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HomeMy WebLinkAboutWaterloo Development Corporation - Dev Agmnt - 9.5.2023 (RECORDED) 111111 111111 II I III I I II II III I I I II Doc ID: 012083600022 Type: GEN Recorded: 03/14/2024 at 11:25:37 AM Fee Amt: $112.00 Page 1 of 22 Black Hawk County Iowa SANDIE L. SMITH RECORDER File2024-000 1 1 1 74 * Oct l ct of wctk'iAoa Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50704 Phone(319)234-5701 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of 4 , 2023 by and between Waterloo Development Corporation (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known as the Downtown Waterloo Urban Renewal and Redevelopment Plan Area (the "Urban Renewal Area"), pursuant to the Downtown Waterloo Urban Renewal and Redevelopment Plan (the "Urban Renewal Plan"). B. Company is willing and able to undertake a project to make site preparations for future development on property located in the Urban Renewal Area, and legally described on Exhibit "A" attached hereto (the "Property"). C. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal, and the City further believes that the project is in the vital and best interests of the City and that the project and such incentives are in accordance with the public purposes and provisions of applicable State and local laws and requirements under which the project has been undertaken and is being assisted. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: A3 1. Lease of Property. Subject to the terms hereof, City shall lease the Property to Company in its as-is condition pursuant to a separate ground lease between the parties (the "Lease"). City makes no representation or warranty as to the condition of the Property or its suitability for Company's purposes. Company is responsible to conduct its own due diligence and inspections. 2. Company Activities. Company shall prepare the Property for future development as a hard-surface sports court facility. Company's activities (the "Work") shall include, but are not limited to, site preparation, earthwork, construction of site utilities for public infrastructure, soil testing and project design, all as more specifically detailed in other documentation exchanged between the parties. Company agrees that the Work shall be conducted in accordance with the terms of this Agreement, the Urban Renewal Plan, and all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. City may require that Company submit specific designs and site plans for City review and approval. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Work may be lawfully performed. The Property, the Work, and all other site preparation and development-related work to make any of the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project." 3. Construction Plans. Company agrees that it will cause the Work to be performed on the Property in conformance with construction plans (the "Plans") that have been submitted to the City. Company agrees that the scope and scale of the Work shall not be significantly less than the scope and scale of such improvements as detailed and outlined in the Plans. If any material modification in the scope, scale or nature of the Plans is proposed, Company shall submit modified Plans (the "Modified Plans") to the City for review. Modified Plans shall be subject to approval by the City as provided in this Section. City shall approve the modified Plans in writing if: (a) the Modified Plans conform to the terms and conditions of this Agreement; (b) the Modified Plans conform to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations and City permit and design review requirements; (d) the Modified Plans are adequate for purposes of this Agreement to provide for the construction of the Improvements, and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Plans or Modified Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Plans or Modified Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Plans or Modified Plans must be rejected in writing by City within thirty (30) days of submission or shall be deemed to have been approved by the City. If City 2 rejects the Plans or Modified Plans in whole or in part, Company shall submit new or corrected Plans or Modified Plans within thirty (30) days after receipt by Company of written notification of the rejection, accomplished by a written statement of the City specifying the respects in which Company's Plans or Modified Plans fail to conform to the requirements of this Section. The provisions of this Section relating to approval, rejection and resubmission of corrected Plans or Modified Plans shall continue to apply until they have been approved by the City; provided, however, that in any event Company shall submit Plans or Modified Plans which are approved by City prior to commencement of construction of additional or modified Improvements. Approval of the Plans or Modified Plans by the City shall not relieve Company of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for purposes of this Agreement and shall not constitute approval for any other City purpose nor subject the City to any liability for improvements as constructed. 4. Timeliness of Work. The parties agree that Company's commitment to undertake the Project and to undertake the Work in a timely manner constitutes a material inducement for the City to lease the Property to Company and that without said commitment City would not do so. Company shall substantially complete all of the Work within the term of the Lease. 5. No Encumbrances. Company agrees that it shall not create, incur, or suffer to exist any mortgages, liens or other encumbrances on or against the Property. 6. Project Incentives. The parties agree that the Work has an anticipated budget of$2,895,704.00. Company shall directly pay up to $200,000.00 to cover the cost of soil borings and analysis, architectural fees, structural engineering design fees, landscape design fees and ground improvement foundation system design fees. City agrees to make a series of development grant payments (each payment is a "Grant") to Company to assist Company in defraying other Project costs up to a Grant maximum of $2,695,704.00. With each request for a Grant, Company shall submit all supporting documentation, proof of payment and other reasonable information requested by City. City shall pay the undisputed portion of any Grant application within twenty-one (21) days after Company submits it request. A. The complete or initial funding by City of Project commitments shall be deemed an agreement of the parties that the applicable conditions to disbursement of Grant funds shall, as of the date of such funding, have been satisfied or waived. B. It is recognized and agreed that the ability of the City to perform the obligations described in this Agreement is subject to completion and satisfaction of certain separate city council actions and required legal proceedings relating to the creation of a tax increment financing (TIF) district and/or amendment of the 3 urban renewal plan, including the holding of public hearings on the same. Further, all the obligations of City under this Agreement are subject to fulfillment, on or before each Grant payment date, of each of the following conditions precedent: (i) The representations and warranties made by Company in Section 10 shall be true and correct as of the Grant payment date with the same force and effect as if made at such date. (ii) Company shall be in material compliance with all the terms and provisions of this Agreement. (iii) There has not been, as of the Grant payment date, a substantial change for the worse in the financial resources and ability of Company to undertake and complete the Work, which change(s) makes it likely, in the reasonable judgment of the City, that Company will be unable to fulfill its covenants and obligations under this Agreement. 