HomeMy WebLinkAboutNCN Limited Company - Master Development Agreement - 12/5/2005 MASTER DEVELOPMENT AGREEMENT
This Master Development Agreement (the "Agreement") is made and entered
into as of 5 , 2005, by and between NCN, Limited Company (the
"Company"), and the City of Waterloo, Iowa (the "City").
WHEREAS, City considers economic development within the City a benefit to
the community and is willing for the overall good and welfare of the community to
provide financial incentives so as to encourage that goal, and
WHEREAS, Company is willing and able to renovate and develop a mixed use
commercial/residential building on real property (the "Property") located in the
Downtown Waterloo Urban Renewal and Redevelopment Plan, described as Parcel
8913-23-452-001 and 8913-23-452-006, and legally described on attached Exhibit "A".
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, Company and City agree as follows:
1. Phased Improvements. The Property has been made subject to a
horizontal property regime known as Westfield Lofts Condominium. Company has
made and agrees to make basic renovations to the building located upon the Property
to make it suitable for mixed commercial and residential use by persons who will
complete the buildout of each condominium unit (collectively, the "Improvements"). The
plans for each such development phase will be developed at one or more future dates.
The area covered by each separate phase, corresponding to one or more condominium
units, associated parking and storage areas, and the limited and general common
elements appurtenant to such unit(s), is a "Phase Area."
In connection with each separate phase, the owner of each Phase Area
(the "Developer") and the City agree to enter a development agreement supplemental
to this Agreement and to enter into a minimum assessment agreement as described in
Section 2 below. Improvements to the Property completed on or before December 31,
2007 will be eligible for the benefits provided for in this Agreement, and any part of the
Improvements not completed by said date shall not be eligible for said benefits.
1.1 Covenants Running with the Land. Company enters this Agreement on
behalf of and for the benefit of each separate party that may hereafter be a "Developer"
as defined above. To effectuate the purposes of this Agreement, it shall be filed in the
office of the Black Hawk County Recorder to provide public notice that the covenants
and agreements set forth in this Agreement are intended to be, and shall be construed
as and deemed to be, covenants running with the land until and including the date of
termination of any minimum assessment agreement entered into pursuant to this
Agreement.
2. Minimum Assessment Agreement. As an express condition to
qualification for the tax rebate benefits provided for in this Agreement, each separate
Developer must agree that (a) it will pay when due all taxes and assessments, general
or special, and all other charges whatsoever levied upon or assessed or placed against
such Developer's Phase Area, (b) it will sign a minimum assessment agreement in the
form attached hereto as Exhibit "B", and (c) prior to the date to be set forth in Section 2
of said minimum assessment agreement it will not seek or cause a reduction in the
taxable valuation for such Developer's Phase Area, which shall be fixed for assessment
purposes, below an amount to be set forth in said minimum assessment agreement,
through:
(i) willful destruction of the Property, the Improvements, a Phase
Area, or any part thereof;
(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 benefits provided for in this Agreement shall be available to Developers only if the
total minimum actual value for the Property in the aggregate after completion of
Improvements is no less than $ 2.000.000.00 (the "Total Minimum Actual Value").
The parties agree that the building currently on the Property consists of
approximately 44,000 square feet ("Total Area"). For purposes of the minimum
assessment agreements to be entered into in the future with respect to each Phase
Area to be developed, the Total Minimum Actual Value shall be divided among phases
on the basis of the total square footage of such phase's Phase Area, according to the
following formula:
Phase Area x Total Minimum Actual Value
Total Area
For purposes of illustration only, if a given Phase Area consists of 2,790 square feet
(the sum of square footages for the unit, storage area, parking area, and proportionate
share of common area), then the phase shall have an allocated minimum actual value
of $126,800, determined by dividing the square footage for the Phase Area (2,790) by
the square footage for the Total Area (44,000), rounding the resulting figure to four
places (.0634) following the decimal point, and multiplying such rounded figure by the
Total Minimum Actual Value. The formula shall be applied using the four-place
rounding described in the preceding sentence.
3. Tax Rebates. With respect to each Phase Area, provided that Developer
has completed the Improvements as set forth in Section 1 and has executed the
minimum assessment agreement as set forth in Section 2, the City agrees to make
property tax rebates to the property owner of record as follows (with the exceptions
noted below):
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a. Year One - 100% rebate
b. Year Two - 100% rebate
C. Year Three - 100% rebate
d. Year Four- 100% rebate
e. Year Five - 100% rebate
f. Year Six - 100% rebate
g. Year Seven - 100% rebate
for any value over that portion of the January 1, 2005 taxable value ($190,830) that is
allocated to a given Phase Area by use of the formula set forth in paragraph 2 above,
substituting $190,830 for the "Total Minimum Actual Value" in said formula.
