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Pine Box, LLLP & Washington Court, LP Agreement_Hearing D'iJ~~E ~ck~ MEMORANDUM November 15, 2006 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Pine Box, LLLP & Washington Court LP Agreement for the Exchange of Property for the Construction of Parking Facilities for the Crescent Community Health Center City Engineer Gus Psihoyos recommends the City Council approval of an agreement among the City of Dubuque, Pine Box, LLLP and Washington Court, LP, for the exchange of properties for the construction of parking facilities abutting the Crescent Community Health Center. The exchange allows for better continuity in parking facilities for both the Crescent Community Health Center and Washington Court Apartments. The agreement also grants a right of first refusal to Pine Box, LLLP in the event the City ever elects to dispose of the property underlying the City parking lot. I concur with the recommendation and respectfully request Mayor and City Council approval. ;7~10:;7./}zGf Michael C. Van Milligen ------ MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer D~~~E ~ck~ MEMORANDUM November 15, 2006 TO: FROM: Michael C. Van Milligen, City M~njrJ Gus Psihoyos, City Engineer j~ SUBJECT: Pine Box, LLLP & Washington Court LP Agreement for the Exchange of Property for the Construction of Parking Facilities for the Crescent Community Health Center INTRODUCTION Attached is an agreement between and among the City of Dubuque, Pine Box, LLLP and Washington Court, LP, for the exchange of properties for the construction of parking facilities for the Crescent Community Health Center. DISCUSSION The City has worked with Pine Box, LLLP and Washington Court, LP, on an agreement for the exchange of properties necessary to provide parking for the Crescent Community Health Center (CCHC). The exchange of properties allows for better continuity in parking facilities for both the CCHC and Washington Court Apartments. The Agreement also grants a right of first refusal to Pine Box, LLLP in the event the City ever elects to dispose of the property underlying the City parking lot. The closing on the exchange of properties will not take place until all the conditions of the Agreement are met. RECOMMENDATION I recommend that the City Council approve the Agreement and the disposition of the City's interest in the City property proposed to be exchanged in the Agreement. ACTION TO BE TAKEN The City Council is requested to approve the attached Agreement disposing of the City's interest in the properties as provided in the Agreement. Prepared by Gus Psihoyos, City Engineer cc: Barry Lindahl, City Attorney Mary Rose Corrigan, Public Health Specialist David Harris, Housing & Community Development Director Tim Horsfield, Parking Division Prepared by: Ronald J. Turner, City of Dubuque, SOW. 13th street, Dubuque, Iowa (563) 589-4270 Returned to: Ronald J. Turner, City of Dubuque, SOW. 13th street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. 563-06 RESOLUTION APPROVING THE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, WASHINGTON COURT, L.P., AND PINE BOX, LLLP AND DISPOSING OF CITY INTEREST IN THE SOUTH HALF AND THE WESTERLY 5 FEET OF THE NORTH 1Iz OF THE VACATED ALLEY LEGALLY DESCRIBED AS LOT 159B, THE SOUTH 1Iz OF LOT 157, THE NORTH 1Iz OF LOT 157, THE SOUTH 1Iz OF LOT 158, AND THE NORTH 1Iz OF LOT 158, ALL IN EAST DUBUQUE ADDITION IN THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA AND IN THE CITY'S INTEREST IN LOTS 159, 160 AND 161 IN EAST DUBUQUE, AN ADDITION TO THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA, ACCORDING TO THE RECORDED PLAT THEREOF ACCORDING TO THE AGREEMENT WHEREAS, the City of Dubuque (City) is the owner, or intends to acquir~, the following described property in Dubuque, Iowa: The South 1Iz of Lot 157, the North 1Iz of Lot 157, the South 1Iz of Lot 158, and the North 1Iz of Lot 158, all in East Dubuque Addition in the City of Dubuque, Dubuque County, Iowa; and WHEREAS, Washington Court, L.P. (Washington Court) and Pine Box, LLLP (Pine Box) are the owners of all of the condominium units in the Washington Court Building Horizontal Property Regime as defined and established in a Declaration of Submission to Horizontal Property Regime filed on February 16, 2006, as Instrument No. 2006-2304 of the land records of Dubuque County, Iowa; and WHEREAS, the following described property is a part, but not all, of the land in the Washington Court Building Horizontal Property Regime, to wit: Lots 159, 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof; and WHEREAS, Lots 159, 160 and 161 were designated in the Declaration of Submission to Horizontal Property Regime to become a parking lot, and under ~2.03 of the Declaration of Submission to Horizontal Property Regime, said lots are currently part of Unit B of the Washington Court Building Horizontal Property Regime, which unit is owned by Washington Court, L.P.; and WHEREAS, Pine Box intends to lease Unit A of the Horizontal Property Regime to TriState Community Health (TriState) which will operate the Crescent Community Health Center (the Center) from Unit A; and WHEREAS, TriState needs additional parking for the Center and City believes that the Center and the acquisition of additional parking for the Center would be a benefit to the citizens of the City of Dubuque; and WHEREAS, City, Washington Court and Pine Box have negotiated an Agreement, a copy of which is now on file in the Office of the City Clerk, City Hall, 50 West 13th Street, Dubuque, Iowa, 52001-4864, pursuant to which City will convey the south half and the westerly 5 feet of the north % of the vacated alley legally described as Lot 159B, and the South % of Lot 157, the North % of Lot 157, the South % of Lot 158, and the North % of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa (the City Property), to Washington Court, in exchange for Washington Court and Pine Box conveying to City the North % of Lot 159 and Lots 160 and 161. City also agrees to grant to Pine Box a right of first refusal in the event that City should determine that it wishes to dispose of the North % of Lot 159, and Lots 160 and 161; and Whereas, pursuant to resolution and published notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa on thelOthday of November, 2006, the City Council of the City of Dubuque, Iowa met on the 20th day of November, 2006, at 6:30 p.m. in the Public Library Auditorium, 360 West 11 Street, Dubuque, Dubuque County, Iowa to consider the proposal for the exchange of real estate described above; and Whereas, the City Council of the City of Dubuque, Iowa overruled any and all objections, oral or written to the proposal. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Agreement between and among the City of Dubuque, Iowa, Washington Court, L.P., and Pine Box, LLLP is hereby approved. Section 2. The disposal of the City's interest in the south half and the westerly 5 feet of the north Y, of the vacated alley legally described as Lot 159B, and the South Y, of Lot 157, the North Y, of Lot 157, the South Y, of Lot 158, and the North Y, of Lot 158, all in East Dubuque Addition in the City of Dubuque, Dubuque County, Iowa, and the North Y, of Lot 159, and Lots 160 and 161, as set forth in the Agreement, is approved. Passed, approved and adopted this 20th day of November ,2006. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 Return to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. 564-06 RESOLUTION APPROVING PLAT OF PROPOSED VACATED ALLEY BETWEEN WASHINGTON STREET AND ELM STREET FROM 17TH STREET TO 18TH STREET Whereas, there has been presented to the City Council of the City of Dubuque, Iowa, a plat dated the 9th day of October, 2006, prepared by Buesing & Associates, describing the proposed vacated Lots 159A and 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa; and Whereas, said plat conforms to the laws and statutes pertaining thereto. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the plat dated the 9th day of October, 2006, prepared by Buesing & Associates, relative to the real estate hereinabove described be and the same is hereby approved, and the Mayor and City Clerk be and they are hereby authorized and directed to execute said plat for and on behalf of the City of Dubuque, Iowa. Section 2. The City of Dubuque reserves unto itself a perpetual easement including the right of ingress and egress thereto, for the purpose of erecting, installing, constructing, reconstructing, repairing, owning, operating, and maintaining water, sewer, drainage, gas, telephone, t.v. cable, and electric lines as may be authorized by the City of Dubuque, Iowa, as shown on the Plat of Survey of Lots 159A and 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa. Section 3. That the City Clerk be and is hereby authorized and directed to file said plat and certified copy of this resolution in the office of the Recorder in and for Dubuque County, Iowa. Passed, approved and adopted this Attes !~^ ~~ anne F. Schneider, CMC, City Clerk 20th day of November 0 ~r oy D. Buol, Mayor / \ > m ---~'° / Plot of Survey: ~ ~ ° Y / \ LOT 159A AND 1598 OF "EAST DUBUQUE" < ' w ® / AN ADDITION TO THE CITY OF DUBUQUE, IOWA, IRS / /~ \ in the City of Dubuque, Iowa YA TNESS PIN / ~ po~~l' RpW p\ DETAIL NO-SCALE , C ~~/ ~f\ \ BEING A VACATION OF AN ALLEY WAY BETWEEN 17TH ' Wl eb°A ~, STREET & 18TH STREET AND WASHINGTON STREET & Rp N / \ \ ELM STREET IN EAST DUBUQUE. AN ADDITION TO THE /~~EZ lb N~y;l~~l \6\ \ CITY OF DUBUQUE ~ c v ~ / ~N~`'R \~Gpl\o~~ SyT ~ ~ / ~ 9 \ r \ ~ o ~ ~ •II ~V o oO ( ' 06b~}j f ~ ~• / \bp ~ \\ ~~ \p SURVEYED PRpPERytt4g15 LOCATED IN THE ® ~ \ N Z YP p'y, LOS "'~ ~ NEl/4 OF SECTION 24, T89N, R2E ®..~a Q N ~ \yt^ (DUBUQUE TWP) OF THE 5TH P.M., IN THE ~~;o6E~O \ t \p1 W ~ \J ~ CITY OF DUBUOIlE. DUBUWE CWNtt, IOWA xp, 8wLt ' LO ~. ~~ ,~.a 56' % 20' EASEMENT FOR ~ ~ s II~ ~aA ~ C ~ \ P ~ ~O ~. EPMR AND~NAMTENANCE , ' ~O ` (L Zz r J • ~UiQ \ \O£ .F aF ENTRY DOOR CANOPr./ \ f ~ 9.. LL Q \ / / ~ T C. N ~ /wl.~i M ~~°`° N, / ~ ` LEGEND W~ ° ~' ~: ~06LLOY LL \ \/ ~ \p'S W \-OS yC` }1 FOUND 1~ IRON PIPE Yf \ ~ \.pS 76' 1MDE Z ~; ~ ~'~ \~£ ~ (UNLESS OTHERWISE NOTED) ; ~ [L V1 PEDESTRIAN EASEMEN V)~ / ~ V « \ ,^ \ ~V, ~' \ B PLACED MAC NAIL ~ r ~• N / ~ .