HomeMy WebLinkAboutM & R Iowa, LLC-3/4/2013DEVELOPMENT AGREEMENT
(61,90
,%This Development Agreement (the "Agreement") is entered into as of
Q Airoik _ , 2013, by and between M & R Iowa, LLC (the "Developer") and the
City of Water! o, Iowa (the "City").
WHEREAS, City considers economic development within the City a benefit to
the community and is willing for the total good and welfare of the community to provide
financial incentives so as to encourage that goal, and
WHEREAS, Developer is willing and able to develop an expansion of the
building on the parcel comprising (i) the property (the "Property") located in the MidPort
America Business Park Development Area, which Property is legally described on
attached Exhibit "A" and (ii) the property already owned by Developer and adjacent to
the Property, which property is also legally described on attached Exhibit "D" (the
Property and the adjacent property already owned by Developer are sometimes
collectively referred to herein as the "Project Property").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, Developer and City agree as follows:
1. Sale of Property. The City shall convey the Property to Developer for the
sum of $1.00. Developer shall construct on the Project Property an expansion of the
commercial building consisting of approximately 10,707 square feet, as approximately
shown on the attached Exhibit "C", and related improvements (the "Improvements").
The Improvements are to be constructed in accordance with all applicable City, State,
and Federal building codes and be in compliance with all applicable City ordinances
and other applicable law. It is contemplated that the Improvements should have an
estimated total project cost of no less than $755,000.00. The Property, the
Improvements, and all site preparation and development -related work to make the
Project Property usable for Developer's purposes as contemplated by this Agreement
are collectively referred to as the "Project".
2. Timeliness of Construction. The parties agree that Developer's
commitment to undertake the Project and to construct the Improvements in a timely
manner constitutes a material inducement for the City to convey the Property to
Developer and that without said commitment City would not have entered into this
Agreement. It is acknowledged that Developer has completed construction of the
Improvements and the Project is complete.
4. Intentionally Deleted.
5. Indemnity. Developer 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, Developer'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 Developer's ownership of same. If City files suit to enforce the terms of this
Agreement and prevails in such suit, then Developer shall be liable for all legal
expenses, including but not limited to reasonable attorneys' fees. Developer's duties of
indemnity pursuant to this . Section shall survive the expiration, termination or
cancellation of this Agreement for any reason.
6. Minimum Assessment Agreement. Developer acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other charges whatsoever levied upon or assessed or placed against the Property.
Developer 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 taxable valuation for the Project Property, which
shall be fixed for assessment purposes, below the amount of $2,005,010 ("Minimum
Actual Value"), through:
(1)
willful destruction of the Project Property, the 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.
Developer agrees to sign said attached Exhibit "B" at the closing.
7. Tax Rebates. Provided that Developer has executed the Minimum
Assessment Agreement as set forth in paragraph 6, the City agrees to rebate property
taxes (with the exceptions noted below) as follows:
a. Year One - 50% rebate
b. Year Two - 50% rebate
c. Year Three = 50% rebate
d. Year Four - 50% rebate
e. Year Five - 50% rebate
for any taxable value over the January 1, 2012 value of $1,250,010. Rebates are
payable in respect of a given year only to the extent that Developer has actually paid
general property taxes due and owing for such year and has applied for the rebate by
submitting necessary paperwork to City. Developer will forfeit its right to a rebate for
any given year unless it submits necessary paperwork within twelve (12) months after
the tax payment due date for such year.
The taxable value of the Project Property as a result of the Improvements
must be increased by a minimum of 10% and must increase the annual tax by a
minimum of $500.00. This rebate program is not applicable to any special assessment
levy, debt service levy, or any other levy that is exempted from treatment as tax
increment financing under the provisions of applicable law. The first year in which a
rebate may be given ("Year One") shall be the first full year for which the assessment is
based upon the completed value of the Improvements and not a prior year for which the
assessment is based solely upon the value of the Project Property or upon the value of
the Project Property and a partial value of the Improvements due to partial completion
of the Improvements or a partial tax year.
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 Developer. Developer hereby
represents and warrants as follows:
A. Developer is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Developer 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. Developer 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
Developer.
10. Abstracting. No less than fourteen (14) days prior to the anticipated date
of conveyance, City shall, at its own expense, deliver to Developer an updated abstract
of title, or in lieu thereof Developer may, at its own expense, obtain whatever form of
title evidence it desires. If title is unmarketable or subject to matters not acceptable to
Developer, and if City does not remedy or remove such objectionable matters in timely
fashion following written notice of such objections from Developer, Developer may
terminate this Agreement.
11. No Joint Venture. Nothing in this Agreement shall, or shall be deemed
or construed to, create or constitute any joint venture, partnership, agency,
employment, or any other relationship between the City and Developer nor to create
any liability for one party with respect to the liabilities or obligations of the other party or
any other person.
12. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight delivery 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 Developer, to M & R Iowa, LLC, 4605 Dovetail Drive, Madison,
WI 53704, phone 608-249-2012, ext 207, facsimile number 608-249-2032
Attention: Carl Ruedebusch.
