QHQ Settlement Agreement Copyright 2014
City of Dubuque Consent Items # 6.
ITEM TITLE: QHQ Settlement Agreement
SUMMARY: City Attorney recommending approval of a Settlement
Agreement and Amendment to a Stormwater Facilities Fee
Agreement between QHQ Properties, LLC and the City of
Dubuque.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Settlement Agreement and Amendment Supporting Documentation
THE CU�_W&E
DMEMORANDUM
Masterpiece on the Mississippi
BARRY LIN
SENIOR CO SEL
To: Mayor Roy D. Buol and
Members of the City Council
DATE: December 28, 2016
RE: QHQ Properties, LLC v. City of Dubuque, et al. Settlement Agreement
relating to the Stormwater Facilities Fee Agreement between QHQ
Properties, LLC and the City of Dubuque
The attached Settlement Agreement resolves a long-standing dispute among the parties
over the interpretation of the Stormwater Facilities Fee Agreement (the Agreement).
In 2004, QHQ, LLC owned a large tract of land at Asbury Road and the Northwest
Arterial. QHQ proposed to build a commercial development on the property which would
have required the construction of a private stormwater detention facility to mitigate the
increased volume and flow of stormwater runoff caused by the development.
The City owned and maintained the drainage channel between the development and
the Northwest Arterial detention basin.
The City and QHQ entered into the Stormwater Facilities Fee Agreement in 2004 so
that QHQ could have the benefit of the Agreement. The City agreed to operate and
maintain the detention basin and drainage channel for an agreed initial and annual fee
to be paid by QHQ. QHQ was authorized by the Agreement to assign responsibility for
the annual fee to its successors. Although QHQ entered into a number of assignments
to subsequent purchasers on the property, it failed to obtain an assignment from the first
two purchasers, CHD Properties, LC (Miracle Car Wash) and Courtside Properties, LLC
(Courtside). CHD Properties, LC and Courtside Properties, LLC took the position that
they were not responsible for their respective shares of the annual fee. QHQ has
continued to pay the disputed fees to the City during the pendency of the dispute.
QHQ brought a declaratory judgment action against the City, CHD Properties, LC and
Courtside Properties, LLC to resolve the dispute.
The parties have now reached an agreement resolving all of the issues between and
among the parties. CHD Properties, LC and Courtside Properties, LLC will pay an
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)583-4113/FAx (563)583-1040/EMAIL balesq@cityofdubuque.org
agreed fee to the City which is less than the fee which the City believes they should
pay. QHQ will continue to pay to the City the difference between the agreed fee and the
fee which the City believes CHD Properties, LC and Courtside Properties, LLC should
pay.
The Settlement Agreement will have no impact on the total annual fee paid to the City.
The Stormwater Facilities Fee Agreement will be amended consistent with the
Settlement Agreement. CHD Properties, LC and Courtside Properties, LLC will execute
assignments of the amended Stormwater Facilities Fee Agreement to reflect their
agreement to pay the annual fee.
The declaratory judgment action will be dismissed at no cost to the City.
I recommend that the City Engineer be authorized to execute the Settlement Agreement
and Amendment to Stormwater Facilities Fee Agreement on behalf of the City of
Dubuque.
BAL:jmg
Attachment
cc: Michael C. Van Milligen, City Manager
Gus Psihoyos, City Engineer
Deron Muehring, Civil Engineer
2
THE CITY OF
DUBTJJE MEMORANDUM
Masterpiece on the Mississippi
TRACEY STECKLEIN
PARALEGAL
To: Kevin S. Firnstahl
City Clerk
DATE: January 3, 2017
RE: QHQ Properties, LLC v. City of Dubuque, et al.
• Settlement Agreement
• Amendment To Stormwater Facilities Fee Agreement
• Assignment of Stormwater Fee Agreement
Kevin:
Attached for tonight's City Council meeting are the original fully executed documents
referenced above. As you know, Jenny Griffin entered this item into Novus last week
while I was on vacation.
City Engineer Gus Psihoyos has executed the documents on behalf of the City. I am
providing these originals to you so that you can date them, and scan the fully executed
copies into Laserfiche.
would appreciate it if you would please provide fully executed and dated copies of
these documents to Engineering and return the originals to me. I will then provide the
originals to QHQ's attorney Flint Drake for recording.
Thank you.
