Dubuque Packing Company Disposition to Mihalakis/Billmeyer
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RESOLUTION NO. ~-99
RESOLUTION DETERMINING THAT THE PROPOSAL OF JOHN P.
MIHALAKIS AND RICHARD L. BILLMEYER IS IN COMPLIANCE WITH THE
TERMS OF OFFERING FOR DISPOSITION OF CERTAIN PROPERTY IN
THE KERPER BOULEVARD INDUSTRIAL PARK ECONOMIC
DEVELOPMENT DISTRICT
Whereas, this Council, by Resolution No. 11-99 dated January 4, 1999, nominated the
City Clerk as agent of the City of Dubuque, Iowa, to receive and open on February 15, 1999,
at 10:00 a.m. proposals in competition to the proposal of John P. Mihalakis and Richard L.
Billmeyer referred to in said resolution for the disposition of the following described real
property for development only in accordance with the terms and conditions set forth in said
resolution, to wit:
Part of Lot 4 FDL Addition and Part of Lot 1, Block 5 Dubuque Packing Company
Addition, all in the City of Dubuque, Iowa
Containing 5.89 acres, more or less; and
Whereas, the City Clerk has reported to this Council that no qualified, competing
proposal was submitted.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the report of the City Clerk that no qualified competing proposal was
submitted by 10:00 a.m. on February 15, 1999, for the development of the above-described
real property be received, filed and adopted.
Section 2. That it is hereby determined that the proposal of John P. Mihalakis and
Richard L. Billmeyer for disposition and development of said property is the only proposal
which satisfies the terms and conditions of the offering set forth in Resolution NO.11-99
adopted by this Council on January 4, 1999.
Passed, approved and adopted this 15th day of February, 1999.
Attest:
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F:\USERS\JBURKE\BURKE\DOCS\ECDEV\EAGLEWIN\MBCOMPET.RES
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 11, 1999
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Approving Mihalakis / Billmeyer Agreement
To facilitate the Eagle Window development, Community and Economic Development
Director Jim Burke is recommending approval of a development agreement and a land
exchange with John Mihalakis and Richard Billmeyer.
The key elements of the agreement are:
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The property will be conveyed as a tax free exchange of parcels of equal value.
2. The property will be conveyed by warranty deed on or before June 30, 1999 (subject
to closing with Eagle Window and Door).
3. The City will excavate and fill a portion of the exchanged parcel to meet certain
development standards.
4. The City will construct a public street providing access to the exchanged parcel by
December 15, 1999.
5. The City will provide other public infrastructure to the site and will assist developers
with the extension of a storm sewer along Kerper Boulevard through a payment of
$20,000 on completion of work.
6. The developers agree to operate any use on the property within enclosed buildings
with no exterior storage allowed.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen E ~
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Attachment
cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
Jim Burke, Community and Economic Development Director
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 15, 1999
TO:
Honorable Mayor and City Council Members
FROM:
Mary A. Davis, City Clerk
SUBJ:
Report on Competing Proposals
Disposition of Property in Kerper Boulevard Industrial Park Economic
Development District to Mihalakis and Billmeyer
The City Council, by Resolution No. 11-99, nominated the City Clerk, to receive and open on
February 15, 1999, at 10:00 a.m. proposals in competition to the proposal of John Mihalakis
and Richard Billmeyer for the exchange and development of certain property in the Kerper
Boulevard Industrial Park.
By this memorandum, I am reporting to the City Council that no competing proposal was
submitted by the deadline for submission set forth by Resolution No. 11-99.
Respectfully submitted,
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Mari A. Davis
City Clerk
cc: Michael Van Milligen, City Manager
Barry Lindahl, Corporation Counsel
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CITY OF DUBUQUE, IOWA
MEMORANDUM
February 10, 1999
TO:
~rael V ~/~ill.igen, City Manager
l~! L \.. ~vvv ~.I)..'^-'{.,-
Jpmes Burke, Community and Economic Development Director
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FROM:
SUBJ:
Resolutions Approving Mihalakis / Billmeyer Agreement
INTRODUCTION
This memorandum presents for City Council adoption a pair of resolutions approving a
development agreement with John Mihalakis and Richard Billmeyer. The Agreement provides
for the exchange and development of certain property in the Kerper Boulevard Industrial Park.
DISCUSSION
On January 4, the City Council adopted Resolution 11-99 which established terms and conditions
of an offering of urban renewal land and set a special public hearing on the proposal of Mihalakis
and Billmeyer to exchange with the City of Dubuque certain property in the Kerper Boulevard
Industrial Park. The hearing is set for Monday, February 15.
Following the January 4 meeting, the full text of the Council's resolution was published in the
Telegraph Herald to fulfill the requirement that disposition of urban renewal land follow a
reasonable competitive procedure. The resolution states that the City has received a proposal
from Mihalakis and Billmeyer and intends to approve it unless another qualified, competing
proposal is submitted by February 15. The requirements for proposals and a procedure for
selection are set out in the resolution.
