HomeMy WebLinkAboutStickfort Brothers-10/22/2012 (2)Please return this copy to:
City Clerk & Finance Department
715 Mulberry Street
Waterloo, IA 50703
DEVELOPMENT AGREEMENT
This Devement Agreement (the "Agreement") is entered into as of
(�42 r , �� 2012, by and between Stick Brothers, L.L.C. ("Company"), and the
City of Waterloo, Iowa ("City").
RECITALS
A. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the
community to provide financial incentives so as to encourage that goal.
B. Company has entered into an agreement (the "Purchase Agreement")
with City by which Company will transfer certain lands to City for
development and/or drainage improvement purposes, and by this
Agreement City desires to transfer to Company the real property
described on Exhibit "A" hereto (the "Property"), located in the Northeast
Industrial Park, for use on the terms set forth herein.
C. City believes that the transactions between the parties contemplated by
this Agreement and the Purchase Agreement are in the public interest and
are reasonably expected to accomplish a public purpose.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. On a date to be determined hereafter by the mutual
consent of the parties that will result in a concurrent closing hereunder and under the
Purchase Agreement, City shall convey the Property to Company for the sum of $1.00
(the "Purchase Price"). Conveyance shall be by special warranty deed, free and clear
of all encumbrances arising by or through City except: (a) easements, conditions and
restrictions of record which do not, in Company's opinion, interfere with Company's
proposed use; (b) current and future real estate real property taxes and assessments
subject to the agreements made herein; (c) general utility and right-of-way easements
serving the Property; and (d) restrictions imposed by the City zoning ordinances, other
applicable law, and the Deed of Dedication for Northeast Industrial Park Plat. City shall
provide to Company any abstracts of title for the Property in its possession, and
Company may update and review same at its own expense. City shall make every
reasonable effort to promptly perfect title. If closing is delayed due to City's inability to
provide marketable title, this Agreement shall continue in force and effect until either
party rescinds the Agreement after giving ten days' written notice to the other party.
The abstract shall become the property of Company when the Purchase Price is paid in
full.
2. Use of Property. Company intends to use the Property for purposes of
rubble deposit and rock crushing operations. City makes no representation or warranty
as to the suitability of the Property for such purposes or for any particular purpose, and
City hereby expressly disclaims any such representations or warranties. Company's
use of the Property must comply with applicable regulations, and Company must obtain
a special permit from City and other necessary regulatory approvals before beginning
the intended operations.
3. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
4. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
5. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, to Stick Brothers, L.L.C., P.O. Box 447, Hudson,
Iowa 50643, Attn: Jeff Stickfort.
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Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful.
6. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
effect unless made in writing, signed by the party or parties to be bound or by the duly
authorized representative of same, and specifying with particularity the extent and
nature of the amendment, modification, or waiver. Any waiver by any party of any
default by another party shall not affect or impair any rights arising from any subsequent
default.
7. Severability. Each provision, section, sentence, clause, phrase, and
word of this Agreement is intended to be severable. If any portion of this Agreement
shall be deemed invalid or unenforceable, whether in whole or in part, the offending
provision or part thereof shall be deemed severed from this Agreement and the
remaining provisions of this Agreement shall not be affected thereby and shall continue
in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
8. Captions. All captions, headings, or titles in the paragraphs or sections
of this Agreement are inserted only as a matter of convenience and/or reference, and
they shall in no way be construed as limiting, extending, or describing either the scope
or intent of this Agreement or of any provisions hereof.
9. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, legal representatives,
and future owners of the Property.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
11. Entire Agreement. This Agreement, together with the exhibits hereto,
constitutes the entire agreement of the parties and supersedes all prior or
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF ATERLOO, IOWA
B
Attes
rnest G. Clark, Ma or
zy Sch res, City Clerk
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A parcel of land located in the Northeast Quarter of the Southwest Quarter (NE SW),
and the Northwest Quarter of the Southeast Quarter (NW SE), all in Section 20,
Township 89 North, Range 12 West, Black Hawk County, Iowa, described as:
That part of the North One-half of the Northeast Quarter of the Southwest Quarter,
and that part of the North One-half of the Northwest Quarter of the Southeast Quarter,
all lying Westerly of a line parallel with and 75 feet West of the centerline of Northeast
Drive, and Tying Southerly of the Union Pacific Railroad right-of-way.
REAL ESTATE PURCHASE AGREEMENT
(NONRESIDENTIAL)
TO: Stick Brothers, L.L.C. ("Seller")
FROM: City of Waterloo, Iowa ("Buyer")
Buyer hereby offers to buy, and the Seller by its acceptance agrees to sell, the real property
situated in Waterloo, Black Hawk County, Iowa, legally described as per the abstract of title,
consisting of approximately 20 acres identified as assessor parcel no(s). 8913-10-251-017 and
8913-10-276-006; together with any easements and appurtenant servient estates, but subject to
any reasonable easements of record for public utilities or roads, any zoning restrictions
customary restrictive covenants and mineral reservations of record, if any, herein referred to as
the "Property," upon the following terms and conditions:
1. PURCHASE PRICE. The Purchase Price shall be $1.00, to be paid in full at closing.
2. POSSESSION AND CLOSING. Possession of the Property shall be delivered to Buyer
at closing. Closing shall occur at City Hall, 715 Mulberry Street, Waterloo, on a date mutually
agreeable to the parties within thirty (30) days after approval of this Agreement by the Waterloo
City Council, subject to satisfaction of any conditions stated in this Agreement.
