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HomeMy WebLinkAboutFDP WTC, LLC - Real Property Charitable Donation Agreement - 4.1.2024REAL PROPERTY CHARITABLE DONATION AGREEMENT This Real Pro e Charitable Donation Agreement (this "Agreement") is made and entered into as of April 1 2024 (the "Effective Date"), by and between FDP WTC, LLC, an Iowa limited liability company (the "Company") and the CITY OF WATERLOO, Iowa (the "City") with respect to a charitable donation as described herein (the "Contribution"). The purpose of this Agreement is to set forth the terms and conditions pursuant to which the Company shall provide and the City shall receive the Contribution. Background The City is a political subdivision or governmental unit for the purposes of Section 170(c)(1) of the Internal Revenue Code of 1986, as amended (the "Code"). The Company desires to support the City through its Contribution for use exclusively for public purposes. The parties hereto agree as follows: 1. Contribution a. The Company shall donate to the City the real property consisting of a parcel of land of approximately 2.25 acres (referenced in drawing attached as Exhibit "A") to be identified by survey (the "Development Land"), and valued pursuant to appraisal within 60 days of closing, subject to the terms and conditions of this Agreement (the "Real Property"). b. The survey shall be completed at the City's expense. The abstract of title to the Development Land will be updated at Developer's expense and delivered to City for examination. Developer shall pay the costs of any additional abstracting and title work due to any act or omission of Developer, including transfers by Developer or its assignees. After all valid objections have been satisfied or provided for, Developer shall have no obligation to pay for further abstracting, except any made necessary by its own affairs. 2. Settlement a. Title to the Development Land shall be free and clear of all liens, claims and encumbrances arising by or through Developer, subject to (a) easements, conditions and restrictions of record; (b) current and future real property taxes and assessments subject to the agreements made herein; (c) general utility and right-of-way easements serving the Development Land; and (d) restrictions imposed by City zoning ordinances and other applicable law. The abstract of title shall show marketable title to the Real Property in conformity with this Agreement and with the land title examination standards of the Iowa State and Blackhawk County Bar Associations. The abstract shall become the property of City upon Developer's delivery of the deed. b. The parties shall schedule a closing to occur within 30 days after completion of survey and abstracting work. At closing, the Company shall convey title to the City by warranty deed in a form and manner satisfactory to both parties. c. If the Company determines Settlement can be earlier, the City will accommodate and accept the earlier date. d. Real property taxes on the Real Property will be prorated as of the close in accordance with the provisions of Iowa Code § 427.2, and any unpaid real estate taxes payable in prior years, either paying City, or giving City a credit, for all of such taxes. City shall pay all subsequent real estate taxes. Developer shall pay at time of closing all installments of special assessments which are a lien on the Development Land as of closing or which can be verified to be owing as of the closing date but are not yet certified as a lien. City shall pay all other special assessments or installments. e. All risk of loss for the Real Property will remain with the Company until Settlement. f. At closing the City shall execute and deliver to the Company IRS Form 8283, acknowledging receipt of the Real Property from the Company, and the date of such receipt, and such other documents as reasonably required by the Company. 3. Representations and Warranties a. The Company represents and warrants as follows: i. It has good and marketable title to the Real Property free from all mortgages, security interests or other encumbrances; and ii. It has no current litigation pending involving the property or the Company which could affect title to the Real Property b. The City represents and warrants as follows: i. It is a governmental unit or political subdivision for the purposes of Section 170(c)(1) of the Code, and the Contribution will be tax deductible by the Company; and ii. The City has full authority and power to enter into this Agreement, and when signed, it shall be a valid obligation of, and enforceable against, the City. 4. Additional Agreements and Covenants a. The City shall use the Real Property and the Personal Property exclusively for public purposes. b. The City agrees to cooperate with the Company to complete any documentation or additional paperwork necessary or helpful to assist the Company in documenting its gift or to make a filing with any government entity or regulator. In the event the tax deductibility of the Contribution is challenged, the City agrees to provide reasonable assistance to the Company in contesting the unfavorable determination or ruling. c. The City has been able to conduct inspections, tests, and studies with respect to the physical and environmental condition of the Real Property. The City and its consultants, agents, engineers, inspectors, contractors, and employees have been given reasonable access to the Real Property for the purpose of performing such due diligence. The parties agree that except as set forth herein, the Real Property is conveyed in as -is, where -is condition, and following closing the City is solely responsible for any and all liabilities associated with the Real Property, whether physical, environmental or otherwise, and shall hold the Company harmless and indemnify it from any claims, actions and damages, known or unknown, whether made by governmental or private entities, agencies, individuals, partnerships or others. City agrees that it has not relied upon and will not rely upon, either directly, or indirectly, any representation or warranty of the company not made by this agreement, and assumes the risk of accepting the Real Property. 5. Disclosure of Gift. The Parties acknowledge that certain state or federal laws now or in the future may require the Company to disclose information on donations provided to charitable entities. The Company may report information about the Contribution provided under this Agreement, as required by law. Once reported, such information may be publicly accessible. Notwithstanding any other provision in this Agreement, the City understands and agrees that the Company reserves the right to post on a website accessible to the public, information regarding funding under this Agreement, whether or not required by law, including the identity of the City, the value of the Contribution, and the purposes for such Contribution, and other information as the Company determines is appropriate. 6. Condition. This agreement is subject to the City of Waterloo obtaining consent to the real property transfer from USEPA. 7. No Assignment. Neither party may assign, directly or indirectly, by operation of law, change of control or otherwise, this Agreement or any rights or obligations hereunder, without the prior written consent of the other party. 8. No Third Party Beneficiaries. This Agreement inures to the benefit of the City and the Company only, and no third party shall have any rights under it, except as expressly provided herein. 9. Amendment., Entire Agreement. This Agreement may not be amended other than by a writing signed by authorized representatives of both parties. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements, understandings or arrangements. 10. Survival. This Agreement, each of its provisions and all representations, warranties, covenants and agreements in this Agreement will survive the closing and the Settlement and shall not merge in any instrument conveying title to the City. 11 Governing Law. This Agreement is governed by the internal laws of the State of Iowa. 12. Right to Inspect Property. In addition to examining the abstract, as part of its due diligence, the City may require and/or conduct inspections, tests, and studies with respect to the physical and environmental condition of the Real Property. The City and its consultants, agents, engineers, inspectors, contractors, and employees must be given reasonable access to the Real Property for the purpose of performing such due diligence. The City shall not conduct any intrusive or destructive inspections or borings without the Company's prior written consent, which consent shall not be unreasonably withheld. The City's due diligence shall not interfere with the Company's business operations. IN WITNESS WHEREOF, the parties have signed and thereby caused this Agreement to be duly executed effective as of the date written above. FDP WTC, LLC CITY OF WATERLOO, IOWA 62ue trz 9 g SIGNED By: By: Name: Title: Date: Date: Name: Quentin Hart Mayor Title: