Highway 151/61 Development Agreement Amendment No. 4_Bee Branch Right-of-WayMasterpiece on the Mississippi
Dubuque
AI-America City
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amendment Number 4 to Highway 151/61 Development Agreement and
Acquisition of Bee Branch ROW
DATE: July 13, 2010
Economic Development Director Dave Heiar recommends City Council approval of
Amendment Number 4 to Highway 151/61 Development Agreement and Acquisition of
Bee Branch Right -of -Way.
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 Tess,
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 16th 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.
Amendment Number 4 provides that 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:
o Convenience store with gas sales;
o gas stations;
o pharmacy (i.e., sales of prescription medications and drugs); and
o 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.
• 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.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director N
Aaron M. DeJong, Asst. Economic Development Dire for
SUBJECT: Amendment Number 4 to Highway 151/61 Development Agreement and
Acquisition of Bee Branch ROW
DATE: July 13, 2010
Dubuque
kitill
Al4ine,Icaclly
2007
PURPOSE
This memorandum provides the proposed terms for amending the Highway 151/61
Development Agreement and for acquisition of additional right of way for the Bee
Branch project across the 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:
o Convenience store with gas sales;
o gas stations;
o pharmacy (i.e., sales of prescription medications and drugs); and
o 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
• 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.
On July 6, 2010, the City Council approved a Term Sheet which identified the specifics
of proposed changes in the Development Agreement (copy attached).
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 Amendment Number 4 to the Highway
151/61 Development Agreement.
Attachments
F: \USERS \Econ Dev \HWY 151 & 61\20100712 Memo to Council Amend #4 to DA & Acquis Bee Branch ROW.doc
RESOLUTION NO. 276-10
AUTHORIZING AMENDMENT NUMBER 4 TO A DEVELOPMENT AGREEMENT WITH HWY
151 & 61 DEVELOPMENT, INC. AND ACQUSITION OF BEE BRANCH ROW
Whereas, the City Council of the City of Dubuque, Iowa, approved a Development
Agreement for the redevelopment of the Smithfield (former Dubuque Pack) site on June 5, 2006;
and
Whereas, the timing of certain aspects of the redevelopment plan have changed since
the original agreement was authorized; and
Whereas, the agreement at that time was based on conceptual plans for this drainage
project and the City now has a final design for the Bee Branch ROW; and
Whereas, it is mutually beneficial to move forward with this redevelopment project with
revised time lines.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the Amendment Number 4 to the Development Agreement by and between
the City of Dubuque and Hwy 151 & 61 Development, LLC attached hereto, is hereby approved.
Section 2. That the Mayor and City Clerk are hereby authorized and directed to execute, on
behalf of the City of Dubuque, Iowa, said Development Agreement.
Att t:
Passed, approved and adopted this 19th day of July, 2010.
Jeanne F. Schneider
City Clerk
F: \USERS \Econ Dev \HWY 151 & 61 \Resolution for Amendment #4 HWY 151 & 61 DA.doc
Roy D. Bu
Mayor
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:
i. $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 151/61'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.
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 whole 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
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.
CITY OF DUB UE
By: J y i.■ A
By:
G:\WPDOCS \MARY \Brad \Hwy 151 &61 -SB -Term Sheet- CLEAN7 -2.rtf
31, 2009.
RIVER IEW PLAZA, LL
B
Its - / -e y
HIGHWAY 151 & 61 DE ELOPMENT, LLC
Its
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.
AMENDMENT NO. 4 TO DEVELOPMENT AGREEMENT BETWEEN CITY OF
DUBUQUE, IOWA AND HWY 151 & 61 DEVELOPMENT, LLC
This Amendment No. 4 ( "Amendment No. 4 ") to Development Agreement between the
City of Dubuque, Iowa and Hwy 151 & 61 Development, LLC, is entered into effective the
day of July, 2010 by and between the City of Dubuque, Iowa, a municipality ( "City "),
established pursuant to Iowa Code and acting under authorization of Iowa Code Chapter 403, as
amended ( "Urban Renewal Act "), and Hwy 151 & 61 Development, LLC, an Iowa limited
liability company ( "Developer ") with its principal place of business at Dubuque, Iowa.
RECITALS
A. City and Developer entered into that certain Development Agreement dated for
reference purposes as June 5, 2006 with respect to the former Smithfield real
estate site, which Development Agreement was amended by Amendment No. 1
thereto, Amendment No. 2 thereof, and Amendment No. 3 thereto. This
Amendment No. 4 supercedes Amendment No. 1, Amendment No. 2,
Amendment No. 3 and certain portions of the Development Agreement all as
provided herein.
B. The Development Agreement, as amended, contemplated that the City would
acquire certain of Developer's real estate for the reconstruction and relocation of
the Bee Branch storm sewer system; however, the final configuration for the Bee
Branch storm sewer is materially different than contemplated at the time the
Development Agreement was entered into by and between the parties;
consequently, the parties desire to amend the Development Agreement as
provided herein.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties do hereby agree as follows:
1. Amendment to Section 3.3 and Exhibit D. Due to the new configuration of the
Bee Branch storm sewer system:
a. Section 3.3(2) of the Development Agreement is hereby deleted in its
entirety; and
b. The Offer to Buy Real Estate and Acceptance attached to the
Development Agreement as Exhibit "D" is hereby rescinded by City and
Developer. City and Developer shall execute, deliver and close the
transactions contemplated by the Agreement for Part Sale/Part Gift of Real
Estate attached to this Amendment No. 4 as Exhibit 1.
2. Existing Bee Branch Storm Sewer Easement. Within six months after
completion of construction of the new Bee Branch storm sewer system, City shall be responsible
for, at its expense and in a workmanlike manner, the demolition and filling of the existing Bee
1
Branch sewer system located on Developer's real estate.
3. Temporary Construction Easement. Developer hereby grants the City a
temporary construction easement in connection with the construction of the new Bee Branch
storm sewer system. The temporary construction easement shall extend from the Bee Branch
real estate to 20 feet to the east of the existing Bee Branch line and such temporary easement
shall automatically terminate upon completion of the demolition and filling of the existing Bee
Branch sewer system located on Developer's real estate.
4. 16th Street Improvements. Ordinance No. 22 -05 required Developer to construct
certain improvements to 16th Street. Since the proposed use of the real estate is now different
than that anticipated at the time Ordinance No. 22 -05 was adopted, the parties agree that
Developer shall obtain a new traffic study and any 16th Street improvements that Developer is
required to make pursuant to such new traffic study shall be confined to those improvements
reasonably necessary to service Developer'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 traffic study are not approved by the City Council, or if
approved, are not agreed to by Developer within 60 days after such approval, Developer shall
remain responsible for the improvements required by the existing traffic study referred to in
Ordinance No. 22 -05.
5. Amendment to Section 3.1 Tax Increment Payments. Section 3.1(1) , 3.1(2) and
3.1(6) are hereby amended by deleting the date "January 1, 2013" in each place where such date
occurs and replacing such date with "January 1, 2015 ".