3. REAL ESTATE TAXES. Seller shall pay taxes prorated to the closing date in
accordance with the provisions of Iowa Code § 427.2, and any unpaid real estate taxes payable in
prior years, either paying Buyer, or giving Buyer a credit, for all of such taxes. Buyer shall pay
all subsequent real estate taxes.
4. SPECIAL ASSESSMENTS. Seller shall pay at time of closing all installments of special
assessments which are a lien on the Property as of closing or which can be verified to be owing
as of the closing date but are not yet certified as a lien. Buyer shall pay all other special
assessments or installments.
5. RISK OF LOSS AND INSURANCE. Seller agrees to maintain existing insurance to the
date of closing and shall bear the risk of loss or damage to the Property to the date of closing. In
the event of substantial damage or destruction prior to closing, the Buyer shall have the option to
complete the closing and receive insurance proceeds regardless of the extent of damages or to
declare this Agreement null and void.
6. FIXTURES. Included with the Property shall be all fixtures that integrally belong to, are
specifically adapted to or are a part of the real estate, whether attached or detached. The
following items shall not be included:
7. CONDITION OF PROPERTY. The Property as of the date of this Agreement, including
buildings, grounds, and all improvements, will be preserved by the Seller in its present condition
until closing, ordinary wear and tear excepted. Seller sells the Property "AS IS" and makes no
warranties, expressed or implied, as to the condition of the Property.
Within 45 days after the acceptance of this Agreement, Buyer may, at its sole expense, have
the property inspected by a person or persons of its choice to determine if there are any
environmental or other deficiencies. Seller shall cooperate in providing reasonable access to
Buyer's inspectors. Within this same period, the Buyer may notify the Seller in writing of any
deficiency. The Seller shall immediately notify the Buyer in writing of what steps, if any, the
Seller will take to correct any deficiencies before closing. The Buyer shall then immediately in
writing notify the Seller that (1) such steps are acceptable, in which case this Agreement, as so
modified, shall be binding upon all parties; or (2) that such steps are not acceptable, in which
case this Agreement shall be null and void, and any earnest money shall be returned to Buyer.
8. ABSTRACT AND TITLE. Seller, at its expense, shall obtain from the Black Hawk
County Abstract & Title an abstract of title to the Property continued through a date that is
within thirty (30) days of the closing, and shall deliver it to Buyer's attorney for examination. It
shall show marketable title in Seller in conformity with this Agreement, Iowa law, and title
standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to
promptly perfect the title. If closing is delayed due to Seller's inability to provide marketable
title, this Agreement shall continue in force and effect until either party rescinds the Agreement
after giving ten days' written notice to the other party. The abstract shall become the property of
Buyer when the Purchase Price is paid in full. Seller shall pay the costs of any additional
abstracting and title work due to any act or omission of Seller, including transfers by or the death
of Seller or its assignees.
9. SURVEY. Buyer may, at Buyer's expense, have the Property surveyed and certified by a
registered land surveyor prior to closing if a survey is required by law. If the survey shows an
encroachment on the Property or if any improvements located on the Property encroach on lands
of others, the encroachments shall be treated as a title defect.
10. ENVIRONMENTAL MATTERS.
A. Seller warrants to the best of its knowledge and belief that there are no abandoned
wells, solid waste disposal sites, hazardous wastes or substances, or underground storage
tanks located on the Property, the Property does not contain levels of radon gas, asbestos, or
urea -formaldehyde foam insulation which require remediation under current governmental
standards, and Seller has done nothing to contaminate the Property with hazardous wastes or
substances. Seller warrants that the property is not subject to any local, state, or federal
judicial or administrative action, investigation or order, as the case may be, regarding wells,
solid waste disposal sites, hazardous wastes or substances, or underground storage tanks.
Any exceptions to the warranties set forth above are fully described on a separateaddendum
attached hereto.
B. Seller hereby represents that, to the best of its knowledge and belief, there is no active
or abandoned septic tank or septic system on the property, except as described here:
C. Buyer may, at Buyer's expense, have the Property inspected further for the existence
of any hazardous materials, substances, or wastes. Seller shall cooperate in providing
reasonable access to Buyer's inspectors and engineers. If hazardous materials, substances, or
wastes are discovered on the Property, Buyer's obligation hereunder shall be contingent upon
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the removal of such materials, substances, conditions or wastes or other resolution of the
matter reasonably satisfactory to Buyer. However, in the event Seller is required to expend
any sum in excess of $1,000 to remove any hazardous materials, substances, conditions or
wastes, Seller shall have the option to cancel this transaction and refund to Buyer all earnest
money paid and declare this Agreement null and void. The expense of any action necessary
to remove or otherwise make safe any hazardous material, substances, conditions or waste
shall be paid by Seller, subject to Seller's right to cancel this transaction as provided above.
