Loading...
HomeMy WebLinkAboutAvita Developments, LLC - July 16, 2018 BEECHER, FIELD, WALKER, MORRIS, HOFFMAN &JOHNSON, P.C. LAWYERS HUGH M.FIELD COURT SQUARE BUILDING-SUITE 300 W LOUIS BEECHER(192I-20I2) JOHN R.WALKER,JR. 620 LAFAYETTE STREET W.L.BEECHER(I89I-I976) RICHARD R.MORRIS P,O,BOX I78 JOHN W.RATHERT(1932-20I0) THERESA E.HOFFMAN ERIC W.JOHNSON WATERLOO,IOWA 50704 KEVIN D.AHRENHOLZ TELEPHONE:(3I9)234-I766i1 � D.RAYMOND WALTON FAX:(3I9)234-I225 JOHN J.WOOD ADNAN MAHMUTAGIC k �i THOMAS C.VERHULST ` + KATE B.MITCHELL ejohnson(d,)beecherlaw.com NATHAN MILLER www.wclla4vyer.com MY JORDAN S.TALSMA May 22, 2018 Noel Anderson Community Planning& Development Director 715 Mulberry Street Waterloo, IA 50703 Re: Development Agreement between Avita Developments, LLC and City of Waterloo, Iowa Dear Noel: Enclosed you will find one original and executed Development Agreements regarding the above referenced matter and concerning the property located in the East Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the Logan Plaza Urban Renewal and Redevelopment Plan Area. Please let me or my assistant, Barb Mostek,know when this Development Agreement will be on the agenda for approval by the City Council and if either myself or my client, Kalyana Sundaram, will need to attend the City Council meeting. Thank you. Since•ely, W. Johnson BEECHER, FIELD, WALKER, ORRIS, HOFFMAN& JOHNSON, P.C. EWJ/bjm Enclosure ♦Established in I9I8♦ Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo IA 50704 Phone(319)234-5701 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of 04 _, 2018 by and between Avita Developments, LLC (the "Company") and the Oy 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, and the City further believes that the project is in the vital and best interests of the City and that the project and such incentives are in accordance with the public purposes and provisions of applicable State and local laws and requirements under which the project has been undertaken and is being assisted. B. Company is willing and able to finance and construct buildings and related improvements on property legally described on Exhibit "A" attached hereto (the "Property") located in the East Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the Logan Plaza Urban Renewal and Redevelopment Plan Area ("Urban Renewal Area"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Sate of Property; Title. Subject to the terms hereof, City shall convey to Company for the sum of$1.00 (the "Purchase Price") the real estate described on Exhibit "A-1" attached hereto (the "City Property"), consisting of approximately 1.5 acres. Conveyance shall be by quit claim deed, free and clear of all encumbrances arising by or through City except: (a) easements, conditions and restrictions of record which do not, in Company's opinion, interfere with Company's proposed use; (b) current and future real estate real property taxes and assessments subject to the agreements made herein; (c) general utility and right-of-way easements serving the City Property; and (d) restrictions imposed by the City zoning ordinances and other applicable law. City shall have no duty to convey title to Company until Company delivers to City reasonable and satisfactory proof of financial ability to undertake and carry on the Project (defined below), which may take the form of a lending commitment letter. In any event, conveyance will not occur until the City Property has been surveyed and City has acquired title to the City Property. Company shall, at its own expense, prepare an updated abstract of title, or in lieu thereof Company may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to Company, and if City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Company, Company may terminate this Agreement. City shall provide any title documents it has in its possession, including any abstracts, to assist in title preparation. 2. Improvements by Company. Company shall construct on the Property and the City Property a 5,300 square-foot addition to the current medical facility, and related parking, landscaping, and other improvements to the buildings and grounds (collectively, 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 and other applicable law. The Property, the City Property, the Improvements, and all site preparation and development-related work to make the Property and the City Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". 3. Timeliness of Construction; Possibility of Reverter. The parties agree that Company's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to convey the City Property, or to cause the City Property to be conveyed, to Company and that without said commitment City would not do so. Company must obtain a building permit and begin construction no later than April 30, 2018 (the "Project Start Date") and substantially complete construction by December 31, 2018 (the "Project Completion Date"). If Company has not, in good faith, begun the construction of the Improvements by the Project Start Date, then title to the City Property shall revert to the City, except as provided in this Agreement; provided, however, that if construction has not begun by the Project Start Date but the development of the Project is