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HomeMy WebLinkAboutGray Transportation, Inc. - 1/3/2023 (RECORDED) liii II111 IIIIIIIIIIIIIIIIIIIIIII Doc ID: 011924100005 Type: GEN Recorded: 04/06/2023 at 01:17:04 PM Fee Amt: $27.00 Page 1 of 5 Black Hawk County Iowa SANDIE L. SMITH RECORDER File2023-00013473 40' O� WAr Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50703. 319-234-5701 AMENDMENT TO DEVELOPMENT AGREEMENT and AMENDMENT TO MINIMUM ASSESSMENT AGREEMENT This Amendment to Development Agreement and Amendment to Minimum Assessment Agreement (the "Amendment") is entered into as of ' 3— 2-623 , by and between the City of Waterloo, Iowa ("City") and Gray Transportation, Inc. ("Company"). RECITALS A. Company and City are parties to that certain Development Agreement dated February 7, 2022 (the "Agreement") concerning the development of property as described in the Agreement. Company and City are also parties to that certain Minimum Assessment Agreement of the same date (the "MAA") pertaining to the Property. The Agreement and MAA were recorded together on July 27, 2022 as Doc. No. 2023-1549. B. The parties have determined that Company will undertake certain drainage improvements for the benefit of the Project, and that City will provide property tax rebates as incentives for Company to undertake such improvements. C. The parties desire to amend the DA and MAA on the terms set forth herein. NOW, THEREFORE, in consideration of the premises and of other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to amend the Agreement as follows: 1. The DA is amended to add the following new sections 7-1 through 7-4: 7-1. Tax Rebates. Provided that Company has completed Substantially Completed the Improvements before the Completion Deadline, City agrees to rebate property tax (with the exceptions noted below) with respect to the Improvements, as follows: Year One through Year Five 75% rebate each year for any taxable value added by the completed Improvements (each such payment is a "Rebate") over the initial base value of$30,350.00. Each Rebate is payable in respect of a given property tax fiscal year (a "Fiscal Year") only to the extent that (a) Company ( n) has actually paid general property taxes due and owing for such Fiscal Year and (b) the city council has made an appropriation for the payment of the Rebate. To receive a Rebate for a given Fiscal Year, Company must, within twelve (12) months after the due date of the last installment of the property taxes for the respective Fiscal Year (i.e., the "March Installment"), submit a completed Rebate request to City on the form provided by or otherwise satisfactory to City. A failure to timely submit a request for a Rebate for a Fiscal Year will result in a forfeiture of the right to request a Rebate for such Fiscal Year. City agrees to consider a completed application for a Rebate within sixty (60) days after submission of the application to City. 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. Rebates shall not be paid based on 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 Fiscal Year in respect of which a Rebate may be given ("Year One") shall be the first full Fiscal Year for which the assessment is based upon the completed value of the Improvements and not based on a prior Fiscal Year for which the assessment is based solely upon (x) the value of the Property, or upon (y) the value of the Property and a partial value of the Improvements due to partial completion of such Improvements or a partial Fiscal Year. As an example of the above provision, in the event all Improvements on the Property are Substantially Completed prior to January 1, 2024 and the Property and Improvements are assessed as fully completed based on the Plans, as may be revised, the property taxes that would be assessed based on the January 1, 2024 assessed value would be for the Fiscal Year ending June 30, 2026, with the taxes payable one- half by September 30, 2025 and one-half by March 31, 2026, then the first Rebate could be applied for after March 31, 2026 and prior to April 1, 2027. 7-2. Limitations on Payment of Rebates. A. Each payment of a Rebate is subject to annual appropriation by the city council each fiscal year. City has no obligation to make any payments to Company as contemplated under this Agreement until the city council annually appropriates the funds necessary to make such payments. The right of non- appropriation reserved to City in this paragraph is intended by the parties, and shall be construed at all times, so as to ensure that City's obligation to make future payments of Rebates shall not constitute a legal indebtedness of City within the meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates funds for the payment of that installment or amount. In the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction or by City's bond counsel to create, or result in the creation of, such a legal indebtedness of City, the enforcement of the said provision shall be suspended, and the Agreement shall at all times be construed and applied in such a manner as will preserve the foregoing intent of the parties, and no Event of Default by City shall be deemed to have occurred as a result thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended, the suspension shall not affect other provisions of this Agreement which can be given effect without the suspended provision. To this end the provisions of this Agreement are severable. 