Butler Children's Garden FoundationCopyrighted
September 6, 2022
City of Dubuque Consent Items # 06.
City Council Meeting
ITEM TITLE: Butler Children's Garden Foundation
SUMMARY: City Attorney recommending City Council approval of an agreement with
the Butler Children's Garden Foundation that provides access and
parking in the City's Marshall Park to facilitate construction of a public
children's garden on land currently owned by the Dubuque YMCA and
access and parking following completion.
SUGGESTED Suggested Disposition: Receive and File; Approve
DISPOSITION:
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Agreement Supporting Documentation
THE CITY OF
DUB E
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, ESQ.
CITY ATTORNEY
To: Mayor Brad M. Cavanagh & Members of the City Council
DATE: September 1, 2022
RE: Butler Children's Garden Foundation
Dubuque
MI-Ameft Clly
wnc�+.ucrvr.. i rxa,r
2007-2012-2013
2017*2019
Attached is an agreement with the Butler Children's Garden Foundation for review and
approval by the City Council. This agreement facilitates an acquisition of land currently
owned by the Dubuque YMCA by the Butler Children's Garden Foundation. The Butler
Children's Garden Foundation will develop a public children's garden on the land, which
upon completion will be donated to the Dubuque Arboretum Association. The agreement
provides access and parking in the City's Marshall Park to facilitate construction of the
children's garden and access and parking following completion.
cc: Michael C. Van Milligen, City Manager
Marie Ware, Leisure Services Manager
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 589-4381 / FAX (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org
Taxpayer/Return To: The Butler Children's Garden Foundation, Inc., 898 Mt. Carmel Road, Dubuque, Iowa 52003
Preparer: Stephan E. Alt, 890 Main Street, Suite 200, Dubuque, Iowa 52001, Phone: 563-556-4011
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT ("Agreement") is made and entered
into as of the T6 day of .5e to (n ke (� , 2022, by and between the Dubuque
Arboretum Association, Inc. (" AA"), The Butler Children's Garden Foundation, Inc.
("Butler"), and the City of Dubuque, Iowa ("City"). Each of the foregoing may be referred
to herein, individually as a "Party" and collectively, as the "Parties".
RECITALS
WHEREAS, the City of Dubuque is the owner of certain real property, commonly
known as Marshall Park, and legally described as:
The SW'/< of the SW'/<, Section 10, T89N, R2E, in the City of Dubuque,
Dubuque County, Iowa; AND the NW% of the SE'/< of the SW'/ and the
Balance of Lot 1 of the S%2 of the SE'/of the SW'/ and the SW'/ of the
SW'/ of the SE'/, all in Section 10, T89N, R2E, in the City of Dubuque,
Dubuque County, Iowa, ("Marshall Park Property");
WHEREAS, DAA is the long-term lessee of Marshall Park Property;
WHEREAS, Butler is in the process of purchasing certain real property,
consisting of roughly 18.717 acres, immediately adjacent to Marshall Park Property to
the North, and legally described as:
Lot 2 of Y-Camp Place No. 2, Dubuque County, Iowa, ("Lot 2");
WHEREAS, Lot 2 currently is an undeveloped parcel with no established access
to a public right-of-way;
WHEREAS, Butler desires to develop Lot 2 into a children's garden to be used
for public park purposes;
WHEREAS, after the development of Lot 2 Butler plans on transferring
ownership of Lot 2 to DAA;
WHEREAS, there are existing city park roads located on Marshall Park Property
connecting to the public right-of-way known as Arboretum Drive directly South of said
parcel;
WHEREAS, said existing city park roads located on Marshall Park Property
extend from Arboretum Drive and connect to the southerly boundary line of Lot 2; and
WHEREAS, Butler desires an Access Easement for the benefit of Lot 2 over,
across, and along the existing city park roads and parking lots located on Marshall Park
Property connecting Arboretum Drive to the southerly boundary line of Lot 2.
