HomeMy WebLinkAboutArends Investments - Development Agreement (duplex) - 9.18.2023Preparer: Tim Andera, City of Waterloo, 715 Mulberry Street, Waterloo, Iowa 50703 (319) 291-4366
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
9 — 2023 by and between Dustin Arends, d/b/a Arends Investments
("Company"), and the City of Waterloo, Iowa ("City").
RECITALS
A. Company is willing and able to finance and construct a duplex dwelling
and related improvements on property located in the City of Waterloo as
an infill lot in an established residential neighborhood, as described on
Exhibit "A" attached hereto (the "Property").
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) is being 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 of this Agreement, City shall
convey the Property to Company for the sum of $15,000.00 (the "Purchase Price"). City
acknowledges receipt of the sum of $1,000.00 as earnest money, which shall be applied
to the Purchase Price at closing. Conveyance by City 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. Company shall, at its own
expense, prepare an updated abstract of title, or in lieu thereof Company may, at its
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own expense, obtain whatever form of title evidence it desires. If title is unmarketable
or subject to matters not acceptable to Company, and if City does not remedy or
remove such objectionable matters in timely fashion following written notice of such
objections from Company, Company 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 Company. Company acknowledges that it has had a
reasonable opportunity to inspect the Property and to conduct other due diligence
related to the Project. Company 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. Before commencing
construction, Company shall demolish the existing structure on the Property and
properly remove and dispose of all debris, including felled trees and brush (also see
Section 8.E below). Company shall then construct on the Property one (1) duplex home
as further described and depicted in Exhibit "B" attached hereto. Each home shall be
built on a concrete slab and consist of no less than 1,176 square feet, include a double -
wide attached garage per the plans attached as Exhibit "B," and have an estimated
value of $300,000.00 upon completion. The Improvements shall be completed to a
finished state, including installation of paved driveway, sidewalk, 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. 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."
3. Timeliness; Possibility of Reverter. The parties agree that Company'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 do so.
A. Deadlines to commence and complete. Subject to Unavoidable
Delays (defined below), Company must obtain a demolition permit and begin
demolition activities within fourteen (14) days after receiving title to the Property
(the "Project Start Date"), obtain a building permit and begin construction of the
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dwelling within two (2) months after receiving title to the Property, and
Substantially Complete construction within twelve (12) months after the Project
Start Date (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. All deadlines are
subject to Unavoidable Delays as defined in paragraph B below. The City's
Community Planning and Development Director may, but shall not be required to,
consent to an extension of time of up to six (6) months for the construction of any
phase of the Improvements. Any additional or longer time extensions will require
consent of the City Council.
B. Events triggering termination and/or reverter of title. If Company
does not begin the Project or Substantially Complete construction of the
Improvements on the schedule(s) stated above, subject to Unavoidable Delays,
then City may terminate this Agreement as set forth in Section 15, and City shall
then have no further obligation to Company under this Agreement. If
development has commenced within the required period, as the same may be
extended, and is subsequently stopped 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 Company (each an "Unavoidable Delay"), the requirement
that construction be completed by the Completion Deadline shall be tolled for a
period of time equal to the period of Unavoidable Delay. As promptly as
possible, Company 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. If City terminates this Agreement as provided in Section 15,
City shall have no further obligations to Company under this Agreement,
including but not limited to any legal or equitable obligation to reimburse
Company for any costs expended by Company with respect to the Project or to
compensate Company for any value added to the Property by any
Improvements. In connection with termination of the Agreement as set forth
herein, City may demand reconveyance of the Property in addition to exercising
any other available remedies.
4. Reverter of Title; Indemnity. In the event of any reverter of title
hereunder, then Company 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, free and clear of any lien, claim, charge, security interest,
mortgage or encumbrance (collectively, "Liens") arising by or through Company.
Concurrently with delivery of the deed, Company shall also deliver to City the abstract of
title. Company shall pay in full, so as to discharge or satisfy, all Liens on or against the
Property. Appointment of Attorney in Fact: If Company fails to deliver such
documents, including but not limited to a special warranty deed, to City within thirty (30)
days of written demand by City, then City shall be authorized to execute, on Company's
behalf and as its attorney -in -fact, the special warranty deed or other documents
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required by this Section, and for such limited purpose Company does hereby constitute
and appoint City as its attorney -in -fact.
