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HomeMy WebLinkAbout2023-11-20 I04 Real Estate Purchase Agreement_Indi Run West LLC AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: November 20, 2023 AGENDA ITEM: Consideration of approval of a resolution approving Real Estate Purchase Agreement [Indi Run West, LLC] FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: The proposed purchase of 5.12-acres of real estate from Indi Run West, LLC, is intended to be utilized for greenbelt preservation and future recreational trail extensions. City staff has been working with the developer of the Indi Run subdivision to site parkland dedication adjacent to the proposed area to be purchased. A trail extension is proposed through the area as part of the Prairie Rose Greenway Project that is planned for construction in 2024. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: $158,130.00 COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve the Resolution. ATTACHMENTS: I. Resolution II. Offer to Purchase Real Estate PREPARED BY: Andy Kass, Community Development Director REVIEWED BY: I4 THE CITY OF WAUKEE, IOWA RESOLUTION 2023- APPROVING REAL ESTATE PURCHASE AGREEMENT BETWEEN INDI RUN WEST, LLC, AND THE CITY OF WAUKEE [PRAIRIE ROSE GREENWAY PROJECT] IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND, WHEREAS, the City has been in discussions with Indi Run West, LLC, property owner, regarding the conveyance of certain property interests necessary for construction of the Prairie Rose Greenway Project; AND WHEREAS, the discussions have resulted in a real estate purchase agreement that the City Staff believes are in the best interest of the City to approve; AND NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa, that the Real Estate Purchase Agreement between Indi Run West, LLC, and City of Waukee [Prairie Rose Greenway Project] are hereby approved. BE IT FURTHER RESOLVED that the Mayor is authorized to execute any and all documents to effectuate the closing on behalf of the City, and that the City Clerk shall cause the originals of the Purchase Agreement and Easements to be recorded upon the properties by submitting the original to the Dallas County Recorder with the appropriate recording fees. Passed by the City Council of the City of Waukee, Iowa, and approved this the 20th day of November, 2023. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman Pierce R. Charles Bottenberg Chris Crone Larry R. Lyon Ben Sinclair 1 REAL ESTATE PURCHASE AGREEMENT This PURCHASE AGREEMENT (hereinafter referred to as “Agreement”), entered into between the CITY OF WAUKEE, an Iowa municipal corporation (hereinafter referred to as "Buyer"), and INDI RUN WEST, L.L.C., an Iowa limited liability company (hereinafter referred to as "Seller"); (The Buyer and Seller may also be collectively referred to as “Parties”). WHEREAS, Buyer is a municipal Corporation, duly formed and existing pursuant to Iowa law; and WHEREAS, Seller is the owner of approximately 5.12 acres of land situated in Waukee, Dallas County, Iowa, legally described as follows: Parcel ‘23-102’ of the Plat of Survey filed in the Office of the Recorder of Dallas County, Iowa on November 14, 2023, and recorded in Book 2023, Page 17014, being a part of Parcel ‘22-20’ as shown on the Plat of Survey recorded in Book 2022, Page 9854, being a part of the South Half of Section 28, Township 79 North, Range 26 West of the 5th P.M., and Parcel ‘23-103’ of the Plat of Survey filed in the Office of the Recorder of Dallas County, Iowa on November 14, 2023, and recorded in Book 2023 Page 17014, being a part of Parcel ‘22- 20’ as shown on the Plat of Survey recorded in Book 2022, Page 9854, being a part of the South Half of Section 28, Township 79 North, Range 26 West of the 5th P.M., (hereinafter individually and collectively referred to as “Property”); and WHEREAS, the Buyer desires to purchase the Property from Seller; and. WHEREAS, the Parties desire to enter into an agreement setting forth the terms, obligations, conditions and restrictions of the Parties. AGREEMENT NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, Buyer and Seller agree as follows: 1. SALE AND PURCHASE OF PROPERTY. Buyer agrees to purchase the Property from Seller and Seller agrees to sell the Property to Buyer subject to the terms, conditions, representations and warranties set forth herein. 2. PRICE. The purchase price shall be $158,130.00, payable at Dallas County, Iowa, as follows: $ 1,000.00 non-refundable earnest money deposit (“Earnest Money”) with this Agreement paid to Wilson & Egge, P.C. to be held in trust pending possession, settlement and closing, with the balance to be paid in cash or other good funds at closing, plus or 2 minus prorations and other adjustments set forth herein. 