer (except as so authorized) have not made or created, and they will not, prior to the completion of the Minimum Improvements and the delivery by the City of the Certificate of Completion, make, create, or suffer to be made or created, any total or partial sale, assignment conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to this Agreement or the Development Property, or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the City. (b) The City shall be entitled to require, except as otherwise provided in this Agreement, as conditions to any such approval that: (i) Any proposed transferee shall have the qualifications and financial responsibility, as determined by the City, necessary and adequate to fulfill the obligations -undertaken in this Agreement by Owner and Developer (or, in the event the transfer is or relates to part of the Development Property, such obligations to the extent that they relate to such part). 0i) Any proposed transferee, by instrument in writing satisfactory to the City and in form recordable among the land records, shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of Owner and Developer under this Agreement and the Assessment Agreement and agreed to be subject to all the conditions and restrictions to which Owner and Developer are subject (or, in the event the transfer is of or relates to part of the Development Property, such obligations, conditions, and restrictions to the extent that they relate to such part). Provided, that the fact that any transferee of, or any other successor in interest whatsoever to, the Development Property, or any part thereof, shall, whatever the reason, not have assumed such obligations or so agreed, shall not (unless and only to the extent otherwise specifically provided in this Agreement or agreed to in writing by the City) relieve or except such transferee or successor of or from such obligations, conditions, or restrictions, or deprive or limit the City of or with respect to any rights or remedies or controls with respect to the Development Property or the construction of the Minfinum Improvements; it being the intent of this, together with other provisions of this Agreement, that (to the fullest extent permitted by law and equity and excepting only in the manner and to the extent specifically provided otherwise in this Agreement) no transfer of, or change with respect to, ownership in the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the City of or with respect to any rights or remedies or controls provided in or resulting from this Agreement and the Assessment Agreement with respect to the Development Property and the construction of the Minimum Improvements that the City would have had, had there been no such transfer or change. (iii) There shall be submitted to the City for review all instruments and other legal documents involved in effecting transfer; and if approved by the City, its approval shall be indicated to Owner and Developer in writing. Such approval will not be unreasonably withheld. IN Provided, that except as set forth in Section 6.1(c) concerning Owner's transfer of ownership to Developer, in the absence of specific written agreement by the City to the contrary, no such transfer or approval by the City thereof shall be deemed to relieve Owner and Developer, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements, or from any of their obligations with respect thereto. Section 6.4 Prohibition Against Use as Non -Taxable or Centrally -Assessed Property. During the term of this Agreement, Owner and Developer agree that no portion of the Development Property or Minimum Improvements shall be transferred or sold to a non-profit entity or used for a purpose that would exempt said portion of the Development Property or Minimum Improvements from property tax liability. During the term of this Agreement, Developer agrees not to allow any portion of the Development Property or Minimum Improvements to be used as centrally -assessed property (including, but not limited to, Iowa Code § 428.24 to 428.29 (Public Utility Plants and Related Personal Property); Chapter 433 (Telegraph and Telephone Company Property); Chapter 434 (Railway Property); Chapter 437 (Electric Transmission Lines); Chapter 437A (Property Used in the Production, Generation, Transmission or Delivery of Electricity or Natural Gas); and Chapter 438 (Pipeline Property)). ARTICLE VII. ECONOMIC DEVELOPMENT GRANTS 2EZM�� For and in consideration of the obligations being assumed by the Owner and Developer hereunder, and in furtherance of the goals and objectives of the Urban Renewal Plan and the Urban Renewal Act, the City agrees to make the following Economic Development Grants, subject to the Owner and Developer being and remaining in compliance with the terms of this Agreement and subject to the terms of this Article VII. Said Economic Development Grants shall, in no event, exceed an aggregate amount of $12,250,000: (a) Up to fifteen (15) annual Economic Development Grants commencing on June 1, 2025, and ending on June 1, 2039, or when the total of all grants described in this Article VIT is equal to $12,250,000, whichever is earlier. The first eight (8) annual grants shall be equal to 100%, and the subsequent seven (7) annual grants shall be equal to 75%, per fiscal year of the Tax Increments (unless the total grant amount of $12,250,000 is reached first) collected by the City with respect to the Minimum Improvements on Development Property pursuant to Section 403.19 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 Owner and Developer) during the preceding twelve- month period in respect of the Development Property and the Minimum Improvements, but subject to adjustment and conditions precedent as provided in this Article (such payments described in subsections (a) and (b) hereof being referred to collectively as the "Economic Development Grants"). 19 (b) The obligation of the City to make an Economic Development Grant to the Developer in any year as specified above shall be subject to and conditioned upon the timely filing by the Developer of all previous annual statements, proofs and certifications required under Article V hereof and the City Manager's approval thereof. Beginning with the November 1, 2023, certification, if the Annual Statement, proof and certification is timely filed and contains the information required tinder Article V and the City Manager approves of the same, the City shall certify to the County prior to December I of that year its request for the available Tax Increments resulting from the assessments imposed by the County as of January I 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 I of the following fiscal year. (For example, if the Owner and Developer and the City each so certify on November I and December 1, 2023, respectively, the first Economic Development Grant would be paid to the Owner and Developer on June 1, 2025). (c) in the event that the annual statement, proof or certificate required to be delivered by the Owner and Developer under Article V is not delivered to the City by November I of any year, the Owner and Developer recognize and agree 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 in respect thereof. The City covenants to act in good faith to appropriately review and consider any late certification on the part of the Owner and 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 Owner and 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 City Council meeting with respect thereto) to the Owner and Developer's certification due to its late filing. In the event Owner and Developer fail 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, Owner and Developer may give written notice to the City and, if the City finds that the 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 this Section 7.1, subject to Owner and Developer's filing under Article V and all other provisions of this Article VII with respect to such grant, it being the intention of the parties to allow up to fifteen (15) annual Economic Development Grants in an aggregate amount not to exceed $12,250,000, if Owner and Developer are in