HomeMy WebLinkAbout2021-04-05-J01M Fifth Amendment to Water Service Enhancement AgreementCITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: April 5, 2021
AGENDA ITEM:Consideration of approval of a resolution approving Fifth Amendment to
Water Service Enhancement Agreement and Assignment of Easements
between the Board of Water Works Trustees of the City of Des Moines, Iowa
and the City of Waukee, Iowa
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: Des Moines Water Works manages and controls the water
works system serving Des Moines and surrounding areas. Waukee operates a municipal water utility.
DMWW owns and operated the facility known as the Louise P. Moon Pumping Station (LPMPS)
constructed pursuant to a Water Service Enhancement Agreement dated May 26, 1992, which Waukee
joined by addendum dated August 24, 1992.
DMWW and Waukee have previously constructed a separate facility known as the Waukee Booster
Station (located on the Eason Elementary property, 605 SE Boone Dr, in Waukee) that functions as an
extension of the LPMPS and has been operated and maintained by DMWW for the benefit of Waukee.
The Waukee Booster Station was installed and constructed within a permanent easement area granted
to DMWW by Waukee Community School District, which was intended to be for the benefit of
Waukee. DMWW and Waukee desire to clarify their respective roles with respect to the Waukee
Booster Station and confirm that it is owned by Waukee and operated by DMWW. The permanent
easement on which the Waukee Booster Station is located will be assigned to the City of Waukee.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the Resolution.
ATTACHMENTS: I. Resolution
II. Fifth Amendment to Water Service Enhancement Agreement
III. Assignment and Assumption of Permanent Easement Agreement
PREPARED BY: Beth Richardson
REVIEWED BY: Rudy Koester RK
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
AGENDA ITEM: J1M
THE CITY OF WAUKEE, IOWA
RESOLUTION 2021-
APPROVING FIFTH AMENDMENT TO WATER SERVICE ENHANCEMENT
AGREEMENT AND ASSIGNMENT OF EASEMENT BETWEEN THE BOARD OF
WATER WORKS TRUSTEES OF THE CITY OF DES MOINES, IOWA AND THE
CITY OF WAUKEE, IOWA
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, Des Moines Water Works (DMWW) owns and operates a facility known as the
Louise P. Moon Pumping Station (LPMPS) constructed pursuant to a Water Service
Enhancement Agreement dated May 26, 1992, which the City of Waukee joined by addendum
dated August 24, 1992; AND,
WHEREAS, DMWW and Waukee have previously constructed a separate facility known as the
Waukee Booster Station that functions as an extension of the LPMPS and has been operated and
maintained by DMWW for the benefit of the City of Waukee. The Waukee Booster Station was
installed and constructed within a permanent easement are granted to DMWW by Waukee
Community School District; AND,
WHEREAS, DMWW and the City of Waukee desire to clarify their respective roles with
respect to the Waukee Booster Station and confirm that it is owned by the City of Waukee;
AND,
WHEREAS, The City of Des Moines, for the use and benefit of the Board of Water Works
Trustees of the City of Des Moines and the Waukee Community School District entered into that
certain Permanent Easement dated August 4, 1995, and recorded with the Dallas County recorder
December 17, 1996 in Book 826, Page 1048 for premises in Dallas County, Iowa; AND,
WHEREAS, The City of Des Moines, for the use and benefit of the Board of Water Works
Trustees of the City of Des Moines and the City of Waukee hereby wish to acknowledge that it
was the intent of the parties at time of the Easement that any and all improvements, buildings,
fixtures, equipment, piping, supply lines, discharge lines and other appurtenances constructed,
installed or otherwise located therein or thereon (Booster Station Property) were for the sole
benefit of the City of Waukee, and the parties hereby wish to further acknowledge and clarify
that the City of Waukee has at all times been the legal owner of such Booster Station Property.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee that the
Fifth Amendment to Water Service Enhancement Agreement and Assignment of Easement
between the City of Des Moines, for the use and benefit of the Board of Water Works Trustees
of the City of Des Moines, Iowa and the City of Waukee, Iowa are hereby approved.
Passed by the City Council of the City of Waukee, Iowa, and approved the 5th day of April,
2021.
