HomeMy WebLinkAboutFEPH-Acquisitions Fund II, LLC-2/20/2012(Page 1 of 17)
Number 201300000407
Recorded: 7/9/2012 at 10:15:10.797 AM
Fee Amount: $87.00
Revenue Tax:
JUDITH A MCCARTHY, RECORDER
Black Hawk County, Iowa
This Page Included/Space Above Reserved for Recording Information
Document Name: Development Agreement
By and Between
FEPH-Acquisitions Fund 1I LLC and City of Waterloo Iowa
Book , Page , File Number 2013-00000407
(Page 2 of 17)
DEVELOPMENT AGREEMENT
This Development Agreement is entered into as of ikafriM , 2012, by
and between FEPH-Acquisitions Fund II, LLC (the "Compan and th City of
. - Wafer166, laws (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 Logan Plaza Urban
Renewal Area.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Development Property. The Company has purchased or will purchase
the real property described on Exhibit "A" hereto (the "Property"), except that portion
thereof that is currently public street and right of way described in Section 3 below. The
Company will undertake the Project (defined below) upon the Property.
2. Improvements by Company. Company shall construct a building
consisting of approximately 13,000 square feet, and related landscaping, sidewalks,
signage and parking (collectively, the "Improvements"), all of which shall be located on
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 $1,500,000.00. 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".
3. Street Vacate; Public Infrastructure. No later than February 27, 2012,
City agrees to vacate the portions of Walnut Street and Almond Street right of way that
are generally depicted on Exhibit "B" attached hereto, and thereafter to convey same,
and other excess real estate needed for the Project (said real estate and vacated
streets are the "City Property"), to Company by quit claim deed. After conveyance,
Company shall be deemed the owner of all sanitary and storm sewer infrastructure lying
within the vacated area and shall be.solely responsible for repair, maintenance,
inspection, removal and replacement of same and all related costs and expenses.
Water lines lying within the vacated area shall be abandoned and Company, at its own
Book , Page , File Number 2013-00000407
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cost and expense, shall construct, or cause to be constructed, to the reasonable
satisfaction of Waterloo Water Works, a new water main in that part of Almond Street
lying westerly of Clay Street.
4. Traffic Signals. Company shall be responsible to pay all cost and
-expense in connection with -design of, -procurement of equipment and materials for, and
installation of (a) traffic signals at a new business entrance on Franklin Street, and (b)
vehicle detection upgrade at intersection of Almond Street and US 63, all in accordance
with plans and specifications approved by City. City shall perform the actual work of
installation at no additional charge to Company, and Company shall pay all other costs
and expenses, including but not limited to subcontractors, if any.
5. 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 City Property to Company, and that without said
commitment City would not have done so. Company must obtain a building permit and
begin demolition and/or construction no tater than December 31, 2012, and
construction of Improvements on the Property shall be completed by December 31,
2013, (the "Project Completion Date"). If, by December 31, 2012, Company has not
begun in good faith to demolish the site and begin construction of the Improvements
upon the Property, then title to the City Property shall revert to the City. If demolition
and/or 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, 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 City Property shall revert to the City after the end of said
extended period. If development has commenced within the two-month period or 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 City 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 City 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 City Property. If the City files suit to enforce the
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terms of this Section 5 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.
6. 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 "C", it will not seek or cause a reduction in the taxable valuation for the Property,
which shall be fixed for assessment purposes, below the aggregate amount of
$1,500,000.00 ("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 the agreement attached as Exhibit "C" at closing.
7. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth herein and has executed the Minimum Assessment
Agreement as set forth in Section 6, the City agrees to rebate property taxes (with the
exceptions noted below) as follows:
a. Year One - 100% rebate
b. Year Two - 100% rebate
c. • Year Three - 100% rebate
d. Year Four - .100% rebate
e. Year Five - 100% rebate
f. Year Six - 100% rebate
for any taxable value over the January 1, 2011 value of $175,430. Rebates are
payable in respect of a given year only to the extent that Company has actually paid
general property taxes due and owing for such year. To receive rebates for a given
year, Company must, within twelve (12) months after the tax payment due date, submit
a completed rebate. request to City on the form provided by or otherwise satisfactory to
City, otherwise Company will forfeit its right to a rebate for that year.
