HomeMy WebLinkAboutR & N Investments Properties LC-Development Agreement 5/21/2012DEVELOPMENT AGREEMENT
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Doc ID 004852590011 Type: GEN
Kind AGREEMENT
Recorded: 07/16/2012 at 01:21:57 PM
Fee Amt: $57.00 Pape 1 of 11
Black Hawk County Iowa
JUDITH A MCCARTHY RECORDER
Fi1e2013_00001023
This Development Agreement is entered into as of'M , by and
between R & N Investment Properties, L.C. (the "Company") and the City of Waterloo,
Iowa (the "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.
B. Company is willing and able to finance and construct a building and
related improvements on property located in the Northeast Industrial Park.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. On or before . yv {a , 2012, City shall convey,
or cause to be conveyed, to Company the real property described in Exhibit "A-2"
hereto (the "Property") for the sum of $1.00 (the "Purchase Price"). Conveyance shall
be by special warranty deed, free and clear of all encumbrances arising by or through
City except: (a) easements, conditions and restrictions of record which do not, in
Company's opinion, interfere with Company's proposed use; (b) current and future real
estate real property taxes and assessments subject to the agreements made herein; (c)
general utility and right-of-way easements serving the Property; and (d) restrictions
imposed by the City zoning ordinances, other applicable law, and the Deed of
Dedication for Northeast Industrial Park Plat. If the Property is not already owned by
the City, City's duty to convey is expressly made subject to occurrence of a closing on
the City's acquisition of the Property.
2. Improvements by Company. Company shall construct an addition to an
existing industrial building on abutting property owned by Company, said addition
consisting of approximately 10,000 square feet, and related site improvements (the
"Improvements"). The Property and the real estate currently owned by Company are
legally described on Exhibit "A-1" attached hereto and are referred to collectively as the
"Project Site." The Improvements shall be constructed in accordance with all applicable
City, state, and federal building codes and the Deed of Dedication for the Northeast
Industrial Park Plat and shall comply with all applicable City ordinances and other
applicable law. It is contemplated that the value added by the Improvements will have
an assessed value of no less than $200,000.00. The Property, the Improvements, and
all site preparation and development -related work to make the Project Site usable for
Company's purposes as contemplated by this Agreement are collectively referred to as
the "Project".
3. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to undertake the Project and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend the development incentives provided for in this Agreement, including but not
limited to its commitment to convey the Property to Company, and that without said
commitment City would not have done so. Company must obtain a building permit and
begin construction no later than December 31, 2012 (the "Project Start Date"), and
construction of Improvements on the Property shall be completed by December 31,
2013 (the "Project Completion Date"). If, by the Project Start Date, Company has not
begun in good faith to begin construction of the Improvements upon the Property, then
title to the Property shall revert to the City. If construction has not begun by the Project
Start Date, but the development of the Project is still imminent, the City Council may,
but shall not be required to, consent to 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 the title to the Property shall revert to the
City after the end of said extended period. If development has commenced by the
Project Start Date or within any extended 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 the Project Completion Date shall be tolled for a period of time
equal to the period of such stoppage or delay, and thereafter if construction is not
completed within the allowed period of extension the title to the Property shall revert to
the City after the end of said period.
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 of title. Company shall pay in full, so as to discharge or satisfy,
all liens, claims, charges, and encumbrances on or against the Property. Company
further agrees that it shall indemnify and hold harmless the City 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, or Company's failure to carry on or complete
same, or Company's ownership of the Property. If the City files suit to enforce the
terms of this Section 3 and prevails in such suit, then the Company shall be liable for all
of the City's legal expenses, including but not limited to reasonable attorneys' fees.
4. Water and Sewer. Company will be responsible for extending water and
sewer service to any location on the Property and for payment of any associated
connection fees.
5. 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 Project
Site. 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 taxable valuation for the Project Site, which
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shall be fixed for assessment purposes, below the aggregate amount of $895,050.00
("Minimum Actual Value"), through:
(i)
willful destruction of the Project Site, 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 the agreement attached as Exhibit "B" at closing.
