HomeMy WebLinkAbout2016-05-16-Resolutions 16-206_Real Estate Purchase Agr - William and Joanna McCarthyTHE CITY OF WAUKEE,IOWA
RESOLUTION 16-206
RESOLUTION APPROVING A REAL ESTATE PURCHASE AGREEMENT WITH
WILLIAM J.AND JOANNA M.MCCARTHY
IN THE NAME AND BY THE A UTHORITY OF THE CITY OF 8'A UKEE,IOIYA
WHEREAS,City of Waukee and the Waukee Community School District have previously
entered into a 28E Agreement to jointly acquire certain parcels of real property for future joint
development as a new high school and joint/public-use recreational fields (Resolution 16-180)
AND,
WHEREAS,per the terms of the 28E Agreement,the City was appointed to act as the agent both
for itself and the School district to acquire property;AND,
WHEREAS,the City has reached agreement for the purchase of property from William J.and
Joanna M.McCarthy pursuant to terms of the 28E Agreement.
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this
16th day of May 2016 that the Purchase Agreement with William J.and Joanna M.McCarthy,as
set forth in the attached Exhibit A,is hereby approved.
PASSED AND APPROVED,this 16'day of May,2016.
iam F.Peard,ayor
Attest:
Rebecca D.Sc uett,City Clerk
ROLL CALL VOTE
Shane Blanchard
Brian Harrison
Shelly Hughes
Larry R.Lyon
Rick Peterson
AYE
X
X
X
X
NAY ABSENT ABSTAIN
X
IIIIIIIIIIIIIIIIIIIIIINIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIHIIIIIIIIIIIIIIIIIIIII
Doc ID:006390760010 Type:AGRRecorded:06/21/2016 at 06:ss:13 AMFeeAmt:$62.00 Page 1 of 10DallasCountyIowaChadC.Airhart RECORDERFtIear
6620i6 -9997
REAL ESTATE PURCHASE AGREEMENT
VVilliam J and Joauna M McCarthy;City of VVaultec,IA
Recorder's Cover Shcct
I'rcparer Information (name,address and phone number):
Steven P.Brick
Brick Gentry Latv
6701 Westovrn Pkvry.,Ste.100
'vVesl Des Moines,IA 50266
Phone:(515)274-1450
Bill/Return Document to (name and complete address):
Rcbccca D.Schuell
Ciiy ol'rWaul.ee
250 W.Hiclunan Rd.
'vVaukee,IA 50263
Phone:(515)978-7904
LC al Description:SEE EXHIBIT A
Document or Distrument Number of Previously Recorded Documents:
RIL&AL BS'I'ATE PUIXCHASI',AG81KBML&NT
'I'I-IIS RI.AI.I'S'I'A'I'L'VURCI IASI'.AGRE(.'.MENT (thc 'Agreement")is dec»iud made
o»tile date the last ol'the palsies cxccuics this Ag&rci»nent (thc "EITeciive Date"j hy and between
WII.LIAM.I and JOANNA M.McCAR'I'HY,husbancl and wife,whose address Ior the purposes
of this Agreement is 7660 Ashwolth Road,West 10cs Moines,IA 50266 (hcrcaflcr referred to as
ilic "Seller"j and THE Cl'I'Y (JP WAUKEE,IOWA an Iowa munimpality,whose address for
the purposes of this Agreelnent is 230 Hickman Road,Waukcc,Iowa 50263 (collectively
hmieaftel referred to as the "Buyer').
RECI'I ALS
A.
Co lait)':
Seller is thc owner of thc following&legally described property situated in Dallas
Sce I".'xhibit "A"
Subject only to easenients,restrictions,and covenants oF record (ihe 'Property");
B.In lieu of Buyer commencing eminent domain proceeding&s io acquire thc
Property Buyer desires to purchase from Seller and Seller desires to sell to Buyer the Property,
C.Buyer and Seller desire to sct forth the obligations,restrictions,hmitaiions,imd
conditions upon which the Property will be conveyed by Seller to Buyer.
