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HomeMy WebLinkAbout2017-11-29-D01 Purchase Agreement and Easements_Continental 296 Fund LLC. AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: November 29, 2017 AGENDA ITEM:Consideration of approval of a resolution approving purchase agreement and easements between Continental 296 Fund LLC and the City of Waukee for certain Property Interests necessary for the Alice’s Road Improvements Phase 5 Project and authorizing the Mayor to sign any and all documents necessary to effectuate closing FORMAT:Resolution SYNOPSIS INCLUDING PRO & CON: As reported by Staff Continental 296 Fund was in the process of selling the The Springs at Prairie Crossing apartments and we were contacted by Continental Fund that they have an agreement to sell on November 30, 2017 and have requested approving the purchase agreement and easements before that date. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. PREPARED BY: Beth Richardson REVIEWED BY: John Gibson PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: D1 THE CITY OF WAUKEE, IOWA RESOLUTION 17-____________ APPROVING A PURCHASE AGREEMENT AND EASEMENTS BETWEEN CONTINENTAL 296 FUND LLC AND THE CITY OF WAUKEE IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND, WHEREAS, the City has been in discussion with Continental 296 Fund LLC regarding the conveyance of certain property interests necessary for the Alice’s Road Improvements Phase 5 Project in Waukee. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa, that the purchase agreement and easements between Continental 296 Fund LLC and the City of Waukee are hereby approved. BE IT FURTHER RESOLVED that the Mayor is authorized to execute any and all documents to effectuate the closing on behalf of the City, and that the City Clerk shall cause the originals to be recorded upon the properties by submitting the original to the Dallas County Recorder with the appropriate recording fees. Passed by the City Council of the City of Waukee, Iowa, and approved this the 29th day of November, 2017. ____________________________ William F. Peard, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk ROLL CALL VOTE AYE NAY ABSENT ABSTAIN Anna Bergman R. Charles Bottenberg Brian Harrison Shelly Hughes Larry R. Lyon 1 Return to and Prepared by: Ryan K. Gurwell, A & R Land Services, 1609 Golden Aspen Dr., Suite 104, Ames, IA 50010 (515) 337-1197 PURCHASE AGREEMENT PARCEL NO. 44 COUNTY Dallas PROJECT SE Alices Road Improvements Phase 5 CITY Waukee, IA SELLER: Continental 296 Fund LLC THIS AGREEMENT made and entered into this ______ day of __________________, 20 , by and between Seller and the CITY OF WAUKEE, IOWA, Buyer. 1a. SELLER AGREES to sell and furnish to Buyer a conveyance document, on form(s) furnished by Buyer, and Buyer agrees to buy the real estate described on the Acquisition Plat attached as Exhibit A hereof (the “Fee Premises”), a public facilities and use easement attached as Exhibit B, an electric transmission line easement attached as Exhibit C, and a temporary construction easement attached as Exhibit D hereof , hereinafter referred to as the Easement Premises, situated in parts of the following: See Acquisition Plats attached, County of Dallas, State of Iowa, including the following buildings, improvements and other property: All land, trees, shrubs, landscaping and surfacing attached to the Fee Premises sought and described herein. 1b. Said Temporary Construction Easement shall terminate upon completion of the construction of this Project (as described above) and acceptance of the Project by the City Council or 24 months, whichever occurs first. SELLER ACKNOWLEDGES full settlement and payment from Buyer for all claims per the terms of this agreement and discharges Buyer from liability because of this agreement and the construction of this public improvement project, except that Seller reserves any claim for any damages to the property during construction. The Fee Premises also includes all estates, rights, title and interests, including all easements, and all advertising devices. 