HomeMy WebLinkAboutDellatan Asset Acquisition LLC -(RECORDED) Dev Agmnt - 9.16.2024 2024-21040
RECORDED:09/30/2024 04:03:33 PM
RECORDING FEE:$102.00
REVENUE TAX:$
COMBINED FEE:$102.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
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 August-2&;-
2024, by and between [Dellatan Asset Acquisition LLC] ("Company"), and the City of
Waterloo, Iowa ("City").
RECITALS
A. City is the owner of real property identified as parcel nos. 8913-13-459-
019 (the "Phase 1 Property" and 8913-24-203-003 (the "Phase 2
Property"), as further described on Exhibit "A" attached hereto
(collectively, the "Project Property"). Company desires to undertake a
project on the Project Property and is willing and able to finance and
construct no fewer than 12 single-family dwellings and/or twin homes and
related improvements thereon.
B. City considers affordable housing 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 Projects
(defined below) have been undertaken and are 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 hereof, City shall convey the
Phase 1 Property to Company for the sum of $5,000.00 (the "Purchase Price").
Conveyance 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) general utility and right-of-way easements serving the Phase 1 Property; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. City shall
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have no duty to convey title to Company until Company delivers to City reasonable and
satisfactory proof of financial ability to undertake and carry on the Phase 1
Improvements (defined below), which may take the form of a lending commitment letter.
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. City shall provide any title documents it has in its possession, including any
abstracts, to assist in title review. If title is unmarketable or subject to matters not
acceptable to Company, and if City does not remedy or remove such objectionable
matters in timely fashion following written notice of such objections from Company,
Company may terminate this Agreement without further obligation and return the
abstract of title to City.
2. Phased Development; Improvements. The parties contemplate that
Company will develop the Project Property in phases, to include the Project elements
described below and subject to development of more detailed plans for each phase at
one or more future dates. Company acknowledges that it has had a reasonable
opportunity to inspect the Project Property and to conduct other due diligence related to
the Project. Company agrees to accept the Project Property in its "AS IS" condition,
without any warranty from City, expressed or implied, as to the condition of the Project
Property, its marketability, or its fitness for any particular purpose. Corresponding as
necessary or appropriate with each phase of development, at its own cost Company
shall:
(a) take all measures necessary to prepare the Project Property for development;
(b) at its option, re-plat either or both phases of the Project Property to suit its
needs for construction of the Improvements;
(c) construct to a finished state no fewer than two (2) single-family dwellings in
Phase 1 and ten (10) single-family dwellings in Phase 2, including
construction of garages and installation of driveways and sidewalks for each
lot, provided that in Phase 2 Company shall have the option to construct twin
homes pursuant to plans approved by City in advance of construction; and
(d) be responsible for removal of all construction debris, proper leveling or
shaping of groundscape, and grassing and/or landscaping.
(Construction and finishing as so described in each the foregoing clauses are referred
to collectively as the "Improvements"). The Improvements shall be constructed to
achieve an assessed value of no less than $130,000.00 for each dwelling, shall be
constructed in accordance with the terms of this Agreement and all applicable City,
state, and federal building codes and shall comply with all applicable City ordinances
and other applicable law. 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 Project 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."
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Improvements completed within the schedule established by Section 5 below will
be eligible for the benefits provided for in this Agreement, and any phase of the
Improvements not completed within the prescribed period will not be eligible for said
benefits.
3. Phase 2 Property. Company shall have the option to acquire the Phase
2 Property on the terms set forth in this Section. To exercise the option to purchase the
Phase 2 Property, and provided that Company has Substantially Completed the Phase
1 Improvements, Company shall deliver written notice of exercise to City within six (6)
months after it receives the final certificate of occupancy with respect to dwellings in
Phase 1, or said option shall lapse. Company shall, within 60 days after delivery of the
notice of option exercise, purchase the Phase 2 Property from City for the sum of
$5,000.00 on terms substantially the same as those set forth in Section 1.
