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HomeMy WebLinkAboutFriends of Faith Retirement Homes, Inc. - Right of Entry AgreementRIGHT OF ENTRY AGREEMENT THIS RIG T OF ENTRY AGREEMENT ("Agreement") is made as of this day of .-u„Pr\t,�.SA, 2019, between the CITY OF WATERLOO, IOWA, an Iowa municipal corporatioiri ("Owner"), and FRIENDS OF FAITH RETIREMENT HOMES, INC., an Iowa non- profit corporation doing business as Friendship Village ("Friendship Village"). 1. Owner grants to Friendship Village the right to enter upon and use the parcel of land (the "Property") in the city of Waterloo, Black Hawk County, Iowa, commonly described as the western portion of Bontrager Park and shown on the map attached hereto as Exhibit A and hereby made a part hereof, for purposes of: (a) establishing parking and a staging site for outdoor storage of materials and equipment for reconstruction of the Friendship Village campus at Park Lane (the "Project"); (b) temporary employee parking; and/or (c) temporary accessory uses during the Project term (collectively, the "Permitted Uses"). 2. The term of this Agreement shall commence on the date hereof and terminate 90 days after a final Certificate of Occupancy allowing occupancy and use of the entire Project is issued (the "Termination Date"). 3. Friendship Village shall also have the right to use the Property for the Permitted Uses during the term of this Agreement, and shall take such reasonable and necessary steps throughout the term to reduce secondary impacts and nuisances to the surrounding neighborhood. Prior to the Termination Date, Friendship Village shall restore the condition of the Property to its original condition it was found in, with proper seeding and grading if necessary. 4. After Friendship Village has restored the Property to its original condition, Friendship Village shall notify Owner so that Owner may inspect Friendship Village's work on the Owner's Property. Owner shall either advise Friendship Village of deficiencies in Friendship Village's restoration of the Property, or approve and accept the restoration of the Property by Friendship Village. Owner acknowledges that the restoration of the Property by Friendship Village after completion of the Project is intended generally to restore the Property to its condition on the date hereof, not to other specifications elected by the Owner. 5. Friendship Village agrees to indemnify and save harmless Owner against and from any and all liability, loss, costs and expense arising out of personal injury to or death of persons whomsoever, or loss or destruction of or damage to property, where such personal injury, death, loss, destruction or damage is caused by the negligence or intentional misconduct of Friendship Village, Friendship Village's agents, contractors, servants or licensees, in entering upon, using or otherwise conducting activities on or about the Property pursuant to this Agreement. To the extent permitted by applicable law, Owner shall defend, indemnify, and hold harmless Friendship Village from and against losses, damages, costs and expenses (including fines, penalties and reasonable attorney's fees) which may result from the presence of any Hazardous Substances on or near the Property, except to the extent released on or under the Property by Friendship Village. Friendship Village shall defend, indemnify, and hold harmless Owner from and against losses, damages, costs and expenses (including fines, penalties and reasonable attorney's fees) which may result from the release by Friendship Village of any Hazardous Substances on or under the Property. "Hazardous Substance" shall mean any hazardous, toxic, dangerous or extremely dangerous substance, material or waste, which is or becomes regulated by the United States government, the State of Iowa, or any local governmental entity, and shall include, without limitation, any flammables, explosives, radioactive materials, hazardous materials, hazardous waste, hazardous or toxic substances or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Hazardous Materials Transportation Act, as amended, the Resource Conservation Recovery Act, as amended, and/or the regulations promulgated pursuant thereto. The rights and obligations set forth in this Section 5 shall survive the termination or expiration of this Agreement. 6. Owner hereby represents that: (i) it has the full right and authority to enter into this Agreement and consummate the transaction contemplated by this Agreement; (ii) the zoning regulations of Owner permit the parking and outdoor equipment and material storage and other Permitted Uses by Friendship Village which are contemplated by this Agreement; and (iii) Owner has received no notice from any entity indicating the presence of any Hazardous Substance on or under the Property or of any other violation of any applicable environmental law, rule, ordinance, or regulation by or at the Property. 