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HomeMy WebLinkAbout2019-07-08-K13 Brandons Reserve_Easement AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: July 8, 2019 AGENDA ITEM: Consideration of approval of a resolution approving amended and restated declaration of ingress/egress easement [Brandon’s Reserve] FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: The existing ingress/egress easement associated with Lots 4 and 5 of Brandon’s Reserve needs to be amended so that the owner of Lot 4 can install a retaining wall to prevent further erosion of a portion of the lot. Staff has reviewed the proposed easement and is comfortable with the proposed easement amendment. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Staff would recommend approval of the resolution. RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Proposed Resolution II. Easements PREPARED BY: Andy Kass, Senior Planner REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: K13 AMENDED AND RESTATED DECLARATION OF INGRESS/EGRESS AND ACCESS EASEMENT Preparer Information: Anna M. Bergman Wilson & Egge, P.C. 475 Alice’s Road, Suite A Waukee, Iowa 50263 (515) 369-2502 Return Document To: Anna M. Bergman Wilson & Egge, P.C. 475 Alice’s Road, Suite A Waukee, Iowa 50263 (515) 369-2502 Declarant: M&R Holdings, LLC Legal Description: Lots Four (4) and Five (5), and Outlots 4A and 5A, in Brandon’s Reserve, an Official Plat, now included in and forming a part of the City of Waukee, Dallas County, Iowa. Document or instrument number of previously recorded documents: This Second Amended and Restated Declaration of Ingress/Egress and Access Easement is being filed to amend the Declaration of Ingress/Egress and Access Easement filed October 5, 2016 in Book 2016, Page 19209, amended as filed on December 27, 2016 in Book 2016, Page 26001. 2 SECOND AMENDED AND RESTATED DECLARATION OF INGRESS/EGRESS AND ACCESS EASEMENT This Second Amended and Restated Declaration of Easement (this “Declaration”) is made as of the ___ day of , 2019, by M&R Holdings, LLC, an Iowa limited liability company (“Declarant”). RECITALS A. Declarant is the owner of real property in Waukee, Dallas County, Iowa, legally described as follows: Lots Four (4) and Five (5), and Outlots 4A and 5A, in Brandon’s Reserve, an Official Plat, now included in and forming a part of the City of Waukee, Dallas County, Iowa (“Property”). B. To comply with City requirements in connection with the final plat of Brandon’s Reserve, the Declarant desires to establish a private ingress/egress and access easement over Lot 4 and Outlot 4A for the benefit of future owners of Lot 5 and Outlot 5A. DECLARATION NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby declares as follows: 1. Definitions. All capitalized terms used in this Declarati on shall, unless otherwise defined elsewhere in this Declaration, have the following meanings: “City” means the City of Waukee, Iowa. “Owner(s)” means the record titleholder(s) of any portion of the Property. “Lot(s)” means Lot 4 or 5 after the filing of record of the final plat of Brandon’s Reserve. “Outlot(s)” means Outlot “4A” and/or “5A” after the filing of record of the final plat of Brandon’s Reserve. “Permittees” means any tenant(s) or occupant(s) of a Lot, or any portion thereof, and the respective guests, vendors, licensees, invitees, customers, contractors and agents of the Owner of such Lot, or portion thereof, and such tenant(s) or occupant(s). 2. Grant of Ingress/Egress Easement. Declarant hereby establishes a perpetual, non- exclusive easement for ingress/egress and access, across and through the property set forth in Exhibit “A”, attached hereto and made a part hereof, for the purpose of ingress, egress and access to and from all public rights-of-way. 3 3. Maintenance. The Owner of Lot 4 shall keep and preserve the Easement Area in good repair and condition at all times. All easement areas shall be maintained in a good and safe condition, including but not limited to, maintaining, repairing and replacing all paved surfaces and curbs, mowing and removing snow, ice and other debris timely and as necessary. All such maintenance shall be prosecuted in such a manner that it does not adversely affect the use of the Easement Area by the Owner of Lot 5 and their Permittees, provided however, that all maintenance costs shall be shared equally between the Owners of Lots 4 and 5. With respect to the retaining wall located along the southern most boundary of Lots 4 and 5, each Owner, at its sole expense, shall be responsible for maintaining, repairing, and replacing the retaining wall located on their respective Lots. 4. Erection of Structures Prohibited. Neither Owner shall erect any fence or other structure (other than concrete surfacing), or cause or permit any obstruction, planting or material to be placed under, over, on, through, across or within the Easement Area without obtaining the prior written consent of the other. 