HomeMy WebLinkAboutFoster signed DAAGREEMENT
FOR
PRIVATE DEVELOPMENT
By and Among
THE CITY OF IOWA CITY, IOWA,
FOSTER ROAD DEVELOPERS, LLC,
VINT AGE COOPERATIVE OF IOWA CITY,
and
EWING LAND DEVELOPMENT & SERVICES, L.L.C.
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Exhibit M
ExhibitN
Map of Urban Renewal Area
Legal Description of Urban Renewal Area
Legal Description of Development Property
Minimum Improvements and Uses
Planned Development Sensitive Areas Development Plan
Certificate of Completion
Enforceability Opinion
Temporary Construction Easement Agreement
Memorandum of Agreement for Private Development
Annual Certification
Certification of Qualified Costs and Expenses
Notice of No Tax Abatement Receipt
Wage Theft Affidavit
Minimum Assessment Agreement
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( THIS AGREEMENT FOR PRIVATE DEVELOPMENT is made by and among the City
oflowa City, Iowa ("City"), a municipality, established pursuant to the Code oflowa of the State
oflowa and acting under the authorization oflowa Code Chapter 15A and 403 (2017), as amended,
("Urban Renewal Act"); Ewing Land Development & Services, L.L.C., a limited liability company
organized under the laws of the State of Iowa and having an office for the transaction of business
at 909 W. 16th St., Pella, Iowa, 50219 ("Ewing"); Vintage Cooperative of Iowa City, a housing
cooperative organized under the laws of the State of Iowa and having an office for the transaction
of business at 909 W. 16th St., Pella, Iowa 50219 ("Vintage"); and Foster Road Developers, LLC,
a limited liability company organized under the laws of the State of Iowa and having an office for
the transaction of business at 340 Herky Street, North Liberty, Iowa, 52317 ("Developer"),.
WITNESSETH:
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 certain areas in the
City and has undertaken an economic development area in the City; and
WHEREAS, on March 20, 2018, the Iowa City City Council adopted Resolution No. 18-
75 approving the Foster Road Urban Renewal Plan (hereinafter referred to as the "Urban Renewal
Plan" or "Plan") for the urban renewal area shown on Exhibit A and legally described on Exhibit
B ("Urban Renewal Area" or "Area"); and
WHEREAS, a copy of the Urban Renewal Plan as constituted on the date of this Agreement
has been or will be recorded among the land records in the office of the Recorder of Johnson
County, Iowa; and
WHEREAS, such Urban Renewal Plan permits the City to respond to development
opportunities as and when they may appear; and
WHEREAS, Vintage and Developer desire to construct certain public improvements and
elder apartment housing within the Urban Renewal Area, as further described in Exhibit D
"Minimum Improvements and Uses" and Exhibit E "Planned Development Sensitive Areas
Development Plan," (hereinafter, "the Project"); and
WHEREAS, on March 6, 2018, the City approved Ordinance 18-4740, a rezoning
ordinance that classified portions of the Area OPD/RS-12 in accordance with the Planned
Development Sensitive Areas Development Plan, said Ordinance having been recorded in Book
5763, Page 541-563 in the office of the Recorder of Johnson County, Iowa; and
WHEREAS, the City has determined the Project 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 ISA and 403; and
WHEREAS, the City believes that the Project and the fulfillment generally of this
Agreement, are in the vital and best interests of the City and in accord with the public purposes
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and provisions of the applicable State and local laws and requirements under which the foregoing
project has been undertaken and is being assisted; and
WHEREAS, Vintage and Developer are willing to develop or cause the Project to be
completed in accordance with the uses specified in the Urban Renewal Plan and in accordance
with this Agreement; and
WHEREAS, the Project will generate, when complete, a minimum $14,000,000 of new tax
base upon which taxes will be paid pursuant to the protected school debt service levy, school
physical plant and equipment levy, county debt service levy, city debt service levy, community
college debt service levy, and school instructional support levy.
NOW, THEREFORE, in consideration of the promises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I. DEFINITIONS
Section 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:
Agreement means this Agreement and all attachments hereto, as the same may be from time
to time modified, amended or supplemented.
Certificate of Completion means a certification in the form of the certificate attached hereto
as Exhibit F and hereby made a part of this Agreement.
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 Vintage and Developer on the Development
Property and the other properties upon which the Public Improvements and Elder Apartment
Housing will be located; the Construction Plans shall be as detailed in the plans, specifications,
drawings and related documents which are submitted to the building inspector of the City as
required by applicable City codes.
County means the County of Johnson, Iowa.
Development Property means that portion of the Foster Road Urban Renewal Area described
in Exhibit C hereto.
Dwelling Units shall mean any habitable room or group of adjoining habitable rooms
located within a dwelling and forming a single unit with facilities used or intended to be used by
one household for living, sleeping, cooking and eating meals to be constructed on the Development
Property.
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Economic Development Grants mean the Tax Increment payments to be made by the City
to the Developer under Section 8.1 of this Agreement.
Elder Apartment Housing shall mean that portion of the Minimum Improvements related to
the construction of elder apartment housing, as defined in the Iowa City Code of Ordinances, to
be constructed by Vintage on the Development Property under this Agreement, as detailed in
Exhibit D attached to this Agreement.
Event of Default means any of the events described in Section 11.1 of this Agreement.
First Mortgage means any Mortgage granted to secure any loan made pursuant to either a
mortgage commitment obtained by Vintage and/or Developer 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.
Foster Road Urban Renewal Tax Increment Fund means the special fund of the City created
under the authority of Section 403 .19(2) of the Code 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.
Low or Moderate-Income Families means those families, including single person
households, earning no more than eighty percent (80%) of the higher of the median family income
of Johnson County or the State-wide non-metropolitan area, as determined by the latest United
States Department of Housing and Urban Development, Section 8 income guidelines.
Minimum Improvements shall mean the construction of the Public Improvements and Elder
Apartment Housing, together with all related site improvements, as detailed in Exhibit D hereto.
Mortgage means any mortgage or security agreement in which the Vintage and/or Developer
have granted a mortgage or other security interest in the Development Property, or any portion or
parcel thereof, or any improvements constructed thereon.
Net Proceeds means any proceeds paid by an insurer to Vintage and/or Developer under a
policy or policies of insurance required to be provided and maintained by Vintage and/or
Developer pursuant to Article V of this Agreement and remaining after deducting all expenses
(including fees and disbursements of counsel) incurred in the collection of such proceeds.
Ordinance means Ordinance No. 18-4747 of the City, adopted on May 1, 2018, under which
the taxes levied on the taxable property in the Foster Road Urban Renewal Area shall be divided
and a portion paid into the Foster Road Urban Renewal Tax Increment Fund.
Public Improvements shall mean that portion of the Minimum Improvements related to the
Foster Road pavement, public utilities, sidewalks and associated site development to be completed
by Developer on the Development Property under this Agreement which will be dedicated to the
City at no cost to the City, as detailed in Exhibit D attached to this Agreement.
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Qualified Costs and Expenses means the costs and expenses related to the design and
construction of the Public Improvements, including the cost for acquisition ofland within the right-
of-way to be dedicated to City; interest during construction until the substantial completion date
as described in Section 3.3 herein and for not more than six months thereafter; costs for demolition,
construction, landscaping, grading, drainage, engineering, plans and specifications for the Public
Improvements; and legal costs actually incurred in the preparation and adoption of the Urban
Renewal Plan and this Development Agreement, as well as the construction of the Public
Improvements.
Project shall mean 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 those property tax revenues that are divided and made available to
the City for deposit in the Foster Road Urban Renewal Tax Increment Fund under the provisions
of Section 403 .19 of the Code and 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 or other labor
disputes, acts of terrorism, delays in transportation or delivery of material or equipment, 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 Foster Road Urban Renewal Plan approved with respect to
the Foster Road Urban Renewal Area, described in the preambles hereof.
ARTICLE II . REPRESENTATIONS AND WARRANTIES
Section 2.1. 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.
b. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a 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.
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(g) Vintage and Developer will use their best efforts to obtain, or cause to be obtained,
in a timely manner, with respect to the Elder Apartment Housing and Public Improvements,
respectively, 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) Ewing, Vintage and Developer have not received any notice from any local, state
or federal official that the activities of Ewing, Vintage or Developer with respect to the Property
may or will be in violation of any environmental law or regulation ( other than those notices, if any,
of which the City has been notified). Ewing, Vintage and Developer are not 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, and Ewing, Vintage and Developer
are not aware of any violation of any local, State or federal law, regulation or review procedure
which would give any person a valid claim under any State or federal environmental statute with
respect thereto.
(i) Vintage and Developer have firm commitments for construction or acquisition and
permanent financing for their respective obligations under the Project in an amount sufficient,
together with equity commitments, to successfully complete the Elder Apartment Housing and
Public Improvements, respectively, in accordance with the Construction Plans contemplated in
this Agreement and the performance and maintenance bonds required under Section 6.8 hereof
relative to the Public Improvements.
G) Vintage and Developer will cooperate fully with the City in resolution of any
traffic, parking, and trash removal or public safety problems that may arise in connection with the
construction and operation of the Minimum Improvements.
(k) There are no actions, suits or proceedings pending or threatened against or affecting
Ewing, Vintage or Developer 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 Ewing, Vintage or Developer or which in any manner raises any questions affecting
the validity of the Agreement or Ewing's, Vintage's and Developer's ability to perform their
obligations under this Agreement.
(1) Ewing and Developer would not undertake their obligations under this Agreement
without the payment by the City of the Economic Development Grants pursuant to this Agreement.
(m) Developer shall dedicate (1) the Public Improvements and (2) all rights-of-way
acquired for purposes of constructing and maintaining the Public Improvements, if any, to the City
once constructed to the City's satisfaction, at no cost to the City.
(n) Vintage and Developer expect that, barring Unavoidable Delays, construction of
the Elder Apartment Housing and Public Improvements, respectively, shall be complete on or
before December 31, 2019.
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c. 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 only, and not of any governing body member, officer, agent, servant or
employee of the City in the individual capacity thereof.
Section 2.2 Representations and Warranties of Ewing. Vintage and Developer. Ewing,
Vintage and Developer make the following representations and warranties; such representations
and warranties being limited to each of their respective entities:
(a) Ewing is a limited liability company, duly organized under the laws of the State of
Iowa, has power to enter into this Agreement and to perform its obligations hereunder, and is not
in violation of any provisions of its certificate of organization, operating agreement, any other
agreement or the laws of the State of Iowa.
(b) Vintage is a housing cooperative, duly organized under the laws of the State of
Iowa, has the power to enter into this Agreement and to perform its obligations hereunder, and is
not in violation of any provisions of its articles of incorporation, bylaws, any other agreement or
the laws of the State of Iowa.
(c) Developer is a limited liability company, duly organized under the laws of the State
of Iowa, has power to enter into this Agreement and to perform its obligations hereunder, and is
not in violation of any provisions of its certificate of organization, operating agreement, any other
agreement or the laws of the State of Iowa.
( d) This Agreement has been duly and validly authorized, executed and delivered by
Ewing, Vintage and Developer 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 Ewing, Vintage and
Developer 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. Ewing's, Vintage's and Developer's attorneys shall provide an enforceability opinion in
a form in substantial compliance with Exhibit G to be signed concurrently with this Agreement.
( e) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the terms and
conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a
violation or breach of, the terms, conditions or provisions of the governing documents of Ewing,
Vintage and Developer or of any contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which Ewing, Vintage and/or Developer is now a party or by
which it or its property is bound, nor do they constitute a default under any of the foregoing.
(f) Vintage will cause the Elder Apartment Housing and Developer will cause the
Public Improvements to be constructed, operated and maintained in accordance with the terms of
this Agreement, the Urban Renewal Plan, and all local, state and federal laws and regulations
(including, but not limited to, environmental, zoning, energy conservation, building code and
public health laws and regulations).
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( o) Developer shall obtain from the City the necessary temporary construction
easement to allow construction within the existing Foster Road right-of-way, including any rights
necessary for the roadway pavement, sidewalk pavement and installation of the associated utilities.
The agreement for said easement rights shall take a form substantially similar to the Temporary
Construction Easement Agreement attached hereto as Exhibit H and incorporated herein by this
reference.
(p) Vintage and Developer shall obtain any and all easements or right-of-way necessary
to construct and operate the Elder Apartment Housing and Public Improvements, respectively,
from any other property owner through private negotiation.
(q) Neither Ewing, Vintage nor Developer, nor any person or entity with an ownership
interest of more than 25% of Ewing, Vintage or Developer 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.
ARTICLE III. CONSTRUCTION OF IMPROVEMENTS, TAXES AND PAYMENTS
Section 3.1 Construction and Uses.
(a) Vintage and Developer agree that they will cause the Elder Apartment Housing and
Public Improvements, respectively, described in Exhibit D to be constructed on the Development
Property in conformance with the Construction Plans submitted to and approved by the City, which
shall be in accordance with the Conditional Zoning Agreement and the Planned Development
Sensitive Areas Development Plan, attached as Exhibit E for reference. The scope and scale of
the Minimum Improvements to be constructed shall not be significantly less than the scope and
scale as detailed and outlined in the approved Construction Plans.
(b) Vintage and Developer hereby commit to a project that includes a minimum total
of $20,167,000 in development costs, including construction costs, architectural fees, land costs,
and financing costs. Vintage and Developer shall provide to the City, on or before November 1,
2019, an engineer's certificate documenting these expenses, and any other documentation as may
be requested by the City to demonstrate compliance with this investment requirement.
