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HomeMy WebLinkAbout2010-02-08-Resolutions 10-36_Shottenkirk - Redevelopment Agr Amendment 1RESOLUTION 10-36 RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AMENDMENT NO.1 TO THE REDEVELOPMENT AGREEMENT AND CONSENT TO COLLATERAL ASSIGNMENT OF THE REDEVELOPMENT PROPERTY BETWEEN THE CITY OF WAUKEE AND SHOTTENKIRKPARTNERSHIP,L.P,(REDEVELOPMENT AGREEMENT ORIGINALLY APPROVED PURSUANT TO RESOLUTION NO.08-47) WHEREAS,following a public hearing pursuant to published notice in accordance with Iowa law,the City Council of Waukee,Iowa approved by Resolution No.08-47 a Redevelopment Agreement between the City of Waukee,Iowa and Shottenkirk Partnership,L.P.("Developer"),which Redevelopment Agreement (2008 Agreement)was effective February 25,2008;and WHEREAS,the City and Developer desire to amend the 2008 Agreement to remove from the Developer obligations,the obligation to construct the "future 6th Street/Highway 6 Traffic Signal Design and Construction,"at a maximum reimbursement of$43,750,as described in Exhibit B of this Agreement;and WHEREAS,accordingly the City and Developer desire to amend the 2008 Agreement to remove from the City's potential reimbursement obligations the identical amount of$43,750,thus changing the maximum Payments by the City from $311,518.00 to $267,768.00;and WHEREAS,the Developer wishes to assign its rights to TIF reimbursement under the 2008 Agreement to its Bank by way of a Collateral Assignment of the TIF Redevelopment Agreement and the City wishes to consent to such assignment;and NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WAUKEE,IOWA,as follows: 1.That the form and content of Amendment No.1 to the Redevelopment Agreement (Exhibit A),the provisions of which are incorporated herein by reference,be and the same hereby are in all respects authorized,approved and confirmed,and the Mayor and the City Clerk be and they hereby are authorized,empowered and directed to execute,attest,seal and deliver the Amendment to the Development Agreement for and on behalf of the City in substantially the form and content now before this meeting,and that from and after the execution and delivery of the Amendment to the Development Agreement,the Mayor and the City Clerk are hereby authorized,empowered and directed to do all such acts and things and to execute all such documents as may be necessary to -1 - carry out and comply with the provisions of the Amendment to the Development Agreement as executed. 2.The Collateral Assignment of the Redevelopment Agreement (Exhibit B)is authorized,approved and confirmed,and the Mayor and the City Clerk be and they hereby are authorized,empowered and directed to execute,attest,seal and deliver the Assignment for and on behalf of the City in substantially the form and content now before this meeting,and that from and after the execution and delivery of the Assignment,the Mayor and the City Clerk are hereby authorized,empowered and directed to do all such acts and things and to execute all such documents as may be necessary to Cat1Y out and comply with the provisions of the Assignment as executed. PASSED AND APPROVED this s"day of February,2010. ~ti:Jk«4=yor Pro Tem ROLL CALL VOTE Shane Blanchard Dan Dutcher Casey L.Harvey Darlene Stanton Mike Watts AYE X X X X NAY ABSENT ABSTAIN X -2- Exhibit A to City of Waukee Resolution No._ Related to Shottenkirk Redevelopment Agreement AMENDMENT 1 TO REDEVELOPMENT AGREEMENT This Amendment is made as of the __day 01'__,2010,to the Redevelopment Agreement ("2008 Agreement")dated February 25,2008,between the City of Waukee,Iowa ("City")and Shouenkirk Partnership,L.P.,an Iowa partnership (the "Developer"). WHEREAS,the City and Developer desire to amend the 2008 Agreement (0 remove [TOmthe Developer obligations,the obligation to construct the "future 6th Street/Highway 6 Traffic Signal Design and Construction,"at a maximum reimbursement of $43,750,as described in Exhibit 13ofthe 2008 Agreement;and WIIEREAS,accordingly the City and Developer