HomeMy WebLinkAboutHieronymus signed Dev AgrmtPrepared by Wendy Ford, Econ. Dev. Coordinator, 410 E Washington St Iowa City IA 52240 356-5248
Resolution No. 17-308
Resolution approving an agreement for private redevelopment by and
between the City of Iowa City, Iowa, and Hieronymi Partnership,
L.L.P., Hieronymus Square Developers, L.L.C., Iowa City ES Hotel,
L.L.C., and HS314, L.L.C.
Whereas, Hieronymus Square Developers, L.L.C submitted a redevelopment proposal for a
mixed use complex, consisting of a 7-story mixed-use building comprised of 45 residential units,
Class A office space and retail space, and a 7-story extended-stay hotel with 91 rooms, hotel
amenities including an outdoor terrace, an indoor swimming pool and a fitness room (hereinafter
the "Project") and;
Whereas, this property is located within the City-University Project 1 Urban Renewal Area and is
subject to the City-University Project 1 Urban Renewal Plan, as amended by City Council on
May 2, 2017 (resolution 17-156)("Plan"); and
Whereas, the Project for the redevelopment is consistent with the goals set forth in the City-
University Project 1 Urban Renewal Plan, as amended; and
Whereas, the Economic Development Committee considered said application and voted to
recommend approval to the City Council at its meeting on July 21, 2017, and;
Whereas, City Staff has reviewed the application and proposed Developer's Agreement and
recommends approval to the City Council; and
Whereas, in exchange for grant funds not to exceed $8,000,000, the owner and developers
have agreed to complete minimum improvements consisting of at least $40,753,776 in project
costs; and
Whereas, it is the determination of this City Council that acceptance of the proposal of the
Developer and approval of the Agreement for Private Redevelopment is in the public interest of
the residents of the City and is consistent with the purposes and objectives of the Plan.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY IOWATHAT
1. That the attached Agreement for Private Development by and between the City of Iowa
City Iowa and Hieronymi Partnership, L.L.P., Hieronymus Square Developers, L.L.C.,
Iowa City ES Hotel, L.L.C., And HS314, L.L.C. is In the public interest of the residents of
Iowa City.
2. That said Agreement is consistent with and authorized by the Urban Renewal Plan and
all applicable State and federal laws including, but not limited to, Iowa Code Chapters
15A and 403; and
3. That the Mayor is authorized and directed to execute the Agreement and the City Clerk
is authorized and directed to attest his signature and to affix the seal of the City Clerk
Resolution No. 17-308 -------
Page 2
4. That the Mayor and City Clerk be and are hereby authorized and directed to take all
such actions and do all such things as they shall determine to be necessary or
appropriate to ensure the City's performance as provided therein.
5. That the City Manager is hereby authorized to administer the terms of the Agreement for
Private Development.
Passed and approved this J 9tb day of September , 2017.
Approved by
ATTEST:~/ ¥~Lz; lavr ~~
CITY CLERK ..., City Attorney's Office lfj / j /'3 ,,
Resolution No. 17-308 ---"'--'------==------Page _3 __
It was moved by Mims and seconded by _B_o_tc_h_w_a~y _____ the
Resolution be adopted, and upon roll call there were:
AYES: NAYS: ABSENT: ABSTAIN:
X
X
X
X
X
X
X
Botchway
Cole
Dickens
Mims
Taylor
Thomas
Throgmorton
AGREEMENT FOR PRIVATE DEVELOPMENT
By and Among
THE CITY OF IOWA CITY, IOWA,
HIERONYMIPARTNERSHIP, L.L.P.,
HIERONYMUS SQUARE DEVELOPERS, L.L.C.,
IOWA CITY ES HOTEL, L.L.C.
and
HS314, L.L.C.
September 19, 2017
Exhibit A -Development Property Legal Description
Exhibit B -Minimum Improvements and Uses
Exhibit C -Certificate of Completion
Exhibit D -Memorandum of Agreement for Private Redevelopment
Exhibit E -Opinion of Counsel
Exhibit F -Mininnnn Assessment Agreement
Exhibit G -Temporary Construction Easement
Exhibit H -Concept Plan
Exhibit I-Temporary Use of Right-of-Way Agreement
Exhibit J -Sample Deed Restriction
Exhibit K-Wage Theft Affidavit
Exhibit L -Iowa City Riverfront Crossing Affordable Housing Requirement Administrative
Rules
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THIS AGREEMENT FOR PRIVATE DEVELOPMENT (hereinafter called
"Agreement" or "Development Agreement"), is made on or as of the /9-fn day of
·septcmber, 2017, by and among the CITY OF IOWA CITY, IOWA, a municipality (hereinafter
called "City"), established pursuant to the Code of Iowa of the State of Iowa and acting under the
authorization of Cbapters 15A and 403 of the Code of Iowa, 2017, as amended (hereinafter
called "Urban Renewal Act"); HIERONYMI PARTNERSHIP, L.L.P., an Iowa limited liability
partnership (hereinafter "Owner"); IDERONYMUS SQUARE DEVELOPERS, L.L.C., an Iowa
limited liability company, IOWA CITY ES HOTEL, L.L.C., an Iowa limited liability company,
and HS314, L.L.C., an Iowa limited liability company (herein.after collectively ''Developers").
Owner and Developers all have an address at 711 South Gilbert Street, Iowa City, Iowa 52240.
WITNESSETII:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has
undertaken a program for the clearance and reconstruction or rehabilitation of an economic
development area in the City and, in this connection, is engaged in carrying out urban renewal
project activities in an area known as the City-University Project I (''Urban Renewal Area11 or
"Area"), which area is described in the City·University Project I Plan ("Plan") approved for such
area by Resolution No. 2157 on October 2, 1969, and which Plan has been amended from time to
time;and
WHEREAS, a copy of the foregoing Urban Renewal Plan, as amended, has been
recorded among the land records in the office of the Recorder of Johnson Cmmty, Iowa; and
WHEREAS, the Owner owns certain property in the City ("Development Property")
upon which it desires, in partnership with Developers, to construct improvements in the fonn of
a hotel and a mixed commerciaVClass A office/residential multi-story building, and agrees that
such improvements be operated in accordance with this Agreement; and
WHEREAS, the City believes that the development of the real property, located in the
foregoing Urban Renewal Area referred to as the Development Property and as described in
Exhibit A attached hereto and made a part hereof, pursuant to this Agreement and the fulfillment
generally of this Agreement, are in the vital and best interests of the City and in accord with the
public puipOses and provisions of Chapters 15A and 403, and other applicable state and local
laws and requirements under which the foregoing project has been lDldertaken and is being
assisted.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows.
ARTICLE I. DEFINITTONS
Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all
capitalized terms used and not otherwise defined herein shall have the following meanings unless
a different meaning clearly appears from the context:
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Agreement means this Agreement and all exhibits and appendices hereto, as the same may
be from time to time modified, amended or supplemented.
Assessor's Minimmn Actual Value means the agreed minimum actual value after taking
into consideration any factors such as "roll backs'' which would reduce the taxable value of the
Minimum Improvements and the Development Property for calculation and assessment of real
property taxes, as set forth in the Minimum Assessment Agreement and Section 5. 7.
Certificate of Completion means a certification in the form of the certificate attached
hereto as Exhibit C and hereby made a part of this Agreement, provided to Owner and
Developers pursuant to Section 4.4 of this Agreement.
City means the City of Iowa City, Iowa, or any successor to its functions.
City~University Project I Tax Increment Revenue Fund means the special fund of the City
created under the authority of Section 403.19(2) of the Code, as amended, and the Ordinance,
which fund was created in order to pay the principal of and interest on loans, monies advanced to
or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other
obligations issued under the authority of Section 403.9 or 403 .12 of the Code, incurred by the
City to finance or refinance in whole or in part projects undertaken pursuant to the Urban
Renewal Plan for the Urban Renewal Area.
Code means the Code of Iowa, 2017, as amended.
Construction Plans means the plans, specifications, drawings and related documents
reflecting the construction work to be performed by Owner and Developers on the Development
Property with respect to the construction of the Minimum Improvements; the Construction Plans
shalt be as detailed as the plans, specifications, drawings and related documents which are
submitted to the building inspector of the City as required by applicable City codes.
Commencement Date means the date of this Agreement.
County means the County of Johnson, Iowa.
Developers means HIERONYMUS SQUARE DEVELOPERS, L.L.C., an Iowa limited
liability company, IOWA CITY ES HOTEL, L.L.C., and Iowa limited liability company, and
HS314, L.L.C., an Iowa limited liability company. all having offices at 711 South Gilbert Street,
Iowa City, Iowa 52240.
Develgpment PrQPerty means the property described in Exhibit A.
Economic Development Grants are as described in Article VIII.
Event of Default means any of the events described in Section 10.1 of this Agreement.
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Mortgage means any Mortgage granted to secure any loan made pursuant to either a
mortgage commitment obtained by Owner and Developers from a commercial lender or other
financial institution to fund any portion of the construction costs and initial operating capital
requirements of the Minimum Improvements, or all such Mortgages as appropriate.
Hieronymus Square TIP Acwunt means a separate account within the City-University
Project I Urban Renewal Tax Increment Revenue Fund of the City in which there shall be
deposited Tax Increments received by the City with respect to the Minimum Improvements.
Minimum Improvements means the construction of a hotel, and a mixed commercial/Class
A Office/residential multi-story building as fully detailed in Exhibit B, attached and incorporated
herein by this reference.
Mortgage means any mortgage or security agreement in which Owner and Developers has
granted a mortgage or other security interest in the Development Property, or any portion or
parcel thereo( or any improvements constructed thereon.
Net Proceeds means any proceeds paid by an insurer to Owner and Developers under a
policy or policies of insurance required to be provided and maintained by Owner and
Developers, pursuant to Article V of this Agreement and remaining after deducting all expenses
(including fees and disbursements of counsel) incmred in the collection of such proceeds.
Ordinance means Ordinance No. 01-3991 of the City, passed on December 11, 2001, under
which the taxes levied on the taxable property in the Area shall be divided and a portion paid into
the City~University Project I Tax Increment Revenue FWld.
Project means the construction and operation of the Minimum Improvements on the
Development Property, as described in this Agreement.
State means the State of Iowa.
Tax Increments means the property tax revenues, with respect to the Minimum
Improvements on the Development Property, divided and made available to the City for deposit
in the Hieronymus Square TIP Account of the City~University Project I Tax Increment Revenue
Fund under the provisions of Section 403.19 of the Code, as amended, and the Ordinance. Toe
base value for the Tax Increments shall be January 1 of the year preceding the effective date of
the Ordinance.
Termination Date means the date of termination of this Agreement, as established in
Section 12.11 of this Agreement.
Unavoidable Delays means delays resulting from acts or occurrences outside the
reasonable control of the party claiming the delay including but not limited to storms, floods,
fires, explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts
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or other labor disputes, litigation commenced by third parties, or the acts of any federal, state or
local governmental unit (other than the City with respect to the City's obligations).
Urban Renewal Plan means the Urban Renewal Plan approved in respect of the City-
University Project I Urban Renewal Area, described in the preambles hereof.
ARTICLE II. CONSTRUCTION AND USES.
Section 2.1 Minimum Improvements.
(a) The Owner and Developers' construction on the Development Property will
consist of a mixed-use retail/Class A office/ residential structure and a hotel as described more
fully on Exhibit B eMinimum Improvements"). The Redeveloper hereby commits to a project
that includes a minimum total of $40,753,776 in development costs, including construction costs,
architectural fees, land costs, parking, opening costs, developer overhead, and financing costs.
Owner and Developers agree that they will cause the Minimum Improvements to be constructed
on the Development Property in substantial conformance with the Construction Plans approved
by the City. Owner and Developers agree that the scope and scale of the Minimum
Improvements to be constructed shall not be significantly less than the scope and scale of the
Miniml.llll Improvements as detailed in the Construction Plans . The parties hereto acknowledge
that through the design process, the final number of residential dwelling units, the mix thereof,
and the final number of hotel units may deviate slightly from the current plans. The City
Manager may approve such minor deviations upon determining that they do not constitute
significant changes to the scope or scale of the Minimmn Improvements. The design of the
Minimum Improvements must be approved by the Form-based Code Committee for
conformance with the Riverfront Crossings development standards, as set forth in Iowa City
Code of Ordinances 14-20.
(b) In the event that Owner and Developers desire to stage construction on any City-
owned property, including right-of-way, the Court Street Transportation Center, or the
undeveloped portion of land north of the Court Street Transportation Center, Owner and
Developers shall first obtain from the City a temporary construction easement in a form
substantially similar to the Temporary Construction Easement Agreement attached hereto as
&lu'bit J and incoiporated herein by this reference.
(c) There will be a pedestrian access route to the City-owned Cowi Street
.Transportation Center. Vehicular access routes to the City-owned Court Street Transportation
Center are also contemplated. In the event that the final construction drawings approved by the
City pursuant to Article II herein show pedestrian or vehicular access routes to the Development
Property through the Court Street Transportation Center, Owner and Developers must purchase
an ~s easement for such uses(s), the cost of said property rights shall be calculated based
upon the following formula: $200/square foot times the number of square feet in the easement
area X 10 percent. Owner and Developers' purchase of said easement rights shall be a
contingency of the foundation pennit for cons1ruction of the Minimum Improvements on the
Development Property and must be satisfied prior to issuance thereof.
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(d) ln the event that the final Construction Plans approved by the City pursuant to
Article II herein show awnings or other intrusions into the right-of-way, Owner and Developers
shall obtain from the City, at no cost, a temporary use of right-of-way agreement for such
temporary use. The agreement for said easement rights shall take a form substantially similar to
the Temporary Use of Right-of-Way Agreement, attached hereto as Exhibit E and incorporated
herein by this reference. Said Agreement shall be entered into before a building pennit is issued
for any work in the proposed easement area.
Section 2.2 Affordable Housing Occupancy.
Owner and Developers acknowledge the City's requirement to provide affordable housing
pursuant to Iowa City Code of Ordinances 14-20-8, and that because Owner and Developers are
receiving tax increment financing, they are obligated pursuant to the Iowa City Council
Eoonomic Development policy to lease or sell 15% of the total residential units to income-
qualified residents, as defined in said ordinance, and administered according to Iowa City Code
of Ordinances 14-20-8 and the adopted Administrative Rules set forth in Exhibit L hereto,
except as specifically set forth herein.
Based upon an assumption that there will be 45 total dwelling units in the Project, Owner
and Developers hereby agree to lease or sell seven (7) residential dwelling units to income-
eligible households in accordance with the limitations set forth herein. A minimum of two (2)
units shall be provided within the Mixed Use building described herein. These two units shall be
comprised of one I-bedroom unit and one 2-bedroom unit These two units shall be administered
as on-site Owner-Oc.cupied or Affordable Rental Housing, as that term is defined in 14-20-8.
Owner and Developers understand and acknowledge that notwithstanding the possible sale of the
two on-site units as Owner-Occupied Affordable Housing, they shall remain responsible for the
continued observance of and compliance with the affordability requirements during the entire
tenn of affordability provided herein. Owner and Developers may further satisfy this affordable
housing occupancy obligation through the provision of additional on-site affordable rental or
owner-occupied units or through the payment of a fee in lieu thereof in an amount established by
resolution of the City Council (currently $80,872 per unit). This determination shall be made and
any fee in-lieu paid prior to issuance of any building permit for oonstruction of the Minimum
Improvements. Owner and Developers acknowledge that all affordable housing units shall be
constructed and pass final inspection contemporaneously with the market rate units, regardless of
whether they are on-site or off-site.
In the event that the final total number of dwelling units changes through the design review
and construction plan review process detailed herein, the final number of affordable housing
units required may change. Income documentation must be maintained by the Developer for the
most recent three years and presented to the City upon its request.
Said On-site Affordable Housing Units shall be affordable in accordance with the terms
hereof for a period of twenty (20) years from the date an occupancy permit is issued for the
Project ('~enn of affordability") and it is intended and agreed that the requirements of this
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section with respect to the Affordable Housing Units shall run with the land. The Developer
agrees for itself, its successors and assigns that each deed or other conveyance of the Affordable
Housing Units shall contain the use restrictions set forth herein and as required by Code Section
14-20-8. A deed restriction running in favor of the City and in a fonn substantially similar to
that shown in Exhibit 1 attached hereto shall be recorded and restated on any deed transferring
title during the tenn of affordability to those unit or units designed as affordable housing in
satisfaction of this obligation. It is intended and agreed that the City and its successors shall be
deemed beneficiaries of these use restrictions, both for and in its own right and also for the
purposes of protecting th.e interests of the community and other parties, public or private, in
whose favor or for whose benefit such use restrictions have been provided. The City shall have
the right in the event of any breach of any affordable housing use restriction during the
applicable 20 year period to exercise all the rights and remedies, and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce the curing of such breach of
affordable housing use restrictions, to which it or any other beneficiaries of such affordable
housing use restrictions may be entitled, and shall be entitled to recover, in addition to its court
costs, a reasonable attorney's fee to be fixed by the court, and such recovery shall include court
costs and attorney's fees on appeal, if any. Further, the City shall hold all right and authority to
agree to or provide any amendment, modification, waiver, termination or release of the
affordable housing use restriction on behalf of itself and other parties, public or private, which
are beneficiaries thereof (other than Developer, its successors and assigns). Said affordable
housing use restriction shall survive the tennination of this Agreement.
