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HomeMy WebLinkAboutCJ's Construction, Water Work - Project Assistance Agreement (Paradise Estates Edition) - 10.2.2023Preparec Tina Andera, City of Waterloo, 715 Mulberry Street, Waterloo. Iowa 50703 4366 f3g3i 28I- After recording, return to Community Planning & Development, 715 Mulberry Street, Waterloo, IA 50703. PROJECT ASSISTANCE AGREEMENT Octob isr Project Assistance Agreement (the "Agreement") is entered into as of , 2023 by and between Cis Construction; Inc. ("Company), the City of Waterloo, lowa ("City") and the Board of Trustees of the Waterloo Water Works ("Water Works"). RECITALS A. Company is wining and able to finance and construct improvements for a residential subdivision known as Part 1 of Phase 1 of Paradise Estates, +1- 25 Acres as shown on Exhibit "A" attached hereto (the Property"). B. City and Water Works consider residential development within the City a benefit to the community and are willing for the overall good and welfare of the community to provide financial incentives to encourage that goal. City and Water Works believe 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 mut the parties agree as follows; al covenants set forth herein, 1. Improvements by Company. Company shall install at its own expenses all infrastructure required by approved subdivion plats, Including but not limited to water, sanitary sewer, storm sewer, storm wat; r detention, and streets (collectively, as the "Improvements"). The improvement shall be constructed in accordance with the terms of this Agreement, all appiica le City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. If not approved by City before the date of this Agreement, Company shall submit specific designs and 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 he undertaken and completed by Company under this Agreement are collectively referred to as the "Project." 2. Timeliness of Construction. 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 and Water Works to extend the incentives provided for in this Agreement, and that without said commitment they would not do so. A. Peedlines to commence and complete. Subject to Unavoidable Delays (defined below), Company must begin construction of the Improvements within six (6) months after the date of this Agreement (the "Project Start Date") and must Substantially Complete construction within fourteen (14) months after the date of this Agreement (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 formally accept the Improvements. 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 the Improvements. Any additional or longer time extensions will require the consent of the City Council. B. Events triggering termination. If Company does not begin or Substantially Complete construction of the Improvements on the schedule stated above, subject to Unavoidable Delays, then City and Water Works may terminate this Agreement as set forth in Section 13. 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 possble, Company shall notify City and Water Works in writing of the occurrence of any Unavo dable Delay and shall again notify City and Water Works in writing when the Unavoidable Delay has ended. 3. Indemnity. Company further agrees that it shall indemnify City and Water Works, and their respective City Council members or Trustees of same and the officers, employees and agents of each, and hold them 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 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 attach to the Property by virtue of Company's ownership of same, except as otherwise provided in this Agreement. A lien' is any lien, claim, charge, security interest, mortgage or encumbrance on, against or affecting the Property. If City or Water Works 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 and court costs, incurred by City or Water Works. Company's duties of indemnity pursuant to this Section shall survive the expiration, termination, or cancellation of this Agreement for any reason. 4. 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. 5. Project Incentive. A. To aid in the Project, City and Water Works will each make a development grant (the "Grant') to Company in the amount of $250,000.00, or a total incentive of $500,000.00. Payment will be made in full within thirty (30) days after the approval of this Agreement by the Waterloo City Council and the Water Works Board of Trustees. Company shall repay the Grant to City and Water Works directly from the proceeds from sale of each lot in the subdivision, in the amount of $7,812.00 divided between City and Water Works for each lot sold. Company will provide to City and Water Works a Mortgage, in form satisfactory to City and Water Works, on the entire Property to ensure repayment of the Grant, subject to the initial Company mortgages to the lender of its development and land loans already of record at the time of payment of the Grant. B. In the event of Company's default of this Agreement, or if the Grant has not been repaid in full within five (5) years after payment of the Grant, Company shall, within thirty (30) days of written notice from City, either (i) refund the Grant in full to City and Water Works, or so much of the Grant as remains unreimbursed at the time of default, or (ii) convey separately to City and Water Works by special warranty deed the number of lots required, which will be valued by appraisal, either undeveloped or developed, to offset the unreimbursed balance (the "Remedial Conveyance"). Undeveloped lots are those which are platted but not improved. The Remedial Conveyance property shall, to the greatest extent possible, consist of contiguous platted lots. or, if there are not sufficient lots to satisfy the debt, then an unplatted portion of the Property shall be included in the Remedial Conveyance. 6. 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 the Improvements have been Substantially Completed, Company shall make such reports to City and Water Works, in such detail and at such times as may be reasonably requested by them, as to the actual progress of Company with respect to construction of the Improvements. B. Company will comply with all applicable land development Taws 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. 7. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer its interest in the Property, whether in whole or in part, prior to completion of the Project thereon to any other person or entity without the prior written consent of City, which consent will not be unreasonably withheld. 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. Any such sale, conveyance, assignment or other transfer shall be subject to the rights and responsibilities of the parties under this Agreement. 8. 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. 