HomeMy WebLinkAboutSecor Investments LLC-9/12/2011RAIL SPUR AGREEMENT
This Rail Spur Agreement (the "Agreement") is entered into as of 9:M- 12-,4_
2011, by and between Secor Investments, L.L.C. (the "Company") and fie City of
Waterloo, Iowa (the "City").
WHEREAS, the City and Company are parties to a certain Development
Agreement dated as of Mai , 2009 (the "Development Agreement"),
concerning the Company's development of real property legally described as set forth
on Exhibit "A" (the "Property"), with support for those efforts by the City as described in
the Development Agreement, including but not limited to the construction of a railroad
spur (the "Project"); and
WHEREAS, the City is party to a certain Railroad Revolving Loan and Grant
Program Agreement dated December 8, 2009 (the "Grant Agreement") pursuant to
which the Iowa Department of Transportation ("IDOT"), subject to certain terms and
conditions, has agreed to provide funding for the City to carry out the Project; and
WHEREAS, consistent with the Development Agreement and the Grant
Agreement, the parties desire to set forth the terms of their cooperation with respect to
the Project.
NOW, THEREFORE, in consideration of the mutual promises exchanged herein,
and for other consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Construction Cooperation. The parties acknowledge and agree that, as
between them, the City has primary responsibility to undertake construction and
completion of the Project, including but not limited to design, bid letting, award of
contract, payment for goods and services, and oversight and inspection. The parties
further acknowledge and agree that the Project will be constructed on the Property and,
therefore, that the cooperation of Company is an essential condition for successful and
timely completion of the Project. Company agrees to permit all access to the City, its
employees, contractors and agents, that does not materially interfere with Company
operations and that is reasonably necessary for earth -moving and construction activities
in furtherance of the Project.
2. Ownership and Maintenance. The parties agree that, upon substantial
completion of the Project, Company shall be the owner of the rail spur and will be solely
responsible to maintain the rail spur, including but not limited to the rail bed and
trackage, in a state of good repair and condition, ordinary wear and tear excepted.
Company agrees not to commit any waste or damage upon the Project premises.
Company's duties under this paragraph shall continue for a minimum period of ten (10)
years following Project completion.
3. Further Covenants of Company. In support of City's obligations under
the Grant Agreement, Company agrees to cooperate with the City as set forth below:
A. Company will ensure that, before December 8, 2017, neither it nor
any commercial tenant upon the Property will relocate business operations away
from the Property, or abandon business operations or facilities or a substantial
portion thereof upon the Property, or remove rail spur infrastructure.
B. Company will not, before December 8, 2019, assign or transfer any
of its duties or obligations created under this Agreement without the prior written
consent of the City and IDOT.
C. Company acknowledges that the Grant Agreement requires
Company or an affiliated business to create and retain 26 new and retained full-
time employees or equivalents ("FTEs") within two (2) years from the date that
the City certifies Project completion to IDOT in writing and receives final
acceptance. Company agrees to put forward its best efforts to attain and
maintain said goals during the applicable period and will, within fourteen (14)
days following a written request from City, provide substantiating payroll records
to City for reporting to IDOT.
4. Indemnity. Company agrees that it will indemnify and hold the City
harmless from and against all claims, demands, causes of action, and liabilities of any
type or nature whatsoever, including but not limited to reasonable attorneys' fees,
arising from or in connection with the acts or omissions of Company, its employees and
agents, in performing the duties of Company under this Agreement.
5. Due Authorization. Each party represents and warrants to the other that
the person or persons signing this Agreement on its behalf is/are duly authorized to
execute and deliver this Agreement on behalf of the representing party.
6. Relationship of Parties. 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, except as
expressly provided in this Agreement, to create any liability for one party with respect to
the liabilities or obligations of the other party or any other person.
7. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight delivery 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 319-291-4262, Attention: Noel Anderson, Community
Planning & Development Director.
