ARC Transfer Center Phase I Amendment of EasementTHE CITY OF
Dui
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
Dubuque
kital
All- America City
II 111!
2012
SUBJECT: Amendment of Easement Agreement between City of Dubuque and Area
Residential Care, Inc. re: ARC Transfer Center Phase 1 Project
DATE: May 8, 2013
Director of Transit Operations Barbara Morck is recommending City Council approval of
an Amended Easement Agreement with Area Residential Care, Inc. for the ARC
Transfer Center Phase 1 (canopy) Project. This Amended Easement extends the
original path -of- travel farther into Area Residential Care's parking lot, which his needed
for The Jule's fixed route buses to safely negotiate the parking lot in order to line up
along the curb and under the canopy.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
kr,„709,,,
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Barbara Morck, Director of Transit Operations
David Heiar, Economic Development Director
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: Barbara Morck, Director of Transit Operations
CC: David Heiar, Economic Development Director
Kelley Deutmeyer, Executive Director of ECIA
Dubuque
All- America City
'1111!
2007
SUBJECT: Amendment of Easement Agreement between City of Dubuque and Area
Residential Care, Inc. re: ARC Transfer Center Phase I Project
DATE: May 2, 2013
PURPOSE
Obtain approval and signature on the Amendment to the Easement Agreement between
the City of Dubuque and Area Residential Care, Inc. (ARC, Inc.) for the ARC Transfer
Center Phase I (canopy) Project.
BACKGROUND
In August 2010 staff of ECIA, The Jule and Area Residential Care, Inc. (ARC, Inc.)
began discussing the possibility of collaborating on a transfer center, to be located at
what will be the new ARC, Inc. facility located at the old Econo Foods building at the
JFK Circle. Involved parties agreed to pursue the project which, based on cost, has
been split into two phases. Phase I is the design and construction of a canopy that is
immediately adjacent to the ARC, Inc. facility, which will offer protection from the
weather for passengers waiting to board and de- boarding from fixed route and
paratransit buses. The Phase I project also allows The Jule's bus operators access to
the building's restroom facilities. Phase II is envisioned as an enclosed space for a
passenger waiting room, public restroom facilities and (e.g.) vending machines. Funding
for the Phase II project will be applied for use during the FY 2015 budget cycle.
DISCUSSION
In October 2011 The Jule was awarded a Public Transit Infrastructure Grant (PTIG) of
$298,357 for the Phase I final design, construction documents and oversight of
construction of the Phase I canopy, and the Phase II preliminary design (enclosed
waiting space with public restrooms). As a partner in this project ARC, Inc. agreed to
provide the 20% match needed for the grant — a 80% / 20% grant — in the form of a "soft
match." Items listed as soft match include: installation of electronic gate at rear driveway
and 30 remotes for use by The Jule buses; card access and interior doors to restrooms
(for use by bus operators); concrete work on rear driveway (removal /replacement of bad
pavement, and replacement of missing curb); benches for under the canopied area; 18
parking spaces for use by Park -N -Ride commuters using The Jule; easement for bus
access (path -of- travel); and easement for area under the canopy.
In January 2012, IIW was awarded the contract for the final design et al. The Phase I
design was reviewed by a design committee that consisted of ECIA, Regional Transit
Authority (RTA), City and ARC, Inc. staff, as well as a community member. A bidding
process was conducted for the construction of the Phase I canopy and in December
2012, City Council awarded the contract to Murphy Construction Group. Construction of
the Phase I canopy began shortly thereafter with a projected completion date of May 15,
2013.
Because the PTIG funding comes through the State of Iowa Department of
Transportation (IA DOT)/ Office of Public Transit (OPT) and because the IA DOT
considers the City as owner of the canopy structure, an easement agreement showing
the City's ownership of the structure and guaranteed access to and use of the property
which includes the canopy for the duration of its expected useful life (30 years) was
required. Staff from The Jule /ECIA and ARC, Inc. worked closely with the City
Attorney's office to put together an Easement Agreement that addressed this
requirement; the Easement Agreement was approved by City Council May 2012.
With construction underway, it has become apparent that the original path -of- travel,
especially for The Jule's fixed route buses, needs to extend farther into the parking lot.
This must be done in order to allow the longer — fixed route - buses to safely negotiate
the parking lot in order line up along the curb and under the canopy. As a result the
original Easement Agreement needs to be amended to incorporate and account for the
additional path -of- travel that is now needed.
The City Attorney's office has reviewed and approved the Amended /Revised Easement
Agreement.