AGREEMENT
NDW TI-IFREFORE,in considtnaiion of ihc mutual promises and covenants contained
herein,each for the other,Buver and Seger agree as follows:
I Sale of Property.In lieu of Buyer commencing eminent domain proceedings to
acquire thc I'ropcriy,Seller agrees to scil and convey to Buyer,and Buyer agrees io purchase
from Seger,for the Purchase Price set forth below and on ihe ternis and conditions sci Forth In
this Agreement,the Property.I or purposes of this Agrccmeni,"Property"shall bc demiied to
mean.on a collective basis:(a)the parcel of it»id descnbed above,together ivith all rights,
easeininits,and interests appurtenant thereto;and (b)all improvements located on the I.and,if
ail)'.
I'urchase I'rice.Seller,in consideration of the mutual covi iliinis iuul agiccl11cnls
ixmtidned herein,ayccs to sell to Buyer and Buyer,in consideration of thc mutual covcilai'Its a»d
«grecments comained herein,agrees to purchase thc Property fiom Seller for the sum of
S1,560,000.00 (Onc Million I'ivc Hundrcil Sixty Thousand Iyollars)(the "I'urchase Price")'I'he
Purcliase I'rice shall be paid by 13uyer to Seller at the time of Closing,Upon lull execution ol'
Ibis Agreement mid approval by Buyer's Board ol Dilcctors,Buyer shall place %500.00 as
F«rnest Money in the Brick Gentry Laiv I:irm 'I rust Account.The Earnest Money shall then bc
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applied io ihc I'urchase I'rice at Closing unless thc terms ol this Purchas Agl'cci'neat rcclunc
contrary treatment.
."x Abstract and Title.Seller,at its sole cost and expense,shall provide to lluyer an
Abstract ol 'I'ide f'or the I'roperty continued through ihe Effective Date uf this Agreclncnt.Thc
Abstract shall he delivered to 13uycr Rlr purposes ol examination and shaH show merchantable
title in Seller in conformity with this Agreement,Iowa law and the Iowa Land 'I'i tie Standards of
thc Iowa State Bar Association.Buyer shaH review the Abstract and if',upon saiil review,13uyer
has an obleciion to rmy item(s)appearing in the Abstract othia than (il liens that will be
eliminated at Closing by Seller;(ii)those permitted encumbl&mccs as sct Iolth herein and (iii)
those exceptions that are reasonably acceptable io Buyer,then Buyer shaH noiil'v SCHcr in
writing of such fact in the lorn&of an attorney's Preliminary Title Opinion.SeHcr,at its
sole expense,shall promptly undertake to eliminate or satisfy the objections to title to the
reasonable satisfaction of Buyer.Iinmediately prior to the Closing of the Properly,thc Abstract
of I'itic may again be continued,at the sole cost and expense of Seller,for purposes of review
by Buyer to confirm that no additional items in connection with thc Property appear in thc
Abstract in which event Buyer's right to raise title objections with respect tu this second
continuation shaH be limited to matters that ause after the date of'continuation (as shown in the
first continuation)of the Abstract and on or before the Closing Date.At Closing,thc Abstract
shall become the property of Buyer.If,after receipt of the Abstract,Buyer su desires,then
L3uyer may obtain a commitment tor an Owner's and/or Lender's Title Guaranty Certificate frotrl
the Iowa Title Guaranty Division of'the fovva I'inance Authority,or an Owner's or Lender's
policy of title insurance from a title company selected by Buyer,to be clclivered to Buyer with
legible copies of aH exceptions noted thereon.The cost of any such commiimeni and the
pl&eirnlml fol'any Owner's Title fluaranty or title policy issued in connection thclcwith shaH be at
the cost of the Buyer,The premium for any Lender's Title Guaranty or Lender's title policy and
for any special endorscments required shall be ai 13uyer's cost.The commitment and
objections to itmns thereon shaH be handled in ihc same,manner as thc Abstract and objections
io 1 teals thel'cia.
4,Permitted Exceptions.The Property shaH be conveyed by Seller io Buyer subject
only to ihc local municipal zoning ordinance.real cstaic taxes not yet due and paylible,
casml&ents and restrictions of record and other exceptions to title that arc of record,iieasonably
approved by Buyer and those other matters as hereinafter provided (the "Permiued Exceptions").
