HomeMy WebLinkAboutDavid Deeds - Development Agreement - 928 Mulberry St - 5.3.2021 Preparer: Christooher 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
May 3, 2021 , W96, by and between David C. Deeds ("Developer"), and the City
of Waterloo, Iowa ("City").
RECITALS
A. Developer owns real property at 922 Mulberry Street, Waterloo, Iowa, and
is willing and able to finance improvements to abutting property at 928
Mulberry Street (the "Property") that is owned by City.
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 Real Estate; Title. Subject to the terms hereof, City shall convey
the Property to Developer for the sum of$2,730.00 (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 City has demolished the dilapidated
structure now on the Property and removes the debris. 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. 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 erect a fence, of wood or metal materials, at least 3.5 feet in
height around the perimeter of the Property, but may elect not to erect a fence between
the Property and his own parcel, and shall otherwise beautify and maintain the Property
with landscaping, grass, garden and/or other plantings (the improvements described in
this paragraph are collectively referred to as 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. 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". Until Completion of the Improvements,
Developer shall make such reports to City, in such detail and at such times as may be
reasonably requested by City, as to Developer's actual progress with respect to
construction of the Improvements.
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 complete the Project work within twelve (12) months after the date of
conveyance (the "Project Completion Date").
If Project 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 11, title to the Property shall
revert to City, and City shall have no further obligation hereunder.
2
4. Reverter of Title; Indemnity. In the event of any reverter of title of the
Property, 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 or Property of any type or nature whatsoever that attaches to the Property or
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. Incentives. City will provide the following Project incentives:
A. Demolition. During summer of 2021, City will demolish the existing
structure on the Property, dispose of all debris off site, and backfill the site and
level to grade.
B. Purchase Price Refund. If Developer constructs a garage with a
permit value of no less than $20,000.00 within five (5) years after the date of
Property conveyance, then City will refund the Purchase Price to Developer
within sixty (60) days after Developer provides proof of completion and final
inspection.
6. No Encumbrances. Until completion of the Improvements, Developer
agrees that it shall not create, incur, or suffer to exist any Liens on the Property.
7. 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, which City may withhold or condition in its sole discretion.
3
8. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
9. Representations and Warranties of Developer. Developer hereby
represents and warrants as follows:
A. It has the means and wherewithal to enter into and perform its
obligations under this Agreement.
B. 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 financial position or activities
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.
10. 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 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, the Property or this Agreement, without the prior
written consent of City before completion of the Project;
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. Developer (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
4
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Developer 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 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.
11. 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, including but not
limited to reverter of title as set forth in Section 4, to recover ownership of the
Property as set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
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.
12. 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
5
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, its heirs,
successors, assigns 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.
13. 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.
14. 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.
15. 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.
16. 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 922 Mulberry Street, Waterloo, Iowa 50703.
6
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.
17. 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.
18. 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.
19. 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.
20. 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.
21. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
22. 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.
7
23. 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.
24. 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 Developer
By: He r'4 I -W
Quentin M. Hart, Mayor David C. Deeds
Attest: Kelley �-elme
Kelley Felchle, City Clerk
8
EXHIBIT "A"
Legal Description of Property
ORIGINAL PLAT WATERLOO EAST SE 51 FT LOT 1 BLK 25 EXC NW 5 F T NE 43 FT NE 20 FT SE 51 FT L OT 4
BLK 25