~ \ O EOVNO MAGNATE \\~41 \\ a ~ / v), ~ _ ~ ~'~ \ ~ PUSLIC C P MARKED RKOEU(R 15x8)" ~ / £ ~ POUND 5/8•IRON REROD W/ORANfE \ C3, \/ d p N ~ ~~ I £ \ / ' \ A ' ,R ~ ` 1 d ~~\ `/ \ + \ PLASTC CAV YARNED 'KOELKER 1518]' \''~ Z \ ~^, \,pS ~~ ~ N i . ~ .N \ m, \ B FOUND i/2- ROW W/ItEO SMASHED CAP \ O W ~ ~ ~ d ~o ~' ® FOUND CUT '% .pL £N SIT /~ \m. N mW~ \Z m•£ \ ~` / ' m. W I.5' ro \ - - PROPERLY LINE OF RECORD ~~ N o ~• SURVEYED PROP. UNE O o \'f^ `'~ \ /jO ~i0• ~~~ / `pY ,St / \ \ - -CENTERLINE O z~=i 'J~ \ i ' ~ ,n tT' . ~ IT d ' / 'P \ - - E%ISTNC BUILDING FOOTPRINT Z ¢ n ~ a __ ______ __ _____ ~ Z~ylo^ i C` pS 9 O ~ ~ O. R~ / O£ - - - EASEMENT LINE ~~ u m s ~~ ~ \,Oj \ p9 ~ ~~ ~ ' ~ ( ) RECORDED DIMENSION w oOR o'~ ' \Pp ~ \ ~0~ ,}. / / T,'al Rp \ ROW RIGHT a WAY ~ o: £ \ ~ ~ T d ~~ F SQUARE FEET ~ ' \ / -N 5~I POB PgNT OF BEGINNING a >m \ ° N.J~ / 99 q9~1 ~ NOTES >o r >w \ ~r /. w pull / ~ bg9j S ~6A R / / (L) ALL /..LASIIREMENTS ARE W FEET AND DECIMALS iMEREOF. ~~ ~ ~ ~ ~•. - s P.O.B. s~~% (2) PRDPRIETOa: aTr a DUBUQUE `"o O 2~, 40, oo, \\ \ `DS \ 5~j ~• ~l ~ \~' (]) TOTAL. SURVEYED AREA: 5143 saARE FEET ¢ V \ / 56~ l~~ `\Nf, (4) LOT f59A AND l0i 1598 ARE RESERVED FOR UTRITY EASEMENTS W SCALE IN FEET \ ~~£ /5; W g99 / ~ _ K 1 ~~ = 40~ \ \ w z e / , xl INearanrrrrlwrTNxcwoauRVfrwooocusrrwra F v' ~% ~ PRVAR®ANDT1~RaAT®s+ALL~'xowlwASCerauEDm 11E aRUm1MY Dx1EGT PEAeONxL 91IPERYMIDNAICTIMTIAY W O \ / ~ ~ Aj.O••~•••••y~' ADULY IIDENBED I/JD 9MVEYOI UALERTHE LAN60F TIE \ MA2xiM W~'• IDxRY ~ _ W~ N Q / ~ ~ ~ 5b] r L. K (w ' MA TNE55 PIN YY UCFNSE gENEYUL DALE 5 DEfEIHR JI. AD) owA~p~` _ oNC.pszo.-o~ DETAIL NO-SCALE mmA SKE18 OD\EAED Br 1N15 SEAL SNEET 1 6 2 T SHEET 4, .~ •~ I IIIIIII IIIIII III VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII IIII IIII Doc ID: 005628120002 Type: GEN Recorded: 04/18/2007 at 11:22:11 AM Fee Amt: $12.00 Page 1 of 2 Dubuque County Iowa Kathy Flynn Thurlow Recorder Fi1e2007-00005454 Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13'h Street, Dubuque, IA 52001 (563) 589-4270 Returned to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. 565-06 RESOLUTION VACATING AN ALLEY BETWEEN WASHINGTON STREET AND ELM STREET FROM 17TH STREET TO 18TH STREET Whereas, John Gronen, representing Pine Box, LLLP and Washington Court, LP, has requested the vacating of an alley between Washington Street and Elm Street from 17th Street to 18th Street; and Whereas, Buesing & Associates has prepared and submitted to the City Council a plat showing the vacated alley between Washington Street and Elm Street from 17th Street to 18th Street and assigned lot numbers thereto, which hereinafter shall be known and described as Lots 159A and 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa; and Whereas, the City Council of the City of Dubuque, Iowa has determined that the alley between Washington Street and Elm Street from 17th Street to 18th Street is no longer required for public use, except for reserving the utility easements as noted, and vacating of said alley between Washington Street and Elm Street from 17th Street to 18th Street known as Lots 159A and 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa, should be approved. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the real estate described as Lots 159A and 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa, be and the same is hereby vacated. Passed, approved and adopted this Att eanne F. Schneider, CMC, City Clerk 20th day of Novem r , 2006. oy D. Buol, Mayor ~ #~a .°o ~y C~ `~. CERTIFICATE OF CITY CLERK STATE OF IOWA COUNTY OF DUBUQUE I, Jeanne F. Schneider, do hereby certify that I am the duly appointed, qualified, and acting Clerk of the City of Dubuque, Iowa in the County aforesaid, and as such Clerk I have in my possession or have access to the records of the proceedings of the City Council. I do further state that the hereto attached Resolution No. 565-06 is a correct copy of the original Resolution No. 565-06 approved and adopted by the City Council of the City of Dubuque, Iowa, at a session held by said Council on the 20th day of November, 2006. In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque, Iowa. Dated at Dubuque, Iowa on this 21 ~ day of November, 2006. ~-w ~;. ~: s ` ~.~ ~ ~ }~ °3 g,- t~ ~ } ~' 4 ~ ~~ ~~}~ ~~,~~~' :, ~' ., I ~ ~ ~'~~t a,., ; ~~ a; _ '" $~ e 3 MC~, ~~~~ ~I~ '~., „ / ,~. ~ ;; ~. k~. ~. . aA. ;~ ~'~ Wt - # eanne F. Schneider, CMC City Clerk Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 Returned to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. 566-06 RESOLUTION DISPOSING OF CITY INTEREST IN LOT 1596 of "EAST DUBUQUE" AN ADDITION IN THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA Whereas, pursuant to resolution and published notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa on this27th day of October , 2006, the City Council of the City of Dubuque, Iowa met on the 6tn day of November 2006, at 6:30 p.m. in the Public Library Auditorium, 360 West 11 Street, Dubuque, Dubuque County, Iowa to consider the proposal for the sale of real estate described as: Lot 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa Whereas, the City Council of the City of Dubuque, Iowa overruled any and all objections, oral or written to the proposal to sell such real estate, except for easement as noted. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the sale of City of Dubuque real property described as Lot 1596 of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa, to Washington Court, LP be and the same is hereby approved for the exchange of properties. Conveyance shall be by Quit Claim Deed. Section 2. That the Mayor be authorized and directed to execute a Quit Claim Deed, and the City Clerk be and is hereby authorized and directed to deliver said deed of conveyance to Washington Court, LP, upon receipt of the executed Agreement among Washington Court, LP, Pine Box, LLLP, and the City of Dubuque. Section 3. That the City Clerk be and is hereby authorized and directed to record a certified copy of this resolution in the offices of the City Assessor, Dubuque County Recorder and Dubuque County Auditor. Passed, approved and adopted this 2otn day O November 2006. /~ AI A ~ ,1 ter; V ~- oy D. Buo ,Mayor Attes ~ ~_ eanne F. Schneider, CMC, City Clerk AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, WASHINGTON COURT, L.P., AND PINE BOX, LLLP This Agreement, dated for reference purposes the _ day of , 2006, is made and entered into by and among the City of Dubuque, Iowa, Washington Court, L.P., and Pine Box, LLLP. WHEREAS, the City of Dubuque (City) is the owner, or intends to acquire, the following described property in Dubuque, Iowa: The South Yz of Lot 157, the North Yz of Lot 157, the South Yz of Lot 158, and the North Yz of Lot 158, all in East Dubuque Addition in the City of Dubuque, Dubuque County, Iowa; and WHEREAS, Washington Court, L.P. (Washington Court) and Pine Box, LLLP (Pine Box) are the owners of all of the condominium units in the Washington Court Building Horizontal Property Regime as defined and established in a Declaration of Submission to Horizontal Property Regime filed on February 16, 2006, as Instrument No. 2006-2304 of the land records of Dubuque County, Iowa; and WHEREAS, the following described property is a part, but not all, of the land in the Washington Court Building Horizontal Property Regime, to wit: Lots 159, 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof; and WHEREAS, Lots 159, 160 and 161 were. designated in the Declaration of Submission to Horizontal Property Regime to become a parking lot, and under S2.03 of the Declaration of Submission to Horizontal Property Regime, said lots are currently part of Unit B of the Washington Court Building Horizontal Property Regime, which unit is owned by Washington Court, L.P.; and WHEREAS, Pine Box intends to lease Unit A of the Horizontal Property Regime to TriState Community Health (TriState) which will operate the Crescent Community Health Center (the Center) from Unit A; and WHEREAS, TriState needs additional parking for the Center and City believes that the Center and the acquisition of additional parking for the Center would be a benefit to the citizens of the City of Dubuque. 1 NOW, THEREFORE, it is agreed by and among the parties as follows: SECTION 1. ALLEY VACATION. City agrees to vacate, at City's cost, no later than December 31, 2006, the alley shown on the Site Diagram, Exhibit A, attached hereto. SECTION 2. CONSTRUCTION OF CITY PARKING LOT IMPROVEMENTS BY CITY. City shall, at its sole expense, construct the City Parking Lot on the North Y, of Lot 159, and Lots 160 and 161, according to plans approved by City and consistent with City standards and specifications. Washington Court and Pine Box shall grant to City a construction easement on the North Y, of Lot 159 and Lots 160 and 161 for the construction of the City Parking Lot. Prior to construction, City shall submit the plans and specifications to Washington Court and Pine Box for their review and comment. Washington Court and Pine Box shall have until Nov. 9th, 2006 to approve or disapprove of the plans and specifications. In the event that Washington Court or Pine Box disapprove of the plans or specifications, they may terminate this Agreement as provided in Section 4.2(4) hereof. SECTION 3. EXCHANGE OF PROPERTY. 3.1 Property to be Exchanged. City shall convey the south half of the vacated alley shown on Exhibit A, reserving public utility easements as shown on Exhibit A, and the South Y, of Lot 157, the North Y, of Lot 157, the South Y, of Lot 158, and the North Y, of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa (the City Property), to Washington Court, in exchange for Washington Court and Pine Box conveying to City the North Y, of Lot 159 and Lots 160 and 161. Prior to the conveyance, City shall, at its expense, remove the houses currently located on Lots 157 and 158, and dispose of all refuse or materials, including but not limited to environmentally hazardous materials, left or caused by the demolition or removal, and shall restore the ground on those lots to a level surface. 