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HomeMy WebLinkAbout2017-01-03-J12 Development Agreement_Westown Pkwy Extension AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: January 3, 2017 AGENDA ITEM: Consideration of approval of a resolution approving Development Agreement related to SE Westown Parkway Extension Project between the City of Waukee, Iowa, and certain property owners FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: The Mayor and City Council have as one of their overall goals to have Managed and Planned Growth and Development. One of the priorities of this goal is to construct Westown Parkway from Grand Prairie Parkway to Parkview Crossing. The construction of this roadway will provide a critical east-west connection in the community and open up several acres for commercial development in the Kettlestone Development. Additionally, Tallgrass Lane will be constructed from Grand Prairie Parkway to Parkview Crossing with the same benefits to the community. City staff has negotiated development agreements with adjacent property owners for the construction of the Westown Parkway and the Tallgrass Lane connecting at Grand Prairie Parkway. The agreements are with Lolowau for the property north of Westown Parkway and KE Brewer for the area south of Westown Parkway and north of Tallgrass Lane. Under the development agreement with Lolowau, the City will construct and finance the roadway. Lolowau will deed the right-of-way and provide all necessary easements to the City for the construction project. They will also pay the City $400,000 for their share of the roadway costs at the time their land is sold for development. The development with Brewer is similar and includes a $200,000 incentive for the construction of Tallgrass Lane. The City owns the property adjacent to the south side of Tallgrass Lane. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: The approval of these agreements enables the City to initiate the construction of Westown Parkway. I respectfully recommend City Council approval of the development agreements. RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Proposed Resolution II. Development Agreement PREPARED BY: Tim Moerman REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: 1 THE CITY OF WAUKEE, IOWA RESOLUTION 17- APPROVING DEVELOPMENT AGREEMENTS RELATED TO WESTOWN PARKWAY EXTENSION PROJECT BETWEEN THE CITY OF WAUKEE, IOWA, AND CERTAIN PROPERTY OWNERS 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 has been in discussion with property owners regarding the dedication of certain rights-of-way and/or easements that are necessary for the completion of the Westown Parkway Extension Project from Grant Prairie Parkway to the West in Waukee (the “Project”); AND, WHEREAS, the City has secured commitments for the reimbursement of a portion of the costs for the Project from the Property Owners adjacent to the new Westown Parkway Extension; AND WHEREAS, said property owners, listed below, have submitted Development Agreements related to said Project: 1) ARAC, LLC and Charles Sanford and Terry Irene Swallow Trust dated October 22, 1998 (attached hereto as Exhibit #1); 2) Lolowau, LLC (attached hereto as Exhibit #2); and NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this 3rd day of January, 2017, that the Development Agreements referenced above and attached as exhibits hereto are hereby approved. BE IT FURTHER RESOLVED that the City Clerk shall cause the originals to be recorded upon the properties by submitting the original to the Dallas County Recorder with the appropriate recording fees. Passed by the City Council of the City of Waukee, Iowa, and approved this the 3rd day of January, 2017. ____________________________ William F. Peard, Mayor 2 Attest: ___________________________________ Rebecca D. Schuett, City Clerk ROLL CALL VOTE AYE NAY ABSENT ABSTAIN Anna Bergman Brian Harrison Shelly Hughes Larry R. Lyon Rick Peterson 1 WHEN RECORDED RETURN TO: City Clerk, City of Waukee, 230 W. Hickman Road, Waukee, Iowa 50263 Preparer Information: Steven P. Brick, 6701 Westown Parkway, Suite 100, West Des Moines, Iowa 50266 (515) 274-1450 DEVELOPMENT AGREEMENT This Development Agreement (hereinafter referred to as “Agreement”) is entered into this ____day of ______________, 2016, by and between Lolowau, LLC, an Iowa limited liability company (hereinafter referred to as "Lolowau"), and The City of Waukee, Iowa, a municipal corporation (hereinafter referred to as the "City"). RECITALS: WHEREAS, Lolowau is the owner of certain property legally described as: Government Lot 7, except the northern 2.3 acres thereof, the south boundary line of said exception described as beginning at a point 149.2 feet South of the Northwest corner of Government Lot 7 and extending in a westerly direction to the Northeast Corner of Government Lot 6 and except Parcel “A”; and Government Lot 10, except Parcel “B” thereof, all in Section 4, Township 78 North, Range 26 West of the 5th P.M., City of Waukee, Dallas County, Iowa EXCEPT the real estate conveyed to the City of Waukee in a deed filed September 24, 2013 in Book 2013, Page 17849 of the Dallas County Recorder’s Office. And; Outlot X of Grant Park 2, an official plat now included in and forming a part of the City of Waukee, Iowa. Hereinafter referred to as “Lolowau Property” or “Property”. WHEREAS, Lolowau is contemplating the development of its Property and will benefit if Westown Parkway is constructed along and through its Property, including but not limited to the construction and installation of infrastructure in or around Westown Parkway such as Water, Sanitary Sewer, and Storm