Ruscilli Dev. Agree - 1st amendMEMORANDUM
November 8, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
First Amendment to Ruscilli/McGraw-Hill Development Agreement
Economic Development Director Bill Baum is recommending apProval of the First
Amendment to the Development Agreement with Horizon/Ruscilli Development Co., Ltd.
and the McGraw-Hill Companies, Inc.
I concur with the recommendation and respectfully request Mayor and City Counci
approval.
Michael C. Van Milligen '"'-
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
CITY OF DUBUQUE, IOWA
MEMORANDUM
November 8, 2001
TO:
FROM: /s/ William Baum
SUBJECT:
Michael Van Milligen, City Manager
INTRODUCTION
This memorandum presents for City Council consideration an amendment to the Development Agreement
by and among the City, Horizon/Ruscilli Development Co. Ltd. and The McGraw-Hill Companies, Inc.
The amendment has been requested by the buyer to clarify language in the Agreement and to extend the
closing date.
DISCUSSION
On October t5, 2001, the City Council approved a Development Agreement with Ruscilli and McGraw-
Hill following a public hearing. The Development Agreement sets out the terms and conditions of the sale
and development of land in the Dubuque Industrial Center West for a new warehouse/distribution facility
for McGraw-Hit1.
Since the public hearing approving the Development Agreement, several issues relating to the property
have been discovered which necessitated the extension of the closing date to November 15, 2001. A draft
version of the amendment has been reviewed by both the Economic Development staff and the City's
Corporation Counsel. The proposed changes are generally non-substantive in nature and clarify issues that
were not fully resolved when the Development Agreement was first signed. The final version of the First
Amendment will be available for City Council review at the Tuesday, November 13, 2001 special City
Council meeting.
RECOMMENDATION
I recommend that the City Council approve the First Amendment to the Development Agreement by and
among the City, Ruscilli and McGraw-Hill and authorize and direct the Mayor and City Clerk to sign on
behalf of the City of Dubuque.
Prepared by:
Pamela Myhre
Economic Development Planner
11/9/01
F:\USERS~Pmyhre\WPDOCS~LOANDOCLMCGRAW HIiLL4MENDNO i .doc
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
This First Amendment to Development Agreement ('°the First Amendment") is
made and entered into to be effective as of November 13 , 2001 by and among the following
three parties: (i) Ruscilli Development Co., Ltd. ("Developer"), (ii) the City of Dubuque, Iowa
(the "City"), and (iii) The McGraw-Hill Companies, Inc. ("Employer").
A. On or about October 15, 2001, the City, Developer and Employer entered
into that certain Development Agreement relating to property located in Dubuque, Iowa (the
"Development Agreement"). Unless otherwise defined in this First Amendment, all capitalized
terms and phrases shall have the same meaning as in the Development Agreement.
Bo
The parties wish to amend the Development Agreement as hereinafter set
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Property. The Development Agreement is hereby amended by deleting
Exhibit B thereto and substituting the exhibit attached hereto as Exhibit B in lieu thereof (the
"Site Plan"). Further, except as set forth below, all references to "Property" in the Development
Agreement shall mean the 21.8 acre parcel depicted on Exhibit B hereto and being more
particularly described as Lot 5 of Dubuque Industrial Center West, City of Dubuque, Iowa, filed
October 24, 2001 as instrument No. 17314-01 and re-filed October 29, 2001 as instrument No.
17503-99. Notwithstanding the foregoing, the credit due Developer at the Closing shall be
calculated in accordance with the provisions of §3.1 based on the original Exhibit B to the
Development Agreement.
2. Closing Date. Sections 1.1 and 1.2(2) of the Development Agreement are
hereby amended by deleting the date "November 6, 2001" therefrom and inserting the date
''November 16, 2001" in lieu thereof.
3. Transferability. Section 4.7 of the Development Agreement (titled
'~Xlon-Transferability") is hereby amended by adding the following phrase to the end of such
section: ", which transfer may be facilitated by one or more such assignments."