Attachment
cc: Gus Psihoyos, City Engineer (no attachment)
F:\Users\tsteckle\Lindahl\QHQ vs City - LACV058429\Firnstahl_OrigDocsForJan3CouncilMeeting_010317.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL tsteckle@cityofdubuque.org
SETTLEMENT AGREEMENT
7
This Agreement is effective the3r�day of January 201-{� by and between
QHQ Properties, LLC ("QHQ"), the City of Dubuque, Iowa ("City"), C :1)H Properties, L.C.
("CF 1D"), and Courtside Properties, LLC ("Courtside").
Recitals
A. QHQ currently maintains a pending action for declaratory judgment, naming as
defendants the City of Dubuque, Iowa; CHD Properties, L.C.; and Courtside Properties,
LLC. This action involves the adjudication of the rights of the parties under a City of
Dubuque Stormwater Facilities Fee Agreement ("Stormwater Fee Agreement") entered into
the 24th day of May, 2004.
B. The Stormwater Fee Agreement contains covenants involving fees for
maintenance of the NW Arterial Detention Basin and Drainage Channel that encumber
property owned by QHQ, CED, and Courtside.
C. In lieu of judicial proceedings, all parties desire to enter into an agreement
regarding their rights and obligations under the Stormwater Fee Agreement.
D. The parties desire to set forth such agreement in writing.
Agreement Terms
Therefore, in consideration of the mutual terms and covenants herein, the parties
agree as follows:
1. Obligation to Pay Annual Maintenance Fee. The total amount due under the
Stormwater Fee Agreement for annual maintenance is currently calculated based on the
proportional acreage of property owned by the parties to the agreement in relation to the
total acreage of property served by the NW Arterial Detention Basin and Drainage Channel.
Specifically, the total annual maintenance fee under the Stormwater Fee Agreement is
calculated based on the proportion of approximately 40.9 acres that were attributable to the
property owner at the time of the execution of the Stormwater Fee Agreement to
approximately 332.9 total acres served by the Basin and Channel. However, the total amount
due is currently distributed over a total of approximately 21.76 acres of property, not the
40.9 acres used to calculate the total amount due. For example, because Courtside owns 3.01
acres, the City currently bills Courtside (3.01 / 21.76) 13.83% of the total amount due under
for annual maintenance under the Stormwater Fee Agreement.
Commencing with the payments due on January 1, 2016, CPD and Courtside shall
each pay a proportional share of annual maintenance equal to the proportion of the acreage
owned by that party to 40.9 acres. QHQ shall continue to pay a proportional share of annual
maintenance equal to the proportion of the acreage owned by QHQ to 21.76 acres. QHQ
shall also pay the difference between the share paid by CHD and Courtside under this
agreement and the share as if CHD and Courtside paid a share in a proportion equal to the
acreage owned by that party to 21.76 total acres. To summarize, the parties shall pay the
following proportional share of the total amount due for annual maintenance under the
Stormwater Fee Agreement:
CHD (2.02 / 40.9) 4.94%
Courtside (3.01 / 40.9) 7.36%
QHQ (2.21 / 21.76) =10.15%
(For CHID property) (2.02 / 21.76) - 4.94% = 4.34%
(For Courtside property) (3.01 / 21.76) - 7.36% = 6.47%
Total (10.15 + 4.34 + 6.47) 20.96%
2. Waiver of Backpay and Continued Obligation. QHQ waives any and all
payments from CHD and Courtside that may be due and owing under the Stoiniwater Fee
Agreement incurred prior to January 1, 2016. CHD and Courtside shall be responsible for
payments to the City under the Stormwater Fee Agreement as provided herein beginning
January 1, 2016 and every year thereafter. QHQ shall remain liable to City for all amounts
due under the Stormwater Fee Agreement attributable to property owned by QHQ, CHD,
and Courtside accruing prior to January 1. 2016.
3. Annual Maintenance Fee. The total annual maintenance fee due for purposes of
calculating the portion to be paid by the parties hereto shall be $5404.80 for the payment due
January 1, 2016. Commencing with the payment due in 2017, and continuing each year
thereafter, the annual maintenance fee shall be calculated by adding or subtracting a
percentage of the previous year's annual maintenance fee equal to the Consumer Price Index
- All Urban Consumers 12 -Month Percent Change published by the United States
Department of Labor Bureau of Labor Statistics for the year immediately prior to the
current payment year. Payment shall be due February 1 of each year to allow for publication
of the CPI annual average for the prior year. For example, if the 12 -Month Percent Change
for the CPI -All Urban Consumers from January 2016 to December 2016 is 2.0, the annual
maintenance fee due February 1, 2017 would be ($5405.80 x 1.020) $5513.92. If the 12 -
Month Percent Change for the CPI- All Urban Consumers from January 2017 to December
2017 is 1.5, the annual maintenance fee due February 1, 2018 would be ($5513.92 x 1.015)
$5596.63.
4. Development of Additional Properties Served by Basin and Channel. If any
further development is approved by the City involving property that would drain stor uiwater
to the NW Arterial Detention Basin, the City shall require the owners of such development
to contribute to the annual maintenance fee described herein based on the total acreage of
such property as a condition of such approval. Any amounts collected from such additional
developments shall be deducted from the amounts owed under this Agreement on a pro -rata
basis.
5. Abandonment of Basin and Channel. If the City implements a new or altered
stormwater management plan that renders the NW Arterial Detention Basin and the
Drainage Channel unused or unnecessary, any and all obligations for annual maintenance
payments pursuant to this agreement shall immediately cease.
6. Amendment of Stormwater Fee Agreement. City and QHQ shall execute and
record an amendment to the Stormwater Fee Agreement to accomplish the purposes of this
Agreement in the form of the draft amendment attached hereto as Exhibit "A."
7. Assignment of Stormwater Fee Agreement. QHQ, CHD, and Courtside shall
execute assignments of the amended Stormwater Fee Agreement to accomplish the purposes
of this Agreement in the form of the draft assignments attached hereto as Exhibits "B" and
"C." City hereby authorizes such assignments.
8. Dismissal of Legal Action. QHQ shall dismiss its action in the Iowa District
Court in and for Dubuque County against all parties with prejudice. Court costs shall be
taxed to QHQ.
9. Miscellaneous Provision. This agreement is binding upon the parties hereto and
their successors and assigns and shall be governed by and construed under the laws of the
State of Iowa. In the event of a breach of this agreement by any party, the non -breaching
party shall be entitled to all rights and remedies at law and equity and shall be entitled to
recover reasonable attorney fees, court costs and other expenses incurred due to such
breach.
10. Counterparts. This Agreement maybe executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall constitute one and
the same agreement.
CITY OF DU:17QU~- IOWA
By
Gus Psihoyos, City Enginee(
CHD Properties LLC
By:
Charles E. Tonn II , Member
QHQ Properties, LLC
g' no, ember
r'
By
Timothy J. Qu
Courtside Properties, LLC
By:
Prepared by and Return To: Samuel M. DeGree, Drake Law Firm, P.C., 300 Main Street, Suite 323, Dubuque, Lk
52001; (563) 582-2000
AMENDMENT TO
CITY OF DUBUQUE STORMWATER FACILITIES FEE AGREEMENT
This Amendment to City of Dubuque Stormwater Facilities Fee Agreement is
entered into this3rd day of January , 2017 , 2-016 between City of Dubuque,
Iowa ("City") and Tim Quagliano and QHQ Properties, LLC("Owner").
Recitals
A. City and Owner entered into the City of Dubuque Stormwater Facilities Fee
Agreement dated May 24, 2004 (the "Stormwater Fee Agreement") with respect to the
property situated in Dubuque, Iowa formerly described as:
Lots B of Holliday Addition and Lot 2 of 2 of the SE'/ of the
NE'/ of Section 20, T89N, R2E, 5th P.M. all in the City of
Dubuque, Dubuque Co., la;
This Amendment is intended to modify the Stormwater Fee Agreement only in relation
to a portion of the property described above, which portions are now legally described
as:
Lot 1 of Holliday 4th Addition; and Lot 1 of Lot 4, Lot 2 of
Lot 4, and Lot 1 of Lot 8 of Holliday 3rd Addition, in the
City of Dubuque Iowa according to the recorded Plats
thereof;
B. The parties desire to amend the Stormwater Fee Agreement with respect to
the annual maintenance fee; and desire to set forth such agreement in writing.
Therefore, in consideration of the terms and covenants of the Stormwater Fee
Agreement and this Amendment, the parties agree as follows:
1. Amendments. The Stormwater Fee Agreement, as it applies to the
above-described property only, is hereby amended as follows:
A. By appending to the end of paragraph 3 the following:
The annual maintenance fee due January 1, 2016, shall be $5405.80.
Commencing with the payment due in 2017, and continuing each year
thereafter, the annual maintenance fee shall be calculated by adding or
subtracting a percentage of the previous year's annual maintenance fee
equal to the Consumer Price Index — All Urban Consumers 12 -Month
Percent Change published by the United States Department of Labor
Bureau of Labor Statistics for the year immediately prior to the current
payment year. Payment shall be due February 1 of each year to allow for
publication of the CPI annual average for the prior year. For example, if
the 12 -Month Percent Change for the CPI -All Urban Consumers from
January 2016 to December 2016 is 2.0, the annual maintenance fee due
February 1, 2017 would be ($5405.80 x 1.020) $5513.92. If the 12 -Month
Percent Change for the CPI- All Urban Consumers from January 2017 to
December 2017 is 1.5, the annual maintenance fee due February 1, 2018
would be ($5513.92 x 1.015) $5596.63.
B. By adding new paragraphs 12 and 13 immediately following
paragraph 11, as follows:
12. If any further development is approved by the City involving
property that would drain stormwater to the NW Arterial Detention
Basin and the property owner does not provide on-site detention as
required by the City, the City shall require the owners of such
development to contribute to the annual maintenance fee
described herein based on the total acreage of such property as a
condition of such approval. Any amounts collected from such
additional developments shall be deducted from the amounts owed
under this Agreement on a pro -rata basis.
13. If the City implements a new or altered stormwater
management plan which the City determines renders the NW
Arterial Detention Basin and the Drainage Channel unused or
unnecessary, any and all obligations for annual maintenance
payments pursuant to this agreement shall immediately cease.
2. Effect on Balance of Stormwater Fee Agreement. Except as modified herein,
the Stormwater Fee Agreement shall continue to govern the rights and obligations of the
parties with respect to the Premises.
CITY OF DUBUQUE, IOWA QHQ Properties, LLC
Bv
Gus Psihoyos, City Engineer
Charles E. Tonn 11, Member
STATE OF IOVA
COUNTY OF,DUtbig
) ss:
By:
By
Timothy J. Q 4iano, Member
Courtside Properties, LLC
David, President
,1
This instrument was acknowledged before me on (
t:1- ek? - 27f 24&
by Timothy J. Quagliano as Member of QHQ Properti s, LLC.
DONNA MARIE BUSCH 6,149(
Iowa Notarial Seal • -
Commission No. 160578
My Commission Expires May 16, 2018 4.
STATE OF IOWA
COUNTY OF eMS
) s s
Notary Public in and for
State of Iowa
This instrument was acknowledged before me on
by Gus Psihoyos as City Engineer for the City of Dubuq!
BARRY A. LINDAHL
Commission Nualbpr 1//75f:.11
,„-r.- My Comm. Exp. f
1‹.
owa.
Nothry Public in and for
tete of Iowa
STATE OF IOWA
COUNTY OF DUBUQUE ) ss:
This instrument was acknowledged before me on O.
by Charles E. Tonn II as Member of CHD Properties, L.C.
PAUL J. FITZIMMONS
CeioNIt.trnt-w 172146
MY
STATE OF IOWA
COUNTY OF DUBUQUE ) ss:
Notary Pu c in arrd for
State of Iowa
This instrument was acknowledged before me on
by Jerry D rt,.Ptide Properties, LLC.
cornisiort er 17214
my 1(,,a; F137,1
/0 0
QrL. ,;1
Notary Public in and for
State of Iowa
Prepared by and Return to: Samuel M. DeGree, Drake Law Firm, PC 300 Main St., Suite 323, Dubuque, Iowa 52001
ASSIGNMENT OF STORMWATER FEE AGREEMENT
RE: Lot 1 of Lot 8, Lot 1 of Lot 4, and Lot 2 of Lot 4 of Holliday 3rd Addition, and
Lot 1 of Holliday 4th Addition, in the City of Dubuque, Iowa, according to the recorded
Plat thereof;
This Assignment of Stormwater Fee Agreement is made effective the 3rd
day ofJanuary, 2017 , 2010, by and between Timothy J. Quagliano and QHQ
Properties, LLC ("Assignor"), Courtside Properties, LLC ("Assignee One"), and CHD
Properties, LC ("Assignee Two").