Presuming that the Mihalakis and Billmeyer proposal will be the only qualified proposal to be
submitted, we have prepared two resolutions for consideration by the City Council at the hearing.
The first resolution finds that no qualified, competing proposal was submitted and that the
Mihalakis and Billmeyer proposal satisfies the terms of the offering. The second resolution
approves the Development Agreement between the City and Mihalakis and Billmeyer and
authorizes its execution and implementation.
RECOMMENDATION
I recommend that the City Council adopt the attached resolutions approving the exchange of land
in the Kerper Boulevard Industrial Park with John Mihalakis and Richard Billmeyer. In the
unlikely event that another qualified proposal is submitted, the Council should follow the
procedure described in Sections 18 through 20 of Resolution 11-99.
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Prepared by: JAMES D. BURKE 50 W. 13th Street Dubuque. Iowa 52001 (19)589-4393
MEMORANDUM OF AGREEMENT
An Agreement for the Exchange of Land between the City of Dubuque, Iowa, an Iowa
Municipal Corporation, of 50 W. 13th Street, Dubuque, Iowa; and John P. Mihalakis and Richard
L. Billmeyer, of2095 Kerper Boulevard, Dubuque, Iowa, was made regarding the following
described premises:
Part of Lot 1 FDL First Addition; Lot 2 FDL First Addition; part of Lot 4 FDL First
Addition; and, part of Lot 1, Block 5 Dubuque Packing Company Addition, all in the City
of Dubuque, Dubuque County, Iowa.
The Agreement for Exchange of Land was signed on the 15th day of February, 1999 and
contained covenants, conditions and restrictions concerning the sale and use of said premises.
This Memorandum of Agreement is recorded for the purpose of constructive notice. In
the event of any conflict between the provisions of this Memorandum and the Agreement for
Land Exchange itself, executed by the parties, the terms and provisions of the Agreement for
Land Exchange shall prevail. A complete counterpart of the Agreement for Land Exchange,
together with any amendments thereto, is in the possession of the City of Dubuque and may be
examined at its offices as above provided.
DATED this 26th day of March ,1999
DEVELOPERS
CITY OF DUBUQUE, IOWA
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By:
t John P. Mihalakis
BY:~~~ Il La~k.4
Letha A. Mihalakis
By:~4~
Richard L. Billmeyer .
BY:~~~J.e~1P-
Cynthia A. Billmeyer
By:
By:
On this 26th day of March~ , 1999, before me, a Notary Public in and for
the State of Iowa, in and fot said county, personally appeared Terrance M. Duggan and Mary A.
Davis, to me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and existing
under the laws of the State of Iowa, and that the seal affixed to said instrument is the seal of said
Municipal Corporation and that said instrument was signed and sealed on behalf of said
Municipal corporation by authority and resolution of its City Council and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipal CorpO,J;ati9!l.PY
it voluntarily executed.. :""..." . - .
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STATE OF IOWA
ss:
DUBUQUE, COUNTY
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On this I K day of m ~ , 1999, before me, a Notary Public in and
for the State ofIowa, in and for said county, personally appeared John P. Mihalakis, Letha A.
Mihalakis, Richard L. Billmeyer and Cynthia A. Billmeyer, to me personally known, who being
by me duly sworn did say that said instrument was signed by them and that they acknowledged
the execution of said instrument to be their voluntary act and deed.
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otary Public, State ofIowa
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F:\USERS\lDURKElBURKEIDOCSIECDEVlEAGLEWIN\MBMEMAGR. WPD
March 16, 1999 (I 1:43am)
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RESOLUTION NO. 84 -99
RESOLUTION ACCEPTING THE PROPOSAL FOR DISPOSITION AND
PRIVATE DEVELOPMENT OF CERTAIN PROPERTY IN THE KERPER
BOULEVARD INDUSTRIAL PARK ECONOMIC DEVELOPMENT
DISTRICT, APPROVING AGREEMENT FOR SAME, AND AUTHORIZING
ACTIONS TO IMPLEMENT SAID AGREEMENT
Whereas, this Council, by Resolution No. 11-99, dated January 4, 1999:
1. Adopted terms and conditions for offering the following described property
in the Kerper Boulevard Industrial Park Economic Development District for exchange and
private development, to wit:
Part of Lot 4 FDL First Addition and Part of Lot 1, Block 5 Dubuque packing
Company Addition, all in the City of Dubuque, Iowa
2. Determined that the proposal submitted by John P. Mihalakis and Richard
L. Billmeyer satisfies the requirements of said offering;
3. Declared its intent to accept said proposal and to enter into a
Development Agreement by and between the City of Dubuque and John P. Mihalakis
and Richard L. Billmeyer in the event no other qualified proposals were timely submitted
for development of said property; and
4. Invited competing proposals which met the terms and conditions of said
offering to be submitted to the City Clerk on or before 10:00 a.m., February 15, 1999;
and;
Whereas, the text of said Resolution was published as the official notice of this
offering and of the intent of the City of Dubuque, in the event no other qualified
proposals were timely submitted, to enter into a Development Agreement by and
between the City of Dubuque and John P. Mihalakis and Richard L. Billmeyer; and
Whereas, by separate Resolution of this date, this Council has received and
approved as its own the report of the City Clerk that no other qualified proposal was
received; and
Whereas, it is the determination of this Council that acceptance of the proposal
for exchange and development of the disposition parcel by John P. Mihalakis and
Richard L. Billmeyer, according to the terms and conditions set out in the attached is in
the public interest of the citizens of the city, and is consistent with the City's Urban
Renewal Plan for the Kerper Boulevard Industrial Park Economic Development District.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and between the
City of Dubuque and John P. Mihalakis and Richard L. Billmeyer is in the public interest
of the citizens of the City of Dubuque and in furtherance of the City's Urban Renewal
Project, and is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute said
Agreement on behalf of the City and the City Clerk is authorized and directed to attest
to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Agreement as herein approved.
