HomeMy WebLinkAboutWelter, Robert M. and Rita M.-Occupancy Agreement-07.21.2008 7-y/— a
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OCCUPANCY AGREEMENT
This Occupancy Agreement (the "Agreement") is made and entered into as of July 15, 2008, by and
between the City of Waterloo, Iowa, an Iowa municipal corporation ("Owner"), whose address for the
purpose of this Agreement is 715 Mulberry Street,Waterloo,Iowa,50703,and Robert M. Welter and Rita
M. Welter, husband and wife ("Occupant"), whose address for the purpose of this Agreement is 4012
Leversee Road, Waterloo, Iowa, 50703.
1. PREMISES AND TERM. Subject to the terms set forth in this Agreement,the parties agree that
Occupant shall have the right to occupy the following real estate (the "Property"):
The Southwest Quarter of the Southwest Quarter of Section 32,Township 90 North,Range
13 West of the 5th P.M., City of Waterloo, Black Hawk County;
Commonly known as 4012 Leversee Road, Waterloo, Iowa,
with the improvements thereon and all rights,easements,and appurtenances belonging thereto,for a term
commencing July 15, 2008 and ending at midnight on December 31, 2011, upon the condition that the
Occupant performs as provided in this Agreement. The term of this Agreement may end before December
31, 2011 as provided elsewhere in this Agreement. For purposes of this Agreement, that part of the
Property that consists of the home, buildings, and environs not exceeding four (4) acres constitutes the
"Homestead", and the remainder of the Property is the "Farmland."
2. RENT. The parties agree that no rent shall be due or payable by Occupant for its use or occupancy
of the Property.
3. POSSESSION. Occupant shall be entitled to possession on the first day of the term of this
Agreement, and shall yield possession to the Owner at the time and date of the close of the Agreement
term, except as herein otherwise expressly provided.
4. USE OF PREMISES. Occupant covenants and agrees during the term of this Agreement to use
and to occupy the Property, including but not limited to all buildings located thereon, as a personal
residence and for farming. Occupant's use and possession of the Property is a personal right. No other
person may reside in the Homestead, and Occupant may not cash rent the Farmland to anyone, although
custom farming is permitted. During the term of this Agreement, or until Occupant's rights in the
Farmland are terminated as provided in this Agreement, Occupant shall be entitled to receive any
government farm payments that are payable in respect of the Farmland. Owner has not reviewed zoning or
other applicable legal requirements or limitations imposed by any local, state, or federal governmental
authority that may affect Occupant's use of the premises,and Owner makes no representation or warranty
that the premises is suitable for Occupant's intended use. Occupant shall conduct its own review of
applicable law and shall be solely responsible for meeting all legal requirements,including but not limited
to building permits, licensure, or governmental approval.
5. ENVIRONMENTAL MATTERS. Owner consents to Occupant's use of farm chemicals (i.e.,
herbicides, pesticides and fertilizers) provided that the types and quantities of such substances that are
applied are reasonable and customary. Except as so allowed,Occupant shall not store,spill,discharge,or
otherwise release any hazardous materials, substances or wastes in or upon the Property, and in the event
that it does Occupant shall promptly report such event to Owner and offer reasonable cooperation with any
necessary activities to remediate or mitigate same.
6. QUIET ENJOYMENT. Occupant shall have and enjoy the possession of the Property for the term
of this Agreement free from molestation,eviction or disturbance by the Owner or any other persons or legal
entity whatsoever.
7. CARE AND MAINTENANCE OF PREMISES. (a) OCCUPANT'S DUTY OF CARE AND
MAINTENANCE. Occupant shall be solely responsible for repair, maintenance and upkeep of the
Property and all improvements thereon,and at the end of the term hereof the Property shall be delivered to
Owner in the same condition as at the beginning of the term, excepting for reasonable wear and tear,
depreciation arising from lapse of time,and damage without fault or liability of Occupant and to the extent
not covered by insurance as provided in paragraph 13(a)below. By way of illustration,and not limitation,
Occupant shall be responsible for the proper care of all grounds and plantings, snow and ice removal,
upkeep of buildings and fences(to the extent desired by Occupant),repair and maintenance of mechanical
systems, and removal of debris. Occupant shall not permit nor allow the Property to be damaged or
depreciated in value by any act, omission, or negligence of Occupant, its agents or employees. Occupant
takes the Property in its present condition except for such repairs and alterations as may be expressly herein
provided or to which Owner may hereafter give its prior written consent. Occupant shall make no
structural alterations or improvements without the Owner's prior written approval of the plans and
specifications therefor.
