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HomeMy WebLinkAboutNortheast Iowa Food Bank - Property Exchange Agmnt-10/3/2011PROPERTY EXCHANGE AGREEMENT This Property Exchange Agreement (the "Agreement") is made and entered into as of "") bur , 2011, by and between Northeast Iowa Food Bank, Inc. (the "Food Bank") and the City of Waterloo, Iowa, (the "City"). RECITALS A. City considers development within the City to be a benefit to the community and has adopted the Rath Urban Renewal and Redevelopment Plan (the "Plan"), and within the Plan has designated a geographic area of the City as the "Plan Area." B. City is the owner of certain real property located within the Plan Area, which Food Bank has targeted for construction of a new office, warehouse and distribution facility (the "Project") in furtherance of the objectives of the Plan. The property owned by City is legally described on Exhibit "A" attached hereto (the "City Property"). C. Food Bank is the owner of certain real property located within the Plan Area, and City is willing to purchase said property to assist Food Bank in undertaking the Project. The property owned by Food Bank is legally described on Exhibit "B" attached hereto (the "Food Bank 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. Conveyance of City Property. Subject to the conditions set forth in this Agreement, at the First Closing (defined below) City shall convey to Food Bank fee simple title to the City Property in consideration of the promises made by Food Bank herein, in consideration of Food Bank's payment to City at the First Closing of the sum of $1.00 and in consideration of benefits expected to accrue to the community's welfare by Food Bank's operations undertaken in the expanded and improved warehouse and distribution facility contemplated by this Agreement. On the First Closing Date (defined below), City shall deliver to Food Bank a special warranty deed for the City Property 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 City Property; and (c) restrictions imposed by local zoning ordinances and other applicable law. City will deliver to Food Bank an abstract of title for the City Property, updated within thirty (30) days of the First Closing Date. The abstract shall show marketable title in City in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. City shall make every reasonable effort to promptly perfect title. The abstract shall become the property of Food Bank at the First Closing. City shall pay the costs of any additional abstracting and title work due to any act or omission of City or its predecessors in title. 2. Conveyance of Food Bank Property. Subject to the conditions set forth in this Agreement, at the Second Closing Food Bank shall convey to City fee simple title to the Food Bank Property in consideration of the promises made by City herein and in consideration of City's payment to Food Bank at the Second Closing of the sum of $343,770.00. On the Second Closing Date, Food Bank shall deliver to City a warranty deed for the Food Bank Property 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 Food Bank Property; and (c) restrictions imposed by local zoning ordinances and other applicable law. Food Bank will deliver to City an abstract of title for the Food Bank Property, updated within thirty (30) days of the Second Closing Date. The abstract shall show marketable title in Food Bank in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. Food Bank shall make every reasonable effort to promptly perfect title. The abstract shall become the property of City at the Second Closing. Food Bank shall pay the costs of any additional abstracting and title work due to any act or omission of Food Bank or its predecessors in title. 3. Project Improvements. Food Bank agrees that, within twelve (12) months of the First Closing Date, it will obtain a building permit and begin Project construction. The Project will consist of a building of approximately 43,600 square feet, and related parking, landscaping, and other improvements (collectively, the "Project Improvements"). It is contemplated that the estimated cost to construct the Project Improvements will be $(pYti I (the "Project Investment"). 4. Closings. (a) The closing on the conveyance of the City Property (the "First Closing") shall occur on a date (the "First Closing Date") mutually agreeable to the parties within thirty (30) days after City notifies Food Bank in writing that the site preparation described in Section 5 is expected to be completed within thirty (30) days. Notwithstanding the foregoing sentence, the First Closing shall not occur until (i) all site preparation set forth in Section 5 has been completed and (ii) Food Bank has provided to City reasonable proof that is satisfactory to City of Food Bank's financial ability to undertake and complete the Project Improvements to the extent of the Project Investment, which proof may take the form of a lending commitment letter. (b) The closing on the conveyance of the Food Bank Property (the "Second Closing") shall occur on a date (the "Second Closing Date") mutually agreeable to the parties within thirty (30) days after Food Bank notifies City in writing that Food Bank will have vacated the Food Bank Property within thirty (30) days. Notwithstanding the foregoing sentence, the Second Closing shall not occur until Food Bank has actually vacated the Food Bank Property. 5. 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 First Closing Date, City shall demolish all structures on the City Property, including foundations, and remove all demolition debris. Food Bank acknowledges and agrees that the site will not be leveled to grade following demolition. City and Food Bank agree that Food Bank is not assuming liability for, or responsibility for, the cleanup of any environmental conditions currently existing on the City Property. If environmental conditions prevent, or substantially and adversely affect, the construction of the Project Improvements, and if City is unwilling or unable to obtain funds for cleanup of the City Property, then Food Bank, at its sole discretion and without recourse of any kind against City, may terminate this Agreement without assuming any liability or responsibility for cleanup of said environmental conditions on the City's Property. 