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Acceptance of Petition and Waiver Agreements_Historic Millwork DistrictMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Acceptance of Petition and Waiver Agreements (Voluntary Assessments) for Privately Owned Streets in the Historic Millwork District DATE: August 10, 2010 Dubuque habil All-America Cily 11111r 2007 Economic Development Director Dave Heiar is recommending acceptance of the Petition and Waiver Agreements from the property owners donating the right -of -way in the Millwork District. On February 16, 2009, the Historic District Master Plan was adopted by the City Council. The first phase of the district redevelopment is centered at the intersections of 10 and Washington Streets. Three properties are scheduled for major renovations, which are owned by Wilmac Property Company, CARADCO Building LLLP, and Mid America Holdings, LLC. The Historic Millwork District Master Plan proposed the following privately held ROW to be turned over to the City for public streets; 10 Street from Jackson to Elm Streets and Washington Street from 9 to 11 Streets. This would provide public access and connectivity in the area and facilitate a quality streetscape in the district. In June 2010, the Zoning Advisory Commission and City Council approved plats of the various properties and accepted the ROW for these streets. The City received a TIGER Grant from the U.S. Department of Transportation to reconstruct streets in the Millwork District for the first phase of the development. These streets will be designed as complete streets which provide areas for multi -modal transportation, including pedestrians, bicycles, mass transit and autos. In a typical subdivision, the developer constructs all streets to the City's specifications and then the City accepts the streets as ROW. The Millwork District received a TIGER Grant from the US DOT, providing the funds needed to construct the needed streets for Phase I of the Millwork District redevelopment. The three property owners who owned the private streets have signed Petition and Waiver Agreements agreeing to have their properties assessed for 100% of their portion of the cost to construct the following streets: • 10th Street from Jackson to Elm Streets • Washington Street from 9th to 11th Streets As an incentive to redevelop the buildings adjacent to these new, publicly owned streets, the amount of assessment attributable to the previously privately owned streets will be forgiven, should the owner complete the minimum improvements (building renovations) as will be specified in a future development agreement. Should the minimum improvements not be completed, then the assessment will not be eliminated and the owner will pay for the street improvements over time through a 15 year assessment which will be attached to their property taxes. I concur with the recommendation and respectfully request Mayor and City Council approval. M' hael 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 Van Milligen, City Manager FROM: David J. Heiar, Economic Development Director 1 DATE: August 9, 2010 Dubuque AI-Ame icacly I f 2007 SUBJECT: Acceptance of Petition and Waiver Agreements (Voluntary Assessments) for privately owned streets in the Historic Millwork District INTRODUCTION This memo is to gain City Council approval of accepting Petition and Waiver Agreements from the property owners donating street ROW within the Millwork District. BACKGROUND On February 16, 2009, the Historic District Master Plan was adopted by the City Council. The first phase of the district redevelopment is centered at the intersections of 10 and Washington Streets. Three properties are scheduled for major renovations, which are owned by Wilmac Property Company, CARADCO Building LLLP, and Mid America Holdings, LLC. The Historic Millwork District Master Plan proposed the following privately held ROW to be turned over to the City for public streets; 10 Street from Jackson to Elm Streets and Washington Street from 9 to 11 Streets. This would provide public access and connectivity in the area and facilitate a quality streetscape in the district. In June 2010, the Zoning Advisory Commission and City Council approved plats of the various properties and accepted the ROW for these streets. The City received a TIGER Grant from the U.S. Department of Transportation to reconstruct streets in the Millwork District for the first phase of the development. These streets will be designed as complete streets which provide areas for multi -modal transportation, including pedestrians, bicycles, mass transit and autos. DISCUSSION In a typical subdivision, the developer constructs all streets to the City's specifications and then the City accepts the streets as ROW. The Millwork District received a TIGER Grant from the US DOT, providing the funds needed to construct the needed streets for Phase I of the Millwork District redevelopment. The three property owners who owned the private streets have signed Petition and Waiver Agreements agreeing to have their properties assessed for 100% of their portion of the cost to construct the following streets: • 10 Street from Jackson to Elm Streets • Washington Street from 9 to 11 Streets As an incentive to redevelop the buildings adjacent to these new, publicly owned streets, the amount of assessment attributable to the previously privately owned streets will be forgiven, should the owner complete the minimum improvements (building renovations) as will be specified in a future development agreement. Should the minimum improvements not be completed, then the assessment will not be eliminated and the owner will pay for the street improvements over time through a 15 year assessment which will be attached to their property taxes. RECOMMENDATION /ACTION STEP I recommend that the City Council approve the three resolutions accepting the Petition and Waiver Agreements from Mid America Holdings, LLC, CARADCO Building, LLLP, and Wilmac Property Company. F:\USERS\Econ Dev \Warehouse District\Streets\2010809 Street dedication and Voluntary Assess Memo.doc CL42 31.94' C.L.389 100 ST. 0 41 2 AL NTH INA N1 /2- CL388 1/2 -C L 388 C.L. 387 T C.L. 386 �S ST 1 2 C`L- z IA - 382 1 C r00 L 2 GL3 8 J t L1- C,L381 $00 N.0 N 36.2 -CL3 515.1 =CL380 T � C.L y 379 .00 C•L. 378 OWN 4, C.L. 377 • • l , V O Z S 1/2 -CL391 n iCCOW+N N1/2 -CL T'C -L392 h GL 393 22� N.1 /2-W 220= C.L.505 1 5.1/2- w.220f- n C.L,505A C. 39 4 ORIGt.NAL C. LTOW 395 ry i oo o o C.L 396 C.L. 397 C.L. 398 ST N E 55-IN 1/2•C L ° 400 & :, CL 399 S.1/2- CL 399 Be CL 400 n „. O. e r PT- E' C.L42 r w R tP .L 4 25 > � roc 2 / C:L 426 I , 22-" 4 2 o 4 C .L. G C.L. 423 C.L. 422 C.L. 421 1 r cA C.L. > 420 /00 N 0 r N N Cu LOT 2 OF CITY LOT 505 EAST 11TH STREET (64' ROW) N66•32'50'E 435,48' (436.67'> -< r o 0 Cfl C m n -‹ r <o o n) -4 0 a' n eMSNT o LO7 4 OF ' CITY LOT 506 o LOT 2 0 LOT 1 -3 OF CITY LOT 506 LOT 2 -3 OF CITY LOT 506 S66'24153'W 386.79' (386.79') EAST 9TH STREET 64' ROW BAL—N PT-.- N C.L. 509 CNTER CITY PLACE 2.65 AC. LOT 1 -1 OF CITY LOT 505 q 43.9. 18 N LOT 2-1 OF CITY LOT 506 LOT 2-2-2 OF CITY LOT 506 OF CITY 1 1 LOT 2 506 C4 sT 2j ROW r�or S4 04 4! S T�I (/ St, C�Z 9Y;e 0 ON CO i ST 3 04 ?T � 7 .8p 181 g'E 2 Ce ee6, Prepared by: David J. Heiar, ED Director, 50 West 13 Street, Dubuque IA 52001 563 589 -4393 Return to: Jeanne Schneider, City Clerk, 50 West 13 Street, Dubuque IA 52001 563 589 -4121 RESOLUTION NO. RESOLUTION APPROVING THE PETITION AND WAIVER AGREEMENT WITH CARADCO BUILDING, LLLP. Whereas, the City of Dubuque has accepted Final Plats dedicating right -of -way for public streets and utilities; and Whereas, upon said Final Plat appears streets to be known as East 10 Street and Washington Street, together with certain public easements, which the owner, by said Final Plat, has dedicated to the public forever; and Whereas, the City of Dubuque intends to construct public improvements that are in the best interest of the City on these streets, which improvements shall be constructed at such times and in accordance with the development agreements to be entered into with the adjacent property owners; and Whereas, the adjoining property owners have agreed to reimburse the City for said improvements should they default in making building improvements as identified in a separate development agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque will make improvements to the platted Washington Street and East 10 Street areas in the Historic Millwork District. Attest: Section 2. That the Petition and Waiver Agreement with CARADCO Building, LLLP. is hereby approved and the Mayor and City Clerk are hereby authorized and directed to endorse the approval of the City of Dubuque, Iowa, upon said agreement. Passed, approved and adopted this 16 day of August, 2010. Jeanne F. Schneider, City Clerk D. Buol, Mayor F:\USERS\Econ Dev \Warehouse District \Streets\20100811 Resolution Approv Petition & Waiver - CARADCO Building LLLP.doc PETITION AND WAIVER AGREEMENT THIS PETITION AND WAIVER AGREEMENT (Agreement) is made and entered into by and between the City of Dubuque, Iowa (City) and CARADCO Building, LLLP. (Owner). WITNESSETH: WHEREAS, Owner owns the following property: Lot 1 CARADCO Place in the City of Dubuque, Iowa (the Property); and WHEREAS, City proposes to construct certain street and streetscape improvements (the Improvements) in said City; and WHEREAS, Owner desires that the Improvements be constructed to benefit its properties and that special assessments be levied against the Property, the general description and location of the Improvements being as follows: Paving and streetscape of Washington Street from 9th to 11th Streets, 10th Street from Elm to Jackson Street, and Jackson Street from 7 to 11 Streets. The streets and streetscapes will be reconstructed according to the Historic Millwork District Master Plan adopted by Resolution 79 -09 on February 16, 2009. NOW, THEREFORE, BE IT AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS: As soon as practicable City shall have the right to cause the above described Improvements to be constructed in accordance with such plans and specifications as it shall deem appropriate. The construction of the Improvements shall be under the supervision of an engineer to be selected by