(b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Owner shall have no duty
whatsoever to care for or maintain the Property or any part thereof
8. FACILITY SERVICES. (a) UTILITIES AND SERVICES. Occupant, during the term of this
Agreement, shall pay before delinquency all charges for use of telephone, water, sewer, gas, electricity,
power,garbage or trash disposal,and all other utilities or services of whatever kind and nature which may
be used in or upon the Property.
(b) AIR CONDITIONING AND HEATING equipment shall be initially furnished by Owner,and
Occupant shall maintain, repair, and replace same.
(c) SEPTIC SYSTEM. Occupant,as owner of the Property for many years before the date of this
Agreement, represents that sewage from the Homestead is treated in an on-site septic tank. The parties
agree that said treatment system shall continue to service the Homestead during the term of this Agreement,
with Occupant being solely responsible for all maintenance, servicing, or other acts necessary to keep the
system operating for the benefit of the Homestead.
9. END OF TERM. This Agreement shall terminate upon expiration of the original term or upon the
death of Occupant. In addition, as to the Homestead only, this Agreement shall terminate if Occupant
leaves with the intent of making a permanent residence elsewhere. Occupant agrees that upon the
termination of this Agreement, whether in whole or in part, it will surrender, yield up and deliver the
Property in good and clean condition, except the effects of ordinary wear and tear, depreciation arising
from lapse of time, or damage without fault or liability of Occupant and to the extent not covered by
insurance as provided in paragraph 13(a) below. Occupant shall not continue to occupy the Property
beyond the Agreement term without the express prior written consent of Owner.
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10. OPTION TO LEASE. Upon expiration of the original term hereof, Occupant shall have the
option to rent the Property, for successive additional terms of one year each, subject to the consent of
Owner and pursuant to the terms of a written lease agreement between the parties. Rent for such period
shall be the sum of$500.00 per month for the Homestead and the prevailing market rate for the Farmland,
which shall be determined by reference to the survey most recently published by Iowa State University
Extension of Cash Rental Rates for Iowa,using the value for medium quality land in Black Hawk County
as reported therein.
11. ASSIGNMENT AND SUBLETTING. Occupant may not assign this Agreement or sublet the
premises or any part thereof without the prior written consent of Owner. The rights of occupancy
hereunder are personal to Occupant.
12. PROPERTY TAXES. (a)Occupant shall pay all installments of real estate taxes,and all increases
in installments, that would become delinquent if not paid during the term of this Agreement. Occupant
shall also timely pay all taxes,assessments,or other public charges levied or assessed by lawful authority
against its personal property on the premises during the term of this Agreement. Occupant shall pay all
special assessments that would become delinquent if not paid during the term of this Agreement. Each
party reserves the right to protest any assessment of taxes.
(b)In the event that the Property ceases to be taxed during the term of this Agreement,then Owner
shall promptly refund to Occupant sums paid by Occupant to Owner,on or before the commencement date
of this Agreement,as prorated property taxes,provided that before any refund is made Occupant shall have
paid all property taxes that have become due and payable in respect of the Property. No interest shall
accrue on any refunded sum.
13. INSURANCE. (a) The parties agree that Occupant may, at its own expense, maintain hazard or
other insurance to cover the home, other buildings, fixtures and personal property from loss or damage.
Owner shall provide no such insurance, nor insurance of any other type or nature, for the benefit of
Occupant.Any insurance carried by Owner in respect of the Property shall be for the sole benefit of Owner
and shall not name Occupant as an additional insured. Owner shall have no duty to use insurance proceeds
to repair or rebuild any structure or other improvement on the Property, except as provided in paragraph
15(a)below. To the extent permitted by their policies, Owner and Occupant waive all rights of recovery
against each other.
(b) Occupant further agrees that it will at its own expense procure and maintain liability insurance
in the amount of not less than$1,000,000 per occurrence and$2,000,000 annual aggregate. Such insurance
shall cover liability arising from the activities of Occupant, its employees and agents, and shall protect
Owner against such claims,damages,costs or expenses on account of injury to any person or persons,or to
the property of same, by reason of such casualty, accident or other occurrence on or about the Property
during the term of this Agreement. Certificates or copies of said policies, naming the Owner as an
additional insured, and providing for thirty (30) days' advance notice to the Owner before cancellation,
shall be delivered to the Owner within no later than the date that Occupant begins to occupy the Property
hereunder. A renewal certificate shall be provided to Owner prior to expiration of any policy. Owner shall
provide no such insurance for the property or activities of Occupant, its agents or employees.
(c) Occupant will not do or omit the doing of any act which would vitiate any insurance,or increase
the insurance rates in force upon the real estate improvements on the premises or upon any personal
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property of the Occupant upon which the Owner by law or by the terms of this Agreement, has or shall
have a lien.
(d) Occupant further agrees to be liable for and to promptly pay,as if current rental,any increase in
insurance rates on the Property and on the buildings, due to increased risks or hazards resulting from
Occupant's use of the premises otherwise than as herein contemplated and agreed.
14. INDEMNITY. Except as to any negligence of Owner or its agents, and to the extent not covered
by insurance maintained by Occupant or property insurance maintained by Owner,Occupant will protect,
indemnify, and save harmless the Owner from and against any and all loss, costs, damage, and expenses
occasioned by, or arising out of, any act or omission causing or inflicting injury and/or damage to any
person or property,happening or done in,upon,or about the Property,and due directly or indirectly to the
use or occupancy thereof, or any part thereof, by Occupant or any person claiming through or under the
Occupant. Prior to the term hereof, Occupant has had the opportunity to test the premises for toxic or
hazardous substances, mold, and other environmental matters, and Occupant agrees that its covenants of
indemnity and hold harmless set forth in this paragraph shall include but not be limited to any claims,
demands, losses, or causes of action arising from or relating to such matters (each an "Environmental
Claim") by Occupant or any person claiming through or under Occupant. Owner agrees that Occupant's
indemnity shall not include any Environmental Claim asserted by or capable of assertion by Owner, and
Owner agrees not to assert any Environmental Claim against the Occupant, provided that Owner's
agreements set forth in this sentence shall in no way limit any liability that Occupant may have under
applicable state or federal environmental law, rule, or regulation. The provisions of this paragraph shall
survive the expiration, abandonment, or termination of this Agreement.
15. DESTRUCTION OF HOMESTEAD. If the Homestead is damaged or otherwise rendered
uninhabitable but the damage is an insured loss that is capable of being repaired within 45 days at a cost of
less than $20,000.00, Owner agrees to cause such repairs to be done, and the occupancy rights of
Occupants shall continue thereafter. Owner shall pay no compensation to Occupants for temporary loss of
their occupancy rights as a consequence of such damage,nor shall the term of this Agreement be tolled or
extended. However, if the Homestead is otherwise damaged or rendered uninhabitable through no cause
attributable to the gross negligence or willful misconduct of Occupant,its agents or invitees,but cannot be
repaired within 45 days at a cost of less than$20,000.00,then the Homestead shall be deemed permanently
uninhabitable and Occupant's occupancy rights shall be deemed terminated as if the Homestead had been
destroyed. Owner shall pay to Occupant compensation in an amount equal to $1,000 for each month
between and including the month in which total destruction was deemed to occur and December 2011.
16. OWNER'S RIGHT TO TERMINATE. (a) Notwithstanding any other provisions of this
Agreement to the contrary, Owner shall have the right to terminate Occupant's occupancy rights at any
time during the term thereof,by delivery of no less than 180-days'prior written notice to Occupant. Owner
agrees that it shall not invoke its right of termination with respect to the Homestead or the Farmland unless
said property is needed for a pending economic development project as evidenced by an approved and
executed development agreement.