( c) With regard to the obligation to install the Public Improvements set forth in Exhibit
D, those Public Improvements shall be constructed in accordance with City specifications, and the
obligation shall remain on Developer until completion by Developer and until acceptance by
resolution of the City Council, as provided by law. All Public Improvements shall be constructed
and installed by Developer according to the plans and specifications approved by the City Engineer
of the City oflowa City, Iowa, who shall have the right to make occasional inspection of the work
in progress. Such inspection shall not relieve or release Developer from its responsibility to
construct said Public Improvements pursuant to the approved plans and specifications. Said
inspections shall not create a duty or obligation on the part of the City to insure or certify that said
improvements are constructed in conformance with said plans and specifications. If the City finds
that the Public Improvements have been duly completed in compliance with this Agreement and
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all City ordinances, policies and procedures, Developer provides the necessary security provided
by Section 6.8, and the City approves the Public Improvements, the City shall accept dedication
of the Public Improvements by resolution. If the City determines that the Public Improvements
are not acceptable, or there is any other Event of Default under this Agreement, it shall notify the
Developer within ten (10) business days in the form described in Section 3.4 below.
Section 3 .2 Construction Plans. Vintage and Developer shall cause Construction Plans to
be provided for the Elder Apartment Housing and Public Improvements, respectively, which shall
be subject to approval by the City as provided in this Section 3.2. The Construction Plans shall be
in conformity with the Urban Renewal Plan, this Agreement, and all applicable State and local
laws and regulations. The City shall approve the Construction Plans in writing if: (a) the
Construction Plans conform to the terms and conditions of this Agreement; (b) the Construction
Plans conform to the terms and conditions of the Urban Renewal Plan; (c) the Construction Plans
conform to all applicable federal, State and local laws, ordinances, rules and regulations and City
permit requirements; (d) the Construction Plans are adequate for purposes of this Agreement to
provide for the construction of the Minimum Improvements; and ( e) no Event of Default under the
terms of this Agreement has occurred; provided, however, that:
(a) 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;
(b) approval of the Construction Plans by the City shall not relieve Ewing, Vintage and
Developer of any obligation to comply 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;
( c) 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
Minimum Improvements as constructed.
Section 3.3 Time for Commencement and Completion of Minimum Improvements.
Subject to Unavoidable Delays, construction of the Minimum Improvements shall commence
immediately upon execution of this Agreement, and shall be substantially completed on or before
December 31, 2019. Time lost as a result ofUnavoidable 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.
Section 3.4. Certificate of Completion. Upon written request of Vintage or Developer
after completion of the Elder Apartment Housing and Public Improvements, respectively, the City
will furnish a Certificate of Completion, in substantially the form set forth in Exhibit F 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
Ewing, Vintage and Developer to construct the Elder Apartment Housing and Public
Improvements, respectively.
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( 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 Ewing, Vintage and
Developer's sole expense. If the City shall refuse or fail to provide a Certificate of Completion in
accordance with the provisions of this Section 3.4, the City shall, within twenty (20) days after
written request by Ewing, Vintage or Developer, provide Ewing, Vintage or Developer with a
written statement indicating in adequate detail in what respects Ewing, Vintage or Developer failed
to complete the Minimum Improvements in accordance with the provisions of this Agreement, or
is otherwise in default under the terms of this Agreement, and what measures or acts it will be
necessary, in the opinion of the City, for Ewing, Vintage or Developer to take or perform in order
to obtain such Certificate of Completion.
Section 3.5. Real Property Taxes. Vintage and Developer and their successors shall pay
or cause to be paid, when due, all real property taxes and assessments payable with respect to all
and any parts of the Development Property acquired and owned by them and pursuant to the
provisions of this Agreement. Until Vintage and Developer's obligations have been assumed by
any other person or legal title to the property is vested in another person, all pursuant to the
provisions of this Agreement, Vintage and Developer shall be solely responsible for all
assessments and taxes.
Vintage and Developer, for themselves and on behalf of their successors and assigns, agree
that prior to the Termination Date:
(a) They will not seek administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of real property contained on the
Development Property determined by any tax official to be applicable to the Development Property
or Minimum Improvements, or raise the inapplicability or constitutionality of any such tax statute
as a defense in any proceedings, including delinquent tax proceedings; and
(b) They will not seek any tax exemption deferral or abatement either presently or
prospectively authorized under any State, federal or local law with respect to taxation of real
property contained on the Development Property prior to the Termination Date.
Section 3.6 Contractor Labor Law Compliance. Vintage and Developer 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 oflowa Code
Chapter 91C (Contractor Registration with the Iowa Division of Labor), Iowa Code Chapter 91A
(Iowa Wage Payment Collection Law), Iowa Code Chapter 910 (Minimum 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 Improvements; 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
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oflowa Code Chapter 91 C (Contractor Registration with the Iowa Division of Labor), Iowa Code
Chapter 91A (Iowa Wage Payment Collection Law), Iowa Code Chapter 91D (Minimum Wage),
the Federal Fair Labor Standards Act, and the Internal Revenue Code. Vintage and Developer
shall provide the City with sufficient evidence to establish compliance with this requirement prior
to issuance of any building permit.
ARTICLE IV. COMPLETION GUARANTY
Section 4.1 Ewing's and Vintage's Guaranty to Complete the Elder Apartment Housing
(a) Subject to the terms of this Agreement, Ewing and Vintage unconditionally and
absolutely guarantee to Developer:
(i) to perform, complete, and pay for the construction of the Elder Apartment
Housing in accordance with the Construction Plans, as such Plans have been submitted to
and approved by the City, to have construction of the Elder Apartment Housing
substantially complete on or before the later to occur of December 31, 2019, or the date
that is six months after Developer's completion of the Public Improvements as required by
Section 4.2(a)(i) below, and to pay all costs of said construction and all costs associated
therewith;
(ii) to perform, complete, and comply with the terms and provisions of this
Agreement applicable to Ewing and Vintage;
(iii) to pay the costs and fees of all contractors, architects and engineers employed
by Ewing and/or Vintage to complete the Elder Apartment Housing.
(iv) to pay all of Developer's reasonable costs and expenses, including, without
limitation, attorney's fees, incurred in the enforcement of this Article IV.
(b) Ewing and Vintage agree to indemnify, protect and hold forever harmless
Developer, its members, managers, officers, agents, successors and assigns, from and against any
liabilities, costs, expenses and losses, including, without limitation court costs and attorneys' fees
and expenses, arising out of or resulting from Ewing's and/or Vintage's failure to construct the
Elder Apartment Housing or otherwise comply with the terms and conditions of this Agreement.
(c) The obligations of Ewing and Vintage hereunder shall be direct and independent of
any obligations of Ewing and Vintage to the City and absolute and unconditional irrespective of
the validity, legality or enforceability of this Agreement, or any other circumstances ( except for
those actions of Developer in violation of this Agreement or applicable law) which might
otherwise constitute a legal or equitable discharge of a surety or guarantor (including, without
limitation, the finding or conclusions of any proceeding under the federal Bankruptcy code or of
similar present or future federal or state law), it being agreed that the obligations of Ewing and
Vintage hereunder shall not be discharged except by performance as herein provided.
(d) No failure or delay on the part of Developer in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any
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such right, power or remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. No amendment, modification, termination, or waiver of
any provision of this Article IV nor consent to any departure by Ewing or Vintage therefrom, shall
in any event be effective unless the same shall be in writing and signed by Developer, Ewing and
Vintage and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No notice or demand on Ewing and Vintage in any case shall
entitle Ewing and Vintage to any other or further notice or demand in similar or other
circumstances.
Section 4.2 Developer's Guaranty to Provide Access to Lot 3, Forest Hill Estates
(a) Subject to the terms of this Agreement, Developer unconditionally and absolutely
guarantees to Ewing and Vintage:
(i) to perform, complete, and pay for the construction of the Public Improvements
to Lot 3, Forest Hill Estates in accordance with the Plans, as such Plans have been
submitted to and approved by the City to have the Public Improvements substantially
complete on or before December 31, 2019, and to pay all costs of said construction and all
costs associated therewith;
(ii) to perform, complete, and comply with the terms and provisions of this
Agreement applicable to Developer;
(iii) to pay the costs and fees of all contractors, architects and engineers employed
by Developer to complete the Public Improvements.
(iv) to pay all of Ewing's and Vintage's reasonable costs and expenses, including,
without limitation, attorney's fees, incurred in the enforcement of this Article IV.
(b) Developer agrees to indemnify, protect and hold forever harmless Ewing and
Vintage, its members, managers, shareholders, officers, agents, successors and assigns, from and
against any liabilities, costs, expenses and losses, including, without limitation, court costs and
attorneys' fees and expenses arising out of or resulting from Developer's failure to construct the
Public Improvements to Lot 3, Forest Hill Estates or otherwise comply with the terms and
conditions of this Agreement.
(c) The obligations of Developer hereunder shall be direct and independent of any
obligations of Developer to the City and absolute and unconditional irrespective of the validity,
legality or enforceability of this Agreement, or any other circumstances ( except for those actions
of Ewing or Vintage in violation of this Agreement or applicable law) which might otherwise
constitute a legal or equitable discharge of a surety or guarantor (including, without limitation, the
finding or conclusions of any proceeding under the federal Bankruptcy code or of similar present
or future federal or state law), it being agreed that the obligations of Developer hereunder shall not
be discharged except by performance as herein provided.
(d) No failure or delay on the part of Ewing or Vintage in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
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any such right, power or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. No amendment, modification, termination, or waiver
of any provision of this Article IV nor consent to any departure by Developer therefrom, shall in
any event be effective unless the same shall be in writing and signed by Ewing, Vintage and
Developer, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No notice or demand on Developer in any case shall entitle
Developer to any other or further notice or demand in similar or other circumstances.
Section 4.3 Continuing Guaranties Ewing, Vintage and Developer hereby represent and
agree that their respective obligation under this Article IV are continuing guaranties and (a) shall
remain in full force and effect until the Minimum Improvements have been constructed and a
Certificate of Completion has been received from the City as contemplated hereunder, (b) shall be
governed by, and construed in accordance with, the laws of the State of Iowa, (c) shall be binding
upon each party, its successors, and assigns, and (d) shall inure to the benefit of and be enforceable
by each party its respective successors, transferees and assigns.
Section 4.4 Jury Trial Waiver. The Developer, Ewing and Vintage hereby waive any right
to jury trial of any claim, cross--claim or counter--claim relating to or arising out of or in
connection with this Article IV.
Section 4.5 Jurisdiction. For purposes of any actions relating to this Article IV, Ewing,
Vintage and Developer consent to the personal jurisdiction of the state and federal courts of the
State oflowa.
ARTICLE V. INSURANCE
Section 5.1. Insurance Requirements.
(a) Vintage and/or Developer will provide written proof of and maintain or cause to be
maintained at all times during Vintage and Developer's ownership and during the process of
constructing the Minimum Improvements (and, from time to time at the request of the City, furnish
the City with proof of coverage and/or payment of premiums on):
i. Builder's risk insurance, written on the so-called "Builder's Risk --
Completed Value Basis", in an amount equal to one hundred percent (100%) of the insurable value
of the Public Improvements and Elder Apartment Housing, respectively, at the date of completion,
and with coverage available in non-reporting form on the so-called "all risk" form of policy;
ii. Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations and contractual liability
insurance) together with an Owner's Contractor's Policy with limits against bodily injury and
property damage of not less than $1,000,000 for each occurrence (to accomplish the above-
required limits, an umbrella excess liability policy may be used); and
111. Workers' compensation insurance with at least statutory coverage.
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(b) Upon completion of construction of the Minimum Improvements and at all times
prior to the Termination Date, Vintage and Developer shall maintain, or cause to be maintained,
at its 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 Elder Apartment Housing and
Public Improvements, respectively, under a policy or policies covering such risks as are ordinarily
insured through property policies by similar businesses, including (without limitation to the
generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion,
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 $100,000. No policy of insurance shall be so written that the
proceeds thereof will produce less than the minimum 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 Improvements (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
insurance consultant or insurer selected and paid for by the Developer and approved by the City.
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 with a deductible of $500,000.
111. Such other insurance, including workers' compensation insurance respecting
all employees of Vintage and Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided that
Vintage and Developer may be self-insured with respect to all or any part of its liability for
worker's compensation.
( c) All insurance required by this Article V shall be taken out and maintained in
responsible insurance companies which are authorized under the laws of the State to assume the
risks covered thereby. Vintage and Developer will deposit annually with the City copies of policies
evidencing all 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 V, each
policy shall contain a provision that the insurer shall not cancel or modify it without giving written
notice to Vintage and Developer 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, Vintage and Developer shall furnish the City evidence satisfactory to the City that the
policy has been renewed or replaced by another policy conforming to the provisions of this Article
V, or that there is no necessity therefor under the terms hereof. In lieu of separate policies, Vintage
and Developer may maintain a single policy, blanket or umbrella policies, or a combination
thereof, which provide the total coverage required herein, in which event Vintage and Developer
shall deposit with the City a certificate or certificates of the respective insurers as to the amount of
coverage in force upon the Minimum Improvements.
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(
( d) Vintage and Developer agree to notify the City within two (2) days 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 Vintage or Developer, and Vintage and Developer will forthwith repair, reconstruct
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, Vintage and Developer will apply the Net
Proceeds of any insurance relating to such damage received by the Vintage or Developer to the
payment or reimbursement of the costs thereof.
(e) Vintage and Developer shall complete the repair, reconstruction and restoration of
the Elder Apartment Housing and Public Improvements, respectively, whether or not the Net
Proceeds of insurance received by Vintage or Developer for such purposes are sufficient.
