HomeMy WebLinkAbout2007-12-03-Resolutions 07-261_Enterprise Business Park P3 - Development Agr Amendment 3THE CITY OF WAUKEE,IOWA
RESOLUTION 07-261
APPROVING AMENDMENT #1 TO DOWNING DEVELOPMENT
AGREEMENT,ENTERPRISE BUSINESS PARK PLAT THREE
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA
WHEREAS,the City of Waukee,Dallas County,State ofIowa,is a duly organized
Municipal Organization;AND,
WHEREAS,on August 6,2001,the City of Waukee and Downing Development,LTD
entered into a Development Agreement in which the developer agreed to undertake
certain commercial development activities and public improvements,and in which the
City agreed to rebate to the developer from incremental taxes (Resolution #01-137);
AND,
WHEREAS,in order to clarify the obligations of the parties under the original
agreement,an amendment to that agreement has been drafted by the City Attorney;
AND',
WHEREAS,the amendment is agreeable to both the City and the developer;
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in
session this 3'd day of December2007 that it hereby approves Amendment #1 to Downing
Development Agreement,Enterprise Business Park Plat Three,which is attached hereto
and incorporated herein.
Attest:
ROLL CALL VOTE
Donald L.Bailey,JI.
Isaiah McGee
JeffV.Mertz
Darlene Stanton
Mike Watts
AYE
X
X
X
X
X
NAY ABSENT
�arOI �[nay no],Kecoraer
DaI I as County I O~IA
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AUD ---
Preparer Information:Steve Brick,Brick Gentry Law,6701 Westown Pkwy.,Ste.100,West Des Moines,IA
50266
Rebecca D.Schuett,City of'Weukee,230 Highway 6,Waukee,IA 50263;987-4522Bill/Return Document to:
,--",/'~/r.co?~Y .~.:_,Amendment #1 to Downing Development Agreement
Enterprise Business Park Plat Three
WHEREAS,on August 6,2001,the City of Waukee,Iowa (the "City")and
Downing Development,LTD (the "Developer")entered into the Downing Development
Agreement Enterprise Business Park Plat Three (the "Original Agreement")pursuant to
which the Developer agreed to undertake certain commercial development activities,
including the Project (as defined therein)and various public improvements related thereto,
and the Ci ty agreed to rebate to Developer from incremental taxes an amount equal to
certain "Qualified Expenses";and
WHEREAS,since that time Developer has completed construction of the Project;
and
WHEREAS,Developer incurred "Qualified Expenses"in furtherance of the Project
in thc amount of $476,599.73,for which the City has been certifying and rebating to
Developer in accordance with the Original Agreement;and
WHEREAS,to clarify the obl igations of the parties under the Original Agreement,
the parties agree to amend the Original Agreement.
NOW,THEREFORE,in consideration of the mutual obligations contained in the
Original Agreement,the ongoing obligations contained herein,and $1.00 and other good
and valuable consideration,the parties hereto agree as follows:]
Section 1.The Original Agreement shall be amended as follows:
a.A new paragraph shall be added following the first paragraph of paragraph
3,as follows:
"Qualified Expenses in the amount of$476,599.73 have been incurred by
Developer and certified to the City in furtherance of the Project.Such shall
constitute the aggregate amount of all Payments to the Developer.No additional
Qualified Expenses shall be incurred by Developer.To date,Qualified expense
payments of $98,273.85 have been paid to Developer,and such shall cease upon
payment of the balance of the qualified expenses in full in accordance with the
original agreement as amended,or termination of this Agreement,whichever occurs
first."
b.The following paragraphs shall be added to the end of Paragraph 3:
"Each Payment shall be subject to annual appropriation by the City Council.
Prior to December 1 of each year during the term of this Agreement,the City
Council of the City shall consider the question of obligating for appropriation to the
funding of the Payments due in the following fiscal year,an amount ofIncremental
Property Tax Revenues to be collected in the following fiscal year equal to or less
than the most recent Developer's Estimate (the "Appropriated Amount").
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To the extent that the City Council decides to obligate funds for
appropriation to the Payments,the City agrees to certify by December 1 of each
year during the term of this Agreement to the Dallas County Auditor an amount
equal to the most recently determined Appropriated Amount.
The right of non-appropriation reserved to the City in this Section is
intended by the parties,and shall be construed at all times,so as to ensure that the
City's obligation to make future Payments shall not constitute a legal indebtedness
of the City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the
payment of that instaJlment or amount.In the event that any ofthe provisions of
tbis Agreement are determined by a court of competent jurisdiction to create,or
result in the creation of,such a legal indebtedness of the City,the enforcement of
the said provision shall be suspended,and the Agreement shall at all times be
construed and applied in such a manner as will preserve the foregoing intent of the
parties,and no event of default shall be deemed to have occurred as a result thereof.
If any provision of this Agreement or the application thereof to any circumstance is
so suspended,the suspension shall not affect other provisions of this Agreement
which can be given effect without the suspended provision.To this end the
provisions of this Agreement are severable."
Section 2.
parties.
This Amendment shall be effective upon the due execution by all
Section 3.Except as amended herein,all of the other terms and conditions of
the Original Agreement are in all respects ratified,confirmed and approved and shall
remain in full effect.
Dated this 3 r0\day of OUJ 'viIfM.,v ,2007.
CITY OF WAUKEE,row A
K&p~
ATTEST:
DOWNING DEVELOPMENT,LTD
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Book 2007 Page 19002
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