Passed, approved and adopted this 15th day of February, 1999.
Terrance M. Duggan,
Attest:
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~ary A. Dav(s, City Clerk !/
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F:\USERS\JGLEw\CQUNCIL \R84-99.WPD
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AGREEMENT FOR THE EXCHANGE OF LAND
This AGREEMENT is made and entered into this 15th day of February, 1999, by and
between JOHN P. MIHALAKIS and RICHARD L. BILLMEYER, and the CITY OF DUBUQUE, IOWA, a
municipal corporation.
Section 1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
1.1 "Developers" shall mean John P. Mihalakis and Richard L. Billmeyer.
1.2 "City" shall mean the City of Dubuque, Iowa
1.3 "Hazardous Substance" shall mean any substance that is toxic, ignitable, reactive or
corrosive or that is identified or defined as hazardous by any local government, the state of Iowa, or
the United States government as such identification or definition may be amended during the term
of this agreement. The term includes, but is not limited to, all hazardous wastes, hazardous
materials, regulated substances, asbestos, polychlorinated biphenyls (PCB), urea formaldehyde,
flammable explosives, radioactive materials, solid waste, oil, petroleum, and petroleum products.
1 .4 "Closing Date" shall mean the date for the exchange of deeds which shall take
place upon the satisfaction of all conditions of this agreement but no later than the date of closing
of the Eagle Agreement with the City.
1 .5 "Parcel A" shall mean the real estate owned by Developers and described in Exhibit
A.
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1.6 "Parcel B" shall mean the real estate owned by City and proposed for acquisition by
City and described in Exhibit B.
1 .7 "City Improvements" shall mean the excavation and filling of a portion of Parcel B
and the construction of a proposed City street, including sanitary sewer and water mains to be
constructed at the expense of City as described in Section 6 hereof.
Section 2.
2.1
PRELIMINARY ACTIONS
Environmental Review. City shall furnish Developers with an environmental audit
report from an engineering or other firm acceptable to Developers which shall report that, after
appropriate investigation by such firm, there is no apparent or likely contamination of the City's land
to be conveyed to Developers or of the Seller's land to be conveyed to City by any Hazardous
Substance.
2.2 Timina and Costs. City shall obtain the environmental audit report within twenty
days after the date hereof. The cost of obtaining the environmental audit shall be paid by City.
2.3 Riaht to Withdraw UDon Review. In the event any contamination by a Hazardous
Substance is identified or suspected as a result of said environmental audit, Developers or City may,
at their discretion, revoke this contract by written notice to the other within fourteen (14) working
days after receipt of the report. Said revocation shall relate back to the moment of acceptance.
Section 3.
CONVEYANCE TO CITY
3.1 Deliverv of Deed. On the Closing Date, Developers shall convey title to Parcel A
to City subject only to easements, restrictions, conditions and covenants of record.
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3.2 "As is" Condition. Developers are transferring the real estate to City, in its" AS
IS" and "WITH All FAULTS" condition and Developers have not made and will not make any
warranties or representations with respect to the physical condition of the real estate. City agrees
that it has been given full and ample opportunity to inspect the real estate and that in acquiring the
real estate City shall be relying totally on its own investigations and inspections. City will, at its
own expense, and based on its own investigation satisfy itself as to any environmental questions.
Developers make no representations of any type relative to the environmental condition of the land.
3.3 Continuation of Abstract. Developers shall furnish and deliver to the City of
Dubuque an abstract of title continued through the date of this Agreement showing merchantable
title to Parcel A in Developers. City agrees to pay the cost of abstract continuation. Developers
agree to obtain court approval of this contract, if requested by City, if title to the real estate
becomes an asset of any estate, trust, conservatorship or guardianship.
3.4 Pavment of Taxes and Assessments. Developers agree to pay all liens and
assessments against the real estate, including all taxes and special assessments payable until
surrender of possession as required by Section 427.2 of the Code of Iowa.
3.5 Form of Deed. Developers shall deliver to City Developers' duly recordable Warranty
Deed to Parcel A in a form satisfactory to City.
3.6 Pavment of Survev and Plattina Exoenses. All expenses in connection with the
surveying, platting, recording of Parcel A shall be paid by City.