The taxable value of the 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. 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
Book , Page , File Ntlmber 2013-00000407
(Page 5 of 17)
the completed value of the Improvements and not a prior year for which the
assessment is based solely upon the value of the land or upon the value of the land
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 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 duty 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.
D. Company has obtained marketable title to the Property, free and
clear of all liens, claims or encumbrances of any type or nature, except such
mortgage(s) as Company may have consensually given.
10. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by ovemight 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 FEPH-Acquisitions Fund II, LLC,
Book , Page , File Ntxber 2013-00000407
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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.
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 Company nor to create any
liability for one party with respect to the liabilities or obligations of the other party or any
other person.
12. 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.
13. 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.
14. 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.
15. Binding Effect This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
16. 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.
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Book , Page , File Number 2013-00000407
(Page 7 o 17)
17: Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "C", 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.
18. 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 O WATERLOO, IOWA
By
est G. Clark, Mayor
6
FEPH-ACQUISITIONS FUND II, LLC
By:
Title:
Book , Page , File Number 2013-00000407
(Page B of 17)
17. Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "C°, 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.
18. 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 WATERLOO, IOWA FEPH-ACQUISITIONS FUND II, LLC
By: By:
Ernest G. Clark, Mayor
Attest:
Suzy Schares, City Clerk
6
Title: NOMAS 1, ttliGm
Book , Page , Pile Neer 2013-00000407
(Page 9 of 17)
EXHIBIT "A"
Parcel 1:
Lots 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 16 in Block 64; ALSO
Parts of Lot 9 in Block 64, described as follows:
Beginning at the most Easterly corner of said Lot 9; thence Northwesterly along the Southwesterly line of Walnut Street
36 feet; thence Southwesterly parallel with the Southeasterly line of said Lot 9, 48 feet; thence Southeasterly 433 feet to a
point on the Southeasterly line of said Lot 9 that is 70.1 feet Southwesterly of the point of beginning; thence Northeasterly
along the Southeasterly line of said Lot 9, 70.1 feet to the point of beginning; AND
Beginning at the South corner of said Lot 9; thence North 47°48'30" East 69.9 feet along the Southeasterly line of said Lot
9; thence North 11°18'30" West 48.7 feet; thence North 5°41'30" East 49.5 feet; thence
Southerly 139.7 feet along a 298.3 foot radius curve concave easterly having a chord bearing South 29°40' West 138.4 feet
along an arc 20 feet radially distant from and parallel to the back of curb along the east side of Primary Road No. U.S. 63;
thence South 42°00' East 31.9 feet to the point of beginning; AND
Commencing at a point on the South Westerly line of Walnut Street 60 feet from the East line of Logan Avenue; thence
South Easterl y 46 feet along the South West line of said Walnut Street; thence South Westerly parallel with the South
Easterly line of Lot 9, 48 feet; thence North Westerly 5 feet and 6 inches to a point 60 feet East from Logan Avenue and
due South of the place of beginning; thence North 60.6 feet parallel with Logan Avenue to the place of beginning; ALSO
All that portion of the 20 foot alley in even width abutting Lots 9 through 16, inclusive, in Block 64; All in The Cooley
Addition to the City of Waterloo, Iowa. ALSO
All of Block 70 in The Cooley Addition to the City of Waterloo, Iowa.
Excepting therefrom any and all highways lying within the descriptions described above.
Parcel 2:
A portion of the right of way of Almond Street, in Cooley's Addition, City of Waterloo, Black Hawk County, Iowa, and
more particularly described as follows:
Beginning at the point of intersection of the South right of way line of Almond Street with the Northeasterly right of way
line of Walnut Street, said point being North 89°41'45" West, 236.86 feet from the Northeast corner of Block 70 in said
Addition, and said point also being the point of beginning; Thence continuing North 89°41'45" West on said South right of
way line, 91.06 feet to the East right of way line of Mullan Avenue and the beginning of a 289.14 -foot radius curve concave
Southeasterly and having a long chord of 23.46 feet bearing North 42°25'07" East; Thence Northeasterly on the arc of
said curve, 23.46 feet to the beginning of a 10.00 -foot radius curve concave Southerly and having a long chord of 11.54 feet
bearing North 79°59'50 East; Thence Easterly on the arc of said curve, 1231 feet; Thence South 64°44'56" East, 24.04
feet to the beginning of a 100.00 -foot radius curve concave Northerly and having a long chord of 43.20 feet bearing South
17°13'21" East; Thence Easterly on the arc of said curve, 43.54 feet to the point of beginning.
Described parcel contains 0.02 acres (807 sq. ft.) .
Parcel 3:
A portion of the right of way of Walnut Street, lying between Ahnond Street and Clay Street, in Cooley's Addition,
City of Waterloo, Black Hawk County, Iowa, and more particularly described as follows:
Beginning at the most southerly corner of Block Seventy (70) in Said Cooley's Addition; Thence South 0°51 '01" East,
93.82 feet to the Southwesterly right of way line of Walnut Street; Thence North 49°06'06" West on said right of way line,
447.66 feet to the beginning of a
289. 14 -foot radius curve concave Southeasterly and having a long chord of 9.54 feet bearing North 39°08'55" East;
Thence Northeasterly on the arc of said curve, 9.54 feet to the South right of way line of Almond Street; Thence South
R9°41' 45" Fact on said richt of way line 92.93 feet to the Nnrtheacterly rioht of way line of Walnut Street! Thence South
Book , Page , File Number 2013-00000407
(Page 10 pf 17)
49°06'06" East on said right of way line, 314.92 feet to the point of beginning.
Described parcel contains 0.62 acres.
NOTE: PARCELS 1, 2 AND 3 ABOVE TO BE KNOWN AND PLATTED AS:
Lots 1, 2, 3 and 'A' of Waterloo Rx First & Franklin Subdivision, Waterloo, Black Hawk County, Iowa
Book , Page , File Number 2013-00000407
(Page 11 of 17)
EXHIBIT "B"
Area to be Vacated
Book , Page , File Nimbler 2013-00000407
(Page 12 of 17)
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Book , Page , File Number 2013-00000407
(Page 13 of 17)
EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
This Min m Assessnieiit Agreement'(the "Agreement") is entered into' as of
2012, by and among the CITY OF WATERLOO, IOWA ("City"),
FEPH- Q ISITIONS FUND II, LLC ("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" 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 "Logan Plaza Urban Renewal Area"; 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 Tess than $1,500,000.00 ("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, 2012.
2. The Minimum Actual Value herein established shalt be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2024. 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
Book , Page , File Naber 2013-00000407
(Page 14 of 17)
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, 2025.
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 Scres, City Clerk
STATE OF IOWA
)ss.
COUNTY OF BLACK HAWK
CITY OF ATERLOO, IOWA
Bv:
mest G. Clark, ayor
FEPH-ACQUISITIONS FUND II, LLC
By:
Title:
On this day of r , 2012, before me, a Notary Public in
and for the State of Iowa, personally appe ed Emest 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 corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
2
Book , Page , File Number 2013-00000407
(Page 15 0£ 17)
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 Gity 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
COUNTY OF BLACK HAWK
)
) ss.
oajik/
tary Pub
Tao,
IG
Acknowledged before me on , 2012 by
as of FEPH-Acquisitions Fund II, LLC.
3
Notary Public
Book , Page , File Number 2013-00000407
(Page 16 of 17)
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, 2025.
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
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
CITY OF WATERLOO, IOWA
By:
Ernest G. Clark, Mayor
FEPH-ACQUISITIONS FUND II, LLC
By:
Title: 1 L)1 t
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 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
2
Book , Page , File Number 2013-00000407
(Page 17 .of 17)
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
• improvernenis are -to be -constructed forthe development, and being of the opinionthat.
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 One Million
Five Hundred Thousand Dollars ($1,500,000.00).
STATE OF IOWA
COUNTY OF BLACK HAWK
. )ss.
Assessor for Black Hawk County, Iowa
(A(
Dame
Subscribed and swom to before me on , 2012, by Tami
McFarland, Assessor for Black Hawk County, Iowa.
AL -1)a/ e Zera-sel..-
Notary Public
MY OBORASSNOg��OCOMMISSION 1957811MY COJ1gMISSION EXPIRES
Book , Page , File Number 2013-00000407
C RA_
DEVELOPMENT AGREEMENT
Pease return this copy to:
City Clerk & Finance Department
715 Mulberry Street
Waterloo, IA 50703
This Development Agreement is entered into as of Q , 2012, by
and between FEPH-Acquisitions Fund II, LLC (the "Company") and he City of
Waterloo, Iowa (the "City").
RECITALS
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 Logan Plaza Urban
Renewal Area.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Development Property. The Company has purchased or will purchase
the real property described on Exhibit "A" hereto (the "Property"), except that portion
thereof that is currently public street and right of way described in Section 3 below. The
Company will undertake the Project (defined below) upon the Property.
2. Improvements by Company. Company shall construct a building
consisting of approximately 13,000 square feet, and related landscaping, sidewalks,
signage and parking (collectively, the "Improvements"), all of which shall be located on
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 $1,500,000.00. 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".
3. Street Vacate; Public Infrastructure. No later than February 27, 2012,
City agrees to vacate the portions of Walnut Street and Almond Street right of way that
are generally depicted on Exhibit "B" attached hereto, and thereafter to convey same,
and other excess real estate needed for the Project (said real estate and vacated
streets are the "City Property"), to Company by quit claim deed. After conveyance,
Company shall be deemed the owner of all sanitary and storm sewer infrastructure lying
within the vacated area and shall be solely responsible for repair, maintenance,
inspection, removal and replacement of same and all related costs and expenses.
Water lines lying within the vacated area shall be abandoned and Company, at its own
cost and expense, shall construct, or cause to be constructed, to the reasonable
satisfaction of Waterloo Water Works, a new water main in that part of Almond Street
Tying westerly of Clay Street.
4. Traffic Signals. Company shall be responsible to pay all cost and
expense in connection with design of, procurement of equipment and materials for, and
installation of (a) traffic signals at a new business entrance on Franklin Street, and (b)
vehicle detection upgrade at intersection of Almond Street and US 63, all in accordance
with plans and specifications approved by City. City shall perform the actual work of
installation at no additional charge to Company, and Company shall pay all other costs
and expenses, including but not limited to subcontractors, if any.
5. 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 City Property to Company, and that without said
commitment City would not have done so. Company must obtain a building permit and
begin demolition and/or construction no later than December 31, 2012, and
construction of Improvements on the Property shall be completed by December 31,
2013, (the "Project Completion Date"). If, by December 31, 2012, Company has not
begun in good faith to demolish the site and begin construction of the Improvements
upon the Property, then title to the City Property shall revert to the City. If demolition
and/or 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, 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 City Property shall revert to the City after the end of said
extended period. If development has commenced within the two-month period or 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 City 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 City 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 City Property. If the City files suit to enforce the
2
terms of this Section 5 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.
6. 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 "C", it will not seek or cause a reduction in the taxable valuation for the Property,
which shall be fixed for assessment purposes, below the aggregate amount of
$1,500,000.00 ("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 the agreement attached as Exhibit "C" at closing.
7. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth herein and has executed the Minimum Assessment
Agreement as set forth in Section 6, the City agrees to rebate property taxes (with the
exceptions noted below) as follows:
a. Year One - 100% rebate
b. Year Two - 100% rebate
c. Year Three - 100% rebate
d. Year Four - 100% rebate
e. Year Five - 100% rebate
f. Year Six - 100% rebate
for any taxable value over the January 1, 2011 value of $175,430. Rebates are
payable in respect of a given year only to the extent that Company has actually paid
general property taxes due and owing for such year. To receive rebates for a given
year, Company must, within twelve (12) months after the tax payment due date, submit
a completed rebate request to City on the form provided by or otherwise satisfactory to
City, otherwise Company will forfeit its right to a rebate for that year.
The taxable value of the 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. 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
3
the completed value of the Improvements and not a prior year for which the
assessment is based solely upon the value of the land or upon the value of the land
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 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.