2 B. Notwithstanding the provisions of Section 7-1 hereof, City shall have no obligation to make a payment of a Rebate to Company if at any time during the term hereof City fails to appropriate funds for payment; City receives an opinion from its legal counsel to the effect that the use of Tax Increments resulting from the Property and Improvements to fund a Rebate payment to Company, as contemplated under Section 7-1 above, is not, based on a change in applicable law or its interpretation since the date of this Agreement, authorized or otherwise an appropriate urban renewal activity permitted to be undertaken by City under the Urban Renewal Act or other applicable provisions of the Code, as then constituted or under controlling decision of any Iowa court having jurisdiction over the subject matter hereof; or City's ability to collect Tax Increment from the Improvements and Property is precluded or terminated by legislative changes to Iowa Code Chapter 403. Upon occurrence of any of the foregoing circum- stances, City shall promptly forward notice of the same to Company. If the circumstances continue for a period during which two (2) annual Rebate payments would otherwise have been paid to Company under the terms of Section 7-1, then City may terminate this Agreement, without penalty or other liability to City, by written notice to Company. C. For purposes of this Agreement, "Tax Increments" shall mean the property tax revenues on the Improvements and Property received by and made available to City for deposit in an account maintained under this Agreement, the provisions of Iowa Code § 403.19 and the ordinance governing the Urban Renewal Plan. 7-3. Conditions to City Funding. A. The complete or initial funding by City of the Rebates and other Project commitments shall be deemed an agreement of the parties that the applicable conditions to disbursement of funds shall, as of the date of such funding, have been satisfied or waived. If the conditions set forth in this Section are not satisfied at a Rebate disbursement date, this Agreement shall terminate unless a new disbursement date is established by amendment to this Agreement. The termination of this Agreement shall be the sole remedy available to City or Company if, for whatever reason, a condition set forth in this Section is not satisfied at a Rebate payment date, it being understood that each party shall nonetheless incur costs and liabilities prior thereto for which they alone are responsible. City and Company each expressly assumes all responsibility for the costs and liabilities they may each so incur prior to a Rebate payment date and agree to indemnify and hold each other harmless therefrom. B. It is recognized and agreed that the ability of the City to perform the obligations described in this Agreement, including but not limited to the Rebate payments, is subject to completion and satisfaction of certain separate city council actions and required legal proceedings relating to the creation of a tax increment financing (TIF) district, including the holding of public hearings on the same. Further, all the obligations of City under this Agreement are subject to fulfillment, on or before each Rebate payment date, of each of the following conditions precedent: 3 (i) The representations and warranties made by Company in Section 10 shall be true and correct as of the Rebate disbursement date with the same force and effect as if made at such date. (ii) Company shall be in material compliance with all the terms and provisions of this Agreement. (iii) There has not been, as of the Rebate disbursement date, a substantial change for the worse in the financial resources and ability of Company, or a substantial decrease in the financing commitments secured by Company for construction of the Improvements, which change(s) makes it likely, in the reasonable judgment of the City, that Company will be unable to fulfill its covenants and obligations under this Agreement. 7-4. No Encumbrances; Limited Exception. Until completion of the Improvements, Company agrees that it shall not create, incur, or suffer to exist any Liens on the City Property, other than such mortgage or mortgages as may be reasonably necessary to finance Company's completion of the Improvements and of which Company notifies City before Company executes any such mortgage. Company may not mortgage the City Property or any part thereof for any purpose except in connection with financing of the Improvements. 2. The parties agree that the drainage improvements to be undertaken by Company shall be incorporated into the Plans or Modified Plans and subject to the terms of the Agreement with respect to the Plans or Modified Plans. 3. Section 2 of the MAA is amended to strike "December 31, 2033" therefrom and to substitute "December 31, 2038" in its place. 4. Except as amended herein, the DA and the MAA shall continue unmodified in full force and effect. Terms capitalized in this Amendment but not defined herein shall have the meaning ascribed to them in the Agreement. This Amendment is binding on the parties and the respective successors, assigns, transferees and legal representatives of each. This Amendment may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute a single instrument. IN WITNESS WHEREOF, the parties have executed this Amendment to Development Agreement and Amendment to Minimum Assessment Agreement as of the date first set forth above. GR Y TRANSPORTATION, INC. CITY OF WATERLOO, IOWA By: By: i-Ifuu/vi., ,kc J Darrin L. ray, Preside Quentin M. Hart, Mayor By: Vel Kelley Felchl:q ity Clerk 4 STATE OF IOWA ) ss. BLACK HAWK COUNTY ) Acknowledged before me on ` /�U( Qaa , by Darrin L. Gray as President of Gray Transportation, Inc. ,yPtAL s EMRAH BECIREVIC I �y>.- G , i - -. Commission No.i308826 " '----- *IOpfil* My ommissioq Expires Notary Public STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) Acknowledged before me on , by Quentin M. Hart and Kelley Felchle, as Mayor and City Clerk, respectively, o the ity mate , a. CITY OF WATERLOO, IA MAYOR'S OFFICE 71 MULI<ERRY S_T. N `tart' WATERLOO, :A 5'j 3 o"""p`s�1 BRITNI C PERKINS z --- COMMISSION NO.845529 *g,i11;,* MY COMMISSION EXPIRES IOWA JANUARY 27,2026 5