Loading...
HomeMy WebLinkAbout2024-12-02 I01F_06 Habitat for Humanity_Development Agreement and Option to Purchase ExtensionAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: December 2, 2024 AGENDA ITEM:Consideration of approval of a Resolution Amending and Substituting Development Agreement & Option to Purchase with Habitat for Humanity of Greater Des Moines to Extend Certain Deadlines to February 28, 2025 FORMAT:Resolution SYNOPSIS INCLUDING PRO & CON: On May 6, 2024, The City of Waukee and Habitat for Humanity of Greater Des Moines approved an Option to Purchase and Development agreement to develop 48 affordable townhome units on the northern half of the parcel near Douglas Parkway and North Warrior Ln. All previously negotiated terms remain in place, but both parties have agreed to extend the agreements until February 28, 2025 to allow sufficient time to complete the planning and zoning process. This should not affect the existing timeline for construction or terms of the Workforce Housing Tax Credit Award. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: This resolution extends the agreement for two months. All previous terms remain in effect. No additional fiscal impact. COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Staff recommends approval ATTACHMENTS: I. Proposed Resolution II. Amendment to Development Agreement III. Amendment to Option to Purchase Agreement PREPARED BY: Nick Osborne REVIEWED BY: Nick Osborne PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: I1F6 THE CITY OF WAUKEE, IOWA RESOLUTION 2024- RESOLUTION AMENDING AND SUBSTITUTING DEVELOPMENT AGREEMENT & OPTION TO PURCHASE WITH HABITAT FOR HUMANITY OF GREATER DES MOINES TO EXTEND CERTAIN DEADLINES TO FEBRUARY 28, 2025 IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Iowa is a duly organized municipality within Dallas County; AND, WHEREAS, on May 6, 2024, Habitat for Humanity of Greater Des Moines and the City of Waukee approved an option to purchase and development agreement for the purpose of developing affordable housing; AND, WHEREAS, certain provisions within the agreements mandate action by December 31, 2024; AND, WHEREAS, the City of Waukee and Habitat for Humanity of Greater Des Moines mutually agree to keep the current terms of the agreements in place and extend certain deadlines to February 28, 2025. NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this 2nd day of December 2024 that the City of Waukee amends and substitutes the option to purchase and development agreement as specified above. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN R. Charles Bottenberg Chris Crone Rob Grove Anna Bergman Pierce Ben Sinclair Page 1 of 23 Prepared by: Amy S. Montgomery, Esq., Dentons Davis Brown PC, 215 10th Street, Suite 1300, Des Moines, Iowa 50309; (515) 288-2500 Return to: City Clerk, City of Waukee, 230 Highway 6, Waukee, Iowa 50263 (515) 987-4522 FIRST AMENDED AND SUBSTITUTED DEVELOPMENT AGREEMENT This First Amended and Substituted Agreement, entered into by the City of Waukee, an Iowa municipal corporation in the State of Iowa (hereinafter referred to as the “City”) and Greater Des Moines Habitat for Humanity, Inc., an Iowa non-profit corporation, with its principal place of business at 95 University Ave., Suite 1, Des Moines, Iowa 50314 (hereinafter referred to as “Habitat”). WHEREAS, the parties entered into a Development Agreement on May 6th, 2024; and WHEREAS, the parties desire to Amend said agreement to extend a certain deadline for the substantial commencement of the project by Buyer: and WHEREAS, the City desires to transfer the land more particularly described on Exhibit A (the “Property”), attached hereto, and generally consistent with the Concept Plan attached hereto as Exhibit B, for the purposes of Habitat developing the same for workforce housing (the “Project”) in accordance with the terms of this Agreement; NOW, THEREFORE, in consideration of the Recitals, which are a part of this Agreement, and the mutual covenants and agreements herein contained, and the City and Habitat agree as follows: 1.Representations and Warranties. 1.1.Representations of the City. City represents and warrants: (a) City is a municipal corporation and has the power to enter into this Agreement and to carry out its obligations hereunder; (b) City has duly authorized the execution, delivery, and performance of this Agreement; and (c) this Agreement constitutes a valid and legally binding obligation, enforceable against the City in accordance with its terms and conditions. 1.2.Representations of Habitat. Habitat represents and warrants: (a) Habitat is an Iowa nonprofit corporation and has the power to enter into this Agreement and to carry out its obligations hereunder; (b) Habitat has duly authorized the execution, delivery, and performance of this Agreement; and (c) this Agreement constitutes a valid and legally binding obligation, enforceable against Habitat in accordance with its terms and conditions. Page 2 of 23 2.Option to Purchase. 2.1.Generally. Subject to and in accordance with the terms and conditions of this Agreement, the City agrees to grant Habitat by separate agreement executed contemporaneously herewith an Option to Purchase the Property (“Option to Purchase”) for $1.00 and other good and valuable consideration, including the mutual agreements and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged. 2.2.Conditions. The obligation of the City to sell the Property and Habitat to accept the Property under the terms of the Option to Purchase is subject to the following conditions: a.City approval of the Project’s Concept Plan included for approval as Exhibit B to this Agreement. b.Project compliance with all relevant zoning, design, and replatting guidelines. c.City approval of the Project’s budget, as well as the plan to address any identified funding shortfall. d.Compliance with requirements as provided in Section 3.3 of this Agreement. e.The City completing the procedures required in Sections 364.7 and 403.8 of the Iowa Code. f. Habitat shall be satisfied, in its sole discretion, that there are no recognized environmental conditions present at the Property. g. The City shall, within sixty (60) days of approval and satisfaction of the requirements set forth in 2.2 above and 3.3 below, furnish the following (collectively the “Title Evidence”) to Habitat: (a) an Abstract of Title certified through the date of this Agreement; and (b) any surveys of the Property in the City’s possession, if any. Within thirty (30) days after receiving the last of the Title Evidence, Habitat will make written objections (“Title Objections”) to the form and/or contents of the Title Evidence. Habitat’s failure to make Title Objections within such time period will constitute a waiver of the Title Objections. Any matter shown in such Title Evidence as encumbrances and not objected to by Habitat shall be a “Permitted Encumbrance” hereunder. City shall use commercially reasonable efforts to correct any Title Objections. Habitat shall have the right, at Habitat’s sole expense, to obtain a current ALTA survey of the Property made and certified by a licensed surveyor. 3.Improvements. 3.1 Generally. Habitat shall develop the Property for the construction of at least 48 townhome- style residential units, in such number of buildings as determined by the parties (the “Improvements” and the “Intended Use”). Page 3 of 23 3.2 Collaboration. Habitat shall work with City staff to ensure the plans for the Improvements conform with all requirements necessary to receive City permits and are compatible with the guidelines and standards of the Iowa Workforce Housing Tax Credit Program. 3.3 Approval of Improvements. General layouts and elevations of proposed structures are subject to City approval. The site plan must be approved by City Council prior to the closing date. Failure to secure approval shall constitute default of Habitat’s obligations under this Agreement and shall result in the full cancellation of the City’s obligations under this Agreement. 3.4 Public Services. The City represents that it has existing water and wastewater infrastructure located in the vicinity of the Property (the “Water and Sewer Infrastructure”) that will accommodate the Intended Use. 3.5 Deadlines. Habitat shall meet the following deadlines for the Improvements: a.2/28/25– Substantially begin the Improvements to the Property; b.7/31/26– Completion of at least 12 townhome units on the Property consistent with the terms of this Agreement (“Phase 1”); and c.7/31/27– Completion of at least 16 additional townhome units on the Property consistent with the terms of this Agreement (“Phase 2”); and d.7/31/28 – Completion of a combined total 48 townhome units on the Property consistent with the terms of this Agreement (“Phase 3”). 