RECITALS
A. Assignor is the Owner under a Stormwater Fee Agreement with the City of
Dubuque, Iowa dated May 24, 2004, amendeWanuary 3 , 2 0 1 7 201-8• (the
"Stormwater Fee Agreement");
B. The Stormwater Fee Agreement provides for the payment of annual
maintenance fees to maintain the NW Arterial Detention Basin and Drainage
Channel. Such Agreement is recorded with the Dubuque County Recorder,
and the obligations of the Owner thereto run with the land.
C. Assignor currently owns Lot 1 of Lot 4 and Lot 2 of Lot 4 of Holliday 3rd
Addition, which consist of 1.50 and 0.71 acres respectively.
D. Assignor previously sold portions of the property encumbered by the
Stormwater Fee Agreement: Lot 1 of Lot 8 Holliday 3rd Addition to Assignee
One, and Lot 1 of Holliday 4th Addition to Assignee Two. Assignor now wishes
to assign all its rights and obligations under the Stormwater Fee Agreement in
relation to Lot 1 of Lot 8 Holliday 3rd Addition in the City of Dubuque, Iowa to
Assignee One, and all its rights and obligations under the Stormwater Fee
Agreement in relation to Lot 1 of Holliday 4th Addition to Assignee Two,
except that it shall retain the obligation to pay a portion of the annual
maintenance fee as provided herein;
1IPage
E. The assignment by Assignor to Assignee One and Assignee Two hereunder
is permanent and complete and Assignor retains no rights under the
Stormwater Fee Agreement whatsoever in relation to Lot 1 of Lot 8 of Holliday
3rd Addition and Lot 1 of Holliday 4th Addition, except that it remains obligated
to pay a portion of the annual maintenance fee as specified herein, as of the
date hereof;
F. The City of Dubuque, Iowa has authorized this Assignment; and,
F. The parties desire to reduce this Assignment to writing.
THEREFORE, Assignor hereby assigns to Assignee One and Assignee Two the
Stormwater Fee Agreement pursuant to the following terms and conditions:
1. Assignment One. Assignor hereby assigns to Assignee One, and Assignee
One hereby accepts from Assignor, this assignment of the Stormwater Fee
Agreement in relation to Lot 1 of Lot 8 of Holliday 3rd Addition in the City of
Dubuque, Iowa, which assignment includes all rights and obligations of any
sort whatsoever of Assignor thereunder such that, upon acceptance hereof by
Assignee One, Assignor shall have no right or interest whatsoever in and to
the Development Agreement as of the date hereof and Assignee One shall
carry out all obligations of, and be entitled to all rights of, Assignor thereunder
in relation to Lot 1 of Lot 8 of Holliday 3rd Addition. Notwithstanding this
paragraph, Assignor shall remain obligated to pay the portion of the annual
maintenance fee specified in paragraph 3 below in relation to Lot 1 of Lot 8 of
Holliday 3rd Addition in the City of Dubuque, Iowa.
2. Assignment Two. Assignor hereby assigns to Assignee Two, and Assignee
Two hereby accepts from Assignor, this assignment of the Stormwater Fee
Agreement in relation to Lot 1 of Holliday 4th Addition in the City of Dubuque,
Iowa, which assignment includes all rights and obligations of any sort
whatsoever of Assignor thereunder such that, upon acceptance hereof by
Assignee Two, Assignor shall have no right or interest whatsoever in and to
the Development Agreement as of the date hereof and Assignee Two shall
carry out all obligations of, and be entitled to all rights of, Assignor thereunder
in relation to Lot 1 of Holliday 4th Addition. Notwithstanding this paragraph,
Assignor shall remain obligated to pay the portion of the annual maintenance
fee specified in paragraph 3 below in relation to Lot 1 of Holliday 4th Addition
in the City of Dubuque, Iowa.
3. Retention of Obligation. Assignor shall remain liable to City under the
Stormwater Fee Agreement to pay a portion of the total amount due for
annual maintenance under the Stormwater Fee Agreement due in relation to
the lots owned by Assignee One and Assignee Two as follows: Lot 1 of Lot 8
of Holliday 3rd Addition -- 4.34%; and Lot 1 of Holliday 4th Addition -- 6.47%.
Assignee One shall pay 4.94% of such annual fee, which amount is
attributable to the remaining portion of the fee due in relation to Lot 1 of Lot 8
21Page
of Holliday 3rd Addition. Assignee Two shall pay 7.36% of such annual fee,
which amount is attributable to the remaining portion of the fee due in relation
to Lot 1 of Holliday 4th Addition.
