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Bee Branch Right-of-Way AcquisitionTHE COF Dubuque hAnd DtUB E All- AmericaCity 1 1 Masterpiece on the Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Acquisition of Bee Branch ROW DATE: July 2, 2010 Economic Development Director Dave Heiar and Economic Development Assistant Director Aaron DeJong are recommending approval of a term sheet that would be the basis of a revised Development Agreement with Highway 151/61 development group, so that the City may acquire additional right -of -way through the former Pack site for the Bee Brach Creek Restoration Project. The revised Development Agreement would then be on the July 19, 2010 City Council Agenda for final consideration. In June of 2006, the City Council approved a Development Agreement with Highway 151/61 which included acquisition of property for the proposed Bee Branch project. At that time, the agreement was based on conceptual plans for this drainage project. The City now has a final design for the Bee Branch which actually requires more area than originally anticipated. The Development Agreement refers to 3.3 acres more or less, but the final design will require up to 4.2 acres of land. Another part of the Development Agreement allowed the Highway 151/61 group to obtain the remainder of the City's property south of 16 Street. At the time the Development Agreement was approved, it was anticipated that this site would be approximately 2 acres of developable property. Based on final design, this parcel will actually have about 1.7 acres remaining for development. The Highway 151/61 group has decided that this smaller parcel, with an irregular space, and somewhat limited access points, is no longer of value to them. They have proposed selling their interest in this property back to the City in return for the additional ROW the City needs for the Bee Branch project. The stated land offer in the Development Agreement would be terminated and replaced with the following: • Highway 151/61 would sell land (both north and south of 16 Street) anticipated to be between 3.9 and 4.2 acres to the City at $10.81 sq.ft. • City retains land south of 16 Street which had been optioned to Highway 151/61 (approximately 1.7 acre site after Bee Branch Creek development). • City pays $1,036,728 at closing. • City cooperates with Highway 151/61 to obtain charitable contribution for the remainder of the purchase price. • The 1.7 acre site south of 16 Street is subject to restrictive covenants prohibiting: • Convenience store with gas sales; • gas stations; • pharmacy (i.e., sales of prescription medications and drugs); and • quick service restaurants with ice cream, ice milk, frozen custard, frozen yogurt or similar such product provided that the average for the brand of restaurant proposed has ice cream sales that are 20% or more of total sales for the average restaurant for that brand. • The City shall be responsible for filling in the abandoned Bee Branch site. • The City will receive a construction easement over the westerly portion of the former Pack site. • Economic Development Grants may be exercised by Developer with respect to new development on the real estate that is first assessed for property tax purposes before January 1, 2015 (The original Development Agreement had stated an ending date of January 1, 2013). • The closing date shall be July 20, 2010. In return the Developer will waive any extension of Economic Development Grants pursuant to Section 3.3(2) of the Development Agreement resulting from failure to complete the Bee Branch by December 31, 2009. Highway 151/61 has been working with a certain unnamed developer for the area, and if that developer relocates to this development site, whoever is responsible for improvements to 16 Street is eligible for Economic Development Grants associated with this specific project for years 16 -20. The revised terms are approved by the City Council on July 6, the terms would be incorporated into a revised Development Agreement to be acted upon by the Council on July 19, with closing on the acquisition of property scheduled for July 20 th . 151/61 remains responsible for 16th Street improvements, as required by a new traffic study (not paid for by City); provided, however, that such 16th Street improvements shall be confined to those improvements reasonably necessary to service 151/61's development as described in the new traffic study and as agreed to by Developer and approved by the City Council. In the event that the improvements described in the new study are not approved by the City Council, or if approved, are not agreed to by 151/61 within 60 days after such approval, 151/61 shall remain responsible for the improvements required by the existing traffic study. concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM:lw Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David Heiar, Economic Development Director THE COF Dubuque DUtB All- America city Masterpiece on the Mississippi 2007 TO: Michael C. Van Milligen, City Manager FROM: David J. Heiar, Economic Development Director Aaron M. DeJong, Asst. Economic Development Director SUBJECT: Acquisition of Bee Branch ROW Az— DATE: July 2, 2010 PURPOSE This memorandum provides the proposed terms for acquisition of additional right of way for the Bee Branch project across the Highway 151/61 (former Dubuque Pack) site. BACKGROUND /DISCUSSION In June of 2006, the City Council approved a Development Agreement with Highway 151/61 which included acquisition of property for the proposed Bee Branch project. At that time, the agreement was based on conceptual plans for this