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HomeMy WebLinkAboutKwik Trip Offer to Purchase-4/24/2017OFFER TO PURCHASE Kwik Trip, Inc., a Wisconsin corporation, with offices at 1626 Oak Street, La Crosse, Wisconsin 54603 or its assigns ("Buyer") offers to purchase from the City of Waterloo, an Iowa municipality, with offices located at 715 Mulberry Street, Waterloo, Iowa 50703 ("Seller") certain real estate located on Ridgeway Avenue, Waterloo, Iowa (a portion of Parcel No. 8913-32-476- 010), as generally depicted and described on attached Exhibit A (the legal description of which shall be verified by Buyer's survey after Seller completes the subdivision to create the Property), together with easements, access rights, and privileges appurtenant thereto, and rights, title and interest in and to any land lying in the bed of any adjoining road or alley ("Property"), on the following terms and conditions. If this Offer is not accepted on or before April 25, 2017, this Offer shall become null and void. Upon acceptance of this Offer by Seller and Buyer, this Offer shall constitute an agreement for the purchase and sale of the Property ("Agreement") on the following terms and conditions: 1. PURCHASE AND SALE OF PROPERTY. 1.1 Property. Seller will validly sell and deliver to Buyer, by special warranty deed, free and clear of all defects, liens and encumbrances, except for current taxes not yet delinquent, and Buyer will accept and acquire at Closing, the Property. 1.2 Purchase Price for Real Property. (a) Amount and Payment. The purchase price for the Property shall be One and 00/100 Dollar ($1.00) ("Purchase Price"), which shall be payable at Closing. (b) Closing Adjustments. (i) Real estate taxes shall be prorated as of the Closing Date. If tax bills for the year of the Closing Date are not available as of the Closing Date, such proration shall be based upon the tax bills for the calendar year immediately preceding the calendar year in which the Closing Date occurs; and (ii) All utility charges, if any, for the Property shall be metered as of the Closing Date and paid by Seller on or immediately after the Closing Date without the requirement of proration. Utility charges which cannot be so metered shall be prorated on the basis of the last period for which a statement is available. 1.3. Personal Property. There is no personal property included in the sale. 2. NO ASSUMPTION OF LIABILITIES. BUYER DOES NOT ASSUME AND SHALL NOT BE LIABLE FOR ANY OF SELLER'S OBLIGATIONS OR LIABILITIES OF ANY NATURE WHATSOEVER, AND THE SAME SHALL CONTINUE TO BE THE RESPONSIBILITY OF SELLER. 3. WARRANTIES OF SELLER. Seller warrants to Buyer and agrees that: 3.1 Compliance. Seller will comply with all applicable laws as maybe required for the valid and effective transfer of the Property to Buyer. 3.2 Absence of Consents, Liabilities and Litigation. No consent or authorization is required for the consummation by Seller of the transactions contemplated hereby. There is no lease, agreement, mortgage, financing statement, security agreement or other instrument to which Seller is a party and by which the Property is subject or bound. There is no liability, order, judgment, stipulation, consent decree or obligation of any kind whatsoever to which the Property will be subject following consummation of the transactions contemplated hereby. There is no legal proceeding or investigation pending or threatened against Seller or the Property, which could materially and adversely affect it, nor has Seller committed any act which could give rise to any such legal proceeding or investigation. 3.3 Property. (a) Title. Seller will have, as of the Closing Date, good and marketable title to and undisputed possession of the Property. Seller's title will be as of Closing Date free and clear of all defects, Hens, and encumbrances not approved by Buyer in writing, including, without limitation, all claims of parties in possession, unpaid taxes and special assessments, easements, rights-of-way, mortgages, judgments, encumbrances, leases, tenancies, franchise agreements, restrictive covenants, encroachments, party wall agreements, mineral interests, or other matters not acceptable to Buyer. Seller's title has not been disputed and no person or entity has any option to purchase, contract for the purchase of, or claim to or against the Property for any reason whatsoever. (b) Quantity. The Property consists of approximately 175,000 square feet, all of which is located outside of adjacent streets. (c) Condition. There are no underground storage tanks or wells located on the Property. There is no solid waste located on the Property. (d) Matters Affecting the Property. Seller has no notice or knowledge of: (i) actions, corrective actions, special