HomeMy WebLinkAboutPrairie Rapids II, LLC - Iinfill Development Agreement 6/20/2022Preparer: 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
June 6 , 2022 by and between Prairie Rapids II, LLC ("Company"), and the City
of Waterloo, Iowa ("City").
RECITALS
A. Company is willing and able to finance and construct multiple apartment
buildings and related improvements on property it owns or is acquiring in
the City of Waterloo, legally described on Exhibit "A" attached hereto (the
"Property"), and in support of said project Company is applying to the
State of Iowa for tax credits and/or other available incentives under the
Workforce Housing Tax Incentives Program.
B. City considers 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:
1. Improvements by Company. Company shall construct on the Property
one or more multi -level apartment buildings that include a total of up to 48 one -bedroom
units, completed to a finished state, including installation of driveway and sidewalks,
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
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
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comply with all applicable City ordinances and other applicable law. Company shall
submit specific 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. Company 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 site preparation and
development -related work to be undertaken and completed by Company under this
Agreement are collectively referred to as the "Project". Company estimates that the
total Project cost will be approximately $5.5 million.
2. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Property and for payment of any associated connection fees.
3. Construction Plans. Company agrees that it will cause the
Improvements to be constructed on the Property in conformance with construction plans
(the "Plans") submitted to the City, which Plans shall be subject to approval as provided
in this Section. Company agrees that the scope and scale of the Improvements to be
constructed shall not be significantly less than the scope and scale of the Improvements
as detailed and outlined in the Plans.
City shall approve the Plans in writing if: (a) the Plans conform to the terms and
conditions of this Agreement; (b) the Plans conform to all applicable federal, state and
local laws, ordinances, rules and regulations and City permit and design review
requirements; (c) the Plans are adequate for purposes of this Agreement to provide for
the construction of the Improvements, and (d) no Event of Default under the terms of
this Agreement has occurred; provided, however, that any such approval of the Plans
pursuant to this Section shall constitute approval for the purposes of this Agreement
only and shall not be deemed to constitute approval or waiver by the City with respect to
any building, fire, zoning or other ordinances or regulations of the City, and shall not be
deemed to be sufficient plans to serve as the basis for the issuance of a building permit
if the Plans are not as detailed or complete as the plans otherwise required for the
issuance of a building permit. Approval of Plans hereunder shall not constitute approval
for any other City purpose nor subject the City to any liability for the Improvements as
constructed.
The Plans must be rejected in writing by City within thirty (30) days of submission
or shall be deemed to have been approved by the City. If City rejects the Plans in
whole or in part, Company shall submit new or corrected Plans within thirty (30) days
after receipt by Company of written notification of the rejection, accomplished by a
written statement of the City specifying the respects in which Company's Plans fail to
conform to the requirements of this Section. The provisions of this Section relating to
approval, rejection and resubmission of corrected Plans shall continue to apply until the
Plans have been approved by the City; provided, however, that in any event Company
shall submit Plans which are approved by City prior to commencement of construction
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of the Improvements. Approval of the Plans by the City shall not relieve Company of
any obligation to comply with the terms and provisions of this Agreement, or the
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans by City be deemed to constitute a waiver of any Event of
Default.
4. Incentives. After the Improvements have been Substantially Completed,
Company will be eligible for the following incentives (for purposes of this Agreement,
"Substantially Completed" means the date on which the Improvements have been
completed in accordance with the Plans or Modified Plans to the extent necessary for
the City to issue a certificate of occupancy relating thereto):
A. Grants. As provided in the City's infill housing policy, City will pay
Company a grant of $5,000.00 for timely completion of each unit of the
Improvements, for a total maximum incentive of $240,000.00, payable within
sixty (60) days after City has verified that the Improvements have been
Substantially Completed.
5. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows:
A. Until all of the Improvements have been Substantially Completed,
Company 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 Company with
respect to construction of the Improvements.
B. Company will comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses.
C. Company 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.
6. 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.
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7. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It is duly organized, validly existing, and in good standing under the
laws of the state of its organization and is duly qualified and in good standing
under the laws of the State of Iowa.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company 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 Company 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.
D. 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 the articles of organization or operating agreement of Company or
of any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Company is now a party or by which it or its property
is bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company 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 Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
8. Indemnification and Releases.
A. Company 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
Company or its directors, officers, 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
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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, Company 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 Company 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 Company'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 party. The provisions
of this Section shall survive the expiration or termination of this Agreement.
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 Company 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. 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;
C. Company (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; or (4) is adjudicated a
bankrupt or insolvent; or if a petition or answer proposing the adjudication of
Company 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 Company, or part
thereof, shall be appointed in any proceedings brought against Company and
shall not be discharged within ninety (90) days after such appointment, or if
Company shall consent to or acquiesce in such appointment.
D. Any representation or warranty made by Company in this
Agreement, or made by Company in any written statement or certificate furnished
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by Company 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 Company. Whenever any Event of Default in respect of
Company 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 Company 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 Company 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 Company before the date of termination.
B. Default by City. Whenever any Event of Default in respect of
Company occurs and is continuing, Company may take such action against City
to require it to specifically perform its obligations hereunder. Before exercising
such remedy, Company 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 Company 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. Materiality of Company's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company 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. Company
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.
12. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
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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.
13. 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.
14. 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 Company, at 211 1st Avenue SE, Suite A, Cedar Rapids I, Iowa
52401, Attention: Darryl High.
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.
15. 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 Company nor to create any liability for one
party with respect to the liabilities or obligations of the other party or any other person.
16. 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.
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17. 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.
18. 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.
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, including signed counterparts transmitted by facsimile or
other electronic means, shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
21. 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.
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.
[signatures on next page]
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CITY OF WATERLOO, IOWA
621,ue,z-Wz 9irt
By:
Quentin M. Hart, Mayor
Attest:
Kelley Feichle
DIGITALLY
SIGNED
Kelley Felchle, City Clerk
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PRAIRIE RAPIDS II, LLC
By:
Darryl High
Owner/President
Dail/lye 51-6,A
DIGITALLY
SIGNED
VI
Title:
EXHIBIT "A"
Legal Description of Property
Parcel "D" of Plat of Survey Doc. #2009-06842, being a part of the Northwest Fractional
Quarter of Section 3, Township 88 North, Range 13 West of the 5th P.M., in the City of
Waterloo, Black Hawk County, Iowa.
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