HomeMy WebLinkAboutUnion Pacific Railroad - Letter of Agreement - 1/23/2006 sv
0 December 06,2005
Folder: 02338-05
VIA UPS Overnight
RETURN RECEIPT REQUESTED
CITY OF WATERLOO, IOWA
ATTN: MR. DON TEMEYER
Mr. Temeyer,
This letter ("Agreement") confirms our understandings covering the possible sale by Union Pacific
Railroad Company ("Seller") to the City of Waterloo, Iowa ("Buyer") of Seller's interest in certain real
property in Waterloo, Iowa.
The undersigned will recommend to Seller's Management a sale of the Property on the following terms
and conditions:
Article I. Description of Property:
A. The Property is approximately 10,456.6 Square Feet as shown on the print attached
hereto as Exhibit A and made a part hereof. The legal description of the Property will be
determined by Seller from existing deed and title records, if possible. Survey will be at
the sole cost and expense of Buyer. Survey will depict all facilities affecting the property.
B. Before finalizing any survey, Buyer shall submit the survey to Seller for review and
approval. Computer files of the survey and legal descriptions shall be sent via e-mail to
AMHACKEL@UP.COM, with a subject line referencing the UPRR Folder Number
02338-05 assigned to this document. Buyer shall deliver a certified copy of the
completed survey to Seller within Thirty(30)days("Survey Period"). Delay in obtaining
or furnishing the survey to Seller shall in no event give Buyer the right to extend the
Closing Date(as defined in the `Closing—Default:' Article).
Article H. Sale Price:
A. The sale price ("Sale Price") for the Property shall be Eighteen Thousand Two Hundred
Ninety Nine and 051100 Dollars($18,299.05).
B. The Sale Price is computed as follows:
Real Estate
UNION PACIFIC RAILROAD
1400 Douglas Street,Stop 1690
Omaha,Nebraska 68179-1690
fx. (402) 501-0340
10,456.60 Square feet x$1.75 per square feet= $18,299.05
C. The Sale Price will be adjusted on the basis set forth in Article II-B if the area of the
Property, as determined by Seller's Senior Manager Engineering Services or his
authorized representative, or as determined by the survey, differs from the area set forth
in Article I-A.
Article III. Feasibility Review/Rieht of Entry:
A. For One Hundred Twenty (120) days from the date of execution of this Agreement by
Buyer ("Feasibility Review Period"), Buyer and its agents and contractors may enter
upon the Property to perform environmental audits, soil tests, engineering and feasibility
studies of the Property. If the results of such audits,tests or studies, or Buyer's review of
title or any other matters relating to the Property are unsatisfactory,Buyer may terminate
this Agreement by giving Seller written notice before the end of the Feasibility Review
Period. If no such written notice of termination is given before the end of the Feasibility
Review Period, the Property will be deemed suitable for Buyer's purposes. In the event
of such termination by Buyer, then Buyer shall surrender to Seller copies of all audits,
soils,engineering and any other reports prepared for Buyer pertaining to the Property and
such reports will become the sole property of Seller without cost or expense of Seller and
this Agreement will terminate without any further force and effect, and without further
obligation of either party to the other.
B. Buyer's right to enter upon the Property pursuant to Article 111-A is subject to the
following:
a) Buyer will indemnify, defend and save harmless Seller and/or Seller's affiliates
(Seller's affiliates means any corporation which directly or indirectly controls or
is controlled by or is under common control with Seller), their officers, agents
and employees, against and from any and all liability, loss, costs and expense of
whatsoever nature growing out of personal injury to or death of persons
whomsoever, or loss or destruction of or damage to property whatsoever, where
such personal injury, death, loss, destruction or damage arises in connection with
the entry upon the Property by Buyer,its agents or contractors prior to Closing.
b) Buyer and Buyer's agents and contractors (collectively "Contractors") will
maintain in confidence all information, reports, and evaluations generated in
connection with any environmental assessments and will not make disclosure
without the prior written consent of Seller. If Buyer discovers hazardous or toxic
substances or materials,Buyer will immediately notify Seller.