desire to amend the 2008 Agreement to remove from the City's potential reimbursement obligations the identical amount of$43,750, thus changing the maximum Payments by the City from $311,518.00 to 5267,768.00;~U1d WHEREAS,the Developer wishes to assign its rights to TIF reimbursement under the 2008 Agreement (0 its Bank by way or a Collateral Assignment of the Til'Redevelopment Agreement and the City wishes to consent to such assignment;and NOW,THEREFORE,it is agreed by the parties that: I.Paragraph 3.Agreements by City.The existing paragraph 3(A)is deleted and replaced wi th the following paragraph: A.In recognition ofthe Developer's obligations set out above and to incent the Project,to make economic development tax increment payments (the "Payments")to the Developer in accordance herewith,pursuant to Chapters 15A and 403 of the Code of Iowa,provided,however,that the aggregate total amount or the Payments shall not exceed an amount equal to the lesser of (i)Developer's Eligible Costs certified to the City hereunder,or (ii)Two Hundred Sixty Seven Thousand Seven l Iundred Sixty-eight Dollars ($267,768.00). 2.Paragraph 3.Agrcements by Citv.The existing paragraph 3(B)is deleted and replaced with the following paragraph: B.Payments will be made 011 June I and December I of each fiscal year,beginning on December 10,2010,provided that the first ccrti fication has heen made by the Developer for Developer's Eligible Costs,and by the City for the tax increment obligation created by this Agreement,on or before October 15, 2009 and December 1,2009,respectively,and continuing for a total of not more than ten fiscal years,including the fiscal year in which the first Payment is made, or until such earlier date on which (a)total Payments in an amount equal to the lesser of (i)Two I Iundred Sixty Seven Thousand Seven Hundred Sixty-eight -I - Dollars ($267,768,00)or (ii)the Developer's Eligible Costs have been made;or (b)this Agreement otherwise terminates, 3, Exhibit 13: Exhibit 13 to the 2008 Agreement is deleted and replaced with the following as Exhibit 13 1.Public Improvements (sec B-1 for itemization) 2.Construction Management Fees for Public Improvements 3.Public Infrastructure Design Services 4.Off-Site Storm Water Design Services 5.Off-Site Storm Water Construction Cost 6,Legal Services $154,270 30,175 15,427 14,000 46,896 7,000 $267,768 4.All of the other provisions of the 2008 Agreement remain the same, IN WITNESS WHEREOF,the City has caused this Amendment to be duly exeented in its name and behalfby its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk,and Developer has eauscd this Amendmcn (0 be duly executed in its name and bchalfby its authorized members,all on or as of the date first written above. (SEAL)CITY OF WAUKEE,TOW A By _---==c:--=-~-=-c---~~~~-William Peard,Mayor ATTEST: By:_ Jeffrey Kooistra City Administrator/Clerk STATE OF IOWA COUNTY OF DALLAS ) )5S, ) On this day 01'___,2009,before me a Notary Public in and for the State of Iowa,personally appeared William Pcard and Jeffrey Kooistra,to me personally known, who being duly sworn,did say that they arc the Mayor and City Administrator/Clerk, respectively of the City of Waukee,Iowa;that the seal affixed to the foregoing instrument is the seal of said corporation,and that said instrument was signed and scaled on behalf of said -2 - corporation by authority and resolution of its City Council,as contained in Resolution No. _-;--;_-;--c:-.adopted by the City Council on the __day of ,20]0, and that the Mayor and City Administrator/Clerk acknowledged the exeention of the instrument to be their voluntary act and deed of the corporation,by it voluntarily executed. -~-_....._-:-:-~-:-::-----=----=-~-::-:-~Notary Public in and lor the Stale of Iowa SHOTfE7chHlP~.P. By:-c.;z::."