6. Section 3.5. The parties hereby add Section 3.5 to the Development Agreement
as follows:
"3.5 Contingent Economic Development Grants. In addition to
the 10 years of Economic Development Grants provided in Section
3.1(2) above, if one certain unnamed party with whom the City and
Developer are currently discussing development becomes part of
Developer's Project, and if such party receives Economic
Development Grants for years 11 through 15, Developer or the
party responsible for the 16th Street improvements shall receive 5
additional years of Economic Development Grants from City with
respect to the parcel for the unnamed party and related minimum
improvements thereon, which Economic Development Grants shall
be for years 16 through 20 after the commencement of the first
Economic Development Grants received by Developer from City.
The contingent additional Economic Development Grants provided
herein shall be paid from the TIF Project Accounts created under
Section 3.1 of the Development Agreement and shall be paid in
accordance with and subject to all other terms of Section 3.1 of the
Development Agreement as amended herein. Developer hereby
waives any extension of Economic Development Grants pursuant
2
to Section 3.3(2) of the Development Agreement resulting from
failure by the City to complete the Bee Branch construction by
December 31, 2009.
7. All other terms and conditions of the Development Agreement are
hereby ratified and confirmed as if fully set forth herein.
By:
By:
3
CITY OF DUBUQUE, IOWA
HWY 151 & 61 DEVELOPMENT, LLC
1
Prepared By: Brian J. Kane, 2100 Asbury Road, Suite 2, Dubuque, IA 52001 (563) 582 -7980
The undersigned, THE CITY OF DUBUQUE, IOWA, a municipality, being the owner of
the following- described real estate:
Lot 1 of Block 2, Dubuque Packing Company Addition
hereby makes the following declarations as to limitations, restrictions and uses to which the
above - described lots (hereafter the "Real Estate ") in Dubuque County, Iowa, may be put, hereby
specifying that said declarations shall constitute covenants to run with said lots, as provided by
law, and shall be binding upon the heirs, successors and assigns of all parties and all persons
claiming under them and for the benefit and limitation upon all future owners of the Real Estate.
1. The following uses shall be prohibited upon the Real Estate:
(a) Convenient store with gas sales;
(b) Gas station;
(c) Pharmacy; and
2. These covenants and restrictions shall run with the land and shall be binding on all
parties hereto, their heirs, successors in interest and assigns, and on persons claiming under them
for a period of twenty one (21) years from the date these restrictive covenants are recorded, at
which time the covenants and restrictions shall be extended for successive periods of twenty one
(21) years.
RESTRICTIVE COVENANTS
(d) Quick service restaurant with ice cream, ice milk, frozen custard, frozen
yogurt or similar such product sales (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.
1
3. In case the parties hereto, or any of them, or their heirs, successors or assigns, shall
violate or attempt to violate any of the covenants or restrictions herein, it shall be lawful for Hwy
151 & 61 Development, LLC ( "Hwy 151/61") or its successor in interest, or any other interested
party or parties, to prosecute any proceeding at law or in equity against the person or persons
violating or attempting to violate any such covenants or restrictions, to either prevent him or
them from so doing, or recover damages for such violation, or both. The prevailing party in any
such action shall be entitled, in addition to any other damages or remedies, to be reimbursed for
reasonable attorney's fees and court costs incurred in connection with such action(s).
4. The invalidation of any one of these covenants or restrictions, or any part thereof, by
judgement or court order shall in no way affect any of the other provisions and all other
provisions shall remain in full force and effect.
5. The fact that a violation of these provisions has not been previously enforced shall
not estop or bar in any way subsequent enforcement of these provisions by any party authorized
to insist upon enforcement.
6. The restrictive covenants, agreements, conditions, reservations, restrictions and
charges created and established herein for the benefit of Real Estate and each lot therein may be
amended, waived, abandoned, terminated, modified, altered and changed as to the whole of Real
Estate or any portion thereof only with the written consent of Hwy 151/61 or its successors in
interest. No such amendment, waiver, abandonment, termination, modification or alteration
shall become effective until the proper instrument in writing shall be executed and recorded in
the office of the Recorder for Dubuque County, Iowa, with such written consent attached thereto.
IN WITNESS WHEREOF, the foregoing instrument has been executed this day of
, 2010.
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
THE CITY OF DUBUQUE, IOWA
By
Roy D. Buol, Mayor
By
Jeanne F. Schneider, City Clerk
On this day of ,2010, before me, , a Notary
Public in and for the State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to
2
me personally known, and, who, being by me duly sworn, did say that they are the Mayor and
City Clerk, respectively, of the City of Dubuque, Iowa; 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 Resolution No.
adopted by the City Council of the City of Dubuque, Iowa, on the day
of , 20 , and that they 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.
G: \WPDOCS\MARY\Brad\Hwy 151 & 61 (City) Restrictive Covenants.rtf
Notary Public in and for State of Iowa
3
AGREEMENT FOR PART SALE/PART GIFT OF REAL ESTATE
This Agreement for Part Sale/Part Gift of Real Estate ( "Agreement ") is entered into this
day of July, 2010, by and among Hwy 151 & 61 Development, LLC (collectively
"Seller or Donor ") and the City of Dubuque, Iowa ( "Buyer or Donee ").
RECITALS
A. Donor is the owner of certain real estate in Dubuque County, Iowa, legally
described as follows:
(i) Those portions of Riverview Plaza in the City of Dubuque, Iowa shown as
Lot A (3.3 acres) , Lot B (.802 acres) and Lot C (1727 sq. ft.) on the
Acquisition Plats attached to this Agreement as Exhibit A, Exhibit B and
Exhibit C (hereinafter the "North Lots "); and
(ii) Lot 316, Lot 355 and Lot 2 -354 of East Dubuque No. 2 in the City of
Dubuque, Iowa (the "South Lots ").
(The North Lots and the South Lots are hereinafter referred to as the Real Estate.)
B. Donor is the Owner of certain rights (hereinafter the "Option Rights ") pursuant to
that certain Option Agreement by and between Donor and Donee which was attached as Exhibit
E to that certain Development Agreement by and between Donor and Donee dated for reference
purposes as June 5, 2006, which Option Rights have been previously exercised by Donor. The
Option Rights are with respect to a part of Lot 1 of Block 2, Dubuque Packing Company
Addition, containing approximately 2.76 acres (hereinafter the "Option Rights Property").
C. Donor desires to part sell /part gift the Real Estate and Option Rights to Donee,
with the intent to receive a charitable deduction for income tax purposes for donor pursuant to
Section 170 of the Internal Revenue Code of 1986, as amended;
D. Donee desires to part purchase the Real Estate and Option Rights from Donor and
to receive a portion of the premises via gift from the Donors; and,
E. The parties desire to set out their agreement in writing.
THEREFORE, in consideration of the mutual terms and covenants contained herein, the
parties agree as follows:
AGREEMENT
1. Purchase Price. The purchase price for the Real Estate and Option Rights shall
be the sum of the following (cumulatively the "Purchase Price "):
(i) The total size of the North Lots expressed on a square foot basis
multiplied by $10.81 per square foot (i.e. 180,410.12 sq. feet at $10.81
per square foot = $1,950,234) and
(ii) The total size of the South Lots expressed on a square foot basis
multiplied by $10.81 per square foot (i.e. 11,971.2 square feet at $10.81
per square foot = $129,409); and
(iii) The fair market value of the Option Rights Property as determined by
an independent appraisal as of the closing date under this Agreement (i.e.
