HomeMy WebLinkAbout2021-10-04-J01J Agreement_Removal of Public Access & Rec Trail_1070 and 1065 Myles Ct\AGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: October 4, 2021
AGENDA ITEM:Consideration of approval of a resolution approving Agreement Concerning
Removal of Public Access and Recreational Trail with Husk Homes [1070
and 1065 Myles Court]
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: The owner, Husk Homes, LLC, of 1070 and 1065 Myles
Court desires to remove the trail currently situated on the Real Estate, and the City has agreed to
consent to the removal of the trail subject to the conditions set forth in the agreement. The City’s
consent to the removal is subject to the City’s right to replace the trail. The owner acknowledges and
agrees that the City has the right to construct, reconstruct, replace, and maintain a recreational trail in
the Easement Area at any time, unless and until the Easement is vacated or released of record. This
section of trail is anticipated to be removed as part of the Warrior Ln Improvements Phase 2 project.
These two lots are currently being developed with single family homes. The original intent of this
section of trail was to connect to a pedestrian underpass on the north side of Sugar Creek. With recent
Warrior Ln Ph 2 design development, the pedestrian underpass has moved to the south side of Sugar
Creek. This trail is likely not needed however this agreement preserves the City’s right to reinstall the
trail should it be deemed necessary.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the Resolution.
ATTACHMENTS: I. Resolution
II. Agreement Concerning Removal of Public Access and Recreational Trail
PREPARED BY: Beth Richardson
REVIEWED BY: Rudy Koester RK
J1J
THE CITY OF WAUKEE, IOWA
RESOLUTION 2021-
APPROVING AGREEMENT CONCERNING REMOVAL OF PUBLIC ACCESS AND
RECREATIONAL TRAIL WITH HUSK HOMES [1070 AND 1065 MYLES COURT]
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Iowa is a duly organized municipality within Dallas County;
AND,
WHEREAS, Owner owns certain property located in Dallas County, Iowa, and legally described
as follows (the “Real Estate”):
Lot 2 and Outlot 2A in Brandon’s Reserve, an Official Plat, now included
in and forming a part of the City of Waukee, Dallas County, Iowa;
AND
Lot 3 and Outlot 3A in Brandon’s Reserve, an Official Plat, now included
in and forming a part of the City of Waukee, Dallas County, Iowa.
WHEREAS, M & R Holdings, LLC, predecessor in title to the Owner, granted a Public Access
and Recreational Trail Easement, dated October 3, 2016, in favor of the City, recorded on
October 5, 2016, in Book 2016, at Page 19206, in the real property records of Dallas County,
Iowa (the “Easement”) which granted a perpetual easement for public access and trail right-of-
way to the City, together with the a right-of-way upon, over, under, through and across real
property described therein (the “Easement Area”).
WHEREAS, a recreational trail (the “Trail”) was previously constructed within the Easement
Area.
WHEREAS, the Owner desires to remove the Trail currently situated on the Real Estate, and the
City has agreed to consent to the removal of such Trail, subject to the conditions set forth 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 Trail Removal. Owner desires to remove the Trail located on the
Real Estate, and the City hereby consents to the removal of the Trail within the Easement Area,
subject to, and conditioned upon, the provisions of this Agreement. The City’s consent to
removal is subject to the City’s right to replace the Trail, as further defined in this Agreement.
2.Trail Replacement. The Owner acknowledges and agrees that the City has the
right to construct, reconstruct, replace, and maintain a recreational trail in the Easement Area
(the “Replacement Trail”), at any time, unless and until the Easement is vacated or released of
record. In the event the City exercises its rights under the Agreement within 48 months of the
Effective Date, the Owner shall be responsible for the costs associated with construction of the
Replacement Trail, and shall have the ability to direct, manage, coordinate, and oversee the
construction of the Replacement Trail in the Easement Area. If the City exercises such rights at
any time after the date which is 48 months from the Effective Date, the City shall be responsible
for all costs and expenses associated with the construction, reconstruction, replacement, and
maintenance of the Replacement Trail or any improvements or structures located within the
Easement Area. The Parties understand and agree that the Replacement Trail shall be of the same
or similar size and quality of the current Trail. The Parties shall cooperate in any construction of
the Replacement Trial to determine the size, quality, location, and other features of the
Replacement Trail if the Parties determine such size, quality, location, or other feature should
differ from the original Trail.
3.Limited Consent. The consent afforded by the City under this Agreement is
limited to the specific Trail and the Real Estate, as provided herein. The Owner is aware of the
terms of the Easement and understands that the consent afforded herein does not alter or
otherwise change Owner’s responsibilities as more particularly set forth in the Easement in any
way.
4.Hold Harmless. The Owner, and their successors and assigns, agree 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 Owner in
the Easement Area, or in any way arising out of or in connection with any occurrence in any way
related to this Agreement or the removal of the Trail 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 Owner and on the Owner’s 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.
7.Miscellaneous. 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.
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this
4th day of October, 2021, that it hereby approves the Agreement Concerning Removal of Public
Access and Recreational Trail [1070 and 1065 Myles Court].
____________________________
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