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HomeMy WebLinkAboutAecom Technical Services-12/9/2013 (2)Mayor BUCK CLARK COUNCIL MEMBERS DAVID JONES Ward 1 CAROLYN COLE Ward 2 HAROLD GETTY Ward 3 QUENTIN HART Ward 4 RON WELPER Ward 5 BOB GREENWOOD At -Large STEVE SCHMITT At -Large CITY OF WATEILIOWA COMMUNITY PLANNING AND DEVELOPMENT 715 Mulberry Street • Waterloo, Iowa 50703-5783 • (319) 291-4366 Fax (319) 291-4262. e 1 b �� NOEL C. ANDERSON, Community Planning & De;'elov�meat Director CITY OF WATERLOO Council Communication City Council Meeting: December 9, 2013 Prepared: December 3, 2013 Dept. Head Signature: Noel Anderson, Community Planning & Development Director # of Attachments: 1 SUBJECT: Adopt a resolution approving the attached Collateral Assignment of Development Agreement (for 2843 Geraldine Road), and authorize the Mayor and City Clerk to sign and fully execute all necessary documents. Submitted by: Noel Anderson, Community Planning and Development Director Recommended City Council Action: Approval of resolution as noted above Summary Statement: As a part of the sale of the property at 2843 Geraldine Road, this document will work to allow the tax rebates for the project to go from the previous owner to the new owner. The City has approved similar documents for the sale of properties under Development Agreement requirements, and the original Development Agreements allow for such transactions. The approval of documents like this allow for better tracking by all parties for financial, progress, etc. Expenditure Required: NA Source of Funds: NA Policy Issue: Economic Development Alternative: NA Background Information: This is another document for the process of selling the property at 2843 Geraldine Road CITY WEBSITE: www.ci.waterloo.ia.us WE'RE WORKING FOR YOU! An Equal Opportunity/Affirmative Action Employer Prepared by and return to: Nathan J. Barber, Belin McCormick, P.C., 2000 Financial Center, Suite 2000, Des Moines, IA 50309, 515-243-7100 COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT THIS COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT ("Assignment") is made and entered into as of December % j , 2013, by KINZLER EQUITIES, L.L.C., an Iowa limited liability company ("Assignor"), for the benefit of FIRST NATIONAL BANK ("Assignee"). WITNESSETH: WHEREAS, Assignor has executed and delivered to Assignee a Note dated on or about this same date in the original principal amount of One Hundred Thirty -Two Thousand and 00/100 Dollars ( $132,000.00) (the "Note"), performance of which is secured, among other things, by a Mortgage, Security Agreement, Financing Statement and Fixture Filing (the "Mortgage"), which Mortgage encumbers certain real estate legally described in Exhibit "A", attached thereto, and improvements thereon (together, the "Premises"); and WHEREAS, the Premises is bound by a Development Agreement filed February 14, 2013, as Document #2013-17082 of the Black Hawk County, Iowa records (as amended) (the "Development Agreement"), which has been assigned to Assignor pursuant to an Assignment and Assumption Agreement dated 0 ( j! i ; )/3 by and between Cedar Valley Warehouse, LLC and Assignor, and the City of Waterloo, Iowa has consented to such assignment; and WHEREAS, as a condition to Assignee's obligation to make the loan evidenced by the Note and secured by the Mortgage (and any extensions and/or modifications thereof), Assignor has agreed to assign to Assignee for collateral purposes all of Assignor's rights under the Development Agreement. NOW THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Assignor hereby agrees as follows: 1. Assignment of Development Agreement. Assignor hereby assigns to Assignee, as additional collateral, all of Assignor's right, title and interest in the Development Agreement, and all proceeds therefrom, including without limitation the right to receive all tax rebate payments payable to the Assignor under the Development Agreement. 2. Purpose of Assignment Security. This Assignment is made for the purpose of securing Assignor's full and faithful (a) payment of the indebtedness (including any extensions or renewals thereof) evidenced by the Note, (b) payment of all other sums with interest thereon becoming due and payable to Assignee under the provisions of the Mortgage, and (c) performance and discharge of each and every term, covenant and condition contained in the Note and Mortgage. 3. Assignor's Covenants. Assignor covenants and agrees with Assignee as follows: (a) That the Development Agreement shall not be altered, modified, amended, or terminated without the prior written approval of Assignee. (b) That Assignor shall give prompt notice to Assignee of any written notice received by Assignor claiming that a default has occurred under the Development Agreement on the part of the Assignor, together with a complete copy of any such notice. (c) That Assignor will timely satisfy all of Assignor's obligations under the Development Agreement. (d) That the Development Agreement is in full force and effect, and is binding upon, and enforceable against, the City of Waterloo, Iowa in accordance with its terms, and Assignor is entitled to receive all payments made under the Development Agreement. (e) That neither Assignor nor the City of Waterloo, Iowa is in breach of, or in default under the Development Agreement, and Assignor knows of no event or condition which, with the passage of time or the giving of notice or both, would constitute such a breach or default by Assignor or the City of Waterloo, Iowa under the Development Agreement. 