Loading...
HomeMy WebLinkAboutDeer Creek Development, LLC - Detention Basin Maintenance Agmnt - 5/26/2020 (RECORDED)i i i i i i i i i i i i i i r Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50704 BETENr U'ION ASIN M Doc ID: 009931910005 Type. GEN Recorded: 08/28/2020 at 02:50:03 PM Fee Amt: $27.00 Page 1 of 5 Black Hawk County Iowa SANDIE L. SMITH RECORDER Fue202 lc-00004529 Phone (319) 234-5701 ) PENANCE g GREEMENT and E S t JMEN'F AGREEMENT This Detention Basin Maintenance Agreement and Kasement Agreement (the "Agreement") is entered into as of k2 , 2020, by and between Deer Creek Development, LLC ("Developer") and the City of Waterloo, Iowa ("City"). RECITALS A. Developer is the owner and developer of real property platted as Greenbelt Centre Plat No. 8 (the "Subdivision"). Wif an the Subdivision, a parcel platted as Tract B (the "Basin") is intended to function as part of the storm water management system for the contributing drainage area. For purposes of this Agreement, the Basin is the entirety of Tract B and is not limited to whatever part of Tract B may be holding water at any given time. B. The Basin enhances the drainage of storm water from other lots in the Subdivision and adjacent subdivisions that are owned by Developer or other third parties and from other property in the drainage basin and aids in the capture and/or removal of pollutants from storm water. The Basin requires periodic inspection and proper maintenance in order to receive storm water runoff, to provide for storm water management and/or measured release of same, and to fulfill other functions of a storm water management system. C. As a condition to development of the Subdivision and to the City's approval of this Agreement, Developer is willing to obligate itself and its permitted successors, assigns and transferees to maintain the Basin on the terms and conditions set forth herein. AGREEMENT N. OW, TIIFi,REFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Installation, Maintenance and Repair Developer agrees to install, construct, maintain, repair, and reconstruct the Basin as set forth herein Developer shall be solely responsible for the inspection, maintenance and repair of the Basin so that the Basin continues to function as originally designed for its primary purpose and use for storm water management, storm water release and pollutant filtration Unless Developer obtains a waiver or variance, it shall comply with (a) all applicable requirements of Title 8, Chapter 4 of the Waterloo Code of Ordinances, including the provisions of all applicable Articles thereunder, or any successor provisions thereto, (b) all applicable requirements of any other provisions of the Waterloo Code of Ordinances, (c) all standards and specifications required by the City Engineer in the exercise of his or her reasonable discretion, initially including but not limited to those set forth on 1-exhibit "A" attached hereto, and (d) all standards and best management practices set forth in the Iowa Storm Water Management Manual or successor publication, as any of the foregoing may now or hereafter be in effect. Developer shall be solely responsible to conduct such periodic inspections of the Basin as may be reasonably necessary to ensure compliance with its duties hereunder and to timely prepare and file with City any required reports. 2. Maintenance Association Developer shall organize an association (the "Association") for purposes of performing the post -construction repair and maintenance obligations of Developer under this Agreement. Until Developer has, in writing, assigned its obligations under this Agreement to the Association and filed such assignment in the land records of Black Hawk County, Iowa, Developer shall be responsible for performance of all obligations under this Agreement. The Association shall include as initial members the owners of all parcels of real estate that contribute or are reasonably anticipated to contribute storm water runoff to the Basin, whether such real estate lies within the Subdivision or not As of the date of this Agreement, the parties anticipate that Lots 6, 7, 8 and 9 in Greenbelt Centre Plat No 8 will contribute stoinn water runoff to the Basin, with the amount contributed to be determined through appropriate engineering analysis. The Association shall provide for the future inclusion of future owners of such parcels of real estate. Initial member -owners and future member -owners are referred to herein as Members". Association Members shall execute a written agreement (the "Member Agreement') that identifies the parcels owned by the Members, and the Member Agreement may also allocate among the Members the proportionate share of liability that each Member shall have for the fmancial liabilities of the association and may provide for such other terms to which the Members may agree. Any terms of the Member Agreement that are in conflict with the terns of this Agreement shall be void and of no effect to the extent of such conflict. The Member Agreement shall be filed of record in the office of the Black Hawk County Recorder and shall include terms stating that the agreement constitutes a covenant running with the land, binding upon each Member and the Member's successors, assigns and transferees, according to its teiins. The Association shall be maintained as an active entity in the State of Iowa until City has consented in writing to the dissolution of same. The Member Agreement shall continue in effect and may not be terminated without the prior written consent of City. 3. Enforcement In addition to any other enforcement powers or remedies available to City under city ordinance or applicable law or regulation, City may proceed as set forth in this Section If Developer or other responsible party fails or refuses to satisfy any requirements under this Agreement, and if the Basin is not a hazard to public safety or health as determined in 2 the discretion of the City Engineer or designee, then City shall provide such party or Developer with reasonable notice to correct the violation in a timely manner. If such failure is instead determined to be a hazard to public safety or health, then City shall notify such party or Developer of the violation in writing and shall provide a reasonable time, as determined in the discretion of the City Engineer or designee, for completion of remedial action, which time may be reasonably extended as determined in the discretion of the City Engineer or designee. If any violation or non-compliance has not been timely