Section 2.3. Construction Plans. Owner and Developers shall cause Construction Plans
to be provided to the City for the Minimum hnprovements, which shall be subject to approval by
the City as provided in this Section 3.2. Toe Construction Plans shall be in confomrlty with the
Urban Renewal Plan, this Agreement, and all applicable federal, state and local Jaws and
regulations. The City shall approve the Construction Plans in writing if: (i) the C.Onstruction
Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans
confonn to the terms and conditions of the Urban Renewal Plan; (iii) the Construction Plans
conform to all applicable federal,· State and local laws, ordinances, rules and regulations, and
City pennit requirements; (iv) the Construction Plans are adequate for purposes of this
Agreement to provide for the construction of the Minimum Improvements; and (v) no Event of
Default under the tenns of this Agreement has occmred; provided, however, that any such
approval of the Construction Plans pursuant to this Section 3.2 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 Construction Plans are not as detailed or complete as the plans otherwise required
for the issuance of a building permit.
Approval of the Construction Plans by the City shall not relieve any obligation to oomply
with the terms and provisions of this Agreement, or the provision of applicable federal, State and
local laws, ordinances and regulations, nor shall approval of the Construction Plans by the City
be deemed to constitute a waiver of any Event of Default.
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Approval of Construction Plans hereunder is solely for purposes of this Agreement, and
shall not constitute approval for any other City purpose nor subject the City to any liability for
the Minimmn Improvements as constructed.
Section 2.4. Commencement and Completion of Construction. Subject to Unavoidable
Delays, Owner and Developers shall cause construction of the Minimum Improvements to be
undertaken and completed no later than December 31, 2019. Time lost as a result of Unavoidable
Delays shall be added to extend this date by a number of days equal to the number of days lost as
a result of Unavoidable Delays. All work with respect to the Minimum Improvements to be
constructed or provided by Owner and Developers shall be in substantial conformity with the
Construction Plans approved by the building official or any amendments thereto as may be
approved by the building official.
Owner and Developers agree that they shall permit designated representatives of the City,
upon reasonable notice (which does not have to be written), to enter upon the Development
Property during the construction of the Minimum hnprovements to inspect such construction and
the progress thereof.
Section 2.5. Certificate of Completion. Upon written request of Owner and Developers
after issuance of an occupancy pemut for the Minimum Improvements, the City will furnish
Owner and Developers with a Certificate of Completion for the Minimwn Improvements in
recordable fonn, in substantially the form set forth in Exhibit C attached hereto. Such Certificate
of Completion shall be a conclusive determination of satisfactory termination of the covenants
and conditions of this Agreement with respect to the obligations of Owner and Developers to
construct the Minimum Improvements.
The Certificate of Completion may be recorded in the proper office for the recordation of
deeds and other instruments pertaining to the Development Property at Owner and Developers'
sole expense. If the City shall refuse or fail to provide a Certificate of Completion in accordance
with the provisions of this Section 2.5, the City shall, within twenty (20) days after written
request by Owner and Developers, provide Owner and Developers with a written statement
indicating in adequate detail in what respects Owner and Developers have failed to complete the
Minimum Improvements in accordance with the provisions of this Agreement, or are otherwise
in default under the terms of this Agreement, and what measures or acts are necessary, in the
opinion of the City, for Owner and Developers to take or perfonn in order to obtain such
Certificate of Completion.
ARTICLE ill. REPRESENTATIONS AND WARRANTIES.
Section 3.1. Representations and Warranties of the City. The City makes the following
representations and warranties:
(a) The City is a municipal corporation and political subdivision organized under the
provisions of the Constitution and the laws of the state and has the power to enter into this
Agreement and carry out its obligations hereunder.
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(b) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or oompliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, nor will result in
a breach of, the terms, conditions or provisions of any contractual restriction, evidence of
indebtedness, agreement or instrument of whatever nature to which the City is now a party or by
which it is bound, nor do they constitute a default under any of the foregoing.
Section 3.2. Representations and Warranties of Owner and Developers. The Owner and
Developers make the following representations and warranties:
(a} Owner and Developers are companies duly organized and validly existing under the
laws of the State of Iowa that have all requisite power and authority to develop and construct the
Project, to carry on their businesses as now conducted and as presently proposed to be
conducted, and to enter into and perform their obligations under this Agreement.
(b) This Agreement has been duly and validly authorized, executed and delivered by
the Owner and Developers and, assuming due authorization, execution and delivery by the City,
is in full force and effect and is a valid and legally binding instrument of the Owner and
Developers enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights
generally. Owner and Developers shal1 provide an Opinion of Counsel in the fonn attached as
Exhibit E, to be signed concurrently with this Agreement and at other times requested by the
City.
(c) The execution and delivery of this Agreement, the oonsummation of the
transactions oontemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, nor will not result
in a violation or breach of, the tenns, conditions or provisions of the articles of incorporation,
bylaws, or any applicable governing document of Owner or Developers, or of any contractual
restriction, evidence of indebtedness, agreement or instnnnent of whatever nature to which the
OWner or Developers are now a party or by which they or their property is bound, nor do they
constitute a default under any of the foregoing.
( d) There are no actions, swts or proceedings pending or threatened against or affecting
Owner or Developers 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 busin~ (present or prospective), financial position or results of operations
of Owner or Developers or which in any manner raises any questions affecting the validity of the
Agreement or the Owner or Developers' ability to perform their obligations under this
Agreement.
(e) Neither Owner nor Developers have received any notice from any local, state or
federal official that the activities of Owner or Developers with respect to the Development
Property may or will be in violation of any environmental law or regulation (other than some on-
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site environmental contamination which the Owner and Developer are working with Braun
futertec to address and remediate or such other notices, if any, of which the City has previously
been notified in writing). Neither Owner nor Developers are cU1TeDtly aware of any state or
federal claim filed or planned to be filed by any party relating to any violation of any local, state
or federal environmental law, regulation or review procedure applicable to the Development
Property, and neither Owner nor Developers are currently aware of any violation of any local,
state or federal environmental law, regulation or review procedure which would give any person
a valid claim under any state or federal environmental statute with respect thereto.
(f) Owner and Developers will cause the Minimum Improvements to be constructed
in substantial accordance with the terms of this Agreement, the Urban Renewal Plan and all
local, state and federal laws and regulations.
(g) Owner and Developers will use their 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 Minimum Improvements may be lawfully constructed.
(h) Owner and Developers have finn commitments for pennanent financing for the
Project in an amount sufficient, together with equity commitments, to successfully complete the
Minimum Improvements in substantial accordance with the Construction Plans contemplated in
this Agreement.
(i) Owner an.d Developers will cooperate fully with the City in resolution of any
traffic, parking, trash removal or public safety problems which may arise in cotmection with the
construction and operation of the Minimum Improvements. Owner and Developers shall submit
a written construction management plan to the Director of Public Works for approval. Owner
and Developers will coordinate staging for construction of the Minimwn Improvements with the
Public Works Director. Owner and Developers shall obtain from the City any necessary
temporary construction easements in accordance with Section 2.1 herein.
G) Owner and Developers expect that, barring Unavoidable Delays, the Minimum
Improvements and Uses outlined in Exlul>it B will be completed by December 31, 2019.
(k) Owner and Developers would not undertake their obligations under this Agreement
without the Economic Development Grants oontemplated by Section 8.1 hereof (the "Economic
Development Grants") to Owner and Developers pursuant to this Agreem.ent
(1) Neither Owner, nor Developers, nor any person or entity with an ownership
interest of more than 25% of Owner or Developers have been adjudicated guilty or liable in
any judicial or administrative proceeding of committing a repeated or willful violation of the
Iowa Wage Payment Collection law, the Iowa Minimum Wage Act, the Federal Fair Labor
Standards Act or any comparable state statute or local ordinance, which governs the payment of
wages in the last 5 years.
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ARTICLE IV. INSURANCE.
Section 4.1. Insurance Requirements
(a) Upon completion of construction of the Minimum Improvements and at all times
prior to the Termination Date, Owner and Developers shall maintai~ or cause to be maintained,
at their cost and expense (and from time to time at the request of the City shall furnish proof of
the payment of premiums on) insurance as follows:
· (i) Insurance against loss and/or damage to the Minimwn Improvements W1der a
policy or policies covering such risks as are ordinarily insured against by similar businesses,
including (without limitation, the generality of the foregoing) fire, extended coverage, vandalism
and malicious mischief, explosi~ water damage, demolition cost, debris removal, and collapse
in an amount not less than the full insurable replacement value of the Minimum Improvements,
but any such policy may have a deductible amount of not more than $50,000. No policy of
insurance shall be so written that the proceeds thereof will produce less than the minimmn
coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the City. The term "full insurable replacement
value" shall mean the actual replacement cost of the Minimum hnprovements (excluding
foundation and excavation costs and costs of underground flues, pipes, drains and other
uninsurable items) and equipment, and shall be determined from time to time at the request of
the City, but not more frequently than once every three years, by an insuranc.e consultant or
insurer selected and paid for by Owner and Developers and approved by the City; and
(ii) Comprehensive general public liability insurance, including personal injury
liability for injuries to persons and/or property, including any injuries resulting from the
operation of automobiles or other motorized vehicles on or about the Development Property, in
the minimum amount for each occurrence and for each year of$1,000,000.
(iii) Such other insW'ance, including worker's compensation insurance respecting
all employees of Owner and Developers, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided that
Owner and Developers may be self~insured with respect to all or any part of its liability for
worker's compensation.
(b) All insurance required by this Article IV to be provided prior to the Tennination
Date shall be taken out and maint.ained in responsible insurance companies selected by Owner
and Developers, which are authorized under the laws of the State to assume the risks covered
thereby. Owner and Developers will deposit annually with the City copies of policies evidencing
such insurance or a certificate or certificates or binders of the respective insurers stating that such
insurance is in force and effect. Unless otherwise provided in this Article IV, each policy shall
contain a provision that the insurer shall not cancel or modify it without giving written notice to
Owner and Developers . and the City at least thirty (30) days before the cancellation or
modification becomes effective. Not less than fifteen (15) days prior to the expiration of any
policy, the party responsible for obtaining the same shall furnish the City evidence satisfactory to
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the City that the policy has been renewed or replaced by another policy conforming to the
provisions of this Article IV, or that there is no necessity therefor under the tenns hereof.
(c) Owner and Developers agree to notify the City immediately in the case of damage
exceeding $25,000 in amount to, or destruction of, the Minimum Improvements or any portion
thereof resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid
directly to Owner or Developers, and Owner and Developers will forthwith repair, recons1ruct,
and restore the Minimum Improvements to substantially the same or an improved condition or
value as they existed prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer will apply the Net Proceeds of
any insurance relating to such damage received by Owner or Developers to the payment or
reimbursement of the costs thereof.
( d) Owner and Developers shall complete the repair, reconstruction, and restoration
of the Minimum Improvements, or other similar improvements agreed upon by and between the
City, Owner and Developers, whether or not the Net Proceeds of insurance received by Owner or
Developers for such purposes are sufficient.
ARTICLE V. COVENANTS
Section 5.1. Maintenance of Property. Owner and Developers will maintain, preserve and
keep the Development Property, including but not limited to the Minimum Improvements, in
good repair and working order, ordinary wear and tear excepted, ·and from time to time will make
all necessary repairs, replacements, renewals and additions.
Section 5.2. Maintenance of Records. Owner and Developers will keep at all times proper
books of record and account in which full, true and correct entries will be made of all dealings
and transactions of or in relation to the business and affairs of Owner and Developers in
accordance with generally accepted accounting principles, consistently applied throughout the
period involved, and Owner and Developers will provide reasonable protection against loss or
damage to such books of record and account.
Section 5.3. Compliance with Laws. Owner and Developers will comply with all laws,
rules and regulations relating to the Minimum Improvements.
Section 5.4. Non-Discrimination. In operating the Minimum Improvements, Owner and
Developers shall not discriminate against any applicant or tenant because of age, color, creed,
disability, gender identity, marital status, national origin, race, religion, sex, sexual orientation,
presence or absence of dependents or public assistance source of income. Developer shall ensure
that any such applicants, employees, and tenants are considered and are treated without regard to
their age, color, creed, disability, gender identity, marital status, national origin, race, religion,
sex, sexual orientation, presence or absence of dependents or public assistance source of income.
This Section shall not be construed to prohibit utilizing income as a qualification for occupancy
of the Affordable Housing units provided by Owner and Developers pursuant to Section 2.2
"Affordable Housing Occupancy" above.
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Section 5.5. Available Information. Upon request, Owner and Developers shall promptly
provide the City with copies of information requested by the City that are related to this
Agreement so that the City can determine compliance with the Agreement.
Section 5.6. Annual Certification. To assist the City in monitoring and perfonnance of
Owner and Developers hereunder, a duly-authorized officer of Owner and Developers shall
annually certify to the City: (a) proof that all ad valorem taxes on the Development Property
and Minimum Improvements have been paid for the prior fiscal year; (b) an annual tenant
housing report which, at a minimmn, shall include statistics relating to the income-eligi"ble
households occupying the on-site affordable housing units per Section 2.1 above, such as the unit
number and type, household size, income, and lease dates and rents or sale price, as applicable;
(c) certification that such officer has re-examined the terms and provisions of this Agreement and
that at the date of such certification, and during the preceding twelve (12) months, Developer is
not, or was not, in default in the (ulfillment of any of the terms and conditions of this Agreement
and that no Event of Default (or event which, with the lapse of time or the giving of notice, or
both, would become an Event of Default) is occurring or has occurred as of the date of such
certification or during such period, or if the signer is aware of any such default, event or Event of
Default, said officer shall disclose in such statement the nature thereof, its period of existence
and what action, if any, has been taken or is proposed to be taken with respect theret.o. Such
statement, proof and certificate shall be provided not later than November 1 of each year,
commencing November 1, 2020 and ending on November 1, 2035, both dates inclusive. Owner
and Developers shall provide supporting information for their annual certifications upon request
of the City.
Section 5.7 Minimum Assessment Agreement Owner and Developers (and the holder of
any Mortgage) shall agree to, and with the City shall execute, an Assessment Agreement
pursuant to the provisions of Iowa Code Section 403.6(19) (2017) specifying the Assessor's
Minimwn Actual Value for the Minimum Improve:moo.ts on the Development Property for
calculation of real property taxes in the form attached as Exhibit F (" Assessment Agreement" or
"Minim.um Assessment Agreement"). Specifically, Owner and Developers (and the holder of
any Mortgage) shall agree to an Assessor's Minimum Actual Value for the Minimwn
Improvements to be constructed on the Development Property of not less than $16,709,195, after
taking into consideration any factors such as "roll backs" which would reduce the taxable value
of the property, as of January 1, 2020, until the Assessment Agreement Tennination Date (as
defined below). Such minimum actual value at the time applicable is herein referred to as the
"Assessors Minimum Actual Value." Nothing in the Assessment Agreement shall limit the
discretion of the Assessor to assign an actual value to the Development Property in excess of
such Assessors Minimum Actual Value nor prohibit Owner and Developers from seeking
through the exercise of legal or administrative remedies a reduction in such actual value for
property tax purposes; provided, however, that Owner and Developers shall not seek a reduction
of such actual value below the Assessor's Minimum Actual Value in any year so long as the
Assessment Agreement shall remain in effect. The Assessment Agreement shall remain in effect
until December 31, 2034 (" Assessment Agreement Tennination Date"). The Assessment
Agreement shall be certified by the Assessor for the County as provided in Iowa Code Section
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403.6(19) (2017) and shall be filed for record in the office of the Johnson County Recorder, and
such filing shall constitute notice to any subsequent encumbrancer or purchaser of the
Development Property (or part thereof), whether voluntary or involuntary. Such Assessment
Agreement shall be binding and enforceable in its entirety against any such subsequent purchaser
or lienholder, as well as all prior lienholders (such as the holder of any Mortgage), each of which
shall sign a statement of oonsent to the Minimwn Assessment Agreement.