In addition to the total of 10.81% of the annual maintenance under the
Stormwater Fee Agreement that Assignor will remain obligated to pay in
relation to the lots now owned by Assignee One and Assignee Two, Assignor
shall remain obligated to pay the 10.15% portion of the annual maintenance
fee attributable to its ownership of Lot 1 of Lot 4 and Lot 2 of Lot 4 of Holliday
3rd Addition, or a total of 20.96%.
4. Obligations to Run with the Land. The obligations of Assignor, Assignee One,
and Assignee Two to pay their respective portions of the annual maintenance
fee under the Stormwater Fee Agreement shall run with the land and be
binding on their successors, transferees, and assigns as follows:
Lot 1 of Lot 8 of Holliday 3rd Addition:
Lot 1 of Holliday 4th Addition:
Lot 1 of Lot 4 of Holliday 3rd Addition:
Lot 2 of Lot 4 of Holliday 3rd Addition:
4.94%
7.36%
14.23%
6.73%
5. Law/Binding Effect. This Assignment shall be governed by and construed in
accordance with the laws of the State of Iowa. This Assignment shall be
binding upon the parties hereto and their respective successors in interest
and assigns. In the event of a breach of this Assignment the non -breaching
party shall be entitled to all rights and remedies at law or equity and shall be
entitled to recover reasonable attorneys' fees incurred due to the breach.
6. Affirmation. The parties hereby affirm the Stormwater Fee Agreement in all
respects, except that the obligations of Owner in relation to the annual
maintenance fee shall be divided between Assignor and Assignees as
provided herein.
Timothy J. Qua liano d Q Q Properties, LLC, Assignor
By: 1 /V`
Timothy J. Qu ' ano Member
And personally
STATE OF IOWA )
COUNTY OF(]iate ) ss:
This instrument was acknowledged before me on 2 9 l 4,
by Timothy ► .'_b. - e - Propertied, LLC.
Mibi //MI -664.,
3!Page
DONNA MARIE BUSCH
Iowa Notarial Seal
Commission No. 160578
My Commission Expires May 16, 2018
Notary Public in and for
State of Iowa
Courtside Properties, LLC, Assignee One
By: 71
Jerry Di, President
STATE OF IOWA )
COUNTY OF pi, br4e ) ss:
This instrument was acknowledged before me on Ari,,,/iv/,lQ/F
by Jerry David as President of Courtside Properties, LLC
I �1 1'.,(. PAUL J. F,IMON
Commissior, NITZurr bMer 1p721tS446
MIY�fjNPf 0/ 7
Notary Pub in a d for
State of Iowa
CHD Pro rt - s, L.C., Assignee Two
B
Charles E. Tonn Member
STATE OF IOWA
COUNTY OF 044 i
) ss:
This instrument was acknowledged before me on _A fe k /40
by Charles E. Tonn II as Member of CHD Properties, L.C.
PAUL J, F TZIM1M„ aNS 694 id
7.
Commission Number 172146
MN1ty" X"1 _� Notary P 'lic in amend for
State of Iowa
4lPage
PrPQarad by G� Ps hgyos 4s° CiC npinc�r Cf:v of Cuhx,` � 13S;. Gubc4ue,�_A 52001�So31 58 -4"L�0
i CITY OF DUBUQUE STORMWATER FACILITIES FEE AGREEMENT
THIS AGREEMENT rade and entered into this 24'0 day of May, 2004, by
and beV.meen the City of Dubuque (City) and Tim Quagliano D/B/A QHQ (Owner)
whose address is 3430 Dodge Street, Unit 6, Dubuque, Iowa 52003
WHEREAS, Owner is proposing to constrict Me fcilowing development
(the Project).-
Description
roject):Description of Project: Commercial Development
I Address of Project: Northwest Arterial and Asbury Road
and
WHEREAS, City policy requires that a development such as the Project
include the construction of a private stormwater detention facility to mitigate the
increased volume and flow of stormwater runoff caused by the Project; and
WHEREAS, City constructed, owns, and operates the NW Arterial
Detention Basin; and
WHEREAS, City owns and maintains the Drainage Channel beNreen the
project and the NW Arterial Detention Basin; and
WHEREAS, Owner desires to have the benefit of the service of the NIN
Arterial Detention Basin and the Drainage Channel and agrees to pay City for the
cost of such service. _
NO'tb', THEREFORE, in consideration of the terns, conditions, covenants and
performances contained herein, the parties hereto agree as follows:
1. City agrees to operate and maintain the NW Arterial Detention Basin
and the Drainage Channel immediately downstream; of the Project to
detain stormwater rti-noff from the Project and other upstream
properties that tota; 332.8 acres. City's cost to construct the NW
Arterial Detention Basin was $506,478.62, or approximately $1,522 per
acre.