Section 4.
CONVEYANCE TO DEVELOPERS
4.1 Deliverv of Deed. On the Closing Date, City shall convey title to Parcel 8 to
Developers subject only to all easements, restrictions, conditions and covenants of record.
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4.2 Subiect to Citv's acauisition of all reauired Darcels. It is hereby acknowledged by
the parties that a portion of the property included in Parcel B is not owned by City at the time of
this Agreement. City shall use its best efforts, including the exercise of eminent domain powers, if
necessary, to acquire that portion for the purpose of conveying the same to Developers. This
Agreement shall be subject to the City's acquisition of all property included in Parcel B.
4.3 "As is" Condition. City is transferring Parcel B to Developers, in its "AS IS" and
"WITH ALL FAULTS" condition and City has not made and will not make any warranties or
representations with respect to the physical condition of Parcel B. Developers agree that they have
been given full and ample opportunity to inspect Parcel B and that in acquiring Parcel B Developers
shall be relying totally on their own investigations and inspections. Except a provided in Section 2
Developers will, at their own expense, and based on its own investigation satisfy itself as to any
environmental questions. City makes no representations of any type relative to the environmental
condition of the land.
4.4 Continuation of Abstract. City shall furnish and deliver to Developers an abstract of
title continued through the date of this Agreement showing merchantable title to Parcel B in City.
City shall pay the cost of abstract continuation.
4.5 Pavment of Taxes and Assessments. City agrees to pay all liens and assessments
against the real estate, including all taxes and special assessments payable until surrender of
possession as required by Section 427.2 of the Code of Iowa.
4.6 Form of Deed. City shall deliver to Developers City's duly recordable Warranty Deed
to Parcel B in a form satisfactory to Developers. The deed to Developers shall be an undivided
3/5ths to John P. Mihalakis and an undivided 2/5ths to Richard L. Billmeyer, as tenants in common.
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4.7 Pavment of Survev and Plattina Exoenses. All expenses in connection with the
surveying, platting, recording of Parcel S shall be paid by City.
Section 5.
TAX-FREE EXCHANGE
5.1 City and Developers agree that the respective values of the lands to be exchanged
under this contract are equal. .
5.2 City and Developers agree that both are entering into the Agreement on an arms-
length basis and are not otherwise compelled to enter into the same.
5.3 This Agreement is intended to qualify as a tax free exchange of lands to Developers
and any provision of this contract that is inconsistent with that intention shall be of no force or
effect.
Section 6.
CITY IMPROVEMENTS
6.1 Excavation and Filina of Parcel S. As soon as weather and soil conditions permit,
City agrees at its expense to excavate and fill in accordance with generally accepted engineering
practices, a portion of Parcel S. As part of the excavation, City shall remove the silt and muck so
as to prepare the real estate for filling and building construction. The portion of Parcel S to be
excavated and filled with sand shall be 200 feet in depth and not less than 612 feet in length,
parallel and adjacent to the full length of the new public street to be constructed as shown by
Exhibit "S". Upon completion of excavation as aforesaid, City shall fill the excavated area with sand
to the depth and of the same quality as the filling performed by City on the land to be conveyed to
Eagle Window & Door Company. The length of the 200 foot wide strip to be excavated and filled
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by City shall be not less than 61 2 feet in length and may be more depending upon exact
measurement after construction of the City street. All of the excavation and filling work and street
construction work described in this agreement shall be at the expense of City and at no cost to
Developers. The excavation and filling by City shall be in accordance with Kerper Blvd. Industrial
Park Site Grading and Storm Sewer Plan prepared by IIW Engineers and Surveyors dated July 11,
1997. Developers agree that City will be unable to do the excavating and filling work until weather
and ground conditions permit and that there could be a delay of 1 to 2 years in completing the
work. However, City agrees to do this work as soon as the conditions permit. City agrees to, at its
expense, cover the area of Parcel B north or the approximate top of slope but not included in the
portion to be excavated and filled as previously described in this paragraph with 2 feet of sand.
This provision relates to the muck and mud which is not going to be removed by City. This work
will be completed by City as soon as ground and weather conditions permit.
6.2 Construction of Street. City shall construct a public street adjoining the north
boundary of Parcel B as per preliminary plans by IIW Engineers on or before December 15, 1999.
6.3 Construction of Sewer and Water Stub Lines. City further agrees to stub one water
and one sewer line into Parcel B from the water and sewer lines to be constructed by City under the
new City street, so that Developers need not cut into or dig up the new City street when
Developers wish to begin construction on Parcel B.
6.4 Fencler Street Ovemass Construction and Related Actions. As further consideration
for this tax-free exchange of lands, City agrees as follows:
6.5 Extension of Kemer Boulevard Storm Sewer Trunk Line. City will pay to
Developers the sum of $20,000.00 to assist Developers in extending the Kerper Boulevard storm
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sewer trunk line adjacent to Kerper Boulevard. Developers will be responsible for the construction
of the storm sewer trunk line. The $20,000.00 City payment will be made to Developers upon
completion of the work by Developers' contractor.
