HomeMy WebLinkAboutHabitat for Humanity - Dev Agmnt 415 Walnut 1-17-23 (003)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
January 17 , 2023, by and between Iowa Heartland Habitat for Humanity
("Company"), 415 Walnut Collective ("Collective") and the City of Waterloo, Iowa
("City"). Company and Collective may be referred to jointly as "Developer."
RECITALS
A. Company is the owner of real property at 415 Walnut Street, Waterloo,
Iowa (the "Property") and, together with Collective, is willing and able to
finance and undertake a rehabilitation of the Property to create three one -
bedroom apartments therein and related improvements.
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:
1. Improvements by Developer. Company and Collective shall collaborate
with each other and make a mutually agreeable allocation of responsibilities between
them with respect to performance of any Project tasks. Developer shall rehabilitate the
existing structure on the Property to construct three (3) one -bedroom apartments
meeting at least the minimum square footage standards of the Habitat for Humanity
organization, completed to a finished state, including installation of exterior features
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such as driveways 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 comply with all applicable City ordinances and
other applicable law. Developer shall submit specific building design and site plan 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. The Property, 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".
2. Utilities. Developer 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. Incentives. After the Improvements have been Substantially Completed,
Company will be eligible for the following incentives:
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 $15,000.00, payable within sixty
(60) days after City has verified that the Improvements have been Substantially
Completed.
B. Partial Tax Exemption. Because the Property is located in a
designated Consolidated Urban Revitalization Area (CURA), the Property is
eligible for tax exemption consistent with and to the extent provided for in Iowa
law and City ordinance, provided that Company meets all requirements to qualify
for such exemption.
For purposes of this Agreement, "Substantially Completed" 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. The parties
agree that the Improvements must be Substantially Completed by January 31, 2025,
otherwise Company shall not be eligible for the foregoing incentives.
4. Additional Covenants of Developer. In addition to the other promises,
covenants and agreements of Developer as provided elsewhere in this Agreement,
each Developer agrees as follows:
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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 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.
C. 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 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.
5. 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.
6. Representations and Warranties of Developer. Each Developer hereby
represents and warrants for itself as follows, and as applicable:
A. Company 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. Company 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 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.
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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 Developer or
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.
E. 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.
7. Indemnification and Releases.
A. Each 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 a
Developer 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 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, each 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 a Developer against the City to enforce
its rights under this Agreement), or (2) the acquisition and condition of the
Property and the construction, installation, ownership, and operation of the
Improvements, or (3) any hazardous substance or environmental contamination
located in or on the Property, but only to the extent such liability has not been
previously transferred to and accepted by City in writing.
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C. The provisions of this Section shall survive the expiration or
termination of this Agreement.
8. 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 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 Company of any interest (either directly or indirectly) in
the Property, the Improvements thereon, or this Agreement, without the prior
written consent of City;
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; (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; or (5) defaults
under any mortgage applicable to the Property.
D. Any representation or warranty made by a Developer in this
Agreement, or made by a Developer in any written statement or certificate
furnished by such 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.
9. Remedies.
A. Default by Developer. Whenever any Event of Default in respect of
a 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
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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 as
set forth in this Agreement.
B. Default by City. Whenever any Event of Default in respect of City
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.
10. 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.
11. 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.
12. 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.
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13. 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 803 W. 5th Street, Waterloo, Iowa 50702,
Attention: Executive Director.
(c) if to Collective, at , Waterloo, Iowa
, Attention:
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.
14. 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.
15. 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.
16. 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
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thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
17. 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.
18. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
19. 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.
20. 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.
21. 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 IOWA HEARTLAND HABITAT FOR
HUMANITY
By:
Octerdin �Cr�
By:
Quentin M. Hart, Mayor Ali Parrish, Executive Director
Attest: Kelley Te[chlTe
Kelley Felchle, City Clerk
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415 WALNUT COLLECTIVE
By: d 9iebev
Matthew Gilbert
Organizer for 415 Walnut Collective
Title:
EXHIBIT "A"
Property Description
Lots 1 and 2;
All that part of Lots 3, 4, 5 lying within the following described boundaries: Commencing
at the Northwest Comer of said Lot 3; thence East along the North line of said Lot 3 a
distance of 20 feet; thence South along a line which is 20 feet East of and parallel with
the West line of said Lots 3 and 4 and an extension thereof to the South line of said Lot
5; thence West along the South line of said Lot 5 to an angle point in said Lot; thence
Southwesterly along the Southeasterly line of said Lot to the Southwesterly line of said
Lot; thence Northwesterly along the Southwesterly line of said Lot to the most Westerly
corner of said Lot; thence Northeasterly along the Northwesterly line of said Lot to an
angle point in said Lot; thence North along the West line of said Lots 5, 4 and 3 to the
point of beginning;
All that part of Lot 6 lying within the following described boundaries: Commencing at a
point in the Southwesterly line of said Lot which is 26 feet Northwesterly of the most
Westerly comer of Lot 7; thence Northwesterly along the Southwesterly line of said Lot
6 to the most Westerly corner of said Lot; thence Northeasterly along the Northwesterly
line of said Lot to the angle point in said Lot; thence East along the North line of said Lot
a distance of 12.9 feet; thence South to the place of beginning;
All in "N. O. Munger's Subdivision", of Block 79 of the Cooley Addition in the City of
Waterloo, Iowa.
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