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
delivery 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 its duly
authorized representative, 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, and legal
representatives.
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" and other exhibits hereto,
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 written above.
M&RIO A, LLC
By:
By:
Carl Ruedebusch, Manager
Claude E. McAllen, Manager
CITY OF 1;' ERLOO, IOWA
By:
Ernest G. CI
Attest&,_
Suzy Sh
Mayor
c,tkr,
res, City Clerk
EXHIBIT "A" TO DEVELOPMENT AGREEMENT
Legal Description of the Property
Lot No. Twelve (12), Midport America Park Plat No. 2, City of Waterloo, Black Hawk County, Iowa, except that
part of Lot 12 described as follows:
Commencing at the Southwest comer of aforesaid Lot No. Twelve (12); thence S89°29'09"E One Hundred Sixty-
one and Forty-five Hundredths (161.45) feet along the South line of said Lot to the point of beginning; thence
N00°30'51"E Five Hundred Five (505.00) feet to a point on the East line of a Thirty (30) foot easement; thence
589°29'09"E Four Hundred Twenty (420.00) feet; thence S00°30'51"W Five Hundred Five (505.00) feet to a point
on aforesaid South line; thence N89°29'09"W Four Hundred Twenty (420.00) feet along said South line to the point
of beginning, containing 4.869 Acres;
Also, except that part of Lot 12 platted as part of MidPort America Park Plat No. 3;
Also, except the South Sixty (60) feet thereof.
EXHIBIT "B" TO DEVELOPMENT AGREEMENT
MINIMUM ASSESSMENT AGREEMENT
�""This Minimum Assessment Agreement (the "Agreement") is entered into as of
J/d� , 2013, by and among the City of Waterloo, Iowa ("City"), M & R
Iowa, LLC ("De !open"), and the COUNTY ASSESSOR of the City of Waterloo, Iowa
("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Developer have entered
into a development agreement (the "Development Agreement") regarding certain real
property located in the City; and
WHEREAS, it is contemplated that pursuant to said Development Agreement,
the Developer will undertake the expansion of the commercial building consisting of
approximately 10,707 square feet, as approximately shown on Exhibit C to the
Development Agreement (the "Project") within the City and within the "MidPort America
Business Park Development Area;" and
WHEREAS, pursuant to Iowa Code section 403.6, as amended, the City and the
Developer desire to establish a minimum actual value for the land and improvements
constructed thereon pursuant to the Agreement and applicable only to the
development, which shall be effective upon substantial completion of the expansion
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 building as to
the development only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which it is contemplated will
be erected as a part of the development;
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the above -referenced
Project improvements by the Developer on the property described in Exhibit "A"
attached hereto, the minimum actual taxable value which shall be fixed for assessment
purposes for the land and Improvements constructed thereon shall not be less than
$755,000, with the total minimum actual taxable value for all of the previously existing
and expanded land and improvements comprising the development to be fixed for
assessment purposes at no less than $2,005,010 ("Minimum Actual Value") until
termination of this Agreement. The parties hereto agree that construction of the
Improvements have been substantially completed.
2. The Minimum Actual Value herein established shall be of no further force
and effect and this Minimum Assessment Agreement shall terminate on December 31,
2022. Nothing herein shall be deemed to waive the Developer's rights under Iowa
Code section 403.6, as amended, to contest that portion of any actual value
assignment made by the Assessor in excess of the Minimum Actual Value established
herein. In no event, however, shall the Developer seek to reduce 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
Developer to contest its taxable valuations in full, commencing with the assessment of
January 1, 2023.
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 between the
City and the Developer.
5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties. It may not be modified or amended except by
the mutual written agreement of the parties.
IN WITNESS WHEREOF, the parties have entered this Minimum Assessment
Agreement by their duly authorized representatives as of the date first written above.
Attest:
zy ares, City Clerk
CITY OFATERLOO, IOWA
By:
Ernest G. Clark, Mayor
M & R IOW ;A. , LLC
By:
Carl Rue' - • usch, Ma ager
By:
Claude E. McAllen, Manager
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
On this day of ,-4312-before me, a Notary Public
in and for the State of Iowa, personally appeared Ernest G. Clark and Suzy Shares, 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 corporati• by it and by them vo ntarily executed.
STATE OF I i5t-1Yf r( )
) ss.
COUNTY OF'r1k, )
On this c day of ICU bec , 2012 before me, a Notary Public
in and for the State of Wisconsin, personally appeared Carl Ruedebusch and Claude E.
McAllen, to me personally known, who being duly sworn, did say that they are the
Managers of M & R Iowa, LLC, an Iowa limited liability company, and said Managers
acknowledged said instrument to be the free act and deed of M & R Iowa, LLC.
EXHIBIT "C"
EXPANDED BUILDING/PROJECT
•
7
/ 1 1 ! 1
1 I . 71-71"
L ,
il
I I i II
1 !
1
' '
Mt WILUD Pea -ITT
71.4t4 es;
4:13..1r&W,M1146
11 1 I
H I 11