HomeMy WebLinkAboutFinal_Sale_Contract_City_of_Oshkosh,_WI_01.18REAL ESTATE SALE CONTRACT
The undersigned, hereinafter called “Buyer”, hereby offers to buy from Wisconsin Central
Ltd., a Delaware corporation, hereinafter called “Seller”, the interest of Seller in the real estate
hereinafter described and called the “Premises”, on the following terms and conditions:
1. Price. Buyer agrees to pay Seller a total purchase price of Twenty-Nine Thousand Five
Hundred and NO/100 Dollars ($29,500) payable at Closing.
2. Deposit. A deposit of $2,950 (the “Deposit”) is delivered to Seller contemporaneously
with the delivery of this offer. The Deposit shall be applied against the purchase price at
Closing or applied as provided in Paragraph 10. Any interest on the Deposit shall be the
property of Seller.
3. Interest in Property. The property (the “Premises”) for which Seller is conveying its
real estate interest, if any, consists of approximately 1.18 acres of vacant land as shown
in black hatched on the map labeled Exhibit A, dated February 12, 2021, attached
hereto and made a part hereof, and are located in or near the City of Oshkosh, County
of Winnebago, State of Wisconsin. Prior to conveyance, Buyer will secure, at Buyer’s
cost, a Certified Survey Map and appropriate legal description for the Premises which is
currently part of a larger parcel owned by the Seller.
4. Conveyance. Seller shall convey or cause the Premises to be conveyed to Buyer by
Quitclaim Deed, hereinafter called the “Deed”, subject to the exceptions and
reservations contained in this Contract. The Buyer in the Deed shall be the undersigned
Buyer unless Buyer designates a nominee to receive title to the Premises by written
notice to Seller within fifteen days after the acceptance of this offer. Such nominee may
be any entity owned or controlled by Buyer or under common ownership or control with
Buyer; any other nominee is subject to the written approval of Seller. This Contract may
not be assigned by Buyer except to such permitted nominee as set forth above. Buyer
guarantees performance by such nominee of all terms and conditions hereof.
SELLER, BY NATURE OF THE QUITCLAIM DEED, MAKES NO REPRESENTATION OR
WARRANTY CONCERNING THE CONDITION OF THE PREMISES OR ITS TITLE.
5. Evidence of Title. BUYER SHALL, AT ITS EXPENSE DO ONE OF THE FOLLOWING: (1)
Obtain and furnish to Seller, within forty-five (45) days after Seller’s acceptance of this
offer, a preliminary title report or commitment from a title insurance company, or (2)
Provide a letter to Seller that says that Buyer is aware of possible clouds on Seller’s title,
but that Buyer is assuming this risk and will not obtain a title report or commitment. If
Buyer chooses Option 1, Buyer shall deliver to Seller, within ten (10) days after
furnishing such title evidence to Seller, a written statement specifying the defects, if any,
other than the permitted exceptions and reservations set forth herein, which render
Seller’s title unmarketable. In the event Buyer claims title defects, the time of Closing
shall be extended for a period of up to thirty (30) days after receipt of such statement
until the claimed title defects are cured, which occurs later. However, if Seller is unable
or unwilling to cure such defects within such extension period, and Buyer is unwilling to
accept the Deed subject to such defects, then either party may terminate this Contract
by delivering written notice to the other party of its intention to do so within ten (10)
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days thereafter. Upon termination, Seller shall return the Deposit to Buyer. If Buyer
shall fail to deliver to Seller a statement of title defects within ten (10) days after Buyer’s
receipt of such title evidence, Buyer shall be deemed to accept title as shown on the title
evidence and to waive any objections to title.
6. Exceptions. This Contract and the Deed shall be subject to and in accordance with the
following exceptions, reservations and conditions:
(A) standard exceptions of the Title Company in its title policies issued in the state in
which the Premises are located.
(B) special taxes or assessments for improvements not yet completed, if any.
(C) installments not due at the date hereof of any special tax or assessment for
improvements completed, if any.
(D) general taxes, if any, for the tax year prior to the year in which the Deed is
delivered and subsequent years. If the Premises are locally assessed for the
year in which the Deed is delivered, the taxes for such year shall be prorated as
of the date on which the Deed is delivered on the basis of the most recent tax
bill, unless the payment of taxes has been assumed by a tenant. If the Premises
is assessed as railroad operating property by the State in which the Premises is
located, then the Seller agrees to pay, when due, taxes for the year in which the
deed is delivered and prior years, assessed in Seller’s name.
