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Home My WebLink About2008-10-06-Resolutions 08-224_Clayton Commons - Property SaleTHE CITY OF WAUKEE,IOWA RESOLUTION 08-224 APPROVING A PROPOSAL TO DISPOSE OF THE CITY'S INTEREST IN REAL PROPERTY BY SALE TO THE WAillffiE COMMUNITY SCHOOL DISTRICT IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA WHEREAS,the Waukee Community School District executed an Offer to Purchase and Developer's Agreement and submitted it to the City of Waukee on September 16,2008 for property legally described in the offer to purchase attached hereto at Exhibit A and incorporated herein by this reference;AND WHEREAS,under the offer,the Waukee Conunuuity School District will purchase the property from the City for the sum of $570,000 and other consideration specified in the attached offer to purchase and separate developers agreement;AND WHEREAS,the City has determined it is in the best interest of the City to dispose of the property by sale to the Waukee Community School District. BE IT THEREFORE RESOLVED by the City Council of the City of Waukee,after a public hearing held on October 6,2008,notice of which was published as required by law,the City Council does hereby approve and accept the offer to purchase attached hereto as exhibit A and the Mayor is authorized to execute the same on behalf of the City.The Mayor is further authorized to execute a deed,groundwater hazard statement and declaration of value to effectuate closing in accordance with the agreement.The City Attorney and City Administrator are authorized to take such actions as are necessary to effectuate closing in accordance with the terms of the agreement upon the Buyer's fulfillment of its obligations pursuant to said agreement. Passed by the City Council of the City of Waukee,Iowa,and approved this the 6th day of October,2008. Attest: ROLL CALL VOTE Donald L.Bailey,Jr. Casey L.Harvey C.Isaiah McGee Darlene Stanton Mike Watts AYE X X X X NAY ABSENT ABSTAIN X E:")Chi bi+A Prepared by StevenP.Brick OFFER TO BUY REAL ESTATE AND ACCEPTANCE TO:City of Waukee,Iowa (SELLER) The undersigned BUYER hereby offers to buy and the undersigned SELLER by its acceptance agrees to sell the real property consisting of approximately 17.5 acres,more or less, situated in Waukee,Iowa,described on attached Exhibit A,subject to any easements of record for public utilities or roads,any zoning restrictions,restrictive covenants and mineral reservations of record,if any,herein referred to as the "Property,"provided BUYER,on possession,provided Buyer shall use the Property for a public school,upon the following terms and conditions: 1.PURCHASE PRICE.The Purchase Price shall be $570,000.00 (Five Hundred Seventy Thousand Dollars)and the method of payment shall be as follows:$10,000 with this offer as earnest money to be held by SELLER or by SELLER'S attorney and delivered to the SELLER upon performance of SELLER'S obligations and satisfaction of BUYER'S contingencies,if any; and the balance of the Purchase Price,shall be payable in cash at closing. 2.REAL ESTATE TAXES.SELLER shall pay all real estate taxes prorated to the date of possession and any unpaid real estate taxes payable in prior years.BUYER shall pay all subsequent real estate taxes.Unless otherwise provided in this Agreement,at closing SELLER shall pay BUYER,or BUYER shall be given a credit for,taxes from the first day of July prior to possession to the date of possession based upon the last known actual net real estate taxes payable according to public records,if any taxes have accrued or will payable following possession by Buyer,and then,not to exceed an taxes that will be payable following possession by buyer.However,if such taxes are based upon a partial assessment of the present property improvements or a changed tax classification as of the date of possession,such pro-ration shall be based on the current levy rate,assessed value,legislative tax rollbacks and real estate tax exemptions that will actually be applicable as shown by the assessor's records on the date of possession, 3.SPECIAL ASSESSMENTS A.SELLER shall pay in full at time of closing all special assessments which are a lien on the Property as of the date of acceptance of this offer 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. B.BUYER shall pay all other special assessments or installments not payable by SELLER. 