HomeMy WebLinkAboutHawkeye Community College-11/14/2016Preparer
Information: Christopher S. Wendland, P.O. Box 596, Waterloo, Iowa 50704
Name Address City
(319) 234-5701
Phone
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
N c\I I `-k , 2016 by and between Hawkeye Community College ("Hawkeye")
and the City of Waterloo, Iowa (the "City").
RECITALS
A. City considers economic 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 so as to encourage that goal.
B. Hawkeye is willing and able to finance and construct a building and related
improvements on property located in the Downtown Urban Renewal and
Redevelopment Plan area, generally located in the block bounded by
Mullan Avenue, Jefferson Street, W. 1st Street, and Highway 218 (the
"Project Property").
C. In support of Hawkeye's project, the parties desire to provide for a transfer
of the public alley in said block, on the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Property Acquisition; Alley Transfer. Hawkeye shall acquire the
Project Property from its current owners. Thereafter, City shall vacate the public alley
(the "Alley") for its full distance between Mullan Avenue and W. 1St Street and convey it
to Hawkeye for the sum of $1.00 (the "Purchase Price"). Conveyance shall be by quit
claim deed, free and clear of all encumbrances arising by or through City except:
(a) easements, 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. City shall have no
duty to convey title to Hawkeye until Hawkeye delivers to City a copy of the recorded
deed by which it obtained title to the Project Property. If title to the Alley is
unmarketable or subject to matters not acceptable to Hawkeye, and if City does not
remedy or remove such objectionable matters in timely fashion following written notice
of such objections from Hawkeye, Hawkeye may terminate this Agreement. City shall
provide any title documents it has in its possession, including any abstracts, to assist in
title preparation and review, but Hawkeye shall pay the cost of any abstracting or title
searches that it considers to be necessary.
2. Improvements. Hawkeye shall construct on the Project Property an
educational center building and related parking, landscaping, and other improvements
to the buildings and grounds (collectively, the "Improvements"). The Improvements
shall be constructed in accordance with all applicable City, state, and federal building
codes and shall comply with all applicable City ordinances and other applicable law.
Parking shall meet City's minimum requirements based on building use, occupancy, and
future intended development on the Project Property and may include underground
parking. Hawkeye shall submit specific building designs and site plans for City review
and approval, as provided in Section 6 below. It is contemplated that, upon completion,
the improved property will have a total value of approximately $8,000,000. The Project
Property, the Improvements, and all site preparation and development -related work to
make the Project Property usable as contemplated by this Agreement are collectively
referred to as the "Project".
3. Timeliness of Construction; Possibility of Reverter. The parties agree
that the commitment of Hawkeye to undertake the Project and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
convey the Alley to Hawkeye and that without said commitment City would not do so.
Hawkeye must obtain a building permit and begin construction within twelve (12)
months from the date of this Agreement and substantially complete construction within
twelve (12) months thereafter.
If Hawkeye has not, in good faith, begun the construction of the Improvements on
the schedule stated above, then title to the Alley shall revert to the City, except as
provided in this Agreement; provided, however, that if construction has not begun within
the stated period but the development of the Project is still imminent, the City Council
may, but shall not be required to, consent to an extension of time for the construction of
the Improvements, and if an extension is granted but construction of the Improvements
has not begun within such extended period, then the title to the Alley shall revert to the
City after the end of said extended period. If Hawkeye determines at any time that the
Project is not economically feasible, then after giving thirty (30) days' advance written
notice to City, Hawkeye may convey the Alley to City by special warranty deed, and
thereupon neither party shall have any further obligation under this Agreement except
as expressly provided. If development 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 Hawkeye, the requirement that construction be completed within the twelve
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(12) months from the date of construction commencement, or as said period may be
extended, shall be tolled for a period of time equal to the period of such stoppage or
delay, and thereafter if construction is not completed within the allowed period of
extension then title to the Alley shall revert to the City.
