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 ___________