City (the Engineer). For the purpose of this Agreement, City may elect to enter into contracts for the construction of the Improvements as a part of any contract for a public improvement project entered into prior to the receipt of this instrument as authorized by Section 384.41(2) of the Code of Iowa. In consideration of the construction of the Improvements, Owner hereby waives the public hearing on the adoption of the resolution of necessity and the mailing and publication of notice thereof, and all other legal formalities of whatsoever kind or character required by the laws of Iowa to be observed by cities in the construction of the Improvements where the expense of such Improvements is to be assessed against the Property. Owner expressly waives each and every question of jurisdiction, the intention of the Owner being to authorize and direct City to construct the Improvements without requiring any of the formalities or legal proceedings required of cities by the laws of Iowa. It is further agreed that when the Improvements have been constructed in accordance with the plans and specifications, City may make assessments against the Property for the entire cost of the construction of the Improvements, including the cost of engineering, supervision, preparation of assessment schedule, and a ten percent Default and Deficiency Fund as authorized by Section 384.44, Code of Iowa, and that such assessments so made shall be a lien upon the Property; provided , however, that the amount to be so assessed shall not exceed the amount set forth below, and Owner hereby agrees to pay the amount as follows: Private Street Donation Assessment Public Street Assessment Private Sanitary Sewer Assessment Private Water Service Assessment Total Assessment $272,519.24 $27,416.83 $5,000.00 $2.000.00 $306,936.07 This amount shall be assessed against the Property, and the assessment shall have the same legal force and effect as if all the legal formalities provided by law in such cases had been fully and faithfully performed and observed. Owner hereby expressly waives every objection to the assessment, any limitation of the amount thereof as a percentage of valuation and any right to defer or postpone payment of the assessment. The assessment shall be paid by Owner within the time provided by statute for the payment of special assessments for such Improvements. The amount and proportion of the cost of the Improvements to be paid by Owner shall be ascertained and determined by the Engineer and by it reported to the City Council which shall make such changes or alterations as it may require, and when the assessments are finally passed by the City Council and by it levied, they shall constitute the assessments against the Property. Notwithstanding the foregoing or anything in this Agreement to the contrary, it is recognized that Owner and City are parties to a Development Agreement requiring, among other things, Owner to construct certain Minimum Improvements (as defined in the Development Agreement) on the Property made subject to this Agreement. In recognition thereof, City agrees that so long as Owner timely completes the construction of the required Minimum Improvements under the Development Agreement and is not otherwise in default under the Development Agreement, as determined by City in its sole discretion, the final assessment to be levied against the Property in respect of the Improvements shall be reduced by the terms specified in the Development Agreement. Owner hereby authorizes the City Council to pass any Resolution requisite or necessary to order and construct the Improvements, to provide for the construction of the Improvements and to make the assessments herein provided for, without further notice to Owner, , and any such Resolution may contain recitals that the Improvements are ordered or made by the City Council without petition of Owner, without in any way qualifying this Petition or releasing Owner from its obligation to pay the assessments levied against the Property for the cost of the Improvements and to issue improvement bonds or other obligations payable out of the assessments. Owner warrants that the Property is free and clear of all liens and encumbrances other than for ordinary taxes, except for such liens as are held by lienholders hereinafter listed and designated as signers of this Agreement (Lienholders), who by execution of this Agreement consent to the subordination of their liens to the special assessment liens herein described. Owner further agrees to subordinate the sale of any part of the Property to the terms of this Agreement, and, upon failure to do so, to pay the full amount of the assessment on demand. Each Lienholder designated below, by execution of this Agreement, agrees and consents that its lien or liens shall be subordinated to the lien of the assessments levied pursuant hereto. Owner agrees that this Agreement shall be effective and binding from and after the approval hereof by resolution of the City Council. ATTEST: By: Dated this day of , 2010. By: Jeanne F. Schneider, City Clerk, CMC CITY OF PAUBUQUE, IOWA / Roy D. fol, Mayor Owner: CARADCO Building, LLLP Legal description of property to be assessed (the Property): Lot 1 CARADCO Place in the City of Dubuque, Iowa The undersigned Owner and Lienholder agree to the terms of the attached Petition and Waiver Agreement and agree to be bound thereby. CARADCO BUIL '. LLLP By: � Date: AV & 9 , 2010 Its: f . of G , R'on (&P s ad co gads LAu-P) WITNESS:1. J),. LIENHOLDER: B be� �2 Printed Name: SIGNATURE PAGE TO PETITION & WAIVER AGREEMENT . %-4/ ell4-j 10L,a1.4_ Its: e-c V c �,�� s, Company: /9 .