HomeMy WebLinkAboutHodges, Harmon, Debra Kay - Development Agreement 1644 Logan Ave 12.7.2020Preparer: Christopher S. Wendland, P.O. Box 596, Waterloo, Iowa 50704 (319) 234-5701
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
Approved by council
Nov14,2020 12,,2020 , 2020, by and between Debra Kay Hodges Harmon ("Developer"),
and the City of Waterloo, Iowa ("City").
RECITALS
A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, 2015,
as amended (the "Urban Renewal Act"), City is engaged in carrying out
urban renewal project activities in an area known as the East Waterloo
Unified Urban Renewal and Redevelopment Plan Area, formerly known as
the Logan Plaza Urban Renewal and Redevelopment Plan Area ("Urban
Renewal Area").
B. Developer is willing and able to finance and construct a building and
related improvements on property located in the Urban Renewal Area.
C. 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 the development of the property at 1644 Logan Avenue, Waterloo,
Iowa, legally described as set forth on Exhibit "A" hereto (the "Property") 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 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 Developer for the sum of $5,000.00 (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. City
shall have no duty to convey title to Developer until Developer 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.
Developer may, at its own expense, obtain whatever form of title evidence it desires. If
title is unmarketable or subject to matters not acceptable to Developer, and if City does
not remedy or remove such objectionable matters in timely fashion following written
notice of such objections from Developer, Developer 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 Developer. Developer acknowledges that it has had a
reasonable opportunity to inspect the Property and to conduct other due diligence
related to the Project. Developer 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. Developer shall
rehabilitate the existing structures on the Property for single-family residential purposes
and make other improvements to the buildings and grounds (collectively, the
"Improvements"). 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. Attached as Exhibit "B" are
Developer's specific renovation plans and estimated project budget. Developer 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 other work to make the project site usable for Developer'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 Developer's commitment to cause the Project to be undertaken and to rehabilitate
the Property 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 Developer, and that without said commitment
City would not have done so. Subject to Unavoidable Delays (defined below),
Developer must obtain a building permit and begin construction of the Improvements
within six (6) months from the date of this Agreement (the "Project Start Date"), and
Substantially Complete rehabilitation within twelve (12) months from the date of this
Agreement (the "Project Completion Date"). For purposes of this Agreement,
"Substantially Completed" means the date on which the rehabilitation Improvements
have been completed to the extent necessary for the City to issue a certificate of
occupancy relating thereto.
If Developer has not begun Improvements before the Project Start 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 rehabilitation has
not begun by the Project Start Date but the commencement 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 rehabilitation 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 Developer (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 Improvements are 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,
Developer 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, charge, security interest, mortgage or
encumbrance (collectively, "Liens") arising by or through Developer. Developer shall
pay in full, so as to discharge or satisfy, all Liens on or against the Property. In
connection with any reverter of title, Developer shall not be entitled to a refund of the
Purchase Price. Appointment of Attorney in Fact: If Developer 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
Developer's behalf and as its attorney -in -fact, the special warranty deed required by this
Section, and for such limited purpose Developer does hereby constitute and appoint
City as its attorney -in -fact.
Developer further agrees that it 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 Project, or
Developer'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
Developer's ownership of same. If City files suit to enforce the terms of this Agreement
and prevails in such suit, then Developer shall be liable for all legal expenses, including
but not limited to reasonable attorneys' fees, incurred by City. Developer'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 Developer determines at any time that the Project
is not economically feasible, such as by discovery of unanticipated structural problems
or for other reasons as determined by Developer, then upon thirty (30) days' advance
written notice to City Developer 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, Developer shall not be entitled to a refund of the Purchase Price.
6. Utilities. Developer will be responsible for obtaining or extending water,
sewer, telephone, electricity, gas and other utility services to any location on the Project
Site and for payment of any associated connection fees and costs of usage after the
date of conveyance from City.
7. Additional City Incentives. In addition to the other incentives provided
by City to Developer under this Agreement, City agrees to provide the following
assistance to facilitate the Project:
A. Purchase Price Refund. Within thirty (30) days after Developer has
Substantially Completed the Improvements and has obtain final inspection on all
permits obtained for the Project, City will refund the Purchase Price to Developer.
B. Rehabilitation Grant. Concurrently with refund of the Purchase
Price pursuant to paragraph A above, City will make a $5,000.00 rehabilitation
grant to Developer.
C. Partial Tax Exemption. Because the Property is located in a
designated Consolidated Urban Revitalization Area (CURA), the Property is
eligible for tax exemption consistent with and to the extent provided for in Iowa
law, provided that Developer meets all requirements to qualify for such
exemption.
8. No Encumbrances; Limited Exception. Until completion of the
Improvements, Developer agrees that it shall not create, incur, or suffer to exist any
Liens on the Property, other than such mortgage or mortgages as may be reasonably
necessary to finance Developer's completion of the Improvements and of which
Developer notifies City before Developer executes any such mortgage. Developer may
not mortgage the Property or any part thereof for any purpose except in connection with
financing of the Improvements.
9. No Assignment or Conveyance. Developer 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 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 Developer 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 Developer. Developer hereby
represents and warrants as follows:
A. It is under no legal disability, is not the subject of a current or
pending action in any court of law to have a guardian or conservator appointed
with respect to its person or affairs, 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.
B. This Agreement has been duly and validly executed and delivered
by Developer 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 Developer 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.
C. 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 Developer is now a party or by which it or
its property is bound, nor do they constitute a default under any of the foregoing.
D. There are no actions, suits or proceedings pending or threatened
against or affecting Developer 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 Developer or which in
any manner raises any questions affecting the validity of the Agreement or
Developer's ability to perform its 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 Developer to cause the rehabilitation Improvements to
be commenced and completed pursuant to the terms, conditions and limitations
of this Agreement;
B. Transfer by Developer of any interest (either directly or indirectly) in
the Improvements, the Property, or this Agreement, without the prior written
consent of City;
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 Developer in this
Agreement, or made by Developer in any written statement or certificate
furnished by Developer 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. Developer (1) files any petition in bankruptcy or for any 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 Developer as a bankrupt 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 Developer, or part thereof, shall be appointed in any proceedings
brought against Developer and shall not be discharged within ninety (90) days
after such appointment, or if Developer shall consent to or acquiesce in such
appointment; or (5) defaults under any mortgage applicable to the Property.
13. Remedies.
A. Default by Developer. Whenever any Event of Default in respect of
Developer occurs and is continuing, the City may terminate this Agreement.
Before exercising such remedy, City shall give 30 days' written notice to
Developer 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 Developer 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 Developer 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
Developer occurs and is continuing, Developer may take such action against City
to require it to specifically perform its obligations hereunder. Before exercising
such remedy, Developer 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 Developer 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. Developer 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 Project site or
resulting from any defect in the Improvements. The indemnified parties shall not be
liable for any damage or injury to the persons or property of Developer or its directors,
officers, employees, contractors or agents, or any other person who may be about the
Project site 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. The provisions of this
Section shall survive the expiration or termination of this Agreement.
15. Materiality of Developer's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Developer 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. Developer
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. Developer 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 Developer, at , Waterloo, Iowa 50703.
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 Developer 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:
Debta i ' eff7f m'ai1
Debra HodgesHarmo Nov 14, 2020 15:17 CST)
Quentin M. Hart, Mayor Debra Kay Hodges Harmon
Attest: Kelley �elc/cle
Kelley Felchle, City Clerk
EXHIBIT "A"
Legal Description of Property
Lots 17 and 18, Block 5, "Logan Dale Heights," in the City of Waterloo, Iowa.
EXHIBIT "B"
Project Plans and Budget
See attached.
1644 Logan rehab agt 11-06-20
Final Audit Report
2020-11-14
Created: 2020-11-13
By: Damiane Carter (damiane@apexime.com)
Status: Signed
Transaction ID: CBJCHBCAABAAcDPAOBIfr-EUhh4rCsJHm48KAEF0ADC0
"1644 Logan rehab agt 11-06-20" History
Document created by Damiane Carter (damiane@apexime.com)
2020-11-13 - 3:25:52 PM GMT- IP address: 174.29.255.96
Document emailed to Debra HodgesHarmon (dkhharmon@yahoo.com) for signature
2020-11-13 - 3:27:10 PM GMT
Email viewed by Debra HodgesHarmon (dkhharmon@yahoo.com)
2020-11-13 - 4:02:27 PM GMT- IP address: 209.73.183.25
dp Document e-signed by Debra HodgesHarmon (dkhharmon@yahoo.com)
Signature Date: 2020-11-14 - 9:17:16 PM GMT - Time Source: server- IP address: 173.30.138.249
0 Agreement completed.
2020-11-14 - 9:17:16 PM GMT
Ea Adobe Sign