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HomeMy WebLinkAboutRiver Plaza Athletic Club-7/26/2010The Parties 0 LL 0 0 0 Business Disaster Recovery Flood Insurance Reimbursement Program Contract CONTRACT # FIRP001 AWARD DATE: �1 aie b , 2010 PROJECT COMPLETION DATE: June 12, 2011 ADMINISTRATIVE ENTITY: City of Waterloo 715 Mulberry St Waterloo, Iowa 50703 CONTACT PERSON: Noel Anderson, Director of Community Planning & Development Email: noel.anderson@waterloo-ia.org Phone: (319) 291-4366 Fax : (319) 291-4262 BUSINESS: River Plaza Athletic Club 10 W 4th St Waterloo, Iowa 50702 CONTACT PERSON: Rekha Shankar Email: Phone: (319) 233-5109 Fax: FORGIVABLE LOAN AMOUNT: $5,000 TERMS OF FORGIVENESS: PROJECT DESCRIPTION: ® See Section 6 of the General This Forgivable Loan is provided by the Provisions attached hereto as Administrative Entity to the Business to reimburse Exhibit A. the Business for the purchase of a Flood Insurance Policy as provided in Exhibit A attached hereto and as described in its Application. Funds shall be used by the Business for reimbursement for one or more Flood Insurance Policies purchased by the Business and with a term beginning on or after January 1, 2010 and ending on or before December 31, 2010. 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- Business Disaster Recovery Flood Insurance Reimbursement Program General Provisions (_June 2010), (2) Exhibit B- Business's Promissory Note, (3) Exhibit C -Business's Application for Business Disaster Recovery Flood Insurance Reimbursement Program Assistance and all attachments or exhibits thereto, and (4) Exhibit D — List of Applicable Federal Laws. The Parties have entered into this Contract, effective as of the last date stated below (the "Contract Effective Date"). FOR T ` ADMINISTRAT VEEN 'ITY: L/ Sigture Pri t Naine and Title Da TP -0/6 -04A-L 4827-3746-714213\419462\00019 7/20/2010 FOR THE BUSINESS: Print Name and Title to 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 (the "Administrative Entity"), at its office at 715 Mulberry Street the sum of FIVE THOUSAND DOLLARS ($5,000) 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 # FIRP001 (the "Contract") between the Administrative Entity and River Plaza Athletic Club and as stated below. The terms and conditions by which forgiveness of this Loan may occur are as specified in the Contract. Upon default or breach by the undersigned of any of the terms and conditions of the Contract, as determined in the sole discretion of the Administrative Entity, the entire amount of this loan or such portion as determined by the Administrative Entity 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 Administrative Entity 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. River Plaza Athletic Club By: -e4a.„3 Sig e' 02.441.9\. S kemotti.,_‘--t___N-c-c--114AikAki-j- Print Name, Title Address: 10 W 4th St Waterloo, IA 50702 Date 7-2-o -- 20 ( o EXHIBIT A DISASTER RECOVERY FLOOD INSURANCE REIMBURSEMENT PROGRAM GENERAL PROVISONS (June 2010) 1. CONTRACT DURATION. This Contract is effective as of the Contract Effective Date stated on Page 1 and shall remain in effect through the term of the Flood Insurance Policy for which the Award is made and until the Administrative Entity has closed out the Contract and provided Business with written notice of Contract closeout. 2. DEFINITIONS. Capitalized terms used in this Contract shall have the following meanings: a. "Act" means the Act, as defined in the Recipient Contract. b. "Administrative Entity" means the city or county whose name is set forth on the first page of this Contract under the heading "Administrative Entity". c. "Application" means the application of the Business for assistance pursuant to the Program and all attachments thereto, attached hereto as Exhibit C. d. "Award" means the amount set forth and described as "Forgivable Loan Amount" on the first page of this Contract. e. "Business" means the business whose name is set forth on the first page of this Contract under the heading "Business". f. "Contract" means the Business Disaster Recovery Flood Insurance Reimbursement Program Contract and all exhibits attached thereto. g. "Contract Effective Date" shall have the meaning set forth on the first page of this Contract. h. "Disaster Event" means floods, storms and tornados which resulted in the declaration of a major disaster under Title IV of the Robert T. Stafford Disaster Relief and Emergency Act (42 U.S.C. Section 5721 et seq.) designated by the Federal Emergency Management Agency as Disaster No. 1763 that occurred between May 25, 2008 and August 13, 2008. i. "500 -Year Floodplain" means an area designated by the Federal Emergency Contract #FIRP001 2 Management Agency as having at least a 0.2% chance of flooding on an annual basis. j. "Flood Insurance Policy" means a policy of insurance which covers damage due to flooding and may include sewer/drain backup and business interruption coverage. k. "HUD" means the U.S. Department of Housing and Urban Development. L "IDED" means the Iowa Department of Economic Development, an agency of the State of Iowa. m. "100 -Year Floodplain" means an area designated as a "special flood hazard area" on the most recent National Flood Insurance Program map for such area or an area designated by the Federal Emergency Management Agency as having at least a 1.0% chance of flooding on an annual basis. n. "Program" means the Business Disaster Recovery Flood Insurance Reimbursement Program administered by IDED as part of the grant to the State of Iowa under the HUD Community Development Block Grant program. o. "Recipient Contract" means the Disaster Recovery Flood Insurance Reimbursement Program General Provisions Contract between IDED and the Administrative Entity dated June 2010, pursuant to which the Administrative Agency received the funds for the Award. p. "Terms of Forgiveness" shall be the requirements that must be met by the Business as set forth in Section 6 hereof. 3. FUNDING. The source of funding for this Contract is a grant from IDED to the Administrative Entity for financial assistance to businesses in the form of reimbursement for the cost of one or more Flood Insurance Policies. 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 Administrative Entity's control may, in the sole discretion of the Administrative Entity, result in the termination, reduction or delay of funds to the Business. 4. 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 Administrative Entity determines Business received without fulfillment of Business's obligations under this Contract, plus applicable costs described in Section 13, all as further provided herein. 5. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS. Disbursements of a portion or all of the Award will be made upon receipt by the Administrative Entity of a request for disbursement by the Business, which shall contain documentation of costs as requested by the Administrative Entity, including but not limited to evidence that the Business purchased a Flood Insurance Policy having a term beginning on or after January 1,2010 and ending on or before December 31, 2010. The Business shall submit to Administrative Entity such supporting evidence as may be reasonable requested by the Administrative Entity to substantiate all payments. No reimbursement shall be made for any such premiums paid prior to January 1, 2010. 6. TERMS OF FORGIVENESS. The Award is made in the form of a forgivable loan, which shall be forgiven if, at the end of the term of the Flood Insurance Policy for which the Award was made, the Business: a. has met all the terms contained in this Contract for the term of this Contract; b. did not cancel the Flood Insurance Policy, and the Flood Insurance Policy was not otherwise terminated, prior to the end of its term; and c. was located as provided in Section 7(g) during the term of the Flood Insurance Policy. 