2. Possession of the premises is the essence of this agreement and Buyer may enter and assume full use and enjoyment of the premises per the terms of this agreement. SELLER GRANTS Buyer the immediate right to enter the premises for the purpose of gathering survey and soil data. SELLER SHALL surrender possession of the premises upon execution of this Purchase Agreement and the conveyance documents.. 3. Buyer agrees to pay and SELLER AGREES to grant the right of possession, convey title and surrender physical possession of the premises as shown on or before the dates listed below. PAYMENT AMOUNT AGREED PERFORMANCE DATE OF PERFORMANCE $ on conveyance of title $ on surrender of possession $ 14,500.00 on possession and conveyance 60 days after Buyer approval $ 14,500.00 TOTAL LUMP SUM Breakdown Ac./Sq.Ft. Land by Fee Title 5,731 sq. ft. Fence: rods woven Underlying Fee Title sq. ft. Fence: rods barbed MidAmerican Energy Company Electric Transmission Line Easement 222 sq. ft. City of Waukee Public Facilities and Use Easement 4,445 sq. ft. Temporary Easement 3,500 sq. ft. 2 4. SELLER WARRANTS that there are no tenants on the premises holding under lease except: None. 5. This agreement shall apply to and bind the legal successors in interest of the Seller and SELLER AGREES to pay all liens and assessments against the premises, including all taxes and special assessments payable prior to execution of this Purchase Agreement, and agrees to warrant good and sufficient title. Names and addresses of lienholders are: University of Iowa Community Credit Union pursuant to that certain Mortgage dated June 20, 2016 and recorded June 23, 2016 in Book 2016 at Page 10247 of the Dallas County Recorder’s Office, Dallas County, Iowa. 6. Buyer may include mortgagees, lienholders, encumbrancers and taxing authorities as payees on warrants issued in payment of this agreement. In addition to the Total Lump Sum, Buyer agrees to pay $150.00 for the cost of adding title documents required by this transaction to Seller's abstract of title. 7. If Seller holds title to the premises in joint tenancy with full rights of survivorship and not as tenants in common at the time of this agreement, Buyer will pay any remaining proceeds to the survivor of that joint tenancy and will accept title solely from that survivor, provided the joint tenancy has not been destroyed by operation of law or acts of Seller. Upon written notice from Seller, Buyer shall pay all proceeds pursuant to this Purchase Agreement to Seller’s designee. 8. These premises are being acquired for public purposes and this transfer is exempt from the requirements for the filing of a Declaration of Value by the Code of Iowa. 9. Buyer hereby gives notice of Seller’s five-year right to renegotiate construction or maintenance damages not apparent at the time of the signing of this agreement as required by the Code of Iowa, Section 6B.52. 10. This written agreement constitutes the entire agreement between Buyer and Seller and there is no agreement to do or not to do any act or deed except as specifically provided for herein. 11. Seller states and warrants that, to the best of Seller’s knowledge, there is no burial site, well, solid waste disposal site, hazardous substance, nor underground storage tank on the premises described and sought herein. 