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HomeMy WebLinkAboutBread to Beer, LLC - Amendment to Dev Agmnt-1/11/2016Preparer Information: Christopher S. Wendland, PO Box 596, Waterloo, Iowa 50704 Name Address City Please return this copy to: City Clerk & Finance Dept. 715 Mulberry St. Waterloo, IA 50703 (319) 234-5701 Phone AMENDMENT TO DEVELOPMENT AGREEMENT This Amendment to Development Agreement (the "Amendment") is entered into as of tt 2 i 6 , by and between Bread to Beer, LLC ("Company") and the City of Waterldo, Iowa ( "City"). RECITALS A. Company and City are parties to a certain Development Agreement dated September 8, 2015 and filed September 30, 2015 as Doc. No. 2015-6142 (the "Agreement"), providing for Company's development of certain properties on the terms set forth therein. B. The parties desire to amend the Agreement to modify the terms thereof as set forth in this Amendment. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. The Agreement is hereby amended to add a new Section 3.E as follows: E. Asbestos — Exterior. After execution of this Agreement, Company discovered the presence of asbestos in the existing roofing material. City at its own expense will remove, or will cause to be removed, all asbestos -containing material from the existing roof assembly (hereinafter "asbestos abatement") simultaneously with Company's removal of the existing roof assembly which is expected to begin on or about March 1, 2016 and be completed no later than May 1, 2016. City shall cause the asbestos abatement to be completed in a manner that does not delay Company's removal of the existing roof assembly and shall coordinate the asbestos abatement with Company's general contractor and roof contractor. City may utilize Company's roof contractor to complete the asbestos abatement if the roof contractor is a licensed asbestos abatement contractor, but City shall not be required to utilize Company's roof contractor. If City utilizes Company's roof contractor, the roof contractor shall enter into a separate contract with City for the asbestos abatement. Company will be solely responsible for any costs of roof replacement following completion of City's activities. 2. The Agreement is hereby amended to strike Section 4.A therefrom and to substitute in its place a new Section 4.A that reads as follows: A. The parties agree that Company's commitment to construct the Improvements in timely fashion constitutes a material inducement for the City to convey the Property and that without Company's commitment City would not have agreed to make the incentives described in this Agreement available to Company. Company must substantially complete construction of the Improvements within fifteen (15) months after the City's conveyance of the Property to Company by Special Warranty Deed (the "Completion Date"). However, if Company can demonstrate to City that additional time is needed to complete the Improvements due to delays resulting from the historic tax credit approval process or an Unavoidable Delay as defined in subsection E below, then the parties shall amend this Agreement to provide for a reasonable extension of the Completion Date. 3. The Agreement is hereby amended to strike Section 4.B therefrom and to substitute in its place a new Section 4.B that reads as follows: B. Company shall commence work within thirty (30) days after the City's conveyance of the Property to Company by Special Warranty Deed (the "Commencement Date"). Company shall obtain a building permit within ninety (90) days of the City's conveyance of the Property to Company by Special Warranty Deed. If Company does not commence work within a timely manner, then at its sole option City may cancel this Agreement without further obligation by either party and title to the Property shall revert to the City. If Company has commenced work, but fails to obtain a building permit in a timely manner, then Company shall forfeit the tax rebates provided in this Agreement. 4. The Agreement is hereby amended to strike Section 4.E therefrom and to substitute in its place a new Section 4.E that reads as follows: E. If construction is not commenced by the Commencement Date or extension thereof as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, weather, unavailability of materials or supplies, a failure on the part of City to fulfill its obligations under Sections 3.A thru 3.E or Sections 6, 9 or 16, or other cause beyond the reasonable control of Company (an "Unavoidable Delay"), the requirement that construction is to be commenced by the Commencement Date shall be tolled for a period of time equal to the period of the Unavoidable Delay (the "Tolled Period"), and thereafter if construction is not commenced within the Tolled Period, then title to the Property shall revert to the Page 2 City. Similarly, if construction has commenced in a timely manner but is stopped and/or delayed as a result of Unavoidable Delay, the requirement that construction is to be substantially completed by the Completion Date shall be tolled for the Tolled Period, and thereafter if construction is not substantially completed within the Tolled Period, Company shall forfeit its entitlement to the tax rebates provided in this Agreement. 5. The Agreement is hereby amended to strike Section 15 therefrom and to substitute in its place a new Section 15 that reads as follows: 15. Materiality of Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of Company to be made or performed is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for City to enter this Agreement. Company acknowledges that without such promises, covenants, representations, and warranties, City would not have entered this Agreement. In the event of the material incorrectness or falsity of any representation or warranty of Company, City may, at its sole option and in addition to any other right or remedy available to it, terminate this Agreement and declare it null and void. Similarly, each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of City to be made or performed is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for Company to enter this Agreement. City acknowledges that without such promises, covenants, representations, and warranties, Company would not have entered this Agreement. In the event of the material incorrectness or falsity of any representation or warranty of City, Company may, at its sole option and in addition to any other right or remedy available to it, terminate this Agreement and declare it null and void. If this Agreement is terminated pursuant to this Section prior to Company's commencement of work, then at its sole option City may cancel this Agreement without further obligation by either party and title to the Property shall revert to the City. If this Agreement is terminated after Company commences the work, the Property shall no longer be subject to possibility of reverter, but all benefits already provided by City to Company under this Agreement as of the date of termination shall be returned to City, and any future benefits shall be forfeited. 6. City has conveyed fee simple title to the Property to Company by Special Warranty Deed as provided in paragraph 6 of the Agreement in order to allow Company to obtain the financing necessary to commence construction of the Improvements. Section 6 of the Agreement states that the conveyance of fee simple title would occur after City's completion of the asbestos abatement required by Section 3.B of the Agreement, City's approval of the Company's plans pursuant to Section 9 of the Agreement and City obtaining any approvals it deems necessary for amendment of the urban renewal plan applicable to the Property or the Project area pursuant to Section 16 of the Agreement. City has completed the asbestos abatement required by Section 3.B Page 3 of the Agreement, City has approved Company's plans as contemplated in Section 9 of the Agreement, and City has completed all procedures, hearings and approvals deemed necessary by City and its legal counsel for amendment of the urban renewal plan applicable to the Project and the Project area. City has conveyed the Property to Company by special warranty deed as contemplated by Section 6, and City confirms that the contingencies in Section 16 of the Agreement have been satisfied. 7. Except as modified herein, the Agreement shall continue unmodified in full force and effect. Terms in this Amendment that are capitalized but not defined will have the same meanings herein that are ascribed to them in the Agreement. The Agreement and this Amendment shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. IN WITNESS WHEREOF, the parties have executed this Amendment to Development Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA BREAD TO BEER, LLC //- BY: tI ksi 4,�` By: r Mayor David Morgan, Manager Attest: Suzy ', chares, City Clerk Page 4