HomeMy WebLinkAboutHawkeye Commmunity College 28E Agreement-8/21/2017(Recorded) 111111111111111111111 Ill III I I II Ill I III IIIII IIII IIIII IIIII III
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Recorded: 03/28/2022 at 01:59:21 PM
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Black Hawk County Iowa
SANDIE L. SMITH RECORDER Q Q
File2022-00018832
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Prepared by Christopher S. Wendland, P.O. Box 569, Waterloo, IA 50703. (319) 234-5701
After recording, send to:
AFFIDAVIT
STATE OF IOWA, COUNTY OF BLACK HAWK, ss:
The undersigned, being first duly sworn on oath, deposes and states as follows:
1. I am an Economic Development Specialist for the City of Waterloo, Iowa. I am familiar
with the terms of a certain Chapter 28E Agreement for Residential Housing Construction (the
"Agreement") dated August 21, 2017 and recorded September 7, 2017 as Doc. No. 2018-4311, by and
between Hawkeye Community College ("College") and the City of Waterloo, Iowa. The Agreement
imposed certain development obligations on College.
2. I am personally familiar with a project covered by the Agreement that is located at 235
Newell Street, and I acknowledge that with respect to said project College has substantially fulfilled its
obligations under the Agreement. This affidavit is given to aid in clearing title to property that is the
subject of the Agreement, located at 235 Newell Street and legally described as: "Lot 10 in Block 1 in
"Manson's Second Addition" in Waterloo, Iowa."
3. Terms that are capitalized but not defined in this affidavit, if any, shall have the meaning
ascribed to them in the Agreement.
Dated March , 2022
nne Miller
Subscribed and sworn to before me on March S , 2022.
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Doc ID: 008224020009 Type GEN
Recorded: 09/07/2017 at 03:32:47 PM
Fee Amt: $47.00 Pape 1 of 9
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
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CHAPTER 28E AGREEMENT -
AGREEMENT FOR RESIDENTIAL HOUSING CONSTRUCTION
THIS AGREEMENT made and entered into the 91 s -t day ofA(' GAS 2017, by
and between the Hawkeye Community College (hereinafter referred to as ` ollege") and the City of
Waterloo, Iowa (hereinafter referred to as "City"):
WHEREAS, College is a community college organized and existing under the laws of the State
of Iowa and is a public agency as defined in Iowa Code Chapter 28E; and
WHEREAS, City is a municipal corporation organized and existing under the laws of the State
of Iowa and is a public agency as defined by Iowa Code Chapter 28E; and
WHEREAS, College provides vocational and technical education and training to students,
including education and training to students in the building trades, and has authority to sell student
constructed buildings and the property on which such student constructed buildings are located
pursuant to Iowa Code § 260C.14(6); and
WHEREAS, City has a shortage of adequate housing, attributable in part to the relative
shortage of the number of individuals who are skilled in the building trades; and
WHEREAS, City currently owns and intends in the future to acquire parcels of property which
are suitable for the construction of student constructed housing; and
WHEREAS, City desires to transfer lots to the College for the College to construct student
constructed houses on, and to purchase the lots back from the College upon completion of such
construction at the cost of materials to the College; and
WHEREAS, College desires to accept individual lots from the City, construct student
constructed houses thereon, and transfer the lots back to the City upon completion of construction in
exchange for the cost of materials actually incurred by the College; and
WHEREAS, public agencies may enter into an agreement for joint and cooperative action
pursuant to Iowa Code Chapter 28E; and
WHEREAS, College and City believe that an agreement pursuant to Chapter 28E of the Iowa
Code should be entered into with regard to the construction of student constructed homes in the City,
which agreement will be to their mutual advantage.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements hereinafter contained, it is hereby agreed by and between College and City as follows:
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1. Purpose. The Purpose of this Agreement is to facilitate the joint exercise of the parties'
respective powers to fund and construct College student constructed houses on property currently
owned by City, subject to the terms and conditions set forth herein.
2. Administration. No separate legal or administrative entity shall be created for the
governance or administration of the terms or subject matter of this Agreement. This Agreement will be
administered by the Vice President of Administration and Finance or his/her designee on behalf of
College, and the Community Planning and Development Director or his/her designee on behalf of City.
3. Proiect. College shall construct student constructed houses on property owned by the
City on an ongoing basis as contemplated by the terms of this Agreement (the "Project").
4. Property. Each Property to be used for the Project shall be identified and mutually
agreed upon by the Community Planning and Development Director for the City and the Vice
President of Administration and Finance of the College.