4. Satisfaction of Conditions. The City represents that the Developer has
satisfied the conditions to its obligation to close as set forth in Section 1.5(5) of the Development
Agreement.
5. Encroachment. As generally depicted on the Site Plan, a gazebo and
chimney encroach onto the Property (the "Encroachment"). Anything in the Development
Agreement to the contrary notwithstanding, Developer is willing to accept ritle to the Property
subject to the Encroachment on the express condition that, within 90 days following the Closing,
the City shall have obtained all approvals and consents as may be necessary to facilitate the sale
and conveyance (by quitclaim deed) of that certain approximate 15' x 60' (.02 =t= acres) portion of
the Property containing the Encroachment (the "Gazebo Tract") from Developer back to the City
for the same per/acre purchase price as was paid by Developer to the City for the Property (i.e.,
$39,000/acre or approximately $780). City shall be responsible for all costs and expenses
associated with such transaction including all transfer, conveyance and documentary fees. City
represents and warrants to Developer, its successors and assigns, that conveyance of the Gazebo
Tract to the City shall not result in a violation of any deed restriction encumbering the Property
and/or require any variance from the City for set-back of the improvements to be constructed on
the Property or, if any such variance is required, City shall obtain such variance to the reasonable
satisfaction of Developer.
6. Approvals and Consents. The City, for itself and for the City Manager,
represent and warrant to Developer (and Developer's lender) that the plans and specifications for
the Minimum Improvements are in compliance and conformity with applicable zoning; the
Development Agreement; the Amended and Restated Urban Renewal Plan, Dubuque Industrial
Center Economic Development District; and the Declaration of Covenants, Conditions,
Restrictions, Reservations, Easements, Liens and Charges for Dubuque Industrial Center West
(recorded as Instrument No. 17454-99, records of Dubuque County, Iowa) and any other
applicable City or affiliated agency requirements and that all approvals and consents required of
or by the City for the acquisition of the Property, and the use of the project as an industrial
warehousing and distribution facility, have been given or, if not, such consents and approvals are
hereby given.
7. Storm Sewer Easement. At the Closing, the City, as the owner ofproperty
("Lot C") located west of and contiguous to the Property, shall convey to Developer, its
successors and assigns, an exclusive, perpetual easement, as an appurtenance to the Property and
Option Property (if applicable), on, over, across, under and through two separate twenty foot
wide strips of Lot C (as generally depicted on the Site Plan) for the installation, construction,
reconstruction, maintenance, repair and relocation of storm sewer lines and related
improvements for the discharge of storm water through such strips and into the
retention/detention pond (and Catfish Creek) located on Lot C.
8. Access. The City, for itself and for the City Manager, represent and
warrant to Developer and Developer's lender, their respective successors and assigns, that the
Property has pedestrian and vehicular access to and from Chavenelle Road, an improved street
dedicated to and accepted for public use.
9. Ratification. The parties ratify and affirm the Development Agreement, as
amended by this First Amendment.
IN WITNESS WHEREOF, the parties have executed this First Amendment to be
effective as of the date set forth above.
The City of Dubuque, Iowav Ruscilli Development Co., Ltd.
· (signature)
Terrance M. Duggan
(printed name) (printed name)
Its: Mayor Its:
(title) (titie)
The McGraw-Hill Companies, Inc.
By:.
(signature)
(printed name)
Its:
(ti~e)
LOT 5
LOT 2
(TYP.)
LOT 5 (P~,) "\
21.80 AC.
FLOOD NO'I~
s ----.___e
ALTA/ACSM LAND TITLE SURVEY
LOT 5 OF DUBUQUE INDUSTRIAL CENTER WEST, CITY OF DUBUQUE, IOWA
RECORD PLATS
NOTES CORRESPONDING TO SCHEDULE B
,DESCRIP'I]ON