HomeMy WebLinkAboutA015 - Letter to Mayor and Council dated December 11, 1989 from D. R. Newbrough NEWBROUGH, JOHNSTON, BREWER, MADDUX & NADLER
ATTORNEYS AT LAW
612 KELLOGG AVENUE
HAROLD 0. HEGLAND P.O. BOX 847 TELEPHONE
(1909-1979) AMES, IOWA (515) 232-1761
50010-0847
D. R. NEWBROUGH FAX
FRANK B. JOHNSTON (515) 232-8962
JAMES A. BREWER
JERE C. MADDUX
BARRY J. NADLER -7
JAMES J. KATCHER
DEC : . 3
December 11, 1989 __ .-s_
L: CITY CLERK
CITY OF All-ES, 10�JA
Mayor and City Council Members
City Administration Building
Ames, Iowa 50010
Dear Mayor and Members of the Ames City Council:
I am writing to you on behalf of the subdividers of approximately
60 acres of real estate located in the northwest corner of Ames.
The subdividers are Erben A. Hunziker, Donald M. Furman, R.
Friedrich and Sons, and Buck Construction Company, Inc. Recently
you approved the final plat of the first phase of subdividing the
60 acres. The first phase is now known as "First Addition,
Northridge Parkway Subdivision to Ames, Iowa" . It is expected that
there will be five or six additions before the entire sixty acres
is subdivided into individual building lots.
Prior to your approving the First Addition, the City staff
implemented a new policy and the subdividers respectfully request
that this policy not be implemented as a prerequisite for approving
future subdivisions.
I would like to explain as follows:
1. Section 23 . 17 of the Municipal Code provides as
follows:
"Before approval of the final plat, the subdivider
shall file a properly executed written agreement to
undertake and complete, to the satisfaction of the
City, all public improvements required as a
condition for approval of the plat. This agreement
shall also set out the time limit for completion of
the specified work, the amount of surety bond or
certified check to be given as security for
satisfactory completion of the work, and the right
of the City, in the event the required work is not
completed in a proper or timely manner, to perform
or complete the work and recover the actual costs
thereof from the subdivider or the subdivider' s
sureties or from the certified check.
Mayor & Ames City Council Members
December 11, 1989
Page Two
2 . This ordinance, or a similar ordinance, has been in
effect in the City of Ames for years.
3 . Former Policy:
(a) Once the agreement was entered into and all of
the other requirements of the subdivision
ordinances of the City of Ames were met, the
the subdivider filed the agreement with the
City and the Council adopted a resolution
approving the final plat.
(b) The final platting documents were then
recorded in the Story County Recorder's office
and an abstract to each building lot within
the subdivision would show each lot to be free
and clear of any encumbrances imposed by the
City.
5. In changing these practices the City staff insisted
that the agreement needed to be recorded before the final plat of
First Addtition, Northridge Parkway Subdivision to Ames, Iowa, was
approved. The agreement constituted an encumbrance against all of
the lots in the First Addition.
As predicted the builders ran into problems when they attempted to
sell a building lot in the First Addition because the agreement
was of record. The only solution was for the City to execute a
partial release of the encumbrance created by the recorded
agreement as to the building lots within the First Addition.
Fortunately, the City did execute such a release on December 5,
1989 . Because the agreement was recorded and until the City
executed its partial release, the subdividers were unable to
transfer clear merchantable title to the individual building lots
even though the City had earlier approved the final plat and the
final platting papers were of record.
I will describe some of the consequences of recording
the agreement:
(1) The abstracter needed to show the entire agreement
in the abstract for each building lot. This took up five pages in
the abstract and the partial release took up one page. Cyclone
Abstract Co. would normally charge $70. 00 to show the agreement
and the release by addendum in one abstract. The agreement
affects the entire 60 acres. The 60 acres will be developed into
approximately 120 building lots. This will require 120 abstracts.
Therefore, the new policy will cost the subdividers approximately
$8, 400. 00 ($70. 00 per abstract times 120 abstracts equals
$8, 400. 00) .