(f) Notwithstanding anything contrary herein, Developer shall only be required to insure
the Public Improvements until acceptance of the Public Improvements by the City and issuance of
the maintenance bond.
ARTICLE VI. COVENANTS OF VINTAGE AND DEVELOPER
Section 6.1. Maintenance of Properties. Ewing and Developer will maintain, preserve
and keep its properties (whether owned in fee or a leasehold interest), including but not limited to
the Elder Apartment Housing and Public Improvements, respectively, 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 6.2. Maintenance of Records. Vintage and Developer 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 Vintage and Developer relating to this
Project in accordance with generally accepted accounting principles, consistently applied
throughout the period involved, and Vintage and Developer will provide reasonable protection
against loss or damage to such books of record and account.
Section 6.3. Compliance with Laws. Vintage and Developer will comply with all state,
federal and local laws, rules and regulations relating to the Elder Apartment Housing and Public
Improvements, respectively.
Section 6.4. Non-discrimination. In the construction and operation of the Elder Apartment
Housing and Public Improvements, respectively, Vintage and Developer shall not discriminate
against any employee or applicant for employment, home buyer or tenant because of race, creed,
color, sex, national origin, gender identity, marital status, sexual orientation, religion, age,
disability, familial status, presence or absence of dependents or public assistance source ofincome.
Vintage and Developer shall ensure that applicants for employment, employees, and tenants are
considered and 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 origin.
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Section 6.5. Available Information. Upon request, Vintage and Developer shall promptly
provide the City with copies of information requested by City that are related to this Agreement
so that City can determine compliance with the Agreement.
Section 6.6. LMI Requirements. The City, Ewing, Vintage and Developer acknowledge
the statutory requirements of Chapter 403, Code of Iowa specifically with respect to the Low and
Moderate Income (LMI) assistance. The current applicable percentage for Johnson County is 45%.
The City will set funds aside from the Tax Increment received by the City under the Ordinance to
comply with Iowa Code Section 403 .22 before any Economic Development Grants are made to
Developer. The statutory requirements with respect to LMI assistance may be met by the
construction of LMI affordable Dwelling Units as part of the Project, which would decrease the
required set aside funds.
Section 6.7. Certification of Qualified Costs and Expenses, and Annual Certification.
Developer shall certify to the City the amount of all Qualified Costs and Expenses submitted for
reimbursement as Economic Development Grants and that such amounts are true and correct. Such
certification shall take the form shown in Exhibit K attached hereto and shall be provided no later
than November 1 of each year in which Developer incurs Qualified Costs and Expenses.
To assist the City in monitoring and performance of Developer hereunder, a duly-authorized
officer of Developer 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)
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 fulfillment of any of the terms and conditions ofthis 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 thereto. Such statement, proof and
certificate shall be provided not later than November 1 of each year, commencing November 1,
2019 and ending on November 1, 2030, both dates inclusive. Such Annual Certification shall take
the form shown in Exhibit J attached hereto.
Developer shall provide additional supporting information for these certifications upon
request of the City.
Section 6.8. Bonding Requirements. Developer shall obtain, or require each of its general
contractors to obtain, one or more bonds that guarantee the faithful performance of this Agreement
for, in the aggregate, the anticipated full value of the completed Public Improvements and that
further guarantee the prompt payment of all materials and labor. The performance bond( s) for the
Public Improvements shall remain in effect until construction of such Public Improvements are
complete, at which time a five-year maintenance bond shall be substituted for each performance
bond. The bonds shall clearly specify Developer and City as joint obligees. Developer shall also
comply with all City requirements for the construction of the Public Improvements.
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Section 6.9. No Abatement. Homeowners who purchase or rent Dwelling Units within
the Development Property are not eligible for tax abatement under any state, federal or local law,
and Ewing shall inform prospective buyers of this information in writing prior to the sale to a buyer
of any lots or Dwelling Units on the Development Property, and secure a receipt from all buyers
that they received such information prior to the sale in the form of Exhibit L.
Section 6.10. Minimum Assessment Agreement.
Ewing, Vintage and Developer acknowledge and agree that the grant to the Developer
provided for in Section 8.1 below contemplates that the property tax revenues generated from Lot
3, Forest Hill Estates, will be at least $14,000,000 once the Elder Apartment Housing described in
Exhibit D is complete. Vintage hereby agrees to enter into a Minimum Assessment Agreement in
a form in substantial compliance with Exhibit N attached hereto, in order to establish a Minimum
Actual Value for the land and Elder Apartment Housing.
Vintage acknowledges and agrees that it, or the owners of condominium units or
residential cooperative shares sold, will pay when due all taxes and assessments, general or special,
and all other charges whatsoever levied upon or assessed or placed against Lot 3 and Minimum
Improvements thereon. Vintage further agrees that, prior to the payment of the final economic
development grant:
(a) neither it nor its successors in interest to all or any portion of Lot 3 will seek
administrative or judicial review of the applicability of any tax statute determined by any official
to be applicable to the property, Vintage, or its successors in interest to all or any portion of Lot 3,
or raise the inapplicability of any such tax statute as a defense in any proceedings, including
delinquent tax proceedings;
(b) neither it nor its successors in interest to all or any portion of Lot 3 will seek
administrative or judicial review of the constitutionality of any tax statute determined by any
official to be applicable to the property, Vintage, or its successors in interest to all or any portion
of Lot 3, or raise the unconstitutionality of any such tax statute as a defense in any proceedings,
including delinquent tax proceedings; and
( c) it will not cause a reduction in the taxable valuation upon which real property taxes
are paid, below the amount of $14,000,000 after taking into consideration any factors such as "roll-
backs" which would reduce the taxable value of the Property as of January 1, 2020, ("Assessor's
Minimum Actual Value") through:
(i) willful destruction of the property, or any part thereof;
(ii) a request to the City Assessor of Iowa City, Iowa to reduce the Minimum
Actual Value of the property below the amount noted above;
(iii) an appeal to the Board of Review of the City of Iowa City or to the Board
of Review of Johnson County to reduce the Minimum Actual Value of the property below
the amount noted above;
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(iv) a petition to the Board of Review of the State of Iowa or to the Director of
Revenue and Finance of the State of Iowa to reduce the Minimum Actual Value of the
property below the amount noted above;
(v) an action in any District Court of the State of Iowa seeking a reduction in
the Minimum Actual Value of the property below the amount noted above;
(vi) an application to the Director of Revenue and Finance of the State of Iowa
requesting an abatement of real property taxes pursuant to any present or future statute or
ordinance; or
(vii) any other proceedings, whether administrative, legal or equitable, with any
administrative body within the City of Iowa City, Johnson County, or the State of Iowa or
within any court of the State of Iowa or the federal government.
Vintage and it successors in interest shall not, during the term of this Agreement, cause or
voluntarily permit the property to become other than taxable property ( except as permitted herein);
to be taxable at an amount less than the Minimum Actual Values noted above; to be owned by a
utility or any other entity of a type where the assessed value of taxable property of such entity is
not treated as located within the Urban Renewal Area in its entirety; to be owned by any entity
having tax exempt status; or apply for a deferral of property tax on the property pursuant to any
present or future statute or ordinance. Nothing contained herein is intended to, and shall not be
construed to, in any way limit Vintage's right to sell condominium units or residential cooperative
shares in the Elder Apartment Housing Project at any time subject to the terms of this Agreement
and the applicable Minimum Assessment Agreement.
Vintage agrees that it and its successors in interest, including owners of condominium
units or cooperative housing shares sold, is bound by the applicable Minimum Assessment
Agreements attached as Exhibits N, fixing the Minimum Actual Value of the property as approved
by the Assessor and the City as set forth herein. Vintage shall provide to the City a title opinion
showing all lienholders, and all such lienholders shall consent to the Minimum Assessment
Agreement.
Vintage contemplates that a portion of the Project will be residential condominium units
which will be subject to the property tax "roll-back" referred to previously. Ewing agrees that at
the time of the execution of the declaration required by Chapter 499B Horizontal Property
(Condominiums) of the Code of Iowa, an attachment to the declaration will be executed by
Vintage, the City and the City Assessor allocating a portion of the Minimum Actual Value to each
unit. Vintage agrees that the difference between the Minimum Actual Value and the amount
allocated to the residential condominium units for the Project will be allocated to the remainder of
the Project.
The Minimum Actual Values herein established shall be of no further force and effect and
the Minimum Assessment Agreements shall terminate when the final economic development grant
is paid in accordance with this Agreement.
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The Minimum Assessment Agreements shall be certified by the Assessor for the City as
provided in Iowa Code Section 403.6(19) 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 property (or part thereof), whether voluntary or involuntary, and such Minimum
Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent
purchaser or encumbrancer, including the holder of any First Mortgage.
ARTICLE VII. ASSIGNMENT AND TRANSFER
Section 7.1 Representation as to Development. Vintage and Developer represent and agree
that their undertakings pursuant to this Agreement are and will be used for the purpose of
development of the Property and not for speculation in land holding. Vintage and Developer
further recognize:
(a) the importance of the development of the Property to the general welfare of the
community;
(b) the substantial financing and other public aids that have been made available by
law and by the City for the purpose of making such development possible; and
( c) 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 the Vintage or Developer,
or the degree thereof, is, for practical purposes, a transfer or disposition of the Property, and that
the qualifications and identity of Vintage and Developer are of particular concern to the
community and the City. Vintage and Developer recognize that it is because of such
qualifications and identity that the City is entering into this Agreement.
Section 7.2. Prohibition Against Transfer of Property and Assignment of Agreement. For
the foregoing reasons, as security for the obligations of the Developer under this Agreement,
Vintage and Developer represent and agree for themselves, and their successors and assigns, that
prior to the Termination Date, Vintage and Developer will not dispose of all or substantially all of
their assets or transfer, convey or assign its interest in the Development Property ( except for right
of way dedicated to the City which is expressly permitted), Public Improvements (except for the
dedication of the Public Improvements to the City which is expressly permitted), Minimum
Improvements ( except the sale of condominium units or an interest in a multiple housing
cooperative formed pursuant to Iowa Code Chapter 499A to persons who will occupy a Dwelling
Unit as their residence), or this Agreement to any other party unless (i) the transferee partnership,
corporation or individual assumes in writing all of the obligations of Ewing, Vintage or Developer
( as the case may be) under this Agreement with respect to the portion of the Development Property
being transferred 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, Vintage and Developer may pledge any and/or all of its assets as
security for any financing of the Minimum Improvements, and the City agrees that Vintage and
Developer may assign its interest under this Agreement as collateral for such purpose.
The City shall be entitled to require, except for such transfers, assignments, leases,
conveyances or sales allowed in this Section 7.2, as conditions to any such approval that:
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(a) Any proposed transferee shall have the qualifications and financial responsibility,
as determined by the City, necessary and adequate to fulfill the obligations undertaken in this
Agreement by Ewing, Vintage and Developer (or, in the event the transfer is of or relates to part
of the Property, such obligations that relate to such part);
(b) Any proposed transferee shall expressly assume, by instrument in wntmg
satisfactory to the City and in form recordable among the land records, for itself, its successors
and assigns, and expressly for the benefit of the City, all of the obligations of Ewing, Vintage and
Developer under this Agreement and agree to be subject to all the conditions and restrictions to
which the Developer is subject (or, in the event the transfer is of or relates to part of the Property,
such obligations, conditions, and restrictions that relate to such part), Provided that in the event
any transferee or successor in interest to the Property, or any part thereof, does not, for whatever
reason, expressly assume or agree to such obligations, conditions and restrictions, such lack of
assumption or agreement shall not relieve or except such transferee or successor of such
obligations, conditions, or restrictions; nor shall it deprive or limit the City of any rights, remedies
or controls with respect to the Property or the construction of the Minimum Improvements unless
and only to the extent otherwise specifically provided in this Agreement or agreed to in writing by
the City. It being the intent 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 of ownership in the Property, any part thereof, or any interest therein, however
consummated or occurring, and whether voluntary or involuntary, shall operate, legally or
practically, to deprive or limit the City of or with respect to any rights, remedies or controls
provided in or resulting from this Agreement that the City would have had, had there been no such
transfer or change;
( c) There shall be submitted to the City for review all instruments and other legal
documents involved in effecting transfer; and, if approved by the City, its approval shall be
indicated to Ewing, Vintage and Developer in writing;
( d) The consideration payable for the transfer by the transferee or on its behalf shall
not exceed an amount representing the actual cost (including carrying charges) of the Property to
Ewing, Vintage and Developer ( or allocable to the part thereof or interest therein transferred) and
the Minimum Improvements, if any, theretofore made thereon by it; it being the intent of this
provision to preclude assignment of this Agreement or transfer of the Property (or any parts
thereof) for profit prior to the completion of the Minimum Improvements: and
( e) Ewing, Vintage and Developer and their transferee or successor shall comply with
such other conditions as the City may find desirable in order to achieve and safeguard the purposes
of the Urban Renewal Act and the Urban Renewal Plan.
Provided, that in the absence of a specific written agreement by the City to the contrary, no
such transfer or approval by the City thereof shall be deemed to relieve Ewing, Vintage and
Developer, or any other party bound in any way by this Agreement or otherwise, of its respective
obligations with respect to the construction of the Minimum Improvements, or from any of their
other obligations under this Agreement.
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Section 7.3. Information as to Parties in Control. To assist in the effectuation of the
( purposes of this Article VII and the statutory objectives generally, Ewing, Vintage and Developer
agree that during the period between execution of this Agreement and completion of the Minimum
Improvements as certified by the City, they will promptly notify the City of any and all changes
whatsoever with respect to the identity of the parties in control of Ewing, Vintage and Developer.
