HomeMy WebLinkAboutAmerican Pattern Storage, LLC-3/7/2016Preparer
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715 Mulberry Street Waterioo iowa 50703 (319) 291-4366
Addross CiIy Phone
SPACE ABOVE THIS LINE
FOR RECORDER
DEVELOPMENT AGREEMENT
This Development Agreement (the 'Agreement") is entered into as of
'-k&vtYi l ta 1 by and between American Pattern Storage, L.L.C. (the
"Company") and the City of Waterloo, lowa (the "City"). Burk Miehe and Kerrneth M.
Kuebler, principals of Company and executes the personal guaranty at the end of this
Agreement for the purposes stated therein.
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
communityto provide financial inceritives so as to encourage that goal,
and the City further believes that the project is in the vital and best
interests of the City and that the project and such incentives are in
accordance with the public purposes and provisions of applicable State
and Iocal laws and requirements under which the project has been
undertaken and is being assisted.
B. Company is willing and able to finance and undertake construction and/or
rehabilitation of builclings and related improvements on property Iocated in
the Rath Urban Renewal PIan area and legaily described on Exhibit "A"
attached hereto (the "Property").
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as foliows:
1. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Company for the sum of $1 .00 (the "Purchase Price") within sixty (60) days
after approval of this Agreement by City. Conveyance shali be by quit claim deed, free
and clear of all encumbrances arising by or through City except: (a) easements,
conditions and restrictions of record which do not, in Company's opinion, interfere with
Company's proposed use; (b) current and future reai estate reai property taxes and
assessments subject to the agreements made herein; (c) general utility and right-of-way
easements serving the Property; and (d) restrictions imposed by the City zoning
ordinances and other appiicabie iaw. City shali have no duty to convey titie to
Company untii Company deiivers to City reasonabie and satisfactory proof of finaricial
abiiity to undertake and carry on the Project (defined beiow), which may take the form
of a lending commitment ietter. Company shafl, at its own expense, prepare an
updated abstract of titie, or in Iieu thereof Company may, at 115 own expense, obtain
whatever form af title evidence it desires. If title is unmarketabie or subject to matters
not acceptable to Company, and if City does not remedy or remove such objectionabie
matters in timely fashion foliowing written notice of such objections from Company,
Company may terminate this Agreement. City shaii provide any title documents it has
in its possession, inciuding any abstracts, to assist in title preparation.
2. improvements by Company. Company shaH undertake the
improvements to the Property that are more completely described on Exhibit "B"
attached hereto, including but not hmited to improvements to the buiidings and grounds
in Phase 1 and, at Company's soie option, the instaflation of equipment and machinery
in Phase 2 (collectiveiy, the "Improvements"). AH improvements will be at Company's
own cost and expense. The improvements shali be constructed in accordance with ali
apphcable City, state, and federal building codes, and debris disposai shali compiy with
ali applicabie City ordinances and other applicabie iaw. it is contemplated that the
Phase 1 lmprovements wiil have a totai project cost of approximateiy $510,000 and that
the Phase 2 improvements, if completed, wiil have a total project cost of approximateiy
$1,250,000. The Property, the improvements, and all site preparation and
development -related work to make the Property usabie for Company's purposes as
contemplated by this Agreement are coflectively referred to as the "Project".
3. Timeiiness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to undertake the Project and to construct the Phase 1
Improvements in a timely manner constitutes a materiai inducement for the City to
convey the Property to Company and that without said commitment City would not do
so. Company must begin Phase 1 lmprovements on both buildings before April 1,
2016 and must substantialiy compiete said improvements on the 1 lth street buiiding by
Dec 31, 2016 and on the Sycamore Avenue buiiding by Dec 31, 2017.