AGREEMENT
NOW THEREFORE, for the agreements set forth below and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:
Grant of Access Easement. The City hereby grants to Butler a non-exclusive
easement for ingress and egress over, across, and along Marshall Park Property
as shown on Exhibit A for purposes of providing Lot 2 access to the public right
of way located in Dubuque County known as Arboretum Drive. This easement
shall extend from the southerly point in which Marshall Park Property connects
to Arboretum Drive and extend northerly to Lot 2 over, across, and along the
existing city park roads and parking lots located on Marshall Park Property (the
"Access Easement"). The Access Easement is conditioned upon the property
remaining a public children's garden.
2. Grant of Parking Easement. The City hereby grants to Butler a non-exclusive
easement located as shown on Exhibit B for the parking of passenger vehicles,
and pedestrian and vehicular traffic of Lot 2 and the ingress, egress, and regress
of said passenger vehicles and pedestrian and vehicular traffic of Lot 2 to and
from Lot 2, Marshall Park Property, and public streets adjacent thereto (the
"Parking Easement"). The Parking Easement is conditioned upon the property
remaining a public children's garden.
3. Maintenance of Easements. The owner of Marshall Park Property shall be
responsible for all costs associated with the construction, maintenance, repair,
reconstruction, and/or replacement of all improvements of the Access Easement
and Parking Easement except as detailed in #4 Restoration of Marshall Park
Property.
4. Restoration of Marshall Park Prooertv. Notwithstanding the provisions set forth
in Section 3 herein, it is expressly understood by the parties that the Access
Easement will be used from time to time by the owner of Lot 2 for the
development, construction, maintenance, and repair of Lot 2 and that there is a
potential that Marshall Park Property, including, but not limited to, the Access
Easement, the city park roads, and utilities within Marshall Park Property may be
disturbed or damaged during said development, construction, maintenance, and
repair of Lot 2. As a condition of granting this Access Easement, the owner of
Lot 2 agrees that in the event Marshall Park Property, including, but not limited
to, the Access Easement, the city park roads, and utilities within Marshall Park
Property are damaged in the development, construction, maintenance, and
repair (including reconstruction) of Lot 2 that the then owner of Lot 2, at their sole
expense, shall restore the damaged area to substantially the same condition as
it was prior to the development, construction, maintenance, and/or repair of Lot
2.
Access to Easements. The Access Easement and the Parking Easement are
subject to the hours and park rules for Marshall Park Property and shall be limited
to patron use consistent with a children's garden and maintenance of said
children's garden. Subject to the hour and park rules for Marshall Park Property,
the Access Easement and the Parking Easement shall be unobstructed at all
times, except for such time when an alternate area is designated so long as the
obstructed period is temporary and for the purpose of the repair, maintenance,
reconstruction, or replacement of the Access Easement and/or Parking
Easement. No structures shall be constructed, erected, or placed upon the
Access Easement or Parking Easement that would materially impair the normal
operation or use of the Access Easement and/or Parking Easement for vehicular
and pedestrian purposes, respectively.
Use and Benefit. This Agreement, including the Access Easement and the
Parking Easement, shall run with the land and is binding upon and will inure to
the benefit of the owners of Marshall Park Property and the owners of Lot 2, and
each owner's respective heirs, successors, assigns, grantees, mortgagees,
tenants, and subtenants and all persons who now own, hold, or hereafter own or
hold portions of real property within Marshall Park Property or Lot 2 or leasehold
estate, or any interest therein, or building space thereon; and their respective
tenants and subtenants thereof; and the officers, directors, concessionaires,
employees, customers, visitors, and other licensees and invitees of any of them.
The Access Easement and the Parking Easement are non-exclusive and each
Party hereto acknowledges that the owners of Marshall Park Property and the
owners of Lot 2, and each owner's respective heirs, successors, assigns,
grantees, mortgagees, tenants, and subtenants and all persons who now own,
hold, or hereafter own or hold portions of real property within Marshall Park
Property or Lot 2 or leasehold estate, or any interest therein, or building space
thereon; and their respective tenants and subtenants thereof; and the officers,
directors, concessionaires, employees, customers, visitors, and other licensees
and invitees of any of them shall have the right to use the Access Easement and
the Parking Easement, consistent with the terms of this Agreement.
Notwithstanding anything to the contrary contained herein, the Access Easement
and the Parking Easement granted under this Agreement are easements
appurtenant to the parcels and may not be transferred separately from, or
severed from, title to the parcels.
7. Amendment. This Agreement constitutes the entire understanding and
agreement among the Parties relative to the matters contained herein and
supersedes all prior understandings or agreements in regard thereto. This
Agreement may not be amended, altered, or revised except by a written
instrument signed by the then -current owner(s) of Lot 2 and then -current
owner(s) of Marshall Park Property, and such amendment shall be recorded in
the Office of the Dubuque County Recorder.
8. Termination. Within twenty-four (24) months of the execution of this Agreement,
but only after the development of a children's garden on Lot 2, Butler will transfer
Lot 2 to DAA. If Butler has not yet transferred Lot 2 to DAA twenty-four (24)
months after execution of this Agreement, Butler shall show cause to the City
that Butler is continuing to progress with the development of Lot 2 as a children's
garden as set forth in this Agreement. The City, Butler, and DAA acknowledge
and agree that within the contemplated public park usage, Butler will develop and
DAA will maintain on Lot 2 a public children's garden which will preserve and
maintain the natural, scenic, and historical attributes of Lot 2; ensure general
public access to the Lot 2; and construct structures necessary for the use as
public children's garden. In the event Lot 2 is no longer used exclusively for public
park purposes as a children's garden this Agreement and the easements shall
terminate immediately, and the City shall have the opportunity to exercise the
option available to City as outlined in Section 9. In the event this Agreement and
the easements are terminated, the then owner of Lot 2 shall cease to have
access and parking pursuant to the Access Easement and Parking Easement
and shall be required to go through the City's Site Plan Review Process and
comply with the requirements dictated by the Site Plan Review process.
9. Option To Purchase. Butler hereby grants the City the exclusive option to
purchase Lot 2 for the price of One Dollar and 00/100 ($1.00) in the event this
Agreement is terminated pursuant to Section 8 herein for failure to maintain Lot
2 as a public children's garden (the "Option"). The City may exercise this Option
by giving written notice to the then owner of Lot 2, notifying the then owner of Lot
2 that this Agreement has been terminated, the reason for the termination, and
that the City desires to exercise this Option. After said notice the City and the
owner of Lot 2 shall proceed and shall use their best efforts to close the
transaction within six (6) weeks after the City's exercise of its option. Butler, DAA,
and the City expressly agree that this Option is appurtenant to Lot 2 and may not
be transferred separately from, or severed from, title to Lot 2 without the express
written consent of the City and the then owner of Lot 2.
Iv'
In the event this Agreement and the easements are terminated, the then owner
of Lot 2 shall cease to have access and parking pursuant to the Access
Easement and Parking Easement and shall be required to go through the City's
Site Plan Review Process and comply with the requirements dictated by the Site
Plan Review process.
10. Governing Law/Venue. This Agreement is governed by the laws of the State of
Iowa, without regard to its conflicts of laws principles, and is performable in, and
the exclusive venue for any action brought with respect hereto, will be in
Dubuque County, State of Iowa.
11. Consent. DAA, as lessee of Marshall Park Property and anticipated future owner
of Lot 2, hereby acknowledges and consents to the terms and conditions of this
Agreement. To the extent this Agreement conflicts in anyway with that certain
Lease Agreement dated July 28, 1992, as amended by that certain First
Amendment to Lease Agreement dated October 19, 1998, by and between DAA,
as lessee, and the City, as lessor (the "Lease") the terms of this Agreement shall
control.
12. Site Plan Review Process. Butler, DAA, and City agree that as part of the
consideration for this Agreement, the development of a children's garden on Lot
2 will be subject to the City of Dubuque Site Plan Review process and
requirements dictated by the Site Plan Review process.
13. Pre -Annexation. In conjunction with and in consideration of the granting of the
easement contemplated by this agreement, Butler agrees to execute a pre -
annexation agreement for Lot 2, attached as Exhibit C.
