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HomeMy WebLinkAbout2020-04-06-I02 Elm Street Vacation AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: April 6, 2020 AGENDA ITEM: Consideration of approval of a resolution approving the vacation and disposal of a street or alley pursuant to Iowa Code Sections 354.23, 364.12(2)(A) and 364.7(2020) [Elm Street] FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: City staff had a Plat of Survey prepared to establish a separate parcel for the right of way proposed to be vacated and also had an appraisal completed of the proposed vacated right of way. The value of the proposed vacated right of way was appraised at $57,000. Prior to notice of the public hearing, staff sent letters to the three adjoining property owners as well as JDS Real Estate Investments, LLC who has an active purchase agreement with two of the adjoining property owners. Said purchase agreements are subject to City Council approval of the plans for the proposed Hickman West retail project. In the letter to adjoining property owners, City staff established a minimum value of the property as $57,000 based upon the appraisal of the property. JDS Real Estate Investments, LLC responded to the letter and has offered $57,000 for the purchase of the proposed vacated right of way. No correspondence was received from the remaining adjoining property owners. JDS Real Estate Investments, LLC has proposed to incorporate the vacated right of way into a site plan for a new retail building to be located along Hickman Road just west of 6th Street and the adjoining Kum & Go. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Staff would recommend approval of the vacation and disposal of the Elm Street right of way. RECOMMENDATION: Approve the resolution ATTACHMENTS: I. Proposed Resolution II. Offer from JDS Real Estate Investments III. Correspondence from JDS Real Estate Investments I2 PREPARED BY: Brad Deets, Development Services Director REVIEWED BY: THE CITY OF WAUKEE, IOWA RESOLUTION 2020- APPROVING THE VACATION AND DISPOSAL OF A STREET OR ALLEY PURSUANT TO IOWA CODE SECTIONS 354.23, 364.12(2)(A) AND 364.7 (2020) [ELM STREET] IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND, WHEREAS, the City has previously acquired right of way for purposes of a street locally known as Elm Street; AND, WHEREAS, it has been determined that a portion of Elm Street described on attached Exhibit A is of no benefit to the public and may be vacated, conveyed, and/or otherwise disposed of subject to state code; AND, WHEREAS, the City completed an appraisal of that portion of Elm Street described on attached Exhibit A and a current value of the property was determined to be $57,000.00; AND, WHEREAS, JDS Real Estate Investments, LLC has submitted an offer to purchase the Elm Street right of way in the amount of $57,000.00. NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this 6th day of April, 2020, that it hereby approves the vacation of the Elm Street right of way described on attached Exhibit A and approves the sale of the property to JDS Real Estate Investments, LLC in the amount of $57,000.00. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk ROLL CALL VOTE AYE NAY ABSENT ABSTAIN Anna Bergman X R. Charles Bottenberg X Chris Crone X Larry R. Lyon X Ben Sinclair X EXHIBIT A LEGAL DESCRIPTION OF PROPERTY TO BE VACATED – ELM STREET A Parcel of land located in a portion of Ferree's Addition to the City of Waukee, Dallas County, Iowa, identified as Parcel 19-135 in Plat of Survey filed in Book 2020 Page 791, Dallas County, Iowa and being that portion of Elm Street more particularly described as follows: Beginning at the Southeast corner of Outlet "Z" of Ferree’s Addition Plat 2 as recorded in Book 2017 on Page 6239 in the Dallas County Recorder's Office thence S00° 28’ 47” W, 60.08 feet to the South line of Elm Street; thence N89° 31’ 13”W along said South line, 129.04 feet to the Easterly line of Parcel "Z" as recorded in Book 2008 on Page 9887 in the Dallas County Recorder's Office; thence Northwesterly 106.83 feet along a 22868.31 foot radius curve to the right and along the Easterly line of said Parcel "Z", said curve having a chord which bears N55° 13’ 26”W for 106.83 feet, to the North line of Elm Street; thence S89° 29’ 25”E along said North line, 217.30 feet to the point of beginning. Said parcel contains 10,416.63 square feet (0.24 acres) and is subject to any and all easements of record. COMMERCIAL PURCHASE AGREEMENT This agreement (the "Agreement") is entered into on _2-24_, 2020_ by and between _City of Waukee/owner of record_ (“Seller”) and _JDS Real Estate Investments, LLC_ (“Buyer”). In consideration of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: 1. PROPERTY