6. 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.
7. 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.
8. Abstracting. No less than fourteen (14) days prior to the anticipated date
of conveyance, City shall, at its own expense, deliver to Company an updated abstract
of title, or in lieu thereof Company may, at its own expense, obtain whatever form of title
evidence it desires. If title is unmarketable or subject to matters not acceptable to
Company, and if City does not remedy or remove such objectionable matters in timely
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fashion following written notice of such objections from Company, Company may
terminate this Agreement.
9. 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 R & N Investment Properties, L.C., 4817
University Avenue, Cedar Falls, Iowa, 50613, Attention: Managing Member.
Delivery of notice shall be deemed to occur (1) on the date of delivery when delivered in
person, (11) 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.
10. 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 Company nor to create any
liability for one party with respect to the liabilities or obligations of the other party or any
other person.
11. 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.
12. 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_
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13. 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.
14. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
15. 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.
16. 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.
17. 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 officers as of the date first set forth above.
CITY OF WATERLOO, IOWA
By. ate. c---1Fg' t
elark; AAaYoL r>
rick
r--tir
Attest;_
Suzy Schaff -es, City Clerk
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R & N INVESTMENT PROPERTIES,
L.C.
By:
David M. tNordye
Managing Member
EXHIBIT "A-1"
Legal Description of Project Site
The North Two Hundred Forty -Five (245) feet of the East Ninety -Five (95) feet of Lot 11,
Northeast Industrial Park Plat No. 3, and Lot 10, Northeast Industrial Park Plat No. 2, City of
Waterloo, Black Hawk County, Iowa.
EXHIBIT "A-2"
Legal Description of Property to be Conveyed and Improved
The North Two Hundred Forty-Five (245) feet of the East Ninety-Five (95) feet of Lot 11,
Northeast Industrial Park Plat No. 3, City of Waterloo, Black Hawk County, Iowa.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This,
Minimum Assessment Agreement (the "Agreement") is entered into as of
this da of ' y � , 2012, by and among the CITY OF
`�`-- d ��-��-
WATERLOO, IOWA ("City"), R & N Investment Properties, L.C. ("Developer"), 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, described in Exhibit "A-1" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Developer will undertake the development of an area ("Project") within the City and
within the "Northeast Industrial Park Plan"; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Developer 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
Developer, the minimum actual taxable value which shall be fixed for assessment
purposes for the land and Improvements to be constructed thereon by the Developer as
a part of the Project shall not be less than $895,050.00 ("Minimum Actual Value") until
termination of this Agreement. The parties hereto agree that construction of the
Improvements will be substantially completed on or before December 31, 2013.
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,
2018. Nothing herein shall be deemed to waive the Developer's rights under Iowa
Code § 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 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
Developer to contest its taxable valuations in full, commencing with the assessment of
January 1, 2019.
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.
ATTEST:
By: -
Suzy Schares, City Clerk
CITY OF WATERLOO, IOWA
By:
, '► ay ro
R& N INVESTMENT PROPERTIES,
L.C.
By: '1
David M. Nordye
Managing Member
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this day of - , 2012, before me, a Notary
Public in and for the State of Iowa, personally appeared Ernest G. Clark and Suzy
Schares, to me personally known, who being duly swom, did say that they are the
Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a municipal
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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
Acknowledged before me on (,mo)(,/,:4 fig ' , 2012 by David M. Nordyke as
Managing Member of R & N InvestrrMent Properties, L.C.
Ldu-
Notary Public 6
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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 Eight
Hundred Ninety -Five Thousand Fifty Dollars ($895,050.00).
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
MAL. & —& CrLk-
Assessor for Black Hawk County, Iowa
Date
Subscribed and sworn to before me on 7 - c%
, 2012, by Tami
McFarland as Assessor for Black Hawk County, Iowa.
DEBORAH L. BOECKMANN
MY COMM�IISSIOpN NO. 186788
MY CONI/ i SIQN J PARES
Notary Public