/~c---'\.JY'g 81 olten .rk,e c~~-:'''' )'resident of Shottenkirk Properties, Inc.,Shottenkirk Properties,Inc. the General Partner of Shotlcnkirk Partnership,L.P. STATE or lOW A ) )ss. )COUNTY OF LEE On this ~day 0 r J:o:~----"",20 I 0,before me the undersigned,a Notary Public in and for the State of Iowa,personally appeared Greg Shottenkirk,to me known to be the identical person namcd in and who executed the foregoing instrument,and acknowledged that he executed the same as his voluntary act and deed. CSchnocb/642907.1 IlvISWorJ2193RC09 -3 .. Exhibit B to City of Waukee Resolution No._ Related to Shottenkirk Consent to Collateral Assignment of the Redevelopment Property CONSENT TO COLLATERAL ASSIGNMENT OF THE REDEVELOPMENT PROPERTY See attached. Cxchnocb/643D94.1/MSWord COLLATERAL ASSIGNMENT OF TIF REDEVELOPMENT AGREEMENT THIS COLLATERAL ASSIGNMENT OF TfF REDEVELOPMENT AGREEMENT (this "Assignment"),effective as of this 5th day of August,2009,is made by SHOTTENKIRK PARTNERSHIP,L.P.,an Iowa partnership ("Shollenkirk"),to V AI.LEY BANK ("Bank"). RECITALS WHEREAS,on February 25,2008,Shottenkirk Partnership,L.P.,and the City of Waukee,an Iowa municipal corporation,Dallas County,Iowa ("Waukee"),entered into that certain Tax Increment Financing District Redevelopment Agreement (the "TIl"Agreement"), relating to the development of real estate located within the Urban Renewal Area (the "Project") with benefits available under the tax increment ordinance (Ordinance No.2334)for the division of revenue pursuant to Iowa Code section 403.19 for the Urban Renewal Area (the "Ordinance"). WHEREAS,the TIP Agreement provides,among other things,that Waukee shall reimburse Shottenkirk certain monies not to exceed $267,768.00 of redevelopment project costs pursuant to the terms of the TIl"Agreement and the Ordinance. WHEREAS,on August 5,2009,Shottcnkirk executed that certain promissory note in favor of Bank in the principal amount of$400,000.00 to be used for the development of the Project WI IEREAS,Shottenkirk hereunder agrees to assign the TIF Agreement to Bank as collateral for the Loans under the terms and conditions hereof. NOW,THEREFORE,in consideration of this Assignment,the terms set forth in this Assignment,the Loans,future advancements on the Loans,the future financing referenced herein,and other good and valuable consideration,the receipt and sufficiency of which is hereby specifically acknowledged by Shottenkirk and Bank,the parties agree as follows: 1.The Recitals to this Assignment are hereby incorporated into this paragraph 1 as if fully set forth herein and are true and correct. 2.Shottenkirk,as collateral and security for the Loans,hereby unconditionally assigns and sets over to Bank any and all of its right,title and interest in the TIF Agreement, together with all amendments,addenda,supplements,modifications and extensions thereto, whether made now or in the future,pursuant to the terms herein. 3.So long as any principal,interest or other amounts due and owing remains outstanding on the Loans,Shottenkirk agrees and hereby directs Waukee to pay directly to Bank any and all amounts due and owing to Shottenkirk under the TlF Agreement.In connection therewith,Shottenkirk hereby irrevocably appoints Bank as Shottenkirk's power of attorney to exercise any and all rights of Shottenkirk in,to and under the TIF Agreement including,but not limited to,the right to receive payments from Waukee,and to do any and all other acts,in the name of Shottenkirk or Bank,that Shottenkirk could do under the 'I'll'Agreement with the same force and effect as if this Assignment had not been made. 4.This Assignment shall not be deemed to be an assignment of Shottenkirk's obligations under the TIF Agreement;it being the explicit understanding and agreement of Shottenkirk and Bank that Shottcnkirk shall remain solely liable to Waukee,and My other parties interested in any matter whatsoever related to the development of the Project,for Sholtenkirk's non-performance or default of the TIF Agreement.In connection therewith, Shottenkirk agrees to take all steps necessary to comply with and satisfy the terms ofthc TIF Agreement,and to maximize the amounts in which Shottenkirk may receive under the TIF Agreement.Shottenkirk agrees to indemnify and hold Bank harmless from any judgments, claims,losses,demands,costs and expenses,including reasonable attorney's fees,in connection with Shottenkirk's non-performance or default of the TIF Agreement.Notwithstanding the forgoing,should Bank,at its sole and absolute discretion,desire to fulfill any obligations of Shottenkirk under the TlF Agreement,Shottenkirk agrees that it may do so in the name of Shottenkirk.Any costs incurred by Bank in doing same shall be added to the Loans. 