Section 5.8. Real Property Taxes and Assessments. Owner and Developers shall pay or
cause to be paid when due all real property taxes and assessments with respect to all and any
parts of the Development. Owner and Developers agree that they will not seek:
(a) Administrative or judicial review of the applicability or constitutionality of any
Iowa tax statute relating to the taxation of property contained on the Development Property
determined by any tax official to be applicable to the Development Property, the Minimum
Improvements, or Owner and Developers, or raise the inapplicability or constitutionality of any
such tax statute as a defense in any proceedings, including delinquent tax proceedings; and
(b) Any tax deferral or abatement, either presently or prospectively authorized under
Iowa Code Chapters 403 and 404 or any other local or State law, of the taxation ofreal property
contained on the Development Property.
Section 5.9 Contractor Labor Law Compliance. Owner and Developers will require, in
their agreement with their general contractor, that the General Contractor i) comply with all state,
federal and local laws and regulations, including, but not limited to the requirements of Iowa
Code Chapter 91C (Contractor Registration with the Iowa Division of Labor), Iowa Code
Chapter 91A (Iowa Wage Payment Collection Law), Iowa Code Chapter 910 (Minim.um Wage},
the Federal Fair Labor Standards Act, and the Internal Revenue Code; ii) provide to the
Developer and the City, no later than the filing of an application for issuance of a building
permit, the names and addresses of each subcontractor and the dollar value of the work the
subcontractor is expected to perform~ iii) demonstrate it has the capacity to meet all performance,
and labor and material payment, bonding requirements relative to the Minimum hnprovements;
iv) provide to the City a certificate by the General Contractor's insurer that it has in force all
insurance required with respect to construction of the Minimum Improvements; v) demonstrate
that it has required all subcontractors to agree, in writing, that the subcontractor will comply with
all state, federal and local laws and administrative rules and regulations, including, but not
limited to the requirements of Iowa Code Chapter 91C (Contractor Registration with the Iowa
Division of Labor), Iowa Code Chapter 91A (Iowa Wage Payment Collection Law), lowa Code
Chapter 91D (Minimum Wage), the Federal Fair Labor Standards Act, and the Internal Revenue
Code. Owner and Developers shall provide the City with sufficient evidence to establish
compliance with this requirement prior to issuance of any building pennit.
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ARTICLE VI. ASSIGNMENT AND TRANSFER
Section 6.1. Status of Owner and Developers; Transfer of Assets.
(a) As security for the obligations of Owner and Developers under this Agreement,
Owner and Developers represents and agrees that, prior to the Tennination Date, Owner will
maintain existence as Iowa limited liability partnership and Developers will maintain existence
as Iowa limited liability companies, and will not wind up or otherwise dispose of all or
substantially all of their assets or assign their interest in the Development Property or Minimum
Improvements, or their interest in this Agreement to any other party, unless: (i) the transferee
partnership, corporation, limited liability company or individual assumes in writing all of the
obligations of Owner and Developers under this Agreement, and (ii) the City consents thereto in
writing in advance thereof, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, however, or any other provisions of this Agreement, Owner and Developers may
pledge any and/or all of its assets as security for any financing of the Minimum Improvements,
and the City agrees that Developer may assign its interest in the Economic Development Grants
being paid under this Agreement for such purpose.
(b) The Owner and Developers may submit the Development Property to a horizontal
property regime pursuant to Iowa Code Chapter 499B. The Mayor is authorized to execute a
amendment to this Agreement and the Minimum Assessment Agreement in accordance with
Section 12.8 for the limited purpose of allocating the rights and obligations set forth in this
Agreement to respective condominium writs to be owned by one or more of the Owner or
Developers. Any other amendment to this Agreement must be approved by City Council unless
specifically stated herein.
(c) Notwithstanding anything herein to the contrary, however, the parties expressly
agree and acknowledge th.at Owner intends to transfer ownership of the Development Property to
the Developers prior to the commencement of construction of the Minimum Improvements and
that the City consents to said transfer. Therefore> no further consent from the City to the
Owner's transfer of the Development Property to the Developers is required. It is further
acknowledged and agreed. that upon the transfer of the Development Property by the Owner to
the Developers, Owner shall be released from any further obligation under this Agreement of any
kind and that all further rights, title and obligations owed to or due from the City under this
Agreement shall vest solely in the Developers.
Section 6.2. Representation as to Develqpment. Owner and Developers represent and
agree that their development of the Development Property, and their other undertakings pursuant
to this Agreement, are and will be used for the purpose of development of the Development
Property and not for speculation in land holding. Owner and Developers further recognize:
(a) The importance of developing the Development Property to the general welfare of
the community;
(b) The substantial financing and other public aids that have been made available by
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law and by the City for the pUipose of making such development possible; and
(c) Except for a change in the ownership or control of Owner and/or Developer(s)
caused by or related to the death of a member, estate planning of a member or retirement of a
member, when the remaining original controlling members of the Owner and/or Developer(s)
remain unchanged, the fact that any act or transaction involving or resulting in a significant
change in the ownership or with respect to the identity of the parties in control of Owner and
Developers or the degree thereof, is for practical pUIJ>oses a transfer or disposition of the
Development Property then owned by Owner and Developers and the qualifications and identity
of Owner and Developers are of particular concern to the City. Owner and Developers further
recognize that it is because of such qualifications and identity that the City is entering into this
Agreement with Owner and Developers.
Section 6.3. Prohibition Against Transfer of Property and Assignment of Agreement.
For the reasons identified in Section 6.2, Owner and Developers represent and agree for
themselves and their successors and assigns, that:
(a) Owner and Developers have not made or created, and they wiU not, prior to the
completion of the Minimum Improvements and the delivery by the City of the Certificate of
Completion, mak~ create, or suffer to be made or created, any total or partial sale, assignment,
conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with
respect to this Agreement or the Development Property, or any part thereof or any interest
therein, or any contract or agreement to do any of the same, without the prior written approval of
the City. Notwithstanding said restrictions, Developers and/or Owner may:
(i) make such transfer or assigmnent for the purpose of obtaining financing
necessary to enable Owner and Developers or any successor in interest to the Development
Property, or any part thereof, to perform their obligations with respect to construction the
Minimum Improvements under this Agreement;
(ii) lease or sell commercial and residential condominium units at any time
subject to the terms of the Minimum &sessment Agreement and the restrictions on use with
respect to the affordable housing units described in Section 2.2 hereof;
(iii) have a change in ownership or control caused by or related to the death of
a member, estate planning of a member or retirement of a member, when the remaining original
controlling members of the Owner and/or Developer(s) remain llilchanged;
(iv) make such a transfer or assignment for any other purposed authorized by
this Agreem.ent.
(b) The City shall be entitled to require, except as otheiwise provided in this
Agreement, as conditions to any such approval that:
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(i) Any proposed transferee shall have the qualifications and financial
responsibility, as determined by the City, necessary and adequate to fulfill the obligations
undertaken i11 this Agreement by Owner and Developers (or, in the event the transfer is or relates
to part of the Development Property, such obligations to the extent that they relate to such part).
(ii) Any proposed transferee, by instrument in writing satisfactory to the City
and in form recordable among the land records, shall, for itself and its successors and assigns,
and expressly for the benefit of the City, have expressly assumed all of the obligations of Owner
and Developers under this Agreement and the Assessment Agreement and agreed to be subject to
all the conditions and restrictions to which Owner and Developers are subject (or, in the event
the transfer is of or relates to part of the Development Property, such obligations, conditions, and
restrictions to the extent that they relate to such part). Provided, that the fact that any transferee
of, or any other successor in interest whatsoever to, the Development Property, or any part
thereof, shall, whatever the reason, not have assumed such obligations or .so agreed, shall not
(unless and only to the extent otherwise specifically provided in this Agreement or agreed to in
writing by the City) relieve or except such transferee or successor of or from such obligations,
conditions, or restrictions, or deprive or limit the City of or with respect to any rights or remedies
or controls with respect to the Development Property or the construction of the Minim.um
Improvements; it being the intent of this, together with other provisions of this Agreement, that
(to the fullest extent permitted by law and equity and excepting only in the manner and to the
extent specifically provided otherwise in this Agreement) no transfer of, or change with respect
to, ownership in the Development Property or any part thereof, or any interest therein, however
consummated or occurring. and whether volWltary or involuntary, shall operate, legally or
practically, to deprive or limit the City of or with respect to any rights or remedies or controls
provided in or resulting from this Agreement and the .Assessment Agreement with respect to the
Development Property and the construction of the Minimum Improvements that the City would
have had, had there been no such transfer or change.
(iii) There shall be submitted to the City for review all instruments and other
legal docwnents involved in effecting transfer; and if approved by the City, its approval shall be
indicated to Owner and Developers in writing. Such approval will not be unreasonably withheld
Provided, that in the absence of specific written agreement by the City to the contrary, no
such transfer or approval by the City thereof sh.all be deemed to relieve Owner and Developers,
or any other party bound in any way by this Agreement or otherwise with respect to the
construction of the Minimum Improvements, or from any of their obligations with respect
thereto.
Section 6.4 Prohibition Against Use as Non-Taxable or Centrally-Assessed Property.
During the term of this Agreement, Owner and Developers agree that no portion of the
Development Property or Minimum Improvements shall be transferred or sold to a noirprofit
entity or used for a purpose that would exempt said portion of the Development Property or
Minimum Improvements from property tax liability. During the term of this Agreement,
Developer agrees not to allow any portion of the Development Property or Minimum
Improvements to be used as centrally-assessed property (including, but not limited to, Iowa Code
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§ 428 .24 to 428.29 (Public Utility Plants and Related Personal Property); Chapter 433
(Telegraph and Telephone Company Property); Chapter 434 (Railway Property); Chapter 437
(Electric Transmission Lines); Chapter 437 A {Property Used in the Production, Generation,
Transmission or Delivery of Electricjty or Natural Gas); and Chapter 438 (Pipeline Property)).
ARTICLE VIl. ECONOMIC DEVELOPMENT GRANTS
Section 7.1. Economic Development Grants.
For and in consideration of the obligations being assumed by the Owner and Developers
hereunder, and in furtherance of the goals and objectives of the Urban Renewal Plan and the
Urban Renewal Act, the City agrees to make the following Economic Development Grants,
subject to the Owner and Developers being and remaining in compliance with the terms of this
Agreement and subject to the terms of this Article VII. Said Economic Development Grants
shall, in no event, exceed an aggregate amount of $8,000,000:
(a) $600,000 to Owner and Developers on or about March 31, 2020, or three (3) months
following the issuance of the Certificate of Completion, whichever is later.
(b) Up to fifteen (15) annual Economic Development Grants commencing on June 1,
2022, and ending on June 1, 2036, or when the total of all grants descdbed in this Article VII is
equal to $8,000,000, whichever is earlier. All annual grants shall be equal to one hundred
percent (100%) per fiscal year of the Tax Increments (unless the total grant amount of
$8,000,000 is reached first) collected by the City with respect to the Minimum Improvements on
Development Property pursuant to Section 403.9 of the Urban Renewal Act under the terms of
the Ordinance (without regard to any averaging that may otherwise be utilized under Section
403.19(6) and excluding any interest that may accrue thereon prior to payment to the Developer)
during the preceding twelve-month period in respect of the Development Property and the
Minimum Improvements, but subject to adjustment and conditions precedent as provided in this
Article (such payments described in subsections (a) and (b) hereof being referred to collectively
as the "Economic Development Grants").
( c) The obligation of the City to make an Economic Development Grant to the
Developer in any year as specified above shall be subject to and conditioned upon the timely
filing by the Developer of all previous annual statements, proofs md certifications required
under Section 5.6 hereof and the City Manager's approval thereof. Beginning with the
November 1, 2020 certification, if the Developer's annual statement, proof and certification is
timely filed and contains the information required under Section 5.6 and the City Manager
approves of the same, the City shall certify to the County prior to December 1 of that year its
request for the available Tax Increments resulting from the assessments imposed by the County
as of January l of that year, to be collected by the City as taxes are paid during the following
fiscal year and which shall thereafter be disbursed to the Developer on June 1 of the following
fiscal year. (For example, if the Owner and Developers and the City each so certify on
November and December 2020 respectively, the first Economic Development Grant would be
paid to the Owner and Developers on June 1, 2022).
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( d) In the event that the annual statement, proof or certificate required to be delivered
by the Owner and Developers under Section 5.7 is not delivered to the City by November 1 of
any year, the Owner and Developers recognize and agree that the City may have insufficient time
to review and approve the same and certify its request for Tax Increments to the County and that,
as a result, no Economic Development Grant may be made in respect 1hereof. The City
covenants to act in good faith to appropriately review and consider any late certification on the
part of the Owner and Developers, but the City shall not be obligated to make any certification to
the County for the available Tax Increments or make any corresponding payment of the
Economic Development Grant to the Owner and Developers if, in the reasonable judgment of the
City, it is not able to give appropriate consideration (which may include, but not be limited to,
specific discussion before the City Council at a regular City Council meeting with respect
thereto) to the Owner and Developers' certification due to its late filing. In the event Owner and
Developers fail to timely file an annual statement, proof or certificate due to an Unavoidable
Delay and, as a result, an Economic Development Grant cannot be make, Owner and Developers
may give written notice to the City and, if the City finds that the failure is due t.o an Unavoidable
Delay, the missed Economic Development Grant shall be made in. the year succeeding the last
scheduled Economic Development Grant under Section 7 .1, subject to Owner and Developers'
filing under Section 5.6 and all other provisions of this Article VII with respect to such grant, it
being the intention of the parties to allow a one--time $600,000 lump S\Dll Economic
Development Grant and up to fifteen (15) annual Economic Development Grants in an aggregate
amount not to exceed $8,000,000, if Owner and Developers are in compliance with this
Agreement
( e) The final grant shall be adjusted, if necessary, if payment of 100% of Tax Increments
for that grant would result in total, aggregate Economic Development Grants in an amount
exceeding $8,000,000. Such Economic Development Grants shall at all times be subject to
termination in accordance with the terms of this Article VII and Article X. Thereafter, the taxes
levied on the Development Property and Minimum Improvements shall be divided and applied in
accordance with the Urban Renewal Act and the Ordinance. It is recognized by all parties that
the total aggregate amowit set forth above is a maximum amount only and that the actual
payment amounts will be determined after the Minimmn Improvements are completed and the
valuations of said Improvements have been determined by the City Assessor.
(t) In the event that any certificate filed by the Owner and Developers under Section
5.6 or other infonnation available to the City discloses the existence or prior occurrence of an
Event of Default that was not cured or cannot reasonably be cured under the provisions of
Section 10.2 (or an event that, with the passage of time or giving of notice, or both, would
become an Event of Default that cannot reasonably be cured lUlder the provisions of Section
10.2), the City shall have no obligation thereafter to make any further payments to the Developer
in respect of the Economic Development Grants and may proceed to take one or more of the
actions described in Section 10.2 hereof.
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Section 7 .2. Source of Grant Funds Limited.
(a) The Economic Development Grants shall be payable from and secured solely and only
by amounts deposited and held in the Hieronymus Square TlF Account of the City. The City
hereby covenants and agrees to maintain the Ordinance in force dtning the term hereof and to
apply the incremental taxes collected in respect of the Minimum Improvements and allocated to
the Hieronymus Square TIF Account to pay the Economic Development Grants, as and to the
extent set forth in Section 7.1 hereof. The Economic Development Grants shall not be payable in
any manner by other tax increment revenues or by general taxation or from any other City funds.
(b) Notwithstanding the provisions of Section 7. I hereof, the City shall have no
obligation to make an Economic Development Grant to the Owner or Developers if at any time
during the tenn hereof the City receives an opinion of its legal counsel or a controlling decision
of an Iowa court having jurisdiction over the subject matter hereof to the effect that the use of
Tax Increments resulting from the Minimum Improvements to fund an Economic Development
Grant, as contemplated under said Section 7.1, is not authorized or otherwise an appropriate
project activity permitted to be undertaken by the City under the Urban Renewal Act or other
applicable provisions of the Code, as then constituted. Upon receipt of such an opinion or
decision, the City shall promptly forward a copy of the same to the Owner and Developers. If
the circumstances or legal constraints giving rise to the opinion or decision continue fur a period
during which two (2) Economic Development Grants would otherwise have been paid to the
Owner and Developers under the tenns of Section 7 .1, the City may tenninate this Agreement,
without penalty or other liability to the Owner or Developers, by written notice to the Owner and
Developers. In said event, the Minimum Assessment Agreement shall also be terminated
effective as of the City's termination of this Agreement.
