HomeMy WebLinkAboutTCh Waterloo LLC-3/22/2010DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
, 2010, by and between TCH Waterloo, 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 repurpose a vacant industrial plant site 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. Improvements by Company. Company shall purchase the former Eagle
Ottawa Tannery property located at 4455 Remington Road, Waterloo, as legally
described on Exhibit A attached hereto, together with the improvements located
thereon (the "Improvements") (such real property and Improvements are collectively
referred to as the "Property"), and thereafter occupy and bring business and
employment to said site. The parties anticipate that the business expansion and
related job creation is expected to bring 50-100 potential employees to the community,
and the business will reuse an existing vacant industrial building. The Property, the
business expansion, and the anticipated job creation are collectively referred to as the
"Project".
2. Timeliness of Project. Company must purchase the Property and begin
diligent work ("Prep Work") towards occupancy and use of the building within four (4)
months from the date this Agreement is approved by the city council of City, and
Company must achieve occupancy and begun use within twelve (12) months from said
date. If, after the expiration of four (4) months from the date of the Agreement
approval, Company has not begun in good faith the Prep Work, this Agreement may be
cancelled at the sole option of City, or, if 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 Project, and if an extension is granted but the Project has not begun within
such extended period, then this Agreement may be cancelled at the sole option of City
after the end of said extended period. If the Project has commenced within the four-
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 the Project is to be completed
within twelve (12) months shall be tolled for a period of time equal to the period of such
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stoppage or delay, and thereafter if the Project is not completed within the allowed
period of extension, this Agreement may be cancelled at the sole option of City.
3. Water and Sewer. Company will be responsible for extending water and
sewer service to any location on the Property it deems necessary or appropriate and for
payment of any associated connection fees.
4. 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 "B", it will not seek or cause a reduction in the taxable valuation for the Property
(except as expressly provided for in the Minimum Assessment Agreement attached
hereto as Exhibit B) below the aggregate amount of $3,480,000.00 ("Minimum Actual
Value" also referred to as the Base Value, as defined below), 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 execute and deliver the Minimum Assessment Agreement
contemporaneously herewith.
5. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth in paragraphs 1 and 2 and has executed the Minimum
Assessment Agreement as set forth in paragraph 4, the City agrees to rebate 50 % of
any property taxes due and payable in excess of the taxes due and payable based on
(i) the January 1, 2009 value of $3,480,000.00 (the "Base Value") and (ii) the tax rate in
effect for the tax year in respect of which a rebate is payable. 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 and are subject to the exceptions stated in
the following paragraph. In the event that the Minimum Actual Value of the Property is
reduced following Company's petition for such reduction, then this Agreement shall be
deemed terminated and Company shall be entitled to no rebates based on the modified
Minimum Actual Value.
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 shall be the
first full year for which the property taxes due and payable exceed the property taxes
which were due and payable based on (i) the Base Value and (ii) the tax rate in effect
for the tax year in respect of which a rebate is payable, provided that rebates will not be
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given for any year beyond the 2015/2016 tax year (based on the January 1, 2014
assessment and tax rate).
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 or the Minimum Assessment Agreement by any
law, regulation, agreement, instrument, restriction, order or judgment.
B. Each person who executes and delivers this Agreement or the
Minimum Assessment 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. Reserved.
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 TCH Waterloo, LLC, 491 Malden Street, South
Saint Paul, Minnesota, 55075, facsimile number 651-455-6744, Attention: David
Grove.
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
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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.
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,
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discussions, understandings, or agreements, whether oral or written, with respect to the
subject matter hereof.
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17. Time of Essence. Time is of the essence of this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Development
Agreement as of the date first set forth above.
CITY OF WATERLOO, IOWA
By:
7d:ZZ
Ernest G. Clark, Mayor
Attest:
Suzy Sc t arlps, City Clerk
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TCH Waterloo, LLC
By:
David E. Grove, Chief Manager
EXHIBIT "A"
THE COMPANY'S PROPERTY:
(as taken from the recorded conveyancing deed to the Company)
That part of the East One-half of the Southwest Quarter of Section 15, Township 89 North, Kange 12
West of the Fifth Principal Meridian, Waterloo, Black Hawk County, Iowa, lying North of the Chicago
and Northwestern Transportation Company Rfght-of-Way, except the North 990 feet thereof.
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EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
Ma -> al/ , 2010, by and among the CITY OF WATERLOO, IOWA
("City"), TCH Waterloo, 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 (the "Company's Property";
and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Developer will undertake the development (the "Project") of an area within the City and
within the "Northeast Industrial Park Plan" (the "Project Area"); and
WHEREAS, the Project Area is the real property described on Exhibit "B-!"
attached hereto; 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 Company Property located in the
Project Area, which is intended to reflect the minimum actual value of the land and
buildings as to the Company's Property only.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. The minimum actual taxable value which shall be fixed for assessment
purposes for the land and improvements of the Company's Property shall not be less
than $3,480,000.00 ("Minimum Actual Value") until termination of this Agreement.