14. Binding Effect: Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties.
15. Severability. If any provision of this Agreement is held invalid under applicable
law, such invalidity shall not affect any other provision of this Agreement that can
be given effect without the invalid provision, and to this end, the provisions hereof
are severable.
IN WITNESS WHEREOF, the Parties have hereunto caused this Agreement to be
executed the day and year above first written.
[Remainder of page intentionally left blank; Signatures to follow]
CITY OF DUBUQUE, IOWA
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�r7Mayor
By. '
Adrienne N. Breitfelder
City Clerk
STATE OF IOWA, COUJ4TY OF DUBUQUE
On this day of
I , 2022, before me, a Notary Public in and for the
State of Iowa, persorTally appeared Brad M. Cavanagh and Adrienne N. Breitfelder, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk of the City of Dubuque, Iowa, and that said instrument was signed on behalf
of the City of Dubuque, Iowa by authority of its City Council and Brad M. Cavanagh and
AdriennPBreitfelder acknowledged the execution of said instrument to be the
volunt y ct and dee.4 of the City, of Dubuque, Iowa, by it voluntarily executed.
re or Notrubuc
//// M:PAIMELA J. McCARR 19iission Number�772419omm. Enp. 2Q2
DUBUQUE ARBORETUM ASSOCIATION, INC.
By: ney Pc�
Steven Ulstad
President
STATE OF IOWA, COUNTY OF DUBUQUE
On this L day of er 2022, before me, a Notary Public in and for the
State of Iowa, personally appeared Steven Ulstad, to me personally known, who being by
me duly sworn did say that he is the president of the Dubuque Arboretum Association,
Inc., that said instrument was signed on behalf of said company by authority of its
directors and the said Steven Ulstad acknowledged the execution of said instrument to
be his voluntary act and deed
--
Signature of Notary Public "EPHAN E, ALT
a F Co W"W Number 808113
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December 26, 2023
THE BUTLER CHILDREN'S GARDEN FOUNDATION, INC.
By: Z� C�
Debra A. Butler
President of The Butler Children's Garden Foundation, Inc.
STATE OF IOWA, COUNTY OF DUBUQUE
On this � aday of S T.LMb&" 2022, before me, a Notary Public in and for the
State of Iowa, persona ly appeared peared Debra A. Butler, to me personally known, who being
by me duly sworn did say that she is the President of The Butler Children's Garden
Foundation, Inc., that said instrument was signed on behalf of said company by authority
of its directors and the said Andrew J. Butler acknowledged the execution of said
instrumept to be his voluntgry act and deed
Signature of`Notary Publi
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EXHIBIT C
PRE -ANNEXATION AGREEMENT
Prepared by Crenna Brumwell, 30D Main Street, Suite 330 Dubuque, IA 62001 563-589-4391
Return to City Clerk, 50 West 13o Street, Dubuque, IA 520D1 5635694120
PRE -ANNEXATION AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE BUTLER CHILDREN'S GARDEN FOUNDATION
This Pre -Annexation Agreement (the "Agreement"), dated for reference purposes
the day of 2022, is made and entered into by and between
the City of Dubuque, Iowa ("City") and The Butler Children's Garden Foundation
("Owner").
Whereas, Owner is the legal owner of real estate legally described as:
Lot 2 of Y-Camp Place No. 2, Dubuque County, Iowa
and shown in Exhibit A attached hereto and incorporated herein by reference (the "Real
Estate"); and
Whereas, as of the date of this Agreement, the Real Estate is contiguous to the
corporate city limits of the city of Dubuque, located within two (2) miles of the corporate
limits of the city of Dubuque and constitutes territory which may be annexed by City as
provided in Iowa Code Chapter 368; and
Whereas, Owner desires to have the Real Estate annexed by City upon certain
terms and conditions as hereinafter set forth; and
Whereas, notice of the proposed annexation shall be given to the parties legally
required to be notified pursuant to Chapter 368 of the Iowa Code at the time the Real
Estate becomes contiguous to City; and
Whereas, the City Council, after due and careful consideration, has concluded
that the annexation of the Real Estate by City on the terms and conditions hereinafter
11
set forth would further the growth of City, would enable City to control the development
of the area and would serve the best interests of City.