(c) The City makes no representation with respect to the amounts that may finally be paid
to the Owner and Developers as the Economic Development Grants, and under no circumstances
shall the City in any manner be liable to the Owner and DeveloJ>tt8> so long as the City timely
applies the Tax Increments actually collected and held in the Ilieronymus Square TIF Account
(regardless of the amounts thereof) to the payment of the Economic Development Grants to the
Developer, as and to the extent described in this Article.
Section 7.3. Use of Other Tax Increments. Subject to this Article VII, the City shall be
free to use any and all Tax Increments collected in respect of increases in valuation on the
Development Property unrelated to construction of the Minimum Improvements (i.e. increases in
assessed or actual value due to market factors), any other properties within the Project Area, or
any available Tax Increments resulting from the suspension or temtlnati.on of the Economic
Development Grants under Section 7.1 hereof, for any purpose for which the Tax Increments
may lawfully be used pursuant to the provisions of the Urban Renewal Act, and the City shall
have no obligations to the Developer with respect to the use thereof.
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Section 7.4. Conditions Precedent. Notwithstanding other provisions of this Article, the
City's obligations to make Economic Development Grant(s) to Owner and Developers under this
Agreement shall be subject to satisfaction of the following conditions precedent:
(a) Owner and Developers shall be in material compliance with all the terms and
provisions of this Agreement; and
(b) The City has held all necessary hearings and taken Council action in the exercise of
its sole discretion and legislative dehoerative authority to adopt or amend the City-University
Project I Urban Renewal Plan, as deemed necessary by the City in its sole discretion; and
(c) Execution and recording of the Assessment Agreement by the City and Owner and
Developers pursuant to Section 5.8 of this Agreement; and
(d) Execution and recording of the Memorandum of Agreement for Private
Development by the City and Owner and Developers pursuant to Section 12.3 of this Agreement;
and
(e) Execution and recording of an Access Easement for use of Court Street
Transportation Center, if necessary pursuant to Section 2.1 above.
(f) Execution and recording of a Temporary Construction Easement, if necessary
pursuant to Section 2.1 above.
(g) Execution and recording of a Temporary Use of Right-of-Way agreement, if
necessary pursuant to Section 2.1 above.
(h) Receipt of opinions of counsel to Owner and Developers in the form attached
hereto as Exhibit E;
(i) Owner and Developers have closed on their financing for the construction of the
Minimum Improvements; and
G) There has not been a substantial change for the worse in the financial resources and
ability of Owner and Developers, or a substantial decrease in the financing commitments secured
by Owner and Developers for construction of the Minimum Improvements, which change(s)
makes it likely, in the judgment of the City, that Owner and Developers will be wiable to fulfill
its covenants and obligations under this Agreement.
(k) Developer's execution of the Wage Theft Affidavit attached hereto as Exhibit K.
Section 7.5. Limitations on Financial Undertakings of the City. Notwithstanding the
provisions of this Agreement, including Sections 7.1 and 7.2 hereo( the City shall have no
obligation to Owner and Developers under this Agreement to issue an Economic Development
Grant if the City is entitled (or, with the passage of time or giving of notice or bo~ would be
22
entitled) under Section 10.2 of this Agreement to exercise any of the remedies set forth therein as
a result of an Event of Default.
ARTICLE VIII. INDEMNIFICATION
Section 8.1. Release and Indemnification Covenants.
(a) Owner and Developers release the City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for pwposes of this Article VIII, the
''indemnified parties") from, covenant and agree that the indemnified parties shall not be liable
for, and agree 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 oceutring at or about, or resulting
from any defect in, the Minimum Improvements or the Development Property. Notwithstanding
the foregoing, however, Owner and Developers shall have no obligation to indemnify, defend or
hold harmless the indemnified parties against any loss or damage to property or any injury to or
death of any person arising in whole or in part from actions taken or not taken by the City on its
property adjacent to the Development Property or any property other than the Development
Property.
(b) Except for any willful misrepresentation or any willful or wanton misconduct or
any unlawful act of the indemnified parties, Owner and Developers agree 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 whatsoever by any person or
entity whatsoever arising or purportedly arising from: (i) any violation of any agreement or
condition of this Agreement by ( except with respect to any suit, action, demand or other
proceeding brought by Owner and Developers against the City to enforce their rights under this
Agreement); (ii) the acquisition and condition of the Development Property and the acquisition,
construction, installation, owner and operation of the Minimum Improvements; or (iii) any
hazardous substance or environmental contamination locat.ed in or on the Development Property.
(c) The indemnified parties shall not be liable for any damage or injury to the persons
or property of Owner and Developers, or its officers, agents, servants or employees or any other
person who may be about the Minimum Improvements or the Development Property due to any
act of negligence of any person, other than any act of negligence on the part of any such
indemnified party or its officers, agents, servants or employees.
(d) All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the City, and not of any governing body member, officer, agent, servant or
employee of the City in the individual capacity thereof.
( c) The provisions of this Article VIII shall survive the termination of this Agreement.
23
(f) Nothing herein shall waive any of the defenses of governmental immunity available
to the City of Iowa City, Iowa, under Code of Iowa Section 670.4 as it now exists and as it may
be amended from time to time.
ARTICLE IX. RESERVED
ARTICLE X. DEFAULT AND REMEDIES
Section 10.1. Events of Default Defined. The following shall be "Events of Default"
under this Agreement and the tenn "Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(a) Failure by Owner and Developers to cause the construction of the Minim.mn
hnprovements to be commenced and completed pursuant to the terms, conditions and limitations
of this Agreement;
(b) Transfer of any interest by Developer in this Agreement or the Development
Property or the Minimum Improvements in violation of the provisions of th.is Agreement.
(c) Failure by Owner and Developers to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or performed under this
Agreement;
(d) Failure by Developer to pay, before delinquency, ad valorem taxes on the
Development Property and Minimum Improvements;
(e) The holder of any Mortgage on the Development Property, or any improvements
thereon, or any portion thereof, commences foreclosure proceedings as a result of any default
under the applicable Mortgage documents;
(t) Owner and Developers sh.all:
(i) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, <lissolution, or similar relief under the United States
Bankruptcy Act of 1978, as amended, or under any similar federal or state law;
(ii) make an assignment for the benefit of its creditors;
(iii) admit in writing its inability to pay its debts generally as they become due;
(iv) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing
the adjudication of Owner and Developers as a bankrupt or its reorganization under any present
or future federal bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days after the filing
24
thereof; or a receiver) trustee or liquidator of Owner and Developers or the Minimum
Improvements, or part thereof, shall be appointed in any proceedings brought against Owner and
Developers, and shall not be discharged within n111ety (90) days after such appointment, or if
Owner and Developers shall consent to or acquiesce in such appointment;
(g) Any representation or warranty made by Owner and Developers in this Agreement,
or made by Owner and Developers in any written statement or certificate furnished by Owner
and Developers 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.
Section 10.2. Remedies on Default. Whenever any Event of Default referred to in Section
10.1 of this Agreement occurs and is continuing, the City, as specified below1 may take any one
or more of the following actions after ( except in the case of an Event of Default under
subsections (e), (t) or (h) of said Section IO.I) the giving of thirty (30) days' written notice by the
City to Owner and Developers, Developer and the holder of the Mortgage (but only to the extent
the City has been infonned in writing of the existence of a Mortgage and been provided with the
address of the holder thereof) of the Event of Default, but only if the Event of Default has not
been cured within said thirty (30) days, or if the Event of Default cannot reasonably be cured
within thirty (30) days and Owner and Developers does not provide assurances reasonably
satisfactory to the City that the Event of Default will be cured as soon as reasonably possible:
(a) The City may suspend its performance under this Agreement until it receives
assurances from Owner and Developers, deemed adequate by the City, that Owner and
Developers will cure its def.ault and continue its performance under this Agreement;
(b) The City may terminate this Agreement;
(c) The City may withhold the Certificate of Completion;
( d) The City shall be entitled to rescind the Economic Development Grants and recover
from Owner and Developers all funds expended by the City in connection with the issuance of
the Note and the funding of the Economic Development Grants, and the City may take any
action, including any legal action it deems necessary, to recover such amounts :from Owner and
Developers; or
(e) The City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any amounts due under this Agreement or
enforce performance and observance of any obligation, agreement, or covenant under this
Agreement.
(f) The City may draw upon any guarantee or security provided to the City pursuant to
any of the terms of this Agreement according to its terms.
Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or ~erved to the
City is intended to be exclusive of any other available remedy or remedies, but each and evf:rY
25
remedy shall be cumulative and shall be in addition to every other remedy given wider this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof: but any such right and power may be exercised from
time to time and as often as may be deemed expedient.
Section 10.4. No Implied Waiver. In the event any agreement contained :in this
Agreement should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
Section 10.5. Agreement to Pay Attorneys' Fees and Expenses.
(i) Developer shall pay the City's costs and expenses related to amending the urban
renewal area, legal fees related to the creation and ongoing administration of the Development
Agreement, and any financial advisor's fees. Such payment shall be made no later than 30 days
upon receiving written notice.
(ii) Whenever any Event of Default occurs and the City shall employ attorneys or incur
other expenses for the collection of payments due or to become due or fur the enforcement or
performance or observance of any obligation or agreement on the part of Owner and Developers
herein contained, Owner and Developers agrees that it shall, on demand therefore, pay to the
City the reasonable fees of such attorneys and such other expenses as may be reasonably and
appropriately incurred by the City in connection therewith.
ARTICLE XI. RESERVED
ARTICLE XII. MISCELLANEOUS
Section 12.1. Conflict of Interest. Owner and Developers represents and warrants that, to
their best knowledge and belief after due inquiry, no officer or employee of the City, or their
designees or agents, nor any consultant or member of the governing body of the City, and no
other public official of the City who exercises or has exercised any functions or responsibilities
with respect to the Project during his or her tenure, or who is in a position to participate in a
decision~making process or gain insider information with regard to the Project, has had or shall
have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereo( for
work or services to be performed in connection with the Project, or in any activity, or benefit
therefro~ which is part of the Project at any time during or after such person's tenure.
Section 12.2. Notices and Demands. A notice, demand or other communication under this
Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered personally,
and
26
(a) In the case of Owner and Developers, is addressed or delivered personally to
Owner and Developers at 711 S. Gilbert Street, Iowa City, Iowa 52240; 319-354-2233 Attn:
Kevin Digmann, with copy to Kirsten H. Frey, 920 S. Dubuque Street, Iowa City, Iowa 52240,
(b) In the case of the City, addressed to or delivered personally to City Manager, City
Hall, 410 E. Washington Street, Iowa City, Iowa S2240,
or to such other designated in<lividual or officer or to such other address as any party shall have
furnished to the other in writing in accordance herewith.
Section 12.3. Memorandum of Agreement. The parties agree to execute and record a
Memorandum of Agreement for Private Development, in substantially the form attached as
Exhibit D, to serve as notice to the public of the existence and provisions of this Agreement, and
the rights and interests held by the City by virtue hereof. The Minimum Assessment Agreement
shall be recorded at Owner and Developers' expense.
Section 12.4. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 12.5. Countqparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 12.6. Governing Law. 'This Agreement shall be governed by the laws of the State
oflowa.
Section 12. 7. Severability. If any provision of this Agreement or the application of such
provision to any person or circumstance shall be held invalid, then the remainder of this
Agreement or the application of such provision to persons or circumstances, other than those to
which it is held invalid, shall not be affected thereby and the parties shall thereupon amend this
Agreement to legally and most closely embody the spirit and intent of the invalid provisions.
Section 12.8. Amendment; Waiver. This Agreement may not be amended, waived or
modified in any respect, unless the same shall be in writing and signed by all parties. No waiver
by a party of any default by another party shall constitute a waiver of any other breach or default
by another party, whether of the same or any other covenant or condition. No waiver, benefit,
privilege or service voluntarily given or performed by a party shall give another party any
contractual right by custom, estoppel or otherwise. The Mayor is authorized to execute an
amendment reasonably necessary in accordance with Section 6.1 above.
Section 12.9. No Third~Party Beneficiaries. No rights or privileges of any party hereto
shall inure to the benefit of any landowner, oontractor, subcontractor, material supplier, or any
other person or entity, and no such contractor, landowner, subcontractor, material supplier, or
any other person or entity shall be deemed to be a third-party beneficiary of any of the provisions
contained in this Agreement.
27
and on their behalf by their authorized representative(s), all on or as of the day first above
written.
CITY OF IOWA CITY, IOWA
By: qi?./.~
_________ , Mayor
ATTEST:
By:~_;_e_/f'._~
Benjamin Kinseth, Manager
28
BY: __ -_M~/~J~_l_ ~----~
Mi;~ger
Benjamin Kinseth, Manager
HS314, L.L.C.
BY:
BY: ______.__-t;----"---k-~--
Benjamin Kinseth, Manager
STATE OF IOWA )
) ss
COUNTY OF JOHNSON )
On this / q day of 20171\l>efore me a Notary Public in and for
said County, personally appeare d ;~.,~Ji V\.d, to me personally known, who
being duly sworn, did say that they ar the Mayor and City Clk, respectively, of the City of
Iowa City, Iowa, a Municipal Corporation, created and existing under the laws of the State of
Iowa, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed
of said Municipal Corporation by them voluntarily executed.
28:(a)
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this .J!J___ day o~W, 2017, by
,:1\., 11 .\I. i W ''!)"' ._.,, , as h4':f'5 fWw of !IlER~ I P AR1NERSHIP, L.L.P .,
i DI.CMILF 1..,3 ™ jJ Mi f ~ eu.:=:::-ex:-Notary Public in and for the Statefiowa
Apr17,2020
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
-th This instrument was acknowledged before me on this A ... day of~\ajr, 2017, by Kevin
Digmann, as Manager of HIERONYMUS SQUA DEVELOPERS, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
~ ·_____...__
te of Iowa
This instrument was acknowledged before me on this~ day of~2017, by
Michael Hodge, as Manager of HIERONYMUS SQUARE DEVELOPERS, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
e of Iowa
This instrument was acknowledged before me on this J!d.__ day of ~tr , 2017, by John
Hieronymus, as Manager of HIERONYMUS SQUARE DEVELOPERS, L.L.C.
~~ i DLCHELF f :\ eomm.1an Number010213
' .., C,ammlaelon Exp1r8I
Aprll 7, 2020 Notary Public in and for theSeo
28(b)
STATE OF IOWA
COUNTY OF JOHNSON
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
)
)SS
)
This instrument was acknowledged before me on this l°"\ day of~.b.Y, 20 17, by Kevin
Digmann, as Manager of of IOWA CITY ES H TEL, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this e__ day o~\'l\P\"": 2017, by
Michael Hodge, as Manager of of IOWA CITY S HOTEL, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
tate of Iowa
This instrument was acknowledged before me on this J1_ day of.~, 2017, by John
Hieronymus, as Manager of of IOWA CITY ES HOTEL, L.L.C.
i OLCNELf i ~ CW.1t.lll.l\........,01D213
• 11y eoa,111111:r ~
Ap117, 2020
Notary Public in and for the State o owa
28(c)
STATE OF IOWA
COUNTY OF JOHNSON
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
)
)SS
)
This instrument was acknowledged before me on this A-tb day of~ ~017, by Kevin
Digmann, as Manager ofHS314, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
State of Iowa
This instrument was acknowledged before me on this l°'~ day of~~ 2017, by
Michael Hodge, as Manager ofHS314, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this Jg__ day of ~tr , 2017, by John
Hieronymus, as Manager ofHS314, L.L.C.
i DLCHELF
j \ C..Mallon Number 010213
. MtCommllllan e.-Aprll 7, 2020
28(d)
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this~ day ofdtpfuJ.tr; 2017, by
Benjamin Kinseth, as Manager ofHS314, L.L.C.
UklD~ Notary Public in~ oflowa
28(e)
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property consists of the following legally described property:
Lot.s 8, 7 and the N 44 feet of Lot 6, all in Block 102 in Iowa City, Johnson County,
Iowa, according to the recorded p 1 at thereof. Also described as follows:
1. Commencing at the NE comer of Lot 8, Block 102, thence W 30 feet, thence S
68 feet, thence E 30 fe~ thence N 68 feet to the place of beginning, all in Iowa City,
Johnson County, Iowa, according to the plat thereof recorded in Book 1, Page 116,
Plat Records of Johnson County, Iowa.
2. Commencing at a point 30 feet W of the NE comer of Lot 8 in Block 102 in
Iowa City, Iowa, according to the plat thereof recorded in Book I, Page 116, Plat
Records of Johnson County, Iowa, thence W 45 feet, thence S 68 feet, thence E 45
feet, thence N 68 feet to the place of beginning, excepting the W 2-2/12ths feet of the
N 27 feet thereof.