2.76 acres at appraised value).
2. Payment of Purchase Price. The purchase price will be paid as follows:
A. Sale.
$1,036,728 in immediately available funds to be paid at the time of closing
by certified check or wire transfer or other means acceptable to Seller; and
B. Charitable Contribution.
Donor shall convey and transfer, with the intent to make a gift, to Donee,
an interest in the Real Estate and Option Rights equal to the Gift Ratio as
determined under paragraph 2 below, and Donee shall acknowledge
receipt of such gift (the amount of the Purchase Price in excess of
$1,036,728) by executing and delivering to Donor IRS Form 8283 or such
other forms as may be required by the Internal Revenue Service to
substantiate this noncash charitable contribution.
3. Ratio Determination. The ratio determination with respect to this part sale /part
gift transaction shall be a fraction, the numerator of which shall be the difference between the
Purchase Price (with the value of the Option Rights as appraised effectively immediately prior to
the closing date), less $1,036.728 and the denominator shall be the Purchase Price.
4. Real Estate Taxes. Buyer shall pay all real estate taxes prorated to the date of
closing and any unpaid real estate taxes for prior years. Buyer shall pay all real estate taxes
accruing thereafter.
5. Special Assessments. Buyer shall pay all special assessments which are a lien on
the Real Estate as of the date of acceptance of this offer. All other special assessments shall be
paid by Buyer.
6. Risk of Loss and Insurance. Prior to Seller's delivery of possession of the Real
Estate to Buyer, all risk of loss shall remain with Seller until possession of the Real Estate shall
be delivered to Buyer.
7. Care and Maintenance. The Real Estate shall be delivered in "as -is" condition.
8. Possession. If Buyer timely performs all obligations, possession of the Real
Estate shall be delivered to Buyer on July 20, 2010, subject to Buyer performing and recording
any necessary plat and any abstracting as the Buyer desires all of which shall be accomplished by
the Buyer at the Buyer's expense.
9. Use of the Purchase Price. At time of settlement, funds of the purchase price
may be used to pay taxes and other liens and to acquire outstanding interests, if any, of others.
10. Abstract of Title. Buyer, at its expense, may obtain an abstract of title for the
Real Estate continued through a date within thirty (30) days of the closing date and deliver it to
Buyer for examination. It shall show merchantable title in Seller in conformity with this
agreement, Iowa Law & Title Standards of the Iowa State Bar Association. The abstract shall
become the property of the Buyer when the purchase price is paid in full at the closing.
11. Deed. At the closing, Seller shall convey the Real Estate to Buyer or Buyer's
assignee by Warranty Deed, free and clear of all liens, restrictions and encumbrances except for
certain restrictions described in Section 18 below. Any general warranties of title shall extend
only to the time of acceptance of this Offer, with special warranties as to acts of Seller
continuing up to time of delivery of the Deed. At the closing, Buyer shall execute and deliver to
Seller an Assignment of Option Agreement in the form attached hereto as Exhibit D.
12. Time is of the Essence. Time is of the essence in this contracts.
13. Remedies of the Parties.
(a) If Buyer fails to timely perform this contract, Seller may forfeit it as provided by
Iowa Code Chapter 656 (2009) and all payments made shall be forfeited or, at Seller's option,
upon thirty (30) days written notice of intention to accelerate the payment of the entire balance
because of such failure (during which thirty (30) days such failure is not corrected) Seller may
declare the entire balance immediately due and payable. Thereafter this contract may be
foreclosed in equity and the Court may appoint a receiver.
(b) If Seller fails to timely perform this contract, or if any of Buyer's conditions
herein are not satisfied at or prior to closing, Buyer shall not be required to close hereunder.
Further, only if Seller fails to timely perform this contract, Buyer has the right to have all
payments made returned to Buyer (See Section 2(a) above).
(c) Buyer and Seller also are entitled to utilize any and all other remedies or actions
at law or in equity available to them and shall be entitled to obtain judgment for costs and
attorney's fees as permitted by law.
14. Contract Binding on Successors in Interest. This contract shall apply to and bind
the successors in interest of the parties.
15. Construction. Words and phrases shall be construed as in the singular or plural
number and as masculine, feminine or neuter gender, according to the context.
16. Time for Acceptance. If this Offer is not accepted by Seller on or before July 20,
2010, it shall become void and all payments shall be repaid to Buyer.
17. Groundwater Hazards. Seller represents and warrants to Buyer that Seller has
knowledge of the presence in or beneath the Real Estate of solid waste, radioactive waste,
hazardous waste, hazardous substances, underground storage tanks, wells or other conditions
which may lead to groundwater contamination, including those substances defined to be
hazardous in 42 U.S. Code Section 9601 , et seq. and Iowa Code Chapter 455B (2005) or any
other federal or state or local law with respect to groundwater hazards, pursuant to all
environmental engineering reports and related documents obtained by Seller (copies of which are
available to Buyer) which are incorporated herein by this reference.
18. Restrictive Covenants. At closing, the parties shall execute, deliver and cause to
be recorded restrictive covenants in the form attached to this Agreement as Exhibit E which
restrictive covenants shall affect the Real Estate and the Option Rights Property.
G: \WPDOCS\MARY\Brad\Hwy 151 & 61 Agreement for Part Sale -Gift of Real Estate.rtf
HWY 151 & 61 DEVELOPMENT, LLC
SELLER/DONOR
By
CITY OF DUBUQUE
BUYER/DONEE
By
Its Authorized Representative
AMENDMENT NO. 4 TO DEVELOPMENT AGREEMENT BETWEEN CITY OF
DUBUQUE, IOWA AND HWY 151 & 61 DEVELOPMENT, LLC
This Amendment No. 4 ( "Amendment No. 4 ") to Development Agreement between the
City of Dubuque, Iowa and Hwy 151 & 61 Development, LLC, is entered into effective the
day of July, 2010 by and between the City of Dubuque, Iowa, a municipality ( "City "),
established pursuant to Iowa Code and acting under authorization of Iowa Code Chapter 403, as
amended ( "Urban Renewal Act "), and Hwy 151 & 61 Development, LLC, an Iowa limited
liability company ( "Developer ") with its principal place of business at Dubuque, Iowa.
RECITALS
A. City and Developer entered into that certain Development Agreement dated for
reference purposes as June 5, 2006 with respect to the former Smithfield real
estate site, which Development Agreement was amended by Amendment No. 1
thereto, Amendment No. 2 thereof, and Amendment No. 3 thereto. This
Amendment No. 4 supercedes Amendment No. 1, Amendment No. 2,
Amendment No. 3 and certain portions of the Development Agreement all as
provided herein.