3.2 Amendment to Horizontal Property Regime. Pine Box and Washington Court shall amend the Declaration of Submission to Horizontal Property Regime to remove the North Y, of Lot 159 and Lots 160 and 161 from the Horizontal Property Regime and replace them with the City Property. The City Property shall be made a part of Unit B of the Horizontal Property Regime as parking lots. 3.3 Title to Be Delivered By City. City agrees to convey good and marketable fee simple title in the City Property Washington Court subject only to easements, restrictions, conditions and covenants of record as of the date hereof to the extent not objected to by Washington Court as set forth in this Agreement. (1) City, at its sole cost and expense, shall deliver to Washington Court an abstract of title to the City Property continued through the date of this Agreement reflecting merchantable title in City in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all 2 encumbrances and matters of record applicable to the City Property, and such abstract shall become the property of Washington Court after closing. (2) Washington Court shall have until time of the Closing Date to render objections to title, including any easements or other encumbrances not satisfactory to Washington Court in writing to City. Washington Court agrees, however, to review the Abstract promptly following Washington Court's receipt of Washington Court's Abstract and to promptly provide City with any objections to title identified therein. Nothing herein shall be deemed to limit Washington Court's rights to raise new title objections with respect to matters revealed in any subsequent title examinations and surveys and which were not identified in the Abstract provided by the City. City shall promptly exercise its best efforts to have such title objections removed or satisfied and shall advise Washington Court of intended action within ten (10) days of such action. If City shall fail to have such objections removed as of the Closing Date, or any extension thereof consented to by Washington Court, Washington Court may, at its sole discretion, either (a) terminate this Agreement without any liability on its part, or (b) take title subject to such objections. City agrees to use its best reasonable efforts to promptly satisfy any such objections. (3) RiQhts of Inspection. TestinQ and Review. Washington Court, its counsel, accountants, agents and other representatives, shall have full and continuing access to the City Property, and all parts thereof, upon reasonable notice to City. Washington Court and its agents and representatives shall also have the right to enter upon the City Property at any time after the execution and delivery hereof for any purpose whatsoever, including inspecting, surveying, engineering, test boring, performance of environmental tests, provided that Washington Court shall hold City harmless and fully indemnify City against any damage, claim, liability or cause of action arising from or caused by the actions of Washington Court, its agents, or representatives upon the City Property (except for any damage, claim, liability or cause of action arising from conditions existing prior to any such entry upon the City Property), and shall have the further right to make such inquiries of governmental agencies and utility companies, and to make such feasibility studies and analyses as it considers appropriate. (4) Environmental TestinQ Bv City. City shall pay for and provide to Washington Court a Phase I Environmental Assessment of the City Property. The Phase I Environmental Assessment shall comply with the requirements of ASTM E1527-05 and shall authorize reliance by Washington Court and Pine Box. If the Phase I Assessment reveals that a Phase II Assessment is recommended, City in its sole discretion may elect to terminate this Agreement or pay for and provide to Washington Court a Phase II Assessment. If Washington Court and Pine Box determine that any remediation of the City Property is required, City may elect to remediate the City Property to those standards as may be required by law pursuant to a schedule acceptable to all parties or terminate this Agreement. 3.4 Title to Be Delivered by Washington Court and Pine Box. Washington Court and Pine Box agree to convey good and marketable fee simple title in the North Y, of 3 Lot 159, and Lots 160 and 161 to City subject only to easements, restrictions, conditions and covenants of record as of the date hereof to the extent not objected to by City as set forth in this Agreement. (1) Washington Court and Pine Box, shall at their sole cost and expense, shall deliver to City an abstract of title to the North Y, of Lot 159, and Lots 160 and 161 continued through the date of this Agreement reflecting merchantable title in Washington Court as a part of Condominium Unit B, in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all encumbrances and matters of record applicable to North Y, of Lot 159, and Lots 160 and 161 and such abstract shall become the property of City after closing. (2) City shall have until time of the Closing Date to render objections to title, including any easements or other encumbrances not satisfactory to City, in writing to Washington Court and Pine Box. City agrees, however, to review the Abstract promptly following City's receipt of the abstract and to promptly provide Washington Court and Pine Box with any objections to title identified therein. Nothing herein shall be deemed to limit City's rights to raise new title objections with respect to matters revealed in any subsequent title examinations and surveys and which were not identified in the Abstract provided by Washington Court and Pine Box. Wa~hington Court and Pine Box shall promptly exercise their best efforts to have such title objections removed or satisfied and shall advise City of intended action within ten (10) days of such action. If Washington Court or Pine Box shall fail to have such objections removed as of the Closing Date, or any extension thereof consented to by City, City may, at its sole discretion, either (a) terminate this Agreement without any liability on its part, or (b) take title subject to such objections. Washington Court and Pine Box agree to use their best reasonable efforts to promptly satisfy any such objections. (3) Rights of Inspection. Testing and Review. City, its counsel, accountants, agents and other representatives, shall have full and continuing access to the North Y, of Lot 159, and Lots 160 and 161 and all parts thereof, upon reasonable notice to Washington Court and Pine Box. City and its agents and representatives shall also have the right to enter upon the North Y, of Lot 159, and Lots 160 and 161 at any time after the execution and delivery hereof for any purpose whatsoever, including inspecting, surveying, engineering, test boring, performance of environmental tests, provided that City shall hold Washington Court and Pine Box harmless and fully indemnify Washington Court and Pine Box against any damage, claim, liability or cause of action arising from or caused by the actions of City, its agents, or representatives upon North Y, of Lot 159, and Lots 160 and 161 (except for any damage, claim, liability or cause of action arising from conditions existing prior to any such entry upon North Y, of Lot 159, and Lots 160 and 161), and shall have the further right to make such inquiries of governmental agencies and utility companies, and to make such feasibility studies and analyses as it considers appropriate. (4) Environmental Testing Bv Washington Court and Pine Box. Washington Court and Pine Box shall pay for and provide to City a Phase I Environmental 4 Assessment of the North Yz of Lot 159, and Lots 160 and 161. The Phase I Environmental Assessment shall comply with the requirements of ASTM E1527-05 and shall authorize reliance by City. If the Phase I Assessment reveals that a Phase II Assessment is recommended, Washington Court. and Pine Box shall pay for and provide to City a Phase II Assessment. If City in its sole discretion determines that any remediation of the North Yz of Lot 159, and Lots 160 and 161 is required, Washington Court and Pine Box may elect to remediate the North Yz of Lot 159, and Lots 160 and 161 to those standards as may be required by law pursuant to a schedule acceptable by all parties or terminate this Agreement. SECTION 4. CLOSING. 4.1 Closing Date. The closing shall take place on or before the 1st of June, 2007, or such other date as the parties shall agree in writing (the Closing Date). Consummation of the closing shall be deemed an agreement by all of the parties to this Agreement that the conditions of closing shall have been satisfied or waived. 4.2 Conditions to Closing. The closing of the transactions contemplated by this Agreement and all the obligations of Washington Court, Pine Box and City under this Agreement are subject to fulfillment, on or before the Closing Date, of the following conditions: (1) Washington Court, Pine Box and City shall be in material compliance with all the terms and provisions of this Agreement. (2) TriState. Pine Box shall have provided City with an executed copy of a lease with (3) Agreement of City, Washington Court and Pine Box on the terms of the easements and licenses required by this Agreement. (4) City, Washington Court and Pine Box shall have the right to terminate this Agreement at any time prior to the consummation of the closing on the Closing Date if City, Washington Court or Pine Box determine in their individual sole discretion that conditions necessary for the successful completion of the transactions contemplated herein have not been satisfied to the full satisfaction of such party in such party's sole and unfettered discretion. Upon the giving of notice of termination by such terminating party to the other parties to this Agreement, this Agreement shall be deemed null and void. In the event that this Agreement is terminated after City has expended funds to construct a parking lot on the property that will be conveyed to City, then Washington Court will reimburse City but only as follows: (a) If City has completed construction, the maximum reimbursement shall be the amount Washington Court would have been required to expend to complete the parking lot in accordance with the site plan approved by City on North Yz of 5 Lot 159, and Lots 160 and 161, minus any amounts expended by Washington Court in improving Lots 157 and 158. (b) If City has not completed construction, a firm bid from a reputable contractor shall be obtained to determine the cost of completing the construction of a parking lot to the specifications originally contemplated by Washington Court for the parking it intended to create on those lots, or as near thereto as may be reasonably possible, and the reimbursement shall be the difference between the cost of the completion of the project and the amount Washington Court would have been required to expend to complete the parking lot in accordance with the site plan approved by City on North Yo of Lot 159, and Lots 160 and 161, minus any amounts expended by Washington Court in improving Lots 157 and 158. 