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HomeMy WebLinkAboutIowa Community Credit Union-Property Exchange Agreement-09.10.2007 PROPERTY EXCHANGE AGREEMENT This Property Exchange Agreement (the "Agreement") is made and entered into as of .S2 Jo'knit, -er 10 , 2007, by and between Iowa Community Credit Union ("ICCU") and the C!ty of Waterloo,Iowa, (the"City"). RECITALS A. City considers development within the downtown and riverfront areas of the City to be a benefit to the community and has adopted the Downtown Waterloo Riverfront Urban Renewal and Redevelopment Plan (the "Plan"), and within the Plan has designated a geographic area of the City as the"Plan Area." B. ICCU is the owner of certain real property located within the Plan Area, and the City has targeted said property for redevelopment in furtherance of the objectives of the Plan. The property owned by ICCU is legally described on Exhibit "A" attached hereto (the"ICCU Property"). C. City is the owner of certain real property located within the Plan Area and adjacent to a financial services facility owned and operated by ICCU. The property owned by City is legally described on Exhibit "B" attached hereto (the "City Property"). D. Each party desires to exchange its respective property with the other party on the terms set forth in this Agreement. 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. Property Preparation. No later than ten (10) days before Closing (defined below), each party will, at its sole cost and expense, properly remove and dispose of any hazardous materials located upon its respective property, demolish all structures located upon its respective property, remove all demolition debris, and level the site to grade. Trees and paved parking areas may remain in place, to the extent the removal of same is not required to accomplish required demolition activities. 2. 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. "Closing" shall occur at the earliest practicable date on or before , 2007 to which the parties mutually agree, but in any event after the approval of title to the ICCU Property by City, approval of title to the City Property by ICCU, and satisfaction or waiver of contingencies,if any. At Closing, each party shall convey fee simple title of its respective property to the other party by warranty deed, free and clear of all liens, claims, and encumbrances except easements, conditions, and restrictions of record and 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 prepared by Black Hawk County Abstract Company. The abstract shall show marketable title in City or ICCU, 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 party shall pay the costs of any additional abstracting and title work due to its own acts or omissions. Each party shall convey its respective property to the other in an"AS-IS"condition, other than as expressly set forth in this Agreement. 3. Representations and Warranties of ICCU. ICCU hereby makes the following representations and warranties with respect to the ICCU 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 ICCU or the ICCU Property which relates to ICCU's ownership, maintenance, or operation of the ICCU Property and might in any way affect the ICCU Property or this transaction. B. There are no claims, disputes, actions, or proceedings existing against or affecting the ICCU Property that relate to environmental laws or permits and there are no hazardous substances on the ICCU Property. ICCU 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. ICCU has provided to City a copy of all environmental reports, surveys or studies in its possession in respect of the ICCU Property,including but not limited to D. The execution, delivery and performance of this Agreement and the Closing will not conflict with any provision of law applicable to ICCU nor result in any breach of any provision of or constitute a default under any agreement or instrument to which ICCU is a party and which would affect the marketable title or City's use of the ICCU Property. E. ICCU is not: prohibited from consummating the transaction contemplated in this Agreement by any law,regulation,agreement, instrument,restriction,order or judgment. F. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of ICCU. 4. Representations and Warranties of City. City hereby makes the following representations and warranties with respect to the City Property. Said representations and 2 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 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. The City Property was previously used as an auto repair shop. City has provided to ICCU a copy of all environmental reports, surveys or studies in its possession in respect of the City Property, including but not limited to 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 marketable title or ICCU'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. ICCU and City each hereby agrees to indemnify and hold harmless each other from and against and any all claims, liabilities, losses, damages, costs and expenses, including but not limited to, reasonable attorney's fees, by reason of the breach of any representation or warranty set forth in either Section 3 or Section 4 above. 