7. BUSINESS'S REPRESENTATIONS AND WARRANTIES. Business represents and warrants to Administrative Entity 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 to obligate the Business to the performance of each and all of the obligations under the Contract. b. Approvals received. This Contract delivered Contract #FIRP001 3 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. Governmental 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 governmental 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. f. Application. All statements of the Business contained in its Application, attached hereto as Exhibit C, including any attachments thereto (including but not limited to the Consent and Release Form, the Subrogation Agreement and the Duplication of Benefits Affidavit attached thereto), are true and correct as of the date hereof. g. Location of Business. Either (i) one or more of the buildings in which the Business is located suffered damage from water involving either overland flow or sewer backup as a result of the Disaster Event; or (ii) one or more of the buildings in which the Business is located are situated in either a 100 -Year Floodplain or a 500 -Year Floodplain. h. No Residences. The Business is not located in the residence of the owner of the Business. i. Term of Flood Insurance Policy. The term of the Flood Insurance Policy for which the Business is seeking reimbursement pursuant to this Contract began on or after January 1, 2010 and ends or ended on or before December 31, 2010. j. Duplication of Benefits. The Business has not received funds from any other source for the purpose of reimbursing the Business for the costs of any Flood Insurance Policy for which the Business receives reimbursement pursuant to this Contact. 8. EFFECTIVE DATE OF REPRESENTATIONS AND WARRANTIES. The warranties and representations of Section 7 are made as of the Date set forth on page one (1) of this Contract and shall be deemed to be ongoing representations during the term of this Contract. 9. COVENANTS OF BUSINESS. The Business covenants that: a. Performance Obligations. Business shall comply with all other terms of this Contract. Business shall promptly provide Administrative Entity with written notice of any major changes that would impact compliance with the covenants contained herein. b. Repayment Obligations. Upon (i) the occurrence of an unremedied Event of Default as described in Section 10, or (ii) a determination by IDED or HUD that the Award was granted to the Business in contravention of the federal and state rules and regulations for the Program, the Business agrees to immediately repay such amounts determined by IDED or the Administrative Entity to be due and payable. c. Required Reports. For the duration of this Contract the Business shall provide the Administrative Entity with such reports as requested by the Administrative Entity to assist in evaluation of the 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 Administrative Entity. Contract #FIRP001 4 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. Termination of Flood Insurance Policy. In the event the Flood Insurance Policy is terminated prior to the end of its term for any reason, the Business shall notify the Administrative Entity of such early termination. f. Duplication of Benefits. The Business shall promptly notify the Administrative Entity of the receipt of any funds received by the Business from any source whatsoever for the same purpose as the purpose of the Award pursuant to this Contract. g. Inspection and Audit. Business shall permit the Administrative Entity and its duly authorized representatives, HUD, IDED or other state and federal agencies and their duly authorized representatives to visit and inspect any of the Business's properties, books and financial records related to the purposes of the Award, 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 Administrative Entity and the Administrative Entity's duly authorized representatives the finances and affairs of the Business) at such reasonable time and reasonable intervals as the Administrative Entity may designate. Routine inspections and audits performed by Administrative Entity will be at the Administrative Entity's expense. In the event any special audits are conducted at Administrative Entity's request, the cost of such special audits will be at Business's expense. h. 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, including but not limited to those laws listed in Exhibit D attached hereto, and IDED's administrative rules for the Business Disaster Recovery Flood Insurance Reimbursement Program (261 IAC - Chapter 79), as such laws, rules, regulations, order and administrative rules may be amended from time to time. i. Compliance with Terms of Recipient Contract. Business acknowledges that it has read and understood the provisions of the Recipient Contract. Business shall comply with any and all terms of the Recipient Contract that either expressly or by implication apply to Business as a subrecipient under the Recipient Contract. j. Use of Award Funds. Business shall use Award funds extended under this Contract solely for the purposes set forth in this Contract. k. Notice of Proceedings. Business shall promptly notify the Administrative Entity of the initiation of any claims, lawsuits, or other proceedings brought against Business which would adversely impact the purposes of the Award. 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 Administrative Entity. These records shall be available to HUD, the Administrative Entity, its internal or external auditors, the Auditor of the State of Iowa, the Attorney General of the State of Iowa, IDED and the Iowa Division of Criminal Investigations at all times during the Contract duration and any extensions thereof, and for five (5) full years from the date this Contract is closed out by the Administrative Entity or longer in the event that litigation, audit or claims are commenced or instituted, in which case Business shall retain the records until the litigation, audit or claim has been fully resolved in the sole discretion of the Administrative Entity. m. Indemnification. Business shall indemnify, defend and hold harmless the Administrative Entity, IDED and their respective 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: (i) any claim, demand, action, citation or legal proceeding arising out of or resulting from the Award; (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 Contract #FIRP001 5 omission of Business or any of its agents in its or their capacity as an employer of a person; and (iv) any claim, demand, action, citation or legal or administrative proceeding arising out of or resulting from Business' breach of the terms and covenants set forth herein, including but not limited to claims made against the Administrative Entity by IDED and claims relating to the Administrative Entity's inability to comply with agreements with IDED as a result of Business' breach of the terms and covenants of this Contract. n. Conflict of Interest. (i) General. No persons identified in paragraph (ii) below who exercise or have exercised any administrative functions or responsibilities with respect to Community Development Block Grant ("CDBG") assisted activities, including the Award funds under this Contract, or who are in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from a CDBG assisted activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom such person has a family or business relationship, during their tenure and for one year thereafter. (ii) Persons covered. The conflict of interest provisions described in paragraph (i) of this subsection apply to any person who is an employee, agent, consultant, officer or elected or appointed official of IDED, the Administrative Entity or the Business as a sub -recipient of CDBG funds in the form of the Award funds under this Contract. 10. EVENTS OF DEFAULT. Any one or more of the following shall constitute an event of default (an "Event of Default") hereunder: a. Noncompliance with Contract. Default in the observance or performance of any 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 furnished by it pursuant to this Contract, or in connection with any of the above, which proves untrue in any material manner, as determined in the sole discretion of the Administrative Entity; or c. Adverse Change in Financial Condition. Any change occurring 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, as determined in the sole discretion of the Administrative Entity; 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 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. 