____________________________
Courtney Clarke, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
Anna Bergman
R. Charles Bottenberg
Chris Crone
Larry R. Lyon
Ben Sinclair
FIFTH AMENDMENT TO
WATER SERVICE ENHANCEMENT AGREEMENT
FIFTH AMENDMENT TO WATER SERVICE ENHANCEMENT AGREEMENT made and
entered into as of the day of________________, 2021, by and between the CITY OF WAUKEE,
IOWA ("WAUKEE") and the BOARD OF WATER WORKS TRUSTEES OF THE CITY OF
DES MOINES, IOWA ("DMWW").
RECITALS:
A. DMWW is a duly constituted utility board under the laws of Iowa, and as such it
manages and controls the water works system serving the City of Des Moines, Iowa and
environs.
B. Waukee is a city which operates a municipal water utility.
D. DMWW owns and operates a facility known as the Louise P. Moon Pumping Station
("LPMPS") constructed pursuant to a Water Service Enhancement Agreement dated May 26,
1992, which Waukee joined by addendum dated August 24, 1992 (the “Water Service
Enhancement Agreement”).
E. Other water systems operated by the West Des Moines Water Works, City of Urbandale,
Iowa, City of Clive, Iowa, and Xenia Rural Water District are additional parties to such
agreement, which has been supplemented and amended from time to time.
F. DMWW and Waukee have previously constructed a separate facility known as the
Waukee Booster Station that functions as an extension of the LPMPS and has been operated and
maintained by DMWW for the benefit of Waukee. The Waukee Booster Station was installed
and constructed within a permanent easement area granted to DMWW by Waukee Public
Schools, which was intended to be for the benefit of Waukee.
G. DMWW and Waukee desire to clarify their respective roles with respect to the Waukee
Booster Station and confirm that it is owned by Waukee.
NOW THEREFOR THE PARTIES AGREE AS FOLLOWS:
1. The Water Service Enhancement Agreement, as amended, is hereby further amended as it
affects DMWW and Waukee.
2. Waukee is confirmed to be the legal owner of the building, and all improvements, piping and
equipment that comprise the Waukee Booster Station (and necessary appurtenances) within
the easement area provided for in the above-referenced easement, which includes the two
supply lines that tap and connect to the larger diameter feeder mains just west of the station
and the discharge line that connects to Waukee’s water distribution system. See Exhibit A.
3. DMWW shall execute an assignment of the permanent easement to Waukee and will cause it
to be filed in the real estate records of Dallas County.
4. DMWW shall continue to operate and maintain the Waukee Booster Station for the benefit of
Waukee unless and until either party shall terminate such relationship on not less than six (6)
months notice. DMWW shall continue to invoice Waukee quarterly for the full actual cost of
such operation and maintenance and Waukee shall continue to pay such invoices.
5. Except as amended hereby the Water Service Enhancement Agreement, as previously
amended, shall remain in full force and effect.
Dated: _______________________, 2021.
CITY OF WAUKEE, IOWA
By: _________________________________
ATTEST:
____________________________________
BOARD OF WATER WORKS TRUSTEES
OF THE CITY OF DES MOINES, IOWA
By: _________________________________
ATTEST:
____________________________________
Courtney Clarke, Mayor
Rebecca D. Schuett, City Clerk
Prepared By/Return To: Benjamin D. Bruner, 699 Walnut Street, Suite 1600, Des Moines, IA 50309 (515) 244-2600
Taxpayer Statements To: Not applicable
ASSIGNMENT AND ASSUMPTION OF PERMANENT EASEMENT AGREEMENT
_______________________________________________
This ASSIGNMENT AND ASSUMPTION OF PERMANENT EASEMENT
AGREEMENT (the “Agreement”) is entered into as of the ________ day of
_________________________, 2021 (the “Effective Date”), by and between the CITY OF DES
MOINES, FOR THE USE AND BENEFIT OF THE BOARD OF WATER WORKS TRUSTEES
OF THE CITY OF DES MOINES (“Assignor”) and CITY OF WAUKEE, IOWA (“Assignee”).
RECITALS:
WHEREAS, Assignor and Waukee Community School District (hereinafter “School
District”) entered into that certain Permanent Easement (related to a booster pump station and
necessary piping and appurtenances related thereto) dated August 4, 1995, and recorded with the
Dallas County recorder December 17, 1996 in Book 826, Page 1048 (the “Easement”) for premises
in Dallas County, Iowa, more particularly described on Exhibit A attached hereto and by this
reference incorporated herein (“Easement Area”).