proceedings, bankruptcies or probate proceedings affecting the Property; (ii) any planned or commenced public improvements which may result in special assessments or otherwise materially affect the Property; (Hi) any order requiring any repairs to or corrections of any existing conditions of the Property; (iv) any violation of any subdivision, land use, zoning, building or environmental laws or governmental requirements affecting the Property or the ownership, occupancy or use thereof or the proposed use and development of the Property thereof by Buyer; (v) any planned or pending condemnation with respect to the Property or any part thereof; or (vi) any spill, overfill, release or leak incident from any underground storage tank impacting or which may impact the Property and/or adjacent ground water. No structures situated on adjacent properties encroach onto the Property. A right of access exists to, and the Property extends to the street line of all adjacent streets. Adequate governmental authority exists to maintain the access to public streets currently existing from the Property. All bills and charges for work, labor and services rendered and materials furnished in the improvement of the Property have been paid and no person or entity has filed or has a right to file a mechanic's lien therefor. The Property is not located within a flood plain. Seller has no 2 notice or knowledge of any accumulation in or about the Property and adjacent groundwater of: (i) petroleum, PCBs, asbestos, urea formaldehyde or any hazardous waste or toxic, pollutant, contaminant or other substance regulated by any state or federal statute including the Solid Waste Disposal Act, as amended, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601), the Resource Conservation and Recovery Act (42 U.S.C. Sec. 6901) or the Toxic Substance Control Act (15 U.S.C. Sec. 2604) or by any other statute, rule, regulation or order of any governmental agency having jurisdiction over the control of such substances or wastes; or (ii) other substances of public health concern. 3.4 Warranties True at Closing; Survival of Warranties. Each of the warranties of Seller set forth herein or in any exhibit or instrument delivered pursuant hereto shall be true and correct on the Closing Date as if made again on and as of the Closing Date, shall be effective regardless of any investigation that may have been or may be made by or on behalf of Buyer, and shall survive the Closing Date. 4. CLOSING DATE. Closing shall take place one hundred eighty (180) days from Buyer's receipt of the ALTA survey as set out in Section 5.3 herein, or at such other time as shall be mutually agreed upon. The date and event of closing are, respectively herein referred to as "Closing Date" and "Closing". Closing shall be held via mail through the Title Company or such other place as shall be mutually agreed upon. 5. COVENANTS OF SELLER. 5.1 Conduct Pending Closing Date. Seller agrees to provide Buyer with full access to examine the Property. Seller shall furnish Buyer with copies of all deeds, restrictive covenants, easements, financing statements, lis pendens, leases, agreements, mortgages, security agreements or other instruments to which Seller is a party and/or by which the Property is subject or bound. Seller shall advise Buyer fully as to any agreements, leases or tenancies not in writing affecting the Property. Pending Closing, Seller agrees to cooperate with Buyer in obtaining the permits, approvals and licenses necessary for Buyer's ownership and operation of the Property. 5.2 Title Insurance. Seller shall provide to Buyer an updated abstract of the Property within thirty (30) days from acceptance of this Offer. Buyer shall obtain a commitment to issue an ALTA Form 2006 owner's title insurance policy. All expense incurred in obtaining such commitment and in paying the premium charge for the final title policy shall be paid by Buyer. Such title commitment shall show good and marketable title to the Property in Seller subject only to exceptions or encumbrances acceptable to Buyer. Should Buyer notify Seller in writing of any title matters (exceptions to title or exclusions from title) not acceptable to Buyer ("Title Defect"), Seller shall utilize its best efforts to correct such title matters. Seller shall have thirty (30) days from delivery of Buyer's notice to have such title matters removed from the title commitment and/or to have the title insurance company commit to insure against any loss or damage which may arise or result from such title matters, and in such event, Closing shall be forty-five (45) days after delivery of Buyer's notice or the Closing Date, whichever is later. If Seller is unable to correct such title matters within the appropriate thirty (30) day period, Buyer may, at its option, take all necessary action to do so. Buyer shall have all necessary time to correct such title matters provided Buyer proceeds with reasonable diligence. If Buyer is unable to correct such title matters or opts not to attempt to do so, Buyer may in its sole discretion terminate this Agreement without any liability by written notice to Seller. 