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HomeMy WebLinkAboutWaterloo Development Corp.-12/19/2011DEVELOPMENT AND PROPERTY TRANSFER AGREEMENT This Developme I t and Property Transfer Agreement (the "Agreement") is entered into as of �,t �¢r0c,�" 10(, `° y and between the City of Waterloo, Iowa, an Iowa municipality ("City"), and Waterloo Development Corporation, an Iowa nonprofit corporation ("Developer"). RECITALS A. Developer has proposed the private financing and construction of a public sportsplex facility on certain City -owned property more specifically described on Exhibit "A" attached hereto (the "Property"), which Developer will then lease to City, with a right on the part of the City to purchase the same at the end of the lease term, in accordance with this Agreement. B. City believes that the redevelopment of the Property pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the best interest of City and in accord with the public purposes and provisions of applicable federal, State, and local laws and the requirements under which the foregoing project has been undertaken and is being assisted. AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: ARTICLE I. DEFINITIONS 1.1. Definitions. In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Agreement means this Agreement and all appendices or Exhibits hereto, as the same may be from time to time modified, amended or supplemented. City means the City of Waterloo, Iowa, or any successor to its functions. Closing Date means the date described in Section 4.1 hereof. Code means the Code of Iowa, 2011, as amended. Construction Plans means the plans, specifications, drawings and related documents reflecting the construction work to be performed by or on behalf of Developer on the Property. References to Construction Plans shall mean the Construction Plans that are separately applicable to a given phase of the Improvements. 1 Deed means a special warranty deed, containing such covenants and restrictions as are provided for in this Agreement, that conveys fee title to the Property to Developer. Developer means Waterloo Development Corporation, an Iowa non-profit corporation, or a wholly owned subsidiary thereof. Event of Default means any of the events described in Section 13.1 of this Agreement. Improvements shall mean the construction upon the Property of a multi -use recreational and athletic facility complex, to be known as the Cedar Valley Sportsplex, in accordance with the preliminary site plan of the development and Schematic Design Description dated April 18, 2011 attached hereto as Exhibit "B", together with related parking, landscaping and signage and all related site improvements described in the Construction Plans as approved by City officials as set forth in this Agreement. Improvements may be constructed in phases as follows: • Phase I shall consist of a multi -use recreation and wellness facility consisting of approximately 117,100 square feet and having an expected cost to construct of approximately $20,562,000. • Phase II shall consist of a leisure pool facility project of approximately 10,200 square feet, to be adjacent to the Phase I building and having an expected cost to construct of approximately $2,500,000. Lease Purchase Agreement means that certain lease purchase agreement to be negotiated and entered into between the parties, no later than the Closing Date, described in Section 7.3. Mortgage means any mortgage, deed of trust or security agreement in which Developer has granted a mortgage or other security interest, or otherwise created an encumbrance or lien, in or upon the Property, or any portion or parcel thereof, or any improvements constructed thereon, as security for indebtedness. The term "holder" in reference to a mortgage shall include a deed of trust. Net Proceeds means any proceeds paid by an insurer to Developer under a policy or policies of insurance required to be provided and maintained by Developer, as the case may be, pursuant to Article XI of this Agreement and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the collection of such proceeds. Project shall mean the construction and operation of the Improvements on the Property, as described in this Agreement. Property means that portion of the City described in Exhibit "A" hereto. State means the State of Iowa. 2 Termination Date means June 30, 2023, or such other date as is set forth in the Lease Purchase Agreement for City to purchase the Property or to return possession and control thereof to Developer. Unavoidable Delays means (a) delays resulting from acts or occurrences outside the reasonable control of the party claiming the delay including but not limited to storms, floods, fires, explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other labor disputes, delays in transportation or delivery of material or equipment, litigation commenced by third parties, or the acts of any federal, State or local governmental unit (other than the City), or (b) delays in any performance required of Developer under this Agreement when the delay results from the City Council's exercise or failure to exercise any discretionary power granted to City by this Agreement or applicable law. ARTICLE II. REPRESENTATIONS AND WARRANTIES 2.1. Representations of City. City hereby represents and warrants as follows: (a) City is the owner of the Property. (b) City has duly obtained all necessary authorizations, approvals, and consents for its execution, delivery, and performance of this Agreement, and that it has full power and authority to execute and deliver this Agreement and to perform its obligations thereunder. (c) This Agreement is a valid and legally binding instrument of City, enforceable in accordance with its material terms, except as the same may be limited by bankruptcy, insolvency, reorganization, or other laws relating to or affecting creditors' rights generally. (d) The execution and delivery of this Agreement, the consummation of the transactions contemplated herein, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented or limited by or in conflict with, and will not result in a breach of, any contractual restriction, evidence of indebtedness, agreement, or instrument of whatever nature to which City is now a party or by which it may be bound, and will not constitute a default under any of the foregoing. (e) To the best of City's knowledge, there are no actions, suits, or proceedings pending or threatened against or affecting City in any court or before any arbitrator or before any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the validity of this Agreement or City's ability to perform its obligations under this Agreement. (f) To the best of City's knowledge formed without specific investigation or inquiry, there are no claims, disputes, actions or proceedings pending or threatened against or affecting the Property that relate to environmental laws or permits, and the City has provided to Developer all reports and documents in City's possession that relate to 3 environmental conditions with respect to the Property or to the assessment or characterization of such conditions, as identified in Section 3.4. 2.2. Representations of Developer. Developer represents and warrants as follows: (a) Developer is a nonprofit corporation duly organized under the laws of the State of Iowa and is not in violation of any provisions of its articles of incorporation, bylaws, or any law of the State of Iowa affecting Developer's ability to perform under this Agreement. (b) This Agreement has been duly and validly authorized, executed and delivered by the Developer and is a valid and legally binding instrument of Developer, enforceable in accordance with its material terms, except as the same may be limited by bankruptcy, insolvency, reorganization, or other laws relating to or affecting creditors' rights generally. The consent of no other party is required for the execution and delivery of this Agreement by Developer or the consummation of the transactions contemplated hereby. (c) The execution and delivery of this Agreement, the consummation of the transactions contemplated herein, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented or limited by or in conflict with, and will not result in a breach of, other provisions of the articles of incorporation or bylaws of Developer or with any evidence of indebtedness, agreements, or instruments of whatever nature to which Developer is now a party or by which it may be bound, and will not constitute a default under any of the foregoing. (d) There are no actions, suits, or proceedings pending or threatened against or affecting Developer in any court or before any arbitrator or before any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the validity of this Agreement or Developer's ability to perform its obligations under this Agreement. (e) Developer would not undertake its obligations under this Agreement without the City's participation and agreement to lease the Improvements pursuant to this Agreement. ARTICLE III. CONDITION, PREPARATION AND CONVEYANCE OF PROPERTY 3.1 Assembly. City shall use its best efforts to acquire any portions of the Property and associated real estate that are necessary for the Project and which are not currently owned by City, including but not limited to Project parking, as identified on Exhibit "A-1" attached hereto. City shall bear all legal and other costs associated with acquisition. 