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HomeMy WebLinkAboutAlderman, David and Mary - (RECORDED)Development Agreement - 10.21.2024 2024-24328 RECORDED: 12/05/2024 08:53:00 AM RECORDING FEE:$47.00 REVENUE TAX:$ COMBINED FEE:$47.00 SANDIE L.SMITH,RECORDER BLACK HAWK COUNTY,IOWA *C;4y aT \00 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 ?b.- (Q 3".0 , 2024, by and between David R. Alderman and Mary H. Alderman, husband and wife (collectively, "Developer"), and the City of Waterloo, Iowa ("City"). RECITALS A. City is the owner of real property described on Exhibit "A" attached hereto (the "Property"), which constitutes unused tract dedication for access to a park parcel that has not been developed and is not expected to be developed. B. Developer is the owner of real property at 4805 Edgebrook Drive, which abuts the Property, and desires to acquire the Property in order to widen their lot. B. City considers 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. City believes that placement of the Property on the tax rolls and providing for certain improvements to the Property is in the 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 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. Sale of Property; Title. Subject to the terms hereof, Developer shall purchase the Property from City for the sum of$1.00 (the "Purchase Price"), payable in full at closing. City shall convey the Property to Developer by quit claim deed, free and clear of all encumbrances arising by or through City except: (a) easements, servitudes, conditions and restrictions of record; (b) general utility and right-of-way easements serving the Property; and (c) restrictions imposed by the City zoning ordinances and other applicable law. Developer may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to Developer, and if City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Developer, Developer may terminate this Agreement. Closing on the purchase shall occur within sixty (60) days after the date of this Agreement, on a date that is mutually agreeable to the parties. 2. Improvements by Developer. Developer acknowledges that it has had a reasonable opportunity to inspect the Property and to conduct other due diligence related to the Project. Developer agrees to accept the Property in its "AS IS" condition, without any warranty from City, expressed or implied, as to the condition of the Property, its marketability, or its fitness for any particular purpose. Within one (1) year after the date of this Agreement, Developer shall install a standard concrete sidewalk across the Property, extending from the end of the sidewalk already existing on Developer's property. The work of Developer as described in this Section is referred to as the "Improvements"). The Improvements shall be constructed in accordance with the terms of this Agreement, all applicable City, state, and federal building codes and shall comply with all applicable City ordinances and other applicable law. Developer 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. Developer will be solely responsible to prepare the Property (if any preparation is needed) to allow for construction of all Improvements. The Property, the Improvements, and all site preparation and development-related work to be undertaken and completed by Developer under this Agreement are collectively referred to as the "Project." 3. Timeliness of Construction; Possibility of Reverter. The parties agree that Developer's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Developer and that without said commitment City would not do so. A. Deadlines to commence and complete. Developer must obtain a building permit and thereafter Substantially Complete construction within twelve (12) months after conveyance of the Property to Developer (the "Completion Deadline"). For purposes of this Agreement, "Substantially Completed" 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 City has verified that any Project element for which no permit was necessary has 2 been Substantially Completed. All deadlines are subject to Unavoidable Delays as defined in paragraph B below. B. Events triggering termination and/or reverter of title. If development has not been Substantially Completed by the Completion Deadline or within any agreed period of extension and is stopped and/or delayed as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond the reasonable control of Developer (each such condition or event being an "Unavoidable Delay"), the requirement that construction is to be Substantially Completed by the Completion Deadline shall be tolled for a period of time equal to the period of such stoppage or delay. If construction is not Substantially Completed by the Completion Deadline or within the allowed period of extension, then City may terminate this Agreement following Developer's failure to diligently undertake construction within thirty (30) days following written notice of default from City. If at any time Developer fails to diligently undertake construction and other activities necessary to Substantially Complete the Improvements, then City may terminate this Agreement following Developer's failure to resume and diligently carry on construction within thirty (30) days following written notice of default from City. After City terminates this Agreement, City shall have no further obligations to Developer under this Agreement, and City shall have no duty to reimburse Developer for any costs expended by Developer with respect to the Project or to compensate Developer for any value added to the Property by any Improvements. 