drainage project. The City now has a final design for the Bee Branch which actually requires more area than originally anticipated. The Development Agreement refers to 3.3 acres more or less, but the final design will require up to 4.2 acres of land. Another part of the Development Agreement allowed the Highway 151/61 group to obtain the remainder of the City's property south of 16 Street. At the time the Development Agreement was approved, it was anticipated that this site would be approximately 2 acres of developable property. Based on final design, this parcel will actually have about 1.7 acres remaining for development. The Highway 151/61 group has decided that this smaller parcel, with an irregular space, and somewhat limited access points, is no longer of value to them. They have proposed selling their interest in this property back to the City in return for the additional ROW the City needs for the Bee Branch project. Over the past several months, City staff has been in discussions with the Highway 151/61 ownership group to finalize the exact area that will be impacted by this project. An attached drawing helps to depict the changes of the area needed as ROW for the drainage project. Based on the time delays associated with the Bee Branch project, there are other time frames stated in the Development Agreement that will also need to be amended. The Developer (Highway 151/61) has proposed the amendments to the Development Agreement based on the attached Term Sheet. The stated land offer in the Development Agreement would be terminated and replaced with the following: • Highway 151/61 would sell land (both north and south of 16 Street) anticipated to be between 3.9 and 4.2 acres to the City at $10.81 sq.ft. • City retains land south of 16 Street which had been optioned to Highway 151/61 (approximately 1.7 acre site after Bee Branch Creek development). • City pays $1,036,728 at closing. • City cooperates with Highway 151/61 to obtain charitable contribution for the remainder of the purchase price. • The 1.7 acre site south of 16 Street is subject to restrictive covenants prohibiting: • Convenience store with gas sales; • gas stations; • pharmacy (i.e., sales of prescription medications and drugs); and • quick service restaurants with ice cream, ice milk, frozen custard, frozen yogurt or similar such product provided that the average for the brand of restaurant proposed has ice cream sales that are 20% or more of total sales for the average restaurant for that brand. • The City shall be responsible for filling in the abandoned Bee Branch site. • The City will receive a construction easement over the westerly portion of the former Pack site. • Economic Development Grants may be exercised by Developer with respect to new development on the real estate that is first assessed for property tax purposes before January 1, 2015 (The original Development Agreement had stated an ending date of January 1, 2013). • The closing date shall be July 20, 2010. In return the Developer will waive any extension of Economic Development Grants pursuant to Section 3.3(2) of the Development Agreement resulting from failure to complete the Bee Branch by December 31, 2009. • Highway 151/61 has been working with a certain unnamed developer for the area, and if that developer relocates to this development site, whoever is responsible for improvements to 16 Street is eligible for Economic Development Grants associated with this specific project for years 16 -20. • The revised terms are approved by the City Council on July 6, the terms would be incorporated into a revised Development Agreement to be acted upon by the Council on July 19, with closing on the acquisition of property scheduled for July 20 th . • 151/61 remains responsible for 16th Street improvements, as required by a new traffic study (not paid for by City); provided, however, that such 16th Street improvements shall be confined to those improvements reasonably necessary to service 151/61's development as described in the new traffic study and as agreed to by Developer and approved by the City Council. In the event that the improvements described in the new study are not approved by the City Council, or if approved, are not agreed to by 151/61 within 60 days after such approval, 151/61 shall remain responsible for the improvements required by the existing traffic study. Timing is of the essence for the City, due to other elements associated with the Bee Branch Restoration project. • The City currently has received bids on this project. On August 23, 2010 these bids expire. If awarded by this date, this phase of the project is anticipated to be functional in 2011. • The City intends to make an application for I -Jobs funding from the State of Iowa which is due August 3, 2010. This will be the third application for these funds as the first two applications were denied on the basis that the City was not prepared to begin the project immediately. The total ask in this application will be $5.6 million. RECOMMENDATION /ACTION STEP That the City Council approve the attached Term Sheet and authorize City staff to work with the Highway 151/61 Development group to prepare a revised Development Agreement for future Council consideration. Attachments F: \USERS \Econ Dev \HWY 151 & 61\20100701 Memo to Council Acquisition of Bee Branch ROW.doc TERM SHEET City of Dubuque ( "City ") /Highway 151 & 61 Development, LLC ( "151/61 ") The parties agree upon the following business - terms: A. Due to the new configuration of the Bee Branch, the parties shall terminate the prior Offer to Buy Real Estate and Acceptance with respect to the Bee Branch Real Estate and enter into a new Offer to Buy Real Estate as described below. B. The new Offer to Buy Real Estate and Acceptance shall provide that the City purchases from Highway 151 & 61: (i) the land north of 16th Street to be used for construction of Bee Branch (i.e. final configuration of land anticipated to be between 3.9 and 4.2 acres to be valued at $10.81 per square foot); (ii) the lots owned by 151/61 south of 16th Street (the "South Lots ") valued at $10,81 per square foot; and (iii) and the City shall also purchase Highway 151 & 61's option rights in that certain land south of 16th (i.e. the option rights to that certain approximately 2.76 acre parcel herein referred to as the "Option Right"). The total purchase price under the Offer to Buy Real Estate and Acceptance shall be the sum of: (i) the total number of acres acquired north of 16th Street multiplied by $10.81 per square foot, plus (ii) the total number of acres of the South Lots multiplied by $10.81 per square foot, plus (iii) the appraised amount of the Option Right property, payable as follows: $1,036,728.00 in cash at closing; ii. The remaining balance of the purchase price to be donated by Highway 151 & 61 to City for charitable purposes. The City shall cooperate in connection with the charitable contribution as provided in the definitive Offer to Buy Real Estate and Acceptance by acknowledging receipt of a gift of the property on the appropriate Internal Revenue Service form; and The property conveyed (including the Option Right property) will be subject to restrictive covenants which will be placed of record at closing prohibiting the following upon all such property: • convenience store with gas sales; • gas station; • pharmacy (i.e., sales of prescription medications and drugs); and quick service restaurants with ice cream, ice milk, frozen custard, frozen yogurt or similar such products (hereinafter "ice cream ") provided that the average for the brand of restaurant proposed has ice cream sales that are 20% or more of total sales for the average restaurant for that brand. The closing of the transactions under the new Offer to Buy Real Estate and Acceptance shall occur on July 20, 2010, subject to any platting or abstracting that the City desires which shall be done by City at City's expense.. C. 151 /61 remains responsible for 16th Street improvements, as required by a new traffic study (not paid for by City); provided, however, that such 16th Street improvements shall be confined to those improvements reasonably necessary to service 151/6 l's development as described in the new traffic study and as agreed to by Developer and approved by the City Council. In the event that the improvements described in the new study are not approved by the City Council, or if approved, are not agreed to by 151/61 within 60 days after such approval, 151/61 shall remain responsible for the improvements required by the existing traffic study. D. The City shall be responsible for filling in the old /existing Bee Branch (at City's expense) within 6 months after commencement of the use of the new Bee Branch. Hwy 151/61 shall grant the City a temporary construction easement in connection with construction of the Bee Branch. The temporary construction easement shall extend from the Bee Branch Real Estate to 20 feet past the existing Bee Branch line and such temporary easement shall terminate upon completion of the Bee Branch construction on the Bee Branch Real Estate. E. The City and Highway 151 & 61 shall amend the Development Agreement dated June 5, 2006 to provide that Economic Development Grants may be exercised by Developer with respect to new development on the real estate that is first assessed for property tax purposes after the Effective Date of the Development Agreement and before January 1, 2015. Furthermore, from the Effective Date until January 1, 2015, Developer shall have the ability to identify the particular tax parcels upon which minimum improvements will be constructed for purposes of creation of the project account. In addition to the 10 years of economic development payments currently provided in the Development Agreement, if one certain unnamed developer with whom the parties are currently discussing development, becomes part of the development, and if they receive economic development payments for years 11 through 15, Developer or the party responsible for the 16 Street improvements shall receive 5 additional years worth of economic development grants with respect to the parcel for the unnamed developer and related minimum improvements, which grants shall be for years 16 through 20 after the commencement of the first economic development grant. Developer will waive any extension of Economic Development Grants pursuant to Section 3.3(2) of the Development Agreement resulting from failure to complete the Bee Branch by December 31, 2009. F. The foregoing is subject to approval by the City Council of City and any necessary approval of the members and managers of 151/61 and is further subject to being reduced to a definitive contract by and between the parties by no later than the 15th day of July, 2010 in order to be on the July 19, 2010 City Council agenda. By: G: \WPDOCS \MARY\Brad \Hwy 151 &61 -SB -Term Sheet - CLEAN 7-2.rtf HIGHWAY 151 & 61 DE ELOPMENT, LLC Riverview Plaza, LLC executes this Term Sheet with respect to any real estate described herein which is subject to an offer to Buy Real Estate and Acceptance between Highway 151 & 61 Development, LLC and Riverview Plaza. RIVER. IEW PLAZA, LL By: \ | ' \ ON low pr_. 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