Loading...
HomeMy WebLinkAboutCedar Valley Civil Rights Peace Walk, Inc-3/25/2013PROJECT AGREEMENT This Project Agreement (the "Agreement") is entered into as of rdi A., , 2013, Cedar Valley Civil Rights Peace Walk, Inc. (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. City is the owner of real property known as Washington Park, legally described as Lot 29, Original Plat on the West Side of the Cedar River, City of Waterloo, Iowa (the "Property"),on which Company desires to construct a memorial dedicated to educate and reflect on Dr. Martin Luther King, Jr.'s historical visit to the Cedar Valley, his life and legacy. B. Company is willing and able to finance and construct improvements for the memorial walk substantially in conformity with a preliminary concept depicted on Exhibit "A" attached hereto. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. License of Use. Subject to the terms hereof, City grants to Company a personal, revocable license (the "License") for construction and maintenance of the improvements (the "Improvements") that are the subject of this Agreement. The existence of the License shall not imply or impute the creation or existence of any easement right, ownership interest, or other claim, right or interest of or in Company with respect to the Property. The name of the Property as "Washington Park" is unaffected by this Agreement, although City may choose to designate the portion of the Property that is improved hereunder to be a walkway or exhibition by a name yet to be determined. 2. Improvements by Company. Within the timeframe set forth in this Agreement, Company shall prepare and submit to City for approval a set of Project plans and specifications (the "Plans") detailing the improvements to be constructed (the "Improvements"). The Plans will be developed in cooperation with City staff (including but not limited to staff from the planning, engineering, building and leisure services departments) to address elements of general design, location of improvements, impacts on and coordination with existing structures, trees and park features, landscaping, and parking. Project layout shall be designed so as to minimize the removal of trees, unless otherwise agreed by City. The Project shall be constructed in accordance with all applicable City, state, and federal building codes, and demolition, debris disposal, and the Improvements shall comply with all applicable City ordinances and other applicable law. It is contemplated that the Improvements will have a total cost of approximately $2,812,400.00 (the "Estimated Cost"). Prior to commencement of construction, City may request reasonable and satisfactory proof of financial ability to undertake and carry 1 on the Project, which may take the form of a lending commitment letter. The Property, the Improvements, and all site preparation and development -related work to adapt the Property for the purposes contemplated by this Agreement are collectively referred to as the "Project". Upon completion of construction, title to the Improvements shall be vested in City. 3. Timeliness of Construction; Possibility of Termination. The parties agree that Company's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to allow for use of the Property to Company, and that without said commitment City would not do so. Measured from the date the City Council approves this Agreement, Company must obtain approval of the Plans by the City Council and obtain any necessary building permits. Construction must begin no later than April 1, 2019 and the Improvements must be substantially completed by December 31, 2020. If Company has not, in good faith, begun the construction of the Improvements on the schedule stated above, then the License shall be revoked; provided, however, that if construction has not begun within the stated period but the development of the Project is still imminent, the City Council may, but shall not be required to, consent to an extension of time for the construction of the Improvements, and if an extension is granted but construction of the Improvements has not begun within such extended period, then the License shall be revoked after the end of said extended period. If construction has begun within the required period or any extended period and is stopped and/or delayed as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond the reasonable control of Company, the deadline for completion of Project construction shall be tolled for a period of time equal to the period of such stoppage or delay, and thereafter if construction is not completed within the allowed period of extension then the License will be revoked. In any instance where the License is deemed to be revoked under the terms of this section, revocation shall occur automatically in the absence of action by the City Council to extend the time for Company's performance under this Agreement. If Company determines at any time before commencement of construction that the Project is not economically feasible, then after giving thirty (30) days' advance written notice of termination to City, this Agreement shall terminate and the License granted hereunder shall be revoked. 4. Termination Actions; Indemnity. In the event the License is revoked, Company agrees that it shall, at its own expense, promptly restore the condition of the Property, as directed by City staff, back to the original state of the Property before the commencement of construction. Company shall also take such other actions as the City may reasonably request to restore to City title to the Property that is free and clear of any lien, claim, or encumbrance arising by or through Company. Company shall pay in full, so as to discharge or satisfy, all liens, claims, charges, and encumbrances on or against the Property. 