4. Construction Plans. Company agrees that it will cause the Improve-
ments to be constructed on the Property in conformance with construction plans (the
"Plans") submitted to the City, which Plans shall be subject to approval as provided in
this Section. Company agrees that the scope and scale of the Improvements to be
constructed shall not be significantly less than the scope and scale of the Improvements
as detailed and outlined in the Plans. Home designs are attached hereto as Exhibit "B."
City shall approve the Plans in writing if: (a) the Plans conform to the terms and
conditions of this Agreement; (b) the Plans conform to all applicable federal, state and
local laws, ordinances, rules and regulations and City permit and design review
requirements; (c) the Plans are adequate for purposes of this Agreement to provide for
the construction of the Improvements, and (d) no Event of Default under the terms of
this Agreement has occurred; provided, however, that any such approval of the Plans
pursuant to this Section shall constitute approval for the purposes of this Agreement
only and shall not be deemed to constitute approval or waiver by the City with respect to
any building, fire, zoning or other ordinances or regulations of the City, and shall not be
deemed to be sufficient plans to serve as the basis for the issuance of a building permit
if the Plans are not as detailed or complete as the plans otherwise required for the
issuance of a building permit. Approval of Plans hereunder shall not constitute approval
for any other City purpose nor subject the City to any liability for the Improvements as
constructed.
The Plans must be rejected in writing by City within thirty (30) days of submission
or shall be deemed to have been approved by the City. If City rejects the Plans in
whole or in part, Company shall submit new or corrected Plans within thirty (30) days
after receipt by Company of written notification of the rejection, accomplished by a
written statement of the City specifying the respects in which Company's Plans fail to
conform to the requirements of this Section. The provisions of this Section relating to
approval, rejection and resubmission of corrected Plans shall continue to apply until the
Plans have been approved by the City; provided, however, that in any event Company
shall submit Plans which are approved by City prior to commencement of construction
of the Improvements. Approval of the Plans by the City shall not relieve Company of
any obligation to comply with the terms and provisions of this Agreement, or the
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provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans by City be deemed to constitute a waiver of any Event of
Default.
5. 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 have done so.
A. Subject to Unavoidable Delays (defined below), Company must
obtain a building permit and begin construction of the Improvements for a given
phase within four (4) months after conveyance of the Phase 1 Property or the
Phase 2 Property, as applicable, to Company (the "Phase Start Date").
Company shall construct new homes and related improvements in Phase 1 (and
Phase 2 if Company exercises its option to purchase the Phase 2 Property) on a
schedule so that no less than one (1) dwelling is Substantially Completed every
fourteen (14) months. For purposes of this Agreement, "Substantially
Completed" means the date on which the Improvements have been completed to
the extent necessary for the City to issue a certificate of occupancy relating
thereto and the City has verified that any Project element of such phase for which
no permit was necessary has been completed to the City's reasonable
satisfaction.
B. If Company has not begun construction of the Improvements before
the applicable Phase Start Date, City may terminate this Agreement as set forth
in Section 16, title to uncompleted areas of the Project Property shall revert to
City, and City shall have no further obligation hereunder with respect to such
Project 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 Project Property by any
Improvements, or to refund the Purchase Price in whole or in part. If construction
has commenced within the required period or any extended period and is
stopped and/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 of the foregoing is an "Unavoidable Delay"), then time lost as a
result of Unavoidable Delays shall be added to extend the applicable phase
completion date by a number of days equal to the number of days lost as a result
of Unavoidable Delays. If construction is not completed within the allowed period
of extension, the City's Community Planning and Development Director may, but
shall not be required to, consent to an extension of time of up to six (6) months
for the construction of any phase of the Improvements. Any additional or longer
time extensions will require consent of the City Council. 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.
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C. City may terminate this Agreement as set forth in Section 16, in
which case title to the Project Property shall revert to City, and City shall have no
further obligation hereunder with respect to such Project, nor any duty to
compensate Company for any work or materials provided before the termination
date or for the added value of any Improvements completed or partially
completed. Termination of this Agreement by City, and any related reverter of
title obligations, shall not apply with respect to any area on which Improvements
have been Substantially Completed or substantial progress toward completion is
being made in City's reasonable judgment (the Project Property other than such
excepted area(s) being the "Undeveloped Property"). In the event of any
termination, City shall have no further obligations under this Agreement with
respect to the Undeveloped Property.