The taxable value of a given Phase Area as a result of the Improvements must
be increased by a minimum of 10% and must increase the annual tax by a minimum of
$500.00. This rebate program is not applicable to any special assessment levy, debt
service levy, or any other levy that is exempted from treatment as tax increment
financing under the provisions of applicable law.
The first year in which a rebate may be given ("Year One") shall be the first full
year for which the assessment with respect to a Phase Area is based upon the
completed value of the Improvements and not a prior year for which the assessment is
based solely upon the value of the unimproved Phase Area or upon the value of the
Phase Area and a partial value of the Improvements due to partial completion of the
Improvements or a partial tax year.
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.
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
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to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
6. 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 parry or any
other person.
7. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight delivery 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
City Planner.
(b) if to Company, to NCN, Limited Company, 501 Sycamore Street,
Suite 710, Waterloo, Iowa 50703, facsimile number 319-235-5109, Attention:
Donna Nelson.
(c) if to a Developer, to such person at the address shown in the
records of the office of the Black Hawk County Assessor with respect to the
corresponding Phase Area.
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
delivery 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.
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 its duly
authorized representative, 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
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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.
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, and legal
representatives, including but not limited to the transferees of Company.
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, together with the exhibits attached
hereto, constitutes the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
14. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Master Development
Agreement as of the date and year written above.
NCN, Limited Company
n
By:
Donna Nelso , Ma ager Date
City of Waterloo, Iowa
By: _ a � a ' S - UIs
Timothy J. e , Mayor Date
Attest: ca..rX. 2e- I �;L- S-0-5
Nancy Eck City Clerk Date
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EXHIBIT "A"
Units 1 through 12, inclusive, and the undivided interest in the common elements
appurtenant thereto in Westfield Lofts Condominium recorded as Doc. No. 2006-7463, City of
Waterloo, Black Hawk County, Iowa,the same being situated upon real estate described as:
Lots Nos. 1, 2, 3, 4 and 5 in Block No. 4 in James Eggers Addition to the City of Waterloo, in Black Hawk
County Iowa, excepting the Southwesterly 5 feet in Width of Lots 3, 4 and 5, and also excepting that part
of Lot No. 5 described as follows: Commencing at the most Northerly corner of said Lot No. 5; thence
Southeasterly along the Northeasterly line of said Lot a distance of 33.88 feet; thence Southwesterly along
the Southeasterly line of Miles Street as now located a distance of 102.5 feet to a point on the
Northwesterly line of said Lot No. 5 that is 97.16 feet Southwesterly from the most Northerly comer of said
Lot No. 5; thence Northeasterly a distance of 97.16 feet along the Northwesterly line of said Lot No. 5 to
the point of beginning, and also excepting that part of Lots 1 and 2 described as follows: Beginning at the
most Easterly corner of said Lot 1; thence South 41023'38" West along the Southeasterly line of said Lot 1
a distance of 141.1 feet to the most Southerly comer of said Lot 1;thence North 48045'35"West along the
Southwesterly line of said Lots 1 and 2 a distance of 92.18 feet; thence North 59005'46"East a distance of
105.83 feet to a point on the Northwesterly line of said Lot 1 that is 40.37 feet Southwesterly of the most
Northerly corner of said Lot 1; thence North 78042'53" East a distance of 50.87 feet to the Northeasterly
line of said Lot 1; thence South 48045'35" East along said Northeasterly line a distance of 29.16 feet to the
Point of Beginning.
AND
That part of Lot No. 26 in"Auditor's Falls Avenue and Mullan Avenue Plat" in Waterloo, Iowa, described as
follows: Commencing at a point on the Northwesterly line of Lot No. 5 in Block No. 4 in James Eggers
Addition to the City of Waterloo, Iowa, that is 5 feet Northeasterly from the most Westerly comer of said
Lot No. 5; running thence Northwesterly along a line drawn at right angles to the Northwesterly line of said
Lot No. 5 to the Southeasterly line of Miles Street in Red Cedar Addition; thence Northeasterly along the
Southeasterly line of Miles Street, if extended, to the Northwesterly line of said Lot No. 5 in said James
Eggers Addition; thence Southwesterly along the Northwesterly line of said Lot No. 5 to the place of
beginning.