6.6 Fencler Street Overoass. City has advised Developers that the Fengler Street
overpass bridge will be reconstructed by City. City has further advised Developers that at such time
as the Fengler Street bridge is reconstructed City will close the existing curb cut from Kerper
Boulevard entering Developers' building location at the foot of Fengler Street.
City agrees, however, at the time of rebuilding of the Fengler Street bridge, to open the
Kerper Boulevard median to two lanes of traffic directly opposite Developers' existing southerly
most curb cut entering Developers' parking lot at its current building location so that at no time will
Developers be without access to Kerper Boulevard.
Upon completion of the Fengler Street bridge, City will grant to Developers a right-of-way
easement approximately 24 feet in width (this is an estimate only; City agrees to give Developers
the maximum easement width available after completion of the Fengler Street overpass) measured
from the Northerly side of Developers' building and extending from the intersection of Kerper
Boulevard and Fengler Street along the Northerly side of Developers I building, running the full depth
of Developers' real estate with City retaining the right to come upon the right-of-way for
maintenance work on the Fengler Street bridge and fill. Developers shall also be entitled to use this
right-of-way for parking purposes for Developers and their customers and tenants.
Section 7. USE OF PROPERTY BY DEVELOPERS. Developers agree that the following
conditions shall apply to the development and use of Parcel B:
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7.1 Use of Groundwater Prohibited. The use of groundwater from the property is
prohibited as per the Risk-Based Evaluation for Planning and Development prepared by Terracon and
dated March 16,1998.
7.2 Construction Procedures. All construction activities shall require the implementation
of dust control procedures, address issues of soils removed from excavations for off-property
disposal and include these findings in contractor health and safety plans.
7.3 ODerations Within Enclosed Buildinas. All operations and activities (other than
construction) shall be conducted or maintained within completely enclosed buildings, except for off-
street parking and loading facilities.
7.4 Exterior StoraQe:
No exterior storage shall be permitted on the property other than exterior trash
collection areas as described in Section 7.5.
7.5 Exterior Trash Collection Areas:
(1 ) The storage of trash and debris shall be limited to that produced by the principal
permitted use and accessory uses of the lot.
(2) The ground area coverage of exterior trash collection areas shall be the area
contained inside the required screening and this area shall be a considered a building-related feature
for purposes of calculating total land area coverage.
(3) Exterior trash collection areas shall be located in rear or side yards only.
(4) All exterior trash collection areas and the materials contained therein shall be visually
screened from view. The screening shall be completely opaque fence, wall or other feature not
exceeding a height of 1 0 feet measured from the ground level outside the line of the screen.
Screens built on sloping grades shall be stepped so that their top line shall be horizontal. Exposed
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materials used to construct the opaque screen shall be similar in appearance to materials used for
exterior building walls. All exterior entrances to a screened trash area shall be provided with a gate
or door of similar design to that of the screen.
If a 1 O-foot high screen fails to shield the exterior trash collection area from view from
points inside or outside of the property, evergreen plantings may be required in addition to the
screening. Evergreen plant materials shall be selected and designed so that they will screen the
area from all off-site visibility within five (5) years.
Section 8.
MISCELLANEOUS
8.1 Bindina on Successors. This Agreement shall apply to and bind the legal successors
in interest of the Developers
8.2 Final Aooroval of Citv Council. This Agreement shall be subject to the final
approval by the City Council of the City of Dubuque, Iowa.
8.3 Aareement with Eaale Window and Door. This Agreement shall be subject to
execution of a development agreement between the City and Eagle Window and Door Company
(Eagle Agreement) for the purchase and development of an adjacent parcel in the Kerper Boulevard
Industrial Park Economic Development District. Developers and City aCknowledge that the land sale
contemplated by the Eagle Agreement may not close until June 30, 1999 and that Eagle Window or
its Developer may desire access to the parcels shown on Exhibit "A" prior to such closing.
Developers therefore agree that the City shall have the right to negotiate an agreement with Eagle
Window permitting Eagle Window or its Developer access to the parcels shown on Exhibit "A" prior
to the closing of the Eagle Agreement for site preparation, provided that such agreement shall
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require Eagle Window or its Developer, in the event that the land sale contemplated by the Eagle
Agreement does not close by June 30, 1999, to restore the parcels, by August 1, 1999, to their
condition prior to such site preparation.
8.4 Urban Renewal Reauirements. This Agreement and the disposition of City's real
estate shall be subject to the requirements of Iowa Code Chapter 403.
8.5 Entire Aareement. This Agreement constitutes the entire agreement between City
and Developers and there is no agreement to do or not to do any act or deed except as specifically
provided for herein. Each page and each attachment is by this reference made part hereof and the
entire agreement consists of eleven (11) pages.
8.6 Rescission of Prior Aareement. Upon execution by the parties and approval of this
Agreement by the City Council of the City of Dubuque, Iowa, the previous agreement between the
parties for the exchange of lands dated September 30, 1997, is automatically rescinded. However,
if the agreement between Eagle Manufacturing and its developer and the City of Dubuque does not
close according to the terms of that agreement, the previous agreement referred to in this paragraph
will be reinstated.