3. REAL ESTATE TAXES. Seller shall pay any unpaid real estate taxes payable in prior years through the date of closing. Buyer shall pay all subsequent real estate taxes. Buyer agrees to waive proration of taxes for the fiscal year in which possession is given, due and payable in the subsequent fiscal year. 4. SPECIAL ASSESSMENTS. Sellers shall pay all special assessments which are a lien on the Property as of the date of closing. Any preliminary, deficiency or other assessment which cannot be discharged by payment shall be paid through an escrow account with sufficient funds to pay such liens when payable with any unused funds to be returned to the Seller. All other special assessments shall be paid by Buyer. 5. RISK OF LOSS AND INSURANCE. Seller shall bear the risk of loss or damage to the Property prior to closing or possession, whichever occurs first. Seller shall preserve and care for the Property until closing and shall keep and preserve the Property in the condition existing as of the date hereof. 6. COMMISSION. Seller and Buyer each represent and warrant to the other that no brokerage commission, finder’s fee or other compensation is due and payable with respect to the transaction contemplated by this Agreement. Buyer and Seller represent to the other that it knows of no other fee, commission or payment due to any broker, finder, agent or other person or entity, in connection with the transactions contemplated herein. Seller and Buyer each, one to the other, indemnify, protect, defend and hold the other harmless from and against all losses, claims, costs, expenses and damages (including but not limited to reasonable attorney fees) resulting from the claims of any broker, finder or other such party claiming, by, through or under the acts or agreements of the indemnifying party. The warranties and obligations of the parties pursuant to this paragraph shall survive the termination of this Agreement and the closing, as applicable. 7. POSSESSION AND CLOSING. If Buyer timely performs all obligations, closing shall occur and possession of the Property shall be delivered to Buyer on or before December 15, 2023. Adjustment of interest, rents and all charges attributable to the Seller’s possession are to be made of like date. This transaction shall be considered closed upon filing of documents and receipt of all funds by the Seller. 8. USE OF PURCHASE PRICE. At time of settlement, funds of the purchase price may be used to pay taxes and other liens or items, to be handled under the supervision of the Seller. 9. ABSTRACT AND TITLE. Seller, at its expense, shall promptly obtain an abstract of title to the Property continued through the date of this Agreement, and deliver it to Buyer for examination. It shall show merchantable title in Seller in conformity with this Agreement, Iowa law and Iowa Land Title Standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect title. If closing is delayed due to Seller’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 3 other party. The abstract shall become the property of the Buyer when the purchase price is paid in full. Seller shall pay the costs of any additional abstracting and title work due to any act or omission of Seller, including transfers by or the death of Seller or its assignees. 10. DEED. Upon payment of the purchase price, Seller shall convey the Property to Buyer by warranty deed, free and clear of all liens, restrictions, and encumbrances except as provided in this Agreement. General warranties of title shall extend to the time of delivery of the deed excepting liens or encumbrances suffered or permitted by Buyer. 11. REMEDIES OF THE PARTIES. In the event of a default or material breach of this Agreement by Seller, Buyer shall be entitled to a full refund of all Earnest Money as its sole and absolute remedy. In the event of a default or material breach by Buyer, Seller shall be entitled to utilize any and all remedies or actions at law or in equity available to it, including but not limited to the remedy of specific performance and the option to forfeit this Agreement under Iowa Code Chapter 656, and Seller shall be entitled to collect from Buyer any costs and attorney fees incurred. In addition to any other remedy provided for herein, all payments made and any Earnest Money shall be unconditionally forfeited to Seller. 12. BINDING ON SUCCESSORS IN INTEREST/ASSIGNMENT. This Agreement shall apply to and bind the successors in interest and permitted assigns of the parties. Neither party shall assign this Agreement without the prior written consent of the other party. 13. CONSTRUCTION. Words and phrases shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender, according to the context. 14. CERTIFICATION. Buyer and Seller each certify that it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and are not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to my breach of the foregoing certification. 15. TIME FOR ACCEPTANCE. If this Agreement is not accepted by Seller on or before November _____, 2023 it shall become void and all payments shall be repaid to the Buyer. 16. INSPECTION OF PRIVATE SEWAGE DISPOSAL SYSTEM. Seller represents and warrants to Buyer that the Property is not served by a private sewage disposal system, and there are no known private sewage disposal systems on the Property. 