Section 7.4. Prohibition Against Use as Non-Taxable or Centrally-Assessed Property.
During the term of this Agreement, Vintage and Developer agree that no portion of the
Development Property or Minimum Improvements shall be transferred or sold to a non-profit
entity or used for a purpose that would exempt said portion of the Development Property from
property tax liability. Notwithstanding the prior sentence, Vintage and Developer may convey
portions of the Development Property to the City to be used by the City for public infrastructure,
parks, trails or other public purposes. During the term of this Agreement, Vintage and Developer
agree 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 § 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
4 3 7 A (Property Used in the Production, Generation, Transmission or Delivery of Electricity or
Natural Gas); and Chapter 438 (Pipeline Property)).
ARTICLE VIII. CITY CONTRIBUTIONS TO PROJECT
Section 8.1. Economic Development Grants.
(a) Calculation of Grants. The City agrees to make annual payments to the Developer
to reimburse it for the Qualified Cost and Expenses related to that portion of the Public
Improvements from Dubuque Street east to Lot 4, Forest Hill Estates, and for 75% of those
Qualified Costs and Expenses related to that portion of the Public Improvements adjacent to Lot 4
east to Prairie du Chien, subject to the Developer and Vintage having timely received a Certificate
of Completion for construction of the Minimum Improvements in accordance with this Agreement
and being and remaining in compliance with the terms of this Agreement, as follows:
i. Commencing with the first fiscal year in which Tax Increment is received from the
County under the Ordinance, and continuing until the expiration of the allowable time
frame for the collection of Tax Increment under the Ordinance, the City agrees to make
annual Economic Development Grants equal to 55 % of the Tax Increments, if any,
received by the City under the Ordinance to reimburse Developer for Qualified Costs
and Expenses (without regard to any averaging that may otherwise be utilized under
Section 403 .19 and excluding any interest that may accrue thereon prior to payment to
the Developer during the preceding twelve-month period), but subject to limitation and
adjustment as provided in this Article.
Such payments shall be referred to collectively as the "Economic Development Grants." For
purposes of calculating that portion of the taxes allocated to and, when collected, paid into the
Foster Road TIF Fund, the City first certified debt for the original Urban Renewal Area on
December 1, 2020, setting the base value on the Area at the assessed value as of January 1, 2019,
which shall be a minimum of $2,111,720. The taxes levied each year upon the assessed value of
the taxable property in this Urban Renewal Area in excess of this base value shall be allocated to
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and when collected be paid into the Foster Road TIF Fund, or other fund established by the County
Auditor for payment of loans, advances, indebtedness or bonds payable from the division of
property tax revenue pursuant to the Ordinance.
(b) Maximum Amount of Economic Development Grants. The aggregate amount of
the Economic Development Grants that may be paid to the Developer under this Agreement shall
be equal to the sum of the total amount of the applicable percentage (allowing for the LMI set-
aside as provided in Section 8.1 (a) above) of all Tax Increments collected under the Ordinance,
but in no case shall exceed a total for all grants of the lesser of: (i) the actual cost of that portion
of the Public Improvements as explained in Section 8.l(a) and documented as indicated in Section
8.l(e) or (ii) $3,367,000. It is further agreed and understood that the aforementioned $3,367,000
shall constitute the maximum amount of reimbursement for the Public Improvements.
( c) Limitations. Developer acknowledges that each Economic Development Grant
payment to be paid to it according to this Article VIII is wholly contingent upon and shall be
limited to reimbursement of certain actual costs incurred with respect to construction of the Public
Improvements as set forth in Section 8.l(a), and payment shall come solely and only from
incremental taxes received by the City under Iowa Code Section 403.19 and the Ordinance. The
City makes no assurance that the Developer will receive Economic Development Grants which
cover the cost of the Public Improvements or which reach the stated maximum. Developer
acknowledges that the increment generated from the Minimum Improvements alone is not
anticipated to result in payment of the maximum amount of Economic Development Grants
described in Section 8. I (b).
(d) City Certification, Timing. The time period during which Tax Increment can be
collected to pay annual Economic Development Grants shall end no later than ten (10) fiscal years
beginning with the second fiscal year after the year in which the City first certifies to the County
Auditor the amount of any loans, advances, indebtedness, or bonds which qualify for payment
from the division of the revenue in connection with the Project. If Ewing, Vintage and Developer
satisfy all of the terms of this Agreement, the City shall certify to the appropriate County office
prior to December 1, 2020 its request for the available Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be collected by the County and
paid to the City as taxes are paid during the following fiscal year and which shall thereafter be
disbursed to Developer on June 1 of that fiscal year. As an example, if the Minimum
Improvements are built and fully assessed on January 1, 2020, and if Developer files the
Certification required by Section 6.7 by November 1, 2020, the City would then review the
Certification, and, if approved, and all other terms of this Agreement are satisfied, would certify
by December 1, 2020 for the Tax Increment for collection by the County and payment to the City
in fiscal year 2021-2022, allowing for an initial grant to be paid to Developer on June 1, 2022, all
subject to the terms of this Article and this Agreement.
( e) Certification of Qualified Costs and Expenses. The obligation of the City to make
any Economic Development Grants shall be subject to and conditioned upon, among other things,
the timely filing by Developer of the Certification required under Section 6.7 hereof and the City's
approval thereof. Developer must submit accurate and sufficient documentation of the Qualified
Costs and Expenses set forth in Section 8. l(a) to the City as part of its Certification. To receive
reimbursement, Developer must attach to such Certification receipts and invoices for all Public
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Improvement costs for the fiscal year for which Developer is requesting an Economic
Development Grant that substantiates the amount of Qualified Costs and Expenses being reported.
Section 8.2. 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 Foster Road Urban Renewal Area Tax Increment
Revenue Fund of the City. The City hereby covenants and agrees to maintain the Ordinance in
force during the term hereof and to apply the incremental taxes collected thereunder to pay the
Economic Development Grants, as and to the extent set forth in this Article. 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 8.1 hereof, the City shall have no
obligation to make an Economic Development Grant to the Developer if at any time during the
term hereof the City receives a finding from a court of competent jurisdiction to the effect that the
use of Tax Increments to fund an Economic Development Grant to the Developer, as contemplated
under said Section 8.1, is not authorized or otherwise an appropriate urban renewal 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, the City shall promptly forward
a notice of the same to Ewing, Vintage and Developer. In the event litigation is commenced to
challenge the use of Tax Increments to fund an Economic Development Grant to the Developer,
the City shall proceed diligently, at its sole cost and expense, to defend such litigation, as it
determines is reasonable in the exercise of the City Attorney's professional judgment. If the
circumstances or legal constraints continue for a period during which two (2) Economic
Development Grants would otherwise have been paid to the Developer under the terms of Section
8.1, the City may terminate this Agreement, without penalty or other liability to the Developer, by
written notice to Developer.
( c) The City makes no representation with respect to the amounts that may finally be
paid to the Developer as the Economic Development Grants, and under no circumstances shall the
City in any manner be liable to the Ewing, Vintage or Developer so long as the City timely applies
the Tax Increments actually collected and held in the Foster Road Urban Renewal Tax Increment
Fund (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 8.3. Use of Other Tax Increments. Subject to this Article VIII, the City shall be
free to use any and all available Tax Increments in excess of the stated maximum or resulting from
the suspension or termination of the Economic Development Grants under Section 8.1 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 Ewing, Vintage or Developer with
respect to the use thereof.
Section 8.4. Limitations. The Economic Development Grants are only for the Minimum
Improvements described in this Agreement and not any future expansions which, to be eligible for
Economic Development Grants, would be the subject of an amendment or new agreement, at the
sole discretion of the City Council.
24
( Section 8.5 Conditions Precedent. Notwithstanding the provisions of Section 8.1 above,
the obligation of the City to make an Economic Development Grant in any year shall be subject to
and conditioned upon the following as the time of payment:
(a) compliance with the terms of this Agreement and payment of property taxes;
(b) Execution of the Minimum Assessment Agreement, pursuant Section 6.10 of this
Agreement, in a form shown in Exhibit N, attached hereto;
(b) timely filing by Developer of the Certifications required under Sections 6. 7 and 8.1
hereof and the City's approval thereof; and
(c) Developer's execution of the Wage Theft Affidavit attached hereto as Exhibit M.
In the event that an Event of Default occurs, the City shall have no obligation thereafter to
make any payments to Developer in respect of the Economic Development Grants and the
provisions of this Article shall terminate and be of no further force or effect.
ARTICLE IX. RESERVED
ARTICLE X. INDEMNIFICATION
Section 10.1. Release and Indemnification Covenants.
(a) Ewing and Vintage release the City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this Article X, the
"Indemnified Parties") from, covenants and agrees that the Indemnified Parties shall not be liable
for, and agrees to indemnify, defend and hold harmless the Indemnified Parties against, any loss
or damage to property or any injury to or death of any person occurring at or about, or resulting
from any defect in, the Elder Apartment Housing.
(b) Developer release the City and the governing body members, officers, agents,
servants and employees thereof (hereinafter, for purposes of this Article X, the "Indemnified
Parties") from, covenants and agrees that the Indemnified Parties shall not be liable for, and agrees
to indemnify, defend and hold harmless the Indemnified Parties against, any loss or damage to
property or any injury to or death of any person occurring at or about, or resulting from any defect
in, the Public Improvements (but only until the City accepts said Public Improvements and the
maintenance bond has been issued on said Public Improvements).
( c) Except for any willful misrepresentation or any willful or wanton misconduct or
any unlawful act of the Indemnified Parties, Ewing, Vintage and Developer 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 ( except with respect to any suit, action, demand or other proceeding
brought by Ewing, Vintage or Developer against the City to enforce its rights under this
25
Agreement), (ii) the acquisition and condition of the Development Property and the construction,
installation, ownership, and operation of the Minimum Improvements or Public Improvements
(but only until the City accepts said Public Improvements and the maintenance bond has been
issued on said Public Improvements) or (iii) any hazardous substance or environmental
contamination located in or on the Development Property.
( d) The Indemnified Parties shall not be liable for any damage or injury to the persons
or property of Ewing, Vintage and Developer or their officers, agents, servants or employees or
any other person who may be about the Minimum Improvements or Public Improvements 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.
( e) The provisions of this Article X shall survive the termination of this Agreement.
ARTICLE XI. DEFAULT AND REMEDIES
Section 11.1. Events of Default Defined. The following shall be "Events of
Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in
this Agreement, any one or more of the following events:
(a) Failure by Vintage or Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions and limitations
of this Agreement;
(b) Transfer of any interest in this Agreement or the Development Property or the
Minimum Improvements in violation of the provisions of this Agreement;
(c) Failure by Ewing, Vintage and Developer to substantially observe or perform any
covenant, condition, obligation or agreement on its part to be observed or performed under this
Agreement;
( d) Prior to the issuance of Certificates of Completion for the Minimum Improvements,
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;
(e) Developer shall:
i. file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United States
Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or
11. make an assignment for the benefit of its creditors; or
111. admit in writing its inability to pay its debts generally as they become due;
or
26
iv. be adjudicated bankrupt or insolvent; or if a petition or answer proposing
the adjudication of Developer as bankrupt or its reorganization under any present or future federal
bankruptcy act or any similar federal or state law shall be filed in any court and such petition or
answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a
receiver, trustee or liquidator of the Developer or the Minimum Improvements or Public
Improvements, or part thereof, shall be appointed in any proceedings brought against Developer,
and shall not be discharged within ninety (90) days after such appointment, or if Developer shall
consent to or acquiesce in such appointment; or
(f) Any representation or warranty made by Ewing, Vintage or Developer in this
Agreement, or made by Ewing, Vintage or Developer in any written statement or certification
furnished by Ewing, Vintage or Developer 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 11.2. Remedies on Default. Whenever any Event of Default referred to in Section
11.1 of this Agreement occurs and is continuing, the City, as specified below, may take any one
or more of the following actions after ( except in the case of an Event of Default under subsections
11.1 ( d) or 11.1 ( e) of said Section 11.1) the giving of thirty (30) days' written notice by the City to
Ewing and Developer and the holder of the First Mortgage (but only to the extent the City has been
informed in writing of the existence of a First 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 Ewing and Developer 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 Ewing, Vintage and Developer, deemed adequate by the City, that they will cure
their default and continue 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 Developer all previously paid Economic Development Grants, with interest at the highest
amount allowed by law, and the City may take any action, including any legal action it deems
necessary, to recover such amounts from Developer; or
( e) The City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to enforce performance and observance of any
obligation, agreement, or covenant of Ewing, Vintage or Developer, as the case may be, under
this Agreement.
(f) The City may draw upon any maintenance or performance bond provided to the
City pursuant to any of the terms of this Agreement according to its terms.
27
Section 11.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
City is intended to be exclusive of any other available remedy or remedies, but each and every
remedy shall be cumulative and shall be in addition to every other remedy given under 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 11.4. 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.
ARTICLE XII. MISCELLANEOUS
Section 12.1. Conflict oflnterest. Ewing, Vintage and Developer agree that, to the best of
their knowledge and belief, no member, officer or employee of the City, or its 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, shall have any interest, direct or indirect, in any
contract or subcontract, or the proceeds thereof, for work to be performed in connection with the
Project, or in any activity, or benefit therefrom, which is part of this Project at any time during or
after such persons' 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
(a) In the case of Ewing and Vintage, is addressed or delivered personally to
909 W. 16th Street, Pella, Iowa 50219, Attn: Josh Cowman
(b) In the case of the Developer, is addressed or delivered personally to 340 Herky
Street, North Liberty, IA 52317, Attn: James P. Glasgow and Joseph G. Stiltner; and
(b) In the case of the City, is addressed to or delivered personally to the City
Manager at City Hall, 410 E. Washington St, Iowa City, Iowa, 52240,
or to such other designated individual or officer or to such other address as any party shall have
furnished to the other in writing in accordance herewith.