6. Representations and Warranties of Food Bank. Food Bank hereby makes the following representations and warranties with respect to the Food Bank 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 the Second Closing. A. There are no claims, disputes, actions, or proceedings existing against or affecting the Food Bank Property that relate to environmental laws or permits and there are no hazardous substances on the Food Bank Property. Food Bank 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. B. Food Bank has provided to City a copy of all environmental reports, surveys or studies in its possession in respect of the Food Bank Property. C. The execution, delivery and performance of this Agreement and the Second Closing will not conflict with any provision of law applicable to Food Bank nor result in any breach of any provision of or constitute a default under any agreement or instrument to which Food Bank is a party and which would affect the marketable title or City's use of the Food Bank Property. D. Food Bank is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. E. 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 Food Bank. 7. Representations and Warranties of City. City hereby makes the following representations and warranties with respect to 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 the First Closing. A. 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. 3 B. City has provided to Food Bank a copy of all environmental reports, surveys or studies in its possession in respect of the City Property. C. 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. D. Following approval of this Agreement by the City Council, the execution, delivery and performance of this Agreement and the First 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 Food Bank's use of the City Property. E. City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. 8. Real Estate Taxes and Assessments. There are no property taxes or special assessments payable in respect of the City Property or the Food Bank Property. After the First Closing, Food Bank shall pay all real estate taxes and special assessments that become payable in respect of the City Property, if any. 9. Transfer Tax. At the Second Closing, Food Bank shall pay the real estate transfer tax payable in connection with the transfer of the Food Bank Property to the City. No real estate transfer tax is payable in connection with transfer of the City Property to Food Bank. 10. Risk of Loss and Insurance. Food Bank shall bear the risk of loss or damage to the Food Bank Property prior to the Second Closing, and City shall bear the risk of loss or damage to the City Property prior to the First Closing. Each party shall insure its respective property in the manner and to the extent it deems fit. 11. Restriction on Sale or Conveyance. The City is willing to enter into the transaction contemplated by this Agreement in reliance on Food Bank's representations as to its 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. Food Bank agrees that, for a term of twenty (20) years after the First Closing, it shall not sell, convey, or otherwise transfer the City Property to any third party without the prior written consent of City, which consent shall not be unreasonably withheld, but shall use the Property only for Project purposes. 12. Survival of Terms. In order to accomplish the objectives intended by the parties pursuant to this Agreement, the representations, warranties, promises, covenants, and terms hereof shall not merge into the deeds to be delivered at each Closing, but shall survive each Closing. 13. Default. If either party shall default in any of its respective obligations under this Agreement, then the non -defaulting party may delivery written notice to the defaulting party that 4 specifies the nature of the default. If the defaulting party does not cure the default within thirty (30) days, or within such other period to which the parties may mutually agree, then the non - defaulting party shall be entitled to exercise any right or remedy available under this Agreement or applicable law, and the prevailing party shall also be entitled to obtain judgment for its costs and reasonable attorneys' fees. 14. 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 from or arising in connection with any action that is necessary or expedient for such party to perform 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. 15. Specific Performance. Because a party may be irreparably damaged if the other party fails to perform its obligations under this Agreement, the remedies of injunction and specific performance, in addition to any other remedies allowed by applicable law, shall be available to each party. The reasonable attorneys' fees and costs incurred by the prevailing party shall be borne by the other party. 16. Cooperation. Each party agrees to cooperate in good faith with the other party in connection with the performance of the other party's obligations hereunder or matters otherwise contemplated hereby. City agrees to provide reasonable assistance to Food Bank in pursuing available state and federal grants; provided, however, that City makes no representation or promise that it will be successful in helping Food Bank to secure additional funding. 17. 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 Food Bank nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 18. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, 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, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the Community Planning and Development Director. (b) if to Food Bank, at 106 East 11th Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Executive Director. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iii) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such 5 transmission was successful. Either party may change its address for notice by providing notice to the other party as set forth in this Section. 19. Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision, or term 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. 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 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. Time of Essence. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Property Exchange Agreement by their duly authorized representatives as of the date first written above. 6 NORTHEAST IOWA FOOD BANK, INC. By: Jai^ lotkra. (I M' f(` Title: -Nt'c ti4- `u' i7/(et loi" By: JCt Pa6411-&_ Title: 7 CITY OF WATERLOO, IOWA By: rnest G. Clark, Mayor Attest: Suzy Schar , City Clerk EXHIBIT "A" Legal Description of City Property EXHIBIT "B" Legal Description of Food Bank Property