✓ s a,¢„ WITNESS: �"�- Prepared by: David J. Heiar, ED Director, 50 West 13 Street, Dubuque IA 52001 563 589 -4393 Return to: Jeanne Schneider, City Clerk, 50 West 13 Street, Dubuque IA 52001 563 589 -4121 RESOLUTION NO. RESOLUTION APPROVING THE PETITION AND WAIVER AGREEMENT WITH WILMAC PROPERTY COMPANY Whereas, the City of Dubuque has accepted Final Plats dedicating right -of -way for public streets and utilities; and Whereas, upon said Final Plat appears streets to be known as East 10 Street and Washington Street, together with certain public easements, which the owner, by said Final Plat, has dedicated to the public forever; and Whereas, the City of Dubuque intends to construct public improvements that are in the best interest of the City on these streets, which improvements shall be constructed at such times and in accordance with the development agreements to be entered into with the adjacent property owners; and Whereas, the adjoining property owners have agreed to reimburse the City for said improvements should they default in making building improvements as identified in a separate development agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque will make improvements to the platted Washington Street and East 10 Street areas in the Historic Millwork District. Attest: Section 2. That the Petition and Waiver Agreement with Wilmac Property Company is hereby approved and the Mayor and City Clerk are hereby authorized and directed to endorse the approval of the City of Dubuque, Iowa, upon said agreement. Passed, approved and adopted this 16 day of August, 2010 Jeanne F. Schneider, City Clerk Roy D. Buol, Mayor F:\USERS\Econ Dev \Warehouse District \Streets\20100811 Resolution Approv Petition & Waiver - Wilmac Property Co.doc (the Property); and PETITION AND WAIVER AGREEMENT THIS PETITION AND WAIVER AGREEMENT (Agreement) is made and entered into by and between the City of Dubuque, Iowa (City) and Wilmac Property Company. (Owner). WITNESSETH: WHEREAS, Owner owns the following property: Lot 1 Wilmac Place in the city of Dubuque, Iowa. WHEREAS, City proposes to construct certain street and streetscape improvements (the Improvements) in said City; and WHEREAS, Owner desires that the Improvements be constructed to benefit its properties and that special assessments be levied against the Property, the general description and location of the Improvements being as follows: Paving and streetscape of Washington Street from 9th to 11th Streets, 10th Street from Elm to Jackson Street, and Jackson Street from 7 to 11 Streets. The streets and streetscapes will be reconstructed according to the Historic Millwork District Master Plan adopted by Resolution 79 -09 on February 16, 2009. NOW, THEREFORE, BE IT AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS: As soon as practicable City shall have the right to cause the above described Improvements to be constructed in accordance with such plans and specifications as it shall deem appropriate. The construction of the Improvements shall be under the supervision of an engineer to be selected by City (the Engineer). For the purpose of this Agreement, City may elect to enter into contracts for the construction of the Improvements as a part of any contract for a public improvement project entered into prior to the receipt of this instrument as authorized by Section 384.41(2) of the Code of Iowa. In consideration of the construction of the Improvements, Owner hereby waives the public hearing on the adoption of the resolution of necessity and the mailing and publication of notice thereof, and all other legal formalities of whatsoever kind or character required by the laws of Iowa to be observed by cities in the construction of the Improvements where the expense of such Improvements is to be assessed against the Property. Owner expressly waives each and every question of jurisdiction, the intention of the Owner being to authorize and direct City to construct the Improvements without requiring any of the formalities or legal proceedings required of cities by the laws of Iowa. It is further agreed that when the Improvements have been constructed in accordance with the plans and specifications, City may make assessments against the Property for the entire cost of the construction of the Improvements, including the cost of engineering, supervision, preparation of assessment schedule, and a ten percent Default and Deficiency Fund as authorized by Section 384.44, Code of Iowa, and that such assessments so made shall be a lien upon the Property; provided , however, that the amount to be so assessed shall not exceed the amount set forth below, and Owner hereby agrees