RECOMMENDATION /ACTION STEP
I recommend that the City Council approve and sign the Amended ARC Easement
Agreement between the City of Dubuque and Area Residential Care, Inc. (ARC, Inc.) for
the ARC Transfer Center Phase I (canopy) Project.
AMENDED EASEMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
AREA RESIDENTIAL CARE, INC.
THIS AMENDED EASEMENT AGREEMENT (the Agreement), dated for
reference purposes the 20th day of May, 2013 is made and entered into by and
between Area Residential Care, Inc., an Iowa not- for - profit corporation (Grantor), and
the City of Dubuque, Iowa, a municipal corporation (City).
WHEREAS, Grantor the owner of certain real estate shown on Exhibit A
attached hereto (the Property); and
WHEREAS, City and Grantor desire to construct on the Property a facility (the
Transfer Center) for the operation of City's transit fleet to serve the public and the
Property; and
WHEREAS, City and Grantor desire to enter in this Agreement to provide for the
financing, construction, and operation of the Transfer Center;
NOW THEREFORE, in consideration of the premises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other as
follows:
SECTION 1. DEMISE AND TERM. In consideration of the terms, covenants,
conditions and agreements set forth in this Agreement, Grantor hereby grants to City a
non - exclusive easement over and across the areas shown as Easement Areas A, B, C
and D (collectively, the Easement Areas) on Exhibit A, attached hereto, for a term of
thirty (30) years commencing on the 8th day of May , 2012, and terminating at
11:59 p.m. on the 8th day of May , 2042 (the Term), subject to all of the terms,
covenants, conditions and agreements contained herein.
SECTION 2. RENT. City shall pay Grantor a fee for this Agreement of One Dollar per
year.
SECTION 3. IMPROVEMENTS.
3.1. Transfer Center. Subject to the conditions set forth in this Agreement, City
agrees to construct a canopy, shown on Exhibit B, for the Transfer Center on Easement
Area A (the Improvements).
3.2. Plans for Construction of Improvements. Plans and specifications for the
construction of the Improvements (the Construction Plans) shall be submitted by City to
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Grantor for approval. All work with respect to the Improvements shall be in substantial
conformity with the Construction Plans approved by Grantor.
3.3. Timing of Construction. City agrees that construction of the Improvements shall
be commenced by September , 2012, and shall be substantially completed by
December , 2012. The time frames for the performance of these obligations shall be
suspended due, to unavoidable delays, meaning delays, outside the control of the party
claiming its occurrence in good faith, which are the direct result of strikes, other labor
troubles, unusual shortages of materials or labor, unusually severe or prolonged bad
weather, acts of God, fire or other casualty to the Improvements, litigation commenced
by third parties which, by injunction or other similar judicial action or by the exercise of
reasonable discretion directly results in delays, or acts of any federal, state or local
government which directly result in delays, including without limitation the failure to
issue permits, approvals and /or consents. The time for performance of such obligations
shall be extended only for the period of such delay.
3.4. City's Participation. The cost of construction of the Improvements is estimated to
be $ 248,000 (the Construction Cost). For and in consideration of Grantor's obligations
hereunder, City agrees to contribute to the Construction Cost $ 248,000 upon receipt of
a grant in that amount from the State of Iowa Public Transit Infrastructure Grant.
3.5. Grantor Participation. Grantor agrees to contribute a local match of $95,000 to
the Construction Cost, which local match will be in the form of this Agreement and
improvements to Grantor's parking lot identified on Exhibit C.
3.6. Title to Improvements. At the expiration of the Term of this Agreement, if the
Improvements or any part thereof shall then be on the Easement Areas, all of City's
right, title, and interest therein shall cease and terminate, and title to the Improvements
shall vest in Grantor, and the Improvements or the part thereof then within the
Easement Areas shall be surrendered by City to Grantor. No further deed or other
instrument shall be necessary to confirm the vesting in Grantor of title to the
Improvements. However, upon any termination of this Agreement, City, upon request
of Grantor, shall execute, acknowledge, and deliver to Grantor a deed confirming that
all of City's right, title, and interest in or to the Improvements has expired, and that title
to the Improvements has vested in Grantor.
3.7. Termination by Grantor. This Easement may be terminated by Grantor at any
time after the 8th day of May , 2042.
3.8. Signaqe. City may, at City's cost, install signs or markers, approved by Grantor,
on the Easement Areas designating the property as a Transfer Center and parking area
for transit users.