compliance with this Agreement. (d) The final grant shall be adjusted, if necessary, if payment of 751% of Tax Increments for that grant would result in total, aggregate Economic Development Grants in an amount exceeding $12,250,000. Such Economic Development Grants shall at all times be subject to termination in accordance with the terms of this Article VII and Article X. Thereafter, the taxes levied on the Development Property and Minimum Improvements shall be divided and applied in accordance with the Urban Renewal Act and the Ordinance. It is recognized by all parties that the total aggregate amount set forth above is a maximum amount only and that the actual payment amounts will be determined after the Minimum Improvements are completed and the valuations of said Improvements have been determined by the City Assessor. The City makes no assurance that the Owner and/ter Developer will receive the maximum Economic go Development Grants. Owner and Developer acknowledge that the increment generated from the Minimum Improvements alone is not anticipated to result in payment of the maximum amount of Economic Development Grants. (e) in the event that any certificate filed in accordance with Section 5.6 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 Section 10.2 (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 Section 10.2), 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 Section 10.2 hereof. Section 7.2. 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 Tailwind TIF Account. The City hereby covenants and agrees to maintain the Ordinance in force during the term hereof and to apply the incremental taxes collected in respect of the Minimum Improvements and allocated to the Tailwind TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 7.1 hereof. The Economic Development Grants shall not be payable in any mariner by other tax increment revenues or by general taxation or from any other City funds. (b) Notwithstanding the provisions of Section 7.1 hereof, the City shall have no obligation to make an Economic Development Grant to the Owner or Developer if at any time during the term hereof the City receives an opinion of its legal counsel or 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 Minimum Improvements to fund an Economic Development Grant, as contemplated under said Section 7.1, is not authorized or otherwise an apytoptiate project activity permitted to be undertaken by the City under the Urban Renewal Act or other applicable provisions of the Code, as then constituted. Upon receipt of such an opinion or decision, the City shall promptly forward a copy of the same to the Owner and Developer. If the circumstances or legal constraints giving rise to the opinion or decision continue for a period during which two (2) Economic Development Grants would otherwise have been paid to the Owner and Developer under the terms of Section 7.1, the City may terminate this Agreement, without penalty or other liability to the Owner or Developer, by written notice to the Owner and Developer. In said event, the Minimurn Assessment Agreement shall also be terminated effective as of the City's termination of this Agreement. (c) The City makes no representation with respect to the amounts that may finally be paid to the Owner and Developer as the Economic Development Grants, and under no circumstances shall the City in any manner be liable to the Owner and Developer, so long as the City timely applies the Tax Increments actually collected and held in the Tailwind TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants to the Developer, as and to the extent described in this Article. RX Section 7.3. Use of Other Tax Increments. Subject to this Article VII, the City shall be free to use any and all Tax Increments collected in respect of increases in valuation on the Development Profil'"-A unrelated to construction of the assessed or actual value due to market factors), any other properties within the Project Area, or any available Tax Increments resulting from the suspension or termination of the Economic Development Grants under Section 7.1 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. Section 7.4. Conditions Precedent to Economic Development Grants. Notwithstanding -tither provisions of this Article, the City's obligations to make Economic Development Grant(s) to Owner and Developer under this Agreement shall be subject to satisfaction of the following conditions precedent: (a) Owner and Developer shall be in material compliance with all the terms and provisions of this Agreement; and (b) The City has held all necessary hearings and taken Council action in the exercise of its sole discretion and legislative deliberative authority to adopt or amend the City -University Project I Urban Renewal Plan, as deemed necessary by the City in its sole discretion; and (c) Execution and recording of the Minimum Assessment Agreement substantially in the form attached as Exhibit F by the City and Owner and Developer pursuant to Section 5.7 of this Agreement; and (d) Execution and recording of the Memorandum of Agreement for Private Redevelopment substantially in the form attached as Exhibit D by the City and Owner and Developer pursuant to Section 12.3 of this Agreement; and (e) Receipt of opinions of counsel to Owner and Developer substantially in the form attached hereto as Exhibit E, (f) Owner and Developer have closed on their financing for the construction of the Minimum Improvements; and (g) There has not been a substantial change for the worse in the financial resources and ability of Owner and Developer, or a substantial decrease in the financing commitments secured by Owner and Developer for construction of the Minimum Improvements, which change(s) makes it likely, in the judgment of the City, that Owner and Developer will be unable to fulfill its covenants and obligations under this Agreement; (h) Owner and Developer have received a LEER Gold Certification for the new Residential Building, as detailed in the Minimum Improvements Exhibit B; and 22 (i) Owner and Developer are in compliance with any easement agreements executed with the City regarding use of City —owned property for construction authorized by Section 2.1 above and have paid any amounts due arising there from. Section 7.5. Limitations on Financial Undertakings of the City. Notwithstanding the provisions of this Agreement, including Sections 7.1 and 7.2 hereof, the City shall have no obligation to Owner and Developer under this Agreement to issue an Economic Development Grant if the City is entitled (or, with the passage of time or giving of notice or both, would be entitled) under Section 10.2 of this Agreement to exercise any of the remedies set forth therein as a result of an Event of Default. ARTICLE VIII. INDEMNIFICATION Section 8.1. Release and Indemnification Covenants, (a) Owner and Developer release the City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Article VIII, 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 the Development Property. (b) Except for any willful misrepresentation or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, Owner and Developer agree 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 term or condition of this Agreement by (except with respect to any suit, action, demand or other proceeding brought by Owner and Developer against the City to enforce their rights under this Agreement); (ii) the acquisition and condition of the Development Property and the acquisition, construction, installation, ownership and operation of the Minimum Improvements; or (iii) any hazardous substance or environmental contamination located in or on the Development Property. (c) The Indemnified Parties shall not be liable for any damage or injury to the persons or property of Owner and Developer, or its officers, agents, servants or employees or any other person who may be about the Minimum Improvements or the 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) 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. (e) The provisions of this Article VIII shall survive the termination of this Agreement. 