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Home My WebLink About2016-08-01-J01V Fence Agr_170 SE Hazelwood Dr AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: August 1, 2016 AGENDA ITEM: Consideration of approval of a resolution approving an Agreement Concerning Construction of Fence [170 SE Hazelwood Drive]. FORMAT: Consent Agenda SYNOPSIS INCLUDING PRO & CON: The owners of property located at 170 SE Hazelwood 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 the water flow through the property. Staff is agreeable to allowing the fence with the understanding that if it becomes a problem with storm water flowage, then it will be at the property owner’s expense to move the fence out of 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 16- APPROVING AN AGREEMENT CONCERNING CONSTRUCTION OF FENCE [170 SE HAZELWOOD 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, CHARLES GOAD, II, is the owner of Lot 84 in Hemingway Plat 1 (“Property Owner”); AND, WHEREAS, the Property Owners are desirous of installing a fence on the property; AND, WHEREAS, Boardwalk Development Company, No. II, LLC, an Iowa limited liability company, predecessor in title to the Property Owner, granted that certain Surface Water Flowage Easement, recorded in Book 2006, Page 1201, (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 1st day of August, 2016 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 Brian Harrison Shelly Hughes Larry R. Lyon Rick Peterson WHEN RECORDED RETURN TO: Becky Schuett Waukee City Clerk 230 W. Hickman Road Waukee, Iowa 50263 Preparer Information: Bradly M. Deets, City of Waukee, 230 W. Hickman Road, Waukee, Iowa 50263 Phone: (515) 987-4522 _______________________________________________________________________________________________________ AGREEMENT CONCERNING CONSTRUCTION OF FENCE [170 SE HAZELWOOD DRIVE] This Agreement of Consent (“Agreement”) is entered into by and between CHARLES GOAD, II (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 84 of Hemingway Plat 1, City of Waukee, Dallas County, Iowa (the “Property”). WHEREAS, Stephen R. Grubb, as President of Boardwalk Development Company, No. II, L.L.C.., an Iowa corporation, predecessor in title to the Property Owners, granted that certain Surface Water Flowage Easement, dated October 18, 2005, recorded on January 26, 2006, in Book 2006, Page 1201 (the “Easement”), in the real property records of Dallas County, Iowa 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 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 Owner 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 Owner desires 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, which location is within the Easement Area on Lot 85 of Hemingway Plat 1. 2. MAINTENANCE AND LIABILITY. The Property Owner acknowledges and agrees 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 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. In the event the fence causes adverse drainage issues across the Property or adjacent properties, Property Owner shall be required to remove the fence out of the easement area upon written request from the City. 3. NO OTHER CHANGE. Except as amended herein, each and every term, condition, warranty and provision of the Easement shall remain in full force and effect, and such are hereby ratified, confirmed and approved by the parties hereto. 4. 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. 5. 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 OWNER ________________________________ CHARLES GOAD, II CITY OF WAUKEE 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 CHARLES GOAD, II, 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 acts 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 SURFACE WATER FLOWAGE EASEMENT LOCATED IN HEMINGWAY PLAT 1, AN OFFICIAL PLAT IN THE CITY OF WAUKEE, DALLAS COUNTY, IOWA THAT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE SOUTH 20.00 FEET OF LOT 84 IN HEMINGWAY PLAT 1. EXHIBIT B LOCATION OF FENCE