3.9. Preservation of Improvements and Signage. Until the termination of this
Agreement, City shall maintain, preserve and keep, or cause others to maintain,
preserve and keep, the Improvements and signage in good repair and working order,
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ordinary wear and tear excepted, and from time to time shall make all necessary
repairs, replacements, renewals and additions.
SECTION 4. ASSIGNMENT AND SUBLETTING. This Agreement shall not be
assigned, transferred, hypothecated or pledged by either party without the prior written
consent of the other party.
SECTION 5. TAXES. Grantor shall remain responsible for the real estate taxes upon
the real estate of the Property that become payable during the Term hereof.
SECTION 6. REPAIRS AND MAINTENANCE.
6.1. Grantor shall at all times during the Term of this Agreement, at Grantor's own
costs and expense, keep the Property, including those in the Easement Areas, and all
sidewalks, curbs, and Grantor's appurtenances in good order, condition, and repair,
casualties and ordinary wear and tear excepted. City shall be responsible for
maintaining the Improvements and signage.
6.2, Grantor shall be responsible for snow and ice removal from the Easement Areas
at its expense.
SECTION 7. COMPLIANCE WITH LAW.
7.1. During the term of this Agreement, City shall comply with all applicable laws
applicable to City's use of the Easement Areas.
7.2. City shall not commit waste on the Easement Areas except as necessary for the
removal or construction of the Improvements.
SECTION 8. ALTERATIONS. City shall have the right, at City's expense, from time
to time during the term of this Agreement to make such alteration, addition, or
modification to the Improvements as shall be agreed upon in writing by Grantor and
City.
SECTION 9. USE OF EASMENT AREAS.
9.1 City covenants and agrees during the term of this Agreement to use and occupy
the Easement Areas for a public Transfer Center and parking area for Transfer Center
patrons.
9.2 City will not use or allow the Easement Areas or the Improvements to be used or
occupied for any unlawful purpose. City will not suffer any act to be done or any
condition to exist within the Easement Areas or the Improvements, or permit any article
to be brought therein, which may be dangerous, unless safeguarded as required by law,
or which may, in law, constitute a nuisance, public or private, or which may make void
or voidable any insurance in force with respect thereto.
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SECTION 10. INSURANCE.
10.1. City Insurance.
(1) City shall provide and maintain or cause to be maintained at all times
during the process of constructing the Improvements and upon request furnish
Grantor with proof of insurance in the form of a certificate of insurance. All risk
builder's risk insurance, written on a Completed Value Form in an amount equal
to one hundred percent (100 %) of the replacement value of the Improvements
when construction is completed
(2) Upon completion of construction of the Improvements and up to the
Termination Date, City shall maintain, or cause to be maintained, at its cost and
expense (and from time to time at the request of Grantor shall furnish proof of
insurance in the form of a certificate of insurance) special perils coverage
property insurance against loss and/or damage to the Improvements under an
insurance policy written in an amount not less than the full insurable replacement
value of Improvements. The term "replacement value" shall mean the actual
replacement cost of the Improvements.
(3) City shall notify Grantor in the case of damage exceeding $50,000.00 in
amount to, or destruction of, the Improvements or any portion thereof resulting
from fire or other casualty. Net proceeds of any such insurance (Net Proceeds),
shall be paid directly to City as its interests may appear, and City shall forthwith
repair, reconstruct and restore the Improvements to substantially the same or an
improved condition or value as they existed prior to the event causing such
damage and, to the extent necessary to accomplish such repair, reconstruction
and restoration, City shall apply the Net Proceeds of any insurance relating to
such damage received by City to the payment or reimbursement of the costs
thereof. City shall complete the repair, reconstruction and restoration of the
Improvements whether or not the Net Proceeds of insurance received by City for
such purposes are sufficient.
(4) During the Term of this Agreement City shall maintain its membership in
the Iowa Communities Assurance Pool or obtain equivalent commercial general
liability insurance.
10.2 Grantor Insurance.
(1) During the Term of this Agreement Grantor shall maintain general
commercial liability insurance with the following coverages:
General Aggregate Limit
Each Occurrence
4
$2,000,000
$1,000,000
a) Include ISO endorsement form CG 2.5 04 "Designated Location(s)
General Aggregate Limit."
b) Include endorsement indicating that coverage is primary and non--
contributory.
c) Include endorsement to preserve Governmental Immi.mity. (Sample
attached).
SECTION 11. GRANTOR'S WARRANTIES AND REPRESENTATIONS.
