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HomeMy WebLinkAbout2021-10-04-J01H Termination of Development Agreement_Koethe AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: October 4, 2021 AGENDA ITEM: Consideration of approval of a resolution approving mutual termination and release of Development Agreement (Koethe Property). FORMAT: Resolution SYNOPSIS INCLUDING PRO & CON: The City entered into a development agreement with LeMar Koethe in 2007 for the development of a parcel located south of University and directly east of the school administration building. The agreement included requirements for certain public improvements in exchange for certain incentives by the City. The improvements were never made by the property owner and the term limits on the agreement have since lapsed. The property owner is in the process of selling the property and has requested this agreement be terminated to remove a title opinion objection that has been raised by the purchaser. 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. Mutual Termination and Release of Development Agreement PREPARED BY: Brad Deets, Assistant City Administrator REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: J1H THE CITY OF WAUKEE, IOWA RESOLUTION 2021- APPROVING MUTUAL TERMINATION AND RELEASE OF DEVELOPMENT AGREEMENT [KOETHE PROPERTY] 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 Council has previously entered into a Development Agreement with LeMar Koethe “Developer” dated April 21, 2007 and recorded in the Office of the Dallas County Recorder at Book 2007 Page 7604 concerning proposed development of a property located within the City of Waukee and certain incentives that were to be provided by the City in the event the Property was developed in accordance with said Agreement;; AND, WHEREAS, Developer has not developed the property as required by said Agreement and the Developer is not otherwise eligible for the incentives provided the City pursuant to said Agreement; AND, WHEREAS, the City and Developer acknowledge and agree that the Agreement should be terminated and of no further effect that both the City and the Developer should release and discharge each other from any and all obligations whatsoever arising by virtue of the Agreement. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa, that the Mutual Termination and Release of Development Agreement with LeMar Koethe is hereby approved. BE IT FURTHER RESOLVED that the Mayor is authorized to execute any and all documents to effectuate the Mutual Termination and Release of Development Agreement, and that the City Clerk shall cause the originals of the termination to be recorded upon the properties by submitting the original to the Dallas County Recorder with the appropriate recording fees. Passed by the City Council of the City of Waukee, Iowa, and approved this the 4th day of October, 2021. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman Pierce R. Charles Bottenberg Chris Crone Larry R. Lyon Ben Sinclair 1 e Prepared by: Steven P Brick, 6701 Westown Parkway Suite 100, West Des Moines, Iowa 50266 (515) 274-1450 Return to: City Clerk, City of Waukee, 230 W. Hickman Road, Waukee, Iowa 50263 (515) 978-7900 MUTUAL TERMINATION AND RELEASE OF DEVELOPMENT AGREEMENT This Mutual Release and Termination of Development Agreement, is entered into between the City of Waukee, an Iowa municipal corporation (hereinafter referred to as “City”); and LeMar Koethe (hereinafter referred to as “Developer”); and WHEREAS, Developer owns Property legally described on Exhibit A (the “Property”); and WHEREAS, Developer and the City entered into a Development Agreement dated April 21, 2007 recorded in the Office of the Dallas County Recorder at book 2007 page 7604 (“Agreement”) concerning Developer’s proposed development of the Property and certain incentives that were to be provided by the City in the event the Property was developed in accordance with said Agreement; and WHEREAS, Developer has not developed the Property as required by said Agreement and the Developer is not otherwise eligible for the incentives provided the City pursuant to said Agreement; and WHEREAS, the City and Developer acknowledge and agree that the Agreement should be terminated and of no further effect that both the City and the Developer should release and discharge each other from any and all obligations whatsoever arising by virtue of the Agreement; and Now, in consideration of the mutual promises as more particularly set forth herein, sufficiency of which is hereby acknowledged, the Parties agree to terminate the Agreement as follows: 1.Termination of Agreement. Developer and the City agree, and do hereby, terminate and discharge the Development Agreement dated April 21, 2007 recorded in the Office of the Dallas County Recorder at book 2007 page 7604 (“Agreement”) and 2 by virtue of such action said agreement shall be considered terminated, void and of no further effect. 2.Developer Representation. Developer represents and warrants that Developer has not assigned, or otherwise attempted to assign the Agreement to any other party pursuant to said Agreement. Developer further represents and warrants that he has full and complete authority to terminate the Agreement and release the City from any and all of the City’s obligations under the Agreement. 3.Mutual Release and Discharge. The parties, and each of them, do hereby release aquit and forever discharge the other party from any and all claims, demands, or suits of any kind in anyway arising from, or otherwise related to, the Agreement. 4.This Agreement (including all exhibits attached or be attached to this Agreement by reference), is subject to the prior approval of the City Council of the City of Waukee, as well as the Developer and thereafter all parties shall be bound by this Agreement. 5.Binding Effect. This agreement shall inure to the benefit of and be binding upon all parties their successors and interests or assigns, if any. 6. Jurisdiction. The parties agree that this Agreement and amendments hereto, if any, shall be governed by the laws of the State of Iowa. The parties consent and agree that the proper venue and jurisdiction relative to the enforcement of the terms, conditions and provisions of this Agreement and amendments hereto, if any, is the Iowa District Court in and for Dallas County, Iowa. [Signature pages follow.] 3 CITY OF WAUKEE, IOWA By___________________________________, Mayor By___________________________________, City Clerk Dated:___________________, 2021 (City Seal) STATE OF IOWA ) ) ss. COUNTY OF DALLAS ) On this _____ day of _________________, 2021, before me the undersigned, a Notary Public in and for the State of Iowa, personally appeared Courtney Clarke and Rebecca D. Schuett, to me personally known, 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 instrument was signed and sealed on behalf of the City by authority of its City Council, as contained in Resolution No. ______ passed by the City Council on the _____ day of ______________, 2021, and that Courtney Clarke and Rebecca D. Schuett, as such officers, acknowledged the execution of the instrument to be the voluntary act and deed of the City, by it and by them voluntarily executed. _______________________________________ Notary Public in and for the State of Iowa 4 LEMAR KOETHE ___________________________________________ Dated:___________________, 2021 STATE OF IOWA ) ) ss. COUNTY OF ____________) On this ____ day of ______________, 2021, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared LeMar Koethe, to me personally known, who being by me duly sworn, did say that he acknowledged the execution of the foregoing instrument to be his voluntary act and deed and by him voluntarily executed. ____________________________________ Notary Public in and for the State of Iowa