(E) building, building lines and use or occupancy restrictions, zoning and building
laws or ordinances, and other laws, ordinances, requirements, limitations,
restrictions, regulations and codes which are or may be imposed upon the
Premises by any governmental authority having jurisdiction thereof.
(F) public roads and highways, if any.
(G) judgment liens; however, any judgment against Seller which may appear of
record as a lien against the Premises shall be settled and satisfied by Seller if
and when it is judicially determined to be finally valid, and Seller shall indemnify
the Buyer for all loss arising out of Seller’s failure to have such judgment lien so
settled and satisfied. This provision shall survive the Closing of this transaction
and the delivery of the Deed.
(H) Covenants, conditions, restrictions, licenses and easements of record.
(I) Intentionally Omitted.
(J) The sale of the Premises is subject to all of the rights of the owner of the mineral
estate in said Premises, if any. If, however, it is found that Seller has mineral
right in the Premises, such rights will not be retained by Seller but will pass to
Buyer by the Quitclaim Deed from Seller as set forth in Section 4 herein.
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(K) rights of any government agencies, public or quasi-public utilities for the use,
maintenance, repair, replacement and reconstruction of existing driveways,
roads and highways, conduits, sewers, drains, water mains, fiber optics cables
and/or communications systems, gas lines, electric power lines, wires, and other
utilities and easements.
(L) acts by, through or under Buyer.
7. Reservations.
(A) Seller shall reserve for itself, its successors and assigns, the right for the
continued use, maintenance, repair, replacement and reconstruction of all
existing conduits, sewers, drains, water mains, fiber optic cables and/or
communications systems, gas lines, electric power lines, wires and other utilities
and easements on the Premises, whether or not of record, including access
thereto. Buyer will not interfere with the rights herein reserved by Seller or
interfere with any facilities used pursuant thereto. Buyer has advised Seller that
Buyer’s intended future use of the Premises is for the purpose of constructing a
storm water detention basin of significant size which will have the practical effect
of limiting the extent of the rights reserved, as stated above, by Seller.
(B) Buyer, its successors and assigns, agrees that it will not do nor cause to be done,
any act that will impede the natural flow or drainage of water over the Premises
herein conveyed so as to cause such drainage of water to accumulate on Seller’s
property abutting the track side sale boundaries of the Premises to the detriment
of Seller’s, its successors and assigns, use and enjoyment of its property. This
covenant shall in no way be construed to prohibit Buyer, its successors and
assigns, from erecting buildings or other improvements on the Premises so long
as drainage, equivalent to that presently existed, is maintained whether naturally
or by other means. This covenant shall run with the land conveyed and be
binding upon Buyer, its successors and assigns, forever.
8. Due Diligence. During the forty-five (45) day period following acceptance of this
Contract (the “Due Diligence Period”), Buyer shall have the right, at Buyer’s expense, to
enter onto the Premises at reasonable times for the purpose of inspecting, surveying
and making environmental and engineering studies and soil tests. Buyer agrees to
indemnify and hold Seller harmless from all costs, expenses, liability and damages,
including attorneys’ fees, incurred or arising in connection with anything done or work
performed by, through or under Buyer pursuant to the provisions of this paragraph,
regardless of Seller’s negligence. In conducting any inspections, investigations or tests
of the Premises, Buyer and its agents and representatives shall: (i) maintain
comprehensive general liability (occurrence) insurance in form and amounts reasonably
satisfactory to Seller, covering any accident arising in connection with the presence of
Buyer, its agents and representatives on the Premises and shall deliver a certificate of
insurance verifying such coverage to Seller prior to entry upon the Premises; (ii) not
permit any liens to attach to the Premises by reason of the exercise of its rights
hereunder; (iii) fully restore the Premises to the condition in which the same was found
before any such inspections or tests were undertaken; and (iv) not reveal or disclose
any information obtained during such inspections, investigations or tests concerning the
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Premises to any third party except as may be required by the Wisconsin Public records
Law. Under no circumstance shall Buyer provide Seller with the results of any
environmental sampling exercise or copies of any environment site assessment report