5. Duration. This Agreement shall remain in effect unless and until terminated in
accordance with Section 13, commencing with the date of filing of this Agreement with the Iowa
Secretary of State, in accordance with Iowa Code Section 28E.8.
6. Transfer of Property to Collette. At such time as the Community Planning and
Development Director for the City and the Vice President of Administration and Finance of College
mutually agree on a lot of property to be used for the Project (each lot agreed upon between the parties
is herein referred to individually as the "Property"), City shall convey the Property to College on the
following terms and conditions:
A. Purchase Price. City acknowledges the services provided by College related to
the Project are sufficient consideration to support City's obligation to transfer
the Property to College. No additional monetary consideration will be required
of the College.
B. Possession and Closing. The closing date shall occur on a date mutually
agreeable to the parties ("First Closing Date"). Possession of the Property
("Possession") shall be delivered to College at the First Closing Date. Each
transaction shall be considered closed upon the filing of all title transfer
documents ("First Closing").
C. Taxes and Special Assessments. City shall pay all property taxes and/or special
assessments, if any, pertaining to the Property at all times during the pendency
of this Agreement, notwithstanding which party holds legal title to the
Property. College represents that the real property owned by it under this
Agreement will be exempt from taxation for property tax purposes until it is
occupied or sold.
D. Included Property. Included with the Property shall be all improvements and
fixtures that integrally belong to, are specifically adapted to, or are a part of the
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Property, whether attached or detached. City covenants that each Property shall
be a bare lot, free from any structures.
E. Platting: Survey. If a survey is required under Iowa Code Chapter 354, city or
county ordinances, or is necessary to permit College to carry out its obligations
under this Agreement, City shall pay the cost thereof.
F. Environmental. City represents and warrants to College that, to the City's
knowledge formed without specific inquiry: (i) the Property has not been used
for the purpose of generating, receiving, handling, using, storing, treating,
transporting or disposing of (A) any hazardous material as defined in any
applicable federal, state, county or local statutes, laws, regulations, rules,
ordinances, codes, standards, orders, licenses and permits of any governmental
authorities relating to environmental matters (being hereinafter collectively
referred to as the "Environmental Laws"), (B) other toxic, dangerous or
hazardous chemicals, materials, substances, pollutants and wastes, or any
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any federal, state, county, regional or local authority or (C)
petroleum products (except petroleum products received, handled, used,
stored, treated, transported or disposed of in accordance with Environmental
Laws), (ii) there are no existing or pending remedial actions or other work,
repairs, construction or capital expenditures with respect to the Property in
connection with the Environmental Laws, nor has City received any notice of
the same and (iii) no Hazardous Materials have been or will be released into the
environment, or have been or will be deposited, spilled, discharged, placed or
disposed of at, on or adjacent to the Property, nor has the Property been used at
any time by any person as a landfill or a disposal site for Hazardous Materials
or for garbage, waste or refuse of any kind (all the foregoing being hereinafter
collectively referred to as "Hazardous Materials"). City shall also provide
College with a properly executed Groundwater Hazard Statement showing no
wells, solid waste disposal sites, hazardous waste, underground storage tanks,
burial sites, or private sewage disposal systems on the Property. This
representation and warranty shall survive the First Closing, Second Closing,
and the termination of this Agreement.
G. Deed. At First Closing, City shall convey merchantable title to the Property to
College, by a duly executed and acknowledged general warranty deed, free and
clear of liens and encumbrances, reservations, exceptions or modifications
except as expressly accepted by College in writing. Said deed shall be in a
form acceptable to College. City shall be responsible for payment of revenue
stamps, if any, and recording costs payable to the Black Hawk County
Recorder.
H. Warranties. In addition to any other warranties stated herein or in the general
warranty deed to be executed and delivered by City to College, City represents
and warrants to College the following:
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City is the owner in fee simple of the Property free and clear from all
liens and encumbrances, and City's entering this Agreement will not
conflict with any other contract, agreement, or obligation to which City
is a party.
There will be no leases or other occupancy agreements relating to the
Property in effect as of the date of First Closing.