4.Affordability Requirements. 4.1.Restrictive Covenants. Habitat agrees to sell all townhome units to buyers with a combined maximum income for all household members less than or equal to 80% of the Area Median Income limits established each year by the United States Department of Housing and Urban Development (adjusted for household size, and other criteria as further determined by Habitat including an applicant’s family size, and housing and employment history). Habitat further agrees to place restrictive covenants that include said income restriction covering all units for the maximum period allowable by the Iowa Code, similar to the form attached hereto as Exhibit C. Habitat shall not transfer any portion of the Property to any third party other than a completed housing unit to a homebuyer consistent with this Section 4.1 or to the City pursuant to Section 6.3. 4.2.Right of Repurchase. Habitat shall require all buyers to grant Habitat a right of first refusal to repurchase each unit, similar to the form attached hereto as Exhibit D. 4.3.Compliance. Any affordability covenant placed on the Property relating to the sale of the units shall comply with the requirements of the current terms and conditions of the State of Iowa Workforce Housing Tax Credit. Page 4 of 23 4.4.Period of Exclusivity. Habitat recognizes the intention of the City to ensure that a substantial portion of the units be sold to individuals with ties to the City of Waukee. To this end, Habitat shall incorporate into its marketing plan for this development an exclusivity period where it would target the solicitation of applications to Waukee related sources, including but not limited to the Waukee School District, and businesses located within the City of Waukee. 4.5.No Abatement. Habitat and its successors agree that the Improvements are not eligible for tax abatement under Iowa Code Chapter 404 or any other State, federal or local law, and this restriction shall be documented in any subsequently recorded restrictive covenants, deed, or purchase contract for any housing unit or any portion of the Property. 5.Economic Incentive 5.1.Funding Gap. The City acknowledges that Habitat currently has a funding gap of $1,200,000 (the “Funding Gap”) for completion of the Improvements. 5.2.Economic Incentive. For and in consideration of the obligations being assumed by Habitat hereunder, the City agrees, subject to the Habitat being and remaining in compliance with this Agreement at the time of each payment, and subject to the terms and conditions of this Section 5.2, to make up to ten (10) consecutive annual payments of “Economic Development Grants” to the Habitat under the following terms and conditions. a. Schedule of Grants. Assuming completion of the Phase 1 Improvements by July 31, 2026 and their first full assessment on January 1, 2027, the Economic Development Grants shall commence on June 1, 2029, and end on the earlier of (i) June 1, 2038 or (ii) the date the Maximum Amount of Grants under Section 5.2(b) have been paid, under the following formula and schedule: June 1, 2029 100% of Tax Increments for Fiscal Year 28-29 June 1, 2030 100% of Tax Increments for Fiscal Year 29-30 June 1, 2031 100% of Tax Increments for Fiscal Year 30-31 June 1, 2032 100% of Tax Increments for Fiscal Year 31-32 June 1, 2033 100% of Tax Increments for Fiscal Year 32-33 June 1, 2034 100% of Tax Increments for Fiscal Year 33-34 June 1, 2035 100% of Tax Increments for Fiscal Year 34-35 June 1, 2036 100% of Tax Increments for Fiscal Year 35-36 June 1, 2037 100% of Tax Increments for Fiscal Year 36-37 June 1, 2038 100% of Tax Increments for Fiscal Year 37-38 “Tax Increments” means the property tax revenues on the Property and Improvements divided and made available to the City under the provisions of Section 403.19 of the Code, as amended, and the Ordinance. “Ordinance” means the ordinance(s) of the City under which the taxes levied on taxable property in the Waukee North Residential Urban Renewal Area are divided and paid into a special fund of the City under the authority of Iowa Code Section 403.19. Page 5 of 23 b. Maximum Amount of Grants. The aggregate amount of the Economic Development Grants that may be paid to the Habitat under Section 5.2(a) of this Agreement shall be equal to the sum of the total amount of the applicable percentages of Tax Increments collected in respect of the assessments imposed on the Property and Improvements, but in no event shall the aggregate amount of the Economic Development Grants exceed the lesser of: (a) $500,000, or (b) the amount of any Funding Gap for the Project after all other sources are exhausted pursuant to Section 5.3. Habitat acknowledges that payment shall come solely and only from Tax Increments received by the City under Iowa Code Section 403.19 from levies upon the Property and Improvements. The Economic Development Grants shall not be payable in any manner by other tax increment revenues or by general taxation or from any other City funds. It is further agreed and understood that in no event shall Habitat be entitled to receive more than calculated under the formula set forth in Section 5.2(a), even if the aggregate amount is less than maximum amount stated herein. c. Conditions Precedent. Notwithstanding the provisions of Section 5.2(a) above, the obligation of the City to make an Economic Development Grant in any year shall be subject to and conditioned upon compliance with the terms of this Agreement by Habitat through the date of payment. d. Annual Appropriation. Each Economic Development Grant is subject to annual appropriation by the City Council of the City. The right of non-appropriation reserved to the City in this Section is intended by the parties, and shall be construed at all times, so as to ensure that the City’s obligation to make future Economic Development Grants shall not constitute a legal indebtedness of the City within the meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates funds for the payment of that installment or amount. In the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness of the City, the enforcement of the said provision shall be suspended, and the Agreement shall at all times be construed and applied in such a manner as will preserve the foregoing intent of the parties, and no Event of Default by the City shall be deemed to have occurred as a result thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended, the suspension shall not affect other provisions of this Agreement which can be given effect without the suspended provision. To this end the provisions of this Agreement are severable. 5.3 Habitat Obligation. Habitat covenants to immediately use commercially reasonable efforts to eliminate the Funding Gap by securing other sources of public funding. This obligation shall continue to exist until the completion of the Improvements. Sources of funding shall include but not be limited to the following: (a) Workforce Housing Tax Credits; (b) other identified State or Federal funding sources designated exclusively for the construction of the Improvements; and (c) gift in kind donations through any newly established pledges from contractors, vendors, or consultants designated specifically for this Project. Page 6 of 23 5.4 Exclusions. The City acknowledges that Habitat engages in ongoing private fundraising efforts in support of overall affordability programming and facilitates securing down payment assistance-related funding for homeowners through various grant programs. In addition, the City acknowledges that amounts received through these private fundraising efforts are essential for the feasibility of the Project. The parties agree that any amounts received through these efforts will be used to offset the costs of Habitat’s affordability programming and would not be used to eliminate the Funding Gap. 5.5 City Support. The City agrees to reasonably support and assist Habitat in its effort to eliminate its Funding Gap by supporting Habitat’s grant application efforts; however, nothing in this Section 5.5 requires the City to provide any additional financial support for the Project other than as set forth in Section 5.2 The transfer of the Property to Habitat, and the payment of the Economic Development Grants proposed under the terms of this Agreement, are intended to serve as the local match for Habitat’s application for Workforce Housing Tax Credits. Habitat shall indemnify and hold harmless the City from any loss arising out of or related to the City’s failure to fulfill the terms of any agreement with the State with respect to the provision of the local match if the City’s failure is due to an Event of Default by Habitat under this Agreement. 