5.Closine.Assuming all contingencies have been satisl)ied ur waived,the Closing
uf fhis trans lotion shall occur on January "&,2017 (hereinafter rcf'errcd to as the "Closing Date")
at a location nnltuaHy agreed upon by the parties herein Time is of'thc csscncc in this Purchase
Agrccmcnt,
6.Real Estate Taxes,SeHcr shall pay aH real estate taxes assessed against the
I'ropcity f'or aH periods through ihe Closing Date mcludmg a prorated share of the real estate
taxes due ibr the tax period in which the Closing tal&es place (payllblc in thc subsequent f'iscal tax
year).Real I!state taxes applicable to thi:Property which are not delinquent at ihe time o!
Closing lu'lif which Scgcl'is responsible to pay under the terms hereof,shaH be credilcd against
the Purchase Price at Closing.Any such credit shall be based upon the last llnov;n actual real
estate taxes pa)able according io public record,provided,holvever,that if such taxes arc based
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npon an assessment which is at least ten percent (10'/0)higher or lower.thrili the current
assessinent,such proration shall be based upon the curreni millage rate,assessed value,
legislaiive tax rogbacks,and real estate tax exempiions that wiH actually be applicable on the
date of'possession,as shown by the County Assessor's records.
7 ~Siecia(Assessments.Seller shall pay as soon as thc same are payablc,aH special
assessmenis rvtth respect to the I'ropcrty which arc duc as of the Closing Date.Buyer shaH pay
and «or be responsible I'or any assessmcnts due al.'ter the Closmg Date.
g.Commission.Seller and Buyer each rcprcsent and warrant to the other thai no
brokerage commission,fmder's fee,or other cornpcnsation is due and payable with respect tn the
transaction contemplated by this Agreement.'I'he warranties and obligations of the parties
pursuant to this paragraph shall survive the tertnination of Hre Closing.Should any third party
claiin a commission is due and owing,both parties agree to cooperate in challenging such claim
at the expense of the party through which thc claim arose.Such cooperation shall not bc deented
to alter the indemnifications contained in this parayaph in any manner
9.W«nranties and Re reseittations of SeHcr.Seller warrants and represents to 13uycr
that ii has the Iug right,power,and authority to seH and convey thc I'roperty to Buyer as
provided in this Agreemcnt and to carry out the Seller*s obligations hercundi:r.AH requisite
partnership,corporate,or other actions necessary to authorize Seller to enter into this Agi'cement
and to perfoim its obligal ions hereunder have been taken;thc joinder of no person or entity other
than Seller will be necessary to sell the Property fully and completely io Buyer at Closing xcept
as otherwise set forth and provided herein;and the execution and rlelivery of this Agreement and
the consummation of'the transaction herein contemplated will not confIict with or result in a
breach ol any of tire icons or provisions of,or constitute a default under any indenture,mortgage
loan agreement,or instrument to which Seller is a.party or by which the Property is bound.
Seger represents and warrants to Buyer thai there are no adverse or other parties in possession el
the I'roperfy or any part of thereof.No party has been granted any license,'lease,or other rig»!or
interest relating to the use or possession ol the Property',or anv'palt thereof,other than as
expressly provided for herein or of record or which wiH bc terminated concurrently vvith Closing.
At Closing,a Groundv"aier Ilazard Statement will be filed by SeHers regarding thc following:('i)
wegs;(ii)solid waste disposal;(iii)hazardous rvastcs;and (iv)underground storage tanl&s
located on the I'ropeity.These representations i:ontained in thc Groundwater Hazard St«itement
shaH bc for the beneliit of the Buyer who shall be entitled to rely upon said representations.
10.Warranties and Re resentations of Buver.Subject to the conditions set foith on
herein,Buyer wanants and reprcscnts to Seller that it has the lull right,power,and «authority to
acquire the Property from Seller as provided in this Agreement and to carry out the Buyer's
obligations hereunder.
