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HomeMy WebLinkAboutDMJ Development, LLC - Early Access Agreement - 4.17.2023EARLY ACCESS AGREEMENT This Early Access Agreement (the "Agreement") is entered into as of April C7-frL , 2023, by and between the City of Waterloo, Iowa ("City") and DMJ Development, LLC, a North Dakota limited liability company (the "Company"). WHEREAS, City and Company are in discussions relating to a proposed development agre ment (the "DA") concerning a project to be undertaken by Company on certain real property described as Lots 5 and 6 and Tract B of Waterloo Air and Rail Park 3rd Addition, located in the East Waterloo Unified Urban Renewal and Redevelopment Plan Area; and WHEREAS, the parties desire that Company have access to the Project Property to begin certain activities before the Project Property is conveyed to Company. NOW, THEREFORE, in consideration of the future transactions contemplated by the parties as described above, and in consideration of the mutual promises exchanged herein, the parties agree as follows: 1. City hereby grants to Company the right to enter upon the Project Property to begin development activities, including but not limited to survey work, earth moving and construction of building footings and foundation. The te,ui of this Agreement shall be from the date hereof until the date that City delivers a deed to Company for the Project Property pursuant to a development agreement. Company's right to conduct its activities upon the Project Property is expressly made subject to prior receipt of applicable zoning, building, and other regulatory approvals. 2. Company shall, at its own expense, procure and maintain comprehensive public liability insurance in the amount of not less than $1,000,000 per occurrence. Such insurance shall cover liability arising from the acts or omissions of Company, its employees, contractors and agents, and shall protect the City, its officers, officials, employees, and agents, against any and all claims, damages, costs or expenses (including but not limited to reasonable attorneys' fees and expenses) arising from or in connection with injury or death to any person or persons, or loss of or damage to property, by reason of any casualty accident or other occurrence on or about the Project Property during the term of this Agreement. Certificates or copies of said policies, naming the City as an additional insured, shall be delivered to City before Company, its employees, contractors, or agents, enter upon the Project Property for any purpose. 3. Company agrees to be responsible for any liability which may arise out of the acts or omissions of Company, its employees, agents and contractors, on or about the Project Property, and in said connection Company agrees to indemnify and hold harmless City, its officials, officers, employees and agents, from and against any and all claims, demands, actions, causes of action, damages, costs, fines, penalties, and liabilities of any type or nature whatsoever, including but not limited to reasonable attorneys' fees, arising out of said acts or omissions, whether sounding in law or equity, in tort or contract, by statute, or otherwise. The duties of Company under this paragraph shall survive the expiration or termination of this Agreement. 4. If for any reason the contemplated sale and purchase of the Project Property between the parties is canceled or otherwise does not occur, then at its sole expense Company shall promptly remove from the Project Property all of its personal property and materials or debris that it has deposited on the Project Property during the term hereof and restore, as nearly as possible, the condition of the Project Property to that which existed upon Company's initial entry upon the Project Property hereunder, except as otherwise permitted by express written consent of City. 5. In connection with development activities for Phase 1 and storm water improvements on Tract B, all as described in the DA, and because Company may not take ownership of Lot 6 for purposes of Phase 2 development until a much later time, Company shall level, grade and seed Lot 6 and generally restore its condition as nearly as possible to the condition in which it existed upon Company's initial entry upon the Project Property hereunder, except as otherwise permitted by express written consent of City. 6. Notwithstanding this Agreement, the parties agree to work cooperatively in good faith to finalize the terms of the DA as expeditiously as possible. 7. The rights and duties of Company under this Agreement may not be assigned without the prior written consent of City. Certain capitalized terms, used, but not defined, herein have the meaning given to them in the DA. This Agreement is the entire agreement of the parties concerning the subject matter hereof. It may not be modified or amended without the prior written consent of the parties. This Agreement is binding on the parties and the respective successors and assigns of each. This Agreement may be executed in multiple counterparts, each of which, including signed counterparts transmitted by facsimile or other electronic means, shall be deemed an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties hereto have executed this Early Access Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA DMJ DEVELOPMENT, L By: Quetttirt 9-UriBy: Quentin M. Hart, Mayor David Gadberry Managing Member IXXXXXXXXXXXXX Deputy City Clerk 2