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HomeMy WebLinkAboutDeere & Company-Agreement for Entrance Improvements-10.06.2008 62,-40 /ho. ud8. - 8' 8a AGREEMENT FOR ENTRANCE IMPROVEMENTS This Agreement for Entrance Improvements (the "Agreement") is entered into as of Oc-406e{ G , 2008, by and between Deere & Company ("Deere") and the City of Waterloo, Iowa("City"). RECITALS A. Deere is the owner of a tract of real property(the "Deere Property") in the City of Waterloo that is bounded on the north by River Road and on the east and south by Westfield Avenue and property platted as TechWorks Addition. TechWorks Addition includes a tract of land intended for improvement as a public street that is a westerly extension of existing Commercial Street. B. In connection with the construction of the West Commercial Street extension, Deere desires to have two drive entrances (the"Entrances")built to allow access to the Deere Property from West Commercial Street. The City is willing to include construction of such an entrance in its project, provided that related costs are reimbursed by Deere. C. The parties desire to cooperate for mutual advantage on the terms set forth herein, to achieve their respective development objectives. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises exchanged herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. City Responsibility. City agrees to include in its "FY2008 West Commercial Street Extension, River Road Relocation, and Storm Water Pump Station, Contract No. 720" project a component for design, bid and construction of the Entrances. The parties agree that the Entrances shall conform to all requirements of applicable law and such other reasonable requirements as may be made by the City Engineer. Specifications for the Entrances have previously been approved by Deere and City, subject to such further modifications to which the parties may hereafter agree. 2. Deere Responsibility. Deere agrees to pay to City a sum equal to the actual total cost allocable to the Entrances (the"Reimbursable Sum"). Based on project specifications and the engineer's project estimate attached hereto as Exhibit"A", the estimated total cost of the Entrances is $289,379.65. The parties agree that such figure is an estimate only and that the actual Reimbursable Sum may vary depending on factors such as changing cost of materials or approved project change orders. Deere will make payment of the Reimbursable Sum to City in two installments. The first installment of$150,000.00 is due and payable on or before September 1, 2008. The second installment of the remaining balance of the Reimbursable Sum, less any retainage is due and payable within thirty(30) days following written request from City based on completion of the Entrances. Retainage shall be due and payable within thirty(30) days following written request from City based on Deere's acceptance of the work. 3. Cooperation. The parties agree to work together in good faith and to offer such response and cooperation to requests and inquiries from each other as promptly as practicable, to the end that the project may be completed as efficiently as possible. Without limiting the foregoing, the parties agree to execute such documents, to give such consents, and to assist in obtaining such approvals as may be reasonably necessary for the project. 4. Nature of Relationship. Nothing contained in this Agreement shall be deemed to create or constitute any partnership,joint venture, employment, or other relationship between the parties, other than the independent contractor relationship established hereby, or otherwise to create any liability for one party with respect to any liabilities or obligations of the other party. 5. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight delivery service, or by United States registered or certified mail, postage prepaid, and addressed: Deere CITY Deere & Company City of Waterloo, Iowa 715 Mulberry Street Waterloo, Iowa 50703 Attn: Attn: Noel Anderson 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 delivery service which guarantees next day delivery, or(iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. 6. Resolution of Disputes. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this end, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of fourteen (14) days, then, upon written notice by either party to the other, all disputes, claims, questions, or disagreements shall be finally determined and settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the Expedited Procedures thereunder, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall be conducted, if possible, by mail and telephone conference call and, if personal appearances are deemed necessary by the arbitrator, in Waterloo, Iowa. All costs and expenses, including attorneys' fees, of all parties incurred in any dispute which is determined and/or settled by arbitration pursuant to this section shall be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties shall share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the 2 area in dispute, both parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved. 7. Litigation; Jury Trial Waiver. As to any dispute that is not submitted to arbitration in accordance with Section 6 above, the parties hereby agree and consent that the parties and such dispute shall be subject to the exclusive jurisdiction and venue of the Iowa District Court for Black Hawk County for any and all matters arising out of or in any way relating to such dispute or the resolution thereof In the event of litigation, the parties agree and hereby WAIVE ANY RIGHT TO A JURY TRIAL with respect to any claim, counterclaim, cause of action, or other matter arising out of or in any way connected with this Agreement. If any action is brought to enforce this Agreement or to interpret or construe its terms, the reasonable attorneys' fees of the prevailing party shall be borne by the opposing party. 8. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa, without regard to conflict of laws principles. 9. Counterparts. This Agreement may be executed in any number of counterparts, each of which, including signatures transmitted by facsimile or other electronic means, shall be deemed an original and all of which together shall constitute one and the same instrument. 10. Miscellaneous Provisions. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement is the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior understandings or agreements relating to the subject matter hereof, whether oral or written, and this Agreement may not be modified except by the mutual written agreement of both parties. Time is of the essence in the observance and performance of the duties and rights set forth in this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement for Entrance Improvements by their duly authorized representatives as of the date first set forth above. DEERE COMP Y CITY OF WATERLOO, IOWA • /(16-4r- By: David Rodger B . Title: General Manager Timothy J. Hurle , Mayor Attes (jJ Nancy Eckert, y Clerk 3