I I.I'ro3ieily information Survey Ins ection Period.Within thirty (30)business days
afier the Elfi:ctwe Date to the extent in Seller's possession,Seller shall provide an Abstract of
'I'iile io the Property together with aiiy arid all existing surveys,plans,site dl «1'ivlrlgs,and aH other
information presently in its possession relating to the Property concurrently with the executimi ol'
this Agreemeni (the "Property in('orrnation'*).Scget grants Buyer und iis duly authorized agents
Page 3 of 9
the rittht to enter upon the Property to conduct the lollowirig tests,inspections and cxaminatieui
of the Property as Buyer deems necessary.
11.1 To conduct a survey (including an AI.,TA survey,if desired)or ulxlate a
current survey of the Property to confirin„amontt other things,ilhat no
encroachmenus exist relafive to the Property.
11,2.To obtain an environmental assessnteni establishing that no surface or
subsurface conditions or contamination exists on the Property that would subject Buyer to
potential liability arising from any hazardous waste or hazardous substances which may
include,bui not be limited to obtaining a Phase I linvironmental Assessment
fro m an mtviromncntal engineer.
Buyer shall provide Seller with actual notice of the date and time when Buyer intends to
enter upon the Property and Seller shall be advised,in advance,of'the nature and extent of such
entry and shall have the right to be present at the time of entry
Neither Buyer s isght to inspect the Property nor the results thereof shall in tlilv v'av limit,
diminish or modify Seller's warranties mid representations as set forth herein.Buyer shall
indemnify and hold Seller harmless f'roi11 and against any actual loss,damatgtc or injury to
persons or property resulting from Buyer's exercise of its right to conduct the inspections
described herein.
tt.C ~D«»t.S tt t tt th P p ttt th(t:h
warranty deed,conveying to Buyer good and nierchantable fee simple title to ihe Property,
subject only to such title exceptions and encumbrances as provided herein or as have been
approved by Buyer (the 'I'ermitted Idxceptions")and in a fonts reasonably acceptable to coilnscl
for Softer and Buyer,
13.Closinu Costs.Seller shall pay all doctunenta»and transfer taxes and recording
fees necessary to cure title objections of the Huyen Buyer shall pay the recording fees in
conilcciioll with thc I3ccd coilvcying title to Buyel',and any fiilalicii1g doculrlciits cilcui11bcrll1g ol
relating to the Property and other documents Buyer desires to record.Buy r shall pay ihe
premium for issuing the Iorva Title Guaranty or title pohcy (if any)described herein.I=,ach party
shall be responsible for paying its own attrnncy fees.Buyer shall cause tui appropriate closing
statement io be prepared in 'idvance of'Closing I'or proper execution by both Buyer and Scllcr
consistent with the terms of this Agreement.Seller and Buyer shall share equally in any
settlement fees associated rsdth Closing.
14.Sectitng 1033 of the IRC.As Buyer is actluiring this Property in lieu ot
commencing eminent domain proceedings,Seller reserves the right to utilize and rely upon
Section 1033 of the Internal Revenue Code to consummate this transaclion.
15.Possession Risl»of Loss.All risl'of loss with respect io !he Property shall
remain with Seller until Closing of the purchase of the Property.
16.Evistinth Tenanc or Other Interests.Seller confirms the Property is not subject to
an existing lease or other possessory interest not shown of'record.If such tu1 interest exist~,
Pt1ge 4 of 9
Sellei iigl&ees to provide documentation executed by the party holding such interest,in wiiicli
such interest is terminated prior to Closing.
17.Lien Waivers.If'at Seller's (or its aft'iliaies)request or direction &uiy person or
entiiy has supplied material or services for the Property within six (6l months prior io thi:
EtTcciive Date ol'this Agreement which may form the bas~s ot'a iMechanic's I,.ien btun liled
against ihc Property,then the Seller shall provide copies of written lien waivers t'rom all such
persons or entities supplying&material or services prior to the Closing Date.Seller agrees u&
indenutity and hold Buym harmless I'rom any such claims vvhich arise because of the liling ol'
Mechanic*s I.iens for work contacted for by SeHer prior to the Closing T)ate and specit'ically
reserves the,rig&ht to pursue an action in connection theretvith&which right shall survive Closing.