City has entered into no other agreements to sell the Property.
v. City is not a party to any litigation, nor does City know of any litigation
or threatened litigation, affecting the Property, or City's ownership
thereof, and City shall give College prompt notice of any claim,
threatened litigation, or instigation of any litigation prior to First
Closing.
v. City has not received and has no knowledge of any notice or request
from any governmental authority having jurisdiction regarding any
violation of any federal, state, or local law or requesting the
performance of any work or alteration with respect to the Property.
vi. City is not in default under the terms of any lease, contract, agreement,
order, or judgment affecting the Property or the operation thereof.
vii. There are no contracts or agreements, written or oral, which would
bind College, affecting the ownership or operation of the Property.
viii. There are no structures on the Property.
ix. No labor has been performed, or materials supplied, for the Property
which the City has not fully paid.
x. There are no condemnation proceedings pending, or to the best of
City's knowledge, contemplated against the Property, or any part
thereof, and the City has received no notice, oral or written, of the
intent or desire of any public authority or public utility to take or use
the Property or any part thereof.
xi. City has no knowledge or information of any facts, circumstances, or
conditions which do or would in any way adversely affect the Property.
xii. The representations and warranties of City contained in this Section 6
shall survive First Closing, Second Closing, and the termination of this
Agreement.
7. Construction of Project. Following transfer of the Property to College, College shall
construct the Project on the Property on the following terms and conditions:
A. Budget and Design. Prior to commencement of construction of the Project,
the City and College shall meet and mutually agree upon the design plans and
specifications for the Project, which may include sodding or seeding and a
not -to -exceed budget amount for the Project. Once agreed upon, neither the
design nor budget may be amended, without the written consent and agreement
of both the City and College.
B. Scope of Work. College will furnish all tools, equipment, components,
machinery, supplies, superintendence, insurance, transportation and other
construction accessories, services, facilities, and labor necessary to construct
the Project in accordance with the plans and specifications agreed upon by the
Community Planning and Development Director for the City and the College
Vice President of Administration and Finance and in compliance with all City,
state, and federal building codes and with all applicable City ordinances and
other applicable law. In the event the College should anticipate a material
increase in the cost of materials to complete the Project above what was
budgeting prior to the commencement of work, the College shall obtain City's
written approval of such cost overruns prior to incurring the same.
C. Time for Completion. The Project will be completed within three (3) years
after the First Closing, but College shall be entitled to a 6 -month extension
upon written notice to City if College reasonably believes that completion can
be attained during the extended period. Any further extension shall require
City's written consent, which consent shall not be unreasonably conditioned or
withheld. Completion shall be evidenced by production of executed final lien
waivers from all contractors and suppliers and a certificate of occupancy issued
by the City of Waterloo Building Inspections Department. The Property shall
be tumed over to City in standard, "broom clean" condition, and all remaining
construction materials and debris shall be removed from the Property.
D. Risk of Loss and Insurance. City shall bear the risk of loss or damage to the
Property prior to First Closing. College shall bear the risk of loss or damage
to the Property following First Closing and prior to Second Closing. City
shall bear the risk of loss or damage to the Property following Second Closing.
College shall procure builder's risk insurance at its own expense to cover loss
or damage to the Property occurring after the First Closing but prior to Second
Closing. The City shall be named as an additional insured on the builder's
risk policy.
E. Worker's Compensation Insurance. College shall purchase and maintain
worker's compensation insurance for not less than the limits required by law
and shall name the City as an additional insured.
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F. General Liability Insurance. College shall purchase and maintain
Comprehensive General Liability Insurance and Comprehensive Automobile
Liability Insurance to cover the operations of College, its officers, employees,
contractors and agents, under this Agreement.
8. Transfer of Property Back to City. Upon completion of the Project pursuant to Section
7 of this Agreement, College shall convey the Property back to the City on the following terms and
conditions:
A. Purchase Price. City shall pay College the actual cost of materials supplied
and/or used by College in the construction of the Project, subject to
documentation of such costs that is reasonably satisfactory to City, or such
other amount mutually agreed upon by the parties (the "Purchase Price").
City will not pay College for the value of any materials that College obtains by
donation or otherwise without cost.
B. Possession and Closing. The closing date shall occur on a date mutually
agreeable to the parties ("Second Closing Date"). Possession of the Property
shall be delivered to City at the Second Closing Date. Each transaction shall
be considered closed upon the payment in full by City of the Purchase Price
and the filing of all title transfer documents ("Second Closing").
C. Included Property. Included with the Property shall be all buildings, structures,
improvements, and fixtures that integrally belong to, are specifically adapted
to, or are a part of the Property, whether attached or detached.
D. Deed. At Second Closing, College shall convey the Property to City, by a duly
executed and acknowledged special warranty deed, free and clear of liens and
encumbrances, reservations, exceptions or modifications arising by or through
College except as expressly accepted by City in writing. City shall be
responsible for payment of revenue stamps, if any, and recording costs payable
to the Black Hawk County Recorder.