Mayor & Ames City Council Members
December 11, 1989
Page Three
(2) After the final plat was approved and recorded, Mr.
Johnston, an attorney in our office, examined an abstract to one
of the lots within the First Addition. He spent approximately one
additional hour of time to examine the abstract and to prepare his
title opinion concerning the encumbrance created by the agreement
being of record.
(3) The subdividers spent considerable time trying to
convince the City staff that the agreement should not be recorded
and after the subdivision was approved the subdividers spent
considerable time in negotiating with the City to secure a partial
release of the encumbrance.
It seems reasonable to me:
(1) that the subdivider needs to provide the City with
a surety bond or a certified check as security for
satisfactory completion of the required public
improvements, and
(2) that when the City approves the final plat that the
provisions of Chapter 23 of the City Ordinance have
been fully complied with.
Once this has been accomplished and the platting papers are
recorded, the subdividers should be able to sell the lots free and
clear of encumbrances imposed by the agreement. If a subdivider
subsequently defaults, the City has the bond or certified checks
to rely upon and there should be no reason to impose an
encumbrance upon the lots by recording the agreement. If the
subdivider defaults, the City could record the agreement if it
feels it needs to in order to protect its interest; but not record
the agreement before the default.
To further help you understand the details of the paperwork
involved in recording the agreement, I enclose for each of you the
following:
1. A copy of the Agreement that was recorded, as
shown at Entry No. 23 of one of the abstracts.
2 . A copy of Paragraph 8 . of Mr. Johnston's title
opinion which deals with the agreement.
3 . A partial release of the encumbrance which finally
satisfied Mr. Johnston's objection set out in
Paragraph 8. of his opinion.
Mayor & Ames City Council Members
December 11, 1989
Page Four
Again, my request to you on behalf of the subdividers is that the
City return to the policy of not recording future agreements for
installation of required public improvements.
Thank you.
Yours very truly,
NEWBROUGH, JOHNSTON, BREWER, MADDUX & NADLER
D. R. Newb ough
DRN/csw
Enclosure
cc: John Klaus
Brian O'Connell
Subdividers
Ken Janssen
x
No. 13 City of Ames , Iowa, By F. Paul Agreement with Subdivision
Coodland, Mayor and By Nancy Developers as to Streets ,
Dionigi , City Clerk (Seal Affixed) Utilities and Other Public
Improvements Pertaining to
Northridge Parkway Subdivision,
And Ames , Iowa
Dated: August 17, 1989
Filed: September 7, 1989
Erben A. Hunziker, No Status Shown;
Donald M. Furman, No Status Shown;
R. Friedrich & Sons , Inc. , By
Robert K. Friedrich, President and
By Reinhard K. Friedrich, Secretary
(No Seal) ; and Buck Construction
Company, Inc. , By Robert 0. Buck,
President and By Anne K. Buck,
Secretary (Corp. Seal) Recorded in Book 284 Page 52
WITNESSETH THAT:
WHEREAS, the Developers are the contract purchasers of certain land
within the city described as:
Beginning at the Northeast corner of the South Half (St)
of the Northwest Quarter (NWT) of Section 33, Township 84
North, Range 24 West of the 5th P.M. , Story County, Iowa;
thence South 89°47'04" West 1 ,809. 00 feet along the South
line of the N2-NWT of said Section 33; (the following
four calls are along the center of Squaw Creek) thence
North 27018'00" West 310.00 feet; thence North 02006'00"
West 226. 00 feet; thence North 29°26'00" West 691.00
feet; thence North 57128' 51" West 341.72 feet to the
Cj intersection with the West line of the NWT; thence North
00153' 48" East 34.00 feet along the West line of the NW14;
thence North 89°36123" East 2,589.60 feet along the North
line of the NW4; thence South 00°07'31" West 1,331.81
feet along the East line of the N,-NW4 to the Point of
Beginning, EXCEPT the South 413 feet of the East 393 feet
thereof.
which the Developers hope to subdivide into single dwelling build-
ings lots but are not obligated to do so; and,
.r
WHEREAS, such lots shall be platted in phases, the first phase to
be called "First Addition, Northridge Parkway Subdivis r ion to Ames,
Iowa"; and,
u
WHEREAS, it is desired that there be an agreement between the
Developers and the City as to the improvements to be made, public
and private; .