5.6 Repayment. Habitat agrees that the actual cash value of funds received from sources identified in Section 5.3 of this Agreement that are secured prior to the completion of the Improvements shall be used to offset the Funding Gap. Further, any amounts received in excess of the difference between the Funding Gap and the actual cash value of the Economic Development Grants received by Habitat shall be used to reimburse the City for any Economic Development Grants previously paid to Habitat. 6.Default. 6.1 Event of Default by Habitat. The following shall be an “Event of Default” by Habitat under this Agreement, and the term “Event of Default” with respect to Habitat shall mean, whenever it is used in this Agreement, the failure by Habitat to comply with Sections 3 or 4 of this Agreement. Notwithstanding the forgoing, any failure by Habitat that is caused in part or in full by the City’s failure to perform any obligation listed in this Agreement shall not be considered an Event of Default. 6.2 Event of Default by City. The following shall be an “Event of Default” by the City under this Agreement, and the term “Event of Default” with respect to the City shall mean, whenever it is used in this Agreement, the failure by the City to provide funds to fill the Funding Gap under the terms set forth in Section 5.2. Notwithstanding the forgoing, any failure by the City that is caused in part or in full by Habitat’s failure to perform any obligation listed in this Agreement shall not be considered an Event of Default. 6.3 Notice and Remedies of City. Whenever any Event of Default described in this Agreement occurs by Habitat, the City shall provide written notice to Habitat describing the cause of the default and the steps that must be taken by Habitat in order to cure the default. Habitat shall have one hundred eighty (180) calendar days after receipt of the notice to cure the default or to provide assurances satisfactory to the City that the default will be cured as soon as reasonably possible. If Page 7 of 23 Habitat fails to timely cure the default or provide assurances, the City shall then have the right to terminate this Agreement after the end of the cure period (including any additional cure period agreed to between the parties) and require Habitat to convey any portion of the Property still owned by the Habitat back to the City by quit claim deed free and clear of any liens or encumbrances. Habitat shall execute any documents necessary to perfect this transfer within thirty (30) days of a written demand from the City following the end of the applicable cure period. 6.4 Notice and Remedies of Habitat. Whenever any Event of Default described in this Agreement occurs by the City, Habitat shall provide written notice to the City describing the cause of the default and the steps that must be taken by the City in order to cure the default. The City shall have one hundred eighty (180) calendar days after receipt of the notice to cure the default or to provide assurances satisfactory to Habitat that the default will be cured as soon as reasonably possible. If the City fails to timely cure the default or provide assurances, Habitat shall then have the right to terminate this Agreement after the end of the cure period (including any additional cure period agreed to between the parties) and seek any such other relief at law or in equity as may be appropriate. 7.Time is of the Essence. The parties acknowledge that time is of the essence with respect to each and every term of this Agreement. The City agrees to move the Project through the review process consistent with standard City procedures and processes. 8.Miscellaneous. 8.1 Further Assurances. The parties hereto hereby agree to execute any and all additional instruments and documents as may be reasonably required to fully effectuate the terms of this Agreement. 8.2 Notices. Any and all notices, consents, approvals, offers, elections and other communications required or permitted under this Agreement shall be deemed adequately given only if in writing and the same shall be delivered either in hand or by mail or Federal Express or similar expedited commercial carrier, addressed to the recipient of the notice, as required below, prepaid and registered or certified with return receipt requested if by mail, or with all freight charges prepaid if by Federal Express or similar commercial carrier. All communications to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of receipt or refusal. All notices shall be addressed: If to City, to: City of Waukee Waukee City Hall 230 W. Hickman Road Waukee, IA 50263 Attn: City Administrator and to: City of Waukee Page 8 of 23 Waukee City Hall 230 W. Hickman Road Waukee, IA 50263 Attn: City Attorney If to Habitat, to: Greater Des Moines Habitat for Humanity, Inc. 95 University Ave., Suite 1 Des Moines, Iowa 50314 Attn: Executive Director and to: Greater Des Moines Habitat for Humanity, Inc. 95 University Ave., Suite 1 Des Moines, Iowa 50314 Attn: Ryan Doyle 8.3 Governing Laws and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Iowa without regard to any conflict of law rules. In addition, any suit to enforce the terms of this Agreement shall be filed in the Iowa District Court for Dallas County, Iowa, and the parties hereto irrevocably waive any objection to venue. 8.4 Severability. If any term or provision of this Agreement or the application thereof to either party or circumstances shall be held invalid or unenforceable, the other provisions of this Agreement, or the application of such term or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby but shall continue to be valid and be enforceable to the fullest extent permitted under applicable law. 8.5 Force Majeure. In no event shall either party be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, (i) acts of God; (ii) floods, fires, earthquakes, explosions, or other natural disasters; (iii) wars, invasions, hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest; (iv) governmental authority, proclamations, orders, laws, actions, or requests; (v) embargoes or blockades; (vi) epidemics, pandemics, or other national or regional states of emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortages of supplies, adequate power, or transportation facilities; or (ix) other events beyond the reasonable control of the parties. Each party shall use reasonable efforts which are consistent with accepted practices in the commercial real estate development industry to resume performance as soon as practicable under the circumstances. 8.6 Assignment. It is expressly agreed and understood that neither party shall assign their interest and/or benefits of this Agreement without first obtaining prior written consent from the other party. Either party may choose to refuse consent of said assignment for any reason or for no reason at all. Page 9 of 23 8.7 Modifications. Except as otherwise expressly specified herein, no provision of this Agreement shall be modified, waived or terminated except by an instrument in writing signed by the party against whom such modification, waiver or termination is to be enforced. 8.8 Captions. The captions to the paragraphs hereof are for convenience of reference only and are not intended to affect the meaning of the provisions of this Agreement. 8.9 Counterparts. This Agreement may be signed in any number of counterparts which together shall constitute one instrument. 