HomeMy WebLinkAboutDeer Creek Development, LLC - Development Agreement - 10/16/2006 DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
ric+06.2r i-� , 2006, by and between Deer Creek Development, 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 the owner of real property as described and set forth on
Exhibit A, attached hereto, located within the corporate limits of the City of
Waterloo, Iowa (the "Property").
C. Company is willing and able to finance and construct the installation of
roads, related infrastructure, and other improvements (collectively, the
"Project") on the Property, which is located in the Martin Road urban
renewal area.
D. In view of the Company's investment in assembling the Project and its
commitment to develop the Property, the City desires to provide certain
incentives to encourage the Company to facilitate timely development of
the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Improvements by Company. Company shall construct, or cause to be
constructed, all streets, sewers, utilities, and water lines on the Property (all such street
and infrastructure improvements and related site preparation, including, but not limited
to, necessary grading, fill, and earth work for such street improvements, are referred to
as the "Street Improvements"). The Street 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.
2. Timeliness of Construction. Company must begin construction of the
Street Improvements within nine (9) months from the date of this Agreement and
complete construction of the Street Improvements within ten (10) years thereafter.
Street Improvements not completed within ten (10) years will not be eligible for the
incentives provided in this Agreement.
3. Grants to Company. As an inducement for Company to make the Street
Improvements in connection with development of the Property, the City agrees to make
grants to Company as follows:
A. A one-time grant in the amount of $80,000.00, payable within thirty
(30) days of Company's submission of documentation to City showing, to City's
reasonable satisfaction, Street Improvement costs incurred by Company.
B. A semi-annual grant equal to 100% of the property taxes collected
by the City (excluding Non-TIF Collections as defined in paragraph 3.C.2 below)
from a party making improvements on the Property (a "Developer") pursuant to a
separate development agreement with City, reduced by any and all tax rebates
that the City is required to pay to the Developer pursuant to the terms of any
development agreement with such Developer. For purposes of illustration only, if
an agreement between City and a Developer provides for rebatement of 50% of
qualifying property taxes for a period of five years, then Company would receive
a grant equal to the remaining 50% of qualifying property taxes in each year of
such period. No grant with respect to such Developer's project shall be made
to Company before a property tax rebate is first paid to the Developer. At the
end of the Developer's tax rebatement period, City will grant to Company 100%
of property tax rebates allowable until Company has been repaid pursuant to
paragraph 31 below. For purposes of this paragraph, the term "Developer" may
include Company with respect to improvements made on the Property other than
the improvements that are the subject of this Agreement.
C. With respect to any taxable improvements ("Non-Qualifying
Improvements") constructed on the Property that are not subject to a separate
development agreement between the City and the owner-builder of the Non-
Qualifying Improvements, a semi-annual grant equal to 100% (with the
exceptions noted below) of the property tax capable of rebatement, if not for the
non-qualifying character of the improvements, starting in "Year One" and
continuing thereafter until Company has been repaid pursuant to paragraph 3.F
below. For purposes of illustration, a "Non-Qualifying Improvement" means,
generally, an improvement of a type that is not eligible for property tax rebates or
similar incentives, such as improvements for a retail business.
1 . "Year One" shall be the first year for which the assessment is
based upon the partial or completed value of the Non-Qualifying
Improvements, but not a prior year for which the assessment is
based solely upon the value of the land.
2. The above-described 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 (collectively, "Non-TIF
Collections").
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D. Rebates are payable in respect of a given year only to the extent
that general property taxes that are due and owing for such year have actually
been paid. The City will pay rebates semi-annually.
E. In respect of any grant amount that is determined, payment shall
be made within 30 days following the tax installment payment due date, provided
that the tax installment was actually paid.
F. Notwithstanding anything to the contrary in this Section 3, in no
event will the cumulative amount of grants payable by City to Company exceed
the total of Street Improvement costs incurred by Company as documented to
City's reasonable satisfaction plus interest on such costs at the rate of 7% per
annum, commencing on the date that Company made payment of such costs,
and continuing until grants paid to Company by City equal such costs plus
interest.
G. In addition to the grants provided for in this Section 3, City also
agrees to apply for and to exercise reasonable efforts to obtain RISE funding
from the State of Iowa and any other grant monies that may be available to
assist in construction of the Street Improvements.
4. 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.
5. 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 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.
6. 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 Deer Creek Development, LLC, 643 Griffith
Road, Waterloo, Iowa 50701 , facsimile number 319-234-1225, Attention: Harold
Youngblut / Richard Morris.
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.
7. 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.
8. 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.
9. 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.
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10. 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.
11. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, grantees or transferees,
and legal representatives.
12. 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.
13. 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.
14. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement as of the date first set forth above.
CITY OF WATERLOO, IOWA DEER CREEK DEVELOPMENT, LLC
By: ✓ -
Timothy J. Mayor Title:
Attest:-'
Nanc Ecke , City Clerk
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EXHIBIT "A"
Legal Description of Property to be Improved