5. Reverter of Title; Indemnity. In the event of any reverter of title pursuant to Section 4, Developer agrees that it shall, at its own expense, promptly execute all documents, including but not limited to a special warranty deed, or take such other actions as the City may reasonably request to effectuate said reverter and to deliver to City title to the Property, free and clear of any lien, claim, charge, security interest, mortgage or encumbrance (collectively, "Liens") arising by or through Developer. Concurrently with delivery of the deed, Developer shall also deliver to City the abstract of title. Developer shall pay in full, so as to discharge or satisfy, all Liens on or against the Property. Appointment of Attorney in Fact: If Developer fails to deliver such documents, including but not limited to a special warranty deed, to City within thirty (30) days of written demand by City, then City shall be authorized to execute, on Developer's behalf and as its attorney-in-fact, the special warranty deed required by this Section, and for such limited purpose Developer does hereby constitute and appoint City as its attorney-in-fact. Developer further agrees that it shall indemnify City and hold it harmless with respect to any demand, claim, cause of action, damage, or injury made, suffered, or incurred as a result of or in connection with the Project, Developer'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(es) to the Property by virtue of Developer's ownership of same. If City files suit to enforce the terms of this Agreement and prevails in such suit, then Developer shall be liable for all legal expenses, including but not limited to 3 reasonable attorneys' fees, incurred by City. Developer's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. No Encumbrances. Until the Improvements are Substantially Completed, Developer agrees that it shall not create, incur, or suffer to exist any Liens on the Property. 7. Additional Covenants of Developer. In addition to the other promises, covenants and agreements of Developer as provided elsewhere in this Agreement, Developer agrees as follows: A. Until the Improvements have been Substantially Completed, Developer 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 Developer with respect to construction of the Improvements. B. Developer 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. C. Developer shall make no sale or conveyance of the Property or any portion thereof separately from sale or conveyance of Developer's own property, without City's prior written consent. 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 Developer. Developer hereby represents and warrants as follows: A. Reserved. B. There are no actions, suits or proceedings pending or threatened against or affecting Developer 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 Developer or which in 4 any manner raises any questions affecting the validity of the Agreement or Developer's ability to perform its obligations under this Agreement. 10. 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 Developer to cause the Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Developer of any interest (either directly or indirectly) in the Improvements, the Property, or this Agreement, without the prior written consent of City; 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; D. Any representation or warranty made by Developer in this Agreement, or made by Developer in any written statement or certificate furnished by Developer 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. 11. Remedies. A. Default by Developer. Whenever any Event of Default in respect of Developer occurs and is continuing, City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Developer 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 Developer 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 Developer 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, Developer may take such action against City to require it to specifically perform its obligations hereunder. Before exercising such remedy, Developer 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 5 the Developer 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. 12. Indemnification. Developer 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 Project site 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 Developer or its directors, officers, employees, contractors or agents, or any other person who may be about the Project site 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. The provisions of this Section shall survive the expiration or termination of this Agreement. 13. Materiality of Developer's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of Developer 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. Developer 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. Developer 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 6 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, or by United States registered or certified mail, postage prepaid, 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 Developer, at 4805 Edgebrook Drive, Waterloo, Iowa 50701. 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, or (iii) 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. 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 Developer 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, 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. 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 7 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, 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. 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 g : 67uer cn R r� �I Y Quentin M. Hart, Mayor David R. Alderman Attest: 7selley Felch(e a dzkziLW Kelley Felchle, City Clerk Mary . Alderman 8 Legal Part of Tract A of Southland Park Subdivision,City of Waterloo, Black Hawk County, Iowa described as follows: The ten (10)foot wide part of said Tract A as platted Northwesterly of Lot 27 of said addition, Southeasterly of Lot 28 of said addition, Northeasterly of a line drawn from the Southwesterly corner of Lot 28 said addition to the Northwesterly corner of Lot 27 said addition,and Southwesterly of a line drawn from the Southeasterly corner of Lot 28 said addition to the Northeasterly corner of Lot 27 said addition,with the City's retention of an eight(8)foot wide utility easement lying Southwesterly of and adjacent to the most northeasterly line of the above described parcel. 