HomeMy WebLinkAboutHoward L Allen Investments, Inc.-7/7/2014Preparer
Information: Noel Anderson
Name
715 Mulberry Street
Address
Please return this copy to:
City Clerk & Finance Dept.
715 Mulberry St.
Waterloo, IA 50703
Waterloo, Iowa 50703 (319) 291-4366
City Phone
SPACE ABOVE THIS LINE
FOR RECORDER
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
1, ?off by and between Howard L. Allen Investments, Inc.
("Com^'. ny"), and the City of Waterloo, Iowa ("City").
RECITALS
A. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the
community to provide financial incentives so as to encourage that goal.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Purchase and Conveyance of Property. Company will purchase the
real property described on Exhibit "A" attached hereto (the "Property"), generally known
as vacated La Porte Road frontage road right-of-way located in front of 1326 La Porte
Road, and between Lorraine Avenue and Easton Avenue. On or before September 1,
2013, City shall convey the Property to Company for the sum of $1.00. Conveyance
shall be by quit claim deed, and Company shall accept the Property from City in its "AS
IS" condition, without any representation or warranty of any type or nature as to title,
condition, fitness for use for any particular purpose, or otherwise. Company may obtain
whatever evidence of title it desires at its own cost and expense.
2. Project Assistance. Because the Property is located in a designated
Consolidated Urban Revitalization Area (CURA), the Property is eligible for tax
exemption consistent with and to the extent provided for in Iowa law, provided that
Company meets all requirements to qualify for such exemption. The Company agrees
to choose the 3 year tax abatement schedule of the CURA to meet Sale of Property
Policy guidelines.
3. Improvements by Company. Company shall construct a new 3,750 sq.
ft commercial building, and related parking and landscaping (the "Improvements"), all
of which shall be located on parcel 8913-36-408-013 abutting the Property. The
Improvements shall be constructed in accordance with all applicable City, state, and
federal building codes and shall comply with all applicable City ordinances and other
applicable law. It is contemplated that the Improvements will have a total project cost of
approximately $170,000.00. The Property, the Improvements, and all site preparation
and development -related work to make the Property usable for Company's purposes as
contemplated by this Agreement are collectively referred to as the "Project".
4. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to construct the Improvements in timely fashion
constitutes a material inducement for the City to purchase the Property and to convey it
to Company and that without Company's commitment City would not have agreed to
provide the incentive. Company must substantially complete construction of the
Improvements by December 31, 2014 (the "Completion Date"). If Company has not
obtained a building permit and begun the Project work by the date that is twelve (12)
months from the date of this Agreement (the "Commencement Date"), then title to the
Property shall revert to City, except as provided in this Agreement. If Project work has
not begun by the Commencement Date, but the development of the Project is still
imminent, the City Council may, but shall not be required to, grant an extension of time
for the construction of the Improvements, and if an extension is granted but
construction of the Improvements has not begun within such extended period, then title
to the Property shall revert to the City after the end of said extended period. If
construction has commenced by the Commencement Date or extension thereof and is
stopped and/or delayed as a result of an act of God, war, civil disturbance, court order,
labor dispute, fire, or other cause beyond the reasonable control of Company (an
"Unavoidable Delay"), the requirement that construction is to be substantially completed
by the Completion Date shall be tolled for a period of time (the "Tolled Period") equal to
the period of the Unavoidable Delay, and thereafter if construction is not completed
within the Tolled Period following the Completion Date, then title to the Property shall
revert to City.