generated by or on behalf of Buyer in connection with its due diligence activities or
otherwise communicate the substance of such results or reports to Seller. In the event
that Buyer determines that the condition of the Premises is unsatisfactory and gives
written notice of termination to Seller prior to the expiration of the Due Diligence Period,
this Contract shall be terminated and the Deposit returned to Buyer. However, in the
event an act of god or event outside human influence occurs, including pandemics,
which delay Buyers opportunity to undertake due diligence obligations, Buyer agrees to
promptly notify Seller of such condition and both parties agree to enter into good faith
negotiations to extend the due diligence period a reasonable amount of time. If Buyer
fails to so terminate, Buyer shall purchase the Premises and any improvements thereon
in an “as is, where at” condition and subject to all faults of every kind and nature
whatsoever, whether latent or patent and whether now or hereafter existing. Buyer
represents and warrants to Seller that Buyer has not relied, and shall not rely, upon any
representations or statements or the failure to make any representation or statement,
by Seller or Seller’s agents or employees or by any person acting, or purporting to act,
on behalf of Seller. Buyer specifically agrees that Seller shall not be obligated to do any
restoration, repairs, remediation or other work in connection with the Premises, that
Seller shall not be liable for any restoration, repairs, remediation or other work
necessary to cause the Premises to meet any applicable laws, ordinances, requirements,
limitations, restrictions, regulations or codes, or be suitable for any particular use, and
that Buyer shall indemnify and hold Seller harmless from all costs, expenses, liability and
damages, including attorneys’ fees, incurred or arising in connection with any such
restoration, repairs, remediation or other work. Buyer waives, releases, acquits and
forever discharges Seller, its employees and agents and any other person acting on
behalf of Seller, of and from any and all claims, actions, causes of action, liabilities,
demands, rights, damages, cost, expenses, or compensation whatsoever, direct or
indirect, known or unknown, foreseen or unforeseen, which Buyer now has or may have
or which may arise in the future on account of or in any way growing out of or in
connection with any Hazardous Materials or Other Conditions on, under, from or
affecting the Premises or any law or regulation applicable thereto. This provision shall
survive the closing of this transaction and the delivery of the Deed.
9. Legal Description and Survey. The legal description to be used in the Deed shall be
prepared by Buyer. Buyer shall, as Buyer’s expense, obtain and deliver to Seller a legal
description and Certified Survey Map within forty-five (45) days of Seller’s acceptance of
the Contract.
10. Closing. The Closing shall occur, via mail, within ten (10) days after expiration of the
Due Diligence Period as set forth in Section 8 of this Contract, or after time periods
identified herein for correcting defects has expired, whichever is later, or at the time,
date and location mutually agreeable to Buyer and Seller. Seller shall prepare the deed
and pertinent closing documents and deliver the same for review and approval by Buyer
prior to closing. Buyer agrees to purchase, affix and cancel all documentary stamps in
the amount prescribed by statute, and pay all required transfer taxes and fees incidental
to the recordation of said Deed. Buyer shall apply for any lot splits or tax divisions with
the appropriate local authorities at Buyer’s cost and expense.
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11. Real estate commission. Buyer agrees to indemnify, defend, and hold harmless
Seller against any and all claims by any broker, attorney, or agent engaged by Buyer for
a fee or commission arising out of this Contract. Seller agrees to indemnify, defend, and
hold harmless Buyer against any and all claims by any broker, attorney, or agent
engaged by Seller for a fee or commission arising out of this Contract. The provisions in
this paragraph shall survive the Closing.
12. Regulatory approval. If Seller is required to obtain regulatory approval of this
transaction by any agency, the Closing date shall be extended for the time required to
obtain such approval. If such approval cannot be obtained within sixty (60) days, either
party may terminate this Contract by written notice to the other and, upon termination,
Seller shall return the Deposit to Buyer.
13. Liquidated damages. Time is of the essence of this Contract. If Buyer shall default
or fail to perform the requirements of this Contract within the time limits herein
specified, the Seller may retain the Deposit as liquidated damages and just
compensation, and not as a penalty or forfeiture, and declare this Contract terminated.
In the event of default by Seller, Buyer’s sole remedy shall be a return of the Deposit.