4. Reverter of Title; Indemnity. In the event of any reverter of title,
Hawkeye 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
Alley that is free and clear of any lien, claim, or encumbrance arising by or through
Hawkeye, and shall pay in full or otherwise satisfy any such lien, claim, or encumbrance
so as to discharge or satisfy, all such liens, claims, charges, and encumbrances on or
against the Alley. If Hawkeye fails to deliver such documents, including but not limited
to a special warranty deed, to City within thirty (30) days of written demand by City, then
City shall be authorized to execute, on Hawkeye's behalf and as its attorney-in-fact, the
special warranty deed required by this Section, and for such limited purpose Hawkeye
does hereby constitute and appoint City as its attorney-in-fact.
Hawkeye further agrees, to the extent permitted by applicable law, that it
shall indemnify City and hold it harmless with respect to any demand, claim, cause of
action, damage, or injury made, suffered, or incurred as a result of or in connection with
the Project, its failure to carry on or complete same, or any lien, claim, charge, or
encumbrance on or against the Alley of any type or nature whatsoever that attaches to
the Alley by virtue of Hawkeye's ownership of same. If City files suit to enforce the
terms of this Agreement and prevails in such suit, then Hawkeye shall be liable for all
legal expenses, including but not limited to reasonable attorneys' fees, incurred by City.
The duties of indemnity pursuant to this Section shall survive the expiration, termination
or cancellation of this Agreement for any reason.
5. No Encumbrances; Limited Exception. Until completion of the
Improvements, Hawkeye agrees that it shall not create, incur, or suffer to exist any lien,
encumbrance, mortgage, security interest, or charge on the Alley, other than such
mortgage or mortgages as may be reasonably necessary to finance Hawkeye's
completion of the Improvements and of which Hawkeye notifies City in advance of
Hawkeye's execution of any such mortgage. Hawkeye may not mortgage the Alley or
any part thereof for any purpose except in connection with financing of the
Improvements.
6. Regulatory Approvals. Hawkeye acknowledges and agrees that the
Project will require Hawkeye to obtain various approvals from the City of Waterloo
and/or other applicable governmental authorities, including but not limited to zoning, site
plan, subdivision, building permit and other approvals required or necessary for the
proposed Improvements to the Project Property. To optimize coordination of Project
plans and development with such approvals, Hawkeye agrees to participate regularly
and in good faith in the project management/design-build management (PMT/DBMT)
process applicable to the Project Property for design issues, landscape design, parking,
construction documents, and other matters.
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7. Utilities. Hawkeye will be responsible for extending water, sewer,
telephone, telecommunications, electric, gas and other utility services to any location on
the Project Property and Alley and for payment of any associated connection fees. The
alley has an abandoned sewer line within it, which Hawkeye may remove or fill in place
if needed for construction purposes.
8. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
9. Representations and Warranties of Hawkeye. Hawkeye hereby
represents and warrants as follows:
A. It is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. It has full right, title, and authority to execute and perform this
Agreement and to consummate all of the transactions contemplated herein, and
each person who executes and delivers this Agreement and all documents to be
delivered to City hereunder is and shall be authorized to do so on its own behalf.
10. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Alley and/or project area, all of
which must be completed within 180 days from the date this Agreement is approved by
the City council. If such completion does not occur, then this Agreement shall be
cancelled without further obligation by any party hereto.
11. No Assignment or Conveyance. Hawkeye agrees that it will not sell,
convey, assign or otherwise transfer its interest in the Alley 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 Hawkeye under this Agreement.
12. Materiality of Hawkeye's Promises, Covenants, Representations, and
Warranties. Each and every promise, covenant, representation, and warranty set forth
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in this Agreement on the part of Hawkeye 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. Hawkeye
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.
13. 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, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Hawkeye, at 1501 E. Orange Road, Hawkeye Center, Room
214, Waterloo, Iowa, 50701, Attention: President.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (H) 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.
14. 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 Hawkeye nor to create any liability for one
party with respect to the liabilities or obligations of the other party or any other person.
15. 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.
16. Severability. 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
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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
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.
17. 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.
18. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
19. 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.
20. Entire Agreement. This Agreement, together with the exhibits attached
hereto, 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.
21. 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
BY: l Q�►'� Rk (
Quentin M. Hart, Mayor
Attest: km/
City Clerk
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HAWKEYE COMMUNITY COLLEGE
By:
Lin.: Allen, President