4.RISK OF LOSS AND INSURANCE.SELLER shall bear the risk of loss or damage to the Property prior to closing or possession,whichever first.occurs.SELLER agrees to maintain 1 existing insurance and BUYER may purchase additional insurance.In the event of substantial damage or destruction prior to closing,tbis Agreement shall be null and void;provided, however,BUYER shall have the option to complete the closing and receive insurance proceeds regardless of the extent of damages.The property shall be deemed substantially damaged or destroyed if it cannot be restored to its present condition on or before the closing date. 5.POSSESSION AND CLOSlNG.If BUYER timely perform all obligations,possession of the Property shall be delivered to Buyer on November 1,2008,and any adjustments of rent, insurance,interest and all charges attributable to the SELLER'possession shall be made as of the date of possession subject to the remainder of the farm tenancy which shall be terminated on December 1,2008 with no adjustments for rent.Closing shall occur after the approval of title by BUYER and vacation of the Property by SELLER,subj ect only to the farm tenancy,but prior to possession by BUYER.SELLER agrees to permit BUYER to inspect the Property within 24 hours prior to closing to assure that the premises are in the condition required by this Agreement. If possession is given on a day other than closing,the parties shall make a separate agreement with adjustments as of the date of possession.This transaction shall be considered closed upon the delivery of the title transfer documents to BUYER and receipt of all funds then due at closing from BUYER under the Agreement. 6.FIXTURES.N/A. 7.CONDITION OF PROPERTY.The property is being sold to buyer "AS IS",and SELLER makes no warranties,expressed or implied,as to the condition of the property.Within 30 days after the acceptance of tbis Agreement,BUYER may,at their sole expense,have the property inspected by a person or persons of their choice to determine if there are any structural, mechanical,plumbing,electrical,environmental,or other deficiencies.Witbin this same period, the BUYER may notify in writing the SELLER of any deficiency.The SELLER shall immediately notify the BUYER in writing of what steps,if any,the SELLER will take to correct 'any deficiencies before closing.The BUYER shall then immediately in writing notify the SELLER that (1)such steps are acceptable,in which case this Agreement,as so modified,shall be binding upon all parties;or (2)that such steps are not acceptable,in which case this Agreement shall be null and void,and any earnest money shall be returned to BUYER. 8.ABSTRACT AND TITLE.SELLER,at their expense,shall promptly obtain an abstract of title to the Property continued through the date of acceptance of this Agreement, _--=-_--=--,--:--:--:--:-_~'and deliver it to BUYER'S attorney for examination.It shall show marketable 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 SELLER'S inability to provide marketable title,tbis Agreement shall continue in force and effect until either party rescinds the Agreement after giving ten days written notice to the other party.The abstract shall become the property of BUYER when the Purchase Price is paid in full.SELLER shall pay the costs of any additional abstracting and title work due to any act or omission of SELLER,including transfers by or the death of SELLER or their assignees.Unless stricken,the abstract shall be obtained from an abstracter qualified by the Guaranty Division of the Iowa Housing Finance Authority. 2 9.SURVEY.Buyer may,prior to closing,shall have the property surveyed and certified by a registered land surveyor.If the survey shows an encroachment on the Property or if any improvements located on the Property encroach on land of others,the encroachments shall be treated as a title defect. 10.ENVIRONMENTAL MATTERS. A.SELLER warrants that the only environmental issues KNOWN to SELLER are those set forth on the GROUND WATER HAZARD STATEMENT received by SELLER from the prior owner,a copy of which is available to BUYER upon request.SELLER shall also provide BUYER with a properly executed GROUNDWATER HAZARD STATElVIENT showing no wells,solid waste disposal sites,hazardous wastes and underground storage tanks on the Property except those previously identified by the prior owner referenced above. B.BUYER may at its expense,within 30 days after the date of acceptance,obtain a report from a qualified engineer or other person qualified to analyze the existence or nature of any hazardous materials,substances,conditions or wastes located on the Property.In the event any hazardous materials,substances,conditions or wastes are discovered on the Property, BUYER shall have the option to cancel this transaction and refund to BUYER all earnest money paid and declare this Agreement null and void.The expense of any inspection shall be paid by BUYER. 