HomeMy WebLinkAboutGBS Development, LLC - Dev Agmnt 09.21.20 Preparers -Christopher S. Wendland, P.O. Box 596, Waterloo, Iowa 50704 t'3191234-5701
After recording, return to Community Planning$Development, 715 Mulberry Street, Waterloo, IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
September 21 , 2020, by and between GBS Development, LLC ("Company"), and
the City of Waterloo, Iowa ("City").
RECITALS
A. Company is willing and able to finance and construct two-unit residential
buildings and related improvements on property it owns in the City of
Waterloo.
B. City considers infill residential 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 to encourage that goal. City believes that
such development is in the vital and 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 (defined
below) 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. Improvements by Company. Company shall construct 10-12, two-unit
buildings on the real property described on Exhibit "A" attached hereto (the "Property")
for a total of 24 units, 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 (construction and finishing as so
described are referred to as the "Improvements"). The value of the Improvements upon
completion is estimated to be $ 6 00,000.00. The Improvements shall be constructed
in accordance with the terms of this Agreement, all applicable City, state, and federal
building codes and shall comply with all applicable City ordinances and other applicable
law. Company shall submit specific building designs and site plans for City review and
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approval before the commencement of construction and shall not substantially deviate
from such plans, specifications or designs. Company will use its 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
Improvements may be lawfully constructed. The Property, the Improvements, and all
site preparation and development-related work to be undertaken and completed by
Company under this Agreement are collectively referred to as the "Project".
2. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to cause the Project to be undertaken and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
extend the incentives provided for in this Agreement, and that without said commitment
City would not have done so. Subject to Unavoidable Delays (defined below), Company
must obtain a building permit and begin construction of the Improvements within six (6)
months after the date of this Agreement (the "Project Start Date"), and construction of
Improvements must be Substantially Completed within thirty (30) months after
commencement (the "Project Completion Date"). For purposes of this Agreement,
"Substantially Completed" means the date on which the Improvements have been
completed to the extent necessary for the City to issue a certificate of occupancy
relating thereto.
If Company has not begun construction of the Improvements before the
Project Start Date, City may terminate this Agreement as set forth in Section 10, and
City shall have no further obligation hereunder with respect to such Project. If
construction has not begun by the Project Start Date but the development of the Project
is still imminent, the City Council may, but shall not be required to, grant an extension of
the Project Completion Date. If construction 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 Company (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 construction is not completed within the allowed period of extension,
City may terminate this Agreement as set forth in Section 10, and City shall have no
further obligation hereunder with respect to such Project. As promptly as possible,
Company shall notify City in writing of the occurrence of any Unavoidable Delay and
shall again notify City in writing when the Unavoidable Delay has ended.
3. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Property and for payment of any associated connection fees.
4. Incentives. After the Improvements have been Substantially Completed,
Company will be eligible for the following incentives:
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A. Grants. As provided in the City's infill housing policy, City will pay
Company a grant of $5,000.00 for each unit timely completed, for a total incentive
of $120,000.00.
B. Land Contribution. City will work to vacate and convey excess
right-of-way (the "City Property") along Greenhill Road abutting the Property,
including the use of processes required by Iowa Code § 306.22 et seq., to enable
Company to use the City Property to meet storm water detention and building
setback requirements. Upon completion of all statutory processes, City will
convey the City Property to Company by quit claim deed, free and clear of all
encumbrances arising by or through City except: (a) easements, servitudes,
conditions and restrictions of record; and (b) restrictions imposed by City zoning
ordinances and other applicable law. Company may, 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 not 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 review. Conveyance of the City Property shall be made in an
"AS-IS" condition, other than as expressly set forth in this Agreement.
4.1. Recreation Trail. After Company receives title to the City Property, it
shall, at its own expense, relocate the recreational trail to a position closer to Greenhill
Road within remaining right-of-way. The relocated trail shall be integrated as
seamlessly as possible with those portions of the existing trail that lie outside the City
Property, shall be constructed with like materials, and shall be the same width as
existing trails. Before building the new trail, Company shall submit to City for review
and approval the proposed trail design. Construction of the new trail shall be completed
within six (6) months after removal of the existing trail on the City Property or by the
Project Completion Date, whichever occurs first. For five (5) years after completion,
Company shall warrant the condition of the new trail against defects, including but not
limited to significant shifting, settling, or concrete breakage.
5. Reporting. Until Substantial Completion of the Improvements, Company
shall make such reports to City, in such detail and at such times as may be reasonably
requested by City, as to the actual progress of Company with respect to construction of
the Improvements.
6. 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.
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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.
7. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It 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.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company and, assuming due authorization, execution and
delivery by the other parties hereto, is in full force and effect and is a valid and
legally binding instrument of Company that is enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
D. 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 the articles of organization or operating agreement of Company or
of any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Company is now a party or by which it or its property
is bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company 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 business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
8. Indemnification and Releases_
A. Company 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 defect in the Improvements. The indemnified
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parties shall not be liable for any damage or injury to the persons or property of
Company or its directors, officers, employees, contractors or agents, or any other
person who may be about the Property or the Improvements, 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.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever, by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the construction, installation, ownership, and
operation of the Improvements, or (3) otherwise as a result of or in connection
with the Project or Company's failure to carry on or complete same.
C. The indemnification obligations under this Section shall include
attorneys' fees and expenses incurred by any indemnified part. The provisions of
this Section shall survive the expiration or termination of this Agreement.
9. 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 Company to cause the construction of the Improvements
on the Property to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement;
B. Company (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 its
inability to pay its debts generally as they become due; (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company 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 Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment; or (5) defaults
under any mortgage applicable to a Project Site formerly owned by City.
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C. Any representation or warranty made by Company in this
Agreement, or made by Company in any written statement or certificate furnished
by Company 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.
10. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement, in
whole or in part. Before exercising such remedy, City shall give 30 days' written
notice to Company 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 Company 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 Company before the date of termination.
B. Default by City. Whenever any Event of Default in respect of
Company occurs and is continuing, Company may take such action against City
to require it to specifically perform its obligations hereunder. Before exercising
such remedy, Company 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
the Company 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.
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.
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12. Performance by City. Company 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.
13. 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.
14. 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 Company, at 4426 Wynnewood Drive, Cedar Falls, Iowa
50613, Attention: Managing Member.
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.
15. 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.
16. 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
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default by another party shall not affect or impair any rights arising from any subsequent
default.
17. 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.
18. 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.
19. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
20. 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.
21. Entire Agreement. This Agreement, together with the exhibits attached
hereto, if any, 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.
22. 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 GBS DEVELOPMENT, LLC
By: �J�tPhtih I Feu h ��° By�
Quentin M. Hart, Mayor Phillip Shirk, Managing Member
Attest: kdle�V �e�Cbc�e
Kelley Felchle, City Clerk
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EXHIBIT "A"
Property Description
Lot 27, Auditor's Whitney Road Plat in Sections 16 and 21-89-13, City of Waterloo,
Black Hawk County, Iowa, except the West 210 feet thereof.
AND
That part of Lot 28, Auditor's Whitney Road Plat in Sections 16 and 21-89-13, City of
Waterloo, Black Hawk County, Iowa, described as follows:
Beginning at the point of intersection of the South line of Maynard Avenue and the East
line of Hackett Road, said point lying 30.0 feet South of the North line of said Lot 28;
thence East parallel with said North line to a point which is 495.0 feet West of the East
line of said Lot 28; thence Southeasterly to a point on the South line of said Lot 28
which is 30.0 feet East of the Northeast corner of Lot 27 in said Auditor's Plat; thence
West along the South line of said Lot 28 to the East line of Hackett Road; thence North
to the point of beginning.
[The above-described property is to be platted as Lots 1 and 2 of Gardner Addition, City
of Waterloo.]
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