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HomeMy WebLinkAboutBlack Hawk Contracting and Development Co.-5/6/2013Prepared by: Noel Anderson, City of Waterloo Planning and Zoning, 715 Mulberry St, Waterloo, IA 50703 DEVELOPMENT AGREEMENT This Agreement is made and entered into this G day of 2013 by and between Black Hawk Contracting and Development Co., hereafter called "Company", and the City of Waterloo, Iowa, hereinafter called "City". WHEREAS, City considers economic development within the City a benefit to the community and is willing for the total good and welfare of the community to sell city - owned property not needed for current or future public purposes so as to encourage that goal, and WHEREAS, Company is willing and able to construct four (4) residential townhouse dwellings, valued at approximately $135,000.00 each, on five (5) properties owned by the City, and legally described on attached Exhibit "A". WHEREAS, said construction of four (4) residential townhouse dwellings, as shown on attached Exhibit "B", shall be completed by March 31, 2014, of this signed and executed Development Agreement by Company, and said permit(s) for the new construction shall be taken out within two (2) months of approval of the Agreement and conveyance. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS HEREINAFTER CONTAINED, Developer and City agree as follows: 1. Sale of Property; Title. Subject to the terms hereof, City shall convey the property, or cause it to be conveyed, to Company for the sum of $1.00 (the "Purchase Price"). Conveyance shall be quit claim deed, free and clear of all encumbrances arising by or through City, except: (a) easement, conditions and restrictions of record which do not, in Company's opinion, interfere with Company's proposed use; (b) current and future real estate real 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 applicable law. City shall have no duty to convey title to Company until Company delivers to City reasonable and satisfactory proof of financial ability to undertake and carry on the Project (defined below), which may take the form of a lending commitment letter. Company shall, at its own expense, prepare an updated abstract of title, or in lieu thereof Company may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to Company, and if City does no remedy or remove such objectionable matters in timely fashion following written notice of such objections from Company, Company may terminate this Agreement. City shall provide any title documents it has in its possession, including any abstracts, to assist in title preparation. 2. Improvements by Company. Company agrees to and shall construct four (4) residential townhouse dwellings, with each unit valued at approximately $135,000.00 each, on five (5) separate properties, and take out necessary permit(s) within a two-month period, from the date of this agreement. Said residential townhouse dwellings shall be constructed in accordance with all applicable City, State, and Federal building codes and be in compliance with all applicable city ordinances. The Property, the Improvements, and all site preparation and development - related work to make the Property usable for Company's purpose as contemplated by this Agreement are collectively referred to as the "Project". 3. Timeliness of Construction. The parties agree that Company's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to convey the Property, or to cause the Property to be conveyed, to Company and that without said commitment would not do so. Measured from the date the Property is deeded to Company, Company must obtain a building permit(s) and begin construction on said houses. If Company has not, in good faith, begun the construction of any phase of the Improvements on the schedule stated above, then title to the Property shall revert to the City, except as provided in this Agreement; provided, however, that if construction has not begun, but the development of the Project is still imminent, the City Council may, but shall not be required to, consent to an extension of time for the construction of the Improvements, and if an extension 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 economically feasible, then after giving thirty (30) days' advance written notice to City, Company may convey the Property to City, and thereupon neither party shall have any further obligation under this Agreement except as expressly provided. If development has commenced within the required period of any extended period 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 requirement that construction of any phase or of the entire Project 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 then title to the Property shall revert to the City. 4. Platting and Release. Company may, in consultation with City, plat the Property if reasonably necessary for purposes of the Project. As nearly as reasonably possible, the area platted for each phase shall correspond with the description of the phase area stated in Section 2 above, or shall be comprised of a roughly equivalent area as measured in square feet. In connection with any sale by Company of that part of the Property corresponding with a completed phase of Improvements, City agrees to release such part of the Property from the conditions and restrictions set forth in this Agreement. A release of any such part of the Property shall not affect the continued effectiveness and enforceability of this Agreement as to any part of the Property that is not specifically released. 