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 CP70$1$r2 340 , 2024, by and between David R. Alderman and Mary H. Alderman, husband and wife (collectively, "Developer"), and the City of Waterloo Iowa ("City"). RECITALS A. City is the owner of real property described on Exhibit "A" attached hereto (the 'Property"), which constitutes unused tract dedication for access to a park parcel that has not been developed and is not expected to be developed B. Developer is the owner of real property at 4805 Edgebrook Drive, which abuts the Property, and desires to acquire the Property in order to widen their lot. City considers 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. City believes that placement of the Property on the tax rolls and providing for certain improvements to the Property is in the 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 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. Sale of Property; Title. Subject to the terms hereof, Developer shall purchase the Property from City for the sum of $1.00 (the "Purchase Price"), payable in full at closing. City shall convey the Property to Developer by quit claim deed, free and clear of all encumbrances arising by or through City except: (a) easements, servitudes, conditions and restrictions of record; (b) general utility and right-of-way easements serving the Property; and (c) restrictions imposed by the City zoning ordinances and other applicable law. Developer may, at its own expense, obtain whatever form of title evidence it desires. If title is unmarketable or subject to matters not acceptable to Developer, and if City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Developer, Developer may terminate this Agreement. Closing on the purchase shall occur within sixty (60) days after the date of this Agreement on a date that is mutually agreeable to the parties. 2. Improvements by Developer. Developer acknowledges that it has had a reasonable opportunity to inspect the Property and to conduct other due diligence related to the Project. Developer agrees to accept the Property in its 'AS IS" condition, without any warranty from City, expressed or implied, as to the condition of the Property, its marketability, or its fitness for any particular purpose. Within one (1) year after the date of this Agreement, Developer shall install a standard concrete sidewalk across the Property, extending from the end of the sidewalk already existing on Developer's property. The work of Developer as described in this Section is referred to as the 'Improvements"). The Improvements shall be constructed in accordance with the terms of this Agreement all applicable City, state and federal building codes and shall comply with all applicable City ordinances and other applicable law. Developer 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. Developer will be solely responsible to prepare the Property (if any preparation is needed) to allow for construction of all Improvements. The Property, the Improvements, and all site preparation and development -related work to be undertaken and completed by Developer under this Agreement are collectively referred to as the "Project." 3. Timeliness of Construction; Possibility of Reverter. The parties agree that Developer's commitment to undertake the Project and to construct the Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Developer and that without said commitment City would not do so. A. Deadlines to commence and complete. Developer must obtain a building permit and thereafter Substantially Complete construction within twelve (12) months after conveyance of the Property to Developer (the "Completion Deadline"). For purposes of this Agreement, "Substantially Completed' 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 City has verified that any Project element for which no permit was necessary has 2 been Substantially Completed. All deadlines are subject to Unavoidable Delays as defined in paragraph B below. B. Events triggering termination and/or reverter of title. If development has not been Substantially Completed by the Completion Deadline or within any agreed period of extension and is stopped and/or delayed as a result of an act of God, war, civil disturbance, court order, labor dispute, fire, or other cause beyond the reasonable control of Developer (each such condition or event being an "Unavoidable Delay"), the requirement that construction is to be Substantially Completed by the Completion Deadline shall be tolled for a period of time equal to the period of such stoppage or delay. If construction is not Substantially Completed by the Completion Deadline or within the allowed period of extension, then City may terminate this Agreement following Developer's failure to diligently undertake construction within thirty (30) days following written notice of default from City. If at any time Developer fails to diligently undertake construction and other activities necessary to Substantially Complete the Improvements, then City may terminate this Agreement following Developer's failure to resume and diligently carry on construction within thirty (30) days following written notice of default from City. After City terminates this Agreement, City shall have no further obligations to Developer under this Agreement and City shall have no duty to reimburse Developer for any costs expended by Developer with respect to the Project or to compensate Developer for any value added to the Property by any Improvements. 