if Company has not, in good faith, begun the construction of the
lmprovements on the scheduie stated above, then title to the Property shall revert to the
City, except as provided in this Agreement; provided, however, that 1! construction has
not begun within the stated period but the deveiopment of the Project is stili imminent,
the City Council may, but shall not be required to, consent to an extension of time for
the construction of the lmprovements, and if an extensiori is granted but construction of
the Improvements has not begun within such extended period, then the title to the
Property shall revert to the City after the end of said extended period. If Company
determines at any time that the Project is not economicallyfeasible, then after giving
thirty (30) days' advance written notice to City, Company may convey the Property to
City by special warranty deed, and thereupon neither party shall have any further
obligation under this Agreement except as expressly provided. If development has
commenced within the required period or any extended period and is stopped and/or
delayed as a result of an act of God, war, civil disturbance, court order, tabor dispute,
fire, or other cause beyond the reasonable control of Company, the requirement that
construction of the Project shall be tolled for a period of time equal to the period of such
stoppage or delay, and thereafter if construction is not comp}eted within the aHowed
period of extension then title to the Property shall revert to the City.
4. Reverter of TitIe; Indemnity. In the event of any reverter of title,
Company agrees that it shall, at its own expense, promptly execute all documents,
ineluding but not Iimited to a special warranty deed, or take such other actions as the
City may reasonably request to effectuate said reverter and to deliver to City title to the
Property that is free and clear of any lien, claim, or encumbrance arising by or through
Company. Company shall pay in full, SO 85 to discharge or satisfy, all Iiens, claims,
charges, and encumbrances on or against the Property. Appointment ofAttorney in
Fact: If Company fails to deliver such documents, including but not Iimited to a special
warranty deed, to City within thirty (30) days of written demand by Gity, then City shall
be authorized to execute, on Company's behalf and as its attorney-in-fact, the special
warranty deed required by this Section, and for such Iimited purpose Company does
hereby constitute and appoint City as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless
with respect to any demand, claim, cause of action, damage, cost, expense, Iiability or
injury made, suffered, or incurred as a result of or in connection with the Project,
Company's failure to carry on or complete same, or any lien, claim, charge, or
encumbrance on or against the Property of any type or nature whatsoever that attaches
to the Property by virtue of Company's ownership of same. If City fites suit to enforce
the terms of this Agreement and prevails in such suit, then Company shall be Iiable for
all legal expenses, including but not limited to reasonable attorneys' fees. Company's
duties of indemnity pursuant to this Sectiori shall survive the expiration, termination or
cancellation of this Agreement for any reason.
5. F'Jo Encumbrances; Limited Exception. Until completion of the
lmprovements, Company agrees that it shall not create, incur, or suffer to exist any fien,
encumbrance, mortgage, security interest, or charge on the Property, other than such
mortgage or mortgages as may be reasonably necessary to finance Cornpany's
completion of the Improvements and of which Company notifies City in advance of
Company's execution of any such mortgage. Company may not mortgage the Property
or any part thereof for any purpose except in connection with financing of the
lmprovements.
6. Water and Sewer. Company will be responsibte for extending water and
sewer service to any Iocation on the Property that it desires and for payment of any
associated connection fees.
7. Minimum Assessment Agreement. Company acknowleclges and
agrees that it will pay when due all taxes and assessmerits, generat or speciai, and alt
other charges whatsoever levied upon or assessed or placed against the Property
Company further agrees that prior to the date set forth in Section 2 of Exhibit "B" it will
not seek or cause a reduction in the taxable valuation for the Property, which shall be
fixed for assessment purposes, below the amount of $576,000 (the "Minimum Actuat
Value"), through:
(i)
either;
wiltful destruction of the Property, the Improvernents, or any part of
(U) a request to the assessor of Btack Hawk County; or
(iH) any proceedings, whether administrative, legal, or equitabte, with
any administrative body or court within the City, Black Hawk County, the State of
towa, or the federat government.
Company agrees to sign said attached Exhibit "C" at the closing.
8. Partiat Tax Exemption. Because the Property is located in a designated
Consolidated Urban Revitalization Area (CURA), the Property is eligible for tax
exemption consistent with and to the extent provided for in Iowa law, provided that
Company meets all requirements to qualify for such exemption.
9. Representations and Warranties of City. City hereby represents and
warrants as foliows:
A. City is not prohibited from consummating the transaction
contemptated in this Agreement by any Iaw, regulation, agreement, instrurnent,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shati be authorized to do so on
behalf of City.