7. Friendship Village shall not knowingly cause or permit any Hazardous Substance to be brought upon, kept, or used in or about the Property in violation of applicable law by its employees, agents, contractors, guests, or invitees. If Friendship Village breaches such obligation, or if contamination of the Property from Hazardous Substances is caused or contributed to by the acts or omissions of Friendship Village, its officers, directors, employees, agents, contractors, guests, or invitees (a "Breaching Party") or otherwise occurs for which the Breaching Party is legally liable, then the Breaching Party shall indemnify, defend, and hold harmless the Owner as provided in Section 5 above. Without limiting the foregoing, if the presence of any Hazardous Substance caused or permitted by the Breaching Party results in any contamination of the Property, Friendship Village shall promptly notify Owner of such contamination and shall, at its sole expense, take all actions as are necessary to return the contaminated area to the condition existing prior to the introduction of any such Hazardous Substance; provided that Friendship Village shall first obtain Owner's approval of any such action. The parties acknowledge Friendship Village, its employees, agents, and contractors, will be using machinery to carry out the Project and said machinery necessarily requires for proper operation the use of substances defined as Hazardous Substances for purposes of this Agreement. The use of such substances for said purposes is permitted, provided that Friendship Village observes the requirements of this Agreement in the event that any Hazardous Substance is spilled, discharged or otherwise released so as to cause contamination of the Property. 8. Friendship Village shall permit Owner and its agents, employees and representatives to enter upon the Property to inspect the Property so long as Owner provides reasonable advance 2 notice to Friendship Village and does not interfere in any material way with Friendship Village's use of the Property. 9. Any notices required or desired to be given under this Agreement shall be in writing and personally served, given by overnight express delivery, or given by mail. Any notice given by mail shall be sent, postage prepaid, by certified mail, return receipt requested, addressed to the party to receive at the following address or at such other address as the party may from time to time direct in writing: Owner: Friendship Village: CITY OF WATERLOO, IOWA Attn: City Engineer 715 Mulberry Street Waterloo, Iowa 50703 Telephone: (319) 291-4312 Facsimile: (319) 291-4262 FRIENDS OF FAITH RETIREMENT HOMES, INC. ATTN: Lisa Gates, President/CEO 600 Park Lane Waterloo, Iowa 50702 Telephone: (319) 291-8100 Facsimile: (319) 291-8324 Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be deemed to be given three (3) days after deposit with the United States Postal Service. Additionally, Friendship Village shall provide Owner with names and contact information for Friendship Village's Project representative and its contractor's site representative. 10. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Iowa. 11. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and assigns. 12. Any provisions that require observance or performance subsequent to termination shall survive termination. 13. Should either party institute any action or proceeding to enforce or interpret this Agreement or any provision hereof, for damages by reason of any alleged breach of this Agreement or of any provision hereof, or for a declaration of rights hereunder, the prevailing party in any such action or proceeding shall be entitled to receive from the other party all costs and expenses, including reasonable attorneys' fees incurred by the prevailing party in connection with such action or proceeding. The term "action or proceeding" shall mean and include actions, proceedings, suits, arbitrations, appeals and other similar proceedings. With respect to any court action to enforce or defend any claim, counterclaim, cause of action, or any matter arising from or in any way related 3 to this Agreement, THE PARTIES HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL AND AGREE TO TAKE ANY STEPS NECESSARY TO WAIVE SAID RIGHTS. IN WITNESS WHEREOF, Owner and Friendship Village have caused this Right of Entry Agreement to be executed by their duly authorized representatives as of the day and year first above written. Owner: CITY OF WATERLOO, IOWA an Iowa municipal corporation Friendship Village: By: 4 415 7.t4d-- Title: p FRIENDS OF FAITH RETIREMENT HOMES, INC. an Iowa non-profit corporation By: Lisa Gates, its President/CEO 4 EXHIBITA Black Hawk County, Iowa Le®end hospital airport +."-- fir•dept parks_ parks wpm • Railroads Townships .• sections Water 0 Parcels N Rights -of -Way • Township . City Lines railr ad dim roaddim watername_ parceldim foadname_ Aerial Photos Black Hawk Co. ••• Approximate Boundary Black Hawk County, Iowa 316 East 5th Street terloo, Iowa 50703-4774 Phone: (319) 833-3002 Fax: (319) 833-3070 E-mail: auditor@co.blackhawkia.usorg, Map Disclaimer. This map does not represent a survey. No liability is assumed for the -ccuracy of the data delineated herein, either expressed or implied by Black Hawk County, the Black Hawk County Assessor or their employees This map iscompiled from •fficial records, including plats, surveys, recorded deeds, and contracts, and only contains information required for local govemment purposes See the recorded documents for more detailed legal information.