4.3 City's Obligations at Closing. At or prior to the Closing Date, City shall: (1) Deliver to Washington Court, City's duly recordable Special Warranty Deed to the City Property conveying to Washington Court marketable fee simple title to the City Property and all rights appurtenant thereto, subject only to easements, restrictions, conditions and covenants of record as of the date hereof and not objected to by Washington Court. (2) Deliver to Washington Court the Abstract of Title to the City Property. (3) Deliver to Washington Court such other documents as may be required by this Agreement, all in a form satisfactory to Washington Court. 4.4 Obligations of Washington Court and Pine Box at Closing. At or prior to the Closing Date, Washington Court and Pine Box shall: (1) Deliver to City a duly recordable Special Warranty Deed to the North Yo of Lot 159 and Lots 160 and 161 conveying to City marketable fee simple title in and to said lots and all rights appurtenant thereto, subject only to easements, restrictions, conditions and covenants of record as of the date hereof and not objected to by City as set forth in this Agreement. . (2) Deliver to City the Abstract of Title to North Yo of Lot 159 and Lots 160 and 161. (3) Deliver to City such other documents as may be required by this Agreement, all in a form satisfactory to City. 4.5 Real Estate Taxes. City and Washington Court for their respective properties shall each pay all real estate taxes for all fiscal years that end prior to the Closing Date. Real estate taxes for the fiscal year in which the Closing Date occurs shall be prorated between City and Washington Court to the Closing Date on the basis of a 365-day calendar year. City and Washington Court shall payor cause to be paid all real estate 6 taxes due in subsequent fiscal years. Any proration of real estate taxes on the properties shall be based upon such taxes for the year currently payable. SECTION 5. EASEMENT FOR GEOTHERMAL WELLS. Washington Court and Pine Box may reserve in the instrument conveying the North Y, of Lot 159, and Lots 160 and 161 to City such easement as may be necessary, subject to City's approval, to maintain and repair the geothermal wells located on North Y, of Lot 159, and Lots 160 and 161 which serve the Center. SECTION 6. CANOPY EASEMENT. City agrees to grant to Washington Court and Pine Box (which party is getting the canopy?) an easement for the construction, repair and maintenance of a canopy as shown on Exhibit A. SECTION 7. UTILITY RELOCATION COSTS. Washington Court and Pine Box shall pay for the cost of any utility relocations that may be necessary under this Agreement. SECTION 8. SIGNAGE. City agrees to grant to Pil")~"a9X (is;this pine Box or Washington Court?) an easement for a sign as shown on Exhibit A for the installation of such utilities as may be necessary to install and operate the sign. Pine Box shall be responsible for the costs of installing and operating the sign. SECTION 9. USE OF CITY PARKING LOT. Washington Court and Pine Box acknowledge that the City Parking Lot to be constructed on the North Y, of Lot 159 and Lots 160 and 161 shall at all times be under the sole and exclusive control of City and City shall have the right in its sole discretion to determine the use of the City Parking Lot. Until such time as Washington Court has been able to complete the parking lot improvements which it will construct on Lots 157 and 158, but no later than July 1, 2007, City will provide ten designated and signed parking stalls on the North Y, of Lot 159 and Lots 160 and 161 (City Parking Lot) to meet the needs of Washington Court's residential tenants. SECTION 10. GENERAL TERMS AND PROVISIONS. 10.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and s~nt by registered or certified mail, postage prepaid, addressed as follows: If to Washington Court: Community Housing Initiatives, Inc. Attention: Doug LaBounty, President 14 W 21st Street, Suite 3 PO Box 473 Spencer, IA 51301-0473 7 If to Pine Box: Gronen Restoration, Inc. John Gronen 1766 Plymouth Court Dubuque, Iowa 52003 If to City: City Manager 50 W. 13th Street Dubuque, Iowa 52001 Phone: (563) 589-4110 Fax: (563) 589-4149 With copy to: City Attorney City Hall 50 W. 13th Street Dubuque IA 52001 Or at such other address with respect to either party as that party may, from time to time designate in writing and forward to the other as provided in this Section. 10.2 Memorandum of Agreement. Washington Court shall promptly record a Memorandum of Development Agreement in the form attached hereto in the office of the Recorder of Dubuque County, Iowa, and shall pay the costs for so recording. 10.3 Value of Property to be Exchanged. The parties state that this is an arms length transaction, and that the values of the parcels to be exchanged are equal. SECTION 11. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of all of the parties and their respective successors and assigns. SECTION 12. RIGHT OF FIRST REFUSAL. City hereby grants to Pine Box a right of first refusal in the form attached hereto as Exhibit B in the event that the City should determine that it wishes to dispose of the North Y, of Lot 159, and Lots 160 and 161, and receives an offer for the purchase of said property which the City intends to accept. WASHINGTON COURT, L.P. By Doug LaBounty CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor PINE BOX, LLLP By John Gronen Attest: Jeanne F. Schneider, City Clerk (City Seal) 8 Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 MEMORANDUM OF AGREEMENT An Agreement by and among the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, Washington Court, LP, and Pine Box, LLLC, was made regarding the following described premises: The South Yz of Lot 157, the North Yz of Lot 157, the South Yz of Lot 158, and the North Yz of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa; And The North Yz of Lot 159, and Lots 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof The Agreement is dated for reference purposes the _ day of 20_, and contains covenants, conditions, and restrictions concerning 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 itself, executed by the parties, the terms and provisions of the Agreement shall prevail. A complete counterpart of the Agreement, 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 _ day of ,20_ WASHINGTON COURT, L.P. PINE BOX, LLLP, By By Doug LaBounty John Gronen CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor 9 By: Jeanne F. Schneider, City Clerk STATE OF IOWA Ss: DUBUQUE COUNTY On this _day of ,20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, 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 Corporation by it voluntarily executed. Notary Public, State of Iowa STATE OF 55: COUNTY On this _ day of , 20_, before me, a Notary Public in and for the State of , in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the of Washington Court, L. P., and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa 10 STATE OF ss: COUNTY On this _ day of , 20_, before me, a Notary Public in and for the State of , in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the of Pine Box, LLLP and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa 11 EXHIBIT A SITE DIAGRAM 12 : / OOg ~ m ~~ " ~ g ~ ~ " <:---"-- ...... I ?,~' " _!; . i'-~I ~:f/ }, '1 ::J -< :,'1 , , ,f; o! ~ , < I' "I' !r~r ~ filL ~ ~!.:~ :) ~H~ : lid 2 j t ::: ::1 , , , 38m B!.::J~ "00 " --3 ~ 2 m ~g3. @ .!5 Q' iD ~ -g " -0 .~ -c ~'" ~ 18th STREET ", . , ~" "0 0._ C 0 :%'.g. a:~ t!:a: " 'L~ I_~ ~ -, ~ 3 q I " " llQ' 1"1 ~I o H . ..J"" r ""'U,}' :;;"'6 I I, "",~",i'r' , , )> -c -c a x 3' ~ co () 5' o ~ "" o " So ~ ';. i~ "~" ~),\ Cr, II: 1 ; : i I I: I I I I I I I I 1 -L-.J , , I. ~ l " , " I i;j I~ , m r s: (J) -l ;0 m m -l j() .. , ~p < -.......,.-- ~~~,i~~~~"'.,""'..::"'i:,. . , 1:1 T . . ;t ,~\ , LF'> I' '<. 1 t.,-.. , 1'/ 17th STREET 13 EXHIBIT B RIGHT OF FIRST REFUSAL If City desires to sell, lease, condemn, develop, assign or otherwise transfer the North % of Lot 159, and Lots 160 and 161 (the Property), Pine Box shall have an option and right of first refusal to purchase or lease the Property as provided herein. If City has received a bona fide offer to purchase or lease the Property from a third party which City desires to accept, City shall deliver to Pine Box a copy of such offer specifying the name and address of the perspective transferee, the portion of the Property to be transferred, the proposed purchase price or lease payment and all other important terms of the proposed transfer, and City shall offer to sell, transfer or lease the Property to Pine Box on the terms contained in such bona fide offer. Pine Box shall, within sixty (60) days after receipt of a copy of the bona fide offer, by written notice to City, elect either to: (a) exercise its rights of first refusal to purchase or lease the Property proposed to be transferred on the terms recited in the bona fide offer; or (b) waive its right of first refusal to purchase or lease the Property proposed to be transferred. If Pine Box exercises its right of first refusal, City shall transfer or lease, as the case may be, the Property to Pine Box within ninety (90) days of the exercise by Pine Box of its right of first refusal. If Pine Box waives its right of first refusal in the manner set forth above, City shall have the right to consummate the transfer upon terms and conditions substantially the same as and no less favorable to City then those contained in the bona fide offer. 16 ;;dfl~ --t- // /;?C~~ Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 Return to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. RESOLUTION APPROVING PLAT OF PROPOSED VACATED ALLEY BETWEEN WASHINGTON STREET AND ELM STREET FROM 17TH STREET TO 18TH STREET Whereas, there has been presented to the City Council of the City of Dubuque, Iowa, a plat dated the 9th day of October, 2006, prepared by Buesing & Associates, describing the proposed vacated Lots 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa; and Whereas, said plat conforms to the laws and statutes pertaining thereto. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the plat dated the 9th day of October, 2006, prepared by Buesing & Associates, relative to the real estate hereinabove described be and the same is hereby approved, and the Mayor and City Clerk be and they are hereby authorized and directed to execute said plat for and on behalf of the City of Dubuque, Iowa. Section 2. The City of Dubuque reserves unto itself a perpetual easement including the right of ingress and egress thereto, for the purpose of erecting, installing, constructing, reconstructing, repairing, owning, operating, and maintaining water, sewer, drainage, gas, telephone, t.v. cable, and electric lines as may be authorized by the City of Dubuque, Iowa, as shown on the Plat of Survey of Lots 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa. Section 3. That the City Clerk be and is hereby authorized and directed to file said plat and certified copy of this resolution in the office of the Recorder in and for Dubuque County, Iowa. Passed, approved and adopted this day of Attest: Jeanne F. Schneider, CMC, City Clerk .. Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589-4270 Returned to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. RESOLUTION VACATING AN ALLEY BETWEEN WASHINGTON STREET AND ELM STREET FROM 17TH STREET TO 18TH STREET Whereas, John Gronen, representing Pine Box, LLLP and Washington Court, LP, has requested the vacating of an alley between Washington Street and Elm Street from 17th Street to 18th Street; and Whereas, Buesing & Associates has prepared and submitted to the City Council a plat showing the vacated alley between Washington Street and Elm Street from 17th Street to 18th Street and assigned lot numbers thereto, which hereinafter shall be known and described as Lots 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa; and Whereas, the City Council of the City of Dubuque, Iowa has determined that the alley between Washington Street and Elm Street from 17th Street to 18th Street is no longer required for public use, except for reserving the utility easements as noted, and vacating of said alley between Washington Street and Elm Street from 17th Street to 18th Street known as Lots 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa, should be approved. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the real estate described as Lots 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa, be and the same is hereby vacated. Passed, approved and adopted this day of Attest: Jeanne F. Schneider, CMC, City Clerk .. Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 Returned to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. RESOLUTION DISPOSING OF CITY INTEREST IN LOT 159B of "EAST DUBUQUE" AN ADDITION IN THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA Whereas, pursuant to resolution and published notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa on this _ day of , 2006, the City Council of the City of Dubuque, Iowa met on the day of , 2006, at 6:30 p.m. in the Public Library Auditorium, 360 West 11 Street, Dubuque, Dubuque County, Iowa to consider the proposal for the sale of real estate described as: Lot 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa Whereas, the City Council of the City of Dubuque, Iowa overruled any and all objections, oral or written to the proposal to sell such real estate, except for easement as noted. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the sale of City of Dubuque real property described as Lot 159B of "East Dubuque" an Addition in the City of Dubuque, Dubuque County, Iowa, to Washington Court, LP be and the same is hereby approved for the exchange of properties. Conveyance shall be by Quit Claim Deed. Section 2. That the Mayor be authorized and directed to execute a Quit Claim Deed, and the City Clerk be and is hereby authorized and directed to deliver said deed of conveyance to Washington Court, LP, upon receipt of the executed Agreement among Washington Court, LP, Pine Box, LLLP, and the City of Dubuque. .' Section 3, That the City Clerk be and is hereby authorized and directed to record a certified copy of this resolution in the offices of the City Assessor, Dubuque County Recorder and Dubuque County Auditor. Passed, approved and adopted this 2006. Attest Jeanne F. Schneider, CMC, City Clerk 0' ./" \ \ \ \ \ \ .< ~i . ~ " ," :431 >z :;; '"'''''''''''''' /' L1Ct'" %} .......~.se't, i3' ..... ....o~~ ~~i ,ii 'n ", . 0' ,~. \', "c .'1 '~~"';'o~~~ ''''''"1''"'''''''- ~ " ~ ~P'Ui ~~ih ~~~~ "~~H <;oili.... 1m ";:~ . ,I!. . ~ Ill! I ,1 , " ~ o~ I", '"' lltO."m B..o ~i!3. -, , , . ... E ~ SHFET TITLE PLAT OF SURVEY , . ~ ~ . 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C i l!'! ~ ~~~ I::~~ e "':t '.5 ,_, ~ 10l : ~ .l:' g ~ ;0. '" (II Z ~ ~ E ~ ",,,,"'''' Gl g .... e > ~ ~ c " ~ ~ ~ < e . . ~ " I , I ~g~~~~~~~ ;~~~~~~2~ -., '='... '" :z Q -< ~5~~~~'"~~ " z " '" ~ g:~; ~ " .:: ~ ~ .,,"''''- @ ...~ ~ c " n ~ ~ ~ i'ROJECT NO. 06204 SURVEY REOUESTED8Y: RON TURNER C;O CITY OF DuauaUE 50 wEST\Jth STREET oU8uaUE,IA.52001 (563)559-4270 [\ ~ \l c l' '? (1\ ~ \ ./" III .. 0 '" = . c i~ "' " co r c >> ~~ Cl < ~n Cl c no ~, ,Cl ~ n, n~ ~ 0 Z .> .' ~~ "' "', 0 0 d ~~ . , .0 h .< " , ^. :q~ ~ cO 8~ < "8 ,. c < ~~ ~g "'~ ~ ~~ ~~ ,< n ~~ ~~ > " BYI5,'''J~G EHf;JNEERS -lND susrBYORS 1212 CllO.I$TST,OUllllOllt.l4 (9JI~~ . D~~~E ~~~ MEMORANDUM October 30,2006 :"" TO: The Honorable Mayor and City Council Members Li i_:",l "-.) FROM: Michael C. Van Milligen, City Manager SUBJECT: Vacating Petition - Alley between Washington Street and Elm Street from 17th to 18th Streets City Engineer Gus Psihoyos is recommending City Council approval of a request received from John Gronen, representing Pine Box, LLLP and Washington Court, LP, to vacate the alley between Washington Street and Elm Street from 17th to 18th Streets, which is intended to be done as a land exchange to facilitate development of a parking lot. I concur with the recommendation and respectfully request Mayor and City Council approval. ft.l ~All Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer o. D~~~E ~~~ MEMORANDUM October 27, 2006 TO: Michael C. Van Milligen, City Manager FROM: Gus Psihoyos, City Engineer ,)2jQ SUBJECT: Vacating Petition - Alley between Washington Street and Elm Street from 17th to 18th Streets INTRODUCTION A request has been received from John Gronen, representing Pine Box, LLLP and Washington Court, LP for the vacating of an alley between Washington Street and Elm Street from 17th to 18th Streets. DISCUSSION The area to be vacated is divided into two lots numbered Lot 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Iowa. The area is an existing 20-foot wide alley between Washington Street and Elm Street from 17th to 18th Streets on which public utilities exist. Perpetual easement rights will be reserved over the entire vacated area for maintenance of the existing sanitary sewer, watermain, and other utilities. The City has coordinated the relocation of cable television and telephone with company representatives. The property has been valued as part of an exchange of properties with Washington Court, LP to create parcels of equal size, as outlined in an Agreement by and among the City of Dubuque, Washington Court, LP, and Pine Box, LLLP. The City plans to utilize the easterly 15 feet of the north half of the alley for a proposed City parking lot. The remainder of the alley will be incorporated into improvements being made by Washington Court, LP and Pine Box, LLLP. . .' RECOMMENDATION I would recommend that the areas indicated by Lot 159A and 159B of "East Dubuque" an Addition in the City of Dubuque, Iowa, on the attached plat be vacated, and that a public hearing be set for the disposition of the City's interest in the subject area of said Lot 159B on November 6, 2006. I would further recommend that the purchase price be established as part of an exchange of properties with Pine Box, LLLP and Washington Court, LP per the Agreement, Lot 159B will be deeded to Washington Court, LP. ACTION TO BE TAKEN The recommendation of the City Manager should be approved and a public hearing should be held on the disposal of the property through the adoption of the enclosed resolutions. Prepared by Ronald J. Turner, PLS IIII mimu imam uu u 11 11 Doc ID 005815950005 Type GEN Recorded: 10/22/2007 at 12:37:36 PM Fee Amt: $27.00 Page 1 of 5 Dubuque County Iowa Kathy Flynn Thurlow Recorder File2007_00016037 Prepared by: Ronald J. Turner, City of Dubuque, 50W. 13th Street, Dubuque, Iowa (563) 589-4270 Returned to: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, Iowa (563) 589-4270 RESOLUTION NO. 563-06 RESOLUTION APPROVING THE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, WASHINGTON COURT, L.P., AND PINE BOX, LLLP AND DISPOSING OF CITY INTEREST IN THE SOUTH HALF AND THE WESTERLY 5 FEET OF THE NORTH '/2 OF THE VACATED ALLEY LEGALLY DESCRIBED AS LOT 159B, THE SOUTH 1/2 OF LOT 157, THE NORTH % OF LOT .157, THE SOUTH 1/2 OF LOT 158, AND THE NORTH Y4 OF LOT 158, ALL IN EAST DUBUQUE ADDITION IN THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA AND IN THE CITY'S INTEREST IN LOTS 159, 160 AND 161. IN EAST DUBUQUE, AN ADDITION TO THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA, ACCORDING TO THE RECORDED PLAT THEREOF ACCORDING TO THE AGREEMENT WHEREAS, the City of Dubuque (City) is the owner, or intends to acquire, the following described property in Dubuque, Iowa: The South '/ of Lot .157, the North 1/2 of Lot 157, the South �/2 of Lot 158, and the North 1/2 of Lot 158, all in East Dubuque Addition in the City of Dubuque, Dubuque County, Iowa; and WHEREAS, Washington Court, L.P. (Washington Court) and Pine Box, LLLP (Pine Box) are the owners of all of the condominium units in the Washington Court Building Horizontal Property Regime as defined and established in a Declaration of Submission to Horizontal Property Regime filed on February 16, 2006, as Instrument No. 2006-2304 of the land records of Dubuque County, Iowa; and WHEREAS, the following described property is a part, but not all, of the land in the Washington Court Building Horizontal Property Regime, to wit: Lots 159, 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof; and WHEREAS, Lots 159, 160 and 161 were designated in the Declaration of Submission to Horizontal Property Regime to become a parking lot, and under §2.03 of the Declaration of Submission to Horizontal Property. Regime, said lots are currently part of Unit B of the Washington Court Building Horizontal Property Regime, which unit is owned by Washington Court, L.P.; and WHEREAS, Pine Box intends to lease Unit A of the Horizontal Property Regime. to TriState Community Health (TriState) which will operate the Crescent Community Health Center (the Center) from Unit A; and WHEREAS, TriState needs additional parking for the Center and. City believes that the Center and the acquisition of additional parking for the Center would be a benefit to the citizens of the City of Dubuque; and WHEREAS, City, Washington Court and Pine Box have negotiated an Agreement, a copy of which is now on file in the Office of the City Clerk, City Hall, 50 West 13th Street, Dubuque, Iowa, 52001-4864, pursuant to which City will convey the south half and the westerly 5 feet of the. north / of the vacated alley legally described as Lot 159B, and the South '/2 of Lot 157, the North 1/2 of Lot 157, the South 1/2 of Lot 158, and the North '/2 of Lot 158, all in East Dubuque. Addition in the city of Dubuque, Dubuque County, Iowa (the City Property), to Washington Court, in exchange for Washington Court and Pine Box conveying to City the North % of Lot 159 and Lots 160 and 161. City also agrees to grant to Pine Box a right of first refusal in the event that City should determine that it wishes to dispose of the North 1/2 of Lot 159, and Lots 160 and 161; and Whereas, pursuant to resolution and published notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa on the lotnday of November, 2006, the City Council of the City of Dubuque, Iowa met on the 20th day of November, 2006, at 6:30 p.m. in the Public Library Auditorium, 360 West 11 Street, Dubuque, Dubuque County, Iowa to consider the proposal for the exchange of real estate described above; and Whereas, the City Council of the City of Dubuque, Iowa overruled any and all objections, oral or written to the proposal. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Agreement between and among the City of Dubuque, Iowa, Washington Court, L.P., and Pine Box, LLLP is hereby approved. Section 2. The disposal of the City's interest in the south half and the westerly 5 feet of the north 1/2 of the vacated alley legally described as Lot 159B, and the South 1/2 of Lot 157, the North % of Lot 157, the South IA of Lot 158, and the North % of Lot 158, all in East Dubuque Addition in the City of Dubuque, Dubuque County, Iowa, and the North % of Lot 159, and Lots 160 and 161, as set forth in the Agreement, is approved. Passed, approved and adopted this 20th,day of November 2006. Attest: eanne F. Schneider, CMC, City Clerk Roy D. Buol, Mayor CERTIFICATE OF CITY CLERK STATE OF IOWA ) COUNTY OF DUBUQUE ) I, Kevin S. Firnstahl, do hereby certify that I am the duly appointed, qualified, and Assist City Clerk of the City of Dubuque, Iowa in the County aforesaid, and as such Clerk I have in my possession or have access to the records of the proceedings of the City Council. I do further state that the hereto attached Resolution No.563-06 is a correct copy of the original Resolution No. 563-06 approved and adopted by the City Council of the City of Dubuque, Iowa, at a session held by said Council on the 20th day of November, 2006. In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque, Iowa. Dated at Dubuque, Iowa on this 23rd day of May, 2007 K- in S. Firnstahl Assist City Clerk CITY OF DUBUQUE, IOWA • OFFICIAL NOTICE NUDGE is hereby given that the Dubuque. City Council wilt conduct a public hearing ata meeting i AD commence at 8:90 P.M. on November 26, 2006, in Ike Publlo Library rwy Audttori- um, 360 West 11th Street, to consider disposing of the south half end the westerly 5 feat of the north 14 of the vacated alley le- ge8y described as . Lot 1598, and the South 14 of La1157, the North Y2 of Lot 157, the South K et Lot 158, and the North 14 al Lot 158, ell in East Dubu- . que Addition in the City of Dubuque. Dubuque COM- - ty. Iowa (the City Properly), 1D Washington Gourt, in exchange for Washington Court and Pine Box cam vsye g to City the North Yz of Lot 159 and Lots 160 and 151; ugron approval of -ogee-Rent beivwe _the City of Dcrbrrque and Pine Box LLP / Washington { Court, LP. (Copy of sup- porting docurrrects areon 9Ie in the City Clerk's 01- !1fice and may be viewed during normal working- horns.) Written cornrneols re- gerdng the above Agree- ' meat nay be submitted to the City Cterit's Office on or before said lime of pub- - Ito hearing. ' At said tare and place ut publichearing all interest- ed citizens and parts wilt be given an opporke4ty lo - be heard fa or against said leases and amen. rt- - menL - Any visual or hearing im- paired persons needing special assistarup or per- sons with special accessi- bility neem should contact - the City Clerk's Office at 559-4120 a TDD 69D-6676 at least 46 hums prior to the meeting. Published by order of the - City Couriall given on the Mh day of November, '2006.. Jeanne F. Schneider, CMG, City Clark it 11/10 STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Wendy Miller, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: November 10, 2006, and for which the charge is $18.29. Subscribed to before me, Notary Public in and for Dubuque County, Iowa, this /Df. r day of _.~„ze , 20 06 . s o ary Public in and for Dubuque County, Iowa. lSARY K. WESTERMEYER Isslo-_ kg:_mber 154885 .: ,- i Corr.re. Ery. FEB. 1, 2009 0690 699 699 1111 II 110 ll hIIII IIIII lMI iii I II 1111 0 i I 11111111111 Doc ID 005591810003 Type: GEN Recorded: 02/20/2007 at 12:38:53 PM Fee Amt: $17.00 Paqe 1 of 3 Dubuque County Iowa Kathy Flynn Thurlow Recorder Fi1e2007_00002489 Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 MEMORANDUM OF AGREEMENT An Agreement by and among the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, Washington Court, LP, and Pine Box, LLLP, was made regarding the following described premises: Lot 159B, the South 1/2 of Lot 157, the North 1/2 of Lot 157, the South 1/2 of Lot 158, and the North 1/2 of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa; And The North 1/2 of Lot 159, and Lots 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof The Agreement is dated for reference purposes the ab'N, day of NovEm., 2001o, and contains covenants, conditions, and restrictions concerning 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 itself, executed by the parties, the terms and provisions of the Agreement shall prevail. A complete counterpart of the Agreement, 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/8" day of,.�/r,?6 , 10 WASHINGTON COURT, L.P. PINE BOX, LLLP, By CITY OF DU / QUE, IOWA By: Roy D. oI, Mayor eanne F. Schneider, City Clerk STATE OF IOWA, DUBUQUE COUNTY } SS before me, a Notary Public in and for the On this.' "day of . 2( r 7Z, State of Iowa, in and for said coun , personally appeared Roy D. Buol and Jeanne F. Schneider, 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 AIff free act ,r. d deed of said Municipal Corporation by it voluntarily executed. Nota:? Public, State of low' SUSAN M. WINTER :OMMISSION NO.183274 Y COMMISSION EXPIRES 2114/08 STATE OF IOWA, COUNTY OF CLAY } SS zoo -1 This instrument was acknowledged before me on this ,S'- day of 49QK, by Doug LaBounty as President of Community Housing Initiatives, Inc., the General Partner of Washington Court, L.P., a limited partnership. -341-N144r' _ PATRICIA M. NISSEN OMMISSION NUMBER 726880 MY COMMISSION EXPIRES Feb. 12, 2007 Notary Public - State of lowa STATE OF IOWA, COUNTY OF DUBUQUE } SS This instrument was acknowledged before me on this ° day of ern , 2001, by John Gronen as President Gronen Restoration, Inc. the General Partner of Pine Box, LLLP, a Iimite;liability limited partnership. DEBRA C, BAKKEN Commlesion Wumbor 707 �q Commisalon E plra. Notary Public, State 6f Iowa 12 AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, WASHINGTON COURT, L.P., AND PINE BOX, LLLP This Agreement, dated for reference purposes the 4011, day of No i BER , 2006, is made and entered into by and among the City of Dubuque, Iowa, Washington Court, L.P., and Pine Box, LLLP. WHEREAS, the City of Dubuque (City) is the owner, or intends to acquire, the following described property in Dubuque, Iowa: Lot 159B, the South '/2 of Lot 157, the North 1/2 of Lot 157, the South 1/2 of Lot 158, and the North 1/2 of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa; and WHEREAS, Washington Court, L.P. (Washington Court) and Pine Box, LLLP (Pine Box) are the owners of all of the condominium units in the Washington Court Building Horizontal .Property Regime as defined and established in a Declaration of Submission to Horizontal Property Regime filed on February 16, 2006, as Instrument No. 2006-2304 of the land records of Dubuque County, Iowa; and WHEREAS, the following described property is a part, but not all, of the land in the Washington Court Building Horizontal Property Regime, to wit: Lots 159, 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof; and WHEREAS, Lots 159, 160 and 161 were designated in the Declaration of Submission to Horizontal Property Regime to become a parking lot, and under §2.03 of the Declaration of Submission to Horizontal Property Regime, said Tots are currently part of Unit B of the Washington Court Building Horizontal Property Regime, which unit is owned by Washington Court, L.P.; and WHEREAS, Pine Box intends to lease Unit A of the Horizontal Property Regime to TriState Community Health (TriState) which will operate the Crescent Community Health Center (the Center) from Unit A; and WHEREAS, TriState needs additional parking for the Center and City believes that the Center and the acquisition of additional parking for the Center would be a benefit to the citizens of the City of Dubuque. NOW, THEREFORE, it is agreed by and among the parties as follows: SECTION 1. ALLEY VACATION. City agrees to vacate, at City's cost, no later than December 31, 2006, the alley shown on the Site Diagram, Exhibit A, attached hereto. SECTION 2. CONSTRUCTION OF CITY PARKING LOT IMPROVEMENTS BY CITY. City shall, at its sole expense, construct the City Parking Lot on the North 1/2 of Lot 159, and Lots 160 and 161, according to plans approved by City and consistent with City standards and specifications. Washington Court and Pine Box shall grant to City a construction easement on the North 1/2 of Lot 159 and Lots 160 and 161 for the construction of the City Parking Lot. Prior to construction, City shall submit the plans and specifications to Washington Court and Pine Box for their review and comment. Washington Court and Pine Box shall have until Nov. 9th, 2006 to approve or disapprove of the plans and specifications. In the event that Washington Court or Pine Box disapprove of the plans or specifications, they may terminate this Agreement as provided in Section 4.2(4) hereof. SECTION 3. EXCHANGE OF PROPERTY. 