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.