Section 12.3. 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 12.4. Memorandum of Agreement. The parties agree to execute and record a
Memorandum of Agreement, in substantially the form attached as Exhibit I to serve as notice to
28
the public of the existence and provisions of this Agreement, and the rights and interests held by
the City by virtue hereof. The Developer shall pay all costs of recording.
Section 12.5. Counterparts. This Agreement may be executed m any number of
counterparts, each of which shall constitute one and the same instrument.
Section 12.6. Governing Law. This Agreement shall be governed and construed m
accordance with the laws of the State of Iowa.
Section 12.7. Administration of Agreement by City. The City Manager or designee shall
administer the rights and obligations of the City hereunder, and shall have the authority to provide
any consent or approval of the City contemplated in this Agreement.
Section 12.8. Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement between the parties regarding the subject matter hereof, and supersedes and replaces all
prior agreements, negotiations or discussions, whether oral or written. This Agreement may not
be amended except by a subsequent writing signed by all parties hereto.
Section 12.9. Successors and Assigns. This Agreement is intended to and shall inure to
the benefit of and be binding upon the parties hereto and their respective successors and assigns.
Section 12.10 No Third-Party Beneficiaries. No rights or privileges of either party hereto
shall inure to the benefit of any landowner, homebuyer, contractor, 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.
Section 12.11. Termination Date. This Agreement shall terminate and be of no further
force or effect on and after July 1 following the tenth fiscal year beginning with the second fiscal
year after the year in which the City first certifies to the County Auditor the amount of any loans,
advances, indebtedness, or bonds which qualify for payment from the division of the revenue in
connection with the Project, or other cause of termination exists as provided herein. For example,
if the City first certifies loans, advances, indebtedness or bonds by December 1, 2019, the tenth
fiscal year period ends June 30, 2031 and this Agreement would terminate on July 1, 2031.
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk,
and Ewing, Vintage and Developer have caused this Agreement to be duly executed in its name
and behalf by their authorized representative, on or as of the day first above written.
[Remainder of this page intentionally left blank. Signature pages to follow.]
29
(SEAL) CITY OF IOWA CITY, IOWA
BY:~/.~
James kogmorton, May{)!
ATTEST:
Approved By ~~:. ~·. ~~"~St .... ~ ti, Julie ~1, Deputy City Clerk
""1d-1 (4 ,fiU£1u1tmizl J/eicyp_.,
City Attorney's Office 7 / 12. / 1 B
CITY OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
On this J ~ day of July 2018, before me a Notary Public in and for said County,
personally appeared James A. Throgmorton and Julie Voparil . to me personally known, who
being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City oflowa
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 Municipal 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.
SARA F. G. HEKTOEN
Commission Number 737583
My Comm· io Expires ,, (} ;;le)
Notary Public in and for the State oflowa
30
VINTAGE COOPERATIVE OF IOWA CITY ACKNOWLEDGEMENT
STATE OF ~wo.. )
)SS
)
-1"' -r _ This instrument was acknowledged before me on this -12._ day of -Ju& , 2018, by
.Jo5h Cbw,vt.a..r-. as 1r,s,'dcc.L-/ of VINTAGE OPERATIVE
OF IOWA CITY.
@ ROBERT A. Jl,f:-.1:~i;,:s ~ Convnlsslon Number 2247Hl ' My comr.;:::ron Expires 9 -<:c -m;uJ
.3 o .
Notary Public in and for
31
Ew_™~OPMENT & SERVICES, L.L.C.
BY. --
f.df/5.y '") , Member
EWING LAND DEVELOPMENT & SERVICES, L.L.C. ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
@ ROBERT A. Jqorm:::i
. i: Commission Number 224718
• ~ Commission Expires -;t 9'. ·· eWaa
)
)SS
)
32
FOSTER ROAD DEVELOPERS, LLC
FOSTER ROAD DEVELOPERS, LLC ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this Q__ day of July, 2018, by James
P. Glasgow and Joseph G. Stiltner as managers of FOSTE~ ROAD ~I LOPERS, LLC.
Notary Public in and for th ate of Iowa .soi~ MICHAEL J PUGH z f-Commission Number 175282
• • My Commission Expires
ow July 26, 2018
{00246105 3} 33
(
EXHIBIT A
MAP OF URBAN RENEW AL AREA
Foster Road Urban Renewal Area
/ /
/ /
,/
/ /, ,,,.··
,// ,/,.,./
•,:,.-, .. r,..:.,i.f,'
.~""'
t• ,,.,\ .1 ..... , h;~:.:::··
Cln' OF IOWA CITY
34
C) Urban Renewal Area
--Parcel Lines
0 150 300 600 111•c:==-••••Feet
I
..,1'
/ / /
,\.-
/ v····· I/
EXHIBIT B
LEGAL DESCRIPTION OF URBAN RENEWAL AREA
Commencing at the Northwest comer of Lot 16, Balls Subdivision, as shown in Plat Book 3, Page
100; proceeding northeasterly along the south right-of-way line of Foster Road, as shown in
Exhibits A-1 and B-1 of the Condemnation records recorded in Book 3100, Page 358; thence
following said ROW line to its intersection with the East-West lf4 Section line ofNW lf4 of Section
3, Township 79N, Range 6W; thence East along said Section line to the SE comer of the NE lf4 of
the NW lf4 of Section 3, Township 79N, Range 6W; thence continuing East along the East-West
1/4 section line to the SW comer of the NE 1/4 of the NE 1/4 of Section 3, Township 79N, Range
6W, as shown on the Final Plat of a re-subdivision of Lot 30, Conway's Subdivision, Plat Book
17, Page 53; thence North along the West line of Lot 30, Conway's Subdivision, Plat Book 4,
Book 253, to the Northwest comer of Lot 25, Conway's Subdivision, Plat Book 4, Page 253;
thence northeasterly along the North boundary of Conway's Subdivision to the Northeast comer
of Lot 15 and continuing easterly to the eastern Prairie Du Chien Road ROW line; thence
northwesterly along the eastern ROW line to the Northeast comer of Auditor's Parcel "A",
recorded in Plat Book 32, Page 52, said line also being the South ROW oflnterstate 80 as shown
in the Plat of Survey recorded in Book 32, Page 53 and as described in Book 4224, Page 896 and
Book 2944, Page 267; thence West along the SouthI-80 ROW to the Northwestern comer of Lot
4, Yocum Subdivision, Plat Book 5, Page 77, said comer being the intersection of the I-80 South
ROW line and the East-West line between Section 3, Township 79N, Range 6W and Section 34,
Township 80N, Range 6W; thence East along said section line to the Northwest comer of Auditor's
Parcel 2014052, Book 58, Page 324; thence South along the West side of said Parcel to the
Southeast comer of Pine Ridge Subdivision, Plat Book 46, Page157; thence westerly along the
south side of Pine Ridge Subdivision to the Southwest comer of Lot 1, Pine Ridge Subdivision;
thence Southeasterly to the point of beginning
35
EXHIBITC
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
The Development Property is described as consisting of all that certain parcel or parcels of
land located in the City of Iowa City, County of Johnson, State of Iowa, more particularly
described as follows:
Lot 3, Forest Hill Estates, according to the amended plat thereof recorded in Book
(!) 'J.. , Page J.Q!j__ in the records of the Johnson County, Iowa Recorder, and all of
the Foster Road right-of-way from the centerline of the Dubuque Street right-of-
way east to the eastern line of the Prairie du Chien right-of-way.
36
EXHIBITD
MINIMUM IMPROVEMENTS AND USES
Public Improvements
Developer shall construct approximately 3,400 linear feet of public infrastructure to extend Foster
Road from Dubuque Street to Prairie du Chien Road. Said public infrastructure shall include
grading, landscaping in accordance with a City-approved landscaping plan; concrete paving a 36'
wide arterial roadway, an 8' wide multi-use path along the north of the roadway, and 5' wide
sidewalk along the south of the roadway; installing a 12" water main, storm sewer infrastructure,
including piping, curb inlets, and perimeter drains, sanitary sewer, tile lines, drainageways;
establishing erosion control measures as required by the City; and installation of fiber optic
interconnect ducts. The roadway shall include a 2-lane cross section with two (2) buffered,
dedicated perimeter bike lanes along the entire length of roadway, with a tum lane at the
intersection of Foster Road and Prairie du Chien Road. The lane width will be as determined by
the City.
Landscaping shall be installed according to a landscape plan to be approved by the City Forester,
and in accordance with this Agreement and the Iowa City Code of Ordinances. The selection of
street trees along the roadway will reflect species recommendations from the ISU Agricultural
Extension Department. A mix of deciduous trees will be planted along both the North and South
sides of Foster Road and will be located within the City-owned right-of-way. The trees will be
planted to avoid utilities. The landscaping between the trees, as well as shoulder areas outside the
sidewalks, will be planted with the Iowa DOT urban seed mix.
Elder Apartment Housing
Lot 3, Forest Hill Estates Subdivision, shall be developed by Ewing with an elder apartment
housing development, as defined in the Iowa City Code of Ordinances, Section 14-9A, that
includes at least 50 Dwelling Units consisting of a mix of I-bedroom, 2-bedroom, and 3-bedroom
units. Said elder apartment housing development shall be constructed in accordance with the
Sensitive Areas Development Plan approved pursuant to Ordinance 18-4740, as shown in Exhibit
E hereto.
37
{00247778}
EXHIBITE
PLANNED DEVELOPMENT
SENSITIVE AREAS DEVELOPMENT PLAN
38
APPLICATION FOR REZONING
FOSTER ROAD PLANNED DEVELOPMENT
SENSITIVE AREAS DEVELOPMENT PLAN
(REVISED 02.13.18)
IN THE CITY OF IOWA CITY, JOHNSON COUNTY, IOWA
APPLICANT INFORMATION
PROPERTY OVVNER:
WASHINGTON PARK PARTNERS
PO BOX220B
IOWA CITY, IA 52244-2208 319-351-6788
PROJECT APPLICANT:
IJNIVERSllY LAKE PARTtERS 11, LLC
340 t-ERKY STREET NORTH LIBERTY, IA 52317
319-351-6788
SITE INFORMATION
PROPERTY INFORMATION:
PROPERTY AREA
CURRENT ZONING
PROPOSED ZONING
REQUESTED VARJANCES:
5J.29ACRES
RS-12
OPD-12& CQ.1
1. MIN!MUM 40' FRONT SETBACK REQUIRED Al.ONG ANY LOT
LINE ABUTTING AN ARTERIAL STREET. PROJECT PROPOSES VARIOUS FRONT SETBACKS DEPENDENT ON
USE AND BUl'..OING HEIGHT
2. UNDERLYING ZONE IS RS-12: PROJECT PROPOSES MULTI-FAMILY USE.
3 MINIMUM 10' SEPARATION BETWEEN BUILDINGS ANO
PAVING; PROJECT PROPOSES 4' SEPARATION AT 4
LOCATIONS ON LOT 4 FROM BUILDING TO BACK OF
SICEW\LK
BUILOl:.to SETBACK INFORMATION:
FRONT YARD
S!DE YARD
REAR YARD
tSFEEr tO FEET
20 FEET
~ NOT TO SCALE
JOWA CITY, JOHNSON COUNTY, IOWA
PARCEL #0734454002
7.97 ACRES
PARCEL #0734454001
5.14 ACRES
LEGAL DESCRIPTION
SUBMITTED SEPARATELY
PARCEL #0734380001
10.79ACRES
--EXISTING LOT LINES SHOWN HERE. PROPOSED LOT LINES
SHOWN ON PLANS ARE CONCEPTUAL ONLY AND SUBJECT TO
CHANGE. FINAL LOT LINES WILL BE PROVIDED WITH PLAT
SUBMITTAL.
