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HomeMy WebLinkAboutThe Heene Family Trust-1/23/2012REAL ESTATE PURCHASE AGREEMENT (NONRESIDENTIAL) TO: The Heene Family Trust ("Seller") FROM: City of Waterloo, Iowa ("Buyer") Buyer hereby offers to buy, and the Seller by its acceptance agrees to sell, the real property situated in Waterloo, Black Hawk County, Iowa, locally known as 218 W. Mullan Avenue, legally described as per the abstract of title, consisting of assessor parcel no(s). 8913-23-452- 004; together with any easements and appurtenant servient estates, but subject to any reasonable easements of record for public utilities or roads, any zoning restrictions customary restrictive covenants and mineral reservations of record, if any, herein referred to as the "Property," upon the following terms and conditions: 1. EARNEST MONEY AND PURCHASE PRICE. The Purchase Price shall be $450,000.00, of which $100.00 is on deposit with the law firm of Clark, Butler, Walsh & Hamann, to be held in trust. The entire Purchase Price shall be due and payable in full at closing. If this Agreement is not accepted by Seller or if it is rescinded by Buyer for failure of title or any other reason provided for in this Agreement, then the earnest money held in trust shall be returned to Buyer. 2. POSSESSION AND CLOSING. Possession of the Property shall be delivered to Buyer at closing. Closing shall occur at City Hall, 715 Mulberry Street, Waterloo, within thirty (30) days after approval of this Agreement by the Waterloo City Council, subject to satisfaction of any conditions stated in this Agreement. 3. REAL ESTATE TAXES. Seller 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 prior years, either paying Buyer, or giving Buyer a credit, for all of such taxes. Buyer shall pay all subsequent real estate taxes. 4. SPECIAL ASSESSMENTS. Seller shall pay at time of closing all installments of special assessments which are a lien on the 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. Buyer shall pay all other special assessments or installments. 5. RISK OF LOSS AND INSURANCE. Seller agrees to maintain existing insurance to the date of closing and shall bear the risk of loss or damage to the Property to the date of closing. In the event of substantial damage or destruction prior to closing, the Buyer shall have the option to complete the closing and receive insurance proceeds regardless of the extent of damages or to declare this Agreement null and void. 6. FIXTURES. Included with the Property shall be all fixtures that integrally belong to, are specifically adapted to or are a part of the real estate, whether attached or detached. The following items shall not be included: 7. CONDITION OF PROPERTY. The Property as of the date of this Agreement, including buildings, grounds, and all improvements, will be preserved by the Seller in its present condition until closing, ordinary wear and tear excepted. Seller sells the Property "AS IS" and makes no warranties, expressed or implied, as to the condition of the Property. Within 45 days after the acceptance of this Agreement, Buyer may, at its sole expense, have the property inspected by a person or persons of its choice to determine if there are any environmental or other deficiencies. Seller shall cooperate in providing reasonable access to Buyer's inspectors. Within this same period, the Buyer may notify the Seller in writing of any deficiency. The Seller shall immediately notify the Buyer in writing of what steps, if any, the Seller will take to correct any deficiencies before closing. The Buyer shall then immediately in writing notify the Seller that (1) such steps are acceptable, in which case this Agreement, as so modified, shall be binding upon all parties; or (2) that such steps are not acceptable, in which case this Agreement shall be null and void, and any earnest money shall be returned to Buyer. 8. ABSTRACT AND TITLE. Seller, at its own expense, shall obtain an abstract of title to the Property continued through a date that is within thirty (30) days of the closing, and shall deliver it to Buyer's attorney for examination. It shall show marketable title in Seller in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect the title. If closing is delayed due to Seller's inability to provide marketable title, this Agreement shall continue in force and effect until either party rescinds the Agreement after giving ten days' written notice to the other party. The abstract shall become the property of Buyer when the Purchase Price is paid in full. Seller shall pay the costs of any additional abstracting and title work due to any act or omission of Seller, including transfers by or the death of Seller or its assignees. 9. SURVEY. Buyer may, at Buyer's expense, have the Property surveyed and certified by a registered land surveyor prior to closing if a survey is required by law. If the survey shows an encroachment on the Property or if any improvements located on the Property encroach on lands of others, the encroachments shall be treated as a title defect. 10. ENVIRONMENTAL MAT "l'ERS. A. Seller warrants to the best of its knowledge and belief that there are no abandoned wells, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks located on the Property, the Property does not contain levels of radon gas, asbestos, or urea -formaldehyde foam insulation which require remediation under current governmental standards, and Seller has done nothing to contaminate the Property with hazardous wastes or substances. Seller warrants that the property is not subject to any local, state, or federal judicial or administrative action, investigation or order, as the case may be, regarding wells, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks. Any exceptions to the warranties set forth above are fully described on a separate addendum attached hereto. B. Seller hereby represents that, to the best of its knowledge and belief, there is no active or abandoned septic tank or septic system on the property, except as described here: 2 C. Buyer may, at Buyer's expense, have the Property inspected further for the existence of any hazardous materials, substances, or wastes. Seller shall cooperate in providing reasonable access to Buyer's inspectors and engineers. If hazardous materials, substances, or wastes are discovered on the Property, Buyer's obligation hereunder shall be contingent upon the removal of such materials, substances, conditions or wastes or other resolution of the matter reasonably satisfactory to Buyer. However, in the event Seller is required to expend any sum in excess of $1,000 to remove any hazardous materials, substances, conditions or wastes, Seller shall have the option to cancel this transaction and refund to Buyer all earnest money paid and declare this Agreement null and void. The expense of any action necessary to remove or otherwise make safe any hazardous material, substances, conditions or waste shall be paid by Seller, subject to Seller's right to cancel this transaction as provided above. 