HomeMy WebLinkAboutCedar Valley Restoration and Development - Development Agreement - 12/12/2005 1.,I 'i, as
DEVELOPMENT AGREEMENT
WATER STREET CONDOMINIUMS AND ROW HOUSES PROJECT
This Development Agreement (the "Agreement') is made and entered into as of
, )Peem (Gcs f:-- , 2005, by and between the City of Waterloo, Iowa, an Iowa
municipal corporation ("City"), and Cedar Valley Restoration and Development, an Iowa
limited liability company ("CVRD").
RECITALS
A. The City, acting under the authorization of Iowa Code Chapter 403 (the "Urban
Renewal Act') and in furtherance of the objectives of the Urban Renewal Act, has
undertaken a program for the clearance and reconstruction or rehabilitation of
certain areas in the City.
B. The City has approved and adopted the Downtown Waterloo Riverfront Urban
Renewal and Redevelopment Plan, as amended (the"Urban Renewal Plan"),which
was filed August 21, 2003 in the office of the Recorder of Black Hawk County, Iowa,
as Doc. No. 2004-06435. The Urban Renewal Plan permits the City to respond to
development opportunities as and when they may appear.
C. CVRD is in the business of residential and mixed-use development and construction
and will design, build, and market a Project (as hereinafter defined) consisting of
residential and mixed-use development as described in concept in Exhibit B
attached hereto. The Project will be located on the property (the "Property")
described on Exhibit A attached hereto, which is a site consisting of approximately
2.9 acres generally bounded by Sycamore Street, Water Street, 8th Street, and the
Union Pacific railroad tracks. The Property is within the area covered by the Urban
Renewal Plan and is within the bounds of an enterprise zone established by the City
and certified by the State of Iowa pursuant to Iowa Code Chapter 15E.
D. The City has determined that the Project is consistent with and authorized by the
Urban Renewal Plan and all applicable State and Federal laws.
E. The City will be responsible for the design and construction of Public Improvements
(as hereinafter defined) adjacent to the Property, consisting of streetscape
improvements to Sycamore Street from 4th Street to 8th Street, as more completely
described in Sections 5.4 to 5.7 herein, and RiverLoop improvements from 6th Street
to 8th Street, as more completely described in Sections 5.8 to 5.10 herein. The City
will design and construct Public Improvements to the extent set forth herein and on
the basis of the extent of actions taken by CVRD toward development of the
Project.
F. The City is entering into this Agreement to induce CVRD to develop and construct
the Project, and CVRD is willing to develop the Property for and in accordance with
the uses specified in the Urban Renewal Plan and in accordance with this
Agreement by constructing the Project.
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G. The public purposes that the City wishes to promote and achieve by participating in
this Agreement include, without limitation, the development of the community and
the City's general business base, expansion of the City's tax base, the creation of
jobs, the general public benefit, including the improvement of the health, safety and
welfare of the City and its residents, the elimination of blight and blighted areas, and
the elimination of factors that impair and/or arrest sound community growth. The
action of the City herein is intended to provide an impetus to economic development
and to continue promotion of the rebirth of its downtown area.
H. The foregoing recitals are intended to be descriptive and not substantive unless
otherwise stated below.
TERMS AND CONDITIONS
In consideration of the foregoing recitals, the mutual covenants and promises
contained herein, and for other consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree, covenant, and contract as follows:
ARTICLE I
PROJECT DESCRIPTION, SCHEDULING, AND PLAN APPROVAL.
1 .1 DEFINITIONS: Throughout this Agreement and the recitals set forth above, the
following terms shall have the meanings ascribed to them as set forth below.
A. Building Sites: Areas of the Property set aside for corresponding Building
Phases (defined below) of the Project. The precise areas and dimensions
shall be as approved by the DBMT as part of the Project Master Plan
documents approval process prior to the City's approval of the initial Project
Subdivision Plat.
B. Construction Documents: Those documents in which the Design
Development Documents are refined to include all detailed final working
drawings and specifications.
C. Design/Build Management Team: A Water Street Design/Build Management
Team ("DBMT") will be organized to bring together local public and private
interests to facilitate and oversee the development of the Project and Public
Improvements. The DBMT shall consist of representatives of those entities
listed on the attached Exhibit D.
D. Design Development Documents: A set of architectural drawings consistent
with the approved Schematic Design Documents.
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E. Development Timetable: The comprehensive detailed construction schedule
attached as Exhibit C, with respect to which the parties shall use their best
efforts to adhere, subject to Unavoidable Delays.
F. Environmental Conditions: The presence of any materials, substances or
conditions which are "hazardous" or"toxic" as those terms are defined in any
environmental laws and regulations adopted by any governmental body
which are applicable to the Property as of the date of this Agreement.
G. Environmental Assessments: Certain studies, evaluations and reports,
detailed herein, concerning the Environmental Conditions of the Property.
H. Prosect: The Project to be located on the Property is comprised of residential
condominiums, row homes, and mixed-use structures. The Project is Phase
I of a greater residential and mixed-use project that will extend eastward
along the Cedar River; these phases are referred to as Phases II, III and IV
(each separate phase is a "Building Phase"). The Phase I Project consists
of:
Phase IA: The adaptive reuse of the existing building located at
910 Sycamore Street. The reuse will consist of
approximately 5 rental and/or condominiums units at no
less than 700 square feet per unit or some combination
of rental or condominium units to be determined by the
City and CVRD.
Phase IB: Approximately 4 condominiums or town homes located
on the riverfront at no less than 1 ,200 square feet per
unit.
Additional Some combination of rental units, condominiums or
Phase I town homes, or mixed-use structures to be determined
Development by the City and CVRD. The concept shown on Exhibit B
is illustrative only and may change according to market
conditions and design approval by the DBMT.
Each Building Phase will include all associated parking and circulation
facilities and other amenities necessary to support such phase of completed
development, as shown on Exhibit B.
I. Project Documents: The Schematic Design Documents, Design
Development Documents, and the Construction Documents, including any
amendments and modifications thereto.
J. Public Improvements: The Public Improvements as described in concept in
Section 5.4 to Section 5.10 of this Agreement.