3.1 Property to be Exchanged. City shall convey Lot 159 B, reserving public utility easements as shown on Exhibit A, and the South 1/2 of Lot 157, the North 1/2 of Lot 157, the South '/2 of Lot 158, and the North 1/2 of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa (the City Property), to Washington Court, in exchange for Washington Court and Pine Box conveying to City the North % of Lot 159 and Lots 160 and 161. Prior to the conveyance, City shall, at its expense, remove the houses currently located on Lots 157 and 158, and dispose of all refuse or materials, including but not limited to environmentally hazardous materials, left or caused by the demolition or removal, and shall restore the ground on those lots to a level surface. 3.2 Amendment to Horizontal Property Regime. Pine Box and Washington Court shall amend the Declaration of Submission to Horizontal Property Regime to remove the North '/2 of Lot 159 and Lots 160 and 161 from the Horizontal Property Regime and replace them with the City Property. The City Property shall be made a part of Unit B of the Horizontal Property Regime as parking lots. 3.3 Title to Be Delivered By City. City agrees to convey good and marketable fee simple title in the City Property Washington Court subject only to easements, restrictions, conditions and covenants of record as of the date hereof to the extent not objected to by Washington Court as set forth in this Agreement. (1) City, at its sole cost and expense, shall deliver to Washington Court an abstract of title to the City Property continued through the date of this Agreement reflecting merchantable title in City in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all encumbrances and matters of record applicable to the City Property, and such abstract 2 shall become the property of Washington Court after closing. City shall further, at it's expense, cause an ALTA survey to be made of the property included in the Horizontal Property Regime after the exchange, and shall further pay for the issuance of a new policy of title insurance to Washington Court incorporating the re -defined property interests of Washington Court, with said policy including such endorsements as may be required by Washington Court. (2) Washington Court shall have until time of the Closing Date to render objections to title, including any easements or other encumbrances not satisfactory to Washington Court in writing to City. Washington Court agrees, however, to review the Abstract promptly following Washington Court's receipt of Washington Court's Abstract and to promptly provide City with any objections to title identified therein. Nothing herein shall be deemed to limit Washington Court's rights to raise new title objections with respect to matters revealed in any subsequent title examinations and surveys and which were not identified in the Abstract provided by the City. City shall promptly exercise its best efforts to have such title objections removed or satisfied and shall advise Washington Court of intended action within ten (10) days of such action. If City shall fail to have such objections removed as of the Closing Date, or any extension thereof consented to by Washington Court, Washington Court may, at its sole discretion, either (a) terminate this Agreement without any liability on its part, or (b) take title subject to such objections. City agrees to use its best reasonable efforts to promptly satisfy any such objections. (3) Rights of Inspection, Testing and Review. Washington Court, its counsel, accountants, agents and other representatives, shall have full and continuing access to the City Property, and all parts thereof, upon reasonable notice to City. Washington Court and its agents and representatives shall also have the right to enter upon the City Property at any time after the execution and delivery hereof for any purpose whatsoever, including inspecting, surveying, engineering, test boring, performance of environmental tests, provided that Washington Court shall hold City harmless and fully indemnify City against any damage, claim, liability or cause of action arising from or caused by the actions of Washington Court, its agents, or representatives upon the City Property (except for any damage, claim, liability or cause of action arising from conditions existing prior to any such entry upon the City Property), and shall have the further right to make such inquiries of governmental agencies and utility companies, and to make such feasibility studies and analyses as it considers appropriate. (4) Environmental Testing By City. City shall pay for and provide to Washington Court a Phase I Environmental Assessment of the City Property. The Phase I Environmental Assessment shall comply with the requirements of ASTM E1527-05 and shall authorize reliance by Pine Box and Washington Court and Washington Court's lenders, partners, investors and such other parties as may be necessary for Washington Court to complete this transaction.. If the Phase I Assessment reveals that a Phase II Assessment is recommended, City in its sole discretion may elect to terminate this Agreement or pay for and provide to Washington Court a Phase II Assessment. If Washington Court and Pine Box determine that any 3 remediation of the City Property is required, City may elect to remediate the City Property to those standards as may be required by law pursuant to a schedule acceptable to all parties or terminate this Agreement. 3.4 Title to Be Delivered by Washington Court and Pine Box. Washington Court and Pine Box agree to convey good and marketable fee simple title in the North 1/2 of Lot 159, and Lots 160 and 161 to City subject only to easements, restrictions, conditions and covenants of record as of the date hereof to the extent not objected to by City as set forth in this Agreement. (1) Washington Court and Pine Box, shall at their sole cost and expense, shall deliver to City an abstract of title to the North 1/2 of Lot 159, and Lots 160 and 161 continued through the date of this Agreement reflecting merchantable title in Washington Court as a part of Condominium Unit B, in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all encumbrances and matters of record applicable to North 1/2 of Lot 159, and Lots 160 and 161 and such abstract shall become the property of City after closing. (2) City shall have until time of the Closing Date to render objections to title, including any easements or other encumbrances not satisfactory to City, in writing to Washington Court and Pine Box. City agrees, however, to review the Abstract promptly following City's receipt of the abstract and to promptly provide Washington Court and Pine Box with any objections to title identified therein. Nothing herein shall be deemed to limit City's rights to raise new title objections with respect to matters revealed in any subsequent title examinations and surveys and which were not identified in the Abstract provided by Washington Court and Pine Box. Washington Court and Pine Box shall promptly exercise their best efforts to have such title objections removed or satisfied and shall advise City of intended action within ten (10) days of such action. If Washington Court or Pine Box shall fail to have such objections removed as of the Closing Date, or any extension thereof consented to by City, City may, at its sole discretion, either (a) terminate this Agreement without any liability on its part, or (b) take title subject to such objections. Washington Court and Pine Box agree to use their best reasonable efforts to promptly satisfy any such objections. (3) Rights of Inspection, Testing and Review. City, its counsel, accountants, agents and other representatives, shall have full and continuing access to the North 1/2 of Lot 159, and Lots 160 and 161 and all parts thereof, upon reasonable notice to Washington Court and Pine Box. City and its agents and representatives shall also have the right to enter upon the North 1/2 of Lot 159, and Lots 160 and 161 at any time after the execution and delivery hereof for any purpose whatsoever, including inspecting, surveying, engineering, test boring, performance of environmental tests, provided that City shall hold Washington Court and Pine Box harmless and fully indemnify Washington Court and Pine Box against any damage, claim, liability or cause of action arising from or caused by the actions of City, its agents, or representatives upon North 1/2 of Lot 159, and Lots 160 and 161 (except for any damage, claim, liability or cause of action arising from conditions existing prior to any such entry upon North 1/2 4 of Lot 159, and Lots 160 and 161), and shall have the further right to make such inquiries of governmental agencies and utility companies, and to make such feasibility studies and analyses as it considers appropriate. (4) Environmental Testing By Washington Court and Pine Box. Washington Court and Pine Box shall pay for and provide to City a Phase I Environmental Assessment of the North 1/2 of Lot 159, and Lots 160 and 161. The Phase I Environmental Assessment shall comply with the requirements of ASTM E1527-05 and shall authorize reliance by City. If the Phase I Assessment reveals that a Phase II Assessment is recommended, Washington Court and Pine Box shall pay for and provide to City a Phase II Assessment. If City in its sole discretion determines that any remediation of the North 1/2 of Lot 159, and Lots 160 and 161 is required, Washington Court and Pine Box may elect to remediate the North 1/2 of Lot 159, and Lots 160 and 161 to those standards as may be required by law pursuant to a schedule acceptable by all parties or terminate this Agreement. SECTION 4. CLOSING. 4.1 Closing Date. The closing shall take place on or before the 1st of June, 2007, or such other date as the parties shall agree in writing (the Closing Date). Consummation of the closing shall be deemed an agreement by all of the parties to this Agreement that the conditions of closing shall have been satisfied or waived. 