HomeMy WebLinkAboutT. Borwig Development Agreement - 5.17.2021 Preparer: Christopher S.Wendland, P.O. Box 596,Waterloo, Iowa 50704 (319)234-5701
After recording, return to Community Planning&Development, 795 Mulberry Street, Waterloo, to 50703.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
May 17 , 2021 by and between Todd J. Borwig, a married person
("Developer"), and the City of Waterloo, Iowa ("City").
RECITALS
A. Developer is willing and able to finance and construct single-family homes
and related improvements on property owned by or to be acquired by the
City of Waterloo, as described on Exhibit "A° attached hereto (the
"Property")
i
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:
i
1. Sale of Property; Title. Subject to the terms hereof, City shall convey the
Property to Developer for the sum of $1.00 (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 completed the assembly of all
Property, has filed a subdivision plat of the Property, and Developer has delivered to
1
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 shall construct a city street and
cul-de-sac on the Property, install or arrange to be installed the infrastructure for public
water service , sanitary sewer and storm sewer, and shall construct one single-family
dwelling and garage on each platted lot, completed to a finished state , including
installation of driveways , 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 collectively as the " Improvements") . Each dwelling shall have
a minimum livable area of 1 , 200 square feet and an assessed value upon completion of
approximately $ 150 , 000 or more . The construction of one home on each lot is a
" Phase . " 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 shall submit specific
street designs and plans , building designs and site plans for City review and approval
before the commencement of construction and shall not substantially deviate from such
plans , specifications or designs . 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 . Developer will be responsible to clear trees and brush from the
Property at its own cost to allow for construction of all Improvements . The Property, the
Improvements , and all site preparation and development-related work to be undertaken
and completed by Developer under 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 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) ,
Developer must obtain a building permit and begin construction of the first home within
four (4) months after conveyance of the Property (the " Project Start Date") and must
Substantially Complete construction of same within eight (8) months thereafter.
Developer must Substantially Complete construction of additional homes on a schedule
of one ( 1 ) home each year, so that each Phase must be Substantially Completed within
twelve ( 12) months of the date that the preceding Phase was Substantially Completed .
The date by which each Phase must be Substantially Completed is a " Phase
Completion Deadline . " Developer will be responsible to clear trees and brush from the
Property at its own cost to allow for construction of street improvements and each
2
home . For purposes of this Agreement, "Substantially Complete" 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 and the City has verified that Project
elements for which no permit was necessary have been substantially completed .
If Developer has not begun construction of the Improvements before the
Project Start Date , City may terminate this Agreement as set forth in Section 12 , 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 Phase Completion Deadline for any Phase not yet completed . 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 Developer (each of the foregoing
is an " Unavoidable Delay") , then time lost as a result of Unavoidable Delays shall be
added to extend the Phase Completion Deadline(s) 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 12 , title to Phase lots on which a home has not been
Substantially Completed (the " Reverter Property") shall revert to the City, and City shall
have no further obligation hereunder with respect to such Project, nor any duty to
compensate Developer for any work or materials provided before the termination date
or for the added value of any Improvements completed or partially completed . As
promptly as possible , Developer 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 .
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
Reverter Property, 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 Reverter Property .
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 and Developer's spouse do hereby constitute and
appoint City as its attorney-in-fact. Developer's spouse executes this Agreement only
for the limited purpose of granting to City the limited power of attorney provided for in
this paragraph .
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
3
Reverter Property of any type or nature whatsoever that attaches to the Reverter
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 . Utilities . Developer will be responsible for extending water, sewer,
telephone , telecommunications , electricity, gas and other utility services from street right
of way to any location on the Property and for payment of any associated connection
fees .
6 . Incentives . To aid in the Project, City will provide the following incentives :
A. Property Assembly and Platting . City will complete the acquisition
of that portion of the Property that is identified as tax parcel 8913- 15- 177-011 .
Following such acquisition , City will plat the Property in a manner to provide no
less than five (5) buildable lots and will cooperate with Developer to develop
suitable subdivision restrictions , including but not limited to design restrictions .
B . Infill Housing Grants . As provided in the City' s infill housing policy,
City will pay Developer a grant of $5 , 000 . 00 for each home timely completed , for
a total maximum incentive of $25 , 000 . 00 . Each grant shall be payable within
sixty (60) days after Improvements on a given lot have been verified by City as
Substantially Completed .
C . Partial Tax Exemption . Because the Property is located in a
designated Consolidated Urban Revitalization Area (CURA) and a designated
City Limits Urban Revitalization Area (CLURA) , the Property is eligible for tax
exemption consistent with and to the extent provided for in Iowa law and City
ordinance , provided that Developer meets all requirements to qualify for such
exemption . Developer shall elect whether to obtain exemption benefits under
either CURA or CLURA, but not both .
7 . No Encumbrances ; Limited Exception . Until completion of the
Improvements , Company 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 Company's completion of the Improvements and of which
Company notifies City before Company executes any such mortgage . Company may
not mortgage the Property or any part thereof for any purpose except in connection with
financing of the Improvements .
8 . 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
4
the City' s satisfaction that it has the financial ability to observe all of the terms to be
performed by Developer under this Agreement.
9 . Additional Covenants of Developer. In addition to the other promises ,
covenants and agreements of Developer as provided elsewhere in this Agreement,
Developer agrees as follows :
A. Until the Improvements have been Substantially Completed ,
Developer 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 Developer
with respect to construction of the Improvements .
B . Developer will comply with all applicable land development laws
and City and county ordinances , and all laws , rules and regulations relating to its
businesses , other than laws , rules and regulations where the failure to comply
with the same , or where the sanctions and penalties resulting therefrom , would
not have a material adverse effect on the business , property, operations , or
condition , financial or otherwise, of Developer.
C . Developer will cooperate fully with the City in resolution of any
traffic , parking , trash removal or public safety problems which may arise in
connection with the construction and operation of the Improvements .
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. This Agreement, 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.
B . 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
5
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 .
C . 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 . Indemnification and Releases .
A. 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 Property 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 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 , Developer 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 Developer 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 Developer'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.
13 , 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 :
6
A. Failure by Developer 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 . 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 . 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
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.
E . 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.
14 . Remedies .
A. Default by Developer. Whenever any Event of Default in respect of
Developer 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 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 .
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.
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 :
s
(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
Iowa
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.
9
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.
23. 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.
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
U?_.44i4 114
J-64
By:y. r
4,
Quentin M. Hart, Mayor Todd J. Borwi
Attest: Kelley �elchle
Kelley Felchie, City Clerk
The undersigned spouse of Developer
executes this agreement for the limited
purpose set forth in Section 4.
(printed name)
10
EXHIBIT "A"
Property Description
Lots 1 through 5 of a subdivision to be platted , situated on a portion of:
The Northerly 330 feet of the West half of the West half of Lot " F" in "Cedar Dale" , in Black
Hawk County, Iowa (now in the City of Waterloo , Iowa) .
AND
CEDAR DALE PART LOT G BEG AT NE COR LOT G TH S ALONG E LINE 330 FT TH NWLY TO
PT 178 FT W OF E LINE AND 310 FT S OF N LINE TH N ALONG A LINE PAR WITH E LINE 310 FT
TO N LINE TH E TO BEG .
1