11. REMEDIES UPON DEFAULT. If, after notice of default and opportunity to cure as provided in Section 12, there is an unremedied Event of Default, the Administrative Entity may, at its sole discretion, take any or all of the following actions: a. Terminate this Contract and all of the obligations of the Administrative Entity under this Contract on the date stated in such notice; b. Suspend pending disbursements and terminate further disbursements of Award funds; c. Require repayment of funds not used in compliance with this Contract; d. Declare the total amount of Award funds disbursed to Business, or any portion thereof in an amount determined in the sole discretion of the Administrative Entity to be forthwith due and payable, including any and all fees, charges and other amounts payable under this Contract. The Contract #FIRP001 6 total amount due shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind; and/or e. Negotiate a repayment plan with Business for the Award in the event that the Event of Default is Business' noncompliance with the Terms of Forgiveness stated in this Contract. 12. NOTICE AND OPPORTUNITY TO CURE. The Business shall give the Administrative Entity notice of any Event of Default of which Business becomes aware. If Administrative Entity receives such notice or has reasonable cause to believe that an Event of Default has occurred under this Contract, the Administrative Entity 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 of 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. 13. EXPENSES. Business agrees to pay to the Administrative Entity all expenses reasonably incurred or paid by Administrative Entity, 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. 14. TIMELY PERFORMANCE. The parties hereto agree that the dates and time periods specified in this Contract are of the essence to the satisfactory performance of this Contract. 15. CHOICE OF LAW AND FORUM. In the event any proceeding of a 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, or in Waterloo, Iowa, in the Black Hawk County District Court, 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 Southern District of Iowa, Central Division, or the United States District Court for the Northern District of Iowa. 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 Administrative Entity, or its officers, employees or agents. The parties hereto waive any consent to such jurisdiction and venue of any such court as provided in this section and hereby waive any argument that venue in such forums is not convenient. 16. 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. 17. CONTRACT AMENDMENTS. The Contract may only be amended if done so in writing and signed by the Business and the Administrative Entity. 18. 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 specified. 19. 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. 20. FINAL AUTHORITY. The Administrative Entity shall have the authority to reasonably assess whether Business has complied with the terms of this Contract. 21. WAIVERS. No waiver by the Administrative Entity 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 Administrative Entity in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by Administrative Entity shall preclude future exercise thereof or the exercise of any other right or remedy. 22. 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. 23. SURVIVAL OF REPRESENTATIONS. All representations and warranties made herein or in any other Contract document or in certificates Contract #FIRP001 7 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. 24. 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. 25. NONASSIGNMENT. This Contract may not be assigned by Business without prior written consent of the Administrative Entity. 26. TERMINATION. (a) This Contract may be terminated in the following circumstances: (i). By the Administrative Entity as a result of the Administrative Entity's determination of an Event of Default which remains uncured after any notice and cure period provided pursuant to this Contract; (ii). By the Administrative Entity as a result of the termination or reduction of funding to the Administrative Entity, or a unilateral modification made by IDED to the agreement between the Administrative Entity and IDED pursuant to which the Award funds are provided or any other event or circumstance beyond the control of the Administrative Entity that may cause the Administrative Entity to terminate this Contract, as determined in the sole discretion of the Administrative Entity; (iii). Upon mutual written agreement of the Administrative Entity and Business. (b) Upon termination of this Contract as provided in this section, no further disbursement of funds shall be made under this Contract to Business. In the event of termination of this Contract due to the occurrence and continuance of an Event of Default beyond any applicable notice and cure periods, the remedies provided in this Contract for such Event of Default shall apply. 27. 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. b. Exhibit A — Disaster Recovery Flood Insurance Reimbursement Program General Provisions (June 2010). c. Exhibit B - Business's Promissory Note. Contract #FIRP001 8 d. Exhibit C - Business's Disaster Recovery Business Assistance Program Application. e. Exhibit D — List of Applicable Federal Laws. 28. INTEGRATION. This Contract and all exhibits attached thereto contains the entire understanding between the Business and the Administrative Entity relating to this Award under the Program 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. SECOND AND FINAL CONDITIONAL OFFER TO BUY PROPERTY TO: James R. Sulentic and Richard J. Malcolm. Jr. ("Seller") FROM: City of Waterloo, Iowa ("Buyer") Upon the terms and conditions set forth in this Conditional Offer to Buy Property (the "Offer"), Buyer hereby offers to buy, and the Seller by its acceptance agrees to sell, the real property situated in Waterloo, Black Hawk County, Iowa, locally known as 234 Greenwood Avenue, more particularly described as set forth in attached Exhibit "A", and legally described as in the abstract of title, together with any easements and appurtenant servient estates, but subject to any reasonable easements of record for public utilities or roads, any zoning restrictions, customary restrictive covenants, and mineral reservations of record, if any (all of which interests are herein referred to as the "Property"). If this Offer to purchase the Property includes structures or property interests on adjacent land leased by Seller from a third -party, check here: 1. PURCHASE PRICE. The Purchase Price shall be $87,000.00, which shall be due and payable in full at closing, subject to such deductions as are provided for in this Offer, to be delivered to Seller upon performance of Seller's obligations and satisfaction of Buyer's contingencies, if any. The Purchase Price is subject to deductions for duplication of benefits as described in paragraph IA below and as applicable, insurance proceeds for property damage. The Purchase Price as so reduced is referred to herein as the Offer Price. As one condition for eligibility to receive pre -flood market value for the Property, Seller must certify, on a form satisfactory to Buyer, that he or she is a National of the United States or a qualified alien. IA. FLOOD BUYOUT ACQUISITION AND DEDUCTIONS. Seller acknowledges that Buyer is acting pursuant to the terms of a grant agreement with Iowa Homeland Security and Emergency Management Division in administering a voluntary property acquisition project (the "Project"). The Project is funded by the Federal Emergency Management Agency (FEMA) and U.S. Department of Housing and Urban Development (HUD). To prevent duplication of federal assistance made to flood disaster victims, HUD and FEMA require that certain types of assistance received by the Seller from State, Federal and private sources for flood -related damage be deducted in determining the Offer Price payable to Seller, including FEMA and/or SBA funds already disbursed. A duplication of benefits statement has been issued that describes benefits previously received and the estimated amounts of any corresponding deductions to the Purchase Price. Deductions are estimates only, and a final determination on deductions will be made before closing. 