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HomeMy WebLinkAboutIowa Development Enterpeises, LLC-10/7/2013Preparer Information: Christopher S. Wendland, PO Box 596, Waterloo, Iowa 50704 (319) 234.5701 Name Address City Phone SPACE ABOVE THIS LINE FOR RECORDER DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of ®r lst?._ 7 , 2013 by and between Iowa Development Enterprises, L.L.C. (the "Company") and the City of Waterloo, Iowa (the "City"). 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 community to provide financial incentives so as to encourage that goal. B. Company is willing and able to finance and construct single-family homes and related improvements on property located on Burton Avenue, being a portion of the former Van Eaton school site, legally described as set forth on Exhibit "A" attached hereto (the "Property"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties 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 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 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, at its own expense, deliver to Company 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 DEVELOPMENT AGREEMENT Page 2 City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Company, Company may terminate this Agreement. 2. Improvements by Company. Company shall plat the Property for development and construction of five (5) single -family homes having an anticipated appraised value upon completion in the range of $150,000 to $200,000 each. No more than one home shall be constructed on each lot, and each separate lot upon which a home will be constructed shall be completed to a finished state, including installation of driveways and sidewalks, removal of all construction debris, proper leveling or shaping of groundscape, and grassing and/or landscaping (home construction and finishing as so described are referred to as the "Improvements"). The Improvements shall be constructed in accordance with all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. The Property, the Improvements, and all site preparation and development-related work to make the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project". 3. Timeliness of Construction; Possibility of Reverter. 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 to Company and that without said commitment City would not do so. As to each separately platted lot, Company must obtain a building permit and begin construction within six (6) months of the date of conveyance from City, and construction of Improvements on the Property shall be completed within twelve (12) months of the date of conveyance (the "Project Completion Date"). If, within said 6-month period, Company has not in good faith begun construction of the Improvements upon the Property, then title to the Property shall revert to the City. If construction has not begun within said 6-month period 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 development has commenced within the 6-month period or 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 is to be completed by the Project Completion Date 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 the title to the Property shall revert to the City after the end of said period. 4. Reverter of Title. 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. Concurrently with the deed, Company shall deliver to City the abstracts of title for DEVELOPMENT AGREEMENT Page 3 Property conveyed. 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 and related abstracts of title, 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, and for such limited purpose Company does hereby constitute and appoint City as its attorney-in-fact. 5. Indemnity. 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 shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. No Encumbrances; Limited Exception. Until substantial completion of the Project, Company agrees that it shall not create, incur, or suffer to exist any lien, encumbrance, mortgage, security interest, or charge on the Property lying within any such phase, other than such mortgage or mortgages as may be reasonably necessary to finance Company's undertaking of the Project and of which Company notifies City in advance of Company's execution of any such mortgage. 7. Water and Sewer; Utilities. Company will be responsible for extending water, sewer and utilities services to any location on the Property and for payment of any associated 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 any 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 so on behalf of City. 9. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. DEVELOPMENT AGREEMENT Page 4 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 any platted lot within the Property prior to substantial completion of Improvements for such lot, whether in whole or in part, to any other person or entity without the prior written consent of 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 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 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 by facsimile (with an additional copy delivered by one of the foregoing means), and addressed: (a) if to City, to City of Waterloo, 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, to Iowa Development Enterprises, L.L.C., 2909 Mills Lane, Waterloo, Iowa 50701, Attention: Jason Guthrie. 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 DEVELOPMENT AGREEMENT Page 5 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 is intended to be severable. If any portion 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 this 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 a 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. DEVELOPMENT AGREEMENT Page 6 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. CITY OF WATERLOO, IOWA IOWA DEVELO• ENTERPRIS By: Ernest . Attest' Clark, Mayor Suzy Schares, City Clerk By: MENT L.L.C. J / on Guthrie anager or Managing Me 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 but not limited to the duties of indemnity set fort erein;Liability of guarantors hereunder is joint and several. EXHIBIT "A" Legal Description of Property The West 136 feet of the West one-half of Lot 2, Block 2, Replat of the West'/ of Cushman Heights, City of Waterloo, Iowa. Preparer Information Christopher S. Wendland P.O. Box 596 Waterloo, IA 50704 (319) 234-5701 Individual's Name Street Address City Phone Address tax statement to Iowa Development Enterprises, L.L.C., 2909 Mills Lane, Waterloo, IA 50701 Retum deed to grantee. QUIT CLAIM DEED For the consideration of One Dollar ($1.00) and other valuable consideration, City of Waterloo, Iowa, does hereby Quit Claim to Iowa Development Enterprises, L.L.C. all of its right, title, interest, estate, claim, and demand in the following described real estate in Black Hawk County, Iowa: The West 136 feet of the West one-half of Lot 2, Block 2, Replat of the West'/ of Cushman Heights, City of Waterloo, Iowa. Subject to easements of record, zoning restrictions, and restrictive covenants, if any. Grantor is an Iowa political subdivision. Exempt from real estate transfer tax and declaration of value. The Grantor hereby covenants with grantees, and successors in interest, to warrant and defend the real estate against the lawful claims of all persons claiming by, through, or under it, except as may be stated above. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine or feminine gender, according to the context. STATE OF IOWA ) ) ss: BLACK HAWK COUNTY ) Acknowledged before me on 2014, by Emest G. Clark and Suzybres, as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa. ✓,, Notary Public y e 6 DeAnne Kobl�ska 47.� � COMMISSION NO. 763995 e• MY COMMISSION EXPIRES r nnn,rTnir Dated: -MCI.,fe CITY OF WATERLOO, IOWA By:e Emest G. lark, Mayor , 2014. 7,01Z Suzy Scharees, I Clerk t STATE OF IOWA, } Black Hawk County, SS NOTICE OF PUBLIC HEARING TO WHOM IT MAY CONCERN: Notice is hereby given that on the 7th day of October, 2013, at 5:30 p.m., in the Council Chambers in the City Hall in the City of Waterloo, Iowa, a public hearing will be held by the Council of the City of Waterloo, Iowa, to approve a Develop- ment Agreement with Iowa Development Enterprises LLC for the sale and convey- ance of city -owned property generally described as the former Van Eaton School site for the purpose of construct- ing 5 single-family homes, legally de- scribed as follows: Lot 2 In Block 2 of Replat West % of Cushman Heights, all in the City of Wa- terloo, Black Hawk County, Iowa. Anyone who is interested may appear at said time and place and be heard or may file written objection with the City Clerk, City Hall, Waterloo, Iowa, before the date set for said hearing. By order of the Council of the City of Wa- terloo this 16th day of September, 2013. Suzy Schares City Clerk I do solemnly swear that the annexed copy of legal City of Waterloo 10/7 Public Hearing Notice was published in the Waterloo -Cedar Falls Courier, a daily newspaper printed in Waterloo, Black Hawk County, Iowa, once commencing on the 3rd day of October, 2013 in the name of said newspaper, and that the annexed rate of advertised is the regular legal rate of said newspaper, and that the following is a correct bill for publishing said notice. Printer's Bill $12.34 Signed Subscribed and swo efore me this Day ofabbe A.D., 20 13 Received of Notary Public the sum of Dollars. In full for publication of the above notice.