8.7 Declaration of Value Exemotion. Parcel A is being acquired for public purpose and
the transfer to City from Developers is exempt from the requirements for the filing of a Declaration
of Value by Section 428A.1 of the Code of Iowa.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its name
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and behalf by its Mayor and attested by its City Clerk, and Developers have caused this Agreement
to be executed in person on or as of the date first above written.
DEVELOPERS
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CITY OF DUBUQUE, IOWA
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AGREEMENT FOR THE EXCHANGE OF lAND
This AGREEMENT is made and entered into this 15th day of February, 1999, by and
between JOHN P. MIHALAKIS and RICHARD L. BILLMEYER, and the CITY OF DUBUQUE, IOWA, a
municipal corporation.
Section 1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
1.1 "Developers" shall mean John P. Mihalakis and Richard L. Billmeyer.
1.2 "City" shall mean the City of Dubuque, Iowa
1.3 "Hazardous Substance" shall mean any substance that is toxic, ignitable, reactive or
corrosive or that is identified or defined as hazardous by any local government, the state of Iowa, or
the United States government as such identification or definition may be amended during the term
of this agreement. The term includes, but is not limited to, all hazardous wastes, hazardous
materials, regulated substances, asbestos, polychlorinated biphenyls (PCB), urea formaldehyde,
flammable explosives, radioactive materials, solid waste, oil, petroleum, and petroleum products.
1 .4 "Closing Date" shall mean the date for the exchange of deeds which shall take
place upon the satisfaction of all conditions of this agreement but no later than the date of closing
of the Eagle Agreement with the City.
1.5 "Parcel A" shall mean the real estate owned by Developers and described in Exhibit
A.
1
1.6 "Parcel a" shall mean the real estate owned by City and proposed for acquisition by
City and described in Exhibit a.
1 .7 "City Improvements" shall mean the excavation and filling of a portion of Parcel a
and the construction of a proposed City street, including sanitary sewer and water mains to be
constructed at the expense of City as described in Section 6 hereof.
Section 2.
PRELIMINARY ACTIONS
2.1 Environmental Review. City shall furnish Developers with an environmental audit
report from an engineering or other firm acceptable to Developers which shall report that, after
appropriate investigation by such firm, there is no apparent or likely contamination of the City's land
to be conveyed to Developers or of the Seller's land to be conveyed to City by any Hazardous
Substance.
2.2 Timina and Costs. City shall obtain the environmental audit report within twenty
days after the date hereof. The cost of obtaining the environmental audit shall be paid by City.
2.3 Riaht to Withdraw unon Review. In the event any contamination by a Hazardous
Substance is identified or suspected as a result of said environmental audit, Developers or City may,
at their discretion, revoke this contract by written notice to the other within fourteen (14) working
days after receipt of the report. Said revocation shall relate back to the moment of acceptance.
Section 3.
CONVEYANCE TO CITY
3.1 Delivervof Deed. On the Closing Date, Developers shall convey title to Parcel A
to City subject only to easements, restrictions, conditions and covenants of record.
2
3.2 "As is" Condition. Developers are transferring the real estate to City, in its" AS
IS" and "WITH ALL FAULTS" condition and Developers have not made and will not make any
warranties or representations with respect to the physical condition of the real estate. City agrees
that it has been given full and ample opportunity to inspect the real estate and that in acquiring the
real estate City shall be relying totally on its own investigations and inspections. City will, at its
own expense, and based on its own investigation satisfy itself as to any environmental questions.
Developers make no representations of any type relative to the environmental condition of the land.
3.3 Continuation of Abstract. Developers shall furnish and deliver to the City of
Dubuque an abstract of title continued through the date of this Agreement showing merchantable
title to Parcel A in Developers. City agrees to pay the cost of abstract continuation. Developers
agree to obtain court approval of this contract, if requested by City, if title to the real estate
becomes an asset of any estate, trust, conservatorship or guardianship.
3.4 Pavment of Taxes and Assessments. Developers agree to pay all liens and
assessments against the real estate, including all taxes and special assessments payable until
surrender of possession as required by Section 427.2 of the Code of Iowa.
3.5 Form of Deed. Developers shall deliver to City Developers' duly recordable Warranty
Deed to Parcel A in a form satisfactory to City.
3.6 Pavment of Survev and Plattina Exoenses. All expenses in connection with the
surveying, platting, recording of Parcel A shall be paid by City.
Section 4.
CONVEYANCE TO DEVELOPERS
4.1 Delivervof Deed. On the Closing Date, City shall convey title to Parcel 8 to
Developers subject only to all easements, restrictions, conditions and covenants of record.
3
4.2 Subiect to Citv's acauisition of all reauired Darcels. It is hereby acknowledged by
the parties that a portion of the property included in Parcel B is not owned by City at the time of
this Agreement. City shall use its best efforts, including the exercise of eminent domain powers, if
necessary, to acquire that portion for the purpose of conveying the same to Developers. This
Agreement shall be subject to the City's acquisition of all property included in Parcel B.