18.I'i:ndinng&Actions,Seller has no notici:of any action,Iitig&ation,proceeding,or
il'Ivesilgailon against itscll',related entities,its patxners,oi'ihe PropetXy,which would a!'fcct thc
Property or the rig&&it of Seller to sell and convey thc Propetty,or.arty action,litigation,
proceeding,or investigation&including,without limitation,any eminent doinam proceeding&
vvhich vvoutd result in any lien&claim,right,or interest in the Properly in I'avor ol'any third party.
19.Notices.Except with regard to Buyer's undertaking set forth m I'aragraph 11,
neither party shall have the right to terminate this Agrecmcnt or seek any remedy for a breach
hereof by the other party unless such breach continues for a ptuxod of thirt)(301 days following
written notice by the party seeking&to pursue such remedy,specifymg the occurl'ilcc and
dcscnption of such default under this A&&reement and unless the party given such notice shall
have failed to commence to take such steps as are necessary to cure such bre&ich or dcf«udi as
soon as possible (or having so commenced such steps to cure shall thereafter have tailed to
pmcecd dilig&ently and with continuity to remedy the same).All notices demands,writin&ls&
supplements,or other documents v'hich are required or perntiued by the terms ol this Agreiuiieni
to be given to any party shall bc delivered in person,or shall bc deposited in thc United States
Mail&postage prepaid,return receipt requested,addressed at the addresses specified above and
shall be effective upon such deposit.Notice to Buyer shall also be sent to Bricl.C&entry,P.C.,c!o
Steve Brick,6701 Wcstown Parkway,Suite 100,West Des Moines,IA 6026(i.Notices to Seller
shall also be sent to William,1.and )canna M.McCarthy,7660 Ashworth Road,West Dcs
Moines,lovva 50266.
20.Assienmcnt;Anecment Bindin&on Successors Survival ol'Prpyigions,This
A&&rcemcnt may not be assig&ned or transferred by any of the parties vvithout the express written
consent ol'the other.This Agri:eincni aiid amendmenis,if any,and all representations«
vvtmfaiiut'*s«lndelttnli ication obligations,rights,and duties hereunder shall survive the Closing
and shall bc I'ully binding at all times against Seller and Buyer,as well as any and all of its or
their successors in interest assigns,or transferees.
21.Defatdt;ltemethes of the Parties,
~B'R «h &&I&
'&&&&1&.I«;i:&&&&u«&&
precedent set forth in this Agreement have been satisfied or vvaived prior io the i.'losing
1)ate and (b)Seller fails or refuses to timely convey the Property to Buyer in accordance
Page 6 of 9
with the terms and conditions oi this Agreement,except on account of a dei'ault
hcrcundcr by Buyer,Buyer may elect one of thc following remedies:(a)be entitled io
terminate Buyer's obligations under this Agreement by wntten notice to Seller;(b')be
entitled to specific performance of this Agrccrncnt:or (c)any other rome&lies ah ailablc at
law or equity.
21.2.Seller's Remedies for Buyer's Defauh.lf (a!educ!i oi ihc conclitions
precedent sct forth in this Agreement have been satisfied or vvaivcd prior to the Closini&
Date and (b)Buyer fails or rcfiises to timely purclrase the Propcity and Close in
accordance with thc terms and conditions of this Agrccmcnt,except on account of a
default hereunder by Seller,Seller may elect one of the fol1oiving remedies:(a)be
entitled to terminate Seller's obli&&ations under this Agreement by written notice to Buyer;
(b)be entitled to specific performance of'this Agrcemcnt;or (c)any other remedies
available at law or equity.
22.'I'ime.Time is of the essence in the performance oi'each paity's obli&&ations
hereunder.
23.No Waiver.Subject to thc deemed approvals under this Agreement,no waivcrs
by any party of the performance or satisfaction of any covenant or condition shall hc valid unless
in writing,nor shall it be considered to bc a waiver by such patty oi'any other covenant or
condition hereunder.