3 SELLER'S SIGNATURE AND CLAIMANT'S CERTIFICATION: Upon due approval and execution by the Buyer, we the undersigned claimants certify the Total Lump Sum payment shown herein is just and unpaid. CONTINENTAL 296 FUND LLC X SIGNATURE PRINTED NAME TITLE c/o Caitlin LaJoie, W134 N8675 Executive Pkwy. Menomonee Falls, WI 53051 ( Mailing Address ) (NOTARY PUBLIC: PLEASE COMPLETE LEFT AND RIGHT SIDES) SELLER'S ALL-PURPOSE ACKNOWLEDGMENT STATE OF: } COUNTY OF: } ss: On this _____ day of ____________________, A.D. 20 , before me, the undersigned, a Notary Public in and for said State, personally appeared , to me personally known or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within record and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the record the person(s), or the entity upon behalf of which the person(s) acted, executed the record. ________________________________(Sign in Ink) Signature of Notary Public CAPACITY CLAIMED BY SIGNER: INDIVIDUAL CORPORATE Title(s) of Corporate Officer(s): ____________________ ____________________ Corporate Seal is affixed No Corporate Seal procured PARTNER(s): Limited Partnership General Partnership ATTORNEY-IN-FACT EXECUTOR(s) or TRUSTEE(s) GUARDIAN(s) or CONSERVATOR(s) OTHER: SIGNER IS REPRESENTING: List name(s) of entity (ies) or person(s) Continental 296 Fund LLC Buyer’s Approval Recommended by: Ryan K. Gurwell, Project Manager (Date) Approved by: William F. Peard, Mayor (Date) Buyer’s Acknowledgement STATE OF IOWA } COUNTY OF DALLAS } ss: On this day of , 20 , before me, the undersigned, personally appeared William F. Peard, known to me to be the Mayor and authorized representative of the Buyer and who did say that the record was signed on behalf of the Buyer by its authority duly recorded in its minutes, and said authorized representative acknowledged the execution of the record, whose signature appears hereon, to be the voluntary act and deed of the Buyer, and by it voluntarily executed. Signature of Notary Public (M) (R) MEASURED DIMENSION RECORDED DIMENSION SECTION LINE RIGHT-OF-WAY LINE PROPERTY LINE 0 FEET N CONSTRUCTION IS COMPLETED SET WILL BE ESTABLISHED AFTER NOTE: MONUMENTS SHOWN TO BE DATE:6/30/2017 SURVEY FOR: FOTH PROJECT NO. LEGEND FOUND SECTION CORNER MONUMENT SET SECTION CORNER MONUMENT SET 5/8" REROD W/PINK CAP#22847 (UNLESS NOTED) EXISTING LOT LINE I.R.IRON ROD I.P.IRON PIPE TEL.: (515) 987-4363 WAUKEE, IA 50263 230 HIGHWAY 6 CITY OF WAUKEE Foth Infrastructure & Environment, LLC Phone: 515-254-1393 Fax: 515-254-1642 Johnston, IA 50131-2931 8191 Birchwood Court, Suite L 16W021-01 LEGAL DESCRIPTION: PROPERTY OWNER: SEC. 27-79-26 SE1/4 SE1/4 NE CORNER FND CUT X EXHIBIT 44-T 1 OF 1 SHEET FIELD SURVEY COMPLETED: JANUARY 2017 TEMPORARY EASEMENT PARCEL 44 SE ALICES ROAD IMPROVEMENTS TEMPORARY CONSTRUCTION EASEMENT BEING CONVEYED TO THE CITY OF WAUKEE TEMPORARY CONSTRUCTION EASEMENT BOOK 2014, PAGE 4111 MENOMONEE FALLS, WI 53051 N134 W8675 EXECUTIVE PARKWAY C/O CONTINENTAL PROPERTIES COMPANY CONTINENTAL 296 FUND LLC 50 100 LOT 1 ROAD PLAT 4 AT ALICE'S TH E CROSSIN G NE ALICES ROAD637.33'(M) 637.30'(R) PLAT 1 PRAIRIE CROSSING LOT 1 NE HORIZON DRIVE 60' 100' EXISTING ROW 1317.05'(M) 1317.24'(R)N 00º 31' 39" EFOUND 5/8" REROD W/YELLOW CAP#7844 (UNLESS NOTED) SEC. 27-79-26 SE CORNER FND BRASS PLUG Prepared by Jody Budde, 8191 Birchwood Court, Suite L, Johnston, IA 50131 Phone: 515-254-1393 ALICE'S ROAD PLAT 4 THE CROSSING AT LOT 1 NW CORNER POC POB S 89º 55' 09" W 30.00'S 00º 31' 39" W 303.89'S 44º 35' 52" E 35.28' 96.79' N 56º 02' 31" W S 89º 43' 23" E 60.78'N 00º 31' 39" E 275.24'ZONE, US SURVEY FOOT. DISTANCES ARE REFERENCED TO NAD83(2011) IA SPCS SOUTH FOR THE PURPOSE OF THIS DESCRIPTION ALL BEARINGS AND RECORD. OR LESS, SUBJECT TO EASEMENTS AND RESTRICTIONS OF SAID PARCEL CONTAINS 3,500 SQUARE FEET OR 0.08 ACRES MORE FEET TO THE POINT OF BEGINNING. 52" EAST, 35.28 FEET; THENCE SOUTH 00° 31' 39" WEST, 303.89 ALONG SAID SOUTH RIGHT-OF-WAY LINE; THENCE SOUTH 44° 35' NE HORIZON DRIVE; THENCE SOUTH 89° 43' 23" EAST, 60.78 FEET 02' 31" WEST, 96.79 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF THENCE NORTH 00° 31' 39" EAST, 275.24 FEET; THENCE NORTH 56° 89° 55' 09" WEST, 5.00 FEET CONTNUING ALONG SAID SOUTH LINE; LINE OF SAID LOT 1 TO THE POINT OF BEGINNING; THENCE SOUTH THENCE SOUTH 89° 55' 09" WEST, 30.00 FEET ALONG THE SOUTH COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 1, PARTICULARLY DESCRIBED AS FOLLOWS: COUNTY RECORDER'S OFFICE, DALLAS COUNTY, IOWA, MORE 1, AS RECORDED IN BOOK 2013, PAGE 20150 OF THE DALLAS A PARCEL OF LAND LOCATED IN LOT 1 OF PRAIRIE CROSSING PLAT 95' 5' S 89º 55' 09" W 5.00' Prepared by and return to: A & R Land Services, Inc., 1609 Golden Aspen Dr., Ste. 104, Ames, IA 50010 (515) 337-1197 Address Tax Statement To: Continental Properties Company Inc. W134 N8675 Executive Pkwy, Menomonee Falls, WI 53051 For: City of Waukee, 230 Highway 6, Waukee, IA 50131 (515) 978-7900 ________________________________________________________________________________________________________________ Exempt from Real Estate Transfer Tax under Iowa Code 428A.2(17). Exempt from requiring a Declaration of Value under Iowa Code 428A.1. Warranty Deed For the consideration of one dollar ($1.00) and other valuable consideration, in hand paid by City of Waukee, the receipt of which is hereby acknowledged, Continental 296 Fund LLC, Grantor, does hereby convey unto City of Waukee, Grantee, the following described real estate in Dallas County, Iowa subject to any and all easements of record: See Acquisition Plat Attached as Exhibit A. Grantors do hereby covenant with Grantee, and successors in interest, than Grantors hold the real estate by title in fee simple; that they have good and lawful authority to sell and convey the real estate; that the real estate is free and clear of all liens and encumbrances except as may be above stated; and Grantors covenant to warrant and defend the real estate against the lawful claims of all persons except as may be above stated. Each of the undersigned hereby relinquishes all rights of dower, homestead and distributive share in and to the real estate. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine or feminine gender, according to the context. These premises are being acquired for public purposes and this transfer is exempt from the requirements for the filing of a Declaration of Value by the Code of Iowa. Signed this day of , 20 . CONTINENTAL 296 FUND LLC SIGNATURE PRINTED NAME TITLE ALL-PURPOSE ACKNOWLEDGMENT STATE OF: ) ) ss: COUNTY OF: ) On this day of , A.D. 20 before me, the undersigned, a Notary Public in and for , to me personally known or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within record and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the record the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the record. (SEAL) (Sign in Ink) CAPACITY CLAIMED BY SIGNER: INDIVIDUAL X CORPORATE Title of Corporate Officer(s): Corporate Seal is affixed No Corporate Seal procured PARTNERSHIP: Limited General ATTORNEY-IN-FACT EXECUTOR(s) or TRUSTEE(s) GUARDIAN(s) or CONSERVATOR(s) OTHER: SIGNER IS REPRESENTING: Names of entity(ies) or person(s) Continental 296 Fund LLC TEMPORARY CONSTRUCTION EASEMENT Recorder’s Cover Sheet Preparer Information: Ryan K. Gurwell, A & R Land Services 1609 Golden Aspen Dr., Suite 104, Ames, IA 50010 (515) 337-1197 Return Document To: City of Waukee, Iowa Rebecca Schuett, City Clerk 230 Highway 6 Waukee, Iowa 50263 Grantor: Continental 296 Fund LLC Grantee: City of Waukee, Iowa - 2 - TEMPORARY CONSTRUCTION EASEMENT(S) KNOW TO ALL PERSONS BY THESE PRESENTS: 1. Grant of Easement(s). The undersigned, CONTINENTAL 296 FUND LLC (hereinafter referred to as the “Grantor”), in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby sell, grant, and convey to the CITY OF WAUKEE, IOWA, a municipal corporation (hereinafter referred to as “the Grantee”), a non-exclusive, temporary construction easement under, through and across the following described real estate: SEE TEMPORARY EASEMENT PLAT ATTACHED HERETO AS EXHIBIT D (hereinafter referred to as the “Easement Area”) That the above-described easement is granted unto the City of Waukee, Iowa, for the purpose of construction staging, storage of machinery, equipment and materials, and ingress and egress reasonably necessary relating to the construction and installation of the following public improvements on property adjacent to the Easement Area: SE Alices Road Improvements