B. The Development Agreement, as amended, contemplated that the City would
acquire certain of Developer's real estate for the reconstruction and relocation of
the Bee Branch storm sewer system; however, the final configuration for the Bee
Branch storm sewer is materially different than contemplated at the time the
Development Agreement was entered into by and between the parties;
consequently, the parties desire to amend the Development Agreement as
provided herein.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties do hereby agree as follows:
1. Amendment to Section 3.3 and Exhibit D. Due to the new configuration of the
Bee Branch storm sewer system:
a. Section 3.3(2) of the Development Agreement is hereby deleted in its
entirety; and
b. The Offer to Buy Real Estate and Acceptance attached to the
Development Agreement as Exhibit "D" is hereby rescinded by City and
Developer. City and Developer shall execute, deliver and close the
transactions contemplated by the Agreement for Part Sale /Part Gift of Real
Estate attached to this Amendment No. 4 as Exhibit 1.
2. Existing Bee Branch Storm Sewer Easement. Within six months after
completion of construction of the new Bee Branch storm sewer system, City shall be responsible
for, at its expense and in a workmanlike manner, the demolition and filling of the existing Bee
1
Branch sewer system located on Developer's real estate.
3. Temporary Construction Easement. Developer hereby grants the City a
temporary construction easement in connection with the construction of the new Bee Branch
storm sewer system. The temporary construction easement shall extend from the Bee Branch
real estate to 20 feet to the east of the existing Bee Branch line and such temporary easement
shall automatically terminate upon completion of the demolition and filling of the existing Bee
Branch sewer system located on Developer's real estate.
4. 16th Street Improvements. Ordinance No. 22 -05 required Developer to construct
certain improvements to 16th Street. Since the proposed use of the real estate is now different
than that anticipated at the time Ordinance No. 22 -05 was adopted, the parties agree that
Developer shall obtain a new traffic study and any 16th Street improvements that Developer is
required to make pursuant to such new traffic study shall be confined to those improvements
reasonably necessary to service Developer'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 traffic study are not approved by the City Council, or if
approved, are not agreed to by Developer within 60 days after such approval, Developer shall
remain responsible for the improvements required by the existing traffic study referred to in
Ordinance No. 22 -05.
5. Amendment to Section 3.1 Tax Increment Payments. Section 3.1(1) , 3.1(2) and
3.1(6) are hereby amended by deleting the date "January 1, 2013" in each place where such date
occurs and replacing such date with "January 1, 2015 ".
6. Section 3.5. The parties hereby add Section 3.5 to the Development Agreement
as follows:
"3.5 Contingent Economic Development Grants. In addition to
the 10 years of Economic Development Grants provided in Section
3.1(2) above, if one certain unnamed party with whom the City and
Developer are currently discussing development becomes part of
Developer's Project, and if such party receives Economic
Development Grants for years 11 through 15, Developer or the
party responsible for the 16th Street improvements shall receive 5
additional years of Economic Development Grants from City with
respect to the parcel for the unnamed party and related minimum
improvements thereon, which Economic Development Grants shall
be for years 16 through 20 after the commencement of the first
Economic Development Grants received by Developer from City.
The contingent additional Economic Development Grants provided
herein shall be paid from the TIF Project Accounts created under
Section 3.1 of the Development Agreement and shall be paid in
accordance with and subject to all other terms of Section 3.1 of the
Development Agreement as amended herein. Developer hereby
waives any extension of Economic Development Grants pursuant
2
to Section 3.3(2) of the Development Agreement resulting from
failure by the City to complete the Bee Branch construction by
December 31, 2009.
7. All other terms and conditions of the Development Agreement are
hereby ratified and confirmed as if fully set forth herein.
By:
By:
G: \WPDOCS \MARY\Brad \Hwy 151 61 Amendment No 4 to Dev Agr- FINAL.rtf
3
CITY OF DUBUQUE, IOWA
HWY 151 & 61 DEVELOPMENT, LLC
AGREEMENT FOR PART SALE /PART GIFT OF REAL ESTATE
This Agreement for Part Sale /Part Gift of Real Estate ( "Agreement ") is entered into this
day of July, 2010, by and among Hwy 151 & 61 Development, LLC (collectively
"Seller or Donor ") and the City of Dubuque, Iowa ( "Buyer or Donee ").
RECITALS
A. Donor is the owner of certain real estate in Dubuque County, Iowa, legally
described as follows:
(i) Lot lof Riverview Plaza (4.141 acres) in the City of Dubuque, Iowa
as shown on the Plat of Survey attached to this Agreement as Exhibit A
(hereinafter the "North Lot "); and
(ii) Lot 316, Lot 355 and Lot 2 -354 of East Dubuque No. 2 in the City of
Dubuque, Iowa (the "South Lots ").
(The North Lot and the South Lots are hereinafter referred to as the Real Estate.)
B. Donor is the Owner of certain rights (hereinafter the "Option Rights ") pursuant to
that certain Option Agreement by and between Donor and Donee which was attached as Exhibit
E to that certain Development Agreement by and between Donor and Donee dated for reference
purposes as June 5, 2006, which Option Rights have been previously exercised by Donor. The
Option Rights are with respect to a part of Lot 1 of Block 2, Dubuque Packing Company
Addition, containing approximately 2.76 acres (hereinafter the "Option Rights Property ").
C. Donor desires to part sell /part gift the Real Estate and Option Rights to Donee,
with the intent to receive a charitable deduction for income tax purposes for donor pursuant to
Section 170 of the Internal Revenue Code of 1986, as amended;
D. Donee desires to part purchase the Real Estate and Option Rights from Donor and
to receive a portion of the premises via gift from the Donors; and,
E. The parties desire to set out their agreement in writing.
THEREFORE, in consideration of the mutual terms and covenants contained herein, the
parties agree as follows:
AGREEMENT
1. Purchase Price. The purchase price for the Real Estate and Option Rights shall
be the sum of the following (cumulatively the "Purchase Price "):
(i) The total size of the North Lot expressed on a square foot basis
multiplied by $10.81 per square foot (i.e. 180,410.12 sq. feet at $10.81
A. Sale.
per square foot = $1,950,234) and
(ii) The total size of the South Lots expressed on a square foot basis
multiplied by $10.81 per square foot (i.e. 11,971.2 square feet at $10.81
per square foot = $129,409); and
(iii) The fair market value of the Option Rights Property as determined by
an independent appraisal as of the closing date under this Agreement (i.e.
2.76 acres at appraised value).
2. Payment of Purchase Price. The purchase price will be paid as follows:
$1,036,728 in immediately available funds to be paid at the time of closing
by certified check or wire transfer or other means acceptable to Seller; and
B. Charitable Contribution.
Donor shall convey and transfer, with the intent to make a gift, to Donee,
an interest in the Real Estate and Option Rights equal to the Gift Ratio as
determined under paragraph 2 below, and Donee shall acknowledge
receipt of such gift (the amount of the Purchase Price in excess of
$1,036,728) by executing and delivering to Donor IRS Form 8283 or such
other forms as may be required by the Internal Revenue Service to
substantiate this noncash charitable contribution.