NOW THEREFORE, IN CONSIDERATION OF THE PROMISES AND THE MUTUAL
COVENANTS AND AGREEMENTS HEREIN CONTAINED, IT IS HEREBY AGREED
AS FOLLOWS:
SECTION 1. AGREEMENT PURSUANT TO IOWA CODE CHAPTER 368. This
Agreement is made pursuant to and in accordance with the provisions of Iowa Code
Chapter 368. The foregoing preambles and recitations are made a part of this
Agreement.
SECTION 2. TERM. The term of this Agreement is from the day of
2022 until the annexation of the Real Estate to City is final.
SECTION 3. PETITION FOR ANNEXATION. Owner, upon execution of this
Agreement, will submit to the City Clerk a Pefition for Annexation of the Real Estate by
City, in the form provided in Exhibit B. The City Clerk will file the Petition, submit it to
the City Council for consideration at such time and under such circumstances as the
City Council deems appropriate, and comply with the requirements of Iowa Code
Chapter 368. Pursuant to Iowa Code §368.7(e), upon execution of this Agreement,
Owner hereby waives the right to withdraw or rescind the Petition and hereby waives
the right to withdraw its consent to the Petition and waives its right to object to
annexation.
SECTION 4. ADMINISTRATIVE COSTS. City agrees to pay the administrative costs
associated with the annexation of the Real Estate, which includes filing and recording
costs.
SECTION 5. TRANSITION OF CITY SHARE OF PROPERTY TAXES. City agrees
that the resolution approving the annexation application shall provide for the transition
for the imposition of City taxes against the Real Estate. The Real Estate shall be
entitled to the fallowing partial exemption from taxation for City taxes for a period of ten
(10) years following the final order of the City Development Board, if such annexation
requires approval by the City Development Board, after the exhaustion of any and all
appeals from the action of the Board by any person or the expiration of the time within
which such appeals may be brought, approving the voluntary annexation of the property
shown on Exhibit A:
1. For the first and second year, seventy-five percent (75%).
2. For the Hurd and fourth year, sixty percent (60%).
3. For the fifth and sixth year, forty-five percent (45%).
4. For the seventh and eighth year, thirty percent (30%).
5. For the ninth and tenth year, fifteen percent (15%).
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SECTION 6. CITY WATER SERVICES
6.1 Upon annexation, Owner, Owners heirs, successors and assigns, including but
not limited to, the future owners of the Real Estate will obtain City water services to the
Real Estate.
6.2 If Owner, Owner's heirs, successors and assigns, including but not limited to, the
future owners of the Real Estate, obtain water services from a rural water provider prior
to annexation, Owner must use City water services to provide water to the property
upon annexation. For provision of such future City water services to the Real Estate,
the Owner, the Owner's heirs, successors and assigns, including but not limited to, the
future owners of the Real Estate, shall be fully bound, jointly and severally, to pay City
Ere sum of any and all amounts City is required to pay as compensation to the rural
water service provider for losses resulting from annexation of all or any part of the Real
Estate by City and such amounts as City may be required or reasonably agrees to pay
the rural water service provider as a settlement for resolution of any claims, disputes,
objections, protests or litigation related to or arising out of City providing water service to
all or any part of the Real Estate, following annexation of the Real Estate to City.
6.3 If Owner obtains City water services prior to annexation, Owner will pay the
regular City water rate paid by all other City residents for such services.
6A If Owner, Owners heirs, successors and assigns, including but not limited to the
future owners of the Real Estate own, operate, and maintain a private well or water
system to supply water to the Real Estate, Owner, Owner's heirs, successors and
assigns, including but not limited to the future owners of the Real Estate will be allowed
to keep, maintain, and replace such well or water system indefinitely upon annexation, if
Owner, Owners heirs, successors and assigns, including but not limited to the future
owners of the Real Estate choose to do so. However, such a pre-existing well will be
allowed for non -potable water only. Potable water will be provided by City water
services. All connections supplied with City water from City water mains must be
exclusively supplied with City water and cannot intermingle or conned with existing
wells or private water systems, unless expressly approved by the City Manager in
limited special circumstances.