DISCRIPTION Subject to the terms and conditions of this Agreement, Seller shall sell and convey and Buyer agrees to purchase the following described property ("Property"): Locally known as: ___10,416.63 square feet, see attached ‘Exhibit A’__ Legally described as: The exact legal description to be adjusted at closing as determined by the abstract of tile or Buyers survey. The Property includes all of the land, buildings, structures, fixtures, and other improvements, if any, and any other intangible rights, such as easements or rights of way over other properties. If Applicable, the property also includes all existing leases, any service contracts for maintenance, repair and/or use of the Property, and all certificates of occupancy, permits, licenses, and other contract rights as may be assigned by Seller to the Buyer. 2. PURCHASE PRICE The total consideration to be paid by Buyer to Seller is $_57,000__. 3. EARNEST MONEY Within five (5) business days of the date of this Agreement, Buyer shall deposit the sum of $_1,000_ as earnest money with: _Wasker Law Firm_ 4. CLOSING AND POSSESSION The Closing shall take place within 15 days upon the expiration of the Due Diligence period, or such other time as the parties may agree. The transaction shall be considered as closed when the documents transferring title have been appropriately filed. Upo n Closing, Seller shall deliver to Buyer full and complete possession of the Property. 5. DUE DILIGENCE PERIOD The Buyers due diligence period shall commence upon the execution of this agreement by the parties and will end _45_ days thereafter. During this time the Seller will allow the Buyer to enter the Property at reasonable times as it deems necessary to perform its inspections. The Buyer agrees to indemnify and hold Seller harmless from any loss of any type arising out of or in the course of Buyers inspection under the preceding sentence. Seller agrees to cooperate with the Buyer during this inspection and due diligence period to assist Buyer in obtaining governmental or regulatory approval to meet the Buyers intended use of the Property. The Buyer may obtain an ATSM-Standard Phase I Environmental Site Assessment (ESA) and report in a form and content as approved by the Buyer and Buyer’s lender prepared by a qualified environmental consulting company . However the Buyer shall not perform any Phase II ESA without first obtaining Seller’s written approval. The Buyer shall bear the costs associated with its inspections during this period. Within 10 days the Seller shall provide at no expense to the Buyer: a. The abstract of title to the Property to be updated at the Sellers expense b. Any and all agreements relating to the Property c. Any survey, environmental, traffic or engineering, soil water or other reports or studies concerning the Property in the Sellers possession d. Any other information about the Property requested by the Buyer and in Sellers possession. On or before the end of the Due Diligence period, t he Buyer shall: a. Notify the Seller in writing of its intent to proceed to purchase the Property and proceed to closing in accordance with this agreement, or b. If the Buyer does not notify the Seller in writing of its intent to purchase the Property then this agreement shall be null and void, and all earnest money shall be returned to the Buyer, or 6. DISCLOSURE OF AGENCY & DUTIES OF PARTIES: A. The Broker, its agents, employees, and associates make no representations or warranties as to the physical or mechanical condition of the Property, nor to the size, value, future value or income potential of the Property . B. It is clearly understood and agreed by the parties hereto, that Stanbrough Realty Company, LLC and all licensees employed by or associated with Broker represent the BUYER in this transaction. Further, the BUYER and SELLER confirm the verbal disclosure of representation was provided to them prior to signing this Agreement. __________________________________________ __________________________________________ SELLER SELLER DATE: BUYER BUYER DATE: The SELLING BROKERS are agents of the parties hereto as outlined ab ove. Their fiduciary duties of loyalty and faithfulness are owed to the party they represent. However, they must treat the other party with honesty and fairness. They must respond to all questions of the parties accurately and must disclose MATERIAL DEF ECTS about which they have knowledge. The BROKERS, their agents, employees and associates are not required, however, to discover hidden defects in the property or give advice on matters outside the scope of their real estate license. 