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HomeMy WebLinkAboutEIC Enterprises, Inc. - DA - 11.3.2025 (RECORDED) 2025-17498 RECORDED:11/26/2025 12:40:08 PM RECORDING FEE:$57.00 REVENUE TAX:$ COMBINED FEE:$57.00 SANDIE L.SMITH,RECORDER BLACK HAWK COUNTY,IOWA }I( rF fL1i: '!C ) Prepared by Austin J. McMahon, 222 1st St. E., Independence, IA 319-334-4488 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of this ?j day of ►•e tryk be{ , 2025, by and among EIC Enterprises, LLC (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act"), the City is engaged in carrying out urban renewal project activities in an area known as the Northeast Industrial Area Urban Renewal and Development. B. The City is the owner of a residential home that is located on the property at 3280 Newell Street in Waterloo, Iowa, said property's legal description being set forth in Exhibit A. The Company is willing and able to finance and undertake the relocation of said residential home to Parcel No. 8913-27-461-015, said property's legal description being set forth in Exhibit A, and to bring the residential home to a finished state on said property. C. City considers development and infill residential development within the City to be a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives to encourage the same. City believes that such development is in the vital and best interests of the City and is in accordance with the public purposes and provisions of applicable State and local laws and requirements. AGREEMENT NOW,THEREFORE,in consideration of the mutual covenants set forth herein,the parties agree as follows: 1. Condition Precedent. A condition precedent to any obligations of the City under this Agreement are contingent upon the Company acquiring ownership of Parcel No.8913-27-461-015. 2. Improvements by Company. The City is the owner of the real property locally known as 3280 Newell Street,Waterloo, Iowa(the"Newell Property")upon which is located a single-family residential dwelling or home ("the Newell Home"). Company shall relocate the Newell Home to the Parcel No. 8913-27-461-015 and shall renovate and improve the Newell Home and Parcel No. 8913-27-461-015 to a finished state suitable for single-family residential purposes, including but not limited to, sidewalk and parking, the removal of all debris, proper leveling or shaping of groundscape, and grassing and/or landscaping(all of which,including relocation,are referred to collectively referred to as the"Improvements"or"Project"). Except for acting reasonably to remove its own equipment, property, and debris, the Company shall not be responsible for any further activities on the Newell Property and the City will be responsible for the removal or disposal of any remaining parts or components of the Newell Home on the Newell Property. The City makes no warranty or representation of any kind as to the condition of the Newell Home,the Newell Property, or Parcel No. 8913-27-461-015. The City shall have no obligation to inspect or prepare the Newell Home,the Newell Property,or Parcel No. 8913-27-461-015. Company agrees that its activities and the Improvements shall be performed in accordance with the terms of this Agreement,the Urban Renewal Plan,and all applicable City, state, and federal laws and regulations, including building codes. City may require that Company submit specific designs and site plans for City review and approval. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully constructed. The Improvements and all preparation and development-related activities as contemplated by this Agreement are also referred to as the"Improvements"or"Project." 3. City Assistance. The City agrees to make a $5,000.00 infill housing incentive grant to Company upon its successful performance of its obligations under this Agreement. Payment shall be made within sixty (60) days after Company has Substantially Completed the Improvements. 4. Timeliness;Deadlines. The parties agree that Company's commitment to undertake the Project and to make the Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Company and that without said commitment City would not do so. 2 A. Deadlines. Company shall obtain all necessary permits or licenses and relocate the Newell Home within six(6)months of the date of this Agreement("Moving Deadline") and must Substantially Complete the Improvements or Project within fourteen(14)months of the date of this Agreement.The term"Substantially Complete" (or Substantial Completion) means that the Improvements or Project have been completed to the extent necessary for the City to issue a certificate of occupancy relating thereto and the City has verified that any Improvement or Project element for which no permit was necessary has 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 extension of the Moving Deadline by up to two (2) months and extension of the Substantial Completion deadline by up to six (6) months. Any additional or longer time extensions will require consent of the City Council. B. Events triggering termination. If Company does not relocate the Newell Home by the Moving Deadline, or if Company does not Substantially Complete the Improvements or Project by the Substantial Completion deadline, then City may, subject to Unavoidable Delays, terminate this Agreement and City shall then have no further obligation to Company under this Agreement. If the relocation or improvements have 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,fire,or