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HomeMy WebLinkAbout2010-04-05-Resolutions 10-88_South Area Trunk Sewer - Agr - HunsbergerTHE CITY OF WAUKEE,IOWA RESOLUTION 10-88 APPROVAL OF AGREEMENT AND PAYMENTS THEREUNDER CONCERNING THE SOUTH AREA TRUNK SEWER PROJECT IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA WHEREAS,the City of Waukee,Dallas County,State ofIowa,is a duly organized Municipal Organization;AND, WHEREAS,the City entered into agreements with the Hunsberger Family on June 2,2003,which provided for payment of certain costs by said property owners for the completion of a sanitary sewer project benefiting their properties;AND, WHEREAS,as a result of the City participating in the Waste Water Reclamation Authority (WRA) and entering into agreements to cause the installation of sewer infrastructure to collect the City'S waste water for treatment by the WRA alternative less expensive means of treatment are available as it pertains to the property owned by the foregoing parties and the City is able to use the infrastructure previously installed under those agreements to convey waste water from the City Treatment Plant to the WRA as long as capacity in said line permits;AND, WHEREAS,in light of the change in circumstances as it relates to City sanitary sewer treatment it is in the best interest of the City to rescind and replace the agreement of June 2,2003 with a substituted agreement which is attached hereto as Exhibit A;AND, BE IT THEREFORE RESOLVED by the City Council of the City of Waukee on this the 5th day of April 20 I 0 that the agreement should be and the same is hereby approved.The Mayor is authorized to execute the same on behalf of the City.Upon execution of the agreement by all parties,the payments contemplated there under are approved and authorized. ~".4$oc~~ Attest: ROLL CALL VOTE Shane Blanchard Dan Dutcher Casey L.Harvey Darlene Stanton Mike Watts AYE X X X X NAY ABSENT ABSTAIN X EXHIBIT A AGREEMENT THIS AGREEMENT is made and entered into by and between the City of Waukee, Iowa (hereinafter referred to as the "City"),The Hunsberger Family (hereinafter,together with successors-in-interest,to be collectively referred to as the "Property Owners");and WHEREAS,the City has constructed certain sanitary sewer improvements in the right-of-way of Dallas County Road R-22 ("R-22")during the calendar year 2003 (the "2003 Improvements")in conjunction with Property Owners pursuant to a Petition,Contract and Waiver executed by Property Owners and approved by the City Council of the City of Waukee by resolution dated June 2,2003 (the "Agreements");and WHEREAS,the City and the Property Owners foresaw the need for further sanitary sewer improvements in the R-22 right-of-way in the future as development and growth occurred upon the request by the Property Owners to the City pursuant to the terms and conditions of the Agreements;and WHEREAS,some of the Property Owners have requested that the City construct the future improvements contemplated in the Agreements and the Property Owners have further agreed,in exchange for the matters set forth herein,to convey any and all interest they may have acquired by virtue of the Agreements and the 2003 R-22 Sanitary Sewer Project and additional improvements;and WHEREAS,the Property Owners are the owners of tracts of real estate legally described in Exhibit A attached hereto (the "Land")and will receive specific benefit from the construction of the Future Improvements contemplated in the Agreements;and WHEREAS,the future improvements contemplated under the Agreements must be completed in order to service the area both now and in the future;and WHEREAS,the parties seek to change the scope of the project relative to the future improvements contemplated under the Agreements to better suit the future needs of the City and Property Owner. NOW,THEREFORE,IN CONSIDERATION OF THE MUTUAL PROMISES AND COMMITMENTS HEREIN,RECIEPT AND SUFFICIENCY OF WHICH IS ACKNOWLEDGED BY THE PARTIES HERETO,IT IS AGREED AS FOLLOWS: A.UNDERSTANDING OF THE PARTIES: I.The Agreements are substituted in their entirety with this Agreement and shall have no further effect and the terms or provisions of any agreement between the City and the parties hereto,dated prior to the date of this Agreement,that are in conflict with any provision herein,are superseded and modified by this agreement terms. 2.The Property Owners convey and assign any and all interest they have or may have acquired in the sanitary sewer improvements installed prior to this Agreement in the R- 22 right-of-way contemplated by virtue of the Agreements being generally described as 12" Force Main in exchange for payment by the City to Property Owner in the sum of $74,054.54.Said payment shall be the only payment paid unto property owner by the City. All other agreements between property owner and the City are superseded by virtue of this agreement.The payment hereunder shall be made by cashier's check upon execution of this Agreement by all parties.To the extent that any such improvement lies on land owned by Property Owners,an easement will be prepared by the City and executed and delivered by Property Owners to the City,at no additional cost,in a form to be approved by the City Attorney and the Property Owners. B.PROPERTY OWNERS AGREEMENT: 1.The Property Owners will be responsible for constructing all necessary sewer infrastructure on the Land and extensions from the land to the Project and will pay and bear all costs associated therewith. 2.In order to induce the completion of the initial phases of the project by the City,so as to make the property more suitable for development and more marketable, Property Owner has previously paid unto the City the sum of$85,267.00 for it's share of the previous 12"force main project costs. 3.Property Owners have already received $11,212.48 in reimbursement of their share of the costs advanced for the 12"force main installed and conveyed to the City hereunder.Therefore,the Property Owners convey and assign any and all interest they have or may have acquired in the sanitary sewer improvements installed prior to this Agreement in the R-22 right-of-way contemplated by virtue of the Agreements,said improvements being generally described as 12"Force Main,in exchange for payment by the City to Property Owner in the sum of $74,054.54.To the extent that any such improvement lies on land owned by Property Owners,an easement will be prepared by the City and provided to the City by Property Owners,at no additional cost,in a form to be approved by the City Attorney and Property Owners. 4.(a)The Agreements contemplated reimbursement of the costs advanced by property owner under said agreements for sewer installation through the imposition of a connection fee.The Property owner agrees it is being reimbursed for the total costs advanced by it for the installation of the 12"forced main under said agreements pursuant to the provisions of this agreement.Property Owner shall no further right to reimbursement for any costs advanced by it under the agreements. 2 (b)The costs advanced by property owner for the 2004 sewer improvements under the agreements totaled $78,837.71 ofwhich$16,987.60 is associated with the acreage of some of the property that was the subject of the agreements sold by property owner and platted as Painted Woods Plats 1-3(herafter Platted Property).Property Owner has been reimbursed $4,851.24 related to connection fees collected by the City for the Platted Property and 88 lots remain in the Platted Property for which a connection fee will be imposed for the Husberger share of reimbursable costs in the amount of $137.92 per lot for a total of $12,136.36.However,in the event that the connection fee imposed by the City for said lots is declared illegal and/or void or is otherwise not collectible the City shall have no obligation to property owner to collect and or pay property owner. (c)The property Owner advanced $61,850.11 for the 2004 improvements under said agreements which included 54.45 acres legally described in exhibit C which continues to be owned by Property Owner.The Property Owner agrees it shall not be entitled to reimbursement for said sums in any way from the City. 5.The Agreements are substituted in their entirety with this Agreement and shall have no further effect and the terms or provisions of any agreement between the City and the parties hereto in conflict with the any provision herein are superseded and modified by this agreements terms. 6.This Agreement shall run with the land and inure to the benefit of and be binding upon the successors in interest and assigns of Property Owners who acquire a property interest in the land or a portion thereof to the extent of their interest in the land. C.CITY COVENANTS: 1.The City will accept the conveyance and assignment of Property Owners' improvements installed prior to this Agreement in the R-22 right-of-way undertaken pursuant and as part of the Agreements.Said improvements are generally described as 12" Force Main.To the extent that any such improvement lies on land owned by Property Owners,Property Owners will deliver a Sanitary Sewer Easement which will be prepared by the City and executed and delivered by Property Owners to the City,at no additional cost,in a form to be approved by the City Attorney and the Property Owners in connection with final plat approvals since July of2005. 2.The City will install the improvements in this project generally described in Exhibit B attached hereto,subject to the obligations of the Property Owners contemplated and provided herein. D.THE GENERAL PROVISIONS: 1.Each party warrants and represents that the execution,delivery and performance by it of its respective obligations under this Agreement (i)do not contravene any law or any contractual provision binding on it and (ii)do not require any consent or approval of any person or governmental authority except such consents and approvals as have been obtained are in full force and effect.. 3 2.Each party warrants and represents that this Agreement constitutes a legal, valid and binding obligation and is enforceable in accordance with its terms. 3.Each party warrants and represents that it has not assigned or otherwise transferred (voluntarily or involuntarily)in any manner any claim of any kind relating to the subject matter of this Agreement and that the parties have the authority to execute this Agreement. 4.This Agreement is the sole,only,entire,and complete agreement of the parties with regard to the matters set forth herein.The recitals set forth above and the exhibits hereto are incorporated herein.No statements,promises or representations have been made by any party to another,or are relied upon,and no consideration has been or is offered,promised,expected or held out,other than that constituted by this Agreement, unless contained in a separate writing,signed by the obligating parties.No conditions precedent to the effectiveness of this Agreement exists,other than as may be expressly provided herein. 5.This Agreement may only be modified in writing signed by all of the parties hereto.No conduct or inaction on the part of the parties shall be construed as a waiver or relinquishment of any rights of the parties pursuant to this Agreement.No waiver of any breach of any term or provision of this Agreement shall be construed to be,or shall be,a waiver of any other breach of this Agreement.No waiver shall be binding unless in writing and signed by the party waiving the breach. 6.In the execution of this Agreement,and the negotiations leading thereto,each party was represented by counsel of its own selection.Prior to the execution of this Agreement by each party,the party's attorney received this Agreement and advised the party with respect to the advisability of making the agreements provided herein and of executing this Agreement.Counsel for the Parties have participated in the preparation of this Agreement.This Agreement was subject to revision and modification by all parties and has been accepted and approved as to its final form by counsel for all parties in consultation with their respective clients.Accordingly,any ambiguity existing in this Agreement shall not be interpreted against any party as a result of the manner of the preparation of this Agreement. 7.Should any provision of this Agreement be held invalid,illegal or unenforceable in any respect by any court of competent jurisdiction,the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent permitted by law.To the extent permitted by law,the parties hereby to the same extent waive any provision of law that renders any provision hereof prohibited or unenforceable in any respect. 8.This Agreement shall be governed by Iowa law.In relation to any legal action or proceeding arising out of or in connection with this Agreement,including,without limitation any proceeding that may be brought in the Action,each of the parties irrevocably submits to the nonexclusive jurisdiction of the Iowa District Court in and for Dallas County, Iowa,and other courts with jurisdiction to hear appeals from such court. 4 ';D/O DATED as of -4"-O.!....::\--=5"-.z,oo<J: THE CITY OF WAUKEE,IOWA ATTEST: PROPERTY OWNERS: • 5 EXHIBIT A -THE "LAND" LEGAL DESCRIPTION OF THE PROPERTY OWNED BY The Hunsberger Family: 6 EXHIBIT B -PROJECT PESCRIPTION OF PROJECT IMPROVEMENTS ,--- i Field~-- Construction of the South Area Trunk Sewer project includes approximately 2,270 linear feet of 24-inch diameter gravity flow sanitary sewer,ancillary sewer and force main improvements,pump station demolition,manholes,drop connections,creek crossings, clearing and grubbing,erosion control,surface restoration,and miscellaneous associated work. LOCATION OF PROJECT IMPROVEMENTS The project begins near an existing lift station located on the west side of County Highway R-22 (also known as Ute Avenue)approximately 250 feet north of the intersection of the before said Highway and Cotton Wood Drive.From the lift station,a 24-inch diameter sanitary sewer extends southeasterly across County Highway R-22 a distance of approximately 225 feet to a manhole located in Outlot 27 A of Painted Woods,an official plat in Waukee,Dallas Connty,Iowa.The sewer then extends southeasterly a distance of approximately 755 feet through Outlots 27 A,26A,25A,24A,and 23A to a manhole located in Outlot 22A of Painted Woods.The 24-inch sewer then extends easterly a distance of 865 feet through Outlots 22A,21A,20A,19A,Lots 19 and 18,and Outlot 18A to a manhole located in Outlot 17A of Painted Woods.The sewer then extends northerly and easterly approximately 145 and 265 feet,respectively,and ends a terminal manhole located on the east side of said Outlot 17A of Painted Woods. 7