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Home My WebLink AboutA044 - Council Action Form dated June 11, 2024 ITEM#: 12 DATE: 06-11-24 DEPT: P&H COUNCIL ACTION FORM SUBJECT: RESOLUTION APPROVING COVENANT RELATED TO FLOODPLAIN AREA UPON LOT 27,AND OUTLOT Z IN THE BAKER SUBDIVISION BACKGROUND: As part of the administrative requirements of our CDBG and HOME Programs with the Department of Housing and Urban Development (HUD), all HUD-assisted project activities approved in our Annual Action Plans are subject to an Environmental Review Process. The goal of carrying out environmental assessments is to protect human health and the natural environment from the foreseeable, harmful effects of planned industrial facilities and infrastructure measures. Staff completed the environmental review of the proposed new construction of 38 LIHTC multi-family units on Lot 27 in the Baker Subdivision and on Outlot Z (storm water detention Pond) and submitted the request for approval to HUD. HUD's review of the request indicated that a very small portion of Lot 27 along the southern boundary is located in the 500-year Floodplain, and a small portion of Outlot Z is in the 100-year floodplain along the south boundary. In order to utilize our HOME funds towards the construction of the low-income units on Lot 27, and to cover the environmental review elements remaining for the entire subdivision, the City has to establish certain restrictions with respect to the use of the 500-year and 100-year floodplain areas of the entire subdivision. The proposed restricted areas have no impact on the planned Creekside Townhome project or the City's storm water detention facility. Attached for your review and approval is a two Declaration of Restrictive Covenants Related to the Floodplain on Lot 27 and related to Outlot Z that have been prepared by our Legal Department. The Restrictive Covenant language for both lots have been approved by HUD. ALTERNATIVES: 1. The City Council can adopt a Resolution approving the Covenants related to Floodplain area on Lot 27 and Outlot Z (storm water detention pond) in the Baker Subdivision. 2. The City Council can deny the adoption of a Resolution approving the Covenants related to the Floodplain area upon Lot 27 and Outlot Z (storm water detention pond) in the Baker Subdivision. CITY MANAGER'S RECOMMENDED ACTION: In order for the City of Ames to receive approval to utilize its HOME Program funds to assist with the development of 38 LIHTC units on Lot 27 and cover Lot Z (storm water detention pond) in the Baker Subdivision, the adoption of the attached Covenants are required. Therefore, it is the recommendation of the City Manager that the City Council adopt Alternative #1, as described above. ATTACHMENT(S): Covenant Floodplain(Lot 27) (2).pdf Restrictive Covenant(Outlot Z) (1).pdf 1 —SPACE ABOVE RESERVED FOR OFFICIAL USE Return document to: City Clerk,515 Clark Avenue,RO.Box 811,Ames IA 50010 Document prepared by: Victoria A.Feilmeyer.City ofAmes Legal Department,515 ClarkAve.,Ames,IA 50010—515-239-5146 DECLARATION OF RESTRICTIVE COVENANT RELATED TO FLOODPLAIN (Lot 27) This Declaration of Restrictive Covenant ("Declaration") is executed as of June 11, 2024, (the "Effective Date"), by the City of Ames, Iowa, an Iowa municipal corporation ("City"), its successors and assigns. RECITALS A. The City is the owner and titleholder of that certain parcel of land located at 3216 Tripp Street, Ames, Iowa, which is more fully described on Exhibit A hereto (the "Property"). B. An incidental portion of the Property depicted on Exhibit B hereto is located within a 500 year Floodplain (said portion of the Property hereinafter referred to as the "Floodplain Area"). C. In connection with certain financial grant assistance provided by the United States Department of Housing and Urban Development ("HUD") to the City, the City has agreed to establish certain restrictions with respect to the use of the Floodplain Area that are intended to run with the land as more fully set forth herein. The use restriction contained herein is intended to comply with the requirements of Section 24 C.F.R. 55.12(c)(7). D. The purpose of this Declaration is to provide for permanent preservation of the Floodplain Area, as set forth herein. NOW THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City declares as follows: 2 1. Use Restrictive Covenant. (a) From and after the Effective Date, (i) no new structure, paving, or other improvements shall be constructed on, and no new modifications or landscaping activities (except for minor grubbing, clearing of debris, pruning, sodding or seeding, or other similar activities) shall be carried out within the Floodplain Area; and (ii) the use of the Floodplain Area shall be limited solely to passive open or green space. (b) This Declaration and the covenants set forth herein restricting the use of the Floodplain Area (i) shall constitute covenants running with, touching, and encumbering the Property, binding upon the City and all successors in interest or title, transferees, vendees, lessees, mortgagees, and assigns who are owners and/or users of the Property, and (ii) are not merely personal covenants of the City. (c) Any and all requirements of the laws of the State of Iowa to be satisfied in order for the provisions of this Declaration to constitute covenants running with the land shall be deemed to be satisfied in full, and any requirements or privileges of estate are intended to be satisfied, or in the alternate, an equitable servitude has been created to insure that these restrictions run with the land. The covenants contained herein shall survive and be effective regardless of whether such contract, deed or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Declaration. 