2. POSSESSION AND CLOSING. If Buyer timely performs all obligations, possession of the Property shall be delivered to Buyer at closing, unless an extension has been agreed to in writing by the parties consistent with the administrative plan (the "Plan") adopted by Buyer with respect to the Project. Closing shall occur no later than --ninety (60) days after Buyer's acceptance of this Offer, unless extended to a later date by the parties in writing, but in any event after the approval of title by Buyer, satisfaction or waiver of other contingencies, and satisfaction of all Project conditions set forth in the Plan. Buyer does not agree to take possession subject to the rights of non -owner occupants, if any, now in possession. 3. REAL ESTATE TAXES. Seller shall pay taxes prorated to the closing date and any unpaid real estate taxes payable in prior years. Buyer shall pay all subsequent real estate taxes. At closing Seller shall pay Buyer, or Buyer shall be given credit for, an amount equal to taxes from the first day of July prior to closing to the date of closing based upon the assessed value of the Property applicable to such fiscal year; provided that if the tax levy rate for such fiscal year has not been determined then the levy rate for the current fiscal year will be applied to determine the tax proration. Taxes shall be prorated as set forth in Iowa Code § 427.2. 4. SPECIAL ASSESSMENTS. Seller shall pay at time of closing all installments of special assessments, which are a lien on the Property as of closing, and all prior installments thereof. All charges for solid waste removal, sewage and maintenance that are attributable to Seller's possession, including those for which assessments arise after closing, shall be paid by Seller. Any preliminary or deficiency assessment which cannot be discharged by payment shall be paid by Seller through an escrow account with sufficient funds to pay such liens when payable, with any unused funds returned to Seller. Buyer shall pay all other special assessments or installments not payable by Seller. 5. RISK OF LOSS AND INSURANCE. Seller shall bear the risk of loss or damage to the Property prior to closing. Seller agrees to maintain existing insurance, and Buyer may purchase additional insurance. In the event of substantial damage or destruction prior to closing, Seller shall promptly notify Buyer of same, and Buyer shall have the option to complete the closing and receive insurance proceeds regardless of the extent of damages or to declare this Offer null and void. The Property shall be deemed substantially damaged or destroyed if it cannot be repaired to its present condition on or before the closing date, 6. FIXTURES. Included with the Property shall be all fixtures that integrally belong to, are specifically adapted to or are a part of the real estate, whether attached or detached, such as attached carpeting, built-in appliances and accessories, light fixtures and bulbs, awning, shutters, window shades, rods, blinds, ceiling fans, TV tower, antenna, rotor and controls, door chimes, fireplace grates and andirons, mailbox, installed sump pump, garage door openers and controls, and bushes, shrubs, and other vegetation. Also included, if not rentals, are satellite dish, water softener and filtration systems, installed alarm devices, propane tanks, and all other fixtures not hereinafter reserved by Seller in writing. 7. CONDITION OF PROPERTY. The Property as of the date of this Offer, including buildings, grounds, and all improvements, will be preserved by the Seller in its present condition until possession, ordinary wear and tear excepted. Except as expressly set forth in this Offer, Seller sells the Property "AS IS" and makes no warranties, expressed or implied, as to the condition of the Property. Seller agrees to remove from the Property prior to possession all debris and personal property that is not included in this Offer, including but not limited to vehicles, vehicle parts, appliances, furniture and furnishings, storage containers, household cleaners and solvents, construction materials, firewood, and any other item of property that is not a fixture, unless Buyer is permitted an extension of time after closing pursuant to the Plan. Buyer shall be permitted to make a "walk through" inspection of the Property prior to closing as provided in the Plan. After acceptance of this Offer by Buyer, Buyer may, at its sole expense, conduct such inspections, investigations, and inventories of the Property as it deems reasonable or necessary, and for such purposes Seller hereby grants to Buyer, its employees, agents and contractors, the right to enter upon the Property at reasonable times and upon reasonable advance notice (oral or written). 8. ABSTRACT AND TITLE. Seiler shall promptly provide to Buyer an abstract of title to the Property, if Seller possesses an abstract. Buyer shall cause the abstract of title to be updated or prepared at Buyer's sole expense. The abstract shall show marketable title in Seller in conformity with this Offer, Iowa law, and title standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect title. If closing is delayed due to Seller's inability to provide marketable title, this Offer shall continue in force and effect until either party rescinds the Offer after giving ten (10) days' written notice to the other party. The abstract shall become the property of Buyer when the Offer Price is paid in full. Seller shall pay the costs of any additional abstracting and title work due to any act or omission of Seller, including transfers by or the death of Seller or its assignees. After all valid objections have been satisfied or provided for, Seller shall have no obligation to pay for further abstracting, excepting any made necessary by its own affairs. Unless stricken, the abstract shall be obtained from an abstracter qualified by the Guaranty Division of the Iowa Housing Finance Authority. 9, SURVEY. If a survey is required under Iowa Code Chapter 354, or city or county ordinances, Buyer shall pay the costs thereof. Buyer may, at its expense prior to closing, have the Property surveyed and certified by a registered land surveyor. If the survey shows an encroachment on the Property or if any improvements located on the Property encroach on lands of others, the encroachments shall be treated as a title defect. 10. ENVIRONMENTAL MA l'1 bRS. The Seller hereby represents and warrants to Buyer that: A. Environmental Representations and Warranties: 1. There are not abandoned wells, agricultural drainage wells, solid waste disposal sites, or underground storage tanks (as defined in Iowa Code Chapter 455B) located in or about the Property. 2 2. There are no actively used or abandoned septic tanks or systems on the Property, except as identified here: 3. There is, and has been, no hazardous waste stored, generated, treated, transported, installed, dumped, handled or placed in, on, or about the Property. 4. At no time have any Federal or State hazardous waste clean-up funds been expended with respect to any of the Property. 5. There has never been any solid waste disposal site or underground storage tank located in, or about the Property, nor has there been any release from an underground storage tank on real property contiguous to the Property which has resulted in any hazardous substance coming in contact with the Property. 6. Seller has not received any directive, citation, notice, letter, or other communication, whether written or oral, from the Environmental Protection Agency, the Iowa Department of Natural Resources, any other governmental agency with authority under any environmental laws, or any other person or entity regarding the release, disposal, discharge, or presence of any hazardous waste on the Property, or any violation of any environmental laws. 7. To the best of Seller's knowledge, neither the Property, nor the real property contiguous to the Property, nor the predecessors in title to the Property, are in violation of, or subject to, any existing, pending, or threatened investigation or inquiry by any governmental authority or to any removal or remedial obligations under any environmental laws. The foregoing representations and warranties, and the environmental indemnifications set forth in the following subparagraph B, shall survive the closing. In addition, the foregoing representations and warranties and the indemnifications provisions in this Offer shall not be affected by any study, investigation, or inspection of the Property by Buyer or the agents for Buyer. B. Environmental Indemnification. Seller agrees to indemnify, defend and hold harmless Buyer from and against any and all claims, demands, fines, penalties, causes of action, losses, damage, liabilities, expenses, and costs (including but not limited to court costs and reasonable attorneys' fees, which may include the value of services provided by Buyer's legal department or contract attorneys, incurred by Buyer to enforce this provision), asserted against or incurred by Buyer by reason of or arising out of the breach of any representation or warranty of Seller set forth above. C. Additional Environmental Provisions. Seller shall not store, generate, treat, transport, install, dump, handle, or place in, on, or about any portion of the Property any hazardous waste or hazardous substance as defined by applicable law, rule or regulation. If Seller receives any notice from any governmental authority or any other party regarding the release or presence or any hazardous waste or hazardous substance on any portion of the Property, then Seller shall immediately notify Buyer of such fact. In addition, Buyer or its agents shall have the right to enter upon the Property at any time to perform additional environmental studies. If at any time Buyer in its sole discretion determines that hazardous wastes or hazardous substances are present on any portion of the Property, Buyer may terminate this Offer immediately without further obligation or liability. 11. CONVEYANCE DOCUMENTS. Upon payment of the Offer Price, Seller shall convey the Property to Buyer by warranty deed, free and clear of all liens, restrictions, and encumbrances except as provided in this Offer. If requested by Buyer, Seller shall also provide a bill of sale on a form satisfactory to Buyer for purposes of transferring title to personal property items or mixed property items that are included in the sale. General warranties of the title shall extend to the time of delivery of the deed, excepting liens and encumbrances suffered or permitted by Buyer. 3 12. JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE. If Seller, immediately preceding acceptance of the Offer, holds title to the Property in joint tenancy with full rights of survivorship, and the joint tenancy is not later destroyed by operation of law or by acts of the Seller, then the proceeds of this sale, and any continuing or recaptured rights of Seller in the Property, shall belong to Seller as joint tenants with full rights of survivorship and not as tenants in common; and Buyer in the event of death of any Seller, agrees to pay any balance of the Offer Price due Seller under this Offer to the surviving Seller and to accept a deed and bill of sale from the surviving Seller consistent with this Offer. 13. JOINDER BY SELLER'S SPOUSE. Seller's spouse, if not a titleholder immediately preceding acceptance, executes this Offer only for the purpose of relinquishing alI rights of dower, homestead, and distributive share or in compliance with Iowa Code § 561.13 and agrees to execute the deed or bill of sale for this purpose. 14. STATEMENT AS TO LIENS. If Buyer intends to assume or take subject to a lien on the Property, Seller shall furnish Buyer with a written statement prior to closing from the holder of such lien, showing the correct balance due. 15. USE OF PURCHASE PRICE. At time of settlement, funds of the Offer Price may be used to pay taxes, assessments, and other liens, to pay for the cost of removing Seller's personal property and debris from the Property, to pay judgments or satisfy title defects, to pay costs of closing and settlement that are Seller's responsibility to pay, and to acquire outstanding interests of others, if any. 16. APPROVAL OF COURT. If the Property is an asset of any estate, trust, conservatorship, or receivership, this Offer shall be subject to court approval, unless declared unnecessary by Buyer's attorney. If necessary, the appropriate fiduciary shall proceed promptly to a hearing for court approval. In that event a court officer's deed shall be used to convey title. 17. REMEDIES OF THE PARTIES. Buyer and Seller are entitled to utilize any and all remedies or actions at law or in equity available to them, and the prevailing party shall also be entitled to obtain judgment for costs and attorney fees. 18. NOTICE. Any notice under this Offer shall be in writing and be deemed served when it is delivered by personal delivery or mailed by certified mail, addressed to the parties at the addresses given below. 19. NO REAL ESTATE AGENT OR BROKER. Neither party has used the service of a real estate agent or broker in connection with this transaction. 20. NO LEASES. Seller represents and warrants to Buyer that there are no leases, tenancies, or other rights of occupancy for use of any portion of the Property, other than those identified here: Seller agrees to indemnify and hold harmless Buyer from and against any and all claims, demands, causes of action, damages, losses or liabilities whatsoever, arising from or in connection with any alleged leasehold interest, tenancy or other right of occupancy or use for any portion of the Property. 21. VOLUNTARY ACQUISITION. The Seller, as owner of the Property, which has been damaged as result of flooding which is a presidentially declared disaster, acknowledges that Buyer has presented this Offer for the Property pursuant to Buyer's Voluntary Acquisition Program and the Seller's acceptance of this Offer is a voluntary acquisition. Seller represents and warrants that it is under no duress or coercive action by Buyer to accept this Offer, and Buyer will not pursue acquisition of this Property by eminent domain or other means if the Seller declines to accept this Offer as part of the Hazard Mitigation Grant Program for DR -1763. The Seller further acknowledges that if it accepts this Offer, it will be necessary to move permanently from the Property. 22, GENERAL PROVISIONS. In the performance of each part of this Offer, time shall be of the essence. Failure to promptly assert rights herein shall not, however, be a waiver of such rights or a waiver of any existing or subsequent default. This Offer shall apply to and bind the successors in interest of the parties. This Offer shall survive the closing. This Offer contains the entire agreement of the parties and shall not be amended except by a 4 written instrument duly signed by Seller and Buyer. Paragraph headings are for convenience of reference and shall not limit or affect the meaning of this Offer. Words and phrases herein shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. 