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K. Recordable Memorandum: One or more written agreements between the
City and CVRD which sets forth in memorandum form suitable for filing and
recording such of the terms and agreements of the parties thereto as they
may mutually determine.
L. Schematic Design Documents: The drawings and written descriptions which
establish the design concepts for the Project, included in Exhibit B.
M. Subdivision Plat: The final plat of subdivision of the Property to be called
"Water Street Condominiums and Row Houses" comprised of the real estate
shown as filed in the office of the Recorder of Black Hawk County, Iowa.
N. Management and Maintenance Agreement: An agreement between the City
and an entity that will be responsible for the maintenance of the Public
Improvements.
O. Unavoidable Delays: Act of God, adverse weather conditions that could not
be reasonably anticipated and that had an adverse effect on scheduled
construction, casualties, war, embargo, riots, strikes, unavailability of
materials (but not failure of a party to pay for such materials), litigation
commenced by third persons (including litigation seeking to enjoin the ability
of a party to act), and all other acts or omissions, causes or events which
are, with respect to a party, beyond that party's control.
P. Project Master Plan: A site plan drawing for the Property depicting the
location and types of all proposed dwelling units and attendant improvements
customarily associated with residential development including, but not limited
to parking and circulation. The concept plan shown on Exhibit B is illustrative
only and may change according to market conditions and as approved by the
DBMT.
1 .2 EXHIBITS: The following Exhibits are attached hereto and by reference made a
part of this Agreement:
Exhibit A General Property Area
Exhibit B Schematic Project Plan
Exhibit C Development Timetable
Exhibit D Water Street Design/Build Management Team Members
Exhibit E RiverLoop Schematic Design
Exhibit F Tax Increment Financing Rebate Schedule
1 .3 DESIGN DEVELOPMENT DOCUMENTS: The Schematic Design Documents
represent the agreed-upon intended development and shall serve as the baseline
for the Design Development Documents. Upon the execution of this Agreement,
and until the approval or comment (as prescribed herein) by the DBMT of the
Design Development Documents, CVRD will keep the DBMT advised of proposed
changes from the Schematic Design Documents. The DBMT may also propose
changes to the Schematic Design Documents. None of the parties may invoke a
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change from the Schematic Design Documents over the objection of another party.
Until the DBMT gives its final comments or approval with respect to the final Design
Development Documents, CVRD shall report to the DBMT any proposed changes
from the Schematic Design Documents within fourteen (14) days of the change. If
the DBMT so requests in writing, CVRD, shall supply to the DBMT the design
documents in process that relate to the proposed changes from the Schematic
Design Documents. The DBMT may at any time review design documents in
process at CVRD's place of business, and CVRD will cooperate in any such
reviews. The DBMT agrees to advise CVRD, in writing, of any formal objections to
the design documents in process, so as to facilitate a more efficient and effective
completion of the Design Development Documents.
CVRD, as the designing party, will provide to the DBMT the proposed final Design
Development Documents for the Project for review and approval of OR review and
comment on the Project by the DBMT, as consistent with the Schematic Design
Documents and any mutually approved changes thereto. In order to provide
sufficient time to coordinate meeting schedules with all DBMT members and other
interested parties, CVRD shall provide a fourteen (14) day advanced notice to the
DBMT of its intent to submit final Design Development Documents to the DBMT.
The DBMT shall review the proposed final Design Development Documents so
submitted for conformance to the Schematic Design Documents within fourteen (14)
days of the date on which such materials are submitted by CVRD. If the DBMT
finds the proposed Design Development Documents submitted are in conformance
with the approved Schematic Design Documents and this Agreement and that all
changes from the Schematic Design Documents have been completed, the DBMT
shall cause one copy of them to be executed by its appropriate official so indicating
and to be returned to CVRD within such period. A second set shall be maintained
on file with the DBMT.
If the DBMT finds that the materials submitted as to the Project are not in
conformance with the Schematic Design Documents, and thus declines to approve
them, it shall provide to CVRD within such fourteen (14) day period a signed letter
indicating with reasonable specificity the areas in which the DBMT believes there is
nonconformance and shall also indicate such adjustments the DBMT believes are
necessary to make them conform to the Schematic Design Documents. CVRD may
then submit such revisions to the proposed Design Development Documents as it
deems necessary to address the objections of the DBMT (in which case the DBMT
must respond within fourteen (14) days after receipt of such revisions in the manner
indicated above). This process and requirements of timing shall continue until the
Design Development Documents conform to the Schematic Design Documents and
any mutually approved amendments thereto, except that after the initial submittal,
CVRD shall not be required to provide advanced notice of additional submittals.
Failure to prepare and submit Design Development Documents that conform to the
Schematic Design Documents and any mutually approved amendments thereto
shall be a default of this Agreement, provided that the DBMT shall not withhold its
approval of Design Development Documents that substantially conform to the
Schematic Design Documents. If the DBMT fails to respond within any of the
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aforesaid fourteen (14) day periods, the proposed Design Development Documents
so submitted shall be deemed approved and the DBMT shall, upon request,
execute a certificate of approval, but failure to receive the certificate shall not
preclude a designing party from commencing preparation of the Construction
Documents.
Prior to action by the DBMT on the Design Development Documents or changes to
the Schematic Design Documents, some or all of the members of the DBMT may
review the plans and documents submitted by CVRD with affected property owners
and occupants and seek their comments, concerns and suggestions. For purposes
of this paragraph persons "affected" means any person owning or occupying real
property that is located within or abuts the Property or additional areas of real
property that in the future are made subject to this Agreement, or that abuts any
street or portion of a street which abuts the Property or such additional real
property.
1 .4 CONSTRUCTION DOCUMENTS: CONSTRUCTION DOCUMENTS: The Design
Development Documents shall serve as the baseline for the Construction
Documents. From the completion of the Design Development Documents until the
completion of the final Construction Documents, CVRD will keep the DBMT advised
of all material changes from the Design Development Documents. The DBMT may
also propose changes from the Design Development Documents. The DBMT may
at any time and at its own expense review and copy the Construction Documents in
process at the designing party's place of business and that designing party will
cooperate in any such reviews.