D. If Company determines at any time that the Project, in whole or in
part, is not economically feasible, then after giving thirty (30) days' advance
written notice to City, Company may convey the Undeveloped Property to City by
special warranty deed, free and clear of any lien, claim, or encumbrance arising
by or through Company, and thereupon neither party shall have any further
obligation under this Agreement with respect to the Undeveloped Property,
except as expressly provided. In connection with any conveyance to City,
Company shall pay in full, so as to discharge or satisfy, all liens, claims, charges,
and encumbrances on or against the Undeveloped Property or any part thereof.
6. Reverter of Title; Indemnity. In the event of any reverter of title,
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
reverted Project Property that is free and clear of any lien, claim, charge, security
interest, mortgage or encumbrance (collectively, "Liens") arising by or through
Company. Company shall pay in full, so as to discharge or satisfy, all Liens on or
against the reverted Project Property. In connection with any reverter of title, Company
shall not be entitled to a refund of the Purchase Price. 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 on
Company's behalf and as its attorney-in-fact City shall be authorized, but not required,
to execute the special warranty deed required by this Section, and for such limited
purpose Company does hereby constitute and appoint City as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, cost, expense, liability or injury
made, suffered, or incurred as a result of or in connection with the Project, or
Company's failure to carry on or complete same, or any Lien or Liens on or against the
reverted Project Property of any type or nature whatsoever that attaches to the reverted
Project Property by virtue of Company's ownership of same. 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
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City. Company's duties of indemnity pursuant to this Section shall survive the
expiration, termination or cancellation of this Agreement for any reason.
7. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Project Property and for payment of any associated connection fees.
8. Incentives. The incentives described in the following subsections of this
Section 8 are in addition to the other Project incentives extended by City to Company
hereunder.
A. Infill 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 dwelling unit
of the Improvements. Each such grant will be payable within sixty (60) days after
City has verified that a given dwelling has been Substantially Completed.
B. Refund of Purchase Price. With respect to each phase, City will
refund the Purchase Price to Company within ninety (90) days after all of the
Improvements for that phase have been Substantially Completed.
C. Partial Tax Exemption. Because the Property is located in a
designated City Limits Urban Revitalization Area (CLURA), the Property is
eligible for tax exemption consistent with and to the extent provided for in Iowa
law and City ordinance, provided that Company or its successor in title meets all
requirements to qualify for such exemption.
9. No Encumbrances; Limited Exception. Until completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any
Liens on the Project 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 Project Property or any part thereof for any purpose except in
connection with financing of the Improvements. Any other mortgage shall be void.
10. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Project Property prior to
completion of the Project, 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.
11. Additional Covenants of Company. In addition to the other promises,
covenants and agreements of Company as provided elsewhere in this Agreement,
Company agrees as follows:
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A. Until the Improvements have been Substantially Completed,
Company shall make such reports to City, in such detail and at such times as
may be reasonably requested by City, as to the actual progress of Company with
respect to construction of the Improvements.
B. Company will comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses.
C. Company will cooperate fully with 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.
12. 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.
13. 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 its organization 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
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terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of organization or operating agreement of Company or
of any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Company is now a party or by which it or its property
is bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
14. 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 Project 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 directors, officers, employees, contractors or agents,
or any other person who may be about the Project Property or the Improvements,
due to any act of negligence or willful misconduct of any person, other than any
act of negligence or willful misconduct on the part of any such indemnified party
or its officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever, by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the construction, installation, ownership, and
operation of the Improvements, or (3) otherwise as a result of or in connection
with the Project or Company's failure to carry on or complete same.
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C. The indemnification obligations under this Section shall include
attorneys' fees and expenses incurred by any indemnified party. The provisions
of this Section shall survive the expiration or termination of this Agreement.
15. 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 Project 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, the Project Property, or this Agreement, without the prior
written consent of City, except as otherwise expressly provided in this
Agreement;
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 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 90 days after such appointment, or if Company shall consent to
or acquiesce in such appointment; or (5) defaults under any mortgage applicable
to any part of the Project 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.
16. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, City may terminate this Agreement, in whole
or in part. Before exercising such remedy, City shall give 30 days' written notice
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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 Project Property and/or recovery of any sums paid by City to
Company before the date of termination.
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.
17. 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.
18. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
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19. 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.
20. 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 1542 Flammang Dr, Waterloo Iowa, 50702,
Attention: Managing Member.
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.
21. 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.
22. 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.
23. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the
offending provision or part thereof shall be deemed severed from this Agreement and
the remaining provisions of this Agreement shall not be affected thereby and shall
continue in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
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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.
24. 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.
25. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which, including signed counterparts delivered by facsimile or
other electronic means, shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
27. 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.
28. 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 [Dellatan Asset cquisitign LLC]
By: `x '1^
' ,or
Cam ,
Quentin M. Hart, M O'Dell 0 ell L all
Managing Member
Attest:
Kelley Felc e, City Clerk
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EXHIBIT "A"
Project Property Description
Phase 1 Property
Lots Nos. 10, 11 and 12 in Block No. 1 in Warneka's Addition to the City of Waterloo, Iowa.
Phase 2 Property
Lots 2 through 7, inclusive, and Lots 14 through 20, inclusive, and all of the vacated alley in Block 2 lying
between Lots 1 through 6 and Lots 15 through 20, all in Block No. 2 in "Rose Hill Re-Plat,"Waterloo,
Iowa.
1
EXHIBIT "B"
Home Designs
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
This Development Agreement (the "Agreement") is entered into as of
2024, by and between [Dellatan Asset Acquisition LLC] ("Company"), and the City of
Waterloo, Iowa ("City").
RECITALS
A. City is the owner of real property identified as parcel nos. 8913-13-459-
019 (the "Phase 1 Property" and 8913-24-203-003 (the "Phase 2
Property"), as further described on Exhibit "A" attached hereto
(collectively, the "Project Property"). Company desires to undertake a
project on the Project Property and is willing and able to finance and
construct no fewer than 12 single-family dwellings and/or twin homes and
related improvements thereon.
B. City considers affordable housing 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 Projects
(defined below) have been undertaken and are 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 hereof, City shall convey the
Phase 1 Property to Company for the sum of $5,000.00 (the "Purchase Price").
Conveyance 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) general utility and right-of-way easements serving the Phase 1 Property; and (c)
restrictions imposed by the City zoning ordinances and other applicable law. City shall
1
have no duty to convey title to Company until Company delivers to City reasonable and
satisfactory proof of financial ability to undertake and carry on the Phase 1
Improvements (defined below), which may take the form of a lending commitment letter.
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. City shall provide any title documents it has in its possession, including any
abstracts, to assist in title review. If title is unmarketable or subject to matters not
acceptable to Company, and if City does not remedy or remove such objectionable
matters in timely fashion following written notice of such objections from Company,
Company may terminate this Agreement without further obligation and return the
abstract of title to City.
2. Phased Development; Improvements. The parties contemplate that
Company will develop the Project Property in phases, to include the Project elements
described below and subject to development of more detailed plans for each phase at
one or more future dates. Company acknowledges that it has had a reasonable
opportunity to inspect the Project Property and to conduct other due diligence related to
the Project. Company agrees to accept the Project Property in its "AS IS" condition,
without any warranty from City, expressed or implied, as to the condition of the Project
Property, its marketability, or its fitness for any particular purpose. Corresponding as
necessary or appropriate with each phase of development, at its own cost Company
shall:
(a) take all measures necessary to prepare the Project Property for development;
(b) at its option, re-plat either or both phases of the Project Property to suit its
needs for construction of the Improvements;
(c) construct to a finished state no fewer than two (2) single-family dwellings in
Phase 1 and ten (10) single-family dwellings in Phase 2, including
construction of garages and installation of driveways and sidewalks for each
lot, provided that in Phase 2 Company shall have the option to construct twin
homes pursuant to plans approved by City in advance of construction; and
(d) be responsible for removal of all construction debris, proper leveling or
shaping of groundscape, and grassing and/or landscaping.