6. Real Estate Taxes and Assessments — City Property. There are no property taxes or special assessments payable in respect of the City Property. ICCU 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—ICCU Property. In respect of the ICCU Property, ICCU shall pay taxes prorated to the date of Closing and any unpaid real estate taxes payable in prior years. City shall pay all subsequent real estate taxes. At Closing, ICCU shall pay the City for taxes from the first day of July prior to possession to the date of possession based upon the last known actual net real estate taxes payable according to public records. However, if such taxes are based upon a partial assessment of the present property improvements or a changed tax classification as of the date of possession, such proration shall be based on the current levy rate, assessed value, legislative tax rollbacks and real estate tax exemptions that will actually be applicable as shown by the assessor's records on the closing date. ICCU shall pay at closing all installments of special assessments which are certified against the ICCU Property as of Closing, and all prior installments thereof. In addition, all charges for solid waste removal, sewage,maintenance and other assessments that are attributable to ICCU's possession,including those for which assessments arise after Closing,shall be paid by ICCU. 8. Transfer Tax. At Closing, ICCU shall pay the real estate transfer tax payable in connection with the transfer of the ICCU Property to the City. No real estate transfer tax is payable in connection with transfer of the City Property to ICCU. 9. Risk of Loss and l:nsurance. ICCU shall bear the risk of loss or damage to the ICCU 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 60 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$2,500 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. Restriction on Sale; Right of First Refusal. The City is willing to enter into the transaction contemplated by this Agreement in reliance on ICCU's representations as to its 4 intended use of the City Property, and such representations constitute a material inducement for the City, without which the City 'would not enter into this Agreement. ICCU agrees that, after Closing, it shall not sell, convey, or otherwise transfer the City Property to any third party without first offering to the City a right of first refusal to purchase the City Property on the same terms as offered by the proposed purchaser. ICCU shall promptly deliver to City a copy of the written purchase agreement and notice of its intent to sell the City Property on the terms set forth in said purchase agreement. City shall exercise its right, if at all, by delivery of written notice to ICCU within twenty-one (21) days thereafter that the City desires to purchase the City Property on the terms set forth in said purchase agreement. Closing of said sale and purchase shall occur within an additional thirty(30) days thereafter. ICCU is willing to enter into the transaction contemplated by this Agreement in reliance on the City's representations as to its intended use of the ICCU Property, and such representations constitute a material inducement for ICCU,without which ICCU would not enter into this Agreement. The City agrees that, after Closing, it shall not sell, convey or otherwise transfer the ICCU Property to any third party, whether an individual or business entity, who intends to operate a financial institution or do banking or other commercial or retail financial transactions at said location. This restriction would include, but not be limited to, selling, conveying, or otherwise transferring the ICCU Property to a state or federal banking institution, state or federal credit union, state or federal savings and loan association, or industrial loan company. In addition, any sale, conveyance, or transfer of the ICCU Property by City shall contain a restrictive covenant which prohibits the operation of a financial institution upon said real estate. 12. Billboard Advertising. City recognizes that ICCU currently is the lessor in a lease agreement with the Lamar Companies for a billboard which is located upon the ICCU Property. This billboard is located on the South side of said real estate, approximately 13.5 feet South of First Street, on Jefferson, facing North. The lease with the Lamar Companies extends to February 29, 2008, with the lessee having an option to extend said lease for an additional five (5) years from that date. The rental for this billboard is paid on an annual basis and the City agrees that ICCU may retain the rent that has been paid for the 2007-2008 Lease year. The City recognizes that it will be bound by the remaining terms of said lease with the Lamar Companies. 13. Use of Parking. ICCU agrees that City and the general public may use available parking on the City Property and adjacent property owned by ICCU during hours when ICCU is not open for business. It is contemplated that such parking will occur only in connection with public events occurring in the downtown area. 14. 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 terminate (which date shall be not less than thirty (30) 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 5 20. 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 fords 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. 21. Survival. Each of the terms of this Agreement shall survive the Closing. 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. 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 as of the date written above. IOWA COMMUNITY CREDIT UNION CITY OF WATERLOO,IOWA By: IV 4 MarkH"eth,President/CEO Timothy J.H ,Mayor By: J�° ' I � e , _ Attes- Title: r .t � C f Nancy Ec ert, Clerk EXHIBIT"A" Legal Description of ICCU Property Lots Nos. Four(4)and Five(5)in Block No. Thirteen(13)in the Original Plat,on the West Side of the Cedar River,in the City of Waterloo,Black Hawk County,Iowa EXHIBIT"B" Legal Description of City Property Lots Nos. One(1)and Two(2)in Block No.Thirteen(13)in the Original Plat,on the West Side of the Cedar River, in the City of Waterloo,Black Hawk County,Iowa. �l V