AND
Part of Commercial Street right-of-way lying Northeasterly of Block Number 4, James Egger's Addition in
the City of Waterloo, Iowa, described as follows: Commencing at the most Easterly corner of Lot 1, Block
Number 4, James Egger's Addition; thence North 48045'35" West along the Northeasterly line of said Lot
1 a distance of 29.16 feet to the Point of Beginning; thence North 48045'35"West along the Northeasterly
line of said Block 4 a distance of 234.71 feet; thence Easterly an are length of 24.24 feet along a 23.75
foot radius curve being concave Southerly and having a long chord of South 78018'55" East 23.20 feet;
thence South 49004'50" East a distance of 214.53 feet; thence South 41014'25" West a distance of 12.64
feet to the Point of Beginning.
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENT AGREEMENT, dated as of this day of
by and among the City of Waterloo, Iowa ("City"),
("Developer"), and the COUNTY ASSESSOR of the
City of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Developer have entered
into a Development Agreement (the "Agreement"), supplemental to a master
development agreement entered into between the City and NCN, Limited Company,
regarding certain real property located in the City; and
WHEREAS, it is contemplated that pursuant to said Agreement, the Developer
will undertake the renovation and development of an area ("Project") within the City and
within the "Downtown Urban Renewal Area."
WHEREAS, pursuant to Iowa Code section 403.6, as amended, the City and the
Developer desire to establish a minimum actual value for the land and improvements
constructed thereon pursuant to the Agreement and applicable only to the
development, which shall be effective upon substantial completion of the development,
and from then until this Agreement is terminated pursuant to the terms herein and
which is intended to reflect the minimum actual value of the land and building as to the
development only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements which it is contemplated will be erected as a part of
the development;
NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in
consideration of the promises, covenants and agreements made by each other, do
hereby agree as follows:
1. Upon substantial completion of construction of the above-referenced
improvements by the Developer on the property described in Exhibit "A" attached
hereto, the minimum actual taxable value which shall be fixed for assessment purposes
for the land and improvements to be constructed thereon by the Developer as a part of
the development shall not be less than $ ("Minimum Actual Value")
until termination of this Minimum Assessment Agreement. The parties hereto agree
construction of the improvements will be substantially completed on or before
January 1,
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate on, January 1,
Nothing herein shall be deemed to waive the Developer's rights under
Iowa Code section 403.6, as amended, to contest that portion of any actual value
assignment made by the Assessor in excess of the Minimum Actual Value established
herein. In no event, however, shall the Developer seek to reduce the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement.
The City shall not unreasonably withhold its consent to permit the
Developer to contest its taxable valuations in full, commencing with the assessment of
January 1,
3. This Minimum Assessment Agreement shall be promptly recorded by the
City with the Recorder of Black Hawk County, Iowa. The City shall pay all costs of
recording.
4. Neither the preambles nor provisions of this Minimum Assessment
Agreement are intended to, or shall be construed as, modifying the terms of the
Agreement between the City and the Developer.
5. This Minimum Assessment Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
IN WITNESS WHEREOF, the parties have entered this Minimum Assessment
Agreement as of the date first written above.
CITY OF WATERLOO, IOWA
By:
Attest: Timothy J. Hurley, Mayor
By:
Nancy Eckert, City Clerk
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DEVELOPER
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this day of before me, a Notary Public
in and for the State of Iowa, personally appeared Timothy J. Hurley and Nancy Eckert,
to me personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was
signed and sealed on behalf of said municipal corporation by authority and resolution of
its City Council, and said Mayor and City Clerk acknowledged said instrument to be the
free act and deed of said municipal corporation by it and by them voluntarily executed.
Notary Public
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Acknowledged before me on by
Notary Public
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CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon which
the improvements are to be constructed for the development, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment
Agreement appears reasonable, hereby certifies as follows: The undersigned
Assessor, being legally responsible for the assessment of the property subject to the
development, upon completion of improvements to be made on it and in accordance
with the Minimum Assessment Agreement, certifies that the actual value assigned to
such land, building and equipment upon completion of the development shall not be
less than Dollars ($ ' in the aggregate. Of
this amount, Dollars ($ ) is
determined to be the value of the land and
Dollars ($ ) the value of the buildings thereon, until termination of this
Minimum Assessment Agreement pursuant to the terms hereof.
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on by
Assessor for Black Hawk County, Iowa.
Notary Public
hBusiness2WCN,Limited ColCondo\Waterioo tax abate supp agr 11-22-05.doc