HomeMy WebLinkAboutC 10 Investments, LLC -(RECORDED) Dev Agmnt - 6.3.2024 2
2025-01740
RECORDED:02/06/2025 02:13:27 PM
RECORDING FEE:$52.00
REVENUE TAX:$
COMBINED FEE:$52.00
SANDIE L.SMITH,RECORDER
BLACK HAWK COUNTY,IOWA
�loo,i00 CZA, orr
Preparer: Christopher S.Wendland,P.O.Box 596,Waterloo,Iowa 50704 (319)234-5701
After recording,return to Community Planning&Development,715 Mulberry Street,Waterloo,IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement(the"Agreement")is entered into as of
rle"j ,2024 by and between C 10 Investments, L.L.C. ("Company"),and
the City of Waterloo, Iowa("City").
RECITALS
A. Company is willing and able to finance and construct a 12-unit apartment
building and related improvements on property it owns in the City of
Waterloo.
B. City considers infill residential 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 to encourage that goal. City believes that
such development is in the vital and best interests of the City and in
accordance with the public purposes and provisions of the applicable
State and local laws and requirements under which the Projects(defined
below)have been undertaken and are being assisted.
AGREEMENT
NOW,THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Property Preparation. Company is the owner of the Property. Company
shall,at its own expense, undertake any and all actions necessary or advisable to
prepare the Property for construction.
2. Improvements by Company. Company shall construct a single 12-unit
apartment building on the real property described on Exhibit"A"attached hereto(the
"Property"),completed to a finished state, including installation of driveways and
sidewalks, removal of all construction debris,proper leveling or shaping of
groundscape,and grassing and/or landscaping(construction and finishing as so
described are referred to as the"Improvements"). The Improvements shall be
constructed in accordance with the terms of this Agreement,all applicable City,state,
1
and federal building codes and shall comply with all applicable City ordinances and
other applicable law. Company shall submit specific building designs and site plans for
City review and approval before the commencement of construction and shall not
substantially deviate from such plans, specifications or designs. 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 Improvements may be lawfully constructed. The Property, the
Improvements, and all site preparation and development-related work to be undertaken
and completed by Company under this Agreement are collectively referred to as the
"Project."
3. Timeliness of Construction. The parties agree that Company's
commitment to cause the Project to be undertaken and to construct the Improvements
in a timely manner constitutes a material inducement for the City to extend the
incentives provided for in this Agreement, and that without said commitment City would
not do so.
A. Deadlines to commence and complete. Subject to Unavoidable
Delays (defined below), Company must obtain a building permit and begin
construction within four (4) months after the date of this Agreement and must
Substantially Complete construction of all Improvements within fourteen (14)
months after the date of this Agreement (the "Completion Deadline"). For
purposes of this Agreement, "Substantially Complete" means the date on which
the Improvements have been completed to the extent necessary for the City to
issue a certificate of occupancy relating thereto and the City has verified that
Project elements for which no permit was necessary have been substantially
completed. All deadlines are subject to Unavoidable Delays as defined in
paragraph B below. The City's Community Planning and Development Director
may, but shall not be required to, consent to an extension of time of up to six (6)
months for the construction of any phase of the Improvements. Any additional or
longer time extensions will require consent of the City Council.
B. Events triggering termination. If Company does not Substantially
Complete construction of the Improvements on the schedule stated above,
subject to Unavoidable Delays, then City may terminate this Agreement as set
forth in Section 12, and City shall then have no further obligation to Company
under this Agreement. If development has commenced within the required
period, as the same may be extended, and is subsequently stopped or delayed
as a result of an act of God, war, civil disturbance, court order, labor dispute,
supply shortages, fire, or other cause beyond the reasonable control of Company
(each an "Unavoidable Delay"), the requirement that construction be completed
by the Completion Deadline shall be tolled for a period of time equal to the period
of Unavoidable Delay. As promptly as possible, Company shall notify City in
writing of the occurrence of any Unavoidable Delay and shall again notify City in
writing when the Unavoidable Delay has ended.
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4. Indemnity. Company further agrees that it shall indemnify City and hold it
harmless with respect to any demand, claim, cause of action, damage, cost, expense,
liability or injury made, suffered, or incurred as a result of or in connection with the
Project, or Company's failure to carry on or complete same, or any Lien or Liens on or
against the Property of any type or nature whatsoever that attach to the Property by
virtue of Company's ownership of same. A "Lien" is any lien, claim, charge, security
interest, mortgage or encumbrance on, against or affecting the Property. If City files suit
to enforce the terms of this Agreement and prevails in such suit, then Company shall be
liable for all legal expenses, including but not limited to reasonable attorneys' fees,
incurred by City. Company's duties of indemnity pursuant to this Section shall survive
the expiration, termination or cancellation of this Agreement for any reason.
5. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services from street right
of way to any location on the Property and for payment of any associated connection
fees.
6. Incentives. To aid in the Project, City will provide the following incentives:
A. Infill Housing Grant. As provided in the City's infill housing policy,
City will pay Company a grant of$5,000.00 for each apartment unit completed,
for a total incentive of$60,000.00, within ninety (90) days after City has verified
that the Improvements have been Substantially Completed.