5. Reverter of Title; Indemnity. In the event of any reverter of title,
Company agrees that it shall, at its own expense, promptly execute all documents,
including but not limited to a special warranty deed, or take such other actions as the
City may reasonably request to effectuate said reverter and to deliver to City title to the
Property that is free and clear of any lien, claim, or encumbrance arising by or through
Company. Company shall pay in full, so as to discharge or satisfy, all liens, claims,
charges, and encumbrances on or against the Property. If Company fails to deliver
such documents, including but not limited to a special warranty deed, to City within
thirty (30) days of written demand by City, then City shall be authorized to execute, on
Company's behalf and as its attorney-in-fact, the special warranty deed required by this
Section 5, and for such limited purpose Company does hereby constitute and appoint
City as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless
with respect to any demand, claim, cause of action, damage, or injury made, suffered,
or incurred as a result of or in connection with the Project, Company's failure to carry on
or complete same, or any lien, claim, charge, or encumbrance on or against the
Property of any type or nature whatsoever that attaches to the Property by virtue of
Company's ownership of same. If City files suit to enforce the terms of this Agreement
and prevails in such suit, then Company shall be liable for all legal expenses, including
but not limited to reasonable attorneys' fees. Company's duties of indemnity pursuant
to this Section 5 shall survive the expiration, termination or cancellation of this
Agreement for any reason.
6. No Encumbrances; Limited Exception. Until completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any lien,
encumbrance, mortgage, security interest, or charge on the Property, other than such
mortgage or mortgages as may be reasonably necessary to finance Company's
completion of the Improvements and of which Company notifies City in advance of
Company's execution of any such mortgage. Company may not mortgage the Property
or any part thereof for any purpose except in connection with financing of the
Improvements.
7. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other lawful charges whatsoever levied upon or assessed or placed against the
Property. Company further agrees that, prior to the date set forth in Section 2 of Exhibit
"B," it will not seek or cause a reduction in the valuation for the Property, which shall be
fixed for assessment purposes, below the amount of $300,000.00 ("Minimum Actual
Value"), through:
(i)
willful destruction of the Property, Improvements, or any part of
either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk
County, the State of Iowa, or the federal government.
Company agrees to sign and deliver to City the agreement attached as Exhibit "B"
concurrently with execution and delivery of this Agreement.
8. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
9. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
10. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of
the Project, whether in whole or in part, to any other person or entity without the prior
written consent of City. Reasonable grounds for the City to withhold its consent shall
include but are not limited to the inability of the proposed transferee to demonstrate to
the City's satisfaction that it has the financial ability to observe all of the terms to be
performed by Company under this Agreement.
11. Materiality of Company's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company to be made or performed is a material
term of this Agreement, and each and every such promise, covenant, representation,
and warranty constitutes a material inducement for City to enter this Agreement.
Company acknowledges that without such promises, covenants, representations, and
warranties, City would not have entered this Agreement. Upon breach of any promise
or covenant, or in the event of the incorrectness or falsity of any representation or
warranty, City may, at its sole option and in addition to any other right or remedy
available to it, terminate this Agreement and declare it null and void.
12. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, to Howard L. Allen Investments, Inc., PO Box 622,
Cedar Falls, Iowa 50613, facsimile number 319.233.0121, Attn: Howard Allen,
with copies to Eric Johnson, attorney.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful.
13. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
effect unless made in writing, signed by the party or parties to be bound or by the duly
authorized representative of same, and specifying with particularity the extent and
nature of the amendment, modification, or waiver. Any waiver by any party of any
default by another party shall not affect or impair any rights arising from any subsequent
default.
14. Severability. Each provision, section, sentence, clause, phrase, and
word of this Agreement is intended to be severable. If any portion of this Agreement
shall be deemed invalid or unenforceable, whether in whole or in part, the offending
provision or part thereof shall be deemed severed from this Agreement and the
remaining provisions of this Agreement shall not be affected thereby and shall continue
in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
15. Captions. All captions, headings, or titles in the paragraphs or sections
of this Agreement are inserted only as a matter of convenience and/or reference, and
they shall in no way be construed as limiting, extending, or describing either the scope
or intent of this Agreement or of any provisions hereof.
16. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, legal representatives,
and future owners of the Property.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
18. Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "B", constitutes the entire
agreement of the parties and supersedes all prior or contemporaneous negotiations,
discussions, understandings, or agreements, whether oral or written, with respect to the
subject matter hereof.
19. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF TERLOO, IOWA
By:
Howard L. Allen Investment, Inc.
