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HomeMy WebLinkAboutRESOLUTION NO. 2016-65 RESOLUTION NO. 2016-65 RESOLUTION APPROVING AN EASEMENT PURCHASE AGREEMENT BETWEEN THE CITY OF FAIRFAX AND WILLIAM E. BOLAND, JR. AND VERNA BOLAND FOR VACANT GROUND LOCATED NORTHERLY OF 100 W. CEMETERY ROAD WHEREAS, City staff has negotiated an Easement Purchase Agreement (the "Agreement') with William E. Boland, JR. and Verna Boland, husband and wife, for certain vacant land located northerly of 100 W, Cemetery Road (Tax Identification Numbers 200927600100000 and 200920100100000) for$1,431.00 and other valuable consideration contingent on Council approval; WHEREAS, the City intends on using the property for the purpose of installation and maintenance of a sanitary sewer main line improvement; and WHEREAS, the City had previously approved a similar Easement Purchase Agreement from the Boland's on May 31, 2016 by Resolution No. 2016-49 for this same Sanitary Sewer Easement; and WHEREAS, the City recognizes that said Easement Purchase Agreement approved May 31, 2016 by Resolution No, 2016-49 is no longer valid, and hereby declares said Purchase Easement Agreement approved on May 31, 2016 by Resolution No. 2016-49 null and void; and WHEREAS, this Easement Purchase Agreement should be approved. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAIRFAX, IOWA, THAT: 1. The Easement Purchase Agreement approved on May 31, 2016 by Resolution No. 2016- 49 is null and void. 2. The Easement Purchase Agreement, attached hereto and incorporated herein by reference, is hereby approved and supersedes Resolution No. 2016-49, dated May 31, 2016. 3. Crop Damage Agreement for 2017 and 2018, attached hereto and incorporated herein by reference, is approved. 4. The Mayor is authorized to execute all documents necessary to acquire said property in accordance with the Agreement. Resolution No. E ; Page 2 Passed and approved this 121 day of July, 2016. Council Member Beer moved the adoption of the Resolution; seconded by Council Member Volk. AYES: Beer, Daly, and Volk NAYS: None ABSENT: Kell and Wainwright Burnell G. Frieden, Mayor ATTEST: f + A s Cy this Stimson, City Clerk/Treasurer ± ► o Q a 'r ~r 4Aip EASEMENT PURCHASE AGREEMENT THIS EASEMENT PURCHASE AGREEMENT ("Agreement") is made and entered into as of the date last written below ("Effective Date') between William E. Boland,Jr. and Verna Boland, husband and wife ("Seller"}, and City of Fairfax, an Iowa municipal corporation ("Buyers'). In consideration of the covenants and agreements contained herein,the parties agree as follows: 1. PREMISES. Seller shall sell to Buyer and Buyer shall purchase from Seller an easement for the purpose of a sanitary sewer (the "Easement") all as more particularly described on Exhibit"A", attached hereto and incorporated herein by reference. The Easement is being conveyed free of liens and encumbrances but subject to zoning and other ordinances, covenants of record and easements of record. 2. PURCHASE PRICE AND MANNER OF PAYMENT. The total purchase price ("Purchase Prlcd) to be paid for the Easement is ONE THOUSAND FOUR HUNDRED THIRTY ONE DOLLARS AND NO/100 ($1,431.00). The Purchase Price shall be paid in cash or certified funds at Closing. 3. CONTINGENCIES. The Buyer's obligations under this Agreement are contingent upon the satisfaction of the following items: A. Approval of the Acquisition Plat(s) of the Easement, by Buyer and the County of Linn in sole discretion of both parties; B. Buyer securing binding written commitments for the sale of real property adjoining, adjacent or in near proximity to the Easement all For the purpose of construction of a sanitary sewer main extension project across said adjoining real property. The amount and extent of the adjoining, adjacent or near in proximity real property shall be determined by Buyer in its sole and absolute discretion. C. Approval of this Agreement by the City Council