2 Company further agrees that it shall indemnify City and hold it harmless with respect to any demand, claim, cause of action, damage, or injury made, suffered, or incurred as a result of or in connection with the Project, Company's failure to carry on or complete same, or any lien, claim, charge, or encumbrance on or against the Property of any type or nature whatsoever that attaches to the Property by virtue of Company's activities. If City files suit to enforce the terms of this Agreement and prevails in such suit, then Company shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees. Company's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason. 5. No Encumbrances. Company agrees that it shall not create, incur, or suffer to exist any lien, encumbrance, mortgage, security interest, or charge on the Property. 6. Maintenance; Endowment Fund. Upon completion, Company shall be responsible for general maintenance of the Improvements, including but not limited to snow removal, care of landscaping, and cleaning of elements of the Improvements that may be soiled or defaced by acts of vandalism or other cause. With respect to all elements of Washington Park other than the Improvements, City shall continue to be responsible to mow grass, care for landscaping, remove snow, and undertake other maintenance tasks. Company shall maintain the Improvements to a high standard of care in order to maintain their attractiveness and access to the general public. If any part of the Improvements deteriorates or is damaged to a degree that makes replacement of such part necessary or advisable, then City may replace such part with a suitable substitute or a substantial equivalent, to be determined by City in the reasonable exercise of its judgment. To defray the costs of maintenance and replacement, Company shall establish an endowment fund (the "Endowment") in an amount at least equal to ten percent (10%) of the Estimated Cost. The Endowment shall be segregated from all other funds of Company and City. The Endowment may be used only for the maintenance and replacement purposes described in this section, unless the parties otherwise agree in writing. 7. Water and Sewer. Company will be responsible for extending water and sewer service to any location on the Property and for payment of any associated connection fees, as needed for the Project. 8. Insurance by Company Contractors. Before beginning the construction of Improvements, Company shall require each of its contractors to procure and thereafter keep in force during the period of construction of the Improvements one or more policies of comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) with limits against bodily injury and property damage of at least $2,000,000. After completion of the Improvements, Company shall require each of its 3 maintenance contractors to procure and keep in force one or more policies of comprehensive general liability insurance, as set forth above, in the amount of at least $1,000,000. City shall be named as an additional insured on all such policies, and such policies shall provide primary insurance over any other insurance maintained by City. All insurance required by this section shall be taken out and maintained in responsible insurance companies which are authorized under the laws of the State of Iowa to assume the risks covered thereby. Company or its contractor shall deposit annually with City copies of policies evidencing all such insurance, or certificates or binders stating that such insurance is in force and effect. Unless otherwise provided in this section, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to City at least thirty (30) days before the cancellation or modification becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, Company or its contractor shall furnish to City evidence satisfactory to City that the policy has been renewed or replaced by another policy conforming to the provisions of this section. Company shall be responsible for the compliance of its contractors with this section. 9. 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. 10. 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 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. 11. Materiality of Company's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of Company to be performed is a material term of 4 this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for City to enter this Agreement. Company acknowledges that without such promises, covenants, representations, and warranties, City would not have entered this Agreement. Upon breach of any promise or covenant, or in the event of the incorrectness or falsity of any representation or warranty, City may, at its sole option and in addition to any other right or remedy available to it, terminate this Agreement and declare it null and void. 13. 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 Cedar Valley Civil Rights Peace Walk Committee, , Iowa Attention: 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. 13. 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. 14. 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. 15. 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 5 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. 16. 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. 17. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 18. 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. 19. Entire Agreement. This Agreement, together with the exhibits attached 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. 20. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Project Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA rnest G. Clark, Mayor Attest- _ i 20 V,0.7 Suzy Schlres,`City Clerk 6 CEDAR VALLEY CIVIL RIGHTS PEACE WALK COMMITTEE, INC.