HomeMy WebLinkAbout~Master - May 23, 2024, Special Meeting of the Ames City Council1.Resolution approving HOME Program Loan Documents for the sale of Lot 27 in the Baker
Subdivision to Townhomes at Creekside, LLLP (Affiliated with the Hatch Development Group)
for development of Low-Income Housing Tax Credit (LIHTC) Multi-Family Housing units.
2.Resolution approving Engineering Services Contract and Change Order No. 4 with SCS Engineers
for Construction Services for Compliance with the U.S. EPA’s Coal Combustion Residuals (CCR)
Standard in the amount of $431,500
AGENDA
SPECIAL MEETING OF THE AMES CITY COUNCIL
ZOOM MEETING
MAY 23, 2024
NOTICE TO THE PUBLIC: The Mayor and City Council welcome comments from
the public during discussion. The Standards of Decorum, posted at the door and
available on the City website, define respectful conduct for public participation. If you
wish to speak, please fill out the form on the tablet outside the door to the Council
Chambers or scan the QR Code to the right to fill out the same form on a personal
device. When your name is called, please step to the microphone, state your name for
the record, and keep your comments brief so that others may have the opportunity to speak.
CALL TO ORDER: 1:30 p.m.
PLANNING & HOUSING:
ELECTRIC:
COUNCIL COMMENTS:
DISPOSITION OF COMMUNICATIONS TO COUNCIL:
ADJOURNMENT:
Please note that this agenda may be changed up to 24 hours before the meeting time as provided
by Section 21.4(2), Code of Iowa.
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ITEM #:1
DATE:05-23-24
DEPT:P&H
SUBJECT:HOME PROGRAM LOAN DOCUMENTS FOR THE SALE OF LOT 27 TO
TOWNHOMES AT CREEKSIDE, LLLP (AFFILIATED WITH THE HATCH
DEVELOPMENT GROUP) IN CONJUNCTION WITH A DEVELOPMENT
AGREEMENT FOR 38 LOW-INCOME HOUSING TAX CREDIT MULTI-
FAMILY HOUSING DEVELOPMENT UNITS WITHIN BAKER
SUBDIVISION.
COUNCIL ACTION FORM
BACKGROUND:
On February 28, 2023, the City Council selected the Hatch Development Group as its partner to
develop low-income multi-family rental housing units on Lot 27 in Baker Subdivision (formerly
321 State Avenue). The City Council directed staff to begin preparing agreements to partner on a Low-
Income Housing Tax Credit (LIHTC) application for this project.
On March 28, 2023, the City Council approved an option for the sale of Lot 27 to Townhomes at
Creekside, LLLP (affiliated with the Hatch Development Group), in conjunction with a
development agreement for a low-income housing tax credit (LIHTC) application for multi-
family housing development within the Baker Subdivision. Within that agreement, the City initially
committed to provide $1.8 million of its HOME Entitlement funding (not including administration)
towards the cost of construction of the multi-family units.
On July 1, 2023, Townhomes at Creekside, LLLP, was notified that its LIHTC application was
awarded. The project will construct 38 multi-family units on Lot 27 in the Baker Subdivision. The
LIHTC award was for approximately $9,539,896; other financial commitments included $500,000 of
State of Iowa HOME funds, $1.8 million of City of Ames HOME Funds, and $697,000 from
Townhomes at Creekside, LLLP, for a total of approximately $12.5 million dollars. Updated cost
estimates indicate a project cost of approximately $13 million.
Over the last ten months, staff has been working with Townhomes at Creekside, LLLP, to finalize the
site plan, distribution and types of low-income units, and other city code and LIHTC award
requirements. On March 26, 2024, the First Amendment to the Development Agreement was
approved by City Council and include the following changes:
(1) Increases the amount of the City's HOME set-aside funding commitment up to a maximum of $2.1
million (an additional $300,000) to construct the minimum improvements;
(2) Contingent upon the availability of City HOME funds and Community Housing Development
Organization (CHDO) set-aside funds, obligates the City to pay the developer 80% of the committed
HOME funds by the date of the land conveyance and the remaining 20% upon completion of
construction and leasing of the HOME units; and
(3) Increases the number of City HOME units from 7 to 8 three-bedroom units.
The developer received approval of the Major Site Development Plan for the project at the April 23 City
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Council meeting. Staff and the developer identified other needed changes for the agreement at that time.
At the May 14 City Council meeting, the Council approved a Second Amendment to the
Development Agreement that stipulated the following changes:
(1) removes of all references to Geothermal Wells and Systems for the benefit of Lot 27 from the prior
agreements;
(2) adds a requirement for the installation of Energy Star Cold Climate-rated air-source heat pumps to
serve the units at Developer expense; and
(3) extends the start-of-construction deadline to 7/31/24.
The final step to proceed with the project and selling Lot 27 to Townhomes at Creekside, LLLP, is
to approve the required City HOME loan documents for the $2.1 million commitment to the
project. In addition to the main HOME loan document, there are nine exhibits (A-I).
The main HOME document covers all the items outlined in each Exhibit that the Developer (Borrower)
must comply with some major highlights stated below:
1. The construction of thirty-eight (38) units, of which eight (8) will be three-bedroom City HOME
Assisted Units
2. A required 30-year Affordability Period
3. City HOME funds will be used for certain Project costs as outlined in Exhibit A-Statement of Work
4. Project costs and completion in accordance with Exhibit C-Project Budget and Exhibit D-Sources
and Uses. The construction of the Project shall be completed by September 30, 2025-Completion
Date
5. The loan will have an interest rate of zero percent with deferred payment for 30 years before
repayment over a ten-year period according to Exhibit G-Mortgage, Exhibit H-Promissory Note,
and Exhibit I-Loan Repayment Schedule (including repayment if the housing does not meet the
affordability requirements within the Affordability Period
6. As outlined in the Request for Proposals (RFP), Borrower shall set aside and designate four units
with at least one of each bedroom configuration for Section 8 Housing Choice Voucher participants.
However, if the Borrower does not locate or receive applications from a sufficient amount of tenants
who are Section 8 Housing Choice Voucher participants to occupy such four units within sixty days of
any such unit being ready for lease-up and vacant, any such units that remain vacant may be advertised
and leased to other eligible applicants.
7. The Section 8 Units are in addition to the City HOME Unit requirements.
All of the attached documents have been reviewed and approved by both Townhomes of
Creekside, LLLP, Midwest Housing Equity Group (MHEG Fund 58, LP), their investor lender.
It is important to understand that this action approving the HOME loan documents is still
contingent upon HUD's approval for the City to release HUD funds from for the project, which
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should occur on or by June 11.
ALTERNATIVES:
1. Contingent upon the City receiving its Release of Funds notification from HUD, approve the HOME
Loan documents including Exhibits A-I) with Townhomes At Creekside LLLP, in conjunction with
the construction of thirty-eight (38) HOME Assisted Low-Income Housing Tax Credit (LIHTC)
multi-family housing units on Lot 27 in the Baker Subdivision.
2. Do not approve the HOME Loan documents.
CITY MANAGER'S RECOMMENDED ACTION:
Approval of the HOME loan document with exhibits A-I is the final step (contingent upon the Release
of HUD funds) prior to loan closing to move forward with the project to accomplish City Council's goal
to provide thirty-eight (38) HOME Assisted Low-Income Housing Tax Credit (LIHTC) multi-family
units for households in the City of Ames on Lot 27, in the Baker Subdivision. Staff believes all the
terms, including the reservation of units for Section 8 voucher holders, is consistent with the
intent of the original RFP and development agreement. Therefore, it is the recommendation of
the City Manager that the City Council adopt Alternative #1, as described above.
ATTACHMENT(S):
FINAL (HOME Agmt) 20240513.pdf
Exhibit A - Statement of Work.PDF
Exhibit B - Project Schedule.pdf
Exhibit C - Development Budget - Updated.pdf
Exhibit D - Sources and Uses.pdf
Exhibit E - Restrictive Covenants.pdf
Exhibit F - Rent Limits.PDF
Exhibit G - Mortgage.pdf
Exhibit H - Promissory Note.pdf
Exhibit I - Loan Repayment Schedule.PDF
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CITY OF AMES – HOME AGREEMENT
THIS HOME AGREEMENT is entered into by and between the City of Ames, Iowa,
(hereinafter “City”), an Iowa municipal corporation, and Townhomes at Creekside, LLLP, an
Iowa limited liability limited partnership (hereinafter “Borrower”) effective upon the date it is
approved by the City Council.
WHEREAS, the City has entered into an Agreement with United States Department of Housing
and Urban Development ("HUD") for funding of its HOME Program pursuant to Title II of the
Cranston-Gonzalez National Affordable Housing Act; and
WHEREAS, this program is consistent with the City’s Consolidated Plan which was approved by
the City Council as Resolution No. 19-426, on August 13, 2019, for the time period covering July
1, 2019, to June 30, 2024; and
WHEREAS, the Borrower intends to construct a LIHTC Housing Development consisting of 38
new multi-family townhomes for rental by low- and moderate- income families (the “Project”);
and
WHEREAS, the Borrower has been awarded $500,000 of HOME funds through the Iowa Finance
Authority which will be used to construct two (2) of the Project units for rent eligible tenants; and
WHEREAS, the parties have agreed that, subject to the terms and conditions herein and subject
to the terms of a certain Development Agreement and Amendment executed by the Parties, the
City shall provide up to $2,100,000 in HOME funds to Developer to support eight (8) of the thirty-
eight (38) townhome units (all of which shall be three-bedroom units); and
WHEREAS, the Borrower is a limited liability limited partnership registered with the Iowa
Secretary of State and experienced with owning and operating affordable housing; and
S P A C E A B O V E R E S E R V E D F O R O F F I C I A L U S E
Exemption claimed:
Legal description:
Return document to:
Document prepared by:
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WHEREAS, the property upon which the Project will be undertaken is known as Townhomes at
Creekside, with a local address of 3216 Tripp Street, Ames, Iowa, and legally as Lot 27, Baker
Subdivision, Ames, Iowa and
NOW THEREFORE, in consideration of the mutual covenants and obligations herein contained,
and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree
as follows:
1. Use of HOME Funds; Completion Date. The Project is a new construction of thirty-eight
(38) multifamily residential units, and that eight units in the Project will be HOME Assisted
Units. The Borrower shall comply with all HUD HOME program requirements applicable
throughout the 30 year Affordability Period as the term is defined below. The HOME Funds
will be used for certain Project costs as eligible per 24 Code of Federal Regulations (CFR) Part
92.206 and in accordance with the attached Exhibit A - Statement of Work, Exhibit B - Project
and Construction Schedule, Exhibit C - Budget, and Exhibit D - Sources and Uses.
Construction of the Project shall be completed by September 30, 2025 (“Completion Date”).
2. Affordability Requirements and Duration of Agreement. The Borrower agrees to meet the
affordability requirements of 24 CFR Part 92.252 (rental) or 254 (homeownership), as
applicable, and outlined below and imposed by Exhibit E – Restrictive Covenant and to be
recorded separately by City as a lien against the Project property.
The Affordability Period will start after Project completion and closeout, which includes
Certificate(s) of Occupancy, final demographic information, construction reports, final
addresses or unit numbers submitted to City, and lease or sale of all HOME units to eligible
HOME tenants. If the Project is completed sooner than the completion date in Section 1, the
City will notify the Borrower in writing as to the revised completion date and beginning of the
Affordability Period.
a. Rental Projects. This Agreement is in effect through the Affordability Period, which is
thirty (30) years from the completion date. HOME rental units must be occupied by eligible
tenants within six months following the date of Certificate of Occupancy.
i. Rent Limits. The rents for the HOME Units will not exceed the annual HOME
rents of the then-current calendar year as annually published by HUD. Initial
rent guidelines are provided as attached in Exhibit F - Rent Limits. Rent
increase requests from Borrower must be presented in writing to the City of
Ames Housing Coordinator. The Housing Coordinator will provide written
responses to rent increase requests within 30 days of receipt.
ii. HOME Project Unit Mix. The Project will have a total of eight (8) HOME
units affordable to households at or below 50% of area median income. In rental
projects with five or more HOME-assisted rental units, at least 20% of the
HOME-assisted units must be Low HOME units and affordable to households
at or below 50% of area median income. Collectively this number and
proportion of units constitutes the HOME Project Unit mix.
iii. Fixed or Floating Units. The HOME units will be fixed during the affordability
period. There are no floating HOME units.
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3. Loan Repayment. The Loan will be repaid according to attached Exhibit G - Mortgage,
Exhibit H - Promissory Note, and Exhibit I - Loan Repayment Schedule, including repayment
if the housing does not meet the affordability requirements within the Affordability Period.
Nothing in this section will be construed to diminish or impair City’s rights, in its sole
discretion, to require repayment under this Agreement, the Mortgage, Promissory Note, or
Restrictive Covenant in the event of default or noncompliance by Borrower.
Should Borrower fail to comply with the Affordability Requirements during the thirty-year
period Affordability Period, the City shall provide a demand letter to the Borrower stating the
cause of such noncompliance and giving the Borrower sixty (60) days to cure the
noncompliance (hereinafter referred to as the “Cure Period”). If Borrower fails to cure the
noncompliance within the Cure Period, the Borrower shall repay to the City the Loan in full to
the City within sixty (60) days of the end of the Cure Period.
4. Program Income. Upon expiration of this Agreement, the Borrower must transfer any HOME
funds attributable to this Project in Borrower’s accounts receivable to the City.
5. Uniform Administrative Requirements. The Borrower must comply with applicable uniform
administrative requirements as described in 24 CFR 92.505 and 2 CFR 200.
6. Project Requirements. The Borrower specifically agrees to comply with each of the HOME
Program Project requirements set forth at 24 CFR, Part 92, Subpart F, as applicable in
accordance with the type of Project receiving HOME funds. The Borrower will not exceed the
maximum per-unit subsidy as provided on Exhibit F hereto.
7. Property Standards. The Borrower hereby agrees to maintain the Project in compliance with
local housing code requirements and HOME standards for the duration of the Affordability
Period, as required by 24 CFR 92.251 and 92.504(c)(3)(iv). The Borrower will allow the City
access to the Project’s written cost estimates, construction contracts, and construction
documents, as necessary.
a. Accessibility. The Borrower and its contractors must meet the accessibility requirements
of 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 and Titles
II and III of the Americans with Disabilities Act, implemented at 28 CFR parts 35 and 36, as
applicable.
Covered multifamily dwellings, as defined at 24 CFR 100.201, must also meet the design and
construction requirements at 24 CFR 100.205, which implements the Fair Housing Act. A
minimum of 5% of the total dwelling units or at least one unit in a multifamily housing project,
whichever is greater, shall be made accessible for persons with mobility impairments by
Borrower.
b. Disaster Mitigation. Where relevant, the Project must mitigate the impact of potential
disasters in accordance with state and local building code.
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c. Broadband Infrastructure. Construction must include installation of broadband
infrastructure, subject to compliance with local, State and Federal laws and regulations.
8. Other Federal Program Requirements. The Borrower agrees to comply with the federal
requirements set out at 24 CFR, Part 92, Subpart H, as applicable, as well as with the following:
a. Affirmative Marketing. In soliciting tenants for the Project, the Borrower agrees to the
following, which will also be incorporated into the Restrictive Covenant and Mortgage:
i. The Borrower will submit an Affirmative Marketing Plan to the City prior to
the final payout of funds. The Affirmative Marketing Plan may be amended and
may be monitored annually for conformance.
ii. The Borrower will use the Equal Opportunity Housing logo, slogan, or
statement in all advertising, including Project signage.
iii. The Borrower will advertise and use media, including minority outlets, likely
to reach low-income persons. Copies of those marketing materials will be
provided to the City.
iv. The Borrower will display a Fair Housing poster in any rental office or common
areas, if practicable.
v. The Borrower’s management will maintain a non-discriminatory hiring policy
and comply with Equal Opportunity, Affirmative Marketing, and Minority &
Women's Business enterprise requirements.
vi. The Borrower will keep information on income, race, ethnic, gender
characteristics, and other demographic statistics of applicants for the most
recent five-year period following Project Closeout, with a copy of that
information available to the City.
vii. The Borrower will not discriminate against prospective tenants based on their
receipt of, or eligibility for, housing assistance, and will not discriminate against
tenants that have a minor child living with them (except for elderly housing
projects which are legally exempt from this requirement).
viii. The Borrower will provide existing and potential tenants or buyers with
information relating to federal Fair Housing laws and will affirmatively market
vacant units throughout the Affordability Period.
b. Tenant Selection. For rental housing, the Borrower must adopt and implement a Fair
Housing Plan. The Fair Housing Plan must include a tenant selection plan with policies and
criteria that:
i. Are consistent with the purpose of providing affordable housing;
ii. Provide for selection of tenants from a written waiting list in chronological
order of application to the extent practical;
iii. Give prompt written notification to any rejected applicant of the grounds for
rejection;
iv. Adhere to a grievance procedure approved by the City;
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v. Will not exclude an applicant with a certificate or voucher under the Section 8
Tenant-Based Assistance Housing Choice Voucher Program (24 CFR part 982)
or a participant in a HOME tenant-based rental assistance program; and
vi. Borrower shall set aside and designate four (4) units with at least one of each
bedroom configuration for Section 8 Housing Choice Voucher participants.
Notwithstanding the foregoing and anything herein to the contrary, in the event
Borrower does not locate, or receive applications from, a sufficient amount of
tenants who are Section 8 Housing Choice Voucher participants to occupy such
four (4) units within sixty (60) days of any such unit being ready for lease-up
and vacant, any such units that remain vacant may be advertised and leased to
other eligible applicants. Borrower acknowledges that pursuant to the rules and
regulations in connection with the low-income housing tax credit program,
Borrower may not refuse to lease any unit in the project to a prospective tenant
who holds a voucher or certificate of eligibility for assistance pursuant to
Section 8 of the United States Housing Act of 1937, as amended, because of the
status of such prospective tenant as the holder of such voucher or
certificate. The Section 8 Units are not to be part of the HOME Units. All
HOME Units shall be leased at the lesser of the area fair market rents
established by HUD or at the high HOME rent limit in compliance with HUD
HOME guidelines.
c. Environmental Review. The Borrower agrees to notify the City if any major
environmental concerns or hazards are discovered.
d. Displacement, Relocation, and Acquisition. The Borrower agrees that its Project will not
displace or relocate any households. If such displacement or relocation will occur, the
Borrower has provided a Relocation Plan outlining relocation assistance, notifications, and
terms approved by the City and in compliance with 24 CFR 92.353.
e. Labor. The Borrower and its Contractors must comply with:
i. Equal Employment Opportunity, Executive Order 11246, as amended (41 CRF
Part 60) prohibiting discrimination against any employee or applicant for
employment because of race, color, religion, sex or national origin.
ii. Section 3 of the Housing and Urban Development Act of 1968, as amended (12
U.S.C. 1711u), which hat requires, to the greatest extent feasible, opportunities
for training and employment arising from HOME funds will be provided to low-
income persons residing in the program service area. Also, to the greatest extent
feasible, contracts for work to be performed relating to HOME funds will be
awarded to businesses that are in or owned by persons residing in the HOME
Program service area. The Borrower will complete a Section 3 form provided
by the City.
iii. Minority/Women’s Business Enterprise, under Executive Orders 11625, 12432,
and 12138, with City notification procedures of targeted businesses, to provide
information, and to complete forms provided by the City on Minority and
Women Contractors.
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iv. Davis-Bacon Act, under 40 U.S.C. 3141 and per 24 CFR 92.354, in a Project
for the rehabilitation or new construction of housing that includes twelve (12)
or more HOME units.
f. Conflict of Interest. The Borrower may not occupy a HOME Unit. In addition, no officer,
employee, agent, or consultant of the Borrower, owner, developer, or sponsor of the Project
may occupy a HOME Unit without express written approval from the City.
g. VAWA Requirements. The Borrower will follow admission, occupancy, and termination
of assistance policies regarding the prohibited bases for eviction and restrictions on construing
lease terms under 24 CFR 5.2005(b) and (c). The Borrower of HOME-assisted rental housing
must provide the notice and certification form described in 24 CFR 5.2005(a) to the applicant
for a HOME-assisted unit:
i. at the time the applicant is admitted to a HOME-assisted unit,
ii. denied admission to a HOME-assisted unit based on the owner's tenant
selection policies and criteria, and
iii. with any notification of eviction or notification of termination of assistance.
9. Records and Reports.
a. Retention Period. For a period of five years after the Project Closeout date, the Borrower
agrees to keep all contracts, invoices, materials, personnel and payroll records, conditions of
employment, books of accounts, and any other documentation pertaining to the construction
of the Project and the disposition of the Loan proceeds, where applicable, and any other records
that might be required from time to time by the City relating to this Agreement and the Project.
b. Rental Compliance. For rental housing, the Borrower agrees to keep records related to the
HOME Units and the Section 8 voucher units through the Affordability Period. More
specifically, the Borrower or its management agent must submit to the City reports of the
following:
i. Tenant Income. The income of each HOME Unit tenant must be determined
initially by the Borrower in accordance with 24 CFR 92.203(a)(1)(i). In
addition, for each calendar year during the Affordability Period, the Borrower
must re-examine each tenant’s annual income in accordance with the procedure
chosen by the City from options listed in 24 CFR 92.203(a)(1) and submit the
information to the City. A Borrower of a rental project, through a statement and
certification in accordance with 92.203(a)(1)(ii), must examine the income of
each tenant, in accordance with 92.203(a)(1)(i) every sixth year of the
affordability period.
ii. Rent Restrictions. The Project is required to meet the affordability
requirements of 24 CFR 92.252. The Borrower must annually provide
information to the City on the rents that are charged to the HOME Unit tenants.
The rents will not exceed the HOME Unit Rents as prescribed by HUD. The
rents charged must support the debt against the Property and must not exceed
the assumptions made under the original underwriting.
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iii. Physical Inspections. The Borrower must make the Property available for City
staff to physically inspect the HOME Units annually to ensure the Units meet
City HOME standards and are comparable to market rate units.
iv. Financial Inspections. The City will also review the Borrower’s annual audit
and accounts of the Project to ensure that the Project is maintaining a revenue
stream and is able to pay debt and provide funding for long term viability.
c. Access to Records. The Borrower will, at all reasonable times, including normal business
hours, permit the City, HUD officials, the Comptroller General of the United States, and their
designees, to have full and free access to records with respect to the utilization of the Loan
proceeds, supplemental financing (which includes the IFA HOME fund award), rental income
and expenses, and affirmative marketing efforts. The Borrower will permit the City, HUD, and
the Comptroller General and their designees to audit, examine, and make excerpts or transcripts
from his/her/their records, and to review, inspect, and make audits of all work financed in
whole or in part by the Loan, including, but not limited to, all records described above.
10. Representations by Borrower.
a. The Borrower represents and warrants to the City that the Borrower has thoroughly
reviewed and has freely and voluntarily executed the development proposal approved by the
City and on file in the City’s Planning and Housing Department.
b. The Borrower agrees to develop the Project to the extent and in the manner specified in the
proposal, to comply with the Borrower’s obligations, and to enforce any contractor’s or
subcontractor’s obligations. The Borrower assumes the risks of any non-completion of the
Project. The City is not a party to any construction contracts, and the City accepts no legal
responsibility to the Borrower for the quality or timeliness of the work performed or materials
supplied.
Although the Borrower is responsible to the City for the performance of the Project and the
selection of any contractor or subcontractor thereunder, the Borrower agrees as follows for the
benefit of the City as lender, to provide additional assurance that the work will be completed
in accordance with the development proposal used to underwrite the Project and the local
standards required by the City:
i. No material provision of the development proposal or Agreement, including its
exhibits, will be modified, deleted, waived, or terminated without the prior
written approval of the City’s Planning and Housing Department Housing
Coordinator or designee of the City Manager if no Housing Coordinator; and
ii. Contractors and subcontractors represent that they are not listed on the City’s
or HUD’s Debarred and Suspended Contractor’s List and further agrees not to
hire or utilize as a subcontractor any person or supplier that is so listed. The
Borrower agrees for all persons or companies hired or purchased from to submit
a completed Subcontractor Eligibility form to the City prior to entering into a
contract with said persons or companies.
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11. Prior Encumbrances and Mechanic’s Liens. The Borrower will not create or suffer
mechanic’s or materialmen’s liens on the Property. The Borrower agrees to defend and hold
the City harmless from any such liens, whether or not caused by any action or inaction of the
Borrower.
The City may require the Borrower to extend the title evidence obtained at Loan Settlement to
the date of each such disbursement, showing no mechanic’s or materialmen’s liens against the
Property. The City may require the Borrower to obtain payment acknowledgments and lien
releases from the contractor and all subcontractors covering the period from the inspection of
the work to the date of the disbursement, and for the entire job concurrently with the final
disbursement. Such acknowledgment and releases will be in the form required by state and
local lien laws and will cover all work done, labor performed, and materials, including
equipment and fixtures furnished for the work. Notwithstanding any other provision of this
Agreement, the City, for additional security relating to the Loan, may also withhold the final
payment under this Agreement until the expiration of any period which mechanics and
materialmen may have for filing liens unless lien waivers are obtained simultaneously with
payment.
