HomeMy WebLinkAboutAirline Storage, LLC - 2nd Amendment to DA and MAA - 10.20.2025 Prepared by Austin J., McMahon, 222 1'St. E., Independence, IA 50644 319-334-4488
SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT and
AMENDMENT TO MINIMUM ASSESSMENT AGREEMENT
This Second Amendment to Development Agreement and Amendment to Minimum
Assessment Agreement (the "Amendment") is entered into as of (X - ?;. , 2025 by and
between the City of Waterloo, Iowa ("City") and Airline Storage, L.L.C. ("Company").
RECITALS
A. WHEREAS, Company and City are parties to that certain Development Agreement
dated June 20, 2022 (the "Agreement") concerning the development of property as described in
the Agreement and also parties to that certain Minimum Assessment Agreement of the same date
(the "MAA"). The Agreement and MAA were filed together in the records of the Black Hawk
County Recorder on July 27, 2022 as Doc. No. 2023-1565. For purposes of this Second
Amendment, reference to the "Agreement" shall include reference to the MAA whenever the
context reasonably requires.
B. WHEREAS, Company and City executed an Amendment to said Development
Agreement and MAA, dated March 4, 2024, and recorded with the Black Hawk County Recorder
as Doc. No. 2025-01738.
C. WHEREAS, the parties desire to enter into this Second Amendment to the
Agreement and MAA, and furthermore desire to enter into a separate Minimum Assessment
Agreement specifically for the Phase 2 Property and Phase 2 Improvements, said separate
Minimum Assessment Agreement appearing as Exhibit B to this Second Amendment.
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. Exhibit A to the Agreement is deleted and replaced with a new Exhibit A which is
appended to this Second Amendment.
2. Any and all references to "site plans," plans, or the like shall be a reference to
Exhibit C to this Second Amendment.
3. Section 2(B) is hereby deleted and substituted with the following:
B. Phase 2. One 8,000 square foot commercial building, as depicted in the
site plans or otherwise as mutually agreed upon, on property described as the
Phase 2 Property in Exhibit A (as amended by this Second Amendment). Any
conveyance of the Phase 2 Property will be on terms similar to the terms regarding
conveyances contained in the Agreement. However, no conveyance of the Phase
2 Property to Company shall occur unless the construction and dedication of an
easement is completed as depicted in the site plans, or otherwise as mutually
agreed upon. Any conditions precedent to conveyance of the Phase 2 Property
can be waived by City in its sole discretion.
4. A new subsection (C) is hereby added to Section 2 and shall read as follows:
C. Phase 3. One 8,000 square foot commercial building, as depicted in the
site plans or otherwise as mutually agreed upon, on property described as the
Phase 3 Property in Exhibit A (as amended by this Second Amendment). If
Company desires to undertake Phase 3 Improvements, it shall notify City in writing
no later than fourteen (14) months after the date that City conveys the Phase 2
Property to Company. The City shall convey the Phase 3 Property to Company on
the same terms set forth in Section 1 of the Agreement, however, no conveyance
of the Phase 3 Property to Company shall occur unless the Phasel Improvements,
the Phase 2 Improvements, and the easement and dedication thereof as depicted
in the site plans or otherwise as mutually agreed upon must be completed prior to
any conveyance of the Phase 3 Property to Company. Any conditions precedent
to conveyance of the Phase 3 Property can be waived by City in its sole discretion.
5. A new subsection (D) is hereby added to Section 2 which shall read as follows:
D. Easement and Dedication. Company shall construct an access or
ingress/egress easement as depicted in the site plans or otherwise as mutually
agreed upon. Company shall prepare plans, specifications, a plat for said
easement, and shall dedicate the same to the City. The purpose of said easement
is to enable access to the entirety of Lot 1 and Lot 2, including the undeveloped
portions thereof and shall be centered on the boundary line of Lot 1 and Lot 2 of
the West Port Addition.
6. Section 5 of the Agreement is amended to provide that the Phase 1 Improvements
must be completed no later than 24 months from the date that City conveys the Phase 2 Property
to Company. This provision shall not be construed as and is not a waiver of any conditions
precedent to the conveyance of any property (Phase 2 Property, Phase 3 Property).
