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Sidewalk Agree Peninsula GamingMEMORANDUM September 23, 2002 TO:The Honorable Mayor and City Council Members FROM:Michael C. Van Milligen, City Manager SUBJECT:Grant of Easement for Public Sidewalk and Sprinkler System With Peninsula Gaming Company, LLC Public Works Director Mike Koch recommends approval of an easement agreement between the City of Dubuque and the Peninsula Gaming Company, LLC for the installation of a public sidewalk and sprinkler systems abutting Bell Street in front of their parking lot at the corner of 3rd and Bell Street. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Michael A. Koch, Public Works Director MEMORANDUM September 23, 2002 TO:Michael C. Van Milligen, City Manager FROM:Michael A. Koch, Public Works Director SUBJECT:Grant of Easement for Public Sidewalk and Sprinkler System With Peninsula Gaming Company, LLC INTRODUCTION Enclosed is a proposed agreement between the City of Dubuque and the Peninsula Gaming Company, LLC. for the installation of a public sidewalk and sprinkler systems abutting Bell Street in front of their parking lot at the corner of 3rd and Bell Street. DISCUSSION This agreement is for the installation of a proposed irrigation system, public sidewalk, railing, and plantings which will be constructed as part of the Bell Street project. This proposed sidewalk is to be constructed 6 foot behind the back of curb along Bell Street and 5th Street. Bell Street does not have sufficient right-of-way width for the construction of the irrigation system, public sidewalk, railing, and plantings. An easement has already been executed with Peninsula Gaming Company, LLC. For a period of two years, the contractor will be responsible for any construction defects. Peninsula Gaming will be responsible for maintenance (including snow removal) of the public sidewalk. The City will be responsible for maintenance of the irrigation system, railing, and plantings. This project will be included in the October 29, 2002 bid letting with the Iowa Department of Transportation. RECOMMENDATION I recommend approval of the proposed agreement for an easement for a public sidewalk, railing, and sprinkler system to be granted to the City from Peninsula Gaming Company, LLC. ACTION TAKEN The City Council is requested to adopt the attached resolution authorizing the Mayor to execute two copies of the easement agreement. MAK/vjd Prepared by Michael Felderman, Civil Engineer RESOLUTION NO. 530-02 GRANT OF EASEMENT FOR PUBLIC SIDEWALK AND SPRINKLER SYSTEM RELATING TO THE CONSTRUCTION OF SIDEWALK, ORNAMENTAL RAIL AND IRRIGATION SYSTEM WITH PENINSULA GAMING COMPANY, L.L.C. Whereas, the City of Dubuque is proposing to construct a sidewalk, ornamental rail and irrigation system on property owned by Peninsula Gaming Company, L.L.C. at the corner of 3rd and Bell Streets; and Whereas, the City of Dubuque has prepared a grant of easement outlining the terms under which the sidewalk, ornamental rail and irrigation system would be installed; and Whereas, the City Council of the City of Dubuque approves the terms and conditions of said grant of easement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Peninsula Gaming Company, LLC has executed an easement granting the City of Dubuque permission to construct a sidewalk, ornamental rail and irrigation system on their property legally described as the east 12 feet of Lot 1 of Adams Company's 1st Addition and Lot 3 of Adams Company's 2nd Addition, all in the City of Dubuque, Dubuque County, Iowa. Section 2. That the Mayor be authorized and directed to execute two copies of the grant of easement. Passed, approved and adopted this Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk 7th day of October ,2002. Prepared By: Brian J. Kane, 2100 Asbury Road, Suite 2, Dubuque, IA 52001 (563) 582-7980 GRANT OF EASEMENT FOR PUBLIC SIDEWALK AND SPRINKLER SYSTEM For and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, PENINSULA GAMING COMPANY, L.L.C. ("Grantor") of Dubuque County, Iowa, for itself, its successors and assigns, does hereby grant and convey to the CITY OF DUBUQUE, IOWA, an Iowa municipal corporation ("Grantee"), its agents and contractors, in perpetuity, from the date hereof, a non-exclusive right-of-way and easement through, under and across the following described real estate in Dubuque, Iowa: The east '12 feet of Lot I of Adams Company's '1st Addition and Lot 3 of Adams Company's 2nd Addition, all in the City of Dubuque, Dubuque County, Iowa (the foregoing legal description without reference to the east 12 feet thereof shall hereafter be referred to as the "Real Estate"), as shown on the attached Exhibit A (the east 12 feet of the Real Estate is hereafter referred to as the "Easement Area"), for the purpose of constructing and maintaining a public sidewalk and sprinkler system, and other landscaping and improvements located thereon, in accordance with those certain Plans and Specifications attached hereto and by this reference made a part hereof (the "Project"). During construction of the Project, Grantee shall, at its sole expense, maintain the Easement Area and defend and indemnify and hold Grantor harmless from any and all claims for damage arising out of Grantee's or its agents' negligence or intentional acts in the construction of the Project or the maintenance of the Easement Area. It is understood and agreed that the Grantee shall restore at Grantee's sole expense the Easement Area (and adjacent Real Estate, if affected), to the same condition such Easement Area (or any portion of the Real Estate) was in prior to commencement of construction of the Project. Grantor shall not change the grade, elevation or contour of the Easement Area in a manner that will interfere with the public sidewalk or sprinkler system or diminish the lateral support of said improvements without obtaining the prior written consent of the City Engineer, which consent shall not be unreasonably withheld. Grantor may perform construction, excavation or other work through, under and across the Easement Area provided Grantor returns the Easement Area, including the sidewalk and sprinkler system, to the same condition the Easement Area was in prior to commencement of any such work, ordinary and reasonable wear and tear excepted. Grantor shall be responsible for and shall repair