Company 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, Company'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 Company's
ownership of same. A "Lien" is any lien, claim, charge, security interest, mortgage or
encumbrance on, against or affecting the Property. If City files suit to enforce the terms
of this Agreement and prevails in such suit, then Company shall be liable for all legal
expenses, including but not limited to reasonable attorneys' fees, incurred by City.
Company's duties of indemnity pursuant to this Section shall survive the expiration,
termination or cancellation of this Agreement for any reason.
5. No Encumbrances; Limited Exception. Until the Improvements are
Substantially Completed, 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. Any other mortgage shall be void.
6. Utilities. Company 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.
7. Incentives. To aid in the Project, City will provide the following incentives:
A. Infill Housing Grant. As provided in the City's infill housing policy,
City will pay Company a grant of $10,000.00 (the "Infill Grant") ($5,000.00 for
each unit) within ninety (90) days after Improvements have been verified by City
as Substantially Completed.
B. Refund of Purchase Price. City will refund $5,000.00 of the
Purchase Price to Company on the same terms as its payment of the Infill Grant.
C. Partial Tax Exemption. Because the Property is located in 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 Company or its successor in title meets all
requirements to qualify for such exemption.
8. 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:
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A. Until 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, 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 Company.
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.
D. Company agrees during construction of the Improvements to
maintain, as applicable, builder's risk, property damage, and liability insurance
coverages with respect to the Improvements in such amounts as are customarily
carried by like organizations engaged in activities of comparable size and liability
exposure, and shall provide evidence of such coverages to the City upon
request.
E Company shall deliver to City proof issued by an appropriate third
party (e.g., Black Hawk County Landfill) of proper disposal of all demolition
debris. Such proof shall be provided to the City Planner by the first business day
of each month with respect to all debris disposal that occurred in the preceding
calendar month.
9. Reimbursement to City. The parties acknowledge that City obtained title
to the Property through an action prosecuted under Iowa Code Chapter 657A.
Defendant in said action is a principal of Company, and Company included within its bid
a promise to repay the City for attorney fees, court costs and other legal expenses
incurred by City in said action and in handling related matters related to the Property
arising from dealings with said principal. No later than the date of conveyance of title,
Company shall remit to City the sum of $2,452.27 as reimbursement to City for its legal
fees, costs and expenses through August 11, 2023.
10. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Property prior to completion of the
Project thereon, 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 Company under this Agreement.
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11. 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.
12. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Reserved.
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 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.
13. Indemnification and Releases.
A. Company hereby releases City, its elected officials, officers,
employees, and agents (collectively, the "indemnified parties") from, covenants
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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 employees, contractors or agents, or any other person who may
be about any of 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, 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 part. The provisions of
this Section shall survive the expiration or termination of this Agreement.
14. 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 demolish existing structures, to make the
Property ready for development, and 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 Improvements 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. 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
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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.
E Any representation or warranty made by Company in this
Agreement, or made by Company in any written statement or certificate furnished
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.
15. 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 Developer before the date of termination
and/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 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.
16. 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.
17. 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
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.
18. 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.
19. 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 28521 325"Street, New Hartford, Iowa 50660,
Attention: Dustin Arends.
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.
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20. 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.
21. 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.
22. 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 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.
23. 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.
24. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
25. 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.
26. 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.
27. 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.
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CITY OF WATERLOO, IOWA COMPANY
By: Quert-urz 9 v
Quentin M. Hart, Mayor
Approved by council 9/18/2023
Attest: �e1Tey Fe[ch[e
Kelley Felchle, City Clerk
sun Arends, d/b/a Arends
Investments
PERSONAL GUARANTY. The undersigned owner(s) of Company hereby agree
for themselves and their heirs, personal representatives, and assigns, to unconditionally
guarantee to City, its successors and assigns, the full and prompt performance by
Company, its successors and assigns, of all promises and covenants on the part of
Company to be performed pursuant to the foregoing Agreement, including but not
limited to the duties of indemnity set forth therein, if any. Liability of guarantors
hereunder is joint and several.
u n Arends
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EXHIBIT "A"
Description of Property
Lot No. W-Seventy-six (W-76) in "Cedarloo Park", in Black Hawk County, Iowa.
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See attached.
EXHIBIT B
House Plans
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