Prior to making application for a building permit or undertaking any construction of
the Project, CVRD will provide to the DBMT the proposed final Construction
Documents. The DBMT shall review the proposed final Construction Documents so
submitted for conformance to the Design Development Documents following the
same procedures and time frames prescribed in Section 1.3, above, for the review
and approval of the Design Development Documents.
1.5 CONSTRUCTION PROCEDURES: The DBMT shall have the ongoing right, at its
expense, to inspect the Project during construction for compliance with the
Construction Documents, and all parties shall cooperate with such inspection.
CVRD will substantially comply with the respective safety programs of the DBMT
participants and uniformly implement such programs with regard to the Project.
During the course of construction, CVRD will grant to the City and any public utility
company, as may be appropriate, the right to enter the Project site at all reasonable
times for the purpose of reconstructing, maintaining, repairing, or servicing the
public utilities located within and upon the Project site.
The parties, in coming upon the Project site, will not unreasonably interfere with the
progress of construction as a result of such inspection. No compensation shall be
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payable nor shall any charge be made in any form by any party for the access
provided for in this section.
1 .6 DEVELOPMENT TIMETABLE: The Development Timetable is described in Exhibit
C.
1 .7 ENVIRONMENTAL ASSESSMENTS: The City has provided to CVRD a copy of a
Phase I Environmental Assessment and a Phase II Environmental Assessment
report performed by Howard R. Green Company. During the development period,
CVRD will not contaminate the soil and all construction practices will adhere to the
NFR standards of approval. Any other site information, including surveys and soil
borings deemed necessary by CVRD, will be furnished or obtained by CVRD at its
sole expense.
1 .8 LAND TRANSFER AGREEMENT: Prior to performing any site development work,
CVRD shall enter into an agreement (the "Land Transfer Agreement") with the City
for transfer of the entire Property. If the parties fail to enter into a Land Transfer
Agreement within the time period shown on Exhibit C attached hereto, then the
development timetable will be adjusted accordingly.
A. The terms and conditions of the Land Transfer Agreement shall include the
following in addition to other considerations and terms that are mutually
acceptable to both parties, including a description of the number and type of
dwelling units to be constructed in a particular Building Phase:
i. Indemnification. CVRD shall assume all risk and responsibility
associated with the ownership of the Property, and agrees to
indemnify the City, its contractors, subcontractors, agents, employees
and officials from all losses, damages and personal injuries arising
from CVRD's ownership of the Property. CVRD shall assume all risk
and responsibility and agrees to indemnify the City, its contractors,
subcontractors, agents, employees and officials for all losses,
damages and personal injuries incurred by reason of the negligence
or willful misconduct of CVRD, or any of its contractors,
subcontractors, agents or employees, in the performance of the site
development work on the Property.
ii. Termination. In the event the City or CVRD discovers or identifies any
previously undisclosed Environmental Condition on the Property,
CVRD shall either agree to remediate or otherwise resolve the
Environmental Condition at its own expense within a time period
acceptable to the parties, or terminate this Agreement and the Land
Transfer Agreement as they relate to the particular Building Site
affected by the Environmental Condition.
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ARTICLE II
ACKNOWLEDGMENT OF EXISTING CONDITIONS AND CIRCUMSTANCES
2.1 The City and CVRD shall have properly approved, authorized, and executed an
original counterpart of this Agreement prior to being bound to their individual
undertakings and obligations. CVRD represents and warrants to the City that this
Agreement has been duly approved by its governing body, which has by proper
proceedings authorized the execution and delivery of this Agreement and the
performance of each and every undertaking of such party herein contained.
2.2 The area of the Property as shown in Exhibit A is approximate and subject to
adjustment based upon further refinement of the Project site plan. The final
dimensions and area of the Property shall be as mutually agreed to by the City and
CVRD at the time the Subdivision Plat is prepared and approved.
2.3 A sanitary sewer main is located on the Property and future plans exist to reroute
the line that will affect the development of the Project. Prior to construction of the
condominium structures, CVRD shall grant the City an easement for relocation and
the City shall relocate the sewer line.
2.4 The City represents and warrants, as of the date of this Agreement, that it has
reviewed the Environmental Assessments and, to the best of its knowledge after
due inquiry, there are no Environmental Conditions affecting the Property not
disclosed in the Environmental Assessments.
2.5 CVRD shall have the right to assign all or part of its rights, duties and obligations
under this Agreement to a newly formed development entity whose purpose shall be
to develop the Project, provided that CVRD shall remain obligated under this
Agreement as those rights, duties and obligations not assigned, and its assignee
shall consent to also be liable to the City under the terms of this Agreement
applicable to duties and obligations assigned by CVRD.
ARTICLE III
DEVELOPMENT OBLIGATIONS AND RESPONSIBILITIES OF CVRD
The following set forth the intentions, undertakings, obligations, and responsibilities of
CVRD under this Agreement to be performed in accordance with the Development
Timetable contained in Exhibit C:
3.1 CVRD shall prepare a preliminary master plan for the Property, including phasing of
private and public improvements, acceptable to the DBMT. The master plan may
be revised with approval from the DBMT.
3.2 CVRD shall provide the City with condominium preliminary plat and documents (to
include common area usage and maintenance, exterior maintenance, parking,
drive-way cross-easements, etc.) prior to the land grant from the City.
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3.3 CVRD and the City shall enter into a Land Transfer Agreement for the entire
Property, in accordance with section 1.8 herein.
3.4 CVRD shall prepare Design Development Documents for Phase IA in accordance
with Section 1.3 herein.
3.5 CVRD shall complete Construction Documents for Phase IA in accordance with
Section 1.4 herein.
3.6 CVRD shall receive a commitment for construction and permanent financing on
terms acceptable to it, no less than 30 days prior to construction, and promptly
deliver a copy of same to the City.
3.7 CVRD shall commence and conclude construction of Phase IA by December 31,
2006 in accordance with the Construction Documents as approved by the DBMT.
3.8 CVRD will prepare a condominium plat and related covenants for Phase IA of the
Project for review by the City at least 21 days prior to recording.
