HomeMy WebLinkAbout2024-02-20 I09 Waukee Towne Center_Pond Deed and Quality of Life ImprovementsAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: February 20, 2024
AGENDA ITEM:Consideration of approval of a resolution accepting the dedication of the
phase one quality of life improvements and Outlot Y in Waukee Towne
Center Plat 3
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: As a part of the Development Agreement for the Waukee
Towne Center Development located south of E Hickman Road and west of SE Alice’s Road, the City
agreed to incentivize the developer by purchasing the approximately 9 acre pond that has been
constructed as a part of the development as well as other site amenities including a walking trail,
lighting, pedestrian bridge, amphitheater pad and landscaping.
The improvements are now complete subject to the landscaping which will be completed in the Spring
as well as minor punch list items. The proposed resolution provides for the acceptance of the
improvements, the transaction of the property from the Developer to the City and the payment by the
City for the property. Additionally, there will be an escrow account established for the remaining
landscaping to be completed in the Spring and a temporary easement for the future amphitheater
improvements that will be completed by the Developer.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the resolution.
ATTACHMENTS: I. Proposed Resolution
II. Warranty Deed for Property
III. Escrow Agreement
IV. Temporary Access Agreement
PREPARED BY: Brad Deets, City Administrator
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
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THE CITY OF WAUKEE, IOWA
RESOLUTION 2024-
RESOLUTION ACCEPTING THE DEDICATION OF THE PHASE ONE
QUALITY OF LIFE IMPROVEMENTS AND OUTLOT Y IN WAUKEE TOWNE
CENTER PLAT 3 AND AUTHORIZING OTHER ACTION PURSUANT TO THE
AGREEMENT WITH WAUKEE TOWNE CENTER, LLC.
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal
Organization; AND,
WHEREAS, the City entered into an Amended and Restated Agreement for Private Development
with Waukee Towne Center, LLC (“WTC”) and Waukee Towne Center II, LLC (“WTC II”) dated
September 18, 2023 (hereinafter referred to as “Agreement”); and
WHEREAS, pursuant to Section 3.3(b) of the Agreement, WTC has submitted a request to
dedicate the Phase One Quality of Life Improvements and Outlot Y in Waukee Towne Center Plat
3, an Official Plat, now in and forming a part of the City of Waukee, Dallas County, Iowa
(“Dedication”) together with an escrow agreement securing the completion of landscape elements
that have not yet been completed due to the existing winter season; and
WHEREAS, the City is willing to accept the Dedication free of any and liens and encumbrances
in accordance with the Agreement, subject to completion of the remaining landscaping in
accordance with the escrow agreement and the deposit of funds securing completion; and
WHEREAS, pursuant to Section 8.2(a) of the Agreement, subject to Developer being and
remaining in compliance with the Agreement, a payment of $2,100,000.00 dollars is to be made
by the City to WTC within 30 days of the dedication of Outlot Y and the Phase One Quality of
Life Improvements.
NOW THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WAUKEE, IOWA that the City hereby accepts the Dedication, free of any and liens
and encumbrances, in accordance with the Agreement, subject to completion of the remaining
landscaping in accordance with the escrow agreement and the deposit of funds securing completion
which is hereby approved.
BE IT FURTHER RESOLVED, that the temporary access agreement to Waukee Towne Center,
LLC to access the dedicated property for the purposes of constructing and installing Phase Two
Quality of Life Improvements and other infrastructure as provided in the Agreement is hereby
approved.
BE IT FURTHER RESOLVED, that following recordation of the conveyance documents for the
Dedication with the Dallas County Recorder and the deposit of the funds contemplated by the
escrow agreement, the City is authorized to make the payment contemplated in Section 8.2(a) of
the Agreement. The funds may be released and dispersed as directed by Waukee Towne Center,
LLC.
Passed and adopted this 20th day of February, 2024.
Courtney Clarke, Mayor
Attest:
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
R. Charles Bottenberg
Chris Crone
Rob Grove
Anna Bergman Pierce
Ben Sinclair
WARRANTY DEED
Recorder’s Cover Sheet
Preparer Information:
Nathan J. Barber
Belin McCormick, P.C.
666 Walnut Street, Suite 2000
Des Moines, IA 50309
Phone: 515-243-7100
Taxpayer Information:
City of Waukee
230 W. Hickman Road
Waukee, IA 50263
Return Document To:
City of Waukee
230 W. Hickman Road
Waukee, IA 50263
Grantor:
Waukee Towne Center, LLC
Grantee:
City of Waukee
Legal Description: See Page 2
Document or instrument number of previously recorded documents: N/A
WARRANTY DEED
For the consideration of One Dollar ($1.00) and other valuable consideration, Waukee Towne
Center, LLC, an Iowa limited liability company, does hereby Convey and Warrant to the City of
Waukee, the following described real estate in Dallas County, Iowa:
Outlot Y in Waukee Towne Center Plat 3, an Official Plat, now included in and
forming a part of the City of Waukee, Dallas County, Iowa.
Subject to easements, covenants and restrictions of record.
No transfer tax, groundwater hazard statement or declaration of value required. Iowa
Code section 428A.2(6).
There is no known private burial site, well, solid waste disposal site, underground storage
tank, hazardous waste, or private sewage disposal system on the property as described in
Iowa Code Section 558.69, and therefore the transaction is exempt from the requirement
to submit a groundwater hazard statement.
Grantor does Hereby Covenant with Grantee, and successors in interest, that Grantor holds
the real estate by title in fee simple; that it has good and lawful authority to sell and convey the
real estate; that the real estate is free and clear of all liens and encumbrances except as may be
above stated; and Grantor Covenants to Warrant and Defend the real estate against the lawful
claims of all persons except as may be above stated.
Words and phrases herein, including acknowledgment hereof, shall be construed as in the
singular or plural number, and as masculine or feminine gender, according to the context.
Dated: ____________________, 2024.
[One (1) Signature Page Follows]
Signature Page – Warranty Deed
WAUKEE TOWNE CENTER, LLC,
an Iowa limited liability company,
_______________________________________
Nick Pierson, Manager
STATE OF IOWA )
) ss:
COUNTY OF ____________)
This record was acknowledged before me on ________________________, 2024 by
Nick Pierson as Manager for Waukee Towne Center, LLC.
____________________________________
Notary Public in and for said State of Iowa
(4337293.1).docx
ESCROW AGREEMENT
This Escrow Agreement (the “Agreement”) is entered into as of the ____ day of February,
2024, by and among Waukee Towne Center, LLC (“WTC”), and City of Waukee (“City”). All
capitalized terms not otherwise defined herein, shall have the meaning ascribed to them in the
Development Agreement (as hereinafter defined).
WHEREAS, WTC and Waukee Towne Center II, LLC, collectively as Developers, and
City entered into an Amended and Restated Agreement for Private Development dated September
18, 2023 (as amended, the “Development Agreement”), concerning the development of the
Waukee Towne Center in Waukee, Iowa.
WHEREAS, the Development Agreement in part requires WTC to make certain
improvements (the “Outlot Improvements”) to Outlot Y (as defined in the Development
Agreement) and, upon completion of the Outlot Improvements, to dedicate Outlot Y to the City
;and
WHEREAS, the Development Agreement provides that within 30 days following the
dedication of Outlot Y to the City the City shall pay WTC $2,100,000 (the “Payment”);
WHEREAS, WTC has completed the Outlot Improvements except for the landscaping
and the completion of seeding and mulching of all disturbed areas (the “Incomplete Items”), and
the estimated cost to complete the Incomplete Items is $134,000.00;
WHEREAS, City and WTC have agreed to complete the dedication of Outlot Y provided
WTC agrees to escrow $154,100.00 (the “Escrow Funds”) with Brick Gentry, P.C. (the “Escrow
Agent”), to be used to ensure the completion of the Incomplete Items as more specifically provide
herein; and
WHEREAS, the Escrow Agent has agreed to serve as Escrow Agent, subject to the terms
of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.Incorporation of Recitals. The above and foregoing Recitals, including all
defined terms set forth therein, are incorporated into this Agreement. Any initially capitalized
terms which are used, but not otherwise expressly defined in this Agreement will have the
meanings specified in the Contract.
2.WTC agrees to complete the Incomplete Items as soon as practicable following the
commencement of planting season, but in no event later than 180 days from the deposit of Escrow
Funds with the Escrow Agent.