3. Commencing at the NW corner of Lot 8 in Block 102 in Iowa City, Iowa,
according to the plat thereof recorded in Plat Book 1, Page 116, Plat Records of
Johnson Cowity, Iowa, running thence E 77 feet 2 inches, thence S 27 feet, thence W
2 feet 2 inches, thence S 41 feet, thence E 75 feet to the alley, thence S along the alley
12 feet to the SE comer of said Lot 8, thence W 150 feet, thence N 80 feet to the
point of beginning.
4. The N 44 feet of Lot 6 in Block l 02 in Iowa City, Iowa, according to the
recorded p 1 at thereof.
5. Lot 7, Block 102 of the alteration of the original plat of Iowa City, Iowa,
according to the plat thereof recorded in Book 8, Page 404 Plat Records of Johnson
County, Iowa.
6. Beginning at the Southeast corner of the North 182 feet of the alley in Block
102, thence South l02 feet, thence West 20 feet, thence North 102 feet, thence East
20 feet to the point of beginning, containing approximately .05 acres (2,040 square
feet} and subject to the easements and restrictions of record.
AND
A portion of Lot 6, Block 102, Original Town of Iowa City, Iowa located in the southeast
one-quarter of the Southwest one-quarter of Section l 0, Township 79 North, Range 6 West
31
of the 5th Principal Meridian, City of Iowa City, Johnson County, Iowa, more particularly
described as follows:
Auditor's Parcel 2007081
Commencing at the Northwest comer of Lot 8, Block 102, Original Town of Iowa City,
Iowa, according to the recorded plat thereof; Thence S00°46'44"E, along the West line of
Lots 8, 7 and 6, a distance of 165.00 feet to the point of beginning; Thence N89°13'16"E,
170.15 feet to a point on the East line of a vacated 20 foot wide alley in said Block 102;
Thence S00°45'34"E, along said East line, 16.92 feet; Thence S89°12'21 "W, 20.00 feet to
a point on the East line of said Lot 6; Thence S00°45'34"E, along said East line, 3.07 feet;
Thence S89°13'16"W, 150.15 feet to a point on the West line of said Lot 6, Thence
N00°46'44"W, along said West line of Lot 6, a distance of 20.00 feet to said point of
beginning, containing 0.08 acres (3,341square feet) and is subject to easements and
restrictions of record.
32
EXHIBITB
MINIMUM IMPROVEMENTS
Developer shall complete the following minimmn improvements and uses on the Development
Property in accordance with the Development Agreement to which this Exhibit D is attached and
as shown on the Concept Plan, attached to the Development Agreement as Exhibit H.
1. "Element" Hotel
Developer shall complete a 7-story, approximate 91-unit extended stay hotel comprised of a
minimum of 62,000 square feet. The Developer shall spend a minimum of $20,479,836 on tot.al
development oosts, which shall include building construction and design, property acquisition,
furniture, fixtures and equipment, opening costs (working capit.al, training, marketing),
construction interest and loan fees, developer overhead, parking, and professional services and
closing oosts with a tax.able value estimated at $8,460,000.
The hotel entry shall be on Clinton Street through an approximately 2,800 square foot vestibule,
described in more detail below, to be shared with the 7-story mixed use building described
below. The first floor shall be comprised of en approximate 9,750 square foot lobby, with a
reception desk, fitness room, lounge, breakfast kitchen, offices, restrooms, a guest meeting room,
laundry, pantry, and a staff meeting room. The second floor shell include an approximate 5,000
square foot patio (with a lower and upper terrace) and an indoor pool to be shared with the 7-
story mixed use building described below, as well as approximately 15 guest units. The third
through seventh floors shall each be approximately 8,575 square feet with 15 guest lJllits. Each
hotel unit shall each have a full compact kitchen, including a. two-burner stove, refrigerator,
dishwasher and microwave. The City Manager shall have the authority to approve the final
nwnber of hotel units in accordance with Section 2.1 of the Agreement.
A stairway and the elevator at the east end of the first floor vestibule will provide access to the
second floor and it is anticipated that Developer will construct and maintain a second floor
skywalk to link the vestibule to the City..awned Court Street Transportation Center (CSTC).
The Developer shall enter into a franchise agreement with the Marriott International, Inc., or a
subsidiary, for an "Element" brand hotel franchise or comparable hotel franchise approved by the
City, which approval shall not be unreasonably withheld.
In construction and operation of the Element, the Developer shall obtain the "Gold Green Seal
Certification" upon construction of the building, and shall operate the hotel in accordance with
said Gold Green Seal program, a third-party non-profit environmental certification program for
hotels and lodging properties.
33
2. Mixed-Use Building
Developer shall complete a 7-story mixed use building comprised of a parking garage,
commercial space, Class A office space, and five floors of residential units. The Developer shall
spend at least $20,273,940 on total development costs for this component of the Mittimum
hnprovements, which is estimated to create a taxable value of $8,249,195.
The first floor will be built for retail use to ensure the street front is active and engaging. The
retail level will be comprised of at least 1O,100 square feet and may be divided into appropriate-
sized sections for tenant use. The store fronts shall have large, highly transparent windows to
encourage and enhance activity and vibrancy at the street level.
Level two consists of a minimum of 6,100 square feet of Class A office space. AB defined by the
Building Owners And Managers Association International (BOMA), class A office space is
space that is of a quality that is attractive for premier office users with rents above average for
the area. Class A office space has high quality standard finishes, state of the art systems,
exceptional accessibility and a definite market presence.
A minimwn of 50,000 square feet of residential space on levels three through seven will total
approximately 45 residential dwelling units. It is anticipated that the 45 dwelling units will
consist of a mix of 5 studios, 10 one--bedroom units and 30 two-bedroom units, or as otherwise
approved by the City Manager during the course of design review and construction plan approval
pursuant to Section 2.1 of the Agreement. As provided in section 2.1 above, at least two of the
units one !-bedroom and one 2-bedroom) will be sold to or leased to inoome qualified
households.
All parking required pursuant to the Iowa City Code of Ordinances will be satisfied in an
underground parking garage spanning the entire footprint of both the mixed use and hotel
buildings described above. It is anticipated that access to the wderground parking will be
through the Court Street Transportation Center in accordance with an access easement
agreement.
The Developer shall install rooftop solar modules to generate an estimated 38,732 kWh annually.
The design of these Minimum Improvements must be approved by the Form-based Code
Committee for conformance with the Riverfront Crossings development standards, as set forth in
Iowa City Code of Ordinances 14-20.
34
EXHIBITC
CERTIFICATE OF CO.MPLETION
WHEREAS, the City of Iowa City, Iowa (the "City") and ---------
("Developers"}, did on or about the __ day of , 2017, make, execute and deliver, each
to the other, an Agreement for Private Development (the "Agreement"), wherein and whereby
the Developers agreed, in accordance with the terms of the Agreement, to develop and maintain
certain real property located within the City and as more particularly described as follows:
-----······ -------
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions
with respect to the development of the Development Property, and obligated the Developers to
construct certain Minimum Improvements (as defined therein) in accordance with the
Agreement; and
WHEREAS, Developers have to the present date performed said covenants and conditions
insofar as they relate to the construction of said Minimum Improvements in a manner deemed by
the City to be in conformance with the approved building plans to permit the execution and
recording of this certification.
NOW, THEREFORE, pursuant to Section of the Agreement, this is to certify
that all covenants and conditions of the Agreement with respect to the obligations of the
Developer, and its successors and assigns, to construct the Minimum Improvements on the
Development Property have been completed and perfonned by the Developer and are hereby
released absolutely and forever terminated insofar as they apply to the land described herein,
except those covenants set forth in of the Agreement. The County
Recorder of Johnson County, Iowa, is hereby authorized to accept for recording and to record the
filing of this instrument, to be a conclusive determination of the satisfactory termination of the
covenants and conditions of said Agreement with respect to the construction of the Minim.mn
Improvements on the Development Property.
All other covenants and provisions of the Agreement shall otherwise remain in full force
and effect until termination as provided therein.
(SEAL)
ATTEST:
By: _________ _
City Clerk
CITY OF IOWA CITY, IOWA
By: ____________ _
Mayor
35
STATE OF IOWA
COUNTY OF JOHNSON
CJTY OF IOWA CITY
)
)ss:
)
On this day of , 2017, before me a Notary Public in
and for said County, personally appeared and to me
personally known, who being duly sworn, did say that they are the Mayor and City Clerk,
respectively of the City of Iowa City, Iowa, a Municipal Corporation, created and existing under
the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of
said Municipal Corporation, and that said instrument was signed and sealed on behalf of said
Mllllicipal Corporation by authority and resolution of its City Council and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation
by it voluntarily executed.
Notary Public in and for the State of Iowa
36
EXHIBITD
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Iowa City, Iowa (the "City") and (the
"Developers"), did on or about the _ day of , 2017 make, execute and
deliver an Agreement for Private Development (the ''Agreement''), wherein and whereby the
Developers agreed, in accordance with the terms of the Agreement and the City-University
Urban Renewal Plan (the "Plan'j, to develop certain real property located within the City and
within the City-University Urban Renewal Area and as more particularly described as
--------------~ Original Town. Iowa City, Iowa ("Development
Property"); and
WHEREAS, the tenn of this Agreement shall commence on the and --terminate · and
WHEREAS, the City and Developers desire to record a Memorandwn of the Agreement
referring to the Development Property and their respective interests therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. That the recording of this Memorandum of Agreement for Private Development
shall serve as notice to the public that the Agreement contains provisions restricting development
and use of the Development Property and the improvements located and operated on such
Development Property, and further subjects the Development Property to a Minimum
Assessment Agreement entered into 1mder the authority of Iowa Code Chapter 403, in which the
City and Developers (and any successors or assigns) agree that, as of January 1, 2020, a full
assessment shall be made fixing the minimum actual value of the Development Property and all
improvements located thereof for calculation of real property taxes at not less than $16,709,195
after talcing into consideration any factors such as "roll-backs" which would reduce the taxable
value of the property; and that certain condominium units located within development be
dedicated to particular uses.
2. That the Agreement imposes certain affurdable housing requirements as set forth
therein, for a period of 20 years beginning on the date a c.ertificate of occupancy is issued for the
property legally-described as: --------------------
-------------·-· ·-----·--------
3. That all of the provisions of the Agreement and any subsequent amendments thereto, if
any, even though not set forth herein, are by the filing of this Memorandum of Agreement for
Private Development made a part hereof by reference, and that anyone making any claim against
any of said Property ~ any manner whatsoever shall be fully advised as to all of the terms and
conditions of the Agreement, and any amendments thereto, as if the same were fully set forth
herein.
37
4. That a copy of the Agreement and any subsequent amendments thereto if any,
shall be maintained on file for public inspection during ordinary business hours in the office of
the City Clerk, City Hall, Iowa City, Iowa.
IN WITNESS WHEREOF, the City and the Redeveloper have executed this
Memorandum of Agreement for Private Redevelopment as of the fl!!!_ day of &pf-, 2017.
CITY OF IOWA CITY, IOWA
*/.54,-By:
Mayor
ATTEST:
By:~--·-/(_·~.
38
Benjamin Kinseth, Manager
HS314, L.L.C.
<
BY: 'YYL~
MichaelHge,Manager
STATE OF IOWA )
) ss
COUNTY OF JOHNSON )
. On this l 9 day of 5~eC, 2017 before me a Notary Public in and for
said County, personally appeare~d ~i),I; "J"o me personally known, who
39
being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of
Iowa City, Iowa, a Municipal Corporation, created and existing under the laws of the State of
Iowa, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed
of said Municipal Corporation by them voluntarily executed.
STATE OF IOWA
COUNTY OF JOHNSON
STATE OF IOWA
COUNTY OF JOHNSON
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
)
)SS
)
)
)SS
)
This instrument was acknowledged before me on this At\') day 0~2017, by
Michael Hodge, as Manager of HIERONYMUS SQUARE DEVELOPERS, L.L.C.
40
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
/'
This instrument was acknowledged before me on this fll day o~~.ht..r, 2017, by John
Hieronymus, as Manager of HIERONYMUS SQUARE filVELOPER , L.L.C.
i DLCHELf o,Cll13 lUk ~ o ~ o,a-:-=EJIP!la Notary Public in and for the statoflowa ~ .•.. -Apf17,""•~
STATE OF IOWA
COUNTY OF JOHNSON
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
)
)SS
)
This instrument was acknowledged before me on this f'\ day of~2017, by Kevin
Digmann, as Manager of ofIOW A CITY ES HOT L, L.L.C . .S-.\ KIR81EN H, ~ ! . My · of Iowa
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was aclmowledged before me on this A day of~mbY, 2017, by
Michael Hodge, as Manager of of IO Y S HOTEL, L.L.C.
4.b:(a)
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this \~ day o~,r2017, by
Michael Hodge, as Manager of HS314, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
otary Public in and for t e State of Iowa
)
)SS
)
This instrument was acknowledged before me on thisfL day obpk.,.-IJl.V-, 2017, by John
Hieronymus, as Manager ofHS314, L.L.C. •
DLCHELF i :\ Coi,1,d11lan Nu,nbel' 010213
:& • ..., OommlNi'Dn ~
• '"')' April 7 I 2020
STATE OF IOWA
COUNTY OF JOHNSON
Notary Public in anclfore Stat~
)
)SS
)
This instrument was acknowledged before me on this .f~ day of "*~Y,"2017, by
Benjamin Kinseth, as Manager of HS314, L.L.C .
.-1'-'Ai" Amel .. Rand.. , ~, h ~.\ CormilliClnNumblJ,7111. ~ ~ • ,. C0111c111100 ~ NotaryPublicina fortheState of Iowa
40(c)
KENNEDY, CRUISE, FREY & GELNER, L.L.P.
MICHAEL W. KENNEDY
KIRSTEN H. FREY
KANDIE K. GELIIIER
City of Iowa City
410 E. Washington Street
Iowa City, Iowa 52240
ATTORNEYS AT LAW
920 S. DUBUQUE STREET• P.O. BOX 2000
IOWA CITY, lOWA 52244
TELEPHOIIIE (318) 351-BIBI
FAX (3191 351-0605
EXHIBIT E
OPINION OF COUNSEL.
MARCUS M. MILLS
ZACHARY R. DAVELAAR
KATHERIN£ E. OTTO
RE: Agreement for Private Development by and among the City of Iowa City, Iowa,
Hieronymi Partnership, L.L.P., Hieronymus Square Developers, L.L.C., Iowa City ES Hotel,
L.L.C. and HS314, L.L.C.
Dear City Representatives:
I have acted as counsel for Hieronymi Partnership, L.L.P., Hieronymus Square
Developers, L.L.C., Iowa City ES Hotel, L.L.C. and HS3I4, L.L.C. (collectively the
"Developers''), in connection with the execution and delivery of a certain Agreement for Private
Development (the "Development Agreement") between the Developers and the City of Iowa
City, Iowa (the "City") dated as of 2017.
I have examined the original certified copy, or copies otherwise identified to my
satisfaction as being true copies, of the following:
(a) The organization and operating agreements of the Developers;
(b) Resolutions of the Developers at which action was taken with respect to
the transactions covered by this opinion;
( c) The Development Agreement;
and such other documents and records as I have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as I have
deemed appropriate, I am of the opinion that:
1. The Developers were duly organized and validly exist as a limited liability
partnership and limited liability companies under the laws of the State of Iowa and are qualified
to do business in the State of Iowa. The Developers have full power and authority to execute,
deliver and perform in full the Development Agreement; and the Development Agreement was
duly and validly authorized, executed and delivered by the Developers and, assuming due
authorization, execution and delivery by the City, is in full force and effect and is a valid and
legally binding instrument of the Developers enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally.
2. The execution, delivery and performance by the Developers of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any provision
of, or in default under, the articles of organization and operating agreement of the Developers or
any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute,
rule, regulation or restriction to which the Developers are a party or by which it or its property is
bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting the Developers 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 the Developers or which in any manner raises any questions affecting the validity of the
Agreement or the Developers' ability to perform their obligations thereunder.
Kirsten H. Frey
42
EXlllBITF
MINIMUM ASSESSMENT AGREEMENT
, THIS MINIMUM ASSESSMENT AGREEMENT, dated as of this / 9-dJ day of
t.5e_~mhe..r , 2017, by and among the CITY OF IOWA CITY, IOWA, ("City");
HIBRO PARTNERSHIP, L.L.P., an Iowa limited liability partnership; HIERONYMUS
SQUARE DEVELOPERS, L.L.C., an Iowa limited liability company, IOWA CITY ES HOTEL,
L.L.C., an Iowa limited liability company, and HS314, L.L.C., an Iowa limited liability company
(hereinafter collectively "Developers"), and the CITY ASSESSOR of the City of Iowa City,
Iowa(" Assessor").