11.1. Grantor's Representation Of Good Title. Grantor covenants and warrants that it
is lawfully seized in fee simple of the Property, and that it has full right and authority to
enter into this Agreement for the full term hereof, and covenants and agrees that upon
paying the fee provided for herein, and upon City's performing the covenants and
agreements of this Agreement required to be performed by said City, that it will have,
hold and enjoy quiet use of the Easement Areas, subject only to the rights of Dubuque
Bank & Trust (DB &T) under its mortgage of record.
11.2. Grantor covenants and agrees that City shall have no responsibility for or liability
arising from any Hazardous Substance which was in, on or about the Easement Areas
prior to the commencement date of this Agreement ( "Prior Hazardous Substances ") or
which leach or migrate upon the Easement Areas from any property owned by Grantor
( "Foundation Hazardous Substances ").
11.3. For the purposes of this Agreement, "Hazardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which is or
becomes regulated by any local government, the State of Iowa or the United States
Government. It includes, without limitation, any material or substance that is (i) defined
as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (ii)
petroleum and petroleum products, (iii) asbestos, (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33
U.S.C. §1321), (v) defined as a "hazardous waste pursuant to §1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a
"hazardous substance" pursuant to §101 of the Comprehensive Environmental
Response, Compensation and Liability Act, U.S.C. §9601 et seq., or (vii) defined as a
"regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation
of Underground Storage Tanks), 42 U.S.C. §6991 et seq.
SECTION 12. INDEMNIFICATION
12.1. City agrees to defend, indemnify and hold harmless Grantor, its officers, agents
and employees, from any and all damages or claims whatsoever by reason of City's
negligence in the use of the Easement Areas. Grantor agrees to promptly give notice of
any and all damages or claims against Grantor under this Section 12.1 to permit City
and /or its insurance carrier to investigate and defend the same.
12.2. Grantor agrees to defend indemnify and hold harmless City, its officers, agents
and employees, from any and all damages or claims whatsoever by reason of Grantor's
5
negligence with respect to the Easement Areas. City agrees to promptly give notice of
any and all damages or claims against City under this Section 12.2 to permit Grantor
and /or its insurance carrier to investigate and defend the same.
SECTION 13. DEFAULT. If Grantor defaults in the performance of any of the
covenants herein contained, and such default shall continue for a period of thirty (30)
days after written notice thereof, specifying the default complained of, mailed to Grantor
by United States certified mail, then City may, at its election, declare the terms of this
Agreement ended and remove itself from the Easement Areas, with or without process
of law, by reason of such default of Grantor and the continuance thereof for such period
of thirty (30) days after written notice has been given, said term shall be so ended.
Grantor shall be responsible for repayment of any funds that were obtained by City from
the State of Iowa for the construction of the Improvements.
SECTION 14. QUIET ENJOYMENT. Grantor covenants that at all times during the
term of this Agreement, so long as City is not in default hereunder, City's quiet
enjoyment of the Easement Areas or any part thereof shall not be disturbed by any act
of Grantor, or of anyone acting by, through, or under Grantor, subject only to the rights
of Dubuque Bank & Trust (DB &T) under its mortgage of record.
SECTION 15. WAIVER. No waiver by Grantor of any breach by City of any term,
covenant, condition, or agreement herein and no failure by Grantor to exercise any right
or remedy in respect of any breach hereunder, shall constitute a waiver or
relinquishment for the future of any such term, covenant, condition, or agreement or of
any subsequent breach of any such term, covenant, condition, or agreement, nor bar
any right or remedy of Grantor in respect of any such subsequent breach, nor shall the
receipt of any rent, or any portion thereof, by Grantor, operate as a waiver of the rights
of Grantor to enforce the payment of any other rent then or thereafter in default, or to
terminate this Agreement, or to recover the Easement Areas , or to invoke any other
appropriate remedy which Grantor may select as herein or by law provided.
SECTION 16. SURRENDER. City agrees that at the termination of this Agreement it
will surrender, yield up and deliver the Easement Areas, including the Improvements, in
good, clean condition.
SECTION 17. MEMORANDUM OF AGREEMENT. Each of the parties hereto will,
promptly upon request of the other, execute a memorandum of this Agreement in form
suitable for recording setting forth the names of the parties hereto and the Term of this
Agreement, identifying the Easement Areas, and also including such other clauses
therein as either party may desire.
