Serenity Ridge Agreement_John HerrigTO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Serenity Ridge Subdivision -Intersection Agreement
DATE: April 30, 2008
City Engineer Gus Psihoyos is recommending approval of an agreement between the
City of Dubuque and Developer John Herrig for the proposed intersection improvements
needed at Plaza Drive and Derby Grange Road. Serenity Ridge Subdivision is a 112-
acre subdivision located in the northwest quadrant of the City of Dubuque. The
agreement includes:
• City and Developer each agree to equally share in the estimated cost of the
intersection improvements of $454,540.
• City will assume the initial construction costs, with the Developer reimbursing the
City in five equal annual payments over five years.
• Developer shall coordinate the project with the County Engineer and obtain the
necessary approvals and permits.
• The Developer shall provide a promissory note, letter of credit, certificate of
deposit, or other security for payment of costs.
The City's portion of this project is budgeted in Fiscal Year 2010.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
cb?
Mic ael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, City Engineer
THE CTTY OF DUbUgUe
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TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer
SUBJECT: Serenity Ridge Subdivision -Intersection Agreement
DATE: April 29, 2008
INTRODUCTION
This memorandum is to request City Council
an agreement between the City of Dubuque
(Developer) for the proposed intersection o
Road.
approval for the Mayor to execute
(City) and developer John Herrig
f Plaza Drive and Derby Grange
BACKGROUND
Serenity Ridge Subdivision is a 112-acre subdivision located in the northwest
quadrant of the City of Dubuque. Approximately 65 of these acres will be
subdivided into residential and commercial lots and will be served by an
extension of Plaza Drive that will intersect with Derby Grange Road west of the
Derby Grange Recreation Center.
This extension of Plaza Drive and its intersection with Derby Grange Road will
provide two access points-from either Derby Grange Road or the Northwest
Arterial. For safety of the motoring public, the City agreed to partially finance, as
funding is available and according to plans approved by City, the construction
costs for improvements to the proposed intersection of Plaza Drive and Derby
Grange Road. These costs were presented by the Engineering Department at
the Saturday budget work session held on February 22, 2008 and adopted at the
March 13, 2008 public hearing.
DISCUSSION
The basic elements of the Agreement are:
City and Developer each agree to equally share in the estimated cost of
$454, 540.
City will assume the initial construction costs, with Developer reimbursing City
in five equal annual payments over five years.
Developer shall coordinate the Project with the County Engineer and obtain
the necessary approvals and permits.
- City or County will administer the project.
Developer shall provide a promissory note, letter of credit, certificate of
deposit, or other security for payment of costs.
The agreement has been reviewed and approved by the City Attorney.
Developer -John Herrig has agreed convey to City upon such terms as are
acceptable to City such portions of the Property as City determines are
necessary for public right-of-way to accommodate said improvements, at no cost
to the City. The construction costs for improvements to the proposed intersection
shall mean all costs incurred for the project, but not limited to, the design,
construction, right-of-way acquisition, construction observation costs, and permit
fees.
Mr. Herrig plans to request final plat approval at the June 4, 2008 Zoning
Advisory Commission meeting. He would like to have this agreement finalized
before that meeting.
RECOMMENDATION
recommend that the City enter into the attached Agreement between the City of
Dubuque and John W. Herrig and Sally Jo Herrig for the proposed intersection of
Plaza Drive and Derby Grange Road.
PROJECT COST -BUDGET IMPACT
The agreement establishes that the City and Developer will equally contribute to
the estimated cost of $454,540. The City's portion for this project is budgeted in
FY2010 and will be derived from the Sales Tax Fund.
ACTION TO BE TAKEN
I recommend that the City Council approve the Agreement between the City of
Dubuque, Iowa and John W. Herrig and Sally Jo Herrig and direct the Mayor to
sign the Agreement on behalf of the City.
Prepared by Ronald J. Turner, PLS
cc: Jenny Larson, Budget Director
Laura Carstens, Planning Services Manager
Kyle Kritz, Associate Planner
David Harris, Economic Development Director
Ron Turner, PLS
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Preaared bv: Barrv A. Lindahl. Esa.. Suite 330. 300 Main Street. Dubuoue, IA 52001-6944, 563-583-4113
Return document to: Barry A. Lindahl, Esq., Suite 330, 300 Main Street, Dubuque, IA 52001-6944, 563-583-4113
AGREEMENT BETWEEN
THE CITY OF DUBUQUE
AND
JOHN W. HERRIG AND SALLY JO HERRIG
This Agreement, dated for reference purposes the day of
2008, is made and entered into by, between and among the City of
Dubuque, Iowa (City) and John W. and Sally Jo Herrig (Developers).
WHEREAS, Developers are the owners of the real property shown on Exhibit A,
incorporated herein by reference, and legally described as follows:
Lot 1 of Lot 2 of the SW'/4 of the SE'/4 of Section 8, T89N, R2E of the 5th P.M. in
Dubuque County, Iowa (Parcel ID# 1008451003),
Lot 3 of Butler's Hill Second Addition, T89N, R2E of the 5th P.M. in Dubuque
County, Iowa (Parcel ID# 1008451005)
(the Property); and
WHEREAS, Developers intend to develop Serenity Ridge Subdivision on the
Property; and.
