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HomeMy WebLinkAbout2016-05-16-J02 Purchase Agreement - Broderick - east property MEE AGEN FORM SYNO FISC COM STAF RECO ATTA PREP ETING DATE NDA ITEM: MAT: OPSIS INCL CAL IMPACT MMISSION/B FF REVIEW OMMENDA ACHMENTS PARED BY: CITY COU E: May 16 : Consid Purcha R. Brod Resolut LUDING PRO District location comple District roles an method The Cit from E holding is gene east of acquire utilized propert part of in Dece T INCLUDIN be parti BOARD/COM W AND COM The agr Counci ATION: App S: I. II. Brad D CITY OF W UNCIL MEE 6, 2016 deration of app se Agreemen derick tion O & CON: F t and the City n for a second ex. Both the C t have recentl nd responsibi d for acquiring ty has negotia dward J. Brod g a one half in rally located 10th Street/R- ed. It is antici d by the City o ty that is yet t the developm ember 2017. NG COST/B ially funded b MMITTEE C MMENT: Sta reement is sch il Meeting. prove the Reso Proposed Re Purchase Ag Deets, Develop WAUKEE, ETING CO proval of a re nt with Edwar For several m y of Waukee h d high school City of Wauk ly approved a lities for both g property for ated a real est derick Family nterest in the p ½ mile north -22 and adjoin ipated that the of Waukee fo to be determin ment of their s BENEFIT AN by the Wauke COMMENT aff would rec heduled to be olution esolution greement pment Service AGE IOWA OMMUNICA esolution appr rd J. Broderick months, the W have jointly w l as well as gr kee and the W a 28E Agreem h the District r the propose tate agreemen y Trust and N property bein of Hickman ns the McCar e majority of or recreationa ned will be ut site. The prop NALYSIS: ee Community T: ommend app e signed by th es Director ENDA ITEM: ATION roving a Real k Family Tru Waukee Comm worked on ide round for a re Waukee Comm ment which id and City as w d joint use. nt for purchas Norma R. Bro ng acquired. T Road and a q rthy property f this property al fields. A po tilized by the perty is sched $3,120,00 y School Dist proval of the r he sellers prio Estate ust and Norma munity School entifying a ecreational munity School dentifies the well as the se of 80 acres derick, each The property quarter mile also being y will be ortion of the District as a duled to close 00 which will trict resolution. or to Monday’ a l l ’s THE CITY OF WAUKEE, IOWA RESOLUTION 16- RESOLUTION APPROVING A REAL ESTATE PURCHASE AGREEMENT WITH EDWARD J. BRODERICK FAMILY TRUST AND NORMA R. BRODERICK IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA 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 Edward J. Broderick Family Trust and Norma R. Broderick 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 Edward J. Broderick Family Trust and Norma R. Broderick, as set forth in the attached Exhibit A, is hereby approved. PASSED AND APPROVED, this 16th day of May, 2016. ____________________________ William F. Peard, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk ROLL CALL VOTE AYE NAY ABSENT ABSTAIN Shane Blanchard Brian Harrison Shelly Hughes Larry R. Lyon Rick Peterson Page 1 of 9 REAL ESTATE PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT (the “Agreement”) is deemed made on the date the last of the parties executes this Agreement (the “Effective Date”) by and between NORMA R. BRODERICK, MARY J. BRODERICK SMITH AND KELLY C. BRODERICK AS CO-TRUSTEES OF THE EDWARD J. BRODERICK FAMILY TRUST, whose address for the purposes of this Agreement is 28178 U Avenue, Waukee, IA 50263 and Norma R. Broderick, individually, (hereafter referred to as the “Seller”) and THE CITY OF WAUKEE, IOWA, an Iowa municipality, whose address for the purposes of this Agreement is 230 Hickman Road, Waukee, Iowa 50263 (collectively hereafter referred to as the “Buyer”). RECITALS A. Seller is the owner of the following legally described property situated in Dallas County: See Exhibit “A” Subject only to easements, restrictions, and covenants of record (the “Property”); B. In lieu of Buyer commencing eminent domain proceedings to acquire the Property, Buyer desires to purchase from Seller and Seller desires to sell to Buyer the Property; C. Buyer and Seller desire to set forth the obligations, restrictions, limitations, and conditions upon which the Property will be conveyed by Seller to Buyer. AGREEMENT NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, each for the other, Buyer and Seller agree as follows: 1. Sale of Property. In lieu of Buyer commencing eminent domain proceedings to acquire the Property, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, for the Purchase Price set forth below and on the terms and conditions set forth in this Agreement, the Property. For purposes of this Agreement, “Property” shall be deemed to mean, on a collective basis: (a) the parcel of land described above, together with all rights, easements, and interests appurtenant thereto; and (b) all improvements located on the Land, if any. 2. Purchase Price. Seller, in consideration of the mutual covenants and agreements contained herein, agrees to sell to Buyer and Buyer, in consideration of the mutual covenants and agreements contained herein, agrees to purchase the Property from Seller for the sum of $1,175,000 (One Million One Hundred Seventy-Five Thousand Dollars) (the “Purchase Price”). The Purchase Price shall be paid by Buyer to Seller at the time of Closing. Upon full execution of this Agreement and approval by Buyer’s Board of Directors, Buyer shall place $0 as Earnest Money in the Brick Gentry Law Firm Trust Account. The Earnest Money shall then be applied Page 2 of 9 to the Purchase Price at Closing unless the terms of this Purchase Agreement require contrary treatment. 