11.DEED.Upon payment of the Purchase Price,SELLER shall convey the Property to BUYER by general warranty deed,free and clear of all lien and encumbrances except and subject to any easements of record for public utilities or roads,any zoning restrictions,restrictive covenants and mineral reservations of record,except as provided in this Agreement.The deed shall also provide a restriction requiring the use of the property by buyer as a public school and further prohibit Buyer's sale or lease of the property to another which shall continue and extend through the issuance of a certificate of occupancy by Seller to Buyer associated with the construction and use by Buyer of a public school in compliance with all Federal,State and Local laws and regulations.In the event of a violation of this restriction,the property shall seller shall have an option to repurchase to property upon payment to the Buyer of $570,000.00 (the original purchase price).General warranties of the title shall extend to the time of delivery of the deed excepting liens and encumbrances suffered or permitted by BUYER. 12.JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE.N/A. 13.JOINDER BY SELLER'S SPOUSE.N/A. 14.USE OF PURCHASE PRICE.At time of settlement,funds of the Purchase Price may be used to pay taxes and other liens and to acquire outstanding interests,if any,of others. 15.APPROVAL OF COURT.N/A. 16.RElVIEDIES OF THE PARTIES. A.If BUYER fails to timely perform this Agreement,SELLER may forfeit it as provided in the Iowa Code (Chapter 656),and all payments made shall be forfeited to Seller including but 3 not limited to earnest money paid or otherwise held in connection with this agreement;or,at SELLER'S option,upon thirty days written notice of intention to accelerate the payment of the entire balance because of BUYER'S default (during which thirty days the default is not corrected),SELLER may declare the entire balance immediately due and payable.Thereafter this Agreement may be foreclosed in equity and the Court may appoint a receiver. B.If SELLER fails to timely perform this Agreement,BUYER has the right to have all payments made returned to it. C.BUYER and SELLER are also entitled to utilize any and all other remedies or actions at law or in equity available to them,and the prevailing parties shall be entitled to obtain judgment for costs and attorney fees. 17.NOTICE.Any notice under this Agreement shall be in writing and be deemed served when it is delivered by personal delivery or mailed by certified mail,addressed to the parties at the addresses given below. 18.GENERAL PROVISIONS.In the performance of each part of this Agreement,time shall be of the essence.Failure to promptly assert rights herein shall not,however,be a waiver of such rights or a waiver of any existing or subsequent default.This Agreement shall apply to and bind the successors in interest of the parties.This Agreement shall survive the closing.This Agreement contains the entire agreement of the parties and shall not be amended except by a written instrument duly signed by SELLER and BUYER.Paragraph headings are for convenience of reference and shall not limit or affect the meaning of this Agreement.Words and phrases herein shall be construed as in the singular or plural number,and as masculine,feminine or neuter gender according to the context. 19.NO REAL ESTATE AGENT OR BROKER.Neither party has used the service of a real estate agent or broker in connection with this transaction. 20.BUYER'S ADDITIONAL OBLIGATIONS.Notwithstanding any other provision in this agreement,BUYER shall: A.Install sidewalks and bike trails on the property in conjunction with the Buyer's development of the same,as may be required by the city in its sole discretion. B.Comply with all requirements imposed under federal,state and local law,rule or policy in conjunction with Buyer's development of the property,including but not limited to those requirements of the city imposed as part of Zoning,Site plan and Plat approval. C.Execute a developer's agreement,acceptable to the City in its sole discretion, securing payment for initial public improvements contemplated by the parties at this time. D.These provisions of this paragraph 20 shall survive closing and shall not be considered merged or otherwise effected by the issuance of a deed to Buyer by the City. 21.SELLERS ADDITIONAL OBLIGATION Seller shall fill in the well located on the property west of the house with sand and top soil in accordance with DNR or other 4 regulatory requirements prior to closing.Any and all other underground items or matters on the property shall be the responsibility of Buyer. 