2t.~hti.h t.Th Adh"»I t,.th."»tt I".tht .Ih
parties reg&amiing the Property and supersedes all prior agreements,whether written or oral
betiveen the parties regarding thc same subject This Agreement may only be modi('icd by
subsequent writtrai ai&recment signed by the party to be charged.
'&5.Counter arts and Effectiveness."fhis Agrccmcnt may be executed in
counicrparts,each of which shall be deemed mi original,but all of vvhich shall constitute one and
the same agreement,and this Agreemcnt shall only he effective if a counterpart is sit&ned by boih
Buyer and Seller.
26.Scverabilitv ln the event any provision of this Agreement shall be held to be
invahd or unenforceable by any court ol competent jurisdiction,such holding shall not invalidate
or render unenforccahic any other provision hereof.
27.~C.»I A I'lddiUuxt 4'dttt is.Tht.A».I h 11 1 h ht dt I,
on Buyer until such time as it is approved by the City Council ot the City of Waukee.Buyer's
and Seller*s obligation to close is fuither subject to the conditions sct forth herein
2g.Survival of Warrattties.Any warranties,covenants and reprcscntauons contained
in this document shall survive thc cxccution of this Ag&reemcnt and any other docutnents,
including ihe Warranty Deed given by Seller io Buyer to consummate this transaction,shall noi
be merged into such documents.
Page 6 of 9
29.Attotrt~elees.In the event of default b3 eitlrer party pursuant to any of the tetms
of this Agrccmcnt,thc prevailing party in any liugation or cnfoiieement action shall be entitled to
reimbursement by the defaulting party for any ol the prevailing party's reasonable atlorney fees,
court costs,and other associated costs of cnforcemenI.
30,~Q»»4;L,t 9 .TliA.:irrh:11b 1.dp.:tt th
laws of the State of Iowa.Vqtcrcver possible,each provision of this Agreement shall bc
interpreted in such manner as to be effective and valid.If ruty such provision of this Agreement
shall be determined to bc invalid or unenforceabic,such provisliiii sllall be iiiefl'ective to the
extent of such prohibition or invalidity without invalidatmg or otherv ise affecting tlhe remaining
provisions ot this Agreement.
31.I~ieadin*s.Article and secuon headings used in this Agrecminit are for the
convenience of the parties only and shall not affect the construction of this Agreement.
32.Further Assurances.At or;dier Closing,the parhes shall prepare,execute and
deliver,at their respective expense,such additional instruments and other documents and shall
talce or cause to be taken such other action as is reasonably requested by the other party at any
time or from time to time in order to el'fectuatc and comply iidth all the terms ol'this Agreemem
and tile trrulsactions conteillplated hereby.
3',p t fNCR~BOhH q .8 Ip thu i"9th.I teal.p ply.
the Seller will be required to repay to NCRS $1,319,00,Buyer agrees that it shall repay this
obligation on behalf oi'the Seller on or about the dat"of closing as shotvtt in paragraph 3 ol'this
Purchase Agreement.'I'his payment is in addition to the purchase price set out in paragraph 2 of
this Agrccmenl and is not to be treated as a deduction from the purchase price.
IN WITNLSS WHISRfrOF,the parties have executed this Aycemcnt as of the date set
Iotth above.
Page 7 of 9
SKI I,KR:
JOANNA i&I.%!cCARTHV
BIiVKR;
'I'HE OI'V(OF rrVAI!kKK,ION'A,
tin Ioiva frluilicip'tillty
oanna M Ivies.'.aidhy
IIy:~-n
IH11 Moern ih Oily'Admillisti'aloi
Wi tliatn,i .'trlcCa rth &
Tax Idc11tl l ication Nui11hcr(s)
D.i i:~~jr,
4'2-6006606
Tax Identification Number
Dated;IIIay l0]A~@
Paine 8 ol 9
I'.Xl lll3 I'I'"A'
LEGAL DESCRIPTION
An utlttlvtdecl Interest Jn:
'I hc Southwest Quarter of the Northwest Quarter (SW'/i NWI'4)of
Secnon 28,TownshlP 79 North,Range 26 West of the S"P ivi
Dallas County,Iowa.
Page 9 of 9