3.9 CVRD and the City have estimated that the assessed value of that part of the
Property designated as Phase IA will increase by at least $1,000,000 as a result of
the completed Phase IA improvements. In order to assure full funding for Sycamore
Street streetscape improvements by the City, CVRD agrees that it will enter a
minimum assessment agreement fixing the assessed value of the Phase IA property
and that CVRD will pay when due all taxes and assessments, general or special,
and all other charges whatsoever levied upon or assessed or placed against the
such part of the Property. CVRD further agrees that prior to the date set forth in the
minimum assessment agreement it will not seek or cause a reduction in the taxable
valuation for such part of the Property, through:
(i) willful destruction of the Property, the improvements thereon, 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.
The obligation of CVRD under this Section shall commence with a tax year to be
determined by the County Assessor and continue through the term of any obligation
of the City for repayment of funds borrowed for streetscape improvements, which
term shall not exceed ten (10) years.
3.10 CVRD shall begin marketing Phase IB, the condominium structures.
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3.11 CVRD shall begin Design Development Documents for Phase IB in accordance with
Section 1.3 herein.
3.12 CVRD shall begin Construction Documents and commence construction on Phase
IB when no less than half of the condominium units (i.e., two units) are sold.
3.13 CVRD shall commence and complete construction of Phase IB by December 31 ,
2007 in accordance with the Construction Documents as approved by the DBMT.
3.14 CVRD will prepare a condominium plat and related covenants for Phase IB of the
Project for review by the City at least 21 days prior to recording.
3.15 CVRD and the City have estimated that the assessed value of that part of the
Property designated as Phase IB will increase by at least $1 ,000,000 as a result of
the completed Phase IB improvements. In order to assure full funding for Sycamore
Street streetscape improvements by the City, CVRD agrees that it will enter a
minimum assessment agreement fixing the assessed value of the Phase IB property
and that CVRD will pay when due all taxes and assessments, general or special,
and all other charges whatsoever levied upon or assessed or placed against the
such part of the Property. CVRD further agrees that prior to the date set forth in the
minimum assessment agreement it will not seek or cause a reduction in the taxable
valuation for such part of the Property, through:
(i) willful destruction of the Property, the improvements thereon, 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.
The obligation of CVRD under this Section shall commence with a tax year to be
determined by the County Assessor and continue through the term of any obligation
of the City for repayment of funds borrowed for streetscape improvements, which
term shall not exceed ten (10) years.
3.16 CVRD shall progress with additional Phase I development at a rate of six units per
year until Phase I construction is complete. For each new development phase,
CVRD shall enter into a minimum assessment agreementwith the City substantially
similar in content and purpose as the agreements described in Sections 3.9 and
3.15 above. The failure to meet this minimum development requirement will require
the authorization of the City Council to progress with further development. Failure
to receive authorization from the City Council will result in the transfer of the
undeveloped Building Sites back to the City pursuant to the terms of the Land
Transfer Agreement.
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3.17 CVRD will prepare a condominium plat and related covenants for each additional
Phase of the Project for review by the City at least 21 days prior to recording.
3.18 CVRD shall provide a cross easement for the future relocation of the sanitary sewer
prior to commencing construction on the condominium structures. The sanitary
sewer will be relocated by the City by June 30, 2006 pursuant to Section 5.3.
3.19 CVRD shall join in and consent to the creation of the Water Street Self-Supported
Municipal Improvement District as more fully set forth in Article VII.
3.20 In the Land Transfer Agreement or by separate instrument executed concurrently
therewith, CVRD shall grant to the City the right of first refusal to purchase the
Property and all improvements thereon in the event of CVRD's default in terms of
this Agreement, at the same price as is offered by a bona fide purchaser; it being
understood that the right of first refusal does not apply to the individual
condominium units developed and created hereafter, but rather in the event the
condominium is removed from the provisions of the Iowa Horizontal Property Act
and the owners seek to sell the land and all improvements thereon. The right shall
be documented in a recordable memorandum in a form agreeable to the parties,
and shall constitute a covenant running with the land.
3.21 CVRD shall fairly prorate the cost of utility infrastructure to the appropriate parcel of
Building Site, subject to City Council approval.
3.22 CVRD shall not mortgage any parcel or Building Site until CVRD has shown proof of
financial capacity to develop the site. Any another encumbrances to the property
must be approved in writing by the City as allocation is allowed in Section 3.21 .
3.23 CVRD shall adhere to any standards and requirements promulgated by the Iowa
Department of Natural Resources or Army Corps of Engineers.
3.24 CVRD shall not remove the elm tree located at 820 Sycamore Street. Any changes
are subject to DBMT approval.
3.25 CVRD shall gain approval from the DBMT prior to selling any undeveloped portion
of the Property to a third party. If CVRD sells any undeveloped portion of the
Property to a third party, the Project located on the sold property will be subject to
DBMT process and approval. The Project on the sold property will qualify towards
CVRD's minimum performance standards, as set forth in Section 3.16 herein.
3.26 CVRD shall provide the final plat of the Property, called Water Street Row Homes
and Condominiums, to the City. The plat shall include within the owner's dedication
the following:
A. Appropriate easements for access by pedestrians and vehicles and for utilit�
and drainage purposes. Public access to the riverfront will be provided on 6
Street and 8t Street. Access to utilities and the pump station will be
provided on 7th Street.
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B. Appropriate easement for the sewer line relocation.
C. A set of restrictive covenants, including those concerning use and
maintenance of the Property by the owners, and creating and providing for
the organization and operation of a Water Street Owners' Association to
contract for the management and maintenance of the Public Improvements
described in this Agreement and publicly utilized areas within the properties
and rights-of-ways covered under the Water Street Development Agreement
on an ongoing basis. CVRD shall submit a draft of the restrictive covenants
to the City for its review and comment at least 21 days prior to approving the
Subdivision Plat.
3.27 CVRD shall pay all reasonable costs associated with the subdivision process.
3.28 CVRD shall apply all tax rebates that it receives pursuant to Exhibit F toward
recovery of onsite improvement and infrastructure costs and expenses.