5. Reverter to Title; Indemnity. Title shall not revert to City as to any phase of Improvements that has been substantially completed. In the event of any reverter of title, Company agrees that it shall, at its own expense, promptly execute all documents, including but not limited 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 as to discharge or satisfy, all liens, claims, charges, and encumbrances on or against the Property. If Company fails to deliver such documents, including but not limited to a special warranty deed, to City within thirty (30) days of written demand by City, 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 4, and for such limited 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, 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 files suit to enforce the terms of this Agreement and prevails in such suit, then Company shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees. Company's duties of indemnity pursuant to this Section 5 shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. No Encumbrances; Limited Exception. Until completion of the Improvements, Company agrees that it shall not create, incur, or suffer to exist any lien, encumbrance, mortgage, security interest, or charge on the Property, other than such mortgage or mortgages as may be reasonably necessary to finance Company'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 Improvements. 7. Water and Sewer. Company shall be responsible for extending water and sewer service to any location on the Property and for payment associated with connection fees. 8. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by an law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do on behalf of City. 9. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating this transaction contemplated in this Agreement by a law, regulation, agreement, instrument, restriction, order or judgment. B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full 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 on behalf of Company. 10. 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 the City. Reasonable grounds for the City to withhold its consent shall include but are not limited 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. 11. 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 material term of this Agreement, and each and every 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 this Agreement. Upon breach of any promise or covenant, or in the event of the incorrectness or falsity 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. 12. 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 mail, postage prepaid, or facsimile (with and additional copy delivered by one of the foregoing means), and addressed: For the City: Mayor Ernest G. Clark City Hall 715 Mulberry Street Waterloo, Iowa 50703 With copy to Community Planning & Development Director For Developer: John R. Rooff III Black Hawk Contracting and Development Co. 1509 Commercial Street Waterloo, Iowa 50702 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (1) business day following deposit for overnight delivery to an overnight air courier service which guarantees next day delivery, (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iv) when transmitted by facsimile so long 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. 13. No Joint Venture. Nothing 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 liability for one party with respect to the liabilities or obligations of the other party or any other person. 14. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 15. Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of the Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 16. Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 17. Binding Effect. This agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 19. Entire Agreement. This Agreement, together with the exhibits attached hereto, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. 20. 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. BLACK HAWK CONTRACTING AND DEVELOPMENT John ' . Rooff III, D CITY O By: `11/F/ � 'nest G. Clark, Mayor Date TERLOO, I WA _ ii -1g Date ATTEST: S/U Suzy Sc t ares, City Clerk Date PERSONAL GUARANTY. The undersigned, being either an office, 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, it successors and assigns, of all promises and covenants on the part of Company to be performed pursuant to the foregoing Agreement, including but not limited to the duties of indemnity set forth therein. Liability of guarantors hereunder is joint and several. Exhibit "A" Legal Descriptions — Properties to be Conveyed ORIGINAL PLAT WATERLOO EAST, THE NORTHWEST 60 FEET OF LOT 1, BLOCK 17, AND THE NORTHWEST 60 FEET OF THE NORTHEAST 15 FEET OF LOT 4, BLOCK 17. ORIGINAL PLAT WATERLOO EAST, THE SOUTHEAST 50 FEET OF LOT 2, BLOCK 17, AND THE SOUTHEAST 50 FEET OF LOT 3, BLOCK 17. ORIGINAL PLAT WATERLOO EAST, THE SOUTHEAST 45 1/3 FEET OF THE NORTHWEST 100 FEET OF LOT 2, BLOCK 17, AND THE SOUTHEAST 45 1/3 FEET OF THE NORTHWEST 100 FEET OF THE NORTHEAST 26 FEET OF LOT 3, BLOCK 17. ORIGINAL PLAT WATERLOO EAST, THE NORTHWEST 54 2/3 FEET OF LOT 2, BLOCK 17 AND THE NORTHWEST 54 2/3 FEET, OF THE NORTHEAST 26 FEET OF LOT 3, BLOCK 17. ORIGINAL PLAT WATERLOO EAST, THE NORTHWEST 100 FEET OF THE SOUTHWEST 34 FEET OF LOT 3, BLOCK 17 all in the City of Waterloo, Black Hawk County, State of Iowa Exhibit "B" See building plans and sketches attached hereto IN LEVEL / / Unit-2.gif Type: GIF Image Size: 62.7 KB Dimension: 800 x 800 pixels Bedroom #2 Bedroom #3 Living Room r II Master Bedroom JTJI Qai oma pm; aPplunoo ,,a.„ vutimirmi eam oasnm "ID Veep wwoaa,allo ns •ao<p ugreattem map Alamo mg olm• oadmi m scattl. *scum au =pm oomph, p) Ara ata19.1co a44'pmwm 'mosey napaaeaa mac atop Allan= a0 Rowans= 9 ,�av• a,aaaaav,ommeg