23 (f) Nothing herein shall waive any of the defenses of governmental immunity available to the City of Iowa City, Iowa, under Code of Iowa Section 670.4 as it now exists and as it may be ariended from time to time. Section 10.1. Events of Default Defined, The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: (a) Failure by Owner and Developer to cause the construction of the Minimum Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; (b) Transfer of any interest by Developer in this Agreement or the Development Property or the Minimum Improvements in violation of the pro -visions of this Agreement; (c) Failure by Owner and Developer to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; (d) Failure by Owner and Developer to pay, before delinquency, ad valorem taxes on the Development Property and Minimum Improvements; (e) The holder of any Mortgage on the Development Property, or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable Mortgage documents; Owner and Developer shall: (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief -under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; (ii) make an assignment for the benefit of its creditors; (iii) admit in writing its inability to pay its debts generally as they become due; (iv) be adjudicated bankrupt or insolvent; or if a petition or answer proposing the adjudication of Owner and Developer as 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 Owner and Developer or the Minimum Improvements, or part thereof, shall be appointed in any proceedings brought against Owner 24 and/or Developer, and shall not be discharged within ninety (90) days after such appointment, or if Owner and Developer shall consent to or acquiesce in such appointment; (g) Any representation or warranty made by Owner and Developer in this Agreement, or made by Owner and Developer in any written statement or certificate furnished by Owner and Developer pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. Section 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 may take any one or more of the following actions after (except in the case of an Event of Default under subsections (e) or (f) of said Section 10,1) giving thirty (30) days' written notice to Owner, Developer, and the holder of the 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 Owner and Developer do 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 Owner and Developer, deemed adequate by the City, that Owner and Developer will cure its default and continue its performance under this Agreement; (b) The City may terminate this Agreement; (c) The City may withhold the Certificate of Completion; (d) The City shall be entitled to rescind the Economic Development Grants and recover from Owner and Developer all funds expended by the City in connection with the issuance of the Note and the funding of the Economic Development Grants, and the City may take any action, including any legal action it deems necessary, to recover such amounts from Owner and Developer; or (e) The City may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any amounts due under this Agreement or enforce performance and observance of any obligation, agreement, or covenant under this Agreement. (f) The City may draw upon any guarantee or security provided to the City pursuant to any of the terms of this Agreement according to its ternis. Section 10.3. No Remedv 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 25 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. 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 Owner and Developer herein contained, Owner and Developer agrees that it shall, on demand therefore, 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 XI. RESERVED ARTICLE XIL MISCELLANEOUS Section 12.1. Conflict of Interest. Owner and Developer represent and 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 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 Owner, is addressed or delivered personally to 530 South Front Street, Ste. 100, Mankato, MN 56001; (b) In the case of Developer, is addressed or delivered personally to 530 South Front Street, Ste. 100, Mankato, MN 56001; and (c) In the case of the City, addressed to or delivered personally to City Manager, City Hall, 410 E. Washington Street, Iowa City, Iowa 52240, Rin or to such other designated individual or officer or to such other address as any party shall have fumished to the other in writing in accordance herewith. Section 12.3. Memorandum of Agreement. The parties agree to execute and record a Memorandum of Agreement for Private Redevelopment, in substantially the form attached as NWITTaft-j"'Wis visions of this Agreement, and the rights and interests held by the City by virtue hereof. The Memorandum of Agreement shall be recorded at Owner and Developer's expense. Section 12.4. 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 12.5. Countemarts. This Agreement may be executed in any nwnber of counterparts, each of which shall constitute one and the same instrument. Section 12.6. Governiniz Law. This Agreement shall be governed by the laws of the State of Iowa. Section 12.7. Severabilitv. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held invalid, then the remainder of this Agreement or the application of such provision to persons or circumstances, other than those to which it is held invalid, shall not be affected thereby and the parties shall thereupon amend this Agreement to legally and most closely embody the spirit and intent of the invalid provisions. Section 12.8. Amendment: Waiver. This Agreement may not be amended, waived or modified in any respect, unless the same shall be in writing and signed by all parties. No waiver by a party of any default by another party shall constitute a waiver of any other breach or default by another party, whether of the same or any other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by a party shall give another party any contractual right by custom, estoppel or otherwise. Section 12.9. No Third -Party Beneficiaries. No rights or privileges of any 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. Section 12.10. Successors and Assigns, This Agreement is intended to and shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Section 12.11. Administration of Agreement by City. The City Manager or designee shall administer the rights and obligations of the City hereunder and shall have the authority to provide any consent or approval of the City contemplated in this Agreement, including any amendment reasonably necessary in accordance with Section 6.1 and easement amendments contemplated in Section 2.1(c) above. M U17-01111IM11 mof M-96ow, ZV0v1rQ=—"' Section 12.13. Entire Apyeement. This Agreement and attached exhibits constitute the entire agreement of the parties and supersede all prior offers, agreements, arrangements and contracts, whether oral or written, concerning the subject matter hereof IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf by its Mayor and its scal. to be hereunto duly affixed and attested by its City Clerk and Owner and Developer has caused this Agreement to be duly executed in their names and on their behalf by their authorized representative(s), all on or as of the day first above written. CITY OF IOWA CITY, IOWA By: ATTEST: Bru c Teague, Mayor By: 41K-eiIkeeFruehlini, ityC4Ierk CITY OF IOWA CITY ACKNOWLEDGEMENT STATE OF IOWA )SS COUNTY OF JOHNSON On this day of �IQOAI—V 2021, before me a Notary Public in and for said County, personally appeared Bruce Teague and Kellie Fruchling, 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 said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by them voluntarily executed. CHkISTINE OLNEY lotary Public in and for State of Iowa 0 Commission Number 80623 ZJ5� My commislso� �xpires 1:71 92 'I'A.f LATIN-1) COLLEGE STWEE-1 - fC, LLC A iAk ,j,AILWTYD (pLLFQP.S-VVEE'j--j T-LC BY: OWNIER ACT(N-MILEDGEMENT STATIK 0V M&I COUNTY OF )ss This instumentwas acknawiedged before rne (in Iiis ofTALLWINDWI,,JECI'RI,*.IT.TV,, JAWNE S. ZIMMERMAN NOTA0Y PUBLIC 'Wary Ikiblic MINNESOTA al My Commission Expliel I kiyA Lon',AC'KN0VTFDGalENT STATE OF PIK! COUNTY h' in-strmrentwvacknowletigedt-mrt)remeuntlji% )"I dayd. 