C) Buyer will promptly deliver to Seller the results and copies of any and all reports,
evaluations, tests and studies generated in connection with any environmental
assessments. Prior to the issuance of any final environmental report, Seller will
have the opportunity to make comments, pose questions and offer
recommendations to the Contractor preparing the report.
d) Buyer agrees to indemnify, defend and hold harmless Seller against and from any
and all liens, claims, demands, costs and expenses of whatsoever nature in any
way connected with or growing out of any work done, labor performed or
materials furnished at the Property on behalf of Buyer prior to Closing.
e) If the sale of the Property does not close, Buyer will, as soon as possible and at
Buyer's sole expense, restore the Property to the same condition it was in
immediately prior to the time Buyer entered the Property, failing in which Seller
may perform the work of restoration and Buyer will reimburse Seller within
thirty(30)days after rendition of bill by Seller.
C. Absence of markers is not a warranty by Seller of no subsurface installations. Fiber optic
systems, pipelines, and other structures may be buried on the Property. Before any
digging/drilling/excavation, the following procedures will be followed by Buyer and
Buyer's Contractors:
a) Protection of any fiber optic cable systems is of extreme importance since any
break could disrupt service to users resulting in business interruption and loss of
revenue and profits. Buyer will telephone 1-800-336-9193 (a 24-hour, 7-day
number for emergency calls) during normal business hours (7 A.M. to 9 P.M.,
CT, Monday-Friday, except holidays) to determine if any fiber optic cable is
buried on the Property. If it is determined that fiber optic cable is buried on the
Property, Buyer shall promptly inform Seller, at the address at the top of this
Agreement,of the results of its investigation.
b) Before drilling or excavating with mechanized equipment, Buyer will explore
with hand tools to a depth of at least eight (8) feet below the surface or will use
suitable detection equipment.
D. Notwithstanding any provisions in this Agreement to the contrary, if this Agreement is
terminated for any reason whatsoever, Buyer will remain obligated to comply with the
provisions of Article III-A and III-B and Seller will retain all of its remedies for Buyer's
default under Article III-A and III-B.
Article IV. As Is Sale-Release-Indemnity:
A. Prior to the Closing Date, Buyer will have the opportunity to make such inspections of
the Property and matters related thereto as Buyer desires, including, without limitation,
governmental laws and regulations to which the Property is subject, the title to the
Property, and the suitability or fitness of the Property for Buyer's proposed use. Buyer
acknowledges and agrees that the Property is to be sold and accepted by Buyer in an "AS
IS" condition, with all faults, and Buyer acknowledges that the Property may have been
used for railroad and/or industrial purposes, among other uses. Buyer agrees that any
information Buyer may receive from Seller or its agents concerning the Property
(including, but not limited to, any lease or other document, engineering study or
environmental assessment) is furnished on the condition that Buyer will make an
independent verification of the accuracy of the information. Seller does not make any
representations or warranties of any kind whatsoever, either express or implied, with
respect to the Property; in particular, without limitation, Seller makes no representations
or warranties with respect to the use, condition, title, occupation or management of the
Property, or compliance with applicable statutes, laws, codes, ordinances, regulations,
requirements (collectively "Condition of the Property"). Buyer acknowledges that it is
entering into this Agreement on the basis of Buyer's own independent investigation of
the physical and environmental conditions of the Property. Buyer assumes the risk that
adverse physical and environmental conditions may not have been revealed by its
investigation.
B. FROM AND AFTER CLOSING, BUYER WILL RELEASE SELLER, AND, TO
THE MAXIMUM EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND
AND SAVE HARMLESS SELLER, ITS AFFILIATES, THEIR EMPLOYEES,
AGENTS, OFFICERS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST
ANY AND ALL SUITS, ACTIONS, CAUSES OF ACTION, LEGAL OR
ADMINISTRATIVE PROCEEDINGS, CLAIMS, DEMANDS, FINES, PUNITIVE
DAMAGES, LOSSES, COSTS, LIABILITIES AND EXPENSES, INCLUDING
ATTORNEYS' FEES, IN ANY WAY ARISING OUT OF OR CONNECTED
WITH THE KNOWN OR UNKNOWN CONDITION OF THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, ANY CONTAMINATION IN, ON,
UNDER OR ADJACENT TO THE PROPERTY BY ANY HAZARDOUS OR
TOXIC SUBSTANCE OR MATERIAL), OR ANY FEDERAL, STATE OR
LOCAL LAW, ORDINANCE, RULE OR REGULATION APPLICABLE
THERETO, INCLUDING, WITHOUT LIMITATION, THE TOXIC
SUBSTANCES CONTROL ACT, THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT, AND THE RESOURCE
CONSERVATION AND RECOVERY ACT. THE FOREGOING WILL APPLY
REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF SELLER,
ITS AFFILIATES,OR THEIR EMPLOYEES,AGENTS OR OFFICERS.