ARTICLE IV
CONDITIONS PRECEDENT TO PERFORMANCE BY CVRD
The performance by CVRD of its obligations and responsibilities under the preceding
Article III are made expressly subject to the following conditions being achieved in
accordance with the Development Timetable contained in Exhibit C:
4.1 The City and CVRD entering into a Land Transfer Agreement for the entire
Property.
4.2 The City vacating and granting the segments of the existing rights-of-way of 71h
Street that comprise the remainder of the Property. If procedural delays occur, the
City will grant an easement allowing CVRD use of the public right of way.
4.3 CVRD receiving a commitment for construction and permanent financing on terms
acceptable to it no less than 30 days prior to construction for each development
phase.
4.4 CVRD preparing a preliminary master plan forthe entire Property, including phasing
of private and public improvements, acceptable to the DBMT.
4.5 The City and CVRD shall agree that adequate water supply, sanitary sewer
capacity, and off-site stormwater drainage exist at the Property.
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ARTICLE V
OBLIGATIONS AND RESPONSIBILITIES OF CITY TO CVRD
The following set forth the intentions, undertakings, obligations, and responsibilities of the
City under this Agreement in accordance with the Development Timetable contained in
Exhibit C:
5.1 The City shall assemble the lands that comprise the Property as described in Exhibit
A, including:
A. Purchasing all the Property as described in Exhibit A and demolishing all of
the buildings except the reuse structures located at 910 Sycamore Street
and at 820 Sycamore Street.
B. Vacating segments of the existing rights-of-way of 7th Street that comprise
the remainder of the Property.
5.2 Provided that CVRD notifies the City in writing within twelve (12) months of
conveyance of the Property, the City shall demolish the structure at 820 Sycamore
Street. Prior to the City demolishing the building, the City must approve CVRD's
plan to reuse the site.
5.3 The City shall relocate the sanitary sewer by June 30, 2006.
5.4 The City shall engage a qualified firm to design streetscape improvements to the
Sycamore Street corridor between East 4th Street and East 11 th Street.
5.5 The City shall complete Design Development Documents for Sycamore Street
streetscape between East 4th Street and East 11th Street acceptable to the DBMT.
5.6 The City shall complete Construction Documents for Sycamore Street streetscape
between East 6th Street and East 8th Street acceptable to the DBMT.
5.7 The City shall complete streetscape improvements at a finished level for Sycamore
Street between East 6th Street and East 8th Street acceptable to the DBMT.
Improvements will be made at the level possible from the tax increment financing
revenues identified for Sycamore Street streetscape improvements, as set forth in
Section 5.12 herein. The City shall aspire to complete the streetscape
improvements so as to coincide with CVRD's completion of Phase IB, but in any
event the City shall commence construction no later than October 31, 2007.
5.8 The City shall complete Design Development Documents for Waterloo RiverLoop
between East 4th Street and East 8th Street acceptable to the DBMT.
5.9 The City shall complete the Waterloo RiverLoop Construction Documents between
East 6th Street and East 8th Street acceptable to the DBMT.
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5.10 The City shall complete Waterloo RiverLoop improvements at a finished level
between East 6th Street and East 8th Street acceptable to the DBMT.
5.11 The City shall continue the enterprise zone, while still authorized by statute, for the
benefit and duration of the Project. The City shall cooperate with and assist CVRD
in its application for all enterprise zone benefits, if any.
5.12 The City shall cooperate with CVRD in applying for state and federal funds related
to water-level improvements, i.e., developing water-level access.
5.13 The City shall dedicate a portion of the tax increment financing revenues from the
Project as real estate tax rebates for ten (10) years, according to the schedule and
upon the terms set forth in Exhibit F.
5.14 After satisfying its obligations under Section 5.13 above, the City shall use the
remaining portions of the tax increment financing revenues for Phase IA and Phase
IB to fund streetscape improvement to Sycamore Street, as set forth in Section 5.4
to 5.7, to a maximum of $150,000.
5.15 After satisfying its obligations under Sections 5.13 and 5.14 above, the City shall
use the remaining portions of the tax increment financing revenues for additional
development phases within Phase I and to fund property acquisition for Phases II,
III and IV.
5.16 Reserved.
5.17 At the City's sole discretion, exercised in good faith and taking account of the
design, character, and quality of the work completed by CVRD on earlier Project
phases, the City shall grant CVRD a first right of refusal to develop future phases of
the riverfront housing project in the area bounded by East 6th Street, Sycamore
Street, East 11 th Street, and the Cedar River. Said right of refusal may be exercised
at any time on or before the date that is ten (10) years after the date of this
Agreement, which period may be extended for up to an additional five (5) years
upon written request by CVRD if the City, at its sole discretion exercised in good
faith, is satisfied that CVRD has performed its duties under this Agreement and has
completed or is developing riverfront housing that is consistent in design, character,
and quality with the objectives of the Urban Renewal Plan.
5.18 The City shall assist in gaining cooperation from the Iowa Department of Natural
Resources and Army Corps of Engineers to facilitate timely completion of the
Project by CVRD.
5.19 The City shall permit CVRD and future owners and occupants of riverfront housing
in the Project area to have reasonable rights of access to the flood control levee in
common with other members of the general public, and the City shall not deny such
access except temporarily in connection with repair, maintenance, or improvement
work on the levee. The City shall also permit CVRD and the future owners and
occupants of riverfront housing to aesthetically maintain the flood control levee in a
CVRD Development Agreement Page 14 of 29
manner consistent with the residential character of riverfront housing in the Project
area.
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE BY CITY FOR LAND GRANT
The performance by the City of Waterloo of its obligations and responsibilities under the
preceding Article V are made expressly subject to the following conditions being achieved
in accordance with the Development Timetable contained in Exhibit C:
6.1 CVRD shall prepare the plat for the entire Property and submit to the City.
6.2 CVRD shall provide the City with condominium preliminary plat and documents (to
include common area usage and maintenance, exterior maintenance, parking,
drive-way cross-easements, etc.) prior to the land grant from the City.