E. Condition of the Property. NOTWITHSTANDING ANY OTHER
PROVISION CONTAINED HEREIN, IT IS UNDERSTOOD AND
AGREED THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, COLLEGE IS NOT MAKING AND HAS NOT AT ANY
TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY
KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
MERCHANTABILITY, ZONING, TAX CONSEQUENCES, VALUATION,
GOVERNMENTAL APPROVALS, OR THE COMPLIANCE OF THE
PROPERTY WITH LAWS. CITY REPRESENTS TO COLLEGE THAT
CITY HAS CONDUCTED, OR WILL CONDUCT PRIOR TO SECOND
CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL
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CONDITION THEREOF, AS CITY DEEMS NECESSARY TO SATISFY
ITSELF AS TO THE CONDITION OF THE PROPERTY.
9. Financing of the Project. College and City shall each be directly responsible for the
costs assigned to each by the terms of this Agreement.
10. Indemnification. To the extent allowed by law, City shall defend, indemnify, and hold
harmless College from any and all claims, demands, causes of action, suits, settlements, and any other
claimed damages, to include reasonable attorneys' fees, investigative costs, suit fees, and other costs
associated therewith, arising out of: (1) a material breach of this Agreement by City, (ii) the material
failure of any representation or warranty of City made in this Agreement to be true, (iii) any material
act or omission of City related to its obligations under this Agreement. To the extent allowed by law,
College shall defend, indemnify, and hold harmless City from any and all claims, demands, causes of
action, suits, settlements, and any other claimed damages, to include reasonable attorneys' fees,
investigative costs, suit fees, and other costs associated therewith, arising out of: (i) a material breach
of this Agreement by College, (ii) the material failure of any representation or warranty of College
made in this Agreement to be true, (iii) any material act or omission of College related to its obligations
under this Agreement, or (iv) any physical injury occurring during, and related to, the work performed
by College under Section 7 of this Agreement.
11. Assignment. Neither party may assign its rights, obligations, or interests under this
Agreement without prior written consent of the other.
12. No Joint Obligation. The obligations of College and City under this Agreement are
several obligations, and are not joint obligations.
13. Termination of Agreement. This Agreement may be terminated in any one of the
following ways:
A. Jointly, by a written agreement executed by College and City;
B. By either party, without cause, upon ninety (90) days' prior written notice.
C. By either party for breach of any of the terms of this Agreement by the other party.
Termination shall be accomplished by giving written notice to the breaching party
specifying the breach and stating that the Agreement will be terminated if the breach is
not cured within thirty (30) days. Failure to cure the breach within thirty (30) days of
receipt of this notice shall result in automatic termination of this Agreement.
D. Notwithstanding any teuuination, other than for breach under Section C, both parties
shall remain responsible for fulfilling their respective obligations to complete and pay
for any construction in progress at the time of termination. The parties shall mutually
determine what constitutes "completion" and "payment" for purposes of this provision.
14. Transfer Upon Termination. If this Agreement is terminated pursuant to Section 13,
College shall, within sixty (60) days of either completion of construction, or if construction hasn't
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started, within sixty (60) days of termination, transfer back to the City by special warranty deed, free
and clear of liens and encumbrances, reservations, exceptions or modifications arising by or through
College except as expressly accepted by City in writing, any Property it acquired from the City
pursuant to this Agreement.
15. Notice. All notices, requests, claims, demands and other communications between the
parties shall be in writing, and shall be given by delivery in person or by first class, registered or
certified mail, postage prepaid. All notices shall be effective upon receipt, if notice is given by delivery
in person, or on the fifth day following mailing to the other party at its respective address listed below:
To College:
Vice President of
Administration and Finance
1501 East Orange Road
P.O. Box 8015
Waterloo, Iowa 50704
To City:
Community Planning &
Development Director
715 Mulberry Street
Waterloo, Iowa 50703
16. Binding Effect. The terms and conditions of this Agreement shall extend to and be
binding upon the successors in interest of the respective parties thereto.
17. Entire Agreement - Amendment. This Agreement contains the entire understanding
between the parties and cannot be changed or terminated orally but only by an agreement in writing
signed by both parties.
18. Severability. If any provisions of this Agreement are declared invalid or unenforceable,
the remainder of the Agreement shall continue in full force and effect.
19. Governing Law. This Agreement shall be govemed by the laws of the State of Iowa.
Any dispute or claim arising out of this Agreement shall be heard in a court of competent jurisdiction in
Black Hawk County, Iowa.
20. Counterparts. This agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, but all such counterparts shall constitute one
and the same instrument.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have caused this instrument to be executed by their
respective officers, pursuant to full authority granted and given as of the day and year first above
written.
HA COMMUNI Y—CO GE
CITY OF WATERLOO
By:
Mayor
By: _ ,1.� , By:
ecretary City Cl
01387991-1110567-257
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