other cause beyond the reasonable control of Company (each an "Unavoidable Delay"), then Company's performance requirements shall be tolled for a period of time equal to the period of Unavoidable Delay. If City terminates this Agreement, then City shall have no further obligations to Company under this Agreement, including but not limited to any legal or equitable obligation to reimburse Company for any costs expended by Company with respect to the Project or to compensate Company for any value added to the Property by any Improvements. In connection with termination of the Agreement, City may seek or pursue any claims or remedies that is available to it under this Agreement or law. 5. Utilities. Company will be responsible for extending, at its own expense, water, sewer, telephone,telecommunications, electricity,gas and other utility services to any location on the Property and for payment of any associated connection fees. 6. 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 with respect to the Improvements or Project: A. Company agrees to maintain, as applicable, builder's risk, property damage,and liability insurance coverages with respect to the Improvements or Project in such amounts as are customarily carried by like organizations engaged in activities of comparable size and liability exposure, and shall provide evidence of such coverages to the City upon request. B. Until the Improvements are Substantially Completed, Company shall make such reports to City, in such detail and at such times as may be reasonably requested 3 by City, as to the actual progress of Company with respect to construction of the Improvements. C. During moving of the Homes and construction of the Improvements, 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 such activities. D. Company will comply with all applicable land development laws and City and county ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of Company. 7. 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. 8. 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 4 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 any manner raises any questions affecting the validity of the Agreement or Company's ability to perform its obligations under this Agreement. F. The financing commitments, which Company will proceed with due diligence to obtain, to finance the construction of the Improvements will be sufficient to enable Company to successfully complete construction of the Improvements as contemplated in this Agreement, subject to additional costs incurred due to Unavoidable Delays. 9. Indemnification and Releases. A. Company hereby releases City, its elected officials, officers, employees, and agents (collectively, the "City Indemnified Parties") from, covenants and agrees that the City Indemnified Parties shall not be liable for, and agrees to indemnify, defend and hold harmless the City Indemnified Parties against, any claim, demand, suit, action or other proceeding of any type or nature whatsoever by any person or entity whatsoever in connection with or arising from this Agreement, the Improvements or Project, or any aspect thereof, such as the Newell Property, Newell Home, or Parcel No. 8913-27-461-015. The foregoing shall be applicable as between and among the City Indemnified Parties and Company, its directors, officers, employees, and contractors or agents, except under circumstances when the claim, demand, suit, action or other proceeding is the result of any willful misrepresentation or willful misconduct of a City Indemnified Party, and except with respect to any suit, action, demand or other proceeding brought by Company against the City to enforce Company's rights under this Agreement. B. The provisions of this Section shall survive the expiration or termination of this Agreement. 10. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of any and all procedures, hearings and approvals deemed necessary by City or its legal counsel in order to effectuate the objects and purposes of this Agreement, including but not limited to, an amendment of any relevant or applicable urban renewal plan, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type 5 provided by City hereunder within said 180-day period is subject to reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 11. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer any interest it currently has or acquires with respect to Parcel No. 8913-27-461-015 prior to completion of the Improvements or Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. Notwithstanding the foregoing, Company may mortgage the Property to a lender as security for financing of the Improvements or Project, but for no other purpose 12. 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 to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, any part of the Property, or this Agreement, without the prior written consent of City; C. Failure by Company to pay, before delinquency, all ad valorem property taxes levied on or against any of the Property before the Improvements are Substantially Completed; D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; (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 6 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 any of Property. F. Any representation or warranty made by Company in this Agreement, or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 13. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Company of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or the Event of Default cannot reasonably be cured within 30 days and Company shall not have provided assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible. Upon termination, City may exercise any and all remedies available at law, equity, contract or otherwise for recovery of any sums paid by City to Company, including but not limited to, any and all financial grants, incentives, or benefits. 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, or Company may terminate this Agreement. 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. D. 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. 14. 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 7 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. 15. 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. 16. 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. 17. 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, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at 515 2nd Street, Evansdale, Iowa 50707, Attention: Seth Engelbrecht. Delivery of notice shall be deemed to be completed: (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, postage prepaid, or (iv) when transmitted by facsimile or electronic mail so long as the sender obtains confirmation from that such transmission was successful. A party may change the address for giving notice by any method set forth in this Section. 18. 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. 8 19. 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. 20. 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. 21. 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. 22. Interpretation. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that the parties hereto and their respective attorneys have contributed substantially and materially to the preparation of each and every provision of this Agreement. 23. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors,assigns,and legal representatives. 24. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which,taken together,shall constitute one and the same instrument. 25. 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. 26. Time of Essence. Time is of the essence of this Agreement. [signatures on next page] 9 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 26. 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. 27. 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 EIC ENTERPRISES, LLC By: ,t I, � , r ) Quentin M. Hart, Mayor Se—di ngelbrecht Managing Member Attes . ell y Felch , City Clerk 10 EXHIBIT "A" Description of Property The Newell Property, which is Parcel No. 891221126002, locally known as 3280 Newell Street, Waterloo, Iowa, is legally described as The West Half of the Northeast Quarter of Section 21, Township 89 North, Range 12 West of the 5th P.M., Black Hawk County, Iowa, lying northwesterly of the northwesterly right-of-way line of the Chicago & Great Western Railway Company, except the Easterly 200 feet thereof; AND The East Half of the Northwest Quarter of Section 21 , Township 89 North, Range 12 West of the 5th P.M., Black Hawk County, Iowa, lying northwesterly of the northwesterly right-of-way line of the Chicago & Great Western Railway Company; EXCEPTING THEREFROM: THAT CERTAIN PARCEL DESCRIBED IN THE PLAT OF SURVEY RECORDED AS DOCUMENT NO. 2024-21216, IN THE OFFICE OF THE COUNTY RECORDER, BLACK HAWK, COUNTY, IA, BEING A PARCEL OF LAND LOCATED IN THEE 1/2 OF THE NW 1/4 AND THEW 1/2 OF THE NE 1/4 NORTH OF THE RAILROAD RIGHT-OF-WAY, OF SECTION 21, TOWNSHIP 89 NORTH, RANGE 12 WEST OF THE 5TH P.M. NOW IN AND FORMING A PART OF THE CITY OF WATERLOO, BLACK HAWK COUNTY, IOWA MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH 1/4 CORNER OF SAID SECTION 21; THENCE S 89°26'38" E, A DISTANCE OF 680.45 FEET, ALONG THE NORTH LINE OF SAID SECTION 21 ; THENCE S 00°31'45" W,ADISTANCEOF 1051.99 FEET, TO THENORTHRIGHT-OF-WAYLINEOF THE CHICAGO & GREAT WESTERN RAILROAD; THENCE S 70°26'38" W, A DISTANCE OF 1076.33 FEET, ALONG SAID RAILROAD RIGHT-OF-WAY; THENCE N 12°36'43" E, A DISTANCE OF 985.30 FEET; THENCE N 00°57"14" E, A DISTANCE OF 458.50 FEET, TO THE NORTH LINE OF SAID SECTION 21; THENCE S 89°27'36" E, A DISTANCE OF 120. 77 FEET, ALONG SAID NORTH LINE TO THE POINT OF BEGINNING. CONTAINING 1,055,769 SQUARE FEET (24.237 ACRES) MORE OR LESS, INCLUDING 26,444 SQUARE FEET (0.607 ACRES) OF ROADWAY EASEMENT. Parcel No. 8913-27-461-015 is legally described as Lot Nine (9), Block Eleven (11), Home Park Second Addition, Waterloo, Black Hawk County, Iowa. Prepared by Austin J. McMahon, 222 1st St. E., Independence, IA 319-334-4488 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of this 3 day of N c, �t�,pe.�r 2025, by and among EIC Enterprises, LLC (the "Company") and the City of Waterloo, Iowa (the "City"). RECITALS A. In furtherance of the objectives of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act"), the City is engaged in carrying out urban renewal project activities in an area known as the Northeast Industrial Area Urban Renewal and Development. B. The City is the owner of a residential home that is located on the property at 3280 Newell Street in Waterloo, Iowa, said property's legal description being set forth in Exhibit A. The Company is willing and able to finance and undertake the relocation of said residential home to Parcel No. 8913-27-461-015, said property's legal description being set forth in Exhibit A, and to bring the residential home to a finished state on said property. C. City considers development and infill residential development within the City to be a benefit to the community and is willing for the overall good and welfare of the community to provide financial incentives to encourage the same. City believes that such development is in the vital and best interests of the City and is in accordance with the public purposes and provisions of applicable State and local laws and requirements. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Condition Precedent. A condition precedent to any obligations of the City under this Agreement are contingent upon the Company acquiring ownership of Parcel No. 8913-27-461-015. 2. Improvements by Company. The City is the owner of the real property locally known as 3280 Newell Street, Waterloo, Iowa (the "Newell Property") upon which is located a single-family residential dwelling or home ("the Newell Home"). Company shall relocate the Newell Home to the Parcel No. 8913-27-461-015 and shall renovate and improve the Newell Home and Parcel No. 8913-27-461-015 to a finished state suitable for single-family residential purposes, including but not limited to, sidewalk and parking, the removal of all debris, proper leveling or shaping of groundscape, and grassing and/or landscaping (all of which, including relocation, are referred to collectively referred to as the "Improvements" or "Project"). Except for acting reasonably to remove its own equipment, property, and debris, the Company shall not be responsible for any further activities on the Newell Property and the City will be responsible for the removal or disposal of any remaining parts or components of the Newell Home on the Newell Property. The City makes no warranty or representation of any kind as to the condition of the Newell Home, the Newell Property, or Parcel No. 8913-27-461-015. The City shall have no obligation to inspect or prepare the Newell Home, the Newell Property, or Parcel No. 8913-27-461-015. Company agrees that its activities and the Improvements shall be performed in accordance with the terms of this Agreement, the Urban Renewal Plan, and all applicable City, state, and federal laws and regulations, including building codes. City may require that Company submit specific designs and site plans for City review and approval. Company will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully constructed. The Improvements and all preparation and development-related activities as contemplated by this Agreement are also referred to as the "Improvements" or "Project." 3. City Assistance. The City agrees to make a $5,000.00 infill housing incentive grant to Company upon its successful performance of its obligations under this Agreement. Payment shall be made within sixty (60) days after Company has Substantially Completed the Improvements. 4. Timeliness; Deadlines. The parties agree that Company's commitment to undertake the Project and to make the Improvements in a timely manner constitutes a material inducement for the City to convey the Property to Company and that without said commitment City would not do so. 2 A. Deadlines. Company shall obtain all necessary permits or licenses and relocate the Newell Home within six (6) months of the date of this Agreement ("Moving Deadline") and must Substantially Complete the Improvements or Project within fourteen (14) months of the date of this Agreement. The term "Substantially Complete" (or Substantial Completion) means that the Improvements or Project have been completed to the extent necessary for the City to issue a certificate of occupancy relating thereto and the City has verified that any Improvement or Project element for which no permit was necessary has 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 extension of the Moving Deadline by up to two (2) months and extension of the Substantial Completion deadline by up to six (6) months. Any additional or longer time extensions will require consent of the City Council. B. Events triggering termination. If Company does not relocate the Newell Home by the Moving Deadline, or if Company does not Substantially Complete the Improvements or Project by the Substantial Completion deadline, then City may, subject to Unavoidable Delays, terminate this Agreement and City shall then have no further obligation to Company under this Agreement. If the relocation or improvements have 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, fire, or other cause beyond the reasonable control of Company (each an "Unavoidable Delay"), then Company's performance requirements shall be tolled for a period of time equal to the period of Unavoidable Delay. If City terminates this Agreement, then City shall have no further obligations to Company under this Agreement, including but not limited to any legal or equitable obligation to reimburse Company for any costs expended by Company with respect to the Project or to compensate Company for any value added to the Property by any Improvements. In connection with termination of the Agreement, City may seek or pursue any claims or remedies that is available to it under this Agreement or law. 5. Utilities. Company will be responsible for extending, at its own expense, water, sewer, telephone, telecommunications, electricity, gas and other utility services to any location on the Property and for payment of any associated connection fees. 6. 