6.3 CVRD shall prepare a detailed landscape plan for 7th Street and 8th Street.
6.4 CVRD shall deliver to the City written evidence of the financing commitment
required by Section 3.6 above. The timeline in Exhibit C will be modified to
accommodate changes associated with financing and/or the land grant.
ARTICLE VII
SELF-SUPPORTED MUNICIPAL IMPROVEMENT DISTRICT
7.1 The City shall initiate the establishment of a Water Street Self-Supported Municipal
Improvement District (SSMID) pursuant to Iowa Code Chapter 386 for the purpose
of providing special services to the CVRD Project.
7.2 The City and CVRD shall agree that the boundaries of the SSMID will be Sycamore
Street, Water Street, 8th Street and the Union Pacific railroad tracks, as shown on
Exhibit A (the "SSMID Area").
7.3 The tax revenues generated from the SSMID Area shall be used by the City solely
to contract with the Water Street Owners' Association for the ongoing maintenance
of public amenities and facilities located within the boundaries of the SSMID Area.
These public amenities and facilities are defined by the SSMID document and
include, but are not limited to, the landscaping, grass mowing, snow removal,
security, and general high level care and maintenance. In addition, the following
public amenities and facilities, as defined in the SSMID document and this
Agreement, also shall be included: streetscaping for 7th and 8th Streets and the
associated landscaping, grass mowing, snow removal, and general high level care
and maintenance.
CVRD Development Agreement Page 15 of 29
7.4 The City shall retain its existing obligations to maintain the embankment, and
SSMID tax revenues shall not be used for this purpose.
7.5 As public and private Project elements are phased in over time, CVRD agrees to
amend the SSMID as necessary to ensure all public amenities and facilities can be
adequately maintained over time.
ARTICLE VIII
DEFAULT, REMEDIES AND TERMINATION
8.1 EVENTS OF DEFAULT: Any one or more of the following events constitutes an
Event of Default:
A. A party to this Agreement fails to perform any obligation owing by such party
under this Agreement within thirty (30) days after receipt of written notice
thereof from the party to whom such obligation is owing; or
B. A party's interest in this Agreement, the Property, the Project, the Public
Improvements, or any part thereof is levied on under execution or other legal
process, or any petition is filed by or against a party to declare a party
bankrupt or a debtor under any insolvency law or to delay, reduce or modify
a party's debts or obligations, or any petition is filed or other action taken to
reorganize or modify a party's capital structure, or a party is declared
insolvent according to law, or any assignment of a party's property is made
for the benefit of creditors, or a trustee or receiver is appointed for a party or
its property, provided that no levy, execution, legal process or petition filed
against a party shall constitute an Event of Default if the party vigorously
contests same by appropriate proceedings and such levy, execution, legal
process or petition is removed, dismissed or vacated within one hundred
twenty (120) days from the date of its creation, service or filing; or
8.2 NOTICE OF DEFAULT: Notice of the occurrence of an Event of Default shall be
given to all parties to this Agreement in the manner specified in Section 8.4 hereof.
8.3 RIGHT TO CURE: Any party to this Agreement shall have the right to cure an Event
of Default arising under Section 9.1 hereof within seven (7) days of its occurrence
(or, if the act necessary to cure such Event of Default does not involve the payment
of money and cannot reasonably be cured within such seven (7) day period, the
defaulting party must commence such act within the seven (7) day period and
thereafter diligently proceed with such act, subject to Unavoidable Delays).
8.4 REMEDIES: Upon the failure of a party to cure an Event of Default, or if there is
any other dispute, claim, question or disagreement with respect to this Agreement, a
party may, upon written notice to the other, submit the matter for final determination
and settlement by arbitration administered by the American Arbitration Association
in accordance with the provisions of its Commercial Arbitration Rules and the
CVRD Development Agreement Page 16 of 29
Expedited Procedures thereunder, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall
be conducted in Waterloo, Iowa. All costs and expenses, including attorneys' fees,
of all parties incurred in any dispute which is determined and/or settled by arbitration
pursuant to this Section 8.4 shall be borne by the party determined to be liable in
respect of such dispute; provided, however, that if complete liability is not assessed
against only one party, the parties shall share the total costs in proportion to their
respective amounts of liability so determined. Except where clearly prevented by
the area in dispute, both parties agree to continue performing their respective
obligations under this Agreement while the dispute is being resolved.
As to any matter that is not submitted to arbitration as provided in the preceding
paragraph, a party may seek resolution of such matter in the Iowa District Court for
Black Hawk County, and in such action may exercise any and all remedies available
at law or in equity first to compel specific performance by the defaulting party of its
obligations hereunder, or if appropriate, to recover damages incurred by the party
seeking to pursue its remedies hereunder including, without limitation, all costs,
filing fees, arbitration fees, witness expense, and reasonable attorneys' fees.
Notwithstanding the foregoing, no party may initiate any action or proceeding to
terminate this Agreement or its obligations hereunder, except as provided in Section
8.5 below.
8.5 TERMINATION: This Agreement or the provisions of any part hereof may be
terminated only upon the occurrence of one or more of the following events:
A. All parties to this Agreement agree in writing to such termination, in whole or
in part; or
B. Any party to this Agreement is relieved or enjoined from performing of its
obligations, in whole or in part, by a judicial determination by any court of
competent jurisdiction, and all appeals therefrom shall have been
adjudicated or terminated; or
C. An Event of Default shall have occurred under subsection 8.1 .13. above and
the remaining parties to this Agreement shall agree to such termination.
The termination of this Agreement shall not preclude any party from exercising its
remedies under this Agreement to recover damages incurred by such party as a
result of such termination.
8.6 WAIVER OF DEFAULT: No failure or delay by a party to insist on specific
performance of any term of this Agreement or to exercise any right, power, or
remedy upon a breach of this Agreement shall constitute a waiver of such term or
such breach.
8.7 FORCE MAJEURE: If, by reason of the occurrence of any Unavoidable Delay, any
party to this Agreement is prevented from complying with any performance
requirement, condition, covenant or deadline (each a "Duty of Performance") stated
CVRD Development Agreement Page 17 of 29
herein, then while so prevented the Duty of Performance shall be suspended and
such party shall be relieved of the obligation of complying with the Duty of
Performance and shall not be liable for damages for failure to comply with it. Any
such Duty of Performance shall be deemed extended for as long as such party is so
prevented from complying with any Duty of Performance.
