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HomeMy WebLinkAboutCrystal Distribution Services-11/5/2012�l SEC ccs\v k_ct- tib CC ^— ? Q C cS, c -C. � �� v rt) (c Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 ND AMENDMENT TO DEVELOPMENT AGREEMENT This SeGQnd Amendment to Development Agreement (the "Amendment") is entered into as of November �� , 2012, by and between the City of Waterloo, Iowa ("City") and Crystal Distribution Services, Inc. ("Company"). RECITALS A. Company anet City were parties to a certain Development Agreement dated February 27, 2006, as amended by a First Amendment to Development Agreement dated September 14, 2009 (the Development Agreement as previously amended is referred to as the "Agreement") concerning the development of land (the "Property") described on Exhibit "A" to the Agreement. B. Company's ability to undertake the Project (as defined in the Agreement) has been adversely affected by the 2008 flood event and economic conditions affecting its business. C. Company and City desire to amend the Agreement to redefine the requirements relating to the Project. NOW, THEREFORE, in consideration of the premises and the mutual promises exchanged herein, the parties hereby agree to amend the Agreement as follows: 1. Section 1 of the Agreement is amended to substitute "11,000 square feet" for "60,000 square feet" and to substitute "$2,000,000" for "$4,000,000." 2. Section 2 of the Agreement is amended to substitute "$3,442,280" for "$6,489,690." 3. Section 3 of the Agreement is amended to substitute "$2,892,280" for "$3,489,690", to substitute "$550,000" for "$3,000,000" and to substitute "$3,442,280" for "$6,489,690." 4. The third unnumbered paragraph in Section 4 of the Agreement is stricken in its entirety, and the following new unnumbered paragraph is substituted in its place: The parties agree that Company's commitment to construct the Improvements in timely fashion constitutes a material inducement for the City to purchase and convey the Property to Company and that without said commitment City would not have purchased the Property or conveyed it to Company. Company must obtain a building permit and begin construction of the Improvements by December 31, 2012 and complete construction by June 30, 2013. Promptly after the Company's request following completion of the improvements the City will furnish the Company with an appropriate instrument certifying completion of Improvements and satisfaction of all obligations of the Company under this Agreement in such form as is reasonably required by Company. If construction has not begun by December 31, 2012 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. If development has commenced within the period 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, the requirement that construction is to be completed by June 30, 2013 shall be tolled for a period of time equal to the period of such stoppage or delay, and Company's obligation to complete construction by June 30, 2013 shall be deemed extended for a period equal to the period of stoppage or delay. 5. Because Company did not complete the Improvements to the extent or on the schedule contemplated by the Agreement, and as compensation to the City in lieu of other penalties originally provided for in Section 4 of the Agreement, Company hereby agrees that, for the sum of $1.00, it will convey to the City by warranty deed, no later than December 19, 2012, real property located at 105 E. 10th Street, Waterloo, also known as assessor parcel nos. 8913- 25-179-005 and 8913-25-179-006 and having a current total assessed value of $116,240 (the "Crystal Property"). The Crystal Property shall be free and clear of all liens, claims, and encumbrances except easements, covenants, and restrictions of record and restrictions imposed by local zoning ordinances and other applicable law. Company will provide to City, at Company's expense, an abstract of title with respect to the Crystal Property, continued to a date within 30 days of the closing date, and before closing Company will remedy at its own expense all of City's reasonable objections to title. Company shall pay taxes prorated to the date of closing in accordance with the provisions of Iowa Code § 427.2 and any unpaid real estate taxes payable in prior years. City shall pay all subsequent real estate taxes. Company shall pay at closing all installments of special assessments which are certified against the Crystal Property as of closing, and all prior installments thereof. In addition, all charges for solid waste removal, sewage, maintenance and other assessments that are attributable to Company's possession, including those for which assessments arise after closing, shall be paid by Company. At closing, the parties will enter an agreement that allows Company to continue to occupy and use the Crystal Property for up to five (5) years after closing, for the sum of $1.00. Upon the City's recording of the warranty deed for the Crystal Property, Company shall be released from all of the penalty provisions originally provided for in Section 4 of the Agreement. 6. Company makes the following representation and warranties with respect to the Crystal Property: (a) There are no claims, disputes, actions, or proceedings existing against or affecting the Crystal Property that relate to environmental laws or permits. Company is not subject to and is not currently operating under any compliance or consent order, schedule, decree, or agreement issued or entered into under any environmental law. (b) To the best of its knowledge and belief that there are no abandoned wells, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks located on the Crystal Property, the Crystal Property does not contain levels of radon gas, asbestos, or urea -formaldehyde foam insulation which require remediation under current govemmental standards, and Company has done nothing to contaminate the Crystal Property with hazardous wastes or substances. (c) Company has provided to City a copy of all environmental reports, surveys or studies in its possession in respect of the Crystal Property. Within 30 days after execution of this Agreement, City may, at its sole expense, have the Crystal Property inspected to determine if there are any environmental or other deficiencies. Company shall cooperate in providing reasonable access to City's inspectors. Within this same period, City may notify Company in writing of any deficiency. Company shall immediately notify the Buyer in writing of what steps, if any, that Company will take to correct any deficiencies before closing. City shall then notify Company immediately in writing that (1) such steps are 2 acceptable, in which case the Agreement, as modified herein, shall be binding upon all parties; or (2) such steps are not acceptable, in which case this Section 5 of this Amendment shall be null' and void, and in good faith the parties shall promptly negotiate an altemate resolution. Upon City's recording of the warranty deed for the Crystal Property, City shall be deemed to have accepted the Crystal Property in its "as -is" condition, subject only to Company's representations and warranties set forth in paragraphs (a), (b) and (c) of this Section, and subject to warranties of title. Company's maximum liability for breach of the representations and warranties set forth in paragraphs (a) and (b) shall be $100,000. 7. Section 1 of the Minimum Assessment Agreement attached to the Agreement as Exhibit B" is amended to substitute "$3,442,280" for "$6,489,690.00° and to substitute "June 30, 2013" for "December 31, 2010." 8. Except as modified herein, the Agreement shall continue unmodified in full force and effect. The Agreement and this Amendment shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. IN WITNESS WHEREOF, the parties have executed this Second Amendment to Development Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA CRYSTAL DISTRIBUTION SERVICES, INC. By: Ernest G. Clark, Mayor By: Aka Suzy Schar s, City Clerk - 3 f,, By: r Thomas J. Poe, President