9. Representations and Warranties of Water Works. Water Works hereby represents and warrants as follows: A. Water Works 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 Water Works. 10. 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 Iowa 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, or in conflict with, nor will same result in a violation or breach of, the terms, conditions or provisions of the articles of incorporation or bylaws of Company nor 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. 11. Indemnification. Company hereby releases City and Water Works, and the elected or appointed City Council members or Trustees of same and the officers, employees and agents of each of them (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 third -party claims arising from or in connection with the Property, the Project, or further buildout of the subdivision by Company or any successor in title, except as otherwise expressly provided in this Agreement. The provisions of this Section shall survive the expiration or termination of this Agreement. 12. 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. Transfer by Company of any interest (either directly or indirectly) in the Property or this Agreement, without the prior written consent of City and Water Works; 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 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, shal 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. 13. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City, for itself and as agent of Water Works, 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, and such Event of Default shall not have been cured within said 30 day period, or in the event that the Event of Default cannot reasonably be cured within said 30 days and Company shall not have provided assurances reasonably satisfactory to City that the Event of Default will be cured as soon as reasonably possible. Upon termination, City and Water Works may: i. exercise any and all remedies available at law, equity, contract or otherwise for recovery of any Grant funds. it demand in writing that Company deliver the Remedial Conveyance. 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 transfer and to deliver to City and Water Works title to the Remedial Conveyance 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 Remedial Conveyance property. Appointment ofAttomey in Fact: If Company fails to deliver such documents, including but not limited to a special warranty deed, to City and Water Works 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 required by this paragraph, and for such limited purpose Company does hereby constitute and appoint City as its attomey-in-fact. Company further agrees that it shall indemnify City and Water Works, and the elected or appointed City Council members or Trustees of same, and the officers, employees, and agents of each of them and hold them harmless with respect to any demand, claim, cause of action, damage, 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 Remedial Conveyance property of any type or nature whatsoever that attaches to the such property by virtue of Company's ownership of same, except as otherwise expressly provided in this Agreement. If City or Water Works files suit to enforce the terms of this Agreement and prevails in such suit, Company shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees and court costs, incurred by the plaintiff in such action. Company's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason. B. Default by City or Water Works. Whenever any Event of Default in respect of City or Water Works occurs, Company may take such action to require City and/or Water Works, as applicable, to specifically perform its obligations hereunder. Before exercising such remedy, Company shall give 30 days' written notice to City and Water Works 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 or Water Works, as applicable, 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. 14. 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 and Water Works to enter this Agreement. Company acknowledges that without such promises, covenants, representations, and warranties, City and Water Works 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, by Company, City and Water Works may, at their sole option and in addition to any other available right or remedy, terminate this Agreement and declare it null and void, except as otherwise expressly provided in this Agreement. 15. Performance by City and Water Works. Company acknowledges and agrees that all of the obligations of City and Water Works under this Agreement shall be subject to, and performed by City and Water Works in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with their lawful authority. All covenants, stipulations, promises, agreements and obligations of City or Water Works contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City or Water Works, as applicable, and not of any governing body member, officer, employee or agent of City or Water Works in the individual capacity of such person. 16. 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. 17. 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 Water Works, at 325 Sycamore Street, Waterloo, Iowa 50703, fax number Attention: General Manager. (c) if to Company, at 2915 Dubuque Street NE, Iowa City, Iowa 52240, Attention: President. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 23. 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. 24. 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. 25. Time of Essence. lime is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Project Assistance Agreement by their duly authorized representatives as of the date first set forth above. [signatures an next page] CITY OF WATERLOO, IOWA CJ'S CONSTRUCTION, INC. By: QueizEciz IlarE By: Quentin M. Hart, Mayor Cory J. dapp, Pre Attest: Keffey Te[ch[e Kelley Felchle, City Clerk WATERLOO WATER WORKS By: Title: PERSONAL GUARANTY. The undersigned shareholders and officers of Company hereby agree for themselves and their heirs, personal representatives, and assigns, to unconditionally guarantee to City and Water Works, and the successors and assigns of each, 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. Co 1 Exhibit "A" w J SIDEHILL DRIVE LICHTY.BLVD • MOONLIGHT DRIVE PHASE 1 l •/ : ye •• ?• r , 'F. / 2 , l', OSO a. nib �' Hi,.g • . • e. 1- w w 1- CO -J • PARADISE BLVD • ORANGE ELEMENTARY SCHOOL .• , . • . f . • • • • Pip MOONLIGHT DRIVE • , • • FUTURE . PHASE • E LICHTY BLVD FUTURE PHASE 1 LII fL• w• CC • m • • MERMAID COVE . NORTH STORMWATER BASIN • • • • • • • • f• • • • PARADISE BLVD . r' • • , • • • . r•• . • , /• i • •. • • , j / f, /• • • - • i • SOUTH STORMWATER BASIN ti E ORANGE RD HAWKEYE ROAD /HWY21