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HomeMy WebLinkAboutA033 - City of Ames Brief on Building Permits - Eastgate Development, Inc. Chapter 11 Bankruptcy, Case No. 00-04163-CJ FEB 6 N01 � r IN THE UNITED STATES BANKRUPTCY COURT w en o°um FOR THE SOUTHERN DISTRICT OF IOWA _ CiiV_®t.Af�tS,10�lA,��a _ IN RE: CHAPTER 11 BANKRUPTCY EASTGATE DEVELOPMENT, INC, CASE NO. 00-04163-CJ Debtor. CITY OF AMES BRIEF ON BUILDING PERMITS The City of Ames has no objection to Debtor's "Motion for Authority to Sell Property". However, the Court and all interested parties should be made aware that, pursuant to the City's regulations for-new subdivisions,City permits for construction of buildings in Eastgate Subdivision cannot be issued with respect to any lots that may be sold until all aspects of the City's subdivision regulation have been met. See Section 23.102(2)(a), Municipal Code of the City of Ames, Iowa (copy attached). To meet the City subdivision regulations,expenditures will be required as follows: Engineering Fees: Section 23.302(7)(c)Ames Code provides that:"The City Council may require that all public improvements described on the approved Preliminary Plat for a Maj or Subdivision be installed and dedicated prior to approval of the Final Plat. If the City Council does not require that all public improvements be installed and dedicated prior to approval of the Final Plat,the City Council shall require the Applicant to execute an Improvement Agreement as set forth in Section 23.304 ...". (Copies of Sections 23.302 and 23.304 are attached.) An agreement with respect to public improvements required for approval of the final plat of Eastgate Subdivision was approved by the Ames City Council on October 13, 1998 and is filed for record as Instrument No. 98-14377 in the Office of the Story County Recorder. (A copy is attached). A further agreement for public improvements was executed October 12, 1999 and filed for record as Instrument No.99-14584 in the Office of the Story County Recorder(copy attached). The first agreement outlines the scope of public improvements. The second agreement reaffirms the obligation for improvements and provides for paying of"reasonable engineering and inspection fees therefore". The required payment of engineering and inspection fees to the City is not for services rendered to the Developer,but for the costs of service to the public by city engineers reviewing the plans and inspecting the work done to ascertain that the public standards for public improvements will be met. The covenants with respect to public improvements cannot be equated with any other lien or claim for services. The agreements with respect to approval of a plat of subdivision is a product of the City's police power. Those public interest considerations that attend the platting of land do not disappear merely because the subdivider is in bankruptcy court. See: Rosenberg vs. Missouri Title Guaranty Co., 764 S.W.2d 684-686 (1988). The regulatory program of the City requires that the City costs of engineering review and inspection be paid by the developer. If the fees are not paid, the provision of Sec. 23.102(2)(a) Ames Code prevents issuance of building permits. The amount is $18,746.19. Bike Path: Paragraph 9 of the 1998 agreement for public improvements calls for construction of a bike path on the north side of East 13th Street and the west side of Dayton Avenue. The cost of that construction is $20,000. 2 Watermain Tapping Fee: Paragraph 5 of the 1998 agreement requires a watermain tapping fee of$10.00 per front foot, which totals $12,901.02, to be paid at the time of the sale of the first lot. Street Lights: Section 23.405(3) Ames Code requires payment to the City for the street lights in the subdivision(copy attached). That amount is $44,746.39. In addition to the above immediate payments, each lot purchased will be encumbered by a future contingent obligation with respect to improvements on Dayton Avenue as described in paragraphs II-1-d and II-2-c of the 1998 agreement. The estimated cost for that work, at this time, is $141,000. Respectfully submitted, ohn R. Klaus City Attorney 515 Clark Avenue,P.O. Box 811 Ames, Iowa 50010 Phone: 515-239-5146 • Fax: 515-239-5142 Attorney for the City of Ames, Iowa Eastgate-Brief on Building Permits-020501 3 d 143W INST.NO.iTy�� J�P 'P STO FIILED FOR RECORD � A City Clerk's Office o AM 16 1996 o OCT 515 Clark Avenue, P. O.Box 811 SUSAN L.VAND MP,Rewrde Ames, IA 50010 Aug O�NG pit;0 Phone: 515-239-5105 Fax: 515-239-5142 DO NOT WRITE IN THE SPACE ABOVE THIS LINE,RESERVED FOR RECORDER Prepared by John R.Klaus,City of Ames Legal Department,515 Clark,Ames,Iowa 50010(Phone: 515-239-5146 DEVELOPMENT AGREEMENT EASTGATE SUBDIVISION THIS AGREEMENT, made and entered into effective the 6t:h day of October, 1998, by and between the City of Ames, Iowa, (hereinafter called the "City",), and Eastgate Development Inc., its successors and assigns (hereinafter called "Developer"). WITNESSETH THAT : WHEREAS, the Developer holds title to certain land under the jurisdiction of the City described as: Survey description - Eastgate Subdivision, Ames, Story County, Iowa: Part of the southeast quarter of the southeast quarter of Section 36, Township 84 north, Range 24 west of the 5th P.M., Ames, Story County, Iowa, previously described in a warranty deed filed in the office of the Recorder of Story County, Iowa, on December 30, 1997, at Inst. No. 97-14065 and more particularly described as follows: commencing at the southeast corner of said Section 36; thence N00° 12' 46" E, 55.00 feet along the east line of the southeast quarter of said Section 36 to the point of beginning; thence .continuing N00° 12' 46" E, 1259.29 feet to the northeast corner of the southeast quarter of the southeast quarter of said Section 36; thence N 890 41' 03" W, 1318.26 feet to the northwest corner of the southeast quarter of the southeast quarter of said Section 36' thence S 001 20' 34" W, 1267.72 feet along the west line of the southeast quarter of the southeast quarter of said Section 36 to the north line of East 13th Street; thence N 890 57' 00" E, 1321.16 feet along said north line to the point of beginning, containing 38.20 acres, which includes 1.16 acres of existing public road right of way.— hereinafter called the "site" for which Developer has applied to the City for a plat of subdivision; and, WHEREAS, it is desired that there be an agreement between the Developer and the City with respect to public improvements required by the City as a condition to approval of the subdivision plat pursuant to Section 354.8 of the Code of Iowa; and, WHEREAS, the City recognizes the need to participate in the installation of public improvement in this subdivision, and WHEREAS, this participation is necessary because the public improvements create a benefit for an adjacent property, and NOW THEREFORE, in consideration of the aforesaid, the parties hereto have agreed and do promise and agree as follows: 1. The City of Ames will be responsible for the cost of constructing the sump pump collector line and appurtenances to be located as required in Eastgate Subdivision. 2. The City of Ames will be responsible for the additional material cost for constructing water mains and sanitary sewer mains larger than 8-inches in diameter within Eastgate Subdivision. II. Developer Responsibilities 1. Utilities. Water. Water mains and all services to lots shall comply with a plan approved by the City's Public Works Department. All water mains on the site will be public mains, and they will be located in public streets or utility easements dedicated to the City, and constructed by the Developer at Developer's expense, to meet City specifications. Sanitary Sewer. Appropriately sized mains, as approved by the City's Public Works Department, shall be extended by Developer at Developer's expense through the site to provide sanitary sewer service to each of the buildings in the development. All sanitary sewer service extensions shall be installed to adjacent right-of-way lines prior to the construction of the streets. Storm Water Management. A storm water management plan shall be prepared by Developer for the site, which meets the City's criteria for on-site detention. Footing drain service extensions shall be installed by the Developer at Developer's expense, to adjacent right-of-way lines prior to construction of the street. Electric. There is adequate electric capacity to serve the site, and the electric utility has reviewed the method of serving the site planned by Developer, and has approved that plan. The Developer will be responsible for all costs involved with the relocation of City of Ames Electric distribution and transmission lines within the existing rights-of-way of 13th Street and of Dayton Avenue. 2 �.,.14377 2. Streets: Vehicular and Pedestrian Access a. The Developer shall construct a westbound right turn lane on East 13th Street to facilitate Eastgate Drive, at the time Eastgate Drive is constructed. b. Developer shall reimburse the City for all costs incurred by the City for construction of an eastbound left turn lane on East 13th Street to facilitate Eastgate Drive. Developers shall make that payment of reimbursement, upon certification by the City's engineer that the work is complete and satisfactory, within ten days of receipt of the City's statement of the amount due and payable. The estimated cost of this work is $98,000. C. Developer shall reimburse,the City for all costs incurred by the City for widening of East 13th Street from the west line of McCormick Avenue to the east line of Manatt's driveway. The estimated cost of this work is $95,000. d. A northbound left turn lane on Dayton Avenue to facilitate Plymouth Drive may be constructed by the City when there is sufficient traffic to warrant that improvement under established standards of traffic engineering. The Developer shall reimburse the City's costs incurred for the said left turn lane on Dayton Avenue. The estimated cost of constructing that improvement at this time is $141,000. Thirty days after the said improvements have been certified complete by the City's engineer and accepted by the City, there shall be a final payment by Developer to the City or the City to Developer to adjust for any difference between the paid estimated costs and the actual cost. e. An additional lane of travel on Dayton Avenue between the north boundary of the above described site and the intersection with East 13th Street may be constructed by the City when there is sufficient traffic to warrant that improvement under established standards of. traffic engineering. The Developer shall reimburse the City's costs incurred for the said additional lane of travel on Dayton Avenue. The estimated cost of constructing that improvement at this time is $143,400. The City shall not proceed with the aforesaid improvements until after the Developer shall have provided to the City as security for the payment of the reimbursement due to the City as aforesaid, an irrevocable letter of credit payable at a bank within fifty miles of the City of Ames in substantially the 3 qg,143W C� form attached as Exhibit A for an initial amount of $477,400. The amount of the letter of credit provided to the City may be reduced as the reimbursement due for completed improvements is paid by Developer to the City,. 3. This agreement shall be a covenant with the above described land binding subsequent purchasers of the same, and shall be recorded, but shall not be an obligation with respect to lots for which a city building permit has been issued, except for the obligation to maintain and renew the letter of credit as specified in paragraph 2 above. 4. All work done by Developer shall be in accord with the Final Plat and Chapter 23 of the Ames Municipal Code, and other applicable local, state and federal laves and regulations. S. The Developer shall pay a watermain tapping fee of $10.00 per front foot where the subdivision abuts on 13th Street and on Dayton Road. The water connection fee shall be due and payable by Developer to the City at the time of the sale of the first platted lot in the subdivision. 6. There shall be no direct access to any lots from East 13th Street, Dayton Avenue, Eastgate Drive, or Plymouth Drive, and Developers shall execute instruments granting access control rights to the City with respect to all lots that abut on said streets as part of the final plat process. 7. There shall be no on-street parking. 8. Sidewalks shall be constructed on both sides. of the streets within the subdivision. 9. An 8-foot wide bike path shall be constructed on the north side of East 13th Street and on the west side of Dayton Avenue, at the Developer's sole expense. 10. It shall be noted on the plat that soil borings are required in areas within the site, which have been identified by the City as having soils that make the construction of buildings difficult". 4 q ----14377 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the date first above written. CITY OF AMES EASTGATE DEVELOPMENT, INC. By: y . Ted Tedesco, Mayor �J Attest'' x - = y: By: ,,lv Ripoerger, ;ty CI� k On"this" `-day of egat, 19, before me, a Notary Public in and for the State of Iowa, personally appeared Ted Tedesco and Jill Ripperger, 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 Ames,Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was s ned and sealed on behalf of the corporation, by authority of its City Council as contain In esolution No. 2 me- 5.10 adopted by the City Council on the day of land that Ted Tedesco and Jill Ripperger,acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. Notary Public in and for Story County, Iowa KAREN C.THOMPSON N!Y COM SS U�FXPIRES STATE OF Xn&ja , COUNTY OF R IK ss: On this �+� day of 1990 before me, a Notary Public in and for Pow, County, xo.ia , personally appeared 5 coc T. av� ,to ma personally known, who being by me duly swom,did say that that person is ��s:< <a� of said corporation,that the seal affixed to said instrument is the seal of said corporation, or no seal has been procured by the said corporation, and that said instrument was si ed and sealed on behalf of said corporation by authority of its board of directors and the said P s:j e� acknowledged the execution of said instrument to be the voluntary act and deed of said corporation by it voluntarily executed. J V3§1!jA Notary Public in and for_County, .