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HomeMy WebLinkAboutSunnyside South Addition LLC - Proj Dev Agmnt-9/11/2017(RECORDED)H OE P &3 -eddoc PROJECT DEVELOPMENT AGREEMENT 11 11 1 1 i 1111111111111111 iwu Doc ID: 009579170007 Type GEN Recorded: 06/26/2019 at 12:40:07 PM Fee Amt: $37.00 Page 1 of 7 Black Hawk County Iowa SANDIE L. SMITH RECORDER i File 1 �, n jUJ j 6:24 This Project Development Agreement (the "Agreement") is entered into as of , 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. 4th 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 Maman 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 for the new street, subject to approval by the City. c City agrees to provide reasonable assistance to Company in connection 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. a" 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. 2 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: 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 te, 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 numberi319-291-4571, Attention: Mayor, with copies to the City Attorney and Commupity Planning and Development Director. 3 (I) if to Company, to Sunnyside South Addition, LLC, 315 E. 5th 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 shill 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 noway be construed as limited, extending, or describing either the scope or intent of this4Agreement or of any provisions hereof. Capitalized terms not defined herein shall haiVe 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 representative. 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 contemporanepus 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. 4 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 Attest: elley Felc 1e, City Clerk ,UNNY,I6aOUTH ADDITION, LLC I /2/- 5 es E Walsh, Jr., Mager Prepared by LeAnn M. Even, Deputy City Clerk, City of Waterloo, 715 Mulberry Street, Waterloo, IA 50703, (319) 291-4323. RESOLUTION NO. 2017-755 RESOLUTION APPROVING A PROJECT DEVELOPMENT AGREEMENT WITH SUNK YSIDE SOUTH ADDITION, LLC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WATERLOO, IOWA, that a Project Development Agreement dated September 11, 2017, between Sunnyside South Addition, LLC and the City of Waterloo, Iowa, for the development of property located adjacent to Sunnyside Country Club, is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same on behalf of the City of Waterloo, Iowa. PASSED AND ADOPTED this 11th day of September 2017. ATTEST: elley Fehle City Cler Quentin Hart, Mayor CERTIFICATE I, Kelley Felchle City Clerk of the City of Waterloo, Iowa, do hereby certify that the preceding is a true and complete copy of Resolution 2017-755, as passed and adopted by the Council of the City of Waterloo, Iowa, on the 11th day of September 2017. SEAL Witness my hand and seal of office this 11th day of September 2017. Kelley Felc City Clerk �/ STATE OF IOWA, } Black Hawk County, SS NOTICE OF PUBLIC HEARING TO WHOM IT MAY CONCERN: Notice 1s hereby given that on the 11 h day of Se tembe 12017 at 5:30 pm., In the Harold E Getty Coon i Chambers In City Hall In the City of Waterloo, Iowa, a pIteh2a ng Wl be he ibla I the Cary j lopwa end o Project Development alcAgreement and a approve the 1 and : ny y nc@ of a right gj w a ml r &at sac Mn maSnny-. Ide Cfou ty Club, In the ot amount of $1 00 to SO side Sou h Addl ion, LLC, legs ly descnlled as follows, LOTS 1 THROUGH,24 SUNNYSIDE SOUTH ADDITION, CITY OF WATER- LOO, ATERLOO, OWA.' Anyone who s in erested may appear at said time and place and be heard o may: the w men object on with the City Clerk City Hall, Waterloo, Iowa befo e the da e set to said hearing. By rder of the Cannel of the OW of water oo this 28th day of August, 20 7, y Kel CityaCie k I do solemnly swear that the annexed copy of legal City of Waterloo Public Hearing: SC Development Agreement - Sunnyside South Notice was published in the Waterloo -Cedar Falls Courier, a daily newspaper printed in Waterloo, Black Hawk County, Iowa, once commencing on the 1st day of September, 2017 in the name of said newspaper, and that the annexed rate of advertised is the regular legal rate of said newspaper, and that the following is a correct bill for publishing said notice. Printer's Bill $12.96 1p LC -A- Imo'" Signed Subscribed and sworn to before me this 7 Day of friA.D., 20 /7 Received of ymq Notary Public the sum of Dollars. In full for publication of the above notice. IJODI E MCKINSTQY " 4*n '•i COMMIS ION 782493 «. " mY i N rIES