4.3 "As is" Condition. City is transferring Parcel B to Developers, in its" AS IS" and
"WITH ALL FAULTS" condition and City has not made and will not make any warranties or
representations with respect to the physical condition of Parcel B. Developers agree that they have
been given full and ample opportunity to inspect Parcel B and that in acquiring Parcel B Developers
shall be relying totally on their own investigations and inspections. Except a provided in Section 2
Developers will, at their own expense, and based on its own investigation satisfy itself as to any
environmental questions. City makes no representations of any type relative to the environmental
condition of the land.
4.4 Continuation of Abstract. City shall furnish and deliver to Developers an abstract of
title continued through the date of this Agreement showing merchantable title to Parcel B in City.
City shall pay the cost of abstract continuation.
4.5 Pavment of Taxes and Assessments. City agrees to pay all liens and assessments
against the real estate, including all taxes and special assessments payable until surrender of
possession as required by Section 427.2 of the Code of Iowa.
4.6 Form of Deed. City shall deliver to Developers City's duly recordable Warranty Deed
to Parcel B in a form satisfactory to Developers. The deed to Developers shall be an undivided
3/5ths to John P. Mihalakis and an undivided 2/5ths to Richard L. Billmeyer, as tenants in common.
4
4.7 Pavment of Survev and Plattina Exoenses. All expenses in connection with the
surveying, platting, recording of Parcel B shall be paid by City.
Section 5.
TAX-FREE EXCHANGE
5.1 City and Developers agree that the respective values of the lands to be exchanged
under this contract are equal. .
5.2 City and Developers agree that both are entering into the Agreement on an arms-
length basis and are not otherwise compelled to enter into the same.
5.3 This Agreement is intended to qualify as a tax free exchange of lands to Developers
and any provision of this contract that is inconsistent with that intention shall be of no force or
effect.
Section 6.
6.1
CITY IMPROVEMENTS
Excavation and Filina of Parcel B. As soon as weather and soil conditions permit,
City agrees at its expense to excavate and fill in accordance with generally accepted engineering
practices, a portion of Parcel B. As part of the excavation, City shall remove the silt and muck so
as to prepare the real estate for filling and building construction. The portion of Parcel B to be
excavated and filled with sand shall be 200 feet in depth and not less than 612 feet in length,
parallel and adjacent to the full length of the new public street to be constructed as shown by
Exhibit "B". Upon completion of excavation as aforesaid, City shall fill the excavated area with sand
to the depth and of the same quality as the filling performed by City on the land to be conveyed to
Eagle Window & Door Company. The length of the 200 foot wide strip to be excavated and filled
5
by City shall be not less than 61 2 feet in length and may be more depending upon exact
measurement after construction of the City street. All of the excavation and filling work and street
construction work described in this agreement shall be at the expense of City and at no cost to
Developers. The excavation and filling by City shall be in accordance with Kerper Blvd. Industrial
Park Site Grading and Storm Sewer Plan prepared by IIW Engineers and Surveyors dated July 11,
1997. Developers agree that City will be unable to do the excavating and filling work until weather
and ground conditions permit and that there could be a delay of 1 to 2 years in completing the
work. However, City agrees to do this work as soon as the conditions permit. City agrees to, at its
expense, cover the area of Parcel B north or the approximate top of slope but not included in the
portion to be excavated and filled as previously described in this paragraph with 2 feet of sand.
This provision relates to the muck and mud which is not going to be removed by City. This work
will be completed by City as soon as ground and weather conditions permit.
6.2 Construction of Street. City shall construct a public street adjoining the north
boundary of Parcel B as per preliminary plans by IIW Engineers on or before December 15, 1999.
6.3 Construction of Sewer and Water Stub Lines. City further agrees to stub one water
and one sewer line into Parcel B from the water and sewer lines to be constructed by City under the
new City street, so that Developers need not cut into or dig up the new City street when
Developers wish to begin construction on Parcel B.
6.4 Fencler Street Ovemass Construction and Related Actions. As further consideration
for this tax-free exchange of lands, City agrees as follows:
6.5 Extension of Kemer Boulevard Storm Sewer Trunk Line. City will pay to
Developers the sum of $20,000.00 to assist Developers in extending the Kerper Boulevard storm
6
sewer trunk line adjacent to Kerper Boulevard. Developers will be responsible for the construction
of the storm sewer trunk line. The $20,000.00 City payment will be made to Developers upon
completion of the work by Developers' contractor.
6.6 Fencler Street OverDass. City has advised Developers that the Fengler Street
overpass bridge will be reconstructed by City. City has further advised Developers that at such time
as the Fengler Street bridge is reconstructed City will close the existing curb cut from Kerper
Boulevard entering Developers' building location at the foot of Fengler Street.
City agrees, however, at the time of rebuilding of the Fengler Street bridge, to open the
Kerper Boulevard median to two lanes of traffic directly opposite Developers' existing southerly
most curb cut entering Developers' parking lot at its current building location so that at no time will
Developers be without access to Kerper Boulevard.