14. Notices. All notices and demands herein required shall be in writing sent by telecopier,
overnight courier or certified or registered mail to the other party at the address shown
herein. Notices sent by (i) telecopier shall be deemed made upon confirmed
transmission; (ii) overnight courier shall be deemed made one business day after being
sent; and (iii) certified or registered mail shall be deemed made three days after
mailing.
15. Condemnation or Casualty. If, prior to the Closing of this sale, all or any portion of
the Premises are condemned, damaged or destroyed, Buyer shall have the option of
either accepting an assignment of any condemnation or insurance proceeds or to
terminate this Contract. Buyer shall deliver written notice of its election to Seller within
ten (10) days of the date Seller notifies Buyer of such condemnation, damage or
destruction. If Buyer fails to notify Seller, Buyer shall be deemed to elect to close and
accept an assignment of the proceeds. If Buyer terminates, the Deposit shall be
returned to Buyer.
16. Miscellaneous.
(A) Time is of the essence in the performance of each and every one of the terms of
this Contract. Whenever any determination is to be made or action to be taken
on a date specified in this Contract, if such date shall fall upon a Saturday,
Sunday or legal holiday, the date for such determination or action shall be
extended to the first business day immediately thereafter.
(B) This Contract embodies the entire agreement of the parties hereto and
supersedes any prior understandings or written or oral agreements between the
parties concerning the Premises. No oral statements shall be of any force or
effect. No variation modification or alteration of the terms hereof shall be
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binding upon either party unless set forth in an express and formal written
amendment.
(C) This Contract shall be construed in accordance with the laws of the State of
Wisconsin.
(D) For the purposes of this Agreement, (i) “Hazardous Materials” include, without
limit, any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances, or related materials defined in
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. §§ 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. §§ 1801, et seq.), the Resource
Conservation and Recovery Avenue, as amended (42 U.S.C. §§ 6901, et seq.),
the Toxic Substances Control Act, as amended (15 U.S.C. §§ 2601, et seq.), and
in the regulations adopted and publications promulgated pursuant thereto, as
such laws or regulations now exist or may exist in the future, and (ii) “Other
Conditions” include, without limit, methane and other gases, petroleum and any
fraction thereof, nonhazardous wastes or materials, and any physical conditions
of other subsurface conditions which arise out of or are in any way related to
current or previous uses or activities on the Premises.
17. Other Conditions. If all or any portion of the Premises are located within five hundred
(500) feet of a railroad right-of-way, Buyer agrees that the Premises shall be conveyed
subject to the reduction in use and enjoyment and inconveniences, including noise,
vibrations and odors, which may result from rail operations on adjacent or near-by
properties. This provision shall survive the closing of this transaction and the delivery of
the Deed.
18. Acceptance. This Contract, and any attached Addendum, when accepted and signed
by the Seller, shall constitute the entire agreement between the parties and shall
thereafter be binding upon and inure to the benefit of the Seller and the Buyer, their
heirs, administrators, successors and assigns. The execution and delivery of this
Contract by Buyer constitutes an offer to purchase the Premises on the terms described
herein, which offer shall remain irrevocable and available for acceptance by Seller for a
period of thirty (30) days after the date of Buyer’s signature below. This offer shall
not become binding upon Seller until executed by Seller and a duplicate
original of this Contract is delivered to Buyer.
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IN WITNESS WHEREOF, the parties have executed this Contract as of the dates set forth below.
Signed for and in behalf of the City of Oshkosh
_________________________________
Mark A. Rohloff, City Manager
_________________________________
Jessi L. Balcom, City Clerk
_________________________________
Lynn Lorenson, City Attorney
_________________________________
Russ Van Gompel, Director of Finance
I hereby certify that the necessary provisions
have been made to pay the liability which will
accrue under this contract.
Buyers Address for notices:
215 Church Avenue_________________
PO Box 1130_______________________
Oshkosh, WI 54903-1130____________
Telephone: __(920)236-5065__________
Fax: __(920)236-5068_______________
Date of Buyer’s Offer __February 2__, 2023
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Seller: Wisconsin Central Ltd., a Delaware corporation.
By: _______________________________ Seller’s address for notices:
Name: James V. Fountain CN Real Estate Dept.
Title: Senior Manager Real Estate 17641 S. Ashland Avenue
Homewood, IL 60430
Attn: Senior Manager
Fax: 708-332-4348
Contract accepted by Seller this _____ day of _________________________, 2023.
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EXHIBIT A
The Premises
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