NOW, THEREFORE, the parties hereto have agreed and do agree as
follows:
Section 1. Developers' Warranty of Title.
The Developers represent that they are the contract purchas-
ers of the real estate described above with full authority to bind
the development of said land under the terms and conditions of this
agreement; and, that when the final plat of each phase is filed the
requirements of title set out in Section 409.9 Code of Iowa shall
be met.
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No. 23 Section 2. Lje_P_th/Ka_l- a System.
2. 1 As each phase is platted, the Developers shall grant the
City perpetual easements for and construct at Developers sole
expense, a bikepath/walkway system in accordance with the
econceptu-
al development plan set out in Appendix A and the specifications for materials and methods of construction established by the City.
Section 3. Storm Water.
3. 1 As each phase is platted, the Developers shall grant the
City perpetual easements
tof m water and sys,temtinD acclopers' sole
ordance with
expense, a conventional s and methods of construc-
tion plans, specifications for materials,
established by the City.
3.2 Storm water retention forth subdivision
ubdi isionMemoriashall bePin a
pond on the City' s park land know a expense in
which shall h constructed at the
as AppeDndixlgpers' sole
accordance P
3. 3 The said storm water retention pond shall :
a. have a static pond elevation of approximately 98.5, City
of Ames datum,
b. have a permanent water depth of not less than ten (10)
feet,
C. be over-excavated o°den extra elevatvolume to compensd�te ion of not less than 8fo0r
City datum to p
siltation, and the Developers shall perform a program o
minimize and remedy siltation that meets with the ap-
proval of the City' s engineer.
3.4 The said pond shall be capable of containing the entire
runoff from a 100 year storm above the static level , while ma n-
taining at least 2i000feee r of
m-bins restiimated above hto contain highest
c water
5.2
elevation. This Y
acre/feet of water volume for the 225 acre watershed.
" - 12" in diameter -will be used
3. 5 Limestone shot rock" 6 and approximately 18" above
p-
to ri rap the shore (line of the said p
"* and below the 98. 5 elevation. The slope oflaced unde this rip-r a therrockito
be 3: 1. A soil separator fabric will be placed
vegetation from
stabilize the underlying soil and to help p
growing between the rocks.
G� 3. 6 The outlet structure for the said pond shall be incorpo-
rated into a berm at thstatic pondam end of elevation. Thend.maximums struc-
release
ture will maintain the roximately 85 cubic
rate far that control
A dratnrall level to
piperandhvalve e shall be included in the
feet plow of the static water
stru
ure to
approximately I control atelY ctelevation196.0 City datum.
� .
3.7 A silt control ditch at, the up-stream end of the pond
shall be constructed by the Developers as a temporary feature. It
plans and will be maint0annod
will be constructed as shown on as the
d planted by the City.
and serviced by the Develop
before July 1, 1994, the .Developers shall remove tie a ishaldl the ex-
and it with a 54" concrete pipe. This 54" pipe
tended to the nmanilrrl=i str!_-ture west of the gas main and atruc-
top
with a manhole cover will be constructed o pavedoperifol shad1smaied
ture. After the 54 pipe is installed,
tain erosion control measures�
er sole expensealuction sites as direct
by the City at the Develop
,y
on the
3.8 The area delineated as the dconstruction mixture
i xtu limits
native
No. 23 said construction plans shall s selected
the City following the
prairie grasses and wild flowThe Develope by shall warrant the per-
completion of the grading. Twenty overstory and thirty
formance of this seeding for one year. pond. The size, loca-
understory trees will be planted around the p lant materials, are
tion and species of these trees, and other P pond.