Project-Phase 5 (the “Project”). This temporary construction easement shall terminate and be of no force and effect the date of final completion and acceptance of said completed improvements by the City or twenty- four (24) months, whichever occurs first. The Grantee agrees to restore the Easement Area to a condition after construction substantially the same as prior to entry by the Grantee. The surface of the Easement Area will be seeded or sodded and/or left in its natural state as shown on the proposed plans for the Project. The Grantee agrees that any facilities or items constructed, erected or placed by the Grantee pursuant to this easement shall be located entirely within the Easement Area or other real property to which the City has rights and shall not encroach under, over, on, through, across or within Grantor’s real property outside of the Easement Area. The Grantor agrees that the improvements permitted herein, and the reasonable restoration of their property, as set forth in this easement aforesaid, shall be full and complete satisfaction and consideration of and for this easement, and Grantor expresses agreement that no other liability shall attach or be charged or claimed against the Grantee as a result of or because of the construction of the improvement intended, or the use of the easement herein granted, except as expressly provided herein or previously paid. The Grantee will indemnify and hold harmless Grantor from any and all damages, injuries, or losses arising out of Grantee’s use of the easement or the work done in connection therewith. - 3 - The Grantee agrees and acknowledges that the grant of the easement hereunder is subject to all easements and restrictions of record, including, but not limited to, that certain Temporary Construction and Entrance Wall Easement Agreement dated April 10, 2014 and recorded April 14, 2014 in Book 2014 at Page 4112 of the Dallas County Recorder’s Office, Dallas County, Iowa. The Grantor does HEREBY COVENANT with the said Grantee, and successor-in- interest, that said Grantor holds said real estate described in this Easement Area by title in fee simple; that Grantor has good and lawful authority to sell and convey the same; and that said Grantor covenants to WARRANT AND DEFEND the said premises against the lawful claims of all persons whomsoever, except as may be herein stated. This easement shall run with the land and shall be binding on Grantor, Grantee and on their respective successors, assigns and transferees for the term set forth above. Signed this ___ day of ______________, 2017. GRANTOR CITY OF WAUKEE CONTINENTAL 296 FUND LLC ______________________________ ____________________________ SIGNATURE William F. Peard, Mayor ______________________________ Attest: PRINTED NAME ____________________________ ______________________________ Rebecca D. Schuett, City Clerk TITLE - 4 - STATE OF: ) ) SS COUNTY OF: ) On this _____ day of __________________, 20____, before me, the undersigned, a Notary Public in and for said County and the State of ________________, personally appeared , to me personally known, who being by me duly sworn, did say that that person is of the corporation executing the foregoing instrument; that (the seal affixed to said instrument is the seal of the corporation or no seal has been procured by the corporation) and that the instrument was signed (and sealed) on behalf of the corporation by authority of its Board of Directors; that acknowledged the execution of the instrument to be the voluntary act and deed of the corporation, by it and by him voluntarily executed. ______________________________ Notary Public in and for the State of ____________ STATE OF IOWA ) ) SS COUNTY OF DALLAS ) On this _____ day of __________________, 20____, before me, the undersigned, a Notary Public in and for said County and the State of Iowa, personally appeared William F. Peard and Rebecca D. Schuett, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk of the City