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Home My WebLink AboutBCS and GAC - Amended and Restated Dev Agmnt - 10/8/2018Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50704 Phone (319) 234-5701 AMENDED AND RESTATED DEVELOPMENT AGREEMENT This Amended and Restated Development Agreement (the "Agreement") is entered into as of C)Ch\cre,,r B(2,04, by and between BCS Properties, L.L.C. ("BCS"), GAC Real Estate, L.L.C. ("GAC") (BCS and GAC may be collectively referred to as 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 undertake, or to cause to be undertaken, the financing and construction of a building and related improvements on property legally described on Exhibit "A" (the "Property"), located in the Martin Road Development Plan Area of the City. C. BCS and City have previously entered into a certain Development Agreement dated February 20, 2017 and filed as Doc. No. 2018-2755, which was amended by an Amendment dated November 13, 2017 and filed as Doc. No. 2019-2745 (collectively, the "Original DA"). On the terms set forth in this Agreement, the parties desire to amend and restate the Original DA. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Assembly of Property. GAC currently owns that part of the real property described on Exhibit "A" attached hereto (the "Property") that consists of assessor parcel no. 8913-33-376-012 and BCS currently owns that part of the Property that consists of assessor parcel no. 8913-33-351-007. 2. Improvements. Company shall construct one or more new commercial buildings, and related parking and landscaping (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. 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", whether conducted as a single project or as multiple projects undertaken at different times. 3. Timeliness of Construction. The parties agree that Company's commitment to cause the Project to be undertaken and the Improvements to be constructed in a timely manner constitutes a material inducement for the City to extend the development incentives provided for in this Agreement, and that without said commitment City would not have done so. If at any time Company or another developer fails to diligently undertake construction and other activities necessary for completion of a Project, then City may terminate this Agreement following the failure of Company or developer to resume and diligently carry on construction within thirty (30) days following written notice of default from City to Company. 4. Water and Sewer. Company or a third -party developer will be responsible for extending water and sewer service to any location on the Property and for payment of any associated connection fees. 5. Tax Rebates. Provided that the Improvements have been completed as set forth herein, City agrees to rebate property tax (with the exceptions noted below) for a period of up to fifteen (15) years at 95% per year for any taxable value over the January 1, 2016 value of $334,910 for the Property. Rebates are payable in respect of a given year only to the extent that general property taxes due and owing for the Property for such year have actually been paid. 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 will be forfeited at City's option. The first year in which a rebate may be given ("Year One") shall be the first full year for which the assessment is based on the completed value of the Improvements and not a prior year for which the assessment is based solely on the value of the land or on the value of the land and a partial value of the Improvements, due to partial completion of the Improvements or a partial tax year. The assessed 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. Notwithstanding anything to the contrary in this Section 5, the foregoing rebate program will not extend beyond the statutory sunset date of the economic 2 development urban renewal area and related tax increment finance (TIF) district in which the Property is located, which area will terminate as of June 30, 2037. The rebate program will terminate concurrently with termination of said urban renewal sub- area. The urban renewal sub -area and related sunset is depicted on Exhibit B. 6. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of all 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 this Agreement shall be deemed canceled and shall be null and void. 7. 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. 8. 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. 9. 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, 3 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. 10. Effect on Original DA. The parties intend that this Agreement amend and restate in total and to supersede all terms and provisions of the Original DA. 11. 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 2202 College Street, Cedar Falls, Iowa, 50613, Attention: Brent Dahlstrom. 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. 12. 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. 13. 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. 14. 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 4 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. 15. 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. 16. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 17. 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. 18. Entire Agreement. This Agreement 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. 19. 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] 5 CITY OF WATERLOO, IOWA By: Quentin M. Hart Mayor Attest: hle, City Clerk BCS PROPERTIES, L.L.C. By: Brent Dahlstrom, Manager GAC REAL ES £ TE, JIL KRAAYENBRINK Commission Number 797477 . My Commission Expires Jul 29, 2019 oley, aging Member 101511 CRYSTAL WISENBACH COMMISSION NO. 785374 MY CAMMI S IO 2EEXPIRES EXHIBIT "A" Legal Description of Property Parcel 8913-33-351-007 (BCS): UNPLATTED WATERLOO WEST THAT PART OF SW 1/4 SW 1/4 SEC 33 T 89 R 13 LYING SELY AND ELY OF US HWY 63 EXC S 50 FT CONVEYED TO CITY OF WATERLOO FOR STREETS & EXC THAT PART DEEDED TO CITY OF WATERLOO B 557 P 80 Parcel 8913-33-376-012 (GAC): A PARCEL OF LAND IN THE SE QTR OF THE SW QTR OF SEC 33 T 89 R 13 DESC AS FOL: BEG AT THE INTERSECTION OF THE W LINE OF SAID SE SW WITH THE SELY RIGHT OF WAY LINE OF US HWY 63 TH S 89 DEG 50 MIN 15 SEC E 432.65 FT TH S 1 DEG 40 MIN 30 SEC E 986.4 FT TO A PT ON THE N LINE OF RIDGEWAY AVE TH S 90 DEG 00 MIN W ALONG THE N LINE OF RIDGEWAY AV TO THE W LINE OF SAID SE SW TH N 0 DEG 43 MIN 15 SEC W 985.97 FT TO PT OF BEG. EXHIBIT "B" Urban Renewal Sub -Areas and Sunsets See attached. TIF Amendment #5 Sunset Date: FY 2037 TIF Amendment #3 Sunset Date: FY 2037 Ridgewa 3 Ave TIF Amendment #2 Sunset Date: FY 2036 City of Waterloo, Iowa Note: Base map data source is Black Hawk County. This map does not represent a survey, no liability is assumed for the accuracy of the data delineated herein, expressed or implied by Black Hawk County, the Black Hawk County Assessor, or their employees. The City of Waterloo makes no warranty, express or implied, as to the accuracy of the information shown on this map, ane expressly disclaims liability for the accuracy thereof. Users should refer to official Plats, surveys, recorded deeds. etc. located at the Mack Hawk County Assessors Office for complete and accurate information. Martin Road TIF Sunset Dates Sunset dates per Hellen w/ BHC Auditors Office W+E