3. Ratio Determination. The ratio determination with respect to this part sale /part
gift transaction shall be a fraction, the numerator of which shall be the difference between the
Purchase Price (with the value of the Option Rights as appraised effectively immediately prior to
the closing date), less $1,036.728 and the denominator shall be the Purchase Price.
4. Real Estate Taxes. Buyer shall pay all real estate taxes prorated to the date of
closing and any unpaid real estate taxes for prior years. Buyer shall pay all real estate taxes
accruing thereafter.
5. Special Assessments. Buyer shall pay all special assessments which are a lien on
the Real Estate as of the date of acceptance of this offer. All other special assessments shall be
paid by Buyer.
6. Risk of Loss and Insurance. Prior to Seller's delivery of possession of the Real
Estate to Buyer, all risk of loss shall remain with Seller until possession of the Real Estate shall
be delivered to Buyer.
7. Care and Maintenance. The Real Estate shall be delivered in "as -is" condition.
8. Possession. If Buyer timely performs all obligations, possession of the Real
Estate shall be delivered to Buyer on July 20, 2010, subject to Buyer performing and recording
any necessary plat and any abstracting as the Buyer desires all of which shall be accomplished by
the Buyer at the Buyer's expense.
9. Use of the Purchase Price. At time of settlement, funds of the purchase price
may be used to pay taxes and other Liens and to acquire outstanding interests, if any, of others.
10. Abstract of Title. Buyer, at its expense, may obtain an abstract of title for the
Real Estate continued through a date within thirty (30) days of the closing date and deliver it to
Buyer for examination. It shall show merchantable title in Seller in conformity with this
agreement, Iowa Law & Title Standards of the Iowa State Bar Association. The abstract shall
become the property of the Buyer when the purchase price is paid in full at the closing.
11. Deed. At the closing, Seller shall convey the Real Estate to Buyer or Buyer's
assignee by Warranty Deed, free and clear of all liens, restrictions and encumbrances except for
certain restrictions described in Section 18 below. Any general warranties of title shall extend
only to the time of acceptance of this Offer, with special warranties as to acts of Seller
continuing up to time of delivery of the Deed. At the closing, Buyer shall execute and deliver to
Seller an Assignment of Option Agreement in the form attached hereto as Exhibit B.
12. Time is of the Essence. Time is of the essence in this contracts.
13. Remedies of the Parties.
(a) If Buyer fails to timely perform this contract, Seller may forfeit it as provided by
Iowa Code Chapter 656 (2009) and all payments made shall be forfeited or, at Seller's option,
upon thirty (30) days written notice of intention to accelerate the payment of the entire balance
because of such failure (during which thirty (30) days such failure is not corrected) Seller may
declare the entire balance immediately due and payable. Thereafter this contract may be
foreclosed in equity and the Court may appoint a receiver.
(b) If Seller fails to timely perform this contract, or if any of Buyer's conditions
herein are not satisfied at or prior to closing, Buyer shall not be required to close hereunder.
Further, only if Seller fails to timely perform this contract, Buyer has the right to have all
payments made returned to Buyer (See Section 2(a) above).
(c) Buyer and Seller also are entitled to utilize any and all other remedies or actions
at law or in equity available to them and shall be entitled to obtain judgment for costs and
attorney's fees as permitted by law.
14. Contract Binding on Successors in Interest. This contract shall apply to and bind
the successors in interest of the parties.
15. Construction. Words and phrases shall be construed as in the singular or plural
number and as masculine, feminine or neuter gender, according to the context.
16. Time for Acceptance. If this Offer is not accepted by Seller on or before July 20,
2010, it shall become void and all payments shall be repaid to Buyer.
17. Groundwater Hazards. Seller represents and warrants to Buyer that Seller has
knowledge of the presence in or beneath the Real Estate of solid waste, radioactive waste,
hazardous waste, hazardous substances, underground storage tanks, wells or other conditions
which may lead to groundwater contamination, including those substances defined to be
hazardous in 42 U.S. Code Section 9601 , et seq. and Iowa Code Chapter 455B (2005) or any
other federal or state or local law with respect to groundwater hazards, pursuant to all
environmental engineering reports and related documents obtained by Seller (copies of which are
available to Buyer) which are incorporated herein by this reference.
18. Restrictive Covenants. At closing, the parties shall execute, deliver and cause to
be recorded restrictive covenants in the form attached to this Agreement as Exhibit C which
restrictive covenants shall affect the Real Estate and the Option Rights Property.
G: \WPDOCS \MARY \Brad \Hwy 151 & 61 Agreement for Part Sale -Gift of Real Estate.rtf
HWY 151 & 61 DEVELOPMENT, LLC
SELLER/DONOR
By
CITY OF DUBUQUE
BUYER/DONEE
By
Its Authorized Representative
1111110111
N
iiiiiiu
1111111111111111111
Doc ID: 006815610007 Type: GEN
Kind: SURVEY PLAT
Recorded: 07/23/2010 at 03:45:08 PM
Fee Amt: $37.00 Pape 1 of 7
Dubuque County Iowa
Kathy Flynn Thurlow Recorder
F11e2010- 00010249
PREPARED BY: IIW ENGINEERS & SURVEYORS P.C. 4155 PENNSYLVANIA AVE, DUBUQUE, IOWA. (563) 556 -2464
PLAT OF SURVEY
LOTS 1 & 2 OF RIVERVIEW PLAZA
IN THE CITY OF DUBUQUE, IOWA
SEE SHEET 2 OF 3 FOR LEGEND
AND LINE AND CURVE TABLES
L6
0
M „LO,Si'.CZN
CUT
J.311v 30IM ,OZ
OL
CUT
Jc-)
6�� RR SPIKE
7
OS
I KERPER INDUSTRIAL PARK
LOT 2A k LOT 6
N66'29'33 "E
277.39'(277.43')
NO
4Q4� �\ Q CAP
st- \,
s \:',Z) LOT 1
., 4.141
ei) �
'� ACRES •
.4)1 0ti
�'5
y0,
NO CAP
33.38'
CAP NO.
12631
16.56'
5.56'
NO CAP
44.47'
CAP NO.
4016
212.74'
E 16TH STREET
DETAIL
NO SCALE
L27
518.87'
S66'28'15 "W 731.62'
(731.59')
CUT
DETAILS
NO SCALE L19 0
®cur
LOT 2
35.434
ACRES
GRAPHIC SCALE
0 150 300
1"=150'
DRAWING MAY HAVE BEEN REDUCED
S 30 Z 133HS 33s 3NI1HO1VV4
(64' RIGHT—OF —WAY) S66'26'31 "W
PROPRIETOR: HWY 151 & 61 DEVELOPMENT, L.L.C. DESCRIPTION: RIVERVIEW PLAZA
SURVEYED FOR: CITY OF DUBUQUE IN THE CITY OF DUBUQUE, IOWA
DATE SURVEYED: JULY, 2010 TOTAL AREA SURVEYED: 39.575 ACRES
51\,10 Wq i
JOHN M.
