HomeMy WebLinkAboutHoldiman Development Agreement - 7.13.20Preparer: Christopher S. Wendland, P.O. Box 596 Waterloo, Iowa 50704 (319) 234-
5701
After recording, retum to Community Planning & Development, 715 Mulberry Street, Waterloo, IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
July 13, , 2020, by and between Clark A. Holdiman ("Holdiman"), and the
City of Waterloo, Iowa ("City").
RECITALS
A. Holdiman is willing and able to demolish or cause to be demolished an
existing structure on property located on property adjacent to Holdiman's
property at 940 W. 7th Street, which property is identified as parcel no.
8913-26-411-017 (the "Property"), legally described as set forth on Exhibit
"A" attached hereto.
B. 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. City believes
that rehabilitation of the Property is in the best interests of the City and in
accordance with the public purposes and provisions of the applicable
State and local laws and requirements under which the project has been
undertaken and is being assisted.
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 to Holdiman for the sum of $500.00 (the "Purchase Price"). Conveyance
shall be by quit claim deed, free and clear of all encumbrances arising by or through
City except: (a) easements, servitudes, conditions and restrictions of record; (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.
Holdiman may, at his own expense, obtain whatever form of title evidence he desires. If
title is unmarketable or subject to matters not acceptable to Holdiman, and if City does
not remedy or remove such objectionable matters in timely fashion following written
notice of such objections from Holdiman, Holdiman may terminate this Agreement. City
shall provide any title documents it has in its possession, including any abstracts, to
assist in title review.
2. Improvements by Holdiman. Holdiman acknowledges that he has had
a reasonable opportunity to inspect the Property and to conduct other due diligence
related to the Property and the Work. Holdiman agrees to accept the Property in its "AS
IS" condition, without any warranty from City, expressed or implied, as to the condition
of the Property, its marketability, or its fitness for any particular purpose. Holdiman shall
demolish existing structures on the Property, remove all debris, and level the site
(collectively, the "Work"). The Works shall be undertaken and completed in accordance
with the terms of this Agreement and shall comply with all applicable City ordinances
and other applicable law. Holdiman will use his best efforts to obtain, or cause to be
obtained, in a timely manner, all required permits, licenses and approvals, and will meet,
in a timely manner, all requirements of all applicable local, state, and federal laws and
regulations which must be obtained or met before the Work may be lawfully done.
3. Timeliness of Construction; Possibility of Reverter. The parties
agree that Holdiman's commitment to cause the Work to be undertaken in a timely
manner constitutes a material inducement for the City to extend the development
incentives provided for in this Agreement, including but not limited to its commitment to
convey the Property to Holdiman, and that without said commitment City would not have
done so. Subject to Unavoidable Delays (defined below), Holdiman must obtain a
demolition permit and complete the Work within twelve (12) months after the date of this
Agreement (the "Project Completion Date").
If Holdiman has not begun the Work within four (4) months before the
Project Completion Date, City may terminate this Agreement as set forth in Section 13,
title to the Property shall revert to City, and City shall have no further obligation
hereunder. If the Work has not begun within four (4) months before the Project
Completion Date but the commencement of the Work is still imminent, the City Council
may, but shall not be required to, grant an extension of the Project Completion Date. If
the Work has commenced within the required 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 Holdiman (each of
the foregoing is an "Unavoidable Delay"), then time lost as a result of Unavoidable
Delays shall be added to extend the Project Completion Date by a number of days
equal to the number of days lost as a result of Unavoidable Delays, and thereafter if the
Work is not completed within the allowed period of extension, City may terminate this
Agreement as set forth in Section 13, title to the Property shall revert to City, and City
shall have no further obligation hereunder.
4. Reverter of Title; Indemnity. In the event of any reverter of title,
Holdiman agrees that he 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, charge, security interest, mortgage or
encumbrance (collectively, "Liens") arising by or through Holdiman. Holdiman shall pay
in full, so as to discharge or satisfy, all Liens on or against the Property. In connection
with any reverter of title, Holdiman shall not be entitled to a refund of the Purchase
Price. Appointment of Attorney in Fact: If Holdiman fails to deliver such documents,
including but not limited to a special warranty deed, to City within thirty (30) days after
written demand by City, then City shall be authorized to execute, on Holdiman's behalf
and as its attorney -in -fact, the special warranty deed required by this Section, and for
such limited purpose Holdiman does hereby constitute and appoint City as its attorney -
in -fact.
Holdiman further agrees that he shall indemnify City and hold it harmless
with respect to any demand, claim, cause of action, damage, cost, expense, liability or
injury made, suffered, or incurred as a result of or in connection with the Work, or
Holdiman's failure to carry on or complete same, or any Lien or Liens on or against the
Property of any type or nature whatsoever that attaches to the Property by virtue of
Holdiman's ownership of same. if City files suit to enforce the terms of this Agreement
and prevails in such suit, then Holdiman shall be liable for all legal expenses, including
but not limited to reasonable attorneys' fees, incurred by City. Holdiman's duties of
indemnity pursuant to this Section shall survive the expiration, termination or
cancellation of this Agreement for any reason.
5. Deed -Back Option. If Holdiman determines at any time that the Work is
not economically feasible, such as by discovery of unanticipated structural problems or
for other reasons as determined by Holdiman, then upon thirty (30) days' advance
written notice to City Holdiman may deed the Property back to City on the terms set
forth in Section 4, and thereafter neither party shall have any further obligation under
this Agreement except as provided in Section 4. In connection with any reconveyance
of title to City, Holdiman shall not be entitled to a refund of the Purchase Price.
