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HomeMy WebLinkAboutEye of the Needle-10/4/2010The Parties Disaster Recovery Business Rental Assistance Program Contract CONTRACT # BRAP104 AW RD DATE: 10 �.! ; , 2010 PROJECT COMPLETION DATE: March, 2011 CITY: City of Waterloo 715 Mulberry Street Waterloo, Iowa 50703 CONTACT PERSON: Noel Anderson, Director of Community Planning and Development Email: Noel.Anderson@Waterloo-ia.org Phone: (319) 291-4366 Fax: (319) 291-4262 BUSINESS: Eye of the Needle (L.O.F.T.) 607 Sycamore St Waterloo, Iowa 50703 CONTACT PERSON: Patricia King Email: pak1951@live.com Phone: (319) 215-6151 Fax: FORGIVABLE LOAN AMOUNT: $1,500 TERMS OF FORGIVENESS: PROJECT DESCRIPTION: The Business must: This Forgivable Loan is provided by the City to the • Locate in a business rental Business to complete the Project as described in space that was physically its application and summarized here. Funds shall damaged by the 2008 natural be used by the Business for rental assistance for disaster(s). the period [10/10] to [03/11]. • Enter into a minimum one-year, market -rate lease. • Remain open for the duration of the six-month period for which rental assistance is awarded. • Not be in default of any term of this Contract. THE UNDERSIGNED AGREE to be bound by the terms and conditions stated above and the following documents incorporated by this reference and attached to this Contract: (1) Exhibit A- Disaster Recovery Business Rental Assistance Program General Provisions (July 2009), (2) Exhibit B - Business's Promissory Note, and (3) Exhibit C -Business's Application for Disaster Recovery Business Rental Assistance Program assistance. The Parties have entered into this Contract, effective as of the last date stated below (the "Contract Effective Date"). FHE CITY: �o Signajlee VLI2SL Ga 0' 1 Print nip and Title Date FO BUSINESS: ture itck 61 L tom Print Na a and Title Date EXHIBIT B — BUSINESS'S PROMISSORY NOTE PROMISSORY NOTE —FORGIVABLE LOAN FOR VALUE RECEIVED, the undersigned promises, in the event this Forgivable Loan is not forgiven, to pay to the order of the CITY OF WATERLOO, at its office at 715 Mulberry Street, the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) with interest at a rate of 0 % plus, in the event of a default, any costs and expenses that may be assessed as allowed under Contract # BRAP104 (the "Contract") and as stated below. The terms and conditions by which forgiveness of this Loan may occur are as specified in the Contract. Upon default, the whole amount then disbursed to Business shall become immediately due and payable at the option of the holder. The undersigned, in case of suit on this note, agrees to pay on demand all costs of collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid by the holder in collecting and/or enforcing this Note on default. Makers, endorsers and sureties waive demand of payment, notice of non- payment, protest and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note, and consent that the time or times of payment of all or any part hereof may be extended after maturity, from time to time, without notice. By: Eye of the Needle (L.O.F.T.) Signature /1 1T�11�1 Print Name, Title Address: 607 Sycamore St Waterlo•, IA 50703 Date / D Contract #BRAP104 7 EXHIBIT A DISASTER RECOVERY BUSINESS RENTAL ASSISTANCE PROGRAM GENERAL PROVISONS (July 2009) 1. CONTRACT DURATION. This Contract is effective as of the Contract Effective Date stated on Page 1 and shall remain in effect through the Project Completion Date and until the City has closed out the Contract and provided Business with written notice of Contract closeout. 2. FUNDING. The source of funding for this Contract is a grant from the Iowa Department of Economic Development to the City for financial assistance to businesses. Any termination, reduction, or delay of funds available due, in whole or in part, to (i) lack of, reduction in, or a deappropriation of funds, or (ii) any other reason beyond the City's control may, in the City's discretion, result in the termination, reduction or delay of funds to the Business. 3. ACKNOWLEDGEMENT OF OBLIGATIONS. Business acknowledges and agrees that: a) this Award is made in consideration of Business's representations and warranties described in this Contract, and b) upon violation of such covenants and warranties, Business is obligated to immediately repay any amounts the City determines Business received without fulfillment of Business's obligations under this Contract, plus applicable costs described in Section 14. 4. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS. No Award funds will be disbursed to the Business until: (a) The Business and the City have signed this Contract, and (b) The Business requests a disbursement of funds. All disbursements of Award funds shall be subject to receipt by the City of requests for disbursement, in form and content acceptable to City, submitted by the Business. All requests shall include documentation of costs that have been paid or costs to be paid immediately upon receipt of Award funds. The Business shall submit to City such supporting evidence as may be reasonably requested by City to substantiate all payments which are to be made out of any requisition and/ or to substantiate all payments then made with respect to the Project. 