still imminent, the City Council may, but shall not be required to, consent to an extension of time for the construction of the Improvements, and if an extension is granted but construction of the Improvements has not begun within such extended period, then the title to the City Property shall revert to the City after the end of said extended period. If Company determines at any time that the Project is not economically feasible, then after giving thirty (30) days' advance written notice to City, Company may convey the City Property to City by special warranty deed, and thereupon neither party shall have any further obligation under this Agreement except as expressly provided. If development has commenced by the Project Start Date 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, 2 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. 4. Reverter of Title; Indemnity. 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 and to deliver to City title to the City Property that is free and clear of any lien, claim, charge, security interest, mortgage or encumbrance (collectively, "Liens") arising by or through Company. Company shall pay in full, so as to discharge or satisfy, all Liens on or against the City Property. Appointment of Attorney in Fact: If Company fails to deliver such documents, including but not limited to a special warranty deed, to City within thirty (30) days of written demand by City, then City shall be authorized to execute, on Company's behalf and as its attorney-in-fact, the special warranty deed required by this Section, and for such limited purpose Company does hereby constitute and appoint City as its attorney- in-fact. Company further agrees that it shall indemnify City and hold it harmless 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, Company's failure to carry on or complete same, or any Lien or Liens on or against the City Property of any type or nature whatsoever that attaches to the City Property by virtue of Company's ownership of same. If City files suit to enforce the terms of this Agreement and prevails in such suit, then Company shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees, incurred by City. Company's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason. 5. No Encumbrances; Limited Exception. Until completion of the Improvements, Company agrees that it shall not create, incur, or suffer to exist any Liens on the City Property, other than such mortgage or mortgages as may be reasonably necessary to finance Company's completion of the Improvements and of which Company notifies City before Company executes any such mortgage. Company may not mortgage the City Property or any part thereof for any purpose except in connection with financing of the Improvements. 6. Utilities. Company will be responsible for extending water, sewer, telephone, telecommunications, electricity, gas and other utility services from public right of way to any location on the Property and for payment of any associated connection fees. 7. Minimum Assessment Agreement. Company acknowledges and agrees that it will pay when due all taxes and assessments, general or special, and all other charges whatsoever levied upon or assessed or placed against the Property and 3 the City 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 and the City Property, which shall be fixed for assessment purposes, below the amount of$3,701,320 (the "Minimum Actual Value"), through: (i) willful destruction of the Property, the City Property, the 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 said attached Exhibit "B" at the closing. 8. Tax Rebates. Provided that Company has completed the Improvements as set forth herein and has executed the Minimum Assessment Agreement as set forth above, City agrees to rebate property tax (with the exceptions noted below) as follows: Year One through Year Five 50% rebate each year for any taxable value over the January 1, 2018 value of$2,601,320. 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, or the rebate shall be forfeited. The taxable value of the Property and the City 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 of 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 based on a prior year for which the assessment is based solely upon (x) the value of the Property and the City Property or upon (y) the value of the Property and the City Property and a partial value of the Improvements due to partial completion of the Improvements or a partial tax year. 9. Representations and Warranties of City. City hereby represents and warrants as follows: 4 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. 10. 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. 11. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of ail procedures, hearings and approvals deemed necessary by City or its legal counsel for amendment of the urban renewal plan applicable to the Property and/or project area, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type provided by City hereunder within said 180-day period is subject to reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 10% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 12. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property prior to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. 