HomeMy WebLinkAboutSecor Investments, LLC-Development Agreement-05.26.2009 .�, , de)‹ -erk4
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
, 2009, by and between Secor Investments, L.L.C. ("Company"), and
the C(ty 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 Rath 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 $890,000 (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. Company is purchasing the Property to repurpose the
current light manufacturing facility and to construct the Improvements (defined below).
Part of the incentives made available to Company under this Agreement are intended to
reimburse Company's costs to acquire the Property. Accordingly, to the extent that any
future development of the Property is eligible to receive incentives from the City, such
incentives shall not include full reimbursement for land acquisition costs.
2. Phased Improvements by Company. (a) General. The Company shall
construct improvements in three phases as set forth in this Section. The Phase I
Improvements, Phase II Improvements and Phase III Improvements are collectively
referred to as the Project Improvements. The Project Improvements shall be
constructed in accordance with all applicable City, state, and federal building codes and
shall comply with all applicable City ordinances. The Property, the Project
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".
(b) Phase I Improvements. No later than July 1, 2010, Company shall
rehabilitate the existing 58,000 square-foot building and construct on the Property a
new building, consisting of approximately 6,500 square feet, and related landscape and
parking (collectively, the "Phase I Improvements"). It is contemplated that the taxable
value of the land and buildings upon completion of Phase I Improvements will be
approximately $1,072,690.00.
(c) Phase II Improvements. No later than July 1, 2011, Company shall
construct on the Property a new building, consisting of approximately 6,500 square feet,
and related landscape and parking (collectively, the "Phase II Improvements"). It is
contemplated that the taxable value of the land and buildings upon completion of Phase
II Improvements will be approximately $1,322,690.00.
(d) Phase III Improvements. No later than July 1, 2011, Company shall
construct on the Property a new building, consisting of approximately 6,500 square feet,
and related landscape and parking (collectively, the "Phase III Improvements"). It is
contemplated that the taxable value of the land and buildings upon completion of Phase
III Improvements will be approximately $1,572,690.00.
3. Grant for Land Acquisition. The City shall make an economic
development grant (the "Grant") to the Company in the amount of $104,400.00 for the
purchase of the Property, to be paid on Company's behalf to the seller. The Grant shall
be paid no later than August 1, 2009, but in any event not before the Rath Tax
Increment Finance District in amended to include the Property. City agrees to act with
diligence to effectuate the amendment and thereafter to make the Grant payment.
4. Timeliness of Construction. The parties agree that Company's
commitment to undertake the Project and to construct the Improvements in a timely
manner constitutes a material inducement for the City to make the Grant to Company
and that without said commitment City would not have done so. Company must
substantially complete construction of each phase of Project Improvements by the
dates set forth in Section 2 above. With respect to Phase I Improvements, if Company
has not obtained a building permit and begun in good faith the construction of the
Phase I Improvements by September 1, 2009, then this Agreement may be cancelled in
whole at the sole option of City, and Company must repay to City any Grant funds
disbursed by City before September 1, 2009. If construction has not begun by
September 1, 2009, 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 September 1, 2009 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 (each of
the foregoing is an "Unavoidable Delay"), the requirement that construction of a given
phase is to be substantially completed by the applicable date shall be tolled for a period
of time (the "Tolled Period") equal to the period of the Unavoidable Delay. An extension
of time for completion granted by agreement or arising from an Unavoidable Delay is
referred to as an "Allowed Extension." If construction is not completed within the Tolled
Period as it applies to such phase of Improvements not timely completed, then City may
require Company to repay Grant funds as set forth in Section 5 below. If construction
of any phase is not substantially completed by the applicable completion date, then the
parties agree to execute an amendment to this Agreement and to the Minimum
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Assessment Agreement to extend the date specified in Section 6 below and the dates
specified in corresponding provisions of the Minimum Assessment Agreement, and
other applicable dates to accurately reflect the Allowed Extension.
5. Repayment of Grant Funds; Deed of Land. (a) If Company becomes
obligated to repay the Grant funds to City, in whole or in part, pursuant to Section 4
above, then with respect to each phase of Project Improvements that has not been
timely completed Company shall repay $34,800, up to the total Grant. Company shall
repay Grant funds within thirty (30) days of City's written demand for payment, and if
payment is made within such period then no interest shall accrue thereon. If Company
fails to repay Grant funds within such period, then interest shall accrue on any sum due
at the rate of ten percent (10%) per annum, compounded monthly, commencing with
the date of City's disbursement of the Grant to Company and continuing until paid in
full.
(b) If Company fails to repay Grant funds as set forth in this section,
then City may elect to receive a special warranty deed from Company for property
locally known as assessor parcel no. 8912-32-102-002, which is part of the Property.
Within thirty (30) days of written notice from City, Company shall deliver said deed,
including declaration of value, groundwater hazard statement, and such other
documentation as City may reasonably request to effectuate the transfer of title.
6. 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, 2015, it will not seek or
cause a reduction in the taxable valuation for the Property with respect to each phase
of improvements, which shall be fixed for assessment purposes in the Minimum Actual
Values defined below, through:
(i) willful destruction of the Property, Project 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.
As used in this Agreement, the term Minimum Actual Value has the following meanings:
Phase Value Aggregate Value
Phase I $1,072,690 $1,072,690
Phase II $ 2550,000 $1,322,690
Phase III $ 250,000 $1,572,690
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Company agrees to sign the agreement attached as Exhibit "B" at closing with respect
to Phase I Improvements, and to sign an agreement in substantially similar form with
respect to Phase II and Phase III Improvements before commencing construction of
such Improvements. As required by the county assessor, the minimum assessment
agreements with respect to Phase ll and Phase III Improvements may be limited to the
Minimum Actual Value for such phase or may include the aggregate Minimum Actual
Value for such phase and previously completed phases.