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. Until the Improvements have been 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 construction of the Improvements.
B. 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 where 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.
C. 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 construction and operation of the Improvements.
D. Company agrees during construction of the Improvements to
maintain, as applicable, builder's risk, property damage, and liability insurance
coverages with respect to the Improvements in such amounts as are customarily
3
carried by like companies engaged in activities of comparable size and liability
exposure, and shall provide evidence of such coverages to the City upon
request.
8. 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.
9. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It 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.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company and, assuming due authorization, execution and
delivery by the other parties hereto, 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.
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 operating agreement 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. 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
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any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
10. 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 or resulting from any defect in the Improvements. The indemnified
parties shall not be liable for any damage or injury to the persons or property of
Company or its employees, contractors or agents, or any other person who may
be about any of 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 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 construction, installation, ownership, and
operation of the Improvements, or (3) otherwise as a result of or in connection
with the Project or Company's failure to carry on or complete same.
C. The indemnification obligations under this Section shall include
attorneys' fees and expenses incurred by any indemnified part. The provisions of
this Section shall survive the expiration or termination of this Agreement.
11. 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 construction of the Improvements
on the Property to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement;
B. Reserved.
C. 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;
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D. 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; (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; or (5) defaults
under any mortgage applicable to the Property.
E. 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.
12. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement, in
whole or in part. 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.
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
6
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.
13. Materiality of Company's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company 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 City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
or in the event of the incorrectness or falsity of any representation or warranty, City
may, at its sole option and in addition to any other right or remedy available to it,
terminate this Agreement and declare it null and void.
14. 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.
15. 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.
16. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, fax number
319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 4532 William Drive, Waterloo, Iowa 50701,
Attention: Jeff Stickfort.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
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postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
17. 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.
18. 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.
19. 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
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 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.
20. 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.
21. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
22. 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.
23. Entire Agreement. This Agreement, together with the exhibits attached
hereto, if any, 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.
24. Time of Essence. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA C 10 INVESTMENTS, L.L.C.
By: 46 �`By:Y 1.
Quentin M. Hart, Mayor Je tickfort
Managing Member
Attest:
elley Fel le, ity Clerk
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EXHIBIT"A"
Description of Property
Lot 4 in Schoitz Addition,City of Waterloo,Black Hawk County,Iowa.
1
Preparer: Christopher S.Wendland, P.O. Box 596, Waterloo, Iowa 50704 (319)234-5701
After recording, return to Community Planning&Development, 715 Mulberry Street, Waterloo, IA 50703.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
rte- , 2024 by and between C 10 Investments, L.L.C. ("Company"), and
the City of Waterloo, Iowa ("City").
RECITALS
A. Company is willing and able to finance and construct a 12-unit apartment
building and related improvements on property it owns in the City of
Waterloo.
B. City considers infill residential 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 to encourage that goal. City believes that
such development is in the vital and best interests of the City and in
accordance with the public purposes and provisions of the applicable
State and local laws and requirements under which the Projects (defined
below) have been undertaken and are being assisted.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Property Preparation. Company is the owner of the Property. Company
shall, at its own expense, undertake any and all actions necessary or advisable to
prepare the Property for construction.
2. Improvements by Company. Company shall construct a single 12-unit
apartment building on the real property described on Exhibit "A" attached hereto (the
"Property"), completed to a finished state, including installation of driveways and
sidewalks, removal of all construction debris, proper leveling or shaping of
groundscape, and grassing and/or landscaping (construction and finishing as so
described are referred to as the "Improvements"). The Improvements shall be
constructed in accordance with the terms of this Agreement, all applicable City, state,
1
and federal building codes and shall comply with all applicable City ordinances and
other applicable law. Company shall submit specific building designs and site plans for
City review and approval before the commencement of construction and shall not
substantially deviate from such plans, specifications or designs. 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 Improvements may be lawfully constructed. The Property, the
Improvements, and all site preparation and development-related work to be undertaken
and completed by Company under this Agreement are collectively referred to as the
"Project."
3. Timeliness of Construction. The parties agree that Company's
commitment to cause the Project to be undertaken and to construct the Improvements
in a timely manner constitutes a material inducement for the City to extend the
incentives provided for in this Agreement, and that without said commitment City would
not do so.
A. Deadlines to commence and complete. Subject to Unavoidable
Delays (defined below), Company must obtain a building permit and begin
construction within four (4) months after the date of this Agreement and must
Substantially Complete construction of all Improvements within fourteen (14)
months after the date of this Agreement (the "Completion Deadline"). For
purposes of this Agreement, "Substantially Complete" means the date on which
the Improvements have been completed to the extent necessary for the City to
issue a certificate of occupancy relating thereto and the City has verified that
Project elements for which no permit was necessary have been substantially
completed. All deadlines are subject to Unavoidable Delays as defined in
paragraph B below. The City's Community Planning and Development Director
may, but shall not be required to, consent to an extension of time of up to six (6)
months for the construction of any phase of the Improvements. Any additional or
longer time extensions will require consent of the City Council.