2. Enforcement. In the event of a breach or threatened breach of this Declaration, any party adversely affected by such breach, the county or municipality where the Property is located, the State, or the United States of America shall be entitled to institute proceedings at law or in equity for relief from the consequences of said breach including seeking injunctive relief to prevent a violation thereof. 3. Superiority. The charges and burdens of this Declaration are, and shall at all times be, prior and therefore superior to the lien or charge of any mortgage or deed of trust hereafter made affecting the Property or any part thereof, including any improvements now or hereafter placed thereon, and notwithstanding a foreclosure or other voluntary or involuntary transfer of title pursuant to such instrument, shall remain in full force and effect, but are subordinate to the security interests of record on the Effective Date. Provided, however, that a breach of any of the restrictions hereof shall not defeat or render invalid the lien or charge of any mortgage or deed of trust. The charges and burdens of this Declaration are not intended to either create a lien upon the Property, or grant any right of foreclosure, to any person or party. 4. Release. Any person or entity having or acquiring fee or leasehold title to the Property or any portion thereof shall be required to comply with this Declaration only during the period such person or entity is the fee or leasehold owner of the Property, and thereafter shall be released therefrom, except that such person or entity shall continue to be liable 2 3 for, and shall not be released from liability for, obligations, liabilities or responsibilities that accrue or accrued during said period of ownership. Although persons or entities may be released under this paragraph, the restrictions of this Declaration shall continue to be restrictions upon the Property, running with the land, and shall inure to the benefit of, and be binding upon, their successors and assigns in title or interest. 5. Notices. All notices provided for herein may be delivered in person, sent by Federal Express or other overnight courier service, mailed in the United States mail postage prepaid, or sent by electronic or facsimile transmission, and, regardless of the method of delivery used, shall be considered delivered upon the actual receipt or refusal of receipt thereof. The name, address and other information to be used in connection with such correspondence and notices to Owner shall be the then-current owner's name and address information maintained in the official real property tax records with respect to the Property. 6. Miscellaneous. (a) Headings. The headings in this Declaration are for convenience only and do not in any way limit or affect the terms and provisions hereof. (b) Unenforceability. If any provision of this Declaration is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remainder of such provision or any other provisions hereof. (c) Gender. Wherever appropriate in this Declaration, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain genders shall be deemed to include either or both of the other genders. (d) Governing Law. This Declaration shall be construed and enforced in accordance with the laws of the State of Iowa. (e) Remapping of Floodplain. In the event that a final Flood Insurance Rate Map or a Letter of Map Amendment issued by the U.S. Federal Emergency Management Agency (or successor federal agency having responsibility therefor) after the date of this Declaration revises the boundaries of the floodplain with the effect of reducing the extent of the Property that is within the Floodplain Area, the Use Restrictive Covenant in the Declaration shall apply within the revised boundaries of the Floodplain from and after the effective date of the revised Flood Insurance Rate Map or Letter of Map Amendment; provided, that City and its successors may not deposit fill within the Floodplain Area or obtain a Letter of Map Revision based upon such fill, and any such Letter of Map Revision based on fill shall not alter the applicability of the Use Restrictive Covenant to the Floodplain as delineated prior to such Letter of Map Revision. (f) Amendments. This Declaration may be amended or canceled only by written instrument executed by HUD and the then-current owner of the Property. 