'T6,01 2021-by as O_f( of TAf I V I -N D MLLH01-i S'l.IRF3 : JANINE B. ZI IMMERMAN Lip N M Z OTARY PUSUC V MM MMMMESOTA my cwWwb0Je , 31, uza Uzi 7019 130451,13 1 A The Development Property consists of the following legally described property: Lot I in Block 82, Iowa City, Johnson County, Iowa, according to the recorded plat thereof, excepting therefrom the east 38.50 feet thereof; as more particularly shown in Plat of Survey (Retracement) recorded August 15, 2019, in Plat Book 63, Page 139; Lot 2, Block Eighty-two (82), Original Town (now City) of Iowa City, Johnson County, Iowa; Lot 3 in Block 82, in Iowa City, Iowa, according to the recorded plat thereof, excepting the west 58.05 feet thereof; and The East 3 8.75 feet of the West 58.05 feet of Lot 3 in Block 82, Iowa City, Iowa, according to the plat thereof recorded in Book 1, Page 116, Plat Records of Johnson County, Iowa. 30 Owner and Developer shall complete the following minimum improvements and uses on the Development Property in accordance with the Development Agreement to which this Exhibit B is attached and as generally shown on the Concept Plan, attached to the Development Agreement as Exhibit H. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Development Agreement. 1. Historic Preservation and Uses Owner and Developer shall cause Development Property to be zoned CB-10/011D, in accordance with the Iowa City Code of Ordinances, Title 14 Zoning Code. Developer shall historically rehabilitate the Development Property in accordance with the Certificate of Appropriateness issued by the Historic Preservation Commission arising from the Commission's approval granted on November 12, 2020, or any subsequent or amended certificates of appropriateness approved by said Commission, as may be necessary in the event the Construction Plans materially deviate from the Concept Plan shown in Exhibit U. The Developer shall spend at least $19,040,000 on total development costs for this component of the Minimum Improvements, which is estimated to create a taxable value of $7,000,000. College Block: Developer shall rehabilitate and renovate the College Block building, locally known as 125-127 E. College Street, for commercial uses on the ground floor and four residential units on the upper floor, The renovations shall include construction of ADA- accessible restrooms for the commercial space. Crescent Block: Developer shall rehabilitate and renovate approximately 26,500 square feet of the Crescent Block building, locally known as 117-123 E. College Street, to convert a multi- story drinking establishment to an eating establishment or other commercial use on the ground floor; and to establish a non-profit theater performance and support space on the second and third floors. These renovations shall include installation of an elevator to make the -upper levels of the building ADA-accessible, as well as installation of new mechanical and electrical systems and a new exterior fire escape stair. Developer shall construct an ADA-accessible public entry on the south side of the Crescent Block building accessed by a walkway between the historic buildings and the now Residential Building. This court -yard walkway shall be at least 10 feet wide at its narrowest. Developer shall lease the second and third floors to a non-profit theatre company at below - market rates beginning at $4.21 per square for 2 years, then $6.32 per square foot for years 3 W through 5, after which Developer shall offer to the theatre tenant a 5-year option to renew the lease at $6.32 per square foot. This lease shall continue for the duration of this Agreement. Dooley Block: Developer shall historically renovate and rehabilitate the west bay of the Dooley Block, locally known as 109 E. College, to allow approximately 4,000 square feet of commercial space on the ground floor; and residential space on the second floor. Said renovations shall include the partial replacement of the HVAC system. Developer shall historically renovate and rehabilitate the east bay of the Dooley Block, locally known as 115 E. College, for use as approximately 4,500 square feet of commercial use on the ground floor and residential uses on the second floor. Said renovations shall include the partial replacement of the HVAC system. Developer shall historically renovate and rehabilitate the center bay of the Dooley Block, locally known as 111 E. College, to accommodate an approximately 7,700 square foot, three-story commercial user. A rooftop service area for this building may be allowed pursuant to the Zoning Code as a provisional or special exception use, upon satisfaction of the statutory approval criteria and regulations set forth therein. 2. Residential Building Developer shall construct an 11 -story, approximately 120,000 square foot multi -family residential building south of the existing historic structures, which shall have at least a two-story parking garage and nine (9) stories of residential units ("Residential Building"). The maximum height for this building shall be consistent with the adjacent Graduate hotel building. It is anticipated that there will be 102 residential units, comprised of 28 one -bedroom, 66 two - bedroom and 8 three -bedroom units, or as otherwise approved by the City Manager during the design review and Construction Plan approval pursuant to Section 2.1 of the Agreement. The Developer shall spend at least $35,360,000 on total development costs for this component of the Minimum Improvements, which is estimated to create a taxable value of $27,000,000. Developer shall obtain LEER Gold Certification for Building Design and Construction of the new Residential Building. A minimum of eight (8) points toward such certification shall be attributable to LEER -NC Optimize Energy Performance credit. Developer shall employ a full-time property manager with a salary of at least $50,000 per year. Developer shall install a courtyard walkway between the new and old buildings that is at least 10' wide. This courtyard shall include raised planters and permanent seating. In accordance with Iowa City Code of Ordinances, Sections 4-3-1 and 14-2C-4E(2), any open space may not be used as an outdoor seating area for any commercial use. Any gate used to enclose the courtyard on its eastern -most side shall be constructed of materials complementary to the existing pedestrian walkway providing access to the Pedestrian Mall. Any transformer and/or generator must be located inside the new Residential Building unless waived by the City Manager upon a determination that it infeasible to do so. In the case of a 91N el waiver allowing the transformer and/or generator to •' located outside, they must be complet screened from view at ground level, using completely opaque walls or fencing constructed wood, brick, metal, masonry or other permanent materials matching the primary buildi material or complementary thereto. M I WHEREAS, the City of Iowa City, Iowa (the "City"), ('Owner") and ("Developer"), did on or about the day of , 2021, make, execute and deliver, each to the other, that certain Agreement for Private Redevelopment dated 5 20_ , with a memorandum of said agreement having been recorded with the Johnson County Recorder in Book Page _ on 5 20 (the "Development 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: [insert legal description or attach as an exhibit] WHEREAS, the Development 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 Development Agreement; and WHEREAS, Owner and Developer have 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 Construction Plans to permit the execution and recording of this certification. NOW, THEREFORE, pursuant to Section of the Development Agreement, this is to certify that all covenants and conditions of the Development Agreement with respect to the obligations of the Owner and Developer, and its successors and assigns, to construct the Minimum Improvements on the Development Property have been completed and performed by the Owner and Developer and are hereby released absolutely and forever terminated insofar as they apply to the land described herein, except those covenants set forth in of the Development Agreement. The County Recorder of Johnson County, Iowa, 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 Development Agreement with respect to the construction of the Minimum Improvements on the Development Property. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Development Agreement. All other covenants and provisions of the Agreement shall otherwise remain in full force and effect until termination as provided therein. 34 M (SEAL) CITY OF IOWA CITY, IOWA M City Clerk CITY OF IOWA CITY STATE OF IOWA COUNTY OF JOHNSON On this day of 20_, before me a Notary Public in and for said County, personally appeared ' and ' 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. M MEMORANDUM OF AGREEMENT FOR PRIVATE REDEVELOPMENT —Irex;&A.11 ifV I 169e_ WHEREAS, the City of Iowa City, Iowa (the "City"'), St :1Z, LA_r� C'Ownef and /fyf S-f I-Lt(the "Developer"), did on or about the 04�day of �JRf)av_r- 202-1 make, execute and deliver that certain Agreement for Private Redevelopment (the "i�ev opment Agreement"), wherein and whereby the Owner and Developer agreed, in accordance with the terms of the Development Agreement and the City -University Urban Renewal Plan (the "Plan"), to develop certain real property located within the City and within the City -University Urban Renewal Area and as more particularly described as I Iowa City, Iowa ("Development Property); and WHEREAS, the term of the Development Agreement shall commence on thiG 1 2021 and terminate June 2, 2039; and WHEREAS, the City, Owner and Developer desire to record a memorandum of the Development 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 Redevelopment shall serve as notice to the public that the Development Agreement contains provisions restricting development and use of the Development Property and the improvements located and operated on such Development Property, and further subjects the Development Property to a Minimum Assessment Agreement entered into under the authority of Iowa Code Chapter 403, in which the parties (and any successors or assigns) agree that, as of January 1, 2023, a full assessment shall be made fixing the minimum actual value of the Development Property and all improvements located thereof for calculation of real property taxes at not less than $24,525,000 after taking into consideration any factors such as "roll -backs" which would reduce the taxable value of the Development Property; and that certain condominium units located within the Development Property be dedicated to particular uses. 2. That all of the provisions of the Development 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 Redevelopment 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 Development Agreement, and any amendments thereto, as if the same were fully set forth herein. 3. That a copy of the Development 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. RE 4. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Development Agreement. IN WITNESS WHEREOF, the City, Owner and Developer have executed this Memorandum of Agreement for Private Redevelopment as of the 1.9th day of anuary 2021, CITY OF IOWA CITY, IOWA By: ..... BIr­uce Teague, Mayor (� ATTEST: BY: lie Freehling,ity ICIerLk STATE OF IOWA )SS COUNTY OF JOHNSON Onthis f(I� day of,—[)U0i'V , 2021, before me a Notary Public in and for said County, personally appeared Bruce T,6ague and Kellie Freehling, 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 said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by them voluntarily executed. Z-1 jar an r tat Not aryPublic in (Ao4eoflowa CHRISTINE OLNEY cOmmission Number 806232 COMMission Expires 37 TAIMV % fjl,N1)9(-.0LLEGE 9TFJ-vl- 1(-,� LLG. j I y - ti v j By. STATE. 01 'I*hi,s instrummi Nwas acknowletiged, buf`= me, on this day of J-6,11 202 1, by _L4,�:r,4, a-t of TAILWIND COLU,.Gli STICEET IC, LLC. I JAN114C B. ZIMMERMAN Ij NOTARY PUBLIC Nntwy Public MINNESOTA my r4mdflasitft Erpim jv% st no DEVEWPERNOWLEDGEME-Nl' sTATE Or COL.K.FY This insiTurnmtmm irwknowled4* k-rore ino on tbis f day of dLyj -2021, -by wliWaa '�- -2-- _,,-i,,q ofTAII,W�INDCOLJI�(.3'1,',�S"I*RF,?ET, tary Public, mt 1364SU'V3 City of Iowa City 410 E. Washington Street Iowa City, Iowa 52240 RE: AGREEMENT FOR PRIVATE REDEVELOPMENT BY AND AMONG THE CITY OF IOWA CITY, IOWA, TAILWIND COLLEGE STREET, LLC AND TAILWIND COLLEGE STREET IC, LLC. Dear City Representatives: I have acted as counsel for in connection with the execution and delivery of that certain Agreement for Private Redevelopment (the "Development Agreement") among Tailwind College Street IC, LLC, Tailwind College Street, LLC, and the City of Iowa City, Iowa (the "City") dated as of 2021 I have examined the original certified copy, or copies otherwise identified to my satisfaction as being true copies, of the following: (a) The organization and operating agreements of (b) Resolutions of at which action was taken with respect to the transactions covered by this opinion; (c) The Development Agreement; and such other documents and records as I have deemed relevant and necessary as a basis for the opinions set forth herein. Based on the pertinent law, the foregoing examination and such other inquiries as I have deemed appropriate, I am of the opinion that: 1. was duly organized and validly exists as a limited liability partnership and limited liability companies under the laws of the State of Minnesota and are qualified to do business in the State of Iowa. has fall power and authority to execute, deliver and perform in full the Development Agreement; and the Development Agreement was duly and validly authorized, executed and delivered by 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 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. 39 2. The execution, delivery and performance by of 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 articles of organization and operating agreement of or any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which are a party or by which it or its property is bound or subject. I There are no actions, suits or proceedings pending or threatened against or affecting 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 or which in any manner raises any questions affecting the validity of the Agreement or 's ability to perform its obligations thereunder. Sincerely, HE F*,Tq1V0W1 THIS MINIMUM ASSESSMENT AGREEMENT ("Minimum Assessment Agreemenf'), dated as of this 19th day of January , 20_.Zl by and among the CITY OF IOWA CITY, IOWA, ("City"); TAILWIND COLLEGE STREET IC, LLC C'Ownef"); TAILWIND COLLEGE STREET, LLC., ("Developer"); and the CITY ASSESSOR of the City of Iowa City, Iowa ("Assessor"). WHEREAS, it is contemplated that the Owner and Developer will undertake the development of an area ("Project") within the City and within the "City -University Urban Renewal Area," as amended; and WHEREAS, the City is making a significant grant of funds to the developer which will allow the Owner and Developer to construct the Project; and WHEREAS, the City will fund such grant from the property tax revenues generated from the Project; and WHEREAS, pursuant to Iowa Code section 403.6, as amended, the City, Owner and Developer desire to establish a minimum actual value for the land legally described in Exhibit A (the "Land") to that certain Agreement for Private Redevelopment dated January 19, 2021 (the "Development Agreement"); and WHEREAS, the City and the Assessor have reviewed the preliminary plans and specifications for the Minimum Improvements to be erected in accordance with the Development Agreement; NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in consideration of the promises, covenants and agreements made by each other, do hereby agree as follows: 1. As of January 1, 2023, a full assessment sball be made fixing the minimum actual taxable value for assessment purposes for the Land and Minimum Improvements to be constructed thereon at not less than $24,525,000 after taking into consideration any factors such as "roll backs" which would reduce the taxable value of such property ("Assessor's Minimum Actual Value"). The parties hereto acknowledge and agree that subject to the occurrence of any Unavoidable Delay construction of the Minimum Improvements will be substantially completed on or before December 31, 2022. 