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 with respect to the Improvements or Project: A. Company agrees to maintain, as applicable, builder's risk, property damage, and liability insurance coverages with respect to the Improvements or Project in such amounts as are customarily carried by like organizations engaged in activities of comparable size and liability exposure, and shall provide evidence of such coverages to the City upon request. B. Until the Improvements are Substantially Completed, Company shall make such reports to City, in such detail and at such times as may be reasonably requested 3 by City, as to the actual progress of Company with respect to construction of the Improvements. C. During moving of the Homes and construction of the Improvements, 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 such activities. D. Company will comply with all applicable land development laws and City and county ordinances, and all laws, rules and regulations relating to its businesses, other than laws, rules and regulations where the failure to comply with the same or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of Company. 7. 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. 8. 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 4 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 any manner raises any questions affecting the validity of the Agreement or Company's ability to perform its obligations under this Agreement. F. The financing commitments, which Company will proceed with due diligence to obtain, to finance the construction of the Improvements will be sufficient to enable Company to successfully complete construction of the Improvements as contemplated in this Agreement, subject to additional costs incurred due to Unavoidable Delays. 9. Indemnification and Releases. A. Company hereby releases City, its elected officials, officers, employees, and agents (collectively, the "City Indemnified Parties") from, covenants and agrees that the City Indemnified Parties shall not be liable for, and agrees to indemnify, defend and hold harmless the City Indemnified Parties against, any claim, demand, suit, action or other proceeding of any type or nature whatsoever by any person or entity whatsoever in connection with or arising from this Agreement, the Improvements or Project, or any aspect thereof, such as the Newell Property, Newell Home, or Parcel No. 8913-27-461-015. The foregoing shall be applicable as between and among the City Indemnified Parties and Company, its directors, officers, employees, and contractors or agents, except under circumstances when the claim, demand, suit, action or other proceeding is the result of any willful misrepresentation or willful misconduct of a City Indemnified Party, and except with respect to any suit, action, demand or other proceeding brought by Company against the City to enforce Company's rights under this Agreement. B. The provisions of this Section shall survive the expiration or termination of this Agreement. 10. Obligations Contingent. Each and every obligation of City under this Agreement is expressly made subject to and contingent upon City's completion of any and all procedures, hearings and approvals deemed necessary by City or its legal counsel in order to effectuate the objects and purposes of this Agreement, including but not limited to, an amendment of any relevant or applicable urban renewal plan, all of which must be completed within 180 days from the date this Agreement is approved by the City council. If such completion does not occur, then any conveyance, benefit or incentive of any type 5 provided by City hereunder within said 180-day period is subject to reverter of title, revocation, repayment or other appropriate action to restore such property, benefit or incentive to City, and Company agrees to cooperate diligently and in good faith with any reasonable request by City to effectuate the restoration of same, or failing such restoration Company agrees to be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of 5% per annum commencing with the date of demand for payment, if said payment is not remitted to City within 30 days. 11. No Assignment or Conveyance. Company agrees that it will not sell, convey, assign or otherwise transfer any interest it currently has or acquires with respect to Parcel No. 8913-27-461-015 prior to completion of the Improvements or Project, whether in whole or in part, to any other person or entity without the prior written consent of City. Reasonable grounds for the City to withhold its consent shall include but are not limited to the inability of the proposed transferee to demonstrate to the City's satisfaction that it has the financial ability to observe all of the terms to be performed by Company under this Agreement. Notwithstanding the foregoing, Company may mortgage the Property to a lender as security for financing of the Improvements or Project, but for no other purpose 12. 