WITNESSETII:
WHEREAS, it is contemplated that the Developers will undertake the development of an
area ("Project") within the City and within the "City~University Urban Renewal Area," as
amended; and
WHEREAS, the City is making a significant grant of funds to the developer which will
allow the Developer to construct the Project; and
WHEREAS, the City will be reimbursed for such grant from the property tax revenues
generated from the Project~ and
WHEREAS, pursuant to Iowa Code section 403.6 (2017), as amended, the City and the
Developer desire to establish a minimum actual value for the land legally described in Exhibit A
to the Agreement for Private Development; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements to be erected as a part of the development;
NOW, TIIEREFORE, the parties to this Minimum Assessment Agreement, in
consideration of the promises, covenants and agreements made by each other. do hereby agree as
follows:
1. As of January 1, 2020, a full assessment shall be made fixing the minimum actual
taxable value for assessment purposes for the land and Minimum Improvements to be
constructed thereon by the Developers at not less than $16,709,195 after taking into
consideration any factors such as "roll backs" which would reduce the taxable value of the
property ("Assessoes Minimum Actual Value"). The parties hereto acknowledge and agree that
construction of the Minimum hnprovements will be substantially completed on or before
December 31, 2019.
2. The Developer contemplates that a portion of the Project will be residential
condominiwn units which will be subject to the property tax "roll-back" referred to previously.
43
Developers agree that at the time of the execution of the declaration required by Chapter 499B
Horizontal Property (Condominiums) of the Code of Iowa (2017) an attachment to the
declaration will be executed by the Redeveloper, the City and the City Assessor allocating a
portion of the Minimum Actual Value to each unit.
3. Developers agree that the difference between the Minimum Actual Values (as
adjusted pursuant t.o paragraph 2 hereof) and the amount allocated to tb.e residential
condominium units (as set forth in paragraph 2 hereof) will be allocated to the remainder of the
Project.
4. The Minimum Actual Values (as adjusted pursuant to paragraph 2 hereof) herein
established shall be of no further force and effect and this Minimum Assessment Agreement
shall terminate on December 31, 2034.
Nothing herein shall be deemed to waive the Developers' rights under Iowa Code section
403 .6(19) (2017), as amended, to contest that portion of any actual value assignment made by the
Assessor in excess of the Minimum Actual Values ( as adjusted pursuant to paragraph 2 hereof)
established herein. In no event, however, except as set forth paragraph 2 hereof, shall the
Developers seek to reduce the actual value assigned below the Minimum Actual Value (as
adjusted pursuant to paragraph 2 hereof) established herein during the term of this Agreement.
5. This Minimum Assessment Agreement shall be promptly recorded by the
Developer with the Recorder of Johnson Cotmty, Iowa, at Developer's expense.
6. Developer has provided a title opinion to the City listing all lienholders of record
as of the date of this Assessment Agreement and all such lienholders have signed consents to this
Assessment Agreement, which consents are attached hereto and made a part hereof.
7. Neither the preambles nor provisions of this Minimum ABsessment Agreement are
intended to, nor shall be construed as, modifying the terms of the Agreement for Private
Development between the City and Developers.
8. This Minimum Assessment Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the parties.
By:
CITY OF IOWA CK IOWA ~~70--
ATIEST:
44
HIERONYMUS SQUARE DEVELOPERS, L.L.C.,
Benjamin Kinseth, Manager
row A CITY ES HOTEL, L.L.C.
45
HS314, L.L.C.
Benjamin Kinseth, Manager
STATE OF IOWA )
) ss
COUNTY OF JOHNSON )
On this l 9 day of ~±cwJu ~ , 2017 b~fore me a Notary Public in and for
said County, personally appeare~~~d ~'ij ;~, to me personally known, who
being duly sworn, did say that they are ~ayor and City G~k, respectively, of the City of
Iowa City, Iowa, a Municipal Corporation, created and existing under the laws of the State of
Iowa, and said Mayor and City Clerk acknowledged said instrument to be the free act and deed
of said Municipal Corporation by them voluntarily executed.
lit=~ ~~~ 5 µ~~
1~ Publiand for the Stat~
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged be~re me 'll1 this Jg_ day of~,Jo. ~,-, 2017, by :lo hn B-,u~l'\~nuJ.S , as .,.i41'j ~ ofHIERONY~ERSHIP, L.L.P.,
DLCHELf ~~ Co,111,iltlan ..,....010213
s • ~ My Co,t1u1&1lm &pillle • APri1 7, 2020
46
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this J1_ day of ~fw,.tW,2017, by Kevin
Digmann, as Manager of HIERONYMUS SQUARE DEVELOPERS, .L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
State of Iowa
This instrument was acknowledged before me on this \~-tb day ofS!.@~017, by
Michael Hodge, as Manager of HIERONYMUS QUARE DEVELOPERS, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
COUNTY OF JOHNSON
)
)SS
)
)
)SS
)
46(a)
!"'-
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this \C\-tt:l. day of~·fti\~, 2017, by Kevin
Digmann, as Manager of ofIOWA CITY ES HOTEL, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this P\ day 0~~2017, by
Michael Hodge, as Manager of of IOWA CITY E HOTEL, L.L.C.
f~\ IO~STEN H. FREY
·•· ~. 1Q!I
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
State oflowa
This instrument was acknowledged before me on this B_ day of ~e.r-, 2017, by John
Hieronymus, as Manager of oflOW A CITY ES HOTEL, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
o \ Commuio1'1Numblr7911e& •'I; Amelia Rand.
! • My Cormlillion e.plMI Ju 22,2018
l~
Notary Public in and for the ~wa
)
)SS
)
Notary Public in and for the State of Iowa
46(b)
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this J1__ day of Sp~W';2017, by Kevin
Digmann, as Manager ofHS314, L.L.C.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
e State of Iowa
-t'1 This instrument was acknowledged before me on this \0\ day of~ ~O 17. by
Michael Hodge, as Manager of HS314, L.L.C.
COUNTY OF JOHNSON
)
)SS
)
ate of Iowa
Ibis instrument was acknowledged before me on this J!l_ day o~, 2017, by John
Hieronymus, as Manager ofHS314, L.L.C.
o.LcKELF o1oz13 ~
:;~ ~~expll99 . ~ • MW ~1.2020 --------~~~-----Notary Public in and for the State flowa
STATE OF IOWA )
)SS
COUNTY OF JOHNSON )
Ibis instrument was acknowledged before me on this ~ay of ${,pnvhu;zo 17, by
Benjamin ~~ as Manager ofHS314, L.iM.,.~
Notary Public in and for the State of Iowa
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Mininunn
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed for the development, and being of the opinion that
the minimum market value contained in the foregoing Minimum Assessment Agreement appears
reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible for
the assessment of the property subject to the development, upon completion of Minimum
Improvements to be made on it and in accordance with the Minimum Assessment Agreement,
certifies that the actual value assigned to such land, building and equipment upon completion of
the redevelopment shall not be less than $ after ta.king into consideration any
factors such as ''roll-backs" whi.ch would reduce the taxable value of the property. Of this
amount, Dollars ($ is
determined to be the value of the land and Dollars
($ the value of the buildings thereon until tennination of this Minimum
Assessment Agreement pursuant to the terms hereof.
Assessor for Iowa City, Iowa
Date
STATE OF IOWA )
)ss:
COUN1Y OF JOHNSON )
Subscribed and sworn to before me by ___________ ~ Assessor for
Iowa City, Iowa.
Notary Public in and for Johnson County, Iowa
Date
47
EXHIBITG
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
FOR USE OF (STAGING PROPERTY} AND A PORTION OF THE COURT STREET
TRANSPORTATION CENTER
This Temporary Construction Easement Agreement is made on this day of
--------' 2017, by and among the CITY OF IOWA CITY, IOWA, ("City");
HIERONYMI PARTNERSHIP, L.L.P., an Iowa limited liability partnership; IDERONYMUS
SQUARE DEVELOPERS, L.L.C., an Iowa limited liability company, IOWA CITY ES HOTEL,
L.L.C., an Iowa limited liability company, and HS314, L.L.C., an Iowa limited liability company
(hereinafter collectively "Developers")
WHEREAS, Hiemoymi Partnership, L.L.P is the fee owner of certain real estate addressed as
---~---and legally described ("Development Propertt');
and
WHEREAS, the City of Iowa City is the fee owner of certain real estate legally described as
---------("Staging Property''); and
WHEREAS, Developers and the City have entered into an Agreement for the Private
Development of said Development Property, with a memorandum of said agreement having been
recorded with the Johnson County Recorder in Book___, Page_ on 20 _;
WHEREAS, Developers have requested the City permit the temporary private use of the certain
portions of the Staging Property and the Court Street Transportation Center parking facility, all as
shown on the Exhibit A, attaclied hereto and in001porated herein by this reference; and
WHEREAS, the City of Iowa City, Iowa, is responsible for the care, supervision, and control of
public property; and
WHEREAS, the Public Works Director has reviewed the requested private use, and finds that the
impacts on nnmicipal functions will be manageable, and also finds that such temporary private
uses is in the public interest; and
WHEREAS, the Director of Transportation Services has reviewed the requested temporary private
use of the Staging Area and the Court Street Transportation Center parking facility, and finds that
with certain conditions to mitigate the loss of parking spaces in the Court Street Transportation
Center, such request is reasonable.
NOW, THEREFORE, IN MUTUAL CONSIDERATION OF THE PROMISES HEREIN, THE
PARTIES HERETO AGREE AS FOLLOWS:
48
l. In consideration of the City's pennission herein to temporarily close a portion of a City
property during construction of the project detailed in the above-described Development
Agreement, Developers agree to:
a. secure the temporary easement area shown in Exln."bit A against vehicular or pedemrian
traffic by providing adequate pedestrian passage, adequate traffic control, by providing
adequate sipge, and by securing all open excavations from pedestrians, thereby ensuring
public safety.
2. In consideration of Developers' promises herein, the City agrees to allow Developers to
temporarily fence and close that area shown on Exhibit A pursuant to the limitations set forth
in this easement agreement and the Agreement for Development.
3. Developers agree t.o provide, keep in place, and maintain in good working condition
certain fencing and sigtiage necessary to do the following:
a. route pedestrians through or around the closed area as approved by the City during
construction;
b. provide adequate advance warning of such closure; and
c. provide for the orderly and predictable movement of traffic.
All signage shall be in accordance with the Federal Highway Administration Manual on
Uniform Traffic Control Devices.
4. Developers shall be responsible for the removal, storage, and replacement of items located
within the easement which could be damaged during the construction. ltems include, but are
not limited to, sign.age, parking gates, benches, bricks, planters, downspouts, lighting and
electrical services.
5. Developers agree to indemnify, defend and hold the City harmless against any and all
claims for bodily injury, death or property damage arising out of their actions and use of the
public property under this Agreement, and those of their contractors, subcontractors, agents,
employees and assigns specifically including any and all claims and/or liabilities which may
be alleged against the City as a result of its decision to allow Developers to temporarily close
a portion of public property described herein. Developers further agree to carry Class II
liability insurance in the minimum amounts of $500,000 each occurrence, $1 million
aggregate bodily injury, and $250,000 aggregate property damage with contractual liability
coverage included. Developers shall furnish a certificate of insurance evidencing said valid
insurance coverage to City, which certificate must be satisfactory to the City. Developers
shall submit a certificate of insurance to the City prior to the commencement of construction.
6. lfDevelopers fails to restore the easement area to the City's satisfaction as required in this
Agreement, the City may restore the easement area, and the cost thereof shall be billed to
49
Developers for payment to City. Upon Developers' failure to pay said billing, the removal
costs shall be certified to Johnson County as a statutory lien and assessed against the property
and collected in the same manner as a property tax, as provided in Section 364.12(2)(e), Iowa
Code (2017).
7. City and Developers agree this Temporary Agreement shall remain in effect until
completion of the Project and restoration of the easement area pursuant to Section 6 herein,
with an anticipated commencement and completion date as set forth in 2.4 of the
Development Agreement descdbed above.
8. Notwithstanding the above, Developers agree to cease and desist their temporary use and
closure of the easement area and to remove any and all obstructions from said easement area
in the event of a breach of this Agreement.
9. Developers acknowledge and agree that no property right is conferred by this grant of
permission to use the easement area.
10. This Agreement shall constitute a covenant running with the land, and shall be binding
upon and shall inure to the benefit of the respective heirs, successors in interest, and assigns
ofboth parties.
11. Thls Agreement for Temporary Construction Easement shall be recorded in the Johnson
County Recorder's Office, at Developers' expense.
50
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EXHIBIT I
TEMPORARY USE OF RIGHT-OF-WAY AGREEMENT
This Agreement is made by and between hereinafter "Developers" and the City of
Iowa City, Iowa, a municipal corporation, hereinafter referred to as "City."
WHEREAS, Developers are the fee owner of certain real estate addressed as 711 S. Gilbert Street,
Iowa City, Iowa; and
WHEREAS, Developers are undertaking construction of a hotel and mixed use building on the
property, and have requested the right to install certain temporary intrusions into the public right-
of-way; and
WHEREAS, the City of Iowa City, Iowa is responsible for the care, supervision, and control of
public right-of-way; and
WHEREAS, the Department of Public Works has reviewed the proposed temporary use of the
right-of-way, and finds the temporary use is not structural, is a minimal intrusion into the public
right-of-way, and also finds that such temporary use is in the public interest
NOW, THEREFORE, IN MUTIJAL CONSIDERATION OF THE PROMISES HEREIN, THE
CHAUNCEY AND THE CITY AGREE AS FOLLOWS:
1. fu consideration of the Citys permission herein to temporarily use of that portion of City
right-of-way for the Project described above, Developers agree to maintain adequate
pedestrian passage, traffic control, and signage as may be necessary to reasonably ensure
public safety.
2. In consideration of Developers' promises herein, the City agrees to allow Developers to
temporarily use that portion of the right-of~way shown on the attached exhibit for the
purpose of constructing the Minimwn Improvements described in the Developer's
Agreement executed by and among the parties hereto on or about 2017,
recorded in Book ____, Page in the records of the Johnson County, Iowa
Recorder's Office.
3. Developers shall be responsible for the removal, storage, and replacement of items located
within the right-of-way which could be damaged during the construction of such temporary
uses. Items include, but are not limited to, downspouts, electrical services, sipge and
sidewalks.
4. Developers agree to indemnify, defend and hold the City harmless against any and all
claims for bodily injury, death or property damage arising out of its actions and use of the
public right-of-way under this agreement, and those of its contractors, subcontractors,
agents, employees and assigns specifically including any and all claims and/or liabilities
which may be alleged against the City as a result of its decision to allow Developers to
51
temporarily close a portion of right-of-way adjacent to their property as described herein.
Developers further agree to carry Class II liability insurance in the minimum amounts of
$500,000 each occurrence, $1 million aggregate bodily injury, and $250,000 aggregate
property damage with contractual liability coverage included. Developers shall furnish a
certificate of insurance evidencing said valid insurance coverage to City, which certificate
must be satisfactory to the City. Developers shall submit a certificate of insurance to the
City prior to the commencement of construction of the temporary uses contemplated
herein.
5. After the cons1ruction is complete, Developers agrees to restore any and all portions of the
right-of-way substantially to its original condition. If Developers fails to restore the right-
of-way to the City's satisfaction as required in this paragraph, the City may restore the
right-of-way, and the cost thereof shall be billed to Developers for payment to City. Upon
Developers' failure to pay said billing, the removal costs shall be certified to Johnson
County as a statutory lien and assessed against the property and collected in the same
manner as a property tax, as provided in Section 364.12(2)(e), Iowa Code (2017).
6. Developers agree to cease and desist its temporary use and/or closure of the public right-of-
way and to remove any and all obstructions from said right-of-way at any time upon the
occurrence of any one of the following events:
a. a breach of this agreement;
b. the use of the property changes and/or the temporary use of the public right-of-way is
no longer needed or appropriate, as determined by the City;
c. within thirty (30) calendar days after the City gives written notice of removal to
Developers.
7. If Developers fail to remove any obstructions, barricades or signage from the public right-
of-way as required in this agreement, the City may remove the obstructions, barricades or
signage, and the cost thereof shall be billed to Developers for payment to City. Upon
Developers' failure to pay said billing, the removal costs shall be certified to Johnson
County as a statutory lien and assessed against the property and collected in the same
manner as a property tax, as provided in Section 364.12(2)(e), Iowa Code {2017).