8.10 Entire Agreement. This Agreement, in conjunction with the Option to Purchase referenced herein, contains the entire agreement of the parties with respect to the subject matter hereof. [Signature page(s) follow(s)] Page 10 of 23 Dated: GREATER DES MOINES HABITAT FOR CITY OF WAUKEE, IOWA HUMANITY, INC. ______________________________ ____________________________ Name: Lance Henning Name: Courtney Clarke Title: CEO Title: Mayor Attest: __________________________________________________________ Name: Name: Rebecca D. Schuett Title: Title: City Clerk STATE OF IOWA ) ) SS COUNTY OF ) This record was acknowledged before me on the _____ day of __________________, 2024, by Lance Henning and _________________________, as CEO and ________________________, respectively, of Greater Des Moines Habitat for Humanity, Inc. ____________________________________ Notary Public in and for the State of Iowa My commission expires:_________________ STATE OF IOWA ) ) SS COUNTY OF DALLAS ) This record was acknowledged before me on the _____ day of __________________, 2024, by Courtney Clarke and Rebecca D. Schuett, as Mayor and City Clerk, respectively, of the City of Waukee, Iowa. ____________________________________ Notary Public in and for the State of Iowa My commission expires:_________________ Page 11 of 23 Exhibit A Legal Description Part of Outlots "X" and "Z" in PRAIRIE ROSE PLAT 2, an Official Plat, and part of Outlot "Z" in PRAIRIE ROSE PLAT 6, an Official Plat, all now included in and forming a part of the City of Waukee, Dallas County, Iowa, being more particularly described as follows: Commencing at the Northeast corner of said Outlot "X" in PRAIRIE ROSE PLAT 2; thence South 00°(degrees) 22'(minutes) 49"(seconds) West, 241.78 feet along the East line of said Outlot "X" to the Point of Beginning; thence continuing South 00°22'49" West, 622.89 feet along the East line of said Outlot "X"; thence South 45°03'06" West, 35.56 feet along the Southeast line of said Outlot "X"; thence South 89°43'24" West, 262.66 feet along the South lines of said Outlots "X" and "Z" in PRAIRIE ROSE PLAT 2; thence North 00°16'36" West, 57.22 feet; thence North 42°16'05" West, 144.69 feet; thence North 09°44'56" East, 177.84 feet to and along the West line of said Outlot "X" in PRAIRIE ROSE PLAT 2; thence North 07°37'40" West, 68.66 feet along the West line of said Outlot "X"; thence North 18°12'04" East, 80.92 feet along the West line of said Outlot "X"; thence North 02°38'24" West, 107.23 feet; thence North 23°54'23" East, 81.25 feet; thence North 45°18'15" East, 66.01 feet to the West line of said Outlot "X" in PRAIRIE ROSE PLAT 2; thence North 18°12'04" East, 31.51 feet along the West line of said Outlot "X"; thence South 89°37'11" East, 162.83 feet; thence South 46°09'35" East, 132.67 feet to the point of beginning. Page 12 of 23 Exhibit B Concept Plan Page 13 of 23 Exhibit C Form of Covenants Prepared by: Amy S. Montgomery, 4201 Westown Pkwy., Suite 300, West Des Moines, IA 50266; Phone: 515-288-2500 Return to: Greater Des Moines Habitat for Humanity, Inc., 2200 E. Euclid, Des Moines, Iowa 50317 COVENANT RESTRICTING RESALE WITH OPTION TO PURCHASE AND ASSIGNMENT OF RENTS This COVENANT RESTRICTING RESALE AND OPTION TO PURCHASE AND ASSIGNMENT OF RENTS (“Covenant”) is made this [#NUMBER] day of [MONTH], [YEAR] (the “Effective Date”) by and between Greater Des Moines Habitat for Humanity, Inc. (“Habitat”), and [OWNER 1] [and [OWNER 2]], [an unmarried person][a married couple][each single persons] and Owner’s successors and assigns in interest (together, “Owner”), for the purpose of implementing the goal of creating, preserving, maintaining, and protecting affordable and owner-occupied housing for households of low to moderate income. In consideration of the benefits received by the Owner, this Covenant shall govern and affect the right to sell, convey, encumber, transfer, or dispose of in any way all portions of interest in the real property described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”). Habitat intends to establish resale controls to provide for the continued availability of the Property to low to moderate income households. Owner expressly acknowledges that this Covenant addresses restrictions on the resale of the Property, including without limitation that: (i) the Property must be occupied as the Owner’s principal residence; and (ii) at the time of purchase, the combined maximum income for all household members must be less than or equal to 80% of the Area Median Income limits established each year by the United States Department of Housing and Urban Development (adjusted for household size), and as further determined by Habitat. SECTION I RESTRICTIONS ON DISPOSITION OF PROPERTY 1.1 Habitat’s Consent to Transfer. The Property and any interest in title thereto shall not be sold, leased, rented, assigned, or otherwise transferred to any person or entity without express written consent of Habitat, or its designee or assignee, as applicable, which consent shall be consistent with Habitat’s goal of creating, preserving, maintaining, and protecting housing for low to moderate income households, and which consent shall not be unreasonably withheld or denied so long as the proposed transfer of an interest in the Property otherwise complies with this Covenant. Such consent shall be in Habitat’s sole discretion and any proposed purchaser, lessee, or assignee shall satisfy all qualification, eligibility, and assumption requirements as set forth herein. Any transfer of title to the Property or any interest therein by the Owner, or any attempt thereof, in violation of this section or any of the provisions and requirements of this Covenants shall be void and shall constitute a default hereunder. 1.2 Dispositions Not Restricted. The following transfers of title or any interest therein are not subject to Section 2.1 of this Covenant, and written consent by Habitat as provided in Section 1.1 will be based solely on the transfer being consistent with the provisions of this Section 1.2: transfer by gift, devise, or inheritance to grantee’s spouse or issue; taking of title by surviving joint tenant; transfer of title to a spouse as part of a divorce or dissolution proceedings; and acquisition of title or interest therein in conjunction with marriage; provided, Page 14 of 23 however, that the covenants and restrictions created herein shall continue to run with the title to the Property following any of said transfers. SECTION II OPTION TO PURCHASE 2.1 Purchase Option to Habitat. Owner hereby grants and conveys to Habitat, for valuable consideration, the sufficiency of which is hereby acknowledged, an option and right of first refusal to purchase the Property and any improvements located thereon (the “Option”) under conditions as hereinafter set forth in Section 3.1. Habitat may designate a governmental or non-profit organization to exercise its Option, and Habitat or its designee may assign this right to an individual private buyer who meets Habitat’s eligibility qualifications as set forth in Section IV below (an “Eligible Buyer”). After the exercise of the Option by Habitat, its designee or assignee, in the manner as hereinafter prescribed, Habitat, its designee, or assignee, may assign the Option to any substitute, individual, or private buyer who meets the eligibility requirements and is approved by Habitat; provided, however, that such subsequent assignment shall not extend any time limits contained herein. Any transfer of title to the Property or any interest therein by the Owner, or any attempt thereof, in violation of these covenants shall be void and shall constitute a default hereunder. 2.2 Abstract. If the Option is exercised by Habitat or its assigns, Owner, at Owner’s cost, shall continue the existing abstract for the Property through the date the Option is exercised and deliver the abstract to Habitat’s attorney for examination. The Abstract shall show merchantable title to the Property pursuant to Iowa law and the Iowa Title Standards of the Iowa State Bar Association. 