3.2. Demolition. City shall demolish and remove all existing buildings, foundations or subsurface structures, and overlayments of concrete, asphalt or other materials on the Property, 4 including the curb and surface of 2nd Street from Jefferson Street to Bluff Street, and Bluff Street from 2nd to 3rd Streets and the adjacent sidewalks, but not including any public infrastructure lying beneath the bed of said streets. 3.3 Filling and Grading. Following the Closing Date, Developer shall perform such filling, grading, and leveling of the land as Developer determines to be necessary or appropriate so as to permit proper drainage and place the Property in a safe, clean, sanitary, and nonhazardous condition that is ready for commencement of construction of the Improvements. 3.4. Condition of Property. The Developer acknowledges that the City acquired the Property in substantially its present condition primarily for purposes of redevelopment. The City has no special knowledge of the condition of the Property other than that disclosed in the reports and documents provided to the Developer separately. By closing on the lease of the Property in accordance with this Agreement, the Developer accepts the Property "AS IS" and in its present condition and, for itself and its successors and assigns, does hereby waive and relinquish any claim it might otherwise have against the City by reason of the condition of the Property, its suitability for the Developer's intended purposes and any defect or hazardous substance or environmental contamination located in or on the Property. 3.5. Inspection by Developer Prior to Closing. The Developer, at its sole expense, shall have the right to conduct such studies, investigations, inspections or tests of the Property, including subsurface test, test borings and soil analysis as it deems reasonable or necessary, prior to the Closing Date. The City hereby grants Developer, its officers, agents, employees and independent contractors, the right to enter upon the Property at reasonable times upon reasonable notice, oral or written, from time to time after the date of this Agreement and prior to the Closing Date for the purpose of investigating, inspecting and testing the Property and for other purposes consistent with the Developer's interest under this Agreement. The Developer agrees to defend, indemnify and hold harmless the City, its officers, agents and employees, from any liability and expenses, including reasonable attorney's fees, that result solely from the exercise by Developer of its right of entry onto the Property prior to Closing. If, as a result of such studies, investigations, inspections or tests, the Developer discovers that there is a substantial likelihood that a hazardous substance is present materially beyond that disclosed in the reports identified above, or that a material structural defect exists on any portion of the Property, the Developer shall have the absolute right to terminate this Agreement effective immediately by delivering written notice of such election and a copy of the environmental or structural report which identifies the basis for such termination. Upon delivery of such notice, this Agreement shall be null and void and all further obligations, duties, claims, rights and liabilities of the parties shall be extinguished, provided that the Developer's obligations in this paragraph to defend, indemnify and hold harmless the City from any liability and expenses resulting solely from Developer's exercise of its right of entry shall survive such termination. 3.6. Form of Conveyance. On the Closing Date, City shall transfer title and possession of the Property to Developer by Deed, subject to all conditions, covenants, and restrictions contained in this Agreement. 5 ARTICLE IV. CLOSING 4.1. Closing. The closing shall take place on or before June 1, 2012 (the "Closing Date"), or such other date to which the parties may agree upon in writing. Developer agrees to make reasonable extensions to the Closing Date as may be necessary from time to time, upon request by City, to reflect reasonable delays resulting from diligent, good -faith negotiations, eminent domain action, or legal proceedings in connection with City's acquisition of parcels to assemble the Property or resulting from relocation of existing persons or businesses. Exclusive possession of the Property, subject to the terms of this Agreement, shall be delivered on the Closing Date. Consummation of the closing shall be deemed an agreement of the parties that the conditions of closing shall have been satisfied or waived. If the conditions set forth in Section 4.2 are not satisfied at the Closing Date, this Agreement shall terminate unless a new Closing Date is established by amendment to this Agreement. The termination of this Agreement shall be the sole remedy available to either City or Developer if, for whatever reason, a condition set forth in Section 4.2 is not satisfied at the Closing Date, it being understood that each party shall nonetheless incur costs and liabilities prior to the Closing Date for which they alone are responsible. The City and Developer each expressly assume all responsibility for the costs and liabilities they may each so incur prior to the Closing Date, and agree to indemnify and hold each other harmless therefrom. 4.2. Conditions to Closing. It is recognized and agreed that the ability of the City to perform the obligations described in this Agreement is subject to completion and satisfaction of certain separate City Council actions and required legal proceedings relating to the issuance of the Deed and approval of the Lease Purchase Agreement, including the holding of public hearings on the same. Specifically, the closing of the transaction contemplated by this Agreement and all the obligations of City and Developer under this Agreement are subject to fulfillment, on or before the Closing Date, of each of the following conditions, provided, however, that the parties may consent in writing to waive any condition precedent: (a) The representations and warranties made by City in Section 2.1 and by Developer in Section 2.2 shall be true and correct as of the Closing Date with the same force and effect as if made at such time. (b) City shall have acquired lawful ownership and possession of all of the Property or, with respect to any parcel thereof in which the City does not have sole occupancy and use, City shall have acquired the enforceable right to acquire ownership and possession subject to relocation of any occupant thereof. (c) City shall have approved all appropriate zoning, subdivision, or platting of the Property necessary for immediate development and construction of the Improvements. (d) Developer shall be in material compliance with all terms and provisions of this Agreement. 6 (e) The City Council shall have approved the Construction Plans and, following the public hearing thereon, the plans, specifications, form of contract and estimate of cost for Phase I of the Improvements. (f) The City Council shall have approved the operating budget for the first year of operation of the completed Phase I Improvements. (g) Developer shall have furnished City with evidence, in a form satisfactory to City, that Developer has firm contractual commitments for construction of Phase I of the Improvements, including guaranteed maximum prices for all components thereof and the performance and maintenance bonds required under Section 6.5 hereof. (h) Developer shall have furnished City with evidence, in a form satisfactory to City, in its sole discretion, that Developer has committed bank financing or other funding and other firm financial commitments sufficient in amount to complete construction of Phase I of the Improvements in conformance with the approved Construction Plans. (i) City shall have reviewed charitable pledges obtained by Developer, and other evidence of financial commitments, and shall not have delivered to Developer, prior to the Closing Date, a written notice of termination of this Agreement. (j) Receipt by the City of a legal opinion rendered on behalf of the Developer, in the form reasonably requested by City. (k) The City Council shall have approved, following the public hearing thereon, the issuance of the Deed to the Developer and the execution and delivery of the Lease Purchase Agreement, and City and Developer shall have entered into the Lease Purchase Agreement. (1) City shall have delivered the Deed to Developer. (m) There has not been a substantial change for the worse in the financial resources and ability of the Developer to construct the Improvements as contemplated in this Agreement, which change(s) makes it likely, in the reasonable judgment of the City, that the Developer will be unable to perform its covenants and obligations under this Agreement. ARTICLE V. RIGHTS OF ACCESS TO PROPERTY 5.1. Right of Entry for Utility Service. City reserves for itself, and any public utility company, as may be appropriate, the unqualified right to enter upon the Property at all reasonable times for the purpose of reconstructing, maintaining, repairing, or servicing the public utilities located within the Property boundary lines. Before entering the Property for any such purpose, reasonable notification of the party's intent to enter the Property shall first be provided to Developer. 