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HomeMy WebLinkAbout2021-10-04-Resolution 2021-417_Easement Removal, Public Access and Recreational Trail, Brandon's ReserveTHE CITY OF WAUKEE, IOWA RESOLUTION 2021-417 APPROVING AGREEMENT CONCERNING REMOVAL OF PUBLIC ACCESS AND RECREATIONAL TRAIL WITH HUSK HOMES [1070 AND 1065 MYLES COURT] IN THE NAME AND BY THE A UTHORITY 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 41h day of October, 2021, that it hereby approves the Agreement Concerning Removal of Public Access and Recreational Trail [1070 and 1065 Myles Court]. ley Courtney Clar �yor Attest: fi&ut� Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE Anna Bergman Pierce X R. Charles Bottenberg X Chris Crone Larry R. Lyon X Ben Sinclair X NAY ABSENT X ABSTAIN