(b) In the event of termination with respect to the Homestead,Occupant's sole compensation shall
be an amount equal to$1,000 for each month between and including the month in which notice is delivered
and December 2011.
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(c) In the event of termination with respect to the Farmland, Occupant shall not be entitled to any
damages,payment,or compensation of any kind except for any damages payable with respect to lost crops.
In such event,Occupant's sole compensation for corn shall be an amount equal to(i)the average price for
#2 yellow corn in the Iowa "Northeast" region as reported under "Interior Iowa Daily Grain Prices" by
USDA Market News for the day that is 10 calendar days prior to the effective date of termination,
multiplied by(ii)the number of acres planted in corn,and multiplied by(iii)the average per-acre corn yield
experienced by Occupant in the preceding crop year. Occupant's sole compensation for soybeans shall be
an amount equal to(i)the average price for#1 yellow soybeans in the Iowa"Northeast"region as reported
under"Interior Iowa Daily Grain Prices"by USDA Market News for the day that is 10 calendar days prior
to the effective date of termination, multiplied by (ii) the number of acres planted in soybeans, and
multiplied by(iii)the average per-acre soybean yield experienced by Occupant in the preceding crop year.
17. MECHANIC'S LIENS. Neither the Occupant nor anyone claiming by, through, or under the
Occupant, shall have the right to file or place any mechanic's lien or other lien of any kind or character
whatsoever upon said premises or upon any building or improvement thereon, or upon the occupancy
interest of the Occupant therein,and notice is hereby given that no contractor,subcontractor,or anyone else
who may furnish any material, service,or labor for any building,improvements,alteration,repairs or any
part thereof, shall at any time be or become entitled to any lien thereon, and for the further security of the
Owner, the Occupant covenants and agrees to give actual notice thereof in advance to any and all
contractors and subcontractors who may furnish or agree to furnish any such material, service, or labor.
Occupant shall indemnify Owner and hold Owner harmless from and against any and all cost or expense
incurred by Occupant in respect of the Property, whether or not a mechanic's lien or other lien is filed.
18. RIGHTS CUMULATIVE. The various rights,powers,options,elections,and remedies of either
party as provided in this Agreement shall be construed as cumulative and no one of them as exclusive of
the others or exclusive of any rights,remedies,or priorities allowed either party by law,and shall in no way
affect or impair the right of either party to pursue any other equitable or legal remedy to which either party
may be entitled as long as any default remains in any way unremedied, unsatisfied, or undischarged.
19. NOTICES AND DEMANDS. Any notice under this Agreement shall be in writing and be deemed
served when it is delivered by personal delivery or mailed by certified U.S. mail, postage prepaid,
addressed to the parties at the addresses given below.
Occupant: Robert and Rita Welter
4012 Leversee Road
Waterloo, IA 50703
Owner: City of Waterloo
715 Mulberry Street
Waterloo, IA 50703
Attn: Noel Anderson, Community Planning& Development Director
20. BINDING EFFECT. Each and every covenant and agreement herein contained shall extend to and
be binding upon the respective heirs,personal representatives,successors,and assigns of the parties hereto;
except that if any part of this Agreement is held in joint tenancy, the successor in interest shall be the
surviving joint tenant.
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21. CHANGES TO BE IN WRITING. None of the covenants, provisions, terms, or conditions of
this Agreement to be kept or performed by Owner or Occupant shall be in any manner modified,waived,or
abandoned, except by a written instrument duly signed by the parties and delivered to the Owner and
Occupant. This Agreement contains the entire agreement of the parties and supersedes any and all
discussions, negotiations, understandings, or agreements pertaining to the subject matter hereof.
22. CONSTRUCTION. Words and phrases herein, including acknowledgment hereof, shall be
construed as in the singular or plural number, and as masculine, feminine, or neuter, according to the
context.
IN WITNESS WHEREOF,the parties hereto have executed this Occupancy Agreement as of the date
first set forth above.
OWNER OCCUPANT
City of Waterloo, Iowa
By: fidl
Timothy J. rley, Mayo Robert'M. Welter
Att • ��� c�G . illy 22
Nancy ckert, ity Clerk 'ita M. Welter
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