(Construction and finishing as so described in each the foregoing clauses are referred
to collectively as the "Improvements"). The Improvements shall be constructed to
achieve an assessed value of no less than $130,000.00 for each dwelling, shall be
constructed in accordance with the terms of this Agreement and all applicable City,
state, and federal building codes and shall comply with all applicable City ordinances
and other applicable law. 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 Project 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."
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Improvements completed within the schedule established by Section 5 below will
be eligible for the benefits provided for in this Agreement, and any phase of the
Improvements not completed within the prescribed period will not be eligible for said
benefits.
3. Phase 2 Property. Company shall have the option to acquire the Phase
2 Property on the terms set forth in this Section. To exercise the option to purchase the
Phase 2 Property, and provided that Company has Substantially Completed the Phase
1 Improvements, Company shall deliver written notice of exercise to City within six (6)
months after it receives the final certificate of occupancy with respect to dwellings in
Phase 1 , or said option shall lapse. Company shall, within 60 days after delivery of the
notice of option exercise, purchase the Phase 2 Property from City for the sum of
$5,000.00 on terms substantially the same as those set forth in Section 1.
4. Construction Plans. Company agrees that it will cause the Improve-
ments to be constructed on the Property in conformance with construction plans (the
"Plans") submitted to the City, which Plans shall be subject to approval as provided in
this Section. Company agrees that the scope and scale of the Improvements to be
constructed shall not be significantly less than the scope and scale of the Improvements
as detailed and outlined in the Plans. Home designs are attached hereto as Exhibit "B."
City shall approve the Plans in writing if: (a) the Plans conform to the terms and
conditions of this Agreement; (b) the Plans conform to all applicable federal, state and
local laws, ordinances, rules and regulations and City permit and design review
requirements; (c) the Plans are adequate for purposes of this Agreement to provide for
the construction of the Improvements, and (d) no Event of Default under the terms of
this Agreement has occurred; provided, however, that any such approval of the Plans
pursuant to this Section shall constitute approval for the purposes of this Agreement
only and shall not be deemed to constitute approval or waiver by the City with respect to
any building, fire, zoning or other ordinances or regulations of the City, and shall not be
deemed to be sufficient plans to serve as the basis for the issuance of a building permit
if the Plans are not as detailed or complete as the plans otherwise required for the
issuance of a building permit. Approval of Plans hereunder shall not constitute approval
for any other City purpose nor subject the City to any liability for the Improvements as
constructed.
The Plans must be rejected in writing by City within thirty (30) days of submission
or shall be deemed to have been approved by the City. If City rejects the Plans in
whole or in part, Company shall submit new or corrected Plans within thirty (30) days
after receipt by Company of written notification of the rejection, accomplished by a
written statement of the City specifying the respects in which Company's Plans fail to
conform to the requirements of this Section. The provisions of this Section relating to
approval, rejection and resubmission of corrected Plans shall continue to apply until the
Plans have been approved by the City; provided, however, that in any event Company
shall submit Plans which are approved by City prior to commencement of construction
of the Improvements. Approval of the Plans by the City shall not relieve Company of
any obligation to comply with the terms and provisions of this Agreement, or the
3
provision of applicable federal, state and local laws, ordinances and regulations, nor
shall approval of the Plans by City be deemed to constitute a waiver of any Event of
Default.
5. 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 have done so.
A. Subject to Unavoidable Delays (defined below), Company must
obtain a building permit and begin construction of the Improvements for a given
phase within four (4) months after conveyance of the Phase 1 Property or the
Phase 2 Property, as applicable, to Company (the "Phase Start Date").
Company shall construct new homes and related improvements in Phase 1 (and
Phase 2 if Company exercises its option to purchase the Phase 2 Property) on a
schedule so that no less than one (1) dwelling is Substantially Completed every
fourteen (14) months. For purposes of this Agreement, "Substantially
Completed" means the date on which the Improvements have been completed to
the extent necessary for the City to issue a certificate of occupancy relating
thereto and the City has verified that any Project element of such phase for which
no permit was necessary has been completed to the City's reasonable
satisfaction.