23. OTHER CONDITIONS. A. Notwithstanding any signatures below by representatives of Buyer, this Offer is expressly subject to approval by the city council of Buyer. B. If Seller is an owner -occupant of the Property, then within one hundred eighty (180) days of acceptance of this Offer Seller must purchase or rent a decent, safe and sanitary housing unit located outside of Zone A, NFIP Flood Hazard map boundaries to be eligible for replacement housing benefits as described in the Plan. C. Acceptance of this Offer will be deemed to occur only if all persons with an ownership interest in the Property have signed this Offer by the date specified in paragraph 25 below. Buyer will permit an extension of an additional fourteen (14) days if Seller requests an extension in writing, and further extensions may be approved by Buyer under extraordinary circumstances beyond the reasonable control of Seller. If this Offer is not accepted by Seller on or before the expiration date or any approved extension will be deemed to be rejected by Seller. If Seller does not wish to accept this Offer, Buyer requests that Seller notify Buyer as soon as possible. 24. ENTIRE AGREEMENT. This Offer represents the entire agreement between the parties, superseding all prior or contemporaneous understandings, negotiations, discussions, or agreements between the parties with respect to the subject matter hereof. 25. ACCEPTANCE. When accepted, this Offer shall become a binding contract. If not accepted and delivered to Buyer on or before July 30. 2010, this Offer shall be null and void. Dated July 15, 2010. SELLER Jaines R. Sulen1lti ba 4M il ;• colnS, Jr. Address: 4 PI e A l BUYER — City of Waterloo, Iowa Mayor Buck Clar 715 Mulberry Street Waterloo, IA 50703 Attn: Tim Andera Approved by Waterloo City Council on ` 24,Q1, (0 by Resolution No. Aide 050 . Authorized b " 8 . Attest:_ �« , Date Approved:/21j/f"I/6 (Mayor) (Ci' Ierk) 5 Exhibit "A" 234 Greenwood Avenue: AUDITOR BARNES PLAT NO 4 WATERLOO LOTS 10, 11, 12, 13, 14, 15,16 and 17. Revised Statement of Determination of Fair Compensation Location of property: Address of property: Legal description: Owner(s) of record: 234 Greenwood Avenue 234 Greenwood Avenue See attached Exhibit "A" James R. Sulentic and Richard J. Malcolm, Jr. Interest to be acquired: ® Fee simple Fair Market Value: $ 87,000 The value stated above is believed to be fair compensation for the property, and no Tess than its fair market value. This amount is prior to required deductions (including Duplication of Benefits). An estimated amount of $ 0 will be deducted to avoid duplication of benefits. The following are the estimated duplication of benefits: Flood insurance: $ 0 Repair Assistance: $ 0 Private insurance: $ 0 Eligible Recipts to offset Duplication of Benefits: $ 0 The following are the estimated amount of other benefits received. These amounts are not deducted, however buyout proceeds will be reported to these entities. These entities may require repayment of some or all of the benefit. Temporary Housing Jumpstart Down Payment or Rental Assistance: $ 1,467 Assistance $ SBA Loan $ Other. $ These deductions are estimates. A final determination on deductions will be made prior to closing. The amount of compensation disregards any possible increase of the fair market value, which might result from this property acquisition project. The fair market value of this property is estimated to indicate the value before the event precipitating this property acquisition project. It does not reflect any economic depreciation as a result of that event. In the determination of compensation, fair market value is defined as, "the amount for which, in all probability, the property would be sold by a knowledgeable owner willing but not obligated to sell to a knowledgeable purchaser who desired but is not obligated to pay." This property has been valued in reference to its assessed value for property tax purpos- -- 715 , x/() Date MARIA ARMSTRONG From: MARIA ARMSTRONG Sent: Tuesday, July 27, 2010 2:10 PM To: ARIC SCHROEDER Subject: RE: Purchase Agreement Sounds good - I'll make a note of it then to be looking for it next week. Thank you, Maria From: ARIC SCHROEDER Sent: Tuesday, July 27, 2010 11:15 AM To: MARIA ARMSTRONG Subject: Purchase Agreement Maria, Page 1 of 1 Yesterday the Council approved the purchase agreement for 234 Greenwood Ave. The agreement document that I sent down in the Council Communication was a faxed copy. There are two owners that needed to sign, one of which is from out of town. I will want to hold off on having the Mayor and Clerk sign the agreement until I get the original. Jim Sulentic (the in -town owner) said he would get Richard Malcolm (the out of town owner) to sign the original copy and will bring that in, probably next Monday. Once I get it, I'II bring it down to your for signature by mayor and Clerk. Thanks, Aric 7/27/2010 JUL/16/2010/FRI 10:41 AM FAX No, P. 002 SECOND AND FINAL CONDITIONAL OFFER TO BUY PROPERTY TO: .lames ix. Sulentic and Richard 3. Malcolm, Jr. ("Seller') FROM: City of Waterloo, Iowa ("Buyer") Uptah the terms and conditions sct forth in this Conditional Offer to Boy Property (the "Offer"), Buyer hereby offers to buy, and the Seller by its acceptance agrees to sell, the real property situated in Waterloo, Black Hawk County, Iowa, locally known as 234 Oreenwood Aveirne, more particularly described as set forth in attached Exhibit "A", and legally described as in the abstract of title, together with any easements and appnrtauant servient estates, but subject to any reasonable easements of record for public utilities or roads, any zoning restrictions, customary restrictive covenants, and mineral reservations of record, if any (all of which interests are herein referred to as the "Property"). If this Offer to purchase the Property includes structures or property intim on adjacent land leased by Seller from a third -party, check here: I. PURCHASE PRICE. The Purchase Price shall be $$87.000.00, which shall, be due and payable in frill at closing, subject to such deductions as are provided for in this Offer, to be delivered to Seller upon performance of Seller's obligations and satisfaction of Buyer's contingencies, if any. The Purchase Pries it subject to deductions far duplication of benefits as described in paragraph IA below and, as applicable, insurance proceeds forproperty damage. The Purchase Price as so reduced is referred to herein as the Offer Price. As one condition for eligibility to receive pre -flood market value for the Property, Seller must certify, on a form satisfactory to Buyer, that he or she is a National of the United States or a qualified alien. IA. FLOOD BUYOUT ACQUISITION AND DEDUCTIONS. Seller acknowledges that Buyer is acting pursuant to the terms of a grant agreement with Iowa Homeland Security and Emergency Management Division in administering a voluntary property acquisition project (the "Project). The Project is funded by the Federal Emergency Management Agency (FEMA) and U.S. Department of Housing and Urban Development (HUD). To prevent duplication of federal assistance made to flood disaster victims, HUD and FEMA require that certain types of assistance received by the Seller from State, Federal and private sources for flood -related damage be deducted in determining the Offer Price payable to Seller, including FEMA. and/or SBA funds aicady disbursed. A duplication of benefits statement has been issued that describes benefits previously received and the estimated amounts of any corresponding deductions to the Purchase Price. Deductions are estimates only, and at final determination on deductions will be made before closing. 2 POSSESSION AND CLOSING. If Buyer timely performs all obligations, possession of the Property shall be delivered to Buyer at closing, unless an extension has base agreed to in writing by the parties consistent with the administrative plan (the "Plan") adopted by Buyer with respect to the Project. Closing shall occur no later than K Ty , j (60) days after Buyer's acceptance of this Offer, unless extended to a later date by the parties in writing but in any event after the approval of title by Buyer, satisfaction or waiver of other condngencies, and satisfactket of all Project conditions set forth in the Plan. Bayer does not agree to take possession subject to the rights ofncon-ovaner occupants, if any, now in possession. 