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HomeMy WebLinkAboutMenard, Inc.-First Amendment to Minimum Assessment Agreement-09.08.2009 cI-' 7-05 .vod,- FIRST AMENDMENT TO MINIMUM ASSESSMENT AGREEMENT THIS FIRST AMENDMENT TO MINIMUM ASSESSMENT AGREEMENT (the "First Amendment") is made and entered into by and between CITY OF WATERLOO, IOWA, ("City"), MENARD INC., ("Developer"), and the COUNTY ASSESSOR of the City of Waterloo, Iowa ("Assessor"). WITNESSETH: WHEREAS, the parties entered into a Minimum Assessement Agreement (the "Agreement") dated September 24, 2007 pursuant to Iowa Code § 403.6, as amended; WHEREAS, the Developer and the City entered into a Development Agreement dated September 24, 2007; WHEREAS, the Developer and the City entered into a First Amendment to Development Agreement dated August , 2009, whereby the City granted the Developer an additional eighteen (18)months under the timeliness provision of the Development Agreement; WHEREAS, the parties desire to amend specific terms of the Agreement to coincide with the Development Agreement, as amended; NOW, THEREFORE, in consideration of these premises, changing economic conditions, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree to amend the Agreement as follows: 1. Recitals. The Recitals hereinabove are true and correct and incorporated herein. 2. Capitalized Terms. All capitalized terms used herein and not otherwise defined herein shall have the same meaning ascribed thereto in the Agreement. 3. Anticipated Completion of Construction. Section 1 of the Agreement is amended to strike "October 1, 2010"and to substitute in its place"April 1, 2012". 4. Termination. Section 2 of the Agreement is amended to strike "December 31, 2031"and to substitute in its place "December 31, 2033". 5. Contest Valuation. Section 2 of the Agreement is amended to strike "January 1, 2032" and to substitute in its place"January 1, 2034". 6. Captions. The captions contained herein are for convenience only and are not a part of this First Amendment. 7. Binding Effect. Except as herein specifically modified and amended, the Agreement shall remain in full force and effect in strict accordance with the terms thereof. 8. Discrepancy. In the event of any discrepancy between the provisions of this First Amendment and the Agreement, the provisions of this First Amendment shall take precedence and prevail. Page 1 of 2 9. Waiver. To the extent that the City, the Developer or the Assessor claim the Agreement has been terminated,has expired or that such party is in default, such party hereby waives any such claim and the parties agree that the Agreement is reinstated, in full force and effect and is binding upon the parties in accordance with its terms, as amended hereby. 10. Electronic Signature. A facsimile, an electronically mailed copy or other reproduction of this First Amendment may be executed by the parties and shall be considered valid,binding and effective for all purposes. At the request of any party, the parties hereto agree to execute an original of this First Amendment as well as any facsimile, electronically mailed copy or other reproduction hereof 11. Counterparts. This First Amendment may be executed in any number of counterparts, each of which shall be an original, all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties have executed this First Amendment on the dates specified below. "DEVELOPER": "CITY": MENARD,INC., CITY OF WATERLOO,IOWA, By: By: Theron J. erg Timothy . ley Real Estate Manager Mayor Date: t (2 , 2009 Date: 9 - , 2009 "ASSESSOR": 4 J9 Atte COUNTY ASSESSOR, Nancy Eck City Clerk Date: g , 2009 By: Name: Assessor for Black Hawk County, Iowa Date: , 2009 Page 2 of 2 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First Amendment") is made and entered into by and between MENARD INC., (the "Company") and the CITY OF WATERLOO,IOWA, (the"City") WITNESSETH: WHEREAS, the parties entered into a Development Agreement (the "Agreement") dated September 24, 2007 for the construction of certain improvements on property located in the Logan Plaza urban renewal area,as more specifically set forth therein; WHEREAS, national, state and local economic condition(s) have delayed the Company's plans to develop the Property; WHEREAS, the Company is requesting and the City desires to grant the Company an additional eighteen(18)months under the timeliness provision of the Agreement. NOW, THEREFORE, in consideration of these premises, changing economic conditions, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree to amend the Agreement as follows: 1. Recitals. The Recitals hereinabove are true and correct and incorporated herein. 2. Capitalized Terms. All capitalized terms used herein and not otherwise defined herein shall have the same meaning ascribed thereto in the Agreement. 3. Timeliness of Construction. Section 5 shall be replaced in its entirety with the following: "S. Timeliness of Construction. It is anticipated that the Company shall substantially complete construction of the Improvements by April 1, 2012. If Company has not obtained a building permit and begun in good faith the construction of the Improvements upon the Property by January 1, 2011, this Agreement may be cancelled at the sole option of City. If construction has not begun by January 1, 2011, 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 January 1, 2011 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 requirements that construction is to be substantially completed by April 1, 2012 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 may be cancelled at the sole option of the City." 4. Minimum Assessment Agreement. Section 6 of the Agreement is amended to strike "January 1,2032"and to substitute in its place"January 1,2034". Page 1 of 3 5. Captions. The captions contained herein are for convenience only and are not a part of this First Amendment. 6. Binding Effect. Except as herein specifically modified and amended, the Agreement shall remain in full force and effect in strict accordance with the terms thereof. 7. Discrepancy. In the event of any discrepancy between the provisions of this First Amendment and the Agreement, the provisions of this First Amendment shall take precedence and prevail. 8. Waiver. To the extent that either the Company or City claim the Agreement has been terminated, has expired or that either party is in default, such party hereby waives any such claim and both parties agree that the Agreement is reinstated, in full force and effect and is binding upon Company and City in accordance with its terms, as amended hereby. 9. Electronic Signature. A facsimile, an electronically mailed copy or other reproduction of this First Amendment may be executed by the parties and shall be considered valid, binding and effective for all purposes. At the request of any party, the parties hereto agree to execute an original of this First Amendment as well as any facsimile, electronically mailed copy or other reproduction hereof. 10. Counterparts. This First Amendment may be executed in any number of counterparts, each of which shall be an original, all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties have executed this First Amendment on the dates specified below. "COMPANY": "CITY": MENARD,INC., CITY OF WATERLOO,IOWA, By: 'L By: Theron . Berg Timothy . rley Real Estate Manager Mayor Date: ` (Z , 2009 Date: q1 ' , 2009 Page 2 of 3 Attest. Nancy Eckert City Clerk Date: Q .. ,2009 Page 3 of 3