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HomeMy WebLinkAboutSalvation Army - Property Exchange Agreement - 8/26/2019CityPleaseClreturnerk &Finance this copyDeptto: . 715 Mulberry St. Waterloo, IA 50703 PROPERTY EXCHANGE AGREEMENT This Property Exchange Agreement (the "Agreement") is made and entered into as of , 2019 by and between The Salvation Army ("SA") and the City of Waterloo, Iowa ("City"). RECITALS A. SA is the owner of certain real property located within the City of Waterloo, locally known as 415 E. 7th Street, which City desires to acquire for redevelopment or municipal use (the "SA Property"), which is legally described as set forth on Exhibit "A" attached hereto. B. City is the owner of certain real property which SA desires to acquire for redevelopment (the "City Property"), locally known as parcel nos. 8913-23-429- 011, 8913-23-429-022 and 8913-23-429-023, which is legally described as set forth on Exhibit "B" attached hereto. C. Each party desires to exchange its respective property with the other party on the temis set forth in this Agreement. D. City believes that the property exchange is in the public interest and is 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. Possession and Closing. If each party timely performs all obligations set forth in this Agreement, it shall receive possession of the other party's property at Closing. The purchase price for the City Property shall be $1.00, and the purchase price for the SA Property shall be $200,000.00. "Closing" shall occur at the earliest practicable date within forty-five (45) days after approval of this Agreement by the Waterloo City Council, but in any event after the approval of title to the SA Property by City, approval of title to the City Property by SA, and satisfaction or waiver of contingencies, if any. At Closing, each party deliver to the other party the full purchase price for the property to be acquired hereunder, and each party shall convey fee simple title of its respective property to the other party by special warranty deed, 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 respective property; and (c) restrictions imposed by local zoning ordinances and other applicable law. Each party shall, at its own expense, deliver to the other an abstract of title for its respective property, updated to a date within sixty (60) days of Closing. The abstract shall show marketable title in City or SA, as appropriate, in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. The conveying party shall make every reasonable effort to promptly perfect title. If Closing is delayed due to either party'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. Ownership of abstracts shall transfer with title. Each transferring party shall pay the costs of any additional abstracting and title work for its own property due to its own acts or omissions. 2. 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, SA may remove from the SA Property any and all personal property items located therein, but not fixtures or items that are otherwise attached to the premises. If any personal property remains on the SA 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, without any further compensation to SA. 3. Representations and Warranties of SA. SA hereby makes the following representations and warranties with respect to itself and the SA 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 Closing. A. There are no actions, lawsuits, judgments, liens, suits, claims, investigations or other proceedings pending or threatened against SA or the SA Property which relates to SA's ownership, maintenance, or operation of the SA Property and might in any way affect the SA Property or this transaction. B. There are no claims, disputes, actions, or proceedings existing against or affecting the SA Property that relate to environmental laws or peunits, SA has not received notice of any actual or alleged violation of environmental laws or permits affecting the SA Property, and there are no hazardous substances on the SA Property. SA 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. C. SA has provided to City a copy of all environmental reports, surveys or studies in its possession in respect of the SA Property, if any. D. The execution, delivery and performance of this Agreement and the Closing will not conflict with any provision of law applicable to SA nor result in any breach of any provision of or constitute a default under any agreement or instrument to which SA is a party and which would affect the marketability of title or City's use of the SA Property. E. SA is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. F. SA has the right, power and authority to enter into this Agreement and to perform the terms of this Agreement, and the officers of SA are duly authorized to execute and deliver this Agreement and any and all documents contemplated thereby. 2 4. Representations and Warranties of City. City hereby makes the following representations and warranties with respect to itself and 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 Closing. A. There are no actions, lawsuits, judgments, liens, suits, claims, investigations or other proceedings pending or threatened against City or the City Property which relate to City's ownership, maintenance, or operation of the City Property or might in any way affect the City Property or this transaction. B. There are no claims, disputes, actions, or proceedings existing against or affecting the City Property that relate to environmental laws or permits, City has not received notice of any actual or alleged violation of environmental laws or permits affecting the City Property, and there are no hazardous substances on the City Property. 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. C. City has provided to SA a copy of all environmental reports, surveys or studies in its possession in respect of the City Property, if any. D. There are no general property taxes or special assessments presently due or payable in respect of the City Property. E. 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. F. 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 marketability of title or SA's use of the City Property. G. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. 5. Indemnity. To the extent permitted by applicable law, SA and City hereby agree to indemnify and hold each other harmless from and against and any all claims, demands, liabilities, losses, damages, fines, fees, penalties, costs and expenses, including but not limited to reasonable attorney's fees, by reason of the indemnifying parties' breach of any representation or warranty set forth in either Section 3 or Section 4 above, as applicable, or in Section 7 below. 6. Real Estate Taxes and Assessments — City Property. There are no property taxes or special assessments payable in respect of the City Property. SA shall pay all real estate taxes and special assessments that become payable in respect of the City Property after Closing. 3 7. Real Estate Taxes and Assessments — SA Property. SA is an entity exempt from taxation and there are no property taxes or special assessments payable in respect of the SA Property. In addition, all charges for solid waste removal, sewage, maintenance and other assessments that are attributable to SA's possession, including those for which assessments arise after Closing, shall be paid by SA. 8. Transfer Tax. At Closing, SA shall pay the real estate transfer tax payable in connection with the transfer of the SA Property to the City, if any. No real estate transfer tax is payable under Iowa law in connection with transfer of the City Property to SA. 9. Risk of Loss and Insurance. SA shall bear the risk of loss or damage to the SA Property prior to Closing, and City shall bear the risk of loss or damage to the City Property prior to Closing. Each party shall insure its respective property in the manner and to the extent it deems fit. 10. Environmental Matters. Each party shall provide to the other at Closing a properly executed groundwater hazard statement showing no wells, solid waste disposal sites, hazardous wastes and underground storage tanks on the property of the conveying party unless disclosed here: Within 30 days after the date of this Agreement, either party may obtain, at its sole cost and expense, a report from a qualified engineer or other person qualified to analyze the existence or nature of any hazardous materials, substances, conditions or wastes located on the property to be conveyed to it by the other party. The owner shall cooperate in providing reasonable access to the other party's inspectors and engineers. In the event any hazardous materials, substances, conditions or wastes are discovered on the property, and if the owner is required to expend any sum in excess of $500 to remove any hazardous materials, substances, conditions or wastes, the owner shall have the option to cancel this transaction 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 the property owner, subject to said owner's right to cancel this transaction as provided in this Section. 11. Default. If either party shall default prior to the Closing in any of its respective obligations under this Agreement, the other party, by notice to such defaulting party specifying the nature of the default and the date on which this Agreement shall tetminate (which date shall be not less than fourteen (14) days after the giving of such notice), may terminate this Agreement, and upon such date, unless the default so specified shall have been cured, this Agreement shall terminate. Each party shall also be entitled to exercise any other right or remedy available under applicable law, and the prevailing party shall also be entitled to obtain judgment for its costs and reasonable attorneys' fees. 12. 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 4 from or arising in connection with any action that is necessary or expedient for such party to perfoini 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. 13. Cooperation. Each party agrees to cooperate in good faith with the other party in connection with the performance of the other parry's obligations hereunder or matters otherwise contemplated hereby. 14. 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 SA nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 15. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight delivery 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, Attention: Mayor, with copy to Community Planning and Development Director. (b) if to SA, at The Salvation Army, 5550 Prairie Stone Parkway, Hoffman Estates, IL 60192 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. 16. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or team 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. 17. 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. 5 18. Survival. Each of the terms of this Agreement shall survive the Closing. 19. 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. 20. 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. 21. 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. 22. 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. 23. Time of Essence. Time is of the essence of this Agreement. 24. Disclaimer. The Purchase and Sale of said Properties are hereby subject to the approval of the Board of Trustees located in Hoffman Estates, IL IN WITNESS WHEREOF, the parties have executed this Property Exchange Agreement by their duly authorized officers as of the date first written above. THE SALVATION ARMY CITY OF WATERLOO, IOWA By: By: Title: 6 Quentin Hart, Mayor Attest: EXHIBIT "A" Legal Description of SA Property ORIGINAL PLAT WATERLOO EAST ALL LOTS 1 AND 4 BLK 41 EXC COM AT A PT ON NE LINE LOT 1 41 FT SE OF MOST NLY COR TH SW 120.25 FT TO A PT ON SW LINE LOT 4 30 FT SE OF MOST WLY COR LOT 4 TH 30 FT NW TO MOST WLY COR SAID LOT TH 120 FT NE TO MOST NLY COR LOT 1 TH SE 41 FT TO BEG SE 120 FT LOT 5 BLK 41 SE 120 FT LOT 8 BLK 41 SE 120 FT LOT 9 BLK 41. EXHIBIT "B" Legal Description of City Property AUDITOR RAINBOWS REPLAT LOT 18 (parcel 8913-23-429-022) and AUDITOR RAINBOWS REPLAT ALL LOT 14 EXC N 126 1/2 FT LOT 24 (parcel 8913-23-429-023) and AUDITOR RAINBOWS REPLAT W 32 FT N 155 FT LOT 13 (parcel 8913-23-429-011)