2.3 Fixtures and Personal Property. All personal property and property that integrally belongs to or is part of the Property, such as light fixtures, drapes, curtains, shades, rods, blinds, awnings, windows, storm doors, screens, plumbing fixtures, water heaters, water softeners, automatic heating equipment, air conditioning equipment, wall-to-wall carpeting, built-in items and electrical service cable, outside television towers and antenna, fencing, gates, and landscaping shall be considered a part of the Property and included in the sale. SECTION III PROCEDURE FOR PURCHASE OR RESALE 3.1 Notice of Intent to Sell. Whenever the Owner no longer desires to own the Property, the Owner shall notify Habitat in writing to that effect (the “Notice of Intent to Sell”) and shall serve the Notice of Intent to Sell in writing to Habitat, by certified mail, return receipt requested. The Notice of Intent to Sell shall contain the terms of any bona fide offer received. In the event Owner hasn’t received a bona fide offer at the time the Notice of Intent to Sell is given, Habitat shall have the opportunity to make an offer, and the notice of exercise of said Option with offer terms shall be given in writing by Habitat, by personal delivery or certified mail, to the Owner at any time within thirty (30) days from the receipt by Habitat of the Notice of Intent to Sell. If the offer from Habitat is unacceptable to Owner, Owner may proceed with listing the Property for sale, and, upon receipt of a bona fide offer, Owner shall send a new Notice of Intent to Sell to Habitat with the sales price and other terms of the bona fide offer received, at which point Habitat, its designee, or assignee shall then have the right to exercise its Option to purchase said Property upon the same terms and conditions of the bona fide offer, which shall be confirmed in writing, by personal delivery or certified mail, to the Owner at any time within thirty (30) days from the receipt by Habitat of the last received Notice of Intent to Sell. For the avoidance of doubt, the terms and conditions of this Section 3.1 apply to each third-party offer received for the Property by the then-current owner of the Property. 3.2 Closing. If Habitat, its designee, or assignee, exercises its Option to purchase said Property, then close of escrow for said purchase shall be within sixty (60) days of delivery of Habitat’s notice of the exercise of its Option, unless such period is extended by the mutual agreement of the Owner and Habitat, its designee, or assignee. Habitat shall have the right to receive a credit toward the purchase price of the Property from Owner in the amount of any outstanding balance due under any promissory notes/mortgages from Owner to Habitat. If Habitat, its designee, or assignee, does not exercise its Option to purchase said Property, then the Owner may Page 15 of 23 proceed to sell the Property to an Eligible Buyer only upon the price and terms specified in the Notice of Intent to Sell and in compliance with the provisions of this Covenant. 3.3 Assumption Agreement. Prior to closing, an “Assumption Agreement” (substantially in the form attached hereto as Exhibit B) shall be executed in a form acceptable to Habitat from the proposed purchaser under which the proposed purchaser shall assume the obligations and duties and agree to be bound by the provisions set forth in this Covenant. The Assumption Agreement may contain provisions to reflect any changes to Habitat’s adopted affordability policies. The recordation of the Assumption Agreement shall be a condition of Habitat’s approval of the proposed transfer. The Owner shall pay a reasonable assumption fee to Habitat and reimburse it for out-of-pocket costs to cover the costs of administering its rights and obligations under this Covenant. Notwithstanding the foregoing, even if said Assumption Agreement is not so executed and recorded, any person acquiring an interest in the Property from or through the Owner shall acquire such interest subject to and be bound by the provisions of this Covenant. Any purchaser of the Property or of any portion of or interest in the Property, by the acceptance of a deed therefore, whether from Owner or from any subsequent owner of the Property, or by the signing of a contract or agreement to purchase the same, shall by the acceptance of such deed or by the signing of such contract or agreement be deemed to have consented to and accepted the covenants, conditions, restrictions, and limitations set forth herein. 3.4 Sale Requirements. Owner and proposed purchaser shall provide Habitat with a copy of the final sale contract, settlement statement, copy of signed Assumption Agreement, and any other document that Habitat may reasonably request to enforce the terms of this Covenant. 3.5 Sale or Transfer in Violation. In the event a sale or transfer is made in violation of the terms of this Covenant or false or misleading statements are made in any documents or certification submitted to Habitat for its approval of the sale or transfer, Habitat may declare a default under this Covenant. Habitat shall also have the right to file action at law or in equity to force the parties to terminate and rescind the sale contract and declare the sale void notwithstanding the fact that the sale or transfer may have closed and become final as between the seller and purchaser. In any event, any costs, liabilities, or obligations incurred by the seller and purchaser for the return of any moneys paid or received in violation hereunder or for any costs and legal expenses, shall be borne by the seller and purchaser, and not by Habitat. The seller and purchaser shall hold Habitat and its designees harmless for any action Habitat reasonably takes in good faith in enforcing the terms of this Covenant. SECTION IV ELIGIBILITY REQUIREMENTS Any proposed purchaser must meet the following eligibility requirements to be an Eligible Buyer of the Property, and by acceptance of a deed or otherwise acquiring an interest in the Property, hereby warrants as follows: 4.1 Principal Residence. Owner will occupy the Property as their principal residence for the term of this Declaration. Owner shall be considered as occupying the Property as a principal place of residence if the Owner is living on the Property for twelve (12) months out of each calendar year. In the event the Property is vacant while being actively offered for sale by Owner, this owner occupancy requirement shall not apply; however, Owner may not rent the Property during such period. 4.2 Leasing. During the term of this Covenant, the Owner shall not rent or lease the Property. It is understood that Habitat’s primary purpose is to provide the opportunity to acquire a personal residence and not rental investment property; any lease in violation of this Covenant is void. 4.3 Ownership Status Report. Owner must submit a status report of Owner’s occupancy of the Property within 10 days of receipt of any such request from Habitat. This report must include an explanation of any rental or vacancy questions raised by Habitat over the time period specified by Habitat in its request for a status report. Page 16 of 23 4.4 Income Limitation. At the time of purchase, the combined maximum income for all household members of the Owner shall not exceed such income limit set forth by Habitat, which is less than or equal to 80% of the Area Median Income limits established each year by the United States Department of Housing and Urban Development (adjusted for household size). SECTION V LIABILIT IES 5.In no event shall Habitat become in any way liable to the Owner, or become obligated in any manner, by reason of the assignment of its Option, or after such an assignment become in any way obligated or liable to the Owner for any failure of Habitat’s designee or assignee to consummate a purchase of the Property or to comply with the terms of any purchase and sale agreement. SECTION VI TERMINATI ON 6. Duration of Covenant. The provisions set forth in this Covenant shall be in perpetuity and runs with the Property. SECTION VII DEFAULTS, REMEDIES, ASSIGNMENTS OF RENTS 7.1 Default and Remedies. Upon violation of any of the provisions of this Covenant by Owner or Owner’s proposed purchaser, Habitat may give written notice to Owner specifying the nature of the violation. If the violation is not corrected to the satisfaction of Habitat within a reasonable period of time, not longer than thirty (30) days after the date the notice is mailed, or within such further time as Habitat determines is necessary to correct the violation, Habitat may declare a default under this Covenant. Upon the declaration of a default or if the Owner or Owner’s proposed purchaser makes any misrepresentation in connection with receiving any benefits under this Covenant, Habitat may apply to a court of competent jurisdiction for specific performance of this Covenant, for an injunction prohibiting a proposed sale or transfer in violation of this Covenant, for a declaration that a transfer in violation of this Covenant is void, or for any such other relief at law or in equity as may be appropriate. In the event of default by the Owner, and/or by the Owner’s transferee in those circumstances where a transfer has occurred in violation of this Covenant, the Owner or the Owner’s transferee shall hold Habitat and Habitat’s respective employees or other agents harmless and reimburse the expenses, legal fees, and costs for any action the Habitat takes in enforcing the provisions of these Covenants. 