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HomeMy WebLinkAboutD & L Development Co-2/8/2010Preparer Information: Noel Anderson 715 Mulberry Street Waterloo, IA 50703 319.291.4366 Individual's Name Street Address City Phone DEVELOPMENT AGREEMENT This Dev opment Agreement (the "Agreement") is entered into as of , 2010, by and between D & L Development Co. ("Developer"), and the City of Waterloo, Iowa ("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. Developer 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. Improvements by Developer. Developer shall construct on the Property a retail building consisting of approximately 5,800 square feet, and related landscape and parking (the "Improvements"). The Improvements shall be constructed in accordance with all applicable City, state, and federal building codes and shall comply with all applicable City ordinances. It is contemplated that the taxable value of the land and building upon completion will be approximately $1,038,960. The Property, the Improvements, and all site preparation and development -related work to make the Property usable for Developer's purposes as contemplated by this Agreement are collectively referred to as the "Project". 2. Timeliness of Construction. The parties agree that Developer's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to enter this Agreement, and that without said commitment City would not have done so. Developer must substantially complete construction of the Improvements by December 31, 2010. If Developer has not obtained a building permit and begun in good faith the construction of the Improvements upon the Property by May 15, 2010, this Agreement may be cancelled at the sole option of City. If construction has not begun by May 15, 2010, 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 construction has commenced by May 15, 2010 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 Developer, the requirement that construction is to be substantially completed by December 31, 2010 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 this Agreement shall be cancelled at the sole option of City. If construction is not substantially completed by December 31, 2010, then the parties agree to execute an amendment to this Agreement and to the Minimum Assessment Agreement to extend the date specified in Section 4 below and the dates specified in corresponding provisions of the Minimum Assessment Agreement. 3. Minimum Assessment Agreement. Developer 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. Developer further agrees that, prior to January 1, 2023, 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 $1,038,960 ("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. Developer agrees to sign the agreement attached as Exhibit "B" at closing. 4. Property Tax Rebates. Provided that Developer has completed the Improvements as set forth in Sections 1 and 2 and has executed the Minimum Assessment Agreement as set forth in Section 3, the City agrees to rebate property taxes (with the exceptions noted below) as follows: 2 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, 2009 value of $38,960.00. Rebates are payable in respect of a given year only to the extent that Developer has actually paid general property taxes due and owing for such year. Rebates are to be paid to Developer within 30 days of any tax payment made by Developer. 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 $500.00. This rebate program is not applicable to any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. The first year in which a rebate may be given ("Year One") shall be the first full year for which the assessment is based upon the completed value of the Improvements and not a prior year for which the assessment is based solely upon the value of the 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. 5. 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. 6. Representations and Warranties of Developer. Developer hereby represents and warrants as follows: A. Developer is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Developer has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Developer. 3 7. 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 Developer, to Robert Denny, PO Box 11, Cedar Falls, Iowa 50613. 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. 8. 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. 9. 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. 10. 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. 4 11. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, legal representatives, and future owners of the Property. 12. 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. 13. 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. 14. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement as of the date first set forth above. CITY OF WATERLOO, IOWA By: U rnest G. Clark, Mayor Robert Denny for D & L Devment Co. Attest: , Suzy Vis, City Clerk 5 EXHIBIT "A" BV ADDITION LOT 3, CITY OF WATERLOO, BLACK HAWK COUNTY, IOWA. EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Minimum Ass ssment Agreement (the "Agreement") is entered into as of this day of41, , 2010, by and among the CITY OF WATERLOO, IOWA ("City"), D &development Co. ("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 less than $1,038,960.00 ("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, 2010. If it is not, then the parties agree to execute an amendment to this Agreement that will extend the dates specified in Section 2 below. 2. The Minimum Actual Value herein established shall be of no further force and effect, and this Minimum Assessment Agreement shall terminate, on December 31, 2022. Nothing herein shall be deemed to waive the Developer's rights under Iowa Code § 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, 2023. 3. This Agreement shall be promptly recorded by the City with the Recorder of Black Hawk County, Iowa. The City shall pay all costs of recording. 4. Neither the preambles nor provisions of this Agreement are intended to, or shall be construed as, modifying the terms of the Development Agreement. 5. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties, including but not limited to future owners of the Project property. ATTEST: Suzy Sh, City Clerk 2 CITY OF WATERLOO, IOWA By: rnest G. Clark, Mayor Robert Denny for D & L D pment Co. -- V STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) On this _� day of , 2010, before me, a Not ' ublic in and for the State of Iowa, personally appeed Ernest G. Clark and Suzy me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said municipal corporation, and that said instrument was signed and sealed on behalf of said municipal corporation by authority and resolution of its City Council, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said municipal corporation by it and by them voluntarily executed. STATE OF IOWA ) ss. COUNTY OF BLACK HAWK Subscribed and sworn to before me on , 2010 by Robert Denny for D & L Development Co. 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 Thirty Eight Thousand Nine Hundred Sixty Dollars ($1,038,960.00) in the aggregate, until termination of this Minimum Assessment Agreement pursuant to the terms hereof. Assessor for Black Hawk County, Iowa Date STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on , 2010 by , Assessor for Black Hawk County, Iowa. Notary Public