HomeMy WebLinkAboutOFI Properties, LLC - Dev Agmnt - 3/20/2006 3 ;)O - d
DEVELOPMENT AGREEMENT
This Development Agreement is entered into as of ),q 2006, by
and between OR Properties, 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 willing and able to finance and construct a building and
related improvements on property located in the Northeast Industrial Park.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. On or before 2006, City shall convey,
or cause to be conveyed, to Company the real property described in Exhibit "A" hereto
(the "Property") for the sum of $1.00 (the "Purchase Price"). Conveyance shall be by
special warranty deed, free and clear of all encumbrances arising by or through City
except: (a) easements, conditions and restrictions of record which do not, in Company's
opinion, interfere with Company's proposed use; (b) current and future real estate real
property taxes and assessments subject to the agreements made herein; (c) general
utility and right-of-way easements serving the Property; and (d) restrictions imposed by
the City zoning ordinances, other applicable law, and the Deed of Dedication for
Northeast Industrial Park Plat. If the Property is not already owned by the City, City's
duty to convey is expressly made subject to occurrence of a closing on the City's
acquisition of the Property.
2. Improvements by Company. Company shall construct an industrial
building consisting of approximately 69,120 square feet, and related parking (the
"Improvements"), all of which shall be located on the Property. The Improvements shall
be constructed in accordance with all applicable City, state, and federal building codes
and the Deed of Dedication for the Northeast Industrial Park Plat and shall comply with
all applicable City ordinances and other applicable law. It is contemplated that the
Improvements will have a total project cost of approximately $1,900,000.00. The
Property, the Improvements, and all site preparation and development-related work to
make the Property usable for Company's purposes as contemplated by this Agreement
are collectively referred to as the "Project".
3. Timeliness of Construction. The parties agree that Company's
commitment to undertake the Project and to construct the Improvements in a timely
DEVELOPMENT AGREEMENT
Page 2
manner constitutes a material inducement for the City to convey the Property, or to
cause the Property to be conveyed, to Company and that without said commitment City
would not done so. Company must obtain a building permit and begin construction
within four (4) months from the date the Property is deeded to it, and construction shall
be completed within twelve (12) months. If, after the expiration of four (4) months from
the date of the executed deed, Company has not begun in good faith the construction
of the Improvements upon the Property, the title to the Property shall revert to the City.
If construction has not begun at the end said four-month period, but the development of
the Project is still imminent, the City Council may, but shall not be required to, consent
to an extension of time for the construction of the Improvements, and if an extension is
granted but construction of the Improvements has not begun within such extended
period, then the title to the Property shall revert to the City after the end of said
extended period. If development has commenced within the four-month period or any
extended period and is stopped and/or delayed as a result of an act of God, war, civil
disturbance, court order, labor dispute, fire, or other cause beyond the reasonable
control of Company, the requirement that construction is to be completed within twelve
(12) months shall be tolled for a period of time equal to the period of such stoppage or
delay, and thereafter if construction is not completed within the allowed period of
extension the title to the Property shall revert to the City after the end of said period.
In the event of any reversion of title, Company agrees that it shall, at its
own expense, promptly execute all documents or take such other actions as the City
may reasonably request to effectuate said reversion, and Company further agrees that
it shall indemnify and hold harmless the City with respect to any demand, claim, cause
of action, damage, or injury made, suffered, or incurred as a result of or in connection
with the Project or Company's failure to carry on or complete same. If the City files suit
to enforce the terms of this Section 3 and prevails in such suit, then the Company shall
be liable for all of the City's legal expenses, including but not limited to reasonable
attorneys' fees. In lieu of any reversion of title, Company may exercise an option to
purchase the Property for a sum equal to $280,000.00 (the "Reversion Buyout Price")
by delivering written notice to City no later than the last day of any period in which
construction of the Improvements may be completed pursuant to this Section 3.
Company shall deliver the Reversion Buyout Price to City within thirty (30) days of the
date that notice of buyout is delivered to the City. After receipt of the Reversion Buyout
Price, the City shall execute and deliver to Company a written instrument evidencing
release and termination of the City's reversion rights.
4. Water and Sewer. Company will be responsible for extending water and
sewer service to any location on the Property and for payment of any associated
connection fees.
5. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other lawful charges whatsoever levied upon or assessed or placed against the
Property. Company further agrees that, prior to the date set forth in Section 2 of
Exhibit "B", it will not seek or cause a reduction in the taxable valuation for the Property,
DEVELOPMENT AGREEMENT
Page 3
which shall be fixed for assessment purposes, below the aggregate amount of
$1,900,000.00 ("Minimum Actual Value"), through:
(i) willful destruction of the Property, Improvements, 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.
Company agrees to sign the agreement attached as Exhibit "B" at closing.
6. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth in Sections 2 and 3 and has executed the minimum
assessment agreement as set forth in Section 5, the City agrees to 50% industrial
property tax rebates (with the exceptions noted below), starting in "Year One" and
continuing for a period of four(4) years thereafter, for a total of five (5) years of rebates.
A. "Year One" shall be the first full year for which the assessment 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 land or upon the
value of the land and a partial value of the Improvements, due to partial
completion of the Improvements or to a partial tax year.
B. 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.
7. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
8. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order orjudgment.
r
DEVELOPMENT AGREEMENT
Page 4
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
9. Abstracting. No less than fourteen (14) days prior to the anticipated date
of conveyance, City shall, at its own expense, deliver to Company an updated abstract
of title, or in lieu thereof Company may, at its own expense, obtain whatever form of title
evidence it desires. If title is unmarketable or subject to matters not acceptable to
Company, and if City does not remedy or remove such objectionable matters in timely
fashion following written notice of such objections from Company, Company may
terminate this Agreement.
10. 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 OFI Properties, LLC, 22415 Route 84 North,
Cordova, IL 61242, facsimile number 309-654-2160, Attention: Donn Larson,
President.
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.
11. 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.
12. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
DEVELOPMENT AGREEMENT
Page 5
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.
13. 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.
14. 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.
15. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
16. 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.
17. Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "B", 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.
18. 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 OR PROPERTIES, LLC
Timothy rley, Ma r Title: gp�- ,
DEVELOPMENT AGREEMENT
Page 6
Attest: c' i
Nancy ckert ity Clerk
Exhibit A
Legal Description:
NORTHEAST INDUSTRIAL PARK PLAT NO 3 LOT 13
AND
NORTHEAST INDUSTRIAL PARK PLAT 3 LOT 12 EXCEPT THAT PART LOT 12
CONTAINED IN THE FOLLOWING: NORTHEAST INDUSTRIAL PARK PLAT 1 A PARCEL
OF LAND LOCATED IN PART OF LOTS 6 AND 7 NORTHEAST PARK PLAT 1 AND PART
OF LOT 12 NORTHEAST INDUSTRIAL PARK PLAT NO 3 DESCRIBED AS FOLLOWS:
BEGINNING AT NORTHWEST CORNER OF SAID LOT 6 THENCE NORTH 89 DEGREES
34 MINUTES 40 SECONDS EAST ALONG NORTHERLY LINE SAID LOT 6 642.05 FEET
TO NORTHEAST CORNER SAID LOT 6 THENCE NORTH 89 DEGREES 34 MINUTES 40
SECONDS EAST 300 FEET TO EAST LINE SAID LOT 7 THENCE SOUTH ALONG EAST
LINE SAID LOT 7 225 FEET THENCE SOUTH 89 DEGREES 34 MINUTES 40 SECONDS
WEST 360 FEET THENCE SOUTH 285 FEET TO SOUTHERLY LINE OF SAID LOT 6
WHICH IS ALSO NORTHEAST CORNER SAID LOT 12 THENCE SOUTH ALONG EAST
LINE SAID LOT 12 160 FEET THENCE SOUTH 89 DEGREES 34 MINUTES 40 SECONDS
WEST 478.12 FEET TO WESTERLY LINE SAID LOT 12 THENCE NORTH 16 DEGREES 47
MINUTES 9 SECONDS WEST ALONG WESTERLY LINE SAID LOTS 12 AND 6 380.77
FEET THENCE NORTH ALONG WESTERLY LINE LOT 6 304.67 FEET TO POINT OF
BEGINNING
AND
PARCEL"D" ON ATTACHED PLAT OF SURVEY FROM SCHENK ENGINEERING.