22.ACCEPTANCE.When accepted,this Agreement shall become a binding contract.If not accepted and delivered to BUYER on or before the eighteenth day of October 2008,this Agreement shall be null and void and all payments made shall be returned immediately to BUYER.If accepted by SELLER at a later date and acceptance is satisfied in writing,then this contract shall be valid and binding. Dated:__.LIi~~I--/'12Q1y),-,O.L!.Et:L-_ BUYER: Waukee ~'l'\ffi By:----U~~~~0~~~-- Its:_-J'-.L.:::...<:..L.!!.="'---'_ Address:560 S.E.University Waukee,IA 50263 Telephone:(SIS)987-5161 Accepted by SELLER By:1-l~~i-.~~".4-~----- Its:-I.L--'-"'''¥''P-----'-------- Address: City Hall 230 W.Hickman Road Waukee,IA 50263 Telephone:(515)978-4522 5 EXHIBIT A LEGAL DESCRll'TION PARCEL B A PART OF THE SOUTHWEST 14 OF SECTION 33,TOWNSHIP 79 NORTH,RANGE 26 WEST OF THE 5TH PM,IN THE CITY OF WAUKEE,DALLAS COUNTY,IOWA AND DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SECTION 5,TOWNSHIP 78 NORTH,RANGE 26 WEST OF SAID 5TH PM;THENCE NORTH 1°02'12"WEST, 1513.54 FEET;THENCE SOUTH 89°48'43"WEST,70.31 FEET TO THE POINT OF BEGINNING;THENCE CONTINUING SOUTH 89°48'43"WEST,818.07 FEET; THENCE NORTH 0°11 '17"WEST,910.18 FEET;THENCE NORTH EASTERLY ALONG A CURVE CONCAVE SOUTHEASTERLY WHOSE RADIUS IS 25.00 FEET,WHOSE ARC LEGNTH IS 39.27 FEET AND WHOSE CHORD BEARS NORTH 44°48'43"EAST,35.36 FEET;THENCE NORTH 89°48'43"EAST,762.91 FEET;THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE SOUTHWESTERLY WHOSE RADIUS IS 25.00 FEET,WHOSE ARC LEGNTH IS 39.13 FEET AND WHOSE CHORD BEARS SOUTH 45°21 '02"EAST,35.25 FEET; THENCE SOUTH 0°30'47"EAST,910.34 FEET TO THE POINT OF BEGINNING AND CONTAINING 17.50 ACRES(762,300 SF) PROPERTY SUBJECT TO ANY AND ALL EASEMENTS OF RECORD. 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I-e THE CITY OF WAUKEE,IOWA RESOLUTION 08-224 APPROVING A PROPOSAL TO DISPOSE OF THE CITY'S INTEREST IN REAL PROPERTY BY SALE TO THE WAillffiE COMMUNITY SCHOOL DISTRICT IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA WHEREAS,the Waukee Community School District executed an Offer to Purchase and Developer's Agreement and submitted it to the City of Waukee on September 16,2008 for property legally described in the offer to purchase attached hereto at Exhibit A and incorporated herein by this reference;AND WHEREAS,under the offer,the Waukee Conunuuity School District will purchase the property from the City for the sum of $570,000 and other consideration specified in the attached offer to purchase and separate developers agreement;AND WHEREAS,the City has determined it is in the best interest of the City to dispose of the property by sale to the Waukee Community School District. BE IT THEREFORE RESOLVED by the City Council of the City of Waukee,after a public hearing held on October 6,2008,notice of which was published as required by law,the City Council does hereby approve and accept the offer to purchase attached hereto as exhibit A and the Mayor is authorized to execute the same on behalf of the City.The Mayor is further authorized to execute a deed,groundwater hazard statement and declaration of value to effectuate closing in accordance with the agreement.The City Attorney and City Administrator are authorized to take such actions as are necessary to effectuate closing in accordance with the terms of the agreement upon the Buyer's fulfillment of its obligations pursuant to said agreement. Passed by the City Council of the City of Waukee,Iowa,and approved this the 6th day of October,2008. Attest: ROLL CALL VOTE Donald L.Bailey,Jr. Casey L.Harvey C.Isaiah McGee Darlene Stanton Mike Watts AYE X X X X NAY ABSENT ABSTAIN X E:")Chi bi+A Prepared by StevenP.Brick OFFER TO BUY REAL ESTATE AND ACCEPTANCE TO:City of Waukee,Iowa (SELLER) The undersigned BUYER hereby offers to buy and the undersigned SELLER by its acceptance agrees to sell the real property consisting of approximately 17.5 acres,more or less, situated in Waukee,Iowa,described