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, 2014. Nothing herein shall be deemed to waive the Developer's rights
under Iowa Code § 403.6, as amended, to contest the assessed value of the
Company's Property to the extent it exceeds the Minimum Actual Value established
herein. The Developer agrees and covenants not to seek or cause the reduction of the
actual value assigned below the Minimum Actual Value established herein during the
term of this Agreement as a result of market conditions or otherwise; provided however,
since the potential incremental taxes are not being pledged to repay any loan to the
Company, the City agrees that in the event of a casualty or force majeure which
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materially reduces the value of the Company's Property, the Company shall be entitled
to pursue an equitable reduction in the Minimum Actual Value, subject to the statutory
authority of the Assessor to grant or deny such appeal. If the Minimum Actual Value is
reduced below the amount stated above, then this Agreement shall be deemed
terminated.
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, 2015.
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, but are
instead intended to supplement such terms.
5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
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[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement as of the date first set forth above.
ATTEST:
By:
Suzy ''ch w res, City Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
4d
On this day of , 2010, 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 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.
CITY OF WATERLOO, IOWA
By:
E nest G. Clark, Mayor
TCH Waterloci. LLC
By:
David E. Grove, Chief Manager
Assessor for Black Hawk County, Iowa
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,ot
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
Acknowledged before me on Muth , 2010 by David E. Grove as Chief
Manager of TCH Waterloo, LLC.
STATE OF IOWA
) ss.
COUNTY OF BLACK HAWK
Subscribed and sworn to before me on e1/ , 201 �, by
del c( , Ass sor for Black Hawk County, Iowa.
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Notary Public
A
-°T 1 OEBO AH L. ®OECKMANN
MY COMMISSION NO. 196786
MY COM IS§IONDXPIRES
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CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the improvements
upon the land and the market value assigned to the land upon which the improvements
have been 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 fgllgws; The undersigned Assessor, being legally
responsible forh'e assessment of the property subject to the development, in
accordance with the Minimum Assessment Agreement, certifies that the actual value
assigned to such land and building(s) is not less than Three Million Four Hundred
Eighty Thousand Dollars ($3,480,000.00).
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Assessor for Black Hawk County, Iowa
Date
Subs ribed and sworn to before me on Q // , 2014, by
, Assess(or for Bigck Hawk County, Iowa.
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DEBORAH L. BOECKMANN
MY COMMISSION NO. 196789
MY COM ISSION EXPIRES
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Ao‘e.,(,,,vee,"„e47,
Notary Public
5
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Exhibit B-1
NORTHEAST INDUSTRIAL PARK PLAT NO 3 LOT 13 & LOT 12 EXCEPT THAT PART LOT 12 IN THE
NORTHEAST INDUSTRIAL PARK PLAT 1 A PARCEL OF LAND LOCATED IN PART OF LOTS 6 & 7
AND PART LOT 12 NORTHEAST INDUSTRIAL PARK PLAT NO 3 DESCRIBED AS BEGINNING AT
NORTHWEST CORNER OF LOT 6 THENCE NORTH 89 DEGREES 34 MINUTES 40 SECONDS EAST
ALONG NORTHERLY LINE SAID LOT 6 642.05 FEET TO NORTHEAST CORNER SAID LOT 6
THENCE NORTH 89 DEGREES 34 MINUTES 40 SECONDS EAST 300 FEET TO EAST LINE LOT 7
THENCE SOUTH ALONG EAST LINE LOT 7 225 FEET THENCE SOUTH 89 DEGREES 34 MINUTES
40 SECONDS WEST 360 FEET THENCE SOUTH 285 FEET TO SOUTHERLY LINE OF SAID LOT 6
WHICH IS NORTHEAST CORNER LOT 12 THENCE SOUTH ALONG EAST LINE LOT 12 160 FEET
THENCE SOUTH 89 DEGREES 34 MINUTES 40 SECONDS WEST 478.12 FEET WESTERLY LINE
LOT 12 THENCE NORTH 16 DEGREES 47 MINUTES 9 SECONDS WEST ALONG WESTERLY LINE
LOT 12 & 6 380.77 FEET THENCE NORTH ALONG WESTERLY LINE LOT 6 304.67 FEET TO POINT
OF BEGINNING ALSO INCLUDING A PART OF NORTHWEST 1/4 SECONDS 20 TOWNSHIP 89
RANGE 12 DESCRIBED AS: COMMENCING AT SOUTHWEST CORNER OF LOT 13 NORTHEAST
INDUSTRIAL PARK PLAT NO 3 THENCE NORTH 30 DEGREES 39 MINUTES 10 SECONDS EAST
ALONG WESTERLY LINE LOT 13 5 FEET TO POINT OF BEGINNING THENCE NORTH 30 DEGREES
39 MINUTES 10 SECONDS EAST ALONG WESTERLY LINE LOT 13 146.49 FEET THENCE NORTH 16
DEGREES 47 MINUTES 09 SECONDS WEST ALONG WESTERLY LINE LOTS 13 & 12 SAID
ADDITION 507.88 FEET THENCE SOUTH 06 DEGREES 42 MINUTES 21 SECONDS EAST 616.47
FEET TO POINT OF BEGINNING
AND
UNPLATTED WATERLOO EAST NE SW SEC 15 T 89 R 12 EXC N 990 FT
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