7.2 Assignment of Rents. Owner hereby assigns to Habitat the right to receive the rents due or collected during the entire period the Property is occupied in violation of any of the terms of this Covenant. SECTION VIII SUPERIORITY OF AGREEMENT 8. The Owner covenants that they have not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions hereof except for documents executed pursuant to the requirements of the lenders with a security of interest in the Property superior to the position of Habitat and that, with the exception of the aforementioned lender documents, this Covenant is controlling as to the rights and obligations between and among Owner, Habitat and their respective successors. Page 17 of 23 SECTION IX MISCELLANEOUS 9.1.Notice. All notices required herein shall be served by United States mail, certified or registered, to Greater Des Moines Habitat for Humanity, Inc., PO Box 716 Des Moines, IA. 50303, or at a place Habitat may later designate. 9.2.Number/Gender. The use of the singular or plural and the masculine and feminine or neuter pronouns shall be construed as interchangeable and such correct pronouns when referring to a particular person, persons, entity, or entities shall be construed to have been used herein appropriately and correctly. 9.3.Applicable Law. This Covenant and the covenants, conditions, and restrictions contained herein shall be construed under the laws of the State of Iowa. References to statutes are construed to apply to later enactments on the same subject. 9.4.Owner’s Acceptance. By execution of this Covenant and the acceptance of any interest in the Property, the Owner accepts and agrees to be bound by the covenants contained herein. 9.5.Invalid Provision. If any one or more of the provisions contained in this Covenant shall for any reason be held to be invalid, illegal, or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Covenant, and this Covenant shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 9.6.Successors and Assigns. Unless otherwise limited and/or indicated herein, this Covenant shall constitute covenants that run with the land, as provided by law, and shall be binding upon and inure to the benefit of all parties and all persons who shall be or shall become the owner of, or otherwise have an interest in the Property. 9.7.Amendments. This Covenant may not be amended or terminated without the written consent of Habitat, unless otherwise specifically provided for in this Covenant. [SIGNATURE PAGE FOLLOWS] Page 18 of 23 Dated as of the date first above written. Owner 1 Owner 2 STATE OF IOWA ) ) ss. COUNTY OF ) STATE OF IOWA, COUNTY OF ___________________________ This record was acknowledged before me on _________________, by [OWNER 1] [and [OWNER 2]], [an unmarried person][a married couple][each single persons]. _________________________________ Signature of Notary Public GREATER DES MOINES HABITAT FOR HUMANITY, INC. By: ______________________________________ Name: Lance Henning Title: Chief Executive Officer STATE OF IOWA, COUNTY OF POLK This record was acknowledged before me on ___________ by Lance Henning as Chief Executive Officer of Greater Des Moines Habitat for Humanity, Inc. _________________________________ Signature of Notary Public Page 19 of 23 EXHIBIT A TO COVENANTS Legal Description of Property Page 20 of 23 EXHIBIT B TO COVENANTS Assumption Agreement ASSUMPTION AGREEMENT Reference is made to that certain Covenant Restricting Resale and Option to Purchase (the “Covenant”) dated the day of , 20 , and filed of record on the ____ day of ____________, 20___, in Book __________, Page _____________ of the _____________ County, Iowa Recorder’s Office executed by (“Owner”) for the purpose of implementing Greater Des Moines Habitat for Humanity Inc.’s (“Habitat”) goal of creating, preserving, maintaining and protecting housing in Iowa for households of low to moderate incomes. Said Covenant governs and affects the Owner’s right to sell, convey, encumber, transfer, or dispose of in any way the Owner’s interest in the real property described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”). Each of the undersigned has acquired or intends to acquire an interest in the Property. Pursuant to Section III of said Covenant, and in order to obtain Habitat’s approval of the undersigned acquiring such interest in the Property, the undersigned (and the undersigned’s heirs, successors, and assigns) hereby assumes the obligations and duties and agrees to be bound by the provisions set forth in said Covenant. This Assumption Agreement is made effective as of the day of , 20 , by the undersigned supersedes any prior assumption agreements. Dated as of the date first above written. New Owner 1 New Owner 2 STATE OF IOWA ) ) ss. COUNTY OF ) STATE OF IOWA, COUNTY OF ___________________________ This record was acknowledged before me on _________________, by [NEW OWNER 1] [and [NEW OWNER 2]], [an unmarried person][a married couple][each single persons]. __________________________________________ Signature of Notary Public APPROVED: HABITAT By: ______________________________________ Name: Title: STATE OF IOWA, COUNTY OF POLK This record was acknowledged before me on ___________ by as of _____________________________________. _________________________________ Signature of Notary Public Page 21 of 23 Exhibit D Form of Agreement for First Right of Refusal Prepared by/return to: Karen Hovey, Greater Des Moines Habitat for Humanity, POB 716, Des Moines, Iowa 50303 (515) 471.8686 AGREEMENT FOR FIRST RIGHT OF REFUSAL AND OCCUPANCY THIS AGREEMENT is made this day of , 202__, and is given to Greater Des Moines Habitat for Humanity, Inc. (“Habitat”) by the undersigned (the “Borrower”) covering the property described as follows: [insert legal] Locally known as: xxx, Waukee, Iowa. (the “Property”) WHEREAS, Habitat did sell and convey to Borrower the Property upon special terms and conditions intended to further the purposes of Habitat to provide housing; and WHEREAS, Borrower did apply for Habitat’s program to gain the benefits provided; and WHEREAS, Borrower did grant and convey to Habitat a First Purchase Money Mortgage on the Property, dated xxx x, 202 , and to be filed in the Office of the _____________ County Recorder (the “Mortgage”); and WHEREAS, Habitat and Borrower wish to further the expressed purposes by providing to Habitat a right of first refusal in the event that Borrower wishes to sell and convey its interest in the Property, and imposing an occupancy requirement as to the Property. NOW, THEREFORE, in further consideration of the sale of the Property from Habitat to Borrower, Borrower does hereby agree as follows: Occupancy. Borrower shall occupy, establish, and use the Property as Borrowers’ principal residence and shall continue to occupy the Property as Borrowers’ principal residence for so long as the Property is subject to the Mortgage, whether or not the Mortgage has been assigned by Habitat, unless Habitat otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrowers’ control. Right of First Refusal. Borrower covenants and agrees that in the event it shall desire to sell or convey the Property during the first 30 years from the date of the conveyance to Borrower, Borrower shall first offer the Property to Habitat, in the following manner: Borrower shall serve notice in writing to Habitat, by certified mail, return receipt requested. The notice shall indicate that Borrower has a bona fide written offer for the sale of the Property, the name and address of the person desiring to purchase the Property, and the sales price and other terms of the sale. The Page 22 of 23 notice shall also contain an offer to sell the Property to Habitat, upon the terms and conditions set forth in the bona fide offer. For a period of fourteen (14) days after the receipt of the notice, Habitat, shall have the right to purchase the Property in accordance with the terms of the bona fide offer; provided, however, that Habitat shall have the right to receive a credit toward the