2. Owner shall pay the City at the time of execution of this Agreement a
detention basin co7istruciion service fee in the amount of Sixty-two
I
Thousand Two Hundred Fifty Dollars ($62,250.00), based on $1,522
per acre for the 40.9 acres associated with the Project
i 3. Commencing January 1, 2005, and on January 1 of each year
thereafter, Owner shall pay to City an annual detention basin and
drainage channel maintenance fee for the maintenance of the NW
Arterial Detention Basin and the Drainage Channel. The annual fee for
2005, shall be Four Thousand One Hundred Twenty Dollars
($4,120.00). The annual fee for 2006 and for each year thereafter
shall be calculated by adding 2.5% to the fee for the previous year.
[Fee for year 2006 = $4,120 + (2.5% x $4,120) = $4,223.00; fee for
year 2007 = $4,223.00 + (2.5% x$4,223.00) = $4,328.53; and so on].
4. City shall not require Owner to provide on-site drainage detention
facilities for the Project so long as City is providing the detention basin
service for the Project.
5. Owner agrees that nothing contained herein shall relieve Owner of the
responsibility for providing adequate private drainage facilities on the
Project site or the responsibility for discharging stormwater to a public
drainage facility in accordance with plans therefore approved by the
City. Owner shall prepare plans for and construct such drainage
facilities in accordance with City's design standards and practices.
6. This Agreement shall be binding upon City and Owner and their
i
successors, executors, administrators and assigns.
7. it is understood that the Owner will assign, sublet, or transfer its
interests in this Agreement, but not without prior written consent of
City, which consent shall not be unreasonably withheld.
8. Nothing herein shall be construed as giving any rights or benefits
hereunder to anyone other than City and Owner.
g. This Agreement supercedes all previous agreements, oral or written,
between City and Owner and represents the whoie and entire
Agreement beMeen the parties regarding this matter. This Agreement
may not be altered, modified or amended except in writing, properly
executed by an authorized representative of City and Owner.
10. If any section, clause or provision of this Agreement shall be held
invalid, such invalidity shall not affect the validity of any other section,
clause, paragraph, portion or provision of this Agreement.
11. The construction, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the laws of the
state of Iowa. Any action at law, suit in equity or judicial proceeding for
the enforcement of this Agreement or any provision thereof shall be
i
I
i instituted and maintained in a court of competent jurisdiction locat--d in
the County of Dubuque, State of Iowa.
IN WITNESS THEREOF, the palies hereto have made and executed this
Agreement the day, month, and year first above written.
OWNER CITY OF DU U
Gus P Ihoyas
Printed Name V Printed Name �V
kn '�� �r Assistant City Engineer
fTAle Title
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1 STATE OF IONA
DUBUQUE COUNTY : ss.
On this 4 Z of 2004, before me, a Notary Public in
and forte State of Iowa, in and for sa;d county, per;ona.ly appeared
`�i'.yra Qct 1 Q.y o to me personally known,
who
a k owiedged tha e is the q7_ it e.--- of
row�r i e� that he is authorized to execute the
foregoing docu ent on behalf of
and that the execution, of this instrument is his an its voluntary act and deed on
beh Ir f
€Votary ic, State of Iowa
I RcYALo J r1R�_a
:ommlsilx Mumbsr 1
I r i!y Coaa.t;cion cc�lrat•'
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i STATE OF IOV11A
DUBUQUE COUNTY : ss.
On this day of �22004, before me, the
undersigned, a Notary Public in and for the State of Iowa, Personally appeared
Gus Psihoyos, to me personally known, who being by me duly sworn, did say
that he is the Assistant City Engineer for the City of Dubuque, Iowa, a municipal
corporation; and Gus Psihoyos acknowledged the execution of the instrument to
be his voluntary act and deed and the voluntary act and deed of the corporation,
by it tartly e u d.
RQNALC J.%RN:R
NotaryP b in and for said State 1
Y7CoRrtt ;onEr�lna D�
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