2. Owner and Developer contemplate that a portion of the Project will be residential condominium units which will be subject to the property tax "roll -back" referred to previously. Owner and Developer agree that at the time of the execution of the declaration required by W Chapter 499E Horizontal Property (Condominiums) of the Code of Iowa, an attachment to the declaration will be executed by the Owner, Developer, the City, and the City Assessor allocating a portion of the Assessor's Minimum Actual Value to each unit. 3. Owner and Developer agree that the difference between the Assessor's Minimum Actual Value (as adjusted and reallocated pursuant to paragraph 2 hereof) and the amount allocated to the residential condominium units (as set forth in paragraph 2 hereof) will be reallocated to the remainder of the Project. 4. The Assessor's Minimum Actual Value (as adjusted and reallocated pursuant to paragraph 2 hereof) herein established shall be of no further force and effect and this Minimum Assessment Agreement shall terminate on December 31, 2037. Nothing herein shall be deemed to waive the Owner's or Developer's rights under Iowa Code section 403.6(19), as amended, to contest that portion of any actual value assignment made by the Assessor in excess of the Assessor's Minimum Actual Value (as adjusted and reallocated pursuant to paragraph 2 hereof) established herein. In no event, however, except as set forth paragraph 2 hereof, shall the Owner or Developer seek to reduce the actual value assigned below the Assessor's Minimum Actual Value (as adjusted and reallocated pursuant to paragraph 2 hereof) established herein during the term of this Minimum Assessment Agreement. 5. This Minimum Assessment Agreement shall be promptly recorded by City with the Recorder of Johnson County, Iowa, at Owner's and Developer's expense. 6. Owner and Developer have provided a title opinion to the City listing all lienholders of record as of the date of this Minimum Assessment Agreement and all such lienholders have signed consents to this Minimum Assessment Agreement, which consents are attached hereto and made a part hereof. 7. Neither the preambles nor provisions of this Minimum Assessment Agreement are intended to, nor shall be construed as, modifying the terms of the Development Agreement between the City, Owner and Developer. 8. This Minimum Assessment Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties, 9. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Development Agreement. (Signature pages follow) EN CITY OF IOWA CITY, IOWA By: Erik `ea gue,Mayor ATTEST: % By: 'j- cEk Freehling, ity Cl erk STATE OF IOWA )SS COUNTY OF JOHNSON On this / q+iA day of U6t n U C4 r ", 2021, before me a Notary Public in and for said County, personally appeared Bruce T96gue and Nellie Fruehling, 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 said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by them voluntarily executed. CISTWE OLNEY 1 HR,14 Commission Number 805232 Notary Public in a�nd for State of Iowa Commission Expires ; I &WAO 0 M ,1'111LVVN1 ) f -10W1 EGE- 91'R Htfr 1C, L.1,C.. j BY. 'TAIL"i j)q(t ,LEiGEsmKF'rLLC BY: ()W-KER iV-'K N(YWLEDGaM I iWr STATF. (.) F )ss CoLIKITOPA '11ii.sirkiLl-unicaturm acknowled ged becar ottle oil this—lq .Clay O.f _jj_!,UA ., 2021; by as if*- LLC JANINE 0. ZIMMERMAN NOTARY PUBLIC 'Stary -flublic MINNESOTA Dj*.,,VFT.oT,F-R-A.C,.KNOWLF-D(IMN41�\-f STATE TATE 01.1, COUN-1-Y OF )ss .1 f. Q . .... Ui Tjii§insi �wixuniciit,asac;kiiowledgerLheforaincotit[iis dayaf-A_,. ,-1-17,021,by 0L#,-."qW--of]ALNV, TDCOLLE Ik jj Nq ary Public M, i104583NS The undersigned, having reviewed the plans and specifications for the Min ic Improvements to be constructed and the market value assigned to the land upon whc t - - I N Jjm*&',1,vctoJi for the develgient. and being of the opinion th reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible the assessment of the property subject to the development, upon completion o' Mi"7 hnprovernents to be made on it and in #• with the Minimum Assessment Agreemen certifies that the actual value assigned to such land, building and equipment upon completion b I 'e m m �n 10 e Ur f J3 en, 11 11 the redevelopment shall not be less than $ after taking into consideration factors such as "roll-baeW which would reduce the taxable value of the property. Of th 3 amount Dollars determined to be the value of the land and Doll r .dm ($ the value of the buildings thereon until termination of this Mi Assessment Agreement pursuant to the terms hereof. EM COUNTY OF JOHNSON ME Subscribed and sworn to before the on this day of 20—by , Assessor for the City of Iowa City, Iowa. M WTHROTM This Temporary Construction Easement Agreement ("Temporary Easement Agreement") is made on this day of 1 20—, by and between the CITY OF IOWA CITY, IOWA, ("City"), TAILWIND COLLEGE STREET, LLC ("Owner") and TAILWIND COLLEGE STREET, LLC, ("Developer") WHEREAS, Owner is the fee owner of certain real estate addressed as and legally described ("Development Property"); and WHEREAS, the City of Iowa City is the fee owner of certain real estate legally described as {"Staging Property"); and WHEREAS, Owner, Developer, and the City have entered into that certain Agreement for the Private Redevelopment of said Development Property dated January 19, 2021, with a memorandum of said agreement having been recorded with the Johnson County Recorder in Book Page _ on , 20 ("Development Agreement"); WHEREAS, Developer has requested the City permit the temporary private use of the certain portions of the Staging Property, as shown on the Exhibit 1, attached hereto and incorporated herein by this reference; and WHEREAS, the City of Iowa City, Iowa, is responsible for the care, supervision, and control of public property; and WHEREAS, the City's Public Works Director has reviewed the requested private use, and finds that the impacts on municipal functions will be manageable, and also finds that such temporary private use is in the public interest; and WHEREAS, the City's Director of Transportation Services has reviewed the requested temporary private use of the Staging Area and finds that with certain conditions to mitigate the loss of parking spaces, such request is reasonable. NOW, THEREFORE, IN MUTUAL CONSIDERATION OF THE PROMISES HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS: 1. In consideration of the Owner's and Developer's promises herein, the City agrees to allow Owner, Developer, and their contractors to temporarily fence and close that area shown on Exhibit 1 pursuant to the limitations set forth in this Temporary Easement Agreement and the Development Agreement. 2. In consideration of the City's permission granted herein, Owner and Developer agree to: EM a. pay for any parking spaces within the easement area that may be temporarily unavailable for public parking during the term of this agreement in such amounts and at such times specified by the City's Parking Division. b. secure the temporary easement area shown in Exhibit I against vehicular or pedestrian traffic by providing adequate pedestrian passage, adequate traffic control, by providing adequate signage, and by securing all open excavations from pedestrians, thereby ensuring public safety; c. to provide, keep in place, and maintain in good working condition certain fencing and signage necessary to route pedestrians through or around the closed area as approved by the City during construction; provide adequate advance warning of such closure; and provide for the orderly and predictable movement of traffic. All signage shall be in accordance with the Federal Highway Administration Manual on Uniform Traffic Control Devices; d. to be responsible for the removal, storage, and replacement of items located within the easement which could be damaged during the construction. Items include, but are not limited to, signage, parking gates, benches, bricks, planters, downspouts, lighting and electrical services; e. to indemnify, defend and hold the City harmless against any and all claims for bodily injury, death or property damage arising out of their actions and use of the Staging Property under this Agreement, and those of their contractors, subcontractors, agents, employees and assigns specifically including any and all claims and/or liabilities which may be alleged against the City as a result of its decision to allow Owner and Developer to temporarily close a portion of public property described herein. Owner and Developer further agree to carry Class 11 liability insurance in the minimum amounts of $500,000 each occurrence, $1 million aggregate bodily injury, and $250,000 aggregate property damage with contractual liability coverage included. Owner and Developer shall furnish a certificate of insurance evidencing said valid insurance coverage to City, which certificate must be satisfactory to the City. Owner and Developer shall submit a certificate of insurance to the City prior to the commencement of construction. 3. If Owner and Developer fail to restore the easement area to the City's satisfaction as required in this Temporary Easement Agreement, the City may restore the easement area, and the cost thereof shall be billed to Owner and Developer for payment to City. Upon Owner and Developer's failure to pay said billing, the removal costs shall be certified to Johnson County as a statutory lien and assessed against the Development Property and collected in the same manner as a property tax, as provided in Section 364.12(2)(e), Iowa Code (2021). 4. The parties hereto agree this Temporary Easement Agreement shall remain in effect until completion of the Minimum Improvements and restoration of the easement area pursuant to a Section 3 herein, with an anticipated commencement and completion date as set forth in the Development Agreement described above. 5. Notwithstanding the above, Owner and Developer agree to cease and desist their temporary use and closure of the easement area and to remove any and all obstructions frort said easement area in the event of a breach of this Temporary Easement Agreement. 6. Owner and Developer acknowledge and agree that no property right is conferred by this grant of pern-dssion to use the easement area in accordance with this Temporary Easement Agreement. 7. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Development Agreement. Signed on this day of , " " " ". I , 20—. CITY OF IOWA CITY, IOWA LIN Eva-" M. Kellie Fruehling, City Clerk MESHEM�� rel # 1 jji k 4 L � )SS COUNTY OF JOHNSON On this day of , 2021, before me a Notary Public in and for said County, personally appeared Bruce Teague and Kellie Fruehling, 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 said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by them voluntarily executed. 1-9 TALWIrt) COU STREIFTIC, J .1,c, dy TAIEWL,-*0 1,LC A OW'NE-F. ACKNOW1.1iDGENIHN'T STKIT, OF,YLM COf jl\,r*y 01., This instaiment was acIcrK)w1cdgeti befor-a me on this day of OV,2021, by I-L)C, iFtary Public DJINELOPEX ACKNOWLEDGEMENT STATY, OF CoLw'ry 01" )SS Thi g instminent was acknowledge(t Ix -fore me on this I f*j - v- , day o--.J f -iL2021; by IN OLL , Iq Of TArLV FDC. 13,6iR TREJ: F, LC IIII IA ANINOTAE 8RZIMMERPUBLIC MAN N po Y i M Mj� OJA IN N ESOTA 49 1304583hi (Easement area plat for any City -owned Property (e.g. the Pedestrian Mall and the parking lot, but not right-of-way) that will be necessary for the construction of the project) El A 91 COV4,tVIRTS mrsgxjrs',N OD GRO" spaop, *O%y- N ev p1l"OtAs 040 SV 4. I IS mot, TA AIA �WUW002*1 Im z :.._ 0- 4 z z PED MALL E COLLEGE 5T - ca to �wcd wa." , . E BURLINGTON 0 N t ANC MONSON AR HNI—El"T TAIMIND : EA57 CQ'-LzGE 5TRc T DEVELOPMCNT 185.11E JANUARY, 2021 02 -NEUMANN MONSON ARCHiTECTS MLW,Nr 'rAS1 COLLEGE STREET DEVELOPMENT ielid JANUARY, 202', EXISTING - FROM SOUTH LIE" SLOCt� 18B3 m PEDESTPIAN MALL ............. Montoomery Ward 'Sears, Roebuck, & Cc renovation renovation 1929 1929 al DOOLEY BLOCK CRESCENT BLOCK COLLWE BLOCK 1894 1883 Opera House 4 The Block ---- -- Graduate retain retain . ......... 4- retain retain ratair, remove remove remove remove remove - - - - - - - - - - - Seam Roebuck, & Co 1929 construction morib;om" Ward 1929 construction Vet.BuIlding ................ (dashed) NEUMANN MONSON ARCH-TECTS EXISTING GROUND FLOOR DIAGRAM TAIL ND: EAST COLLEGE STRr-vT DEVELQP%1-%- - IqA4 jANUARY, W21 10 PEDESTRIAN MALL montg0 ware IL ton DOOLPY REtUNT BLOC� COLLEGE BLOCK BOLE SEARS t,6�1 ; ' 1883 BLOCK BUILDINO BLOCK 1894 1895 1929 U 1895 Opera House The Bar/ Bar I Restaurant Retail Revival ntry; Reta Graduate Mock 11 1 Retail r ni's Nail all V-- 4 I Kitchen'o NEW BUILDING ALLEY NEUMANN MONSONA. 0 rs y EPROPOSED - GROUND FLOOR DIAGRAM 7AI-WND I EAST COLLM STR40 DEVELOPMENT 18,114 JANUARY, 2021 r--COLLEGE BLOCK l*\ CRESCENT BLOCK I DOOLEY BLOCK-T-SEARS BUILDING--7000LEY SLOCKI nm"M—um NEUMANN MONSON APCH!T-E--.- rq- EXTERIOR WORK AT EXISTING BUILDINGS TAtLWNP FAST COLLEGE '-T�117 DFVEL0PMEKr 19114 JANUARY, 2021 M. 30'-0" — 201-01, , NEUMANN MOIN TAILW:NC I EA-5T COLLEGE STREET DEVELOPMENT 1SM4 JANUAfZY, 202, 40'-0" 1 -4 Level 11 3-Bed Unit 1015-sf 2-Bed Unit A LII 760-sf LIO 2-Bed Unit 8 L09 1100-st q 2-Bed Unit C L07 0 ca 1170-st L06 2-Bod Unit 0 -sf L03 1 0 L04 2-Bod Unit E 620-sf L03 2-Sed Unit F PARKING L02 - ARX, 1015-sf L01 -Y . IJMC, L I-Sed Unit A 540-st NF-WF301UJING R15 999990 NEB MONSON TAI LWIN 3 ' CAST C') L L E6 E "Rs C/1L 0 P 'IF,,T 1SX4 JANUARY- 2021 kv D4 EAST ft N ENTRY J� O,IMT A N ENTRY m NEUMANN MONSON NEW BUILDING - SOUTH ELEVATION T8ILYW43 LAST C,01 LECe S-REET -E'/Ei op'A%17 18A14 JANUARY, 2021 Ko bj C� call 44, C. Al !"T ELEVATION EAST ELEVATION NEUMANN MONSON AQCrlh-CEC7' -AUk'NW; CA Sl COLLLrE S I WT DtVEI OPMENT 18114 JANUARY, 202' Heec 7r- A4 MT- NORTH AD MST' SOUTH IN Dark net I Dark Comp!a(l. Bieck Windvo Corrugated Woatronrg Weaths.Ing Steel Da* Precast Cori Gumoo NEUMANN MONSON TAILAND i ZAT rCL LFCL STRFP - DEVE . -DrI,4E,\r IEI 1-4 JANUARY, 2021 Is IM4WHOM This Temporary Use of Right -of -Way Agreement ("Right -of -Way Agreement,) is made by and between (hereinafter "Owne?), (hereinafter "Developer"), and the City of Iowa City, Iowa, a municipal corporation, hereinafter referred to as 46city.l WHEREAS, Owner is the fee owner of certain real estate addressedIowa Cityl Iowa and legally described as (the "Development P�r_operty"); and WHEREAS, Owner and Developer are undertaking certain historical rehabilitation improvements and construction of a new I I -story multi -family building on the above -described Devel or intrusions into the adjacent and proximate public right-of-way; and WHEREAS, the City of Iowa City, Iowa is responsible for the care, supervision, and control of public right-of-way; and WHEREAS, the City's Department of Public Works has reviewed the proposed temporary use of the right-of-way, and finds the temporary use is not structural, is a minimal intrusion into the public right-of-way, and also finds that such temporary use is in the public interest. NOW, THEREFORE, IN MUTUAL CONSIDERATION OF THE PROMISES HEREIN, OWNER AND THE CITY AGREE AS FOLLOWS: I In consideration of the Owner's and Developer's promises herein, the City agrees to allow Owner, Developer and their contractors to temporarily use that portion of the right-of-way shown on the attached Exhibit 1 for the purpose of constructing the Minimum Improvements described in that certain Agreement for Private Redevelopment executed by and among the parties hereto on or about , 20--.,, a memorandum of which is recorded in Book . Page in the records of the Johnson County, Iowa Recorder's Office (the "Development Agreement"}. 