purchase price of the Property from Borrower in the amount of the outstanding principal balance due under the Note from Borrowers to Habitat. If Habitat fails to exercise the right to purchase set forth in this Rider, Borrower may sell or convey the Property, to the party making the bona fide offer, but only at the price and upon the terms specified in the notice; provided, however, that Habitat shall not waive its rights under Section 18 of the Mortgage from Borrower to Habitat by waiving its right of first refusal. In the event Habitat timely notifies Borrower that it elects to purchase the Property on the terms provided in the notice set forth in the preceding paragraph, Habitat and Borrower shall promptly, but no later than sixty (60) days after the date of notice from Habitat to Borrower, execute such usual and customary documents as shall be required in order to consummate such transaction. In the event that Borrower attempts to sell or convey the Property without complying with the terms of this Agreement, Habitat shall have the right to have such conveyance set aside, or exercise any other remedy, at law or in equity, under Iowa law. BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Agreement for First Right of Refusal and Occupancy. Page 23 of 23 By: _______________________________ Name:_____________________________ Title: ______________________________ STATE OF IOWA, COUNTY OF POLK This record was acknowledged before me on ___________ by as _______________________ of __________________________________. _________________________________ Signature of Notary Public By: _______________________________ Name: Lance Henning Title: CEO, Greater Des Moines Habitat for Humanity. STATE OF IOWA, COUNTY OF POLK This record was acknowledged before me on ___________ by Lance Henning as CEO of Greater Des Moines Habitat for Humanity. _________________________________ Signature of Notary Public 1 FIRST AMENDED AND SUBSTITUTED OPTION AGREEMENT FOR PURCHASE OF REAL ESTATE THIS FIRST AMENDED AND SUBSTITUED OPTION TO PURCHASE AGREEMENT (“Agreement”), made and entered into on this __2nd___ day of __December______________, 2024, (the Effective Date”), by and between Greater Des Moines Habitat for Humanity, Inc, a corporation duly formed and existing pursuant to the laws of the State of __Iowa_______________, whose address for the purpose of this Agreement is 95 University Avenue, Suite 1, Des Moines, IA 50314, (the “Buyer”) and the City of Waukee, Iowa, a municipal corporation, (the “City”) whose address for the purpose of this Agreement is 230 West Hickman Road, Waukee, IA 50263. The Buyer and the City are the “Parties” to this Agreement. WHEREAS, the parties entered into an option to purchase real estate on the 6th day of May, 2024 recorded at book 2024, page 07021 of the Dallas County Recorders office on May 16, 2024 (“Option Agreement”). WHEREAS, the parties desire to Amend said agreement to extend a certain deadline for the substantial commencement of the project by Buyer. WHEREAS, the City owns the real property described in Exhibit A attached hereto (the “Real Estate”). WHEREAS, Buyer desires to obtain an option, in accordance with the terms herein, to purchase the Real Estate from the City, subject to the terms outlined below and satisfaction of the terms of the Development Agreement between Buyer and City executed contemporaneously herewith (“Development Agreement”). WHEREAS, the Parties have reached an agreement on the terms and provisions for the option to purchase and wish to herein reduce their agreement to writing for formal execution and acknowledgement. IT IS THEREFORE AGREED as follows, to-wit: 1.Optioned Property: City hereby grants to Buyer the exclusive right of option to purchase the Real Estate legally described above. 2.Purchase Price: The purchase price to be paid by Buyer shall be one dollar and no cents ($1) (the “Purchase Price”), plus the obligations to develop the Real Estate consistent with the separate Development Agreement to be entered between the Parties. 3.Option Term: The Buyer shall have the exclusive right to exercise the option from the Effective Date until February 28, 2025 (the “Option Term”). If the Buyer has not exercised the option by this date, either Party may elect to terminate this Option to Purchase Agreement by providing written notice of termination to the other Party. 4.Exercise of Option: The Buyer may exercise the option by notifying the City in writing of it exercise of the option within 30 days following the satisfaction or waiver of the conditions set forth in Sections 2.2 and 3.3 of the Development Agreement. 2 5.Closing: Unless the Parties mutually agree to a different date, possession shall be delivered and closing shall occur within sixty (60) days after Buyer meets the conditions in the Development Agreement Section 2.2 and Section 3.3 and exercises the option as provided above. At closing, the City shall deliver to Buyer (i) a Quit Claim Deed (the “Deed”) conveying the Real Estate to Buyer free and clear of all encumbrances except for those described in Section 2.2(g) of the Development Agreement as “Permitted Encumbrances” as well as the rights of the City in the Development Agreement; (ii) evidence of authorizing resolution and publication of notice of hearing on the transfer of the Real Estate in accordance with Iowa Code § 364.7 and Iowa Title Standard 2.1; and (iii) possession of the Real Estate. At closing, Buyer shall deliver to the closing agent (i) the Purchase Price, plus all other applicable costs, expenses and fees; (ii) the settlement statement prepared by the closing agent and executed by Buyer; and (iii) all other documents reasonably required by the closing agent to complete closing. 6.Closing Costs: In connection with the closing, each Party shall pay the costs and expenses as noted below. a.City Costs: The City shall pay: (i) the fees and expenses of its counsel incurred in connection with the preparation and negotiation of this Agreement and the consummation of the closing; (ii) any state or local transfer taxes; and (iii) all recording fees for the release of any liens on the Real Estate. b.Buyer Costs: Buyer shall pay: (i) the fees and expenses of its counsel incurred in connection with the preparation and negotiation of this Agreement and the consummation of the closing; (ii) any and all fees and expenses incurred in connection with its due diligence, including, but not limited to, any costs incurred in connection with any survey or environmental reports; (iii) all recording costs payable in connection with the recoding of the Deed. 7.Access to Real Estate: City agrees that during the Option Term, Buyer and Buyer’s employees, designated agents and contractors shall have the right upon 24 hours advanced notice to the City (or shorter time period if approved by City) to enter the Real Estate for purposes of conducting any inspections and/or tests as provided hereunder. Buyer, at its sole expense, may inspect and make soil and other tests at any reasonable time during the Option Term. Buyer agrees to repair any damage to the Real Estate caused by Buyer’s exercise of its rights under this section. Buyer shall indemnify and hold City harmless with respect to all costs and expenses (including, without limitation reasonable attorneys’ fees) incurred by City due to Buyer’s (i) entry onto the Real Estate, and (ii) failure to repair any damage to the Real Estate caused by Buyer’s entry onto the Real Estate. This provision shall survive the Closing or termination of this Agreement. 