HomeMy WebLinkAboutBabic - Development Agreement - (RECORDED) 6.3.2024 2024-17684
RECORDED:07/24/2024 10:31:30 AM
RECORDING FEE:$107.00
REVENUE TAX:$
COMBINED FEE:$107.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
Cl4� lcse
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
v u 'v, 3 , 2024 by and between Babic Properties, LLC ("Company"), and the
City of Waterloo, Iowa ("City").
RECITALS
A. Company is willing and able to finance and construct a multi-unit 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$10,000.00 (the "Purchase Price").
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 own expense, obtain whatever form of title
evidence it desires. If title is unmarketable or subject to matters not acceptable to
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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 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.
Company shall demolish all existing structures on the Property, properly dispose of
debris, construct on the Property a new 8-plex apartment building as further described
and depicted in Exhibit "B" attached hereto. The Improvements shall be completed to a
finished state, including installation of paved driveway, sidewalk, stormwater control
improvements, 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 of Construction; 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 in paragraph B below), Company must commence construction
of the Improvements within six (6) months after receiving title to the Property (the
"Project Start Date"), and Substantially Complete construction within fourteen
(14) 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 any
Project elements for which no permit was necessary have been Substantially
Completed. If Company has not constructed the Improvements within the
required period or any extended period, then City may terminate this Agreement.
All deadlines are subject to Unavoidable Delays. The City's Community Planning
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and Development Director may, but shall not be required to, consent to an
extension of time of up to six (6) months for construction 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 14, 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 14,
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, or to refund the Purchase Price in whole or in part. 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, or past-due or currently due property taxes (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 after 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 Section, and for such limited
purpose Company does hereby irrevocably 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
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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. 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 associated connection fees.
6. 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 a grant of$5,000.00 to Company for timely completion of each unit
of the Improvements, up to a total grant of$40,000.00. Such grant will be
payable within ninety (90) days after City has verified that the Improvements
have been Substantially Completed.
B. Refund of Purchase Price. City will refund up to $5,000.00 of the
Purchase Price to Company within ninety (90) days after all of the Improvements
have been Substantially Completed.
C. 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 or its successor in title meets all
requirements to qualify for such exemption.
7. 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, 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.
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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 companies engaged in activities of comparable size and liability
exposure, and shall provide evidence of such coverages to the City upon
request.
8. 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.
9. 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.
10. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
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.
11. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. 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.
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C. 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.
D. 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.
E. 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.
F. 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.
12. 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 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
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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.
13. 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 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
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,
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incomplete or misleading in any material respect on or as of the date of the
issuance or making thereof.
14. 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
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.
15. 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.
16. 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
8
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
17. No Third-Party Beneficiaries. No rights or privileges of any party hereto
shall inure to the benefit of any contractor, subcontractor, material supplier, or any other
person or entity, and no such contractor, subcontractor, material supplier, or other
person or entity shall be deemed to be a third-party beneficiary of any of the provisions
of this Agreement.
18. 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 4388 Harbin Drive, Waterloo, Iowa 50701,
Attention: Manager.
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.
19. 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.
20. 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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21. 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.
22. Captions. All captions, headings, or titles in the paragraphs or sections of
this Agreement are inserted only as a matter of convenience and/or reference, and they
shall in no way be construed as limiting, extending, or describing either the scope or
intent of this Agreement or of any provisions hereof.
23. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
25. Entire Agreement. This Agreement, together with the exhibits attached
hereto, 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.
26. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA BABIC PROPERTIES, LLC
,730.7
By: D,L.t A4S-1k %e..A1__ By: /
e ('
Quentin M. Hart, Mayor Sel/vedin Babic, Manager
Attest:
Kelley elchle, City Clerk
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PERSONAL GUARANTY. The undersigned members and/or managers 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.
7--2Yrf?'
/Lt0(Babic
11
EXHIBIT "A"
Description of Property
The Southwesterly 150 feet of Lot No. 7 in Littlefield Addition in Black Hawk County, Iowa.
1
EXHIBIT "B"
Building Plans
See attached.
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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
June
Agreement (the "Agreement") is entered into as of
2024 by and between Babic Properties, LLC ("Company"), and the
City of Waterloo, Iowa ("City").
RECITALS
A. Company is willing and able to finance and construct a multi -unit 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 $10,000.00 (the "Purchase Price").