�ow.a law\Eastgate.515 rev.7/24/98 k4(ii;i D AS TO �,�M:•c @t John R. Klaus �� 5 � /14377 (�� - 375� J4 Ov DO NOT WRITE IN THE SPACE ABOVE THIS LINE,RESERVED FOR RECORDER Prepared by: AGREEMENT FOR PUBLIC IMPROVEMENTS The parties to this Agreement,made pursuant to Section 23.304,Ames Municipal Code, are Eastgate Development, Inc hereinafter referred to as"Owners", and the CITY OF AMES, IOWA,hereinafter referred to as "City". WHEREAS, the Owners are in the process of platting a subdivision of real estate to be known as FastRntP S„ ;vi-g;on , Ames, Story County,Iowa; and WHEREAS,the Owners are required to construct certain improvements and utilities within the real estate,to wit: streets and appurtel►ai Cep_,by not later than 10 2 2001 and,to pay reasonable engineering and inspection fees therefor, all as part of the platting procedure of the City. NOW,THEREFORE,in consideration of the premises,it is hereby agreed that the Owners shall deposit with the City a surety bond, letter of credit or certified check in the amount of$4l conditioned upon the completion of the said improvements and utilities,by the said date,as required by the City for said Subdivision, in accordance with plans and specifications on file with the City's engineers and by this reference made a part of this agreement. IT IS FURTHER AGREED that City reserves the right to construct said improvements and utilities in the event Owners fail to do so as herein agreed, and to cover the costs thereof with the surety bond, letter of credit or the certified check, as the case may be. IT IS FURTHER AGREED that upon satisfactory completion of the said improvements and utilities,including the paying of reasonable engineering and inspection fees therefor,the bond shall be released and the bondsman exonerated, the letter of credit released or the certified check shall be returned to Owners, as the case m Jae. 'F { :: DATED this l a day of d o �� , 19 C `1 . OWNERS CITY OF AMES,IOWA By: c � By: Paul Wiegand / Director of Public Works. _ By: T T �.��� ,aw\00 Qg- 14584 �q CHAPTER.23 SUBDIVISIONS DIVISION I GENERAL PROVISIONS Sec.23,101. TITLE. This chapter shall be known and maybe cited and referred to as the Subdivision Regulations for the City of Ames,Iowa,and will be referred to herein as the"Regulations"to the same effect as if the full title were stated. (Ord.No..3524, 5-25-99) Sec:23.102. PURPOSE,Ai PLICATION,AND WAIVER/MODIFICATION. (1) Purpose:-It is determined to be in the public interest and the purpose of these Regulations: (a) To provide for accurate,clear and concise legal descriptions of real estate in order to prevent, wherever possible,land boundary disputes or real estate title problems; . (b) To provide for a balance between the use rights of individual landowners and the economic, social,and environmental,concerns•of the public when the City is developing or enforcing its land use regulations;and (c) ' To encourage orderly development of the City and provide for the regulation and control of the extension of.public improvements; public services, and utilities, the improvement.of land, and the design of subdivisions,that are consistent with the City's Land Use Policy Plan and other specific community plans. (2) Application:. (a) The provisions ofthe Regulations are the minimumrequirements for promotion ofthe public health,safety,and general welfare. No zoning permit or building permit shall be_issued for a principal building,within the meaning of the City's zoning regulations,from the effective date of the Regulations with respect to any land that has been divided without compliance with the provisions of the Regulations and all other applicable state laws and city ordinances in force at the time of such division. If the Regulations impose higher standards than are required m any . other statute or local ordinance or regulation,the Regulations shall govern. If any other statute or local ordinance or regulation imposes higher standards than are required by the Regulations, the other.statute or local ordinance or regulation shall govern. (b) • ;.These Regulations govern the review and approval of any plat for subdivision of any area of land within the Cityor within.two miles of the.City boundaries within Story or Boone County.; . (3) These Regulations apply where any,or all of the follow. g_cir=tances exist or occur: µ(a)' any Area of land which has been-divided or shall hereafter be divided into two or more parts (b) any area'of land that is described by metes and bounds, or an area of land that is not a complete,platted lot. :. (4) - . .Such area:of land shall be platted in accordance with these Regulations,prior to.issuance of zoning and/or building permits for:development or change in use of that area of land..A zoningpermit and/or building.permit shall not be issued with respect to an area of land-that is within the;scope of 3(a)or 3(b)above until such area of land has been platted in accordance with these Regulations.: (Ord No. 3524, 5-25-99) ; Sec.23.103.:.WAIVERIMODIFICATION. (1) Where;:m the case of.a particular subdivision, it can,be shown that"strict compliance with the requirements of the Regulations would result.-in extraordinary hardship to the Applicant or would prove inconsistent with the•purpose of the Regulations because of-unusual topography or'other conditions the City Council may modify Sup#21%1995 Code 23-1 Rev: 104-00 a computer diskette containing a Computer Aided Design`Drawing of the Final Plat, ' which shall-be provided in a format meeting the hardware,and software specifications of the City;.if practical. Where an applicant is unable to submit the Final Plat of a Minor Subdivision in a Computer Assisted Design Drawing,a paper copy may be submitted as an alternative,.along with a payment of fees equal to 150%of the fee normally charged by resolution of the City Council;and (iv) any filing fee established by the City Council. (c) An Application for Final Plat Approval of a.Minor Subdivision shall be complete for the purpose of commencing time periods within which action by the City Council is required when so certified by the Department of Planning and Housing. (2) Staff and Agency Review of Final Plat Approval for Minor Subdivision: The Department of Planning and Housing shall file one copy of the Application Form and the Final Plat with the City Clerk and shall-distribute a copy of the Application Form and the Final Plat to the Department of Public Works and such other departments,persons, and utility companies as it determines may be necessary or appropriate for their review, comments, and recommendations. The Department of Planning and Housing shall assemble,review,and report on any comments or recommendations submitted to it for consideration by the City Council. (3) City Council Action on Final Plat for Minor Subdivision: (a) All proposed subdivision plats shall be submitted to the City Council for review and approval in accordance with Section 354.8 of the Iowa Code, as amended or superseded. Upon receipt of any Final Plat forwarded to it for review and approval, the City Council shall examine the Application Form, the Final Plat, any comments,recommendations or reports examined or made by the Department of Planning and Housing,and such other information as it deems necessary or reasonable to consider. (b) Based upon such examination, the City Council shall ascertain whether the Final Plat conforms to relevant and applicable design and improvement standards in these Regulations,to other City ordinances and standards,-to the City's Land Use Policy Plan and to the City's other duly adopted plans. If the City Council determines that the proposed subdivision will require the installation or upgrade of any public improvements to provide adequate facilities and services.to any lot in the proposed subdivision or to maintain adequate facilities and services to j any other lot,parcel or tract,the City Council shall deny the Application for Final Plat Approval of a Minor Subdivision and require the Applicant to file a Preliminary Plat for Major Subdivision. (4) Effect of City Council Action on Minor.Subdivision: Following such examination,and within 60 days of the applicant's filing of the complete Application'for Final Plat Approval of a Minor Subdivision with the Department of Planning and Housing,the City Council shall approve,approve subject to conditions,or disapprove the Application for Final Plat Approval of a Minor Subdivision. The City Council shall set forth its reasons for disapproving any Application or for conditioning its approval of any Application in its official records and shall provide a written copy of such reasons to the developer. The City Council shall pass a resolution accepting the Final Plat for any Application that it approves. (Ord.No. 3524, 5-25-99) Sec.23.304. IMPROVEMENT AGREEMENTS. (1). • The City Council may require that all public improvements described on the approved Preliminary Plat for a Major Subdivision be installed and dedicated prior to approval of the Final Plat. If the City Council does not require that all public improvements be installed and dedicated prior to approval of the Final Plat,the City Council shall- require the Applicant to execute an Improvement Agreement and provide security in'the form of an Improvement Guarantee as set forth in Section 23.409 of the Regulations. -Between the approval of the Preliminary.Plat and submission of an Application for Final Plat Approval of a Major Subdivision,the Applicant must either complete all indicated improvements to the satisfaction of the City or enter into an Improvement Agreement to do so. (2) The City Council may further require that all public improvements or contributions to public