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Joint Devel Agreement DCHS_City of DubuqueTHE CITY OF DUB UE Masterpiece nn the Mississippi MEMORANDUM May 17, 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Joint Development Agreement between the Dubuque County Historical Society and the City of Dubuque The Dubuque County Historical Society is party to a Vision Iowa Program Grant Award Agreement in the amount of $8 million for the expansion of the Mississippi River Museum and Aquarium to include the Great Rivers Center and RiverMax Theater. The Vision Iowa contract provides that the Dubuque County Historical Society and the City of Dubuque shall enter into a Joint Development Agreement that establishes the manner in which the Society and the City will cooperate with one another to complete the project, including the local match to be made by the City, and the manner in which disputes will be resolved. • The agreement stipulates that the parties shall acquire, assemble and prepare all real property necessary for the City's local match obligations, shall let contracts for all work necessary for completion of such obligations, and shall carry such work, or cause such work to be carried, through to completion. • No less than once each calendar quarter during the period of construction of the City's local match obligations and for a period of six months thereafter, representatives of parties shall meet to discuss the status of the City's local match obligations and progress towards completion. • Beginning one year after completion of the City's local match obligations, representative parties shall meet no less than annually to discuss component use, efforts to repair and maintain the local match obligations, and any issues requiring resolution between or among the parties. • The City's local match obligation includes: the City agrees to construct the Port of Dubuque Public Parking Facility as described in the Port of Dubuque Public Parking Facility Development Agreement between the City of Dubuque and the Diamond Jo. The Dubuque County Historical Society and Vision Iowa acknowledge that the construction of the public parking facility depends on the fulfillment of all the conditions set forth in the Development Agreement between the City of Dubuque and the Diamond Jo. If the public parking facility is not constructed, an amended application will be required from the Dubuque County Historical Society to the Vision Iowa Board. The City agrees that as long as the Diamond Jo is not in default, the public parking facility shall remain open to the patrons of the Great Rivers Center and RiverMax Theater free of charge, subject to the terms of the Development Agreements the City has with Port of Dubuque Adams Development, the Durrant Group, and the Development Agreement between the City of Dubuque and McGraw-Hill Companies. • Phase I of the Port of Dubuque Outdoor Plaza is to be completed by December 31, 2008 at an estimated cost of $663,727, which includes: o The City, through McGraw-Hill, will complete the approximately 421-space surface parking lot directly west of the McGraw-Hill building. This will include electrical and water supply connections to support vendors and entertainers for future festivals. The City reserves the right to remove all or part of the public parking lot at any time for any reason in the City's sole discretion. o Street vendor cut-outs will be created along Fifth Street and Bell Street adjacent to the McGraw-Hill building, with electrical service to accommodate street vendors. o There will be a future public outdoor plaza area between the Bell Street sidewalk and the office building for McGraw-Hill Companies with a 60-foot wide brick concrete entrance walk to connect Bell Street with the front entrance of the McGraw-Hill building, as called for in the McGraw-Hill Development Agreement. o A 60-inch diameter storm sewer system will be extended from Bell Street for 400 feet to the west parallel to 5th Street. • The City shall complete Phase II of the Port of Dubuque Outdoor Plaza by December 31, 2012, in the estimated cost of $560,000, which shall include: o Enhancing the green space in the northwest corner of the intersection adjacent to the new McGraw-Hill building. o Landscaping of the outdoor plaza and urban park area, including benches and accent lighting. o Consideration of a children's play area at the western end of the park. o The outdoor plaza area can be used as green space for daycare and could ultimately include a Phase III development that may include the ability to house daycare or some other public purpose. • By December 31, 2007, the City shall complete a "Wayfinding" signage system at an estimated cost of $46,662. • By December 31, 2009, the City shall construct Port of Dubuque Park at the northwest corner of 5~' and Bell Streets at a cost of approximately $250,000. I respectfully recommend Mayor and City Council approval of the Joint Development Agreement between Dubuque County Historical Society and the City of Dubuque. Z ~ ~` ~ Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Jerry Enzler, Executive Director, Dubuque County Historical Society Barry A. Lindahl, Esq. City Attorney Suite 330, Hazbor View Place 300 Main Street Dubuque, Iowa 52001-6944 (563) 583-4113 office (563) 583-1040 fax balesgC~cityofdubuque.org June 22, 2007 THE CITY OF DuB E `~~:~. ~ Andrew Anderson, Esq. Chairman, Vision Iowa Board 801 Grand Avenue, Suite 3100 Des Moines, IA 50309 RE: Vision Iowa -Joint Development Agreement Dear Andy: Enclosed is the signed Joint Development Agreement between the Dubuque County Historical Society and the City of Dubuque. Also enclosed is my Certificate. Very sincerely, ~. f.~ Barry A. Lindahl, Esq. City Attorney BAL:tIs Enclosure cc: Michael C. Van Milligen, City Manager Jerry Enzler, Executive Director, Dubuque County Historical Society Service People Integrity Responsibility Innovation Teamwork JOINT DEVELOPMENT AGREEMENT BETWEEN THE DUBUQUE COUNTY HISTORICAL SOCIETY AND THE CITY OF DUBUQUE The parties to this Joint Development Agreement (the "Agreement") are the Dubuque County Historical Society ("Society") and the City of Dubuque, Iowa ("City"). This Agreement is effective from and after May Z~ , 2007. RECITALS WHEREAS, The Society is an Iowa nonprofit corporation organized and operating pursuant to Iowa Code Chapter 504, the "Revised Iowa Nonprofit Corporation Act". Its address is c/o Mr. Jeff Bertsch, President of the Board of Directors of the Society, 350 East Third Street, Dubuque, IA 52001-2302. WHEREAS, City is a municipality of the State of Iowa, organized and operating pursuant to Iowa Code chapter 364. Its address is 50 W. 13th Street, Dubuque, Iowa 52001. WHEREAS, Vision Iowa Board (the "Board") is a.public instrumentality ofthe State of Iowa that was legislatively created to organize, establish, oversee and approve the administration of the Vision Iowa Program. Iowa Code Chapter 15F authorizes the Board and its programs. The Board's address is 200 East Grand Avenue, Des Moines, IA 50309. WHEREAS, the Society is a party to a Vision Iowa Program Grant Award Agreement (the "VI Contract") with the Board, providing for the terms on which Vision Iowa funds will be disbursed to the Society in furtherance of the VI Contract including the City's local contribution identified in the VI Contract; and WHEREAS, the VI Contract provides that the Society and the City shall enter a Joint Development Agreement (the "Agreement") that establishes the manner in which the Society and the City will cooperate with one another successfully to complete the Project, including the local match to be made by the City, and the manner in which disputes will be resolved; and NOW, THEREFORE, in consideration of the premises and of the mutual obligations of the Parties hereto, the Parties mutually agree as follows: ARTICLE I INCORPORATION OF THE VI CONTRACT BY REFERENCE The obligations of the Parties under this Agreement are expressly made contingent upon the approval and execution of the VI Contract by the Society and by the Vision Iowa Board within the time and upon the terms set forth in the VI Contract for approval and execution. PAGE 1 OF 7 ARTICLE II GENERAL OBLIGATIONS OF ALL PARTIES Each Party hereby agrees to exert its best efforts to accomplish, within the scope of its own jurisdiction, the objectives set forth in the paragraphs following. 2.1 The governing bodies of the Society and the City shall adopt one or more resolutions approving this Agreement, including all transactions to be entered into and all work to be performed in connection with the City's local match obligations, as required by this Agreement. 2.2 The Parties, acting separately or in concert, shall acquire, assemble, and prepare all real property necessary for the City's local match obligations, shall let contracts for all work necessary for completion of such obligations, and shall carry such work, or cause such work to be carried, through to completion, all as provided for in this Agreement. 