B. If Company has not begun construction of the Improvements before
the applicable Phase Start Date, City may terminate this Agreement as set forth
in Section 16, title to uncompleted areas of the Project Property shall revert to
City, and City shall have no further obligation hereunder with respect to such
Project 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 Project Property by any
Improvements, or to refund the Purchase Price in whole or in part. If construction
has commenced within the required period or any extended period and is
stopped and/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 of the foregoing is an "Unavoidable Delay"), then time lost as a
result of Unavoidable Delays shall be added to extend the applicable phase
completion date by a number of days equal to the number of days lost as a result
of Unavoidable Delays. If construction is not completed within the allowed period
of extension, the City's Community Planning and Development Director may, but
shall not be required to, consent to an extension of time of up to six (6) months
for the construction of any phase of the Improvements. Any additional or longer
time extensions will require consent of the City Council. 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.
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C. City may terminate this Agreement as set forth in Section 16, in
which case title to the Project Property shall revert to City, and City shall have no
further obligation hereunder with respect to such Project, nor any duty to
compensate Company for any work or materials provided before the termination
date or for the added value of any Improvements completed or partially
completed. Termination of this Agreement by City, and any related reverter of
title obligations, shall not apply with respect to any area on which Improvements
have been Substantially Completed or substantial progress toward completion is
being made in City's reasonable judgment (the Project Property other than such
excepted area(s) being the "Undeveloped Property"). In the event of any
termination, City shall have no further obligations under this Agreement with
respect to the Undeveloped Property.
D. If Company determines at any time that the Project, in whole or in
part, is not economically feasible, then after giving thirty (30) days' advance
written notice to City, Company may convey the Undeveloped Property to City by
special warranty deed, free and clear of any lien, claim, or encumbrance arising
by or through Company, and thereupon neither party shall have any further
obligation under this Agreement with respect to the Undeveloped Property,
except as expressly provided. In connection with any conveyance to City,
Company shall pay in full, so as to discharge or satisfy, all liens, claims, charges,
and encumbrances on or against the Undeveloped Property or any part thereof.
6. Reverter of Title; Indemnity. In the event of any reverter of title,
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
reverted Project Property that is free and clear of any lien, claim, charge, security
interest, mortgage or encumbrance (collectively, "Liens") arising by or through
Company. Company shall pay in full, so as to discharge or satisfy, all Liens on or
against the reverted Project Property. In connection with any reverter of title, Company
shall not be entitled to a refund of the Purchase Price. 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 on
Company's behalf and as its attorney-in-fact City shall be authorized, but not required,
to execute the special warranty deed required by this Section, and for such limited
purpose Company does hereby constitute and appoint City as its attorney-in-fact.
Company further agrees that it shall indemnify City and hold it harmless with
respect to any demand, claim, cause of action, damage, cost, expense, liability or injury
made, suffered, or incurred as a result of or in connection with the Project, or
Company's failure to carry on or complete same, or any Lien or Liens on or against the
reverted Project Property of any type or nature whatsoever that attaches to the reverted
Project Property by virtue of Company's ownership of same. 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
5
City. Company's duties of indemnity pursuant to this Section shall survive the
expiration, termination or cancellation of this Agreement for any reason.
7. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services to any location
on the Project Property and for payment of any associated connection fees.
8. Incentives. The incentives described in the following subsections of this
Section 8 are in addition to the other Project incentives extended by City to Company
hereunder.
A. Infill 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 dwelling unit
of the Improvements. Each such grant will be payable within sixty (60) days after
City has verified that a given dwelling has been Substantially Completed.
B. Refund of Purchase Price. With respect to each phase, City will
refund the Purchase Price to Company within ninety (90) days after all of the
Improvements for that phase have been Substantially Completed.
C. Partial Tax Exemption. Because the Property is located in a
designated City Limits Urban Revitalization Area (CLURA), the Property is
eligible for tax exemption consistent with and to the extent provided for in Iowa
law and City ordinance, provided that Company or its successor in title meets all
requirements to qualify for such exemption.