(b) if to Company, to Secor Investments, L.L.C., 3215 Lafayette Street,
Waterloo, Iowa 50707, facsimile number 319-232-3347, Attention: Scott Secor,
President.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
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delivery service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful.
8. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
effect unless made in writing, signed by the party 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.
9. Severability. Each provision, section, sentence, clause, phrase, and
word of this Agreement is intended to be severable. If any portion of this Agreement
shall be deemed invalid or unenforceable, whether in whole or in part, the offending
provision or part thereof shall be deemed severed from this Agreement and the
remaining provisions of this Agreement shall not be affected thereby and shall continue
in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
10. Captions. All captions, headings, or titles in the paragraphs or sections
of this Agreement are inserted only as a matter of convenience and/or 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.
11. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors, assigns, and legal
representatives.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
13. Entire Agreement. This Agreement, together with all exhibits 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.
14. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Rail Spur Agreement
by their duly authorized representatives as of the date first written above.
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SECOR INVESTMENTS, L.L.C.
By. r��.f�
W. Scott Secor, resident
CITY OF WA RLOO, IOWA
By: ®`
Attest:
Ernest G. Clark, Mayor
Suzy Schare, City Clerk
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EXHIBIT "A"
Legal Description of the Property
Parcel 8912-32-102-001
UNPLATTED WATERLOO EAST PART GOVT LOT 1 SEC 32 T 89 R 12 COM AT INTERS
SLY RT OF WAY LINE I C RR SWITCH TRACK & NELY LINE HWY 297 TH SE ALONG SAID
HWY LINE 520 FT TH NELY AT RT ANG TO SAID HWY 300 FT TH NWLY ALONG LINE PAR
HWY 165.5 FT TO SLY ROW LINE SAID ILL CENTRAL SWITCH TRACK TH WLY ALONG
SAID SLY LINE I C SWITCH TRACK ROW 464.4 FT TO PT OF BEG & THAT PART GOVT
LOT 1 SEC 32 T 89 R 12 COM AT PT OF INTERS SLY ROW LINE I C SWITCH TRACK &
NELY LINE HWY 297 TH SELY ALONG SAID HWY 620 FT TO PT OF BEG TH NWLY ALONG
SAID HWY 100 FT TH NELY AT RT ANG TO SAID HWY 300 FT TH NWLY ALONG LINE PAR
WITH SAID HWY 165.5 FT TO SLY LINE I C SWITCH TRACK TH ELY ALONG SAID I C
SWITCH TRACK TO LINE DRAWN AT RT ANG TO NELY LINE SAID HWY THROUGH PT OF
BEG TH SWLY TO PT OF BEG
And
Parcel 8912-32-102-002
UNPLATTED WATERLOO EAST PT OF GOVT LOT 1 SEC 32 T 89 R 12 LYING SLY OF
ILLINOIS CENTRAL SWITCH TRACK AND SELY OF THE FOLLOWING DESCRIBED LINE
COM AT THE PT OF INTERS OF SLY ROW OF I C SWITCH TRACT & THE NELY LINE OF
HWY NO. 297 TH SELY ALONG SAID HWY A DIST OF 620 FT TO PT OF BEG OF LINE
HEREIN DESCRIBED TH NELY AT RT ANGS TO THE NELY LINE SAID HWY TO SLY LINE
OF I C SWITCH TRACT EXC THAT PART AS FOL COM AT INTERS OF W LINE OF E 10 A
OF SAID GOVT LOT & NELY LINE SAID HWY TH NWLY ALONG THE NELY LINE SAID HWY
A DIST OF 270 FT TH NELY A DIST OF 331 FT TO PT ON W LINE OF E 10 A THAT IS 429
FT N OF THE PT OF BEG TH S ALONG W LINE OF SAID E 10 A A DIST OF 429 FT TO PT
OF BEG & EXC THAT PART THEREOF LYING IN THE E 10 A OF SAID GOVT LOT 1