HomeMy WebLinkAboutSunnyside South Addition LLC - Proj Dev Agmnt-9/11/2017PROJECT DEVELOPMENT AGREEMENT
This Project Development Agreement (the "Agreement") is entered into as of
v31-- 1t , 2017, by and between Sunnyside South Addition, LLC ("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 financed and constructed a relocation of a portion of West
San Marnan Drive between Ansborough Avenue and W. 4`" Street and
developed lots for construction of single-family dwellings (the
"Improvements") in the project area.
C. Company took the action referred to in Recital B pursuant to a Project
Development Agreement between these same parties date January 7,
2013 as amended February 11, 2013, and April 22, 2013, and recorded
on May 21, 2013 as Document 2013-00022736 (collectively, the "2013
Agreement"), and City has received significant and substantial benefit as
a' result of that action. The Company took the action referred to in Recital
B after the City vacated and deeded the property in question to it pursuant
to the terms of the 2013 Agreement.
D. Subsequent to the actions of Company and City described above, the
Iowa Supreme Court entered a ruling on May 30, 2014, which enjoined
the City from selling or transferring the subject property without first
following the procedures prescribed in Iowa Code § 306.23.
E. The City has now complied with the procedures prescribed in Iowa Code §
306.23 and both parties wish to confirm the terms of the 2013 Agreement
and authorize and undertake the actions necessary to carry out the intent
of the 2013 Agreement so that Company can complete the Project.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Affirmation of 2013 Agreement and Subdivision Plat. City and
Company do herby reaffirm and ratify the 2013 Agreement and all of its terms and
conditions, except as modified by this Agreement. City does further affirm all actions
taken by Company to plat Sunnyside South Addition, acknowledges that in taking such
actions Company was, to the extend necessary, acting as agent for City to carry out the
intents and purposes of the 2013 Agreement, and ratifies all such actions as though
City had itself undertaken the platting of Sunnyside South Addition.
2. Covenants of City.
a. City agrees to convey the property identified as Lots 1 through 24
of Sunnyside South Addition (the "Property" to Company by special warranty
deed for the price of $1.00. The Property shall be conveyed to Sunnyside South
Addition, LLC no later than October 1, 2017. City shall have no duty to provide
an abstract of title or other evidence of title, but Company may procure whatever
evidence of title it desires at its own cost; provided, however, that City shall
cooperate with any reasonable request by Company, and shall approve and
execute such reasonable documents, as Company may request to obtain
merchantable title, 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 or other
applicable law.
b: City has cooperated with the Company in developing a street
design that integrates with a reconnection to the remainder of existing West San
Marnan;Drive at each end of the new street. The design considers the likelihood
of future construction of an extension of San Marnan Drive to the south in
connection with future land development. Company shall have the right to select
a name tfor the new street, subject to approval by the City.
c City agrees to provide reasonable assistance to Company in
connect)on with any applications for rezoning of the Property or portions thereof
for purposes consistent with the Project and the eventual development of the
Property for residential subdivision.
3. Covenants of Company.
Upon receipt of the special warranty deed referenced above, clear
title, and successful resolution of all legal challenges to this project (including,
but not limited to, resolution of the pending lawsuit entitled Tunis E. Den Hartog,
Shirley Ann Schweertman, Leonard G. Lybbert, James Edward Schuman,
Michael J. Mac, Mary Ellen Molinaro, William James Robert, and Mark D. Fisher,
Plaintiffs, vs. City of Waterloo, Defendant and Sunnyside South Addition, LLC,
Intervenor Plaintiff vs. City of Waterloo, Intervenor Defendant, Black Hawk
County Case No. EQCV117886), Company agrees to release, acquit and forever
discharge the City from any claims it may now have or ever claim to have by
reason of the City's failure to perform or delay in performance pursuant to the
2013 Agreement.
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b Company agrees to indemnify and hold City harmless from and
against any and all claims, demands, causes of action, costs, expenses, or
liabilities of any type or nature, including but not limited to reasonable attorneys'
fees, arising from or in connection with Company's actions in platting Sunnyside
South Addition and in undertaking the Improvements.
4. 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 City has now complied with the provisions of Iowa Code § 306.
5. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
a It is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
b. It is duly organized, validly existing, and in good standing under the
laws of the state of Iowa.
c It has full right, title, and authority to execute and perform this
Agreement and to consummate all of the transactions contemplated herein, and
each person who executes and delivers this Agreement for it and all documents
to be delivered to City hereunder is and shall be authorized to do so on its
behalf.
6. No Joint Venture. Nothing in this Agreement shall, or shall be deemed
or construed to, create or constitute any joint venture, partnership, agency,
employment, or any other relationship between the City and Company, nor to create
any liability for one party with respect to the liabilities or obligations of the other party or
any other person.
7. 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
number2319-291-4571, Attention: Mayor, with copies to the City Attorney and
Community Planning and Development Director.
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(b) if to Company, to Sunnyside South Addition, LLC, 315 E. 51h Street,
Waterloo, IA 50703, Attention: James E. Walsh, Jr.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) three (3) business days following the date of deposit if mailed by United
States registered or certified mail, postage prepaid, or (iii) when transmitted by facsimile
so long as the sender obtains written electronic confirmation from the sending facsimile
machine that such transmission was successful.
8. 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 of parties to be bound or by its duly
authorized representative, and specifying with particularity the extend 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.
9. 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.
10. captions. All captions, headings or titles in the paragraphs or sections
of this Agreement are inserted only as a matter of convenience and or/or reference, and
they shall in no way be construed as limited, extending, or describing either the scope
or intent of this' Agreement or of any provisions hereof. Capitalized terms not defined
herein shall have the meaning ascribed to them in the 2013 Agreement.
11. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
12. 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.
13. Entire Agreement. This Agreement, together with the 2013 Agreement,
constitutes the entire agreement of the parties and supercedes all prior to
contemporaneous negotiations, discussions, understandings, or agreements, whether
oral or written, with respect to the subject matter hereof.
14. Time of Essence. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Project Development
Agreement as of the date first set forth above.
CITY OF WATERLOO, IOWA
By:
Quentin Hart, Mayor
AL/ I 1 i
Attest: �.�..AA.4 1!I AJ
Kelley FeIle, City Clerk
SUNNYSIDE S4UT ADDITIO, LLC
James E. W
sh, Jr., Man
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