Sewer; and WHEREAS, Lolowau is desirous of having the City construct Westown Parkway from Grand Prairie Parkway to the West in accordance with the plans and specifications that have been developed, as may be amended in the sole discretion of the City; and WHEREAS, the City is in need of right of way, easements, and temporary construction easements, as well is assurances as to the payments from Property Owners of a portion of the costs, in order to enable the City to undertake the Westown Parkway Improvements; and -2- WHEREAS, the City and Lolowau have been in discussion regarding the conveyance by donation from Lolowau to the City of certain permanent right-of-way that is intended to be used for Westown Parkway west of Grand Prairie Parkway in Waukee, Iowa, as is more particularly shown on the Acquisition Plats attached hereto and marked Exhibit "A" and “A-1” (hereinafter referred to as "Westown Parkway Right-of-Way"); and WHEREAS, in addition to the permanent right–of-way, permanent public facility and use easements as is more particularly shown on attached Exhibit “B” (hereinafter referred to as “PFUE”), Permanent Storm Sewer/Overland Flowage Easements as shown on Exhibit “C” and temporary construction easements as is more particularly shown on attached Exhibits “D” and “D-1” (hereinafter referred to as “Temporary Easement”) are necessary for the construction of Westown Parkway, west of Grand Prairie Parkway; and WHEREAS, Lolowau has agreed to donate the Westown Parkway Right-of-Way as shown on Exhibits "A" and “A-1” as well as conveying the PFUE as shown on Exhibit “B” and conveying the Permanent Storm Sewer/Overland Flowage Easements as shown on Exhibit “C” and conveying the Temporary Easements (to be terminated 1 year after completion and acceptance by the City of the construction of said improvements) as shown on Exhibits “D” and “D-1”; and WHEREAS, the City is willing to undertake the Improvements requested by Lolowau provided Lolowau provides the necessary ROW, Easements, and provides for the payment of its equitable share of the cost of the Westown Parkway and associated improvements. NOW, THEREFORE, the City and Lolowau, in consideration of the promises and mutual obligations set forth in this Development Agreement, and in reliance thereon, and for such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: A. Lolowau agrees as follows: 1. Lolowau agrees to convey and dedicate to the City by donation the Westown Parkway Road Right-of-Way as shown on Exhibits "A" and “A-1” by Warranty Deed, free and clear of all liens and encumbrances, as well as the PFUE as shown on Exhibit “B” the Permanent Storm Sewer/Overland Flowage Easements as shown on Exhibit “C’ and the Temporary Easement as shown on Exhibits “D” and “D-1” on or before the 4th day of January, 2017. The PFUE, Permanent Storm Sewer/Overland Flowage Easements and the Temporary Easement shall be in the form required by the City, in its sole discretion. 2. Lolowau agrees to pay unto the City the sum of $400,000.00 for its equitable share of the costs of the Westown Parkway Improvement Project undertaken by the City. Said payment shall be due upon the sale of all, or part of the Lolowau Property, or immediately prior to final plat approval by the City of all or part of the Lolowau Property, which ever shall first occur. This obligation constitutes a lien on the Property until released in writing by the City. -3- 3. Lolowau agrees that it has reviewed the conceptual drawings prepared in connection with the Westown Parkway Improvements and understands the elevations, grade and access contemplated as part of the project and asks the City to complete the same. Lolowau specifically agrees with the concepts and requests the Westown Parkway construction be undertaken by the City. Lolowau further understands and agrees that the final plans and specifications have not yet been fully completed and that there may be changes to the specifications and plans, in the City’s sole discretion. B. The City agrees to: 1. The City shall cause the Westown Parkway Improvements to be constructed in accordance with such plans and specifications, as it shall deem appropriate in its sole discretion. 2. The City agrees that as part of construction, it shall require the Contractor to remove existing uncompacted spoil pile material generally located along the SE Westown Parkway project area within the conveyances and easements granted by Lolowau in this agreement prior to roadway topsoil stripping and placing of fill for the project. That Spoil material (consisting of approximately 5819 CY) will be used as fill for private driveway subsurface on Parcel 2 as depicted on Sheet E.01 of the plans and specifications for the project. Contractor will be required to verify material is suitable or place material a minimum of 2 feet below subgrade. Any excess material shall be placed, but not compacted, graded or contoured, 1) within the detention pond (if Property Owner removes the existing silt within said pond before the City commences its project) or just adjacent to said pond in the event the silt has not been removed 2) any remaining material will be placed on Property Owners Property along SE Westown between proposed driveway and Grand Prairie Parkway. Property Owner understands and agrees that it shall make other arrangements to do any dirt work not otherwise specifically identified herein as it pertains to the existing spoil pile material. 3. The Property Owner has indicated it may acquire property located south of the Westown Parkway ROW from ARAC that is the subject of the Developer’s Agreement between the City and ARAC, LLC and the Swallow Trust bearing a date of December 8, 2016 pertaining to Westown Parkway, subject to the terms, encumbrances, liens and obligations set forth in the agreement. The City agrees that Lolowau, LLC’s acquisition of said property LLC shall not be considered a sale for the purposes paragraph A(2) of the Developer’s Agreement between the City and ARAC, LLC and the Swallow Trust bearing a date of December 8, 2016 pertaining to Westown Parkway, however the obligations set forth in said agreement shall run with the land and are not otherwise effected or modified by virtue of this agreement. It is intended that this Agreement shall run with the land and that it shall, in any event and without regard to technical classifications or designations, legal or otherwise, and except only as otherwise specifically provided in this Agreement, be binding for the benefit and in favor of, and enforceable by the City against Lolowau, its successors and assigns, and every successor- in-interest to any of the Lolowau Property or any part thereof, or any interest thereof, and any party in possession or occupancy of any of the Property or any part thereof. -4- This Agreement shall be construed in accordance with the laws of the State of Iowa. A notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested; delivered personally; or sent by overnight courier service, as follows: In the case of Lolowau : In the Case of the City: Lolowau, LLC Attn: Robert J. Douglas 4201 Westown Parkway, Suite 300 West Des Moines, IA 50266 City of Waukee Attention: City Administrator 230 W. Hickman Road Waukee, Iowa 50263 or to such other address, department, or individuals either may, from time to time, designate in writing and forward to the other as provided in this Article. This Development Agreement shall constitute the entire agreement between the City and Lolowau and supersedes all other written or oral agreements, discussions and negotiations regarding the subject matter herein in connection with the Project. The terms of this Development Agreement may not be amended except in writing by agreement of the City and Lolowau. This Agreement is executed in two counterparts, each of which shall constitute one and the same instrument. A copy of this Agreement, including all Exhibits, shall be maintained in the office of the City Clerk of the City. IN WITNESS WHEREOF, the City has caused this Development Agreement to be duly executed in its name and behalf by its Mayor and its seal to be hereunto duly affixed and attested to by the City Clerk upon the authorization of the City Council and Lolowau has caused this Development Agreement to be duly executed by the parties authorized to so act on its behalf. [signature pages follow] -5- CITY OF WAUKEE, IOWA By___________________________________, Mayor By___________________________________, City Clerk Date:___________________, 2016 (City Seal) STATE OF IOWA : : SS COUNTY OF DALLAS : On this ______ day of ____________________, 2016, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared ______________________ and ____________________, to me personally known, who, being by me duly sworn, did say that they are the Mayor and 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 Ordinance No. ______ passed by the City Council under Roll Call No. ___________ of the City Council on the ______ day of ___________, 2016, and that Mayor and City Clerk, as such officers, acknowledge the execution of said instrument to be the voluntary act and deed of the City of Waukee, by them voluntarily executed. _______________________________________ Notary Public in and for the State of Iowa -6- Lolowau, LLC By: ___________________________________________ Charles Love, Manager Dated:__________________________ STATE OF IOWA ) ) ss. COUNTY OF ____________) On this _______ day of _____________, 2016, before me, a Notary Public in and for said county, personally appeared Charles Love, to me personally known, who being by me duly (sworn or affirmed) did say that he is the Manager of said limited liability company, that said instrument was signed on behalf of the said limited liability company; and, that said Charles Love, as such Manager, acknowledged the execution of said instrument to be the voluntary act and deed of said limited liability company, by it and by him voluntarily executed. ____________________________________ Notary Public in and for the State of Iowa 7 SUBORDINATION AGREEMENT Great Western Bank has a mortgage or lien on all or part of the “Property Owners Property” recorded at Book 2011, Page 10398 with the Dallas County Recorder’s Office on August 11, 2011. The undersigned does hereby subordinate its mortgage, lien, or property interest to the obligations and liens given by Property Owners in favor of the City under this agreement. GREAT WESTERN BANK By:_________________________________ Print Name: __________________________ Title: _______________________________ Dated:_____________________, 2016 STATE OF IOWA ) ) ss. COUNTY OF ____________) On this _______ day of _____________, 2016, before me, a Notary Public in and for said State and county, personally appeared ____________, to me personally known, who being by me duly sworn, did say that person is the _____________ of Great Western Bank, that said instrument was signed on behalf of the company by the authority of its ___________; and, that said ____________, as such _________, acknowledged the execution of said instrument to be the voluntary act and deed of said company, by it and by him voluntarily executed. ______________________________________ Notary Public in and for the State of Iowa My Commission expires ___________