3.Deposit of the Escrow Funds. Concurrently with the dedication of Outlot Y, WTC
agrees to deposit the Escrow Funds with the Escrow Agent and that the Escrow Funds so deposited
are to be held and disbursed to WTC and/or City, as applicable, by the Escrow Agent strictly in
accordance with the terms and provisions of this Agreement. The Escrow Funds will not be held
in escrow in an interest bearing account.
4.Disbursement of Escrow Funds. The Escrow Funds shall remain in escrow for a
period of one hundred and eighty (180) days from date of this Agreement (the “Term”). During
the Term, the Escrow Funds shall be released to WTC upon completion of the Incomplete Items.
Upon completion and acceptance WTC shall provide to City reasonable substantiating proof of
completion and acceptance of the Incomplete Items. In the event City does not object to said
disbursement within five (5) calendar days from the date such request is delivered (or first
rejected), then Escrow Agent shall be and is hereby authorized and directed to release the Escrow
Funds to WTC. In the event WTC fails to complete the Incomplete Items during the Term, then
such portions of the Escrow Funds necessary to complete the remaining Incomplete Items, plus
15%, shall be released to City to be used to pay for the completion of the Incomplete Items.
5.Dispute. If there is a disagreement between WTC and City concerning the Escrow
Funds, Escrow Agent may refuse to comply with the parties' claims or demands so long as the
disagreement continues. In so refusing Escrow Agent shall make no delivery or other disposition
of the Escrow Funds, shall be liable to no one for such refusal, and shall be entitled to continue to
refrain from acting until (i) the right of the adverse claimants shall have been finally adjudicated
in a court of competent jurisdiction or an action for interpleader has been commenced in which
case Escrow Agent may pay the Escrow Funds to the Court and be released from further liability
for the Escrow Funds, or (ii) WTC and City have notified Escrow Agent in writing that they have
settled their differences.
6.Notices. The parties agree that all notices and other communications which may
be or are required to be given hereunder shall be in writing and shall be deemed to have been
properly given and received on the date: (i)delivered by electronic mail (e.g. email), with
acknowledgement, (ii) delivered in person, (iii) deposited in the United States mail, registered or
certified, return receipt requested, postage prepaid, or (iv) deposited prepaid with a nationally
recognized overnight courier, to the addresses set forth in the Development Agreement. Any party
may change the address(es) to which they wish notices to be sent by delivering at least ten (10)
days’ prior written notice of the change of address to the other parties in accordance with the terms
of this Section.
7.Satisfaction of Obligations. In all events, upon the Escrow Agent’s final delivery
of the Escrow Funds in accordance with the terms and conditions of this Agreement, the
obligations of the parties under this Agreement shall be deemed fully satisfied and completed.
8.Dispute Resolution. In the event of a dispute or conflicting demands for the
Escrow Funds or any portion thereof, the Escrow Agent may at its option continue to hold the
Escrow Funds until obtaining: (a) a court order directing its payment; or (b) it may tender the
Escrow Funds into the court in connection with any appropriate proceeding to determine the rights
and obligations of the parties hereunder. Notwithstanding, the parties further agree that the Escrow
Agent may, at its option, require the receipt, release and authorization in writing of all parties before
paying money or delivering or redelivering documents or property to any party or to third parties.
9.Indemnification of Escrow Agent. The parties jointly and severally agree to
indemnify, defend, and hold harmless the Escrow Agent against any and all losses, liabilities, costs
(including legal fees), and other expenses in any way incurred by the Escrow Agent in connection
with or as a result of any disagreement between the WTC and City under this Agreement, unless
caused by the negligence, bad faith, or willful misconduct of the Escrow Agent.
10.Consideration. WTC shall be responsible for any fees of the Escrow Agent for
undertaking to perform its obligations hereunder.
11.Counterparts. This Agreement may be executed in counterparts, each of which,
when taken together, shall constitute one and the same document. A facsimile signature of any
party shall constitute an original signature of such party for all purposes.
The parties hereto have executed this Agreement as of the date and year first written above.
[EXECUTION ON FOLLOWING PAGE.]