D. Company has obtained marketable title to the Property, free and
clear of all liens, claims or encumbrances of any type or nature, except such
mortgage(s) as Company may have consensually given.
10. 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 FEPH-Acquisitions Fund II, LLC,
4
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.
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 Company nor to create any
liability for one party with respect to the liabilities or obligations of the other party or any
other person.
12. 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.
13. 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.
14. 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.
15. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
16. 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.
5
17. Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "C", 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.
18. 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 WATERLOO, IOWA FEPH-ACQUISITIONS FUND II, LLC
By:
Ernest G. Clark, Mayor
Attest:
Suzy Sch!: res, City Clerk
6
By:
Title:
EXHIBIT "A"
Legal Description of Property to be Improved
To be determined by survey, consisting of property located in Block 70, part of vacated
Walnut Street, part of vacated right of way of Almond Street, and part of Block 64,
Cooley's Addition, City of Waterloo, Iowa, to be platted as Lots 1, 3 and "A".
[note: this description will not work for the minimum assessment agreement — either
need a survey or reference to lots after platting completed]
EXHIBIT "B"
Area to be Vacated
See attached aerial view.
EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
cLv—t , 2012, by and among the CITY OF WATERLOO, IOWA ("City"),
FEPH-ACQUISjTIONS FUND II, LLC ("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" 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 "Logan Plaza Urban Renewal Area"; 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 Tess than $1,500,000.00 ("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, 2012.
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,
2024. 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, 2025.
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:S)
Suzy Schares, City Clerk
STATE OF IOWA
COUNTY OF BLACK HAWK
) ss.
CITY OF TERLOO, IOWA
By:
Ernest G. Clark, Mayor
FEPH-ACQUISITIONS FUND II, LLC
By:
Title:
On this __ day of P -m , 2012, before me, a Notary Public in
and for the State of Iowa, personally appearee 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
2
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
Acknowledged before me on , 2012 by
as of FEPH-Acquisitions Fund II, LLC.
3
Notary Public
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 One Million
Five Hundred Thousand Dollars ($1,500,000.00).
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on , 2012, by Tami
McFarland, Assessor for Black Hawk County, Iowa.
Notary Public
Please return this copy to:
City Clerk & Finance Department
715 Mulberry Street
Waterloo, IA 50703
DEVELOPMENT AGREEMENT
This Development Agreement is entered into as of ,brio , 2012, by
and between FEPH-Acquisitions Fund II, LLC (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 Logan Plaza Urban
Renewal Area.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Development Property. The Company has purchased or will purchase
the real property described on Exhibit "A" hereto (the "Property"), except that portion
thereof that is currently public street and right of way described in Section 3 below. The
Company will undertake the Project (defined below) upon the Property.
2. Improvements by Company. Company shall construct a building
consisting of approximately 13,000 square feet, and related landscaping, sidewalks,
signage and parking (collectively, the "Improvements"), all of which shall be located on
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 $1,500,000.00. 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".
3. Street Vacate; Public Infrastructure. No later than February 27, 2012,
City agrees to vacate the portions of Walnut Street and Almond Street right of way that
are generally depicted on Exhibit "B" attached hereto, and thereafter to convey same,
and other excess real estate needed for the Project (said real estate and vacated
streets are the "City Property"), to Company by quit claim deed. After conveyance,
Company shall be deemed the owner of all sanitary and storm sewer infrastructure lying
within the vacated area and shall be solely responsible for repair, maintenance,
inspection, removal and replacement of same and all related costs and expenses.
Water lines lying within the vacated area shall be abandoned and Company, at its own
cost and expense, shall construct, or cause to be constructed, to the reasonable
satisfaction of Waterloo Water Works, a new water main in that part of Almond Street
Tying westerly of Clay Street.
4. Traffic Signals. Company shall be responsible to pay all cost and
expense in connection with design of, procurement of equipment and materials for, and
installation of (a) traffic signals at a new business entrance on Franklin Street, and (b)
vehicle detection upgrade at intersection of Almond Street and US 63, all in accordance
with plans and specifications approved by City. City shall perform the actual work of
installation at no additional charge to Company, and Company shall pay all other costs
and expenses, including but not limited to subcontractors, if any.