7. CONDITION OF THE PROPERTY The Property as of the date of this Agreement, will be preserved by the Seller in its present condition until possession, ordinary wear and tear excepted. The Seller shall bear the risk of loss or damage prior to closing. Seller agrees to mainta in existing insurance and the Buyer may purchase additional insurance. In the event of damage to the Property prior to closing the Buyer shall have the option to complete the purchase and receive the insurance proceeds, regardless of the extent of the damages. 8. ABSTRACT OF TITLE After updating, the abstract shall be delivered to an Iowa attorney for a title opinion for the Buyer . It shall show merchantable title in Seller in conformity with this Agreement, Iowa law, and Title Standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect title. If closing is delayed due to the Seller’s inability to provide marketable title, this Agreement shall continue in force and effect until either party rescinds the Agreement after giving ten (10) days written notice to the other party. The abstract shall become the property of Buyers when the purchase price is paid in full. The Seller shall pay the costs of any additional abstracting and title work due to any act or omission of the Seller. 9. CONVEYANCE OF TITLE Upon the payment of the purchase price: a. Seller shall convey the Property to Buyer by Warranty Deed, free and clear of all liens, restrictions, and encumbrances except as provided in this Agreement. b. The Seller shall provide a Groundwater Hazard Statement in compliance with applicable Iowa law. c. The Seller shall provide a Bill of Sale sufficient to transfer to Buyer title to the Personal Property, if any, and containing appropriate warranties of title and condition as required by this Agreement. d. The Seller shall provide an Estoppel Agreement as may be required and any and all other affidavits, certificates or other documents required by this Agreement. e. The Seller shall provide an Assignment of any existing leases as may be required by the Buyer or the termination of the lease, if any, of any portion of the Property for which Buyer has requested termination signed by Seller and the particular tenant. f. The Seller shall provide an Assignment and assumption of those service contracts, if any, which are assignable and of which Buyer elects to take an assignment. g. The Seller shall provide all keys and security codes, if any, for the Property, with identification of the lock to which each key or security codes relates, and h. The Seller shall provide a closing statement showing the computation of the funds payable to Seller pursuant to this Agreement. 10. USE OF PURCHASE PRICE At the time of closing the funds of the Purchase Price may be used to pay taxes and other liens and to acquire outstanding interests, if any, of others. 11. TAX PRORATION Seller shall pay the Seller’s prorated share, based upon the date of possession, of the real estate taxes for the fiscal year in which possession is given, due and payable in the subsequent fiscal year. Buyer’s shall be given a credit for such proration at closing based upon the last known actual net real estate taxes payable according to public record. 12. SPECIAL ASSESSMENTS Seller shall pay in full all special assessments which are a lien on the Property as of the date of closing. 13. FINAL UTILITY BILLS All charges for solid waste removal, sewage, and maintenance that are attributable to Seller’s possession, including those for which assessments arise after closing, shall be paid by Seller. 14. PRELIMINARY OR DEFICIENCY ASSESSMENTS Any preliminary or deficiency assessments which cannot be discharged by payment shall be paid by Seller through an escrow account with sufficient funds to pay such liens when payable, with any unused funds returned to Seller. 15. REPRESENTATIONS AND WARRANTIES Seller represents and warrants to Buyer that the following are true, complete and correct as of the date of this Agreement (unless otherwise indicated): a. Except for any existing mortgages executed and recorded prior to the date of this Agreement and this Agreement, Seller has not entered into any agreement to lease, sell, mortgage or otherwise encumber or dispose of Seller’s interest in the Property or any part thereof. b. To the best of Seller’s knowledge, there is no condemnation or other proceeding in eminent domain, pending or threatened, affecting the Property or any portion thereof or interest therein. c. To the best of Seller’s knowledge, there is no litigation, administrative action or similar proceedings, pending or threatened, naming Seller or the Property, relating to the ownership, lease, u se or occupancy of the Property. d. To the best of Seller’s knowledge, the Property is in material compliance with all applicable building, zoning, subdivision, and other land use and there is no basis for the