3 5.3 Survey Certification. (a) Seller will provide Buyer with all surveys of the Property in its possession. Buyer may at its option, obtain an updated survey of the Property, and Seller agrees to cooperate with Buyer in obtaining such survey. All expenses incurred in obtaining such survey shall be paid by Buyer. Such survey shall be prepared in accordance with the Minimum Standard Detail Requirements for Land Title Surveys as adopted by the American Title Association and the American Congress on Surveying and Mapping in 2016, and shall include a proper and complete legal description of such Property and shall show: (i) external boundaries of such Property and the length and direction of each dimension; (11) access to and names of the nearest or adjacent public roads; (iii) the locations of all recorded easements; (iv) the locations of any flood plains; (v) the legal description and street address of such Property and the number of square feet within such property; (vi) setback requirements; (vii) physical encroachments onto such Property and from such Property onto adjacent property; (viii) the locations of monuments at corners; (ix) the locations of all improvements; (x) the locations of all utilities and if they have not been extended to the boundary of such Property, the nearest point from which they could be extended to such Property; (xi) the locations of all concrete pads, stand pipes, vent pipes and filler pipes; (xii) the topography of the Property at two foot intervals; and (xiii) other information necessary or required by the title company to remove the "survey" exception in the title commitment; (b) The survey described above shall contain a certification by the surveyor to Buyer and all those who may purchase, take a mortgage on or insure title to the Property described therein within one (1) year from the date of said survey that (1) the information, courses, and distances shown are correct, (ii) the title lines and lines of actual possession are the same, (iii) the size, location and type of buildings and improvements are as shown and all are within the boundary lines and applicable setback lines of such Property, (iv) there are no violations of zoning ordinances or restrictions with reference to the location, size or height of said buildings and improvements, (v) there are no easements or uses affecting such Property appearing from a careful inspection of the same, other than as shown on the commitment of title insurance described in Section 5.2 hereof and depicted thereon, (vi) there are no encroachments affecting such Property except as shown on the survey, and (vii) no part of such Property lies within a flood zone designation (with proper annotation based on federal Flood Insurance Rate Maps or the state or local equivalent, by scaled map location and graphic plotting only). 5.4 Transfer Fees. Seller shall be responsible for and shall pay all state transfer fees and/or deed taxes imposed with respect to the transfer of the Property to Buyer. 5.5 Nonforeign Affidavit. Seller shall deliver to Buyer at Closing Seller's affidavit that Seller is not a foreign person, foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in and in accordance with the Internal Revenue Code of 1986, as amended, and the applicable regulations promulgated thereunder). 5.6 Further Instruments. On Closing Date, or thereafter if necessary, Seller shall, without cost or expense to Buyer, execute and deliver to or cause to be executed and delivered to Buyer such further instruments of transfer and conveyance as Buyer may reasonably request, and take such other action as Buyer may reasonably require to carry out more effectively the sale and transfer of the Property contemplated by this Agreement and to protect the right, title and interest of Buyer in and enjoyment by Buyer of the Property. 4 6. MUTUAL COVENANTS AND WARRANTIES. 6.1 Special Assessments. Special assessments, if any, for work on the site of the Property commenced and any areawide assessments or charges for work plans adopted prior to or on Closing Date shall be paid by Seller. Special assessments, if any, for work on such site of the Property commenced after Closing Date, shall be paid by Buyer. Seller shall pay any agricultural penalty/back taxes on the Property which are due and payable through the Closing Date. 6.2 Eminent Domain. If all or any portion of the Property or points of access thereto are condemned by public or quasi -public authority prior to Closing, Seller immediately shall notify Buyer thereof and of the portion of the Property which shall have been condemned. Buyer may, in its sole discretion, terminate this Agreement without any liability by written notice to Seller within fifteen (15) days following notice of such condemnation. 6.3 Binding Obligation. Seller warrants to Buyer and Buyer warrants to Seller that this Agreement constitutes its valid and legally binding obligation enforceable against it in accordance with the provisions hereof. 6.4 Zoning. If the Property is not zoned for Buyer's operation of a truck terminal/self-fueling station at the time of Seller's acceptance of the Offer, Buyer will after such acceptance, file an application to have the Property so zoned, and Seller agrees to support Buyer's application for rezoning, to the extent not inconsistent with Seller's role as the zoning authority. All reasonable expense incurred in filing and processing such application for rezoning shall be paid by Buyer. 6.5 Specific Performance. Buyer shall have the right to specific performance, upon tender of payment by Buyer, of each of the agreements and obligations of Seller to be performed hereunder by Seller, in addition to all other remedies Buyer may have at law or in equity. 6.6 Property Testing. Buyer, at Buyer's expense, may enter upon the Property to conduct such tests and make such examinations, including soil, boring and environmental tests, as Buyer deems necessary. In the event the results of tests or examinations conducted by Buyer or Buyer's representative(s) do not verify that there is no accumulation in or about the Property or adjacent groundwater of petroleum, PCBs or any hazardous waste or toxic pollutant, contaminant or other substance regulated by any state or federal statute including Solid Waste Disposal Act, as amended, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601), the Resource Conservation and Recovery Act (42 U.S.C. Sec. 6901) or the Toxic Substance Control Act (15 U.S.C. Sec. 2604) or by any other statute, rule, regulation or order of any governmental agency having jurisdiction over the control of such substances or wastes, or other substances of public health concern, or if Seller acknowledges that the Property is contaminated by any such waste or substances, Buyer may in its sole discretion, terminate this Agreement. 6.7 Indemnity by Buyer. Buyer agrees to indemnify, defend and hold City harmless from and against any and all claims, demands, actions, causes of action, costs, fees, expenses, and liabilities of any type or nature, including but not limited to reasonable attorneys' 5 fees, whether sounding in law or equity, in tort or contract, arising out of the activities of Buyer, its employees, agents or contractors, upon the Property before Closing. Buyer's rights of access for the purposes described in Sections 5.1 and 6.6 are expressly made subject to the foregoing covenant of indemnity. The duties of Buyer under this paragraph shall survive the expiration or termination of this Agreement. 6.8 Seller's Work. Prior to Closing, the Property shall be surveyed by Seller to legally define the Property, and Buyer shall pay any and all costs/fees associated with the new plat of record. 6.9 Development Agreement. Prior to Closing, Seller and Buyer shall have entered into a mutually agreeable Development Agreement related to the Property. 7. TERMINATION OF AGREEMENT. 7.1 Causes. This Agreement, unless sooner terminated in accordance with the provisions hereof, may be terminated prior to Closing by: (a) mutual consent of the parties; (b) written notice from Buyer to Seller, if there has been a material misrepresentation or breach by Seller in the warranties or covenants of Seller set forth herein, or if any of the conditions set forth herein have not been satisfied or waived by Buyer in writing or Closing has not occurred by the Closing Date or the date of such notice, whichever is later; or (c) written notice from Seller to Buyer if there has been a material misrepresentation or breach by Buyer in the warranties or covenants of Buyer set forth herein. 7.3 Right to Proceed. If any of the conditions set forth herein have not been satisfied, Buyer may waive its rights to have such conditions satisfied and may proceed with the transactions contemplated hereby. 8. CONDITIONS. Each of the agreements and obligations of Buyer to be performed hereunder by Buyer are conditional on the satisfaction of the following conditions: 8.1 Acts to be Performed. Each of the agreements and obligations of Seller to be performed hereunder by Seller on or before the Closing Date shall have been duly performed. 8.2 Warranties True at Closing. Each of the warranties of Seller set forth herein or in any exhibit or instrument delivered pursuant hereto shall be true and correct on and as to Closing Date. 8.3 Absence of Changes and Litigation. There shall have been no material adverse change in the Property, and there shall not have been any occurrence, event, or set of circumstances, which might reasonably be expected to result in any such material adverse change before or after Closing Date. There shall be no proceeding or investigation pending or threatened against Seller or Buyer or affecting the Property which, in the reasonable judgment of Buyer, would make the consummation of the transactions contemplated by this Agreement inadvisable. 6 8.4 Rezoning; Permits/Licenses; Curb Cuts; Easements. Within one hundred eighty (180) days from Buyer's receipt of the ALTA survey as set out in Section 5.3 herein ("Contingency Date"), Buyer shall have obtained on terms reasonably satisfactory to Buyer: (i) any rezoning of the Property for use as a truck terminal/self-fueling station and plat or replat approval in connection therewith; (ii) all permits, licenses, variances or approvals necessary for the lawful construction, operation and use of the Property as a truck terminal/self-fueling station and reasonable access thereto; (iii) any curb cuts necessary for adequate access to all adjacent streets; (iv) all easements for utilities, services and access necessary for the construction, operation, and use of the Property for a truck terminal/self-fueling station, (v) all utilities or services necessary for the construction, operation and use of the Property as a truck terminal/self-fueling station; and (vi) determination within Buyer's sole discretion, that the Property is economically viable for Buyer's intended development and use of the Property. 8.5 Due Diligence; Survey; Site Investigation. On or before the Contingency Date, Buyer shall have obtained: (i) a satisfactory outcome to its due diligence investigation with respect to the Property; (ii) a satisfactory survey and site investigation verifying Seller's warranties with respect to the Property; (iii) a satisfactory outcome to its soil, boring and environmental testing; and (iv) satisfactory evidence that the Property and the contemplated operation and use of the Property by Buyer as a truck terminal/self-fueling station complies with all applicable laws. 8.6 Instruments of Transfer. At least seven (7) days prior to Closing, Sellers shall have delivered to Buyer for review and approval, drafts of such instrument or instruments of transfer and conveyance regarding the Property of the nature hereinbefore specified. Once reviewed and approved by Buyer, all original signed documents shall be deposited with the Title Company to be held in trust until the Closing Date. 8.7 Survey. On or before the Contingency Date, Buyer shall have reviewed and approved of the survey as described in Section 5.3 hereof, which shall show, to the complete satisfaction of Buyer, with respect to the Property that: (i) there are no violations of zoning ordinances or any other restrictions with reference to the size, height or location of the buildings and other improvements located on the Property, including those to be constructed by Buyer; (ii) there are no easements, recorded or apparent, or other uses which adversely affect the Property or Buyer's use thereof; (iii) there are no encroachments onto the Property or of improvements on the Property onto adjoining land; (iv) the Property does not lie within a flood or lakeshore erosion hazard area as shown on any map published by the Federal Emergency Management Agency, the U.S. Department of Housing and Urban Development or the Iowa Department of Natural Resources; (v) the Property is adequate, within Buyer's sole discretion, for its construction, operation and use as a truck terminal/self-fueling station; and (vi) no other condition exists which would unreasonably interfere with or restrict Buyer's use of the Property for the purposes for which it was intended or delay Buyer's development of the Property. Any nonconformity herewith shall be deemed a Title Defect as defined herein. 8.8 Title Insurance. On or before the Closing Date, Buyer shall have received and approved the title insurance commitment referred to in Section 5.2 hereof. 8.9 Seller's Work. Prior to Closing, the Property shall be subdivided and re -platted as set out in Section 6.8 herein. 7 8.10 Development Agreement. Prior to Closing, Seller and Buyer shall have entered into a mutually agreeable Development Agreement as set out in Section 6.9 herein. Buyer may acknowledge satisfaction or waiver of any of the foregoing conditions, only by delivering written notice of satisfaction or waiver to Seller on or before the Contingency Date. If Buyer does not acknowledge in writing the satisfaction of one or more of the foregoing conditions (or otherwise waive the same in writing) on or before the Contingency Date, then this Agreement shall automatically be deemed to benulland void, without action required of either party and Buyer and Seller shall thereafter be released from any liability or obligation hereunder. Notwithstanding anything contained herein to the contrary, it shall be a condition of Buyer's obligation to close this transaction that (i) the representations and warranties made by Seller in Section 5 shall be correct as of the Closing Date with the same force and effect as if such representations were made at such time; (ii) Seller shall have complied with all of the terms and conditions contained in this Agreement; and (iii) the status and marketability of title shall have been established to Buyer's satisfaction in accordance with this Agreement. 9. NOTICES. Any notice required or permitted hereunder shall be in writing and shall be considered delivered in all respects when it has been delivered by hand or mailed via Federal Express or by certified mail to Buyer at its office or to Seller at his address first above written. 10. BROKERAGE. Seller and Buyer respectively warrant to each other that no person provided services as a broker or finder with respect to the transaction contemplated hereby. 11. MISCELLANEOUS. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein, and shall be binding upon the parties and their respective heirs, successors and assigns. There are no agreements or understandings between the parties other than those set forth herein or in a written instrument executed simultaneously herewith. This Agreement may be amended and any of the provisions hereof may be waived, only by a written instrument executed on behalf of all of the parties or, in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision of this Agreement shall in no manner affect the right to enforce that provision or any other provision hereof at any time thereafter. Time is deemed to be of the essence with respect to all of the provisions hereof. 8 Executed as of , 2017. BUYER: KWIK TRIP, INC. By., �. -. Pc r K.ie ci Its: SFC'2t"irs-trL.` Accepted as of , 2017, and Seller acknowledges that upon such acceptance this Offer shall constitute an agreement for the purchase and sale of the Property on the foregoing terms and conditions. SELLER: CITY OF WATERLOO By: Quentin Hart Its: Mayor 9 EXHIBIT A PROPERTY Ridgeview Avenue Waterloo, Iowa (a portion of Parcel No. 8913-32-476-010) See attached depiction and Black Hawk County Real Estate Assessment and Tax Information Sheet (The new legal description covering the Property shall be created upon Seller's recording of the new plat of record as set out in Section 6.8 herein) 10 EXHIBIT A PROPERTY Ridgeview Avenue Waterloo, Iowa (a portion of Parcel No. 8913-32-476-010) See attached depiction and Black Hawk County Real Estate Assessment and Tax Information Sheet (The new legal description covering the Property shall be created upon Seller's recording of the new plat of record as set out in Section 6.8 herein) o O o estiou— 4 Acres Zoning: M-2, P Planned industrial District EJ Black Hawk County Detailed Parcel Report BLACK HAWK COUNTY REAL ESTATE ASSESSMENT AND TAX INFORMATION 8913-32-476-010 Deed Holder CITY OF WATERLOO SALES BUILDING PERMIT Date mount NUTC / Type None 5/18/2004 329,560 SALE TO/BY GOVERNMENT - PRIOR 09 / Contract ASSESSED VALUES/CREDITS [ear Class 016 alu 1 9 75slue I4-0-750 axable slue Land 19,356 Multi -Residential Land 0 Dwelling Building Total Acre Multi -Residential Land 0 Class E 100% Land aloe 7,410 Multi -Residential Land 0 0 40,750 26.51 Building Total 0 19,356 Dwelling Building otal cres 7,410 Multi -Residential Land 0 Dwelling 00 Building 47,410 rrIIXIIMENNIMIlinla 014 _ 100% sue Multi -Residential Land Dwelling Building Total Acres L7,410 0 D 7,410 26.51 http://www2.co.black-hawk.la.us/website/bhmap/bhRepDeLasp?apn=891332476010 (1 of 3) [3/3/2017 8:06:04 AM] • Multi -Residential Land '0 Black Hawk County Detailed Parcel Report axabie Land clue • 7,410 ax District TAX INFORMATION ASSESSMENT YEAR 2015 PAYABLE 2018/2017 940998 - WLOO MARTIN ROAD AGLAND TIF Gross alum Nocorp Taxable Value Military Exemption Levy Rate Homestead Credit 40.78414 0 26.18267 Disabled ;Property Tax Veteran Credit Relief Credit $0.00 $0.00 LEGAL Gross Tax Net Tax Ag Credit Business Property Tax Credit $0.00 SE SE EXC E 330 FT SEC 32 T 89 R 13 EXC RD AND EXC THAT PART PLATTED AS BROCK ADDITION LOT 1 2004-033271 Agricultural Land/CSR2 iota Unit/Acres Units 97 66 Entry Status: inspected http://www2.co.black-hawk.la.us/website/bhmap/bhRepDet.asp?apn=891332476010 (2 of 3) 13/3/2017 8:06:04 AM]