TRANMER
zs LS 12631 °=
I HEREBY CERTIFY THAT THIS LAND SURVEYING DOCUMENT WAS PREPARED
AND THE RELATED SURVEY WORK WAS PERFORMED BY ME OR UNDER MY
DIRECT PERSONAL SUPERVISION AND THAT I AM A DULY LICENSED LAND
SURVEYOR UNDER THE LAWS OF THE STATE OF IOWA.
FOR IIW ENGINEERS & SURVE , P.C. / /
JOHN M. RANMER• /1"._.---\) r! 9{ O
DATE
LICENSE NO. 12631 MY LICENSE RENEWAL DATE IS 12/31/2010
PAGES OR SHEETS COVERED BY THIS SEAL SHEETS 1 & 2
IIW ENGINEERS &
SURVEYORS, P.C.
INTEGRITY. EXPERTISE. SOLUTIONS.
DUBUQUE. IA HAZEL GREEN. WI
4155 PENNSYLVANIA AVE. DUBUQUE, IA 52002
VOICE (563) 556 -2464 FAX (563) 556.7311
www.meengsom
DRAWN ARC
PLAT NO. 36 -IA -10
CHECKED JMT
PROJ. NO. 06169 -04
DATE 07 -16 -10
SHEET 1 of 3
P. \06\169\169-03\DWG\CVL\06169-04L
PREPARED BY;
IIW ENGINEERS at SURVEYORS P.C,
212.74'
5.56'
NO CAP
44.47'
CAP NO.
4016
NO CAP
33.38'
CAP NO.
12631
16.56'
CUT
"X"
SEE SHEET 2 OF 3 FOR LEGEND
AND LINE AND CURVE TABLES
L6
"„p,Hl rrp,,,
0
▪ JOHN M. `
TRANMER
▪ LS 12631 = >°
^ J
A �r41. 1 I p'
P Os
PLAT OF SURVEY
LOTS 1 & 2 OF RIVERVIEW PLAZA
IN THE CITY OF DUBUQUE, IOWA
DETAIL
NO SCALE
518.87'
E 16TH STREET S66'28'15 "W 731.62'
(731.59')
4155 PENNSYLVANIA AVE,
_L17
L18
PROPRIETOR: HWY 151 Sc 61 DEVELOPMENT, L.L.C. DESCRIPTION: RIVERVIEW PLAZA
PREPARED FOR: CITY OF DUBUQUE IN THE CITY OF DUBUQUE, IOWA
DATE PREPARED: JULY, 2010 TOTAL AREA SURVEYED: 39.575 ACRES
I HEREBY CERTIFY THAT THIS LAND SURVEYING DOCUMENT WAS PREPARED
AND THE RELATED SURVEY WORK WAS PERFORMED BY ME OR UNDER MY
DIRECT PERSONAL SUPERVISION AND THAT I AM A DULY LICENSED LAND
SURVEYOR UNDER THE LAWS OF THE STATE OF IOWA.
FOR IIW ENGINEERS & SURVEYOR
JOH M. TRANME' DA
UCENSE N0. 12631 MY LI• NSE RENEWAL DATE IS 12/31/2010
PAGES OR SHEETS COVERED BY THIS SEAL SHEETS 1 Sc 2
EXHIBIT A
DUBUQUE. IOWA
RR SPIKE
ti
GRAPHIC SCALE
0 150
DETAILS
NO SCALE
RAWN ARC
HECKED JMT
LOT 2
35.434
ACRES
(563) 556 -2464
( KERPER INDUSTRIAL PARK
f LOT 2A
N66'29'33 "E LOT 6
277.39'
300
1 " =150
DRAWING MAY HAVE BEEN REDUCED
(64' RIGHT—OF —WAY) 866'26'31 "W
11W ENGINEERS &
SURVEYORS, P.C.
l'!)' INIYORITY EXPERTISE SOLUFIONS.
IMIIIUy11l. N IIAIF].URLEH.WI
1155PENNSYLVANIAAVE DURIpUE.rA ,,m,
VOICE1K31554..1 FAX I50555I1RII
PLAT NO 36 -IA -10
PROJ. NO. 06169 -04
LATE 07 -09 -10 SHEET 1 of 3
_. \06 \169 \169 -03 \DWG \CVL \06169 -04L
PREPARED BY IIW ENGINEERS & SURVEYORS P.C,
N66'28'43 "E
347.96' LOT C
LINE
L1
L2
L3
L4
L5
L6
L7
L8
L9
L10
L11
L12
L13
L14
671.51'
NAIL w/
WASHER
NO. 12631
BEARING
NO3'24'21 "E
N06'56'26 "E
N10'46'04 "E
N10'39'28 "E
N12'47'41 "E
NI 4'06'46 "E
N21'54'32 "E
N 27'03'48 "E
N28'16'13 "E
N28'48'03 "E
N29'53'18 "E
N32'20'43 "E
N 34'54' 08 "E
N 38'47' 38 "E
CURVE LENGTH
C1 144.85'
C2 35.34'
PLAT OF SURVEY
LOTS 1 & 2 OF RIVERVIEW PLAZA
IN THE CITY OF DUBUQUE, IOWA
NAIL W/
WASHER KERPER INDUSTRIAL PARK
NO. 12631 L23_. N66'30'22 "E 415.09' S,
N66'27'52 "E
221.08' F'
DIST.
50.03'
49.87'
49.98'
49.94'
45.68'
5.57'
50.00'
50.00'
50.00'
50.00'
50.00'
50.00'
50.00'
15.74'
RADIUS
280.00'
45.00'
LOT 2
35.434
ACRES
E 16TH STREET
G
CAP NO.
12631
LIME
L15
L16
L17
L18
L19
L20
L21
L22
L23
L24
L25
L26
L27
DELTA
29'38'25"
45'00'00"
LEGEND
PLAT BOUNDARY
FOUND 5/8" IRON ROD
• W/ CAP AS NOTED
• FOUND 1" IRON PIPE
• FOUND MONUMENT
AS NOTED
FOUND ALUMINUM
D.O.T. MONUMENT
SET 5/8" IRON ROD
W/ CAP NO. 12631
RECORD INFORMATION
4155 PENNSYLVANIA AVE, DUBUQUE, IOWA, (563) 556 -2464
CAP NO.
12631
BEARING
N41'25'38 "E
N49'59'38 "E
N54'45'38 "E
N58'26'45 "E
N 66'33' 40 "E
N24'04'07 "W
S24'24'21 "E
N 23'40' 58 "W
N66'22' 59 "E
S23'58'41 "E
S26'36'00 "E
S68'37'35 "E
S23'37'35 "E
CAP NO.
12631
DIST.
50.00'
50.00'
50.00'
67.06'
6.61'
31.50'
63.97'
63.96'
59.04'
111.52'
160.94'
34.20'
11.39'
CHORD
S16'08'28 "W 143.24'
S46'07'35 "E 34.44'
NAIL
LOT D
CAP NO. / �!
12631
CAP NO.
12631
CAP NO
12631
p
� - OF
`' �
GRAPHIC SCALE
0 150 300
N
of
1" =150'
DRAWING MAY HAVE BEEN REDUCED
NOTE
THIS SURVEY IS SUBJECT TO
EASEMENTS, RESERVATIONS,
RESTRICTIONS AND RIGHTS -OF -WAY
OF RECORD AND NOT OF RECORD.
DRAWN ARC
NECKED JUT
DATE 07 -09 -10
11W ENGINEERS &
SURVEYORS, P.C.
INTEGRITY. EXPERTISE SOLUTIONS
SHEET 2 of 3
r-
0
z
0
1111111I01R.,IA IIA% !1.(.NF'I:N. WI
4175 PENNSYLVANIA AVE. DUBUQUE. IA 32OV2
VOCE(5�)W..2 465 FAX 063)330-N11
vwv i n.np.mn
PLAT NO 35 -IA -10
PROJ. NO. 06169 -04
P; \06 \169 \169 -03 \DWG \CVL \06169 -04L
I, John M. Tranmer, a Duly Licensed Land Surveyor in the State of Iowa, do hereby certify that the
following real estate was surveyed and platted by me or under my direct personal supervision, To Wit:
Riverview Plaza in the City of Dubuque, Iowa.
SURVEYOR'S CERTIFICATE
Page 3 of 3
This survey was performed for the purpose of subdividing and platting said real estate henceforth to be
known as Lots 1 & 2 of Riverview Plaza in the City of Dubuque, Iowa.
Containing 39.575 acres, more or less, and subject to easements, reservations, restrictions, and rights -of-
way of record and not of record, the plat of which is attached hereto and made a part of this certificate.
The foregoing plat of Lots I & 2 of Riverview Plaza in the City of Dubuque, Iowa, is made with the free
consent and in accordance with the desires of the undersigned owners and proprietors of said real estate.
By
By
State of Iowa
County of
) ss:
My Commission Expires:
OWNER'S CONSENT
, Iowa 20
On this day of , 20 me, the undersigned, a Notary Public in and
for the State of Iowa, personally appeared to me personally known, who
being by me duly sworn, did say that person is the of said limited
liability company and that the instrument was signed on behalf of said limited liability company by
authority of its managers; and the said acknowledged the execution of
said instnnnent to be the voluntary act and deed of said limited liability company, by it voluntarily
executed.
Notary Public
in and for State of Iowa
PLANNING SERVICES
Dubuque, Iowa , 20
The foregoing plat of Lots I & 2 of Riverview Plaza in the City of Dubuque, Iowa, or within the two mile
jurisdiction of the City of Dubuque, Iowa, as defined under Section 354 of the Code of Iowa, has been
reviewed by the City Planner, (or designee) of the City of Dubuque in accordance with Chapter 42 of the
City of Dubuque Code of Ordinances, and said approval has been endorsed herein on the date first written
above.
Planning Services Division
City of Dubuque, Iowa
City Planner — Laura Carstens
COUNTY AUDITOR
Dubuque, Iowa , 20
The foregoing plat was entered of record in the office of the Dubuque County Auditor this
day of , 20 .
We approve of the subdivision name or title to be recorded.
Denise M. Dolan
County Auditor of Dubuque, Iowa
CITY ASSESSOR
Dubuque, Iowa , 20
The foregoing plat was entered of record in the office of the Dubuque City Assessor this
day of ,20 .
Richard A. Engelken
Dubuque City Assessor
RECORDER'S CERTIFICATE
Dubuque, Iowa , 20
The foregoing plat of Lots 1 & 2 of Riverview Plaza in the City of Dubuque, Iowa, has been reviewed by
the Dubuque County Recorder.
Kathy Flynn Thurlow
Dubuque County Recorder
ASSIGNMENT OF OPTION AGREEMENT
The undersigned, Hwy 151 & 61 Development, LLC, an Iowa limited liability company
does hereby transfer, assign and convey unto the City all of the undersigned's right, title and
interest to that certain Option Agreement attached hereto and incorporated herein.
Dated the day of July, 2010.
G: \WPDOCS \MARY \Brad \Hwy 151 & 61 Assignment of Option Agreement.rtf
EXHIBIT B
HWY 151 & 61 DEVELOPMENT, LLC
By
Prepared by: Brian J. Kane, KANE, NORBY & REDDICK, P.C., 2100 Asbury Rd., Ste. 2, Dubuque, IA 52001 563 -582 -7980
OPTION AGREEMENT
For valuable consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, THE CITY OF DUBUQUE, IOWA (hereafter "Grantor "), hereby grants to Hwy 151
& 61 Development, LLC, an Iowa limited liability company, or its assignee (hereafter "Grantee "),
an exclusive option to purchase the real estate legally described as follows:
See legal description attached hereto as Exhibit "A" and made apart hereof (hereafter
the "City Real Estate ").
Grantor hereby grants to Grantee an exclusive option to purchase the above - described
property as provided in that certain Development Agreement wherein the Grantor is the City and the
Grantee is the Developer dated July , 2006, incorporated herein by this reference (the
"Development Agreement ").
The total option purchase price shall be $1.00.
Grantor shall produce marketable title to the City Real Estate pursuant to the Iowa Land Title
Standards prior to or at the closing of the purchase described above.
Grantee shall exercise this option, if at all, by giving written notice of such intent to exercise
this option during the period commencing July , 2006 and ending on the 30 day of June,
2011. Notice shall be given as provided in the Development A gr eement.
Grantor, at its expense, shall promptly continue and pay for the abstract of title to the above -
described property continued through a date not more than thirty (30) days prior to the closing date
stated in the notice of the exercise of the option. Such abstract shall show merchantable title in the
Grantor in conformity with this agreement, Iowa law and title standards of the Iowa State Bar
Association. The abstract shall become the property of the Grantee when the purchase price is paid
in full. Grantor shall pay costs of additional abstracting or title work due to acts or omissions of the
Grantor.
Upon payment of the purchase price of $1.00, Grantor shall convey the City Real Estate to
Grantee or its assignees, by Warranty Deed, free and clear of all liens, restrictions and encumbrances.
Page 1 of 4
This option shall terminate if notice of the exercise thereof is not given pursuant to this
Agreement and the Development Agreement on or before the 30` day of June , 2011.
This contract shall apply to and bind personal representatives, successors in interest and
permitted assigns of the parties. This option shall be governed by and construed in accordance with
the laws of the State of Iowa.
Notwithstanding any other provision herein to the contrary, Grantor shall, prior to the closing,
either provide a "No Further Action" certificate with regard to the City Real Estate from the Iowa
Department of Natural Resources or alternatively shall agree to indemnify, defend, and hold
harmless Grantee from any and all environmental liabilities related to or arising out of the property
for environmental conditions which exist as of and prior to the closing date. "Environmental
Conditions" for this purpose shall mean any presence in or beneath the City Real Estate of solid
waste, radioactive waste, hazardous waste, hazardous substances, underground storage tanks, wells,
or other conditions which may lead to groundwater contamination, including those substances
defined to be hazardous in 42 U.S. Code Section 9601, at Sec. and Iowa Code Chapter 455B (2005)
or any other federal, state, or local law with respect to groundwater hazards, pursuant to all
environmental hazards. If City fails to so obtain a No Further Action certificate from the Iowa
Department of Natural Resources City shall indemnify, defend, and hold harmless Grantee.
DATED THIS DAY OF , 2006.
CITY OF DUBUQUE, IOWA HWY 151 & 61 DEVELOPMENT, LLC
By: Roy D. Buol, Mayor By: Wayne A. Briggs, President
By: Jeanne F. Scheneider, City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE ) ss:
On this day of , 2006, before me, , a Notary
Public in and for the State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to me
personally known, and, who, being by me duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the foregoing instrument
is the corporate seal of the city, and that the instrument was signed and sealed on behalf of the city,
and that they 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.
Page 2 of 4
STATE OF IOWA
DUBUQUE COUNTY
)
) ss:
NOTARY PUBLIC IN AND
FOR THE STATE OF IOWA
This instrument was acknowledged before me on the day of ,
2006, by WAYNE A. BRIGGS as of Hwy 151 & 61 Development, LLC.
F: \WPDOCS\Missy\DOCS\Hwy 151 & 61 Development LLC (City of Dubuque) Option Agreement (Final) Exhibit E to Development AgreementCLEAN.wpd
Page 3 of 4
NOTARY PUBLIC IN AND
FOR THE STATE OF IOWA
EXHIBIT A
A part of Lot 1 of Block 2, Dubuque Packing
Company Addition, containing approximately
2.76 acres as shown on the attachment hereto.
Page 4 of 4
15.1.8
WOO
1
1
1'Oi 06 T
24.45' (21 32 ')
OT 2
MCC'. 2
CAB. PACK WC
CO . ACC .
0 _5 1
LOT 448
0.
CAST IGTII STRC -
566 3O'
1505? �
\ 1� mow•
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. 5 4 ' ( 1 3 0 t6c 36 ' c'533 ')
\ LOT 4-4 LOT 473 r.
E H
PART Cr
LOT 1
BOOS 2
OIRp� PAO(IIC
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.76 A.0CS
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1 (SI AO •) N., 1
//J��' LOT 4 I
'CP i� \ ! I 69 i X
l �
�H� 61 �H'6 T 01 71-62
TT IN
580.09 '
r
Og .
RADIUS . 2361.83 '
Ate^ - 3'56.35 '
TOM( .• S78 . S 1 '
0410 156.01'
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TF LOTI I
2
f l OT 537y b
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LOT 506 1 1
DFrA IL "Al'
- r
i
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1AKETO • 42.76
! CHI:RD 344 - 48 •
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/� ! / 1 r7T� Sao
OI CLJF Fti7C / � IN;
fiG{FT JtT j
LOT 230 • LOT 567
L
H ICHOY pal RN
PER I 1416 -60
LOT 568.1
([ M H ST. YA1 1tU)
L01 505
LOf 5h2f
� � P ART Or
LOT 1
i 14L0]( 2
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COPAIK ACC-
/
0.72 ACFES
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,, 9T
i
S30' 0.3 WV-
23.41' (233')
LOT r-56
CAST O(B. '2
I OT 586
LOT SY5
LOT 561
r +
LOT 561
LOT 562
n+3
Prepared By: Brian J. Kane, 2100 Asbury Road, Suite 2, Dubuque, IA 52001 (563) 582 -7980
RESTRICTIVE COVENANTS
The undersigned, THE CITY OF DUBUQUE, IOWA, a municipality, being the owner of
the following- described real estate:
Lot 1 of Block 2, Dubuque Packing Company Addition
hereby makes the following declarations as to limitations, restrictions and uses to which the
above - described lots (hereafter the "Real Estate ") in Dubuque County, Iowa, may be put, hereby
specifying that said declarations shall constitute covenants to run with said lots, as provided by
law, and shall be binding upon the heirs, successors and assigns of all parties and all persons
claiming under them and for the benefit and limitation upon all future owners of the Real Estate.
1. The following uses shall be prohibited upon the Real Estate:
(a) Convenient store with gas sales;
(b) Gas station;
(c) Pharmacy; and
(d) Quick service restaurant with ice cream, ice milk, frozen custard, frozen
yogurt or similar such product sales (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.
2. These covenants and restrictions shall run with the land and shall be binding on all
parties hereto, their heirs, successors in interest and assigns, and on persons claiming under them
for a period of twenty one (21) years from the date these restrictive covenants are recorded, at
which time the covenants and restrictions shall be extended for successive periods of twenty one
(21) years.
EXHIBIT C
1
3. In case the parties hereto, or any of them, or their heirs, successors or assigns, shall
violate or attempt to violate any of the covenants or restrictions herein, it shall be lawful for Hwy
151 & 61 Development, LLC ( "Hwy 151/61") or its successor in interest, or any other interested
party or parties, to prosecute any proceeding at law or in equity against the person or persons
violating or attempting to violate any such covenants or restrictions, to either prevent him or
them from so doing, or recover damages for such violation, or both. The prevailing party in any
such action shall be entitled, in addition to any other damages or remedies, to be reimbursed for
reasonable attorney's fees and court costs incurred in connection with such action(s).
4. The invalidation of any one of these covenants or restrictions, or any part thereof, by
judgement or court order shall in no way affect any of the other provisions and all other
provisions shall remain in full force and effect.
5. The fact that a violation of these provisions has not been previously enforced shall
not estop or bar in any way subsequent enforcement of these provisions by any party authorized
to insist upon enforcement.
6. The restrictive covenants, agreements, conditions, reservations, restrictions and
charges created and established herein for the benefit of Real Estate and each lot therein may be
amended, waived, abandoned, terminated, modified, altered and changed as to the whole of Real
Estate or any portion thereof only with the written consent of Hwy 151/61 or its successors in
interest. No such amendment, waiver, abandonment, termination, modification or alteration
shall become effective until the proper instrument in writing shall be executed and recorded in
the office of the Recorder for Dubuque County, Iowa, with such written consent attached thereto.
IN WITNESS WHEREOF, the foregoing instrument has been executed this day of
, 2010.
STATE OF IOWA
COUNTY OF DUBUQUE
) ss:
THE CITY OF DUBUQUE, IOWA
By
Roy D. Buol, Mayor
By
Jeanne F. Schneider, City Clerk
On this day of ,2010, before me, , a Notary
Public in and for the State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to
me personally known, and, who, being by me duly sworn, did say that they are the Mayor and
City Clerk, respectively, of the City of Dubuque, Iowa; 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 Resolution No.
adopted by the City Council of the City of Dubuque, Iowa, on the day
of , 20 , and that they 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.
G: \WPDOCS \MARY \Brad \Hwy 151 & 61 (City) Restrictive Covenants.rtf
Notary Public in and for State of Iowa
3