8. Developers acknowledge and agree that no property right is conferred by this grant of
permission to use the public right-of-way; that the City is not empowered to grant a
permanent use of its right-of-way for private purposes;
9. This Agreement shall constitute a covenant running with the land, and shall be binding
upon and shall inure to the benefit of the respective heirs, successors in interest, and assigns
of both parties.
52
10. This Agreement for Temporary Use of Public Right-of-Way shall be recorded in the
Johnson County Recorder's Office, at Developers' expense.
Dated this __ day of ______ _, 20_
CITY OF IOWA CITY
Geoff Fruin, City Manager
Approved by;
City Attorneys Office
STATE OF IOWA
JOHNSON COUNTY
DEVELOPERS
By:-------------
CITY ACKNOWLEDGMENT
On this __ day of 20_, before me, the undersigned, a Notary Public in and
for the State of Iowa, personally appeared Geoff Fruin, to me personally known, and, who, being
by me duly sworn, did say that he is the City Manager of the City of Iowa City, Iowa; that the
foregoing instrument was signed on behalf of the City of Iowa City, by authority of its City
Council, and that he acknowledged the execution of tbe instrument to be his voluntary act and
deed and the voluntary act and deed of the City, by it voluntarily executed.
Notary Public in and for the State of Iowa
My commission expires:
DEVELOPERS' ACKNOWLEDGMENT
STATE OF IOWA l ss:
JOHNSON COUNTY
This instnunent was acknowledged before me on this __ day of ____ 20 _, by
and as members of ___ ... -·
Notary Public in and for the State of Iowa
53
EXHIBIT J
AFFORDABLE HOUSING USE DEED RESTRICTION
[.if owner-occupied affordable housing, insert legal description of the specific units to be
designated as "affordable housing". If affordable rental units, insert legal description of the
entire property]
1. The above-described property is subject to affordable housing use restrictions set forth in Iowa
City Code of Ordinances 14-2G-8 and an Agreement for Private Developmen~ entered into on or
about 2017 between City and reoorded in
Book__, Page __ of the reoords of the Johnson County, Iowa Recorder.
2. The parties acknowledge that said Agreement is a covenant running with the land and with
title to the land, and shall remain in full force and effect as a covenant with title to the land. The
City is benefited by the above-described affordable housing use restrictions, and thus must
approve any sale of the property upon its detennination that the sale complies with the sale
restrictions set forth in Iowa City Code of Ordinances 14-2G-8D-2(d), as may be amended from
time to time.
3. The above-described use restrictions terminate on (20 years ----------from issuance of CO).
54
EXHIBITK.
WAGE THEFT AFFIDAVIT
STATEOFIOWA )
) ss:
JOHNSON COUNTY)
I, ______ __. upon being duly sworn, state as follows:
1. I am the of ("Developer'') and have
the authority to execute this affidavit on behalf of said Developer and any person or
entity with an ownership interest in said Developer of more than 25%.
2. Neither Developer nor any person or entity with an ownership interest of more than
25% of Developer has been adjudicated guilty or liable in any judicial or
administrative proceeding of committing a repeated or willful violation of the Iowa
Wage Payment Collection law, the Iowa Minimum Wage Act, the Federal Fair
Labor Standards Act or any comparable state statute or local ordinance, which
governs the payment of wages in the last 5 years.
This instrument was aclmowledged before me on this_ day of _____ _, by
as of --------------------
Notary Public in and for the State oflowa
55
EXHIBITL
Iowa C£ty Riverfront Crossings
Affordab!e Housing Requirement
Administrative Rules
Adopted August 22, 2017
The Iowa City City Council adopted Ordinance 16-4668 on July 5, 2016 to establish an
Affordable Housing Requirement in certain areas of the City. Those requirements are
codified in Iowa City Code of Ordinances 14-2G8. Pursuant to 14-2G-8(1), the City
Manager does hereby establish rules deemed necessary and not inconsistent with 14-
2G-8 to assure that the purposes of the Affordable Housing Requirements are
accomplished. These Administrative Rules shall be placed on file with the City Clerk
and made available on the City of Iowa City website.
I, General Requirements
Rezoning
Upon rezoning property to a Riverfront Crossings zoning designation, the owner will be
required to enter Into an agreement with the City to indicate which method or methods It
will use to achieve the affordable housing requirement. Typically this agreement will
take the form of a conditional zoning agreement. which must be executed prior to the
close of the public hearing on the rezoning.
Subdivision
Upon subdividing property in the Riverfront Crossings District, ff there is no zoning
agreement Indicating the method or methods the owner will use to achieve the
affordable housing requirements, such indication shaJI be made in the Developer's
Agreement executed contemporaneously with the final plat approval.
Building Permit
Contemporaneously with an application for a building permit, an owner or developer
shall complete the "Application Regarding Riverfront Crossings Affordable Housing
Requirement", attached hereto as Exhfbit A. This application shall be filed with
Neighborhood Development Services (NOS) with the application for the building permit.
NOS will process this application along with the building permit application, so that the
building pennit and an affordable housing agreement can be entered into
contemporaneously. No building permit may be issued unless and until such an
agreement has been executed. The agreement shall take a fonn substantially similar to
that attached hereto as Exhibit B. The City Manager has the authority to execute this
56
agreement, which shall be recorded in the Johnson County Recorder's Office pursuant
to 14-2G-8(c).
II. On-Site Owner-Occupied Affordable Housing
Determining Income
The seller shall be responsible for determining the income of the prospective buyer's
household to determine eligibility for the affordable owner-occupied units before closing
on the sale. tf the sale does not close within six months after the Income-eligibility
determination has been made, the seller must re-examine the homebuyer's income.
The City's consent to the sale is required and will be granted upon the City's
confirmation that the buyer's household is income eligible and the purchase price
complies with the ordinance and these rules. At least 30 days prior to closing, after the
seller determines that the buyer is income-eligible, the seller must submit the requisite
income documentation to the Director of Neighborhood Development Services. The
Director or deslgnee will, within 5 business days of the submittal, review the
documentation, request any necessary additional documentation, and confirm or deny
the income-qualification detennlnation This confirmation or denial will be in writing sent
to the seller either via email or through the United States Postal Service at the seller's
discretion.
The seller and the City shall use the annual Income definition set forth in the HUD Part
5, Section 8 regulations found at 24 CFR 5.609, as amended, to detennine if the
household is income,.eliglble. The Part 5 definition of income is the gross amount of
income of all adult household members that is anticipated to be received during the
coming 12-month period. In performing its review of the income qualification, the seller
shall submit a completed "Calculating Part 5 Annual Income" (Exhibit C) detailing the
proposed buyer's income and shall provide the supporting documentation attached
thereto. Income-eligibility must be documented with source documents such as wage
statements (or three months of pay stubs), bank statements, letters from public
assistance agencies that identify assistance amounts (Social Security, welfare
assistance, etc.), and documentation of Income received in periodic amounts such as
from retirement funds or pensions.
Exhibit D provides a comprehensive list of Income that is included and excluded from
the calculations of annual income under Part 5. There is no asset limitation for the
household; however actual income from assets is recognized under the Part 5
definition, even if the household elects not to receive the income. For example, if a
household elects to reinvest the Interest or dividends from an asset, It Is still counted as
income.
Median income is based on HUD's HOME income limits for the Iowa City, IA HUD Metro
area, adjusted annually per household size (current limits identified in Exhibit F). Median
income Is based on ho\Jsehold size. If a household consists of a parent and child, it is a
57
two person household. If two unrelated adults share a household, incomes from both
must be included as they would be considered a two person household .
If the homebuyer Is a full-time student, the student is eligible if neither parent claims the
student as a dependent on their state or federal taxes. Documentation from both
parents must be submitted to verify, unless extenuating circumstances make such
production impossible.
Dwelling Unit Size and Quality
The affordable dwelling units must be comparable to the market rate units of the same
type. The affordable dwelling units shall be at least 80% of the floor area of the market
rate units. The affordable housing dwelling units should have the same number of
bedrooms and types of amenities as the market rate units, unless otherwise approved
by the C(ty Manager.
Location
The affordable housing units shall be distributed throughout the development to avoid
concentration of units, unless a different distribution will result in the provision of
additional affordable housing units. This may be approved on a case by case basis by
the City Manager. Should the City Manager agree to allow the affordable units to be
located together, a finding that such a concentration will result in the provision of
additional affordable housing units should be set forth in the Affordable Housing
Agreement. The additional affordable housing units created to allow this concentration
will be subject to the same use restrictions as any other required affordable housing unit
under 14-2G-8.
Sales Restrictions
For newly.constructed owner.occupied affordable housing units, the 2017 maximum
sale price Is $2141000, regardless of the number of bedrooms, which is based upon the
current HUD Homeownership Sales Price Limit for Johnson County. The maximum sale
price for subsequent sales of an qymer-occupied affordable housing unit during the tenn
of affordability (established in 14-~G-8) shall not exceed the original purchase amount
paid by the original homeowner or the HUD Homeownership Sales Price Limits for
Johnson County, IA, adjusted annually, whichever Is greater, except for those allowable
expenses set forth In 14-2G-8D(2)(d).
In all cases where an owner-occupied affordable housing unit is to be sold, the City
must approve the purchase price and the determination that the buyer is Income-
eligible. The seller must submit any and all documentation supporting the sales price to
the Director of NOS in a timely manner at least 30 days prior to closing In order for the
City to analyze the Information and properly consider the request prior to closing. In
determining whether to approve a sale price, the City will consider the following::
58
1) "Customary closing costs and costs of sale to be those Identified In the Iowa
closing disclosure statement, such as title services, appraisal, recording and
loan origination fees.
2) Permanent Capital Improvements. In cases where the homeowner has
installed capital improvements, the value of these improvements, as
documented by receipts and the building permit documents, may Increase the
sales price by the amount of the eligible improvement. A capital improvement
increases your home's value, while a non-eligible repair returns something to its
original condition. Replacing a countertop or bathroom feature would not be
considered an eligible capital improvement. An example of a capital
improvement would be the addition of a bathroom.
At least 30 days prior to closing, the seller must submit the requisite documentation to
support the sale price to the Director of NDS. The Director or designee will, within 5
business days of the submittal, review the documentation, request any necessary
additional documentation, and confirm or deny the sale price. This confirmation or
denial will be In writing sent to the seller either via email or through the United States
Postal Service at the seller's discretion.
Owners are cautioned about significant capital Improvements as the home must be sold
to an income eligible homebuyer under 110% of median income. If the price exceeds
the maximum HUD Homeownership Sales Price Limit, the potential number of income
eligible buyers may be reduced.
Ill. On-site Affordable Rental Housing
The initial income qualification process for on-site affordable rental housing shall be the
same process as set forth above for on-site owner-occupied affordable housing, except
that an owner must review the income qualifications for tenants occupying designated
affordable housing dwelling units annually to determine continued compliance. The
reexamination shall be completed annually and before execution of a lease renewal. For
lease renewals, the City will accept a copy of the most recent federal tax form (Form
1040) submitted by all adult members of the household, as income verification.
If the tenant is no longer income eligible, notwithstanding the location requirement set
forth in the Code and as approved by the Director of NDS, the next available unit with
the same bedroom size or larger in the project property must be rented to an income
eligible tenant.
The property owner shall submit an Annual Tenant Housing Report (Exhibit E) for the
designated affordable housing rental units. The report shaJI be submitted each January
30 for the preceding calendar year throughout the compliance period. At a minimum,
the report shall include the name of the household, unit number/address, lease dates
(most recent lease or renewal date), rent amount, number of bedrooms, size and
59
income of the household. Neighborhood Services staff shall verify compliance within 30
days and may request income documentation for all or a portion of the qualifying
tenants.
The property owner shall retain tenant income and rent for the most recent three years,
until three years after the compliance period.
Rental Rate
The monthly rate for the affordable housing units shall not exceed the HOME Fair
Market Rent, per applicable bedroom size, as published by HUD for the Iowa City, JA
HUD metro area, as adjusted annually. These rents may be found online at
www.icgov.org/actionplan under HOME Table of Income Guidelines and Fair Market
Rent (2017 rents Identified in Exhibit F).
IV. Off-Site Affordable Dwelling Units or Dedication of Land
If the owner desires to satisfy this obligation through off-site affordable housing or
through the dedication of land, the owner must establish that It would be infeasible to
provide the affordable units on-site or to provide a fee in lleu of the on-site units, as
reasonably determined by the City. If the owner is able . to establish this, the City's
determination must be reflected in the findings of the conditional zoning agreement.
If the property is not subject to a conditional zoning agreement already establishing the
method of achieving affordability and the owner desires to satisfy this obllgation through
off-site affordable housing or through the dedication of land, the owner must establish
that it would be infeasible to provide the affordable units on-site or to provide a fee in
lieu of the on-site units, as reasonably detennined by the City. If the owner is able to
establish this, the City's determination must be reflected in the findings of the affordable
housing agreement.
In reasonably determining whether an owner has established that providing the units
on-site or paying the fee in Heu thereof is not feasible, the City will consider such factors
as whether the cost of constructing the unit exceeds the current maximum sale price for
affordable units, as set forth in the Code of Ordinances, and whether the common
maintenance expenses each owner would be required to pay would be cost prohibitive
for income-qualified households.
The off-site affordable housing units may be satisfied by designating existing or newly
constructed dwelling units in the Riverfront Crossings District, as defined in Iowa City
Code 14-2G-2. as may be amended from time to time, as affordable dwelling units,
subject to the use limitations set forth in 14-2G-8 and herein.
V. Fee-in-Lieu Contribution
60
As of July 5, 2016, the City Council adopted a resolution setting the fee at $80,872 per
unit. The fee-in-lieu contribution shall be made prior to issuance of any building permit
for the development for which affordable housing is required pursuant to City Code 14-
2G-8 .
. Exhibits
A. Application Regarding Riverfront Crossing Affordable Housing Requirement
B. Affordable Housing Agreement
C. Calculating Part 5 Annual Income
D. Income Inclusions and Exclusions
E. Annual Tenant Housing Report Form
F. Table of Income and Rent Limits
61
•• • ~ J. ; ··:, •
• '.,.._ ~ i :• -•
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·--·-·---.......... ... Calculating Part 5 Annual Income CJTY Of JOWA CITY
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Signature of Agency Represontatlve
Name of Agency Determining Income for Household
Household Income
% of Median Income
Maximum Income Limit of Household
(See Affordable Housing Agreement): Clrcle: BO%
INCOME ELIGIBLE: Clrcle: Yee No
80% 110%
(Attac;t, supporting Income documentation to this fonn. Retain for three yeB/'8,)
Date
Reviaed 612712016
! • i. ~ : ~ :: ; .. '. ~ r~.: .·:: r ·:: ~ .. : ~,
fncome Inclusions and Excluslona
24 CFR 5.S09(b) and (c)
Example!! Included fn parentheaes have been added to the regulatory langoage fol' clarification.
llllCOME INCLUSIONS
(1) The fun amount, before any payroll ded41Gtlo,u, of wagea and salaries, OVO;riime pay.
commltslone, fees, tips and bonU$8', and other compenaatlon for per$onal servfcea;
(2) The oe1 incgme from oparatlgn af a business or profe&&lon. Expenditures for busJness expansion
or amortltatlon Of capltal Indebtedness &haR not be usecr aa deducttona In determining net lnccme.
An allowance fflr depreciation of assets used In a buslneas or prmesslon may be deducted, based
on mralght llne depreciation, 1111 provided In lntemal Revenue Service regutetton&. Any withdtaW&I
of cash or as.eeta from the operation of a business or pmfeaslon wlll be Included In Income, except
to tha e>dflnt the withdrawal la relmbun.ement of cash or anets lnwsted in the operation by the
family;
{3) Jntereat. dividend§. and other net lf)C:Ome of any kind from real or per&0nal property. Expenditures
for arnortlza11on of capHal lndebtedneA shall not be used as d&ductklns In determining net
Income. An allawal'IC19 for depreciation le permitted only ea authorized In paragraph (2) abcWe.
Any withdrawal of c:aah or assets from an Investment w!H be Included tn Income, except to the
extant the wlthckawaJ is reimbursement d cath or a.sets Invested by I.he fomJ!y. Whera the family
has net family eteets In exoess of $0,000, annual income shall Include the grnter of the actual
lncorne derilled from au net family qaetJ or a percentage of the value or such assets based on the
current passbook saving, rate,• determined by HUC;
(4) The full amourt of periodic arnouma ret:eNed from IOclal security, annuities. lnsUNJnce pollcl&1,
l'!ltiremant funda, penalona, dlsabllity or death benefits, and other slmllar types d pst1odlc recelphl,
Including a h.tmr,..um amount ot proe1>ec:tive monthly amountl for the delay~ etart of 1 .. periOdlo
amount (e.g .• Black Lung Sick btmltfita, V.:1terana Dleabloty, Dependent lndemntty CompensatiOn,
payments to the widow de serviceman ldlled in action). See paragraph (13) under Income
E,ccll.lalona for an exception to this paragnt?ll;""
(6) Payments in neu of earnings. such n unemployment, dl&ablllty compensation, wofkefJ
compensation, and severance pay, except 118 provided In paragraph (3} under Jncome Exclusions;·
(8} Wt,Jfpre Aulsla®f.