2. In consideration of the City's permission herein, Owner and Developer agree to: a. pay for any parking spaces within the easement area that may be temporarily unavailable for public parking during the term of this agreement in such amounts and at such times specified by the City's Parking Division; b. maintain adequate pedestrian passage, traffic control, and sigtiage as may be necessary to reasonably ensure public safety; c. be responsible for the removal, storage, and replacement of items located within the right-of-way which could be damaged during the construction of such temporary uses. Items include, but are not limited to, downspouts, electrical services, signage and sidewalks; d. to indemnify, defend and hold the City harmless against any and all claims for bodily injury, death or property damage arising out of its actions and use of the M public right-of-way under this Right -of -Way Agreement, and those of its contractors, subcontractors, agents, employees and assigns specifically including any and all claims and/or liabilities which may be alleged against the City as a result of its decision to allow Owner and Developer to temporarily close a portion of right-of-way adjacent or proximate to the Development Property as described herein; e. to carry Class 11 liability insurance in the minimum amounts of $500,000 each occurrence, $1 million aggregate bodily injury, and $250,000 aggregate property damage with contractual liability coverage included. Owner and Developer shall furnish a certificate of insurance evidencing said valid insurance coverage to City, which certificate must be satisfactory to the City. Owner and Developer shall submit a certificate of insurance to the City prior to the commencement of construction of the temporary uses contemplated herein. 3. After construction of the Minimum Improvements is complete, the Owner and Developer agree to repave any damaged concrete and restore any and all portion-, of the right-of-way substantially to its original condition. If Owner and Developer fail to restore the damaged right-of-way to the City's satisfaction as required in this paragraph, the City may restore the right-of-way, and the cost thereof shall be billed to Owner and Developer for payment to City. Upon the Owner's and Developer's failure to pay said billing, the removal costs shall be certified to Johnson County as a statutory lien and assessed against the Development Property and collected in the same manner as a property tax, as provided in Section 364.12(2)(e), Iowa Code (2021). 4. Owner and Developer agree to cease and desist its temporary use and/or closure of the public right-of-way and to remove any and all obstructions from said right-of-way at any time upon the occurrence of any one of the following events: a. a breach of this Right -of Way Agreement; b. the use of the Development Property changes and/or the temporary use of the public right-of-way is no longer needed or appropriate, as determined by the City; C. within thirty (30) calendar days after the City gives written notice of removal to Owner and Developer, 5. If Owner and Developer fail to remove any obstructions, barricades or signage from the public right-of-way as required in this Right -of -Way Agreement, the City may remove the obstructions, barricades or signage, and the cost thereof shall be billed to Owner and Developer for payment to City. Upon the Owner's and Developer's failure to pay said billing, the removal costs shall be certified to Johnson County as a statutory lien and assessed against the Development Property and collected in the same manner as a property tax, as provided in Section 364.12(2)(c), Iowa Code (2021). 6. Owner and Developer acknowledge and agree that no property right is conferred by this grant of permission to use the public right-of-way in accordance with this Right -of -Way W11 Agreement; that the City is not empowered to grant a permanent use of its right-of-way for private purposes. 7. This Right -of -Way Agreement shall constitute a covenant running with the land, and shall be binding upon and shall inure to the benefit of the respective heirs, successors in interest, and assigns of the parties. 8, Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Development Agreement. Dated this day of 20 Geoff Frain, City Manager Approved by: City Attu rney's Office CITY ACKNOWLEDGMENT STATE OF IOWA ) SS: JOHNSON COUNTY ) On this _ day of 1 20__, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Geoff Fruin, to me personally known, and, who, being by me duly sworn, did say that he is the City Manager of the City of Iowa City, Iowa; that the foregoing instrument was signed on behalf of the City of Iowa City, by authority of its City Council, and that he acknowledged the execution of the instrument to be his voluntary act and deed and the voluntary act and deed of the City, by it voluntarily executed. My commission expires: MIJ TA f 1,WM. Col,LEGE STKEET IC, I.LC,, BY: W 'r,ALjL.WP) CO STRYKII, LLC. BY, OWN lilt ACr,,N(')WLEDGt4MENT STATE (010w) )ss MUNITY OF H- - Ti-iisinsti-uiiicat%wac-knowl,edgedbeforc menn this IJ&ycif _.jC4 ,2021,by Li c. ! Jl`l 'N - . ., 1 -1-1---- JANINE 6ZIMMERMAN is. L NOTARY PUBLIC ury illiblic MINNESOTA DFVE-L-OPJ?,R ACKNOWLEDGENWNT ,TJ'A: IT- OF ILI, COUNTY OF i . yss rl M-ds in&unitnL wu acknowledgetibefolt 'Tic Init tlii 4 4ay of 'CZv:j_.2021.by -z as of TAILWUND (,'()LLEGL; TrIZEET. LLC. FOJANINE 8, ZIMMERMAN O� Ry P� UB NOTARY PUBLIC MINNESOTA 31 RR 13WH311A I taescrIption ot areaSs w e . IT that may be necessary for use during construction of the project and any proposed Right -of -Way Encroachments) RM 0 D. fdue,?j--tua1l% no later than November 11 L , the undersigned, having knowledge of the Agreement for Private Redevelopment between the City of Iowa City, and I dated 1 2021 (the "Development Agreement"), and the operations of the Development Property, hereby certify the following; 1. All ad valorem taxes on the Development Property have been paid for the prior fiscal year, as evidenced by the attached documentation; and 1 (A) I have re-examined the terms and provisions of the Development Agreement and can affirm that during the preceding twelve (12) months, the Owner and Developer are not, or were not, in default in the fulfillment of any of the terms and conditions of said Development Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of this certificate. OR (B) the undersigned has re-examined the terms and provisions of the Development Agreement and that at the date of this certificate, the undersigned is aware that the Owner and Developer are in default of the Development Agreement for the following reasons: that the default has existed since (date); and that the Owner and Developer are taking or propose to take the following action with respect thereto: 3. has invested $ in completing the Minimum Improvements, as evidenced by and has taken all reasonably necessary action to maintain said improvements. By: Date: (Name, title) STATE OF )SS COUNTY OF This instrument was acknowledged before me on this day of (NAME), as (TITLEj- of NotaryNotary Public 57 [LW.qj"T 1. ZLIN"I I J'AQE- 'F I -I RFT i AAL LI S TAT E 0,14 CC)UN-,I*Y) I,_, _ , upon beingdtily swom, state asfolkws: 1. J arn the of cownce) alui ttie Of C'Devc1opew") alid have the auffih( 'Ly to eXeCLLtO t(lif; affidavit ork Whalf of said Dcvoloper atid any pLxsop tir izifitywith aiiownel-.4hip interest it) said Lxvetoper of more than 25%. 2. Neither Ownc% Developer nor any porson or tmtity with all ownemIllp interast of more than 25% of Owwr orDeveloper has been Ei4judivited. guilty or liable ill Any j-ucricial or admirdstrative proceeding of cornwittij%, a repeated or willfui violatimi of the Iowa wagar Paymmt Collecdoil law, the lows Minimum Wage Act, the Fedeml Fair Labor StaridmLs Act or any comparable state statute or Imai otdinartec, Nvhich govoms the, paymcat of uUgog in the last 5 YCUM. "'D.0LLEGE1,9703ET 14'21 LLC, B -Y: TAD NIND C(T-,LEGU '�IREET, LLC BY, 0. 7 1 '111Ls instwient was acknowledged before. Tne on diis 'L:L— day of - I �Z-4-1 by 2021, 4. , I I C' !"_ - "rt - W, " _v, i ALS ofTMWTNTDC0'LLF-GI�S iEf-,l F6.17JANINE R. ZIMMERMAN M NOTARY PUSLIC INN MINN E�S�GT�A 2023 Rr4sry Publie AiS ifkStrL6UcDt WILS dalmowledged twe-fort mc an Lhis- t i day of 201 i, by as LLB.'. w 1304MINA F6,41M Agreement Establishing an Economic Development Protocol between the Iowa City Area Development Group and Participating Cities 0