10. Representations and Warranties of Company. Company hereby
represents and warrants as foliows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any Iaw, regulation, agreement, instrument,
restriction, order orjudgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and 18 duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has fufl 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 cni behalf of
Company.
11. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of
the Project, whether in whole or in part, to any other person or entity without the prior
written consent of City. Reasonabb gr�uncls for the City to withhold its consent shafl
include but are not Umited to the inability of the proposed transferee to demonstrate to
the City's satisfaction that it has the financial ability to observe all of the terms to be
performed by Company under this Agreement.
12. Materiality of Company's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company to be performed is a materiat term of
this Agreement, and each and every such promise, covenant, representation, and
warranty constitutes a material inducement for City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered thi Agreement. Upon breach of any promise or covenant,
or in the event of the incorrectness or faisity of any representation or warranty, City
may, at its sole option and in addition to any other right or remedy available to it,
terminate this Agreement and declare it null and void.
13. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legat counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, aU
ofwhich must be completed within 180 days from the date this Agreement is approved
by the City council. If such completion does not occur, then any conveyance, benefit or
incentive of any type provided by Gity hereunder within said 1 80 -day period is subject to
reverter of title, revocation, repayment or other appropriate action to restore such
property, benefit or incentive to City, and Company agrees to cooperate diligentty and in
good faith with any reasonable request by City to effectuate the restoration of same, or
failing such restoration Company agrees to be liable for same or for the fair value
thereof.
14. 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 mali, postage prepaid, or by facsimiie (with an additionai copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, iowa 50703, facsirriiie
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 606 Fairview Avenue, Waterioo, IA 50703,
Attention: Kenneth M. Kuebler and Burk Miehe.
Delivery of notice shafl be deemed to occur (1) on the date of delivery when delivered in
person, (11) one (1) business day foliowing deposit for overnight dehvery to an overnight
air courier service which guarantees next day dehvery, (Hi) three (3) business days
foliowirtg the date of deposit if mailed by Uniteci States registered or certified mali,
postage prepaid, or (iv) when transmitted by facsimiie SO iong as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successfuL A party may change the address for giving notice by any
method set forth in this section.
15. No Jaint Venture. Niothing in this Agreement shall, or shall be deemed
or construed to, create or constitute any joint venture, partnership, agency,
employment, or any other relationship between the City and Company nor to create any
hability for one party with respect to the Rabilities or obhgations of the other party or any
other person.
16. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shaH be vaRd or of any
effect uniess made in writing, signed by the party or parties to be bound or by the duly
authorized representative of same, and specifying with particuiarity the extent and
nature of the amendment, modification, or waiver. Any waiver by any party of any
default by another party shali not affect or impair any rights arising from any subsequent
defau it.
17. Severability. Each provision, section, sentence, ciause, phrase, and
word of this Agreement is intended to be severabie. If any portion of this Agreement
shali be deemed invahd or unenforceable, whether in whoie or in part, the offending
provision or part thereof shali be deemed severed from thts Agreement and the
remaining provisions of this Agreement shail not be affected thereby and shali continue
in fuil force and effect. If, for any reason, a court finds that any portion of this
Agreement is invahd or unenforceable as written, but that by Jimiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shafl be deemed to be written, and shali be construed and enforced, as 30
limited.
18. Captions. All captions, headings, ar tities in the paragraphs or sections
of this Agreement are inserted only as a matter of convenience andlor reference, and
they shalt in no way be construed as limiting, extending, or deseribing either the scope
or intent of this Agreement or of any provisions hereof
19. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
20. Counterparts. This Agreement may be executed in multiple
counterparts, each ofwhich shall be deemed an original and afl ofwhich, taken
together shail constitute one and the same instrument.
21. Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement of the parties and supersedes aH prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
22. 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 AMERICAN PATTERN STORAGE,
LL.C.