9. No Encumbrances; Limited Exception. Until completion of the
Improvements, Company agrees that it shall not create, incur, or suffer to exist any
Liens on the Project 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 Project Property or any part thereof for any purpose except in
connection with financing of the Improvements. Any other mortgage shall be void.
10. No Assignment or Conveyance. Company agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Project Property prior to
completion of the Project, 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.
11. 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:
6
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 wil► comply with all applicable land development laws and
City and county ordinances, and all laws, rules and regulations relating to its
businesses.
C. Company will cooperate fully with 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.
12. 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.
13. 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 its organization and is duly qualified and in good standing
under the laws of the State of Iowa.
B. It has al► 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
7
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
D. The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance with
the terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of organization or operating agreement of Company or
of any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Company is now a party or by which it or its property
is bound, nor do they constitute a default under any of the foregoing.
E. There are no actions, suits or proceedings pending or threatened
against or affecting Company in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position, or results of operations of Company or which in
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
14. 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 Project 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 directors, officers, employees, contractors or agents,
or any other person who may be about the Project Property or the Improvements,
due to any act of negligence or willful misconduct of any person, other than any
act of negligence or willful misconduct on the part of any such indemnified party
or its officers, employees or agents.
B. Except for any willful misrepresentation, any willful misconduct, or
any unlawful act of the indemnified parties, Company agrees to protect and
defend the indemnified parties, now or forever, and further agrees to hold the
indemnified parties harmless, from any claim, demand, suit, action or other
proceedings or any type or nature whatsoever, by any person or entity
whatsoever that arises or purportedly arises from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Company against the City to enforce its
rights under this Agreement), or (2) the construction, installation, ownership, and
operation of the Improvements, or (3) otherwise as a result of or in connection
with the Project or Company's failure to carry on or complete same.
C. The indemnification obligations under this Section shall include
attorneys' fees and expenses incurred by any indemnified party. The provisions
of this Section shall survive the expiration or termination of this Agreement.
15. 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 Project 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, the Project Property, or this Agreement, without the prior
written consent of City, except as otherwise expressly provided in this
Agreement;
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 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 90 days after such appointment, or if Company shall consent to
or acquiesce in such appointment; or (5) defaults under any mortgage applicable
to any part of the Project 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.
16. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, City may terminate this Agreement, in whole
or in part. Before exercising such remedy, City shall give 30 days' written notice
9
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 Project Property and/or recovery of any sums paid by City to
Company before the date of termination.
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.
17. 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.
18. Performance by City. Company acknowledges and agrees that all of the
obligations of City under this Agreement shall be subject to, and performed by City in
accordance with, all applicable statutory, common law or constitutional provisions and
procedures consistent with City's lawful authority. All covenants, stipulations, promises,
agreements and obligations of City contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of City and not of any
governing body member, officer, employee or agent of City in the individual capacity of
such person.
10
19. 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.
20. 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 1542 Flammang Dr, Waterloo Iowa, 50702,
Attention: Managing Member.
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.
21. 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.
22. 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.
23. Severability; Reformation. Each provision, section, sentence, clause,
phrase, and word of this Agreement is intended to be severable. If any portion of this
Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the
offending provision or part thereof shall be deemed severed from this Agreement and
the remaining provisions of this Agreement shall not be affected thereby and shall
continue in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
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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.
24. 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.
25. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which, including signed counterparts delivered by facsimile or
other electronic means, shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
27. 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.
28. 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 [Dell_ - s -t , cquisitign LLC]
By: aut B .
Quentin M. Hart, M yor O'De I L alli
Managing Member
Attest:
Kelley Felc e, City Clerk
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EXHIBIT "A"
Project Property Description
Phase 1 Property
Lots Nos. 10, 11 and 12 in Block No. 1 in Warneka's Addition to the City of Waterloo, Iowa.
Phase 2 Property
Lots 2 through 7, inclusive, and Lots 14 through 20, inclusive, and all of the vacated alley in Block 2 lying
between Lots 1 through 6 and Lots 15 through 20, all in Block No. 2 in "Rose Hill Re-Plat,"Waterloo,
Iowa.
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EXHIBIT "B"
Home Designs
See attached.
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