for the City of Fairfax. Promptly upon execution of this Agreement the Buyer shall,at its sole cost and expense, proceed diligently and in good faith to satisfy the conditions set forth above and to release such conditions or to have them satisfied on or before "Closing" (as hereinafter defined) except as otherwise noted below. In the event the above contingencies have not been released or satisfied bythe Closing,then if it is likely that the conditions can be satisfied within a relatively short period thereafter,the Buyer may extend the contingency period for up to ninety (90) additional days by giving written notice to the Seller. If Buyer does not provide Seller with a release or satisfaction of the contingencies on or before the Closing Buyer's Initials: 1 a Seller's Initials: .. 1- J. Date or a permitted extension, then this Agreement shall become null and void and all earnest money shall promptly be returned to Buyer. 4. REAL ESTATE TAXES. Seller shall pay all real estate taxes that are due and payable as of the date of Closing and all real estate taxes that come due in the future. S. ABSTRACT AND TITLE. Seller shall obtain an abstract of title to the Real Estate, continued through thirty(30) days of the Effective Date and deliver it to Buyer's attorney for examination. The abstract.of title shall show marketable title in Seller in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. The abstract shall further show no covenants, restrictions or easements of record that prevent the Buyer from installing a sanitary sewer service line. Seller shall make every reasonable effort to promptly perfect title. If closing is delayed due to Seller's inability to provide marketable title,this Agreement shall continue in force and effect until either party rescinds the Agreement after giving ten days written notice to the other party. Seller shall pay the costs of any additional abstracting and title work due to any act or omission of Seller. The abstract shall be obtained from an abstracter qualified by the Title Guaranty Division of the Iowa Housing Finance Authority. Nothing in this paragraph shall relieve Seller from the obligation to convey the Easement to Buyer at the time of the Closing Date. Buyer shall reimburse seller for the cost of the extension of the abstract of title at the time of closing. 6. POSSESSION AND CLOSING DATE. The closing on this transaction and transfer of possession of the Real Estate shall occur 2016 ("Closing Da td' or "Clasen,#') subject to Buyer's and Seller's full performance of their respective obligations under this Easement Purchase Agreement and the satisfaction of any conditions herein. Any adjustments of taxes, interest and all charges attributable to the Seller's possession shall be made as of the date of Closing. Closing shall beat the time and location selected by Buyer, or at such other time and place as the Buyer and Seller may agree. This transaction shall be considered closed upon the delivery of Easement Agreement to Buyer, and Seller's receipt of all funds then due at closing from Buyer under this Agreement. 7. NOTICE. Notices required, permitted, or otherwise given under this Agreement shall be in writing and shall be deemed effective if given to the individuals named below. Notice shall be deemed given upon receipt of personal service, or upon mailing by first class mail, certified with restricted delivery, return receipt requested,to the address provided below: To Buyer: To Seller; City of Fairfax William and Verna Attn: Mayor Frieden Boland S25 Vanderbilt Street 9900 W. Cemetery Rd P.O. Box 337 Fairfax, Iowa Fairfax, Iowa 52228 52228 Buyer's Initials 2 Seller's Initials:1-4—Z"; r With a cony to: Simmons Perrine Moyer Bergman PLC Attn: Matthew J. Hektoen 115 3rd Street SE, STE 1200 Cedar Rapids, Iowa 52401 8. BROKERAGE. Neither party has used the services of a real estate agent or broker in connection with this transaction. Each party agrees to indemnify and save harmless the other party from and against all claims, costs, liabilities and expense (including court costs and reasonable attorney's fees) incurred by the other party as a result of a breach of this representation,which shall survive closing. 9. STATEMENT AS TO LIENS. If Buyer intends to assume to take subject to a lien on the Real Estate, Seller shall furnish Buyer with a written statement prior to closing from the holder of such lien, showing the correct balance due. 10. REMEDIES OF THE PARTIES. In the event either party breaches this Agreement,the other party is entitled to utilize any and all remedies or actions at law or in equity available to them and shall be entitled to obtain a judgment for costs and attorney's fees as permitted bylaw. 11. GENERAL PROVISIONS. The following general provisions govern this Agreement: A. No waivers. The waiver by either party hereto of any condition or the breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of any other condition or of any subsequent breach of the same or of any other term, covenant, or condition herein contained. B. Time of Essence. Time is of the essence in this Agreement. C. Governing Law. This Agreement is made and executed under and in all respects to be governed and construed by the laws of the State of Iowa. D. Invalidity. If for any reason any term or provision of this Agreement shall be declared void and unenforceable by any court of law or equity it shall only affect such particular term or provision of this Agreement and the balance of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto. E. Complete Agreement. All understandings and agreements heretofore existing between the parties are merged into this Agreement that alone fully and completely expresses their agreement. This Agreement may be changed only in writing signed by both of the parties hereto and shall apply to and bind the Buyer's Initials: 3 Seller's Initials: �/ successors and assigns of each of the parties hereto and shall not merge with the deed delivered to Buyer at closing. F. Counterparts. This Agreement may be executed in a number of identical counterparts,which taken together, shall cause it to be collectively one Agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart with each party's signature. An electronically-transmitted copy of an executed counterpart this agreement shall be deemed an original. G. No Presumption Against Drafter. This Agreement has been freely negotiated by both parties. In any controversy, dispute, or contrast over the meaning, interpretation,validity, or enforceability of this Agreement or any of its terms or conditions, there shall be no inference, presumption or conclusion drawn whatsoever against either party by virtue of that party having drafted this Agreement or any portion thereof. 12. CERTIFICATION. Buyer and Seller each certify that they are not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National and Blocked Person" or any other banned or blocked person, entity, nation or transaction pursuant to any law, order,rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and are not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each party hereby agrees to defend,indemnify and hold harmless the other party from and against any and all claims, damages, losses, risks,liabilities and expenses (including attorney's fees and costs) arising from or related to my breach of the foregoing certification. 13. ACCEPTANCE. If this Agreement is not signed by Seller by at 5:00 p.m., this Agreement shall terminate without further action by the parties. 14. [INTENTIONALLY OMITTED] 15. CROP DAMAGE. Buyer agrees to (i) pay Seller one time (in 2017) for crop damages in the amount of 67% of the value of the crop planted on the Real Estate included in the Easement in 2017; and (ii) pay the Seller one time (in 2018) for crop damages in the amount of 33% of the value of the crop planted on the Real Estate included in the Easement in 2018. For purposes of this Section 20, the area to be used for calculated crop damage is 2.51 acres. [SIGNATURES ON FOLLOWING PAGEI Buyer's Initials: 4 Seller's Initials: Z/- M. ,q zw�dnww �G � �m c.xa uWnA 5 o ¢ ry Tim wgSZ % I ( it z� nz YN ja Ki ! 