5.Shottenkirk shall file,in a timely manner and pursuant to the terms of the TIF Agreement,all requests for reimbursement from Waukee and do all things necessary to seck and receive apprnval for the reimbursement of the maximum amount of Eligible Project Costs (as defined in the TIF Agreement)from Waukee. 6.Shottenkirk agrees to execute and deliver to Bank any other documents or instruments necessary to satisfy the intent and purposes of this Assignment and to perfect the assignment made hereby. 7.Shottenkirk shall not further assign the TIF Agreement,or cause any amendment or modification to the TIF Agreement,without the prior written consent of Bank which may be withheld at Bank's sole and absolute discretion. 8.All payments to be made to Bank by Waukee pursuant to this Assignment shall be timely made to the following address: Valley Bank Attention:Tami Stombaugh 500 East LeClaire Road Eldridge,IA 52748 Shottenkirk agrees to take such action as shall be necessary to cause Waukee to issue all payments under the TlF Agreement due to Shottenkirk directly to Bank in a timely manner pursuant to the terms of the TIP Agreement. 9.This Assignment shall be binding upon and inure to the benefit of the successors, assigns,legal and personal representatives,executors,administrators,heirs and other transferees of the parties hereto.Notwithstanding the foregoing,Shottenkirk may not assign this Assignment without the prior written consent of Bank which may be withheld at Bank's sole and absolute discretion. 10.Shottenkirk represents and warrants to Bank that Shottenkirk,with the consent of Waukee,has full power and authority to make this Assignment,notwithstanding any provisions to the contrary in the TIF Agreement.The laws of the State of Iowa shall govern the terms of this Assignment,without regard to the conflicts of law provisions of said state. II.This Assignment may be executed in any nwnber of counterparts,each of which, when so executed and delivered,shall be an original,but such counterparts shall together constitute one and the same instnunent. IN WITNESS WHEREOF,the parties hereto,intending to be legally bound hereby,have executed this Assignment by their duly authorized representatives,dated and effective as the date first written above. VALLEY BANK By:~~/jj~ S'!"an C~~ughlin,VP Credit Administration ACKNOWLEDGEMENT AND CONSENT TO ASSIGNMENT BY THE CITY OF WAUKEE,IOWA The undersigned,the duly authorized and acting Mayor for the City of Waukee,Iowa, hereby acknowledges and consents in full to this Assignment as set forth above and agrees to abide by the Assignment's terms and provisions,notwithstanding any provisions to the contrary in the TIF Agreement.The undersigned further agrees that all payments after the date of the City of Waukee's consent that are due to Shottenkirk pursuant to the TIF Agreement shall,unless otherwise notified from Bank in writing,be sent and made payable directly to Bank pursuant to the terms of the Assignment.It is expressly understood and agreed that Bank neither assumes nor has any obligation to the undersigned under the TIF Agreement or as a result of this Assignment.The undersigned shall not in any other manner enter into any amendment of the TIF Agreement that reduces the maximnm reimbursement of eligible project costs to less than $267,768,00 without the prior written approval of Bank which may be withheld at Bank's sole and absolute discretion, Dated this day of ,2010, CITY OF WAUKEE By,c-:-----:c--:-::--:----_ William Peard,Mayor Attest: City of Waukee,Iowa City Clerk