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HomeMy WebLinkAboutJohnson, Bertha- Development Agreement - 615 Glenwood - 04.04.2022Preparer: Chrigtopher 5 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 April 4 , 2022, by and between Bertha M. Johnson ("Developer"), and the City of Waterloo, Iowa ("City"). RECITALS A. Developer is willing and able to finance and rehabilitate an existing property located at 615 Glenwood Street, Waterloo, Iowa (the "Property"), legally described as set forth on Exhibit "A" attached hereto. 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 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 unaertake 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 four (4) months from the date of that it receives title to the Property from City (the "Project Start Date"), and Substantially Complete rehabilitation within twelve (12) months after 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 U navoidable 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. +. 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 P roperty 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 riot 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, tnen City shall be authorized to execute, on Developer's behalf and as its attorney -in -fact, the special warranty deed required by this S ection, and for such limited purpose Developer does hereby constitute and appoint City as its attorney-m-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 P roperty 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. 3. 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 or to reimbursement of any Project costs incurred or expended by Developer. 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. '. 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. 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. 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 Agreernent has been duly and validly authorized, 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. �. 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. C. There are no actions, suits or proceedings pending or threatened against or affecting Developer in arty 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 rnaterially 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 Agreernent, 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; 3. 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; 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) tiles any petition in bankruptcy or tor any reorganization, arrangement composition, readjustment, liquidation, dissolution, o r 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 u nder any mortgage applicable to the Property. 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 Agreernent. 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 perforrn 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 n ot 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. u. Remedies under this Agreement shall be curnulative 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 e xercising 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 Protect 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 Protect 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, ernployees or agents. The provisions of this Section shall survive the expiration or termination of this Agreement. _Lb. Materiality of Developer's Promises, Covenants, Representation°, 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, of 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 o 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 he deemed to he a third -party beneficiary of any of the provisions of this Agreement. ttf. 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, Watenoo, Iowa 50703, fax nurn 219-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. if to Developer, at 521 Fowler Street, Waterloo, Iowa 50703, neiivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (a) business day following deposit ror overnight delivery to an overnight air courier service which guarantees next day delivery, Oil) 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 Ventura 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 Mociificatton, and Waiver. No amendment, modification, or waiver of any condition, orovision, or term of this Agreement shall he valid or of any effect unless made in writing, signed by the party or parties to be hound 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 pasty of any default by another party shall not affect or impair any rights arising from any subsequent default. 21. everabrltty; 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 iernaining provisions of this Agreement shall not be affected thereby and shall t ontinue 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 snail he deemed to be written, and shall be construed and enforced, as so limited. 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 shah be binning and shah 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 DEVELOPER Querz-(in DIGITALLY SIGNED Quentin M. Hart, Mayor Bertha M. Johnsqn Attest: Kelley Felchle DIGITALLY SIGNED Kelley Felchle, City Clerk EXHIBIT °A Legal Description of Property art of the Southeast VLjarter of Section 241 Township 89 North, Range 13 West of the Principal Meridian, in the City of Waterloo, in Black Hawk County, Iowa, bounded and described as follows: Commencing at the Southwest corner of Lot 11 in Hardy & Virden's Plat, Waterloo, Iowa, (now vacated); running thence East along the South line of said Lot to the Southwesterly line of the right of way of the Illinois Central Rail Road Company; thence Northwesterly along the Southwesterly line of said right of way to the West line of said Lot 11; thence South along the West line of said Lot 11 to the point of beginning. EXHIBIT B Protect Plans and Budget See attached.