8.8 CUMULATIVE: Each right, power and remedy of a party provided for under this
Agreement shall be cumulative and concurrent and shall be in addition to every
other right, power or remedy provided for under this Agreement. The exercise or
beginning of the exercise by a party of any one or more of the rights, powers or
remedies provided for under this Agreement shall not preclude the concurrent or
later exercise by a party of any or all such other rights, powers or remedies.
ARTICLE IX
GENERAL PROVISIONS
9.1 ENTIRE AGREEMENT: This Agreement, including its Exhibits, contains the entire
agreement between the parties and supersedes all prior agreements or other
understandings, oral or written, not expressly retained herein. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors or assigns. This Agreement may be modified only by a
written amendment signed by all of the parties.
9.2 CONSENT: Except as otherwise specifically provided, whenever consent or
approval of the DBMT or any party to this Agreement is required under this
Agreement, such consent or approval shall not be unreasonably withheld, delayed
or conditioned, and DBMT decisions shall be made by majority vote. If any party
withholds, delays, or conditions any consent or approval, such party or the DBMT
shall, upon written request, deliver to the requesting party a written statement giving
the reasons therefor. If any party withholds, delays or conditions consent or
approval, any party may bring an action for specific performance, declaratory
judgment or other equitable relief. If the DBMT withholds, delays or conditions
consent or approval, whether because of voting deadlock among DBMT members
or otherwise, any party may appeal such action or inaction to a review committee
comprised of the mayor, city attorney, and community development director of the
City. Such review committee shall independently review the request for consent or
approval and shall be authorized to decide the matter on its own or may affirm the
decision of the DBMT. The review committee shall consider the matter and render
its decision within fourteen (14) days of receiving written notice of appeal. If the
appealing party is not satisfied with the decision of the review committee, it may
bring an action for specific performance, declaratory judgment, or other equitable
relief. In any court action authorized by this Section 9.2, all parties shall cooperate
in having any such action heard and determined by the court having jurisdiction as
expeditiously as possible. If the consent or approval of the DBMT or any party to
this Agreement is required under any provision of this Agreement and no time
CVRD Development Agreement Page 18 of 29
period is stated for giving such consent or approval, the giving or withholding of
such consent shall be within seven (7) days after requested.
A party to this Agreement shall be liable for damages for unreasonably withholding,
delaying or conditioning such party's consent or approval only if such party
withholds, delays or conditions its consent or approval:
A. To any document or instrument which conforms to the draft form of such
document or instrument which is attached to this Agreement as an Exhibit or
the form of which is attached as an exhibit to an Exhibit to this Agreement;
B. To any document or instrument or action which conforms to the criteria or
requirements for such document or instrument or action which is stated in
this Agreement or any document or instrument executed in connection with
this Agreement; or
C. To any change in the Schematic Design Documents or the Design
Development Documents which is necessary because of architectural or
engineering requirements for the Project or Public Improvements and which
is necessary to correct errors or omissions in such documents.
The damages for which a party may be liable under the prior paragraph if such parry
unreasonably withholds, delays or conditions such party's consent or approval shall
include, but not be limited to, the out-of-pocket costs and expenses, including
reasonable legal fees and court costs reasonably incurred by another party in
successfully bringing an action to enforce this Section or otherwise challenging the
unreasonable withholding, delaying or conditioning of approval of consent in any
escalation in construction costs. Any damages(including reasonable legal fees and
court costs) incurred by a party to this Agreement in successfully defending the
withholding, delaying or conditioning of consent or approval shall be reimbursed by
the unsuccessful challenging party.
9.3 NON-DISCRIMINATION: CVRD agrees that neither the Property nor any portion
thereof, shall be sold to, leased or used by any party in a manner to permit
discrimination or restriction on the basis of race, creed, ethnic origin or identity,
color, gender, religion, marital status, age, handicap or national origin, and that the
development of and construction and operations of the Project shall be in
compliance with all applicable laws, ordinances and regulations relating to
discrimination on any of the foregoing grounds.
9.4 NOTICES: Any notice required or permitted hereunder shall be in writing, signed by
the party giving the notice, and shall be deemed given when:
A. Hand delivered to the party to whom the notice is addressed,
B. Mailed by certified mail, return receipt requested, United States mail, postage
prepaid, or
CVRD Development Agreement Page 19 of 29
C. Delivered by overnight courier delivery service (i.e., Federal Express, UPS,
etc.), and addressed to the party at the address shown below:
To City: Mayor
City of Waterloo
715 Mulberry Street
Waterloo, Iowa 50703
With a copy to: City Attorney and Community Planning & Development
Director
City of Waterloo
715 Mulberry Street
Waterloo, Iowa 50703
To CVRD: David Deeds, President
Cedar Valley Restoration and Development
922 Mulberry St
Waterloo, Iowa 50703
With a copy to: Robert Dieter
Redfern, Mason, Dieter, Larson and Moore
415 Clay St
Cedar Falls, Iowa 50613
Any party may change the address to which notices shall be sent by notice given in
accordance with the terms of this Section.
9.5 COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
9.6 HEADINGS: Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
9.7 APPLICABLE LAW; WAIVER: This Agreement shall be governed by the laws of the
State of Iowa, and the sole and exclusive venue for any disputes arising out of this
Agreement shall be in the Iowa District Court for Black Hawk County, Iowa, or the
U.S. District Court for the Northern District of Iowa. A waiver of any part of this
Agreement shall be limited to that specific event and shall not be a waiver of the
entire Agreement, and a waiver of any default shall not be a waiver of any other or
subsequent default.
9.8 SEVERABILITY: Should any part of this Agreement be determined to be illegal,
invalid or otherwise unenforceable, then all such remaining parts not so affected by
such illegality, invalidity or unenforceability shall continue in full force and effect,
fully binding all parties, their respective heirs and assigns, as to such remaining
terms.
