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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 I t i i t s I i i f I i I 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•' I � f 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� f I