SECTION 7. OTHER CITY SERVICES
7.1 Upon annexation, Owner, Owner's heirs, successors and assigns, including but
not limited to, the future owners of the Real Estate will for provision of future
construction of street paving, curbs and guttering, storm sewers, water mains, sanitary
sewer mains, bicycle paths, sidewalks, or any other improvement authorized by state
law by means of City awarded contracts to be paid by special assessments to be levied
against the Real Estate, Owner agrees that by execution of this Agreement, Owner,
Owner's heirs, successors and assigns, including but not limited to the future owners of
the Real Estate, and each of them, shall pay and are bound to pay City, the costs of the
aforesaid improvements assessed to the Real Estate, by action of the City Council, after
13
notice of hearing as provided by Iowa Code Section 384.50, the provisions of Iowa
Code Section 384.38 notwithstanding.
7.2 It is City's current policy that Owner may elect, at the time of annexation, to
dedicate any streets on the Real Estate to the City, or to maintain any streets on the
Real Estate as private streets. If Owner maintains as private streets, City will not make
or require improvements to bring private streets to City standards. If Owner wishes to
dedicate streets to the City, streets must be brought to City standards at Owner's
expense. Such policy is subject to change and may no longer be in effect at the time of
annexation.
7.3 Upon annexation, City of Dubuque Code of Ordinances Section 13-2-3 states
that the owner of any house, building, or property used for occupancy, employment,
recreation, or other purposes situated in City and abutting any street, alley, right of way,
or easement in which there is now located, or may in the future be located, within two
hundred feet (200') of the nearest property line thereof, a public sanitary sewer of the
City, is required at the owners expense to conned such facilities directly with the public
sanitary sewer, in accordance with City standards within three hundred sixty-five (365)
days- If, at the time of annexation, the nearest property line of the Real Estate is within
two hundred feet (200) of a public sanitary sewer, Owner, Owner's heirs, successor or
assigns, including but not limited to the future owners of the Real Estate will be required
to connect to such public sanitary sewer. However, Owner, Owner's heirs, successors
or assigns will not be required to connect to the public sanitary sewer if construction
plans for an existing private onsite sewage treatment and disposal system are available,
the system meets the provisions of state laws and regulations, and the system received
a construction permit from the city manager prior to installation.
However, no private onsite sewage treatment and disposal system will be permitted to
operate for more than fifteen (15) years from its installation, unless otherwise
determined by the city manager pursuant to standards adopted by the city manager. If
the city manager determines at any time that the system is no longer adequate,
connection to the public sanitary sewer must be made.
City Code of Ordinances Section 13-2-3 is subject to change and may no longer be in
effect at the time of annexation.
7.4 If Owner is able and elects to receive public sanitary sewer services from the City
prior to annexation, Owner will pay the regular City sanitary sewer rate paid by all other
City residents for such services.
SECTION 8. BINDING AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their heirs, successors and assignees and shall
be recorded with the Real Estate and will apply to any subsequent plats and/or
subdivisions of the Real Estate.
14
SECTION 9. EFFECT OF INVALID PROVISION. If any provision of the Agreement is
held invalid, such invalidity shall not affect any of the other provisions contained herein.
SECTION 10. DEFAULT.
10.1 Failure by Owner to substantially observe or perform any material covenant,
condition, obligation or agreement on its part to be observed or performed under this
Agreement constitutes an Event of Default.
10.2 Whenever any Event occurs and is continuing, City may take any one or more of
the following actions after giving written notice by City to Owner of the Event of Default,
but only if the Event of Default has not been cured within sixty (60) days following such
notice, or if the Event of Default cannot be cured within sixty (60) days and Owner does
not provide assurances to City that the Event of Default will be cured as soon as
reasonably possible thereafter.
(1) City may suspend any part of or all of its performance under this
Agreement until it receives assurances from Owner, deemed adequate by
City, that Owner will cure its default and continue its performance under
this Agreement;
(2) City may cancel and rescind this Agreement;
(3) Owner will reimburse City for all amounts expended by City in connection
with the Agreement, and City may take any action, including any legal
action it deems necessary, to recover such amounts from Owner,
(4) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of
any obligation, agreement, or covenant under this Agreement.
SECTION 11. NOTICES. Any notice to be delivered pursuant to the terms of the
Agreement shall be delivered or mailed by certified mail, return receipt requested, to the
respective parties at the following addresses:
If to City. City of Dubuque
City Clerk
50 West 13r^ Street
Dubuque, Iowa 52001
If to Owner: The Butler Children's Garden Foundation
898 Mt Carmel Rd
Dubuque, IA52003
15
SECTION 12. COUNCIL APPROVAL. This Agreement is subject to final approval of
the City Council of Dubuque, Iowa in its sole discretion.
CITY OF DUBUQUE, IOWA
ATTEST:
By By:
Brad M. Cavanagh, Mayor Adrienne Breitfelder, City Clerk
On this day of 2022, before me, a Notary Public in and for
said state, personally appeared Brad M. Cavanagh and Adrienne Breitfelder known to
me to be the persons) named in and who executed the foregoing instrument, and
acknowledged that they executed the same as theirvoluntary act and deed.
OWNER
iJ V � ' j0
Notary Public in the State of Iowa
My Commission expires
Debra A Butler
President of The Butler Children'sjGaarden Foundation
On this ,fir day of A�%" , 2022, before me, a Notary Public in and for
said state personally appeared Debra A. Butler known to me to be the person(s) named
in and who executed the foregoing instrument, and acknowledge that they executed the
same as theirvoluntary act and deed. )
Notar)Wublic in the StAWof I
My Commission expires S
o� s� ANGIE TANG
Commission Number 939231
My C b EXP
15
ATTACHMENTS
EXH IBIT A: Legal Description and Map of Area to be Annexed
EXHIBIT B: Petition for Annexation
17
m
EXHIBIT B
PETITION FOR ANNEXATION
DATE FILED
TO: Mayor and City Council of the City of Dubuque, Iowa
Board of Supervisors, Dubuque County, Iowa
The Petitioners Respectfully States Under Oath:
1. That the Petitioners are the sole owners of record of the following legally described land
hereinafter to as the 'Real Estate". See attached Exhibit A: Legal Description and Plat of
Annexation. The Real Estate is further identified as parcel number
2. The Real Estate is not situated within the limits of any municipality, but is contiguous to
the City of Dubuque, Iowa. See attached Exhibit A: Legal Description and Plat of Annexation.
The Petitioners Respectfully Request:
1. That the above -described Real Estate be annexed to the City of Dubuque by resolution
of the Mayor and City Council of the City of Dubuque, Iowa, pursuant to Chapter 368 of the
Code of Iowa.
2. That such other action may be taken as is appropriate in the premises.
We, the Petitioners, hereby state that the preceding statements and all statements made in
supplementary material, and all attached documents submitted by me are true and correct.
We, the Petitioners, hereby acknowledge that pursuant to Iowa Code § 368.7(a), and upon
execution of the attached Pre -Annexation Agreement, Petitioners hereby waive the right to
withdraw or rescind this Petition and hereby waive the right to withdraw consent to this Petition
and waive the right io object to annexatioon..� �igned on this day of 1 `t � `", 2022
Telephone: 563--Telephone: 563-
scribed and sworn b are me this l � day of , 2022
Notary Public
.`'PrAL 00 ANGIE TANG
ATTACHMENTS: Commission Number 839231
EXHIBIT B-1: Legal Description and Map of Area to be An My Commission Expires
EXHIBITB-2: Pre -Annexation Agreement rOWN j¢-2vZj
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EXHIBIT B-2
PRE -ANNEXATION AGREEMENT
(Insert fully executed pre -annexation agreement here)
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PrepareU by Dana Bramwell, 300 Main SbeA Sole 330 Dubuque, IA 5200t 563-5194381
Return b Dty Clers, 50 west I r Street DubuWe, IA 52001 5636894120
COVENANT PERTAINING TO WATER SERVICE
THIS AGREEMENT, made and entered into effective the day of
202Z between the City of Dubuque, lows (hereinafter rolled "City"),
and The Buller Children's Carden Foundation (hereinafter called "Owners"), heir heirs,
successors and assigns,
WITNESSES
WHEREAS, the aforesaid Owner has applied to the City for approval of a
subdivision plal of an area of land described as follows ("the Real Estale'y
Lot 2 of Y-Comp Place No. 2, Dubuque County, Iowa
WHEREAS, said land is within two (2) miles of the City, subject to the jurisdiction of the
City for plat approval and for aulhonzaton of rural water service, and.
WHEREAS, Owner may desire to receive rural water service for the land being
platted.
NOW. THEREFORE, the partes hereto agree that
1. It the Owner of the Real Estate legally described above, the Owner's heirs,
successors and assigns, induding but nol limited to, the future owners of the Real
Estate, disconnects from City water and obtains such services from a rural water
provider prior to annexation of the Real Estate, or obtains water service, sanitary sewer
service, or both services from a rural water provider prior to annexation, the Owner, the
Owner's heirs, successors, and assigns, nlduding but not betted to future owners of the
Real Estate shall be and are hereby fully bound, jowly and severally, to pay to the City
the sum of any and all amounts that the City is required to pay as mmpensation to the
rural water provider for losses resulting from annexation of all or any part of the Real
Estate by the City and such amounts as the City may be required or reasonably agree
for pay the rural water provider as a settlement for resolution of any claims, disputes,
objections, protests or litigaton related to or arising out of the City providing water
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service or sanitary sewer service to all or any pad of the Real Estate, following
annexation of the Real Estate to the City.
2. This covenant and agreement shall be filed for record in the office of the
Dubuque County Recorder and all covenants, agreements, promises, and
represenlallons hereinstaled shall be deemed to be covenants running with the Real
Estate and shall endure and be binding on the parties hereto, their mortgagees,
lienholders, successors and assigns, for a period of hvenly-one (21) years from the date
of the recording of these covenards, unless claims to continue any interest in the
covenants are filed as provided by low. The City shall have this right to Ile a claim to
continue its interest in these covenants.
3. Invalidation of any of these covenants by)udgmant or court order strew in no way
aged any of the other prmsions, which shall remain in full force and effect
A. If Owner, Owner's heirs, successors and assigns, including but not limited to the
future owners of the Real Estate own, operate, and maintain a private well or water
system to supply water to the Real Estate, Owner, Owner's heirs, successors and
assigns, Including but not limited to the future owners of the Real Estate will be allowed
to keep, maintain, and replace such well or water system indefinitely upon annexation, if
Owner, Owners heirs, successors and assigns, Including but not limited to the future
owners of the Real Estate choose to do so- However, such a pre-ewsfing well will be
allowed for non -potable water only. Potable water will be provided by City water
services. All connections supplied with City water from City water mains must be
exclusively supplied with CITY water and cannot intermingle or conned with existing
wells or private wafer systems, unless expressly approved by the City Manager in
limited special circumstances.
Executed by the respective signatories effective the date first above written.
CITY OF DUBUQUE, IOWA
ATTEST:
By. BY
Brad M. Cavanagh, Mayor Adrienne Biedfelder,City Clark
On this day of 2022, before me, a Notary Public in and for
said slate, personalty appeared Brad M. Cavanagh and Adrienne Breitlelder known to
me to be the persons) named in end who exerxded the foregoing instrument, and
acknowledged that they executed the same as (heir voluntary ad and deed
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Notary Public in the State of Iowa
My Commission expires
OWNER
President of The Butler Children's Garden Foundation
On this L day of �, 2022, before me, a Notary Public in and for
said state personally app ared Debra A. Butler known to me to be the person(s) named
in and who executed the foregoing instrument, and acknowledge that they executed the
same as their voluntary act and deed.
Notary PutWe i n the sta a of I a �[ 7
My Commission expires `S �/� �S
over^ ANGIE LONG
Commission Number 839231
My Commis ton Expires
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