Dubuque Industrial Center West Declaration of CovenantsTHE CITY OF
DUB
MEMORANDUM
May 31, 2006
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amended and Restated Declaration of Covenants for the Dubuque
Industrial Center West
Economic Development Director Dave Heiar recommends City Council approval of the
Second Amended and Restated Declaration of Covenants for the Dubuque Industrial
Center West. This amendment will make the 5 addition of the Dubuque Industrial
Center West property, which was recently platted, subject to the same covenants that
are currently in place for the first phases of this development.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
t /,,,pitur,
Michael C. Van Milligen
MCVM /jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
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THE CITY OF (. ..' '\
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JUBUQUE
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MEMORANDUM
May 22, 2006
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Directo~.
SUBJECT: Amended and Restated Declaration of cove:aU~ for the Dubuque
Industrial Center West
INTRODUCTION
This memorandum transmits for City Council review and adoption an amended and
restated Declaration of Covenants for the Dubuque Industrial Center West. A copy of
the proposed amended covenants is attached.
DISCUSSION
The proposed amendment will make the 5th addition of the Dubuque Industrial Center
West property, which was recently platted, subject to the same covenants that are
currently in place for the first phases of this development. The language in the current
covenants will not change except to add the additional property.
The covenants protect the public interest while providing clear parameters for ownership
and development of property in the industrial park. The covenants can be amended
over time, with City approval of any amendment. The covenants are in effect for 21
years, renewable for 21 additional years.
RECOMMENDATION
I recommend that the amended and restated covenants, as presented, be adopted by
the City Council to include the industrial park property now platted as the 5th Addition of
the Dubuque Industrial Center West.
ACTION STEP
The action step for the City Council is to adopt the amended and restated Declaration of
Covenants for the Dubuque Industrial Center West 5th Addition and authorize the Mayor
and City Clerk to sign on behalf of the City of Dubuque.
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Dubuque County Iowa
Kathy Flynn Thurlow Recorder
F11e2006 0001
Return to: Jeanne F. Schneider, City Clerk, 50 West 13 Street, Dubuque IA 52001
Prepared bv: Barr/ A. Lindahl 300 Main Street. Suite 330 . Dubuque. Iowa 52001 Phone: 563. 5834113
DUBUQUE INDUSTRIAL CENTER WEST 5
ADDITION
SECOND AMENDED AND RESTATED
STATE OF IOWA 1 DECLARATION OF COVENANTS,
}
es: CONDITIONS, RESTRICTIONS,
COUNTY OF DUBUQUE 1 RESERVATIONS, EASEMENTS,
LIENS AND CHARGES
The City of Dubuque, Iowa, ( "City ") hereby makes THIS SECOND
AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS, RESERVATIONS, EASEMENTS, LIENS AND CHARGES on this
5 day of June, 2006.
BACKGROUND
City is the owner of certain property in Dubuque, County of Dubuque, State of Iowa,
which is described as Dubuque Industrial Center West Lots 1, 2, 3, 4, A, B, C, and
D and Dubuque Industrial Center West 2 Addition in the City of Dubuque, Iowa.
City on October 25, 1999 adopted the Declaration of Covenants, Conditions,
Restrictions, Reservations, Easements, Liens and Charges recorded as Instrument
No. 17454 -99 on November 16, 1999 with respect to Dubuque Industrial Center
West Lots 1, 2, 3, 4, A, B, C and D. City on April 15, 2002 adopted its Amended and
Declaration of Covenants, Restrictions, Reservations, Easements, Liens and
Charges with respect to Dubuque Industrial Center West Lots 1, 2, 3, 4, A, B, C and
D and Dubuque Industrial Center West 2 11d Addition in the City of Dubuque, Iowa.
City is also the owner of Dubuque Industrial Center West 5 Addition in the City of
Dubuque, Iowa, according to the recorded plat thereof recorded as Instrument No.
2006 - 00008229 on June 2, 2006.
401'7'
City now desires to add Dubuque Industrial Center West 5th Addition to the
Properties described in the Amended and Declaration of Covenants, Conditions,
Restrictions, Reservations, Easements, Liens and Charges as provided in Article II
thereof.
City hereby adopts this Second Amended and Restated Declaration of Covenants,
Conditions, Restrictions, Reservations, Easements, Liens and Charges as
hereinafter set forth, which shall be binding upon City's successors and assigns and
which shall apply to the following described property (the Properties):
Dubuque Industrial Center West Lots 1, 2, 3, 4, A, B, C and D;
Dubuque Industrial Center West 2 " Addition; and
Dubuque Industrial Center West 5 Addition
DECLARATION
The following provisions are set forth to guide the initial development and
provide a format for the ongoing management of Dubuque Industrial Center West.
It is the objective of these provisions to set forth minimum standards and restrictions
to create an industrial center that emphasizes the general appearance and ,
aesthetics of the center. Specifically, these provisions intend to emphasize a
continuity and compatibility of exterior appearance through building facades,
Landscaping and other exterior features.
City hereby declares that all of the Properties described herein shall be held,
sold and conveyed subject to the following covenants, conditions, restrictions,
reservations, easements, liens and charges, all of which are for the purpose of
enhancing and protecting the value, desirability and attractiveness of said real
property. These covenants, conditions, restrictions, reservations, easements, liens
and charges shall run with the land and shall be binding on all parties having or
acquiring any right, title or interest in the Properties herein described or any part
thereof, and shall inure to the benefit of each owner thereof.
ARTICLE I. DEFINITIONS
Section 1. "Properties" shall mean and refer to each and every parcel, and
all portions thereof, of the real property herein before described and such additions
thereto as may be hereafter added.
Section 2. "Lot" shall mean and refer to any plot of land, except Public
Areas and public rights -of -way, shown upon any recorded Subdivision Plat of the
Properties.
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Section 3. "Owner" shall mean and refer to the record titleholder, whether
one or more persons or entities, of fee simple title to any Lot which is a part of the
Properties, including contract sellers, but excluding those having such interest
merely as security for the performance of an obligation.
Section 4. "Public Areas" shall mean and refer to the landscaped areas,
recreational trail, park lands and lake areas as identified by the exhibit attached and
hereby made a part of this Declaration the ownership of which shall be retained by
the City of Dubuque. The Public Areas shall be open to the public for the use and
enjoyment of the public.
ARTICLE II. ANNEXATION OF ADDITIONAL PROPERTY
At any time within twenty -five (25) years from the date hereof, City may, by
instrument duly executed and recorded, add additional land to the Properties.
ARTICLE III. PUBLIC AREAS
City shall cause the construction of such improvements as City deems
appropriate in the Public Areas. Maintenance and repair of the Public Areas and its
improvements shall be the responsibility of City with fifty percent (50 %) of costs of
such maintenance and repair assessed to and paid by the Owners. Private
connections to the Public Areas and the subsequent maintenance and repair of
such private connections shall be the responsibility of each Owner and shall not be
constructed without the prior written approval of City.
ARTICLE IV. MAINTENANCE ASSESSMENTS
Section 1. City shall levy against the Properties in each assessment year
an annual assessment for the purpose of paying fifty percent (50 %) of the actual
costs of CityDs maintenance and repair of the Public Areas and the actual costs
associated with maintaining and lighting the park entrance signs. Said assessment
may also include the establishment of a capital improvements reserve fund for such
purposes. Upon establishment of such assessment levy, each Owner shall pay to
City a pro rata share (as hereinafter defined) of such assessment levy.
Section 2. If such pro rata share is not paid within thirty (30) days after its
due date, the amount of such pro rata share shall become a lien upon the Lot
obligated to pay the same and shall bear interest from the due date at the highest
legal contract rate applicable to a natural person. City may bring an action at law
against any Owner obligated to pay the same, or foreclose the lien against the Lot.
The Owner shall also be obligated to City for CityDs costs and reasonable attorney's
fees of any collection efforts. No Owner may waive or otherwise avoid liability for an
Page 3
assessment provided herein by non -use of the Public Areas or abandonment of a
Lot.
Section 3. An Owner's pro rata share shall be equal to a fraction, the
numerator of which shall be the gross square feet area of the Lot or Lots owned by
the Owner and the denominator of which shall be the gross square feet area of the
Properties exclusive of the Public Areas and public rights -of -way.
ARTICLE V. ARCHITECTURAL CONTROL
Section 1. General Requirements. No building, fence, wall or other
structure, including signage, shall be commenced, or erected upon any Lot nor shall
any exterior addition to or change or alteration therein be made nor shall any
landscaping be performed nor shall any filling, grading or excavation be
commenced until the plans and specifications showing the nature, kind, shape,
height, materials, colors and location of the same shall have been submitted to and
approved in writing by the City Manager as to harmony of external design and
location in relation to surrounding structures and topography.
