HomeMy WebLinkAboutGrimm Development Agreement - 9.20.2021 (RECORDED) III III IIIII IIH IIIII IIIII IIIII IIIII IIIII I I liii 1 IIIII 1 II
Doc ID: 010395710008 Type: GEN
Recorded: 02/24/2022 at 03:32:57 PM
Fee Amt: $42.00 Page 1 of 8
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
Fi1e2022-00017097
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Preparer: 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
September20 , 2021, by and between David S. Grimm and Dalen A. Grimm,
husband and wife ("Developer"), and the City of Waterloo, Iowa ("City").
RECITALS
A. City is the owner of real property on Williston Avenue identified as parcel
no. 8913-26-459-020, legally described as Lot 11, Block 1, Pommer's
Subdivision (the "Property"). Developer is the owner of real property at
1231 W. 6th Street, abutting the Property on the west side, and desires to
acquire the Property to expand their residential area.
B. City considers 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
placement of the Property on the tax rolls and providing for certain
improvements to the Property is in the best interests of the City.
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$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. 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
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of such objections from Developer, Developer may terminate this Agreement without
further obligation. 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
construct a new 2-stall garage (no less than 20 feet by 20 feet) to a finished state,
including installation of driveway, 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"). 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 building designs 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, if any, 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 Improvements
within six (6) months after conveyance of the Property (the "Project Start Date") and
must Substantially Complete construction of same within twelve (12) months after
conveyance of the Property (the "Completion Deadline"). 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 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 Completion Deadline. 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,
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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 Completion Deadline 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, title to the 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
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. 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. 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
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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.
7. No Assignment or Conveyance. Developer agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property or any part thereof 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.
8. 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. After the date of conveyance of the Property, Developer will keep
the Property mowed and remove snow from sidewalks to a standard no less than
that required by City ordinances.
D. 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.
E. Developer shall make no sale or conveyance of the Property or any
portion thereof separately from sale or conveyance of Developer's own property,
and the deed from City shall contain a restriction to that effect.
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 Developer to cause the Improvements to be commenced
and completed pursuant to the terms, conditions and limitations of this
Agreement;
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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.
10. 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
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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.
11. 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.
12. 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.
13. 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.
14. 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
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person or entity shall be deemed to be a third-party beneficiary of any of the provisions
of this Agreement.
15. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person or by United States registered or certified mail, postage prepaid, and
addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, Attention:
Mayor, with copies to the Community Planning and Development Director.
(b) if to Developer, at 1231 W. 6th Street, Waterloo, Iowa 50702.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, or (ii) three (3) business days following the date of deposit if mailed by United
States registered or certified mail, postage prepaid. A party may change the address
for giving notice by any method set forth in this Section.
16. 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.
17. 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.
18. 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.
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.
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21. 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.
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
By:
Quentin M. Hart, Mayor Davi S. Grimm
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Attest: 1 T`+-''`
Kelley Felchle, City Clerk Dalen A. Grimm
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