HomeMy WebLinkAboutBCS and GAC - Amended and Restated Dev Agmnt - (RECORDED) •
IIII III I 1111011 I I 1111 1111 II 11111111
Doc ID: 009586860009 Type: GEN
Recorded: 07/03/2019 at 01:49:42 PM
Fee Amt: $47.00 Page 1 of 9
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
F11e2020-00000273
* Ci -yc &0)
Prepared 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 r1,71ifV).(A/g 701 g 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.
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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
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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,
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]
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CITY OF WATERLOO, IOWA BCS PROPERTIES, L.L.C.
By: 74 By:
Quentin M. Hart, Mayor Brent Dahlstrom, M M
JILL L KRh.AYE. 11NK
i , Commission n . ;_+7477
My Comm _z�fires
// July �';, tGl9
Attest: GAC REAL ESTAT Lt
Kelley Fey:file, City Clerk
I By: _
-14197- oole, �: an r i e ember
�o�slr�
,Lal
."'"`9, CRYSTAL WISENBACH
COMMISSION NO.785374
* m * MY COMMISSION EXPIRES
o w r AUGUST 4,2020
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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.
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