on attached Exhibit A,subject to any easements of record for public utilities or roads,any zoning restrictions,restrictive covenants and mineral reservations of record,if any,herein referred to as the "Property,"provided BUYER,on possession,provided Buyer shall use the Property for a public school,upon the following terms and conditions: 1.PURCHASE PRICE.The Purchase Price shall be $570,000.00 (Five Hundred Seventy Thousand Dollars)and the method of payment shall be as follows:$10,000 with this offer as earnest money to be held by SELLER or by SELLER'S attorney and delivered to the SELLER upon performance of SELLER'S obligations and satisfaction of BUYER'S contingencies,if any; and the balance of the Purchase Price,shall be payable in cash at closing. 2.REAL ESTATE TAXES.SELLER shall pay all real estate taxes prorated to the date of possession and any unpaid real estate taxes payable in prior years.BUYER shall pay all subsequent real estate taxes.Unless otherwise provided in this Agreement,at closing SELLER shall pay BUYER,or BUYER shall be given a credit for,taxes from the first day of July prior to possession to the date of possession based upon the last known actual net real estate taxes payable according to public records,if any taxes have accrued or will payable following possession by Buyer,and then,not to exceed an taxes that will be payable following possession by buyer.However,if such taxes are based upon a partial assessment of the present property improvements or a changed tax classification as of the date of possession,such pro-ration shall be based on the current levy rate,assessed value,legislative tax rollbacks and real estate tax exemptions that will actually be applicable as shown by the assessor's records on the date of possession, 3.SPECIAL ASSESSMENTS A.SELLER shall pay in full at time of closing all special assessments which are a lien on the Property as of the date of acceptance of this offer 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. B.BUYER shall pay all other special assessments or installments not payable by SELLER. 4.RISK OF LOSS AND INSURANCE.SELLER shall bear the risk of loss or damage to the Property prior to closing or possession,whichever first.occurs.SELLER agrees to maintain 1 existing insurance and BUYER may purchase additional insurance.In the event of substantial damage or destruction prior to closing,tbis Agreement shall be null and void;provided, however,BUYER shall have the option to complete the closing and receive insurance proceeds regardless of the extent of damages.The property shall be deemed substantially damaged or destroyed if it cannot be restored to its present condition on or before the closing date. 5.POSSESSION AND CLOSlNG.If BUYER timely perform all obligations,possession of the Property shall be delivered to Buyer on November 1,2008,and any adjustments of rent, insurance,interest and all charges attributable to the SELLER'possession shall be made as of the date of possession subject to the remainder of the farm tenancy which shall be terminated on December 1,2008 with no adjustments for rent.Closing shall occur after the approval of title by BUYER and vacation of the Property by SELLER,subj ect only to the farm tenancy,but prior to possession by BUYER.SELLER agrees to permit BUYER to inspect the Property within 24 hours prior to closing to assure that the premises are in the condition required by this Agreement. If possession is given on a day other than closing,the parties shall make a separate agreement with adjustments as of the date of possession.This transaction shall be considered closed upon the delivery of the title transfer documents to BUYER and receipt of all funds then due at closing from BUYER under the Agreement. 6.FIXTURES.N/A. 7.CONDITION OF PROPERTY.The property is being sold to buyer "AS IS",and SELLER makes no warranties,expressed or implied,as to the condition of the property.Within 30 days after the acceptance of tbis Agreement,BUYER may,at their sole expense,have the property inspected by a person or persons of their choice to determine if there are any structural, mechanical,plumbing,electrical,environmental,or other deficiencies.Witbin this same period, the BUYER may notify in writing the SELLER of any deficiency.The SELLER shall immediately notify the BUYER in writing of what steps,if any,the SELLER will take to correct 'any deficiencies before closing.The BUYER shall then immediately in writing notify the SELLER that (1)such steps are acceptable,in which case this Agreement,as so modified,shall be binding upon all parties;or (2)that such steps are not acceptable,in which case this Agreement shall be null and void,and any earnest money shall be returned to BUYER. 