4. Default. In the event Assignor defaults under the Note or any documents executed in connection therewith, including this Assignment, which default is not timely cured as provided in the Note or any documents executed in connection therewith, Assignee shall have the right in addition to all other remedies provided in the Note or Mortgage or in law or equity, to make demand upon the City of Waterloo, Iowa, and Assignor herein expressly authorizes the City of Waterloo, Iowa to pay to Assignee, all monies to which Assignor is entitled under the Development Agreement. 5. Non -Waiver. Waiver or acquiescence by Assignee of any default by the Assignor, or failure of the Assignee to insist upon strict performance by the Assignor of any covenants, conditions or agreements in this Assignment, shall not constitute a waiver of any subsequent or other default or failure, whether similar or dissimilar. 6. Rights and Remedies Cumulative. The rights and remedies of Assignee under this Assignment are cumulative and are not in lieu of, but are in addition to any other rights or remedies which Assignee shall have under the Note, the Mortgage, or any other Loan Document, or at law or in equity. 7. Severability. If any term of this Assignment, or the application thereof to any person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Assignment, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Assignment shall be valid and enforceable to the full extent permitted by law. 8. Heirs, Successors and Assigns. The terms "Assignor" and "Assignee" shall be construed to include the respective heirs, personal representatives, successors and assigns of Assignor and Assignee. The gender and number used in this Assignment are used as a reference term only and shall apply with the same effect whether the parties are of the masculine or feminine gender, corporate or other form, and the singular shall likewise include the plural. 9. Amendment. This Assignment may not be amended, modified or changed nor shall any waiver of any provisions hereof be effective, except only by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change, modification or discharge is sought. 10. Captions. The captions or headings preceding the text of the Paragraphs of this Assignment are inserted only for convenience of reference and shall not constitute a part of this Assignment, nor shall they in any way affect its meaning, construction or effect. 11. Termination of Assignment. Upon payment in full of the indebtedness described in Paragraph 2, this Assignment shall terminate and be void and of no force or effect. 12. Choice of Law. The validity and interpretation of this Assignment shall be construed in accordance with the laws (excluding conflicts of laws rules) of Iowa. 13. Time of Essence. Time is of the essence in the performance of this Assignment. 14. Indemnification. Assignor agrees to indemnify, defend and hold Assignee and its legal representatives, successors and assigns harmless from and against any and all claims, liens, damages, demands, causes of action, liabilities, lawsuits, judgments, losses, costs and expenses (including without limitation attorneys' fees and expenses), suffered or incurred by any of said indemnities under or in connection with the Development Agreement. 15. Recording/UCC. Assignor authorizes Assignee to file this Assignment with the Black Hawk County Recorder's office as well as a UCC -1 Financing Statement with the Iowa Secretary of State giving notice to all third parties of Assignee's collateral interest in the Development Agreement. 16. WAIVER OF JURY TRIAL. THE PARTIES HERETO, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED ON OR ARISING OUT OF THIS AGREEMENT OR INSTRUMENT, OR ANY RELATED INSTRUMENT OR AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS, WHETHER ORAL OR WRITTEN, OR ACTION OF ANY PARTY HERETO. NO PARTY SHALL SEEK TO CONSOLIDATE BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY PARTY HERETO EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL PARTIES. IMPORTANT: READ BEFORE SIGNING, THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK, SIGNATURE PAGE FOLLOWS] Signature Page — Collateral Assignment of Development Agreement KINZLER EQUITIES, L.L.C., an Iowa limited FIRST NATIONAL BANK liability company By: � By: Name: / qv( K c r1 N e: / Ps Title: %-terh7G Title: r+► Exhibit A Legal Description of the Premises Lots 4 and 5 "South Port 2nd Addition", City of Waterloo Black Hawk County, Iowa , except Parcel "F" of the Plat of Survey recorded as Document No. 2013- 08122 6 CONSENT BY CITY Notwithstanding anything to the contrary in the Development Agreement, the City of Waterloo, Iowa ("City") hereby consents to the foregoing Assignment and, in the event Assignee comes into possession of or acquires title to the Premises as a result of the foreclosure or other enforcement of the Mortgage (as defined in the Assignment), or as a result of any other means, City agrees that, so long as Assignee is not then in default under the Development Agreement, City will recognize Assignee (or its successor or assigns) as the Developer under the Development Agreement and will not refuse to pay any funds due under the Development Agreement for any reason other than one which would entitle City to terminate the Development Agreement under its terms (as modified herein). In the event that Assignee succeeds to the interest of the Developer under the Development Agreement, Assignee shall be entitled to assign the payments due under the Development Agreement to a third -party, provided the third party agrees to comply with the terms of the Development Agreement. City agrees that it will serve Assignee with a copy of any notice of Developer's default under the Development Agreement, and that Assignee shall have the right (but not the obligation) to remedy such default within thirty (30) days of delivery of such notice to Assignee. The notice to Lender shall be sent to First National Bank, Attention: Joel Thilges, Vice President, 405 5th Street, Ames, Iowa 50010. Dated this q day of j , 2013. Title: nil v- 7