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HomeMy WebLinkAboutGalleria De Paco & Coffee Shop-7/19/2010The Parties m N d • N m 0 Disaster Recovery Expanded Business Rental Assistance Program Contract CONTRACT # EBRAP003 AWARD DATE: Iy 1 , 2010 June, 2009 PROJECT COMPLETION DATE: GRANTOR: 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: Galleria De Paco & Coffee Shop 622 Commercial St Waterloo, Iowa 50701 CONTACT PERSON: Jacky Rosic Email: Phone: (319) 610-1992 Fax: GRANT AMOUNT ("Award"): PROJECT DESCRIPTION: This grant is provided by the Grantor to the Business to reimburse the Business for costs of certain machinery and equipment, office equipment, furniture, supplies and inventory physically damaged (defined herein) in the Disaster Event (defined herein) as described in its application (the "Project"). 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 Expanded Business Rental Assistance Program General Provisions (November 2009) and all attachments or exhibits thereto, (2) Exhibit B -Business's Application for Disaster Recovery Expanded Business Rental Assistance Program, and (3) Exhibit C — List of. Applicable Federal Laws. The Parties have entered into this Contract, effective as of the last date state below (the "Contract Effective Date"). FOR THRANTOR: 4 4812-6247-1173\2\419462\00019 7/13/2010 Signatur6, v\ ' _tf Print Name and,Title Date EXHIBIT A DISASTER RECOVERY EXPANDED BUSINESS RENTAL ASSISTANCE PROGRAM GENERAL PROVISONS (November 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 Grantor 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 ("IDED") to the Grantor 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 Grantor's control, may, in the sole discretion of the Grantor, 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 Grantor determines Business received without fulfillment of Business's obligations under this Contract, plus applicable costs described in Section 14, all as further provided herein. 4. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS. No Award funds will be disbursed to the Business until: (a) the Business and the Grantor 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 Grantor of requests for disbursement, in form and content acceptable to Grantor, 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 Grantor such supporting evidence as may be reasonably requested by Grantor 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. ALLOWABLE COSTS. The Award shall consist of an amount equal to up to 75% of the replacement costs of the Business associated Contract #EBRAP003 2 with machinery and equipment, office equipment, fumiture, supplies and inventory physically damaged by any of the floods, storms and tornados which resulted in the declaration of a major disaster under Title IV of the Robert T. Stafford Disaster Release and Emergency Act (42 U.S.C. Section 5721 et seq.) designated by the Federal Emergency Management Administration as Disaster No. 1763 that occurred between May 25, 2008 and August 13, 2008 (the "Disaster Event"). For purposes of this Contract, "physically damaged" means physical damage caused by flooding including overland flow, or physical damage caused by tomado; provided that damage caused by sanitary or storm sewer backup is not included unless IDED determines that such damage was a direct result of the Disaster Event. 6. SUSPENSION OF DISBURSEMENT. Upon the occurrence of an Event of Default (as defined in Section 11) the Grantor may suspend payments to Business until such time as the default has been cured to Grantor'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 disbursed to Business are not immediately utilized, temporarily idle Award funds held by the Business may be invested in accordance with the laws of the State of Iowa (the "State"), including but not limited to the provisions of Iowa Code chapter 12C conceming 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 retumed to the Grantor within thirty (30) days after the Project Completion Date. Within ten (10) days of receipt of a written request from Grantor the Business shall inform the Grantor 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 Grantor 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. 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 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. f. Operation of Business. The Business was open and operating at the time of the Disaster Event and remains open and operating on the Contract #EBRAP003 3 date hereof. g. Application. All statements of the Business contained in its Application, attached hereto as Exhibit B, including any attachments and documentation with respect to damage to its machinery and equipment, office equipment, furniture, supplies and inventory are true and correct as of the date hereof. h. Business location. The Business is located in or is planning to locate in a business rental space that was physically damaged by the Disaster Event. i. Physically Damaged Property. The Business owned machinery and equipment, office equipment, fumiture, supplies and inventory, which were physically damaged by the Disaster Event. j. Limitations on Award funds. No Award funds are or have been requested for construction, maintenance or leaseholder expenses, the purchase or lease of vehicles or leased equipment. k. No Residential Facilities. The Business has not requested any funds for reimbursement of physical damage to any portion of its property located in residential facilities either prior to or after the Disaster Event. 9. EFFECTIVE DATE OF REPRESENTATIONS AND WARRANTIES. The warranties and representations of Section 8 are made as of the Award Date set forth on page one (1) of this Contract 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 Grantor. 10. COVENANTS OF BUSINESS. The Business covenants that: a. 