OFIProperties.DevAbm nt/28-Feb-06
SCHENK ENGINEERING COMPANY, 216 BROOKERIDGE DR., WATERLOO, IOWA 50702 319-232-7480
PLAT OF SURVEY
PART OF NW 1/4, ` 6 '�a' f
SEC. 20-89—i2
v/ATERLOO, tie' 1
BLACK HAWK COUNTY ,I❑WA O
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SEE SHEET 2 FOR DESCRIPTION 9¢'p
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N 30.39'10' E 1 P,O,B, \ FOR,
CITY OF WATERLOO
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eases gsaa, CERTIFICATE;
,Ao( I hereby certify that .this land surveying document was prepared SCHENK
and the related sUl"y work woe performed h me or sunder
FR. `-,o my direct � � y tINLlIINLLKiINU
y.., personal supervision and that I am o duly licensed
DnnI'E Land r under the laws of the State of Iowa.
COMPANY
7I111 _ -`�sc� WATERLOO, IOWA
Date 319-232-7480
IOWA, acv Iowa license number 7811
s �+ '�l�t9@S45a My license renewal date byAehle hest i covered`reLETTER
pel .APPRnvr7n AY
AI_nITf1R
L I is December 31, 2006. I 1 OF 2
Sheet 2 of 2
Description:
A part of the NW '/4 of Section 20-89-12, Waterloo, Black Hawk County, Iowa, described
as follows:
Commencing at the Southwest corner of Lot 13, Northeast Industrial Park Plat No. 3,
Waterloo, Black Hawk County, Iowa; thence N 30°39'10" E along the Westerly line of
said Lot 13 a distance of 5.00 feet to the point of beginning; thence N 30039'10" E along
the Westerly line of said Lot 13 a distance of 146.49 feet; thence N 16047'09" W along
the Westerly line of Lots 13 and 12 of said Northeast Industrial Park Plat No. 3 a
distance of 507.88 feet; thence S 06042'21" E a distance of 616.47 feet to the point of
beginning.
The North line of the NW '/4 of said Section 20 is assumed to bear N 89044'01" W.
City of Waterloo to retain a utility easement over the Westerly 8.00 feet of the above
described parcel.
MSWord.E.NEIPNo4POSL9.2.8.06
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement') is entered into as of
this day of 2006, by and among the CITY OF
WATERLOO, IOWA ("City"), OR PROPERTIES, LLC ("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 "Development Agreement') regarding certain real
property, described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Developer will undertake the development of an area ("Project') within the City and
within the "Northeast Industrial Park Plan"; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Developer desire to establish a minimum actual value for the land and the building(s)
pursuant to this Agreement and applicable only to the Project, which shall be effective
upon substantial completion of the Project 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 buildings as to the Project only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which the parties contemplate
will be erected as a part of the Project.
NOW, THEREFORE, the parties hereto, 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 Improvements by the
Developer, 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 Project shall not be less than $1,900,000.00 ("Minimum Actual Value") until
termination of this Agreement. The parties hereto agree that construction of the
Improvements will be substantially completed on or before December 31, 2006.
2, The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2016. Nothing herein shall be deemed to waive the Developer's rights under Iowa
Code § 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 or cause the reduction of 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, 2017.
3. This 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 Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
CITY OF WATERLOO, IOWA
BYs
imothy J. rley, Maar r
ATTEST: �
By: I
Nancy cke ity Clerk
OR PROPERTIES, LLC
By:
Title: ✓tea .
By:
Title:
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK
On this CA� day of 2006, before me, a Notary
Public in and for the State of Iowa, pers ally 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.
t Uo"�
ota 4 Public
STATE OF
QQ ) ss.
COUNTY OF )
Acknowledged before me on 2006 by joyJ���
and :Z�; as and
�a respectively, of OF[ Properties, LLC.
Notary Pu Ic
TAMARA K. MAUER
COMMISSION NO.156798
+ + MY COMM SI N PIRES
oW
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 One Million
Nine Hundred Thousand Dollars ($1,900,000.00).
Assessor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on 2006, by
Assessor for Black Hawk County, Iowa.
Notary Public
i
FINAL P
NORTHEA
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