5. PRIOR COSTS. No expenditures made prior to the rental assistance period start date may be included as Project costs. 6. SUSPENSION OF DISBURSEMENT. Upon the occurrence of an Event of Default (as defined in Section 11) the City may suspend Contract #BRAP104 2 payments to Business until such time as the default has been cured to City's satisfaction. Notwithstanding anything to the contrary in this Contract, upon a termination of this Contract on account of an Event of Default, Business will no longer have the right to receive any disbursements after the effective date of default. 7. INVESTMENT OF GRANT FUNDS. a. In the event that Award Funds are not immediately utilized, temporarily idle Award Funds held by the Business may be invested in accordance with State law, including but not limited to the provisions of Iowa Code chapter 12C concerning the deposit of public funds. Interest accrued on temporarily idle Award funds held by the Business shall be credited to and expended on the Project prior to the expenditure of other Award funds. b. All proceeds remaining, including accrued interest, after all allowable Project costs have been paid or obligated shall be returned to the City within thirty (30) days after the Project Completion Date. Within ten (10) days of receipt of a written request from City the Business shall inform the City in writing of the amount of unexpended Award funds in the Business's possession or under the Business's control, whether in the form of cash on hand, investments, or otherwise. 8. BUSINESS'S REPRESENTATIONS AND WARRANTIES. Business represents and warrants to City as follows: a. Authority and validity of obligations. Business has full right and authority to enter into this Contract. The person signing this Contract has full authority to sign this Contract on behalf of the Business, and obligate the Business to the performance of each and all of the obligations under the Contract. b. Approvals received. This Contract delivered by the Business has been duly authorized, executed and delivered by the Business and constitutes the valid and binding obligation of the Business and is enforceable against the Business in accordance with its terms. Business has secured all necessary authorizations and approvals with any governmental, regulatory or governing board that may be necessary to permit Business to execute this Contract and comply with its terms. c. Govemmental Approvals, Permits and Licenses. To the best of its knowledge, information, and belief after reasonable due diligence and investigation to determine the accuracy of this representation, Business represents that it has received all licenses, permits, and approvals of all Federal, state, and local govemmental authorities, if any, necessary to conduct its business, in each case where the failure to obtain or maintain the same could reasonably be expected to have a material adverse effect. No investigation or proceeding which, if adversely determined, could reasonably be expected to result in revocation or denial of any material license, permit, or approval is pending or, to the knowledge of the Business, threatened. d. Litigation and Other Controversies. There is no litigation or governmental proceeding pending nor, to the knowledge of the Business, threatened, against the Business which if adversely determined would adversely impact Business's ability to perform under this Contract. e. Compliance with Laws. To the best of its knowledge, information, and belief after reasonable due diligence and investigation to determine the accuracy of this representation, Business represents that it is in compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to the operations of Business. 9. EFFECTIVE DATE OF REPRESENTATIONS AND WARRANTIES. The warranties and representations of Section 8 are made as of the Contract Award Date and shall be deemed to be renewed and restated by the Business at the time each request for disbursement of funds is submitted to the City. 10. COVENANTS OF BUSINESS. The Business covenants that: a. Performance Obligations. Business shall enter into a minimum one-year, market -rate lease for a business rental space that was physically damaged by the 2008 natural disaster(s), remain open for the duration of the six-month period for which rental assistance is awarded, and complete the Project as described in this Contract. Business shall promptly provide City with written notice of any major changes that would impact the success of the Project. b. Repayment Obligations. Upon the occurrence of an unremedied Event of Default as described in Section 11 Business agrees to immediately repay such amounts determined by City as due and payable. c. Required Reports. For the duration of this Contract the Business shall provide the City with required reports to assist in evaluation of the Contract #BRAP104 3 Program's effectiveness and to determine compliance with this Contract. Business shall promptly comply with all such requests. d. Disbursement Requests. Business shall prepare, sign and submit disbursement requests as specified in this Contract in the form and content required by City. Business shall review all disbursement requests and verify that claimed expenditures are allowable costs. Business shall maintain documentation adequate to