11. DEED. Upon payment of the Purchase Price, Seller shall convey the Property to Buyer by warranty deed, free and clear of all liens, restrictions, and encumbrances except as provided in this Agreement. General warranties of the title shall extend to the time of delivery of the deed excepting liens and encumbrances suffered or permitted by Buyer. 12. JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE. If Seller, immediately preceding acceptance of the offer, holds title to the Property in joint tenancy with full rights of survivorship, and the joint tenancy is not later destroyed by operation of law or by acts of the Seller, then the proceeds of this sale, and any continuing or recaptured rights of Seller in the Property, shall belong to Seller as joint tenants with full rights of survivorship and not as tenants in common; and Buyer in the event of death of any Seller, agree to pay any balance of the price due Seller under this contract to the surviving Seller and to accept a deed from the surviving Seller consistent with Paragraph 15. 13. JOINDER BY SELLER'S SPOUSE. N/A. 14. STATEMENT AS TO LIENS. If Buyer intends to assume or take subject to a lien on the Property, Seller shall furnish Buyer with a written statement prior to closing from the holder of such lien, showing the correct balance due. 15. USE OF PURCHASE PRICE. At time of settlement, funds of the Purchase Price may be used to pay taxes and other liens and to acquire outstanding interests, if any, of others. 16. 1031 EXCHANGE. N/A. 17. APPROVAL OF COURT. N/A. 18. REMEDIES OF THE PARTIES. A. If Buyer fail to timely perform this Agreement, Seller may forfeit it as provided in the Iowa Code (Chapter 656), and all payments made shall be forfeited; or, at Seller's option, upon thirty days' written notice of intention to accelerate the payment of the entire balance because of Buyer's default (during which thirty days the default is not corrected), Seller may declare the entire balance immediately due and payable. Thereafter this Agreement may be foreclosed in equity and the Court may appoint a receiver. 3 notify First National Bank of the right to remove its FF&E during the Salvage Period. Any FF&E or structure remaining on the Property after the end of the Salvage Period shall become the sole property of City, to be used, discarded, or demolished as City sees fit in the exercise of its sole discretion. Seller or any other person undertaking salvage activities hereunder shall keep the premises closed and secure at all times against entry by u w authorized persons. D. Indemnification. Seller shall indemnify and hold harmless the City in respect of any and all injury, expense, damage, demand, claim, cause of action, or liability whatsoever (each of the foregoing being a "Claim") asserted by any person, including but not limited to First National Bank, arising from or in connection with (1) the activities of Seller or its agents, or the activities of First National Bank or its agents, on the Property during the Salvage Period or (2) any FF&E of First National Bank that remains on the Property after the end of the Salvage Period. The foregoing indemnity includes but is not limited to reimbursement of any and all cost and expense, including but not limited to court costs and reasonable attorneys' fees and expenses, incurred by City in connection with a Claim. 23. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the parties, superseding all prior or contemporaneous understandings, negotiations, discussions, or agreements between the parties with respect to the subject matter hereof. 24. ACCEPTANCE. When accepted, this Agreement shall become a binding contract. If not accepted by Seller on or before January , 2012, this Agreement shall be null and void. Dated BUYER ,2-6 9 -- City of Wath. oo, Iowa By: Ernest G. C ark, Mayor r Attest: Suzy Scharesi City Clerk 5 Accepted by Seller HD's/ 2 SELLER The Heene Family Trust N2t C Charles S. Heene, Trustee B. If Seller fails to timely perform this Agreement, Buyer has the right to have all payments made returned to it, or Buyer may require specific performance by Seller. C. Buyer and Seller are also entitled to utilize any and all other remedies or actions at law or in equity available to them, and the prevailing parties shall also be entitled to obtain judgment for costs and attorney fees. 19. NOTICE. Any notice under this Agreement shall be in writing and be deemed served when it is delivered by personal delivery or mailed by certified mail, addressed to the parties at the addresses given below. Seller: The Heene Family Trust 3232 Osage Road Waterloo, IA 50703 Attn: Charles S. Heene, Trustee Buyer: City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Attn: Community Planning & Development Director 20. GENERAL PROVISIONS. In the performance of each part of this Agreement, time shall be of the essence. Failure to promptly assert rights herein shall not, however, be a waiver of such rights or a waiver of any existing or subsequent default. This Agreement shall apply to and bind the successors in interest of the parties. This Agreement shall survive the closing. This Agreement contains the entire agreement of the parties and shall not be amended except by a written instrument duly signed by Seller and Buyer. Paragraph headings are for convenience of reference and shall not limit or affect the meaning of this Agreement. Words and phrases herein shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. 21. NO REAL ESTATE AGENT OR BROKER. Neither party has used the service of a real estate agent or broker in connection with this transaction. 22. ADDITIONAL PROVISIONS. A. The parties acknowledge that Buyer is acquiring the Property for economic development purposes. Buyer's rights and duties under this Agreement are assignable to any person or entity that will further the economic development objectives contemplated by Buyer. B. Special contingencies to effectiveness of Agreement. Notwithstanding any signatures below by representatives of Buyer, this Agreement is expressly subject to approval by the city council of Buyer. C. Salvage activities. Until fourteen (14) days following the closing date (the "Salvage Period"), Seller may remove any and all equipment and fixtures it desires from the Property. The parties acknowledge that First National Bank is the owner of certain furniture, fixtures and equipment (collectively, "FF&E") on the Property. Seller shall 4