of Waukee, Iowa, a municipal corporation, executing the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed of the City of Waukee, by it and by them voluntarily executed. ______________________________ Notary Public in and for the State of Iowa (M) (R) MEASURED DIMENSION RECORDED DIMENSION SECTION LINE RIGHT-OF-WAY LINE PROPERTY LINE 0 FEET N CONSTRUCTION IS COMPLETED SET WILL BE ESTABLISHED AFTER NOTE: MONUMENTS SHOWN TO BE DATE:6/30/2017 SURVEY FOR: FOTH PROJECT NO. LEGEND FOUND SECTION CORNER MONUMENT SET SECTION CORNER MONUMENT SET 5/8" REROD W/PINK CAP#22847 (UNLESS NOTED) EXISTING LOT LINE I.R.IRON ROD I.P.IRON PIPE TEL.: (515) 987-4363 WAUKEE, IA 50263 230 HIGHWAY 6 CITY OF WAUKEE Foth Infrastructure & Environment, LLC Phone: 515-254-1393 Fax: 515-254-1642 Johnston, IA 50131-2931 8191 Birchwood Court, Suite L 16W021-01 LEGAL DESCRIPTION: PROPERTY OWNER: SEC. 27-79-26 SE1/4 SE1/4 NE CORNER FND CUT X EXHIBIT 44-T 1 OF 1 SHEET FIELD SURVEY COMPLETED: JANUARY 2017 TEMPORARY EASEMENT PARCEL 44 SE ALICES ROAD IMPROVEMENTS TEMPORARY CONSTRUCTION EASEMENT BEING CONVEYED TO THE CITY OF WAUKEE TEMPORARY CONSTRUCTION EASEMENT BOOK 2014, PAGE 4111 MENOMONEE FALLS, WI 53051 N134 W8675 EXECUTIVE PARKWAY C/O CONTINENTAL PROPERTIES COMPANY CONTINENTAL 296 FUND LLC 50 100 LOT 1 ROAD PLAT 4 AT ALICE'S TH E CROSSIN G NE ALICES ROAD637.33'(M) 637.30'(R) PLAT 1 PRAIRIE CROSSING LOT 1 NE HORIZON DRIVE 60' 100' EXISTING ROW 1317.05'(M) 1317.24'(R)N 00º 31' 39" EFOUND 5/8" REROD W/YELLOW CAP#7844 (UNLESS NOTED) SEC. 27-79-26 SE CORNER FND BRASS PLUG Prepared by Jody Budde, 8191 Birchwood Court, Suite L, Johnston, IA 50131 Phone: 515-254-1393 ALICE'S ROAD PLAT 4 THE CROSSING AT LOT 1 NW CORNER POC POB S 89º 55' 09" W 30.00'S 00º 31' 39" W 303.89'S 44º 35' 52" E 35.28' 96.79' N 56º 02' 31" W S 89º 43' 23" E 60.78'N 00º 31' 39" E 275.24'ZONE, US SURVEY FOOT. DISTANCES ARE REFERENCED TO NAD83(2011) IA SPCS SOUTH FOR THE PURPOSE OF THIS DESCRIPTION ALL BEARINGS AND RECORD. OR LESS, SUBJECT TO EASEMENTS AND RESTRICTIONS OF SAID PARCEL CONTAINS 3,500 SQUARE FEET OR 0.08 ACRES MORE FEET TO THE POINT OF BEGINNING. 52" EAST, 35.28 FEET; THENCE SOUTH 00° 31' 39" WEST, 303.89 ALONG SAID SOUTH RIGHT-OF-WAY LINE; THENCE SOUTH 44° 35' NE HORIZON DRIVE; THENCE SOUTH 89° 43' 23" EAST, 60.78 FEET 02' 31" WEST, 96.79 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF THENCE NORTH 00° 31' 39" EAST, 275.24 FEET; THENCE NORTH 56° 89° 55' 09" WEST, 5.00 FEET CONTNUING ALONG SAID SOUTH LINE; LINE OF SAID LOT 1 TO THE POINT OF BEGINNING; THENCE SOUTH THENCE SOUTH 89° 55' 09" WEST, 30.00 FEET ALONG THE SOUTH COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 1, PARTICULARLY DESCRIBED AS FOLLOWS: COUNTY RECORDER'S OFFICE, DALLAS COUNTY, IOWA, MORE 1, AS RECORDED IN BOOK 2013, PAGE 20150 OF THE DALLAS A PARCEL OF LAND LOCATED IN LOT 1 OF PRAIRIE CROSSING PLAT 95' 5' S 89º 55' 09" W 5.00' PUBLIC FACILITIES AND USE EASEMENT Recorder’s Cover Sheet Preparer Information: Ryan K. Gurwell, A & R Land Services 1609 Golden Aspen Dr., Suite 104, Ames, IA 50010 (515) 337-1197 Return Document To: City of Waukee, Iowa Rebecca Schuett, City Clerk 230 W. Hickman Road Waukee, Iowa 50263 Grantor: Continental 296 Fund LLC Grantee: City of Waukee, Iowa - 2 - PUBLIC FACILITIES AND USE EASEMENT(S) KNOW TO ALL PERSONS BY THESE PRESENTS: That the undersigned, Continental 296 Fund LLC, a Wisconsin limited liability company (hereinafter referred to as the “Grantor”), in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby sell, grant, and convey to the CITY OF WAUKEE, IOWA, a municipal corporation (hereinafter referred to as “Grantee” or “City”), a permanent easement under, through and across the real property legally described as: See Attached Exhibit “B” (the “Easement Area”) That the above described Easement is granted unto the City for the purpose of public uses deemed appropriate by the City including but not limited to public ingress/egress, public recreation, and