specified in the a
plans construction for the pu stream from the pond
3.9 The area of the existing marsh, with a silt fence,
in The Green Subdivision , will be protected ro ect, to be
outside of the said Co oserus at the1Developersmits for thsole expense.
constructed by the Developers
3. 10 The City of Ames shall permit the Developers to dig a
"borrow Pit" in the area immediately south of the said .,pond if
suitable material for the construction
borrowois the
completeithenot
Developers
the pond excavation. After original grade and respread 1
I shall fill the void to the orig
topsoil over the excavation.
j Section Four. County Road R-50. aster a contract for
4. 1 The City shall award and admin
widening County Road R-50 as it abuts the subdivision.
4, 2 The Developers shall grant the City fee title by warran-
ty deed for all land required by the City within the bounds of the
subdivision for said widening of the said road.
said
all pay 50% of all the cost Of costs
-
widening, The Developf,othshconst uction and engineering
i widening, including ositing to an account
Payment shall be made by the Developers dep
an amount equal to 50% er the City
for the benefit of the City ened,
�- Engineer' s estimate of the cost Of
have dbeen dereceived eandt °p time
when the public bids for theThe
n but before the contract is account an amountlequal toa150%authorize
foeach
the City to draw on said e pertaining to
contract progress payment or other documented charge
said widening project, Costs in llc also obet shared he uon ant e50/50nbasis
the time of the ,said deposit cc ted by the City as complete.
- and settled when 'the work is accepted
Section 5. Streets.
Tatted, the Developers shall grant the City
As each phase is p expense,
Tans set out in the Concep-
permanent easements for
and
with the p Developers' so a
C� a street system in accordanceAppendix A, and the specifica-
tual Develmatent erialsaand tmethods. f cotached as struction established by the
tions fora street lighting system. However, the
City Engineer, including
shall reimburse the estimated cost of extra thickness require
City
bus routes.
on those streets that will be
Section 6. Water. rant the City
As each phase is platted, the Developers shall g
the Developers' Tans
permanent eaole
sements for and construct
in accordance with t e pl A,
expense, a water distribution sY
set out in the Conceptual Development Plan attached as Appendix
materials and methods of construction
+gin s,�G':ifications for m Ti1e City shall reimburse
established by the City' s engineers. �� stem needs
Developers for the cos�evelopmentrsizing to meet system
beyond the needs of the
Section 7. Sanitar S_r-
i
"dakaa�.
As each phase Is platted, Developers
Developers1 'gsole expensey
No. 23 permanent easements for and construct
a sanitary sewer system in accordance with plans
A asetthe specifhe
Conceptual Development Plan attached as Appendix by
cations for materials and The Cityods of shall reimburse utiDeveloperson i for the
the City' s engineers.
cost of "oversizing" to meet system needs beyond the needs of the
development.
Section 8. El ec_tri c U_ti 1 i tY.
Tatted, the Developers shall grant the City
As. each phase i s p ,
perpetual easements for the electric distribution system.
Section 9. Desinn_of Public Improvements=Responsibility of City.
The City of Ames agrees to design and prepare the construc-
tion plans for the public water distribution system, sanitary sewer
system, storm sewer and streets.
Section 10. Binding Agreement.
The terms and conditions hereof shall be binding upon and
inure to the, benefit of the heirs, representatives, successors,
grantees and assigns of the parties hereto and shall run with thof
e
land, except with respect to lots Pu This agreementrchase
record with shallthe be filedt for
occupancy by the purchaser.
record with the County Recorder.
Section 11. Performance Bond.