2.3 No less than once each calendar quarter during the period of construction of the City's local match obligations and for a period of six (6) months thereafter, representatives of the Parties shall meet to discuss the status of the City's local match obligations and progress toward completion, the disbursement and use of Vision Iowa funds, cost variances that exceed three percent (3%) of cost estimates, efforts to repair and maintain the Project components, and any issues requiring resolution. Beginning one (1) year after completion of the City's local match obligations, representatives of the Parties shall meet no less than annually to discuss component use, efforts to repair and maintain the local match obligations, and any issues requiring resolution between or among the Parties, or under this Agreement. 2.4 The obligations of the Parties under this Agreement are expressly made contingent upon the approval and execution of the VI Contract by the Society and by the Vision Iowa Board within the time and upon the terms set forth in the VI Contract for approval and execution. ARTICLE III THE CITY'S LOCAL MATCH OBLIGATION 3.1 Pumose. The purpose of this Agreement is as described in the recitals to this Agreement. 3.2 Term and Termination. The term of this Agreement shall coincide with PAGE 2 OF 7 the term of the VI Contract and shall terminate upon the termination of the VI Contract for any reason. This Agreement may not be terminated by any one or more of the Parties to this Agreement. 3.3 Fundin .The Parties shall make the contributions required of them by this Agreement. Except for the contributions required by this Agreement, all further funding shall be the sole responsibility of each of the Parties as necessary to complete, operate, and maintain the Party's respective Project components in conformity with the VI Contract and this Agreement. 3.4 Property. The Parties do not contemplate that there will be joint\ownership of any personal or real property. Upon termination of this Agreement, the Parties shall retain in its control that property which it brought into the Agreement. 3.5 CITY'S LOCAL MATCH OBLIGATION. City hereby expressly agrees that the following constitutes the City's local match obligation: (a) Port of Dubuque Public Parking Facility. (1) City has heretofore agreed to construct the Port of Dubuque Public Parking Facility described in The Port of Dubuque Public Parking Facility Development Agreement Between the City of Dubuque, Iowa, and Diamond Jo, LLC (the Development Agreement), attached hereto and incorporated herein, in accordance with the Development Agreement, at a cost of approximately $18,000,000, and with an estimated completion date of December 31, 2008. Society and Vision Iowa acknowledge that the construction of the Public Parking Facility depends upon the fulfillment of all of the conditions set forth in the Development Agreement by the City of Dubuque and Diamond Jo, LLC. If the Public Parking facility is not constructed pursuant to the terms of the Development Agreement Section 2.4 or 3.1, an amended application will be required from the Dubuque County Historical Society to the Vision Iowa Board. (2) Once the Public Parking Facility is constructed, City agrees that for so long as Diamond Jo, LLC is not in default (as defined under Section 3.3 of the Development Agreement), and subject to City's right to limit access to the Public Parking Facility during emergencies, severe weather conditions, maintenance or other similar circumstances, the Public Parking Facility shall remain open to the patrons of the Great Rivers Center and RiverMax Theater free of charge, but subject to the terms of the Development Agreement between City, Port of Dubuque Adams Development, L.L.C., and The Durrant Group, L.L.C., and the Development Agreement between City and The McGraw-Hill Companies. PAGE 3 OF 7 (b) Port of Dubuque Outdoor Plaza. (1) By December 31, 2008, City shall complete Phase I of the Port of Dubuque Outdoor Plaza at the northwest corner of 5th and Bell Streets. Phase 1: $663,726 Fiscal Year 2007 • A public parking lot that consists of approximately 421 parking spaces immediately west of the McGraw-Hill office building built and financed by McGraw-Hill.. This parking lot will primarily serve as office parking for employees of McGraw-Hill Companies from 7 a.m. to 6 p.m., Monday through Friday. The parking lot will also be used as the main festival site for the Port of Dubuque. Amenities, which are in City's Phase I Outdoor Plaza budget, include multiple potable water supply locations and placement of a 400 amp service for vendors on the west side of the lot and a 400 amp and 600 amp service at the north end of the lot to support activities on a temporary stage. City reserves the right to remove all or part of the public parking lot at any time for any reason in City's sole discretion. • Four street side vendor cut out areas will be created along 5th Street and two will be created along Bell Street The six vending areas will be serviced by 2 x 200 amp electrical service. • A space for a park that consists of an area approximately 100-foot by 400-foot between the 5th Street sidewalk and the McGraw-Hill building. This area will be sodded and seeded during this Phase 1. • A future public outdoor plaza area that will consist of an approximately 45-foot by 300-foot area between the Bell Street sidewalk and the office building for McGraw-Hill Companies. For Phase 1, a 60 foot wide brick concrete entrance walk will be constructed to connect Bell Street with the front entrance of the McGraw-Hill Building. • Extension of the 60-inch diameter storm sewer system from Bell Street for 400 feet to the west as it runs parallel to Sth Street underneath the park. (2) By December 31, 2012, City shall complete Phase II of the Port of Dubuque Outdoor Plaza. Phase 2: $560,000 Fiscal Year 2012 • The project involves enhancing the green space in the northwest corner of the intersection adjacent to the new McGraw-Hill office building. • The green space is made up of two specific areas, the outdoor plaza which is approximately 45 ft. by 300 ft. space located west of Bell Street and the urban park that is an area approximately 100 ft. by 400 ft. in size. • Phase 2 of the project includes the landscaping of these two areas, including park benches and accent lighting for the park. PAGE40F7 • Consideration of a children's play area with a size of approximately 40 foot by 40 foot located at the western end of the park. • The outdoor plaza area and park might be used as green space for daycare and could ultimately include a Phase III development in these spaces that is a building to house day care or some other public purpose. (c) Wayfinding Si ngnage. By December 31, 2007, City shall complete the pedestrian and "Wayfinding" signage project at a cost of approximately $46,662. (d) Port of Dubuque Park. By December 31, 2009, City shall construct Port of Dubuque Park at the northwest corner of 5th and Bell Streets at a cost of approximately $250,000. ARTICLE IV DISPUTE RESOLUTION In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the Parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this end, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to all Parties. The Parties may upon mutual agreement utilize the services of a mediator to assist them in reaching such solution, in which case the Parties shall equally share the costs of such mediation, but each Party shall pay its own respective attorneys' fees in connection with such mediation. If the Parties do not reach such solution within a period of ninety (90) days after the dispute first arises, then, upon written notice by any Party to the other, all disputes, claims, questions, or disagreements shall be finally determined and settled by any such Party commencing legal action in the Iowa District Court for Dubuque County, which shall be the exclusive venue for resolution of any disputes between the Parties arising under this Agreement. Remedies include specific performance and any other remedy available under applicable law. All costs and expenses, including reasonable attorneys' fees, of all Parties incurred in any dispute that is resolved by means of litigation as provided in this Article shall be borne by the party determined to be liable in respect of such dispute; provided however, that if complete liability'is not assessed against only one Party, the Parties shall share the total costs in proportion to their respective amounts of liability so determined, and provided further that if no monetary liability is determined, each Party shall bear its own costs and expenses. Except where clearly prevented by the area in dispute, each Party agrees to continue performing its respective obligations under this Agreement and under the VI Contract while the dispute is being resolved. ARTICLE V MISCELLANEOUS 5.1 Modification. No modification of any condition, provision, or term of this:. -- Agreement shall be valid or of any effect unless made in writing and PAGE 5 OF 7 signed by the Party or Parties to be bound or by the duly authorized representative of same and the counsel for the Vision Iowa Board. 