constructing, reconstructing, repairing, replacing, enlarging, inspecting and maintaining any and all utilities and/or facilities the City deems appropriate including, but not limited to, sanitary sewer facilities, storm sewer, trunk sewers, electric, water, gas, phone, cable and any and all other utilities, bike trail(s), waterways, open creeks, ditches or trenches or any other facilities deemed appropriate and/or necessary by the City, provided, however, all such utilities and/or facilities constructed, reconstructed, repaired, replaced, enlarged, inspected or maintained by the City pursuant to this Easement shall be located entirely within the Easement Area or other real property to which the City has rights and shall not encroach under, over, on, through, across or within Grantor’s real property outside of the Easement Area. 1. Erection and Placement of Structures, Obstructions, Plantings or Materials Prohibited. Grantor and its grantees, assigns and transferees shall not interfere with the facilities and/or use of the Easement Area by the City. Subsequent to execution of this Easement, Grantor shall not place, erect or plant any material, fence or other structure, under, over, on, through, across or within the Easement Area. 2. Maintenance of Easement. The City shall be responsible for maintaining the Easement Area and any facilities or infrastructure installed therein by the City. 3. Change of Grade Prohibited. Grantor and its successors, assigns and transferees shall not change the grade, elevation or contour of any part of the Easement Area without obtaining the prior written consent of the City. 4. Right of Access. The City shall have the right of access to the Easement Area and have all rights of ingress and egress reasonably necessary for the use and enjoyment of the Easement Area from property adjacent thereto as herein described, including, but not limited to, the right to remove any unauthorized fences, structures, obstructions, planting or material placed or erected under, over, on, through, across or within the Easement Area after the date hereof. - 3 - 5. Property to be Restored. Upon completion of any construction, reconstruction, repair, enlargement or maintenance of any improvements in the Easement Area, the City shall restore the Easement Area in good and workmanlike manner to a condition comparable to its condition before construction, reconstruction or alteration as set forth below. 6. Liability. Except as otherwise set forth herein and except as may be caused by the negligent or wrongful acts or omissions of the City, its employees, agents or its representatives, the City shall not be liable for injury or property damage occurring in or to the Easement Area, the property abutting said Easement Area, nor for property damage or any improvements or obstructions thereon resulting from the City’s exercise of the Easement. Grantor agrees to indemnify and hold the City, its employees, agents and representatives harmless against any loss, damage, injury or any claim or lawsuit for loss, damage or injury arising out of or resulting from the negligent or wrongful acts or omissions of Grantor or its employees, agents or representatives arising out of or in connection with this Easement. 7. Easement Benefit. This Easement shall be for the benefit of the City, its successors and assigns, and its permittees and licensees. 8. Easement Runs with Land. This Easement shall be deemed perpetual and to run with the land and shall be binding on Grantor, Grantee and on their respective successors, assigns and transferees. 9. Consent and Subordination of Mortgage Holder(s). By signing this Agreement, the undersigned lender, if any, its successors and assigns consents to the terms of this easement agreement and hereby subordinates its interest in the Easement Area to the interest of the City and its successors and assigns. 