SECTION 18. NOTICES
18.1. All notices, demands, or other writings in this Agreement provided to be given or
made or sent, or which may be given or made or sent, by either party to the other, shall
be deemed to have been fully given or made or sent when made in writing and
6
deposited in the United States mail, registered and postage prepaid, and addressed as
follows:
If to Grantor:
Attn: Jon Romaine, Executive Director
3355 John F. Kennedy Circle
Dubuque, IA 52002
If to City of Dubuque;
City Manager
City Hall
50 W. 13th Street
Dubuque IA 52001
18.2. The address to which any notice, demand, or other writing may be given or made
or sent to any party as above provided may be changed by written notice given by the
party as above provided.
SECTION 19. MISCELLANEOUS
19.1. Time of the Essence. Time is of the essence of this Agreement and all of its
provisions.
19.2. Governing Law. It is agreed that this Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Iowa.
19.3. Paragraph Headings. The titles to the paragraphs of this Agreement are solely
for the convenience of the parties and shall not be used to explain, modify, simplify, or
aid in the interpretation of the provisions of this Agreement.
19.4. Modification of Agreement. Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement shall be binding
only if evidenced in a writing signed by each party or an authorized representative of
each party.
19.5. Parties Bound. This Agreement shall be binding on and shall inure to the benefit
of and shall apply to the respective successors and assigns of Grantor and City. All
references in this Agreement to "Grantor" or "City" shall be deemed to refer to and
include successors and assigns of Grantor or City without specific mention of such
successors or assigns.
19.6. Force Majeure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure,
A .
riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions,
fire, weather or acts of God, or by reason of any other cause beyond the exclusive and
reasonable control of the party delayed in performing work or doing acts required under
the terms of this Agreement, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
19.7. Non - Discrimination. In carrying out this Agreement, Grantor shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, gender identity, national origin, age or disability.
7)
Attest: /t*
CITY OF DUBU, UE, IOWA
By 60. Et,/
Roy D. o I, Mayor
AREA RESIDENTIAL CARE, INC.
By:
8
Jon Romaine, Executive Director
EXHIBIT A
EASEMENT AREAS
9
11
EXHIBIT B
CONCEPTUAL PLAN OF IMPROVEMENTS
12
EXHIBIT C
PARKING LOT IMPROVEMENTS
13
IIW P.C.
March 28, 2011
Pamella Lee
Office of Public Transit
Iowa Dept. of Transportation
800 Lincoln Way
Ames, IA 50010
Re: ARC Transfer Facility
IIW Project No.: 09118-02
Dear Ms. Lee:
IIW, P.C. has prepared the following summary of the local matching funds that will be provided for
the transfer facility. These improvements will be funded by ARC.
Item /Improvement
Gate and fence
Removal and replacement of bad pavement along back bus drive
Replacement of missing curb along back drive
Electrical for gate
30 Remotes for gate
2 Interior doors for restroom access
Card access for additional alum door for restroom access
Prepping alum door for card access for restroom access
Benches and outside improvements
18 Parking spaces devoted to Park -n -ride use
Easement for bus access
Easement for canopy
Preliminary design, Professional Fees
Total Local Match:
This amount equates to 24.1% of the projected total project cost.
Sincerely,
IIW, P.C.
Lauren N. Ray, P.E., S.E., LEED AP
Value /Cost
$25,650.00
$2,500.00
$10,800.00
$32,175.00
$15,950.00
$7,500.00
$94,575.00
BUILDING DESIGN
CIVIL ENGINEERING
CONSTRUCTION SERVICES
ENVIRONMENTAL ENGINEERING
LAND SURVEYING
MUNICIPAL ENGINEERING
STRUCTURAL ENGINEERING
TRANSPORTATION ENGINEERING
www.iiwengr.com
Dennis F. Waugh, PE /SE*
Chades A. Cate, PE
Gary D. Sejkora, PE
Michael A. Jansen, PE/SE
Ronald A. Balmer, PE /SE/AIA
John M. Tranmer, PLS
Timothy J. Tranel, PE*
John F. Wandsnider, PE
Julie P. Neebel, PE
James P. Kaune, PE
Thomas J. Oster, PLS
Wray A. Childers, PLS
Geoffry T. Blandin, PE
Mark C. Jobgen, PE
Lauren N. Ray, PE /SE*
Bradley J. Mootz, PE/SE
Cody T. Austin, PE*
Marc D. Ruden, PE
Mark R. Fassbinder, AIA*
Michael A. Ruden, NCARB /AIA*
Alice M. Ohrtmann, PE
Craig J. Elskamp, AIA
Robert W. Blok, PE
Eric J. Helminiak, PE/SE*
* LEED AP
4155 Pennsylvania Avenue, Dubuque, Iowa 52002 -2628 • [P] 563.556.2464/800.556.4491 • [F] 563.556.7811
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IIW