5.2 Severabil~. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting or removing such provision or portion thereof would become valid and enforceable, then such provision or portion thereof shall be deemed to be stricken, and shall be construed and enforced, as so limited. 5.3 Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 5.4 Bindin Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and legal representatives. Time is of the essence in the performance of this Agreement. 5.5 Countemarts .This Agreement maybe executed in any number of counterparts, each of which, shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the Parties have executed and delivered this Joint Development Agreement as of the date first above written. CITY OF DUB QUE, IOWA DUBUQUE COUNTY ~ HISTORICAL SOCIETY ~f //J/ Mayor v ~/~~ Attest: Attest: ~ ~, %~j~GGl Kevin S. Firnstahl, Asst. City Clerk ;' •. ~IA!~CTHY E. HALL ~`• Corrmluslon Number 712D64 -o.• My Comm. Exp. 10/9/07 PAGE 6 OF 7 STATE OF IOWA ) ss. COUNTY OF Dubuque ) This instrument was acknowledged before me on the ~tday of P1a,y , 2007, by Roy D. Buol , as Mayor, and K 'n S. Fi rnstahl , as City (Asst. ) Clerk, of the City of Dubuque, Iowa. ,~~ ,~---~ (Notary Seal/Commission Expiration) ARY PUBLIC in and for the State of Iowa ~~~ ,~~# ~ s~, Et~~AN M, WINTER _ ~ CaMMl~~lBN N©.483274 • MY COM,4l/SSfON EXPIRES ~ow~ Z'f4/08 STATE OF IOWA ) ss. COUNTY OF < <,~, ~ This instrument was acknowledged before me on the~'~day of TkK t , 2007, by ~EF~R y f• `~ERT~'H, as PPESIder~T, and , as of the Dubuque County Historical Society. ~- NOTARY LIC~in and for the State of Iowa (Notary Seal/Commission Expiration) or*"'., TIMOTHY E. HALL '~';- Commtsslon Number 712984 „~. My Comm. Exp. 4019/07 PAGE 7 OF 7 OPINION OF COUNSEL FOR THE CITY OF DUBUQUE June 22, 2007 Vision Iowa Board Iowa Department of Economic Development 200 E. Grand Avenue Des Moines, IA 50309 RE: Joint Development Agreement between the City of Dubuque and the Dubuque County Historical Society, Inc. concerning the City's local match for the Great Rivers Center and RiverMax Theater Project Ladies and Gentlemen: I have acted as legal counsel for the City of Dubuque, Iowa (the "City"), in connection with the execution and delivery by the City of the Joint Development Agreement (the "Agreement") between the City of Dubuque and the Dubuque County Historical Society. This opinion is being furnished to you pursuant to Section 7.1.4 of the Grant Agreement. In rendering the opinions expressed herein, I have examined the Agreement and the Resolution(s) of the Dubuque City Council authorizing the same. I have also examined originals or copies certified or otherwise identified to my satisfaction of such certifications of officers and proceedings of the City and all other documents and records as I have deemed relevant and necessary for the basis of such opinions, without undertaking to verify the same by independent investigation. In all such examinations, I have assumed (except in the case of the City and its officers), the genuineness of all signatures, and the authenticity of all documents submitted to me as copies. Vision Iowa Board Form of Opinion of Counsel for the City of Dubuque Page 2 of 2 Based on the foregoing, and an investigation of such other considerations of law and fact as I have deemed to be relevant, I am of the opinion that: 1. The Agreement is a binding obligation of the City, and that the City is obligated to perform in accordance with its terms, including the performance of all future conditions and payments; 2. As of the date hereof, the City has good, indefeasible and merchantable title to and ownership of the City's real property on which the local match components identified in the Agreement will be constructed, free and clear of all liens, claims, and encumbrances except those of record of which the Vision Iowa Board has been given actual notice in writing and which the Board has found acceptable. 3. The Agreement does not violate any constitutional, statutory, or other limitation placed on the City; and 4. Any debt issuance planned for the Project by the City has been or will be duly authorized according to state law. Respe tfully submitted, arty A. Lindahl, Esq. City Atiorney