5 13. Materiality of Company's 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 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. Upon breach of any promise or covenant, or in the event of the incorrectness or falsity of any representation or warranty, 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. 14. 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, at 3904 Alexis Blvd., Cedar Falls, Iowa 50613, facsimile number , Attention: Kalyana Sunduram. 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. A party may change the address for giving notice by any method set forth in this section. 15. 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. 16. 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. 17. Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement 6 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. 18. 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. 19. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 20. 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. 21. Entire Agreement. This Agreement, together with the exhibits attached hereto, 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. 22. 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. [signatures on next page] 7 CITY OF WATERLOO, IOWA AVITA DEVELOPMENTS, LLC By: _ By: Quentin M. Hart, Mayor Kalyana IjndcLram, Manager Attest: h&A4,� _ elley Fe le, City Clerk 8 EXHIBIT "A" Legal Description of Property THAT PART OF THE SW 1/4 OF THE SW 1/4 SEC 12 T 89 R 13 COM AT THE SE COR OF SAID SW 1/4 OF THE SW 1/4 TH N ALONG THE E LINE OF SAID SW 1/4 A DIST OF 33 FT TH N 89 DEG 51 SEC W 33 FT TO THE PT OF BEG WHICH IS THE INTERSECTION OF THE WLY ROW LINE OF E 4TH ST AND THE NLY ROW LINE OF DONALD ST TH N 89 DEG 51 SEC W ALONG SAID NLY ROW LINE 445.61 FT TH N A DIST OF 200.01 FT TH N 89 DEG 51 SEC W 185 FT TH N 308.41 FT TH S 89 DEG 51 MIN E 628.30 FT TO THE WLY ROW LINE OF E 4TH ST TH S ALONG SAID WLY ROW LINE 508.45 FT TO PT OF BEG EXC COM SE COR SW TH N 33 FT TH N 89 DEG 55 MIN 28 SEC W 33 FT TO W ROW LINE E 4TH ST BEING PT OF BEG TH N 89 DEG 55 MIN 28 SEC W 10 FT TH N 44 DEG 34 MIN 58 SEC E 14.02 FT TO W ROW LINE E 4TH ST TH S 10 FT TO PT OF BEG 9 EXHIBIT "A-1" Legal Description of City Property [description to be inserted at a later date by amendment to development agreement) 10 EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of �� , 2018, by and among the CITY OF WATERLOO, IOWA ("City"), AVITA OEVELOPMENTS, LLC ("Company"), and the COUNTY ASSESSOR of the City of Waterloo, Iowa ("Assessor"). WITNESSETH: WHEREAS, on or before the date hereof the City and Company have entered into a development agreement (the "Development Agreement") regarding certain real property, described in Exhibit "A" and Exhibit "A-1" thereto, located in the City; and WHEREAS, it is contemplated that pursuant to the Development Agreement, the Company will undertake the development of an area ("Project") within the City and within the East Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known as the Logan Plaza Urban Renewal and Redevelopment Plan Area, of the City; and WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the Company 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 Company, the minimum actual taxable value which shall be fixed for assessment purposes for the land and Improvements to be constructed thereon by the Company as a part of the Project shall not be less than $3,701,320 (the "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, 2018. 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, 2029. Nothing herein shall be deemed to waive the Company's rights under Iowa Code § 403.6, as amended, to contest that portion of any actual value assignment made by 11 the Assessor in excess of the Minimum Actual Value established herein. In no event, however, shall the Company seek or cause the reduction of the actual value assigned below the Minimum Actual Value established herein during the term of this Agreement. 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. IN WITNESS WHEREOF, the parties have executed this Minimum Assessment Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA AVITA DEVELOPMENTS, LLC i Cuu/" By: - - - ��s�— By: Quentin M. Hart, Mayor Kalyana $uJdaram, Manager By: h, Kelley Fe e, City Clerk STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) On this day of_ i '� 2018, before me, a Notary Public in and for the State of Iowa, personal appeared Quentin M. Hart and Kelley Felchle, 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 12 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. Notary Vuolic Al, NANCY HICBY COMMISSION NO.788229 MY COM'��)j�SIn�N-IXPIRES O M STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) Subscribed and sworn to before me on by Kalyana SundQram as Manager of Avita Developments, LLC. Notary Public F BARBARA J MOSTEL * * COMMISSION No.72o4o8 MY COMMISSION EXPIRES '�w JANUARY 15,2021 13 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 less than Three Million Seven Hundred One Thousand Three Hundred Twenty Dollars ($3,701,320) 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 by T.J. Koenigsfeld, Assessor for Black Hawk County, Iowa. Notary Public 14