SIGNATURE PAGE
WAUKEE TOWNE CENTER, LLC,
a Iowa limited liability company
By:
_________________, Manager
(SEAL) CITY OF WAUKEE, IOWA
By: ________________________________
Mayor
ATTEST:
By: ____________________________
City Clerk
BELIN MCCORMICK, P.C.
By:
Nathan Barber, Shareholder
TEMPORARY CONSTRUCTION AND ACCESS AGREEMENT
KNOW ALL PERSONS BY THESE PRESENTS that City of Waukee, Iowa (hereinafter called
“Grantor”), as owner of Outlot Y in Waukee Towne Center Plat 3, an Official Plat, now included
in and forming a part of the City of Waukee, Dallas County, Iowa (the “Grantor’s Property”), for
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
does hereby convey unto Waukee Towne Center, LLC (hereinafter called “Grantee”) a license
for temporary construction and access and right-of-way under, over, on, through, across and
within the following-described real estate: Access Areas shown in Yellow on Exhibit A hereto
(hereinafter called “Access Areas”), for the purpose of allowing Grantee access to the Access
Areas during the construction and maintenance of stormwater outlets and amphitheater to be
located in part on the Grantor’s Property as contemplated in the Amended and Restated
Agreement for Private Development between the parties dated September 18, 2023 (the
“Improvements”). This Agreement shall be subject to the following terms and conditions:
1.INDEMNITY. Grantee shall agree to indemnify and hold harmless the City for any and
all claims, demands, suits, damages or liability that may arise by virtue of their undertaking the
Improvements, and access, contemplated by virtue of this Agreement, including but not limited
to attorney’s fees and expenses incurred by the City in defending itself with regard any such
claims, demands, suits or liability.
2. DURATION OF AGREEMENT. The rights of Grantee hereunder shall commence after
the submission, review and approval by the City of the plans and specifications for the
Improvements and the issuance of any and all required permits and shall expire without further
action of the parties on the first to occur of Grantee’s completion of the Improvements or May 1,
2028.
3. CHANGE OF GRADE. Grantor and its successors and assigns shall not change the
grade, elevation or contour of any part of the Access Areas.
4. OBSTRUCTIONS PROHIBITED. Grantor and its successors and assigns shall not cause
or permit any obstruction, planting or material to be placed under, over, on, through, across or
within the Access Areas which could obstruct, impede, or otherwise interfere with the usage of
the Access Areas.
5. OBLIGATIONS OF GRANTEE. Grantee shall be responsible for all costs and expenses
in any way associated with the completion of the Improvements. Grantee shall promptly pay for
any and all labor and materials used in completing the Improvements and shall not allow or
otherwise permit any mechanics or other liens to be asserted or otherwise effect any property
owned by Grantor, including but not limited to the Access Areas.
6.INSURANCE REQUIREMENTS. Grantee will provide and maintain or cause to be
maintained at all times during the process of Improvements in the Access Areas:
i.Builder's risk insurance, written on the so-called "Builder's Risk-Completed Value
Basis," in an amount equal to one hundred percent (100%) of the insurable
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value of the Improvements at the date of completion, and with coverage available
in non-reporting form on the so- called "all risk" form of policy.
ii.Comprehensive general liability insurance (including operations, contingent
liability, operations of contractors and subcontractors, completed operations, and
contractual liability insurance) with limits against bodily injury and property
damage of at least $1,000,000 for each occurrence. The City shall be named as an
additional insured for the City's liability or loss arising out of or in any way
associated with the project and arising out of any act, error, or omission of Grantee,
its directors, officers, shareholders, contractors, and subcontractors or anyone else
for whose acts the City may be held responsible (with coverage to the City at least
as broad as that which is provided to Developer and not lessened or avoided by
endorsement). The policy shall contain a "severability of interests" clause and
provide primary insurance over any other insurance maintained by the City.
iii.Workers' compensation insurance with at least statutory coverage.
iv.Grantee shall assure that any and all contractors or subcontractors performing work or
providing materials in the Access Areas have and maintain the insurance required in
sections 6(ii) &(iii) that meet or exceed the required limits.
“Grantor”
City of Waukee, Iowa
By:
Courtney Clarke, Mayor
Address: 230 W. Hickman Road, Waukee, IA
50263
“Grantee”
Waukee Towne Center, LLC
By:
Print Name
Print Title `
Address:
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Exhibit A - Access Areas