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 to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement; B. Transfer by Company of any interest (either directly or indirectly) in the Improvements, any part of the Property, or this Agreement, without the prior written consent of City; C. Failure by Company to pay, before delinquency, all ad valorem property taxes levied on or against any of the Property before the Improvements are Substantially Completed; D. Failure by any party hereto to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; E. Company (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the federal bankruptcy law or any similar state law; (2) makes an assignment for the benefit of its creditors; (3) admits in writing its inability to pay its debts generally as they become due; (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 6 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 any of Property. F. Any representation or warranty made by Company in this Agreement, or made by Company in any written statement or certificate furnished by Company pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. 13. Remedies. A. Default by Company. Whenever any Event of Default in respect of Company occurs and is continuing, the City may terminate this Agreement. Before exercising such remedy, City shall give 30 days' written notice to Company of the Event of Default, provided that by the conclusion of such period the Event of Default shall not have been cured, or the Event of Default cannot reasonably be cured within 30 days and Company shall not have provided assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible. Upon termination, City may exercise any and all remedies available at law, equity, contract or otherwise for recovery of any sums paid by City to Company, including but not limited to, any and all financial grants, incentives, or benefits. 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, or Company may terminate this Agreement. 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. D. 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. 14. 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 7 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. 15. 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. 16. 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. 17. 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, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Company, at 515 2nd Street, Evansdale, Iowa 50707, Attention: Seth Engelbrecht. Delivery of notice shall be deemed to be completed: (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, postage prepaid, or (iv) when transmitted by facsimile or electronic mail so long as the sender obtains confirmation from that such transmission was successful. A party may change the address for giving notice by any method set forth in this Section. 18. 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. 8 19. 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. 20. 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. 21. 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. 22. Interpretation. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that the parties hereto and their respective attorneys have contributed substantially and materially to the preparation of each and every provision of this Agreement. 23. Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 24. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 25. 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. 26. Time of Essence. Time is of the essence of this Agreement. [signatures on next page] 9 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 26. 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. 27. 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 EIC ENTERPRISES, LLC By: '.A l K G2 By: Quentin M. Hart, Mayor eth ngelbrecht Managing Member Attes ell y Felch , City Clerk 10 EXHIBIT "A" Description of Property The Newell Property, which is Parcel No. 891221126002, locally known as 3280 Newell Street, Waterloo, Iowa, is legally described as The West Half of the Northeast Quarter of Section 21, Township 89 North, Range 12 West of the 5th P.M., Black Hawk County, Iowa, lying northwesterly of the northwesterly right-of-way line of the Chicago & Great Western Railway Company, except the Easterly 200 feet thereof; AND The East Half of the Northwest Quarter of Section 21, Township 89 North, Range 12 West of the 5th P.M., Black Hawk County, Iowa, lying northwesterly of the northwesterly right-of-way line of the Chicago & Great Western Railway Company; EXCEPTING THEREFROM: THAT CERTAIN PARCEL DESCRIBED IN THE PLAT OF SURVEY RECORDED AS DOCUMENT NO. 2024-21216, IN THE OFFICE OF THE COUNTY RECORDER, BLACK HAWK, COUNTY, IA, BEING A PARCEL OF LAND LOCATED IN THEE 1/2 OF THE NW 1/4 AND THEW 1/2 OF THE NE 1/4 NORTH OF THE RAILROAD RIGHT-OF-WAY, OF SECTION 21, TOWNSHIP 89 NORTH, RANGE 12 WEST OF THE 5TH P.M. NOW IN AND FORMING A PART OF THE CITY OF WATERLOO, BLACK HAWK COUNTY, IOWA MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH 1/4 CORNER OF SAID SECTION 21; THENCE S 89°26'38" E, A DISTANCE OF 680.45 FEET, ALONG THE NORTH LINE OF SAID SECTION 21 ; THENCE S 00°31'45" W,ADISTANCEOF 1051.99 FEET, TO THENORTHRIGHT-OF-WAYLINEOF THE CHICAGO & GREAT WESTERN RAILROAD; THENCE S 70°26'38" W, A DISTANCE OF 1076.33 FEET, ALONG SAID RAILROAD RIGHT-OF-WAY; THENCE N 12°36'43" E, A DISTANCE OF 985.30 FEET; THENCE N 00°57"14" E, A DISTANCE OF 458.50 FEET, TO THE NORTH LINE OF SAID SECTION 21; THENCE S 89°27'36" E, A DISTANCE OF 120. 77 FEET, ALONG SAID NORTH LINE TO THE POINT OF BEGINNING. CONTAINING 1,055,769 SQUARE FEET (24.237 ACRES) MORE OR LESS, INCLUDING 26,444 SQUARE FEET (0.607 ACRES) OF ROADWAY EASEMENT. Parcel No. 8913-27-461-015 is legally described as Lot Nine (9), Block Eleven (11), Home Park Second Addition, Waterloo, Black Hawk County, Iowa.