Upon completion of the Fengler Street bridge, City will grant to Developers a right-of-way
easement approximately 24 feet in width (this is an estimate only; City agrees to give Developers
the maximum easement width available after completion of the Fengler Street overpass) measured
from the Northerly side of Developers' building and extending from the intersection of Kerper
Boulevard and Fengler Street along the Northerly side of Developers' building, running the full depth
of Developers' real estate with City retaining the right to come upon the right-of-way for
maintenance work on the Fengler Street bridge and fill. Developers shall also be entitled to use this
right-of-way for parking purposes for Developers and their customers and tenants.
Section 7. USE OF PROPERTY BY DEVELOPERS. Developers agree that the following
conditions shall apply to the development and use of Parcel B:
7
7.1 Use of Groundwater Prohibited. The use of groundwater from the property is
prohibited as per the Risk-Based Evaluation for Planning and Development prepared by Terracon and
dated March 1 6,1998.
7.2 Construction Procedures. All construction activities shall require the implementation
of dust control procedures, address issues of soils removed from excavations for off-property
disposal and include these findings in contractor health and safety plans.
7.3 QDerations Within Enclosed Buildinos. All operations and activities (other than
construction) shall be conducted or maintained within completely enclosed buildings, except for off-
street parking and loading facilities.
7.4 Exterior Storaoe:
No exterior storage shall be permitted on the property other than exterior trash
collection areas as described in Section 7.5.
7.5 Exterior Trash Collection Areas:
(1) The storage of trash and debris shall be limited to that produced by the principal
permitted use and accessory uses of the lot.
(2) The ground area coverage of exterior trash collection areas shall be the area
contained inside the required screening and this area shall be a considered a building-related feature
for purposes of calculating total land area coverage.
(3) Exterior trash collection areas shall be located in rear or side yards only.
(4) All exterior trash collection areas and the materials contained therein shall be visually
screened from view. The screening shall be completely opaque fence, wall or other feature not
exceeding a height of 10 feet measured from the ground level outside the line of the screen.
Screens built on sloping grades shall be stepped so that their top line shall be horizontal. Exposed
8
materials used to construct the opaque screen shall be similar in appearance to materials used for
exterior building walls. All exterior entrances to a screened trash area shall be provided with a gate
or door of similar design to that of the screen.
If a 1 O-foot high screen fails to shield the exterior trash collection area from view from
points inside or outside of the property, evergreen plantings may be required in addition to the
screening. Evergreen plant materials shall be selected and designed so that they will screen the
area from all off-site visibility within five (5) years.
Section 8.
MISCELLANEOUS
8.1 Bindina on Successors. This Agreement shall apply to and bind the legal successors
in interest of the Developers
8.2 Final Aooroval of Citv Council. This Agreement shall be subject to the final
approval by the City Council of the City of Dubuque, Iowa.
8.3 Aareement with Eaale Window and Door. This Agreement shall be subject to
execution of a development agreement between the City and Eagle Window and Door Company
(Eagle Agreement) for the purchase and development of an adjacent parcel in the Kerper Boulevard
Industrial Park Economic Development District. Developers and City acknowledge that the land sale
contemplated by the Eagle Agreement may not close until June 30, 1999 and that Eagle Window or
its Developer may desire access to the parcels shown on Exhibit "A" prior to such closing.
Developers therefore agree that the City shall have the right to negotiate an agreement with Eagle
Window permitting Eagle Window or its Developer access to the parcels shown on Exhibit "A" prior
to the closing of the Eagle Agreement for site preparation, provided that such agreement shall
9
require Eagle Window or its Developer, in the event that the land sale contemplated by the Eagle
Agreement does not close by June 30, 1999, to restore the parcels, by August 1, 1999, to their
condition prior to such site preparation.
8.4 Urban Renewal Reauirements. This Agreement and the disposition of City's real
estate shall be subject to the requirements of Iowa Code Chapter 403.
8.5 Entire Aareement. This Agreement constitutes the entire agreement between City
and Developers and there is no agreement to do or not to do any act or deed except as specifically
provided for herein. Each page and each attachment is by this reference made pan hereof and the
entire agreement consists of eleven (11) pages.
8.6 Rescission of Prior Aareement. Upon execution by the parties and approval of this
Agreement by the City Council of the City of Dubuque, Iowa, the previous agreement between the
parties for the exchange of lands dated September 30, 1997, is automatically rescinded. However,
if the agreement between Eagle Manufacturing and its developer and the City of Dubuque does not
close according to the terms of that agreement, the previous agreement referred to in this paragraph
will be reinstated.
8.7 Declaration of Value Exemction. Parcel A is being acquired for public purpose and
the transfer to City from Developers is exempt from the requirements for the filing of a Declaration
of Value by Section 428A.1 of the Code of Iowa.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its name
10
and behalf by its Mayor and attested by its City Clerk, and Developers have caused this Agreement
to be executed in person on or as of the date first above written.
DEVELOPERS
CITY OF DUBUQUE, IOWA
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