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 own expense, obtain whatever form of title
evidence it desires. If title is unmarketable or subject to matters not acceptable to
1
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 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.
Company shall demolish all existing structures on the Property, properly dispose of
debris, construct on the Property a new 8-plex apartment building as further described
and depicted in Exhibit "B" attached hereto. The Improvements shall be completed to a
finished state, including installation of paved driveway, sidewalk, stormwater control
improvements, 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 of Construction; 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 in paragraph B below), Company must commence construction
of the Improvements within six (6) months after receiving title to the Property (the
"Project Start Date"), and Substantially Complete construction within fourteen
(14) 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 any
Project elements for which no permit was necessary have been Substantially
Completed. If Company has not constructed the Improvements within the
required period or any extended period, then City may terminate this Agreement.
All deadlines are subject to Unavoidable Delays. The City's Community Planning
2
and Development Director may, but shall not be required to, consent to an
extension of time of up to six (6) months for construction 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 14, 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 14,
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, or to refund the Purchase Price in whole or in part. 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, or past -due or currently due property taxes (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 after 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 Section, and for such limited
purpose Company does hereby irrevocably 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
3
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. 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 associated connection fees.
6. 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 a grant of $5,000.00 to Company for timely completion of each unit
of the Improvements, up to a total grant of $40,000.00. Such grant will be
payable within ninety (90) days after City has verified that the Improvements
have been Substantially Completed.
B. Refund of Purchase Price. City will refund up to $5,000.00 of the
Purchase Price to Company within ninety (90) days after all of the Improvements
have been Substantially Completed.
C. 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 or its successor in title meets all
requirements to qualify for such exemption.
7. 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, 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.
4
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 companies engaged in activities of comparable size and liability
exposure, and shall provide evidence of such coverages to the City upon
request.
8. 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.
9. 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.
10. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
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.
11. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. 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.
5
C. 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.
D. 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.
E. 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.
F. 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.
12. 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 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
6
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.
13. 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 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
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,
7
incomplete or misleading in any material respect on or as of the date of the
issuance or making thereof.
14. 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
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.
15. 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.
16. 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
8
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
17. No Third -Party Beneficiaries. No rights or privileges of any party hereto
shall inure to the benefit of any contractor, subcontractor, material supplier, or any other
person or entity, and no such contractor, subcontractor, material supplier, or other
person or entity shall be deemed to be a third -party beneficiary of any of the provisions
of this Agreement.
18. 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 4388 Harbin Drive, Waterloo, Iowa 50701,
Attention: Manager.
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.
19. 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.
20. 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.
9
21. 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.
22. Captions. All captions, headings, or titles in the paragraphs or sections of
this Agreement are inserted only as a matter of convenience and/or reference, and they
shall in no way be construed as limiting, extending, or describing either the scope or
intent of this Agreement or of any provisions hereof.
23. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
25. Entire Agreement. This Agreement, together with the exhibits attached
hereto, 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.
26. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA BABIC PROPERTIES, LLC
62ue UZ 9--tarE
' By: By: �i6,--
Quentin M. Hart, Mayor Se vedin Babic, Manager
Attest: Kelley Felchle
Kelley Felchle, City Clerk
10
el o
PERSONAL GUARANTY. The undersigned members and/or managers 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.
S fvedin Babic
11
EXHIBIT "A"
Description of Property
The Southwesterly 150 feet of Lot No. 7 in Littlefield Addition in Black Hawk County, Iowa.
1
See attached.
EXHIBIT "B"
Building Plans
1
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6 mil POLY V.B.
1,2' DRYWALL: TAPED 8 SANDED
SECOND FLOOR PLAN
4-18-24
EACH UNIT: 910 SQ.FT.
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ARE TO OUTSIDE EDGE OF
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VEDO -(319)250 - 1405
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15# ROOFING FELT OVER
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CONTINUOUS EAVES PROTECT
ALUMINUM ROOF EDGE
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SCALE: 3/8" = 1'-0"
4-24-24
BABIC PROPERTIES 8 - PLEX
SPAHN & ROSE JESUP, IA
CEILING LINE
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4-24-24
BABIC PROPERTIES 8 - PLEX
SPAHN & ROSE JESUP, IA
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(14)TREADS
(15) RISERS
(14)TREADS
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STAIR SECTION BABIC PROPERTIES 8 - PLEX
SPANN A. ROSE JESUP, IA
194
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4-9x3-24
STAIR SECTION BABIC PROPERTIES 8 — PLEX
SCALE: 3/8" = 1'-0" SPAHN & ROSE JESUP, IA
THESE PLANS ARE BEING FURNISHED BY SPAHN & ROSE LUMBER COMPANY BY DRAFTSMEN WHO ARE NOT LICENSED ARCHITECTS OR ENGINEERS.
CONSTRUCTION FROM THESE PLANS SHOULD NOT BE UNDERTAKEN WITHOUT THE ASSISTANCE OF A CONSTRUCTION PROFESSIONAL. SPAHN &
ROSE LUMBER CO. ASSUMES NO RESPONSIBILITY FOR STRUCTURAL OR DIMENSIONAL ERRORS OR OMISSIONS. THE GENERAL CONTRACTOR
AND/OR OWNER SHALL ASSUME FULL LIABILITY FOR ACTUAL FIELD DIMENSIONS, DETAILS, CONSTRUCTION TECHNIQUES. AND STRUCTURAL
REQUIREMENTS CONFORMING TO ALL STATE AND LOCAL CODES AND ORDINANCES. SPAHN & ROSE LUMBER CO. ACCEPTS NO RESPONSIBILITY
FOR STRUCTURAL INTEGRITY WHICH SHALL BE THE SOLE RESPONSIBILITY OF THE OWNER AND/OR CONSTRUCTOR. CONSEQUENT. DAMAGES ARE
SPECIFICALLY EXCLUDED. USERS OF THESE PLANS UNDERSTAND AND AGREE THAT NO WARRANTIES HAVE BEEN PROVIDED, EXPRESS NOR IMPLIED
AND SPAHN & ROSE LUMBER CO. DECLINES ANY AND ALL CLAIMS FOR FAULTY WORKMANSHIP.
12
ASPHALT SHINGLE
15# ROOFING FELT OVER
1/2" OSB SHEATHING C/W H-CLIPS
CONTINUOUS AIR VENT BAFFLES
@ 24" O.C. TO BE INSTALLED SO
AIR FLOW IS NOT RESTRICTED
CONTINUOUS EAVES PROTECTIO
ALUMINUM ROOF EDGE
& FASCIA COVER
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ALUMINUM SOFFIT W/
EQUALLY SPACED VENTS
TYPICAL 2 x 6 EXTERIOR WALL:
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AIR BARRIER
92 5/8" - 2 x 6 STUDS @ 16" o.c.
R - 21 BATT INSULATION
6 MIL POLY VAPOR BARRIER
1/2" GYPSUM BOARD
TYPICAL 2 x 6 EXTERIOR WALL:
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OSB SHEATHING
AIR BARRIER
92 5/8" - 2 x 6 STUDS @ 16" o.c.
R - 21 BATT INSULATION
6 MIL POLY VAPOR BARRIER
1/2" GYPSUM BOARD
2X6 SILL PLATE ON GASKET
FASTENED TO FOUNDATION WALL WITH
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GRADE TO BE 6" MIN.
BELOW TOP OF CONC.
FOUNDATION WALL
TYPICAL 8" CONCRETE WALL:
8" CONCRETE
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6" GRAVEL (MINIMUM) ON
4" DIA. WEEPING TILE
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POLY VAPOR BARRIER
R-50
INSULATION
TYPICAL I - JOIST FLOOR SYSTEM:
3/4" T&G OSB SUBFLOOR; GLUED & NAILED
11 7/8" I - JOISTS @ 16" o.c.
-R - 19 INSULATION
(2) LAYERS 5/8"
FIRECODE DRYWALL
TYPICAL BASEMENT FLOOR:
4" CONCRETE SLAB c/w
MESH REINFORCEMENT
6 mil POLY VAPOR BARRIER
COMPACTED GRANULAR FILL
REINFORCING BARS
2" RIGID FOAM
INSULATION
16" x 8" REINFORCED
CONCRETE FOOTING
WALL SECTION
SCALE: 3/8" = 1'-0"
4-24-24
CEILING LINE \
MAIN FLOOR
CEILING LINE
TOP OF SLAB
BABIC PROPERTIES 8 - PLEX
SPAHN & ROSE JESUP, IA
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