8.ABSTRACT AND TITLE.SELLER,at their expense,shall promptly obtain an abstract of title to the Property continued through the date of acceptance of this Agreement, _--=-_--=--,--:--:--:--:-_~'and deliver it to BUYER'S attorney for examination.It shall show marketable 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 SELLER'S inability to provide marketable title,tbis Agreement shall continue in force and effect until either party rescinds the Agreement after giving ten days written notice to the other party.The abstract shall become the property of BUYER when the Purchase Price is paid in full.SELLER shall pay the costs of any additional abstracting and title work due to any act or omission of SELLER,including transfers by or the death of SELLER or their assignees.Unless stricken,the abstract shall be obtained from an abstracter qualified by the Guaranty Division of the Iowa Housing Finance Authority. 2 9.SURVEY.Buyer may,prior to closing,shall have the property surveyed and certified by a registered land surveyor.If the survey shows an encroachment on the Property or if any improvements located on the Property encroach on land of others,the encroachments shall be treated as a title defect. 10.ENVIRONMENTAL MATTERS. A.SELLER warrants that the only environmental issues KNOWN to SELLER are those set forth on the GROUND WATER HAZARD STATEMENT received by SELLER from the prior owner,a copy of which is available to BUYER upon request.SELLER shall also provide BUYER with a properly executed GROUNDWATER HAZARD STATElVIENT showing no wells,solid waste disposal sites,hazardous wastes and underground storage tanks on the Property except those previously identified by the prior owner referenced above. B.BUYER may at its expense,within 30 days after the date of acceptance,obtain a report from a qualified engineer or other person qualified to analyze the existence or nature of any hazardous materials,substances,conditions or wastes located on the Property.In the event any hazardous materials,substances,conditions or wastes are discovered on the Property, BUYER shall have the option to cancel this transaction and refund to BUYER all earnest money paid and declare this Agreement null and void.The expense of any inspection shall be paid by BUYER. 11.DEED.Upon payment of the Purchase Price,SELLER shall convey the Property to BUYER by general warranty deed,free and clear of all lien and encumbrances except and subject to any easements of record for public utilities or roads,any zoning restrictions,restrictive covenants and mineral reservations of record,except as provided in this Agreement.The deed shall also provide a restriction requiring the use of the property by buyer as a public school and further prohibit Buyer's sale or lease of the property to another which shall continue and extend through the issuance of a certificate of occupancy by Seller to Buyer associated with the construction and use by Buyer of a public school in compliance with all Federal,State and Local laws and regulations.In the event of a violation of this restriction,the property shall seller shall have an option to repurchase to property upon payment to the Buyer of $570,000.00 (the original purchase price).General warranties of the title shall extend to the time of delivery of the deed excepting liens and encumbrances suffered or permitted by BUYER. 12.JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE.N/A. 13.JOINDER BY SELLER'S SPOUSE.N/A. 14.USE OF PURCHASE PRICE.At time of settlement,funds of the Purchase Price may be used to pay taxes and other liens and to acquire outstanding interests,if any,of others. 