3. REAL ESTATE TAXES. Seller shall pay taxes prorated to the closing date and any unpaid real estate taxes payable in prior years. Buyer shall pay all subsequent real estate taxes_ At closing Seller shall pay Bayer, or Buyer shall be given credit for, an amount equal to taxes from the first day of July prior to closing to the date of closing based upon the assessedvalue of the Property applicable to such fiscal year; provided that if the tax levy rate for such fiscal year has not been determined then the levy rate for the current fiscal year will be applied to determine the tax proration. Taxes shall be prorated as set forth in Iowa. Code § 427.2. 4. SPECIAL ASSESSMENTS. Seller shall pay at time of closing all inatalbnents of special assessments, which are a lien on the Property as of closing, and all prior installments thereof. Ail charges for solid waste removal, sewage and maintenance that are attributable to Seller's possession, including those for which assessments arise after closing, shall be paid by Seller. Any preliminary or deficiency assessment whidt cannot be discharged by payment shall be paid by Seller through an escrow account with sufficient funds to pay such liens when payable, with any mused funds returned to Seller. Buyer shall pay alt other special assessments or installments not payable by Seiler. 5. RISK OF LOSS AND INSURANCE. Seller shall bear the risk of loss or damage to the Property prior to closing. Seller agrees to maintain existing insurance, and Buyer may purchase additional insurance. In the event of substantial damage or destruction prior to closing, Seller shall promptly notify Buyer of same, and Buyer shall have the option to complete the closing and receive insurance proceeds regardless of the extent of damages or to declare this Offer null and void. The Property shall be deemed substantially damaged or destroyed if it cannot be repaired to its present condition on or before the closing date. 6. FIXTURES. Included with the Property shall be all fixtures that integrally belong to, are specifically adapted to or are a part of the real estate, whether attached or detached, such as attached carpeting, built-in appliances and accessories, light fixtures and bulbs, awning, shutters, window shades, rods, blinds, ceiling fans, TV tower, antenna, rotor and controls, door chimes, fireplace grates and andirons, mailbox, installed sump pump, garage door openers and controls, and bushes, shrubs, and other vegetation. Also included, if not rentals, are satellite dish, water softener and filtration systems, installed alarm devices, propane tanks, and all other fixtures not hereinafter reserved by Seller in writing. 7. CONDITION OF PROPERTY. The Property as of the date of this Offer, including buildings, grounds, and all improvements, will be preserved by the Seller in its present condition until possession, ordinary wear and tear excepted. Except as expressly set forth in this Offer, Seller sells the Property "AS IS" and makes no warranties, expressed or implied, as to the condition of the Property. Seller agrees to remove from the Property prior to possession all debris and personal property that is not included in this Offer, including but not limited to vehicles, vehicle parts, appliances, furniture and furnishings, storage containers, household cleaners and solvents, construction materials, firewood, and any other item of property that is not a fixture, unless Buyer is permitted an extension of time after closing pursuant to the Plan. Buyer shall be permitted to make a "walk through" inspection of the Property prior to closing as provided in the Plan. After acceptance of this Offer by Buyer, Buyer may, at its sole expense, conduct such inspections, investigations, and inventories of the Property as it deems reasonable or necessary, and for such purposes Seller hereby grants to Buyer, its employees, agents and contractors, the right to enter upon the Property at reasonable times and upon reasonable advance notice (oral or written). 8. ABSTRACT AND TITLE. Seller shall promptly provide to Buyer an abstract of title to the Property, if Seller possesses an abstract. Buyer shall cause the abstract of title to be updated or prepared at Buyer's sole expense. The abstract shall show marketable title in Seller in conformity with this Offer, Iowa law, and title standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect title. If closing is delayed due to Seller's inability to provide marketable title, this Offer shall continue in force and effect until either party rescinds the Offer after giving ten (10) days' written notice to the other party. The abstract shall become the property of Buyer when the Offer Price is paid in full. Seller shall pay the costs of any additional abstracting and title work due to any act or omission of Seller, including transfers by or the death of Seller or its assignees. After all valid objections have been satisfied or provided for, Seller shall have no obligation to pay for further abstracting, excepting any made necessary by its own affairs. Unless stricken, the abstract shall be obtained from an abstracter qualified by the Guaranty Division of the Iowa Housing Finance Authority. 9. SURVEY. If a survey is required under Iowa Code Chapter 354, or city or county ordinances, Buyer shall pay the costs thereof. Buyer may, at its expense prior to closing, have the Property surveyed and certified by a registered land surveyor. If the survey shows an encroachment on the Property or if any improvements located on the Property encroach on lands of others, the encroachments shall be treated as a title defect. 10. ENVIRONMENTAL MATTERS. The Seller hereby represents and warrants to Buyer that: A. Environmental Representations and Warranties: 1. There are not abandoned wells, agricultural drainage wells, solid waste disposal sites, or underground storage tanks (as defined in Iowa Code Chapter 455B) located in or about the Property. 2 2. There are no actively used or abandoned septic tanks or systems on the Property, except as identified here: 3. There is, and has been, no hazardous waste stored, generated, treated, transported, installed, dumped, handled or placed in, on, or about the Property. 4. At no time have any Federal or State hazardous waste clean-up funds been expended with respect to any of the Property. 5. There has never been any solid waste disposal site or underground storage tank located in, or about the Property, nor has there been any release from an underground storage tank on real property contiguous to the Property which has resulted in any hazardous substance coming in contact with the Property. 6. Seller has not received any directive, citation, notice, letter, or other communication, whether written or oral, from the Environmental Protection Agency, the Iowa Department of Natural Resources, any other governmental agency with authority under any environmental laws, or any other person or entity regarding the release, disposal, discharge, or presence of any hazardous waste on the Property, or any violation of any environmental laws. 7. To the best of Seller's knowledge, neither the Property, nor the real property contiguous to the Property, nor the predecessors in title to the Property, are in violation of, or subject to, any existing, pending, or threatened investigation or inquiry by any governmental authority or to any removal or remedial obligations under any environmental laws. The foregoing representations and warranties, and the environmental indemnifications set forth in the following subparagraph B, shall survive the closing. In addition, the foregoing representations and warranties and the indemnifications provisions in this Offer shall not be affected by any study, investigation, or inspection of the Property by Buyer or the agents for Buyer. B. Environmental Indemnification. Seller agrees to indemnify, defend and hold harmless Buyer from and against any and all claims, demands, fines, penalties, causes of action, losses, damage, liabilities, expenses, and costs (including but not limited to court costs and reasonable attorneys' fees, which may include the value of services provided by Buyer's legal department or contract attorneys, incurred by Buyer to enforce this provision), asserted against or incurred by Buyer by reason of or arising out of the breach of any representation or warranty of Seller set forth above. C. Additional Environmental Provisions. Seller shall not store, generate, treat, transport, install, dump, handle, or place in, on, or about any portion of the Property any hazardous waste or hazardous substance as defined by applicable law, rule or regulation. If Seller receives any notice from any governmental authority or any other party regarding the release or presence or any hazardous waste or hazardous substance on any portion of the Property, then Seller shall immediately notify Buyer of such fact. In addition, Buyer or its agents shall have the right to enter upon the Property at any time to perform additional environmental studies. If at any time Buyer in its sole discretion determines that hazardous wastes or hazardous substances are present on any portion of the Property, Buyer may terminate this Offer immediately without further obligation or liability. 