7. Rail Spur. City agrees to design and construct, or to cause to be
designed and constructed, a rail spur (together with all trackage, switches, gates,
miscellaneous equipment and other appurtenances related thereto and all engineering
and tie-in fees to the railroad associated therewith) of approximately 600 feet in length
to serve the Property, which will he constructed on Company's property and shall
become the property of Company, to the extent not in conflict with the rights or
ownership of any railroad operating thereon. City agrees to apply for rail funding from
the State of Iowa for construction of the rail spur, but City's obligation under this
paragraph is not contingent upon receipt of funding from the State of Iowa. The rail
spur may be constructed in phases, by agreement of the parties, to serve separate
buildings as each is constructed. City shall complete construction of the new rail spur
no later than July 2011; provided, however, that the period for construction shall be
extended by a period equal to the Tolled Period resulting from one or more events of
Unavoidable Delay beyond the reasonable control of City.
8. 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.
9. 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.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
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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.
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 Secor Investments, P.O. Box 428, Cedar Falls, IA
50613 3215 Lafayette Street, Waterloo, Iowa 50703, facsimile: 319.266.6400,
attention: Scott Secor, with a copy to Mershon Law Firm, 2712 Orchard Dr, Suite
B, Cedar Falls, IA 50613.
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. 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.
12. 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.
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13. 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.
14. 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.
15. 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.
16. 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.
17. 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 Secor Investments, L.L.C.
By: r-- T
Timothy J. H rle , Mayor W. Scott Secor, Manager
(CJLti-P-
t--Attes
Nancy Eck City Clerk
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EXHIBIT "A"
Parcel 8912-32-102-001
UNPLATTED WATERLOO EAST PART GOVT LOT 1 SEC 32 T 89 R 12 COM AT INTERS SLY RT OF
WAY LINE I C RR SWITCH TRACK& NELY LINE HWY 297 TH SE ALONG SAID HWY LINE 520 FT TH
NELY AT RT ANG TO SAID HWY 300 FT TH NWLY ALONG LINE PAR HWY 165.5 FT TO SLY ROW
LINE SAID ILL CENTRAL SWITCH TRACK TH WLY ALONG SAID SLY LINE I C SWITCH TRACK ROW
464.4 FT TO PT OF BEG &THAT PART GOVT LOT 1 SEC 32 T 89 R 12 COM AT PT OF INTERS SLY
ROW LINE I C SWITCH TRACK& NELY LINE HWY 297 TH SELY ALONG SAID HWY 620 FT TO PT
OF BEG TH NWLY ALONG SAID HWY 100 FT TH NELY AT RT ANG TO SAID HWY 300 FT TH NWLY
ALONG LINE PAR WITH SAID HWY 1(35.5 FT TO SLY LINE I C SWITCH TRACK TH ELY ALONG SAID
I C SWITCH TRACK TO LINE DRAWN AT RT ANG TO NELY LINE SAID HWY THROUGH PT OF BEG
TH SWLY TO PT OF BEG
And
Parcel 8912-32-102-002
UNPLATTED WATERLOO EAST PT OF GOVT LOT 1 SEC 32 T 89 R 12 LYING SLY OF ILLINOIS
CENTRAL SWITCH TRACK AND SELY OF THE FOLLOWING DESCRIBED LINE COM AT THE PT OF
INTERS OF SLY ROW OF I C SWITCH TRACT & THE NELY LINE OF HWY NO. 297 TH SELY ALONG
SAID HWY A DIST OF 620 FT TO PT OF BEG OF LINE HEREIN DESCRIBED TH NELY AT RT ANGS
TO THE NELY LINE SAID HWY TO SLY LINE OF I C SWITCH TRACT EXC THAT PART AS FOL COM
AT INTERS OF W LINE OF E 10 A OF SAID GOVT LOT & NELY LINE SAID HWY TH NWLY ALONG
THE NELY LINE SAID HWY A DIST OF 270 FT TH NELY A DIST OF 331 FT TO PT ON W LINE OF E
10 A THAT IS 429 FT N OF THE PT OF BEG TH S ALONG W LINE OF SAID E 10 A A DIST OF 429 FT
TO PT OF BEG & EXC THAT PART THEREOF LYING IN THE E 10 A OF SAID GOVT LOT 1
EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
this day of , 2009, by and among the CITY OF
WATERLOO, IOWA ("City"), Secor Investments, 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 Rath 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 $1,072,690.00 ("Minimum Actual Value") until
termination of this Agreement. The parties hereto agree that construction of the
Improvements will be substantially completed on or before July 1, 2010. If it is not, then
the parties agree to execute an amendment to this Agreement that will extend the dates
specified in Section 2 below.
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,
2015. 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, 2016.
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.
CITY OF WATERLOO, IOWA
By:
Timothy J. ey, May
ATTEST:
Nancy Eck , City Clerk
Secor Investments, L.L.C.
By:
W. S ott Secor, Manager
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STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this )04 day of .' , 2009, before me, a Notary Public in
and for the State of Iowa, personally ppSeared 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.
(Allure.:
Notary Public
191)
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on , 2009 by W.
Scott Secor as Manager of Secor Investments, L.L.C..
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 One Million Seventy-Two Thousand Six Hundred Ninety Dollars ($1,072,690)
in the aggregate, 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 , 2009 by
_, Assessor for Black Hawk County, Iowa.
Notary Public
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