12. Disbursement of HOME Funds. The City will disburse HOME funds to the Borrower as
reimbursement for eligible costs. The disbursement will be limited to the amount of eligible
costs expended by Borrower minus a retainage of 10%, which will be withheld until Project
Closeout has been completed, and subject to the following:
a. The Borrower must request at least a partial disbursement of the HOME Loan within ten
months of the Agreement’s effective date. The City will make disbursements at the times and
in the amounts, minus the retainage mentioned previously, requested by the Borrower, and no
later than 30 days from the most recent inspection date by the City, provided that:
i. The request meets the requirements of and follows the City’s HOME policies
and this Agreement;
ii. The request is not inconsistent with the terms of either the Development
Agreement, recorded as Inst. No. 2024-01919, or the Amendment to
Development Agreement, recorded as Inst. No. 2024-01920, previously
entered into by the City and the Borrower;
iii. The request is for completed work upon the Site and no part of the request is
made for materials stored on Site or in some other location;
iv. The City has not issued any notice of Loan termination and/or of default under
this Agreement or related documents;
v. City staff has completed an on-site inspection; and
vi. The City has received the necessary invoice and supporting documentation
from Borrower, including the inspection report from City staff.
b. Prior to final payment disbursement and beginning the Affordability Period, the Borrower
agrees to furnish to the City:
i. Final sources and uses of funds for the project showing the costs are reasonable;
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ii. Borrower’s Affirmative Marketing Plan and Tenant Selection Policies (if
applicable);
iii. Initial tenant or homebuyer certifications of all HOME rental units in the
Project;
iv. Demographic information, on a form to be provided by City;
v. Copy of lease or sales contract between Borrower and tenant or End Purchaser;
vi. Completed Section 3 Report, on form to be provided by City;
vii. Completed Minority/Women Contractor Report, on form to be provided by
City;
viii. Complete NEPA review process along with all required environmental
clearance, which must be obtained before any choice limiting actions may be
taken, and HUD approved “Request for Release of Funds.”
ix. Location and number of Section 504 units in the Project; and
any other such statements, records, data, and information pertaining to any
matter as required by this Agreement upon the request of the City or HUD
official monitoring the Project.
c. The City may suspend any disbursements if the Borrower fails to comply with the
Agreement’s terms. At any time should the Borrower fail to comply with each provision of
this Agreement, including Exhibits hereto, the City will directly advise the Borrower of the
reasons for the suspension and the deadline for compliance before the Loan and this Agreement
are terminated. Such suspension is an additional remedy, and not a prerequisite to termination.
d. The Borrower understands and the City agrees that no disbursements will be made for
materials stored on-site or off-site for the Project. Payments may only be made for completed
work which has been inspected and approved by the Borrower and authorized by the City.
e. No provision of this section will limit, or prescribe procedures for the exercise of, the City's
rights to complete the Project using the Loan proceeds and other advances secured by the Note
and Mortgage, in the event the Borrower fails to complete the Project.
13. Pre-Disbursement Inspection. Prior to disbursement of Loan proceeds or for any other
purpose relating to the completion of the Project, the City will have reasonable access and right
of entry at any reasonable time of the day to inspect all or any portion of the Project. The City
shall provide the Borrower with reasonable notice of the City’s intent to inspect all of any
portion of the property and/or improvements. These inspections are for the benefit of the City
as lender, to assure that the Loan proceeds are being expended in accordance with the
development proposal used to underwrite the Project.
In the event of any such inspection, the City may inform the Borrower of any noncompliance,
but the City will not issue direct orders or instructions to the Contractor or subcontractor
performing the work, except as authorized by the Borrower. The Borrower will take all steps
necessary to assure that the City is permitted to examine and inspect such work, and all
contracts, materials, equipment, fixtures, payrolls and conditions of employment pertaining to
the work, and all relevant data, books, and records of the Borrower.
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14. Termination and Other Remedies. Termination of this Agreement may be accomplished by
City by mailing via certified mail or by personally delivering written notice of termination to
the Borrower at the address set forth for “Notices” herein below. Termination/cancellation will
be effective on the date stated on the notice of termination.
a. The Borrower agrees that the City will have the unilateral right to cancel or terminate this
Agreement, and discontinue all funding of the Loan, if any one or more of the following
events of default occur:
i. For a period of 180 days from the date that the City executed the Agreement,
the Borrower has failed or refused to cause the commencement of the Project,
unless this period has been extended by the City in writing, which City consent
may not be unreasonably withheld or delayed;
ii. The Borrower fails or refuses to complete the Project within the time frame as
established in Exhibit B Project and Construction Schedule, unless this period
has been extended by the City in writing;
iii. Notwithstanding any other provision of this Agreement, the Loan proceeds
have not been fully disbursed by the City after completion of the work on or by
the completion date as specified in this Agreement, unless such date has been
extended by the City in writing and unless failure to fully advance is not caused
by or attributable to any fault of the Borrower;
iv. The Borrower makes changes in or terminates the Project, without the prior
written approval of the City, which consent may not be unreasonably withheld
or delayed;
v. The Borrower will not submit a dispute between the Borrower and the
Contractor or a subcontractor to the dispute resolution procedure provided
under the City’s HOME policies, if applicable, or to litigation, and the City’s
inspection indicates that the work in dispute was done in accordance with the
City’s HOME policies;
vi. The Borrower dies, becomes legally incapacitated, dissolves, files for
bankruptcy, or otherwise becomes legally unable to act prior to the completion
of the Project;
vii. The Borrower abandons the Project;
viii. Any interest in the Project, including a beneficial interest (except tenant leases
in non-HOME units, mortgaged interest, and easement), is sold or transferred
prior to the completion of the Project, as evidenced by the City’s execution of
a Certificate of Final Inspection and Request for Final Payment, without the
City’s prior written consent, which consent may not be unreasonably withheld
or delayed;
ix. The Borrower obtains a Balloon Note secured by the Project which is junior to
the City’s Mortgage or Restrictive Covenant but will be due and payable prior
to the scheduled completion of the Project.
x. Any event which is or may be declared a material breach of this Agreement or
an Event of Default, as defined in the Mortgage or Restrictive Covenant,
particularly if the Project fails to comply with the affordability requirements
during the Affordability Period; and/or
14
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xi. Borrower’s failure to comply with any or all terms set forth in this Agreement,
the Mortgage or the Restrictive Covenant, and failure to cure such
noncompliance within 30 calendar days of the date that notice is given thereof
by the City.
b. The Borrower agrees that termination/cancellation will not affect the City’s rights under
the Promissory Note, Mortgage, or Restrictive Covenant, including, but not limited to the
City’s ability to:
i. Declare that portion of the Loan, up to the entire principal amount of the Loan,
which has been provided by City to the Borrower prior to termination, together
with any accrued interest and late charges, and any other amounts secured by
the Mortgage, immediately due and payable without any benefit of forgiveness
or without any notice or demand to the Borrower;
ii. Collect any Loan proceeds disbursed prior to termination/cancellation by
whatever means are deemed necessary by the City and permitted by law;
iii. Assess interest and late charges under the Mortgage;
iv. Make advances under the applicable provisions of the Agreement and Loan to
preserve and protect the City’s security interest in the Property;
v. Add any amounts so advanced to the principal amount due under the Loan, and
to have the amounts advanced secured by the Mortgage;
vi. Collect from the Borrower all amounts necessary to pay off any mechanics’ or
materialmen’s liens which have been filed against the Property; and
vii. Enforce the Note, Mortgage, or Restrictive Covenant against Borrower.
15. Preservation of Security. The Borrower agrees to preserve the security of the Loan by keeping
the Property free from all unnecessary hazards during Project construction; by complying with
all lawful requirements and directives of federal, state, and local governments pertaining
thereto (including the payment of all applicable taxes, licenses, and fees); and by maintaining
in effect always the hazard insurance on the Project and Property, including builder’s risk
insurance where applicable.
The Borrower further agrees that he/she/they/it will not sell or transfer the Property without
repaying the entire amount due on the Loan, unless express written consent is received in
advance of transfer from the City.
16. Scope of Agreement; Liability.
a. The City’s only liability is to the Borrower under this Agreement and is limited to making
the Loan proceeds available in the principal amount under the terms and conditions stated in
this Agreement, Promissory Note, and Mortgage. The City assumes no obligations other than
as stated in this Agreement. Specifically, the City has no authority under this Agreement to
obligate the HOME Program beyond the principal amount of the Loan. The City will act in
accordance with all local, state, and federal regulations, the City’s HOME policies, and this
Agreement. The City is not bound by any representations inconsistent with HUD regulations,
the federal regulations, the City’s policies, or this Agreement.
15
12
b. The Borrower understands and agrees that the selection of a contractor or subcontractors,
and acceptance of materials used, and work performed, is solely his/her/their responsibility,
and the City assumes no responsibility for or guarantees of the work, materials, or quality of
workmanship.
17. Indemnification and Insurance. The Borrower will indemnify, release, save and hold
harmless the City, its elected and appointed officials, employees and volunteers, from all
liability, claims, litigation, loss, damages, costs and expenses arising out of an act or omission
of the Borrower, the Borrower's agent, employee, assigns or contractors, or in any way
connected in the performance of the Project or the terms of this Agreement. The Borrower's
obligation to indemnify, release, save, and hold harmless will include the obligation to pay all
reasonable expenses incurred by the City in defending itself, or in enforcing the provisions of
this Agreement.
The Borrower will obtain and maintain in continuous effect during the term of this contract
with the City and while any of its obligations remain unsatisfied, the insurance coverages,
limits and endorsements shall be sufficient, in the judgement of the City, to meet the
Borrower’s obligations under this Agreement, the Development Agreement that any
amendments thereto. The City reserves the right to require and enforce future revisions to the
insurance requirements, and Borrower agrees to abide by such future revisions upon notice
thereof. The Borrower will require that any of its agents who perform work or services pursuant
to this Agreement meet the same insurance requirements as are required of Borrower. A
Certificate of Insurance citing such coverages, limits and endorsements will be provided to the
City prior to payment of the funds set forth herein, and the Borrower shall have a continuing
obligation to provide the City with evidence of insurance upon the City’s request.
18. Religious Organizations. The Borrower agrees to comply with 24 CFR 92.257 governing the
use of HOME funds for religious organizations where applicable.
19. Enforcement of the Agreement. This Agreement will be enforceable pursuant to the terms
herein, the provisions of all exhibits hereto, and all legal and equitable remedies available to
the parties pursuant to local, state, and federal law.
20. Amendments. Any additions, modifications, or amendments to this Agreement including the
attachments, will be in writing and executed by the parties.
21. Disclaimer. It is mutually understood by the parties that nothing in this Agreement is intended
or will be construed as in any way creating or establishing the relationship of co-partners
between the parties hereto or as constituting the Borrower as an agent or representative of the
City for any purpose whatsoever. It is further mutually understood by the parties that the
Borrower and the Borrower’s contractor are not to be considered employees of the City.
22. Governing Law. This Agreement will be governed by, construed under, and enforced in
accordance with the laws of the State of Iowa.
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23. Severability. If one or more clauses, sections, or provisions of this Agreement, or the
application thereof, will be held to be unlawful, invalid, or unenforceable, the remainder and
application hereof of such provision will not be affected thereby.
24. Notices. All notices and demands relating to this Agreement will be served by certified letter,
return receipt request on upon the following:
a. For the City: Housing Coordinator – City of Ames, 515 Clark Avenue, Ames IA 50010.
b. For the Borrower: Townhomes at Creekside, LLLP, 1620 Pleasant Street, Ste. 123, Des
Moines IA 50314.
25. Investor Notice and Opportunity to Cure. Notwithstanding anything to the contrary, the
Investor Limited Partner shall have the right, but not the obligation, to cure any default of
Borrower under any Loan Document, and City agrees to accept cures tendered by Investor
Limited Partner.
a. In any event of default, Lender will endeavor to provide a written notice of such
default to the Investor Limited Partner.
b. Any notice provided to the Investor Limited Partner hereunder will be placed in the
United States mail, postage prepaid, addressed to the Investor Limited Partner as
follows:
MHEG Fund 58, LP
c/o Midwest Housing Equity Group, Inc.
515 N 162nd Avenue, Suite 202
Omaha, Nebraska 68118
Attention: John J. Wiechmann
With a copy to:
Kutak Rock LLP
1650 Farnam Street
Omaha, Nebraska, 68102
Attention: Shane R. Deaver, Esq.
c. The Investor Limited Partner may update its address or contact by providing notice
to the City, but any such updated address or contact information shall only be
effective upon written acknowledgement of the change by the City.
[ S P A C E I S L E F T I N T E N T I O N A L L Y B L A N K ]
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TOWNHOMES AT CREEKSIDE, LLLP, an Iowa
limited liability partnership,
By: Townhomes at Creekside, GP, LLLC, an Iowa
______________________, 2024.
Michael Kiernan
STATE OF IOWA, COUNTY OF STORY, SS.:
This instrument was acknowledged before me on _____________________, 2024, by Michael Kiernan,
as Managing Member of Townhomes at Creekside, GP, LLC, the General Partner of Townhomes at
Creekside, LLLP.
NOTARY PUBLIC
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Passed and approved on ________________________, 2024, by Resolution No. 24-________
adopted by the City Council of the City of Ames, Iowa.
CITY OF AMES, IOWA
John A. Haila,
Renee Hall,
STATE OF IOWA, COUNTY OF STORY, SS.:
This instrument was acknowledged before me on _______________________, 2024, by John A.
Haila and Renee Hall, as Mayor and City Clerk, respectively, of the City of Ames, Iowa.
NOTARY PUBLIC
19
Page 16 of 16
EXHIBIT LIST
(Attached)
A. Statement of Work
B. Project and Construction Schedule
C. Budget
D. Sources and Uses
E. Restrictive Covenant
F. Rent Limits, including maximum per unit subsidy
G. Mortgage
H. Note
I. Loan Repayment Schedule
20
EXHIBIT A
STATEMENT OF WORK OR PROJECT DESCRIPTION
PROJECT NAME: Townhomes at Creekside, LLLP
PROJECT TYPE: New Construction
AWARD AMOUNT: $2,100,000
FORM OF ASSISTANCE: Repayable Loan
AFFORDABILITY PERIOD: 30 Years
ADDRESS(ES): 3216 Tripp Street, Ames, IA 50014
PROJECT/PROGRAM DESCRIPTION:
Townhomes at Creekside will be a 38-unit multi-family housing complex that will be located in
six individual Townhomes that will contain the following number of units:
x 16 Two Bedroom Units;
x 18 Three Bedroom Units
x 4 Four Bedroom Units
Of the 38 standard apartment units for low-income families, the City of Ames HOME funds will
have 8 three-bedroom units, and the State of Iowa HOME funds will have 2 units: One 3BR and
One 4BR. The complex will be located on approximately 2.78 acres of land.
The Affordability Period for each activity begins on the individual activity completion date
in IDIS and continues for the number of years required above.
The HOME rent limits that were in effect at the time of award establish the HOME rent floor for
the project; the applicable rent limits are the 2023 HOME rent limits effective June 15, 2023:
The HOME income limits that were in effect at the time of award are the 2023 HOME income
limits effective June 15, 2023:
HOME Rent Limits for Ames, IA MSA
(Effective 6/15/2023 )
Efficiency
1
bedroom
2
bedroom
3
bedroom
4
bedroom
5
bedroom
6
bedroom
2023 Low HOME Rent Limit $800 $862 $981 $1,383 $1543 $1,703 $1,862
2023 High HOME Rent Limit $800 $862 $981 $1,394 $1,671 $1,922 $2,172
HUD Median Family Income for Ames (IA)
(Effective 6/15/2023)
# Persons Extremely Low
30%
HOME
Funding Only
Very Low
50%
60%
Limits
Low
80%
1 $22,350 $37,250 $44,700 $59,600
2 $25,550 $42,600 $51,120 $68,100
3 $28,750 $47,900 $57,480 $76,600
4 $31,900 $53,200 $63,840 $85,100
5 $34,500 $57,500 $69,000 $91,950
7 $39,600 $66,000 $79,200 $105,550
8 $42,150 $70,250 $84,300 $112,350
21
ID Task Name Duration Start Finish Predecessors Resource
1 Overall Project 286 days?Tue 6/11/24 Tue 7/15/25
2 Preconstruction 213 days Tue 6/11/24 Thu 4/3/25
3 Owner Financing / Prime Contract 4 days Tue 6/11/24 Fri 6/14/24
7 Material Procurement 210 days Fri 6/14/24 Thu 4/3/25
8 Executed Commitments 30 days Fri 6/14/24 Thu 7/25/24 5 Koester
37 Submittal Procurement 37 days Wed 6/19/24 Thu 8/8/24 5 Koester
64 Submittal Review 37 days Wed 7/3/24 Thu 8/22/24 37SS+10 days Architect
92 Lead Times 204 days Mon 6/24/24 Thu 4/3/25
118 Milestones 273 days Thu 6/27/24 Tue 7/15/25
155 Construction Schedule 282 days?Mon 6/17/24 Tue 7/15/25
156 Winter Conditions 107 days Fri 11/1/24 Mon 3/31/25
157 Sitework 236 days?Mon 6/17/24 Mon 5/12/25
209 Building 6 (8 Unit)171 days Fri 7/19/24 Fri 3/14/25
210 Building Envelope 100 days Fri 7/19/24 Thu 12/5/24
227 Building Interior 130 days Mon 9/16/24 Fri 3/14/25
246 Building 6 Complete / C of O 0 days Fri 3/14/25 Fri 3/14/25 245,182
247 Building 5 (8 Unit)191 days Fri 7/19/24 Fri 4/11/25
248 Building Envelope 115 days Fri 7/19/24 Thu 12/26/24
265 Building Interior 130 days Fri 4/11/25
284 Building 5 Complete / C of O 0 days Fri 4/11/25 Fri 4/11/25 283,186
285 Building 4 (6 Unit)212 days Fri 7/19/24 Mon 5/12/25
286 Building Envelope 140 days Fri 7/19/24 Thu 1/30/25
303 Building Interior 131 days Mon 5/12/25
322 Building 4 Complete / C of O 0 days Mon 5/12/25 Mon 5/12/25 321,190
323 Building 3 (6 Unit)230 days Fri 7/19/24 Thu 6/5/25
324 Building Envelope 192 days Fri 7/19/24 Mon 4/14/25
341 Building Interior 129 days Mon 12/9/24 Thu 6/5/25
360 Building 3 Complete / C of O 0 days Thu 6/5/25 Thu 6/5/25 359,194
361 Building 2 (6 Unit)246 days Fri 7/19/24 Fri 6/27/25
362 Building Envelope 180 days Fri 7/19/24 Thu 3/27/25
379 Building Interior 125 days Mon 1/6/25 Fri 6/27/25
398 Building 2 Complete / C of O 0 days Fri 6/27/25 Fri 6/27/25 397,198
399 Building 1 (4 Unit)258 days Fri 7/19/24 Tue 7/15/25
400 Building Envelope 190 days Fri 7/19/24 Thu 4/10/25
417 Building Interior 117 days Mon 2/3/25 Tue 7/15/25
436 Building 1 Complete / C of O 0 days Tue 7/15/25 Tue 7/15/25 435,202
Overall Project
Construction Schedule
Winter Conditions
Sitework
Building 6 (8 Unit)
Building 6 Complete / C of O
Building 5 (8 Unit)
Building 5 Complete / C of O
Building 4 (6 Unit)
Building 4 Complete / C of O
Building 3 (6 Unit)
Building 3 Complete / C of O
Building 2 (6 Unit)
Building 2 Complete / C of O
Building 1 (4 Unit)
Building 1 Complete / C of O
6/9 6/23 7/7 7/21 8/4 8/18 9/1 9/15 9/29 10/13 10/27 11/10 11/24 12/8 12/22 1/5 1/19 2/2 2/16 3/2 3/16 3/30 4/13 4/27 5/11 5/25 6/8 6/22 7/6 7/20 8/3
July August September October November December January February March April May June July August
Tue 5/7/24
Koester Construction Company, Inc.
Creekside Townhomes
Preliminary Schedule
1 /1
EXHIBIT "B"
PROJECT AND CONSTRUCTION SCHEDULE
22
Ames, IA
Townhomes at Creekside LLLP
9%
Applications of Funds Per Sq Foot Per Unit Total Tax Credit
Acquisition -Land - - -
Acquisition- Building - -
Acquisition- Transfer Tax - -
Acquisition- Loans Fees/Interest - -
Acquisition- Other - -
Acquisition-Site Work Costs - -
Subtotal - - - -
Construction Costs New - 249,183 9,468,949 9,468,949
Market Rate - --
Construction Costs Commercial - -
Site Work Contingency - 2,950 112,096
Site Work: On-Site Improvements 15 yrs - --
Site Work: On-Site Improvements 27.5 - --
parking lot - -
Personal Property-Appliances etc in Apt - --
Furniture, Fixtures, Equipment-Common Areas - --
General Requirements - -- -
Contractor Overhead & profit - -- -
Bond & Builders Risk - --
Construction Contingency 5.17%- 13,039 495,500 495,500
Other Construction: Sales tax rebate - - -
Subtotal - 265,172 10,076,545 9,964,449
Architect Design - 14,262 541,970 541,970
Architect Supervision - --
Environmental Study - 395 15,000 15,000
Survey/Civil Engineer - 1,645 62,500 62,500
Market Study - 171 6,500 6,500
Appraisal - 132 5,000 5,000
Accounting/Audit/Cost Certification - 263 10,000 10,000
Real Estate Attorney - 658 25,000 -
Construction Management Fees - - -
Subtotal - 17,526 665,970 640,970
Building Permits - 92 3,500 3,500
Construction Consultants - - -
Construction Insurance - 197 7,500 7,500
Bonds/LOC Not Part of Construction Contract - - -
Construction Period Taxes - - -
Title and Recording - 145 5,500 -
Tenant Relocation - - -
Soft Cost Contingency - - -
Consultant/Processing Agent - - -
Other - construction inspectdions - 658 25,000 25,000
Subtotal - 1,092 41,500 36,000
Construction Loan Points/Fees - 1,919 72,906 -
Construction Loan Inspections - - -
Construction Loan Legal - - -
Construction Loan Interest - 11,447 435,000 435,000
Other Construction Loan Costs - 197 7,500 7,500
Permanent Loan Points/Fees - 263 10,000
Permanent Loan Misc. Costs - -
Cost Certification - -
Permanent Loan Legal - 158 6,000
Pro Forma - Townhomes at Creekside LLLP - Ames 5.7.2024 1 5/13/20244:50 PM
EXHIBIT "C"
DEVELOPMENT BUDGET
23
Ames, IA
Townhomes at Creekside LLLP
9%
Applications of Funds Per Sq Foot Per Unit Total Tax Credit
Other Permanent Loan Costs:Title & recording - 26 1,000
Subtotal - 14,011 532,406 442,500
IFA Tax Credit Application Fees - 92 3,500
IFA Tax Credit Compliance Monitoring Fees - 32 1,216
IFA Reservation Fee - 3,025 114,950
IFA Construction Monitoring - 76 2,900
IFA Preclosing Review Fee - - -
IFA 8609 Fee - 263 10,000
Syndication/Due Diligence Fee - 1,447 55,000
Other Ineligible Costs:- -
Subtotal - 4,936 187,566 -
Developer Fees 6.57%- 22,368 850,000 850,000
Developer Overhead - - -
Consultant Fees - 1,316 50,000 50,000
Subtotal - 23,684 900,000 900,000
Leasing Expenses/ Marketing Expenses - -
Lease-Up Reserve/ Working Capital - 1,669 63,422
Guaranty Reserve - 7,895 300,000
Operating Reserve - 4,360 165,677
Beginning Replacement Reserve - -
Subtotal - 13,924 529,099 -
TOTAL DEVELOPMENT COSTS - 340,344 12,933,086 11,983,919
Surplus or (Shortage)(0)
Rehab & New
CALCULATION OF TAX CREDITS Acquisition Construction Historic
ELIGIBLE BASIS - 11,983,919 -
LESS FED FUNDS/ GRANTS -
LESS HISTORIC CREDITS -
ELIGIBLE BASIS (NET)- 11,983,919 -
APPLICABLE FRACTION 100.00%100.00%
QUALIFIED BASIS - 11,983,919 -
QUALIFIED CT ADJUSTMENT 13,182,311
CREDIT PERCENTAGE 9.00%9.00%20.00%
ANNUAL CREDIT - 1,186,408 -
TOTAL ANNUAL CREDITS 1,186,407.98
AMOUNT OF CREDITS ASSUMED IN ANALYSIS:1,149,500
Pro Forma - Townhomes at Creekside LLLP - Ames 5.7.2024 2 5/13/20244:50 PM
EXHIBIT "C" DEVELOPMENT BUDGET
24
Pro Forma - Townhomes at Creekside LLLP - Ames 5.7.2024 3 5/13/20244:50 PM
EXHIBIT "C" DEVELOPMENT BUDGET
25
Pro Forma - Townhomes at Creekside LLLP - Ames 5.7.2024 4 5/13/20244:50 PM
EXHIBIT "C" DEVELOPMENT BUDGET
26
Ames, IA
Townhomes at Creekside LLLP
SOURCES OF FUNDS Amortization Loan Type *Start Date Rate Total % of Total % of CF
First Mortgage 30 01/01/25 7.00%575,000 4.45%2025
2nd Mortgage 10 01/01/25 0.00%0%2025
State HOME Funds 20 A 01/01/25 0.00%500,000 3.87%0%2025
City HOME Funds 0 A 01/01/25 0.00%2,100,000 16.24%0%2025
Add'l City HOME/GP Contribution 0 01/01/25 0.00%0.00%0%2025
Loan #6 0 01/01/25 0.00%0.00%0%2025
GRANT #1 0.00%1900
GRANT #2 0.00%1900
General Partner Contribution 2008 75,750 0.59%1905
Deferred Developers Fee 0.00%142,440
Net Equity to Project 9,539,896 9,539,896 73.76% $0.830 1900
TOTAL SOURCES OF FUNDS 12,933,086
C I A
USES OF FUNDS Per Sq Foot Per Unit Total % of Total
Acquisition/Demo - - -0.00%
Building/Construction - 265,172 10,076,545 77.91%
Professional services - 17,526 665,970 5.15%
Interim Costs - 1,092 41,500 0.32%
Financing Fees - 14,011 532,406 4.12%
Other Soft Costs - 4,936 187,566 1.45%
Development, Consultant, Guaranty Fees - 23,684 900,000 6.96%
Reserves - 13,924 529,099 4.09%
TOTAL USES OF FUNDS 12,933,086
DISBURSEMENT SCHEDULE
LIHTC Historic
Payment/ Milestone Projected Date Equity Credits Other Total Percentage
1 9,539,896 - -
2 - - -
3 - - -
4 - - -
TOTAL 9,539,896 0 0 9,539,896 100.00%
TOTAL PROJECT EQUITY 9,539,896
11/1/2023
545
Pro Forma - Townhomes at Creekside LLLP - Ames 5.7.2024 1 5/7/20242:19 PM
EXHIBIT "D"
SOURCES AND USES
27
City of Ames HOME Investment Partnership (HOME) Program
Project Name: Townhomes At Creekside
Project Owner: Townhomes At Creekside, LLLP
Activity Type: New Construction
Loan Amount: $2,100,000.00
Restrictive Covenant Rental Agreement
The undersigned property owner(s) (“Grantor”), participating in the City of Ames, Iowa
HOME Investment Partnerships (HOME) Program, in consideration of the receipt of
$2,100,000.00 as a loan (the “Loan”) for the construction and enhancement upon the real property
locally known as 3216 Tripp Street, Ames, Iowa (“Project Area”) and legally described as:
Lot 27, Baker Subdivision, Ames, Story County, Iowa.