By: /'/i
Ernest G. Clark, Mayor Howard Allen
EXHIBIT "A"
Legal Description of Property to be Improved
Vacate
The East 67 Feet of Lots 1 and 2 of Sunkist Addition, City of Waterloo, Iowa.
Sell and Convey
The West 67 Feet of the East 100 Feet of the North 5 Acres of the South 10 Acres of the Northwest % of the Southeast
Quarter of Section 36, Township 89 North, Range 13 West, City of Waterloo, Iowa. And also, the East 67 Feet of Lots 1
and 2 of Sunkist Addition, City of Waterloo, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
1, Zolty- , 2013, by and among the CITY OF WATERLOO, IOWA ("City"),
Howar . Allen Investments, Inc. ("Company"), and the COUNTY ASSESSOR of the
City of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property, described in Exhibit "A" thereto, located in the City; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company desire to establish a minimum actual value for the land and the building(s)
pursuant to this Agreement and applicable only to the Project, which shall be effective
upon substantial completion of the Project and from then until this Agreement is
terminated pursuant to the terms herein and which is intended to reflect the minimum
actual value of the land and buildings as to the Project only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which the parties contemplate
will be erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Improvements by the
Company, the minimum actual value which shall be fixed for assessment purposes for
the land and Improvements to be constructed thereon by the Company as a part of the
Project shall not be Tess than $300,000.00 ("Minimum Actual Value") until termination of
this Agreement. The parties hereto agree that construction of the Improvements will be
substantially completed within eight months of conveyance of the property. If it is not,
then the parties agree to execute an amendment to this Agreement that will extend the
dates specified in Section 2 below.
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate five years from
the date of the first year of taxes paid on the full value of the completed building.
Nothing herein shall be deemed to waive the Company's rights under Iowa Code §
403.6, as amended, to contest that portion of any actual value assignment made by the
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Assessor in excess of the Minimum Actual Value established herein. In no event,
however, shall the Company seek or cause the reduction of the actual value assigned
below the Minimum Actual Value established herein during the term of this Agreement.
The City shall not unreasonably withhold its consent to permit the Company to contest
its taxable valuations in full, commencing with the assessment of January 1st following
the fifth year of taxes paid on the full value.
3. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
4. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties, including but not limited to future owners of the
Project property.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above
CITY OF WATERLOO, IOWA
B
HOWARD L. ALLEN INVESTMENTS,
INC.
By:
rnest G. Clark, Mayor oward Allen
Attest:
Suzy Scha es, ity Clerk
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STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK
On this lJ" day of r a?6/9"" , before me, a Notary
Public in and for the State of Iowa, pers ally appeared Ernest G. Clark and Suzy
Schares, to me personally known, who being duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Waterloo, 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 and by them voluntarily executed.
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK
Notary Public
oe 1 A 4
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:
DeAnne Kobliska
COMMISSION NO. 783995
MY COMMISSION EXPIRES
`%O "l (o
,*....i„JiI
0 W E►
Acknowledged before me on A/iv /(. ' y
/RFSive,- of Howard L. Allen Investments, Inc.
2013 by Howard Allen as
2/i0
Notary Public
BARBARA J. MOSTEK
' COMMISSION NO. 7204.08
MY COMMISSION EXPIRES
January 15, 2015
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CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon which
the improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment
Agreement appears reasonable, hereby certifies as follows: The undersigned
Assessor, being legally responsible for the assessment of the property subject to the
development, upon completion of improvements to be made on it and in accordance
with the Minimum Assessment Agreement, certifies that the actual value assigned to
such land, building and equipment upon completion of the development shall not be
Tess than Three Hundred Thousand Dollars ($300,000.00) in the aggregate, until
termination of this Minimum Assessment Agreement pursuant to the terms hereof.
Asssor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on lAi,nI S , D7614 , 2O1 -3 -by T.J.
Koenigsfeld, Assessor for Black Hawk County, Idadia.
NotatV Public
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