any damage to the sidewalk or sprinkler system caused by any such construction, excavation or other work. Grantor covenants that it is the owner in fee of the Real Estate and has good right to execute this agreement, and that the Grantee, its agents or contractors shall, at all times, have free access to and egress from and over so much of the Easement Area as is strictly necessary to maintain, remodel, or repair the improvements constructed within the Project. Grantee shall not unreasonably interfere with Grantor's business or access to or use of the Real Estate while acting pursuant to this Agreement. In further consideration of the grant of the easement herein and the obligations of the parties referred to herein, the parties agree as follows: Grantor may attach to the City of Dubuque water system by connecting into the that water main running along or under Bell Street. Grantor is hereby granted a temporary easement for purposes of planning and construction activities related to such connection. All costs associated with connection to the City's water main as described herein shall be paid by Grantor. Grantee shall not provide any sidewalk across both existing driveways from Bell Street into the parking lot located upon the Real Estate. Grantor's "enter" and "exit" signs and lights located upon each side of the existing driveways (2) from Bell Street to the parking lot located upon the Real Estate may remain where presently located. Notwithstanding the foregoing, Grantee may request that such exit and enter signs and lights be moved slightly upon wdtten request to Grantor, provided such enter and exit signs and lights have the same effect as prior to any such slight movement. Such relocation of such enter and exit signs and lights as described herein shall be at the sole expense of Grantee. Any movement and/or replacement of the existing directional sign in the Easement Area shall be accomplished at the sole expense of the Grantee; during the construction or relocation of such existing directional signage, the Grantee shall provide alternate directional signage at Grantee's expense. Grantee shall be responsible for any maintenance, repair or replacement of any part or all of the Project within the Easement Area (including sidewalk, fencing, landscaping, lighting and drip irrigation) for a period of 24 months from the date of completion of the Project except that Grantor shall be responsible for snow and ice removal from the sidewalk upon the Easement Area. From and after the 24 month pedod described in the preceding sentence, Grantor shall be responsible for maintenance, repair and replacement of the fencing, landscaping and the sidewalk; maintenance, repair and replacement of all other improvements of the Project shall remain the responsibility of the Grantee. The parties agree and acknowledge that Grantor did not design the fence or any of the improvements of the Project within the Easement Area. e. The parties acknowledge that Grantee desires to relocate certain electrical panels and electrical conduit located within the Easement Area. Grantee is hereby granted the right to relocate such panels and conduit to a location agreed upon by Grantor with all costs associated with such relocation to be paid by Grantee. Grantee further warrants that Grantor shall have no interruption in electrical service and that the electrical service following such relocation shall be identical to the service prior to such relocation. f.Grantee warrants that no grade change will be made with respect to either of the driveways (2) located on the Real Estate, without the prior written approval of Grantor. g. The existing sidewalk from Grantor's Real Estate to the corner of Bell and Third Street shall not be obstructed or changed in any manner at any time. h. Grantee shall not remove or damage any of the existing trees, shrubs or bushes currently located upon the Real Estate or within the Easement Area unless Grantee, at its sole expense, promptly replaces the same with similar landscaping, or re-plants any trees, shrubs or bushes required to be moved. i. Grantor's existing triangular parking lot sign will not be moved or affected by Grantee in connection with the Project. j. During construction of the Project, neither driveway or entrance to the parking lot located on the Real Estate shall be closed or obstructed at any time. k. Grantee represents to Grantor that it is not presently contemplated that the configuration and design of Bell Street abutting Grantor's Property will be revised or modified. l. Grantor may, consistent with the agreement of the applicable utility company, attach to any electrical hookup on the west side of Bell Street for Grantor's use. Any and all such connections shall be at Grantor's sole expense. Dated at Dubuque, Iowa this day of ,2002. PENINSULA GAMING COMPANY, L.L.C. ("Grantor") CITY OF DUBUQUE ("Grantee") By By. Its Its STATE OF____________, COUNTY OF_____________________, ss: On this_________________________, before me, a Notary Public in and for the said State, personally appeared_____________________, to me personally known, who being by me duly sworn did say that that person is______________________of said limited liability company, that_____________ limited liability company and that said instrument was signed ______________on behalf of the said limited liability company by authority of its managers and the said________________acknowledged the execution of said instrument to be the voluntary act and deed of said limited liability company by it voluntarily executed. ___________________________ Notary Public In and For the State of Iowa STATE OF IOWA, COUNTY OF___________________,SS: On this________________, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared_________ and __________ to me personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of_________________, Iowa; a municipal corporation; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council, as contained in Ordinance No.______________passed by Resolution of the City Council under Roll Call No.______________ of the City Council on the_________________; and__________________and_______________acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed._______________________________________________________________ Notary Public in and for said State. (Section 558.39, Code of Iowa)