5. 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 City Property to Company, and that without said
commitment City would not have done so. Company must obtain a building permit and
begin demolition and/or construction no later than December 31, 2012, and
construction of Improvements on the Property shall be completed by December 31,
2013, (the "Project Completion Date"). If, by December 31, 2012, Company has not
begun in good faith to demolish the site and begin construction of the Improvements
upon the Property, then title to the City Property shall revert to the City. If demolition
and/or 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, 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 City Property shall revert to the City after the end of said
extended period. If development has commenced within the two-month period or 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 City 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 City 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 City Property. If the City files suit to enforce the
2
terms of this Section 5 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.
6. 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 "C", it will not seek or cause a reduction in the taxable valuation for the Property,
which shall be fixed for assessment purposes, below the aggregate amount of
$1,500,000.00 ("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 the agreement attached as Exhibit "C" at closing.
7. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth herein and has executed the Minimum Assessment
Agreement as set forth in Section 6, the City agrees to rebate property taxes (with the
exceptions noted below) as follows:
a. Year One - 100% rebate
b. Year Two - 100% rebate
c. Year Three - 100% rebate
d. Year Four - 100% rebate
e. Year Five - 100% rebate
f. Year Six - 100% rebate
for any taxable value over the January 1, 2011 value of $175,430. Rebates are
payable in respect of a given year only to the extent that Company has actually paid
general property taxes due and owing for such year. To receive rebates for a given
year, Company must, within twelve (12) months after the tax payment due date, submit
a completed rebate request to City on the form provided by or otherwise satisfactory to
City, otherwise Company will forfeit its right to a rebate for that year.
The taxable value of the 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. 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
3
the completed value of the Improvements and not a prior year for which the
assessment is based solely upon the value of the land or upon the value of the land
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 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.
D. Company has obtained marketable title to the Property, free and
clear of all liens, claims or encumbrances of any type or nature, except such
mortgage(s) as Company may have consensually given.
10. 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 FEPH-Acquisitions Fund 11, LLC,
4
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.
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 Company nor to create any
liability for one party with respect to the liabilities or obligations of the other party or any
other person.
12. 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.
13. 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.
14. 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.
15. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
16. 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.
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17. Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "C", 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.
18. 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 WATERLOO, IOWA
By:
Ernest G. Clark, Mayor
Attest
Suzy Sch';. res, City Clerk
6
FEPH-ACQUISITIONS FUND II, LLC
By:
Title:
EXHIBIT "A"
Legal Description of Property to be Improved
To be determined by survey, consisting of property located in Block 70, part of vacated
Walnut Street, part of vacated right of way of Almond Street, and part of Block 64,
Cooley's Addition, City of Waterloo, Iowa, to be platted as Lots 1, 3 and "A".
[note: this description will not work for the minimum assessment agreement — either
need a survey or reference to Tots after platting completed]
EXHIBIT "B"
Area to be Vacated
See attached aerial view.
EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
e.j-{1}(LAI� ' , 2012, by and among the CITY OF WATERLOO, IOWA ("City"),
FEPH-ACQUISJTIONS FUND II, LLC ("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" 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 "Logan Plaza Urban Renewal Area"; 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 Tess than $1,500,000.00 ("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, 2012.
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,
2024. 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, 2025.
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 Sckares, City Clerk
a
STATE OF IOWA
COUNTY OF BLACK HAWK
) ss.
CITY OF vA TERLOO, IOWA
By:
Ernest G. Clark, Mayor
FEPH-ACQUISITIONS FUND II, LLC
By:
Title:
On this _1 day of 4-b-r'u Lv , 2012, before me, a Notary Public in
and for the State of Iowa, personally appeareJ 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
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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 )
31A9126 fif
Acknowledged before me on , 2012 by
as of FEPH-Acquisitions Fund II, LLC.
Notary Public
3
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 One Million
Five Hundred Thousand Dollars ($1,500,000.00).
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
Assessor for Black Hawk County, Iowa
Date
Subscribed and sworn to before me on , 2012, by Tami
McFarland, Assessor for Black Hawk County, Iowa.
Notary Public