15.APPROVAL OF COURT.N/A. 16.RElVIEDIES OF THE PARTIES. A.If BUYER fails to timely perform this Agreement,SELLER may forfeit it as provided in the Iowa Code (Chapter 656),and all payments made shall be forfeited to Seller including but 3 not limited to earnest money paid or otherwise held in connection with this agreement;or,at SELLER'S option,upon thirty days written notice of intention to accelerate the payment of the entire balance because of BUYER'S default (during which thirty days the default is not corrected),SELLER may declare the entire balance immediately due and payable.Thereafter this Agreement may be foreclosed in equity and the Court may appoint a receiver. B.If SELLER fails to timely perform this Agreement,BUYER has the right to have all payments made returned to it. C.BUYER and SELLER are also entitled to utilize any and all other remedies or actions at law or in equity available to them,and the prevailing parties shall be entitled to obtain judgment for costs and attorney fees. 17.NOTICE.Any notice under this Agreement shall be in writing and be deemed served when it is delivered by personal delivery or mailed by certified mail,addressed to the parties at the addresses given below. 18.GENERAL PROVISIONS.In the performance of each part of this Agreement,time shall be of the essence.Failure to promptly assert rights herein shall not,however,be a waiver of such rights or a waiver of any existing or subsequent default.This Agreement shall apply to and bind the successors in interest of the parties.This Agreement shall survive the closing.This Agreement contains the entire agreement of the parties and shall not be amended except by a written instrument duly signed by SELLER and BUYER.Paragraph headings are for convenience of reference and shall not limit or affect the meaning of this Agreement.Words and phrases herein shall be construed as in the singular or plural number,and as masculine,feminine or neuter gender according to the context. 19.NO REAL ESTATE AGENT OR BROKER.Neither party has used the service of a real estate agent or broker in connection with this transaction. 20.BUYER'S ADDITIONAL OBLIGATIONS.Notwithstanding any other provision in this agreement,BUYER shall: A.Install sidewalks and bike trails on the property in conjunction with the Buyer's development of the same,as may be required by the city in its sole discretion. B.Comply with all requirements imposed under federal,state and local law,rule or policy in conjunction with Buyer's development of the property,including but not limited to those requirements of the city imposed as part of Zoning,Site plan and Plat approval. C.Execute a developer's agreement,acceptable to the City in its sole discretion, securing payment for initial public improvements contemplated by the parties at this time. D.These provisions of this paragraph 20 shall survive closing and shall not be considered merged or otherwise effected by the issuance of a deed to Buyer by the City. 21.SELLERS ADDITIONAL OBLIGATION Seller shall fill in the well located on the property west of the house with sand and top soil in accordance with DNR or other 4 regulatory requirements prior to closing.Any and all other underground items or matters on the property shall be the responsibility of Buyer. 22.ACCEPTANCE.When accepted,this Agreement shall become a binding contract.If not accepted and delivered to BUYER on or before the eighteenth day of October 2008,this Agreement shall be null and void and all payments made shall be returned immediately to BUYER.If accepted by SELLER at a later date and acceptance is satisfied in writing,then this contract shall be valid and binding. Dated:__.LIi~~I--/'12Q1y),-,O.L!.Et:L-_ BUYER: Waukee ~'l'\ffi By:----U~~~~0~~~-- Its:_-J'-.L.:::...<:..L.!!.="'---'_ Address:560 S.E.University Waukee,IA 50263 Telephone:(SIS)987-5161 Accepted by SELLER By:1-l~~i-.~~".4-~----- Its:-I.L--'-"'''¥''P-----'-------- Address: City Hall 230 W.Hickman Road Waukee,IA 50263 Telephone:(515)978-4522 5 EXHIBIT A LEGAL DESCRll'TION PARCEL B A PART OF THE SOUTHWEST 14 OF SECTION 33,TOWNSHIP 79 NORTH,RANGE 26 WEST OF THE 5TH PM,IN THE CITY OF WAUKEE,DALLAS COUNTY,IOWA AND DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SECTION 5,TOWNSHIP 78 NORTH,RANGE 26 WEST OF SAID 5TH PM;THENCE NORTH 1°02'12"WEST, 1513.54 FEET;THENCE SOUTH 89°48'43"WEST,70.31 FEET TO THE POINT OF BEGINNING;THENCE CONTINUING SOUTH 89°48'43"WEST,818.07 FEET; THENCE NORTH 0°11 '17"WEST,910.18 FEET;THENCE NORTH EASTERLY ALONG A CURVE CONCAVE SOUTHEASTERLY WHOSE RADIUS IS 25.00 FEET,WHOSE ARC LEGNTH IS 39.27 FEET AND WHOSE CHORD BEARS NORTH 44°48'43"EAST,35.36 FEET;THENCE NORTH 89°48'43"EAST,762.91 FEET;THENCE SOUTHEASTERLY ALONG A CURVE CONCAVE SOUTHWESTERLY WHOSE RADIUS IS 25.00 FEET,WHOSE ARC LEGNTH IS 39.13 FEET AND WHOSE CHORD BEARS SOUTH 45°21 '02"EAST,35.25 FEET; THENCE SOUTH 0°30'47"EAST,910.34 FEET TO THE POINT OF BEGINNING AND CONTAINING 17.50 ACRES(762,300 SF) PROPERTY SUBJECT TO ANY AND ALL EASEMENTS OF RECORD. 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