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 Grantor as due and payable. b. Required Reports. For the duration of this Contract the Business shall provide the Grantor with such reports as requested by the Grantor to assist in evaluation of the Program's effectiveness and to determine compliance with this Contract. Business shall promptly comply with all such requests. c. Disbursement Requests. Business shall prepare, sign and submit disbursement requests as specified in this Contract in the form and content required by Grantor. Business shall review all disbursement requests and verify that claimed expenditures are allowable costs. Business shall maintain documentation adequate to support the claimed costs. d. Inspection and Audit. Business shall permit the Grantor and its duly authorized representatives, the U.S. Department of Housing and Urban Development ("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 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 Grantor and the Grantor's duly authorized representatives the finances and affairs of the Business) at such reasonable time and reasonable intervals as the Grantor may designate. Routine inspections and audits performed by Grantor will be at Grantor's expense. In the event any special audits are conducted at Grantor's request, the cost of such special audits will be at Business's expense. e. 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 those laws listed in Exhibit C attached hereto, and IDED's administrative rules and guidelines for the Disaster Recovery Expanded Business Rental Assistance Program, as such laws, rules, regulations, orders, administrative rules and guidelines may be amended from time to time. f. Use of Award Funds. Business shall use Award funds extended under this Contract solely for the purposes set forth in this Contract. g. Notice of Proceedings. Business shall promptly notify the Grantor of the initiation of any claims, lawsuits, or other proceedings brought against Business, which would adversely impact the Project. h. Accounting Records. Business shall maintain its books, records and all other evidence pertaining to this Contract in accordance with generally accepted accounting Contract #EBRAP003 4 principles and such other procedures specified by Grantor. These records shall be available to Grantor, 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 Grantor 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 Grantor. j. Indemnification. Business shall indemnify, defend and hold harmless the Grantor, 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 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 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's breach of the terms and covenants set forth herein, including but not limited to claims made against Grantor by IDED and claims relating to Grantor's inability to comply with agreements with IDED as a result of Business's breach of the terms and covenants of this Contract. k. 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 Grantor or the Business as a sub -recipient of CDBG funds in the form of the Award funds under this Contract. 11. 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 fumished by it pursuant to this Contract, or in connection with any of the above, proves untrue in any material manner as determined in the sole discretion of the Grantor. 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 Grantor may, at its sole discretion, take any or all of the following actions: a. Terminate this Contract and all of the obligations of Grantor under this Contract on the date stated in such notice; b. Suspend pending disbursements and terminate further disbursements of Award funds, and/or c. Declare the total amount of Award funds disbursed to Business, or any portion thereof in an amount determined in the sole discretion of the Grantor 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. The Business shall give the Grantor notice of any Event of Default of which Business becomes aware. If Grantor receives such notice or has reasonable cause to believe that an Event of Default has occurred under this Contract, the Grantor shall issue a written Notice Contract #EBRAP003 5 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. 14. EXPENSES. Business agrees to pay to the Grantor all expenses reasonably incurred or paid by Grantor 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 hereto 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, 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 Grantor, 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. 17. GOVERNING LAW. This Contract and the rights and duties of the parties hereto shall be governed by, and construed in accordance with the intemal 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 Grantor. 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 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 Grantor shall have the authority to reasonably assess whether Business has complied with the terms of this Contract. 22. WAIVERS. No waiver by the Grantor 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 Grantor in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by Grantor 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 #EBRAP003 6 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 Grantor. 27. TERMINATION. (a) This Contract may be terminated in the following circumstances: (i). By the Grantor as a result of the Grantor's determination of an Event of Default which remains uncured after any notice and cure period provided pursuant to this Contract; (ii). By the Grantor as a result of the termination or reduction of funding to the Grantor, or a unilateral modification made by IDED to the agreement between the Grantor and IDED pursuant to which the Award funds are provided or any other event or circumstance beyond the control of the Grantor that may cause the Grantor to terminate this Contract, as determined in the sole discretion of the Grantor; or (iii). Upon written mutual agreement of the Grantor 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 continuing 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. 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. b. Exhibit A —Disaster Recovery Expanded Business Rental Assistance Program General Provisions (November 2009). c. Exhibit B- Business's Application for Disaster Recovery Expanded Business Rental Assistance Program Financial Assistance. d. Exhibit C — List of Applicable Federal Laws. 29. INTEGRATION. This Contract contains the entire understanding between the Business and the Grantor relating to this Award under the IDED Disaster Recovery Expanded Business Rental Assistance Program and any Contract #EBRAP003 7 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.