to pay the amount as follows: Private Street Donation Assessment Public Street Assessment Private Sanitary Sewer Assessment Private Water Service Assessment Total Assessment $132,481.00 $17,618.49 $2,000.00 $10,000.00 $162,099.49 This amount shall be assessed against the Property, and the assessment shall have the same legal force and effect as if all the legal formalities provided by law in such cases had been fully and faithfully performed and observed. Owner hereby expressly waives every objection to the assessment, any limitation of the amount thereof as a percentage of valuation and any right to defer or postpone payment of the assessment. The assessment shall be paid by Owner within the time provided by statute for the payment of special assessments for such Improvements. The amount and proportion of the cost of the Improvements to be paid by Owner shall be ascertained and determined by the Engineer and by it reported to the City Council which shall make such changes or alterations as it may require, and when the assessments are finally passed by the City Council and by it levied, they shall constitute the assessments against the Property. Notwithstanding the foregoing or anything in this Agreement to the contrary, it is recognized that Owner and City are parties to a Development Agreement requiring, among other things, Owner to construct certain Minimum Improvements (as defined in the Development Agreement) on the Property made subject to this Agreement. In recognition thereof, City agrees that so long as Owner timely completes the construction of the required Minimum Improvements under the Development Agreement and is not otherwise in default under the Development Agreement, as determined by City in its sole discretion, the final assessment to be levied against the Property in respect of the Improvements shall be reduced by the terms specified in the Development Agreement. Owner hereby authorizes the City Council to pass any Resolution requisite or necessary to order and construct the Improvements, to provide for the construction of the Improvements and to make the assessments herein provided for, without further notice to Owner, , and any such Resolution may contain recitals that the Improvements are ordered or made by the City Council without petition of Owner, without in any way qualifying this Petition or releasing Owner from its obligation to pay the assessments levied against the Property for the cost of the Improvements and to issue improvement bonds or other obligations payable out of the assessments. Owner warrants that the Property is free and clear of all liens and encumbrances other than for ordinary taxes, except for such liens as are held by lienholders hereinafter listed and designated as signers of this Agreement (Lienholders), who by execution of this Agreement consent to the subordination of their liens to the special assessment liens herein described. Owner further agrees to subordinate the sale of any part of the Property to the terms of this Agreement, and, upon failure to do so, to pay the full amount of the assessment on demand. Each Lienholder designated below, by execution of this Agreement, agrees and consents that its lien or liens shall be subordinated to the lien of the assessments levied pursuant hereto. Owner agrees that this Agreement shall be effective and binding from and after the approval hereof by resolution of the City Council. ATTEST: By: Dated this day of , 2010. By: Jeanne F. Schneider, City Clerk, CMC CITY OF DBUQUE, IOWA / , Roy b. B41, Mayor Owner: Wilmac Property Company Legal description of property to be assessed (the Property): Lot 1 Wilmac Place in the City of Dubuque, Iowa. The undersigned Owner and Lienholder agree to the terms of the attached Petition and Waiver Agreement and agree to be bound thereby. WILMAC PROPERTY COMPANY By: Date: A , 2010 Its: P2 &41; WITNESS: LIENHOLDER: /A By: Printed Name: Its: Company: WITNESS: SIGNATURE PAGE TO PETITION & WAIVER AGREEMENT PARCEL A City Lot 505 A except the easterly 284 feet thereof, in the City of Dubuque, Iowa, according to the recorded Plat thereof. Subject to easements of record. SINCE NOVEMBER 1, 1838 (date of the United States Commissioners' Plat of the Town of Dubuque, Iowa.) PARCEL B In -Lots 391, 392, 393, 425, and 426; City Lot 389 A; In -Lot 390, ENTeBLIND SOCIETY, INC., A conveyed to the Instrument No. 9985-77, records INDEPENDENT of Dubuque County, Iowa; In -Lot 427, except the portion thereof conveyed R ELE SUPPLY INC., Instrument No. 13687-77, Iowa; according to the United States Commissioners' Plat of the Survey of the Town of Dubuque, Iowa, and the respective recorded Plata thereof. Subject to easements of record. SINCE JUNE 4, 1977, 8 A.M. (date of Certification of Prefixed Abstract of Title.) PARCEL C In -Lots 394 395, 396, 397, 398, 420, 421,422, City Lot 39 A; in the City of Dubuque, Iowa, according to missioners' Plat of the Survey of the Town the recorded Plat thereof. EXHIBIT I_____4____ 423, and 424; the United States Com- of Dubuque, Iowa, and Prepared by: David J. Heiar, ED Director, 50 West 13 Street, Dubuque IA 52001 563 589 -4393 Return to: Jeanne Schneider, City Clerk, 50 West 13 Street, Dubuque IA 52001 563 589 -4121 RESOLUTION NO. RESOLUTION APPROVING THE PETITION AND WAIVER AGREEMENT WITH MID AMERICAN HOLDINGS, LLC. Whereas, the City of Dubuque has accepted Final Plats dedicating right -of -way for public streets and utilities; and Whereas, upon said Final Plat appears streets to be known as East 10 Street and Washington Street, together with certain public easements, which the owner, by said Final Plat, has dedicated to the public forever; and Whereas, the City of Dubuque intends to construct public improvements that are in the best interest of the City on these streets, which improvements shall be constructed at such times and in accordance with the development agreements to be entered into with the adjacent property owners; and Whereas, the adjoining property owners have agreed to reimburse the City for said improvements should they default in making building improvements as identified in a separate development agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque will make improvements to the platted Washington Street and East 10 Street areas in the Historic Millwork District. Attest: Section 2. That the Petition and Waiver Agreement with Mid America Holdings, LLC. is hereby approved and the Mayor and City Clerk are hereby authorized and directed to endorse the approval of the City of Dubuque, Iowa, upon said agreement. Passed, approved and adopted this 16 day of August, 2010. Jeanne F. Schneider, City Clerk F: \USERS \Eton Dev \Warehouse District \Streets\20100811 Resolution Approv Petition & Waiver -Mid America.doc ,, D. Buol, Mayor PETITION AND WAIVER AGREEMENT THIS PETITION AND WAIVER AGREEMENT (Agreement) is made and entered into by and between the City of Dubuque, Iowa (City) and Mid America Holdings, LLC. (Owner). WITNESSETH: WHEREAS, Owner owns the following property: Lot 1 City Center Place #2 in the City of Dubuque, Iowa (the Property); and WHEREAS, City proposes to construct certain street and streetscape improvements (the Improvements) in said City; and WHEREAS, Owner desires that the Improvements be constructed to benefit its properties and that special assessments be levied against the Property, the general description and location of the Improvements being as follows: Paving and streetscape of Washington Street from 9th to 11th Streets, 10th Street from Elm to Jackson Street, and Jackson Street from 7 to 11 Streets. The streets and streetscapes will be reconstructed according to the Historic Millwork District Master Plan adopted by Resolution 79 -09 on February 16, 2009. NOW, THEREFORE, BE IT AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS: As soon as practicable City shall have the right to cause the above described Improvements to be constructed in accordance with such plans and specifications as it shall deem appropriate. The construction of the Improvements shall be under the supervision of an engineer to be selected by City (the Engineer). For the purpose of this Agreement, City may elect to enter into contracts for the construction of the Improvements as a part of any contract for a public improvement project entered into prior to the receipt of this instrument as authorized by Section 384.41(2) of the Code of Iowa. In consideration of the construction of the Improvements, Owner hereby waives the public hearing on the adoption of the resolution of necessity and the mailing and publication of notice thereof, and all other legal formalities of whatsoever kind or character required by the laws of Iowa to be observed by cities in the construction of the Improvements where the expense of such Improvements is to be assessed against the Property. Owner expressly waives each and every question of jurisdiction, the intention of the Owner being to authorize and direct City to construct the Improvements without requiring any of the formalities or legal proceedings required of cities by the laws of Iowa. It is further agreed that when the Improvements have been constructed in accordance with the plans and specifications, City may make assessments against the Property for the entire cost of the construction of the Improvements, including the cost of engineering, supervision, preparation of assessment schedule, and a ten percent Default and Deficiency Fund as authorized by Section 384.44, Code of Iowa, and that such assessments so made shall be a lien upon the Property; provided , however, that the amount to be so assessed shall not exceed the amount set forth below, and Owner hereby agrees to pay the amount as follows: Private Street Donation Assessment Public Street Assessment Private Sanitary Sewer Assessment Private Water Service Assessment Total Assessment $496,360.16 $0.00 $2,500.00 $15,000.00 $513,860.16 This amount shall be assessed against the Property, and the assessment shall have the same legal force and effect as if all the legal formalities provided by law in such cases had been fully and faithfully performed and observed. Owner hereby expressly waives every objection to the assessment, any limitation of the amount thereof as a percentage of valuation and any right to defer