improvements to be.installed or made by the Applicant as a condition for approval of a Final Plat for a Major Subdivision shall be installed or made prior to such approval. If the City Council does not require that all public improvements or contributions to public improvements be installed or made prior to approval of a Final-Plat,the City -Council shall require the Applicant to execute an Improvement Agreement and provide security in the..forml of'an Sup##19/1995 Code 23-11 -- ..Rev. 4-1-00 Sec.23.405. SANITARY SEWERS. s-- (1) General: Any lot or area of land created by subdivision shall be served by sanitary sewer facilities in a manner prescribed by City plans and specifications and any applicable rules,regulations and standards of the Iowa Department of Natural Resources and no such lot or.area of land shall be served by any individual sanitary sewer disposal system. To the greatest extent possible,the design of the subdivision shall be developed with a gravity sanitary sewer system. The use of sanitary sewer lift stations shall be limited to those instances where no other alternatives exist. (2) . Existing Sanitary Sewer: Any subdivision to which a sanitary sewer is accessible requires installation of adequate sewage facilities including sewer mains,manholes and any other necessary or desirable appurtenances to provide for discharge of sanitary sewage. The sewer system from all lots or parcels within the area to be subdivided shall be connected with the existing sanitary sewer system at the subdivider's expense-and subject to City specifications. (3) New Sanitary Sewer: Any subdivision to which a sanitary sewer is.not accessible requires the installation at the subdivider's expense and subject to requirements of the City and at the sewer grades established by the City and under the supervision of the Department of Public Works.The sanitary sewer system to be installed shall include any sanitary sewers and other sewage facilities adequate to serve all lots or areas of land within the area to be subdivided.Due regard,shall be given to the:present and reasonably,foreseeable needs of the area to be subdivided and to the location and capacity of existing sanitary sewers and other sewage facilities. Any such sanitary sewers or other sewage facilities shall become the property of the City,upon the City's inspection,approval,and acceptance of such sewers and facilities, after the subdivider pays to the City any.costs associated with their installation including any reasonable charge for any supervisory or other services provided by the City. (4). Oversize Sanitary Sewer: (a) :.. A sanitary sewer maybe required to be installed that is larger than.the minimum standard size. When a larger sanitary sewer main is required because of grade, land use or circumstances created by the development,these larger.sanitary sewer mains shall be installed.at the developer's.expense. (b).. When a larger sanitary sewer main is required by the.City,the cost of the installation of the main will be the responsibility of the City unless lots.within the subdivision have direct service connection to this larger main. In that instance the cost of the larger main shall be shared by the City and the developer. The City may pay any portion of the cost in materials that exceeds the cost.that is attributable to the installation of a sanitary sewer of sufficient size to meet the needs of the area to be subdivided according to the Capital Investment Strategy of the City (Ord.No. 3524, 5-25-99). Sec.23.406. ELECTRIC DISTRIBUTION AND STREET LIGHTING EWPROVEMENTS. (1) There shall be constructed an underground electric distribution system to adequately serve all lots with the platted area, with,due regard to the present.and reasonably foreseeable needs of the entire area shown in the preliminary plat., When the area being developed'is Millie service territory of the.Ames Municipal Electric Utility,the Utility shall install the electric distribution system underground,but the Developer shall pay to the City the costs.of an underground electric system.that are in excess of_what.would have been the cost of an overhead electric distribution system. (2) The existing overhead electric feeder system`adjacent to a new subdivision shall remain overhead but may be placed underground if requested by the developer of a new subdivision. All costs associated with such conversion will b_a at the Developers sole expense. (3) . ` Street lights shall be installed by the City at the subdivider's expense and according to the design and specification standards approved by the City Council and after review and approval by the Ames Municipal.Utility. The electric distribution system for the street light system shall also be installed underground (Ord.No. 3524, 5-25-99) -Sup#19/1995 Code ":. .. .:: . ._. ._ 23-18 :, Rev. 4-1-00