11. DEED. Upon payment of the Purchase Price, Seller shall convey the Property to Buyer
by warranty deed, free and clear of all liens, restrictions, and encumbrances except as provided in
this Agreement. General warranties of the title shall extend to the time of delivery of the deed
excepting liens and encumbrances suffered or permitted by Buyer.
12. JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE. If Seller, immediately
preceding acceptance of the offer, holds title to the Property in joint tenancy with full rights of
survivorship, and the joint tenancy is not later destroyed by operation of law or by acts of the
Seller, then the proceeds of this sale, and any continuing or recaptured rights of Seller in the
Property, shall belong to Seller as joint tenants with full rights of survivorship and not as tenants
in common; and Buyer in the event of death of any Seller, agree to pay any balance of the price
due Seller under this contract to the surviving Seller and to accept a deed from the surviving
Seller consistent with Paragraph 15.
13. JOINDER BY SELLER'S SPOUSE. Seller's spouse, if not a title holder immediately
preceding acceptance, executes this Agreement only for the purpose of relinquishing all rights of
dower, homestead, and distributive share or in compliance with Section 561.13 of the Code of
Iowa and agrees to execute the deed• or real estate contract for this purpose.
14. STATEMENT AS TO LIENS. If Buyer intends to assume or take subject to a lien on the
Property, Seller shall furnish Buyer with a written statement prior to closing from the holder of
such lien, showing the correct balance due.
15. USE OF PURCHASE PRICE. At time of settlement, funds of the Purchase Price may be
used to pay taxes and other liens and to acquire outstanding interests, if any, of others.
16. 1031 EXCHANGE. N/A.
17. APPROVAL OF COURT. N/A.
18. REMEDIES OF THE PARTIES.
A. If Buyer fail to timely perform this Agreement, Seller may forfeit it as provided in the
Iowa Code (Chapter 656), and all payments made shall be forfeited; or, at Seller's option,
upon thirty days' written notice of intention to accelerate the payment of the entire balance
because of Buyer's default (during which thirty days the default is not corrected), Seller may
declare the entire balance immediately due and payable. Thereafter this Agreement may be
foreclosed in equity and the Court may appoint a receiver.
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B. If Seller fails to timely perform this Agreement, Buyer has the right to have all
payments made returned to it, or Buyer may require specific performance by Seller.
C. Buyer and Seller are also entitled to utilize any and all other remedies or actions at
law or in equity available to them, and the prevailing parties shall also be entitled to obtain
judgment for costs and attorney fees.
19. NOTICE. Any notice under this Agreement shall be in writing and be deemed served
when it is delivered by personal delivery or mailed by certified mail, addressed to the parties at
the addresses given below.
Seller: Stick Brothers, L.LC.
P.O. Box 447
Hudson, IA 50643
Buyer: City of Waterloo
715 Mulberry Street
Waterloo, IA 50703
Attn: Community Planning & Development Director
20. GENERAL PROVISIONS. In the performance of each part of this Agreement, time
shall be of the essence. Failure to promptly assert rights herein shall not, however, be a waiver
of such rights or a waiver of any existing or subsequent default. This Agreement shall apply to
and bind the successors in interest of the parties. This Agreement shall survive the closing. This
Agreement contains the entire agreement of the parties and shall not be amended except by a
written instrument duly signed by Seller and Buyer. Paragraph headings are for convenience of
reference and shall not limit or affect the meaning of this Agreement. Words and phrases herein
shall be construed as in the singular or plural number, and as masculine, feminine or neuter
gender according to the context.
21. NO REAL ESTATE AGENT OR BROKER. Neither party has used the service of a real
estate agent or broker in connection with this transaction.
22. ADDITIONAL PROVISIONS.
A. The parties acknowledge that Buyer is acquiring the Property for economic development
purposes. Buyer's rights and duties under this Agreement are assignable to any person or
entity that will further the economic development objectives contemplated by Buyer.
B. Special contingencies to effectiveness of Agreement. Notwithstanding any signatures
below by representatives of Buyer, this Agreement is expressly subject to approval by the
city council of Buyer and also to the city council's approval of a development agreement
providing for the transfer to Seller of approximately 13 acres of City -owned land in the
Northeast Industrial Park consisting of assessor parcel no. 8912-20-326-004 and a portion
of parcel no. 8912-20-401-002.
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23. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the
parties, superseding all prior or contemporaneous understandings, negotiations, discussions, or
agreements between the parties with respect to the subject matter hereof.
24. ACCEPTANCE. When accepted, this Agreement shall become a binding contract. If not
accepted by Seller on or before September , 2012, this Agreement shall be null and void.
Dated
Accepted by Seller OG �e� 3112-6'
BUYER SELLER
City of Waj loo, Iowa
By:
Mayor
Attest•
City Clerk
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Stick Brothers, L.L.C.
By:
Title: ` � A i