3 4 (g) No General Public Access. This Declaration does not establish any rights of access in favor of the general public for any purposes whatsoever. (h) Entire Agreement. This Declaration constitutes the entire agreement of the City with respect to the subject matter hereof and supersedes all prior negotiations or discussions, whether oral or written, with respect thereto. IN WITNESS WHEREOF, the undersigned has caused this Declaration to be approved by its duly authorized representatives, as of the day and year first above written. CITY OF AMES, IOWA By: [SEAL] John A. Haila, Mayor Attest: Renee Hall, City Clerk STATE OF IOWA, COUNTY OF STORY, SS.: This instrument was acknowledged before me on , 2024, by John A. Haila and Renee Hall, as Mayor and City Clerk, respectively, of the City of Ames, Iowa. NOTARY PUBLIC 4 5 EXHIBIT A Lot 27, Baker Subdivision, Ames, Iowa. EXHIBIT B—Legal Description An area commencing at the Southeast Corner of Lot 1, Baker Subdivision, City of Ames, Iowa; thence N889I'15"E, 97.61 feet, to a point on the south line of said Baker Subdivision and the Point of Beginning of a 3.0 foot wide strip that includes all of the existing 500-year floodplain area within Lot 27, which the south line of said area is described as the south line of Lot 27 of said Subdivision, terminating at the Southeast Corner of said Lot 27, all perimeters of said area are contained within said Lot 27. [Said description is overinclusive of the actual existing floodplain area]. 5 6 Exhibit B Floodplain Restricted Area Map - Baker Subdivision Lot 27 w � z 7' Ipp ST a J J w Lot 27 Baker Q Subdivision O N Floodplain No Build Restriction Area - See Detail - - - - - - - - - - - - - - - - - - - - - - - - - - - Lot I Baker ; Subdivision ; /-/ - - - - - - - - - - - - - - - - - - - - - - - 1 3' Legend N o Parcels AREA NOT Flood Zone INCLUDED A X AE Floodplain No Build P 0 0.01 0.01 0.02 Miles Restriction Area 7 —SPACE ABOVE RESERVED FOR OFFICIAL USE Return document to: City Clerk,515 Clark Avenue,RO.Box 811,Ames IA 50010 Document prepared by: VictoriaA.Feilmeyer.City ofAmes Legal Department,515 C1arkAve.,Ames,IA 50010—515-239-5146 DECLARATION OF RESTRICTIVE COVENANT RELATED TO FLOODPLAIN (Outlot Z) This Declaration of Restrictive Covenant ("Declaration") is executed as of June 11, 2024, (the "Effective Date"), by the City of Ames, Iowa, an Iowa municipal corporation ("City"), its successors and assigns. RECITALS A. The City is the owner and titleholder of that certain parcel of land located at 3110 Tripp Street, Ames, Iowa, which is legally known as "Outlot Z, Baker Subdivision, Ames, Iowa" (the "Property"). B. Under Ames Municipal Code §§23.201(41) and 23.401(3)(g) the Property is an unbuildable lot within Baker Subdivision. C. A portion of the Property as depicted on Exhibit A hereto is located within the 100- and 500-year Floodplain (said portion of the Property hereinafter referred to as the "Floodplain Area"). D. In connection with certain financial grant assistance provided by the United States Department of Housing and Urban Development ("HUD") to the City for the adjacent real estate known as 3216 Tripp Street, Ames, Iowa (legally known as "Lot 27, Baker Subdivision, Ames, Iowa'), the City has agreed to establish certain restrictions with respect to the use of the Floodplain Area that are intended to run with the land as more fully set forth herein. The use restriction contained herein is intended to comply with the requirements of Section 24 C.F.R. 55.12(c)(7). E. The purpose of this Declaration is to provide for permanent preservation of the Floodplain Area, as set forth herein. 8 NOW THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City declares as follows: 1. Use Restrictive Covenant. (a) From and after the Effective Date, (i) no new structure, paving, or other improvements shall be constructed on, and no new modifications or landscaping activities (except for minor grubbing, clearing of debris, pruning, sodding or seeding, or other similar activities) shall be carried out within the Floodplain Area; and (ii) the use of the Floodplain Area shall be limited solely to passive open or green space. (b) This Declaration and the covenants set forth herein restricting the use of the Floodplain Area (i) shall constitute covenants running with, touching, and encumbering the Property, binding upon the City and all successors in interest or title, transferees, vendees, lessees, mortgagees, and assigns who are owners and/or users of the Property, and (ii) are not merely personal covenants of the City. (c) Any and all requirements of the laws of the State of Iowa to be satisfied in order for the provisions of this Declaration to constitute covenants running with the land shall be deemed to be satisfied in full, and any requirements or privileges of estate are intended to be satisfied, or in the alternate, an equitable servitude has been created to insure that these restrictions run with the land. The covenants contained herein shall survive and be effective regardless of whether such contract, deed or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Declaration. 2. Enforcement. In the event of a breach or threatened breach of this Declaration, any parry adversely affected by such breach, the county or municipality where the Property is located, the State, or the United States of America shall be entitled to institute proceedings at law or in equity for relief from the consequences of said breach including seeking injunctive relief to prevent a violation thereof. 