5. Reverter of Title; Indemnity. In the event of any reverter of title pursuant to Section 4, Developer agrees that it shall, at its own expense, promptly execute all documents, including but not limited to a special warranty deed, or take such other actions as the City may reasonably request to effectuate said reverter and to deliver to City title to the Property, free and clear of any lien, claim, charge, security interest, mortgage or encumbrance (collectively, "Liens ) arising by or through Developer. Concurrently with delivery of the deed, Developer shall also deliver to City the abstract of title. Developer shall pay in full, so as to discharge or satisfy, all Liens on or against the Property Appointment of Attorney in Fact: If Developer fails to deliver such documents, including but not limited to a special warranty deed, to City within thirty (30) days of written demand by City, then City shall be authorized to execute, on Developer's behalf and as its attorney -in -fact, the special warranty deed required by this Section, and for such limited purpose Developer does hereby constitute and appoint City as its attorney -in -fact. Developer further agrees that it shall indemnify City and hold it harmless with respect to any demand claim, cause of action damage, or injury made, suffered, or incurred as a result of or in connection with the Project Developer'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(es) to the Property by virtue of Developer s ownership of same. If City files suit to enforce the terms of this Agreement and prevails in such suit, then Developer shall be liable for all legal expenses, including but not limited to 3 reasonable attorneys' fees, incurred by City. Developer's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. No Encumbrances. Until the Improvements are Substantially Completed, Developer agrees that it shall not create, incur, or suffer to exist any Liens on the Property. 7. Additional Covenants of Developer. In addition to the other promises, covenants and agreements of Developer as provided elsewhere in this Agreement, Developer agrees as follows: A. Until the Improvements have been Substantially Completed, Developer 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 Developer with respect to construction of the Improvements. B. Developer 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. C. Developer shall make no sale or conveyance of the Property or any portion thereof separately from sale or conveyance of Developer's own property, without City's prior written consent. 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 Developer. Developer hereby represents and warrants as follows: A. Reserved. B. There are no actions, suits or proceedings pending or threatened against or affecting Developer 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 Developer or which in 4 any manner raises any questions affecting the validity of the Agreement or Developer's ability to perform its obligations under this Agreement. 10. 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 Developer to cause the Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Developer of any interest (either directly or indirectly) in the Improvements, the Property, or this Agreement, without the prior written consent of City; 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; D. Any representation or warranty made by Developer in this Agreement, or made by Developer in any written statement or certificate furnished by Developer 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. 11. Remedies. A. Default by Developer. Whenever any Event of Default in respect of Developer occurs and is continuing, City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Developer 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 Developer 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 Developer 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 Developer may take such action against City to require it to specifically perform its obligations hereunder. Before exercising such remedy, Developer 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 5 the Developer 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. 12. Indemnification. Developer 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 Project site 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 Developer or its directors, officers, employees, contractors or agents, or any other person who may be about the Project site 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. The provisions of this Section shall survive the expiration or termination of this Agreement. 13. Materiality of Developer's Promises, Covenants, Representations, and Warranties. Each and every promise, covenant, representation, and warranty set forth in this Agreement on the part of Developer 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. Developer 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 ariy other right or remedy available to it, terminate this Agreement and declare it null and void 14. Performance by City. Developer 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 6 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, or by United States registered or certified mail, postage prepaid, 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 Developer, at 4805 Edgebrook Drive, Waterloo, Iowa 50701. 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, or (in) 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. 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 Developer 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, 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. 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 7 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, 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. 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 By: QuertEirc 9-(4/ Quentin M. Hart, Mayor Attest: Kelley Felchle Kelley Felchle, City Clerk R David R. Alderman Mary FW Alderman 8 Legal Part of Tract A of Southland Park Subdivision, City of Waterloo, Black Hawk County, Iowa described as follows: The ten (10) foot wide part of said Tract A as platted Northwesterly of Lot 27 of said addition, Southeasterly of Lot 28 of said addition, Northeasterly of a line drawn from the Southwesterly corner of Lot 28 said addition to the Northwesterly corner of Lot 27 said addition, and Southwesterly of a line drawn from the Southeasterly corner of Lot 28 said addition to the Northeasterly corner of Lot 27 said addition, with the City's retention of an eight (8) foot wide utility easement lying Southwesterly of and adjacent to the most northeasterly line of the above described parcel.