6. Utilities. Holdiman will be responsible for terminating or disconnecting
any utility services of any type or nature whatsoever that serve the Property.
7 Reserved.
8. No Encumbrances. Until completion of the Work, Holdiman agrees that
he shall not create, incur, or suffer to exist any Liens on the Property. Holdiman may not
mortgage the Property or any part thereof for any purpose.
9. No Assignment or Conveyance. Holdiman agrees that he will not sell,
convey, assign or otherwise transfer his interest in the Property prior to completion of
the Work, 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 Holdiman under this Agreement.
10. 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.
11. Representations and Warranties of Holdiman. Holdiman hereby
represents and warrants as follows:
A. The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of any contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which Holdiman is now a party or by which he
or his property is bound, nor do they constitute a default under any of the
foregoing.
B. There are no actions, suits or proceedings pending or threatened
against or affecting Holdiman in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the financial position of Holdiman
or which in any manner raises any questions affecting the validity of the
Agreement or Holdiman's ability to perform his obligations under this Agreement.
12. Default. The following shall be "Events of Default" under this
Agreement, and the term "Event of Default" shall mean any one or more of the following
events that continues beyond any applicable cure periods:
A. Failure by Holdiman to cause the Work to be commenced and
completed pursuant to the terms, conditions and limitations of this Agreement;
B. Transfer by Holdiman of any interest (either directly or indirectly)
in the Property or this Agreement without the prior written consent of City, before
completion of the Work;
C. Failure by any party hereto to substantially observe or perform
any covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement;
D. Any representation or warranty made by Holdiman in this
Agreement, or made by Holdiman in any written statement or certificate furnished
by Holdiman pursuant to this Agreement, shall prove to have been incorrect,
incomplete or misleading in any material respect on or as of the date of the
issuance or making thereof.
E. Holdiman (1) files any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under the federal bankruptcy law or any similar state law; (2)
makes an assignment for the benefit of its creditors; (3) admits in writing his
inability to pay his debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Holdiman as a bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days
after the filing thereof; or a receiver, trustee or liquidator of Holdiman, or part
thereof, shall be appointed in any proceedings brought against Holdiman and
shall not be discharged within ninety (90) days after such appointment, or if
Holdiman shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to the Property.
13. Remedies.
A. Default by Holdiman. Whenever any Event of Default in respect
of Holdiman occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Holdiman of the Event of Default, provided that by the conclusion of such period
the Event of Default shall not have been cured, or the Event of Default cannot
reasonably be cured within 30 days and Holdiman shall not have provided
assurances reasonably satisfactory to the City that the Event of Default will be
cured as soon as reasonably possible. Upon termination, City may exercise any
and all remedies available at law, equity, contract or otherwise for recovery of any
sums paid by City to Holdiman before the date of termination or to recover
ownership of the Property as set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of
Holdiman occurs and is continuing, Holdiman may take such action against City
to require it to specifically perform its obligations hereunder. Before exercising
such remedy, Holdiman shall give 30 days' written notice to City of the Event of
Default, provided that by the conclusion of such period the Event of Default shall
not have been cured, or if the Event of Default cannot reasonably be cured within
30 days and City shall not have provided assurances reasonably satisfactory to
Holdiman that the Event of Default will be cured as soon as reasonably possible.
C. Remedies under this Agreement shall be cumulative and in
addition to any other right or remedy given under this Agreement or existing at
law or in equity or by statute. Waiver as to any particular default, or delay or
omission in exercising any right or power accruing upon any default, shall not be
construed as a waiver of any other or any subsequent default and shall not
impair any such right or power.
14. Indemnification. Holdiman hereby releases City, its elected officials,
officers, employees, and agents (collectively, the "indemnified parties") from, covenants
and agrees that the indemnified parties shall not be liable for, and agrees to indemnify,
defend and hold harmless the indemnified parties against, any loss or damage to
property or any injury to or death of any person occurring at or about the Property or
resulting from any acts or omissions of Holdiman, his employees, agents or contractors,
in relation to the Work. The indemnified parties shall not be liable for any damage or
injury to the persons or property of Holdiman or his employees, contractors or agents, or
any other person who may be about the Property, due to any act of negligence or willful
misconduct of any person, other than any act of negligence or willful misconduct on the
part of any such indemnified party or its officers, employees or agents. The provisions
of this Section shall survive the expiration or termination of this Agreement.
15. Materiality of Holdiman's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Holdiman 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. Holdiman
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.
16. Performance by City. Holdiman acknowledges and agrees that all of
the obligations of City under this Agreement shall be subject to, and performed by City
in accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
17. No Third -Party Beneficiaries. No rights or privileges of any party
hereto shall inure to the benefit of any contractor, subcontractor, material supplier, or
any other person or entity, and no such contractor, subcontractor, material supplier, or
other person or entity shall be deemed to be a third -party beneficiary of any of the
provisions of this Agreement.
18. 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, at 715 Mulberry Street, Waterloo, Iowa 50703, fax
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Holdiman, at 940 W. 7th 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.
19. 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 Holdiman nor to create any
liability for one party with respect to the liabilities or obligations of the other party or any
other person.
20. 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.
21. Severability; Reformation. 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.
22. 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.
23. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
24. 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.
25. 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.
26. 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
By: Quentin Hart yo
Quentin M. Hart, Mayor Clark A. Holdiman
Attest: Ke/lei
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Kelley Felchle, City Clerk
EXHIBIT "A"
Legal Description of Property
The Northeast One-half of Lot 8, Block 5 in Johnson's Addition to Waterloo, Iowa.
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