7. Section 5 of the Agreement is amended to provide that the Phase 2 Improvements
must be completed within 12 months of the date that the City conveys the Phase 2 Property to
Company.
8. Section 5 of the Agreement is amended to provide that Phase 3 Improvements
shall be completed within 12 months of the date that City conveys the Phase 3 Property to
Company.
9. Section 9 of the Agreement is amended in part to provide that the Phase 2
Improvements shall have a minimum actual value in the amount of $355,000.00, and that the
Phase 3 Improvements shall have a minimum actual value in the amount of$355,000.00.
10. Section 10 of the Agreement is deleted in its entirety and replaced with the
following:
10. Tax Rebates. Provided that Company has completed Phase 1, Phase 2,
and Phase 3 Improvements before the completion deadline with respect to each
Phase and has executed amendment(s)to the MAA as set forth in Section 9 above,
City agrees to rebate property tax (with the exceptions noted below) with respect
to Phase 1 Improvements, Phase 2 Improvements, and Phase 3 Improvements as
follows:
Year One through Year Five: 50% rebate each year
for any taxable value added by the completed Phase 1, Phase 2, and Phase 3
Improvements combined (each such payment is a "Rebate"). Each Rebate is
payable in respect of a given property tax fiscal year (a "Fiscal Year") only to the
extent that (a) Company 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 combined Phase
1, Phase 2, and Phase 3 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 completed prior to January 1, 2025 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, 2025
assessed value would be for the Fiscal Year ending June 30, 2027, with the taxes
payable one-half by September 30, 2026 and one-half by March 31, 2027, then
the first Rebate could be applied for after March 31, 2027 and prior to April 1, 2028.
11. The MAA is amended such that any reference to Improvements or Minimum
Improvements means or refers only to the Phase 1 Improvements. The intention of the parties is
that the MAA previously executed applies only to the Phase 1 Property and the Phase 1
Improvements. The MAA is further amended to provide that the total Improvements, which
includes two commercial buildings, shall have a minimum assessed value of $710,000.00, not
that each building shall have a minimum assessed value of$710,000.00.
12. Section 1 of the MAA is amended to provide that the deadline for completion of the
Phase 1 Improvements is December 31, 2027.
13. Section 2 of the MAA is amended to provide that the MAA shall terminate on
December 31, 2037.
14. A new Section 34 is hereby added to the Agreement which shall read as follows:
34. Sale of Completed Improvements. Upon the written approval of the
Director of Community Planning and Development of the City of Waterloo,
Company may sell those portions of the Phase 1 Property, Phase 2 Property, or
Phase 3 Property for which Improvements have been completed. One basis for
withholding approval, but not the only basis for withholding approval, is the failure
of Company to substantially complete Improvements of any Phase or the failure to
construct and dedicate the easement as described elsewhere. Company
acknowledges and understands that the tax rebate incentive will no longer be
applicable to any portion of the Property, Phase 1 Property, Phase 2 Property, or
Phase 3 Property that is sold to a third-party.
15. The remedies available to City under the Agreement are applicable to this
Amendment and applicable with respect to any and all Improvements or development. No
provision in this Amendment shall limit any remedies available to the City. In the event of
Company's default or breach, or in the event of termination of the Agreement (including
Amendments), Company agrees that it shall elect to either (i) convey any property or portions of
any property that is the subject of this Agreement and Amendment that is not developed in
accordance with the Agreement or this Amendment; or (ii) retain property or portions of any
property that is the subject of this Agreement and Amendment that is not developed in accordance
with the Agreement or this Amendment and pay to the City $75,000.00 per acre for any and all
undeveloped portions thereof. Notwithstanding the foregoing, the City retains and reserves the
right and ability to exercise or enforce the possibility of reverter contained in the Agreement to
reacquire ownership of any undeveloped property (or portions thereof) or to pursue damages in
the amount of$75,000.00 per acre of any undeveloped property (or portions thereof) in the event
that the Company does make such an election in writing to the City within a reasonable amount
of time or if the City does not have reasonable assurances that the Company can or will perform
what is has elected.
16. Except as amended herein, the Agreement 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.
AIRLINE STORAGE, L.L.C. CITY OF WATERLOO, IOWA
By: g,/ 0 By:Jon Voig Quentin M. Hart, Mayor
Managing Member
By:
Kelley Felch , City Clerk
STATE OF IOWA
) ss.
