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Home My WebLink About2021-06-21-I01zJJ Pool and Fence Agreement_Lot 4 and Outlot W Fox Creek Estates Plat 10 AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: June 21, 2021 AGENDA ITEM: Consideration of approval of a resolution approving an Agreement Concerning Construction of Pool and Fence [990 NE Badger Lane]. FORMAT: Consent Agenda SYNOPSIS INCLUDING PRO & CON: The owners of property located at 990 NE Badger Lane desire to place a pool and fence within the back yard within a portion of a stream buffer easement. Staff has reviewed the proposed pool and fence request and feels comfortable that the proposed pool and fence will not adversely impact access to the easement. The attached Pool and Fence Agreement specifies the property owner’s maintenance responsibilities and requirements for removing the pool and fence in the future if required by the City. This document will be recorded with Dallas County and become a part of the official records for this property and will remain fully enforceable should the property sell in the future. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Staff would recommend approval of the Agreement Concerning Construction of Pool and Fence. RECOMMENDATION: Approve the Resolution ATTACHMENTS: I. Proposed Resolution II. Agreement PREPARED BY: Melissa DeBoer, Senior Planner I1JJ THE CITY OF WAUKEE, IOWA RESOLUTION 21- APPROVING AN AGREEMENT CONCERNING CONSTRUCTION OF POOL AND FENCE [990 NE BADGER LANE] 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 dul y organized Municipal Organization; AND, WHEREAS, DARRELL AND KAREN OLDEROG, are the owners of Lot 4 and Outlot W of Fox Creek Estates Plat 10 (“Property Owners”); AND, WHEREAS, the Property Owners are desirous of installing a pool and fence on the property; AND, WHEREAS, WAUKEE LOTS, L.L.C., an Iowa general partnership, predecessor in title to the Property Owners, granted that certain Stream Buffer Easement, dated June 22, 2017, recorded on July 11, 2017, in Book 2017, Page 13246, (the “Easement”) AND, WHEREAS, the pool and fence are intended to be erected within a portion of the Easement; AND, WHEREAS, the Easement prohibits the Property Owner from locating any fence or other structure within the Easement area without the written consent of the City of Waukee; AND, WHEREAS, the City of Waukee is agreeable to the construction of a pool and fence within a portion of the Easement area pursuant to the terms of the Agreement Concerning Construction of Pool and Fence. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa on this 21st day of June, 2021 that the Agreement Concerning Construction of Pool and Fence in connection with the Property is hereby approved and accepted by the City of Waukee, and the City Clerk is hereby authorized to file such first amendment to easement with the Dallas County, Iowa Recorder. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman Pierce R. Charles Bottenberg Chris Crone Larry R. Lyon Ben Sinclair WHEN RECORDED RETURN TO: Rebecca D. Schuett Waukee City Clerk 230 W. Hickman Road Waukee, Iowa 50263 Preparer Information: Brad Deets, City of Waukee, 230 W. Hickman Road, Waukee, Iowa 50263 Phone: (515) 987-4522 _______________________________________________________________________________________________________ AGREEMENT CONCERNING CONSTRUCTION OF POOL AND FENCE [990 NE BADGER LANE] This Agreement of Consent (“Agreement”) is entered into by and between DARRELL AND KAREN OLDEROG (the “Property Owner”) and the CITY OF WAUKEE, IOWA, a municipal corporation (hereinafter called “City”). WHEREAS, Property Owner owns that property legally described as: Lot 4 and Outlot W of Fox Creek Estates Plat 10, City of Waukee, Dallas County, Iowa WHEREAS, WAUKEE LOTS, L.L.C., an Iowa limited liability company, predecessor in title to the Property Owner, granted that certain Stream Buffer Easement, dated June 22, 2017, recorded on July 11, 2017, in Book 2017, Page 13246 (the “Easement”) to the City, which prohibited the construction of permanent improvements within the Easement area, as such real estate is described on Exhibit A, attached hereto and incorporated herein by this reference (hereinafter called "Easement Area"), without the consent of the City. WHEREAS, the Property Owner desires to construct a pool and fence on a portion of the Property that is located within the Easement Area, and the City has agreed to consent to the erection of such fence on a portion of the Property that is located within the Easement Area, subject to the conditions set forth in Section 2 in this agreement. NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the parties hereto do hereby agree as follows: 1.CITY CONSENT TO ERECTION OF POOL AND FENCE. The Easement prohibits Property Owner from locating any pool, fence or other structure under, over, on, through, across or within the Easement Area without obtaining the prior written consent of the City. Property Owners desire to construct a pool and fence on a portion of Property that is located within the Easement Area at the location identified on Exhibit B, attached hereto and incorporated herein by this reference. The City hereby consents to the construction of the pool and fence at the location identified on Exhibit B, within the Easement Area subject to, and conditioned upon, the provisions of this agreement. 2.MAINTENANCE AND LIABILITY. The Property Owners acknowledge and agree that in the event that the City exercises its rights under the Easement, including the rights to construct, reconstruct, repair, replace, enlarge, inspect and maintain the stream buffer, the City's duty of restoration for the portion of the Property located in the Easement Area shall be limited to grading and replacing grass, sod or any other ground cover (but not including repair or replacing any paved roadway, driveway, sidewalk, parking, curb, trees or shrubs). In no event shall the City be responsible for any reconstruction, replacement, repair or maintenance of the pool, fence or any improvements or structure located on the Property within the Easement Area. 3.NO CHANGE. This agreement does not alter, modify or otherwise change any of the Easement. The consent afforded hereunder is conditional and subject to revocation by the City as provided herein. The consent afforded by the City under this agreement is limited to the specific pool and fence and location provided herein. The Property Owner is aware of the terms of the Easement and understands that the consent afforded herein does not alter or otherwise change Property Owner responsibilities as more particularly set forth in the easement in any way. 4.HOLD HARMLESS. The Grantor(s), subsequent property owners, their successors and assigns agrees to indemnify and hold harmless the City, its elected officials, employees, officers, agents, representatives, contractors, and attorneys from and against any and all claims or demands for liability, loss, damage, costs, expenses, or attorney's fees of any kind for actions or omissions of the Grantor(s) in the easement area, or in any way arising out of or in connection with any occurrence in any way related to this Easement or the location, placement, construction and/or erection of the pool and fence within the easement area. 5.RUNS WITH THE LAND. This Agreement shall be deemed to run with the land and shall be binding on the Property Owners and on the Property Owners’ heirs, successors and assigns. 6.APPROVAL BY CITY COUNCIL. This Agreement shall not be binding until it has received the final approval and acceptance by the City Council by Resolution which approval and acceptance shall be noted on this Agreement by the City Clerk. The Property Owners do HEREBY COVENANT with the City that (i) the Property Owners hold said real estate described in this Agreement by title in fee simple; (ii) that the Property Owners have good and lawful authority to convey the same; and (iii) the Property Owners covenant to WARRANT AND DEFEND the said premises against the claims of all persons whomsoever. 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. Signed this ___ day of ______________, 2021. PROPERTY OWNER ________________________________ DARRELL OLDEROG ________________________________ KAREN OLDEROG CITY OF WAUKEE By: ___________________________ Courtney Clarke, Mayor Attest: _____________________________ Rebecca D. Schuett City Clerk STATE OF IOWA ) ) SS COUNTY OF __________ ) On this _____ day of __________________, 2021, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared DARRELL OLDEROG, to me known to be the identical person named in and who executed the foregoing instrument, and acknowledged that this person executed the instrument as the voluntary act of the person. _______________________________ Notary Public in and for the State of Iowa My Commission expires ________ STATE OF IOWA ) ) SS COUNTY OF __________ ) On this _____ day of __________________, 2021, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared KAREN OLDEROG, to me known to be the identical person named in and who executed the foregoing instrument, and acknowledged that this person executed the instrument as the voluntary act of the person. _______________________________ Notary Public in and for the State of Iowa My Commission expires ________ STATE OF IOWA ) ) ss. COUNTY OF DALLAS ) On this ____ day of _______________, 2021, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Courtney Clarke and Rebecca D. Schuett, to me personally known, and, who, being by me duly sworn, did say that they are the Mayor and the City Clerk, respectively, of the City of Waukee, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council, as contained in Resolution No. _________ adopted by the City Council, under Roll Call of the City Council on the ____ day of _______________, 2021, and that Courtney Clarke and Rebecca D. Schuett acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. ______________________________ Notary Public in and for the State of Iowa My Commission expires ________ EXHIBIT A EASEMENT AREA A STREAM BUFFER EASEMENT LOCATED ON PART OF LOT 4 AND OUTLOT W OF FOX CREEK ESTATES PLAT 10, AN OFFICIAL PLAT IN THE CITY OF WAUKEE, DALLAS COUNTY, IOWA, THAT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF OUTLOT W AND THE NORTHWEST 30 FEET OF LOT 4 OF FOX CREEK ESTATES PLAT 10. EXHIBIT B LOCATION OF POOL AND FENCE