HomeMy WebLinkAboutWaterloo Development Corporation - Ground Lease - 9/5/2023 GROUND LEASE
This Ground Lease (the"Lease") is entered into as of + 5 , 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 , 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 pay 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.
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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
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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.
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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.
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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.
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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, modification, 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.
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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. ' ' cP,tr.a4,----
Quentin Hart, Mayor
Title: Ujae eS/o%ki74
By:
elley Fel le, City Clerk
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STATE OF IOWA )
) ss.
BLACK HAWK COUNTY )
Acknowledged before me on, , , 2023, by Quentin Hart and Kelley
Felchle as Mayor and City Clerk, respe tively, of the City of Waterloo, Iowa.
?To BRITNI C PERKINS
rt COMMISS:•;N NO. 845529 4 LI ����� �
1mr'n* MY CuMMilgt74 EXPIRES
JANL'+AY27,2026 Public
STATE OF IOWA )
) ss.
BLACK HAWK COUNTY )
Acknowledged before me on ) 9 , 2023, by Robert W. Petersen as Vice
President of Waterloo Development Corporation.
�PPAL, JOSHUA C HURLEY N Public
,atrr COMMISSION NO.810139
*,,,i,,,,,* MY COMy11�ES,�I EXP„�RE$
Joy"
`� K rX `�
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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.
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