3. Superiority. The charges and burdens of this Declaration are, and shall at all times be, prior and therefore superior to the lien or charge of any mortgage or deed of trust hereafter made affecting the Property or any part thereof, including any improvements now or hereafter placed thereon, and notwithstanding a foreclosure or other voluntary or involuntary transfer of title pursuant to such instrument, shall remain in full force and effect, but are subordinate to the security interests of record on the Effective Date. Provided, however, that a breach of any of the restrictions hereof shall not defeat or render invalid the lien or charge of any mortgage or deed of trust. The charges and burdens of this Declaration are not intended to either create a lien upon the Property, or grant any right of foreclosure, to any person or party. 4. Release. Any person or entity having or acquiring fee or leasehold title to the Property or any portion thereof shall be required to comply with this Declaration only during the period such person or entity is the fee or leasehold owner of the Property, and thereafter 2 9 shall be released therefrom, except that such person or entity shall continue to be liable for, and shall not be released from liability for, obligations, liabilities or responsibilities that accrue or accrued during said period of ownership. Although persons or entities may be released under this paragraph, the restrictions of this Declaration shall continue to be restrictions upon the Property, running with the land, and shall inure to the benefit of, and be binding upon, their successors and assigns in title or interest. 5. Notices. All notices provided for herein may be delivered in person, sent by Federal Express or other overnight courier service, mailed in the United States mail postage prepaid, or sent by electronic or facsimile transmission, and, regardless of the method of delivery used, shall be considered delivered upon the actual receipt or refusal of receipt thereof. The name, address and other information to be used in connection with such correspondence and notices to Owner shall be the then-current owner's name and address information maintained in the official real property tax records with respect to the Property. 6. Miscellaneous. (a) Headings. The headings in this Declaration are for convenience only and do not in any way limit or affect the terms and provisions hereof. (b) Unenforceability. If any provision of this Declaration is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remainder of such provision or any other provisions hereof. (c) Gender. Wherever appropriate in this Declaration, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain genders shall be deemed to include either or both of the other genders. (d) Governing This Declaration shall be construed and enforced in accordance with the laws of the State of Iowa. (e) Remapping of Floodplain. In the event that a final Flood Insurance Rate Map or a Letter of Map Amendment issued by the U.S. Federal Emergency Management Agency (or successor federal agency having responsibility therefor) after the date of this Declaration revises the boundaries of the floodplain with the effect of reducing the extent of the Property that is within the Floodplain Area, the Use Restrictive Covenant in the Declaration shall apply within the revised boundaries of the Floodplain from and after the effective date of the revised Flood Insurance Rate Map or Letter of Map Amendment; provided, that City and its successors may not deposit fill within the Floodplain Area or obtain a Letter of Map Revision based upon such fill, and any such Letter of Map Revision based on fill shall not alter the applicability of the Use Restrictive Covenant to the Floodplain as delineated prior to such Letter of Map Revision. (f) Amendments. This Declaration may be amended or canceled only by written instrument executed by HUD and the then-current owner of the Property. 3 10 (g) No General Public Access. This Declaration does not establish any rights of access in favor of the general public for any purposes whatsoever. (h) Entire Agreement. This Declaration constitutes the entire agreement of the City with respect to the subject matter hereof and supersedes all prior negotiations or discussions, whether oral or written, with respect thereto. IN WITNESS WHEREOF, the undersigned has caused this Declaration to be approved by its duly authorized representatives, as of the day and year first above written. CITY OF AMES, IOWA By: [SEAL] John A. Haila, Mayor Attest: Renee Hall, City Clerk STATE OF IOWA, COUNTY OF STORY, SS.: This instrument was acknowledged before me on , 2024, by John A. Haila and Renee Hall, as Mayor and City Clerk, respectively, of the City of Ames, Iowa. NOTARY PUBLIC 4 11 EXHIBIT A—Legal Description All land included within the South 60 feet of Outlot Z, Baker Subdivision, City of Ames, Iowa. [Said description is overinclusive of the actual existing 100- and 500-year floodplain area]. 5 12 Exhibit A Floodplain Restricted Area Map - Baker Subdivision w � z TR/pp ST a J J w Lot 27 Baker Q Subdivision r— Outlot Z Baker J Subdivision Floodplain No Build Restriction Area - See Detail - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -, Lot I Baker ; Subdivision ; 0 Legend N o Parcels AREA NOT Flood Zone INCLUDED A X AE Floodplain No Build P 0 0.01 0.01 0.02 Miles Restriction Area 13