HomeMy WebLinkAbout2016-05-16-J05 Purchase Agreement - McCarthy
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THE CITY OF WAUKEE, IOWA
RESOLUTION 16-
RESOLUTION APPROVING A REAL ESTATE PURCHASE AGREEMENT WITH
WILLIAM J. AND JOANNA M. MCCARTHY
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 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 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
JOANNA M. McCARTHY, whose address for the purposes of this Agreement is 7660 Ashworth
Road, West Des Moines, IA 50266 (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
$1,560,000 (One Million Five Hundred Sixty 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
to the Purchase Price at Closing unless the terms of this Purchase Agreement require contrary
treatment.
Page 2 of 9
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 January 3, 2017 (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
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,
Page 3 of 9
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
the right to enter upon the Property to conduct the following tests, inspections and examination
of the Property as Buyer deems necessary.
Page 4 of 9
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.
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
Page 5 of 9
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 Daniel L. Manning, 317 6th Avenue, Des Moines, IA 50309.
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
entitled to specific performance of this Agreement; or (c) any other remedies available at
law or equity.
Page 6 of 9
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
reimbursement by the defaulting party for any of the prevailing party’s reasonable attorney fees,
court costs, and other associated costs of enforcement.
Page 7 of 9
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.
SELLER: BUYER:
JOANNA M. McCARTHY THE CITY OF WAUKEE, IOWA,
an Iowa municipality
By:
Joanna M. McCarthy Tim Moerman, City Administrator
42-6006605
Tax Identification Number Tax Identification Number
Dated: Dated:
Page 8 of 9
EXHIBIT “A”
LEGAL DESCRIPTION
An undivided ½ interest in:
The Southwest Quarter of the Northwest Quarter (SW¼ NW¼) of
Section 28, Township 79 North, Range 26 West of the 5th P.M.,
Dallas County, Iowa
Page 9 of 9
EXHIBIT “B”
ADDITIONAL PROVISIONS/CONDITIONS