BLACK HAWK COUNTY )
Acknowledged before me on ( `1 -r" r 2025 by Quentin M. Hart and Kelley
Felchle, as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa.
kolL0 BRITNI C PERKINS ' � —\
* - COMMISSION NO. 845529 _
* * MY COMMISSION EXPIRES Notary U IIC
IOWA JANUARY 27,2026
STATE OF IOWA
ss.
BLACK HAWK COUNTY )
Acknowledged before me on t �� , 2025 by Jonathan Voigt as Managing
Member of Airline Storage, L.L.C.
TRACIA S ROSSth---/((/4'1-4---
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EXHIBIT A
Description
Phase 1 Property: Lot 1 of West Port, City of Waterloo, Black Hawk County, Iowa.
Phase 2 Property: The southernmost 221 feet (approximately) of Lot 2 of West Port Addition,
City of Waterloo, Black Hawk County, Iowa. A plat of survey shall be completed which will
contain a more precise and formal legal description.
Phase 3 Property: The remaining portion of Lot 2 of the West Port Addition, City of Waterloo,
Black Hawk County, Iowa, that is not part of the Phase 2 Property, which is approximately the
northernmost 255 feet of said Lot 2.A plat of survey shall be completed which will contain a more
precise and formal legal description.
EXHIBIT B
MINIMUM ASSESSMENT AGREEMENT
FOR PHASE 2 PROPERTY AND PHASE 2 IMPROVEMENTS
This Minimum Assessment Agreement (the "Agreement") is entered into as of
, 2025, by and among the CITY OF WATERLOO, IOWA ("City"),
Airline Storage, L.L.C. ("Company"), and the COUNTY ASSESSOR of the City of
Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered into
a Second Amendment to Development Agreement and Minimum Assessment Agreement
(the "Development Agreement") regarding certain real property, described in Exhibit "A"
thereto, (the "Property") located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area ("Project") within the City and within
the East Waterloo Unified Urban Renewal and Redevelopment Plan Area, formerly known
as the Airport Area Development Plan Area; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Company 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 Phase 2 Improvements
for the Phase 2 Property by the Company, the minimum actual taxable value which shall
be fixed for assessment purposes for the land and Improvements to be constructed
thereon by the Company as a part of the Project shall not be less than $355,000.00 (the
"Minimum Actual Value") until termination of this Agreement. The parties hereto agree
that construction of the Improvements will be substantially completed on or before the
date set forth in the Agreement, but in any event not later than December 31, 2026. 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,
2036. Nothing herein shall be deemed to waive the Company'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 Company seek or cause the reduction of the actual value assigned
below the Minimum Actual Value established herein during the term of this Agreement.
Nothing herein shall limit the discretion of the Assessor to assign at any time an actual
value to the land and Improvements in excess of the Minimum Actual Value.
3. Company agrees that it will not seek administrative review or judicial review
of the applicability or constitutionality of any Iowa tax statute or regulation relating to the
taxation of real property included within the Property that is determined by any tax official
to be applicable to the Property or to Company, or raise the inapplicability or
constitutionality of any such tax statute or regulation as a defense in any proceedings.
4. 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.
5. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
6. 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.
IN WITNESS WHEREOF, the parties have executed this Minimum Assessment
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA Airline Storage, L.L.C.
By: �— By: v pr
Quentin M. Hart, Mayor Jo athan Voigt -
M naging Member
By.
K Iley Felchle, ity Clerk
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this -('2 day of Ce-4-0 l , 2025, before me, a Notary Public in and
for the State of Iowa, personally appeared Quentin M. Hart and Kelley Felchle, 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.
. `. NANCY ANNE HIGBY ` -Nct h
COMMISSION NO.853884 Notary Pub
* * MY COMMISSION EXPIRES
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on yr. je%�g , 2025, by Jonathan Voigt
as Managing Member of Airline Storage, L.L.C.
A.1"*"4. TRACIA S ROSS
COMMISSION NO.811963
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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 Three Hundred
Fifty-Five Thousand Dollars ($355,000.00) 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 , 2025, by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public