C. The provisions of this Article W will survive the delivery of the deed and will bind and
inure to the benefit of the parties hereto,their heirs, successors and assigns.
Article V. Escrow,Title Insurance and Abstract of Title:
A. Seller will not furnish title insurance or an abstract of title to the Property. Buyer may, at
its sole option and expense, obtain a preliminary title report ("PTR") in order to review
the status of title to the Property during the Feasibility Review Period. If Buyer obtains a
PTR, a copy will be delivered to Seller. Seller has no obligation to cure any title defects
or to assist Buyer in obtaining title insurance.
B. If Buyer desires title insurance, Buyer shall pay the cost of any title insurance and any
endorsements or changes to the title policy desired by Buyer. If an escrow is used, Buyer
shall pay any and all fees relating to the escrow, including, but not limited to, any City
and/or County Transfer Taxes and recording fees.
Article VI. Form of Deed; Reservations:
A. At Closing, Seller will transfer Seller's interest in the Property to Buyer by Quitclaim
Deed, subject to all outstanding rights,whether or not of record.
B. Seller will reserve from the transfer all minerals and mineral rights without right of
surface entry.
Article VII. Fence.
The Property is conveyed by Grantor subject to the following covenant,condition and restriction,
which Grantee by the acceptance of this Deed covenants for itself, its successors and assigns, faithfully to
keep,observe and perform:
Fence Covenant. Grantee, at its sole cost and expense, shall install, within ninety(90) days after
the date of delivery of this Deed, and thereafter maintain fencing or other barriers to prevent access to or
encroachment on the railroad right-of-way of Grantor adjacent to the trackside boundary of the Property.
The fencing or barrier must be of a design and type satisfactory to Grantor, and in compliance with
applicable building codes. Grantee shall submit the plans for the fencing or barrier construction to:
Vice President-Engineering Management
Union Pacific Railroad Company
1400 Douglas Street,Mail Stop 0910
Omaha,Nebraska 68179
with copy of transmittal to:
General Manager-Real Estate
Union Pacific Railroad Company
1400 Douglas Street,Mail Stop 1690
Omaha,Nebraska 68179
for review and approval. Grantor shall complete such review and make appropriate response to Grantee
within twenty(20) days after receipt of such plans by Grantor. Grantor shall not unreasonably withhold
its approval of such plans. Such approval does not constitute a guarantee or warranty that such plans
comply with applicable governmental laws, rules, regulations or ordinances, or that the fence as
constructed will be structurally sound.
The foregoing covenant, condition and restriction will run with the Property. A breach of the
foregoing covenant, condition and restriction, or the continuance thereof, may, at the option of Grantor,
its successors or assigns, be enjoined, abated or remedied by appropriate proceedings.
Article VIII. Existing Agreements:
A. If any lease or "Use Rights" (license or other rights to use the Property)affects only the
Property (whether identified by Seller before or after execution of this Agreement),
Seller's rights and obligations under any such identified lease or Use Right will be
assigned to and assumed by Buyer at or after Closing.
B. Buyer acknowledges that the Property may be subject to unidentified Use Rights. It is
the responsibility of Buyer to determine if any of these unidentified Use Rights exist.
Article IX. Closing-Default:
A. Closing will occur on or before May 07, 2006 ("Closing Date"). The Closing will be
deemed to occur upon payment of the Sale Price by a cashier's or certified check, and
delivery of the deed. All Closing costs, including transfer taxes and excise taxes, will be
paid by Buyer.
B. If Closing fails to occur due to default by Seller, Buyer may terminate this Agreement as
Buyer's sole remedy against Seller. In the event of such termination, neither Seller nor
Buyer will have any further liability hereunder.
Article X. Proration:
Local property taxes, if any, and other assessments due and payable in the year of Closing, as
well as rental under any leases or Use Rights that are being assigned, will be prorated as of the
date of Closing. Buyer will assume any installments of assessments not yet due and payable.
Article XI. Negotiations—Brokers and Finders:
Negotiations relative to this transaction have been carried on by both parties without the
intervention of any person which will give rise to any valid claim against either of the parties
hereto, for brokerage commission or other like payment. Each party hereto shall indemnify and
hold harmless the other party against and from any and all claims for brokerage commission or
other like payments arising out of the transaction contemplated by this Agreement and occasioned
by the indemnifying party.
Article XII. Subdivision/Platting Compliance:
It may be necessary to comply with local or state subdivision or platting laws or regulations prior
to Closing. All necessary applications, maps and other requirements to comply with this
requirement will be completed by Buyer at Buyer's sole cost and expense, and are subject to
review and approval by Seller before filing. If Buyer fails to comply with subdivision
requirements prior to the Closing Date,or if any proposed subdivision plat or parcel map contains
conditions affecting Seller, the Property prior to Closing, or other real property owned by Seller,
then Seller, in its sole and absolute discretion, may terminate this Agreement. Seller is not
obligated to extend the Closing Date due to Buyer's failure to comply with subdivision or platting
requirements prior to the Closing Date.
Article XIII. Mortgage Release:
If the Property is subject to a blanket mortgage granted by Seller or a corporate predecessor of
Seller, Seller will obtain a release within approximately six(6)months after Closing.
Article XIV. Eminent Domain:
The parties acknowledge that Buyer has the authority to condemn the Property under its power of
eminent domain. Buyer represents that it will institute eminent domain proceedings in the event
that Seller does not sell the Property upon the terms set forth in this Agreement. The parties
further acknowledge that Seller intends to treat the sale of the Property as sold under imminent
threat of condemnation, pursuant to Section 1033 of the Internal Revenue Code of 1986 (26
U.S.C.).
Article XV. Seller's Management Approval:
BUYER ACKNOWLEDGES THAT NEITHER TMS AGREEMENT NOR THE
NEGOTIATIONS LEADING TO THIS AGREEMENT CREATE ANY OBLIGATION
ON THE PART OF SELLER TO SELL THE PROPERTY TO BUYER UNLESS THIS
AGREEMENT IS APPROVED IN ACCORDANCE WITH SELLER'S MANAGEMENT
POLICY STATEMENT. IF SUCH APPROVAL IS NOT GIVEN AND
COMMUNICATED TO BUYER BY THE CLOSING DATE, THIS AGREEMENT WILL
TERMINATE AND NEITHER PARTY WILL HAVE ANY FURTHER OBLIGATION.
Article XVI. Condemnation:
If, prior to Closing, a governmental agency commences or imminently threatens in writing to
commence any eminent domain proceedings to take any material portion of the Property, Buyer
and Seller shall each have the unilateral right, exercisable by giving notice of such decision to the
other party within thirty (30) days after receiving written notice of such actual or threatened
condemnation proceedings, to terminate this Agreement. In the event of such termination, this
Agreement will be without any further force and effect and without further obligation of either
party to the other. If neither party elects to terminate pursuant to this Article-Condemnation,the
Sale Price will be determined as though such condemnation had not occurred, and the net
proceeds of condemnation awards paid or payable to Seller by reason of such condemnation of
the Property shall be paid or assigned to Buyer at Closing.
If you agree with the foregoing terms and conditions with respect to the possible purchase of the Property,
please indicate your acceptance of these terms and conditions by signing in the acceptance space provided
below and returning one copy to Alissa Hackel at the address listed at the top of this letter, in order that it
is received by Seller no later than May 07, 2006. Please also indicate below how you wish to take title. If
you should have any questions, please call Alissa Hackel at(402)544-8043.
Sincerely,
Chris D. Goble
General Director-Real Estate
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ACCEPTED AND AGREED THIS�3 DAY OF 2W-
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54.56. v-324A
324A STA 57.57A S-7A
LEGEND: NOTE: BEFORE YOU BEGIN ANY WORK. SEE
SALE AREA SHOWN - --•-- AGREEMENT FOR FIBER OPTIC PROVISIONS.
--
EXHIBIT "A"
UPRRCO. R/W OUTLINED ........ ......•• UNION PACIFIC RAILROAD COMPANY
WATERLOO. BLACK COUNTY. IOWA
M.P. 271 .73
TO ACCOMPANY AGREEMENT WITH
CITY OF WATERLOO. IA
CARD c:/codd/maps/cnw/io/233805.d n
FILENAME g SCALE: 1 " = 100'
SCAN u:/cnw/io/cgw/324/ia324a7a.cit OFFICE OF REAL ESTATE
FILENAME (DX=5701 .3.2597.3 ) OMAHA. NEBRASKA DATE: 12/2/2005
CAA FILE: 2338-05
233805.dgn 12/6/2005 3:43:53 PM