taking any action for such violation. e. The Seller has not received any notice from any governmental authority or other entity having jurisdiction over the Property threatening a suspension, revocation, modification or cancellation of any permit or license related to occupancy or use of the Property and, to the best of Seller’s knowledge, there is no basis for the issuance of any such notice or the taking of any such action. f. The execution and delivery of this Agreement and its performance by Seller will not conflict with or result in the breach of any contract, agreement, rule or regulation to which Seller is a party or by which Seller is bound. g. The Seller does not now nor has it in the past ever manufactured, treated or disposed of any toxic or hazardous wastes or substances on the Property and to the best of Sellers’s knowledge the Property has never been used for any such purpose. h. The Seller warrants under penalty of perjury that Seller is not a foreign partnership, foreign trust, or foreign estate for purposes of income taxation. i. The words “to Seller’s knowledge”, “to the best of Seller’s knowledge” or words mean the actual knowledge of Seller after appropriate inquiry of documents in Seller’s possession and available public records. Seller represents and warrants to Buyer that, as of the Closing, each of these warranties and representations shall be true, complete and correct except for changes in the operation of the Property occurring prior to closing which are specifically permitted by or pursuant to this Agreement. Buyer represents and warrants to Seller that the following are true, complete and correct as of the date of this Agreement (unle ss otherwise indicated): a. If Buyer is an organized entity that it is duly organized and is in good standing under the laws of its State. b. The Buyer is duly qualified to transact business in Iowa. c. The Buyer has the requisite organizational power and authority to enter into this Agreement, and do not conflict with or result in a violation of the Buyer’s organizational documents or Bylaws. The Buyer acknowledges that it is purchasing the Property in its “AS IS” condition, and Seller makes no representations or warranties as to the physical or mechanical condition of the Property, nor as to the current value, future value or income potential of the Property. The foregoing warranties and representations shall survive the execution and delivery of this Agreement, the Closing and deli very of all documents and any and all performances in accordance with this Agreement. The foregoing warranties a nd representations shall not be affected by any investigation or verification made by or on behalf of Buyer prior to Closing. 16. DEFAULTS AND REMEDIES If the Seller fails to perform in accordance with the terms of this Agreement, at Buyer's option, Buyer may terminate this Agreement in which case the Earnest Money shall be returned to Buyer and Buyer may sue Seller for damages or Buyer may sue for specific performance of this Agreement. If the Buyers fail to timely perform this Agreement, the Seller may forfeit it as provided in Iowa Code Chapter 656, and all payments made shall be forfeited to the Seller, and the Seller reserves the right to proceed by any action at law or equity, including specific performance. In the event of any legal action, the party substantially prevailing shall be entitled to recover its actual costs and legal fees incurred in such legal action. 17. NON-DISCLOSURE AND CONFIDENTIALITY The parties agree that they will use their best efforts to keep this transaction from being publicly disclosed prior to closing. Further, each party agrees that they will keep as confidential and private all of the other party’s confidential and propriet ary information that they obtain in connection with the transaction contemplated therein. 18. NOTICES All notices or other communications required or permitted under this Agreement shall be in writing and delivered personally or by certified mail, return receipt requested, postage prepaid, by recognized overnight courier addressed as follows: If to Seller: _____________________________________ _____________________________________ If to Buyer: _JDS Real Estate Investments, LLC_________ _10888 Hickman Road, Suite 3B, Clive, IA 50325 __ With a copy to: Stanbrough Realty Company LLC, 10888 Hickman Road, Suite 3B, Clive, IA 50325 All notices given in accordance with the terms hereof shall be deemed received two (2) business day after mailing if sent by certified mail or by overnight courier or when actually delivered personally. 19. GOVERNING LAW AND JURISDICTION This Agreement and all matters related thereto shall be governed and construed in accordance with the laws of the State of Iowa. Any action to enforce this agreement shall be brought in the county in which the Property is located. 