8.City’s Representations and Warranties: As a material inducement to the execution and delivery of this Agreement by Buyer and the performance by Buyer of its duties and obligations hereunder, City does hereby warrant and represent to Buyer as of the Effective Date of this Option to Purchase Agreement: a.Information: Except as noted herein, City has no knowledge of any information affecting the Real Estate that has or would have a material adverse impact on Buyer’s ability to use, lease and operate the Real Estate for Buyer’s intended use as more 3 particularly described in the Development Agreement between the Parties executed contemporaneously herewith. b.Legal Compliance: To the best of the City’s knowledge, and except as disclosed in writing to Buyer prior to the expiration of the Option Term, there are no past or continuing violation, or alleged violation, of any legal requirement affecting the Real Estate; including, without limitation, any past or continuing violation or alleged violation of any local, state or federal environmental, building, zoning, subdivision, fire or other law, statute, ordinance, code, regulation rule or order (collectively, “Laws”). c.Litigation: To the best of the City’s knowledge, there are no pending or threated claims, actions, suits, litigation or governmental proceeding affecting the Real Estate or which could result in a potential lien against the Real Estate. d.Other Agreements: To the best of the City’s knowledge, there are no agreements or understandings, oral or written, with any person, entity or governmental authority affecting the Real Estate which could give rise to claims affecting the Real Estate other than the Development Agreement. e.Governmental Actions: To best of the City’s knowledge, there are no threated or pending condemnation or eminent domain proceeding, special assessment, rezoning or moratorium affecting the Real Estate. f.Environmental Matters: To the best of the City’s knowledge, the Real Estate in not in violation of any environmental laws. g.Authority: City has the full right, power and authority to sell, convey and transfer the Real Estate as provided in this Agreement. The execution and delivery of this Agreement is, and the execution and deliver of all documents required of City hereunder when delivered by City will be, duly authorized, validly and legally binding upon City and enforceable in accordance with their respective terms, and City shall provide such documentation to Buyer and to the closing agent sufficient to evidence such authority. 9.Development Agreement & Updated Concept Plan: This Agreement is contingent upon both Parties mutually agreeing to and executing the Development Agreement between the Parties contemporaneous with the execution of this Agreement. This Agreement is also contingent upon the satisfaction and approval of the requirements and conditions set forth in Sections 2.2 and 3.3 of the concurrent Development Agreement, which shall include, but not be limited to, development plans for the Real Estate and timelines for said development. 10.Real Property Taxes. The City shall be responsible for all property taxes, if any, due on the property prior to the closing date. Buyer shall be responsible for all real property taxes levied upon the Real Estate after the closing date. 11.Assessments: City shall pay all assessments which are liens as of the date of closing. 12.Insurance: City shall retain liability insurance on the premises until the date of 4 closing when possession is transferred to buyer. 13.Deed: Upon payment of the purchase price, City shall execute and deliver to Buyer or its successor or assign a Quit Claim Deed conveying to Buyer the City’s interest in the real property, in fee simple absolute, free and clear of all liens, and encumbrances, except those excepted only for recorded easements and pursuant to the terms of the Development Agreement. 14.Condition of the Real Estate: City shall maintain the Real Estate in the condition substantially the same as it exists on the Effective Date of this Agreement until the date of closing, except as provided by this Agreement and except for ordinary wear and tear. 15.Failure to Exercise Option: In the event Buyer fails or neglects to timely exercise the option or in any other manner fails to timely fulfill the terms of this Agreement, all sums paid to the City shall be forfeited to and become the property of City and neither party shall have any further rights or claims against the other. 16.Assignment: It is expressly agreed and understood that neither Party shall assign their interest and/or benefits of this Agreement without first obtaining prior written consent from the other Party. Either Party may choose to refuse consent of said assignment for any reason or for no reason at all. The only exception shall be the transfer of any portion of the Real Estate related to a completed housing unit to a homebuyer consistent with Section 4.1 of the Development Agreement or to the City pursuant to Section 6.3 of the Development Agreement. 17.Successors and Assigns: Should either party agree to allow an assignment of this Agreement, this Agreement shall become binding upon and insures to the benefit of successors and assigns. 18.Entire Agreement: This instrument constitutes the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior oral or written agreements, statements, representations, and promises;excepting, however, the Development Agreement which the parties expressly agree shall survive the execution of this Agreement. No addition to or change in the terms of this Agreement shall be binding upon the parties unless it is expressed in a writing signed by the parties. 19.Modification of Agreement: Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party. 20.Interpretation: This Agreement shall be governed exclusively by and construed in accordance with the laws of the State of Iowa. The paragraph headings in this Agreement are for convenience only and in no way define or limit the scope or intent of any provisions of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same instrument. 21.Governing Law: This Agreement and rights and duties hereunder shall be construed in accordance with the laws of the state of Iowa. Venue for any dispute shall be in the Iowa District Court in Dallas County, Iowa. 5 22.Section Headings: The titles to the Sections of this Agreement are solely for the convenience of the Parties and shall not be used to explain, modify, simplify, or aide in the interpretation of the provisions of this Agreement. [SIGNATURE PAGES TO FOLLOW] 6 THE CITY OF WAUKEE, IOWA By: ________________________________ Courtney Clarke, Mayor ATTEST: By: ________________________________ Rebecca D. Schuett, City Clerk STATE OF IOWA, DALLAS COUNTY, ss: On this _____ day of _________________, 2024, 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 ______________, 2024, 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 7 GREATER DES MOINES HABITAT FOR HUMANITY, INC By: ___________________________________________ Print Name: _________________________________ Title: _______________________________________ STATE OF ______________________, __________________COUNTY, ss: On this ____ day of ______________, 2024, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared _______________________, to me personally known, who being by me duly sworn, did say that the person is the ____________ of _______________________, a___________________ corporation, and that the instrument was signed on behalf of said company by authority of its Board of Directors; and that said person acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the company and by it voluntarily executed. _________________________________________ Notary Public in and for the State of ____________ 8 EXHIBIT A Part of Outlots "X" and "Z" in PRAIRIE ROSE PLAT 2, an Official Plat, and part of Outlot "Z" in PRAIRIE ROSE PLAT 6, an Official Plat, all now included in and forming a part of the City of Waukee, Dallas County, Iowa, being more parficularly described as follows: Commencing at the Northeast corner of said Outlot "X" in PRAIRIE ROSE PLAT 2; thence South 00°(degrees) 22'(minutes) 49"(seconds) West, 241.78 feet along the East line of said Outlot "X" to the Point of Beginning; thence confinuing South 00°22'49" West, 622.89 feet along the East line of said Outlot "X"; thence South 45°03'06" West, 35.56 feet along the Southeast line of said Outlot "X"; thence South 89°43'24" West, 262.66 feet along the South lines of said Outlots "X" and "Z" in PRAIRIE ROSE PLAT 2; thence North 00°16'36" West, 57.22 feet; thence North 42°16'05" West, 144.69 feet; thence North 09°44'56" East, 177.84 feet to and along the West line of said Outlot "X" in PRAIRIE ROSE PLAT 2; thence North 07°37'40" West, 68.66 feet along the West line of said Outlot "X"; thence North 18°12'04" East, 80.92 feet along the West line of said Outlot "X"; thence North 02°38'24" West, 107.23 feet; thence North 23°54'23" East, 81.25 feet; thence North 45°18'15" East, 66.01 feet to the West line of said Outlot "X" in PRAIRIE ROSE PLAT 2; thence North 18°12'04" East, 31.51 feet along the West line of said Outlot "X"; thence South 89°37'11" East, 162.83 feet; thence South 46°09'35" East, 132.67 feet to the point of beginning.