' Developers shall submit to the City a bond by a corporate
surety havingiated amount offices and a registered agent in the State of Iowa,
C) ferent
said bond to be in each phauch se of the subdivision ass security the tfor
Engineer requires for e p public utilities
payment of all costs of installation of all the to
(� and improvements provided for in this agreement with respectov 1 of
such phase, said bond to be tendered as a condition of apSaid bon
p
the final at of each phase of the said subdivision• rovements
pl
shall be so conditioned that if all said utilities and imp
f royal of
t4 are not completed within two years from the date of approval
of
said final plat, in accordance with the terms and provisions
within
this agreement, either the City, or the owners of anyboth
or both jointly, shall have a right to penal
said subdivision, of the p
specific performance of the work undone and payment
sum of the bond to cover he City shall he costs rissue a release of f obligati
completed for each phase, t
tion that can be recorded. When all improvements for all phases
' G release of obligation to that
are completed, the City will issue a
effect.
Section 12. Contrac_t Review•
ortunity to
The City shall be afforded notice of s for improvementsannco pered by this
review and comment on Developers for improvements in said subdivii-
elo is. that
b Dev p acted i s_
agreement and let y
Sion so that the City can determine if the work contracted
Cithe approved plans. All contractors shall be
needed to accomplishinsurance coverage sufficient to indemnify
mnify
required to carry .c
against reasonably foreseeable builders' risk, casualty an p
liability.
Section 13. Laws AP_QjY-
This agreement is not intended, and od thei shall ot the deemed,
to have relieved the Developers of any
y of
state or
or ordinancebobs of ligations to t e City.Ames, Iowa;. or
federal laws,
to have transferred any such o 9
I
...ram -�..
No. 23 Section 14. Notices.
Insofar as they pertain to Developers or City, all notices,
demands, claims or communications relating to or arising out of
this agreement shall be properly and adequately served and made if
sent by ordinary mail . Any notices, demands, claims or communica-
tions sent to the Developers shall be sent to Erb Hunziker, Ames,
Iowa 50010. Any notices, demands, claims or communications sent
to the City shall be sent to Ames City Manager.
Section 15. Remedies.
It is expressly understood and agreed that should the City
determine that there is any default in the performance of any
aspect of this agreement by the Developers the City shall , after
reasonable notice to cure, not to exceed thirty days, in addition
to its rights under the bond as aforesaid, withhold any or all
building and zoning permits, occupancy permits and letters of
compliance under City codes until the default is cured to the
satisfaction of the City.
-----------------------------
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Mr. and Mrs.
November 21, 1989
Page 3
There are no unpaid special assessments shown on the
Story County Treasurer's current tax list, nor are there any
Resolutions of Necessity with respect to special assessments that
have been certified to the Story County Treasurer' s office.
There are no unpaid or delinquent personal taxes shown.
7 . The real estate is subject to zoning ordinances of
the City of Ames, Iowa. The Abstract indicates the property is
situated, in District "R1-611 , Low-Density Residential District.
At Entry No. 23 is noted an instrument entitled
"Agreement With Subdivision Developers as to Streets, Utilities and
Other Public Improvements Pertaining to Northridge Parkway
Subdivision, Ames, Iowa. " This instrument was executed by the
developers and the City of Ames, Iowa. It is dated August 17 ,
1989 , and was filed in the office of the Recorder of Story County,
Iowa, on September 7, 1989, in Book 284 , commencing at page 52 .
This instrument provides for the granting of easements
for and the construction of a bikepath/walkway system, storm water
sewer system, including storm water retention pond, the widening
of County Road R-50, a street system, a water distribution system,
a sanitary sewer system, and an electrical distribution system.
The Agreement provides that the Developers are to file
with the City of Ames a bond issued by a corporate surety company
so as to insure performance by the Developers of the terms of the
Agreement. It provides: "As improvements are completed for each
phase, the City shall issue a release of obligation that can be
recorded. When all improvements for all phases are completed, the
City will issue a release of obligation to that effect. " The
Abstract does not reveal a "release of obligation" that has been
filed with respect to the subdivision First Addition, Northridge
Parkway Subdivision to Ames, Iowa. " We cannot determine from the
Abstract of Title if all the improvements have been completed
within the First Addition and the City has not yet filed its
"release of obligation" or if there remain improvements within this
First Addition that have not yet been completed.