7 5.2. Developer Not to Construct Over Utility Easements. Developer shall not construct any building or other structure or improvements on, over, or within the boundary lines of any easement for public utilities unless such construction is provided for in such easement or has been approved by City in writing. If approval for such construction is requested by Developer, City shall use its best efforts to assure that such approval shall not be withheld unreasonably. 5.3. Access to Property. Prior to the transfer of title to the Property to Developer, City shall permit representatives of Developer to have access at all reasonable times to any part of the Property then owned by City for the purpose of obtaining data and making various tests covering the Property necessary to carry out this Agreement, as described in Section 3.5 hereof. After the transfer of title to the Property to Developer, Developer shall permit the representatives of City access to the Property at all reasonable times which it deems necessary for the purposes of this Agreement including, but not limited to, inspection of all work being performed in connection with the construction of the Improvements. No compensation shall be payable nor shall any charge be made in any form by any party for the access provided for in this Section. ARTICLE VI. CONSTRUCTION PLANS; CONSTRUCTION OF IMPROVEMENTS 6.1. Plans for Construction of Improvements. Construction Plans and specifications with respect to the redevelopment of the Property and the construction of the Improvements thereon shall be in conformity with the Urban Renewal Plan, this Agreement, and all applicable state and local laws, regulations, and ordinances. As promptly as possible after the date of this Agreement, and in any event no later than February 1, 2012, Developer shall submit Construction Plans for Phase I of the Improvements to City for approval by the City Council, in sufficient completeness and detail to show that such improvements and construction thereof will be in accordance with the provisions of this Agreement. If the Construction Plans originally submitted conform to the provisions of this Agreement, the City Council shall approve such Construction Plans by resolution, and no further filing by Developer or approval by City thereof shall be required except with respect to any material change in the approved Construction Plans; provided, however, that any such approval of the Construction Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Construction Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. Such Construction Plans shall, in any event, be deemed approved unless, within thirty (30) days after the date of their receipt by City, City makes written rejection thereto, in whole or in part, setting forth in detail the reasons therefor. City shall issue the appropriate building permits after approval of the Construction Plans or, if applicable, following said 30 -day period. If City so rejects the Construction Plans in whole or in part, Developer shall submit new or corrected Construction Plans which are in conformity with this Agreement no later than thirty (30) days after the date Developer receives written notice of rejection. The provisions of this Section relating to approval, rejection, and resubmission of corrected 8 Construction Plans shall continue to apply until the Construction Plans have been approved by City Council. All work with respect to the Improvements to be constructed or provided by Developer on the Property shall be in conformity with the Construction Plans as approved by City Council. Approval of the Construction Plans by the City shall not relieve the Developer of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Construction Plans by the City be deemed to constitute a waiver of any Event of Default. Approval of the Construction Plans hereunder is solely for purposes of this Agreement, and shall not constitute approval for any other City purpose nor subject the City to any liability for the Improvements as constructed. 6.2. Commencement and Completion of Construction. Subject to Unavoidable Delays, Developer (a) shall cause construction of Phase I of the Improvements to be undertaken and completed (i) by no later than October 31, 2013, or (ii) by such other date as the parties shall mutually agree upon in writing, and (b) shall use its best efforts to cause construction of Phase II of the Improvements to be undertaken and completed (i) no later than October 31, 2016, or (ii) by such other date as the parties shall mutually agree upon in writing. Time lost as a result of Unavoidable Delays shall be added to extend these dates by a number of days equal to the number of days lost as a result of Unavoidable Delays. All work with respect to the Improvements shall be in conformity with the Construction Plans approved by the City Council or any amendments thereto as may be approved by the City Council. Until construction of the Improvements has been completed, the Developer shall make such reports to the City, in such detail and at such times as may be reasonably requested by the City, as to the actual progress of the Developer with respect to the construction of the Improvements. The parties recognize and agree that the Improvements are being constructed with private funds raised by Developer. Developer represents that such funds are conditioned upon private construction of the Improvements. Except as provided in this Agreement, City shall not be required to contribute any funds to such construction. 6.3. Changes in Construction Plans. If Developer desires to make any material change in the Construction Plans after their approval by City Council, Developer shall submit the proposed change to City for its approval. If the Construction Plans, as modified by the proposed change, conform to the requirements of Section 6.1 hereof with respect to such previously approved Construction Plans, City Council shall approve the proposed change by resolution and notify Developer in writing of its approval. Such change in the Construction Plans shall in any event be deemed approved unless, within thirty (30) days after the date of City's receipt of notice of change in the Construction Plans, City makes written rejection thereof, in whole or in part, setting forth in detail the reasons therefor. 9 6.4. Conditions Precedent to Title Transfer. As set forth in Section 4.2 hereof, the submission of Construction Plans for Phase I and their approval by City as provided in Section 6.1 hereof and the submission of evidence of financial ability and commitments for construction and mortgage financing as provided in Section 4.2 hereof, among others, are conditions precedent to the obligations of City to transfer title to the Property to Developer by Deed. 6.5. Bonding Requirements. Developer shall obtain, or require each of its general contractors to obtain, one or more bonds that guarantee the faithful performance of this Agreement for, in the aggregate, the anticipated full value of the completed Improvements, on a phase -by -phase basis, and that further guarantee the prompt payment of all materials and labor. The performance bond(s) for a given phase of the Improvements shall remain in effect until construction of such phase of Improvements is completed, at which time a two-year maintenance bond shall be substituted for each performance bond. The bonds shall clearly specify the Developer and City as joint obligees. 6.6. Notice of Delays. Subsequent to transfer of title to the Property or any part thereof to Developer, and until construction of the Improvements has been completed, Developer shall give prompt notice in writing to City of any adverse developments which would materially affect or delay the completion of the such construction. 6.7 Phase II Improvements. Notwithstanding any provision of this Agreement to the contrary, nothing herein shall obligate Developer to undertake Phase II of the Improvements. Subject to Developer's duty to use its best efforts to do so, the decision to undertake Phase II shall rest in the sole discretion of the Developer, based on adequacy of funding or funding commitments and the availability of other commitments or arrangements that Developer deems reasonably necessary for successful completion of such additional phase or phases. In addition, Phase II of the Improvements shall be undertaken only with the prior written consent of the City, in its sole discretion, and upon such terms and with such amendments to the Lease Purchase Agreement as the parties determine to be appropriate. ARTICLE VII. CITY ACTIONS 7.1. City Improvements and Actions by City. In addition to the activities outlined in Article III above, City further agrees to the following in connection with the Project: (a) City shall make good faith efforts to acquire the Project -related property described on Exhibit A-1 and construct, by no later than the date of substantial completion of Phase I of the Improvements, a new asphalt -surfaced public parking lot in and upon Block 4, directly northeasterly across Jefferson Street from the Property, as depicted on the site plan; provided, however, that the City shall not be required to acquire the Mid-America Dental Building by any particular date. The parking lot shall be open to the general public, including users of the completed Improvements, on a first-come, first- served basis, under the terms of the City parking ordinances. The parking improvements shall consist of no less than 100 standard parking spaces, 4 handicap parking spaces clearly marked as such by signage and surface paint, proper striping for all spaces, sidewalks, and landscaping that includes shrub or tree plantings, as the City determines to 10 be necessary or appropriate. City shall consult with Developer on the design of the parking related improvements. City shall make good faith efforts, subject to funding constraints and City Council approval of capital improvement program expenditures and City budgets including the same, and consistent with its obligations under Chapter 26 of the Code of Iowa, within thirty-six (36) months of the date of substantial completion of Phase I of the Improvements, to construct sidewalks and crosswalks of brick, masonry and decorative concrete, and to construct or erect streetscape features, to substantially match existing elements in the public market and expo area easterly of the Project site on Jefferson Street. All such public improvements shall be designed, engineered and constructed by the City in accordance with current City standards and specifications. (b) City shall bear the reasonable cost of bringing to the Property line access to water lines, sanitary sewers, natural gas lines, electric power lines, telephone lines, and fiber optic lines needed to complete the Project, and Developer shall bear the cost of extending service lines from the Property line to infrastructure points on the Property that are necessary to complete the Project. City shall bear all costs associated with construction or improvement of any streets and sidewalks as indicated on the site plan attached hereto as Exhibit "B", which shall be undertaken at such times as City determines, in its sole discretion, subject to the terms of this Agreement. (c) Developer recognizes and agrees that all of the parking, street, crosswalk, intersection and sidewalk improvements to be undertaken by the City under this Section shall be owned and maintained by the City for the benefit of the general public; that all use thereof by Developer and its employees shall be on the same basis as the general public; and that Developer shall have no special legal entitlements or other rights not held by members of the general public with respect to ownership, maintenance or use of the foregoing public improvements. (d) City shall assist and cooperate in the application for, and approval of, any grants or loans as requested by Developer. City shall not, except at its sole and unfettered discretion, provide any loan guaranties or make any loans to Developer. (e) The parties acknowledge that, pursuant to Resolution No. 2011-3, adopted on January 3, 2011, City has committed funds received as a bequest from the Thelma Winter Estate in the amount of $1,984,192.61 in support of the Project. (f) City shall cooperate with Developer to resolve any traffic, parking, trash removal, or public safety issues which may arise in connection with the construction and operation of the Improvements. (g) City agrees to waive all fees otherwise chargeable in respect of any and all building permits necessary in connection with the Project. 7.2. Management of Project Funds and Accounting. (a) The parties contemplate that Developer will hold, control, manage and disburse all funding for construction of Improvements. 11 (b) Any funds remaining after completion of the Improvements and payment of all expense relating to construction of same shall be delivered to City and used to defray the ordinary and necessary expenses of operating the Improvements. (c) Because the Project is being undertaken for public benefit, and because City will control the Property and have the right to take ownership of same under the terms of the Lease Purchase Agreement, the parties acknowledge and agree that the Property and Improvements will constitute public property at completion of the Improvements, and accordingly Developer and City shall cooperate with each other in applying for a refund of Iowa sales taxes paid in connection with the Project. The parties acknowledge that a refund of sales taxes requires the approval of the Iowa Department of Revenue, and that gaining such approval is dependent on the Department's interpretation of applicable law and therefore cannot be assured. 7.3. Lease of Facility and Operational Management; Right to Purchase. On the Closing Date, the Developer shall enter into a Lease Purchase Agreement with the City, under which the City, after completion of the Improvements and issuance of a certificate of occupancy, will lease the Property and assume operational management of the facility and all programs and services provided in connection with the facility. Among other terms, the Lease Purchase Agreement will establish or require the establishment of minimum standards of facility maintenance that are calculated to preserve the Improvements as an attractive and high-quality community recreational and wellness facility. At its own expense, City will be responsible to provide all personnel necessary for daily operation of the facility and to maintain, preserve and keep the Improvements in good repair and working order, ordinary wear and tear excepted, and from time to time will make all necessary repairs, replacements, renewals and additions. The parties contemplate that Developer will have no ongoing responsibilities or liabilities with respect to the Property or Improvements after the City takes possession of the Improvements under the Lease Purchase Agreement. At the Termination Date, City shall purchase the Property from Developer (the "Purchase Right") on the terms set forth in said Lease Purchase Agreement, or in the alternative City may, in the circumstances provided in this Agreement and in the Lease Purchase Agreement, exercise an option (the "Put Option") to waive and cancel the Purchase Right, terminate the Lease Purchase Agreement, and compel Developer to assume operation and management of the Property and Improvements. 7.4 Handling of Operating Funds; Additional Uses of Funds. During the term of the Lease Purchase Agreement, City shall annually account to the Developer for all income received and expenditures made in respect of operation of the Improvements or Property, which may nonetheless be deposited to or withdrawn from the City's general fund, as the City shall determine. The parties intend that all operating income shall be used to defray current operating expenses of the completed Improvements, to maintain equipment replacement and other operating reserves at the levels established in the annual budget for the Improvements approved by the City Council, and otherwise shall be retained for other budgeted Project purposes, including but not limited to the cost of any future phase of the Improvements, and the funding, to the maximum extent possible consistent with the expense payments and funding allocations described above, of a debt service reserve for the payment at the Termination Date of any outstanding Project -related indebtedness of the Developer (regardless of whether City exercises 12 its Purchase Right). Following the Termination Date and exercise by the City of the Purchase Right, City shall retain any such net income that is not necessary to satisfy Developer's Proj ect- related indebtedness. 7.5 Performance by City. Developer acknowledges and agrees that all of the obligations of the City under this Agreement shall be subject to, and performed by the City in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with the City's lawful authority. ARTICLE VIII. OTHER COVENANTS OF DEVELOPER 8.1. Covenants Regarding Construction. (a) Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, State, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully constructed. (b) Developer will cause the Improvements to be constructed substantially in accordance with the material terms of this Agreement, and in accordance and all applicable local, state, and federal laws and regulations, except for variances necessary to construct the Improvements contemplated in the Construction Plans. (c) Developer will cooperate with City to resolve any traffic, parking, trash removal, or public safety issues which may arise in connection with the construction and operation of the Improvements. (d) Following transfer of title to the improved Property as set forth in Section 8.3, Developer will have no further duties of construction. 8.2. Collection of Pledges; Annual Accounting. (a) Developer shall at all times act with diligence to collect any amount promised or pledged in writing at any time to Developer in support of the Project by any person, partnership, corporation, or other entity. Developer shall use reasonable efforts to enforce such written promises and pledges, including but not limited to suit, arbitration, or other legally available means. Developer shall be entitled to deduct from the proceeds of such collection actions all reasonable attorney fees and other costs and expenses incurred therein. (b) Developer shall annually provide the City, by February 15 of each year until the Termination Date, with an accounting and reconciliation prepared by a bank trust department or certified public accountant of (i) all pledges or other funds received by Developer during the prior calendar year from any source for purposes of constructing any of the Improvements, (ii) all 13 expenditures incurred or payments made by the Developer with the funds described in clause (i) hereof during the preceding calendar year, and (iii) the current status of all outstanding pledges and pledge payments received by the Developer in respect of the Improvements during the preceding calendar year, provided that Developer shall not be required to identify any person or entity that has made a pledge or pledge payment. 8.3. Transfer of Title. Upon the Termination Date, City shall accept fee title to the Property under the Purchase Right, provided that Developer's mortgage financing with respect to the Project is paid in full no later than the date of transfer, unless such condition is waived by City in writing. In lieu of exercising the Purchase Right, City may exercise the Put Option under the terms and conditions set forth in the Lease purchase Agreement; provided, however, City shall be deemed to exercise the Purchase Right unless it affirmatively exercises the Put Option in the manner set forth in the Lease Purchase Agreement. Each party shall execute such deeds, bills of sale, or other documents of transfer or conveyance as the other party may reasonably request to effectuate the transfer of title or waiver of the Purchase Right. 8.4. Maintenance of Records. Developer will keep at all times proper books of record and account in which full, true and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of Developer in connection with this Agreement. 8.5. Compliance with Laws. Developer will comply with all laws, rules and regulations relating to the Improvements, other than laws, rules and regulations the failure to comply with which or the sanctions and penalties resulting therefrom, would not have a material adverse affect on their business, property, operations, or condition, financial or otherwise. 8.6. Non -Discrimination. In carrying out the Project, Developer shall not discriminate against any employee or applicant for employment because of race, color, religion, creed, gender, national origin, age, disability, familial status, sexual orientation, or gender identity. Developer shall insure that applicants for employment are employed, and the employees are treated during employment, without regard to their race, color, religion, creed, gender, national origin, age, disability, familial status, sexual orientation, or gender identity. ARTICLE IX. RESTRICTIONS UPON USE OF PROPERTY 9.1. Restrictions on Use. Developer agrees, and the Deed shall contain covenants on the part of Developer, that Developer shall: (a) devote the Property to, and only to and in accordance with the site plan attached hereto as Exhibit "B"; and (b) not discriminate upon the basis of race, color, religion, creed, gender, national origin, age, disability, familial status, sexual orientation, or gender identity in the lease, rental, use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof. 14 9.2. Covenants; Binding Upon Successors in Interest; Period of Duration. It is intended and agreed, and the Deed shall so expressly provide, that the agreements and covenants provided in Section 9.1 hereof shall be covenants running with the land and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Agreement, be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by, City, its successors and assigns, City and any successor in interest to the Property or any part thereof, against Developer, its successors and assigns and every successor in interest of Developer to the Property, or any part thereof or any interest therein, and any party in possession or occupancy of the Property or any part thereof. 9.3. City Rights to Enforce. In amplification, and not in restriction, of the provisions of the preceding Section, it is intended and agreed that City and its successors and assigns shall be deemed beneficiaries of the agreements and covenants provided in Section 9.1 hereof, both for and in their own right and also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or whose benefit such agreements and covenants have been provided. Such agreements and covenants shall run in favor of City, without regard to whether City has at any time been, remains, or is an owner of any land or interest therein to or in favor of which such agreements and covenants relate. City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all its rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiary of such agreement or covenant may be entitled. ARTICLE X. PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER 10.1. Representation as to Redevelopment. Developer represents and agrees that its acquisition of title to the Property, and its other undertakings pursuant to this Agreement, are and will be used solely for the purpose of redevelopment of the Property. Developer further recognizes: (a) the importance of the redevelopment of the Property to the general welfare of the community; and (b) the substantial financing and other public aids that have been made available by law and by City for the purpose of making such redevelopment possible. 10.2. Prohibition Against Transfer of Property and Assignment of Agreement. For the reasons set forth in Section 10.1, Developer represents and agrees that: (a) Except only by way of security for, and only for (i) the purpose of obtaining financing necessary to enable Developer to perform its obligations with respect to making the Improvements under this Agreement, and (ii) any other purpose authorized by this Agreement, Developer (except as so authorized) has not made or created, and that it will not make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any mode or form 15 of or with respect to this Agreement or the Property, or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of City. (b) City shall be entitled to require, except as otherwise provided in this Agreement, as conditions to any such approval that: (1) Any proposed transferee shall have the qualifications and financial responsibility, as determined by City, necessary and adequate to fulfill the obligations undertaken in this Agreement by Developer (or, in the event the transfer is of or relates to part of the Property, such obligations to the extent that they relate to such part). (2) Any proposed transferee, by instrument in writing satisfactory to City and in form recordable among the land records, shall, for itself and its successors and assigns, and expressly for the benefit of City, have expressly assumed all the obligations of Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which Developer is subject (or, in the event the transfer is of or relates to part of the Property, such obligations, conditions, and restrictions to the extent that they relate to such part); provided, that the fact that any transferee of, or any other successor in interest whatsoever to, the Property, or any part thereof, shall, whatever the reason, not have assumed such obligations or so agreed, shall not (unless and only to the extent otherwise specifically provided in this Agreement or agreed to in writing by City) relieve or except such transferee or successor of or from such obligations, conditions, or restrictions, or deprive or limit City of or with respect to any rights or remedies or controls with respect to the Property or the construction of the Improvements; it being the intent of this, together with other provisions of this Agreement, that (to the fullest extent permitted by law and equity and excepting only in the manner and to the extent specifically provided otherwise in this Agreement) no transfer of or change with respect to ownership in the Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit City of or with respect to any rights or remedies or controls provided in or resulting from this Agreement with respect to the Property and the construction of the Improvements that City would have had, had there been no such transfer or change. (3) There shall be submitted to City for review all instruments and other legal documents involved in effecting transfer; and if approved by City, its approval shall be indicated to Developer in writing. Provided, that in the absence of specific written agreement by City to the contrary, any such transfer approved by City shall be deemed to relieve Developer from any of its other obligations under this Agreement. 16 ARTICLE XI. INSURANCE 11.1. Insurance Requirements. (a) Developer will provide and maintain or cause to be maintained at all times during the process of constructing the Improvements: (i) Builder's risk insurance, written on the "Builder's Risk -- Completed Value Basis", in an amount equal to one hundred percent (100%) of the insurable value of the Improvements at the date of completion, and with coverage available in nonreporting form on the "all risk" form of policy; (ii) 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 $5,000,000. The City shall be named as an additional insured for the City's liability or loss arising out of or in any way associated with the project and arising out of any act, error, or omission of Developer, Developer's directors, officers, shareholders, contractors and subcontractors or anyone else for whose acts the City may be held responsible (with coverage to the City at least as broad as that which is provided to Developer and not lessened or avoided by endorsement). The policy shall contain a "severability of interests" clause and provide primary insurance over any other insurance maintained by the City. (iii) Worker's compensation insurance, with statutory coverage. (b) Upon City's assumption of management responsibilities pursuant to Section 7.3 and continuing thereafter until the Termination Date, City shall maintain, or cause to be maintained, at its cost and expense, insurance or self-insurance against loss or damage to the Improvements, general liability and workers compensation claims, in accordance with the City's prevailing insurance practices and procedures for comparable City facilities and operations. The City shall provide Developer with a description of all such coverages and programs upon written request for the same. (c) All insurance required by this Article to be provided prior to the Termination Date shall be taken out and maintained in responsible insurance companies which are authorized under the laws of the State to assume the risks covered thereby. Each party required to carry insurance under this Section will deposit annually with the other party copies of policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to Developer and the 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, the insured party shall furnish to the other party evidence satisfactory to the other party that the policy has been renewed or replaced by another policy conforming to the provisions of this Article, or that there is no necessity therefor under the terms hereof. In lieu of separate policies, a party may maintain a single policy, or blanket or umbrella policies, or a combination 17 thereof, which provide the total coverage required herein, in which event the insured party shall deposit with the other party a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Improvements. (d) During the term of the Lease Purchase Agreement, City agrees to notify Developer immediately in the case of damage exceeding $25,000 in amount to, or destruction of, the Improvements or any portion thereof resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid directly to Developer, and Developer will forthwith repair, reconstruct and restore the Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Developer will apply the Net Proceeds of any insurance relating to such damage received by Developer to the payment or reimbursement of the costs thereof. (e) Developer shall complete the repair, reconstruction and restoration of the Improvements, but only to the extent of Net Proceeds of insurance received by Developer for such purposes. ARTICLE XII. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES 12.1. Limitation Upon Encumbrance of Property. Prior to the completion of the Improvements, as certified by City, Developer shall not engage in any financing or any other transaction creating any Mortgage or other encumbrance or lien on the Property, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Property without the prior written consent of City, not to be unreasonably withheld. The parties acknowledge that Developer shall seek to encumber the Property with a Mortgage only if reasonably necessary to secure adequate funding to undertake the Project, and in such circumstance the parties agree that, if the consent of City is not timely given, Developer may, in the exercise of its sole discretion, elect to abandon the Project, convey the Property back to City, and terminate this Agreement without further obligation. 12.2. Mortgagee's Option to Cure Defaults. Whenever City shall deliver any notice or demand to Developer with respect to any breach or default by Developer in its obligations or covenants under this Agreement, City shall at the same time forward a copy of such notice or demand to each holder of any Mortgage authorized by this Agreement at the last address of such holder shown in the records of City. After any breach or default, each such holder (insofar as the rights of City are concerned) shall have the option to cure or remedy such breach or default and to add the cost thereof to the Mortgage debt and the lien of its Mortgage; provided, that if the breach or default is with respect to construction of the Improvements, nothing contained in this Section or any other Section of this Agreement shall be deemed to permit or authorize such holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the Improvements (beyond the extent necessary to conserve or protect Improvements or construction already made) without first having expressly assumed the obligation to City, by written agreement satisfactory to City, to complete, in the manner provided in this Agreement, the Improvements on the Property or the part thereof to which the lien or title of such Mortgage holder relates. 18 12.3. City's Option to Pay Mortgage Debt or Reacquire Ownership. In any case, where, subsequent to default or breach by Developer (or successor in interest) under this Agreement, the holder of any Mortgage on the Property or part thereof: (a) has, but does not exercise, the option to construct or complete the Improvements relating to the Property or part thereof covered by its Mortgage or to which it has obtained the leasehold interest, and such failure continues for a period of sixty (60) days after the holder has been notified or informed of the default or breach; or (b) undertakes construction or completion of the Improvements but does not complete such construction within the period as agreed upon by City and such holder (which period shall in any event be at least as long as the period prescribed for such construction or completion in this Agreement), and such default shall not have been cured within sixty (60) days after written demand by City so to do, City shall (and every Mortgage instrument made prior to completion of the Improvements with respect to the Property or any part thereof by Developer or successor in interest shall so provide) have the option of paying to the holder the amount of the Mortgage debt and securing an assignment of the Mortgage and the debt secured thereby, or, in the event that ownership of the Property (or part thereof) has vested in such holder by way of foreclosure or action in lieu thereof, City shall be entitled, at its option, to receive fee title to the Property or part thereof (as the case may be) upon payment to such holder of an amount equal to the sum of : (i) the Mortgage debt at the time of foreclosure or action in lieu thereof (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (ii) all expenses with respect to the foreclosure (including, without limitation, reasonable attorneys' fees); (iii) the net expenses, if any (exclusive of general overhead), incurred by such holder in and as a direct result of the subsequent management of the Property; (iv) the costs of any Improvements made by such holder; and (v) an amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the Mortgage debt and such debt had continued in existence. 12.4. City's Option to Cure Mortgage Default. In the event of a default or breach prior to the completion of the Improvements by Developer, or any successor in interest, in or of any of its obligations under, and to the holder of, any Mortgage or other instrument creating an encumbrance or lien upon the Property or part thereof, City, or either of them, may at their option, and after expiration of all cure periods under the Mortgage documents and the delivery of written notice to Developer, cure such default or breach, in which case City shall be entitled, in addition to and without limitation upon any other rights or remedies to which it shall be entitled by this Agreement, operation of law, or otherwise, to reimbursement from Developer or its successor in interest of all costs and expenses incurred by them, including reasonable attorneys' fees, in curing such default or breach. 19 ARTICLE XIII. DEFAULT AND REMEDIES 13.1. In General. Each of the following shall constitute an event of default under this Agreement, in addition to any default, occurrence, or omission described in any of the following sections of this Article: (a) Developer creates or suffers an encumbrance or lien on the Property in violation of Section 12.1. (b) Failure by Developer to cause the construction of the Improvements to be commenced and completed pursuant to the terms, conditions and limitations of Article VI and Article VIII of this Agreement, subject to Unavoidable Delays, or to be reconstructed when required pursuant to Article XI of this Agreement. (c) Transfer of Developer's interest in the Property, or the assets of Developer, in violation of the provisions of Article X of this Agreement, before the Termination Date. (d) The holder of any Mortgage on the Property, or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable Mortgage documents. (e) Developer files or is the subject of any voluntary or involuntary petition in bankruptcy under Title 11 of the U.S. Code or any other formal or informal proceeding for dissolution, liquidation, settlement, composition, readjustment, or similar relief under any other state or federal law, or Developer admits in writing its inability to pay its debts generally as they become due. (f) Any party is in default under the terms of the Lease Purchase Agreement or is in breach of any material provision of the Lease Purchase Agreement, or Developer is otherwise in breach of any covenants that run with the land pursuant to this Agreement. (g) Any representation or warranty made by Developer in this Agreement, any Exhibit hereto, or in any written statement or certificate furnished by Developer pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. (h) Failure by either party to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. 13.2 Remedies on Default. Except as otherwise provided in this Agreement, in the event of any default or breach of this Agreement, or any of its terms or conditions, by either party herein, or any successor to such party, such party (or successor) shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach, and in any event within thirty (30) days after receipt of such notice; provided, however, that no such opportunity 20 to cure shall be allowed in the event of a default under subsections (e) or (g) of Section 13.1. If any such other default or breach remains unremedied after such thirty (30) day period, the non - defaulting party shall, without limitation, have the right to (i) suspend the non -defaulting party's performance under this Agreement, (ii) require payment by the defaulting party of any costs incurred by the non -defaulting party in connection with the default, (iii) terminate this Agreement and the Lease Purchase Agreement, and (iv) exercise any other remedy available under applicable law. 13.3. Termination by City Prior to Transfer of Title. In the event that (a) prior to transfer of title to the Property to Developer, the presence of hazardous substances (as defined under any federal, state, or local environmental laws, regulations, decrees, or ordinances) on the Property becomes known to the parties hereto, City has determined in good faith that such substances cannot be managed with restrictive covenants or environmental control measures or otherwise cannot be remediated at a cost of less than $50,000 after accounting for any and all grants or other financial assistance available from state or federal regulatory authorities, and City has informed Developer in writing on or before the Closing Date that the condition of the Property is, as a result of such environmental factors, not satisfactory for construction of the Improvements; or (b) prior to transfer of title to the Property to Developer and in violation of this Agreement, Developer (or any successor in interest) assigns or attempts to assign this Agreement or any rights therein, or in the Property in violation of Article VIII hereof; or (c) Developer does not submit Construction Plans, as required by this Agreement, or evidence that it has the necessary financial ability and commitments for construction and mortgage financing, in satisfactory form and in the manner and by the dates respectively provided in this Agreement therefor; or (d) one or more of the conditions precedent set forth in Section 4.2 has not been fully satisfied; then this Agreement, and any rights of Developer, or any assignee or transferee, in this Agreement, or arising therefrom with respect to City or the Property, shall, at the option of City, be terminated by it, in which event neither Developer (or assignee or transferee) nor City shall have any further rights against or liability to the other under this Agreement. 13.4. Revesting Title in City upon Happening of Event Subsequent to Transfer of Title to Developer. If, after transfer of title to the Property or any part thereof to Developer and before completion of the Improvements, (a) Developer (or successor in interest), for reasons other than those set forth in Section 13.6 hereof, shall default in or violate its obligations with respect to the construction of the Improvements (including the nature and the dates for the beginning and completion thereof), or shall abandon or substantially suspend construction work, 21 and any such default, violation, abandonment, or suspension shall not be cured, ended, or remedied within sixty (60) days after written demand by City so to do; or (b) Developer (or successor in interest) shall place thereon any encumbrance or lien not authorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen's or mechanics' lien, or any other unauthorized encumbrance or lien to attach, and such encumbrance or lien shall not have been removed or discharged or provision satisfactory to City made for such payment, removal, or discharge, within sixty (60) days after written demand by City so to do (notwithstanding the foregoing, Developer shall have the right to contest any such mechanics' or other similar lien if, within said sixty (60) day period stated above, Developer notifies City in writing of its intention so to do and Developer diligently prosecutes such contest, at all times effectively stays or prevents an official or judicial sale of the Property, or any part thereof or interest therein, under execution or otherwise, and pays or otherwise satisfies any final judgment adjudging or enforcing such contested lien claim and thereafter promptly procures record release or satisfaction thereof); or (c) there is, in violation of this Agreement, any transfer of the Property or any part thereof, and such violation shall not be cured within sixty (60) days after written demand by City to Developer, or (d) there occurs any other event of default described in Section 13.1 on the part of the Developer which is not remedied as set forth in Section 13.2; then City shall have the right to re-enter and take possession of the Property and to terminate (and revest in City) the Developer's fee ownership in the Property. It is the intent of this Section, together with other provision of this Agreement, that the transfer of title to the Property to Developer shall be made contingent upon, and that the Deed shall contain a condition subsequent to the effect that in the event of any default, failure, violation, or other action or inaction by Developer specified in this Section 13.4, failure on the part of Developer to remedy, end, or abrogate such default, failure, violation, or other action or inaction, within the period and in the manner stated in such Section, City at its option may declare a termination in its favor of all the rights and interests in and to the Property created by the Deed to Developer, and that such rights and interest of Developer, and any assigns or successors in interest to and in the Property, shall revert to City; provided, that such condition subsequent as a result thereof in City shall always be subject to and limited by, and shall not defeat, render invalid, or limit in any way, (i) the lien of any Mortgage authorized by this Agreement, and (ii) any rights or interests provided in this Agreement for the protection of the holders of such Mortgages. 13.5. Other Rights and Remedies of City; No Waiver by Delay. City shall have the right to institute such actions or proceedings or to exercise any other remedies available under applicable law as it may deem desirable for effectuating the purposes of this Article; provided, that any delay by City in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Article shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way; nor shall any waiver in fact made by City with respect to any specific default by Developer under this Section be considered or treated as a waiver of the rights 22 of City with respect to any other defaults by Developer under this Section or with respect to the particular default except to the extent specifically waived in writing. 13.6. Enforced Delay in Performance for Causes Beyond Control of Party. Performance by any party under this Agreement shall be subject to Unavoidable Delays. 13.7. Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same time or at different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by the other party. No waiver made by either such party with respect to the performance, or manner or time thereof, or any obligation of the other party or any condition to its obligations under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligation of the other party or condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or any other obligations of the other party. ARTICLE XIV. MISCELLANEOUS 14.1. 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, to City of Waterloo, 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor. (b) if to Developer, to Waterloo Development Corporation, 10 W. 4th Street, Suite 300, Waterloo, Iowa 50701, facsimile number 319-235-2353, Attention: Executive Vice President. 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. 14.2. 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 its duly authorized representative, 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. 23 14.3. Severability of Provisions. 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. 14.4. Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, including the Emergency Interim Relief Procedures. Any award rendered shall be final and conclusive upon the parties and shall be accompanied by findings of fact and a statement of reasons for the decision. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All costs and expenses, including attorneys' fees, shall be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties shall share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, the parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved. 14.5. Entire Agreement. This Agreement, together with the Deed and Lease Purchase Agreement, 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. 14.6. 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. 14.7. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 14.8. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have each caused this Development and Property Transfer Agreement to be executed by their duly authorized representatives on or as of the date set forth above. 24 CITY OF WATERLOO, IOWA By: By. Suzy Sch es, City Clerk STATE OF IOWA ) ss • WATERLOO DEVELOPMENT CORPORATION Byam..'�� ;_ Daniel Watters, President BLACK HAWK COUNTY ) On b , before me, a Notary Public in and for the State of Iowa, personally appeared Ernest G. Clark and Suzy Schares, to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, and that the instrument was signed on behalf of the corporation by authority of its City Council, as contained in the resolution adopted by the City Council under Roll Call No. 13'1157 on December 1 , 2011, and that Ernest G. Clark and Suzy Schares acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. 25 STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) On 1 - a to - a , before me, a Notary Public in and for the State of Iowa, personally appeared Daniel Watters, to me personally known, who being by me duly sworn, did say that he is the President of Waterloo Development Corporation, and that said instrument was signed on behalf of the said corporation by authority of its board of directors; and Daniel Watters acknowledged the execution of said instrument to be the voluntary act and deed of the corporation by it voluntarily executed. s. KAREN K KERN C Commission Number 161594 Z %ee,e r My Commission Expires /ow - Notary Public 26 r � i, d ��;a y LIST OF EXHIBITS A — Legal description of Property A-1 — Description of Project-related properties to be acquired B —Site plan/Schematic Design Description EXHIBIT "A" Legal Description of Property Lots 1, 2, 3, 4 and 5, in Block 13; and The Northeasterly 110 feet of Lots 6 and 7, and the Northeasterly 110 feet of the Northwesterly 50 feet of Lot 8, in Block 13, except those parts conveyed to the State of Iowa in 607 CLD 684 and to the City of Waterloo in 661 CLD 853; and The Southeasterly 10 feet of Lot 8, except the Southwesterly 30 feet thereof, and the Northeasterly 40 feet of the Southwesterly 70 feet of Lots 9 and 10, in Block 13; and That part of Lots 8, 9 and 10 in Block 13, bounded as follows: on the Northeast by the Southwest line of the Northeasterly 110 feet of said lots; on the Northwest by the Northwesterly line of the Southeasterly 10 feet of said Lot 8; on the Southwest by a line drawn from a point on the Northwesterly line of said Southeasterly 10 feet of Lot 8, which is 118 feet Southwest of the Northeasterly line of said Lot 8, said line extending to a point on the Southeasterly line of said Lot 10 which is 137.5 feet Southwesterly of the Northeast corner of said Lot 10; and The vacated alley in Block 13; and That part of West 2nd Street that lies Southwesterly of the Southwesterly line of Jefferson Street and a portion of Washington Street (formerly known as Bluff Street) lying Southwesterly of Block 14 and to be defined by survey; and The Northwesterly 180 feet of the vacated alley in Block 14; and Lots 4, 5 and the Northwesterly 20 feet of Lot 3, in Block 14; and Lots 6, 7 and 8 in Block 14, except that part conveyed to the City of Waterloo in 635 CLD 646; All in the Original Plat on the West Side of the Cedar River, City of Waterloo, Black Hawk County, Iowa. **NOTE: Before conveyance, the Property will be more accurately described in a plat of survey that substantially includes the real property described above. 1 EXHIBIT "A-1" Description of Project -Related Property to be Acquired In Block 4, Original Plat on West Side: Lot 1 (parcel 8913-26-205-012) Lot 2 and part of Lot 3 (parcel 8913-26-205-003) Part of Lot 8 (parcel 8913-26-205-008) Lot 9 (parcel 8913-26-205-007) In Block 13, Original Plat on West Side: Lot 1 (parcel 8913-26-207-004) Lot 2 (parcel 8913-26-207-003) Lots 9, 10 and part of Lot 8 (parcel 8913-26-207-005) In Block 14, Original Plat on West Side: Lots 1, 2 and part of Lot 3 (parcel 8913-26-210-005) Part of Lot 5 (parcel 8913-26-210-002) Lot 7 and part of Lot 6 (parcel 8913-26-210-010) EXHIBIT "B" Site Plan/Schematic Design Description See attached. 00834028-1\11310-093 6 s 2 WATERLOO DEVELOPMENT ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE SCHEMATIC DESIGN 04.18.2011 ' v©1i ir`111100111111111111.10111lifillirilii 1r Altemates: ABBREVIATIONS: ALTERNATE ALUMNTUM APROX APPROXIMATE ARCS ARCHITECTINAL BO BOARD BLDG DUI.. SLAG BLOCK. B 0 BY OTHER ORN rra�`TOR ,rrORI GANNET CJ ODNIROL JOINT GONG COR.CRETE CONI DEPIN DEMOLIDON ONMETER OIL DETAR LLECT COLN LATUROR GENERAL NOTES: MEN 2.04 OD LENANSCAL mmenna NUNL TER MISCELLANEOUS OVERNOW ROOF Mum CR CENTER P VAI PLASTIC .1111.1L PLY PLYWOOD PREFIX PRLYNNRO RAD RAD. RCP REFLECTED CLANG PL. R 0 ROOF DRAW Ftwo REQUIRED SPEC. SNORED =UM STRUCTURAL RWOLOD rnrrour 1 ALLWOR=ALL COMPLY *ITN APPLICABLE COOLS AND ORD...! VORCL AT OAS. RN ALL INtENSTOMS EXISTING AND NM, CONDITIONS ON TNE SEFENE PROCEEDING 6 TO INE FACE OF WALLS ai HALLWAYS LS:ZrDITAN WIDTHS L DIADXSON POINT IS al QUEST= 01.1 ARaTICEV 4 DOORS NOI LOCATED Or ONENSION ON PLANS OR DEMOS... St INSTALLED SVC1.1 ,TZLSCORc ‘0.Z.Nt41,LILL OPEN POSITION NONNI WALL STOP. IS PARALLEL TO ALLTACENI ZAJMINTES, AT AL./AAPSAROUNIc3,26 PENETRATORS DUCI, PIPES =CANS L IC . AT ALL NM .TALLED BY KNERIR.ERSELF OR DINERS MON TO FNOCEENNO MTN WORK OWNER: WATERLOO DELEVOPMENT ARCHITECT: INVISION 501 PRONE (3101.2334.1. CONTACT IRAN „r,I.PRORDIMANAMA .O'a[E SOO.. INN.a.RNANNA NM•P.O.. STRUCTURAL ENGINEER: JP -SE 122 le Etat GRANO 0.14ONTS. N. CONTACT RO P INEN NARINWQMNNON CIVIL ENGINEER: CLAASSEN ENGINEERING 131111.22.58. CONTACT DLL NS, N MECHANICAL & ELECTRICAL ENGINEER: MODUS 214 PHOEASmsSTRUT s,F.0061,1C1 114. SROCYA ENERGY ASSISTANCE CONSULTANT: THE WEIDT GROUP .0 ROAD mmt ronack AIN 51.45 INANE (B52, 0,1598 FAA 015.0354480 LANDSCAPE ARCHITECT: NAME POOL CONSULTANT: WATER'S EDGE KS MU RCOM WE.. HOWEVER IT SE µ GRGN�E ~>...,NO r,rl...r0...nov...I 0 REFER us DRLoNoRnors FDRKLESS LOOM MO FOR E.LY LCCATIONS OF ACCESS REWIRED SY 116-114 ALL CONCEALED.... DAWN CONTROLS 1.111EDAmEa1w E ECI Sheet Index: E�+EnR,. a u Room EXCEPT ELECTRICALAa. LSKILIMFAFISTYPINI BOACS crc ANNITECTS APPROVAL IN LOCATING ALL ALCMS COORS MOP TO ALL sP110. & rRGwARmm.amRwmDESMATED.THERGGR <o,cTDau.maAISCAL NDEU�TDC,EDROWMSFOR.GwTawawrw� �•�••�•R 11 SEE r At. LIPPER ROMP. ccrerami mamma SITIODONONATIoN Fa= TON AIL BE ALL WALLS EXC., AS PLANS °4NGrRGGwA<E�m, rOD CONTROL rsNC RETE ON m ���� 15 ELECIF.CAL CURE TS AND COMATUNICAOON OUSE'S NOM ON AROVECILMAL CANDANGS DRAWINGS 17 Al OLEO WALLS DODO, BULLNOSE OdU, I L SNORERS. TOLETS.UVATOMES 18 ALL CONCEALED WOOD MCCOWN TN WEN. WALLS IS REOUND TOOL FIRE TREATED Materials Legend: RDNDOODN5 r N.GN.,, ti••,.•,,.,.•P•.1 (T� evnmmRuae I=1 =MI n Imp Cross Reference Legend: -INVISION DES MOILS WATERLOO Warn Powea It Way Das INMED boa !COOS 515..1 wow MNININAcom NI Cann= Sawa Vista MN 50701 3.213 B772 Rev ONSIA JP -SE. LLD .I CLAASSEN ENGINEERING MODUS .NERD. AIRGAROGNNN TANI THE WEIDT GROUP RODE cS WATER'S EDGE Dm Gm R. 8 C.V. SPORTSPLEX ENTER ADDRESS HERE PRONG, roo 08111 04.182011 SCHEMATIC DESIGN TITLE SHEET e'LLAo.00. :pue8el /yews eri U) 0 0 ma Walt a a w �s I.4614 nAr w-Itaut3£ wgTwaul Zgt I� ER RACOVETBAIL \ I fOKESS r.csoa ice" 1_ 1 O 0 0 0 X11—� StlYi In 6 MOON RA UJ M b 6 04 000a WATERLOOSEVELO MEET ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE I�1 En— ;< V7 !o - WATERLOO DEVELC O ima- IIre II VI I El mc101 Mr D 1 ...At., w r 1 StlYi In 6 MOON RA UJ M b 6 04 000a WATERLOOSEVELO MEET ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE I�1 En— ;< V7 !o - WATERLOO DEVELC O r VI I 1 ...At., w StlYi In 6 MOON RA UJ M b 6 04 000a WATERLOOSEVELO MEET ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE I�1 En— ;< V7 !o - WATERLOO DEVELC O Life Safety Legend: sago. EaRarlilt, a 4E> cviwuuwa -INVISION DES MOLES WATERLOO 363.000aIRTell Way 00,15:•rtc,3m SOWS 010 WW2.. 0,31 Cara Sbeel 310 2131012 Pax c30511.1AND SIBIST GRESSIEE6 P3E. LLC (ffiID9EEffi CIAAS.SEN ENGINEERING LESESONSIS MODUS ESASSITAri cove "T SI THE E WE IDT GROUP S 10 E9tl90 WATERS EDGE .1/1903010, Dab Ne 6 8 C.V. SPORTSPLEX ENTER ADDRESS HERE PROJECT NO 08111 00. 04.182011 OCn SE* SCHEMATIC DESIGN UPPER LEVEL LIFE SAFETYPLAN A0.20S r > : C. • 5.k SIT SCHEMATIC DESIGN F. f, 8 o b WATERLOO CEVELCPME/VT ORGANIZATION C.V. SPORTSPLEX1..-,., ENTER ADDRESS HERE , I 1 I i g mp 6i g o 0 4 G ? 1/ i iEgiv leiq h ilvigi 6 it. F-‘ 6. ZBL ' I NATATORIUM POS_MCS J—I 1- -7 2 3 6 a 9 10 IOILTEROPOSE 6 •- 13, sF 2 WATERLOO DEVELOPMENT ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE : F t t t 1111 I D • I 0 0 —1— s.A "t5 g IZAV 411' mw 10,3 10§i hd jz 11) • 11 tb, '1 111 1 , , g i ,,.. , . , 1 k , L COOP • I 1 - - -411) ‘1#111 - -- - 1 laTATORTIO1 OOMAX".. 1 PATATOPPOI --- -I L I , . . al al al I .1 ) ZBL ' I NATATORIUM POS_MCS J—I 1- -7 2 3 6 a 9 10 IOILTEROPOSE 6 •- 13, sF 2 WATERLOO DEVELOPMENT ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE : F t t t 1111 I D • I 0 0 —1— s.A "t5 g IZAV 411' mw 10,3 10§i hd jz 11) • 3 WATERLOO DEVELOPMENT ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE 0 > IV 2 iD .: c) 1 21!" 2 5 WATESICK, DEVELOPMENT OR3ANZA TION C.V. SPORTSPLEX ENTER ADDRESS HEREI 11 ill I 2 1 q Id i 0 Pill ,`" IF' giI i1/i1-1l1i( 18 1 te 12 i• Z,v) 71 T 6 TERLCO DEVELOPMENT ORGANIZATION C.V. SPORTSPLEX ENTER ADDRESS HERE z fill .� lel �3 :O • Z al' 0 co 0c z 0 .1; C.V. SPORTSPLEX ENTER ADDRESS HERE II! a • 0 z a', 0 0, 0 m 0 16 4 0 0 0 0 —0 -0 _ 0 0 0 0 lillilil 7� WATERL00 DEVELOPMENT ORGANQATJ0N C.V. SPORTSPLEX ENTER ADDRESS HERE 2 HIMON MIA GE OS IIAE MBIA OE C.V. SPORTSPLEX ENTER ADDRESS HERE 111 11%1 111,V,Is F. WATERLOODEVacMENTORGN4tZ,T1ON C .V. SPORTSPLEX ENTER ADDRESS HERE • I PT T8011,4,0 -0C. 1 oejvloae¢rmon w ®�v. AVAA r.`" NOT FOR CONSTRUCTION 11 y I 4 o $ E Oft $ WATERLOO DEVELOPNEN(OROhVQAT10N C.V. SPORTSPLEJC ENTER ADDRESS HERE @ 11 1 I II a o B '• �g iij � �� OE NOT FOR CONSTRUCTION 0 it i - 8Q R I B WATERLOO UEVELOPMEN/ ORcawunav C.V. SPORTSPLEX ENTER ADDRESS HERE ? 11 III HI 1 ! " I 9 ggs1111 Pi S i,)