B. Events triggering termination. If Company does not Substantially
Complete construction of the Improvements on the schedule stated above,
subject to Unavoidable Delays, then City may terminate this Agreement as set
forth in Section 12, and City shall then have no further obligation to Company
under this Agreement. If development has commenced within the required
period, as the same may be extended, and is subsequently stopped or delayed
as a result of an act of God, war, civil disturbance, court order, labor dispute,
supply shortages, fire, or other cause beyond the reasonable control of Company
(each an "Unavoidable Delay"), the requirement that construction be completed
by the Completion Deadline shall be tolled for a period of time equal to the period
of Unavoidable Delay. As promptly as possible, Company shall notify City in
writing of the occurrence of any Unavoidable Delay and shall again notify City in
writing when the Unavoidable Delay has ended.
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4. Indemnity. Company further agrees that it shall indemnify City and hold it
harmless with respect to any demand, claim, cause of action, damage, cost, expense,
liability or injury made, suffered, or incurred as a result of or in connection with the
Project, or Company's failure to carry on or complete same, or any Lien or Liens on or
against the Property of any type or nature whatsoever that attach to the Property by
virtue of Company's ownership of same. A "Lien" is any lien, claim, charge, security
interest, mortgage or encumbrance on, against or affecting the Property. If City files suit
to enforce the terms of this Agreement and prevails in such suit, then Company shall be
liable for all legal expenses, including but not limited to reasonable attorneys' fees,
incurred by City. Company's duties of indemnity pursuant to this Section shall survive
the expiration, termination or cancellation of this Agreement for any reason.
5. Utilities. Company will be responsible for extending water, sewer,
telephone, telecommunications, electricity, gas and other utility services from street right
of way to any location on the Property and for payment of any associated connection
fees.
6. Incentives. To aid in the Project, City will provide the following incentives:
A. Infill Housing Grant. As provided in the City's infill housing policy,
City will pay Company a grant of$5,000.00 for each apartment unit completed,
for a total incentive of$60,000.00, within ninety (90) days after City has verified
that the Improvements have been Substantially Completed.
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. Until the Improvements have been 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 construction of the Improvements.
B. 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 where 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.
C. 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 construction and operation of the Improvements.
D. Company agrees during construction of the Improvements to
maintain, as applicable, builder's risk, property damage, and liability insurance
coverages with respect to the Improvements in such amounts as are customarily
3
carried by like companies engaged in activities of comparable size and liability
exposure, and shall provide evidence of such coverages to the City upon
request.
8. 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.
9. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. It 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.
B. It has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as presently proposed
to be conducted, and to enter into and perform its obligations under this
Agreement.
C. This Agreement has been duly and validly authorized, executed
and delivered by Company and, assuming due authorization, execution and
delivery by the other parties hereto, 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.
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 operating agreement 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. 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
4
any manner raises any questions affecting the validity of the Agreement or
Company's ability to perform its obligations under this Agreement.
10. 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 or resulting from any defect in the Improvements. The indemnified
parties shall not be liable for any damage or injury to the persons or property of
Company or its employees, contractors or agents, or any other person who may
be about any of 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 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 construction, installation, ownership, and
operation of the Improvements, or (3) otherwise as a result of or in connection
with the Project or Company's failure to carry on or complete same.
C. The indemnification obligations under this Section shall include
attorneys' fees and expenses incurred by any indemnified part. The provisions of
this Section shall survive the expiration or termination of this Agreement.
11. 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 construction of the Improvements
on the Property to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement;
B. Reserved.
C. 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;
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D. 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; (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; or (5) defaults
under any mortgage applicable to the Property.
E. 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.
12. Remedies.
A. Default by Company. Whenever any Event of Default in respect of
Company occurs and is continuing, the City may terminate this Agreement, in
whole or in part. 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.
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
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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.
13. Materiality of Company's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company 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 City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement. Upon breach of any promise or covenant,
or in the event of the incorrectness or falsity of any representation or warranty, City
may, at its sole option and in addition to any other right or remedy available to it,
terminate this Agreement and declare it null and void.
14. 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.
15. 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.
16. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, fax number
319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 4532 William Drive, Waterloo, Iowa 50701,
Attention: Jeff Stickfort.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
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postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains
written electronic confirmation from the sending facsimile machine that such
transmission was successful. A party may change the address for giving notice by any
method set forth in this Section.
17. 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.
18. 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.
19. 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
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 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.
20. 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.
21. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
22. 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.
23. Entire Agreement. This Agreement, together with the exhibits attached
hereto, if any, 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.
24. Time of Essence. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Development
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA C 10 INVESTMENTS, L.L.C.
By: O' l-eAv6 By:
Quentin M. Hart, Mayor Je tickfort
Managing Member
Attest: i
elley Fel e, ity Clerk
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EXHIBIT "A"
Description of Property
Lot 4 in Schoitz Addition, City of Waterloo, Black Hawk County, Iowa.
1