3. Abstract and Title. Seller, at its sole cost and expense, shall provide to Buyer an Abstract of Title for the Property continued through the Effective Date of this Agreement. The Abstract shall be delivered to Buyer for purposes of examination and shall show merchantable title in Seller in conformity with this Agreement, Iowa law and the Iowa Land Title Standards of the Iowa State Bar Association. Buyer shall review the Abstract and if, upon said review, Buyer has an objection to any item(s) appearing in the Abstract other than (i) liens that will be eliminated at Closing by Seller; (ii) those permitted encumbrances as set forth herein and (iii) those exceptions that are reasonably acceptable to Buyer, then Buyer shall notify Seller in writing of such fact in the form of an attorney’s Preliminary Title Opinion. Seller, at its sole expense, shall promptly undertake to eliminate or satisfy the objections to title to the reasonable satisfaction of Buyer. Immediately prior to the Closing of the Property, the Abstract of Title 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 the Property appear in the Abstract in which event Buyer’s right to raise title objections with respect to this second continuation shall be limited to matters that arise after the date of continuation (as shown in the first continuation) of the Abstract and on or before the Closing Date. At Closing, the Abstract shall become the property of Buyer. If, after receipt of the Abstract, Buyer so desires, then Buyer may obtain a commitment for an Owner’s and/or Lender’s Title Guaranty Certificate from the Iowa Title Guaranty Division of the Iowa Finance Authority, or an Owner’s or Lender’s policy of title insurance from a title company selected by Buyer, to be delivered to Buyer with legible copies of all exceptions noted thereon. The cost of any such commitment and the premium for any Owner’s Title Guaranty or title policy issued in connection therewith shall be at the cost of the Buyer. The premium for any Lender’s Title Guaranty or Lender’s title policy and for any special endorsements required shall be at Buyer’s cost. The commitment and objections to items thereon shall be handled in the same manner as the Abstract and objections to items therein. 4. Permitted Exceptions. The Property shall be conveyed by Seller to Buyer subject only to the local municipal zoning ordinance, real estate taxes not yet due and payable, easements and restrictions of record and other exceptions to title that are of record, reasonably approved by Buyer and those other matters as hereinafter provided (the “Permitted Exceptions”). 5. Closing. Assuming all contingencies have been satisfied or waived, the Closing of this transaction shall occur on November 15, 2016 (hereinafter referred to as the “Closing Date”) at a location mutually agreed upon by the parties herein. Time is of the essence in this Purchase Agreement. 6. Real Estate Taxes. Seller shall pay all real estate taxes assessed against the Property for all periods through the Closing Date including a prorated share of the real estate taxes due for the tax period in which the Closing takes place (payable in the subsequent fiscal tax year). Real Estate taxes applicable to the Property which are not delinquent at the time of Closing and which Seller is responsible to pay under the terms hereof, shall be credited against the Purchase Price at Closing. Any such credit shall be based upon the last known actual real estate taxes payable according to public record, provided, however, that if such taxes are based Page 3 of 9 upon an assessment which is at least ten percent (10%) higher or lower than the current assessment, such proration shall be based upon the current millage rate, assessed value, legislative tax rollbacks, and real estate tax exemptions that will actually be applicable on the date of possession, as shown by the County Assessor’s records. 