legal or equitable title to which is held by the undersigned; and Grantor’s mortgage lender,
Midwest Housing Development Fund, Inc., (“Senior Security”) pursuant to that Mortgage granted
on ____________________, 2024, and recorded in the Story County Recorder’s Office on
__________________, 2024, as Instrument No. 2024-______________, in consideration of the
Loan provided by City to Grantor and the additional property value to be attributed to the Property
due thereto, both hereby agree and consent to the creation and imposition of specific restrictive
covenants which are hereby declared to be covenants running with the Project Area for the benefit
of the City of Ames, Iowa (“City”) as specifically set out herein:
1.Affordability Period.
a.Rental HOME Units. Grantor agrees that this Restrictive Covenant shall run
continuously with the land beginning on the date of execution and shall continue as
an encumbrance on the Project Area for a period of 360 months following issuance
of the Certificate of Occupancy, completion of the improvements on the Project
Area, sub-rental of the units, and provision of final demographic information and
S P A C E A B O V E R E S E R V E D F O R O F F I C I A L U S E
Return document to:
Document prepared by:
EXHIIBT E
RESTRICTIVE COVENANTS
28
all construction reports required herein to the City (herein “Affordability Period”).
The city shall notify the Grantor in writing of the date commencing the 360-month
Affordability Period.
2. HOME Assisted Units. The undersigned Borrower agrees that a Project within the above-
described Project Area has HOME funds allocated to it, and eight (8) of the residential
unit(s) in the Project will be a HOME Assisted Unit(s). HOME Assisted Units are defined
by the United States Department of Housing and Urban Development (HUD) as
specifically set forth in the HOME regulations found at Title 24 in the Code of Federal
Regulations (CFR), Part 92, as amended, and includes all required income verification,
resale and recapture provisions, and housing value requirements.
3. Income Limits and Affordability.
a. Rental HOME Units. At all times, eight (8) of Project Units (the “HOME Units”)
must be low-income HOME units that are affordable to households at or below the
area's median income (AMI). The Grantor must maintain the HOME Units
throughout the Affordability Period, and compliance with the HOME Project Unit
mix requirements must be restored if tenant income changes as required by 24 CFR,
part 92.252, as amended.
The HOME Units shall be leased to tenant households with incomes at or between
30%-50% of the Area Median Income (AMI). Additionally, Developer shall set
aside and designate an additional four (4) of the total 38 units with at least one of
each bedroom configuration ("Section 8 Units") for Section 8 Housing Choice
Voucher participants. Notwithstanding the foregoing and anything herein to the
contrary, in the event Borrower does not locate, or receive applications from, a
sufficient amount of tenants who are Section 8 Housing Choice Voucher
participants to occupy such four (4) units within sixty (60) days of any such unit
being ready for lease-up and vacant, any such units that remain vacant may be
advertised and leased to other eligible applicants. Borrower acknowledges that
pursuant to the rules and regulations in connection with the low-income housing
tax credit program, Borrower may not refuse to lease any unit in the project to a
prospective tenant who holds a voucher or certificate of eligibility for assistance
pursuant to Section 8 of the United States Housing Act of 1937, as amended,
because of the status of such prospective tenant as the holder of such voucher or
certificate. The Section 8 Units are not to be part of the HOME Units. All HOME
Units shall be leased at the lesser of the area fair market rents established by HUD
or at the high HOME rent limit all in compliance with HUD HOME guidelines.
Throughout the Affordability Period, the Grantor will maintain rent limitations
that are affordable to 50% or less of the income levels at the Project Area as
specified in the HOME Agreement. These limits may be modified by the U.S.
Department of Housing and Urban Development annually and may be forwarded
to the Grantor by the City for modification. Per HUD requirements, these income
and rent limits are enforceable by the City through this Restrictive Covenant. The
EXHIIBT E
RESTRICTIVE COVENANTS
29
Grantor specifically agrees that the Project will meet the affordability
requirements of 24 CFR 92.252, “Qualifications of Affordable housing: Rental
Housing.”
4. Sale or Transfer of Property. During the Affordability Period, the undersigned hereby
covenants and agrees not to transfer title to or interest in, or otherwise dispose of the Project
Area or any interest therein, or to materially change the occupancy of the Project Area,
without obtaining the prior written consent of the City, which shall be conditioned solely
upon receipt of evidence to the City that the purchaser or transferee has assumed in writing
and in full the undersigned’s duties and obligations under this Restrictive Covenant, and
under the HOME Agreement and related documents, and has the financial and
administrative capabilities to carry out such obligations.
5. Lien Release. Following Grantor’s completion of the Affordability Period and upon
request of the Grantor, release of this Restrictive Covenant shall be in writing and filed of
record with the Story County Recorder.
6. Correspondence. Correspondence required by this Restrictive Covenant shall be provided
by U.S. Mail as follows:
a. For the City, shall be directed to the Housing Coordinator, Planning and Housing
Department, 515 Clark Avenue, PO Box 811, Ames, Iowa 50010-0811;
b. For the Grantor, shall be directed to Townhomes at Creekside, LLLP, 1620 Pleasant
Street, Suite 123, Des Moines, IA 50314;
c. For the Investor Limited Partner, shall be directed to MHEG Fund 58, LP, c/o
Midwest Housing Equity Group, Inc., 515 N 162nd Avenue, Suite 202, Omaha,
Nebraska 68118, Attention: John J. Wiechmann;
d. For the Senior Security (if applicable), shall be directed to Midwest Housing
Development Fund, 515 N. 162nd Avenue, Suite 202, Omaha, NE 68118.
7. Failure to Comply. Failure by Grantor to comply with the terms and obligations set forth
in this Restrictive Covenant or with the HOME Agreement and related documents for the
entirety of the Affordability Period shall constitute default of this Covenant and of the
HOME Agreement. After City has given Grantor due notice of such non-compliance, and
if Grantor should fail to cure such noncompliance within 30 days of such notice, or such
longer period of time as agreed to in writing by City, then City shall be entitled to require
Grantor to repay the entirety of the HOME Loan within 30 calendar days of the City’s
request for such repayment, notwithstanding any term to the contrary in the HOME
Agreement, Note, Mortgage, or any other related document, and in addition to remedies
set forth therein.
EXHIIBT E
RESTRICTIVE COVENANTS
30
8. Enforceability. The terms and obligations set forth in this Restrictive Covenant are
enforceable by the City by any and all legally available options, including but not limited
to specific performance, injunctive relief, and assessment of costs. This Restrictive
Covenant shall be governed by, construed and enforced in accordance with the laws of the
State of Iowa, and Grantor agrees to pay and discharge all reasonable costs and fees,
including fees for services rendered by the City Legal Department, attorneys, officers,
employees, or agents, or any expense that shall arise from any of the terms of this
Restrictive Covenant. The provisions of this instrument may be extended for an additional
period not to exceed the Affordability Period by filing a verified claim in the office of the
Recorder of Story County, Iowa. To the extent required by law, the City shall have the
right to file a verified claim to extend this covenant.
9. Precedence. This Restrictive Covenant, and the terms and obligations of Grantor set forth
herein, shall supersede and take precedence over any and all other liens, obligations, or
agreements made by Grantor in relation to the Project Area, unless otherwise explicitly
stated therein or agreed to by written subordination agreement approved by resolution of
the Ames City Council.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
_______________________________, 2024.
Borrower: Townhomes At Creekside, LLLP, 1620 Pleasant Street, Suite 123, Des Moines, IA
50314
TOWNHOMES AT CREEKSIDE, LLLP
By: Townhomes at Creekside, GP, LLLC, an Iowa
Michael Kiernan
STATE OF IOWA, COUNTY OF STORY, SS.: This instrument was acknowledged before me on
_____________________, 2024, by Michael Kiernan, as Managing Member of Townhomes at Creekside,
GP, LLC, the General Partner of Townhomes at Creekside, LLLP.
NOTARY PUBLIC
EXHIIBT E
RESTRICTIVE COVENANTS
31
Senior Security: Midwest Housing Development Fund, Inc., 515 N 162nd Avenue – Ste. 202,
Omaha NE 68118.
By the signature below, the holder of Senior Security acknowledges its acceptance and consent to
this Restrictive Covenant:
MIDWEST HOUSING DEVELOPMENT
FUND, INC.
By:
SIGNATURE
NAME PRINTED
TITLE OF AUTHORIZED SIGNER
STATE OF_______________, COUNTY OF ____________________, SS.:
This instrument was acknowledged before me on _____________________, 2024, by
_______________________________ as _______________________________ of Midwest Housing
Development Fund, Inc.
NOTARY PUBLIC
EXHIIBT E
RESTRICTIVE COVENANTS
32
City: Vanessa Baker-Latimer, Housing Coordinator, 515 Clark Avenue, Ames IA 50010
______________________2024.
STATE OF IOWA, COUNTY OF STORY, SS.:
This instrument was acknowledged before me on ____________________, 2024, by Vanessa Baker-
Latimer, the Housing Coordinator for the City of Ames, Iowa.
NOTARY PUBLIC
EXHIIBT E
RESTRICTIVE COVENANTS
33
EXHIBIT F
RENT LIMITS, INCLUDING MAXIMUM PER UNIT SUBSIDY
HOME Rent Limits for Ames, IA MSA
(Effective 6/15/2023 )
Efficiency
1
bedroom
2
bedroom
3
bedroom
4
bedroom
5
bedroom
6
bedroom
2023 Low HOME Rent Limit $800 $862 $981 $1,383 $1543 $1,703 $1,862
2023 High HOME Rent Limit $800 $862 $981 $1,394 $1,671 $1,922 $2,172
*Rates are subject to change
HUD Median Family Income for Ames (IA)
(Effective 6/15/2023)
# Persons Extremely Low
30%
HOME
Funding Only
Very Low
50%
60%
Limits
Low
80%
1 $22,350 $37,250 $44,700 $59,600
2 $25,550 $42,600 $51,120 $68,100
3 $28,750 $47,900 $57,480 $76,600
4 $31,900 $53,200 $63,840 $85,100
5 $34,500 $57,500 $69,000 $91,950
6 $37,050 $61,750 $74,100 $98,750
7 $39,600 $66,000 $79,200 $105,550
8 $42,150 $70,250 $84,300 $112,350
34
1
Mortgage - City of Ames HOME Program
This Mortgage is made on ____________________, 2024 between Townhomes at
Creekside, LLLP, an Iowa limited liability limited partnership, (hereinafter called “Borrower” or
“Mortgagor”), and the City of Ames, Iowa (hereinafter called “Lender” or “Mortgagee”).
Together, the Mortgage, the HOME Agreement, the Promissory Note and the Restrictive
Covenants shall constitute the City HOME Loan Documents (the “City HOME Loan
Documents”).
WITNESSETH, that to secure the payment of an indebtedness in the principal amount of
up to $2.1 million dollars, with interest thereon, which shall be payable in accordance with a
certain note, bearing even date herewith, a true and correct copy of which, exclusive of the
signature of the Mortgagor, and all other indebtedness which the Mortgagor is obliged to pay to
the Mortgagee pursuant to the provisions of the Note and this Mortgage, the Mortgagor hereby
grants, sells, conveys and mortgages to the Mortgagee, forever, the following described real estate
which is locally known as 3216 Tripp Street, Ames, Iowa, and legally known as:
Lot 27, Baker Subdivision, Ames, Story County, Iowa.