support the claimed costs. e. Inspection and Audit. Business shall permit the City and its duly authorized representatives to visit and inspect any of the Business's properties, books and financial records related to the Project, to examine and make copies of the books of accounts and other financial records, and to discuss the affairs, finances and accounts with, and to be advised as to the same by, its officers and independent public accountants (and by this provision Business authorizes such accountants to discuss with the City and the City's duly authorized representatives the finances and affairs of the Business) at such reasonable time and reasonable intervals as the City may designate. Routine inspections and audits performed by City will be at City expense. In the event any special audits are conducted at City's request, the cost of such special audits will be at Business's expense. f. Compliance with Laws. Business will comply in all material respects with the requirements of all federal, state and local laws, rules, regulations and orders including, but not limited to prevention of discrimination in employment, equal employment opportunity and affirmative action, worker rights and worker safety, and the Iowa Department of Economic Development's administrative rules for the Disaster Recovery business Rental Assistance Program (261 IAC - Chapter 79). g. Use of Award Funds. Business shall use Award funds extended under this Contract solely for the purposes set forth in this Contract. h. Notice of Proceedings. Business shall promptly notify the City of the initiation of any claims, lawsuits, or other proceedings brought against Business which would adversely impact the Project. i. Accounting Records. Business shall maintain its books, records and all other evidence pertaining to this Contract in accordance with generally accepted accounting principles and such other procedures specified by City. These records shall be available to City, its intemal or external auditors, the Auditor of the State of Iowa, the Attomey General of the State of Iowa, the Iowa Department of Economic Development and the Iowa Division of Criminal Investigations at all times during the Contract duration and any extensions thereof, and for three (3) full years from the date this Contract is closed out by City. j. Indemnification. Business shall indemnify, defend and hold harmless the City, its departments, divisions, agencies, sections, commissions, officers, employees and agents from and against all losses, liabilities, penalties, fines, damages and claims (including taxes), and all related costs and expenses (including reasonable attorneys' fees and disbursements and costs of investigation, litigation, settlement, judgments, interest and penalties), arising from or in connection with any of the following: (1) Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; (ii) Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by Business of any representation or warranty made by the Business in this Contract; (iii) any claim, demand, action, citation or legal proceeding which results from an act or omission of Business or any of their agents in its or their capacity as an employer of a person. 11. EVENTS OF DEFAULT. Any one or more of the following shall constitute an "Event of Default" hereunder: a. Noncompliance with Contract. Default in the observance or performance of any other provision of this Contract; or b. Material Misrepresentation. Any representation or warranty made by the Business in this Contract or in any statement or certificate fumished by it pursuant to this Contract, or in connection with any of the above, proves untrue in any material respect as of the date of the issuance or making thereof; or c. Adverse Change in Financial Condition. Any change shall occur in the financial condition of the Business which would have a material adverse effect on the ability of the Business to perform under this Contract; or d. Bankruptcy or Similar Proceedings Initiated. Either the Business shall (1) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (2) not pay, or admit in writing its Contract #BRAP104 4 inability to pay, its debts generally as they become due, (3) make an assignment for the benefit of creditors, (4) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (5) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (6) fail to contest in good faith any appointments or proceeding described below; or e. Appointment of Officials. A custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for either the Business or any substantial part of any of its respective property, or a proceeding described above shall be instituted against the Business and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days; or 12. REMEDIES UPON DEFAULT. If, after notice of default and opportunity to cure as provided in Section 13, there is an unremedied Event of Default, the City may: a. Terminate this Contract and all of the obligations of City under this Contract on the date stated in such notice, and b. Suspend pending disbursements and terminate further disbursements of Award funds, and c. Declare the total amount of Award funds disbursed to be forthwith due and payable, including any and all fees, charges and other amounts payable under this Contract. The total amount due shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind. 13. NOTICE AND OPPORTUNITY TO CURE. If City has reasonable cause to believe that an Event of Default has occurred under this Contract , the City shall issue a written Notice of Default to the Business, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than twenty (20) days from the date of the Notice of Default, in which the Business shall have an opportunity to cure, provided that cure is possible and feasible. 