PARCEL #1003126003
21 .65ACRES
::~ II
PARCEL #0734484003
0.25 ACRES
SHEET
C0.00
C1.00
c,.01
CUl2
Cl.03
C2.00
C201
C2.02
C2.D3
C2.04
AO.DO
A1.00
A2.D0
A2.01
A2.02
AZ.OJ
A3.00
A3.01
A3.02
L1.01
INDEX DF SHEETS
mLE
COVER SHEET
CIVIL
EXISTING TOPOGRAPHIC PLAN
DENSITY EXHIBIT
EXISTING SENSITIVE AREAS
PROPOSED LOT LAYOUT/PLAT
SENsmVE AREAS DEVELOPMENT PLAN
SITE PL.AN -LOTS t & 2
SffE PLAN • LOT 3
SITE PLAN -LOT 4
SITE PLAN • LOT 5
RENDERING OVERVIEW
UNIT A RENDERINGS
UNIT B1 RENDERINGS
UNIT 82 RENDERINGS
UNIT 00 RENDERINGS
UNIT 84 RENDERINGS
UNIT Cl RENOtRJNGS
UN!T C2 RENDERINGS
UNIT C3 RENDERINGS
LANDSCAPE
LANDSCAPE PLAN· LOTS 1 & 2
BUILDING INFORMATION
BUILDING INFORMATION:
BUILDING AREA BREAKOOW>I
SENIOR HOUSING 99,!D:i SF SErtOR HOUSING ~RAGE PARKING 133,715 SF
TO'M'JHOMES 54,722 SF
UNIT BREAKDO\IVN J SENIOR HOUSING·
1·BEOROOM UNITS
2-BEOROOM UNITS
3-BEOROOM UNITS 26
MULTI-FAMILY RESIDENTIAL
3-BEOROOM UN1TS ,7,11 TOTAL UNITS
-~,
["1"1:0540
FOREST Hill EST ATES
hbk JINGINJJBIU.NO
OMl[II;
1/ASHINGTON PARK PNUNERS
fl080X220II
IONACITV, IA522"44-22De
3U-Jli1-57M
II UN~~~-PARTNERS M, UC
340 HER KV STREET
NORTH USERTY, IA52317
31i-l51-87M
l°"n•~t11~·201B
DRA\MNGLOG
R~
l"'!Utt'T~E~BAcKER
~~
I.M ..... fl'IL•·
COVER SHEET
1-"· co 00
~ ~ ~~ > ~ ~! w ~ 0: o>-~ ~ ~ ~ i g iil • 0 <Z ~d
i~
u '<t oUJ ~~ a::i ..o~ !i ~ &; ~ ;; . " I I{) a:is i ~ i p a. 0 !L Q ~-I! ,~ < r-!. -~~ a~ ~ a: Hlw e~j ~ u i! n i~ ~ LL 0 . . ~ •o ~ I n -! .... •
]1
'""'---~
PROPOSED DEVELOPMENT
DENSITY SCHEMATIC
DENSITY ANALYSIS
[ 11111111111 I I 1
1
1 11111111111M
I I I I I I I I I I I I I I I I I I I 1r I
PLANNEC DEVELOPME:NT OV£RLAV ZONE
UNDERLYING BASE ZONE: RS-12
MAXIMUM RESIO[NTl/\1.. ormm (14-lA,-4.0.2): l3 DWELLING
UNl~ACRE
MINIMUM LOT SIZE (DUPLEXES, TABLE 14-2.A-2): 6,000 SF
MINIMUM AREA/UNIT (DUPLEXES): 3,000SF
RS-12 DUPLEX LOT OIMESIONS:
MINIMUM LOT WIDTH: 55 FEET
FRONTAGE: 40 FEET
FRONT SETBACK: 15 FEET
SIDE SETBACK: S FEET+ 2 FEET PER STORY OVER 2 STORIES
REAR ~BA.CIC: 20 FE£T
TRADmONAL LAYOUT
GROSS SQUARE FOOTAGE: 2,321,3n SF= Sl.29 AC.
RIGHT-OF·WAY (MIN 60' WIDTH): 822,315 Sf
NETDEVELOPABLE SQUARE FOOTAGE: 1,499,062 SF= 34.41 AC
SCHEMATIC DCNSITY SHOWN: 194 LOTS; 388 DUs
ALLOWABLE DENSITY PER RS-12: 34.41 AC• UOU/AC =447 DUs
PROPOSED DEVELOPMENT
GROSS SQUARE FOOTAGE: 2,321,377 SF"' 53.29 AC.
RIGHT OF WA'f(60' WIDTH): 148,620 SF
DEVELOPED AREA: 696,450 SF= 15.98AC
OPEN SPACE PRESERVED: l,476,307 SF"' 33.89 ACRES
PROPOSED O(NSllY: ll2 DUs
'"15pm t\P,o)'c1\1J~0\!1o,Q\C..0\1""1.ni:...:l\~lt\b1..,.,,\l7DS4D•RL!OWL'IG 1-,-11.dtl,
...... "' ~-.,/' ITUJ?LiIIITL._~,
~~ .e,
'
17-0540
FOSTER ROAD
DEVELOPMENT
hbk
BNGINBBRINC
WA5HjNGTON PARK PARTNERS
IOINACITY. IA52244-2203
UNIVERSITY L.AkE
?ARlNERS N, LLC
340 HERKY S TRfET
NORTH LI BERT'I', IA 52317
319-351-87&8
r,.;,~~-L 01-1e.:.201a
DRAWNGLOG
1~,~BACKER I
~~
DENSITY EXHIBIT
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319-351-5781
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PAR1NERS II, LI.C
340 HERKY STREET
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31i-351-a7!ll
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311-351"97&a
,-· UNIVERSITYI..AKI!:
PARTNERS II, LLC
:WO HERKY STREET
NORlH LIBERTY, IA 52317
319-351-6788
IGlllCa:Ot~tB-201B
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TOTAL PARKING REQUIRED: 2 STALLS/DU; 14
STALLS
TOTAL PARKING PROVIDED: 14 STALLS
(1 STALL GARAGE, 1 STALL DRIVEWAY EACH)
LEGEND
PROTECTED SLOPE
(-40%•)
PROTECTED SLOPE
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STEEP SLOPE {13-25%)
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319-l51-67&8
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PARTNERS !I, LLC
340 lsERKY STREET
NOR'TH LIBERTY, IA 52317
319-351-8789
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I . .· -(INCLUDING 67 INTERIOR/UNDERGROUND)
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PLEASE REFER TO SEPARATE
SITE PLAN SUBMITIAL FOR
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:MO HERKY STREET
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311-351..0708
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1-C2 02
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(4) 4-UNIT TOWNHOMES (3 BR EACH)
BLDG FOOTPRINT= 3680 SF EACH
(1) 5-UNIT TOW.HOMES (3 BR EACH)
BlDG FOOTPRINT = 4600 SF EACH
TOTAL O'MoLLING UNITS: 33 3-BR UNITS
TOTAL PARKING REQUIRED: 2(33) • 88 STALLS
TOTAL PARKING PROVIDED: 132 STALLS (2 GARAGE & 2
SURFACE PER UNIT)
BUILDINGS FRONT PRIVATE STREET: BUILDING TYPE B
BUILDINGS FRONTING FOSTER ROAD: BUILDING TYPE C
GLASGOWORIVE SECTION (PRIVATE ROAD)
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CONSTRUCTION LIMITS -----
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.......SHINGTON PARK PARTNERS
!ONA CITY, IA 5224-1-220&
]1a.351-tl788
-· UNIVERSll'f LAKE
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340 HER~ STREET
NCH.TH LIBERTY, IA52317
319-351-671Sa
f"'"·--·· L 01-1s-201B
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(1) 3-UNITTOINNH®ES (3 BR EACH) BLOG FOOTPRINT= 2760 SF EACH
(3) 4-UNIT TO:'lh,IHOMES (3 BR EACH)
BLDG FOOTPRINT "3880 SF EACH
TOTAL DWELLING Ul\1TS: 193-BR UNITS
TOTAL PARKING REQUIRED: 2(19) = 38 STALLS
TOTAL PARKING PROVIDED: 76 STALLS (2 GARAGE & 2
SURFACE PER UNIT)
l.. 1
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LEGEND
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CRITICAL St.OPE
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WETLANDS
100'BUFFER
'MJOOL.ANOS
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NORTH UBERTV. IA.52317
31 .. J.51.e78S
SITE PLAN· LOT 5
r: C2M
UNIT A· FRONT PERSPECTIVE -NTS
UNIT 81 • FRONT PERSPECTIVE -NTS
FINISHES VARY FROM UNIT TO UNIT
UNIT C1 -FRONT PERSPECTIVE -NTS
FINISHES VARY FROM UNIT TO UNIT
UNIT A · REAR PERSPECTIVE -NTS
UNIT B -REAR PERSPECTIVE • NTS
UNIT C -REAR PERSPECTIVE -NTS
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HOK ENGINEERING, LLC
509 S. GILBERT ST.
IOWA CITY, IA 52240
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toNAOEPMTlrEN'f °'"""" ~ISTRATION NO 00527328
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UNIT A -FRONT ELEVATION -NTS
UNIT A -REAR ELEVATION -NTS
UNIT A -LEFT ELEVATION -NTS
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1,-,io,l[l:T-[~-
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UNIT C1 -FRONT ELEVATION -NTS
UNIT C1 -LEFT ELEVATION -NTS UNIT C1 -RIGHT ELEVATION -NTS
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sag S. GILBERT ST
tOWA CITY, IA 52240 PHONE: (319) 338-7557
IOWA OEPARTMEM I OFlABOR
REQISTRATION NO D05273211
TO l!!E DETERMINED
f'ii'i•-· L 12-31-2011
DRA'MNGLOG
1·-~ -~-
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UNITB1
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FINISHES:
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UNIT C2 -FRONT ELEVATION · NTS
UNIT C2 -LEFT ELEVATION -NTS UNIT C2 -RIGHT ELEVATION -NTS
·<+>· i-J...~Niw
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509 S. GILBERT ST.
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UNIT C3 • REAR PERSPECTIVE -NTS
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UNIT C3 • LEFT ELEVATION -NTS UNIT C3 • RIGHT ELEVATION -NTS
'
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509 S. GILBERT ST.
IOWACITY, IA52240
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UNIT G4 • FRONT ELEVATION -NTS
UNIT C4 -LEFT ELEVATION · NTS UNIT C4 • RIGHT ELEVATION -NTS
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IOWA CITY, IA 52240
PHONE: ('J19) 338--7557
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UNIT B1 -FRONT ELEVATION • NTS
UNIT B1 -LEFT ELEVATION -NTS
UNIT B1 -REAR ELEVATION · NTS
UNIT 81 • RIGHT ELEVATION -NTS
·~·
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ORAPHIC S~LE
['11:0540
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509 S. GILBERT ST.
IOWA CITY, IA 52240
PHONE: (319) 338-7557
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FINISHES: MASONRY FACADE
FIBERBOARD HORIZ SIDING
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UNIT 82-FRONT ELEVATION-NTS
UNIT 82 -LEFT ELEVATION · NTS
UNIT 82 -REAR ELEVATION -NTS
UNIT 82 -RIGHT ELEVATION · NTS
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509 S. GILBERT ST
IOWA CITY, IA 52240
PHONE: (319) 336-7557
IOWA DE?AHfLl!;:I\JT
°'"'""' REC313TAATION
NO 0052132&
LJ
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1·-m-_
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L A3.01
FINISHES:
MASONRY FACADE
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UNIT 83 FRONT ELEVATION -NTS
UNIT 83 -LEFT ELEVATION -NTS
UNIT 83 -REAR ELEVATION -NTS
UNIT 83 -RIGHT ELEVATION -NTS
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HBK ENGINEERING, LLC
509 S. GILBERT ST
IOWA CITY, IA 52240
PHONE: (319) 338-7557
ICNiADEPARlllENl a,~
REGISTRATION NC ll05o'2l'32B
-•-e0tt1&.c;ooo
TO BE DETEFNINED
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l*"ttTIUJIIAaElt: __
~~
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L A3.02
1-i..i..wi OAAPHICSCAI.E
IOWA CllY CODE OF ORDINANCES
14-SF-6 · SCREENING STANDARDS
HIGH SCREEN, S3:
1, INTENT: THE S3 STANDARD IS A BUFFERING TREATMENT THAT USES
DENSE LANDSCAPE SCREENING TO PROVIDE A VISUAL AND PHVSICAL
SEPARAllON BETWEEN USES AND ZONES. IT IS COMMONLY APPLIED
BETWEEN RESIDENTIAL USES ANO COMMERCIAL AND INDUSTRIAL USES
ANO TO SCREEN OUTDOOR WORK OR STORAGE AREAS.
2. REQUIRED MATERIALS: ENOUGH SHRUBS AND SMALL EVERGREENS
TO FORM A CONTINUOUS SCREEN OR HEDGE AT LEAST FIVE FEET [S') TO
SIX FEET (6'} IN HEIGHT AND MORE THAN FIFTY PERCENT (50%} SOLID
YEAR ROUND. SCREENING MATERIALS MUST BE AT LEAST THREE FEET (3'1
HIGH WHEN PLANTED. AT LEAST ONE-HALF (1/2) THE SHRUBS MUST BE
EVERGREEN VARIETIES.
a. ALTERNATIVE MATERIALS (OPTION A): A BERM MAY BE USED IN
CONJUNCTION WITH A HEDGE TO ACHIEVE AN OVERALL HEIGHT OF SIX
FEET 16'}.
b. ALTERNATIVE MATERIALS (OPTION B): A CONTINUOUS OR
SEMICONTINUOUS FIVE (SJ TO SIX FOOT (6') HIGH MASONRY WALL OR
SCUD FENCE. BREAKS IN THE WALL OR FENCE ARE PERMJmD FOR
ACCESS AND TO ACCOMMODATE REQUIRED STREET TREES. ONE SHRUB
PER TEN (10} LINEAR FEET Of WALL, ON AVERAGE, IS REQUIRED. SHRUBS
MAY BE GROUPED, BUT LONG STRETCHES WITHOUT ANY SHRUBS SHOULD
BE AVOIDED. AT LEAST ONE-THIRD (1/3) OF THE SHRUBS MUST GROW TO
NO LESS THAN FIVE FEET (5'} IN HEIGHT.
• PlAN SHOWS VEGETATED S3 SCREENING.
• FINAL SCREENING DESIGN TO BE DETERMINED AT TIME OF
SITE DEVELOPEMENT.
• FINAL DESIGN TO BE IN ACCORDANCE WITH THE ABOVE
SCREENING REQUIREMENTS IN THE IOWA CITY CODE OF
ORDINANCES.
TYPICAL SCREENING PLANTINGS
~ E!OTANICALNoloMJ!ICQMMQNNAME = ~~--,-
0 Stn•n• .. rgr-.ltlll'9wi.•rc11..,.,vr11nlhru11 ® M1~ium1WfVM~T-L•iva-ro,..n1hrub 21
0 lol.11C111m~ .. lhrub
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W\StlNGTON PA!U(PARTNERS
POII0><22DII
IOWA CllY, IA 5'2244-220!!