7. Additional Covenants of Company. In addition to the other promises, covenants and agreements of Company as provided elsewhere in this Agreement, Company agrees as follows: A. Company agrees during the term of the Lease to maintain or cause to be maintained all insurance coverages required by the Lease, and shall provide evidence of such coverages to the City upon request. B. Until the Work is substantially completed, Company shall make such reports to City, in such detail and at such times as may be reasonably requested by City, as to the actual progress of Company with respect to performance of the Work. C. During the Work, Company will cooperate fully with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the Work. D. Company will comply with all applicable land development laws and City and county ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of Company. 8. Future Project. The parties acknowledge that the scope of this Agreement is limited to pre-construction preparation of the Property to allow for Company to construct an athletic facility and related improvements for public use. The parties agree to confer and negotiate in good faith regarding the amendment of this Agreement or the Lease or the entry into of a new development agreement or lease, as 4 they deem mutually advantageous, with respect to the construction phase for such improvements and/or other arrangements to support the buildout out or operation of such facility. 9. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 10. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Company. D. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a violation or breach of, the terms, conditions or provisions of the articles of organization or bylaws of Company or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which Company is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. E. Assuming due authorization, execution and delivery by the other parties hereto, this Agreement is in full force and effect and is a valid and legally binding instrument of Company that is enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 5 F. There are no actions, suits or proceedings pending or threatened against or affecting Company in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position, or results of operations of Company or which in any manner raises any questions affecting the validity of the Agreement or Company's ability to perform its obligations under this Agreement. 11. Indemnification and Releases. A. Company hereby releases City, its elected officials, officers, employees, and agents (collectively, the "indemnified parties") from, covenants and agrees that the indemnified parties shall not be liable for, and agrees to indemnify, defend and hold harmless the indemnified parties against, any loss or damage to property or any injury to or death of any person occurring at or about the Property arising after Company's lease of same. The indemnified parties shall not be liable for any damage or injury to the persons or property of Company or its directors, officers, employees, contractors or agents, or any other person who may be about the Property or the Improvements, due to any act of negligence or willful misconduct of any person, other than any act of negligence or willful misconduct on the part of any such indemnified party or its officers, employees or agents. B. Except as set forth in the Lease, and except for any willful misrepresentation, any willful misconduct, or any unlawful act of the indemnified parties, Company agrees to protect and defend the indemnified parties, now or forever, and further agrees to hold the indemnified parties harmless, from any claim, demand, suit, action or other proceedings or any type or nature whatsoever by any person or entity whatsoever that arises or purportedly arises from (1) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by Company against the City to enforce its rights under this Agreement), or (2) the lease and condition of the Property and prosecution of the Work, or (3) any hazardous substance or environmental contamination located in or on the Property, but only to the extent such liability has not been previously transferred to and accepted by the City in writing. C. The provisions of this Section shall survive the expiration or termination of this Agreement. 12. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of all procedures, hearings and approvals deemed necessary by City or its legal counsel for amendment of the urban renewal plan applicable to the Property and/or project area, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type provided by City hereunder within said 180-day period is subject to 6 reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 13. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign, sublease or otherwise transfer its interest in the Property prior to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. 14. Default. The following shall be "Events of Default" under this Agreement, and the term "Event of Default" shall mean any one or more of the following events that continues beyond any applicable cure periods: A. Failure by Company to cause the Work to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement or the Lease; B. Transfer by Company of any interest (either directly or indirectly) in any part of the Property, or in this Agreement, without the prior written consent of City; C. Failure by Company to pay, before delinquency, all ad valorem property taxes levied on or against any of the Property; D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; or (4) is adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of Company as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Company, or part thereof, shall be appointed in any proceedings brought against Company and shall not be discharged within ninety (90) days after such appointment, or if Company shall consent to or acquiesce in such appointment. 7 F. Any representation or warranty made by Company in this Agreement, or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 15. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Company of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or the Event of Default cannot reasonably be cured within 30 days and Company shall not have provided assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible. Upon termination, City may exercise any and all remedies available at law, equity, contract or otherwise for recovery of any sums paid by City to Company before the date of termination or to recover ownership of the Property as set forth in this Agreement. B. Default by City. Whenever any Event of Default in respect of City occurs and is continuing, Company may take such action against City to require it to specifically perform its obligations hereunder. Before exercising such remedy, Company shall give 30 days' written notice to City of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or if the Event of Default cannot reasonably be cured within 30 days and City shall not have provided assurances reasonably satisfactory to the Company that the Event of Default will be cured as soon as reasonably possible. C. Remedies under this Agreement shall be cumulative and in addition to any other right or remedy given under this Agreement or existing at law or in equity or by statute. Waiver as to any particular default, or delay or omission in exercising any right or power accruing upon any default, shall not be construed as a waiver of any other or any subsequent default and shall not impair any such right or power. 