10. Approval by City Council. This Easement shall not be binding until it has received the final approval and acceptance by the City Council by Resolution which approval and acceptance shall be noted on this Easement by the City Clerk. 11. Intentionally Omitted. 12. Jurisdiction and Venue. The City and the Grantor agree the District Court of the State of Iowa shall have exclusive jurisdiction over the subject matter and enforcement of the terms and conditions of this Easement and said parties consent to the jurisdiction of Dallas County, Iowa. 13. Attorney’s Fees. The City and Grantor may enforce this instrument by appropriate action, and should they prevail in such litigation the prevailing party shall recover as part of their costs the reasonable attorney’s fees incurred in such litigation. 14. Easements of Record. The Grantee agrees and acknowledges that the grant of the Easement hereunder is subject to all easements and restrictions of record, including, but not limited to, that certain Temporary Construction and Entrance Wall Easement Agreement dated April 10, 2014 and recorded April 14, 2014 in Book 2014 at Page 4112 of the Dallas County - 4 - Recorder’s Office, Dallas County, Iowa. The City shall not violate, or cause Grantor to be in violation of, the terms and conditions of all such easements and restrictions affecting the Easement Area entered or recorded prior to the date hereof, including those relating to the existing sign and improved landscape wall located within the Easement Area. 15. The Grantee will indemnify and hold harmless Grantor from any and all claims by third parties for any damages, injuries or losses arising out of Grantee’s use of the easement. That the Grantor does HEREBY COVENANT with the said Grantee, that said Grantor holds said real estate described in this Easement Area by title in fee simple; that Grantor has good and lawful authority to sell and convey the same; that said premises are free and clear of all liens and encumbrances whatsoever, except as may be herein stated; that said Grantor covenants to WARRANT AND DEFEND the said Easement Area against the lawful claims of all persons whomsoever, except as herein stated. IN WITNESS WHEREOF, we have hereunto affixed our hands this ______ day of ________________________, 2017. GRANTOR: CONTINENTAL 296 FUND LLC ______________________________ Signature ______________________________ Printed Name ______________________________- Title STATE OF ) ) SS COUNTY OF ) On this _____ day of __________________, 2017, before me, the undersigned, a Notary Public in and for said County and the State of ____________, personally appeared ____________________, to me personally known, who being by me duly sworn, did say that that person is ______________________ of the corporation executing the foregoing instrument; that (the seal affixed to said instrument is the seal of the corporation or no seal has been procured by the corporation) and that the instrument was signed (and sealed) on behalf of the corporation by authority of its Board of Directors; that ___________________ acknowledged the execution of the instrument to be the voluntary act and deed of the corporation, by it and by him voluntarily executed. ______________________________ Notary Public in and for the State of _____________ - 5 - ACCEPTANCE BY CITY CITY OF WAUKEE ____________________________ William F. Peard, Mayor Attest: ____________________________ Rebecca D. Schuett, City Clerk STATE OF IOWA ) ) SS COUNTY OF DALLAS ) On this _____ day of __________________, 20____, before me, the undersigned, a Notary Public in and for said County and the State of Iowa, personally appeared William F. Peard and Rebecca D. Schuett, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk of the City of Waukee, Iowa, a municipal corporation, executing the within and foregoing instrument and acknowledged that they executed the same as their voluntary act and deed of the City of Waukee, by it and by them voluntarily executed. ______________________________ Notary Public in and for the State of Iowa