31g.)S1.flla8
UNIVERSITY LAKf
PAATN~RS II, LLC
3411 HERKY STREET
NORTH LIBERTY, IA 5.2317
J19-351.fl7S8
[IIA.1l!IUIMl1{t,s-2018
DRAWNGLOG
1-•!l:TA.ASHMc~
~~ , ....... -,.
NDSCAPE PL.AN -LOT
1&2
I"~' L1 01
EXHIBIT F
CERTIFICATE OF COMPLETION
WHEREAS, the City of Iowa City, Iowa (the "City"), Vintage Cooperative of Iowa City
("Vintage"), and Foster Road Developers, LLC. ("Developer"), did on or about the __ day of
_______ , 2018, make, execute and deliver, each to the other, an Agreement for Private
Development (the "Agreement"), wherein and whereby the Vintage and Developer 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:
Lot 3, F crest Hill Estates, according to the amended plat thereof recorded in Book
__ ,Page __ , and all of the Foster Road right-of-way from the centerline of the
Dubuque Street right-of-way east to the eastern line of the Prairie du Chien right-
of-way.
WHEREAS, the Agreement incorporated and contained certain covenants and restrictions
with respect to the development of the Development Property, and obligated Vintage and
Developer to construct certain Minimum Improvements (as defined therein) in accordance with
the Agreement; and
WHEREAS, Vintage and Developer 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 3.4 of the Agreement, this is to certify that all
covenants and conditions of the Agreement with respect to the obligations of Vintage and
Developer, their successors and assigns, to construct the Minimum Improvements on the
Development Property have been completed and performed by Vintage and Developer, and are
hereby released absolutely and forever terminated insofar as they apply to the land described
herein. The County Recorder of Johnson County 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 Minimum Improvements on the Development Property.
All other provisions of the Agreement shall otherwise remain in full force and effect until
termination as provided therein.
[Remainder of this page intentionally left blank. Signature pages to follow.]
39
(SEAL) CITY OF row A CITY, row A
By: _______________ _
, Mayor
ATTEST:
By:----------------
, City Clerk
STATE OF IOWA )
) ss
COUNTY OF JOHNSON )
On this day of , 2018, before me a Notary Public
in and for said State, personally appeared , 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 Municipality 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 Municipality, and that said instrument was
signed and sealed on behalf of said Municipality 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
Municipality by it voluntarily executed.
Notary Public in and for the State of Iowa
40
City of Iowa City
410 E. Washington Street
Iowa City, Iowa 52240
EXHIBITG
ENFORCEABILITY OPINION
(to be printed on firm letterhead)
RE: Agreement for Private Development by and among the City of Iowa City, Iowa
Ewing Land Development & Services, L.L.C., and Foster Road Developers,
LLC.
Dear City Representatives:
We have acted as counsel for , an Iowa limited liability company (the
'"Company"), in connection with the execution and delivery of a certain Agreement for Private
Development (the "Development Agreement") among the Company, and the City
oflowa City, Iowa (the "City") dated as of , 2018.
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the following:
(a) The organization and operating agreement of the Company;
(b) Resolutions of the Company 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 we 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 we have
deemed appropriate, we are of the opinion that:
1. The Company was duly organized and validly exists as a limited liability company
under the laws of the State of Iowa and is qualified to do business in the State of Iowa. The
Company has 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 Company 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 Company 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 Company 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 Company or any
41
indenture, mortgage, deed of trust, indebtedness, agreement,judgment, decree, order, statute, rule,
regulation or restriction to which the Company is 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 Company in any court or before any arbitrator or before or by any governmental body in which
there is a reasonable possibility of an adverse decision which could materially adversely affect the
business (present or prospective), financial position or results of operations of the Company or
which in any manner raises any questions affecting the validity of the Agreement or the Company's
ability to perform its obligations thereunder.
Sincerely,
42
(
EXHIBITH
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
This Temporary Construction Easement Agreement is made on this l f'l> day of 1,t,~ , 2018, by and among the City of Iowa City, Iowa ("City"), a
municipaity, Vintage Cooperative oflowa City ("Vintage"), a limited liability company organized
under the laws of the State of Iowa and having an office for the transaction of business at 909 W.
16th Street, Pella, Iowa 50219 and Foster Road Developers, LLC. ("Developer"), a limited liability
company organized under the laws of the State oflowa and having an office for the transaction of
business at 340 Herky Street, North Liberty, Iowa 52317.
WHEREAS, Vintage is the fee owner of certain real estate legally described as Lot 3, Forest Hill
Estates, according to the amended plat thereof recorded in Book (_p ;;._, Page Jf!_j, in the records
of the Johnson County, Iowa Recorder ("Development Property"); and
WHEREAS, Developer is the fee owner of certain real estate legally described as Lots 1, 2, 4 and 5,
Forest Hill Estates, according to the plat thereof recorded in Book 62, Page 54, in the records of
the Johnson County, Iowa Recorder; and
WHEREAS, the City oflowa City is the owner of certain real estate legally described as the Foster
Road right-of-way from the centerline of the Dubuque Street right-of-way east to the eastern line
of the Prairie du Chien right-of-way ("Right-of-Way"); and
WHEREAS, Vintage, Developer and the City have entered into an Agreement for the Private
Development of said Development Property and Right-of-Way, with a memorandum of said
agreement having been recorded with the Johnson County Recorder in Book~' Page 5/ ~51 on
\1J1 V·1 , 2018;
WHEREAS, Vintage and Developer have requested the City permit the temporary private use of the
Right-of-Way for construction of those right-of-way improvements described in the Agreement for
Private Development; 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 municipal functions will be manageable, and also finds that such temporary private uses
are in the public interest; and
WHEREAS, the Director of Transportation Services has reviewed the requested temporary private
use of the Right-of-Way, and finds that such request is reasonable.
NOW, THEREFORE, IN MUTUAL CONSIDERATION OF THE PROMISES HEREIN, THE
PARTIES HERETO AGREE AS FOLLOWS:
43
1. In consideration of the City's permission herein to temporarily close the Right-of-Way during
construction of the project detailed in the above-described Development Agreement, Vintage
and Developer agree to:
a. secure the Right-of-Way against vehicular or pedestrian traffic by providing adequate
pedestrian passage, adequate traffic control, by providing adequate signage, and by securing
all open excavations from pedestrians, thereby ensuring public safety.
2. In consideration of Vintage's and Developer's promises herein, the City agrees to allow
Ewing and Developer to temporarily fence and close the Right-of-Way and to construct those
certain improvements described in the Agreement for Private Development on and over the
Right-of-Way pursuant to the limitations set forth in this easement agreement and the
Agreement for Private Development.
3. Vintage and Developer agree to provide, keep in place, and maintain in good working
condition certain fencing and signage 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. Vintage and Developer shall be responsible for the removal, storage, and replacement of
items located within the easement which could be damaged during the construction. Items
include, but are not limited to, signage, parking gates, benches, bricks, planters, downspouts,
lighting and electrical services.
5. Vintage and Developer 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 Vintage and Developer to
temporarily close a portion of public property described herein. Vintage and Developer 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. Vintage and Developer shall furnish a certificate of
insurance evidencing said valid insurance coverage to City, which certificate must be
satisfactory to the City. Vintage and Developer shall submit a certificate of insurance to the
City prior to the commencement of construction.
6. If Vintage and Developer fail 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
44
be billed to Vintage and Developer for payment to City. Upon Vintage and Developer's failure
to pay said billing, the removal costs shall be certified to Johnson County as a statutory lien
and assessed against the property owned by Vintage and Developer described in the preamble
hereto and collected in the same manner as a property tax, as provided in Section 364.12(2)(e),
Iowa Code (2017).
7. 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 Section ~ of the Development
Agreement described above.
8. Notwithstanding the above, Vintage and Developer 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. Vintage and Developer acknowledge and agree that no property right is conferred by this
grant of permission to use the easement area.
l O. 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.
11. This Agreement for Temporary Construction Easement shall be recorded in the Johnson
County Recorder's Office, at Developer's expense.
(SEAL) CITY OF IOWA CITY, I':!"!/'(
BY:~/./~~-
James.Throgmorton, Mayor
ATTEST:
··~
BYi:-~~S:t ...
Jul~l, Deputy City Clerk
FO~TER ROAD DEVEL7C
BY. ,,.
James P. Glasgow, Manager
BY: -.,,----------------Joseph G. Stiltner, Manager
_./'
45
be billed to Vintage and Developer for payment to City. Upon Vintage and Developer's failure
to pay said billing, the removal costs shall be certified to Johnson County as a statutory lien
and assessed against the property owned by Vintage and Developer described in the preamble
hereto and collected in the same manner as a property tax, as provided in Section 364.12(2)(e),
Iowa Code (2017).
7. 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 Section 1..J_ of the Development
Agreement described above.
8. Notwithstanding the above, Vintage and Developer 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. Vintage and Developer 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 of
both parties.
11. This Agreement for Temporary Construction Easement shall be recorded in the Johnson
County Recorder's Office, at Developer's expense.
(SEAL) CITY OF IOWA CITY, IOWA
~!e~o~ ~~=:::r---
ATTEST:
~ . ~-\\ c::::: BY:~~~~A,
Julie Voparil, Deputy City Clerk
-V'EOF IOWA CITY
BY:-+-+--------"-----"1---'-----Jame P. lasgow, Manager
~o~~h k'ttner~~~
{00246105 3} 45
CITY OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
On this Jg>+"") day of July 2018, before me a Notarv Public in and for said County,
personally appeared James A. Throgmorton and Julie Voparil to me personally known, who
being duly sworn, did say that they are the Mayor andDeP.uty Clerk, respectively of ~the City of Iowa
City, Iowa, a Municipal Corporation, created and existing under the laws of the State 01. 1.v'~a, anu
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 Municipal 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.
d'~~ Notary Public in andforState of Iowa
VINTAGE COOPERATIVE OF IOWA CITY ACKN
STATE OF IOWA
COUNTY OF JOHNSON
)
)
This instrument was acknowle ged before me on this __ day of July, 2018, by
, as / of VINTAGE COOPERATIVE OF IOWA CITY. ------
/
/ Notary Public in and for the State of Iowa
FOSTER ROAD DEVELOPERS, LLC ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this / A day of July, 2018, by James P.
Glasgow and Joseph G. Stiltner as managers of FOSTER ROAD DEV OPERS, LLC.
~
{ 00246105 3} 46
(
CITY OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
On this _l!'_l--1\._ day of July 2018, before me a Notary Public in and for said County,
personally appeared James A. Throgmorton anc:. Julie Voparil , to me personally known, wh.o
being duly sworn, did say that they are the Mayor andDeputy(Clerk, respectively of tne City of low,
City, Iowa, a Municipal Corporation, created and existing under the laws of the State of:lowd, ana
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 Municipal Corporation by authority and
resolution of its City Council and said Mayor and City Clerk acknowledged said instrwnent to be
the free act and deed of said Municipal Corporation y jt voluntarily xecuted.
"'Jo" CHRISTINE OLNEY I \ Commission Number 806232 * . , , . :1 * Mq Commission Expires L_ '~ ~fLL __ -s=-.r...i..,f-,,l,---'
Notary Public in and fo the State oflowa
VINTAGE COOPERATIVE OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This in§lrument was ac~np~~dged before me on this / 7 "'' day of July, 2018, by .Jo~J.. (oLL..'il{cn., as d:d&•L of VINTAGE COOPERATIVE OF IO A CITY.
._ ROBERT A. J~D!~!MS
, i: COmmlsslcn Number 224716 • My 1cm~-~lon ExP.lres -e--2::CP,d
tf~j-o . iJlu~J
Notary Public in and fort
FOSTER ROAD DEVELOPERS, LLC ACKNOWLEDGEME~
STATE OF IOWA ) _...,...
)SS ,,,
COUNTY OF JOHNSON ) ,,.
/'
This instrument was acknowledg(?,d befure me on this __ day of July, 2018, by James P.
Glasgow and Joseph G. Stil~er as managers of FOSTER ROAD DEVELOPERS, LLC.
.,,./
/~
Notary Public in and for the State of Iowa
46
~age 5 of 9
( EXHIBIT I
MEMORANDUM OF AGREEMENT FOR PRIVATE DEVELOPMENT
WHEREAS, the City of Iowa City, Iowa (the "City"), Ewing Land Development &
Services, L.L.C. ("Ewing"), a limited liability company organized under the laws of the State of
Iowa and having an office for the transaction of business at 909 W. 16th St., Pella, Iowa. 50219,
Vintage Cooperative oflowa City, a housing cooperative organized under the laws of the State of
Iowa and having an office for the transaction of business at 909 W. 16th St., Pella, Iowa 50219
("Vintage"), and Foster Road Developers, LLC. ("Developer"), a limited liability company
organized under the laws of the State of Iowa and having an office for the transaction of business
at 340 Herky Street, North Liberty, Iowa, 52317, did on or about the !¢ day of July, 2018,
make, execute and deliver an Agreement for Private Development (the "Agreement"), wherein and
whereby Ewing, Vintage and Developer agreed, in accordance with the terms of the Agreement,
to develop and maintain certain real property located within the City and as more particularly
des~ribed as follows:
Lot 3, Forest Hill Estates, according to the amended plat thereof recorded in Book
..fi..2=., Page /IJPj , and all of the Foster Road right-of-way located from the
centerline of the Dubuque Street right-of-way east to the eastern line of the Prairie
du Chien right-of-way.
WHEREAS, the tenn of this Agreement shall commence on the ltl4 day of .Jr47.,.... , 2018 and terminate on the Termination Date, as set forth in the Agreement;
and
WHEREAS, the City, Ewing, Vintage and the Developer desire to record a Memorandum
of the Agreement referring to the Development Property and their respective interests therein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
l. 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.
2. That all 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 Development Property in 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.
3. 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, 410 E. Washington Street, Iowa City, Iowa.
47
Book: 5817 Page: 51 Seq: 5
1;>age 6 of 9
IN WI1NESS WHEREOF, the City, Ewing, Vintage and Developer have executed this
Memorandum of Agreement for Private Development as of the ~ day of , )¥ ,
2018. .
CITY OF IOWA CITY, I~('
BY:~ L': ..
James ~rton, Mayor
ATTEST:
BY:~-~·~.~ . Julie V~D ...... epT'u""tl""y'""'co'fctif--,--y"'-C-1-e-r-k---
MENT & SERVICES, L.L.C.
CO~POAA Tf ~fAl
FOSTER ROAD DEVELOPERS, L.L.C.
BY:~ ~ ~N-<4-
Jame~ Mana er P
CITY OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
On this lft:I\ day of July, 2018, before me a Notary Public in and for said County,
personally appeared James A. Throgmorton and Julie Voparil to me oersonally known, who
being duly sworn, did say that they are the Mayor and Deputy Clerk, res~ectively of the City of Iow,
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 Municipal Corporation by authority and
{00246105 3} 48
Book: 5817 Page: 51 Seq: 6
~age 7 ol 9
resolution of its City Council and said Mayor and Deputy Clerk acknowledged said instrument to be
the free act and deed of said Municipal Corporation by it voluntarily executed . •
EWING LAND DEVELOPMENT & SERVICES, L.L.C. ACKNOW
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrwnent was acknowledged before me n this __ day of , 20 _, by
and of EWING LAND DEVELOPMENT -------& SERVICES, L.L.C.
VINTAGE COOPERATIVE OF IOWA CITY ACKN
STATE OF IOWA
COUNTY OF JOHNSON
This instrument was acknowled before me on this __ day of 20_, by
______ as of VINTAGE COOPERATIVE OF IOWA CITY.
FOSTER ROAD DEVELOPERS, L.L.C. ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this L1::.._ day of July 2018, by James P.
Glasgow and Joseph G. Stiltner as managers of FOSTER ROAD DEVE OPERS, LLC.
-... MICHAEL J PUGH
, lo Commission Number 17S282. • My Commission Erpres
July 26, 2018
{00246105 3} 49
Book: 5817 Page: 51 Seq: 7
~age 8 of 9
IN WITNESS WHEREOF, the City, Ewing, Vintage and Developer have executed this
Me~orandum .of Agreement for Private Development as of the __ day of _____ _
2018. .-,\ j
· .. ::;.:/~ .\
. , .(~BAL) ,,f .' ; ;·· , ... .. ,~.
•.: .. ; .;: .~-... ..:·g~ ..
'~fr••.:
CITYOFJOWACITY;l~~ BY:~/': ~ r.·-1:
,···
•, ... '.•
,,:·
CO~POAA THfAl
-·
JamesA.gmorton, Mayor
ATTEST:
BY: ~~c.:.;
Julie Voparil, Deputy City Clerk
EWING ~VELOPMENT & SERVICES, L.L.C.
BY: ~ ---...... Me her -------~ m
VINTAGE!Z??!!-=CITY
BY: -
BY: _____ ..,.._ _______ _
James P. Glasgow,
CITY OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
On this /<i11'\. day of July, 2018, before me a Notary Public in and for said County,
pel"SOnally appeared James A. Throgmorton and. Julie Voparil to me personally known. who
being duly sworn, did se.y that they are the Mayor and Oeputy Clerk, respectivel~ of City of Iowa
City, Iowa, a Municipal Corporation, created and existing unaer the Jaws of the State oflowa, 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 Municipal Corporation by authority and
48
Book: 5817 Page: 51 Seq: 8
Page 9 ol9 •
resolution ofits City Council and said Mayor· and· Deputy Clerk acknowledged sa!d instrument. to be
the free act and deed of said Municipal Corporation by it voluntaril>.:: executed.
EWING LAND DEVEWPMENT & SERVICES, L.L.C. ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
..,.._ -r. This instrume.nt was acknowledged before me on this -12_ day of VK-i: . 20}%. by
.:J°'c-tf?-€"'"'~ft and , as 01<w he/ of EWING LAND D ELOPMENT
& SERVICES, . .C.
~ camnualon Nulmer224718 0.. ~ _, a. ,11/DKffl /2A..J ! n n •
My ~"8~ Notary Public in and rthe State of Iowa
VINTAGE COOPERATIVE OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
)
)SS
)
This instrument was acknowledged before me on this __ day of July 2018, by James P.
Glasgow and Joseph G. Stiltner as managers of FOSTER ROAD DEVELOPERS, LLC.
Notary Public in and for the State oflowa
49
Book: 5817 Page: 51 Seq: 9
EXHIBIT J
ANNUAL CERTIFICATION
Date: -------(due annually no later than November 1)
I, , the undersigned, having knowledge of the Developer's Agreement between the
City of Iowa City and , dated , 2018, and the operations of
the Development Property, hereby certify the following;
1. All ad valorem taxes on the Development Property have been paid for the prior fiscal
year, as evidenced by the attached documentation; and
2. (A) I have re-examined the terms and provisions of the Development Agreement and can
affirm that during the preceding twelve ( 12) months, the Developer is not, or was not, in default
in the fulfillment of any of the terms and conditions of said 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 this certificate.
OR
(B) the undersigned has re-examined the terms and prov1s1ons of the Development
Agreement and that at the date of this certificate, the undersigned is aware that the Developer is in
default of the Agreement for the following reasons:
--------; that the default has existed since (date); and that the
Developer 1s taking or proposes to take the following action with respect thereto:
3. has invested $ in completing the Minimum ------------Improvements, as evidenced by ______ and has taken all reasonably necessary action to
maintain said improvements;
By: __________ _
(Name, title)
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
Date: --------------
This instrument was acknowledged before me on this __ day of _____ , 2018, by
and , as members of -------------
Notary Public in and for the State of Iowa
50
(
l
EXHIBITK
DEVELOPER CERTIFICATION OF COSTS OF PUBLIC IMPROVEMENTS
Foster Road Developers, L.L.C. ("Developer") hereby certifies that the expenses shown on
the table below were/are the actual expenses incurred by the Developer for the Public
Improvements that are the subject of the Agreement for Private Development entered into the
__ day of , 2018. The Developer certifies that no expenses claimed or shown on
this table relate to personal or unallowable expenses.
In the event of an overpayment by the City for expenses not actually incurred, or if payment
was received from another source for any portion of the expenses claimed, the Developer assumes
responsibility for repaying the City in full for those expenses.
Project Engineering, Construction Legal Drainage,
Cost Plans, Costs Costs Landscaping,
Category Specifications Grading
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Invoice
description
and cost
Total Cost
per
catei1:ory
If additional space is needed, please attach another table.
Attach actual receipts and invoices
Cost for Interest during Miscellaneous
ROW construction
acquisition and for not
more than six
months
thereafter
[Remainder of this page intentionally left blank. Signature page to follow.]
51
I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and
correct to the best of my knowledge and belief.
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this / J... day of July 2018, by James P.
Glasgow and Joseph G. Stiltner as managers of FOSTER R~AD DE.A OPERS, LLC.
Notary Public in and or t /_ State of Iowa &-i"~ MICHAEL J PUGH '! • Commission Number 175282
ow My Commission E)cpires
July 26, 2018
{00246105 3} 52
(
EXHIBIT L
NOTICE OF NOT AX ABATEMENT RECEIPT
To:
By signing this form, you, the homebuyer, acknowledge receipt of this document, which informs
you that as a homeowner purchasing the below-described property, you will not be eligible for tax
abatement under the City of Iowa City's Urban Revitalization Plan, if any, or any other state,
federal or local law.
[legal description, property address]
Signature: ------------
Print Name: ------------
Date: --------------
Address: -------------
53
EXHIBIT M
WAGE THEFT AFFIDAVIT
STATE OF IOWA )
) 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 acknowledged before me on this _ day of ______ , by
as of -----------------------
Notary Public in and for the State oflowa
54
EXHIBITN
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENT AGREEMENT, dated as of this J <fJ fl::.-day of ~~ , 2018, by and among the CITY OF IOWA CITY, IOWA, ("City"),
V ~ECOOPERA TIVE OF IOWA CITY ("Owner"), and the CITY ASSESSOR of the City
of Iowa City, Iowa ("Assessor").
WITNESSETH:
WHEREAS, it is contemplated that the Owner will undertake or cause the undertaking of
development of an area for elder apartment housing within the Foster Road Urban Renewal Area,
as established by the Iowa City City Council, in accordance with the Foster Road Urban Renewal
Plan and an Agreement for Private Development; and
WHEREAS, the City is making a significant grant of funds to the Owner which will allow
the Owner to construct the Project; and
WHEREAS, the City will be reimbursed for such grant from the property tax revenues
generated from the Foster Road Urban Renewal Area; and
WHEREAS, pursuant to Iowa Code section 403.6 (2017), as amended, the City and the
Redeveloper desire to establish a minimum actual value for the land locally known as Lot 3, Forest
Hill Estate, Iowa City, Iowa; 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, THEREFORE, the parties to this Minimum Assessment Agreement, in
consideration of the promises, covenants and agreements made by each other, do hereby agree as
follows:
I. 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 at not less than $14,000,000 after taking into consideration any factors such as "roll backs"
which would reduce the taxable value of the property ("Minimum Actual Value"). The parties
hereto acknowledge and agree that construction of the Minimum Improvements will be
substantially completed on or before December 31, 2019.
3. Owner recognizes that the economic development grants made pursuant to the
Agreement for Private Development is conditional upon sufficient property taxes being generated
by this Project.
4. Owner contemplates that a portion of the Project will be residential condominium
units which will be subject to the property tax "roll-back" referred to previously. Owner agrees
that at the time of the execution of the declaration required by Chapter 4998 Horizontal Property
55
(Condominiums) of the Code of Iowa 2017 an attachment to the declaration will be executed by
the Owner, the City and the City Assessor allocating a portion of the Minimum Actual Value to
each unit.
5. Owner agrees that the difference between the Minimum Actual Values (as adjusted
pursuant to paragraph 3 hereof) and the amount allocated to the residential condominium units (as
set forth in paragraph 4 hereof) will be allocated to the remainder of Lot 3.
6. The Minimum Actual Values (as adjusted pursuant to paragraph 3 hereof) herein
established shall be of no further force and effect and this Minimum Assessment Agreement shall
terminate when the final economic development grant is paid in accordance with the Agreement.
Nothing herein shall be deemed to waive Owner's 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 3 hereof)
established herein. In no event, however, except as set forth in the first paragraph of this Section
6 shall Owner seek to reduce the actual value assigned below the Minimum Actual Value (as
adjusted pursuant to paragraph 3 hereof) established herein during the term of this Agreement.
7. This Minimum Assessment Agreement shall be promptly recorded by the Owner
with the Recorder of Johnson County, Iowa, at Owner's cost, such recording shall constitute notice
to any subsequent encumbrancer or purchaser of the property ( or part thereof), whether voluntary
or involuntary, and such Minimum Assessment Agreement shall be binding and enforceable in its
entirety against any such subsequent purchaser or encumbrancer, including the holder of any First
Mortgage.
8. Owner has provided a title opinion to the City listing all lienholders ofrecord 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.
9. Neither the preambles nor provisions of this Minimum Assessment Agreement are
intended to, or shall be construed as, modifying the terms of the Agreement for the Private
Development between the City and Owner.
10. This Minimum Assessment Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the parties.
(SEAL) CITY OF IOWA CITY, IO
By: ~
ATTEST:
By:···~~
Julie Vo~ Deputy City Clerk
56
VINTAGE COOPERATIVE F IOWA CITY ("Vintage"),
OWNER. /
BY:,---.v-+..-->-"""->-+--1----------
CITY OF IOWA CITY, IOWA ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
On this I g-+J,. day of ~r . 20 115, before me a Notary Public in and
for said County, personally appeared -~~ A '11,,,'Y"",1,"' and .di,J,0 J/,;,p ur1 ( , to me personally
known, who being duly sworn, did say that they are the Mayor and Deputy City Clerk respectively of
City oflowa 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 Municipal
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.
~~ SARAF. G. HEKTOF~J . ; @ Commission .N~mb~.r 7~·:·r. r, :
'Ow~ My Com,nis~fl i:xp1r . .-.~. ,
I/ L '1 u cl,;;. v_"'"" :
Notary Public in and for the State of Iowa
VINTAGE COOPERATIVE OF IOWA CITY ACKNOWLEDGEMENT
STATE OF IOWA
COUNTY OF JOHNSON
)
)SS
)
This instrument was acknowledged before me on this I 7°'' day of . 201!, by Jo;,~ C1w~1.4:\. , as member of Vintage Cooperative of Iowa City. --=~-A--
57
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
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 development shall not be less than $14,000,000 after taking into consideration any factors such
as "roll-backs" which would reduce the taxable value of the property. Of this amount,
___________________ Dollars ($ is determined to
be the value of the land and Dollars ($ the value
of the buildings thereon until termination of this Minimum Assessment Agreement pursuant to the
terms hereof.
STATE OF IOWA
COUNTY OF JOHNSON
)
)
)
Assessor for Iowa City, Iowa
Date
Subscribed and sworn to before me by ______________ , Assessor for
Iowa City, Iowa.
Notary Public in and for Johnson County, Iowa
58