16. Materiality of Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of a party hereto to be performed is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for the other party to enter this Agreement. Each party acknowledges that without such promises, covenants, representations, and warranties, the other party would not have entered this Agreement. 8 17, Performance by City. Company acknowledges and agrees that all of the obligations of City under this Agreement shall be subject to, and performed by City in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with City's lawful authority. All covenants, stipulations, promises, agreements and obligations of City contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City and not of any governing body member, officer, employee or agent of City in the individual capacity of such person. 18. No Third-Party Beneficiaries. No rights or privileges of any party hereto shall inure to the benefit of any contractor, subcontractor, material supplier, or any other person or entity, and no such contractor, subcontractor, material supplier, or other person or entity shall be deemed to be a third-party beneficiary of any of the provisions of this Agreement. 19. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person or by United States registered or certified mail, postage prepaid, and addressed: (a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at 360 Westfield Avenue, Suite 200, Waterloo, Iowa 50701, Attention: Executive Director. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. A party may change the address for giving notice by any method set forth in this Section. 20. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the City and Company nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 21. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 22. Severability; Reformation. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the 9 offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 23. Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 24. Interpretation. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that the parties hereto and their respective attorneys have contributed substantially and materially to the preparation of each and every provision of this Agreement. 25. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 26. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 27. Entire Agreement. This Agreement, together with the exhibits attached hereto, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. To the maximum extent possible, the Lease shall be construed and interpreted so as to not be in conflict with the terms of this Agreement, and in the event of irreconcilable conflict the terms of the Lease shall govern. 28. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement by their duly authorized representatives as of the date first set forth above. [signatures on next page] 10 CITY OF WATERLOO, IOWA WATERLOO DEVELOPMENT COZi TION Quet uz 91ari By: y: 4/ Quentin M. Hart, Mayor Title: ! %cereside-r1Z Attest: ReCCey Eefch[e Kelley Felchle, City Clerk 11 EXHIBIT "A" Legal Description of Property Lot 1, TechWorks Addition, Waterloo, Black Hawk County, Iowa, except Parcel "E"of Plat of Survey Doc. #2013-8971;except Parcel "F"of Plat of Survey Doc. #2013-19092,and amended in Doc. #2015-21270; except Parcel "G" of Plat of Survey Doc. #2020-12244; except Parcel "I" of Plat of Survey Doc. #2022-17202; and except that part of Lot 1 bounded by Parcel "F", Westfield Avenue and Jefferson Street. GROUND LEASE This Ground Lease (the "Lease") is entered into as of , 2023 by and between the City of Waterloo, Iowa("Lessor"), and Waterloo Development Corporation, an Iowa nonprofit corporation, or its affiliate assignee ("Lessee"). Article I. PREMISES AND TERM 1.1. Leased Premises. Upon the terms and conditions set forth herein, and in consideration of the rents, covenants, and promises to be kept and performed by Lessee, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, that certain parcel of real estate (the "Premises"), together with any improvements, fixtures and personal property thereon and to be constructed thereon, identified as parcel no. 8913-23-378-017 in the City of Waterloo, Black Hawk County, Iowa, a legal description of which is attached hereto as Exhibit"A". Lessee agrees to take the Premises in AS IS condition, without representation or warranty of any kind by Lessor, except as expressly set forth in this Lease, as to the condition of the Premises, suitability for any particular purpose, or otherwise. 1.2. Conditions. Lessor's lease of the Premises to Lessee is expressly made subject to the following conditions: a. All easements, restrictions, covenants and limitations now appearing of record. b. Zoning ordinances and other regulations of the City of Waterloo, Black Hawk County, the State of Iowa, and any other governmental agency now or hereafter existing during the Term. c. Lessee's prompt and proper'performance of all the terms and conditions set forth in this Lease and in that certain development agreement(the "Development Agreement") between the parties dated as of Seq4.4,w 5 , 2023. 1.3. Term. The Term (the "Term") shall be for a period of eighteen (18)months, commencing on the date hereof and ending on the last day of the month that is eighteen(18) months thereafter, unless sooner terminated as provided in this Lease. 1.4. Cancellation. This Lease may be cancelled as set forth in the Development Agreement. Article II. RENT 2.1. Rent. Upon execution of this Lease, Lessee shall pa y y to Lessor the sum of$10.00 as base rent for the Term. Lessee shall also pay the taxes and other charges set forth in the paragraphs below. a. Taxes and assessments. (i) Payment of taxes. Lessee shall pay, before any fine,penalty, interest, or costs may be added, become due, or be imposed for nonpayment thereof, all taxes, assessments, rates, charges, license fees, municipal liens, levies, excises, license and permit fees, and other governmental charges of whatsoever nature, whether general or special, ordinary or extraordinary, foreseen or unforeseen, which at any time during the Term may be assessed, levied, charged, or imposed upon the Premises or any part of them, the leasehold of Lessee, any building or other improvement now or hereafter on them, or otherwise arising out of the rent, fees or income received by Lessee from any use or occupation of the Premises. (ii) Contesting taxes. Lessee may in good faith contest the validity or amount of any tax, assessment, levy, or other governmental charge herein agreed to be paid by Lessee, and Lessor agrees to support said contest and to provide reasonable assistance to Lessee. b. Utilities; Costs. Lessee shall fully and promptly pay for all water, gas, heat, light, power,telephone service, other public utilities, and other services of every kind furnished to the Premises throughout the Term and all other costs and expenses of every kind whatsoever of or in connection with the use, operation, and maintenance of the Premises, all improvements thereon, and all activities conducted thereon. Article III. QUIET ENJOYMENT; RIGHT OF ENTRY 3.1. Title; Quiet Enjoyment. Lessor covenants that its title in the Premises is fee simple and that it has full right and authority to make this Lease on the terms and conditions set forth herein. Lessor covenants that, so long as Lessee keeps and performs all of its covenants and conditions under this Lease, Lessee shall have quiet and peaceable possession of the Premises during the Term, free from all claims against Lessor and all persons claiming by, through, or under Lessor. 3.2. Delivery of Possession. If Lessor for any reason whatsoever cannot deliver possession of the Premises to Lessee at the commencement of the Term, this Lease shall not be void or voidable, nor shall Lessor be liable to Lessee for any resulting loss or damage, provided that Lessor uses its best efforts to deliver possession at the earliest possible date. 3.3. Right of Entry. Lessee shall permit Lessor, its agents and employees, to enter the Premises at all reasonable times to examine their condition, so long as that right is exercised in a manner that does not interfere with Lessee in the conduct of its business on the Premises. Article IV. IMPROVEMENTS 4.1. Activities. Lessee will undertake various activities to ready the Premises for development, including but not limited to site preparation, earthwork, construction of site utilities, soil testing and project design, all as more specifically detailed in other documentation exchanged between the parties. 2 Article V. FINANCING 5.1. Reserved. Article VI. INSURANCE 6.1. Coverage Requirements. At all times during the Term, Lessee or its project contract shall maintain each of the following insurance coverages, except as otherwise expressly stated herein: a. Commercial general liability insurance for the Premises in a combined coverage for bodily injury and property damage in an amount not less than One Million Dollars ($1,000,000), naming Lessor as additional insured. b. Automobile liability insurance with a combined limit of at least $1,000,000 per occurrence for bodily injury and property damage. Coverage shall include all owned, hired, and non-owned motor vehicles used in the performance of work by the contractor or its employees. c. Worker's compensation insurance, with statutory coverage. d. Pollution liability insurance with minimum coverage of Two Million Dollars ($2,000,000). Lessor does not and shall not provide insurance for the benefit of Lessee. Lessee may maintain such other or additional coverages as it considers appropriate for the protection of its interests. Article VII. INDEMNIFICATION OF LESSOR 7.1. Indemnification. Except for the negligence or willful misconduct of Lessor, its employees or agents, Lessee shall indemnify and hold harmless Lessor from and against any and all claims, demands, causes of action, costs, expenses, fines, penalties, obligations, or liabilities of any type or nature whatsoever, including but not limited to reasonable attorney fees and expenses, (each of the foregoing is a"Claim")that may be made against Lessor or against its title in the Premises, arising out of or in connection with any alleged act or omission of Lessee in, on, or about the Premises during the Term, or on account of violation of any federal, state, or municipal laws, statutes, ordinances or regulations. Also see Section 9.7. Article VIII. SUBLETTING AND ASSIGNMENT 8.1. Subletting. Lessee may not sublet the Premises without the prior written consent of Lessor . 8.2. Assignment. Lessee may not assign or transfer any interest or obligation of Lessee under this Lease without the prior written consent of Lessor, except that Lessee may assign its interest in this Lease to an affiliated entity under the control of Lessee. Lessor's 3 consent to any specific assignment or transfer shall not be deemed to be a consent to any subsequent assignment or transfer. Any assignment or transfer without Lessor's consent shall be void and, at Lessor's sole option, shall terminate this Lease. As a condition of any assignment or transfer, the assignee or transferee shall in writing expressly assume and agree to perform every covenant or obligation of this Lease that Lessee is bound to keep and perform. 8.3. Primary Liability of Lessee. Notwithstanding anything to the contrary in this Article VIII, if Lessee's interest in and to this Lease is assigned or transferred, its liability for the performance of every term, condition, covenant, or promise contained herein shall remain in full force and effect unless expressly waived or released in writing by Lessor. Article IX. ENVIRONMENTAL MATTERS 9.1. Condition of Premises. The parties acknowledge that the Premises is located on real property that formerly was used for several decades as a heavy manufacturing site and for other related industrial uses, that tests performed on the Premises and abutting properties have indicated the presence of substances designated as "hazardous"by federal and state law that were released by such manufacturing and related industrial activities, and that the Premises is subject to ongoing monitoring of environmental conditions and to covenants (the "Restrictive Covenants")that, among other things, restrict the conduct of particular activities as they relate to control of environmental conditions. A copy of the Restrictive Covenants shall be provided to Lessee upon request. Lessee agrees that its use of the Premises shall not at any time violate any Restrictive Covenants. Lessee acknowledges that, before the first day of the Lease term, it has had the opportunity to conduct its own testing on and about the Leased Premises for Hazardous Substances (as defined in Section 9.2 below) and other environmental conditions. Lessee agrees to take and occupy the Premises subject to (a)the environmental conditions and Restrictive Covenants described in this Section(b)the terms of this Article IX, and (c) the environmental conditions identified by its own testing, if any. 9.2. "Hazardous Substances" Defined. For purposes of this Lease, "hazardous substances" shall be defined as any hazardous, toxic, or dangerous waste, substance (including, but not limited to,petroleum derivative substances or asbestos in any form that is or could become friable), or other material defined as such or for purposes of any state, federal, or local environmental laws, regulations, decrees, or ordinances, or in the Comprehensive Environmental Response Compensation and Liability Act, as amended, or in any so-called state or local "super fund", "super lien", or cleanup lien law, or any other federal or state regulation, order, or decree relating to or imposing liability or standards of conduct concerning any such substances or material, or any amendments or successor statutes thereto. 9.3. Lessor's Representations. To the best of Lessor's knowledge after reasonable inquiry, Lessor represents and warrants as follows: a. No claim, lawsuit, agency proceeding, or other legal, quasi-legal, or administrative challenge has been brought concerning the Premises or the existence of any hazardous substances thereon during Lessor's period of ownership. 4 • b. Lessor has not spilled, discharged, released, deposited, or emplaced any hazardous substance on the Premises, whether in containers or other impoundments, or directly in or onto the land of the Premises. Lessor is not aware that the level of radon gas or contamination resulting from any other substance requires remediation under current governmental standards. c. Lessor has not installed any storage tanks, barrels, sumps, impoundments, or other containers or equipment (movable or fixed) for the containment of hazardous substances in any part of the property, and Lessor is not aware of any underground storage tanks, solid waste disposal sites, or abandoned wells on the Premises. d. No governmental entity has served upon Lessor any notice claiming any violation of any statutes, ordinances, or regulations or noting the need for any repair, construction, alteration, or installation with respect to the Premises and hazardous substances or radon. e. Lessor has delivered to Lessee a copy of each environmental assessment or report in Lessor's possession that concerns any part of the Premises. 9.4. Maintenance. Lessee shall not, without Lessor's written consent, use, maintain, or dispose of hazardous substances on the Premises. 9.5 Spills, Contamination. If materials are spilled or in any way contaminate the Premises through the acts or omissions of Lessee, or anyone making use of the Premises with the permission of Lessee, then Lessee shall immediately notify Lessor and all appropriate governmental agencies of such event, and Lessee shall be solely responsible for the cleanup, containment and abatement of such contamination, and any fines or penalties assessed or levied in respect of the contamination, all at Lessee's sole cost and expense, and to the satisfaction of Lessor. If Lessee fails to perform such cleanup, containment and abatement in a timely manner, or does so inadequately, Lessor may take such reasonable and necessary actions in the place and stead of Lessee, and the cost thereof,plus ten percent (10%), shall be immediately reimbursed to Lessor by Lessee upon written demand. 9.6. Release. Lessee hereby waives, releases, and forever discharges Lessor from all present and future claims, demands, suits, legal and administrative proceedings, and from all liability for damages, losses, costs, liabilities, fees, and expenses,present and future, known or unknown, foreseeable or unforeseeable, arising out of or in any way connected with Lessor's use, maintenance, operation, or ownership of the Premises prior to the beginning of the Term, or any condition of environmental contamination or existence of hazardous substances on the Premises at the beginning of the Term, however they came to be placed thereon. Said release does not vitiate any responsibility of Lessor to cooperate with Lessee in good faith to address or remediate any matters of concern with respect to hazardous substances or other environmental contamination determined to have been in or upon the Premises upon commencement of the Term. 5 9.7. Indemnification. Lessee agrees that its duties of indemnification under Section 7.1 shall apply equally, but are not limited, to Claims arising out of or in connection with any spill, discharge, leak or contamination from, of, or by any hazardous substances by Lessee, its employees, contractors or agents. Article X. ADDITIONAL COVENANTS OF LESSEE 10.1. Lawful Use. The Premises shall be used only for lawful purposes. Lessee agrees not to commit or permit any act to be performed on the Premises or to allow any omission to occur that will be in violation of any statute, regulation, or ordinance of any governmental body, or that would constitute a nuisance. 10.2. Surrender of Premises. On the last day of the Term, or on the sooner termination of this Lease, Lessee shall peaceably and quietly surrender possession of the Premises, including all Improvements, furnishings, fixtures, and equipment that Lessee has brought, placed, or constructed upon the Premises, to Lessor in good condition and repair, reasonable wear and tear excepted, consistent with Lessee's duty to make repairs as provided in this Lease. Lessee's voluntary or other surrender of the Premises shall terminate any or all existing subleases. Article XI. DEFAULT AND REMEDIES 11.1. Default of Lessee. The occurrence of any of the following shall be deemed an event of default under this Lease: a. Lessee files or is the subject to any voluntary or involuntary petition in bankruptcy under Title 11 of the U.S. Code or any other formal or informal proceeding for dissolution, liquidation, composition, readjustment, or similar relief under any other state or federal law; or Lessee admits in writing its inability to pay its debts generally as they come due. b. Lessee is in default under the terms of the Development Agreement or is in breach of any material provision of same. c. Any other default or breach of this Lease of which Lessee receives written notice from Lessor, specifying the nature of the default or breach, and which Lessee does not cure within thirty (30) days after the receipt of the notice or within such a reasonable time thereafter as may be necessary to cure the default where it is of a character that reasonably requires more than thirty (30) days to cure. 11.2. Default of Lessor. Lessor shall not be deemed to be in default under this Lease until Lessee has given Lessor written notice specifying the nature of the default and Lessor does not cure the default within sixty (60) days after the receipt of the notice or within such a reasonable time thereafter as may be necessary to cure the default where it is of a character that reasonably requires more than sixty (60) days to cure. 6 11.3. Remedies of Lessee. Lessee's sole remedy shall be to institute proceedings to compel specific performance by Lessor with respect to any obligation under this Lease of which Lessor is in breach or default. 11.4. Remedies of Lessor. Lessor may terminate this Lease upon sixty (60) days' written notice to Lessee. 11.5. Unavoidable Delays. Performance by any party under this Lease shall be subject to unavoidable delays resulting from acts or occurrences outside the reasonable control of the party claiming the delay, including but not limited to storms, floods, fires, explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other labor disputes, delays in transportation or delivery of material or equipment, litigation commenced by third parties, or the acts of any federal, state or local governmental unit (other than Lessor) which directly result in delays. Article XII. MISCELLANEOUS 12.1. Relationship of the Parties. Nothing contained in this Lease shall, or shall be deemed or construed to, create or constitute a partnership,joint venture, or relationship of principal and agent between Lessor and Lessee nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. The sole relationship created by this Lease is one of landlord and tenant. 12.2. Notices. Any notice under this Lease shall be in writing and shall be delivered in person, or by United States registered or certified mail, postage prepaid, and addressed: a. if to Lessor, to City of Waterloo, 715 Mulberry Street, Waterloo, Iowa 50703, Attn: Mayor, with a copy to Community Planning and Development Director. b. if to Lessee, to Waterloo Development Corporation, 360 Westfield Avenue, Suite 200, Waterloo, Iowa 50701, Attn: Executive Director. Delivery of notice shall be deemed to occur(i) on the date of delivery when delivered in person, or(ii)three (3)business days following the date of deposit if mailed by United States registered or certified mail,postage prepaid. The address for giving notice may be changed by notice delivered in accordance with this section. 12.3. Amendment, Modification, and Waiver. No amendment, mo dification, or waiver of any condition,provision, or Term shall be valid or of any effect unless made in a written instrument signed by the parties. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent or other default. 12.4. Short-form Recordable Lease. The parties shall at any time, at the request of either of them, promptly execute duplicate originals of an instrument, in recordable form, that will constitute a short form of this Lease, setting forth a description of the Premises,the Term, and any other portions of this Lease that either party may request. 7 12.5. Severability of Provisions. Each provision, section, sentence, clause,phrase, and word of this Lease is intended to be severable. If any portion of this Lease shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Lease and the remaining provisions of this Lease shall not be affected thereby and shall continue in full force and effect. 12.6. Entire Lease. This Lease constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. To the maximum extent possible, this Lease shall be construed and interpreted so as to not be in conflict with the terms of the Development Agreement, and in the event of irreconcilable conflict the terms of this Lease shall govern. 12.7. Captions. All captions, headings, or titles in the paragraphs or sections of this Lease are inserted only as a matter of convenience or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Lease or of any provisions hereof. 12.8. Binding Effect. This Lease shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 12.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which,taken together, shall constitute one and the same instrument. 12.10. Time of Essence. Time is of the essence of this Lease. IN WITNESS WHEREOF, the parties hereto have executed this Ground Lease by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA WATERLOO DEVELOPMENT CO ION By: By Quentin Hart, Mayor Title: U/:.e•Pr.S0%1 74 A A By: elley Fel le, City Clerk 8 STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) Acknowledged before me on 0( tL , 2023, by Quentin Hart and Kelley Felchle as Mayor and City Clerk,respe Lively, of the City of Waterloo, Iowa. Pass I BRITM 0 PERKINS [Y qa COt�MiS:i;:,N NO.845529 MY COMMIJSION EXPIRES A 1 JfANU RY 27,2026 N Pu lic STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) Acknowledged before me on 17 d 9 , 2023, by Robert W. Petersen as Vice President of Waterloo Development Corporation. AP1‘t",5. JOSHUA C HURLEY N Public 2 9 COMMISSION NO. 810139 *, ;n,* MY COMLIIJI�—SI/OQN EXPJ EfS /OWP f .l E7.. � f 9 EXHIBIT"A" Legal Description Lot 1, TechWorks Addition, Waterloo, Black Hawk County, Iowa, except Parcel "E" of Plat of Survey Doc. #2013-8971; except Parcel "F" of Plat of Survey Doc. #2013-19092, and amended in Doc. #2015-21270; except Parcel "G"of Plat of Survey Doc. #2020-12244; except Parcel "I" of Plat of Survey Doc. #2022-17202; and except that part of Lot 1 bounded by Parcel "F", Westfield Avenue and Jefferson Street. 10 Prepared by Christopher S. Wendland, P.O. Box 596, Waterloo, IA 50704 Phone (319) 234-5701 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of Sep+ 5 , 2023 by and between Waterloo Development Corporation (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act"), City is engaged in carrying out urban renewal project activities in an area known as the Downtown Waterloo Urban Renewal and Redevelopment Plan Area (the "Urban Renewal Area"), pursuant to the Downtown Waterloo Urban Renewal and Redevelopment Plan (the "Urban Renewal Plan"). B. Company is willing and able to undertake a project to make site preparations for future development on property located in the Urban Renewal Area, and legally described on Exhibit "A" attached hereto (the "Property"). C. City considers economic development within the City a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives so as to encourage that goal, and the City further believes that the project is in the vital and best interests of the City and that the project and such incentives are in accordance with the public purposes and provisions of applicable State and local laws and requirements under which the project has been undertaken and is being assisted. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Lease of Property. Subject to the terms hereof, City shall lease the Property to Company in its as -is condition pursuant to a separate ground lease between the parties (the "Lease"). City makes no representation or warranty as to the condition of the Property or its suitability for Company's purposes. Company is responsible to conduct its own due diligence and inspections. 2. Company Activities. Company shall prepare the Property for future development as a hard -surface sports court facility. Company's activities (the "Work") shall include, but are not limited to, site preparation, earthwork, construction of site utilities for public infrastructure, soil testing and project design, all as more specifically detailed in other documentation exchanged between the parties. Company agrees that the Work shall be conducted in accordance with the terms of this Agreement, the Urban Renewal Plan, and all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. City may require that Company submit specific designs and site plans for City review and approval. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Work may be lawfully performed. The Property, the Work, and all other site preparation and development -related work to make any of the Property usable for Company's purposes as contemplated by this Agreement are collectively referred to as the "Project." 3. Construction Plans. Company agrees that it will cause the Work to be performed on the Property in conformance with construction plans (the "Plans") that have been submitted to the City. Company agrees that the scope and scale of the Work shall not be significantly less than the scope and scale of such improvements as detailed and outlined in the Plans. If any material modification in the scope, scale or nature of the Plans is proposed, Company shall submit modified Plans (the "Modified Plans") to the City for review. Modified Plans shall be subject to approval by the City as provided in this Section. City shall approve the modified Plans in writing if: (a) the Modified Plans conform to the terms and conditions of this Agreement; (b) the Modified Plans conform to the terms and conditions of the urban renewal plan; (c) the Modified Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations and City permit and design review requirements; (d) the Modified Plans are adequate for purposes of this Agreement to provide for the construction of the Improvements, and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Plans or Modified Plans pursuant to this Section shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, fire, zoning or other ordinances or regulations of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Plans or Modified Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Plans or Modified Plans must be rejected in writing by City within thirty (30) days of submission or shall be deemed to have been approved by the City. If City 2 rejects the Plans or Modified Plans in whole or in part, Company shall submit new or corrected Plans or Modified Plans within thirty (30) days after receipt by Company of written notification of the rejection, accomplished by a written statement of the City specifying the respects in which Company's Plans or Modified Plans fail to conform to the requirements of this Section. The provisions of this Section relating to approval, rejection and resubmission of corrected Plans or Modified Plans shall continue to apply until they have been approved by the City; provided, however, that in any event Company shall submit Plans or Modified Plans which are approved by City prior to commencement of construction of additional or modified Improvements. Approval of the Plans or Modified Plans by the City shall not relieve Company of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Plans or Modified Plans by City be deemed to constitute a waiver of any Event of Default. Approval of Plans or Modified Plans hereunder is solely for purposes of this Agreement and shall not constitute approval for any other City purpose nor subject the City to any liability for improvements as constructed. 4. Timeliness of Work. The parties agree that Company's commitment to undertake the Project and to undertake the Work in a timely manner constitutes a material inducement for the City to lease the Property to Company and that without said commitment City would not do so. Company shall substantially complete all of the Work within the term of the Lease. 5. No Encumbrances. Company agrees that it shall not create, incur, or suffer to exist any mortgages, liens or other encumbrances on or against the Property. 6. Project Incentives. The parties agree that the Work has an anticipated budget of $2,895,704.00. Company shall directly pay up to $200,000.00 to cover the cost of soil borings and analysis, architectural fees, structural engineering design fees, landscape design fees and ground improvement foundation system design fees. City agrees to make a series of development grant payments (each payment is a "Grant") to Company to assist Company in defraying other Project costs up to a Grant maximum of $2,695,704.00. With each request for a Grant, Company shall submit all supporting documentation, proof of payment and other reasonable information requested by City. City shall pay the undisputed portion of any Grant application within twenty-one (21) days after Company submits it request. A. The complete or initial funding by City of Project commitments shall be deemed an agreement of the parties that the applicable conditions to disbursement of Grant funds shall, as of the date of such funding, have been satisfied or waived. B. It is recognized and agreed that the ability of the City to perform the obligations described in this Agreement is subject to completion and satisfaction of certain separate city council actions and required legal proceedings relating to the creation of a tax increment financing (TIF) district and/or amendment of the 3 urban renewal plan, including the holding of public hearings on the same. Further, all the obligations of City under this Agreement are subject to fulfillment, on or before each Grant payment date, of each of the following conditions precedent: (i) The representations and warranties made by Company in Section 10 shall be true and correct as of the Grant payment date with the same force and effect as if made at such date. (ii) Company shall be in material compliance with all the terms and provisions of this Agreement. (iii) There has not been, as of the Grant payment date, a substantial change for the worse in the financial resources and ability of Company to undertake and complete the Work, which change(s) makes it likely, in the reasonable judgment of the City, that Company will be unable to fulfill its covenants and obligations under this Agreement. 7. Additional Covenants of Company. In addition to the other promises, covenants and agreements of Company as provided elsewhere in this Agreement, Company agrees as follows: A. Company agrees during the term of the Lease to maintain or cause to be maintained all insurance coverages required by the Lease, and shall provide evidence of such coverages to the City upon request. B. Until the Work is substantially completed, Company shall make such reports to City, in such detail and at such times as may be reasonably requested by City, as to the actual progress of Company with respect to performance of the Work. C. During the Work, Company will cooperate fully with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the Work. D. Company will comply with all applicable land development laws and City and county ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of Company. 8. Future Project. The parties acknowledge that the scope of this Agreement is limited to pre -construction preparation of the Property to allow for Company to construct an athletic facility and related improvements for public use. The parties agree to confer and negotiate in good faith regarding the amendment of this Agreement or the Lease or the entry into of a new development agreement or lease, as 4 they deem mutually advantageous, with respect to the construction phase for such improvements and/or other arrangements to support the buildout out or operation of such facility. 9. Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 10. Representations and Warranties of Company. Company hereby represents and warrants as follows: A. Company is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Company is duly organized, validly existing, and in good standing under the laws of the state of its organization and is duly qualified and in good standing under the laws of the State of Iowa. C. Company has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, and each person who executes and delivers this Agreement and all documents to be delivered to City hereunder is and shall be authorized to do so on behalf of Company. D. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a violation or breach of, the terms, conditions or provisions of the articles of organization or bylaws of Company or of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which Company is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. E. Assuming due authorization, execution and delivery by the other parties hereto, this Agreement is in full force and effect and is a valid and legally binding instrument of Company that is enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 5 F. There are no actions, suits or proceedings pending or threatened against or affecting Company in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position, or results of operations of Company or which in any manner raises any questions affecting the validity of the Agreement or Company's ability to perform its obligations under this Agreement. 11. Indemnification and Releases. A. Company hereby releases City, its elected officials, officers, employees, and agents (collectively, the "indemnified parties") from, covenants and agrees that the indemnified parties shall not be liable for, and agrees to indemnify, defend and hold harmless the indemnified parties against, any loss or damage to property or any injury to or death of any person occurring at or about the Property arising after Company's lease of same. The indemnified parties shall not be liable for any damage or injury to the persons or property of Company or its directors, officers, employees, contractors or agents, or any other person who may be about the Property or the Improvements, due to any act of negligence or willful misconduct of any person, other than any act of negligence or willful misconduct on the part of any such indemnified party or its officers, employees or agents. B. Except as set forth in the Lease, and except for any willful misrepresentation, any willful misconduct, or any unlawful act of the indemnified parties, Company agrees to protect and defend the indemnified parties, now or forever, and further agrees to hold the indemnified parties harmless, from any claim, demand, suit, action or other proceedings or any type or nature whatsoever by any person or entity whatsoever that arises or purportedly arises from (1) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by Company against the City to enforce its rights under this Agreement), or (2) the lease and condition of the Property and prosecution of the Work, or (3) any hazardous substance or environmental contamination located in or on the Property, but only to the extent such liability has not been previously transferred to and accepted by the City in writing. C. The provisions of this Section shall survive the expiration or termination of this Agreement. 12. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of all procedures, hearings and approvals deemed necessary by City or its legal counsel for amendment of the urban renewal plan applicable to the Property and/or project area, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type provided by City hereunder within said 180-day period is subject to 6 reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 13. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign, sublease or otherwise transfer its interest in the Property prior to completion of the Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. 14. Default. The following shall be "Events of Default" under this Agreement, and the term "Event of Default" shall mean any one or more of the following events that continues beyond any applicable cure periods: A. Failure by Company to cause the Work to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement or the Lease; B. Transfer by Company of any interest (either directly or indirectly) in any part of the Property, or in this Agreement, without the prior written consent of City; C. Failure by Company to pay, before delinquency, all ad valorem property taxes levied on or against any of the Property; D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; or (4) is adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of Company as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Company, or part thereof, shall be appointed in any proceedings brought against Company and shall not be discharged within ninety (90) days after such appointment, or if Company shall consent to or acquiesce in such appointment. 7 F. Any representation or warranty made by Company in this Agreement, or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 15. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Company of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or the Event of Default cannot reasonably be cured within 30 days and Company shall not have provided assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible. Upon termination, City may exercise any and all remedies available at law, equity, contract or otherwise for recovery of any sums paid by City to Company before the date of termination or to recover ownership of the Property as set forth in this Agreement. B. Default by City. Whenever any Event of Default in respect of City occurs and is continuing, Company may take such action against City to require it to specifically perform its obligations hereunder. Before exercising such remedy, Company shall give 30 days' written notice to City of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or if the Event of Default cannot reasonably be cured within 30 days and City shall not have provided assurances reasonably satisfactory to the Company that the Event of Default will be cured as soon as reasonably possible. C. Remedies under this Agreement shall be cumulative and in addition to any other right or remedy given under this Agreement or existing at law or in equity or by statute. Waiver as to any particular default, or delay or omission in exercising any right or power accruing upon any default, shall not be construed as a waiver of any other or any subsequent default and shall not impair any such right or power. 16. Materiality of Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of a party hereto to be performed is a material term of this Agreement, and each and every such promise, covenant, representation, and warranty constitutes a material inducement for the other party to enter this Agreement. Each party acknowledges that without such promises, covenants, representations, and warranties, the other party would not have entered this Agreement. 8 17. Performance by City. Company acknowledges and agrees that all of the obligations of City under this Agreement shall be subject to, and performed by City in accordance with, all applicable statutory, common law or constitutional provisions and procedures consistent with City's lawful authority. All covenants, stipulations, promises, agreements and obligations of City contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City and not of any governing body member, officer, employee or agent of City in the individual capacity of such person. 18. No Third -Party Beneficiaries. No rights or privileges of any party hereto shall inure to the benefit of any contractor, subcontractor, material supplier, or any other person or entity, and no such contractor, subcontractor, material supplier, or other person or entity shall be deemed to be a third -party beneficiary of any of the provisions of this Agreement. 19. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person or by United States registered or certified mail, postage prepaid, and addressed: (a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at 360 Westfield Avenue, Suite 200, Waterloo, Iowa 50701, Attention: Executive Director. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. A party may change the address for giving notice by any method set forth in this Section. 20. No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the City and Company nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 21. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by the duly authorized representative of same, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 22. Severability; Reformation. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the 9 offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 23. Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 24. Interpretation. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that the parties hereto and their respective attorneys have contributed substantially and materially to the preparation of each and every provision of this Agreement. 25. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 26. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 27. Entire Agreement. This Agreement, together with the exhibits attached hereto, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the subject matter hereof. To the maximum extent possible, the Lease shall be construed and interpreted so as to not be in conflict with the terms of this Agreement, and in the event of irreconcilable conflict the terms of the Lease shall govern. 28. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Development Agreement by their duly authorized representatives as of the date first set forth above. [signatures on next page] 10 CITY OF WATERLOO, IOWA Q y/c-Etrz 9-tar IGIIELLY Uc1, %IGNEN By: Quentin M. Hart, Mayor Attest: xedfey Ferchre s`o Kelley Felchle, City Clerk WATERLOO DEVELOPMENT COTION Title: Vi ce�i"es��a®�nG 11 EXHIBIT "A" Legal Description of Property Lot 1, TechWorks Addition, Waterloo, Black Hawk County, Iowa, except Parcel "E" of Plat of Survey Doc. #2013-8971; except Parcel "F" of Plat of Survey Doc. #2013-19092, and amended in Doc. #2015-21270; except Parcel "G" of Plat of Survey Doc. #2020-12244; except Parcel "I" of Plat of Survey Doc. #2022-17202; and except that part of Lot 1 bounded by Parcel "F", Westfield Avenue and Jefferson Street.