WHEREAS, to protect the safety of the motoring public, City is willing to enter
into this Agreement, but only upon the terms and conditions set forth herein.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
SECTION 1. INTERSECTION PROJECT. Upon the filing of Developers' application
for final plat approval for Serenity Ridge Subdivision, City shall promptly consider the
application, and if the application is approved by the City Council, City agrees to
partially finance, as funding is available and according to plans approved by City, the
construction costs for improvements to the proposed intersection of Plaza Drive and
Derby Grange Road (the Project), subject to the Developer agreeing to convey to City
upon such terms as are acceptable to City such portions of the Property as City
determines are necessary for public right-of-way to accommodate said improvements,
at no cost to the City. "Construction costs for improvements to the proposed
intersection" shall mean all costs incurred for the project, but not limited to, the design,
construction, right-of-way acquisition, construction observation costs, and permit fees.
SECTION 2. SHARE OF CONSTRUCTION COSTS. The parties acknowledge that
based on a preliminary estimate, construction costs for improvements to the intersection
are approximately $454,540. City's share of the construction costs shall be 50% of the
total actual construction costs and Developer's share of the construction costs shall be
50% of the total actual construction costs.
SECTION 3. REIMBURSEMENT FOR COSTS. City agrees to pay initially all of the
construction costs for improvements to the intersection. Developer shall reimburse City
for its share of the construction costs of the improvements to the intersection in five
equal annual payments. The first payment shall be due no later than one year from the
date of the improvements being substantially complete as determined by the City
Manager at the City Manager's sole discretion and on the anniversary of such date each
year thereafter for a total of five years.
SECTION 4. SECURITY FOR PAYMENT OF COSTS. Developer shall provide City
with a promissory note, letter of credit, certificate of deposit, or other security acceptable
in form to the City Manager in the City Manager's sole discretion to secure Developer's
performance of this Agreement.
SECTION 5. DEFAULT REMEDIES. Failure of Developer to perform or observe any
obligation, agreement, or covenant under this Agreement, including but not limited to
failure by Developer to pay any lot assessment fee at the time of closing or any annual
payment when due, shall constitute a material breach of this Agreement for which City
may:
(1) Suspend its performance under this Agreement until it receives
assurances from Developer, deemed adequate by City, that Developer will cure
its default and continue its performance under this Agreement;
(2) Cancel and rescind this Agreement;
(3) Recover from Developer the sum of all amounts expended by City in
connection with this Agreement and City may take any action, including any legal
action it deems necessary, to recover such amounts from the defaulting party; or
(4) 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 6. COORDINATION OF PROJECT. Developer shall coordinate the Project
with the County Engineer and obtain all necessary approvals and permits as needed for
construction. The City or County shall administer the project.
SECTION 7. BINDING EFFECT. This Agreement shall apply to and binding upon the
heirs, successors and assigns of the parties.
SECTION 8. COMPLETE AGREEMENT. All understandings and agreements, if any,
previously made between the parties hereby are merged in this Agreement, which alone
fully and completely expressed their understanding with respect to the subject of this
Agreement. This Agreement may not be modified except by an amendment executed
by both of the parties.
SECTION 9. NO REMEDY EXCLUSIVE. Except as otherwise provided in this
Agreement, no remedy herein conferred upon or reserved to City is intended to be
exclusive of any other available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient.
SECTION 10. NO IMPLIED WAIVER. In the event any agreement contained in this
Agreement should be breached by any party and thereafter waived by any other party,
such waiver shall be limited to the particular breach so waived and shall not be deemed
to waive any other concurrent, previous or subsequent breach hereunder.
SECTION 11. AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. If
any action at law or in equity, including an action for declaratory relief or arbitration, is
brought to enforce or interpret the provisions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs of litigation from the
other party. Such fees and costs of litigation may be set by the court in the trial of such
action or by the arbitrator, as the case may be, or may be enforced in a separate action
brought for that purpose. Such fees and costs of litigation shall be in addition to any
other relief that may be awarded.
SECTION 12. TERMINATION DATE. This Agreement and the rights and obligations
of the parties hereunder shall terminate upon performance in full by Developer of all of
the obligations, agreements, or covenants under this Agreement, including but not
limited to payment of all sums due by Developer to City.
3
CITY OF DUBxUQUE, IOWA
By:
uol, Mayor
JOHN W. HERRIG
By:
SALLY JO HERRIG
B.
Jeanne F. Schneider, City Clerk
STATE OF IOWA
DUBUQUE COUNTY
ss:
By:
On this ~ ~ day of .f ~` 2008, before me, the
undersigned, a Notary Public in and for said County a State, personally appeared ROY
D. BUOL and JEANNE F. SCHNEIDER, to me personally known, who being by me duly
sworn, did say that they are Mayor and City Clerk, respectively, of the City of Dubuque,
Iowa, a municipal corporation; that said instrument was signed and sealed on behalf of
the corporation by authority of its ' ,
r17c+corl h~ o f ifti !~`~~ ~nnil nn R~ ~°7 7nnQ
`""'1 ". ,
and that ROY D. BUOL and JEANNE F. SCHNEIDER acknowledged the execution of the
foregoing instrument to be their voluntary act and deed and the voluntary act and deed of
the corporation, by it and by them volu rily executed.
r• ~ a KEV{N SS, i~TAHL _ _
o' ~ COMMISSION N0,745295 - i
'• ~ MY COMMISSION EXPtRE5
,o,~- 2~rziio No ry Public in and r said State
My commission expires
On this day of 2008, before me, the
undersigned, a Notary Public in and for said County and State, personally appeared
JOHN W. HERRIG and SALLY JO HERRIG, to me personally known, who being by me
duly sworn, did say that they are the Property owners; and that the said JOHN W.
HERRIG and SALLY JO HERRIG, acknowledged the execution of said instrument to be
the voluntary act and deed of said corporation, by it and by them voluntary executed.
Notary Public in and for said State
My commission expires
4