corrected, then City may enter upon the Basin premises, take such action as deemed reasonably necessary to eliminate the hazard, assess jointly and severally against the Basin and the properties constituting the Benefited Estate all cost and expense of such action and any fines or penalties related to the violation or non-compliance, and charge such amounts to the owners of the Basin and the Benefited Estate as a personal joint and several liability Any assessment shall constitute a lien against the Basin or a property in the Benefited Estate and shall be collected in the same manner as property tax. City's enforcement rights and remedies under this Agreement, city ordinances, and other applicable law or regulation are cumulative, and City shall have discretion to exercise any of them or all of them at any time Interest shall accrue at the rate of 12% per annum on any sum assessed from the date of assessment and on any sum charged from the date of invoicing, until paid in full. In any legal action, City shall be entitled to recovery of its reasonable attorneys' fees and expenses if it is the prevailing party. 4. Easement Grant to Benefited Estate. The Basin is the "Servient Estate" for purposes of this Agreement. Developer, as owner of the Servient Estate, hereby grants to the Benefited Estate" a perpetual easement in, over, above, across and upon the Servient Estate for drainage of surface waters and storm water runoff and for detention of such waters. The Benefited Estate is comprised of all parcels of real estate that contribute surface water and storm water runoff to the Basin. The foregoing easement grant shall operate in favor of any party owning any part of the Benefited Estate, whether such party is Developer or a third party 5 Easement Grant to City. Developer hereby grants to City a perpetual access easement for purposes of inspection of the Basin. 6. Drainage Pipes. The parties acknowledge that a 40-foot drainage easement currently runs across Lots 3, 4, 9 and 10 as depicted on the plat for Greenbelt Centre Plat No. 5 and across Lots 4 and 5 of Greenbelt Centre Plat No. 8 (collectively, the ` Plats 5 & 8 Drainage Easement"). In connection with a development project to be constructed on Lots 4 and 5 of Greenbelt Centre Plat No. 8 (the "Plat 8 Project') and Lots 9 and 10 of Greenbelt Centre Plat No. 5, three (3) 48-inch pipes (the "Pipes") for storm water drainage are proposed to be installed under and through the Plats 5 & 8 Drainage Easement. City agrees that Developer or its successor-m-interest of the Plat 8 Project property may install the Pipes under and through the Plats 5 & 8 Drainage Easement, provided that (a) the owner of the Plat 8 Project property undertakes all work of installation of the Pipes in compliance with all applicable requirements of governing ordinance, law of regulation and of the City Engineer, and (b) the owner of the Plat 8 Project property shall restore the surface of the Plat 5 & 8 Drainage Easement premises to substantially the condition it was 'n before the commencement of work. The owner of the Plat 8 Project property shall discharge all obligations set forth in this paragraph at its own expense, and 3 the City shall have no liability with respect thereto. Following City's acceptance of the installed Pipes, City shall be responsible for all cost and expense of any future inspection, repair, maintenance, replacement or removal of the Pipes; provided that before City's acceptance Developer shall deliver to City a performance bond coveiing any work of repair or replacement that may be reasonably necessary in the four (4) year period after City's acceptance of the Pipes. 7. Waiver Fach and every covenant and agreement contained herein shall be for all purposes hereof construed as separate and independent, and the breach of any covenant by any party shall not release or discharge them from their obligations hereunder. No delay by any party in exercising, or omission by any party to exercise, its rights accruing upon any non- compliance or failure or performance by any party shall impair any such right or be construed to be a waiver thereof A waiver by any party hereto of any of the covenants, conditions or agreements to be performed by any other party shall not be construed to be a waiver of any succeeding breach or of any other covenants, conditions or agreements contained herein. 8. Severability; Reformation 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, illegal 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. 9. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors, assigns and transferees. 10. Covenants Run with the Land. All the terms and provisions hereof are and shall be deemed to run with the property described herein and shall burden and benefit such property and, with respect thereto, each owner, the holders or owners of any mortgage, indenture, deed of trust or deed to secure debt encumbering any of such property, any purchaser at a foreclosure sale or tax sale, and their respective heirs, personal representatives, successors and assigns. 11. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, 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 Developer, to 315 5th Street, P.O. Box 476, Hudson, Iowa 50643, facsimile number 319-988-3011, Attention• Harold Youngblut. 4 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. A party may change the address for giving notice by any method set forth in this section. 12. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be effective or valid 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. Waiver by any party of any specific default by another party shall not affect or impair any rights arising from any subsequent default. This Agreement may be modified or amended only by the mutual written agreement of the parties. 13. 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 14. Counterparts. This Agreement may be executed in one or more counterparts, each of which, including counterparts exchange by facsimile or other electronic means, shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 15. Entire Agreement. This Agreement, together with the exhibits attached hereto, if any, 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 16. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Detention Basin Maintenance Agreement and Easement Agreement by their duly authorized representatives as of the date first set forth above. DEER CREEK DEVELOPMENT, LLC By: Harold Youn ident 5 CITY OF WATERLOO, I O WA By: Quentin Hart, Mayor Attest: