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HomeMy WebLinkAboutAndrew W Lusson-10/15/2012 (2)Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 PROPERTY EXCHANGE AGREEMENT This Property Exchange Agreement (the "Agreement") is made and entered into as of Or r , 2012, by and between Andrew W. Lusson ("Lusson") and the City of Waterloo, Iowa, (the "City"). RECITALS A. City considers development within the City to be a benefit to the community and has adopted the Plan (the "Plan"), and within the Plan has designated a geographic area of the City as the "Plan Area." B. City is the owner of certain real property located within the Plan Area, which Lusson desires to improve for a paintball facility (the "Project") in furtherance of the objectives of the Plan. The property owned by City is legally described on Exhibit "A" attached hereto (the "City Property"). C. Lusson is the owner of certain real property located within the Plan Area, and City is willing to acquire said property and to provide other financial aid to assist Lusson in undertaking the Project. The property owned by Lusson is legally described on Exhibit "B" attached hereto (the "Lusson Property"). D. Each party desires to exchange its respective parcel of real property with the other party on the terms set forth in this Agreement. E. City believes that the property exchange and provision of financial assistance contemplated by this Agreement to enable Lusson to undertake the Project are in the public interest and are reasonably expected to accomplish a public purpose. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises exchanged herein between the parties and for other consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Conveyance of City Property. Subject to the conditions set forth in this Agreement, at the Closing (defined below) City shall convey to Lusson fee simple title to the City Property in consideration of the promises made by Lusson herein and in consideration of Lusson's payment to City at the Closing of the sum of $1.00. On the Closing Date (defined below), City shall deliver to Lusson a special warranty deed for the City Property free and clear of all liens, claims, and encumbrances arising by or through City, except: (a) easements, conditions, and restrictions of record, and existing easements which may not be of record; (b) general utility and right-of-way easements serving the City Property; and (c) restrictions imposed by local zoning ordinances and other applicable law. City will deliver to Lusson an abstract of title for the City Property, updated within thirty (30) days of the Closing Date. The abstract shall show marketable title in City in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. City shall make every reasonable effort to promptly perfect title. The abstract shall become the property of Lusson at the Closing. City shall pay the costs of any additional abstracting and title work due to any act or omission of City or its predecessors in title. 2. Conveyance of Lusson Property. Subject to the conditions set forth in this Agreement, at the Closing Lusson shall convey to City fee simple title to the Lusson Property in consideration of the promises made by City herein. On the Closing Date, Lusson shall deliver to City a warranty deed for the Lusson Property free and clear of all liens, claims, and encumbrances except: (a) easements, conditions, and restrictions of record; (b) general utility and right-of-way easements serving the Lusson Property; and (c) restrictions imposed by local zoning ordinances and other applicable law. Lusson will deliver to City an abstract of title for the Lusson Property, updated within thirty (30) days of the Closing Date. The abstract shall show marketable title in Lusson in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. Lusson shall make every reasonable effort to promptly perfect title. The abstract shall become the property of City at the Closing. Lusson shall pay the costs of any additional abstracting and title work due to any act or omission of Lusson or its predecessors in title. 3. Financial Assistance. At Closing, the City shall deliver to Lusson the sum of $51,600.00 to assist Lusson in defraying its reasonably expected costs of relocating its business from the Lusson Property to the City Property. 4. Project Improvements; Timeliness; Possibility of Reverter. Lusson agrees that, within twelve (12) months of the Closing Date, it will obtain necessary building permits and thereafter undertake and substantially complete Project improvements on the City Property. The Project will consist of movable storage containers/trailer(s) and related parking, landscaping, and other improvements (collectively, the "Improvements"). The parties agree that Lusson'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 City Property to Lusson and that without said commitment City would not do so. If Lusson has not, in good faith, substantially completed construction of the Improvements on the schedule stated above, then title to the City Property shall revert to the City, except as provided in this Agreement; provided, however, that if construction has not begun but the development of the Project is still imminent, the City Council may, but shall not be required to, consent to an extension of time for the construction of the Improvements, and if an extension is granted but construction of the Improvements has not begun within such extended period, then the title to the Property shall revert to the City after the end of said extended period. If Lusson determines at any time that the Project is not economically feasible, then after giving thirty (30) days' advance written notice to City, Lusson may convey the City Property to City, and thereupon neither party shall have any further obligation under this Agreement except as expressly provided. If development has commenced within the required period or any extended period 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 Lusson, the requirement that construction of the Project shall be tolled for a period of time equal to the period of such stoppage or delay, and thereafter if construction is not 2 completed within the allowed period of extension then title to the City Property shall revert to the City. 5. Reverter of Title; Indemnity. In the event of any reverter of title, Lusson 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 City Property that is free and clear of any lien, claim, or encumbrance arising by or through Lusson. Lusson shall pay in full, so as to discharge or satisfy, all liens, claims, charges, and encumbrances on or against the City Property. If Lusson 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 Lusson's behalf and as its attorney-in-fact, the special warranty deed required by this Section, and for such limited purpose Lusson does hereby constitute and appoint City as its attorney-in- fact. Lusson 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, Lusson's failure to carry on or complete same, or any lien, claim, charge, or encumbrance on or against the Property of any type or nature whatsoever that attaches to the City Property by virtue of Lusson's ownership of same. If City files suit to enforce the terms of this Agreement and prevails in such suit, then Lusson shall be liable for all legal expenses, including but not limited to reasonable attorneys' fees. Lusson's duties of indemnity pursuant to this Section shall survive the expiration, termination or cancellation of this Agreement for any reason. 6. Closing. The closing on the conveyance of the City Property and the Lusson Property shall occur concurrently (the "Closing") shall occur on a date (the "Closing Date") mutually agreeable to the parties. 7. Condition of Properties. Except as set forth in this Agreement, each party shall convey its respective property to the other in "AS -IS" condition. Before the Closing Date, Lusson shall remove from the Lusson Property any and all personal property and fixtures located thereon. If any personal property or fixtures remain on the Lusson Property after Closing, the same shall be deemed abandoned to City, City shall be deemed to be the owner of same, and City shall be free to keep, use, repurpose, sell or dispose of same as it sees fit in the exercise of its sole discretion. 8. Representations and Warranties of Lusson. Lusson hereby makes the following representations and warranties with respect to the Lusson Property. Said representations and warranties are true and correct in all material respects on the date of the Agreement and shall be true and correct in all material respects as of the Second Closing. A. There are no claims, disputes, actions, or proceedings existing against or affecting the Lusson Property that relate to environmental laws or permits and there are no hazardous substances on the Lusson Property. Lusson is not subject to and is not currently 3 operating under any compliance or consent order, schedule, decree, or agreement issued or entered into under any environmental law. B. Lusson has provided to City a copy of all environmental reports, surveys or studies in its possession in respect of the Lusson Property. C. The execution, delivery and performance of this Agreement and the Closing will not conflict with any provision of law applicable to Lusson nor result in any breach of any provision of or constitute a default under any agreement or instrument to which Lusson is a party and which would affect the marketable title or City's use of the Lusson Property. D. Lusson is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. 9. Representations and Warranties of City. City hereby makes the following representations and warranties with respect to the City Property. Said representations and warranties are true and correct in all material respects on the date of the Agreement and shall be true and correct in all material respects as of the First Closing. A. There are no claims, disputes, actions, or proceedings existing against or affecting the City Property that relate to environmental laws or permits. City is not subject to and is not currently operating under any compliance or consent order, schedule, decree, or agreement issued or entered into under any environmental law. B. City has provided to Lusson a copy of all environmental reports, surveys or studies in its possession in respect of the City Property. C. Following approval of this Agreement by the City Council, City shall have the right, power and authority to enter into this Agreement and to perform the terms of this Agreement. D. Following approval of this Agreement by the City Council, the execution, delivery and performance of this Agreement and the Closing will not conflict with any provision of law applicable to City nor result in any breach of any provision of or constitute a default under the agreement or instrument to which City is a party and which would affect the marketable title or Lusson's use of the City Property. E. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. 10. Real Estate Taxes and Assessments. There are no property taxes or special assessments payable in respect of the City Property. Lusson shall pay all property taxes and special assessments that become payable in respect of the City Property after the Closing Date. With respect to the Lusson Property, Lusson shall pay taxes prorated to the Closing Date in accordance with the provisions of Iowa Code § 427.2, and any unpaid real estate taxes payable in 4 prior years, either paying City, or giving City a credit, for all of such taxes. Lusson shall pay at time of Closing all installments of special assessments which are a lien on the Lusson Property as of Closing or which can be verified to be owing as of the Closing Date but are not yet certified as a lien. 11. Transfer Tax. At the Closing, Lusson shall pay any real estate transfer tax payable in connection with the transfer of the Lusson Property to City. No real estate transfer tax is payable in connection with transfer of the City Property to Lusson. 12. Risk of Loss and Insurance. Each party shall bear the risk of loss or damage to its own property prior to the Closing. Each party shall insure its respective property in the manner and to the extent it deems fit. 13. Survival of Terms. In order to accomplish the objectives intended by the parties pursuant to this Agreement, the representations, warranties, promises, covenants, and terms hereof shall not merge into the deeds to be delivered at each Closing, but shall survive each Closing. 14. Default. If either party shall default in any of its respective obligations under this Agreement, then the non -defaulting party may delivery written notice to the defaulting party that specifies the nature of the default. If the defaulting party does not cure the default within thirty (30) days, or within such other period to which the parties may mutually agree, then the non - defaulting party shall be entitled to exercise any right or remedy available under this Agreement or applicable law, and the prevailing party shall also be entitled to obtain judgment for its costs and reasonable attorneys' fees. 15. Costs and Expenses. Unless specifically provided to the contrary in this Agreement, each party shall bear all cost and expense of any type or nature whatsoever resulting from or arising in connection with any action that is necessary or expedient for such party to perform its duties as provided in this Agreement, and neither party shall have any claim or right of reimbursement or setoff against the other for any such cost or expense. 16. Specific Performance. Because a party may be irreparably damaged if the other party fails to perform its obligations under this Agreement, the remedies of injunction and specific performance, in addition to any other remedies allowed by applicable law, shall be available to each party. The reasonable attorneys' fees and costs incurred by the prevailing party shall be borne by the other party. 17. Cooperation. Each party agrees to cooperate in good faith with the other party in connection with the performance of the other party's obligations hereunder or matters otherwise contemplated hereby. City agrees to provide reasonable assistance to Lusson in pursuing available state and federal grants; provided, however, that City makes no representation or promise that it will be successful in helping Lusson to secure additional funding. 5 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 Lusson nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 19. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, 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 Lusson, at 750 Hunter Drive, Evansdale, Iowa 50707. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iii) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. Either party may change its address for notice by providing notice to the other party as set forth in this Section. 20. 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 its duly authorized representative, 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. 21. Severability. 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. 22. 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. 23. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 6 24. 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. 25. Entire Agreement. This Agreement, together with the exhibits 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. IN WITNESS WHEREOF, the parties have executed this Property Exchange Agreement by their duly authorized representatives as of the date first written above. Andrew W. Lusson 7 CITY OF WATERLOO, IOWA By: Ernest G. Clark, iayor Attest: Suzy Sch. ,= s, City Clerk EXHIBIT "A" Legal Description of City Property Parcel "F" of Plat of Survey filed in Doc. No. 2009-19630, being a part of the Southwest Quarter of Section 3, Township 89 North, Range 13 West of the Fifth Principal Meridian, Black Hawk County, Iowa. EXHIBIT "B" Legal Description of Lusson Property That part of the Northeast Quarter (NE1/4) of Section Ten (10), Township Eighty-nine North (T89N), Range Thirteen West (R13W) of the Fifth Principal Meridian, Waterloo, Black Hawk County, Iowa, described as follows: The South One-half (S1/2) of the Southwest Quarter (SWI/4) of the Southwest Quarter (SW1/4) of said Northeast Quarter (NE1/4) except the West 105 feet thereof.