4.2 Conditions to Closing. The closing of the transactions contemplated by this Agreement and all the obligations of Washington Court, Pine Box and City under this Agreement are subject to fulfillment, on or before the Closing Date, of the following conditions: (1) Washington Court, Pine Box and City shall be in material compliance with all the terms and provisions of this Agreement. (2) Pine Box shall have provided City with an executed copy of a lease with TriState. (3) Agreement of City, Washington Court and Pine Box on the terms of the easements and licenses required by this Agreement. (4) City, Washington Court and Pine Box shall have the right to terminate this Agreement at any time prior to the consummation of the closing on the Closing Date if City, Washington Court or Pine Box determine in their individual sole discretion that conditions necessary for the successful completion of the transactions contemplated herein have not been satisfied to the full satisfaction of such party in such party's sole and unfettered discretion. Upon the giving of notice of termination by such terminating party to the other parties to this Agreement, this Agreement shall be deemed null and void. In the event that this Agreement is terminated after City has expended funds to construct a parking lot on the property that will be conveyed to City, then Washington Court will reimburse City but only as follows: (a) If City has completed construction, the maximum reimbursement shall be the amount Washington Court would have been required to expend to complete the parking lot in accordance with the site plan approved by City on North 1/2 of Lot 159, and Lots 160 and 161, minus any amounts expended by Washington Court in improving Lots 157 and 158. (b) If City has not completed construction, a firm bid from a reputable contractor shall be obtained to determine the cost of completing the construction of a parking lot to the specifications originally contemplated by Washington Court for the parking it intended to create on those lots, or as near thereto as may be reasonably possible, and the reimbursement shall be the difference between the cost of the completion of the project and the amount Washington Court would have been required to expend to complete the parking lot in accordance with the site plan approved by City on North 1/2 of Lot 159, and Lots 160 and 161, minus any amounts expended by Washington Court in improving Lots 157 and 158. 4.3 City's Obligations at Closing. At or prior to the Closing Date, City shall: (1) Deliver to Washington Court, City's duly recordable Special Warranty Deed to the City Property conveying to Washington Court marketable fee simple title to the City Property and all rights appurtenant thereto, subject only to easements, restrictions, conditions and covenants of record as of the date hereof and not objected to by Washington Court. (2) Deliver to Washington Court the Abstract of Title to the City Property. (3) Deliver to Washington Court such other documents as may be required by this Agreement, all in a form satisfactory to Washington Court. 4.4 Obligations of Washington Court and Pine Box at Closing. At or prior to the Closing Date, Washington Court and Pine Box shall: (1) Deliver to City a duly recordable Special Warranty Deed to the North 1/2 of Lot 159 and Lots 160 and 161 conveying to City marketable fee simple title in and to said lots and all rights appurtenant thereto, subject only to easements, restrictions, conditions and covenants of record as of the date hereof and not objected to by City as set forth in this Agreement. (2) Deliver to City the Abstract of Title to North 1/2 of Lot 159 and Lots 160 and 161. (3) Deliver to City such other documents as may be required by this Agreement, all in a form satisfactory to City. 6 4.5 Real Estate Taxes. City and Washington Court for their respective properties shall each pay all real estate taxes for all fiscal years that end prior to the Closing Date. Real estate taxes for the fiscal year in which the Closing Date occurs shall be prorated between City and Washington Court to the Closing Date on the basis of a 365 -day calendar year. City and Washington Court shall pay or cause to be paid all real estate taxes due in subsequent fiscal years. Any proration of real estate taxes on the properties shall be based upon such taxes for the year currently payable. SECTION 5. CANOPY EASEMENT. City agrees to grant to Pine Box an easement for the construction, repair and maintenance of a canopy as shown on Exhibit A. SECTION 6. UTILITY RELOCATION COSTS. City shall pay for the cost of any utility relocations that may be necessary for the exchange of properties under this Agreement. SECTION 7. SIGNAGE. City agrees to grant to Pine Box an easement for a sign as shown on Exhibit A for the installation of such utilities as may be necessary to install and operate the sign. Pine Box shall be responsible for the costs of installing and operating the sign. SECTION 8. USE OF CITY PARKING LOT. Washington Court and Pine Box acknowledge that the City Parking Lot to be constructed on the North % of Lot 159 and Lots 160 and 161 shall at all times be under the sole and exclusive control of City and City shall have the right in its sole discretion to determine the use of the City Parking Lot. Until such time as Washington Court has been able to complete the parking lot which it will construct on Lots 157 and 158, City will provide ten (10) parking spaces on the North 1/2 of Lot 159 and Lots 160 and 161 for Washington Court's residential tenants until the Washington Court parking lot on Parcel A is completed or July 1, 2007, whichever first occurs. SECTION 9. GENERAL TERMS AND PROVISIONS. 9.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: If to Washington Court: Community Housing Initiatives, Inc. Attention: Doug LaBounty, President 14 W 21st Street, Suite 3 PO Box 473 7 Spencer, IA 51301-0473 If to Pine Box: Gronen Restoration, Inc. John Gronen 1766 Plymouth Court Dubuque, Iowa 52003 If to City: City Manager 50 W. 13th Street Dubuque, Iowa 52001 Phone: (563) 589-4110 Fax: (563) 589-4149 With copy to: City Attorney City Hall 50 W. 13th Street Dubuque IA 52001 Or at such other address with respect to either party as that party may, from time to time designate in writing and forward to the other as provided in this Section. 9.2 Memorandum of Agreement. Washington Court shall promptly record a Memorandum of Development Agreement in the form attached hereto in the office of the Recorder of Dubuque County, Iowa, and shall pay the costs for so recording. 9.3 Value of Property to be Exchanged. The parties state that this is an arms length transaction, and that the values of the parcels to be exchanged are equal. SECTION 10. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of all of the parties and their respective successors and assigns. SECTION 11. RIGHT OF FIRST REFUSAL. City hereby grants to Pine Box a right of first refusal in the form attached hereto as Exhibit B in the event that the City should determine that it wishes to dispose of the North 1/2 of Lot 159, and Lots 160 and 161, and receives an offer for the purchase of said property which the City intends to accept. WASHING By T, L.P. John Gronen Doug La PINE BOX, LLLP 8 CITY OF DUBUUE, IOWA Attest: By: Roy D. • ol, Mayor 9 eanne F. Schneider, City Clerk (City Seal) Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 MEMORANDUM OF AGREEMENT An Agreement by and among the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, Washington Court, LP, and Pine Box, LLLC, was made regarding the following described premises: And The South 1/2 of Lot 157, the North 1/2 of Lot 157, the South 1/2 of Lot 158, and the North 1/2 of Lot 158, all in East Dubuque Addition in the city of Dubuque, Dubuque County, Iowa; The North '/2 of Lot 159, and Lots 160 and 161 in East Dubuque, an addition to the city of Dubuque, Dubuque County, Iowa, according to the recorded plat thereof The Agreement is dated for reference purposes the day of 20_, and contains covenants, conditions, and restrictions concerning 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 itself, executed by the parties, the terms and provisions of the Agreement shall prevail. A complete counterpart of the Agreement, 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 day of , 20 . WASHINGTON COURT, L.P. PINE BOX, LLLP, By By Doug LaBounty John Gronen CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor 9 By: Jeanne F. Schneider, City Clerk STATE OF IOWA Ss: DUBUQUE COUNTY On this day of , 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, 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 Corporation by it voluntarily executed. Notary Public, State of Iowa STATE OF COUNTY : ss: On this day of 20_, before me, a Notary Public in and for the State of , in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the of Washington Court, L.P., and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa 10 STATE OF COUNTY ss: On this day of , 20, before me, a Notary Public in and for the State of , in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the of Pine Box, LLLP and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa 11 EXHIBIT A SITE DIAGRAM 12 18th STREET '"mrirrr. rnrrrfrrrgTlrrlrtr I 11 4 k k / il„,ot 160 ••••ii'LL _J ;:”VSZENEM*' IMMENUMMEMISONAMANZEMINifair • r N 1)2 440,444**44%mmogo,,,444,41,44,--1,,4a,v4,1mq",641 ..„, a ; 17th STREET Fr.'4 EXHIBIT B RIGHT OF FIRST REFUSAL If City desires to sell, lease, condemn, develop, assign or otherwise transfer the North 1/2 of Lot 159, and Lots 160 and 161 (the Property), Pine Box shall have an option and right of first refusal to purchase or lease the Property as provided herein. If City has received a bona fide offer to purchase or lease the Property from a third party which City desires to accept, City shall deliver to Pine Box a copy of such offer specifying the name and address of the perspective transferee, the portion of the Property to be transferred, the proposed purchase price or lease payment and all other important terms of the proposed transfer, and City shall offer to sell, transfer or lease the Property to Pine Box on the terms contained in such bona fide offer. Pine Box shall, within sixty (60) days after receipt of a copy of the bona fide offer, by written notice to City, elect either to: (a) exercise its rights of first refusal to purchase or lease the Property proposed to be transferred on the terms recited in the bona fide offer; or (b) waive its right of first refusal to purchase or lease the Property proposed to be transferred. If Pine Box exercises its right of first refusal, City shall transfer or lease, as the case may be, the Property to Pine Box within ninety (90) days of the exercise by Pine Box of its right of first refusal. If Pine Box waives its right of first refusal in the manner set forth above, City shall have the right to consummate the transfer upon terms and conditions substantially the same as and no less favorable to City then those contained in the bona fide offer. 16