Section 2. Construction Materials. The use of appropriate exterior
building materials shall be required to enhance the overall appearance of Dubuque
Industrial Center West. One or more of the following durable, high quality materials
shall be used as the construction material of all exterior building walls or structures:
brick, stone, concrete panels, textured concrete block, fascia glass, architectural
metal, exterior insulating finish systems (EIFS), wood or other approved material.
Section 3. Landscaping Features. Landscape plans shall be reviewed
by the City Manager to ensure a compatible design that relates the new
development to its surroundings, including its relationship to adjoining private Lots
and Public Areas. The Planned Unit Development (PUD) ordinance for the
Dubuque Industrial Center West provides for minimum landscaping requirements;
however, approval of a plan may require additional landscaping elements to be
incorporated in the planting scheme based on the specific Lot location, type and
location of structures on the Lot or adjacent developments.
Section 4. Exterior Storage. The requirements of the PUD ordinance for
the Dubuque Industrial Center West shall be controlling.
Section 5. Postal Service. A centralized postal delivery station will be
installed in the Public Areas to provide individual mail boxes for businesses located
in the Dubuque Industrial Center West. No other mail box or receptacle of any kind
shall be allowed on any Lot or upon the public right -of -way.
Page 4
ARTICLE VII. GENERAL PROVISIONS
Section 1. It shall be the responsibility of each Owner to maintain and
repair public sidewalk surfaces on the Owneros Lot and the adjoining public right -
of-way and to keep the same free and clear of ice, snow, defects or nuisances.
Section 2. The Owner of any Lot, vacant or improved, shall maintain the
Lot at all times in clean, safe, orderly and sanitary condition. Plant material and
lawn areas shall be continually maintained in a manner consistent with the growing
requirements and characteristics of each planted species.
Section 3. Erosion control shall be the responsibility of the Owner of each
Lot during any and all construction periods. Each Owner shall maintain at all times
the cleanliness of any public rights of way impacted by construction material,
including but not limited to mud, dirt, mulch or any other material or debris
associated with the construction. Clean up shall occur on not less than a daily
basis.
Section 4. City shall have the right to enforce, by any proceeding at law or
in equity, all restrictions, conditions, covenants, reservations, easements, liens and
charges now or hereafter imposed pursuant to the provisions of this Declaration.
Failure by City to enforce any of said covenants or restrictions shall not be deemed
a waiver of the right to do so thereafter, nor shall it be construed as an act of
acquiescence or approval on the part of City.
Section 5. Invalidation of any one of the provisions of this Declaration by
court judgment or order shall neither effect nor invalidate any other provision, and
the same shall remain in full force and effect.
Section 6. Any firm, person, corporation or other entity which shall
succeed to title to any Lot through foreclosure of a mortgage or other security
instrument or through other legal proceedings, shall succeed to the rights, duties
and liabilities of the previous Owner as herein provided.
Section 7. The covenants and restrictions of this Declaration shall run with
the land and shall inure to the benefit of and be enforceable by City, or the Owner of
any Lot subject to this Declaration, the Owneros legal representatives, heirs,
successors and assigns, for a term of 21 years from the date of the recording of this
Declaration. The City or any other interested party may, prior to the expiration of
these covenants, file a verified claim pursuant to Iowa Code Section 614.24 to
extend these covenants for an additional 21 years.
Section 8. This Declaration may be amended by an instrument signed by
City and Owners of not less than 80 percent of the Properties by area. Any
instrument amending, modifying or canceling this Declaration shall not take effect
until its recording.
Page 5
Section 9. In the event any Owner fails or neglects to perform its rights,
duties and obligations in accordance with the intents, purposes and provisions of
this Declaration, City may take such further action as may be necessary, from time
to time, to ensure that the objects and purposes of this Declaration are fulfilled.
Atts �a
eanne F. Schneider, City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE
S
4
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CITY OF DUBUQUE, IOWA
By: i
Ann E. Michalski, Mayor Pro -Tem
On this ( day of / , 2006, before me a Notary Public in
and for said County, p =l •'nally appeared Ann E. Michalski and Jeanne F.
Schneider to me personally known, who being duly sworn, did say that they are the
Mayor Pro -Tem and City Clerk, respectively of the City of Dubuque, Iowa, a
Municipal Corporation, created and existing under the laws of the State of Iowa, and
that the seal affixed to the foregoing 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 Corporation by it voluntarily e - ed.
2
tary Public in and for Dubuque County, Iowa
St/SAN M,WINT
COMMISSION hO.1 3274
M
MY COMMISSION EXPIRES
214/08