5. Right of Access. The Owners shall have the right of access to the Easement Area and have all rights of ingress, egress and access reasonably necessary for the use and enjoyment of the Easement Area from property adjacent thereto as herein described, including but not limited to, the right to remove any unauthorized fences, structures, obstruction, planting or material placed or erected under, over, on, through, across or within the Easement Area. 6. Restoration of Property. The Owners shall restore the Easement Area after exercising their rights hereunder to a condition substantially similar to that prior to any construction, reconstruction, replacement, repair or maintenance thereof. 7. Enforcement. Any Owner may enforce this Declaration against another Owner by seeking injunctive relief, specific performance or any other remedy available at law or in equity. In the event of litigation to enforce or interpret the terms of this Declaration, the prevailing party shall be entitled to recover its costs of litigation, including, without limitation, reasonable attorney’s fees . 8. No Merger. It is expressly understood and agreed that the easements, rights and privileges granted and conveyed herein shall never be extinguished by reason of the fact that the legal or beneficial title to the entirety of the Property (or any interest therein or part thereof), as the case may be, is or may be vested in the same person or entity. 9. Binding Effect; No Public Grant. This Declaration shall run with the land, and shall inure to the benefit of, and be binding upon, the parties hereto and their successors and assigns. The easement rights and dedications created hereby are not for the benefit of the public generally and nothing herein shall be construed as a dedication to the public. 10. Amendment. Any change or amendment to this Declaration shall be effective only if it is in writing and signed by all of the owners of record and the City. Declarant shall have the sole right to amend this Declaration so long as it owns a Lot in Brandon’s Reserve. 11. Waiver. Any failure, forbearance, delay or omission to exercise any rights under this Declaration in the event of a breach of any term of this Declaration shall not be deemed to be a 4 waiver by any party of such term or any subsequent breach of the same or any other term, or of any rights of any party under the terms of this Declaration. 12. Severability. If any provision of this Declaration, or the application of it to any circumstance, is found to be invalid, the remainder of the provisions of this Declaration, or the application of such provision to other circumstances than those to which it is found to be invalid, as the case may be, shall not be affected. IN WITNESS WHEREOF, this Declaration has been made effective as of the date first above written. M&R HOLDINGS, LLC, an Iowa limited liability company By: David W. Walters, Managing Member STATE OF IOWA ) ) SS: COUNTY OF __________ ) This instrument was acknowledged before me on this _______ day of ______________, 2019, by David W. Walters, Managing Member of M&R Holdings, LLC. ____________________________________ Notary Public in and for the State of Iowa CITY OF WAUKEE, IOWA By: Its: STATE OF IOWA ) ) SS: COUNTY OF __________ ) This instrument was acknowledged before me on this _______ day of ______________, 2019, by as of the City of Waukee, Iowa. ____________________________________ Notary Public in and for the State of Iowa 5 EXHIBIT “A” An 18.00 foot wide easement over and across Lot 4 Brandon’s Reserve, an Official Plat, Waukee, Dallas County, Iowa, is more particularly described as follows: Commencing at the southeast corner of said Lot 4; thence N00°27’42”E platted bearing along the east line of said Lot 4, a distance of 20.50 feet to the point of beginning; thence N89°33’07”W, a distance of 309.93 feet; thence S54°05’43”W, a distance of 22.77 feet; thence N89°33’07”W, a distance of 71.20 feet to the west line of said Lot 4; thence N00°26’53”E along the west line of said Lot 4, a distance of 18.00 feet; thence S89°33’07”E, a distance of 65.29 feet; thence N54°05’43”E, a distance of 22.77 feet; thence S89°33’07”E, a distance of 315.85 feet to the east line of said Lot 4; thence S00°27’42”W along the east line of said Lot 4, a distance of 18.00 feet to the point of beginning.