HomeMy WebLinkAboutA010 - Correspondence from Hogan Law Office and Amerco Real Estate Company HOGAN LAW OFFICE
3101 INGERSOLL AVENUE, SUITE 103
DES MOINES, IOWA 50312
(515)279-9059
FAX(515)277-5836
TIMOTHY C. HOGAN
COURTNEY I.SCHULTZ
December 20, 2016
VIA E-MAIL (dvoss@eity.amesda.us) and US MAIL
Mayor Campbell
PO BOX 811
515 Clark Avenue
Ames, Iowa 50010
RE: Access Easements—S. Duff Median Project
Dear Mayor Campbell and the Ames City Council:
I am writing on behalf of Boston Commons Ames, LLC, which owns the property located at 806
S. Duff Avenue. As you know, the City staff has been working with the Iowa Department of
Transportation and the property owners along this portion of South Duff Avenue in connection
with the South Duff Access Project. This matter will be considered by the Council on January
10th
My client has been, and continues to be, concerned about access to and from the traffic signal
planned on S. Duff Avenue. Throughout this process, we have reiterated the need for private
easements to facilitate access to the traffic signal from the properties located on the east side of
Duff Avenue.
It appears that instead of creating a comprehensive easement system, the City has elected to
pursue easements with U-Haul and Walmart directly without involving the impacted property
owners. An access easement with U-Haul was recorded earlier this fall, but the easement neither
grants public access nor includes my client's property as a benefited party. Because of these
defects, the easement fails to establish access to the proposed traffic signal from my client's
property.
Similarly, the easement being developed between Walmart and the City is also defective. On
November 16, 2016, we provided comments to the initial draft Walmart easement, which are
attached for your reference. To date, our comments have not been addressed and we have not
been given the opportunity to be involved in any further discussion of the Walmart easement.
To ensure sufficient access to the proposed traffic signal, it is imperative that the impacted
properties are included in the easements. We request that the Council direct City legal staff to
create a comprehensive easement system that includes all of the impacted properties located on
the east side of S. Duff. Although we cannot support the easements in their current form,we look
forward to working with the City to reach an acceptable solution.
Thank you for your consideration.
UN4
Courtney I. Schultz
Cc: Harry Wolf—Boston Commons Ames, LLC (via e-mail only)
Damion Pregitzer—City of Ames—Engineering(via e-mail only)
Judy Parks—City of Ames Attorney(via email only)
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Commercial Design and Development
AMERCO REAL ESTATE COMPANY•2727 N.CENTRAL AVE.•PHOENIX,AZ 85004
PHONE:(602)263-6502•FAX:(602)277-1026
Date; December 19, 2016
To: Honorable Mayor Ann Campbell and City Council Members
Re: Request for Text Amendment—722 S Duff Ave.
Section 29.1308(1)(c)(i)(ii)and (d)—Building Height and Roof Pitch
Cc: Mr. Charlie Kuester
Honorable Mayor Cambell and City Council Members;
This letter is our request to be referred by your board and allow us to seek the necessary approvals
for a Text Amendment to City Code, Section 29.1308(1)(c)(i)(ii) and (d).
In order to maintain consistency with the required City Standards set forth in the Highway-Orientated
Commercial"HOC'zone. We are requesting a Text Amendment to Section 29.1308(1)(c)(i)(ii) and (d).
This request would allow our proposed building design to follow the architectural standards and aesthetics
that are currently in place with all the existing surrounding buildings.
Thank you for your consideration of this request.
David Pollock,
Amerco Real Estate/ U-Haul International
HOGAN LAW OFFICE
3101 INGERSOLL AVENUE,SUITE 103
DES MOINES, IOWA 50312
(515)279-9059
FAX(515)277-5836
TIMOTHY C. HOGAN
COURTNEYI. SCHULTZ
November 16, 2016
Via U.S. Mail and E-mail to jparks@city.ames.ia.us
Judy K. Parks
City of Ames Legal Department
515 Clark Avenue
PO Box 811
Ames, IA 50010
RE: Cross Access Easements—South Duff Project
Dear Judy,
Our office represents Boston Commons Ames, LLC, which owns the property located at 806 S.
Duff Avenue. I have reviewed the draft cross access easement and the easement addendum that
was circulated by the City. Attached for your review please find a redlined draft of the easement
agreement with the following comments incorporated:
Easement Agreement
1. The first paragraph should be revised to include the proper legal entity for each grantor.
The addresses listed in this paragraph should also be removed. The body of the easement
should include notification addresses for the owners (also see comment#12 below).
2. The legal descriptions for the four burdened properties (Wal-Mart, Sage, Wendy's, and
Uhaul) should be added.
3. The properties benefiting from the easement (which includes all of the properties lying
south of SE 51h Street and east of S. Duff Avenue) should be defined as "Benefited
Properties."The legal descriptions for all of the Benefited Properties should be added.
4. The easements should be granted to the owners of all of the benefited properties (and not
just the owners of the four burdened properties).
5. The easements should be granted for the benefit of the owners and permittees (including
occupants, agents, customers, business invitees, etc.).
6. The easement should identify the parties responsible for constructing the improvements
and should include a deadline for completion (see Paragraph 7 of the attached draft).
7. Each owner,at its expense, should maintain the portion of the easement area located within
its parcel and should ensure no obstructions interfere with the use of the easement area.
8. If an owner fails to maintain the easement area, the other owners shall have the option to
perform the maintenance and the violating owner should be responsible for the costs.
November 16,2016
Page-2-
9. The owners of the burdened properties should maintain liability and property insurance to
cover incidences occurring within the easement area. Certificates of insurance should be
provided upon request.
10.As I understand, there will be a multi-panel monument sign located along S. Duff as well
as other directional signage to the east of S.Duff.The easement agreement needs to address
signage; specifically, the following items should be included:
a. Locations of signage
b. Party/parties that will be responsible for the initial cost of construction and
installation
c. Party/parties that will be responsible for the ongoing maintenance and associated
costs
d. An exhibit depicting the signage and indicating which party has control over which
panels should be attached.
11.Two easements from Uhaul were previously obtained by the City(see the Access Easement
recorded on May 17, 2016 as Instrument No 2016-0004170 and the Access Easement
recorded on August 22,2016 as Instrument 2016-00008082).These Access Easements did
not establish public ingress egress or provide the Benefited Properties with access. Since
these Easements are defective, they should be released of record to avoid confusion.
Alternatively, the new easement agreement should reference the prior recorded easements
(see Paragraph 15 of the attached draft).
12. The agreement should require that all notices be in writing and should provide an address
for each owner. I suggest that notices be sent to the address shown on the real estate
property tax rolls for each property.
13.The grantors' signature blocks need to be revised to provide the correct legal entities.
14. Signature blocks for the owners of the benefited properties should be added.
Exhibit A-Addendum to Easement
15.The first paragraph of the Addendum should not be included in the easement agreement
because the grantees are not responsible for constructing or maintaining the easement areas.
16.The second paragraph of the Addendum is an indemnification provision that should not
be included in the easement agreement. Since the grantees are not maintaining the
easement areas, an indemnification provision is not needed.
17. The third paragraph of the Addendum should not be included.Paragraph 6 of the easement
agreement addresses modification of the easements.
18. The fourth paragraph of the Addendum calls for the owners of the benefited properties to
carry insurance. This provision is not appropriate in this case because the owners of the
burdened properties will maintain the easement area located within their respective parcels.
The owners of the burdened properties should maintain liability and property insurance to
November 16, 2016
Page-3-
cover incidences occurring within the easement area(see comment#9 above and Paragraph
11 in the attached draft).
Please let me know if you would like to schedule a time to discuss. We look forward to receiving
a revised draft.
Ucer-ely,
Courtney I. Schultz
courtney@hoganlawoffice.net
cc: Charles Kuester via email only-ckuester@city.ames.ia.us
Damion Pregitzer via email only-dpregitzer@city.ames.ia.us
Mark Crawford via email only-mcrawford@cgaconsultants.com
Boston Commons Ames, LLC (Harry Wolf)via email only
Formatted:Left: O 5,Right: 0 5 Top: 0.5",Bottom
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CROSS ACCESS EASEMENT AGREEMENT
AaThis Agreement is entered this day of 20 2016 between Wal-Mart Rea
..-.m.:.. s e , I t, ta. �m e ur Qth e. ra
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�, n�,totes;InC.,,a Delaware Statutory Trust,^' I, Commented[C51]:See comment#1 in letter
2001—oo,S.E.101n etFeet n itn: ealt,,,,,,,,,,,,,,,,,,ent#9384 Bent,.nyill n n 727716 0550 and L.O.F.a,.,..,,Fne
businessleeated at 520 South Dti ff n..enu rime Tewa 5004-0Ted and Dawn Sage as Trustees of the Ted 1.
and Dawn Sage Revocable Trust dated November 3, 1993("Sage"), and Garden Spot Real Estate(d/b/a
Wendy's), ^ ,.,..,,.,,erGial business 1,,e ted .,t 529 Song, _Pug Avenue, Ames, ,,,...., 5001 an Iowa general
partnership,and Amerco Real Estate Company(d/b/a Uhaul),- ial z,^s:^^s;,.t,,,..,t.,e.,t at'71 n 8oti fi,D F� '
n..,,.,ue Ames,lee. ,,,5001 an Arizona corporation. �l
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RECITALS t
1. Wal-Mart(Property Owner A)is the record owner of certain real estate(TFastlally dese�gibed oti
ExhibltA�and located at 534 South Duff Avenue,an3 6. Commented.[C521:See comment 92,in letter
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2. &9-.&Sane(Property OwnerB)is the record owner of certain real estate B)le legally described
on Exhibit A and located at 520 South Duff Avenue;and,
3. Wendy's(Property Owner C)is the record owner of certain real estate(TraGt C;)lcgally described
on Exhibit A and located at 528 South Duff Avenue,and;, l
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4. Uhaul(Property Owner D)is the record owner of certain real estate(Traet9)legatly described on
Exhibit A and located at 710 South Duff Avenue,—and;. I
5. The parties listed abo eterm"Burdened Properties"shall collectively refer to the properties owned
by Wal-Mart,Sage.Wendy's,and Uhaul.
6. The term 'Benefited Properties"1,shall collectively refer to the Burdened Properties and the J_ Commented�[C531:Sea comment 93 in letter
properties legally described on Exhibit B.
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7. The term"Owner"shall mean the record holder of fee simple title to a Parcel(including its heirs, i
personal representatives,successors.and assigns).
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S. The Benefited Properties are individually referred to as a"Parcel".
9. The term"Permittees" shall mean the occupants of a Parcel, and their respective employees, j
agents,contractors,licensees,vendors,suppliers.customers,visitors.and business invitees.
-5,10. The Owners of the Burdened Properties desire to grant to eaehthe other Owners a cross access
easement for the purposes of ingress and egress over their respective parcels to assist in traffic
flow and for the purpose of public access. f
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AGREEMENT
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NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. Property Owner hereby grants to PrepeA•0"gie•'s n G,ana r .7act O,,tig an non-exclusive Commented[C54]:See comment#4 in letter
easement for ingress and egress over Tract A-as depicted in Exhibit A-.C.
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2. Property Owner hereby grants to P-^ ^«,.n,...,e. n G, .,+�ach Owner an non-exclusive
easement for ingress and egress over Tract B as depicted in Exhibit A-.C.
3. Property Owner C hereby grants to PrepeFt,Owner's ^ " and P aneach Owner an non-exclusive
easement for ingress and egress over Tract C as depicted in Exhibit A+C.
4. Property OwnerD hereby grants to ach Owner an non-exclusive
easement for ingress and egress over Tract D as depicted in Exhibit A-.C.
5. he,easemeuts hall benefit n.,_,.el ^ n r an4 r` the Benefited Properties and their respective Commented[C551.See comment 95 in letter r '
Owners and Pennittees.The easements shall run with the land and shall be binding on and shall
insereinure to the benefit of the paFti, .t,eiF r,.s..eetive heir .............ers,...i.ig Owners. {
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6. The easements granted herein shall continue until expressly terminated or modified by written
agreement between the paFties,a,.,:..sueeessers, r the executed by all of the Owners
and Aiiyagreenionte easements g.-anted ,e-e.., shall be approved in
writing by City of Ames,Iowa.
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6-7. Each Owner of a Burdened Property, kf its sole expense,Iagrees to make the necessary — Commented[CS6]:'If the costs will be allocated to certain
improvements to its respective Parcel to allow the ingress and egress easements as set forth above owners in accordance with a development agreement,this- r
The improvements shall be completed no later than •20 paragraph should identify the responsible parties and
.reference the recorded development agreement..See
comment#6 in letter. 1
8J,agl "p Owner of a Burdened Property. at its sole expense, agrees to maintain, repair, and i_ Comment ed[C57]c.Seecdmmenf#7inletter
replace the easement area that is located within its Parcel as needed to ensure the area is kept in itsji
prepet4}tgood order and repair and is in a reasonable a. and at their sele expense.compliance
with all governmental regulations.Said maintenance shall also require snow removal,which shall 1
not block the easement-area.
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9. _ The Owners of the Burdened Properties shall not allow anv obstructions(including landscaping or
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other vegetative growth)within its Parcel that may obstruct,impede,or otherwise interfere with the ;
use and eniovment ofthe foregoing easements.
10. Ft�anv jOwner of a Burdened Property fails to maintain the easement area located within its Parcel - commented less]:see comment#a in loner
as required by this Agreement, and such failure is not cured within a reasonable period of time
after written notice,the other Owners shall have the right to perform the maintenance(at their
option)and the violating Owner shall be responsible for all costs.
11. jEach,Owner of a Burdened Property shall maintain commercial general liability insurance and Commented[C59]:see cominents#9 and is in letter
property damage insurance covering personal injury, bodily iniury, death,or property damage
occurring within its Parcel with coverage limits of not less than$5,000.000.00 per occurrence and Note that these are the coverage limits that were proposed to
the-Easement Addendum
not less than $5.000,000.00 for property damage. Upon request, each Owner of the Burdened
Properties shall provide to the other Owners certificates of insurance evidencing such coverage
8-12 Signing this ag:eementAgreement does not imply consent or approval to a raised median along
South Duff Avenue.
11 costs for business signs constructed along South Duff Avenue and along the cross access 1
ea,eement area shall be the responsibility of the City_of Am". Commented[Csid]:See comment 910 in letter
14. This easement shall be recorded within the Qt-}=records of Ames,mes,lewa-andd Story County,Iowa.
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15. Trhis easements,granted in this Agreement are supplemental to the previously recorded Access Commented(C511].See comment#11 in letter.
Easements between UhauI and the City of Ames recorded on August 22.2016 as hlstrument 2016 .;
00008082 and the Access Easement recorded on May 17,2016 as Instrument No 2016-0004170
16. IA1l notices relaiine�o this Agreement shall be in writing and shall be given by personal delivery. -- Commented(Cs12]:see comment#12 in le[er
or by United States postal mail(return receipt requested)or by an express delivery service and
shall be sent to the Owner of record and addressed to the address shown on the then current real
estate property tax rolls of Story County.Iowa.An Owner may change their address at any time 1
by providing written notice to the other Owners.
WITNESSED:
WAL-MART REAL ESTATE BUSINESS
CRUST
-' Commented[CS13]:See comment#1 and#13 in letter,
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,Signature blocks need to be revised to provide the correct
By: i legal entities
Title:
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STATE OF IOWA )
)ss. j
STORY COUNTY )
I 'a
On this day of 20.before me,a Notary Public in and for Story County,
personally appeared on behalf of to me known to be the same person
who signed and is described in the above instrument and acknowledged the same to be his/her free act and deed
Notary Public
Story County,Iowa
My Commission
expires:
Ted and Dawn Sage Revocable Trust
dated November 3,1993 I
By:
Title:
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STATE OF IOWA )
)ss.
STORY COUNTY )
On this day of 20_before me,a Notary Public in and
for Story County,personally appeared on behalf of to
me known to be the same person who signed and is described in the above instrument and a
acknowledged the same to be his/her free act and deed.
Notary c Publi
Story County,Iowa
My Commission
expires:
WENDY'S 4
By:
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Title:
STATE OF IOWA )
)ss.
STORY COUNTY )
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On this day of 20.before me,a Notary Public in and
for Story County,personally appeared on behalf of to
me known to be the same person who signed and is described in the above instrument and
acknowledged the same to be his/her free act and deed. E
Notary Public
Story County,Iowa
My Commission
expires:
URAUL
By:
Title:
STATE OF IOWA )
)ss.
STORY COUNTY )
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On this day of 20_before me,a Notary Public in and
for Story County,personally appeared on behalf of to
me known to be the same person who signed and is described in the above instrument and
acknowledged the same to be his/her free act and deed.
t ,
Notary Public
Story County,Iowa
My Commission
Piies w.
Commented(CS14] See.comment#14mletter Signature
blocksforbenefitedtproperties should=6e added
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l h"i6iAA ` ommented[CSe15]:See,comment#2inletter
Legal Descriptions of Burdened Properties
1. Legal Description of Wal-Mart property:
2. Legal Description of Sage property:
3. Legal Description of Wendy's property:
4. Legal Description of Uhaul property:
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E�hillt 'Commented[C51�6]See comment#3inletter
Legal Descriptions of Benefited Properties
The legal descriptions for all of the propemesjlying south of
;SE 5th'Stre' d°Aeast'US.Dutfthat benefit, om this .
1. Property owned by Boston Commons Ames.LLC located at 806 S.Duff Avenue easement,sho�tdtbeiincl aed<in its`
Parcel"AK"in the Northwest Quarter(NW 1/4)of the Southeast Quarter(SE 1/4)
of Section Eleven(11).Township Eighty-three(83)North,Range Twenty-four
(24)West of the 5tb P.M..Story County.Iowa,as shown on the"Plat of Survey'
filed in the office of the Recorder of Story County,Iowa,on Mav 15.2008.as
Inst.No.08-05276.Slide 331,Page 2.
2.
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Exhibit C
Easement Exhibit
attached
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�EXhihit U� Commented�[C�517]:Sce comment#IOYM letter
Signase Exhibit
attached
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