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HomeMy WebLinkAboutWATESSA Venture LLC - Development Agreement - 9/3/2008DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of 'W3 , 2008, by and between WATESSA Venture L.L.C. ("Company"), and the City of Waterloo, Iowa ("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 Martin Road urban renewal area. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Purchase of Property. Company is purchasing the real property described on Exhibit "A" attached hereto (the "Property"). The purchase price for the Property is $201,600 (the "Purchase Price"). Company shall take all steps necessary or advisable to complete the purchase of the Property and to obtain marketable title thereto as promptly as possible. 2. Improvements by Company. Company shall construct on the Property a building consisting of approximately 13,000 square feet, and related landscape and parking (the "Improvements"). The Improvements shall be constructed in accordance with all applicable City, state, and federal building codes and shall comply with all applicable City ordinances. It is contemplated that the taxable value of the land and building upon completion will be approximately $1.1 million. 3. Timeliness of Construction. Company must substantially complete construction of the Improvements by September 1, 2009. If Company has not obtained a building permit and begun in good faith the construction of the Improvements upon the Property by December 31, 2008, this Agreement may be cancelled at the sole option of City. If construction has not begun by December 31, 2008, but the development of the project is still imminent, the City Council may, but shall not be required to, grant an extension of time for the construction of the Improvements. If construction has commenced by December 31, 2008 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 substantially completed by September 1, 2009 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 this Agreement shall be cancelled at the sole option of City. 4. 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 January 1, 2029, it will not seek or cause a reduction in the taxable valuation for the Property, which shall be fixed for assessment purposes, below the aggregate amount of $1,111,600.00 ("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. 4.1 Restriction on Property Transfer. Company agrees that the property tax revenues to be derived from the Property are the source of the property tax rebates provided for in this Agreement, are a material inducement for the City to provide such incentives, and that without the anticipation of such revenues the City would not provided such incentives or enter into this Agreement. Company agrees that, prior to January 1, 2029, it will not sell, convey or otherwise transfer the Property to any other person or entity without the prior written consent of City, unless the transferee is a person or entity that does not qualify to have the Property declared exempt from taxation under Iowa law. This restriction is a covenant running with the land until January 1, 2029 and shall be binding upon the Company, future owners of the Property, and the successors and assigns of the Company and such future owners. In the event that a prohibited transfer is made, then any remaining unpaid tax rebates shall be forfeited, and Company, its transferees, and the successors and assigns of each shall be liable to repay City for all tax rebates previously disbursed by City in respect of the Property. This Section 4.1 shall survive the termination or expiration of this Agreement for any reason, unless an instrument terminating this Agreement refers specifically to this Section 4.1. 5. Property Tax Rebates. Provided that Company has completed the Improvements as set forth in paragraphs 1, 2 and 3 and has executed the Minimum Assessment Agreement as set forth in paragraph 4, the City agrees to rebate property taxes (with the exceptions noted below) as follows: a. Year One - 100% rebate 2 b. Year Two - 100% rebate c. Year Three - 100% rebate d. Year Four - 100% rebate e. Year Five - 68% rebate f. Year Six - 50% rebate g. Year Seven 50% rebate h. Year Eight 50% rebate i. Year Nine 50% rebate j. Year Ten 50% rebate for any taxable value over the January 1, 2008 value (calculated at $928 per acre based on 2008 value of $40,100, to put current value at $1,384.21). Rebates are payable in respect of a given year only to the extent that Company has actually paid general property taxes due and owing for such year. The taxable value of the Property as a result of the Improvements must be increased by a minimum of 10% and must increase the annual tax by a minimum of $500.00. This rebate program is not applicable to any special assessment levy, debt service levy, or any other levy that is exempted from treatment as tax increment financing under the provisions of applicable law. The first year in which a rebate may be given ("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 a partial tax year. 6. 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. 7. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. 3 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. 8. 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 WATESSA Venture L.L.C., attn: Jeffrey N. Eirinberg, 101 W. 2nd Street, Suite 300, Davenport, Iowa 52801. Fax: 563-322- 9988. 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. 9. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 10. 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. 4 11. 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. 12. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, legal representatives, and future owners of the Property. 13. 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. 14. 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. 15. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA By: Timothy J. HureF ayor Attesi: Nancy Eckerttity Clerk WATESSA VEN erg, Manager 5 EXHIBIT "A" Lot 4, Greenbelt Centre Plat No. 3, City of Waterloo, Black Hawk County, Iowa. EXHIBIT "B" MINIMUM ASSESSMENT AGREEMENT This Minimum Assessment Agreement (the "Agreement") is entered into as of this 3 day of Ssepi vct r , 2008, by and among the CITY OF WATERLOO, IOWA ("City"), WATESSA Venture, L.L.C. ("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 Martin Road urban renewal area; 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 $1,111,600 ("Minimum Actual Value") until termination of this Agreement. The parties hereto agree that construction of the Improvements will be substantially completed on or before September 1, 2009. 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, 2028. 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, 2029. 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, including but not limited to future owners of the Project property. ATTEST: By: Nancy Eckity Clerk WATESSA Ventu CITY OF WATERLOO, IOWA Timothy J. ' fey, Mayor STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK 4-14 On this "T day of ct re- , 2008, before me, a Notary Public in and for the State of Iowa, persona ly 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 2 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. STATE OF IOWA ) ) ss. COUNTY OF SCOTT ) Subscribed and sworn to before me on September 3 Jeffrey N. Eirinberg, as Manager of WATESSA V-nt<ure, L.L.C. , 2008 by �. yp BETH E. RICHLEN Commission Number 100992 w *Commission Expires 3 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 One Hundred Eleven Thousand Six Hundred Dollars ($1,111,600) in the aggregate, until termination of this Minimum Assessment Agreement pursuant to the terms hereof. STATE OF IOWA COUNTY OF BLACK HAWK ) ss. 'TCO./Mi rn ,- CA Assessor for Black Hawk County, Iowa 1%r1 as t Date Subscribed and sworn to before me on -yu(tv-tA ri , 200$ by 5)Y1' 1)1C FCIrifti1d , Assessor for Blae'k Hawk County, Iowa. ;1q,Lt ( kb'l-) Notary Public � HOLLY A. KOCH NOTARIAL SEAL -STATE OF IOWA COMMISSION NUMBER: 736053 COMMISSION EXPIRES AUGUST 12, 2011