WHEREAS, Assignor and Assignee hereby wish to acknowledge that it was the intent of
the parties at time of the Easement that any and all improvements, buildings, fixtures, equipment,
piping, supply lines, discharge lines and other appurtenances constructed, installed or otherwise
located therein or thereon (“Booster Station Property”) were for the sole benefit of Assignee, and
the parties hereby wish to further acknowledge and clarify that the Assignee has at all times been
the legal owner of such Booster Station Property.
NOW, THEREFORE, for consideration of One Dollar and other valuable consideration,
and in consideration of the foregoing and the mutual covenants set forth below, the parties agree
as follows:
1. ASSIGNMENT AND ASSUMPTION OF EASEMENT. Assignor does hereby sell,
assign, transfer and convey unto Assignee, its successors and assigns, any and all of Assignor’s
right, title and interest in and to the Easement. Assignee, by accepting such assignment, agrees to
assume the Easement and be substituted as “Acquiring Authority” (as that term is defined in the
Easement) under the Easement and to perform all the covenants, obligations and agreements of the
Acquiring Authority under the Easement. Notwithstanding the foregoing, Assignor shall retain
access to the Easement Area for purposes of operating and maintaining the Booster Station
Property as provided for in a separate agreement between Assignor and Assignee.
2. OWNERSHIP OF BOOSTER STATION PROPERTY. Assignor and Assignee
hereby acknowledge and otherwise agree that it was the intent of the parties at time of the Easement
that any and all Booster Station Property was constructed and installed for the sole benefit of
Assignee. The parties hereby acknowledge, confirm, and clarify that the Assignee was at all times
the legal owner of such Booster Station Property, and remains the owner of the same as of the date
of this Agreement.
3. AGREEMENT BINDING UPON SUCCESSORS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their respective successors and assigns.
4. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties relative to the subject matter hereof. It may not be terminated or modified except as done
in writing and signed by both parties hereto.
5. APPLICABLE LAW. This Agreement shall be construed and interpreted under the
laws of the state of Iowa.
6. COUNTERPARTS. This Assignment may be executed by the parties hereto in any
number of counterparts, including without limitation any electronic signature sent via electronic
mail, other portable document format, or facsimile, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one and the same instrument.
7. FURTHER ASSURANCES. Upon request, and at the expense of the requesting
party, each party shall at any time and from time to time execute and deliver further documents
and do further acts to evidence, carry out and give full effect to the terms, conditions, intent and
meaning of this Agreement and/or the Easement.
8. ATTORNEYS’ FEES AND COSTS. If any legal action or any other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default,
or misrepresentation in connection with any of the provisions of this Agreement, the successful or
prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs
incurred in that action or proceeding, in addition to any other relief to which it or they may be
entitled, including the fees and costs incurred in enforcing any judgment which may be obtained
in said action.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
[SIGNATURE PAGES FOLLOW]
ASSIGNOR
BOARD OF WATERWORKS TRUSTEES OF THE CITY OF DES MOINES, IOWA
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
STATE OF IOWA, COUNTY OF POLK, ss.
On this _____ day of ____________, 2021, before me, a Notary Public in and for the State of
Iowa, personally appeared _________________, to me personally known, and who, being by me
duly sworn, did say that they are the _______________ and _______________ of the BOARD OF
WATER WORKS TRUSTEES OF THE CITY OF DES MOINES, IOWA, that no seal has been
procured by the entity; that the attached instrument was signed on behalf of the entity by authority
of its Board, as contained in the resolution adopted by the Board on the ______ day of
___________________, 2021, and that ______________________ acknowledge the execution of
the instrument to be the voluntary act and deed of the BOARD OF WATER WORKS TRUSTEES
OF THE CITY OF DES MOINES, IOWA, by it and by them voluntarily executed.
__________________________________________
Notary Public in and for the State of Iowa
ASSIGNEE
CITY OF WAUKEE, IOWA
By: _____________________________________
Name:
Title:
STATE OF IOWA, COUNTY OF DALLAS, ss:
On this _____ day of _________, 2021, before me, the undersigned, a Notary Public in
and for said County and State personally appeared _________________________, to me
personally known, who being by me duly sworn, did say that he/she is ______________________,
executing the within and foregoing instrument and acknowledged that he executed the same as his
voluntary act and deed of the City of Waukee, Iowa, by it and by him/her voluntarily executed.
__________________________________________
Notary Public in and for the State of Iowa
Courtney Clarke
Mayor
EXHIBIT A
Easement Area
_______________________________