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HomeMy WebLinkAbout2016-08-01-J02 Fence Agr_610 SE Driftwood Ln AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: August 1, 2016 AGENDA ITEM: Consideration of approval of a resolution approving Agreement Concerning Construction of Fence [610 SE Driftwood Lane] FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: Residents of the property at 610 SE Driftwood Lane spoke at the July 18th City Council open forum regarding an issue related to a fence that had been constructed on their property. The property fronts SE Driftwood Lane but backs up to SE Westown Parkway. A permit had been granted for the construction of a chain link fence. The plans that were submitted for the fence permit did not accurately depict the location of the proposed fence in relation to the landscape buffer easement and it appears there was some confusion related to the location of the property line. The subject property was originally preliminary platted in 2007 as a part of the Grant Park Plat 2 subdivision. The lots along Driftwood Lane however were not final platted until 2013 as a part of Grant Park Plat 3 because of lack of sewer to service the lots. Back in 2007, the City’s landscape buffer requirements for double frontage streets were 10 feet, meaning a residential fence could be constructed 10 foot off of the property line. Between 2007 and 2013, the City’s landscape buffer requirements were changed to 25 feet for double frontage lots due to the Council’s desire to create greater separation between residential backyards and major roadways. Because of this, the new 25 foot landscape buffer requirement was applied to the lots along Driftwood Lane when they were final platted in 2013. The problem however, is that the dimensions of the lot were essentially set in 2007 with the approval of the preliminary plat at 141 feet in depth. This lot depth really is not adequate to accommodate a 25 foot landscape buffer and still provide a decent rear yard. For example, the lots on the south side of Westown Parkway were all developed with 150 feet in depth which creates additional rear yard to accommodate the landscape buffer on the south side of Westown Parkway. To compound issues with the lots along Driftwood Lane, there is also a substantial drainage channel that cuts through the middle of the rear yards. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Based upon the analysis of the platting documents and review of other fence locations along the north side of SE Westown Parkway, it would be staff’s recommendation to allow for the fence to be placed at a 10 foot setback from the property line versus the 25 feet as currently required. Staff would suggest using the similar agreement process that the City uses for fences that are located within other easements are approved on a routine basis. This would only be applicable to those lots along SE Driftwood Lane that back up to SE Westown Parkway. Staff believes this is a unique situation and is unaware of any other subdivisions that have a similar situation. RECOMMENDATION: Approve the Resolution. ATTACHMENTS: I. Proposed Resolution II. Fence Agreement PREPARED BY: Brad Deets REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: THE CITY OF WAUKEE, IOWA RESOLUTION 16- APPROVING AN AGREEMENT CONCERNING CONSTRUCTION OF FENCE [610 SE DRIFTWOOD 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 duly organized Municipal Organization; AND, WHEREAS, DAVID J AND DIANE LOUISE POTTS , are the owners of Lot 28 in Grant Park Plat 3 (“Property Owner”); AND, WHEREAS, the Property Owners are desirous of installing a fence on the property; AND, WHEREAS, KNC, L.L.C., an Iowa limited liability company, predecessors in title to the Property Owners, granted that certain Landscape Buffer Easement, dated October 31, 2013, recorded on November 13, 2013, in Book 2013, Page 20802 (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: Rebecca D. 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 [610 SE DRIFTWOOD LANE] This Agreement of Consent (“Agreement”) is entered into by and between TECK GENERAL SERVICES, (the “Property Owner”) and the CITY OF WAUKEE, IOWA, a municipal corporation (hereinafter called “City”). WHEREAS, Property Owner own that property legally described as: Lot 28 of Grant Park Plat 3, City of Waukee, Dallas County, Iowa WHEREAS, KNC, L.L.C., an Iowa limited liability company, predecessors in title to the Property Owners, granted that certain Landscape Buffer Easement, dated October 31, 2013, recorded on November 13, 2013, in Book 2013, Page 20802 (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 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 landscape buffer area, 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 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 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 ______________, 2015. PROPERTY OWNERS ________________________________ DAVID J POTTS ________________________________ DIANE LOUISE POTTS 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 DAVID J POTTS, 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 DIANE LOUISE POTTS, 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 _______________, 2015, 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 LANDSCAPE BUFFER EASEMENT LOCATED IN GRANT PARK PLAT 3, AN OFFICIAL PLAT IN THE CITY OF WAUKEE, DALLAS COUNTY, IOWA, THAT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE NORTH 15.00 FEET OF THE SOUTH 25.00 FEET OF LOT 28 IN GRANT PARK PLAT 3.