20. EXECUTION This Agreement may be executed in any number of identical counterparts, any or all of which may contain the signatures of fewer than all of the parties but all of which shall be taken together as a single instrument. A facsimile or other electronic execution shall be legally binding upon the parties. 21. 1031 TAX DEFERRED EXCHANGE One or both of the parties may convey or receive the Property in connection with a tax free exchange under Section 1031 if th e Internal Revenue Code. If so, the other party agrees to execute documents as may reasonably be necessary or otherwise cooperate to affect this exchange. The party seeking the exchange shall bear any additional costs incurred as a result of the exchange . 22. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and supersedes any prior understandings, agreements or representations by or between the parties. 23. ADDITIONAL PROVISIONS Jeff Stanbrough is a licensed real estate broker in the State of Iowa and is the owner of the purchasing company. There is no commission paid by seller in this transaction. 24. ACCEPTANCE. If accepted, this Offer shall become a binding contract for the sale and purchase of the above described premises. If this Offer is not accepted by the Sellers on or before 2-28 , 2020, it shall become null and void and the initial payment shall be repaid to the Buyers without liability on the part of Broker to either party. TIME IS OF THE ESSENCE FOR ALL PROVISIONS OF THIS AGREEMENT. Dated: 2-24-20 Dated: x x Jeff Stanbrough, Member, (BUYER) JDS Real Estate Investments, LLC Tax id# Tax id# 10888 Hickman Road, Suite 3B, Clive, IA 50325 (Address) (Address) 515-334-3345 (Phone Number) (Phone Number) Jeff@stanbroughrealty.com (Email) (Email) ACCEPTED Dated: Dated: x x (SELLER) (SELLER) Tax id # Tax id # (Address) (Address) (Phone Number) (Phone Number) (Email) (Email) DISCLOSURE OF AGENCY RELATIONSHIP The undersigned acknowledge that Jeff Stanbrough, as Appointed Agents of Stanbrough Realty Company, LLC, Seller/Landlord and/or Buyer/Tenant named below (hereinafter the “Client”) with respect to the sale or lease of the following property: _Heartland Co-op lot in Waukee, 2,450 square feet_. If the Appointed Agents represents both the Seller/Landlord and Buyer/Tenant, the duties of the Appointed Agents are set fort h in the Dual Agency Consent Forms executed by each client and those forms are incorporated herein as if fully set forth. If the Appointed Agents represents either the Seller/Landlord or Buyer/Tenant, but not both, the Appointed Agent has the following duties to its client: a) Place the client’s interests ahead of the interests of any other party unless loyalty to a client violates a duty as a disclosed dual agent or other applicable law. b) Disclose all information known that is material to the transaction that is not known by the client or could not be discovered by the client through a reasonably diligent inspection. c) Fulfill any obligations within the scope of the brokerage agreement, except those obligations which are inconsistent with other duties the Appointed Agent[s] has under law. d) Disclose any financial interests Appointed Agent[s] has in any business entity to which the client has been referred for any service or product related to this transaction. The following duties apply to all parties: a) To provide brokerage services to all parties in the transaction honestly and in good faith. b) To diligently exercise reasonable skill and care in providing brokerage services to all parties. c) To disclose to each party all material adverse facts that we know, except for the following: [1] Material adverse facts known by that party. [2] Material adverse facts a party could discover through a reasonably diligent inspection and which would be discovered by a reasonably prudent person under like or similar circumstances. [3] Material adverse facts the disclosure of which i s prohibited by law. [4] Material adverse facts that are known to a person who conducts an inspection on behalf of a party. d) To account for all property coming into the possession of the Broker or the Appointed Agent(s) that belongs to any party within a reasonable time after receiving the property. Stanbrough Realty Company, LLC and its licensees may provide brokerage services simultaneously to more than one party in different transactions. Each party by signing this form acknowledges that this disclosure was made prior to providing specific assistance or prior to any offer being made or accepted by a party to a transaction, whichever is sooner. SELLER/LANDLORD: BUYER/TENANT: By: By: Its: Its: Member Date: Date: 2-24-20