Quentin Hart, Mayor
By:
Burk Miehe
Managing . ember
Attest: By:
Suzy Sctklares, City Clerk
enneth M. Kuebler
Managing Member
PERSONAL GUARANTY. The undersigned, being either an officer, shareholder,
manager, or member of Company, hereby agree for themselves and their heirs,
personal representatives, and assigns, to unconditionally guarantee to City, its
successors and assigns, the full and prompt performance by Company, its successors
and assigns, of all promises and covenants on the part of Company to be performed
pursuant to the foregoing Agreement, including b not Iitpited to the dutie -\of indemnity
setforh)erTn. Liab. uarantors hereunck sjoinNnd sever
/1
enneth M4uebIer Bur iehe
EXHIBIT "A"
Legal Description of Property
AUDITORS CONSOLIDATED PLAT LOT 3 N 27.5 FT LOT 7 ALL LOT 8 EXC THAT PART LOTS 3 & 8
BEG AT MOST NLY COR LOT 3 SAID PLAT TH 848 DEG 19 MIN 24 SEC E ALONG NELY LINE SAID
LOT3 111.60 FTTH 842 DEG W290.33 FTTH N 46 DEG SN 111.60 FT TO NWLY LINE SAID LOT 3
TH N 42 DEG E ALONG SAID NWLY LINE 269.70 FT TO PT OF BEG.
Note: Deed to fdllow form of description set forth in abstract af title.
EXHIBIT "B"
Description of Irnprovements and Investment
See attached.
EXHIBIT "C"
MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
rlz L by and among the GITY OF WATERLOO, IOWA CCity"),
Americari Pattern Storage, L.L.C. ("Company"), and the COUNTY ASSESSOR of the
City of Waterloo, Iowa ("Assessor").
WITNJESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property, described in Exhibit "A" thereto, Iocated 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 Rath Urban Renewal PIan Area; and
WHEREAS, pursuant to Iowa Code § 4O36, 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 on!y 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 foliows:
1. Upon substantial completion of construction of the Improvements 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 Iess than $576,000.00 (the "Minimum Actual Value")
until termination of this Agreement. The parties hereto agree that construction of the
Improvements wilI be substantially completed on or before December 311 2016.
2. The Minimum Actual Value herein estabflshed shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2027. 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.
3. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, !owa. 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 Iimited 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 AMERICAN PATTERN STORAGE,
L.L.C.
Quentin Hart, Mayor
By dL
SuzyJares, City Clerk
By:
By:
Burk Miehe
Manayin. M
mber -
Kenneth M. Kuebler
Managing Member
STATE OF IOWA
ss.
COUNTY OF BLACK HAWK
On this day of Ro-vc>k 2-a to, before me, a Notary Public in and for
the State of Iowa, personaily appeared Quentin Hart and Suzy Schares, to me
personaily 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 behaif of said municipal corporation by authority and resolution of
its City Council, and said Mayor and City Clerk acknowiedged said instrument to be the
free act and deed of said municipal corporation by it and by them voluntarily executed.
NANCY t-IIGBY
STATE OF IOWA
)
) ss.
COUNTY OF BLACK HAWK
Notary Public (
Subscribed and sworn to before me on OIM&4 by Burk Miehe as
Managing Member of American Pattern Storage, L.L.C.
Subscribed and sworn to before me on
Kuebler as Managing Member of American Pattern 5
* 1 21/C b enheth M.
TIM ANDERA
COMMISSON N0J72518
MYCOMMISSIQt4 EXPIRES
APthL1I,2018
otary Pubflc
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the improve-
ments to be constructed and the market value assigned to the land upon which the
improvements are to be constructed for the deve!opment, and being of the opinion that
the minimum market value contained in the foregoing Minimum Assessment Agreement
appears reasonable, hereby certifies as foliows: The undersigned Assessor, baing
legaily 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 Iess than Five
Hundred Seventy Six Thousarid Dollars ($576,000.OQ) until termination of this Minimum
Assessment Agreement pursuant to the terms hereof.
Assessq(or B.Iack I-Iawk County, $owa
Date
STATE OF IOWA
55.
COUNTYOFBLACKHAWK
Subscribed and sworn to before me on ?- 3 c> -/&' by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
Notary Public
r.\ /1kf,
OEBORAH L, HOECKMAIIN
fl COMMI$SI�p4 NO. 195786
. MY_Zy),N6EXPIRE8