17. CONDITIONS PRECEDENT IN FAVOR OF BUYER. 4 A. This Agreement is subject to approval of the City Council of the City of Waukee. B. At closing and at no additional cost to Buyer, Seller shall also grant the City of Waukee a Temporary Construction Easement and Permanent Trail Easement over the land between Parcel ‘23-102’ and Parcel ‘23-103’ for the purpose of Buyer’s construction of a portion of the Prairie Rose Trail on forms reasonably acceptable to Buyer and Seller, and provided Seller is not required to maintain either of the temporary or permanent easement areas. The Temporary Construction Easement would automatically terminate upon completion and final acceptance of the Prairie Rose Trail project. 18. ENTIRE AGREEMENT. This Agreement is intended by the Parties to provide for the entire agreement between the Parties and is limited in scope to matters expressly provided herein. 19. ATTORNEY FEES. Should it become necessary for either party to enforce this agreement, the defaulting party shall be responsible for any and all attorney’s fees and expenses incurred by the other party in pursuit of enforcement of this Agreement. 20. JURISDICTION. The Parties agree that this Agreement and amendments hereto, if any, shall be governed by the laws of the State of Iowa. The Parties consent and agree that the proper venue and jurisdiction relative to the enforcement of the terms, conditions and provisions of this Agreement and amendments hereto, if any, is the Iowa District Court in and for Dallas County, Iowa. 21. SURVIVAL. The respective agreements, duties, warranties, terms, conditions and representations of the parties hereunder shall survive closing and shall not be merged into the warranty deed or any other agreement or document, unless otherwise agreed in writing by the Parties. 22. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement. 23. CONSTRUCTION AGAINST PARTY DRAFTING. The Parties to this Agreement acknowledge and agree that this Agreement represents a negotiated agreement, having been drafted, negotiated and agreed upon by the Parties and their respective legal counsel. The Parties agree that the fact that one party or the other may have been primarily responsible for drafting or editing this Agreement shall not, in any dispute over the term of this Agreement, be held or interpreted against such party. 24. CONDEMNATION. If prior to the Closing Date any part of the Property is subject to a bona fide threat of condemnation by a body having the power of eminent domain, or is taken by eminent domain or condemnation (or sold in lieu thereof), Seller shall provide written notice thereof to Buyer, and Buyer may, in Buyer's discretion, elect to terminate this Agreement by written notice to Seller. If Buyer elects to terminate this Agreement, all Earnest Money paid hereunder, together with accrued interest, shall be immediately returned to Buyer, and both parties shall be relieved from any further liability hereunder. If Buyer does not elect to terminate this Agreement, it shall remain in full 5 force and effect, and the full Purchase Price shall be due at closing without adjustment; provided, however, Buyer shall receive notice of and be entitled to control over all negotiations or meetings with condemning authorities, and Seller shall, at closing, assign, transfer and set over to Buyer, all of Seller's right, title and interest in and to any awards made in connection with such taking. 25. CONDITIONS PRECEDENT IN FAVOR OF SELLER. A. This Agreement is subject to the unconditional approval of the plat of survey (“Plat of Survey”) of the Property by the Waukee City Council, a copy of which is attached hereto as Exhibit “A” and made a part hereof. B. The filing of the Plat of Survey with the Office of the Recorder of Dallas County, Iowa. Dated: , 2023 CITY OF WAUKEE, IOWA By Courtney Clarke, Mayor By Rebecca D. Schuett, City Clerk (City Seal) STATE OF IOWA ) ) ss. COUNTY OF DALLAS ) On this _____ day of _________________, 2023, before me the undersigned, a Notary Public in and for the State of Iowa, personally appeared Courtney Clarke and Rebecca D. Schuett, to me personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee, Iowa; that the instrument was signed and sealed on behalf of the City by authority of its City Council, as contained in Resolution No. ______ passed by the City Council on the _____ day of ______________, 2023, and that Courtney Clarke and Rebecca D. Schuett, as such officers, acknowledged the execution of the instrument to be the voluntary act and deed of the City, by it and by them voluntarily executed. _________________________________ Notary Public in and for the State of Iowa My Commission expires 6 Dated: , 2023 INDI RUN WEST, L.L.C., By: Eric J. Grubb, Manager STATE OF IOWA ) ) ss. COUNTY OF ) This record was acknowledged before me on this ____ day of ________________, 2023, by Eric J. Grubb, Manager of Indi Run West, L.L.C. ______________________________________ Notary Public in and for the State of Iowa My Commission expires EXHIBIT A EXHIBIT A