TOGETHER, with all appurtenances thereto and all the estate and rights of the Mortgagor
in and to such property or in anywise appertaining thereto; all buildings and other structures now
or hereafter thereon erected or installed, and all fixtures and articles of personal property now or
hereafter to, or used in, or in the operations of, any such land, buildings or structures which are
necessary to the complete use and occupancy of such buildings or structures for the purpose for
which they were or are to be erected or installed, including, but not limited to all heating, plumbing,
bathroom, lighting, cooking, laundry, ventilating, refrigerating, incinerating, and air-conditioning
equipment and fixtures and all replacements thereof and additions thereto; whether or not the same
are or shall be attached to such land, buildings or structures in a manner.
S P A C E A B O V E R E S E R V E D F O R O F F I C I A L U S E
Return document to: City Clerk, 515 Clark Avenue, P.O. Box 811, Ames IA 50010
Document prepared by:
EXHIBIT "G"
MORTGAGE
35
2
TOGETHER, with any and all awards now or hereafter made for the taking of the property
mortgaged hereby, or any part thereof (including any easement), by the exercise of the power of
eminent domain, including any award for change of the grade of any street or other roadway, which
awards are hereby assigned to the Mortgagee and are deemed a part of the property mortgaged
hereby, and the Mortgagee is hereby authorized to collect and receive the proceeds of such awards,
to give proper receipts and acquittances therefor, and to apply the same toward the payment of the
indebtedness secured by this Mortgage, notwithstanding the fact that the amount owing thereon
may not then be due and payable; and the Mortgagor hereby agrees, upon request, to make, execute
and deliver any and all assignments and other instruments sufficient for the purpose of assigning
each such award to the Mortgagee, free, clear and discharged of any encumbrances of any kind or
nature whatsoever; and nothing herein shall be considered an assignment of Mortgagor’s right to
contest a claim of eminent domain, which Mortgagor shall reserve all rights to; and
TOGETHER, with all right, title and interest of the Mortgagor in and to the land lying in
the streets and roads in front of and adjoining the above-described land (all the above-described
land, buildings, other structures, fixtures, articles of personal property, awards of taking by
eminent domain, and other rights and interests as described herein being hereinafter collectively
called the “mortgaged property”).
TO HAVE AND TO HOLD the mortgaged property and every part thereof unto the
Mortgagee, its successors and assigns forever for the purposes and uses herein set forth.
AND, the Mortgagor further covenants and agrees with the Mortgagee as follows;
1. Obligations. The Mortgagor will promptly pay the principal and interest on the
indebtedness evidenced by the Note, and all other charges and indebtedness provided
therein, and in this Mortgage, at the times in the manner provided in the Note and in this
Mortgage.
2. Taxes and Assessments. The Mortgagor will pay when due, as hereinafter provided, all
ground rents, if any, and all taxes and assessments, water rates and other governmental
charges, fines and impositions, of every kind and nature whatsoever, now or hereafter
imposed on the mortgaged property, or any part thereof, and will pay when due, every
amount of indebtedness secured by any lien to which the lien of this Mortgage is expressly
subject.
3. Improvements; Remedies. This Mortgage and the Note were executed and delivered to
secure moneys advanced in full or in part to the Mortgagor by the Mortgagee as or on
account of a loan evidenced by the Note, for the purpose of making the improvements
described or referred to in the HOME Agreement entered into by the Mortgagor and the
Mortgagee in connection herewith to or on the Mortgaged property, and for such other
purpose, if any, described or referred to therein, which improvements are hereafter
EXHIBIT "G"
MORTGAGE
36
3
collectively called “Improvements.” The Mortgagor shall make or cause to be made all the
Improvements. If the construction or installation of the Improvements shall not be carried
out with reasonable diligence, or shall be discontinued at any time for any reason, other
than strikes, lockouts, acts of God, fires, floods or other similar catastrophes, riots, war or
insurrection, the Mortgagee after due notice to the Mortgagor is hereby authorized:
a. to enter upon the mortgaged property and employ any watchmen to protect the
Improvements from depredation or injury and to preserve and protect such
property,
b. to carry out any or all then existing contracts between the Mortgagor and other
parties for the purpose of making any of the Improvements,
c. to make and enter into additional contracts and incur obligations for the purposes
of completing the Improvements pursuant to the obligations of the Mortgagor
hereunder, either in the name of the Mortgagee or the Mortgagor,
d. to pay and discharge all debts, obligations and liabilities incurred by reason of any
action taken by the Mortgagee, as provided in this Paragraph, all of which amounts
so paid by the Mortgagee, with interest thereon from the date of each payment at
the rate of amounts so paid by the Mortgagee, with interest thereon from the date
of each payment at the rate set forth in the Promissory Note signed concurrently
herewith and included herein by this reference shall be payable by the Mortgagor
on demand and shall be secured by this Mortgage.
4. Alterations in Project Area. No building or other structure or improvement, fixture or
personal property mortgaged on the Project Area hereby shall be removed or intentionally
demolished by Mortgagor without the prior written consent of the Mortgagee unless the
same is replaced with like property, subject to the lien and security interest of this
Mortgage, of at least equal value and utility. The Mortgagor will not make, permit or suffer
any substantial alteration of or installed upon the mortgaged property, or any part thereof,
except the Improvements required to be made pursuant to Paragraph 3 hereof, nor will the
Mortgagor use, or permit or suffer the use of, any of the mortgaged property for any
purpose other than the purpose or purposes for which the same is now intended to be used,
without the prior written constant of the Mortgagee. The Mortgagor will maintain the
mortgaged property in good condition and state of repair and will not suffer or permit any
waste to any part thereon, and will promptly comply with all the requirements of Federal,
state and local governments, or of any departments, divisions, or bureaus thereof,
pertaining to such property or any part thereof.
5. Liens. The Mortgagor will not voluntarily create, or permit or suffer to be created or to
exist on or against the mortgaged property, or any part thereof, any lien superior to the lien
of this mortgage, except if subordinated by the City, and will keep and maintain the same
EXHIBIT "G"
MORTGAGE
37
4
free from the claims of all parties supplying labor or materials which will enter into the
construction or installation of the improvements.
6. Insurance.
a. The Mortgagor will keep all buildings, other structures and improvements,
including equipment, now existing or which may hereafter be erected or installed
on the land mortgaged hereby, insured against loss by fire and other hazards,
casualties and contingencies, in such amounts and manner, and for such periods, as
deemed commercially reasonable. Unless otherwise required by the Mortgagee, all
such insurance shall be subject to Standard Fire and Extended Coverage insurance
policies, in amounts not less than necessary to comply with the coinsurance clause
percentage of the value applicable to the location and character of the property to
be covered. All such insurance shall be carried in companies approved by the
Mortgagee and all policies therefore shall be in such form and shall have attached
thereto loss payable clauses in favor of the mortgagee and any other parties as shall
be satisfactory to the Mortgagee.
A certificate of insurance for all required insurance policies herein shall be
delivered promptly to the Mortgagee upon execution of this Mortgage, unless they
are required to be delivered to the holder of a lien or mortgage or similar instrument
to which this Mortgage is expressly subject, in which latter event certificates
thereof, satisfactory to the Mortgagee, shall be delivered promptly to the
Mortgagee.
The Mortgagor will pay promptly when due, as hereinafter provided, any and all
premiums on such insurance, and in every case in which payment thereof is not
made from the deposits therefor required by this Mortgage, promptly submit to the
Mortgagee for examination, receipts or other evidence of such payment as shall be
satisfactory to the Mortgagee.
b. In the event of loss or damage to the property the Mortgagor will give to the
Mortgagee immediate notice thereof by mail, and the Mortgagee may make and file
proof of loss if not made otherwise promptly by or on behalf of the Mortgagor.
Each insurance company issuing any such policy is hereby authorized and directed
to make payment hereunder for such loss directly to the Mortgagee, instead of to
the Mortgagor and the Mortgagee jointly payable, unless the amount of loss is
payable first to the holder of a lien under a mortgage or similar instrument to which
this Mortgage is expressly subject; and the insurance proceeds or any part thereof
received by the Mortgagee may be applied by the Mortgagee, at its option, either
in reduction of the indebtedness of foreclosure of the Mortgage, or of the transfer
of title to the mortgaged property in every such insurance policy then in force,
subject to the rights in interest of the holder of any such prior lien, shall pass to the
EXHIBIT "G"
MORTGAGE
38
5
grantee acquiring title to the mortgaged property together with such policy and
appropriate assignment of such right, title and interest which shall be made by the
Mortgagor.
7. Payment and Application of Payments.
a. In order to more fully protect the security of this Mortgage, the Mortgagor provides
annually to the Mortgagee until the Note is paid in full, proof of payment of the
following:
i. ground rents, if any, next becoming due,
ii. the premiums next becoming due on the policies of fire and all other hazard
insurance required by this Mortgage with respect to the mortgaged property,
iii. taxes, assessments, water rates and other governmental charges next
becoming due on the mortgaged property (all the foregoing amounts as
estimated by the Mortgagee as set forth in a written notice of such estimate
by the Mortgagee to the Mortgagor from time to time),
b. Following written notice from Mortgagee to Mortgagor, the Mortgagee may require
that the Mortgagor deposit with the Mortgagee, together with and in addition to the
payment of principal and interest in accordance with the Note secured hereby, until
the Note is paid in full or forgiven as applicable, an amount of money equal to the
total amount referred to in clauses (i) through (iii) above less all amounts that may
already have been paid therefor, divided by the number of calendar months to
elapse before one calendar month prior to the date when such ground rents,
premiums, taxes, assessments, water rights and other governmental charges,
respectively, will become due and payable. If any amount referred to in clauses (i)
through (iii) hereof is required to be deposited by the Mortgagor under a mortgage
or similar instrument having priority over the lien of this Mortgage, the Mortgagor
shall make the deposits required by this Paragraph 7 only in the event of the
termination of such obligation under the prior mortgage or similar instrument. The
Mortgagor shall give prompt notice in writing to the Mortgagee of the occurrence
of the last-mentioned event. All such amounts so deposited with the Mortgagee
shall be held by the Mortgagee, or any agent designated by it, in trust to be used
only for the payment of such ground rents, premiums, taxes, assessments, water
rates and other governmental charges. No interest shall be payable by the
Mortgagee on any sum so deposited.
c. All amounts required to be deposited with the Mortgagee or Senior Security
monthly in accordance with Paragraph 7(b) hereof, and the amount of principal and
interest to be paid each month on account of the Note, shall be added together, and
the aggregate amount thereof shall be paid by the Mortgagor to the Mortgagee in a
single payment to be applied by the Mortgagee on account of the indebtedness of
EXHIBIT "G"
MORTGAGE
39
6
the mortgagor pursuant to the Note and this Mortgage (to the extent that monies are
available from the amount so deposited), in the order, any provision of the Note to
the contrary notwithstanding, as follows:
FIRST to the amount of such ground rents, if any, taxes, assessments, water rights,
and other governmental charges required to be paid under the provisions of this
Mortgage, in whatever sequence the Mortgagee may exclusively determine;
SECOND to the interest due on the Note;
THIRD to the principal due on the note; and
FOURTH the remainder, to the late charges, if any, referred to in the Note.
Any deficiency in the amount of any such aggregate monthly payment shall, unless
paid by the Mortgagor prior to the due date of the next such deposit payable,
constitute an event of default under this Mortgage.
d. Any excess funds that may be accumulated by reason of the deposits required under
Paragraph 7(a) hereof, remaining after payment of the amounts described in clauses
(i), (ii), and (iii) thereof, shall be credited to subsequent respective monthly amounts
of the same nature required to be paid thereunder. If any such amount shall exceed
the estimate therefor, the Mortgagor shall forthwith pay to the Mortgagee the
amount of such deficiency upon written notice by the Mortgagee of the amount
thereof. Failure to do so before the due date of such amount shall be an event of
default under this Mortgage. If the mortgaged property is sold under foreclosure or
is otherwise acquired by the Mortgagee, after default by the Mortgagor, any
remaining balance of accumulations under Paragraph 7(a) hereof, shall be credited
to the principal amount owing on the Note as of the date of commencement of
foreclosure proceedings for the mortgaged property, or as of the date the mortgaged
property is otherwise so acquired.
8. Compliance with Laws. The improvements and all plans and specifications therefor shall
comply with all applicable municipal ordinances, regulations, and rules made or
promulgated by lawful authority, and upon their completion shall comply therewith.
9. Protection of Mortgagee’s Security. Upon any failure by the Mortgagor to comply with
or perform any of the terms, covenants or conditions of this Mortgage requiring the
payment of any amount of money by the Mortgagor, other than the principal amount of the
loan evidenced by the Note, interest and other charges, as provided in the Note, the
Mortgagee may at its option make such payment. Every payment so made by the
Mortgagee (including reasonable attorney’s fees incurred thereby), with interest thereon
from the date of such payment, at a rate not to exceed fifteen percent (15%) per annum,
except any payment for which a different rate of interest is specified herein, shall be
payable by the Mortgagor to the Mortgagee within thirty days and shall be secured by this
Mortgage. This Mortgage with respect to any such amount and the interest thereon, shall
EXHIBIT "G"
MORTGAGE
40
7
constitute a lien on the mortgaged property prior to any other lien attaching or accruing
subsequent to the lien of this Mortgage.
10. Inspections. The Mortgagee, by any of its agents or representatives, shall have the right to
inspect the mortgaged property from time to time at any reasonable hour of the day. Should
the mortgaged property, or any part thereof, at any time require inspection, repair, care or
attention of any kind or nature not provided by this Mortgage as determined by the
Mortgagee in its reasonable discretion, the Mortgagee may, after reasonable notice to the
Mortgagor, enter or cause entry to be made upon, the mortgaged property, and inspect,
repair, protect, care for or maintain such property, as the Mortgagee may in its sole
discretion deem necessary, and may pay all amounts of money therefor, as the Mortgagee
may in its sole discretion deem necessary.
11. Acceleration of Payment. The principal amount owing on the Note together with interest
thereon and all other charges, as therein provided, and all other amounts of money owing
by the Mortgagor to the Mortgagee pursuant to and secured or intended to be secured by
this Mortgage, will immediately become due and payable without notice or demand upon
the appointment of a court appointed receiver or liquidator, whether voluntary or
involuntary, for the mortgagor or any of the property of the Mortgagor, or upon the filing
of a petition by or against the Mortgagor under the provisions of any State insolvency law,
or under the provisions of the Bankruptcy Act of 1898, as amended, or upon the making
by the Mortgagor of an assignment for the benefit of the Mortgagor’s creditors. The
Mortgagee is authorized to declare, at its option, all or any part of such indebtedness
immediately due and payable upon the happening of any of the following events:
a. Failure to pay the amount of any installment of principal and interest, or other
charges payable on the Note, which shall have become due, prior to the due date of
the next such installment;
b. Nonperformance by the Mortgagor of any covenant, agreement, term or condition
of this Mortgage, or of the Note (except as otherwise provided in subdivision (a)
hereof), or the HOME Agreement or Restrictive Covenant related thereto, after the
Mortgagor has been given thirty-day due notice and opportunity to cure by the
Mortgagee of such nonperformance;
c. After applicable notice and cure period, failure of the mortgagor to perform any
covenant, agreement, term or condition in any instrument creating a lien upon the
mortgaged property, including but not limited to the HOME Agreement or
Restrictive Covenant, or any part thereof, which shall have priority over the lien of
this Mortgage;
d. The Mortgagee's discovery of the Mortgagor's failure in any application of the
Mortgagor to the Mortgagee to disclose any fact reasonably deemed by the
EXHIBIT "G"
MORTGAGE
41
8
Mortgagee to be material, or of the making therein or in any of the agreements
entered into by the Mortgagor with the Mortgagee (including, but not limited to,
the Note and this Mortgage) of any misrepresentation by, on behalf of, or for the
benefit of, the Mortgagor;
e. The sale, lease (except non-HOME unit tenant leases), or other transfer of any kind
of nature of the mortgaged property (except mortgaged interest or easements), or
any part thereof, without the prior written consent of the Mortgagee;
The Mortgagee's failure to exercise any of its rights hereunder shall not constitute a waiver
thereof. All the events in this Paragraph enumerated upon the happening of any of which
the Note shall become, or may be declared to be, immediately due and payable, are in this
Mortgage called "events of default".
12. Cure of Default. The Mortgagee may from time to time cure an event of default under any
covenant or agreement in any instrument creating a lien upon the mortgaged property, or
any part thereof, including but not limited to the HOME Agreement and Restrictive
Covenant, which shall have priority over the lien of this Mortgage, to such extent as the
Mortgagee may exclusively determine, and each amount paid (if any) by the Mortgagee to
cure any such default shall be paid by the Mortgagor to the Mortgagee; and the Mortgagee
may also become subrogated to whatever rights the holder of the prior lien might have
under such instrument.
13. Event of Default.
a. After the happening of an event of default hereunder, the Mortgagor shall, upon
demand of the Mortgagee, surrender possession of the mortgaged property to the
Mortgagee, and the Mortgagee may enter such property, and let the same and
collect all the rents therefrom which are due to be become due, and apply the same,
after payment of all charges and expenses, on account of the indebtedness hereby
secured, and all such rents and all leases existing at the time of such default are
hereby assigned to the Mortgagee as further security for the payment of the
indebtedness secured hereby; and the Mortgagee may also dispossess, by the usual
summary proceedings, any tenant defaulting in the payment of any rent to the
Mortgagee.
b. In the event that the Mortgagor occupies the mortgaged property, or any part
thereof, the Mortgagor agrees to surrender possession of such property to the
Mortgagee immediately after any such default hereunder, and if the Mortgagor
remains in possession after such default, such possession shall be as a tenant of the
Mortgagee, and the Mortgagor shall pay in advance, upon demand by the
Mortgagee, as a reasonable monthly rental for the premises occupies by the
Mortgagor, an amount at least equivalent to one-twelfth (1/12) of the aggregate of
EXHIBIT "G"
MORTGAGE
42
9
the twelve monthly installments payable in the current calendar year, plus the actual
amount of the annual ground rent, if any, taxes, assessments, water rates, other
governmental charges and insurance premiums payable in connection with the
mortgaged property during such year, and upon the failure of the Mortgagor to pay
such monthly rental, the Mortgagor may also be dispossessed by the usual summary
proceedings applicable to tenants. This covenant shall become effective
immediately upon the happening of any such default, as determined in the sole
discretion of the Mortgagee, who shall give notice of such determination to the
Mortgagor; and in the case of foreclosure and the appointment of a receiver of the
rents, the within covenant shall inure to the benefit of such receiver.
14. Receivership. The Mortgagee in any action to foreclose this Mortgage shall be entitled to
the appointment of a receiver with notice as a matter of right without regard to the value of
the mortgaged property, or the solvency or insolvency of the Mortgagor or other party
liable for the payment of the Note and other indebtedness secured by this Mortgage.
15. Redemption. In addition to all other remedies afforded to Mortgagee by this Mortgage and
under Iowa law, at Mortgagee’s option in the event of default that remains uncured by
Mortgagor, Mortgagee may elect to declare the entire balance immediately due and payable
after such notice, if any, as may be required by Chapter 654, Code of Iowa. Thereafter this
Mortgage may be foreclosed in equity and the court may appoint a receiver to take
immediate possession of the mortgaged property and of the revenues and income accruing
therefrom and to rent or cultivate the same as the receiver may deem best for the interest
of all parties concerned, and such receiver shall be liable to account to Mortgagor only for
the net profits, after application of rents, issues and profits from the costs and expenses of
the receivership and foreclosure and upon the Note and Mortgage obligation.
It is agreed that if this Mortgage covers less than ten (10) acres of land, and in the event of
the foreclosure of this Mortgage and sale of the property by sheriff's sale in such foreclosure
proceedings, the time of one year for redemption from said sale provided by the statutes of
the State of Iowa shall be reduced to six (6) months provided the Mortgagee, in such action
files an election to waive any deficiency judgment against the Mortgagors which may arise
out of the foreclosure proceedings; all to be consistent with the provision of Chapter 628
of the Iowa Code. If the redemption period is so reduced, for the first three (3) months after
the sale such right of redemption shall be exclusive to the Debtor, and the time periods in
Sections 628.5, 628.15 and 628.16 of the Iowa Code shall be reduced to four (4) months.
It is further agreed that the period of redemption after a foreclosure of this Mortgage shall
be reduced to 60 days if all of the three following contingencies develop: (1) the real estate
is less than 10 acres in size; (2) the court finds affirmatively that the said real estate has
been abandoned by the owners and those persons personally liable under this Mortgage at
the time of such foreclosure; and (3) Mortgagee in such action files an election to waive
any deficiency judgment against Mortgagors or their successor in interest in such action.
EXHIBIT "G"
MORTGAGE
43
10
If the redemption period is so reduced, Mortgagors or their successors in interest or the
owner shall have the exclusive right to redeem for the first 30 days after such sale, and the
time provided for redemption by creditors as provided in Section 628.5, 628.15 and 628.16
of the Iowa Code shall be reduced to 40 days. Entry of appearance by pleading or docket
entry by or on behalf of Mortgagors shall be presumption that the property is not
abandoned. Any such redemption period shall be consistent with the provisions of Chapter
628 of the Iowa Code. This paragraph shall not be construed to limit or otherwise affect
any other redemption provisions contained in Chapter 628 of the Iowa Code. In case of a
foreclosure sale of the mortgaged property, it may be sold in one parcel.
16. Statement of Indebtedness. The Mortgagor, within 10 days upon request in person or
within 20 days upon request by mail, will furnish promptly a written statement in form
satisfactory to the Mortgagee, signed by the Mortgagor and duly acknowledged, of the
amount then owing on the Note and other indebtedness secured by this Mortgage, and
whether any offsets or defenses exist against such indebtedness or any part thereof.
17. Notice of Damage or Destruction. The Mortgagor will give prompt notice by registered
or certified mail to the Mortgagee of any fire, damage or other casualty materially affecting
the mortgaged property, or of any conveyance, transfer of change in ownership of such
property, or any part thereof.
18. Notices. Notice and demand or request may be made in writing and may be served in
person or by mail, as follows:
a. For the City: Housing Coordinator, Planning and Housing Department, 515 Clark
Avenue – P.O Box 811, Ames, IA 50010-0811
b. For the Borrower: Townhomes at Creekside, LLLP, 1620 Pleasant Street, Suite
123, Des Moines, Iowa 50314
19. Investor Notice and Opportunity to Cure. Notwithstanding anything to the contrary
contained in the City HOME Loan Documents, the Investor Limited Partner shall have the
right, but not the obligation, to cure any default of Borrower under any Loan Document,
and Lender agrees to accept cures tendered by Investor Limited Partner
a. In any event of default, Lender will endeavor to provide a written notice of such
default to the Investor Limited Partner.
b. Any notice provided to the Investor Limited Partner hereunder will be placed in the
United States mail, postage prepaid, addressed to the Investor Limited Partner as
follows:
MHEG Fund 58, LP
c/o Midwest Housing Equity Group, Inc.
515 N 162nd Avenue, Suite 202
EXHIBIT "G"
MORTGAGE
44
11
Omaha, Nebraska 68118
Attention: John J. Wiechmann
With a copy to:
Kutak Rock LLP
1650 Farnam Street
Omaha, Nebraska, 68102
Attention: Shane R. Deaver, Esq.
c. The Investor Limited Partner may update its address or contact by providing notice
to Lender, but any such updated address or contact information shall only be
effective upon written acknowledgement of the change by Lender.
20. Permitted Transfers. Notwithstanding anything to the contrary contained in any of the
City HOME Loan Documents:
a. MHEG Fund 58, LP, a Nebraska limited partnership, the investor limited partner
of the Borrower (“Investor Limited Partner”) shall be permitted to remove a general
partner of Borrower for cause in accordance with the terms of the First Amended
and Restated Agreement of Limited Liability Limited Partnership of the Borrower,
as it may be amended (the “Partnership Agreement”) and shall be able to replace
such general partner with a general partner selected by the Investor Limited Partner
all without the consent or approval of the Lender; and
b. Investor Limited Partner may transfer its limited partner interest in Borrower in
accordance with the terms of the Partnership Agreement without the consent of
Lender; and
c. any general partner of Borrower may exercise its purchase option to purchase the
interest of the Investor Limited Partner in accordance with the terms of the
Partnership Agreement without the consent of Lender (each, a “Permitted
Transfer”); and
d. no Permitted Transfer shall cause a default under any of the City HOME Loan
Documents or shall trigger any acceleration or due on sale clause under any of the
City HOME Loan Documents; and
e. Lender shall not receive any fee or other amounts from Borrower in connection
with a Permitted Transfer; and
f. the Partnership Agreement may be amended or modified in connection with a
Permitted Transfer without the prior written consent of Lender.
21. Assignment of Rents. The Mortgagor will not assign the rents, if any, in whole or in part,
from the mortgaged property, or any part thereof, without the prior written consent of the
Mortgagee.
22. Authority. The Mortgagor is lawfully seized of the mortgaged property and has good right,
full power and lawful authority to sell and convey the same in the manner above provided
EXHIBIT "G"
MORTGAGE
45
12
and will warrant and defend the same to the Mortgagee forever against the lawful claims
and demands of any and all parties whatsoever.
23. Severability. In the event any portion of this Mortgage shall, for any reason, be held to be
invalid, illegal, or unenforceable in whole or in part, the remaining provisions shall not be
affected thereby and shall continue to be valid and enforceable and if, for any reason, a
court finds that any provision of this Mortgage is invalid, illegal, or unenforceable, as
written, but that by limiting such provision it would become valid, legal and enforceable
then such provision shall be deemed to be written, construed and enforced as so limited.
24. Release of Rights of Dower, Homestead and Distributive Share. Each of the
undersigned hereby relinquishes all rights of dower, homestead and distributive share in
and to the mortgaged property and waives all rights of exemption as to any of the
mortgaged property.
25. Successors and Assigns. This Mortgage and all the covenants, agreements, terms and
conditions herein contained shall be binding upon and inure to the benefit of the Mortgagor
and the heirs, legal representatives and assigns of the Mortgagor, and, to the extent
permitted by law, every subsequent owner of the mortgaged property; and shall be binding
upon and inure to the benefit of the Mortgagee and its assigns. If the Mortgagor, as defined
herein, consists of two or more parties, the Mortgage shall constitute a grant and mortgage
by all of them jointly and severally, and they shall be obligated jointly and severally under
all the provisions hereof and under the Note. The word "Mortgagee" shall include any
person, corporation or other party who may from time to time be the holder of this
Mortgage. Whenever used herein the singular number shall include the plural, the plural
number shall include the singular, and the use of any gender shall be applicable to all
genders wherever the sense requires.
26. Acknowledgement of Receipt of Copies of Debt Instrument. Mortgagor hereby
acknowledges the receipt of a copy of the Mortgage together with a copy of the Note
secured hereby.
IN WITNESS WHEREOF, this Mortgage has been duly signed and sealed by the Mortgagor on or
as of the day and year first above written.
[ S I G N A T U R E S O N F O L L O W I N G P A G E ]
EXHIBIT "G"
MORTGAGE
46
13
TOWNHOMES AT CREEKSIDE, LLLP
By: Townhomes at Creekside, GP, LLLC, an Iowa
Michael Kiernan
Ryan Galloway
STATE OF IOWA, COUNTY OF STORY, SS.:
This instrument was acknowledged before me on _____________________, 2024, by Michael Kiernan
and Ryan Galloway, as Managing Members of Townhomes at Creekside, GP, LLC, the General Partners
of Townhomes at Creekside, LLLP.
NOTARY PUBLIC
EXHIBIT "G"
MORTGAGE
47
1
Promissory Note
City of Ames HOME Program
Borrower/Promisor: Townhomes of Creekside, LLLP
Property Address: 3216 Tripp Street, Ames, IA
Loan Amount: $2,100,000.00
Legal Description: “Lot 27, Baker Subdivision, Ames, Story County, Iowa”
1.Borrower Promise to Pay. For value received, the undersigned Borrower(s) jointly and
severally promise(s) to pay to the order of the City of Ames, Iowa (hereafter referred to as
the City), or its successors and assigns (herein collectively called the “Lender”), the
maximum principal sum of $2,100,000.00 (“HOME Loan”), or such lesser amount as may
be endorsed on this Note on behalf of Lender. The availability of the maximum principal
sum shall be contingent upon the release to the City of HOME and Community Housing
Development (CHDO) set aside funds by the Department of Housing and Urban
Development (HUD).
2.No Interest. The Loan shall accrue interest on the principal balance at a 0% interest rate
compounding annually for a term of 30 years.
3.Payments. Borrower agrees to make equal payments to Lender starting on July 1, 2055,
and on the 1st date of every month thereafter over a 10-year amortization period, with the
final payment due June 1, 2065. Payments shall be made to the Lender at the office of the
Housing Coordinator - City of Ames, Planning and Housing Department, 515 Clark
Avenue – P.O. Box 811, Ames, Iowa, 50010, or such place as the Lender may designate in
writing. All such payments shall be applied first to any interest and late charges accrued
and then to principal.
4.Non-Compliance. If the Borrower fails to comply with the HOME Agreement, Borrower’s
non-compliance shall constitute a default of the terms of this Note and then, and in that
event, the entire Loan amount due on this Note shall immediately be due and payable to
Lender and no portion of the Loan amount shall be discharged or forgiven.
5.Sale or Transfer. The HOME Loan, or any remaining balance thereof, shall be due in full
upon any voluntary sale of the Property or improvements thereon without the prior written
consent of the Lender. If the HOME Loan is not timely paid when due upon such sale, it
shall thereafter draw interest at the rate of 10% per annum, but not to exceed the maximum
interest rate permitted by law. If the City consents to the sale or transfer of the Property or
the improvements thereon, the HOME Loan and all of the obligations related thereto shall
be assumed by the Borrower’s successor or assign.
6.Satisfaction of Repayment. Unless there is a finding of ineligible use of HOME funding
by the United States Department of Housing and Urban Development (HUD) or a HUD
EXHIBIT "H"
PROMISSORY NOTE
48
2
requirement of reimbursement of HOME funding, the Lender shall look solely to the
Property for the satisfaction of the repayment obligations under this Note.
7. Borrower’s Right to Prepay. Borrower may prepay at any time all or any part of the
principal amount due on this Note without the payment of penalties or premiums, provided
that Borrower is not in default under this Note and the payment is identifiable as a
prepayment of principal. In the event of prepayment, Lender will notify Borrower of the
new date and amount of final payment due under this Note.
8. Borrower’s Failure to Pay as Required. If the Borrower shall default in the payment of
any installment due under this Note, and such default is not made good prior to the due
date of the next installment, the entire unpaid principal amount of this Note, together with
accrued interest and late charges shall become immediately due and payable, at the option
of the Lender, with two-day notice to the Borrower(s). Failure of the Lender to exercise
such option shall not constitute a waiver of such default. No default shall exist by reason
of nonpayment of any required installment of principal and interest, so long as the amount
of optional prepayments already made pursuant hereto equals or exceeds the amount of the
required installments. If Lender exercises its option to declare the entire amount of
Borrower’s loan immediately due and payable as provided above, Borrower hereby agrees
to pay Lender’s costs and expenses of collection, including reasonable attorney’s fees and
court costs. If this Note is reduced to judgment, the judgment shall bear interest at the
maximum rate permissible on such judgment in the State of Iowa, or if there is no such
maximum, at the rate of 15% per annum.
If any annual installment of interest or any part of such installment, remains unpaid for a
period of 15 days from its due date, the Borrower hereby agrees to pay to Lender a Late
Charge of 4% of the unpaid amount of such installment.
9. Non-Recourse. Notwithstanding any other provision contained in the City HOME Loan
Documents, the HOME Loan evidenced by this Note is a non-recourse obligation of
Borrower and its partners.
10. Security. This Note is secured by a Mortgage, duly filed for record in the office of the
County Recorder for Story County, Iowa.
11. Waivers. All parties to this Note hereby waive presentment for payment, demand, protest,
notice of protest and notice of dishonor. The Borrower hereby waives, to the extent
permitted by law, any homestead and other exemption rights which otherwise would apply
to the debt evidenced by this Note.
IN WITNESS WHEREOF, this Note has been duly executed by the undersigned Borrower(s), as
of the date shown above.
EXHIBIT "H"
PROMISSORY NOTE
49
3
TOWNHOMES AT CREEKSIDE, LLLP
liability partnership,
By: Townhomes at Creekside, GP, LLLC, an Iowa
Michael Kiernan
STATE OF IOWA, COUNTY OF STORY, SS.:
This instrument was acknowledged before me on _____________________, 2024, by Michael Kiernan,
as Managing Member of Townhomes at Creekside, GP, LLC, the General Partner of Townhomes at
Creekside, LLLP.
NOTARY PUBLIC
EXHIBIT "H"
PROMISSORY NOTE
50
EXHIBIT I
LOAN REPAYMENT SCHEDULE
51
EXHIBIT I
LOAN REPAYMENT SCHEDULE
52
ITEM #:2
DATE:05-23-24
DEPT:ELEC
SUBJECT:CONSTRUCTION SERVICES FOR COMPLIANCE WITH THE U.S. EPA
COAL COMBUSTION RESIDUALS (CCR) STANDARD; - ENGINEERING
SERVICES CONTRACT AND CHANGE ORDER NO. 4
COUNCIL ACTION FORM
BACKGROUND:
On April 17, 2015, a Final Rule entitled “Hazardous and Solid Waste Management System; Disposal of
Coal Combustion Residuals (CCR) From Electric Utilities” was published in the Federal Register,
which regulated the disposal of ash in surface impoundments and landfills resulting from the burning of
coal in electric utility boilers.
In response to the rules by the U.S. EPA on coal ash sites, Electric Services began looking for a
consulting firm that specialized in coal ash site activities, with deep understanding of the state and
federal regulations governing coal ash sites, especially U.S. EPA’s CCR rule. The consulting firm
would help the City comply with several near-term reporting requirements.
SCS Engineers of Clive, Iowa, was selected as the engineering consultant from an RFP process for this
initial project based upon the combination of technical expertise and price. On December 19, 2017,
SCS Engineers was issued a Purchase Order to complete nine (9) studies/reports required by
April 17, 2018 to comply with the CCR rule. In addition, SCS Engineers conducted the required
annual inspections of the City's CCR site.
Additional compliance with the CCR rule requires a major reconfiguration of the existing ash site
to be completed by April 2026, in which all coal ash will be placed on approximately one-half of
the site and that will become a closed-in-place landfill. Initially, SCS Engineers started design of the
ash pond reconfiguration under the same purchase order as the studies and annual reporting tasks.
CURRENT CONTRACT
On October 25, 2022, City Council awarded a new purchase order to SCS Engineers, Clive, IA, in
the amount of $135,000 to complete the design and to produce plans and specifications necessary
for bidding, permitting, cost estimating, and related services necessary to modify and reconfigure
the ash site to comply with the provisions of U.S. EPA’s coal combustion residuals (CCR) rule. It
was decided to issue a new purchase order to separate out the design and construction services from the
annual compliance inspection services. This purchase order also included evaluating ash collection
system locations.
Change Order No. 1 in the amount of $12,523.06 was approved by staff to finalize plans and
specifications after determining that the current ash collection system was the most practical option.
Change Order No. 2 in the amount of $2,965.00 was approved by staff to modify the bid documents to
provide bid alternates as requested by staff. Because of the uncertainty of waste to energy, staff
requested the construction of a new RDF pond be listed on the bid documents as an alternate add item.
Bidding the project in this manner gave staff the most flexibility in moving forward with the project.
53
The project was successfully bid and after review of contractor qualifications, a construction contract
was awarded. EPA and IDNR CCR regulations require a professional engineer to certify the
construction was built according to approved design (bid documents). The professional engineer must
be familiar with the construction of CCR landfills and the specific project details. It was staff ’s intent
to work with SCS Engineers. However, SCS was unable to prepare a const ruction scope of
services until a project schedule was provided by the contractor. The construction schedule has
been provided and SCS has submitted a proposal to provide services as the owner’s engineer,
observe and document construction, and provide the licensed engineer certifications to fulfill the
regulatory requirements. Staff also developed a construction services contract (approved by the City
Attorney and Risk Manager) that SCS Engineers agreed to add to the current professional services
agreement. The construction services contract better defines obligations and responsibilities for each
party involved.
Change Order No. 3 in the amount of $11,500 was approved by City Manager's staff for SCS Engineers
to complete limited construction administration tasks until the additional construction services contract
was complete and a change order for SCS to perform all construction services could be approved.
THIS ACTION:
Staff requests approval of Change Order No. 4 in the amount of $431,500. Through this change
order, SCS Engineers will provide construction observation service, construction documentation,
prepare the necessary CCR construction compliance reports for Iowa DNR and EPA, and
perform other construction related services. SCS Engineers has also agreed to liability and
indemnification language in this change order, which will apply to this change order and
retroactively to the work SCS previously completed in the original contract and change orders 1-
3.
The engineering services expenses are indicated in the table below:
Original
Contract $ 135,000.00
Change
Order #1 12,523.06
Change
Order #2 2,965.00
Change
Order #3 11,500.00
Change
Order #4
(this action)
431,500.00
TOTAL
Engineering
Services
$ 593,488.06
The construction contract is in the amount of $2,606,093.15. The total of design and construction costs
are $3,199,581.21. The total Ash Pond Modification Project budget is $6,957,484.
54
ALTERNATIVES:
1. Approve Engineering Services Contract and Change Order No. 4 in the amount of $431,500 to
SCS Engineers of Clive, Iowa, to provide additional consulting services to complete the
construction, compliance documentation, construction certification, and related services
necessary to modify and reconfigure the ash site to comply with the provisions of U.S. EPA’s
coal combustion residuals (CCR) rule.
2. Do not approve the contract with SCS Engineers and direct the development and issuance of a
Request For Proposal for this work.
CITY MANAGER'S RECOMMENDED ACTION:
This scope of work is necessary for the Power Plant to continue to function and comply with U.S.
EPA’s CCR rule. Following a Request for Proposal route will cause a delay in the project and
potentially result in complications if the Owner's Engineer is different than the firm that designed the
project. Therefore, it is the recommendation of the City Manager that the City Council adopt
Alternative No. 1, as described above.
55