7. Special Assessments. Seller shall pay as soon as the same are payable, all special assessments with respect to the Property which are due as of the Closing Date. Buyer shall pay and/or be responsible for any assessments due after the Closing Date. 8. Commission. Seller and Buyer each represent and warrant to the other that no brokerage commission, finder’s fee, or other compensation is due and payable with respect to the transaction contemplated by this Agreement. The warranties and obligations of the parties pursuant to this paragraph shall survive the termination of the Closing. Should any third party claim a commission is due and owing, both parties agree to cooperate in challenging such claim at the expense of the party through which the claim arose. Such cooperation shall not be deemed to alter the indemnifications contained in this paragraph in any manner. 9. Warranties and Representations of Seller. Seller warrants and represents to Buyer that it has the full right, power, and authority to sell and convey the Property to Buyer as provided in this Agreement and to carry out the Seller’s obligations hereunder. All requisite partnership, corporate, or other actions necessary to authorize Seller to enter into this Agreement and to perform its obligations hereunder have been taken; the joinder of no person or entity other than Seller will be necessary to sell the Property fully and completely to Buyer at Closing except as otherwise set forth and provided herein; and the execution and delivery of this Agreement and the consummation of the transaction herein contemplated will not conflict with or result in a breach of any of the terms 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. Seller represents and warrants to Buyer that there are no adverse or other parties in possession of the Property or any part of thereof. No party has been granted any license, lease, or other right or interest relating to the use or possession of the Property, or any part thereof, other than as expressly provided for herein or of record or which will be terminated concurrently with Closing. At Closing, a Groundwater Hazard Statement will be filed by Sellers regarding the following: (i) wells; (ii) solid waste disposal; (iii) hazardous wastes; and (iv) underground storage tanks located on the Property. These representations contained in the Groundwater Hazard Statement shall be for the benefit of the Buyer who shall be entitled to rely upon said representations. 10. Warranties and Representations of Buyer. Subject to the conditions set forth on Exhibit “B”, Buyer warrants and represents to Seller that it has the full right, power, and authority to acquire the Property from Seller as provided in this Agreement and to carry out the Buyer’s obligations hereunder. 11. Property Information; Survey; Inspection Period. Within thirty (30) business days after the Effective Date, to the extent in Seller’s possession, Seller shall provide an Abstract of Title to the Property together with any and all existing surveys, plans, site drawings, and all other information presently in its possession relating to the Property concurrently with the execution of this Agreement (the “Property Information”). Seller grants Buyer and its duly authorized agents Page 4 of 9 the right to enter upon the Property to conduct the following tests, inspections and examination of the Property as Buyer deems necessary. 11.1. To conduct a survey (including an ALTA survey, if desired) or update a current survey of the Property to confirm, among other things, that no encroachments exist relative to the Property. 11.2. To obtain an environmental assessment 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, but not be limited to obtaining a Phase I Environmental Assessment from an environmental engineer. Neither Buyer’s right to inspect the Property nor the results thereof shall in any way limit, diminish or modify Seller’s warranties and representations as set forth herein. Buyer shall indemnify and hold Seller harmless from and against any actual loss, damage or injury to persons or property resulting from Buyer’s exercise of its right to conduct the inspections described herein. 12. Conveyance Documents. Seller shall convey the Property to Buyer by a general warranty deed, conveying to Buyer good and merchantable fee simple title to the Property, subject only to such title exceptions and encumbrances as provided herein or as have been approved by Buyer (the “Permitted Exceptions”) and in a form reasonably acceptable to counsel for Seller and Buyer. 13. Closing Costs. Seller shall pay all documentary and transfer taxes and recording fees necessary to cure title objections of the Buyer. Buyer shall pay the recording fees in connection with the Deed conveying title to Buyer, and any financing documents encumbering or relating to the Property and other documents Buyer desires to record. Buyer shall pay the premium for issuing the Iowa Title Guaranty or title policy (if any) described herein. Each party shall be responsible for paying its own attorney fees. Buyer shall cause an appropriate closing statement to be prepared in advance of Closing for proper execution by both Buyer and Seller consistent with the terms of this Agreement. Seller and Buyer shall share equally in any settlement fees associated with Closing. 