Many of the terms of this Agreement are not unusual and
such Agreements are often filed in connection with new
subdivisions. However, there are provisions within this Agreement
that cause some uncertainty. Section 10 of the Agreement provides:
"The terms and conditions hereof shall be binding upon and inure
to the benefit of the heirs, representatives, successors, grantees
and assigns of the parties hereto and shall run with the land,
except with respect to lots purchased with the intent of occupancy
by the purchaser. This Agreement shall be filed for record with
the County Recorder. " (Emphasis added) . This section appears to
Mr. and Mrs.
November 21, 1989
Page 4
impose an obligation upon a lot purchaser except for those who
"purchase with the intent of occupancy. ,, P
necessary to file an Affidavit in which you uma are bl ythe t will e
affiants
stating that you have purchased this specific real estate with the
intention of constructing a residence upon the lot and with the
further intention of occupying that residence.
Section 15 of this Agreement provides: "It is expressly
understood and agreed that should the City determine that there is
any default in the performance of any aspect of this Agreement by
the Developers, the City shall, after reasonable notice to cure,
not to exceed thirty days, in addition to its rights under the bond
as aforesaid, withhold any or all building and zoning permits,
occupancy permits and letters of compliance under City codes until
the default is cured to the satisfaction of the City. " This
section appears to be somewhat inconsistent with the provisions of
Section lo. It appears from this section that the following could
occur:
A• A purchaser buys a lot within the First Addition and
files an Affidavit pursuant to Section 10 that it
is the intention of the purchaser to construct a
residence upon the lot and to occupy that residence.
B. All improvements are completed within the First
Addition and the City files a "release of
obligation" with the Story County Recorder's office.
C. The lot owner does not begin immediate construction
of a residence, and upon making application for a
building and zoning permit finds that the City has
determined that there is a default in the
performance of the Agreement by the Developers with
respect to improvements required in the Second
Addition or subsequent additions and the lot owner
is unable to obtain the building and zoning permit.
This may not be the intention of this instrument, but I
believe it is a fair construction of the quoted provisions.
You should make inquiry of the Developers and of the
appropriate officials of the City of Ames, Iowa, to determine the
application and affect of this Agreement upon your lot.
The property is subject to the rights of an
y in
Possession. Claims for labor and improvements made within ethenlast
90 days could become liens without a
Title and you should satisfyPPearing on the Abstract of
paid. Yourself that any such bills have been
PARTIAL RELEASE OF ENCUMBRANCE
Under the terms of an Agreement dated August 17, 1989, filed
September 7, 1989, in Record Book 284, Page 52 and re-recorded November
20, 1989 in Record Book 286, Page 314, the provisions set out in the
Agreement have been partially performed and the Agreement does not
constitute a lien nor an encumbrance against the following described
real estate:
Lots 1 through 30; Lots A, B, C, D; Northridge Parkway;
Ridgetop Road; Ridgetop Circle; Park Vista Circle; and
Lindenwood Circle, ,
all within First Addition, Northridge Parkway Subdivision to Ames, Iowa.
Done this 5th day of December, 1989.
BY
Attest Paul Goodland, Mayor
BY
Nancy Dionigi ity Clerk ,
STATE OF IOWA
SS.
COUNTY OF' STORY
On this 5th day of December
in 19 89 before me, a
Notary Public and for the State of Iowa, personally appeared F. Paul
Goodland and Nancy Dionigi, to me personally known, and, who, being by
me duly sworn, did say that they are the Mayor and City Clerk, respec-
tively, of the City of Ames, Iowa; that the seal affixed to the forego-
ing instrument is the corporate seal of the corporation, and that the
instrument was signed and sealed on behalf of the corporation, by au-
thority of its City Council, as contained in Resolution No. 89-406
adopted by the City Council on the 5th day of December 1989 , and that F. Paul Goodland and Nancy Dionigi 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.
NotaryPublic in a�ftf
Story County, Iowa
1