22 Wee G =i -0r»Y �� R rv �{a biz G � 4- V-7 l k y r F(� s E VWM 6 ko �H O� ippv� 1� k 0. S� "1'1K Z'b�i.ay v�w�m [moi I".6Qif w f I C= 's lyse r7-„r'Nz Pro1+aF�hume'eE- u :x. Gw_,, y w e C [ J .ozz,zz.wn - 5950-1S-s .o-I w'arEs o axon Cn - �tLLNW - f--i S i ...¢� II I � � I � � � dim°�? �l.y 5• usz 1 Ao r � � 1 Za x m W F Kana 6 r �Y a 213A Ne: xtJ "x 3 w'::aes: I w� 3 d9 S w'�'nno : • 36. YC1 C 1 II ti Y tj o � i w` �3A' 1c�tLlS- t- 4° rnu i Z?3-4 iw 2�'n It Q C r-sT ! s3 G o � koyei X.m� � o SELLERS: BUYER: CITY OF FAIRFAX By � m William E. Boland,Jr. Date: �' �" Date: Verna Boland Date: Buyer's lnitials•, 5 Seller's Initials: �� RECEIPT FOR ABSTRACTS DELIVERED TO: City of Fairfax Attn: Cynthia Stimson 3008 oth Street Court Fairfax, Iowa 52228 FROM: Matthew J. Hektoen Simmons Perrine Moyer Bergman PLC 1153 rd St. SE, Suite 1200 Cedar Rapids, IA 52401 LEGAL: NE '/4 NE '/4, EXCEPT THE NORTH 800 FEET OF THE EAST 550 FEET; AND THE NW '/4 NE '/4; AND THE NORTH I ACRE SW '/4 NE '/4; AND THE NE '/4 SE '/4 N W '/4; AND ALL THAT PART OF THE SE '/4 NE '/4 LYING NORTHERLY OF THE PUBLIC HIGHWAY ALL IN SECTION 9-82-7, LINN COUNTY, IOWA. EXCEPT THE PUBLIC HIGHWAY PROPERTY n/a ADDRESS: DATE: T _ / , 2017 RECEIVED BY ------------------------------------------------------- ------------------------------------------------------- Titleholders: William E. Boland, Jr. and Verna I. Boland Client: City of Fairfax Client/Matter No.: 122312-161403 SPMB Abstract No.: 17442 Abstract Co. No.: 1220 PTO 07-26-16 PLEASE SIGN AND DATE THIS RECEIPT AND RETURN IT. THANK YOU. COPY RECEIPT FOR ABSTRACTS—TWO PARTS DELIVERED TO• City of Fairfax Attn: Cynthia Stimson 300 80" Street Court Fairfax, Iowa 52228 FROM• Matthew J. Hektoen Simmons Perrine Moyer Bergman PLC 1153 rd St. SE, Suite 1200 Cedar Rapids, IA 52401 LEGAL: SEE ATTACHED LEGAL DESCRIPTION PROPERTY n/a ADDRESS: DATE: , 2017 RECEIVED BY Titleholders: William E. Boland, Jr. and Verna I. Boland Client: City of Fairfax Client/Matter No.: 122312-161403 SPMB Abstract No.: 17444—IN TWO PARTS Abstract Co. No.: 10259 PTO 07-27-16 PLEASE SIGN AND DATE THIS RECEIl'T AND RETURN IT. THANK YOU. f%439'"B2 "Y 'fza A B S T R A C T O F T I T L E to East L� SE 1-i Section 8 and the North 1� NW 1/ Section 9 all in 82-8, except that part of the NE 1� SE 1/ said Section 8 described as follows: Commencing at a steel pin located adjacent to the highway right of way at the NE corner NE 1/ SE 1/ said Section 8; thence South on the East Section line said Section 8, 80 feet; thence West 60 feet; thence North 80 feet; thence East 60 feet to the point of beginning; and SE 1� NE �i Section 8-82-8; and Lot B, Irregular Survey of the SE 1/ NW li Section 8-82-8; and Lot F, Irregular Survey of the NW 1/ SE 1/ Section 8-82-8; and Lot H, Irregular Survey of the SW 1/ SE 1/ Section 8-82-8; and Lot C, Irregular Survey of the SW 1/ NE 1n Section 8-82-8 except the East 168.0 feet of the South 310.0 feet thereof and also except Boland' s First Addition to Linn County, Iowa; and SW 1/ NW ­4 Section 9-82-8 excepting therefrom East 56 rods South 35 1/3 rods and further excepting therefrom West 24 rods South 33 1/3 rods and except the West 396 feet North 28 feet South 578 feet and further excepting therefrom Beranek' s Long View Addition to Linn County, Iowa All in Linn County, Iowa. Subject to public highways. Our examination commences from May 8, 1992 at 5:00 P.M. ---(245)--- To aid in the location of the property described in the caption, we attach plat of BOLAND'S FIRST ADDITION TO LINN COUNTY, IOWA, filed May 7, 1999, and recorded in V. 3896, P. 121. For Copy of PLAT, see next page. IOWA TITLE COMPANY