{a) Welfare asalstanca r.celved by lhe family.
{b) If the walfare esslBtanca payment Includes an amount speclticalty desiJneted for 11\eltet and
uti&tln that b 1ubJam to adjintment by the welfare uslltanc:e agency In accordance Wllh the
actual coat of shelter end utllltles. the amount of welfare assistance In~ k) be Included ••
HUD Occupancy HandbOok
Chsptsr 5: Determining lntolll$ & Caloula11ng Rent
income shall consist of.
{c) The amount of the allowance or grant exclusive of the amount speclfically deslgnJlted for shelter
or utilities; plus
(d) The maximum amount that the welfare aaalatance agency could In fact allow the family for
s~lter and utilitfes. If the famUy's welfare ualetance Is ratabty reduced from the standard of
need by applying a percentage, the amount calculated under thla paragraph Shall be the
amount resulting from one applJeatlc,n of the percentage.
(7) Periodic end determinable allowancea, such as alimony and ctllld sui:,port payme.nt&, end regularr
conlrfbutlons ot gifts received from organizations or from persona not reslding in the dwelffng; and
(8) AU regular pa,y. uectaf pay. and anowancm of o member of the Armed Forces, except as pl'Olllded
In paragraph (7) under Income Exclusions.
(9) For Section 8 programs only and as provided In 24 CFR 5.612, any financfel asslstence, In excess
of amounttl received for tuition, that an Individual receives under the Higher Education Act cf 1965
(20 U.S.C. 1001 et seq.), from private sources, or from an Institution of higher education {a• defined
under thi, Higher Education Aet of 1985 (20 U.S.C. 1002)), ehall bu coneide,ed Income to that
Individual, except that fiNU'ldal a&al&1ance described In this paragraph la not considered annual
Income for persons over the age of 23 wttt, dependent chfldren. For purposes ofthh. paragraph
"finenclal asal.rance" does not lnelude Joan proceedS for the purpose of determlning Income.
*(Note: Thie paragraph also does not apply to a student whc ls living with his/her parent.I who are
applying for or receiving Section 8 aaaletance.)•
INCOME EXLCUSIONS:
(1)
(2)
(3)
(4)
(6)
(8)
(7)
Income from employment of children (lncludl~ foster children) under the age of 18 yea";
Payments received for the care of foster children or foster adulta (usually persons with dlt$bilitlea
unrelated to the tenant famity, who are unable to llw alone);
Lum.,..um eddttrons to famlly assotis, such ea lnherttances, Insurance paymema (including
payments under health and accident Insurance and wortter's comp&naation), capital gains, and
settlement for personal or property 105888, except aa provided In paragraph (6) under lnccme
1ncluslon1;
Amounts recetved by the family thl!lt are specfflcally for, or In reimbursement of, the cost of medlcal
expenses for any family member;
Income of a ll\ltvln aide, • defined In Z.C CFR 6.403;
The fuU amount of student financial aBSistance paid directly to the student or to the educational
Institution (see Income lncluslons (9), aboV&, for atudMt& receiving section 8 1111sl8tanee);
The specfal pay to a family member aerving In the Anned Forcea who Is exposed to hostile fire
(e.g., in the past, i;pecial pay Included Operation Desert Storm)i
(BJ (a) · Amount& received under 1ralnlng programs funded by HUD (e.g., training received ullder
Section 3);
HUD Occupancy Handbook ____ ... ··-·-·--· 2 ----·--·--
Chapter S: Deteimining Income & Calclllating Rent
06/00
r 4960.3 REV~1_. _ _J
(b) Amounts racelved by a persan With a diaabfflty thet are disregarded for a limited time for
purposes of supplemental secor.fy Income ellglblllly and benefits because they are set-aside for
uee under a Plan to Attain Self-Sufficiency (PASS);
{c) Amounts received by a partlci)ant In other publicly a11isted programs that 818 •peelfically for or
In relmbU"*'1ent of out-of-poekel expensea lncum,ct (special equipment, clcthlng,
transportation, ctlltd care, etc.) and which are made aolely to allow participation In a apoclllc
program;
(d) Amount. received under a reeldent service ltipend. A realdent ssrvtce stipend r, a modest
amount (not to exceed $200 per month) received by a realdent ror performing a service ror the
owner, on a psrt..timt baala, that enhencea the quality of llfe In the pR)Jeal Such sffifcea may
tnelude, but are not limited to, ftf19 patrol, ha.II monltorfhg, lawn maintenance, and resident-
Initiative ccordlnetlon. No l'Ulldent may receive more ~an one suet! stipend during the aame
period d time; or
(e) Incremental eemlnga and benefits resulting to any ramify member from partiCipe.tlon in qualifying
ltate Of local employment training program, (lncludln; training programs not affiliated with a
local government) and training of a fam!ly member aa a resident management staff person.
Amount.a •xdl.lded by this provhllon muet be recel\led under employment tllllnlng pll)grams with
cl•,uty defined goal& and obj9Cllvea, and are excluded onJy for the period during which the
famUy member partlclpatet In the employment training pmgram.
(9) Temporary, nonrecurring, or aporedlc lneome (lticludlng gifts);
(10) Reparation payments paid by • foreign 9ovemment puniuant to ciarma flied under the law& of that
government l)y pertons who were p8111eculed durirQ the Nazi era. (Examples include payments by
the Gemlan and Japane11e govemmenta for atroc!Ue• ccmrnitted during the Nazi era);
(11) Eamlngs In excen of$480foreaeh full.time atudent 18 yea111 orokfar (excluding Iha head of
household and spouse);
(12) Adoptton assistance paymenta In excea.s of $480 per adopted child;
(13) Oeferred periodic amounts from aupplemental security Income and social eec:unty benefJts that a~
received In a lump-sum amount or In prospective monthly amounts;
(14) Amount, received by the famlt)' it the form of refundS or rebatea under sta1a or local law for property
taxea pale! on the dWelllng unit;
(1ti) Amountl paid by a state agency to a famlly with a member Who has a deVeloprnentel dillabldty ana 18
living al home to afflet the coat of services and equipment needed to keep the developmentafty
dl11abled family member et horn&; or
( 18) Amounta apeclflcalty e:xclUded by any other federal lltatute from con11deratlon as Income for purp0881
of detonnlnlng eliglblftty or benefn under a i.ategury of a111l11anoe programs thllt lncludaa ualltanca
under any program to which the exclutlont set forth fn 2.4 CFR 5.609(c) apply. A notice wll be
publl$hed In the Federal RGQJsterend dlltributed to houalng owner1 Identifying the benerts that quflllfy
for this exclusion. Updates wlll be published and distributed when necessary.
HUD Occupanoy Handbook 3 001ur---
Chapter 6: Delerminlng Income & Calculatlng Rent
[ 4350.3 RE~~ _.=]
-==-a a s-
The following Is a list of income sources that qualify for that excluslon:
(a} The value of the allotment provided to an ellglbla household under the Food S1amp Act of 1977 (7 u.s.c. 2017 [bl);
I i l
(b) Payments to Volunteere undor the Domestic: Volunteer Services Act of 1973 (42 u.s.c. 5044(g), I
5058) (employment through ARleriCorpe, Volunteers In Servtce to America [VISTAJ, RetlTBd Senior
Volunteer Program, Foster Grandparents Program, youthful offender Incarceration eltamatlves,
senior companions);
(c) Payments recei\led under the Alaalul Natrve Claims Settlement Act (43 U.5.C. 1628{c])
(d) Income dertved from certain aubmarglnal land r:I the United States that 18 held In trust for certain
Indian trlbets (25 u.s.c. 459a):
(e) Payments or allowances made undef the Department of Health and Human Services' Low,,Jncome
Home Energy Assistance Program {42 U.S.C. 8824[f]);
(f) Payments received under programa funcfed In Whole or In part under the Job Training Partnership
/>d. (29 U.S.C. 1552(b); (affective July 1, 2000, raferenoes to Job Training Partne11hlp Ac.1 sh8U be
deemed to refer to the corresponding provlalon of the Worf<force lnvastment Act of 1998 (29 u.s.c.
29311, e.g., employment and trainl~g program, for Nati~ Amer1cena and migrant and sea.onal
farm wort<er1, Job Corpa, veterans emptoyment programe. atate Job training program&, camer
Intern programs, Americorpa):
(g) Income derlved from the dlapoartlon of runds to the Grend Rivet Band of Ottawa Indians (Pub. L--
94-540, 90 Stat. 2603-04);
(h) The int $2, ODO of per capita es hares received front Judgment fund, awarded by 1he Indian Claims
Commission or the U. S. Cleirnt court and the internta of lndMdual lndlans In tru•t or reatrx:Md
landa, Jncluc:ilng the flnst $2,000 per year of Income recelved by indMduel lndlana from funds
deriwd from interests held In euch truet or restricted lands (25 U.S.C. 1407-1406);
(I) Amounts of ICholallhlps funded under title IV of the Higher Education AD. of 1965, lncludl"'1
.wards under federal work-&tudy programs or under the Bureau of lndlan Affairs student
aHlatance prog,ame (20 U.S,C. 1087uu):
(I) Paymants recelved from progl"Bms funded under 11tle V of the Older Americana AJ.;I. of 1985 (42
U.s.c. 3056[fJ), e.g., Green Thumb, Senior Aide., OlderAmertcan Community Servli;e
Employment Program;
(k) Paymerrts received on or after January 1, 1988, from the Agent Orange Settlement Fund or any
other fund establl1hed pursuant to the settlement in In Re Agenf...pmduct llablllty lltigatlon, M.D.L.
No. 381 (ED.N.Y.);
{I) Paymenbl received under tne Maine Indian Claims Settlement Act of 1980 (25 U.S.C. 1721);
(m) The value of any chllcf c:ara provided or arranged (or any amount received as payment for such
care or relmburaement fer coats incurred for euch cure) under 1he Chlld Cara and Developrnent
Block Gfant Act of 1990 (42 U.S.C. 986Bq);
(n) Earned Income wx credit (EJTC) refund p~menta received on or after January 1, 1991, Including
advanced earned lncom4:I credit payments (28 u.s.c. 3201);
(o} Payments by the lndtan Clalma Commlaslon to the Confederated Trlbea and Sanda of Yakima
Indian Nation or the Apache Trl>e of Meacalero Reservation (Pub. L. 95-433);
(P) Allat.tanceB, earnlnga, and paymanl!l to AmarlCorps participants under the National and
Community Service Act Of 1990 (42 u.s.c. 12837{dJ);
HUD Occupancy Handbo<ik 06l07
Chapter 5; Determining Income & Calculating Rent
I 4$50.S kt:~-1 -::=J
rr.;;.-;n, (q) -:~:r:=;;d 4u~de;;;;;:~~--;~;-;~ Chlki ;:.~;;;;;1~711~;11
~ who ia the chUd of a Vietnam veteran (38 U.S.C. 1805);
I' (,:) Any amount cf ctlme vlc:tim compensation (under the Victims of Crime Ac;t) recel\ied tht0ugh 11
!~ crime Victim aS81et8nce (or payment or relmbur11emenf tif the coat rl tueh asslatance) ea
, determined under the Victim• of Crime Ad. because of the commlaelon of a crime against the
,; applicant under the VICllms of Crime Act (42 U.S.C. 10802); and
L_:=::3
~~----~-·~ 2 •• ~.--.J
HUO Occupancy -l·iandbook
Chapter 5: Determlnlng Income & CulculaUng Rent
5 06/07
Annual Tenant Housing Report Fonn -0ue Janumy 30"' rorprealdlng c:al9nd11r,ar
Name, Phone Number & Emsll ~ Person OompJeang Fonn:
Property Addnln: Palled COIMd:
.,....,. ,, ZIH1' to 0--.. 31, 20'7
• Property owner: ~Nufflllll!'afllnlaper~
ttlt LDt-•Clll!nta--Told--~·-I Siu-cit
Unftt 8dnnl MOldllly MedlanlllCfflNI C• IM!llblnJ Rent
I
i
di.-
EXHIBIT~
' ! l -~=-•» ~~~~ ~qr~ ...,,. .• ~
CITY OF (OWA CITY
uew Da1II
I
I
I certify thlt ~ iuformatia.a. ab<m is. to ~ be&t of my :knowledge and beliat true. correct and comple. I am awam tbat the iDfummtion being provided .is subject m verifiaation by
tho City oflowa City.
Name (print) s~ Dldll
Zachary Davelaar
From:
Sent:
To:
Subject:
Attachments:
Julia,
Zachary Davelaar
Tuesday, September 19, 2017 3:37 PM
'Julia Ware'
FW: II property Ins for 2016
2016-06-15 e-filed Claim in Probate -Bank of America.PDF; 2016-06-03 Claim in
Probate -Verizon Wireless.PDF
Were you able to contact Bank of America and Verizon Wireless in order to pay these two claims of the estate? We need
to have them released before we can close the estate.
Please let me know if you have any questions or need assistance.
Thank you,
Zach
Zachary R. Davelaar
KENNEDY, CRUISE,
FREY & GELNER, L.L.P.
920 S. Dubuque Street
P.O. Box 2000
Iowa City, IA 52244
(319) 351-8181
(319) 351-0605 (fax)
*****************************************************************************
NOTICE: Because e-mail messages sent between you and Kennedy, Cruise, Frey & Gelner, L.L.P. are transmitted over the
Internet, neither Kennedy, Cruise, Frey & Gelner, L.L.P. nor its employees can ensure that such messages are secure.
You should be careful in transmitting information to Kennedy, Cruise, Frey & Gelner, L.L.P. that you consider
confidential. If you are uncomfortable with such risks, you may decide not to use e-mail to communicate with
individuals at Kennedy, Cruise, Frey & Gelner, L.L.P. This message is covered by the Electronic Communication Privacy
Act, 18 U.S.C. Sections 2510-2515, is intended only for the use of the person to whom it is addressed and may contain
information that is confidential and subject to the attorney-client privilege. It should also not be forwarded to anyone
else. If you received this message and you are not the addressee, you have received this message in error. Please notify
the person sending the message and destroy your copy.
Thank you.
-----Original Message-----
From: Zachary Davelaar
Sent: Thursday, June 22, 2017 2:24 PM
To: 1Julia Ware' <imjuliaware@yahoo.com>
Subject: RE: II property Ins for 2016
Julia,
Thank you for sending me these documents. Additionally, I have attached the Bank of America and Verizon claims that
need to be paid. I received a call from Kate McCall with Bank of America requesting an update on the estate. You can
reach her at 1-888-221-4299 for directions on where to send the payment and request a Release. You can contact DCM
Services at 1-866-591-3253 to pay the Verizon Wireless claim and request a Release.
1
Please let me know once these two claims and the Toyota claim have been paid. If you need any assistance with
contacting these companies, I would be more than happy to help.
Thank you,
Zach
Zachary R. Davelaar
KENNEDY, CRUISE,
FREY & GELNER, L.L.P.
920 S. Dubuque Street
P.O. Box 2000
Iowa City, IA 52244
(319) 351-8181
(319) 351-0605 (fax)
*****************************************************************************
NOTICE: Because e-mail messages sent between you and Kennedy, Cruise, Frey & Gelner, L.L.P. are transmitted over the
Internet, neither Kennedy, Cruise, Frey & Gelner, L.L.P. nor its employees can ensure that such messages are secure.
You should be careful in transmitting information to Kennedy, Cruise, Frey & Gelner, L.L.P. that you consider
confidential. If you are uncomfortable with such risks, you may decide not to use e-mail to communicate with
individuals at Kennedy, Cruise, Frey & Gelner, L.L.P. This message is covered by the Electronic Communication Privacy
Act, 18 U .S.C. Sections 2510-2515, is intended only for the use of the person to whom it is addressed and may contain
information that is confidential and subject to the attorney-client privilege. Jt should also not be forwarded to anyone
else. If you received this message and you are not the addressee, you have received this message in error. Please notify
the person sending the message and destroy your copy.
Thank you.
-----Original Message-----
From: Julia Ware [mailto:imjuliaware@yahoo.com]
Sent: Thursday, June 22, 2017 12:57 PM
To: Zachary Davelaar <ZDavelaar@kcfglaw.com>
Subject: II property Ins for 2016
2