HomeMy WebLinkAbout2017-02-06-J01zII Fence Agr_2805 SE Belfry Dr AGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: February 6, 2017
AGENDA ITEM: Consideration of approval of a resolution approving an Agreement
Concerning Construction of Fence [2805 SE Belfry Drive].
FORMAT: Consent Agenda
SYNOPSIS INCLUDING PRO & CON: The owners of property located at 2805 SE
Belfry Drive desire to place a fence within the back yard within a portion
of an overland flowage easement.
Staff has reviewed the proposed fence request and feels comfortable that
the proposed fence will not adversely impact access to the easement.
The attached Fence Agreement specifies the property owner’s
maintenance responsibilities and requirements for removing the 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 Fence.
RECOMMENDATION: Approve the Resolution
ATTACHMENTS: I. Proposed Resolution
II. Agreement
PREPARED BY: Andy Kass, Senior Planner
THE CITY OF WAUKEE, IOWA
RESOLUTION 17-
APPROVING AN AGREEMENT CONCERNING CONSTRUCTION OF FENCE [2805
SE BELFRY DRIVE]
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, RONALD JOHN CELSI & AMY CHRISTINE CELSI, are the owners of Lot 16
in Belfry Estates (“Property Owner”); AND,
WHEREAS, the Property Owners are desirous of installing a fence on the property; AND,
WHEREAS, Mark Anderson Development, LLC, an Iowa limited liability company,
predecessor in title to the Property Owner, granted that certain Surface Water Flowage
Easement, recorded in Book 2000, Page 668, (collectively the “Easement”) AND,
WHEREAS, the fence is intended to be erected within a portion of the Easement; AND,
WHEREAS, the Easement prohibits the Property Owners 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 fence within a portion of
the Easement area pursuant to the terms of the Agreement Concerning Construction of Fence.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa on
this 6th day of February, 2017 that the Agreement Concerning Construction of 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.
____________________________
William F. Peard, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
ROLL CALL VOTE AYE NAY ABSENT ABSTAIN
Anna Bergman
R. Charles Bottenberg
Brian Harrison
Shelly Hughes
Larry R. Lyon
WHEN RECORDED RETURN TO:
Rebecca D. Schuett
Waukee City Clerk
230 W. Hickman Road
Waukee, Iowa 50263
Preparer
Information: Andrew A. Kass, City of Waukee, 230 W. Hickman Road, Waukee, Iowa 50263 Phone: (515) 987-4522
_______________________________________________________________________________________________________
AGREEMENT CONCERNING CONSTRUCTION OF FENCE [2805 SE BELFRY
DRIVE]
This Agreement of Consent (“Agreement”) is entered into by and between RONALD
JOHN CELSI & AMY CHRISTINE CELSI, (the “Property Owners”) and the CITY OF
WAUKEE, IOWA, a municipal corporation (hereinafter called “City”).
WHEREAS, Property Owners own that property legally described as:
Lot 16 of Belfry Estates, City of Waukee, Dallas County, Iowa
WHEREAS, Mark Anderson Development, LLC, an Iowa limited liability corporation,
predecessor in title to the Property Owners, granted that certain Surface Water Flowage
Easement, dated January 19, 2000, recorded on January 24, 2000 in Book 2000, Page 668, (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 Owners desire to construct a 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 FENCE. The Easement prohibits
Property Owners from locating any 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 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 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 storm sewer line and
or overland flowage, 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 fence or any improvements or structure located on the Property
within the Easement Area. Property Owners further understands and agrees that upon 30 days
written notice from the City, Property Owners shall remove the fence and associated material
from the easement area, and restore the easement area to its state prior to the installation of the
fence, at property owners sole cost and expense.
3. NO CHANGE. This agreement does not alter, modify or otherwise change any
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
fence and location provided herein. The Property Owners are aware of the terms of the Easement
and understands that the consent afforded herein does not alter or otherwise change Property
Owners 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 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 ______________, 2016.
PROPERTY OWNERS
________________________________
RONALD JOHN CELSI
________________________________
AMY CHRISTINE CELSI
By: ___________________________
William F. Peard, Mayor
Attest:
_____________________________
Rebecca D. Schuett
City Clerk
STATE OF IOWA )
) SS
COUNTY OF __________ )
On this _____ day of __________________, 2016, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared RONALD JOHN CELSI, 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 __________________, 2016, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared AMY CHRISTINE CELSI, 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 _______________, 2016, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared William F. Peard 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 _______________, 2016, and that William F. Peard 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 SURFCE WATER FLOWAGE EASEMENT LOCATED IN BELFRY ESTATES, AN
OFFICIAL PLAT IN THE CITY OF WAUKEE, DALLAS COUNTY, IOWA, THAT IS MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
THE NORTH 50.00 FEET OF LOT 16 IN BELFRY ESTATES.
EXHIBIT B
LOCATION OF FENCE
= Fence Location