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HomeMy WebLinkAbout2016-11-21-J01O Landing at Shadow Creek Plat 4_Amended PCW AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: November 21, 2016 AGENDA ITEM: Consideration of Approval of a Resolution approving Amended and Substituted Petition, Contract and Waiver for Landing at Shadow Creek Plat 4 FORMAT: Consent SYNOPSIS INCLUDING PRO & CON: As a part of the final plat for the Landing at Shadow Creek Plat 4, the developer signed a Petition, Contract and Waiver related to future obligations to improvements to Alice’s Road which abuts the property that was final platted. The developer is requesting the City Council approve an amended Petition, Contract and Waiver so that any future assessments only apply to the commercial and townhome zoned lots within the subdivision and not the single family lots as was approved with the original document. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Staff would recommend approval of the resolution. RECOMMENDATION: Approve the Resolution ATTACHMENTS: I. Proposed Resolution II. Amended and Substituted Petition, Contract and Waiver PREPARED BY: Brad Deets REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: THE CITY OF WAUKEE, IOWA RESOLUTION 16- APPROVING AMENDED AND SUBSTITUTED PETITION, CONTRACT AND WAIVER – LANDING AT SHADOW CREEK PLAT 4 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 of Waukee has previously approved a final plat for Landing at Shadow Creek Plat 4 which included a Petition, Contract and Waiver related to future improvements associated with Alice’s Road widening; AND, WHEREAS, said Petition, Contract and Waiver was recorded on October 11, 2016 in Book 2016 at Page 19693 in the office of the Recorder for Dallas County, Iowa; AND, WHEREAS, the City of Waukee and the developer, Landing at Shadow Creek, LLC desire to amend and substitute the original agreement to encumber only lots 33-36 of Landing at Shadow Creek Plat 4. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa on this the 21st day of November, 2016, that the Amended and Substituted Petition, Contract and Waiver for the Landing at Shadow Creek Plat 4 be approved. ____________________________ 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 1 Prepared by: Brad Deets, City of Waukee, 230 W. Hickman Rd, Waukee, IA 50263 515-978-7899 Return to: Rebecca Schuett, City of Waukee Clerk, 230 W. Hickman Road, Waukee, IA 50263 AMENDED AND SUBSTITUTED PETITION, CONTRACT AND WAIVER THIS AMENDED AND SUBSTITUTED PETITION, CONTRACT AND WAIVER (this “Agreement”) is made and entered into by and between the City of Waukee, Iowa (hereinafter referred to as the "City"), and Landing at Shadow Creek, LLC (hereinafter referred to as the "Property Owner"): WHEREAS, Property Owner and the City entered into a Petition, Contract and Waiver recorded October 11, 2016 in Book 2016 at Page 19693, in the office of the Recorder for Dallas County, Iowa (the “Original Agreement”). The parties now desire to amend and substitute the Original Agreement to encumber only the following real property owned by Property Owner: Lots 33, 34, 35, and 36 of Landing at Shadow Creek Plat 4, an Official Plat, now included in and forming a part of the City of Waukee, Dallas County, Iowa; (collectively referred to as the “Property” and individually as a “Lot”). WHEREAS, by recording this Agreement, that this Agreement shall entirely amend and substitute the Original Amendment and all terms, provisions, covenants, conditions, rights and obligations set forth therein and shall supersede and replace in full the Original Agreement in its entirety. WHEREAS, the widening of Alice’s Road is contemplated as a result of the development of Landing at Shadow Creek Plat 4, an Official Plat in the City of Waukee, Dallas County, Iowa (hereinafter to as the “Final Plat”), and such improvements will need to be coordinated with development of adjacent areas and Property Owner requests the City to undertake said improvements on the installation and completion of said improvements as coordinated at the City’s sole discretion and assess the cost of said improvements adjacent to the Property as the improvements are undertaken by the City; and WHEREAS, Property Owner recognizes the activities it seeks to undertake will have some burden on the public infrastructure and surrounding neighborhoods and seeks to address traffic, 2 transportation, public safety and other infrastructure burdens, advance the general welfare and encourage efficient urban development patterns to assure the public burdens are mitigated; and WHEREAS, the Waukee Municipal Code and Iowa law requires Property Owner to undertake public improvements deemed by the City necessary to mitigate such burdens on infrastructure and Property Owner desires the City Council to consider the request that the City undertake the improvements set forth herein as satisfying such obligations as part of its consideration of the approval of Property Owner’s Final Plat. NOW, THEREFORE, in consideration of the City’s approval of the Final Plat, Property Owner petitions, agrees, promises and commits as follows: 1. PROPERTY OWNER PETITIONS THE CITY AS FOLLOWS: Paving. Property Owner petitions that the City undertake the improvement of a 3 ½ foot concrete curb and gutter, ten foot trail, storm sewer and street lights on Alice’s Road in the City owned ROW locally known as Alice’s Road (collectively “Alice’s Road Improvements”) at such time, or times if each project is determined to be done separately, as the City, in its sole discretion, determines. The Property Owner acknowledges and requests that the Property will be assessed for the costs of any such improvements, as determined by the City Council of the City of Waukee, Iowa. Except the Property, the City shall not assess any other property within the Final Plat for the Alice’s Road Improvements. The costs of the Alice’s Road Improvements shall be levied against the owners of any portion of the Property in accordance with the terms of the Petition and Waiver set forth below. THIS MEANS THAT ANY PROPERTY OWNER OF RECORD WHO OWNS A PORTION OF THE PROPERTY (as defined on Page 1) AT THE TIME THE ALICE’S ROAD IMPROVEMENTS ARE CONSTRUCTED MAY BE ASSESSED A PORTION OF THE COST OF THE IMPROVEMENTS. In such event, each property owner of record at the time of the assessment agrees to and shall pay its assessable costs for such improvement and agrees to waive objections to such assessment. The property owner of record at the time of the assessment agrees to said assessment and agrees that amount of such assessment may equal the cost of such improvements lying adjacent to the property owner’s property. Costs may be determined by dividing the total project costs including construction costs, engineering and legal costs for the project and dividing them by the linear feet of project and dividing them by the linear feet of the property owner’s property adjacent to Alice’s Road. Alternatively, the City may assess each Lot equally despite the fact that Chapter 384 of the Iowa Code or Court decisions would otherwise impose a limitation in connection with the proximity of the public improvements to the Lot being assessed. The Property Owner, as well as all subsequent purchasers, successors in interest and assigns, hereby waive any objection to the legality of the City spreading special assessments equally among the Lots to the extent that the City is otherwise legally able to specially assess the Property in the future pursuant to Chapter 384 of the Iowa Code. In consideration of the construction of said improvements the undersigned Property Owner hereby waives the public hearing on the adoption of the Resolution of Necessity and the mailing and publication of Notice thereof, and all other 1egal formalities or limitations of whatsoever kind or character required by the laws of Iowa to be observed by cities in the construction of said improvements where the expense of said improvements is to be assessed against private property. The undersigned Property Owner each and all hereby expressly waive each and every question of 3 jurisdiction, the intention of the Property Owner being to authorize and direct said City to construct the improvement without requiring any of the formalities, limitations or legal proceedings required of cities by the statutes of Iowa. It is further agreed that upon the construction of said improvements in accordance with the plans and specifications the City approves, in its sole discretion, that the City may make assessments against the Propert y for the entire cost of the construction of said improvements, including the cost of legal, engineering, supervision, preparation of assessment schedule, and a ten percent Default and Deficiency Fund as authorized by Section 384.44, City Code of Iowa, and that said assessments so made shall be a lien upon the Property, and each of the owners of record shall pay the amount which is thus assessed against his Lot, and said assessment shall have the same legal force and effect as if all the legal formalities provided by law in such cases had been fully and faithfully performed and observed. The Property Owner hereby expressly waives every objection to said assessment, any limitation of the amount thereof as a percentage of valuation and any right to defer or postpone payment of the assessment. Said assessment shall be paid by the property owners of record within the time provided by Statute for the payment of special assessments for such improvements. The property owner, if entitled to Agricultural deferment under Chapter 384 of the City Code of Iowa, hereby waives their right to such deferral. 2. GENERAL PROVISIONS. 1. Each party warrants and represents that the execution, delivery and performance by it of its respective obligations under this Agreement (i) do not contravene any law or any contractual provision binding on it and (ii) do not require any consent or approval of any person or governmental authority except such consents and approvals as have been obtained are in full force and effect. 2. Each party warrants and represents that this Agreement constitutes a legal, valid and binding obligation and is enforceable in accordance with its terms. 3. This Agreement shall be recorded at the Dallas County Recorder’s office and shall be binding on Property Owner, its successors and assigns. [Signature page follows.] 4 THE CITY OF WAUKEE, IOWA LANDING AT SHADOW CREEK, LLC: By: ________________________________ By: ________________________________ William F. Peard, Mayor William B. Spencer, Manager ATTEST: By: ________________________________ 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 William B. Spencer, to me personally known, who being by me duly sworn, did say that the person is the Manager of Landing at Shadow Creek, LLC, an Iowa limited liability company, and that the instrument was signed on behalf of said company by authority of its Operating Agreement; and that said person acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the company and by it voluntarily executed. ____________________________________ Notary Public in and for the State of Iowa My Commission expires ___________ 5 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 City Clerk, respectively, of the City of Waukee, Iowa; that the seal affixed to the foregoing instrument is the official seal of said City, and that the instrument was signed and sealed on behalf of the City, by authority of its City Council, 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 City, by it and them voluntarily executed. ________________________________ Notary Public in and for the State of Iowa My Commission expires __________