or postpone payment of the assessment. The assessment shall be paid by Owner within the time provided by statute for the payment of special assessments for such Improvements. The amount and proportion of the cost of the Improvements to be paid by Owner shall be ascertained and determined by the Engineer and by it reported to the City Council which shall make such changes or alterations as it may require, and when the assessments are finally passed by the City Council and by it levied, they shall constitute the assessments against the Property. Notwithstanding the foregoing or anything in this Agreement to the contrary, it is recognized that Owner and City are parties to a Development Agreement requiring, among other things, Owner to construct certain Minimum Improvements (as defined in the Development Agreement) on the Property made subject to this Agreement. In recognition thereof, City agrees that so long as Owner timely completes the construction of the required Minimum Improvements under the Development Agreement and is not otherwise in default under the Development Agreement, as determined by City in its sole discretion, the final assessment to be levied against the Property in respect of the Improvements shall be reduced by the terms specified in the Development Agreement. Owner hereby authorizes the City Council to pass any Resolution requisite or necessary to order and construct the Improvements, to provide for the construction of the Improvements and to make the assessments herein provided for, without further notice to Owner, , and any such Resolution may contain recitals that the Improvements are ordered or made by the City Council without petition of Owner, without in any way qualifying this Petition or releasing Owner from its obligation to pay the assessments levied against the Property for the cost of the Improvements and to issue improvement bonds or other obligations payable out of the assessments. Owner warrants that the Property is free and clear of all liens and encumbrances other than for ordinary taxes, except for such liens as are held by lienholders hereinafter listed and designated as signers of this Agreement (Lienholders), who by execution of this Agreement consent to the subordination of their liens to the special assessment liens herein described. Owner further agrees to subordinate the sale of any part of the Property to the terms of this Agreement, and, upon failure to do so, to pay the full amount of the assessment on demand. Each Lienholder designated below, by execution of this Agreement, agrees and consents that its lien or liens shall be subordinated to the lien of the assessments levied pursuant hereto. Owner agrees that this Agreement shall be effective and binding from and after the approval hereof by resolution of the City Council. ATTEST: By: Dated this day of , 2010. By: Jeanne F. Schneider, City Clerk, CMC CITY OF CIJBUQUE, IOWA Owner: Legal description of property to be assessed (the Property): Lot 1 City Center Place #2 in the City of Dubuque, Iowa The undersigned Owner and Lienholder agree to the terms of the attached Petition and Waiver Agreement and agree to be bound thereby. MID AMERICA HOLDINGS, LLC By: Its: WITNESS: LIENHOLDER: SIGNATURE PAGE TO PETITION & WAIVER AGREEMENT Mid America Holdings, LLC By: Printed Name: Its: Company: WITNESS: Date: U , 2010 PETITION AND WAIVER AGREEMENT THIS PETITION AND WAIVER AGREEMENT (Agreement) is made and entered into by and between the City of Dubuque, Iowa (City) and Mid America Holdings, LLC. (Owner). WITNESSETH: WHEREAS, Owner owns the following property: Lot 1 City Center Place #2 in the City of Dubuque, Iowa (the Property); and WHEREAS, City proposes to construct certain street and streetscape improvements (the Improvements) in said City; and WHEREAS, Owner desires that the Improvements be constructed to benefit its properties and that special assessments be levied against the Property, the general description and location of the Improvements being as follows: Paving and streetscape of Washington Street from 9th to 11th Streets, 10th Street from Elm to Jackson Street, and Jackson Street from 7 to 11 Streets. The streets and streetscapes will be reconstructed according to the Historic Millwork District Master Plan adopted by Resolution 79 -09 on February 16, 2009. NOW, THEREFORE, BE IT AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS: As soon as practicable City shall have the right to cause the above described Improvements to be constructed in accordance with such plans and specifications as it shall deem appropriate. The construction of the Improvements shall be under the supervision of an engineer to be selected by City (the Engineer). For the purpose of this Agreement, City may elect to enter into contracts for the construction of the Improvements as a part of any contract for a public improvement project entered into prior to the receipt of this instrument as authorized by Section 384.41(2) of the Code of Iowa. In consideration of the construction of the Improvements, Owner hereby waives the public hearing on the adoption of the resolution of necessity and the mailing and