11. CONVEYANCE DOCUMENTS. Upon payment of the Offer Price, Seller shall convey the Property to Buyer by warranty deed, free and clear of all liens, restrictions, and encumbrances except as provided in this Offer. If requested by Buyer, Seller shall also provide a bill of sale on a form satisfactory to Buyer for purposes of transferring title to personal property items or mixed property items that are included in the sale. General warranties of the title shall extend to the time of delivery of the deed, excepting liens and encumbrances suffered or permitted by Buyer. 3 12. JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE. If Seller, immediately preceding acceptance of the Offer, holds title to the Property in joint tenancy with full rights of survivorship, and the joint tenancy is not later destroyed by operation of law or by acts of the Seller, then the proceeds of this sale, and any continuing or recaptured rights of Seller in the Property, shall belong to Seller as joint tenants with full rights of survivorship and not as tenants in common; and Buyer in the event of death of any Seller, agrees to pay any balance of the Offer Price due Seller under this Offer to the surviving Seller and to accept a deed and bill of sale from the surviving Seller consistent with this Offer. 13. JOINDER BY SELLER'S SPOUSE. Seller's spouse, if not a titleholder immediately preceding acceptance, executes this Offer only for the purpose of relinquishing all rights of dower, homestead, and distributive share or in compliance with Iowa Code § 561.13 and agrees to execute the deed or bill of sale for this purpose. 14. STATEMENT AS TO LIENS. If Buyer intends to assume or take subject to a lien on the Property, Seller shall furnish Buyer with a written statement prior to closing from the holder of such lien, showing the correct balance due. 15. USE OF PURCHASE PRICE. At time of settlement, funds of the Offer Price may be used to pay taxes, assessments, and other liens, to pay for the cost of removing Seller's personal property and debris from the Property, to pay judgments or satisfy title defects, to pay costs of closing and settlement that are Seller's responsibility to pay, and to acquire outstanding interests of others, if any. 16. APPROVAL OF COURT. If the Property is an asset of any estate, trust, conservatorship, or receivership, this Offer shall be subject to court approval, unless declared unnecessary by Buyer's attorney. If necessary, the appropriate fiduciary shall proceed promptly to a hearing for court approval. In that event a court officer's deed shall be used to convey title. 17. REMEDIES OF THE PARTIES. Buyer and Seller are entitled to utilize any and all remedies or actions at law or in equity available to them, and the prevailing party shall also be entitled to obtain judgment for costs and attorney fees. 18. NOTICE. Any notice under this Offer shall be in writing and be deemed served when it is delivered by personal delivery or mailed by certified mail, addressed to the parties at the addresses given below. 19. NO REAL ESTATE AGENT OR BROKER. Neither party has used the service of a real estate agent or broker in connection with this transaction. 20. NO LEASES. Seller represents and warrants to Buyer that there are no leases, tenancies, or other rights of occupancy for use of any portion of the Property, other than those identified here: Seller agrees to indemnify and hold harmless Buyer from and against any and all claims, demands, causes of action, damages, losses or liabilities whatsoever, arising from or in connection with any alleged leasehold interest, tenancy or other right of occupancy or use for any portion of the Property. 21. VOLUNTARY ACQUISITION. The Seller, as owner of the Property, which has been damaged as result of flooding which is a presidentially declared disaster, acknowledges that Buyer has presented this Offer for the Property pursuant to Buyer's Voluntary Acquisition Program and the Seller's acceptance of this Offer is a voluntary acquisition. Seller represents and warrants that it is under no duress or coercive action by Buyer to accept this Offer, and Buyer will not pursue acquisition of this Property by eminent domain or other means if the Seller declines to accept this Offer as part of the Hazard Mitigation Grant Program for DR -1763. The Seller further acknowledges that if it accepts this Offer, it will be necessary to move permanently from the Property. 22. GENERAL PROVISIONS. In the performance of each part of this Offer, time shall be of the essence. Failure to promptly assert rights herein shall not, however, be a waiver of such rights or a waiver of any existing or subsequent default. This Offer shall apply to and bind the successors in interest of the parties. This Offer shall survive the closing. This Offer contains the entire agreement of the parties and shall not be amended except by a 4 JUL/16/2010/FRI 10:42 AM FAX No, P. 003 written instrument duly signed by Seiler and Buyer. Paragraph readings are for convenience of reference and shall not limit or affect the meaning ofthis Offer. Words and phrases herein shall be construed as in the singular or phral number, and as masculine, feminine or neuter gender according to the context. 23. OTHER CO1 DITIONS. A. Notwithstanding any signatures below by representatives of Buyer, this Offer is expressly subject to approval by the city council of Buyer. B. If Seller is an owner -occupant of the Property, them within one hundred eighty (180) days of acceptance of this Offer Seller must purchase or rent a dent safe and sanitary housing unit located outside dame A, NFIP Flood Hazard map boundaries to be eligible for replacement housing benefits as described in the Plan. C. Acceptance of this Offer will be deemed to occur only if all persons with an ownership interest in the Property have signed this Offer by the date specified in paragraph 25 below. Buyer will permit an extension of an additional fourteen (14) days if Seller requests an extension in writing, and further extensions may be approved by Buyer wider extraordinary circumstances beyond the reasonable control of Seller, If this Offer is not accepted by Seller on or before the expiration date or any approved extension will be deemed to be rejected by Seller, If Seller does not wish to accept this Offer, Buyer requests that Seller notify Buyer as soon as possible. 24. ENTIRE AGREEMENT. This Offer represents the entire agreement between the parties, superseding all prior or contemporaneous understandings, negotiations, discussions, or agreements between the parties with respect to the subject matter hereof. 25. ACCEPTANCE. When accepted, this Offer shall become a binding contract. If not aeccpted and delivered to Buyer on or before July 30. 2010, this Offer shall be null and tyroid. Dated July 15,201c1. SELLER Address: f! fI A m e.0! z l: go IVA 11L �7?"� S,17„a BUYER — City ofWaterloo, Iowa By: Mayor Buck Clark 715 Mulberry Street Waterloo, IA 50703 Attn: Tim Andera Approved by Waterton City Council on by Resolution No. Authorized by: Attest: Date Approved: (Mayor) (City Clerk) 5 Exhibit "A" 234 Greenwood Avenue: AUDITOR BARNES PLAT NO 4 WATERLOO LOTS 10, 11, 12, 13, 14, 15, 16 and 17.