14. Section 1033 Exchange. As Buyer is acquiring this Property in lieu of commencing eminent domain proceedings, Seller reserves the right to utilize and rely upon Section 1033 of the Internal Revenue Code to consummate an exchange. 15. Possession; Risk of Loss. All risk of loss with respect to the Property shall remain with Seller until Closing of the purchase of the Property. Seller shall preserve and care for the Property until Closing in a manner consistent with its prior practice, including roof, HVAC, and fire prevention systems, if any. 16. Existing Tenancy or Other Interests. Seller confirms the Property is not subject to an existing lease or other possessory interest not shown of record. If such an interest exists, Seller agrees to provide documentation executed by the party holding such interest in which such interest is terminated prior to Closing. Page 5 of 9 17. Lien Waivers. If at Seller’s (or its affiliates) request or direction any person or entity has supplied material or services for the Property within six (6) months prior to the Effective Date of this Agreement which may form the basis of a Mechanic’s Lien being filed against the Property, then the Seller shall provide copies of written lien waivers from all such persons or entities supplying material or services prior to the Closing Date. Seller agrees to indemnify and hold Buyer harmless from any such claims which arise because of the filing of Mechanic’s Liens for work contracted for by Seller prior to the Closing Date and specifically reserves the right to pursue an action in connection therewith, which right shall survive Closing. 18. Pending Actions. Seller has no notice of any action, litigation, proceeding, or investigation against itself, related entities, its partners, or the Property, which would affect the Property or the right of Seller to sell and convey the Property, or any action, litigation, proceeding, or investigation, including, without limitation, any eminent domain proceeding which would result in any lien, claim, right, or interest in the Property in favor of any third party. 19. Notices. Except with regard to Buyer’s undertaking set forth in Paragraph 11, neither party shall have the right to terminate this Agreement or seek any remedy for a breach hereof by the other party unless such breach continues for a period of thirty (30) days following written notice by the party seeking to pursue such remedy, specifying the occurrence and description of such default under this Agreement and unless the party given such notice shall have failed to commence to take such steps as are necessary to cure such breach or default as soon as possible (or having so commenced such steps to cure shall thereafter have failed to proceed diligently and with continuity to remedy the same). All notices, demands, writings, supplements, or other documents which are required or permitted by the terms of this Agreement to be given to any party shall be delivered in person, or shall be deposited in the 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 Brick Gentry, P.C., c/o Steve Brick, 6701 Westown Parkway, Suite 100, West Des Moines, IA 50266. Notices to Seller shall also be sent to James E. McCarthy, 5400 University Avenue, West Des Moines, IA 50266- 5977. 20. Assignment; Agreement Binding on Successors; Survival of Provisions. This Agreement may not be assigned or transferred by any of the parties without the express written consent of the other. This Agreement and amendments, if any, and all representations, warranties, indemnification obligations, rights, and duties hereunder shall survive the Closing and shall be fully 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. Default; Remedies of the Parties. 21.1. Buyer’s Remedies for Seller’s Default. If (a) each of the conditions precedent set forth in this Agreement have been satisfied or waived prior to the Closing Date and (b) Seller fails or refuses to timely convey the Property to Buyer in accordance with the terms and conditions of this Agreement, except on account of a default hereunder by Buyer, Buyer may elect one of the following remedies: (a) be entitled to terminate Buyer’s obligations under this Agreement by written notice to Seller; (b) be Page 6 of 9 entitled to specific performance of this Agreement; or (c) any other remedies available at law or equity. 21.2. Seller’s Remedies for Buyer’s Default. If (a) each of the conditions precedent set forth in this Agreement have been satisfied or waived prior to the Closing Date and (b) Buyer fails or refuses to timely purchase the Property and Close in accordance with the terms and conditions of this Agreement, except on account of a default hereunder by Seller, Seller may elect one of the following remedies: (a) be entitled to terminate Seller’s obligations under this Agreement by written notice to Buyer; (b) be entitled to specific performance of this Agreement; or (c) any other remedies available at law or equity. 22. Time. Time is of the essence in the performance of each party’s obligations hereunder. 