publication of notice thereof, and all other legal formalities of whatsoever kind or character required by the laws of Iowa to be observed by cities in the construction of the Improvements where the expense of such Improvements is to be assessed against the Property. Owner expressly waives each and every question of jurisdiction, the intention of the Owner being to authorize and direct City to construct the Improvements without requiring any of the formalities or legal proceedings required of cities by the laws of Iowa. It is further agreed that when the Improvements have been constructed in accordance with the plans and specifications, City may make assessments against the Property for the entire cost of the construction of the Improvements, including the cost of engineering, supervision, preparation of assessment schedule, and a ten percent Default and Deficiency Fund as authorized by Section 384.44, Code of Iowa, and that such assessments so made shall be a lien upon the Property; provided , however, that the amount to be so assessed shall not exceed the amount set forth below, and Owner hereby agrees to pay the amount as follows: Private Street Donation Assessment Public Street Assessment Private Sanitary Sewer Assessment Private Water Service Assessment Total Assessment $496,360.16 $0.00 $2,500.00 $15,000.00 $513,860.16 This amount shall be assessed against the Property, and the assessment shall have the same legal force and effect as if all the legal formalities provided by law in such cases had been fully and faithfully performed and observed. Owner hereby expressly waives every objection to the assessment, any limitation of the amount thereof as a percentage of valuation and any right to defer or postpone payment of the assessment. The assessment shall be paid by Owner within the time provided by statute for the payment of special assessments for such Improvements. The amount and proportion of the cost of the Improvements to be paid by Owner shall be ascertained and determined by the Engineer and by it reported to the City Council which shall make such changes or alterations as it may require, and when the assessments are finally passed by the City Council and by it levied, they shall constitute the assessments against the Property. Notwithstanding the foregoing or anything in this Agreement to the contrary, it is recognized that Owner and City are parties to a Development Agreement requiring, among other things, Owner to construct certain Minimum Improvements (as defined in the Development Agreement) on the Property made subject to this Agreement. In recognition thereof, City agrees that so long as Owner timely completes the construction of the required Minimum Improvements under the Development Agreement and is not otherwise in default under the Development Agreement, as determined by City in its sole discretion, the final assessment to be levied against the Property in respect of the Improvements shall be reduced by the terms specified in the Development Agreement. Owner hereby authorizes the City Council to pass any Resolution requisite or necessary to order and construct the Improvements, to provide for the construction of the Improvements and to make the assessments herein provided for, without further notice to Owner, , and any such Resolution may contain recitals that the Improvements are ordered or made by the City Council without petition of Owner, without in any way qualifying this Petition or releasing Owner from its obligation to pay the assessments levied against the Property for the cost of the Improvements and to issue improvement bonds or other obligations payable out of the assessments. Owner warrants that the Property is free and clear of all liens and encumbrances other than for ordinary taxes, except for such liens as are held by Iienholders hereinafter listed and designated as signers of this Agreement (Lienholders), who by execution of this Agreement consent to the subordination of their liens to the special assessment liens herein described. Owner further agrees to subordinate the sale of any part of the Property to the terms of this Agreement, and, upon failure to do so, to pay the full amount of the assessment on demand. Each Lienholder designated below, by execution of this Agreement, agrees and consents that its lien or liens shall be subordinated to the lien of the assessments levied pursuant hereto. Owner agrees that this Agreement shall be effective and binding from and after the approval hereof by resolution of the City Council. ATTEST: By: Dated this day of , 2010. By: Jeanne F. Schneider, City Clerk, CMC CITY OF DUBUQUE, IOWA Roy D. B oI, Mayor Owner: Mid America Holdings, LLC Legal description of property to be assessed (the Property): Lot 1 City Center Place #2 in the City of Dubuque, Iowa The undersigned Owner and Lienholder agree to the terms of the attached Petition and Waiver Agreement and agree to be bound thereby. MID AMERICA HOLDINGS, LLC BY Li- vim- D a t e: c/ +!v , 2010 Its: 14 _ -- wv 2 . b0 rt WITNESS: ,.-,cam C/4,- / -:/--- LIENHOLDER: SIGNATURE PAGE TO PETITION & WAIVER AGREEMENT By: Printed Name: Its: Company: WITNESS: