Signed Contract_First Amendment to Access Easement Agreement with Butler Children's Garden Foundation, Inc.City of Dubuque
City Council Meeting
Consent Items # 013.
Copyrighted
June 3, 2024
ITEM TITLE: Signed Contract(s)
SUMMARY: Landmark Turf Services, LLC for the Weed Control Flood Control
System Spraying 2024; First Amendment to Access Easement
Agreement with Butler Children's Garden Foundation, I nc.; Amended
and Restated Parking Agreement with Wanderwood Gardens and
Dubuque Arboretum and Botanical Gardens.
SUGGESTED Suggested Disposition: Receive and File
DISPOSITION:
ATTACHMENTS:
Description Type
Weed Control Flood Control System Spraying 2024 Supporting Documentation
First Amendment to Access Easement Agreement Supporting Documentation
Amended and Restated Parking Agreement Supporting Documentation
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: 563-556-401 1
FIRST AMENDMENT TO ACCESS EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO CCESS EASEMENT AGREEMENT
("Amendment") is made and entered into onFA4 2024, by and between the
DUBUQUE ARBORETUM ASSOCIATION, INC. ("DAA"), 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 is the owner of certain real property, commonly known as Marshall Park,
and legally described as:
The SW 1/4 of the SW 1/4, Section 10, T89N, R2E, in the City of Dubuque, Dubuque
County, Iowa; AND the NW 1/4 of the SE 1/4 of the SW 1/4 and the Balance of Lot 1
of the S % of the SE 1/4 of the SW 1/4 and the SW 1/4 of the SW 1/4 of the SE 1/4, all in
Section 10, T89N, R2E, in the City of Dubuque, Dubuque County, Iowa,
("Marshall Park");
WHEREAS, DAA is the long-term lessee of Marshall Park;
WHEREAS, Butler is the owner of certain real property, consisting of roughly 18.717 acres,
immediately adjacent to Marshall Park to the North, and legally described as:
Lot 2 of Y-Camp Place No. 2, Dubuque County, Iowa, ("Lot 2");
WHEREAS, the Parties entered into that certain Access Easement Agreement dated September 7,
2022, recorded October 3, 2022, as Instrument No. 2022-12262, in the records of the Dubuque
County Recorder (the "Easement");
WHEREAS, the Parties desire to modify the Easement in certain respects.
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:
IN WITNESS WHEREOF, the Parties have hereunto caused this Agreement to be executed the
day and year above first written.
CITY OF DUBUQUE, IOWA:
By:
Name: M chael C. Van Milligen
Title: City Manager
STATE OF IOWA, COUNTY OF DUBUQUE
On this 2-TA day of M, 2024, before me, a Notary Public in and for the State
of Iowa, personally appeared Mich el C. Van Milligen to me personally known, who being by
me duly sworn did say that he is the City Manager 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 Michael C. Van Milligen acknowledged the execution of said instrument to be the voluntary
act and deed of the City of Dubuque, Iowa, by it voluntarily executed.
PkAL sr MIA BURBACH
a , Commission Number 841323
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Signatje of Notary Public
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AGREEMENT
1. Amendment to Recitals. The following is hereby deleted from the Recitals of the Easement
in its entirety:
"WHEREAS, after the development of Lot 2 Butler plans on transferring ownership of Lot 2
to DAA;"
2. Amendment to Section 2. Section 2 of the Easement is hereby amended and restated in its
entirety to read as follows:
"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.
a. Expansion of Parking Easement. The parties hereto recognize that visitors to the public
children's garden will want to park in the main parking lot nearest to the public children's
garden entrance. Therefore, Butler, at Butler's cost and expense, intends to re -stripe and
expand the existing parking lot within the Parking Easement to add additional parking
spaces as shown on the attached Exhibit B I. The City hereby consents to the proposed
alteration to the parking lot provided that Butler agrees that in the event Marshall Park
Property is damaged in the development and construction of the parking lot that Butler, at
Butler's sole expense, shall restore the damaged area to substantially the same condition as
it was prior to the development and construction, of the parking lot."
3. Amendment to Section 8. Section 8 of the Easement is hereby amended and restated in its
entirety to read as follows:
"8. Termination. The parties hereto acknowledge and agree that within the contemplated public
park usage, Butler and its successors and assigns, will develop and 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."
4. Amendment to Exhibit B. Exhibit B of the Easement is hereby deleted and replaced with
the attached Exhibit B.
2
5. No Other Changes. Except as may be otherwise expressly set forth herein, each and every
term, condition, and provision of or exhibits to the Easement shall remain in full force and effect,
and such are hereby ratified, confirmed and approved by the parties hereto.
6. Counterparts. This Amendment may be executed in any number of identical counterparts,
any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed
original for all purposes.
7. Governing LawNenue. This Amendment 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.
8. Incorporation of Recitals. The Recitals to this Amendment are true, correct, and
incorporated herein by reference.
[Remainder of page intentionally left blank; Signatures to follow)
DUBUQUF,�VORETUM ASSOCIATION, INC.
By:
Name:
Title:
STATE OF IOWA, COUNTY OF DUBUQUE
On May, 2024, before me, a Notary Public in and for the State of Iowa, personally appeared
Jeffrey P. Mozena, 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 Jeffrey P. Mozena acknowledged the
execution of said instrument to be his voluntary act and deed.
Traci A. Kell Qih4n a vy-&
Iowa Notarial Seal Signature of Notary Pu lic
Commission # 165 16
m
My Commission Eir ea:4
THE BUTLER CHILDREN'S GARDEN FOUNDATION, INC.
By: Gr
Name: �Ebra A. Butler
Title: President
STATE OF IOWA, COUNTY OF DUBUQUE
On Mayes, 2024, before me, a Notary Public in and for the State of Iowa, personally appeared
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 Debra A. Butler acknowledged
the execution of said instrument to be his voluntary act and deed.
Traci A. Kell C�, 41) P, n J �y V. �,
Iowa Notarial Seal Signature of Notary 211blic
Commission # 1653�1C„
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