23. No Waiver. Subject to the deemed approvals under this Agreement, no waivers by any party of the performance or satisfaction of any covenant or condition shall be valid unless in writing, nor shall it be considered to be a waiver by such party of any other covenant or condition hereunder. 24. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the Property and supersedes all prior agreements, whether written or oral, between the parties regarding the same subject. This Agreement may only be modified by subsequent written agreement signed by the party to be charged. 25. Counterparts and Effectiveness. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement, and this Agreement shall only be effective if a counterpart is signed by both Buyer and Seller. 26. Severability. In the event any provision of this Agreement shall be held to be invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 27. Council Approval/Additional Conditions. This Agreement shall not be binding on Buyer until such time as it is approved by the City Council of the City of Waukee. Buyer’s and Seller’s obligation to close is further subject to the conditions set forth on Exhibit “B”. 28. Survival of Warranties. Any warranties, covenants and representations contained in this document shall survive the execution of this Agreement and any other documents, including the Warranty Deed given by Seller to Buyer to consummate this transaction, shall not be merged into such documents. 29. Attorney Fees. In the event of default by either party pursuant to any of the terms of this Agreement, the prevailing party in any litigation or enforcement action shall be entitled to Page 7 of 9 reimbursement by the defaulting party for any of the prevailing party’s reasonable attorney fees, court costs, and other associated costs of enforcement. 30. Governing Law; Construction. This Agreement shall be construed pursuant to the laws of the State of Iowa. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid. If any such provision of this Agreement shall be determined to be invalid or unenforceable, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating or otherwise affecting the remaining provisions of this Agreement. 31. Headings. Article and section headings used in this Agreement are for the convenience of the parties only and shall not affect the construction of this Agreement. 32. Further Assurances. At or after Closing, the parties shall prepare, execute and deliver, at their respective expense, such additional instruments and other documents and shall take 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 effectuate and comply with all the terms of this Agreement and the transactions contemplated hereby. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. SELLERS: BUYER THE EDWARD J. BRODERICK THE CITY OF WAUKEE, IOWA FAMILY TRUST an Iowa municipality By: By: Norma R. Broderick, Co-Trustee Tim Moerman, City Administrator By: 42-6006605 Mary J. Broderick Smith, Co-Trustee Tax Identification Number Dated: By: Kelly C. Broderick, Co-Trustee Tax Identification Number NORMA R. BRODERICK, INDIVIDUALLY Page 8 of 9 Norma R. Broderick Dated: EXHIBIT “A” Legal Description The Northwest Quarter of the Northwest Quarter (NW¼ NW¼) of Section 28, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa Except Parcel “A” of a Plat of Survey of the South Half of the Northwest Quarter of the Northwest Quarter (S½ NW¼ NW¼) in Section 28, Township 79 North, Range 26 West of the 5th P.M., Dallas County, Iowa as recorded in the office of the Dallas County Recorder dated July 18, 2007, Book 2007, Page 11136 Page 9 of 9 EXHIBIT “B” ADDITIONAL PROVISIONS/CONDITIONS Edward J. Broderick Family Trust and Norma R. Broderick-2016 sale 1. Sellers will be granted ingress and egress as established in an ingress/egress easement acceptable to the Buyer, allowing access across the property purchased herein, after closing, to Seller’s 20 acre Parcels legally described as “The West Half of Southwest Quarter of Northeast Quarter (W½ SW¼ NE ¼) of Section 28, Township 79 North, Range 26 West of the 5th P.M. in Dallas County, Iowa” which shall terminate on the earlier of the completion of a road currently contemplated to be named sunset drive, or the submission of a plat to the City on the property described above. 2. Sellers shall retain rights to grain harvested by Seller’s tenant for crop year 2016 on the property being sold herein. 3. The purchase is conditioned on Seller executing a developers agreement, in a form acceptable to Buyer, concerning Sellers’ agreement to reimburse the City for 50% of the costs of a street, storm sewer, water main and associated improvements to be constructed in the future adjacent to Sellers’ property legally described as “The West Half of Southwest Quarter of Northeast Quarter (W½ SW¼ NE ¼) of Section 28, Township 79 North, Range 26 West of the 5th P.M. in Dallas County, Iowa” which shall be recorded on the property and constitute a lien until paid.