CVRD Development Agreement Page 20 of 29
9.9 ASSURANCE OF FURTHER ACTION. From time to time hereafter and without
further consideration, each of the parties to this Agreement shall execute and
deliver, or cause to be executed and delivered, such recordable memoranda, further
instruments, and agreements, and shall take such other actions, as any other party
may reasonably request in order to more effectively memorialize, confirm, and
effectuate the intentions, undertakings, and obligations contemplated by this
Agreement.
9.10 CODE COMPLIANCE. The Project shall be designed and constructed in full
compliance with all applicable federal, state and local laws and ordinances. Further,
CVRD agrees to follow all recommendations and requirements of the City Code and
the City Building Official and Fire Chief.
9.11 DISCLAIMER OF THIRD PARTY BENEFITS. The intentions, affirmations,
authorizations and agreements between the parties hereto as expressed herein are
approved solely by and between the parties hereto and no other; and provided
further, however, that neither and none of such intentions, affirmations,
authorizations or agreements may be relied upon by any person or entity, to such
entity or person's detriment, or for any reason whatsoever, whether third person or
otherwise. Any such reliance or purported reliance as a third party beneficiary to
this agreement or predicated upon any other relationship to any of the parties
hereto and each of them, whether real or alleged, is specifically disclaimed by the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Development
Agreement as of the date first set forth above.
THE CITY OF WATERLOO, IOWA
By: � r Attest: CJCo.
y MayorCity C rk
Ap 76ved Is to for
i
/ y Attorne
CVRD Development Agreement Page 21 of 29
CEDAR VALLEY RESTORATION and DEVELOPMENT
By: ,'� J �
David Deeds, President
CVRD Development Agreement Page 22 of 29
STATE OF IOWA )
ss.
BLACK HAWK COUNTY )
On this i day of D tywUkr , 2005, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared ,l ��J` Dtttj5, tomeknown
to be the identical person(s) named in and who executed the foregoing instrument and
acknowledged that he/she/they executed the same as his/her/their voluntary act and deed.
Lt,a -je
Notary Public in and fcVthe State of low
EXHIBIT A-1
GENERAL PROPERTY DESCRIPTION
A. Boundaries and Area: The Property boundaries and area are generally
described as follows, but may be modified subject to further refinement of the
designs for the Project and Public Improvements.
North: Sycamore Street, southerly right of way
South: Cedar River (City will own flood control levy)
East: 8th Street, westerly right of way
West: Union Pacific Railroad right of way
Area: approximately 2.9 acres
CVRD Development Agreement Page 23 of 29
Disposition Parcel No.2
All of Block 22 of the Original Plat of Waterloo East, as platted; and also all
that part of Block 1 of the Original Plat of Waterloo East that lies
Southeasterly of railroad; and that part of East 7th Street that lies between
Block 1 and Block 22 of the Original Plat of Waterloo East; all in the City of
Waterloo, Black Hawk County, Iowa.
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EXHIBIT A-2
PROPERTY MAP
The map below depicts the general boundaries of the Property, which may be modified
subject to further refinement of the designs for the Project and Public Improvements. In
addition, portions of the Property may be encumbered by utility easements, the final
locations and dimensions of which have yet to be determined.
(insert map)
CVRD Development Agreement Page 24 of 29
quest for Qualifications Eastside Riverfront Housing
Attachment 1: Phase I Redevelopment Site Map
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City of Waterloo, Iowa Page 6 of 16
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EXHIBIT B
SCHEMATIC PROJECT PLAN
(insert latest master plan from CVRD)
CVRD Development Agreement Page 25 of 29
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EXHIBIT C
DEVELOPMENT TIMETABLE
The following timetable represents the desired development schedule of both parties, and
both parties will use their best efforts to ensure compliance with the timetable. However, it
is hereby acknowledged and agreed that the timetable shall be modified if there are any
delays to the Land Transfer Agreement and the land conveyance. Both CVRD and the City
must agree and approve the resulting modification to the timetable.
(insert timeline chart)
CVRD Development Agreement Page 26 of 29
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EXHIBIT D
DESIGN/BUILD MANAGEMENT TEAM MEMBERS
Upon the execution of this Agreement, the following entities shall each appoint two
representatives to the CVRD Design/Build Management Team ("DBMT").
Representatives may be employees of or contractors to each entity. Each entity may
replace its representative at any time, although all entities will use their best efforts to
maintain consistency of representation on the DBMT throughout the duration of this
Agreement.
Members:
City of Waterloo: City Engineer, or representative
Director of Community Planning and Development, or representative
City Council member
Waterloo Development Corporation: Executive Director, or representative
Main Street Waterloo: Executive Director, or representative
Water Works: Director, or representative
With respect to Public Improvement projects, CVRD will be a voting member.
Advisory Role:
City consultants
CVRD Development Agreement Page 27 of 29
EXHIBIT E
RIVERLOOP SCHEMATIC DESIGN
(insert latest design from RiverLoop Design Team)
CVRD Development Agreement Page 28 of 29
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EXHIBIT F
TAX INCREMENT FINANCING REBATE SCHEDULE
Provided that CVRD has completed the improvements for a Building Phase and has
executed a minimum assessment agreement with respect to such Building Phase as set
forth in Article 111 of the Agreement, the City agrees to property tax rebates as follows:
Years 1-5
Unit owners will receive a rebate equal to 100% of the taxes paid on the first
20% of increment value as an incentive to purchase.
CVRD will receive a rebate equal to 75% of the taxes paid on the remaining 80%
of increment value as reimbursement for costs invested in site improvements and other
costs incurred for the benefit of the Project.
Years 6-10
CVRD will receive a rebate equal to 75% of the taxes paid on 100% of the
increment value as reimbursement for costs invested in site improvements and other
costs incurred for the benefit of the Project.
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 in which a rebate may be given ("Year 1")
shall be the first full year for which the assessment is based upon the completed value
of the Building Phase improvements and not a prior year for which the assessment is
based solely upon the value of the Property or upon the value of the Property and a
partial value of the Building Phase improvements due to partial completion of such
improvements or a partial tax year.
CVRD Development Agreement Page 29 of 29