14. EXPENSES. Business agrees to pay to the City all expenses reasonably incurred or paid by City including reasonable attorneys' fees and court costs, in connection with any Default or Event of Default by the Business or in connection with the enforcement of any of the terms of this Contract. 15. TIMELY PERFORMANCE. The Parties agree that the dates and time periods specified in this Contract are of the essence to the satisfactory performance of this Contract. 16. CHOICE OF LAW AND FORUM. In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Contract, the proceeding shall be brought in Des Moines, Iowa, in Polk County District Court for the State of Iowa, if such court has jurisdiction. If however, such court lacks jurisdiction and jurisdiction lies only in a United States District Court, the matter shall be commenced in the United States District Court for the Southem District of Iowa, Central Division. This provision shall not be construed as waiving any immunity to suit or liability, in state or federal court, which may be available to the City, or its officers, employees or agents. 17. GOVERNING LAW. This Contract and the rights and duties of the Parties hereto shall be governed by, and construed in accordance with the internal laws of the State of Iowa without regard to principles of conflicts of laws. 18. CONTRACT AMENDMENTS. The Contract may only be amended if done so in writing and signed by the Business and the City. 19. NOTICES. All notices hereunder shall be in writing and shall be given to the relevant party at its address, or e-mail address as set forth on the first page of this Contract. Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified and a confirmation of such facsimile has been received by the sender, (ii) if given by e-mail, when such e-mail is transmitted to the e- mail address specified and a confirmation of such e-mail has been received by the sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses Contract #BRAP104 5 specified. 20. HEADINGS. Section headings used in this Contract are for convenience of reference only and are not a part of this Contract for any other purpose. 21. FINAL AUTHORITY. The City shall have the authority to reasonably assess whether Business has complied with the terms of this Contract. 22. WAIVERS. No waiver by the City of any default hereunder shall operate as a waiver of any other default or of the same default on any future occasion. No delay on the part of the City in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by City shall preclude future exercise thereof or the exercise of any other right or remedy. 23. COUNTERPARTS. This Contract may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 24. SURVIVAL OF REPRESENTATIONS. All representations and warranties made herein or in any other Contract document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Contract and the other Contract documents and shall continue in full force and effect with respect to the date as of which they were made until all of Business's obligations or liabilities under this Contract have been satisfied. 25. SEVERABILITY OF PROVISIONS. Any provision of this Contract which is unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Contract or any other Contract document may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Contract and any other Contract document are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Contract or any other Contract document invalid or unenforceable. 26. NONASSIGNMENT. This Contract may not be assigned by Business without prior written consent of the City. 27. TERMINATION. This Contract may be terminated in the following circumstances: a. As a result of the Business's default under this Contract; b. As a result of the termination or reduction of funding to the City; c. Upon written mutual agreement of the City and Business. 28. ORDER OF PRIORITY. In the case of any inconsistency or conflict between provisions of this Contract and its Exhibits, the following order of priority shall control: a. The terms and conditions of the Award as outlined on Page 1 of this Contract. Contract #BRAP1 04 6 b. Exhibit A —Disaster Recovery Business Rental Assistance Program General Provisions (July, 2009). c. Exhibit B- Business's Promissory Note. d. Exhibit C -Business's Application for Disaster Recovery Business Rental Assistance Program Financial Assistance. 29. INTEGRATION. This Contract contains the entire understanding between the Business and the City relating to this Disaster Recovery Business Rental Assistance Program Award and any representations that may have been made before or after the signing of this Contract which are not contained herein, are nonbinding, void and of no effect. Neither of the Parties has relied on any such prior representation in entering into this Contract.