HomeMy WebLinkAbout2004-01-06 Resolution Prepared by: Eleanor M. Dilkes, City Attorney, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5030
RESOLUTION NO. 04-1
RESOLUTION ADOPTING THE STATEWlDE MUTUAL AID COMPACT,
WHEREAS, emergencies and disasters transcend jurisdictional boundaries, making
intergovernmental coordination essential in successful emergency response efforts; and
WHEREAS, there will inevitably be emergencies which require immediate access to outside
resources due to the fact that few individual governments have all of the resources they may
need in every type of emergency; and
WHEREAS, Senate File 2124, approved by the Second Session of the 79th General Assembly
in 2002, creates Statewide Code section 29C.22, the Statewide Mutual Aid Compact; and
WHEREAS, the Statewide Mutual Aid Compact allows participating counties, cities, and other
political subdivisions to provide in advance for mutual assistance in managing any emergency
or disaster.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA, THAT:
1. In order to maximize the prompt, full and effective use of resources of all participating
governments in the event of an emergency or disaster, the City hereby adopts the Statewide
Mutual Aid Compact, which is attached hereto and incorporated by reference; and
2. The City Manager, Assistant City Manager, and Finance Director shall be authorized
representatives of the City and as such may obligate funds and personnel on behalf of the City
of Iowa City in connection with requests for mutual aid and authorize requests for mutual aid
on Iowa City's behalf.
Passed and approved this. 6th day of ~l~nuarv ,20 04 ·
CITY'CLERK City Attorney's Office
It was moved by Champion and seconded by 0' Donnel 1 the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
× Wilburn
eleanor/res/statewide mutual aid
NEW SECTION.
29C.22 STATEWIDE MUTUAL AID COMPACT.
This statewide mutual aid compact is entered into with all other counties, cities, and other
political subdivisions that enter into this compact in substantially the following form:
ARTICLE I
PURPOSE AND AUTHORITIES
This compact is made and entered into by and between the participating counties, cities, and
political subdivisions which enact this compact. For the purposes of this agreement, the term
"participating governments" means counties, cities, townships, and other political
subdivisions of the state which have, through ordinance or resolution of the governing body,
acted to adopt this compact.
The purpose of this compact is to provide for mutual assistance between the participating
governments entering into this compact in managing any emergency or disaster that is
declared in accordance with a countywide comprehensive emergency operations plan or by
the governor, whether arising fi.om natural disaster, technological hazard, man-made
disaster, community disorder, insurgency, terrorism, or enemy attack.
This compact shall also provide for mutual cooperation in emergency-related exercises,
testing, or other training activities using equipment and personnel simulating performance of
any aspect of the giving and receiving of aid by participating governments during
emergencies, such actions occurring outside actual declared emergency periods.
ARTICLE II
GENERAL IMPLEMENTATION
Each participating government entering into this compact recognizes many emergencies
transcend political jurisdictional boundaries and that intergovernmental coordination is
essential in managing these and other emergencies under this compact. Each participating
government further recognizes that there will be emergencies which require immediate
access and present procedures to apply outside resources to make a prompt and effective
response to the emergency. This is because few, if any, individual governments have all the
resources they may need in all types of emergencies or the capability of delivering resources
to areas where emergencies exist.
The prompt, full, and effective use of resources of the participating governments, including
any resources on hand or available fi.om any source, that are essential to the safety, care, and
welfare of the people in the event of any emergency or disaster declared by the governor or
any participating government, shall be the underlying principle on which all articles of this
compact shall be understood.
On behalf of the participating government in the compact, the legally designated official
who is assigned responsibility for emergency management will be responsible for
formulation of the appropriate intrastate mutual aid plans and procedures necessary to
implement this compact.
ARTICLE III
PARTICIPATING GOVERNMENT RESPONSIBILITIES
1. It shall be the responsibility of each participating government to formulate procedural
plans and programs for intrastate cooperation in the performance of the responsibilities
Page 1 of 5
listed in this article. In formulating the plans, and in carrying them out, the participating
governments, insofar as practical, shall:
a. Review individual hazards analyses and, to the extent reasonably possible,
determine all those potential emergencies the participating governments might
jointly suffer, whether due to natural disaster, technological hazard, man-made
disaster, civil disorders, insurgency, terrorism, or enemy attack.
b. Review the participating governments' individual emergency plans and develop
a plan that will determine the mechanism for the intrastate management and
provision of assistance concerning any potential emergency.
c. Develop intrastate procedures to fill any identified gaps and to resolve any
identified inconsistencies or overlaps in existing or developed plans.
d. Assist in warning communities adjacent to or crossing the participating
governments' boundaries.
e. Protect and ensure uninterrupted delivery of services, medicines, water, food,
energy and fuel, search and rescue, and critical lifeline equipment, services, and
resources, both human and material.
f. Inventory and set procedures for the intrastate loan and delivery of human and
material resources, together with procedures for reimbursement or forgiveness.
g. Provide, to the extent authorized by law, for temporary suspension of any
ordinances that restrict the implementation of the above responsibilities.
2. The authorized representative of a participating government may request assistance of
another participating government by contacting the authorized representative of that
participating government. The provisions of this compact shall only apply to requests for
assistance made by and to authorized representatives. Requests may be verbal or in
writing. If verbal, the request shall be confirmed in writing within thirty days of the
verbal request. Requests shall provide all of the following:
a. A description of the emergency service function for which assistance is needed,
such as but not limited to fire services, law enforcement, emergency medical,
transportation, communications, public works and engineering, building
inspection, planning and information assistance, mass care, resource support,
health and medical services, and search and rescue.
b. The amount and type of personnel, equipment, materials and supplies needed,
and a reasonable estimate of the length of time that the personnel, equipment,
materials, and supplies will be needed.
c. The specific place and time for staging of the assisting participating
government's response and a point of contact at that location.
3. The authorized representative of a participating government may initiate a request by
contacting the emergency management division of the state department of public
defense. When a request is received by the division, the division shall directly contact
other participating governments to coordinate the provision of mutual aid.
4. Frequent consultation shall occur between officials who have been assigned emergency
management responsibilities and other appropriate representatives of the participating
governments with affected jurisdictions and state government, with free exchange of
information, plans, and resource records relating to emergency capabilities.
Page 2 of 5
ARTICLE 1V
LIMITATIONS
Any participating government requested to render mutual aid or conduct exercises and
training for mutual aid shall take the necessary action to provide and make available the
resources covered by this compact in accordance with the terms of the compact. However, it
is understood that the participating government rendering aid may withhold resources to the
extent necessary to provide reasonable protection for the participating government. Each
participating government shall afford to the emergency forces of any other participating
government, while operating within its jurisdictional limits under the terms and conditions of
this compact, the same powers, except that of arrest unless specifically authorized by the
receiving participating government, duties, rights, and privileges as are afforded forces of the
participating government in which the emergency forces are performing emergency services.
Emergency forces shall continue under the command and control of their regular leaders, but
the organizational units shall come under the operational control of the emergency services
authorities of the participating government receiving assistance. These conditions may be
activated, as needed, only subsequent to a declaration of a state of emergency or disaster by
the governor or by competent authority of the participating government that is to receive
assistance or commencement of exercises or training for mutual aid and shall continue so
long as the exercises or training for mutual aid are in progress, the state of emergency or
disaster remains in effect, or loaned resources remain in the receiving jurisdiction, whichever
is longer.
ARTICLE V
LICENSES AND PERMITS
If a person holds a license, certificate, or other permit issued by any participating
government to this compact evidencing the meeting of qualifications for professional,
mechanical, or other skills, and when the assistance is requested by another participating
government, the person shall be deemed licensed, certified, or permitted by the participating
government requesting assistance to render aid involving the skill to meet a declared
emergency or disaster, subject to the limitations and conditions as the governor may
prescribe by executive order or otherwise.
ARTICLE VI
LIABILITY
Officers or employees of a participating government rendering aid in another participating
government jurisdiction pursuant to this compact shall be considered agents of the
requesting participating government for tort liability and immunity purposes and a
participating government or its officers or employees rendering aid in another jurisdiction
pursuant to this compact shall not be liable on account of any act or omission in good faith
on the part of the forces while so engaged or on account of the maintenance or use of any
equipment or supplies in connection with the aid. Good faith in this article shall not include
willful misconduct, gross negligence, or recklessness.
ARTICLE VII
SUPPLEMENTARY AGREEMENTS
Because it is probable that the pattern and detail of the machinery for mutual aid among two
or more participating governments may differ from that among other participating
governments, this compact contains elements of a broad base common to all political
subdivisions, and this compact shall not preclude any political subdivision from entering into
supplementary agreements with another political subdivision or affect any other agreements
already in force between political subdivisions. Supplementary agreements may include, but
Page 3 of 5
shall not be limited to, provisions for evacuation and reception of injured and other persons
and the exchange of medical, fire, police, public utility, reconnaissance, welfare,
transportation and communications personnel, and equipment and supplies.
ARTICLE VIII
WORKERS' COMPENSATION
Each participating government shall provide for the payment of workers' compensation and
death benefits to injured members of the emergency forces of that participating government
and representatives of deceased members of the emergency forces in case the members
sustain injuries or are killed while rendering aid pursuant to this compact, in the same
manner and on the same terms as if the injury or death were sustained within their own
jurisdiction.
ARTICLE IX
REIMBURSEMENT
Any participating government rendering aid in another jurisdiction pursuant to this compact
shall be reimbursed by the participating government receiving the emergency aid for any
loss or damage to or expense incurred in the operation of any equipment and the provision of
any service in answering a request for aid and for the costs incurred in connection with the
requests. However, an aiding political subdivision may assume in whole or in part the loss,
damage, expense, or other cost, or may loan the equipment or donate the services to the
receiving participating government without charge or cost, and any two or more participating
governments may enter into supplementary agreements establishing a different allocation of
costs among the participating governments. Article VIII expenses shall not be reimbursable
under this provision.
ARTICLE X
EVACUATION AND SHELTERING
Plans for the orderly evacuation and reception of portions of the civilian population as the
result of any emergency or disaster shall be worked out and maintained between the
participating governments and the emergency management or services directors of the
various jurisdictions where any type of incident requiring evacuations might occur. The
plans shall be put into effect by request of the participating government from which
evacuees come and shall include the manner of transporting the evacuees, the number of
evacuees to be received in different areas, the manner in which food, clothing, housing, and
medical care will be provided, the registration of the evacuees, the providing of facilities for
the notification of relatives or friends, and the forwarding of the evacuees to other areas or
the bringing in of additional materials, supplies, and all other relevant factors. The plans
shall provide that the participating government receiving evacuees and the participating
government from which the evacuees come shall mutually agree as to reimbursement of out-
of-pocket expenses incurred in receiving and caring for the evacuees, for expenditures for
transportation, food, clothing, medicines and medical care, and like items. The expenditures
shall be reimbursed as agreed by the participating government from which the evacuees
come. After the termination of the emergency or disaster, the participating government from
which the evacuees come shall assume the responsibility for the ultimate support of
repatriation of such evacuees.
ARTICLE XI
IMPLEMENTATION
This compact shall become operative immediately upon its adoption by ordinance or
resolution by the governing bodies of any two political subdivisions. Thereafter, this
Page 4 of 5
compact shall become effective as to any other political subdivision upon its adoption by
ordinance or resolution of the governing body of the political subdivision. Any participating
government may withdraw from this compact by adopting an ordinance or resolution
repealing the same, but a withdrawal shall not take effect until thirty days after the governing
body of the withdrawing participating government has given notice in writing of the
withdrawal to the administrator of the emergency management division who shall notify all
other participating governments. The action shall not relieve the withdrawing political
subdivision from obligations assumed under this compact prior to the effective date of
withdrawal. Duly authenticated copies of this compact and any supplementary agreements as
may be entered into shall be deposited, at the time of their approval, with the administrator
of the emergency management division who shall notify all participating governments and
other appropriate agencies of state government.
ARTICLE XII
VALIDITY
This compact shall be construed to effectuate the purposes stated in article I. If any provision
of this compact is declared unconstitutional, or the applicability of the compact to any person
or circumstances is held invalid, the constitutionality of the remainder of this compact and
the applicability of this compact to other persons and circumstances shall not be affected.
Sec. 56. EFFECTIVE DATE. This division of this Act, being deemed of immediate
importance, takes effect upon enactment.
Page 5 of 5
Iowa City Fire Department
"Serving with Pride and Professiionalism Since 1872"
DATE: December 17, 2003
TO: Stephen J. Atkins, City Manager
FROM: Andrew J. Rocca, Fire Chief
~: Iowa Mutual Aid Compact
The Iowa Mutual Aid Compact (~AC) is an intrastate voluntaw pro.am that allows for one
political subdivision to assist another political subdivision in a disaster that has been declared
either by the local member political subdivision or the Governor. Political subdivisions must be
signatories of the compact to implement assistance t~ough ~AC. The ~AC pro.am is being
administered by the Iowa Homel~d Secuhty and Emergency M~agement Division.
~ September, Mr. Craig Estep of the Iowa Homeland Security and Emergency Management
Division provided an ove~iew of the ~AC pro.m, to local elected officials and City staff. It
was dete~ined after the pro.am that the City of Iowa City would become a si~ato~ of the
~AC. The ability to request additional resources during a natural or man-made disaster will be
extremely valuable should the need ~ise. City st~f is ready to implement the provision of the
~AC pending the City Council's approval at their focal meeting on Janua~ 6, 2004.
AJ~dm
cc: R.J. Wi~elhake, Police Chief
Kevin O'Malley, Finance Director
Eleanor Dilkes, City Attorney
Rick Fosse, Public Works Director
Tom Hansen, Emergency Management Coordinator
(319) 3$6 5256 (319) 356 5257 (319) 356 5262 (3t9) 356 5258 {319} 35(, 5266 (319) 356 5265
Prepared by: Mitchel T. Behr, Asst. City Attorney, 410 E. Washington St., Iowa City, IA 52240~1826, (319) 356-5030
RESOLUTION NO. 04-2
RESOLUTION AUTHORIZING THE MAYOR TO SIGN AND THE CITY CLERK
TO ATTEST THE RELEASE OF A UTILITY AND DRAINAGE EASEMENT
LOCATED ON LOT 9, B.D.I. FIFTH ADDITION, IOWA CITY, IOWA, AND TO
APPROVE AND EXECUTE A NEW UTILITY AND DRAINAGE EASEMENT
AGREEMENT FOR LOT 8, B.D.I. FIFTH ADDITION, IOWA CITY, IOWA.
WHEREAS, the City possesses a utility and drainage access easement on Lot 9, B.D.I. Fifth
Addition, Iowa City, Iowa; and
WHEREAS, the owner of the subject property, United Natural Foods, Inc., wishes to expand its
warehouse building on the subject property and the proposed expansion includes building over
the current easement area; and
WHEREAS, the owner requested the City release the existing utility and drainage easement,
said utility and drainage easement being shown on the final plat of B.D.I. Fifth Addition and
recorded in Plat Book 29, Page 74 at the Johnson County Recorder's Office, said easement
area to be released being designated and legally described on the legal description and plat
attached hereto as Exhibit "A", and incorporated by this reference; and
WHEREAS, Public Works has recommended the release of the existing utility and drainage
easement and the execution of the new utility and drainage easement agreement to
accommodate the expanded construction attached hereto as Exhibit "B"; and
WHEREAS, it is in the public interest to release the existing utility and drainage easement and
to execute the new, substituted Utility and Drainage Easement Agreement for the subject
property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA, THAT:
1. The City Council finds it is in the public interest to release the existing drainage and
utility easement and to enter into the new, substituted Utility and Drainage Easement
Agreement attached hereto, which is hereby approved as to form and content.
2. The City of Iowa City does hereby abandon, release and relinquish all right, title and
interest in the Utility and Drainage Easement for Lot 9, B.D.I. Fifth Addition, Iowa City,
Iowa, described in Exhibit "A" attached hereto and incorporated by reference herein, and
the mayor is hereby authorized to sign, and the City Clerk to attest, a release of said
easement sufficient for recordation.
3. The Mayor is hereby authorized to sign and the City Clerk to attest the Utility and
Drainage Easement Agreement for Lot 8, B.D.I. Fifth Addition, Iowa City, Iowa, Johnson
County, Iowa attached hereto as Exhibit "B".
Resolution No. 04-2
Page 2
4. The City Clerk is hereby authorized and directed to certify a copy of this Resolution for
recordation in the Johnson County Recorder's Office together with the attached Release
of Utility and Drainage Easement and the attached Utility and Drainage Easement
Agreement with its exhibits, said recording costs to be paid by Natural Foods, inc.
Passed and approved this 6th dayof.~~]~ ~ ~ ~
'~IAYOR
A rEs'r:
CiTY'CLERK
Approved by
C~t'y ~l~tomey~ Office
Resolution No. 04-2
Page 3
It was moved by Champion and seconded by 0'Donne'l'l the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
X Wilbum
EXHIBIT "A"
Prepared by: Mitchel T. Behr, Asst. City Attorney, 410 E. Washington St., Iowa City, IA 52240-1826; (319) 356-5030
RELEASE OF UTILITY AND DRAINAGE EASEMENT
The City of Iowa City, Iowa, does hereby release the property legally designated on the plat
attached hereto as Exhibit "A" and described as Release of Easement Exhibit, which is
incorporated by this reference, from a lien or cloud upon the title placed thereon by the
easement granted to the City. This easement is originally shown on the Final Plat of B.D.I. Fifth
Addition, Iowa City, Iowa, and which easement agreement is recorded in Plat Book 29, Page 74
of the records of the Johnson County Recorder's Office. Said easement is specifically
described in Exhibit "A" is hereby released.
The City retains all other easements shown on said final plat not released by this document.
CITY OF IOWA CITY, IOWA
BY~w. L~heh~a~,-~ ~ ~ r~~
ATTEST: "'~'~.~.¢~'~ ~. '~¢44'
Mar~'h K. Kart, City Clerk
STATE OF IOWA )
) SS:
JOHNSON COUNTY )
On this ~ day of ~,~uu,~z.,.t ,200~, before me the undersigned, a Notary Public
in and for said C~unty, n said State, personally appeared Ernest W. Lehman and Marian K.
Kart, to me personally know, who being by me duly sworn, did say that they are the Mayor and
City Clerk, respectively of said municipal corporation executing the foregoing instrument; that
the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed
and sealed on behalf of said municipal corporation by authority of City council of said municipal
corporation; and that Ernest W. Lehman and Marian K, Kart acknowledged the execution of
said instrument to be the voluntary act and deed of said municipal corporation and by them
voluntarily executed.
1 SONDRAEFO.T I
) Commission Number 1597911 ~"¢~ ~
I My (~omml~sion Expires I
I ~f/'~/o~, I Notary Public in and for the State of Iowa
My Commission Expires:
Annen/BDl 5"' Release of Easement. doc
I jsbaile ! P:~Projects~103201-P~Dwg~ESMT ~CLEASE,DWO I DATE: 09/02/20031 Time: 13: 56'
EXHIBIT "A"
RELEASE OF EASEMENT EXHIBIT
LOT 9, BDI FIFTH ADDITION
IOWA CITY, JOHNSON COUNTY, IOWA
.. LOT 10 /
/
'~ PARCEL No. 99041
/
....... No. 99042 /~.
/-~
~ ORIGINAL EASTERLY
LINE OF LOT 9
N ,1'56'56" W
20.20'
EXISTING UTIUTY AND
NOTES: DRAINAGE EASEMENT
ALL DISTANCE AND
BEARINGS ARE OF
RECORD. NO FIELD UTILITY AND DRAINAGE
SURVEY WAS PERFORMED EASEMENT TO BE RELEASED
SEE DESCRIPTION ON LINE OF
BDI FIFTH ADDITION TO SHEET 2 OF 2 LOT 9
IOWA CITY, IOWA IS
RECORDED IN PLAT BOOK 29, LOT 8
PAGE 74 AT THE JOHNSON
COUNTY RECORDER'S OFFICE
LOT 9
STORM WATER MANAGEMENT S 72'28'57" W
DETENTION POND EASEMENT 20.98'
OINT OF BEGINNING
LOT 11
"'- I hereby certify that this land surveying document was
~" the related work performed by
prepared
and
survey
was
me or under my direct personal supervision and that I
am a Surveyor under the laws of the
JONATHON
0 50 100 200 ~. 12531 Bailey dote
License No.
~m~ ~ My license renewal date is December 31, 2004
SCALE IN FEET Sheet covered by this certification:
1 of 2 and 2 of 2
LOT 9, BDI 5TH ADDITION 103201-0
N IOWA CITY, JOHNSON COUNTY, IOWA
DAlE 9/2/03 SCALE AS SHOWN SHEET NO.
Cedar RN3id~ IA, Iowa City, IA De~ Molnee, IA O~AWN ~S~ F, ELO .aox "/^-I ~-,~ O
Maline, IL · Sloon'~ IL /
~J/
/-..
http://www,shive-h~[tery, com APPROVEO JSB REVISION 1
I jsbGile I P:~Projects~103201-P~Dwg%ESMT ~CLEASE.DWG I DATE: 09/02/2003I Time: 13:56'
EXHIBIT "A"
RELEASE OF EASEMENT EXHIBIT
LOT 9, BDI FIFTH ADDmON
IOWA CITY, JOHNSON COUNTY, IOWA
DESCRIPTION
That part of a Utility and Drainage Easement in Lot 9, B.D.I. Fifth
Addition to Iowa City, Iowa (Final Plat recorded in Plat Book 29,
Page 74 at the Johnson County Recorder's Office) described os
follows:
Beginning at the Southeast corner of said Lot 9;
thence North 0'05'29" East 590.74 feet along the East line of said
Lot 9 (assumed bearing for this description only) to o point of
intersection with a Southerly line of said Utility and Drainage
Easement extended Easterly;,
thence North 81'56'56" West 20.20 feet along said Southerly line
extended Easterly to o point 20 feet in perpendicular distance West
of the East line of said Lot 9;
thence South 0"05'29" West 599.89 feet along a line parallel with
said East line to o point of intersection with the Southerly line of
said Lot 9;
thence North 72'28'37" East 20.98 feet along said Southerly line to
the point of beginning.
LOT 9, BDI 5TH ADDITION 103201-0
~, IOWA CITY, JOHNSON COUNTY, IOWA
DATE 9/2/03 ISCALE AS SHOWN SHEET NO,
Cedar Rapld~ IA Iowa City, lA De8 MO]Fi~ lA DRAWN JSBI FIELD BOOK N/A
2 of 2
h ttp://www.shive-h~ttery, com APPROVED JSB REVISION 1
EXHIBIT
Prepared by: Mitchel T. Behr, Asst. City Attomey, 410 E.Washington St., Iowa City, IA 52240-1826, (319) 356-5030
UTILITY AND DRAINAGE EASEMENT FOR LOT 8, BDI FIFTH
ADDITION, IOWA CITY, IOWA, JOHNSON COUNTY, IOWA
THIS AGREEMENT, is made and entered into by and between United Natural Foods, Inc., a
corporation, (hereinafter "Owner") and the City of Iowa City, a municipal corporation and
regulatory authority, (hereinafter "the City").
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
For the sum of One Dollar and other valuable consideration, receipt of which is hereby
acknowledged, Owner hereby grants and conveys to the City, a drainage and utility easement
for purposes of excavating for and the installation, replacement, maintenance and use of such
drainageways, tile lines, water main, sanitary sewer lines, pipes, mains and conduits or other
public utilities, including telephone, cablevision and electrical service, as the City shall from time
to time elect for the provision of services together with all necessary appliances and fittings for
use in connection with said utilities and adequate protection thereof and also a right-of-way with
right of ingress and egress thereto, over and across the premises legally described as set forth
and designated "Easement Exhibit" on the attached Exhibit "A", which exhibit is incorporated
herein by this reference.
Owner further grants to the City the following rights in connection with the above easements:
1. The right to grade said easement area for the full width thereof, and the right to
extend the cuts and fills for such grading into and on said land along the outside of said
easement area, to such extent as the City may find reasonably necessary.
2. The right from time to time to trim, cut down and clear away all trees and brush
on said easement area and on either side of said easement area which now or hereafter in the
opinion of the City may be a hazard to any of the above utilities, or may interfere with the
exercise of the City's rights hereunder in any manner.
3. The City shall indemnify the Owner against any loss and damage which shall be
caused by the negligent exercise of any said ingress or egress, construction, use or
maintenance rights by the City or its agents or employees in the course of their employment.
4. The Owner reserves a right to use said easement area for purposes which will
not interfere with the City's full enjoyment of its rights hereby granted; provided that the Owner
shall not erect or construct any building, fence or other structures; plant any trees, drill or
operate any well; construct any obstructions on said easement area; or substantially add to the
ground cover of said easement area.
The Owner hereby covenants with the City that it is lawfully seized and possessed of the real
estate described above, and that it has good and lawful right to convey it or any part thereof,
Nothing in this Agreement shall be construed to impose a requirement on the City to install the
original public improvements at issue in this easement. Nor shall the Owner be deemed acting
as the City's agent during the original construction and installation of said improvements. The
parties agree that the obligation to install the public improvements herein shall be in accordance
with City specifications and the obligation shall remain on the Owner until completion.
Owner further agrees that its engineer shall promptly, upon approval of this Agreement, revise
the mylar drawing of BDI, Iowa City, Iowa, which is on file in the City Engineer's Office to show
the new drainage and utility easement and remove the original drainage and utility easement
released by the City in conjunction with the execution of this Agreement.
Signed this 6th day of January ,2004.
CITY OF IOWA CITY, IOWA
v ~E~mest W. Lehma~ ~l~yo~' Maria"rTK. Karr, City Clerk
Apprgved by
City At{'ot~n~y'sfOffice
City' s Acknowledgement
STATE OF IOWA )
) SS:
JOHNSON COUNTY )
On this ~ ' day of ~"At'~l~.u ,2004, before me, the undersigned, a Notary
Public in and for the State of Iowa, per~nally appeared Ernest W. Lehman and Marian K. Karr,
to me personally known, and who, being by me duly sworn, did say that they are the Mayor and
City Clerk, respectively, of the City of Iowa City, Iowa; that the seal affixed to the foregoing
instrument is the corporate seal of the corporation, and that the instrument was signed and sealed
on behalf of the corporation, by authority of its City Council; and that Ernest W. Lehman and
Marian K. Kart acknowledged the execution of the instrument to be their voluntary act and deed
and the voluntary act and deed of said municipal corporation, by it and them voluntarily executed.
! Commission Number 1597911
I'.~:1 My ~ommission Expires
I-1i~r'1 ~.1~!6~ J Notary Public in and for the State of Iowa
UNITED NATURAL FOODS, INC.
EXHIBIT
By:
STATE OF IOWA )
)SS;
JOHNSON COUNTY )
On this i~'~ day of ~J ~u~v~oc~r' ,2003, before me, a Notary Public in and for the State of
Iowa, personally appeared "TI?~ ~. ~E~ and ~ "'
to me pemonally known, who, being by me duly sworn, did say that they are th;
~+~3q and , res~ctively, of UNITED NATU~L FOODS, INC.,
the ~oration ~xecuting th~within and foregoing instrument; that said inst~ment was signed on
~ehalf of said ~oration by authori~ of its Board of Directom; and that the said
~ ~ and ~- -- , as su~ offi~m a~nowledged
e execution of sa~d instrument to be the volunta~ a~ and deed of sa d ~oration, by it and by
them voluntarily executed.
~r. ~N ~. ~0~
~i~!~_/~ ~_ d ~ No~w Public in and for th~ St~ of Iowa
3
I jsbaile I P:~Pr°jects~lO3201-P~Bwg%ESMf-NEW2DWG I DATE: 09/02/2003 I Time: 15:12 I
EXHIBI "8"
EASEMENT EXHIBIT
UTlUTY AND DRAINAGE EASEMENT
LOT 8, BDI FIFTH ADDITION
IOWA Gl'Iht, JOHNSON GOUt, IOWA
HEINZ ROAD
ORIGINAL WESTERLY --~
LINE OF LOT 8 ~ .............
PARCEL No. 99041
S 8,3'07'16" E
38.13' N 28~)6'12" E
...... ...... LOT 7
PARCEL No. 99042. / N 0'03'29" E
/
17.57'
EXISTING UTILITY AND-~ OF BEGINNING S 5'00'51" E
DRAINAGE EASEMENT 20.53'
UTILITY AND DRAINAGE EXISTING STORM WATER
EASEMENT TO BE RELEASED --~ MANAGEMENT EASEMENT -/ ~
LOT 8 N 88'45'24"
LOT 9 25.00'
NOTES:
ALL DISTANCE AND
BEARINGS ARE OF
RECORD. NO FIELD
SURVEY WAS PERFORMED /
BDI FIFTH ADDITION TO /
IOWA CITY. IOWA IS /
RECORDED IN PLAT BOOK 29. O
STORM
WATER
PAGE 74 AT TI-IE JOHNSON ~ \
COUNTY RECORDER'S OFFICE ~.~ /// MANAGEMENT
DETENTION POND
~ ~ / EASEMENT
¢::::> \ /
STORM WATER MANAGEMENT i
DETEN~ON POND EASEMENT i
LOT 11
t hereby certify that this land surveying document was
~ prepared and the related survey work was performed by
~...t'~, ~AND ,~,-"~ me or under my direct personal supervision and that I
Io.-' ..... -'~o%~--~ am o duly licensed Land Surve~r under the lows of the
BAILEY ~ ~ethon Beiley /dete ¢
O 50 100 200 12531 ~[icense No. 12551
~imm ~ , ~/ My license renewal dote Is December 51, 2004
SCA~ IN FEET ~'... ..... .' / Sheet covered by this certificoUon:
~ ~'~" ' ~ 1 of 2 and 2 of 2
~ r ~SEMENT EXHIBIT PROJECT NO.
,ow. c,w, o..so. cou.w.
DA~ 9/2/03 SCALE AS SHO~ SHEET NO.
~ ~ ~ ~ I~ ~, R ~ ~ M~ ~ ~.A~ ~SB FIELD SOaK N/A
1 of 2
h ttp://www,shive-h~ttery, com APPRO~D JSB RE~SION
EASEMENT EXHIBIT
UTlUTY AND DRNNAGE EASEMENT
LOT 8, BDI FIFTH ADDITION
IOWA GITY, JOHNSON GOUNTY, IOWA
DESCRIPTION
Thor port Lot 8. B.D.I. Fifth Addition to Iowo City, Iowo (Final Plat
recorded in Plat Book 29, Poge 74 ot the Johnson County Eecorder's
Office) described as follows:
Commencing as a point of reference at the Southwest corner of said
Lot 8;
thence North 0'03'29" East 590.74 feet along the West line of said
Lot 8 (essumed beering for this description only) to e point of
intersection with a Southerly line of said Utility end Drainage Easement
extended Eosterly;
thence continuing North 0'03'29" Eest 17.57 feet along said West line
to o point of intersection with the Southerly line of Porcel No. 99041;
thence South 85'07'16" East 38.1;3 feet olong seid Southerly line to
the Southeost corner of said Porcel No. 99041;
thence North 28'06'12" East 1.93 feet olong the Eosterly line of said
Porcel No. 99041;
thence South 81'56'56" Eost 251.12 feet to e point of intersection
with o Westerly line of on existing Storm Weter Menogement Eesement;
thence South 5'00'51" Eost 20.53 feet olong seid Westerly line;
thence North 81'56'56" West 292.10 feet to the point of beginning.
HATTERY EASEMENT EXHIBIT PROJECT
LOT 8. BDI 5TH ADDITION
\ IOWA CITY, JOHNSON COUNTY, IOWA
DATE 9/2/03 SCALE AS SHOWN SHEET NO.
~ ~ IA ~ I~ City, IA , D~ ~ IA DRAWN JBB FIELD BOOK
Mo ,L, 1 of 2
http://www.shive-hot ter¥.com APPROVED JSB RE'vISION
Prepared by: Marian K. Karr, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5043
RESOLUTION NO. 04-3
RESOLUTION TO ISSUE DANCING PERMIT
BE IT RESOLVED BY THE CITY COUNCIL OF IOWA CITY, IOWA, that a Dancing Permit as
provided by law is hereby granted to the following named person and at the following described
locations upon his/her filing an application, having endorsed thereon the certificates of the proper
city officials as to having complied with all regulations and ordinances, and having a valid beer,
liquor, or wine license/permit, to wit:
Los Portales Mexican Restaurant 1402 S. Gilbert Street
Passed and approved this 6th day of January ,20 04
ATTEST: '-~IA~ ;,/¢~. ';/t'~,~.~/ t~./~c,/'O~.~
CITY ~ERK ' Ci~ At~or~e~'s/O~
It was moved by Champion and seconded by 0'Donnel l the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
X Wilburn
01-06-04
Prepared by: John Yapp, Assoc. Planner 410 E. Washington St., Iowa City, IA 52240 (319) 356-5247 (SUB02-00026)
RESOLUTION NO. 04-4
RESOLUTION APPROVING THE EXTRATERRITORIAL FINAL PLAT OF KENNEDY
SUBIDVlSION, JOHNSON COUNTY, IOWA.
WHEREAS, the owner, Tom and Karen Williams, filed with the City Clerk the final plat of Kennedy
Subdivision, Johnson County, Iowa; and
WHEREAS, said subdivision is located on the following-described real estate in Johnson County,
Iowa, to wit:
Beginning at the Northeast Corner of section 32, Township 79 North, Range 6 West of the
Fifth Principal Meridian, Johnson County, Iowa; Thence S00°55'35"W, along the East Line of the
Northeast Quarter of the said Section 32, a distance of 662.67 feet to the Southeast Corner of the
North Half of the North Half of said Northeast Quarter; Thence S89°57'47"W, along the North Line
of said North Half of the North Half of the Northeast quarter, 2651.82 feet to the Southwest Corner
of said North Half of the North Half of the Northeast Quarter; Thence N00°46'33"E, along the
West Line of said Northeast Quarter, 656.34 feet to the North Quarter Corner of said Section 32;
Thence N89°49'37"E, along the North Line of said Northeaster Quarter, 2653.66 feet to said Point
of Beginning, containing 40.16 acres, and is subject to easements and restrictions of record.
WHEREAS, the Department of Planning and Community Development and the Public Works
Department examined the proposed final plat and subdivision, and recommended approval; and
WHEREAS, the Planning and Zoning Commission examined the final plat and subdivision and
recommended that said final plat and subdivision be accepted and approved; and
WHEREAS, a conditional dedication has been made to the public, and the subdivision has been
made with the free consent and in accordance with the desires of the owners and proprietors; and
WHEREAS, said final plat and subdivision are found to conform with Chapter 354, Code of Iowa
(2003) and all other state and local requirements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA, THAT:
1. The said final plat and subdivision located on the above-described real estate be and the
same are hereby approved.
2. The City accepts the conditional dedication of the streets, easements as provided by
agreement and by law.
3. The Mayor and City Clerk of the City of Iowa City, Iowa, are hereby authorized and
directed, upon approval by the City Attorney, to execute alt legal documents relating to
said subdivision, and to certify a copy of this resolution, which shall be affixed to the final
plat after passage and approval by law. The City Clerk shall certify and send plat and
supporting documents to the office of Planning and Zoning of Johnson County, Iowa. All
recording expense is the responsibility of the owner/subdivider.
Resolution No. 04-4
Page 2
Passed and approved this 6th day of January
MAYOR
ATTEST: ~ ~. ~ Appr~,9~l~
cI'rY~LERK City ~torne~;'s ~ffice
It was moved by ChamPion and seconded by 0' Donne] ] the Resolution be
adopted, and upon roll carl there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
X Wilburn
STAFF REPORT
To: Planning & Zoning Commission Prepared by: John Yapp
Item: SUB02-00026 Kennedy Subdivision Date: January 16, 2003
GENERAL INFORMATION:
Applicant: Tom and Karen Williams
4146 Dane Road SE
Iowa City, IA 52240
Applicant's Engineer: MMS Consultants
1917 S. Gilbert Street
Iowa City, IA 52240
Phone: 351-8282
Applicant's Attorney: Michael Kennedy
920 South Dubuque Street
Iowa City, IA 52240
Requested Action: Final plat approval
Purpose: To create a four-lot residential subdivision
Location: South west corner of Dane Road and
Osage Street, SW, in Fringe Area C
Size: Approximately 40.16 acres
Existing Land Use and Zoning: Residential and Agricultural; County RS5
and A1
Surrounding Land Use and Zoning: North: Residential; County RS
South: Agricultural; CountyA1
East: Agricultural; County A1
West: Agricultural; County A1
Comprehensive Plan: Fringe Area C
File Date: December 3, 2003
45 Day Limitation Period: January 17, 2004
60 Day Limitation Period: February 1, 2004
2
BACKGROUND INFORMATION:
The applicants, Tom and Karen Williams, are requesting a final plat of Kennedy Subdivision, a
40.16 acre, four-lot residential subdivision located at the south west corner of Dane Road and
Osage Street, SW. The property currently contains one single family residence; the remainder is
pasture. The preliminary plat, which was approved in November, 2002, was submitted by Mark
Kennedy - Mr. Kennedy has now sold the property to the Williams' who are requesting final plat
approval.
ANALYSIS:
This plat would create three additional building lots clustered on higher ground near Dane Road,
all to be accessed off of a new private street, Justin Court. This property is located outside the
City's growth boundary, but within Fringe Area C of the City's two-mile extraterritorial review area.
The proposed final plat conforms to the preliminary plat approved in November, 2002.
Fringe Area Agreement
The development policies for Fringe Area C indicate that for property outside of the growth area,
rezonings to RS5 (one dwelling unit per five acres of lot area) will be considered on a case-by-
case basis provided that at least 80% of the lot area is set aside for open space or agricultural
purposes. When this property was rezoned a concept plan was submitted that identified the area
to be set aside for open space. The final plat also complies with this open space requirement.
Subdivision regulations
The proposed plat is in conformance with development standards in the fringe area. City rural
design standards are being following with this plat. Justin Court is proposed to have a chip-seal
surface, as is required in the rural design standards.
Stormwater management:
Because this property lies within the Old Man's Creek watershed, stormwater management is not
required.
STAFF RECOMMENDATION:
Staff recommends that SUB02-00026 a final plat of Kennedy Subdivision, an approximate 40.16
acre, four-lot residential subdivision located at the south west corner of Dane Road and Osage
Street SW be approved, subject to approval of construction plans and legal papers prior to
Council consideration.
Approved by:
F~obert Miklo, Senior Planner,
Department of Planning and Community Development
ATTACHMENTS:
1. Location map
2. Final plat
\\citynt\jyapp$\subdivisions\SUB02-00026 kennedy final plat.doc
ID-RS
SITE LOCATION: 3762 Osage St. SW 52240 SUB02-00026
FINAL PLAT
KENNEDY SUBDIVISION
JOHNSON COUNTY. IOWA
Defeated 1/6/04
Prepared by: Steve Long, Associate Planner, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5248
RESOLUTION NO.
A RESOLUTION TO AMEND THE FY04 ANNUAL ACTION PLAN, THAT IS A PART OF
IOWA CITY'S 200i-2006 CONSOLIDATED PLAN (CITY STEPS), AS AMENDED, TO
ALLOW PRAIRIE GARDEN IHA LP TO USE FY04 CITY HOME FUNDS TO ACQUIRE
9i2-914 2ND AVENUE, IOWA CITY, IOWA.
WHEREAS, the U.S. Department of Housing and Urban Development (HUD) requires the
City of Iowa City, Iowa, to prepare and submit an Annual Action Plan as part of the City's
Consolidated Plan (CITY STEPS) to plan for the use of federal funds to assist lower
income residents with housing, jobs and services; and
WHEREAS, the Iowa City Housing and Community Development Commission made a
recommendation to amend the FY04 Annual Action Plan at their meeting on November
20, 2003, to use FY04 City HOME funds to accommodate a request from Prairie Garden
IHA LP to acquire property at 912-14 2nd Avenue, Iowa City, Iowa; and
WHEREAS, the original approved FY04 proposal was for Whispering Garden IHA LP to
acquire land for the construction of five single-family or duplex rental units for large
families; and
WHEREAS, this is considered a substantial change according to the CITY STEPS Citizen
Participation Plan and requires City Council approval; and
WHEREAS, the City has disseminated information, received public input and held a public
hearing on the Amended FY04 Annual Action Plan; and
WHEREAS, adoption of the Amended FY04 Annual Action Plan is required by the U.S.
Department of Housing and Urban Development; and
WHEREAS, the City Council finds that the public interest will be served by the adoption of
the Amended FY04 Annual Action Plan and authorizes its submission to the U.S.
Department of Housing and Urban Development.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
IOWA CITY, IOWA, THAT:
1. The City of Iowa City Amended FY04 Annual Action Plan, to be filed in the office of
the City Clerk, be and the same is hereby approved and adopted.
2. The City Manager of Iowa City is hereby authorized and directed to submit all
applicable documentation for the City of Iowa City Amended FY04 Annual Action
Plan to the U.S. Department of Housing and Urban Development, and is further
authorized and directed to provide all the necessary certifications required by the
U.S. Department of Housing and Urban Development in connection with said Plan.
Defeated 1/6/04
3. The City Manager is hereby designated as the Chief Executive Officer and
authorized to act on behalf of the City of iowa City in connection with the City of
Iowa City's Consolidated Plan (a.k.a. CITY STEPS).
Passed and approved this day of ,2003.
MAYOR
Approved by
ATTEST: ~
CITY CLERK City Attorney's Office
AYES: NAYS: ABSENT: ABSTAT N:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
Wilburn X
Prepared by: Mitchel T. Behr, Asst. City Atty., 410 E. Washington St., Iowa City, IA 52240 (319) 356-5030
RESOLUTION NO. 04-5
RESOLUTION AUTHORIZING CONVEYANCE OF A THREE HUNDRED
TWENTY THREE FOOT LONG PORTION OF THE TVVENTY FOOT WIDE
ALLEY LOCATED BETWEEN KIRKVVOOD AVENUE AND DIANA STREET IN
BLOCK 6, LUCAS ADDITION, TO ADJACENT PROPERTY OWNERS.
WHEREAS, On January 6, 2004, the City Council is vacating a 323' long portion of the 20' wide
alley located between Kirkwood Avenue and Diana Street in Block 6 Lucas Addition;
WHEREAS, owners of the adjacent properties on both sides of this portion of the alley have been
given the opportunity to make offers to purchase the half of the alley adjacent to their properties;
WHEREAS, MVL Properties LLC (Michael and Vicki Lensing) have offered to purchase the 3,800
square foot portion of the alley adjacent to their property at 605 Kirkwood Avenue, John Roffman
has offered to purchase the 1,340 square foot portion of the alley adjacent to the southern 67 feet
of his property at 1018 Diana Street, and Cortland Berwald has offered to purchase the 1,300
square foot portion of the alley adjacent to his property at 1035 Diana Street, all for a total of
$12,8000, and all other adjacent property owners have indicated they do not wish to purchase any
of said alley;
WHEREAS, the City does not need the vacated right-of-way to provide access to property in the
area, utility easement should be retained to protect utilities currently located in the alley, and the
inclusion of a curb along the east-west graveled alley to prevent vehicular access from
commercial property to Diana Street is in the public interest;
WHEREAS, following public hearing on the proposed conveyance, the disposition of the subject
property as set forth above, for a total of $12,800, subject to a utility easement and the inclusion of
a curb along the east-west graveled alley to prevent vehicular access, from commercial property to
Diana Street, is in the public interest.
NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF IOWA CITY,
IOWA, that:
1. The Mayor and City Clerk are hereby authorized and directed to execute written contracts,
deeds and all other documentation in a form approved by the City Attorney, to complete the
transactions provided for and as set forth above.
2. The City Attorney is authorized and directed to record all the necessary documentation to
transfer title of said property to the purchasers at their expense.
Passed and approved this 6th _day of J~a,m~ry ,200~.,,
Approved By
City Attorney's Office CITY CLERK
Resolution No. 04-5
Page 2
It was moved by Champ~ on and seconded by 0' Donne11 the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Flliott
× Lehman
X O'Donnell
X Vanderhoef
X Wilburn
City of Iowa City
MEMORANDUM
Date: December 19, 2003
To: City Council
From: Mitchel T. Behr, Assistant City Attorney ~
Re: Disposition of alley located between Kirkwood Avenue and Diana Street
As "trustee" of public property, the City Council must dispose of such property in good
faith, upon adequate consideration, and upon reasonable and lawful terms. Generally, the
principle requiring "adequate consideration" has been recognized to mean that a
municipality must obtain fair market value for the property to be conveyed, assuming the
transaction does not entail other public benefit. Determining "adequate consideration" or
fair market value for parcels of public property, particularly former right-of-way property,
can be difficult. The City Council considers the specific facts of each situation when
determining the appropriate payment for conveyance of such property. In past
conveyances, the amount of consideration has been based on the assessed value of the
neighboring property. When available, the appraised value of the subject property or
neighboring property can also serve as a basis for the determination of the appropriate
amount of consideration. Factors such as the existence of easements which limit the
buildable area of the property, the imposition of conditions which limit the use of the
property, or a public benefit from the disposition, may support a lower amount of
consideration.
Council is considering passage and adoption of an ordinance vacating the above
referenced alley. Adjacent property owners MVL Properties LLC (Michael and Vicki
Lensing), John O. Roffman and Cortland Berwald have offered to purchase the alley
property for a total of $12,800. The other adjacent property owners, Peter Wezeman and
Evan C. Evans, have indicated they do not wish to purchase any of the alley. Staff
recommends that the conveyance be subject to a utility easement and the inclusion of a
curb along the east-west graveled alley to prevent vehicular access from commercial
property to Diana Street. This portion of alley has recently been appraised at
approximately $13,500 to $14,500. In light of the cost to the property owners and the
public benefit of the inclusion of a curb along the east-west graveled alley, which was not
considered in the appraisal, Staff supports the property owners' $12,800 offer as adequate
consideration. A map and diagram of the alley and boundaries of the adjacent properties is
attached hereto for your reference.
cc: Steve Atkins, City Manager
Marian Karr, City Clerk
Eleanor Dilkes, City Attorney
Rick Fosse, Director of Public Works
Karin Franklin, Director of Planning and Community Development
Bob Miklo, Senior Planner, Dept. of Planning and Community Development
Michael & Vicki Lensing, 605 Kirkwood Ave, Iowa City, IA
Peter Wezeman, 1016 Diana St, Iowa City, IA
Evan C. Evans, 424 Highland Ct, Iowa City, IA
John Roffman, 1314 Burry Drive, Iowa City, IA
Cortland T. Berwald, 1035 Diana St, Iowa City, IA
CITY OF i~A CITY'
WALNUT ST
KIRKWOOD AVE
<~
MVL I
Rof fm~n
~Berwald
(Evans)
PLUM
OROVE
SITE LOCATION: Alley south of Kirkwood Ave. & west of Diana St.
Prepared by: Shelley McCaffedy, Assoc. PLanner 410 E. Washington St., Iowa City, IA 52240 (319) 356-5243
RESOLUTION NO..
RESOLUTION AMENDING THE BY-LAWS OF THE HISTORIC PRESERVATION COMMISSION
WHEREAS, Resolution No. 83-371 adopted by-laws governing the meetings, membership, officers,
and conduct of the Iowa City Historic Preservation Commission; and
WHEREAS, the Commission and City Council wish to amend the Commission's by-laws to provide
for one representative from each historic district, which is consistent with State code; and
WHEREAS, the Commission and City Council wish to amend the Commission's by-laws to establish
the expiration date for all terms as March 29; and
WHEREAS, the Commission and City Council wish to amend the Commission's by-laws regarding
ex parte contacts between property owners and staff, subcommittees or members of the Historic
Preservation Commission; and
WHEREAS, the Commission and City Council wish to amend the Commission's by-laws to provide
for the establishment of a design review subcommittee to review applications for certificates of
appropriateness and make recommendations to a quorum of Historic Preservation Commission at its
regularly scheduled meetings; and
WHEREAS, the Iowa City Historic Preservation Commission has approved acceptance of the
proposed by-law amendments.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY,
IOWA, THAT: the by-laws of the Iowa City Historic Preservation Commission, as amended and as
attached hereto, are approved as to form and content, and are hereby adopted.
Passed and approved this day of ,20
MAYOR
Approved by
ATTEST:ciTY CLERK Ci(y ,~,tt~rney'g Office
It was moved by and seconded by the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
Bailey
Champion
Elliot
Lehman
O'Donnell
Vanderhoef
Wilburn
ppdad r~ n~r es\cit yplat .d cc
BY-LAWS
IOWA CITY HISTORIC PRESERVATION COMMISSION
ARTICLE !.
MEETINGS
Section 1. Regular Meetinqs. Regular meetings of this Commission shall be held once each
month. In addition, a date and time shall be reserved for a second meeting each month for the
purpose of reviewing Certificate of Appropriateness applications. If no applications are filed for
review at the second meeting, the meeting need not occur.
Section 2. Special Meetinqs. Special meetings of the members may be called by the
Chairperson and shall be called by the Chairperson's request for members of the Commission.
Section 3. Place of Meetinqs. Regular meetings shall be in the Iowa City Public Library, Civic
Center or other appropriate meeting place in Iowa City, Iowa. Should these places be
unavailable, another meeting place shall be selected.
Section 4. Notice of Meeting. Notice and agenda for all regular meetings shall be distributed to
all members of the Commission and the press. Special meetings may be called upon notice to all
members of the media at least 24 hours before a special meeting is held. All provisions of the
State Open Meetings Law shall be followed.
Section 5. Quorum. A majority of the members of the Commission shall constitute a quorum at
any meeting and a majority of votes cast at any meeting at which a quorum is present shall be
decisive of any motion or election.
Section 6. Proxies. There shall be no vote by proxy.
Section 7. Public Discussion. Time shall be made available during all regular meetings for open
public discussion.
ARTICLE I1.
MEMBERSHIP
Section 1. Membership. The Historic Preservation Commission shall consist of .................
one representative from each historic district and four members selected at-largc; term cf
, ,mc.mbcrchip. The Chairperson and Vice-Chairperson will be elected annually by the Commission
members. All members shall be qualified electors of the City of Iowa City, Iowa, and shall serve
as members without compensation, but shall be entitled to the necessary expenses, including
travel expenses, incurred in the discharge of their duties.
Section 2. Nomination. The City Council shall appoint members to the Historic Preservation
Commission as vacancies occur. If a position/appointment becomes vacant by reason of
resignation or otherwise and results in an unexpired term, the Council may choose to fill the
unexpired term in such a manner that the appointee shall continue in the position not only through
2
the unexpired term but also through a subsequent regular term.
Section 3. Terms. ~ ~-'-"- ~- .... ~'~*;"" of * ..... ¢ ...... * ~'"""~' ........ Members shall be
appointed for three-year terms. All terms expire March 29.
Section 4. Absences. Three consecutive unexplained absences of a Commission member may
result in a recommendation to the Mayor from the Commission to discharge such member and
appoint a new Commission member.
Section 5. Orientation for New Members. Prior to the first regular meeting following their
appointment, new members shall be provided with copies of the pertinent portions of the City
Code, Historic Preservation Commission By-laws, and other documents that would be useful to
Commission members in carrying out their duties.
ARTICLE III.
OFFICERS
Section 1. Number. The officers of this Commission shall be a Chairperson and Vice-
Chairperson, each of whom shall be elected by members of the Commission.
Section 2. Election and Term of Office. The officers of this Commission shall be elected
annually.
Section 3. Vacancies. A vacancy in either office shall be filled by Commission members for the
unexpired portion of the term.
Section 4. Chairperson. The Chairperson shall, when present, preside at all meetings of the
members, appoint committees, call special meetings and in general perform all duties of the
Chairperson and such other duties as may be prescribed by members from time to time.
Section 5. Vice-Chairperson. In the absence of the Chairperson or in the event of death, inability
or refusal to act, the Vice-Chairperson shall perform the duties of the Chairperson and when so
acting shall have all the powers of and be subject to all the restrictions upon the Chairperson.
ARTICLE IV.
CONDUCT OF COMMISSION AFFAIRS
Section 1. Aqenda. The Chairperson or a designated representative, together with appropriate
members of the City staff, shall prepare an agenda for all regular Commission meetings.
Agendas are to be sent to Commission members, the City Council and the media at least three
days prior to the regular meetings.
Section 2. Secretary. A secretary, not to be a Commission member, shall be provided for all
regular and special meetings.
Section 3. Minutes. Minutes of all regular and special meetings are to be prepared and
distributed to Commission members and approved by the Commission prior to being sent to City
Council, in the manner prescribed by the Council. Specific recommendations for the Council are
to be set off from the main body of the minutes, and appropriately identified.
Section 4. Policies and Proqrams. Periodically, the Commission shall review the policies and
programs of the City relating to historic preservation, and make such recommendations to the City
Council as are deemed appropriate.
Section 5. Referrals from Council. From time to time letters, requests for information, requests
for recommendations, and other matters are referred to the Commission by the City Council. The
Commission shall initiate the consideration of such items at the next regular meeting following
receipt, and shall notify Council of its disposition.
Section 6. Attendance at Council Meetings. The Commission Chairperson or designated
representative are to be in attendance at all City Council meetings, including informal sessions, at
which matters pertaining to the Commission are to be discussed or when actions concerning the
Commission's responsibilities are to be taken. The Commission's Chairperson is to receive
Council agenda pdor to each Council meeting, and is to be otherwise notified of meetings
involving Commission business.
Section 7. Annual Report. An annual report, detailing the activities of the Commission, shall be
prepared by the Chairperson, approved by the Commission, and submitted to the City Council.
Section 8. Liaison with Planninq and Zoninq Commission. At such time as the Commission
undertakes any business which is deemed pertinent to the activities of the Planning and Zoning
Commission, the Planning and Zoning Commission shall be so notified, and may send a
representative to the next meeting of the Historic Preservation Commission to act as a liaison
between the two Commissions.
Section 9. Ex parte Contacts. A member who has had a discussion of an agenda item outside of
a public meeting with an interested party shall reveal the contact prior to staff report, naming the
other party and shadng specifics of the contact, copies if in writing or a synopsis if verbal
Provided, however, that in ruling upon applications for certificates of appropriateness, the
Commission is acting in a quasi-judicial capacity. In these maters, ex parte communications item
outside of a public meeting between members of the Commission and parties or persons with a
personal interest in the application should not occur, in accordance with Rodine v. Zoninq Board
of Adiustment of Polk County, 434 N.W. 2d 124 (1988).
Section 10. Desiqn Review Subcommittee. The Commission shall have the authority to establish
a historic preservation design review subcommittee to review and make recommendations to the
Commission regarding applications for certificates of appropriateness. Said subcommittee shall
consist of three members of the Commission, appointed annually by the Commission, to serve
one year terms.
ARTICLE V.
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed and new by-laws may be
adopted by the members at any regular meeting or at any special meeting called for that purpose.
Prepared by: Marcia Klingaman, Neighborhood Se~v., 410 E. Washington St., Iowa City, IA 52240 (319) 356-5237
RESOLUTION NO. 04-6
RESOLUTION APPROVING THE CONTRACT BETWEEN THE CITY OF IOWA CITY AND
THE ARTIST FOR DISPLAY OF A SCULPTURE ON THE IOWA SCULPTOR'S SHOWCASE.
WHEREAS, the City, for the purpose of fostering appreciation of the arts, bringing attention to
its downtown and giving Iowa artists an opportunity to display their work in public, established
the Iowa Sculptor's Showcase on July 10, 2001 by Resolution No. 01-205, and
WHEREAS, the Iowa Sculptor's Showcase, a concrete pad located on the downtown pedestrian
mall northeast of the Weatherdance Fountain, allows the opportunity for Iowa sculptors to
display their work for approximately a year, and
WHEREAS, the Iowa City Public Art Advisory Committee reviewed and approved the proposed
sculpture of a local artist at their November 6, 2003 meeting, and
WHEREAS, a contract has been negotiated with the artist for display of his work on the
showcase for a period of March 1, 2004 to May 1,2005.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA THAT:
1. The Agreement between the City of Iowa City and artist John Coyne for the exhibition of his
sculpture as described in the agreement on the Iowa Sculptor's Showcase for a period of
March 1, 2004 to May 1, 2005 is hereby approved.
2. The Mayor is hereby authorized to execute and the City Clerk to attest said Agreement.
Passed and approved this 6th dayof ,Janua~',y ,20 04
Oeved ,
CITY'"CLERK City Attorney's Office
Neighbor\res\coyne.doc
Resolution No. 04-6
Page 2
It was moved by 0'Donnel 1 and seconded by Champion the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
X Wilburn
CITY OF IOWA CITY
PUBLIC ART PROGRAM
SCULPTOR'S SHOWCASE 2004/2005
AGREEMENT BY AND BETWEEN CITY AND ARTIST
THIS AGREEMENT is made on~ between the City of Iowa City,
hereinafter referred to as the CITY, and John Coyne, hereinafter referred to as the ARTIST.
The CITY'S REPRESENTATIVE shall be the Director of the Department of Planning and
Community Development or his/her designee. The COMMITTEE shall be the Public Art
Advisory Committee.
WHEREAS, the CITY, for the purposes of fostering appreciation of the arts, bringing
attention to its downtown and giving Iowa artists an opportunity to display their work in public,
established the Iowa Sculptor's Showcase, a location on the downtown pedestrian mall that will
provide the venue to exhibit the work of Iowa artists, and
WHEREAS, the CITY, on the recommendation of the COMMITTEE and after public
input, has accepted the proposal by the ARTIST and hereinafter referred to as the ART WORK,
for the sculpture to be placed on the downtown pedestrian mall on the Iowa Sculpture's
Showcase. A copy of said proposal as accepted is attached hereto as Exhibit "A" (hereinafter
"Proposal").
NOW, THEREFORE, in consideration of the mutual promises and undertakings
contained herein, the parties agree as follows:
Article 1. Scope of Services
The CITY will exhibit the ART WORK described below on the Iowa Sculptor's Showcase, a
concrete pad on the downtown pedestrian mall located approximately 50 feet northeast of the
Weatherdance Fountain for an exhibition period beginning no later than March 1, 2004 and
ending no later than May 1, 2005.
The ARTIST has voluntarily submitted the ART WORK described below for display on the Iowa
Sculptor's Showcase.
Article 2. Description of art work
Title: Angel of the Ped Mall
Medium: Cast Aluminum Sculpture (sand molds)
Material: Cast Aluminum
Height: 84"
Width: 32"
Diameter: 24"
Approximate Weight: 150-200 lbs.
Signature (if signed): J Coyne '04
Fair Market (insurance) value: $10,000.00
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Article 3. Consideration
The ARTIST shall receive a $500 honorarium from the CITY. Further consideration between the
parties shall be the mutual benefit each will derive form the public exhibition of the ART WORK
being loaned.
Article 4. Duration of Loan
The ART WORK described by this agreement will not be released from loan from the time it is
delivered to the CITY until the time of removal from the exhibition or the termination of the
exhibition plus a reasonable period of time for removal, except by prior written agreement
between the parties. It is hereby agreed between the parties that the CITY is entitled to
exclusive possession of the ART WORK until the ART WORK has been released from loan.
Unless otherwise notified in writing by the ARTIST, the CITY will surrender the ART WORK only
to the ARTIST. If the CiTY is unable to return the ART WORK to the ARTIST within a
reasonable period following the expiration of the exhibition, and no special arrangements have
been made, then the CITY shall have the right to dispose of the ART WORK in any manner
whatsoever. In the event that ownership changes during the period of the loan, the new owner
is required to establish his legal right by proof satisfactory to the CITY. This agreement is
binding upon and shall inure to the benefit of the parties, heirs, executors, administrators,
representatives, successors and assigns.
Article 5. Installation and Removal
The ARTIST agrees to work with the CITY in planning for and installing the ART WORK prior to
exhibition opening and will promptly remove the ART WORK after the conclusion of the
exhibition. The City reserves the right to remove the ART WORK from the Iowa Sculptor's
Showcase for any reason whatsoever. However, it is expressly understood and agreed that the
acceptance and installation of the subject ART WORK is conditioned upon the feasibility of a
safe and secure installation on the Iowa Sculptor's Showcase. If it is determined by the CITY,
after arrival of the ART WORK or before then, that because of inherent qualities or attributes of
the ART WORK it is not feasible or consistent with the budgeting resources to safely and
securely install the ART WORK on the Iowa Sculptor's Showcase, the CITY shall be under no
obligation to do so. In such case, the ART WORK shall be retrieved from the CITY by the
ARTIST within 10 days of notification by the CITY, but the ARTIST shall nevertheless receive
payment of $500.
Article 6. Transportation and Delivery
Transportation and deliver from the ARTIST to the CITY shall be the responsibility of the
ARTIST. Delivery will be complete when the ARTIST delivers and assists the CITY with the
installation of the ART WORK on the Iowa Sculpture's Showcase. Return to the ARTIST shall
occur at the same location as delivery.
Article 7. Care and Safekeeping
The ART WORK will receive the same degree of care and preservation given to comparable
outdoor, weather-exposed objects owned by the CITY, but CITY will assume no responsibility
for loss or damage due to theft, malicious mischief, acts of God or other causes, unless
specifically covered by insurance, but then only to the limits of such insurance. ARTIST agrees
to indemnify, save and hold harmless CITY from any and all losses, damages, suits, actions,
claims or expenses of every kind arising out of loss or damage, unless specifically covered by
insurance as set forth in Article 10 of this agreement.
Article 8. Repair
In the event that either the CITY or the ARTIST decides that the ART WORK requires repair in
order to preserve public safety or to preserve the ART WORK, the ARTIST shall be given the
first opportunity to make the necessary repairs under CITY supervision and within 30 days of
notice by CITY of the need for repair. If the ARTIST has not effected satisfactory repairs within
30 days after notification that such repairs are required, then the CITY reserves the right to
repair the ART WORK or to remove it to a safe location for storage. Except for the repairs
specified herein, the CITY will not clean, retouch, or alter the ART WORK without consent of
the ARTIST.
Article 9. City Discretion
The CITY has the sore discretion to determine whether, and for how long the ART WORK shall
be exhibited.
Article 10. Insurance and Liability
The CITY will insure the ART WORK against casualty loss at a value specified by the ARTIST,
but the amount specified by the ARTIST must reflect fair market value, and insurance coverage
shall in no instance exceed $10,000 per ART WORK. At the CITY'S option, the CITY may self-
insure the ART WORK, but in no instance shall the CITY'S liability for casualty loss exceed
$10,000 per ART WORK. The ARTIST agrees that in the event of loss or damage, recovery
shall be limited to such amount, if any, determined by the insurer, hereby releasing the CITY
from any further liability for claims arising from the loss or damage, and save and hold harmless
the CITY from any and all losses, damages, suits, actions, or expenses of any kind arising out
of any casualty to said ART WORK.
Article 11. Publicity
The ART WORK may be photographed and otherwise graphically reproduced by the CITY for
noncommercial purposes. It is understood between the parties that ART WORKS displayed in
the exhibition may be photographed by the general public.
Article 12. Interpretation and Conflict of Laws
The agreement cannot be modified expect by written instrument and it shall be interpreted
according to the laws of the State of Iowa.
ARTIST acknowledges that (s)he has full power to make this loan, that (she)he has read the
conditions contained in this agreement, and that (s)he agrees to abide by the terms and
conditions contained herein.
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IN WITNESS HEREOF:
?gne ~t W. Lohman, Mayor
ATTEST
City Clerk
City Attorney's Office
CITY OF IOWA CITY
PUBLIC ART PROGRAM
SCULPTOR'S SHOWCASE 2004/2005
AGREEMENT BY AND BETWEEN CITY AND ARTIST
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THIS AGREEMENT is made on /~etween the City of Iowa City,
hereinafter referred to as the CITY and John Coyne, hereJnafter referred to as the ARTIST.
The CITY'S REPRES~:~,ITATIVE shall be the Director of/' the Department of Planning and
Community Developmer~or his/her designee. The CO~,IMITTEE shall be the Public Art
Advisory Committee. ~
WHEREAS, the ClTY,'~ )r the purposes of fost~tefling appreciation of the arts, bringing
attention to its downtown and .( ~g Iowa artists an opJJortunity to display their work in public,
established the Iowa Sculptor's a location o¢ the downtown pedestrian mall that will
provide the venue to exhibit the add
WHEREAS, the CITY, on of the )MMITTEE and after public
input, has accepted the proposal by the to as the ART WORK,
for the sculpture to be placed on the pedestrian mall on the Iowa Sculpture's
Showcase. A copy of said proposal attached hereto as Exhibit "A" (hereinafter
"Proposal").
NOW, THEREFORE, in the mutual promises and undertakings
contained herein, the parties agree as follows:
Article 1. Scope of Services
The CITY will exhibit the ART WORK ~n the Iowa Sculptor's Showcase, a
concrete pad on the downtown pedestria~ mall located ~roximately 50 feet northeast of the
Weatherdance Fountain for an exhibitio period bec no later than March 1, 2004 and
ending no later than May 1, 2005.
The ARTIST has voluntarily ART below for display on the Iowa
Sculptor's Showcase.
Article 2. Description of art work
Title: Angel of the Ped Mall
Medium: Cast Aluminum Scul (sand molds)
Material: Cast Aluminum
Height: 84"
Width: 32"
Diameter: 24"
Approximate Weight: 150-200 lbs.
Signature (if signed): J Coyne '04
Fair Market (insurance) value: $10,000.00
Article 3. Consideration
The ARTIST shall receive a $500 honorarium from the CITY. Further consideration between the
parties shall be the mutual benefit each will derive form the public exhibition of the ART WORK
being loaned.
Article 4. Duration of Loan
The ART WORK describe'~t, by this agreement will not be released from loan from the time it is
delivered to the CITY untillt~e time of removal from the exhibition or the termination of the
exhibition plus a reasonable"R,eriod of time for removal, except ! prior written agreement
between the parties. It is herelq,y agreed between the parties t the CITY is entitled to
exclusive possession of the ART"~/ORK until the ART WORK been released from loan.
Unless otherwise notified in writing b~ the ARTIST, the CITY will d~ r the ART WORK only
to the ARTIST. If the CITY is unal le to return the ART to the ARTIST within a
reasonable period following of the exhibition, a~ no special arrangements have
been made, then the CITY shall have right to dispose the ART WORK in any manner
whatsoever. In the event that ownership ~nges durinc period of the loan, the new owner
is required to establish his legal right by satisfa, to the CITY. This agreement is
binding upon and shall inure to the the heirs, executors, administrators,
representatives, successors and assigns.
Article 5. Installation and Removal
The ARTIST agrees to work with the CITY in pb and installing the ART WORK prior to
exhibition opening and will promptly remove WORK after the conclusion of the
exhibition. The City reserves the right to WORK from the Iowa Sculptor's
Showcase for any reason whatsoever, it is ' understood and agreed that the
acceptance and installation of the subject WORK conditioned upon the feasibility of a
safe and secure installation on the Iowa If it is determined by the CITY,
after arrival of the ART W~ inherent qualities or attributes of
the ART WORK it is not feasible or with the resources to safely and
securely install the ART WORK on Iowa Scul the CITY shall be under no
obligation to do so. In such case WORK shall retrieved from the CITY by the
ARTIST within 10 days of ,n by the CITY, but 'IST shall nevertheless receive
payment of $500,
Article 6. Transportation an~ ¥
Transportation and from the ARTIST to the CITY shall the responsibility of the
ARTIST. Delivery will complete when the ARTIST delivers the CITY with the
installation of on the Iowa Sculpture's Showcase. the ARTIST shall
occur at the same location as delivery.
Article 7. Care and Safekeeping
The ART WORK will receive the same degree of care and preservation given to comparable
outdoor, weather-exposed objects owned by the CITY, but CITY will assume no responsibility
for loss or damage due to theft, malicious mischief, acts of God or other causes, unless
specifically covered by insurance, but then only to the limits of such insurance. ARTIST agrees
to indemnify, save and hold harmless CITY from any and all losses, damages, suits, actions,
claims or expenses of every kind arising out of loss or damage, unless specifically covered by
insurance as set forth in Article 10 of this agreement.
Article 8. Repair
In the event that either the CITY or the ARTIST decides that the ART WORK requires repair in
order te ~reserve public safety or to preserve the ART WORK,~tie ARTIST shall be given the
first :unity to make the necessary repairs under CITY suCervision and within 30 days of
notice by of the need for repair. If the ARTIST has not satisfactory repairs within
30 days notification that such repairs are required, the the CITY reserves the right to
repair the or to remove it to a safe location Except for the repairs
specified herein ~e CITY will not clean, retouch, or alter WORK without consent of
the ARTIST.
Article 9.
The CITY has the on to determine wheth~ and for how long the ART WORK shall
be exhibited.
Article 10. Insurance and Liability
The CITY will insure the )RK loss at a value specified by the ARTIST,
but the amount specified by the fair market value, and insurance coverage
shall in no instance exceed $10,000 per ,~ At the CITY'S option, the CITY may self-
insure the ART WORK, but in no ;hall the CITY'S liability for casualty loss exceed
$10,000 per ART WORK. The ARTIST that in the event of loss or damage, recovery
shall be limited to such amount, if any, led by the insurer, hereby releasing the CITY
from any further liability for claims arisen loss or damage, and save and hold harmless
the CITY from any and all losses, ~ctions, or expenses of any kind arising out
of any casualty to said ART WORK.
Article 11. Publicity
The ART WORK may be phc raphed and otherwise ,hically reproduced by the CITY for
noncommercial purposes, understood between the that ART WORKS displayed in
the exhibition by the general public.
Article 12. Inter Conflict of Laws
The agreement cann be modified expect by written instrument and it shall be interpreted
according to the State of Iowa.
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ARTIST acknowled/ges that (s)he has full power to make this loan, that (she)he has read the
conditions contained in this agreement, and that (s)he agrees to abide by the terms and
conditions contained herein.
IN WITNESS HEREOF:
ARTIST OWNER
John Coyne Ernest W. L7, Mayor
ATrEST//
~ Mariar)/K. Karr
'~ CityTerk
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~ ^~tomey's Office
SECOND AMENDMENT TO PENINSULA NEIGHBORHOOD
DEVELOPMENT AGREEMENT
This Second nt to the Peninsula Neighborhood ~ment Agreement is hereby
made and executed ~e City of Iowa City (hereinafter "Cit 410 East Washington Street,
Iowa City, Iowa 52240, Peninsula Development Company as Assignee of Terry L.
Stamper Holdings, L.L.C., ereinafter"PDC" and/or 5781 Sheldon Road, Suite C,
Canton, MI 48188. a municipal corporation orgar under the laws of the State of
Iowa. PDC is a Limited ganized he laws of the State of Michigan.
WHEREAS, the City of Iowa Terry L. Stamper ,Idings, L.L.C., (hereinafter ("TLS")
entered into the Peninsula Nei ,rhood Developmen reement, which was recorded at
Book 2986, Page 49, Records County, Iowa and a First Amendment
thereto, which was recorded at Page 7," Records of the Recorder of Johnson
County, Iowa; and
WHEREAS, TLS has assigned all its Peninsula Development Agreement to
PDC; and
WHEREAS, the City has agreed to consent to Assignment subject to approval of the terms
of said consent by the City Attorney; and
WHEREAS, the City, pursuant to the origin~ Neighborhood Development Agreement
with TLS, transferred the Peninsula Nei! Addition and Lots 31, 32, 33, 34, 35,
and Outlot I of the Peninsula Nei! Second to TLS. With the exception of
individual lots transferred by TLS to TLS transfer said property to PDC within
thirty (30) days of final execution of thi.~ reement; and
WHEREAS, the City has prepared Peninsula Plan and to serve as a concept
plan for the development of the Neighborhood. The ninsula Plan shows the layout
of streets, blocks and alleys relationship to public and existing views. The
Guidelines recommend a ran! building types but do not their location or quantity.
The Guidelines and Plan are to provide direction for the ,sign and development of
the Peninsula; and
WHEREAS, this agreemel outlines the terms and conditions, relative rights and
responsibilities of the as owner, and PDC, as developer, for )ment of The
Peninsula Neighborhood ,=reinafter"The Peninsula").
For and in consideratio~ of the mutual promises set forth herein, the partie§, hereby agree as
follows:
A. Amendment. This Second Amendment to the Peninsula Neighborhood Development
Agreement supercedes and replaces all prior agreements between the City and PDC as
assignee of Terry L. Stamper Holdings, L.L.C.
B. Legal Description. The property which comprises the Peninsula Neighborhood is legally
described as follows:
THAT PART OF AUDITOR'S PARCEL NO. IOWA CITY, JOHNSON
COUNTY, IOWA DESCRIBED AS FOLLOWS: COM~ ENCING AS A POINT OF
REFERENCE AT THE SOUTH QUARTER-COF ~IER OF SECTION 4,
TOWNSHIP 79 NORTH, RANGE 6 WEST OF 5th P.M.; THENCE
N1°:~9'04'~A/, 1317.17 FEET ALONG THE EAST LIE OF THE SOUTHWEST
QU,~TER OF SAID SECTION 4; TI- 562.55 FEET ALONG
THE '~OUTH LINE OF GOVERNMENT LOT 5 SECTION 4, TO A
NORTI~EASToERL, Y.CORNER OF SAID AL; ~R'S PARCEL NO. 97099;
THENCL~S89 4439 W, 330.00 FEET; ALONG INE OF SAID
AUDITOR'S. PARCEL NO. 95080; THENCE N01 203.27 FEET ALONG
AN EASTERLY LINE OF SAID AUDITOR'S ;EL NO. 95080, TO THE
POINT OF BE. GINNING; THENCE N01°39'4 778.50 FEET ALONG AN
EA,S~E~,R~,Y,^,L!~I~,,OF SAID AUDITOR'S NO. 95080; THENCE
S76 21'45'~/, 469~.6 FEET ALONG A N~RTI LINE OF SAID AUDITOR'S
PAR~E~L~NvO'
97B99; THENCE N,,5 971.46 FEET ALONG A
NO~T_H,E,R,,LY"~'"LINE \OF SAID ALIDI PARCEL 95080; THENCE
S57 0521 W, 772.80 'F',EET ALONG A HWESTERLY LINE OF SAID
AUDITOR'S PARCEL NO, 95080 TO A OF INTERSECTION WITH THE
EASTERLY BANK OF THE, IOWA AND A WESTERLY LINE OF SAID
AUDITOR'S PARCEL NO." iNCE S17°00'58"W, 601.80 FEET;
THENCE S41°29'18"W, S32°19'39"E, 520.00 FEET;
THENCE S07°44'49"E, THENCE S56°38'56"E, 810.00 FEET;
THENCE N59°50'25"E, 194.38 THENCE N62°35'26"W, 230.00 FEET;
THENCE N12°35'57"W, 470.00 F THENCE N81°48'04"E, 200.00 FEET;
THENCE N08°07'42"W, 309.36 Fi TO A SOUTHWESTERLY CORNER OF
AUDITOR'S PARCEL NO. 97099 ICE N02°30'39"E, 499.39 FEET ALONG
A WESTERLY LINE OF SAID R'S PARCEL NO. 97099; THENCE
N37°48'08"E, 31.58 FEET ORTHWESTERLY LINE OF SAID
AUDITOR'S PARCEL NO. N60°46'24"E,1172.27 FEET;
ALONG A NORTHWESTERL IDiTOR'S PARCEL NO. 97099;
THENCE S89°59'09"E 283. FEET NORTHERLY LINE OF SAID
AUDITOR'S PARCEL N(: 97099 TO THE )IHT OF BEGINNING AND
CONTAINING 82.1 ACR~: SUBJECT TO :NTS AND RESTRICTIONS
OF RECORD.
C. Representations and War of Developer. The De'~eloper makes the following
representations and les:
\
1. The Developer limited liability company duly organi:~d under the laws of the
State of Michi has power to enter into this Agreerr~nt and to perform its
obligations he under, and is not in violation of any provi~,i,ons of its articles of
organization agreement, any other agreement'~,r the laws of the
States of Mi an or Iowa.
2. The Deve has the full power and authority to execute this'Agreement and
this shall constitute the legal, valid and binding obligation of the
,~r ~n accordance with its terms, and the consent of no o~er party is
execution and delivery of this Agreement by the Dev~tO..per or the
consur 'nation ofthe transaction contemplated hereby. ,
3. The making and performance of this Agreement by the Developer aqd the
execution and delivery of the documents to be delivered by the Developer
pursuant hereto, have been duly authorized by all necessary action of the
Developer, and this Agreement and such documents will be valid and binding
obligations of the Developer enforceable in accordance with their terms.
4. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in
,conflict with, or result in a breach of, the terms, conditions or provisions of any
~;ontractual restriction, evidence of indebtedness~ agreement or instrument of
W~atever nature to which the Developer is now alparty or by which it is bound,
no~ they constitute a default under any of the foregoing
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5. The £ per's purchase of the Peninsula Pro~_erty and its other undertakings
pursu; ,this Agreement, are and will be use/d for the purpose of development
of the rty and not for speculation in land .ffolding.
DeveJ~pment of the Peninsula shall be
D.
Zonin.q/OPDH
governed by the Development Housing~Overlay~- (OPDH) and Sensitive Areas
Overlay (OSA) June 29, 2000 by (~)fdinance No. 00-3938; the Conditional
Zoning Agreement, the Regulating,Plan and Peninsula Neighborhood Code,
adopted February 20, Ordinance I~o. 01-3958 and amended May 3, 2001 by
Ordinance No. 01-3966, Mar b~Ordinance No. 03-4063, and June 24, 2003,
by Ordinance No. 03-4087; th~ Plat/of the Peninsula Neighborhood First Addition,
including the Peninsula Nei adopted by Resolution No. 01-155 on
June 12, 2001; the replat of Neighborhood First Addition adopted by
Resolution No. 03-78 on March the Final Plat of the Peninsula Neighborhood
Second Addition adopted by Res<: No. 03-263 on August 19, 2003, and all
subsequent plats of the Peninsula borhood and any subsequent amendments to
the zoning, plans, plats, Code or mutually agreed to by both parties, and
formally adopted by the City. /
E. Development Phasin,q. The Plan includes a phasing plan which
identifies sub-areas of the pro (hE and the order in which these
phases or portions thereof purchased by PDC. These sub-areas
are numbered I through 6 number 1 beir ~rea to be platted and conveyed
to Developer and being the last. Final I~ats for the first phase, known as
Peninsula Neighborhood Addition, and the sec6~d phase, known as Peninsula
Neighborhood have been approved by ~e City. The First Addition and
Lots 31 through 35 of the Second Addition Were conveyed to Developer's
predecessor. The shall submit a final plat for each Phase which must be
approved by City prio conveyance of that Phase. Upon s~mission of a final plat by
Developer, the City ~ initiate the application and process for'the approval of each plat
through the Plannil & Commission and the City Council. Unless otherwise
agreed to by the P platting shall proceed in accord~,nce with the phasing
plan outlined in OPDH/Regulating Plan. The phasing schedule 'and configuration of
the phases amended or altered with the mutual written consent of both parties,
as executed the City Manager or his/her designee on behalf of th~,~ity and by the
President of F ; on behalf of the Developer. '.
F. Cc Conveyance. Prior to the conveyance of any further Phases or
portion thereof, the Developer shall:
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1. Submit a final plat for the phase and obtain final plat approval from the City; and
2. Complete the sale of or commence construction on at least 50% of the units in
each preceding Phase; and
3. Install and obtain the City's acceptance of the public improvements
and
install
any private open space amenities, or, in the alternative, provide escrow funds for
110% of the cost thereof, in each preceding Phase; ~nd
4. Compl with the OPDH/Regulating Plan in each Phase; and
5. Submit the City evidence satisfactory to the that the Developer has the
financial )ility to install the necessary pul improvements and private
amenities ,nformance with the Construction 'lans and Final Plat of the phase
or portion ~of to be conveyed.
Upon approval of plat for each Phase and the Developer's satisfaction of
the conditions I conveyance, the City transfer the ownership of the
Phase (or portion thereof the parties mutually to PDC in accordance with the
provisions of Agreement.
G. Deadlines for Conveyance. ng on ~urchase must occur on or before:
1. January 1, 2005, for the Peninsula Neighborhood Second
Addition; and
2. Within three (3) years of immediately preceding phase for the
Third, Fourth, Fifth, and Sixth :ions of the Peninsula Neighborhood (for
example, closing on the Fourth must occur within three (3) years of
closing on the Third Addition).
Failure of the Developer to meet the cot conveyance enumerated in
Section F hereof within the deadlines f nce set forth at Section G hereof shall
be a default under this Agreement, sub the Developer to the provisions of
Section Q hereof.
Transfer of Real Estate.
1. Purchase Price. The 82.1 , will to PDC for a minimum sum
of $1,300,000 plus interest corn annually on the principal
remaining after unit )ayments are deducted $1,300,000 after each
closing, said interest runr from January 31, 2002. A,s the total number of units
established for the prop~) is 410, this yields a base p~ce of $3171.00 per unit,
not including interest as/, '.ulated above. At closing on~ortions of the property
beyond the end of Pha/s~ One, the price shall consist of Re per-unit base price
multiplied by the total ~umber of final site-plan approved un~s plus 6.5% interest
on the outstanding p/'incipal balance remaining after closir~ of the preceding
Phase or portion thereof. Therefore, the parties acknowledg~ that successive
phases may result/in higher per unit land prices as necessary to meet the
minimum cost plus~interest as outlined above. Upon transfer/clo~ing of the final
Phase, a final reconciliation shall be performed to establish the pN~ce necessary
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to meet the minimum cost of $1,300,000 plus 6.5% interest compounded
annually from January 31, 2002. Payment for the conveyance of property and
interest shall be in immediately available funds.
2. Possession and Closing. Subject to ~loper's satisfaction of all conditions
precedent to closing, the parties shall on final platted phases within forty-
(45) days of final plat approval, and of the real estate shall be
to Developer on the date of ck with any adjustments for interest
lens to be made as of the date of ~nsfer of possession. Closings shall
City Hall unless the parties ~, agree on another location.
3. Title. The City, at its shall provide an Abstract for the
property be conveyed continu~ through the date of final platting, for
' the Developer. The shall show good and merchantable
title in the m conformity this reement, Iowa Law and the Title
Standards
4. Deed. Upon of the p~ hase price, City shall convey the real estate to
Developer by warra~ free and clear of all liens, restrictions and
encumbrances Ind other ordinances, covenants and easements
of record. ~g the deed shall be borne by Developer.
5. Real Estate Taxes. As ti- ity owns all the parcels, there are no taxes to be
prorated.
6. Special Assessments. all special assessments which are a lien on
the real estate as of the g.
7. Transfer tax. The ~lated are exempt from Iowa real estate
~ransfer tax.
8. Condition DeveI¢ that it has made a satisfactory
inspection of the and is the real estate in its present
condition. The D~l~er acknowledges rees that the City has not made
and does not hereby make any represer .warranties or covenants of any
kind or charact¢ whatever, expressed or impl ~:t with respect to the quality,
integrity, nature/of, use or condition of any of ti' e/ arcels or any improvements,
fixtures and p~'sonal property located on or used ~,connection with any of the
parcels. As 9/the ~the closing, the .... Developer shall be ;~; c us ve y deemed to have
accepted th~/]and on an "as-~s bas~s.
I. Infrastructure. /
1. Installatiq/n by Developer. PDC shall extend, constru~b,t and/or install all
necessagy infrastructure improvements for each phase w~hin the Peninsula
Neighborhood, including:
All streets, sidewalks and alleys within the Peninsula Neighborhood;
All utilities;
City water and sanitary sewer lines;
A stormwater management system.
The installation or construction of all infrastructure shall be in accordance with
City design standards and improvement requirements.
The Peninsula Design Guidelines shall supersede the "iowa City Municipal
Design Standards" for the infrastructure where the two conflict and are
irreconcilable.
2. Time Period for Installation. After on any portion of the Peninsula
=roperty and upon issuance of all and approvals as required,
will diligently undertake to install ~nd construct the infrastructure and their
~urtenances. The ,n of the infrastructure will be substantially
18 months after closing ol the relevant phase or portion thereof. If
such construction is nc substantially completed within 18 months
3g, subject to the property Ihts (including curative rights, if any) of any
secured der to PDC, which has anced acquisition of all or any portion of the
;Iopment and/or hon ~ construction, City shall, after providing PDC
with a notice to re, have the right to take possession of the
property and infrastructure and PDC shall, upon demand by City,
convey said by warrar to City, free and clear of all liens except
those of any acquisition of all or any portion of the
property, home construction. PDC shall have no right to
any equity in said City shall retain all sums paid by PDC for said
property. City may enfor DC's obligation to convey said property to City in an
action for specific ~ce. The prevailing party in an action for specific
performance shall pay th party's reasonable attorney's fees and costs.
City's right to take nd title as set forth herein is non-exclusive and
City shall have all other available by law, including, but not limited to,
termination ' of damages.
J. Environmental Consideratior Portions of~he 82.1 acre property contain wooded
~opes, as outlir/ and depicted o~,~he diagram attached hereto as Exhibit
"A". These features shall b~b subject to the provis~ns of the Sensitive Areas Ordinance
and shall be preserved to ~{ extent possible. The~OPDH/Regulating Plan provides for
the protection of areas t~at are identified for preservation during construction of the
neighborhood and such ~re~ s shall be protected in p~rpetuity through an appropriate
conservation easement,~ndh ~r dedication cf the affected~and to a land conservancy or
the City. ~ ~
The lower-Peninsula a City owned property located adjacent to the Peninsula
development site, c, ~ins City water wells. The Iower-PeninsL~ is also being designed
as a passive park, d the parties acknowledge that it is ar~cipated the area will
undergo :or~ /ion to become a serf-sustaining native'q,andscape. Further,
due to the of the Peninsula Neighborhood to City ~vater-supply wells,
appropriate covenants shall be executed with each final plat to place
limitations on use of chemicals for landscaping purposes on all properties within the
Peninsula. These covenants shall be part of legal papers to be approved during the final
plat stage of each phase within the development.
K. Affordable housin,q. The City and PDC acknowledge their collective intent to develop the
Peninsula Neighborhood with a mixture of housing types and a range of property values.
6
To assure that a minimum percentage of the constructed dwelling units are affordable
and remain affordable over time, 10% of the total number of dwelling units shall be
constructed for and/or marketed to non-profit housing organizations ("non-profit housing
organizations" includes the Iowa City Housing Authority). The number or percentage of
affordable units to be included in each phase or portion thereof is shown on the
OPDH/Regulating Plan approved February 20, 2001 by Ordinance No. 01-3958, as
amended.
To meet the of providing affordable housing the Peninsula Neighborhood,
PDC agrees will consult with local non-pr housing organizations to design
dwelling which are suitable for the and are affordable to said non-
profit housing PDC also ',ount the market value of lots by
10% for any lots sold a local Iowa City non-I: housing organization. In the event
the Parties disagree market value of lc to be conveyed under this provision,
"market value" shall be ermined by an a performed by an appraiser of the
City's choosing.
L. Peninsula Neighborhood Review Upon approval of the final plat and
completion and acceptance the Peninsula Neighborhood Design
Review Board (PNARB), members of the City staff appointed by the
City Manager and the Town representing the Developer, shall commence
review of permit applications for I: structures within the approved Final Plat.
Contemporaneously with the PNARB the City Building Inspection Division shall
commence review of permit applica within the approved Final Plat. The PNARB
review shall consist of assuring with the architectural Covenants of the
Peninsula Neighborhood and Division will assure compliance with the
Peninsula Neighborhood Code an r pertinent laws and regulations of the City
of Iowa City. The City will issue for dwellings and any approved non-
residential buildings OPDH/Regulating Plan and Final
Plat, the adopted Peninsula N, hborhood and any other pertinent laws and
regulations.
M. Access to Property. Prior to of the by the City to the Developer,
the City shall permit represe of the Develo to have access to any part of the
Property as to which the holds title, at all ,nable times for the purpose of
obtaining data and making concernin ~roperty necessary to carry out
this Agreement. After the ance of the Propertythe City to the Developer, the
Developer shall permit representatives of the Cil ~cess to the Property at all
reasonable times it deems necessary for the rposes of this Agreement
including, but inspection of all work being ~nnection with the
construction of the in No compensation shall payable nor shall any
charge be made in a~ by any party for the access for in this paragraph.
N. Time is of the ,'_e. Time is of the essence in this contrac~ Failure to promptly
assert rig Developer herein shall not, however, be a w~,ver of such rights or
a waiver of an or subsequent default. ~
O. Prohibitions against Assignment and Transfer.
1. The Developer represents and agrees for itself, and its successors and assigns,
that:
a. the Developer (except as so authorized) has not made or created, and
that it will not make or create, or suffer to be made or created, any total or
partial sale, assignment, conveyance, or lease, or any trust or power, or
transfer in any other mode or form of reement or
the Property, or any part thereof or an' or any contract or
~nt to do any of the same, without :he prior written approval of the
Cit
b. the restrictions set in this section, the Developer
may:
(1) Make transfer or assi only by way of security for, and
only purpose of obtaini financing necessary to enable the
Develo perform its obli ; with respect to constructing the
infrastructur Jnder this
(2) Sell or lease or lots of the Peninsula Neighborhood
conveyed
2. In the absence of a reement by the City to the contrary, no
such transfer or approval by thereof shall be deemed to relieve the
Developer, or any other party bou~ ~n any way by this Agreement or otherwise,
of its obligations with respect to of the infrastructure or from any
of its other obligations under ment.
P. Parties in Control of Developer. The ~grees that the Developer will promptly
notify the City of any and all chang( with respect to the identity of the
managers of the Developer, which currently~rry Kemper, William R. Johns and
Wayne Webber. In the event of any to the identity of the managers,
the City shall have the inate the nt.
Q. Remedies.
(1) In General. Except as ¢ .~rwise provided in this reement, in the event of any
default or breach of thi ireement, or any of rms or condition, by either
party herein, or any to such party, (or successor) shall,
upon written other, proceed commence to cure or
remedy such defaull Dr breach and shall complete cure or remedy, within
thirty (30) days of such notice. In curative action is not
taken or not diliger or the default or breach ~ot cured or remedied
within thirty (30) the aggrieved party may institute uch proceedings as
may be necessa~ or desirable in its opinion to cure and rt such default or
breach, not limited to, proceedings to compel performance
by the party in ~ach of its obligations.
(2) In the event that
(a) in violation of this Agreement the Developer (or any successor in interest)
assigns or attempts to assign this Agreement or any rights therein, or in
the Property in violation of this Agreement; or
8
(b) There is any change with respect to the identity of the managers of the
Developer; or
(c) The Developer fails to satisfy the ~ ~nditions precedent to conveyance of
any phase of the property led in Section F hereof within the time
periods set forth or
(d) The Developer does not pay Purchase Price and take title to any
phase upon te by the City pursuant to this Agreement,
and if any such default shall not be cured n thirty (30) days after the date of written
demand~ the then this Ag any rights of the Developer, or any
ass~ in this Ag therefrom with respect to the City or
the Property, shall, at the of the City, be terminated by the City, in
which event either the Developer ~lnee or transferee) nor the City shall have
any against or liability to the reement.
(3) Other Ri Remedies of Ci No Waiver The City shall have the
right to such actions or 'oceedings as may be necessary to enforce the
Develo ~nants and ations under this Agreement and to seek
damag~ default by the Developer. Any delay by the City
in instituting or such actions or proceedings or otherwise
asserting its rights not operate as a waiver of such rights or to
deprive it of or limit ~ in any way (it being the intent of this provision that
the City should not be cc lined (so as to avoid the risk of being deprived of or
limited in the exercise he remedy provided in this Section because of
concepts of waiver, laches exercise such remedy at a time when
it may still hope resolve the problems created by the default
involved); nor shall an fact made by the City with respect to any
specific default by the ection be considered or treated as
a waiver of the the City respect to any other defaults by the
Developer under this ~ction or with retspect to the particular default except to
the extent specifically ~ ~ived in writing. \~
R. Notices. All notices, other ~ommunications that are required or
permitted to be given under reement will be in Writing and will be deemed to have
been sufficiently given for ~ if (a) delivered personally to the party
to whom the same is or (b) sent by certified' mail, postage prepaid, return
receipt requested, at the identified below; or to such other party at such other
address as shall have be given in writing in accordance herewith.
9
City of Iowa City
A'i-I'N: Stephen J. Atkins, City Manager
410 East Washington Street
Iowa City, IA 52240
With copies to:
Eleanor Dilkes, City Attorney
Karin Franklin, Director of PCD
Barry Kemper, President /
Peninsula Development Co,fnpany
Cio Progressive Management Construction
5781 Sheldon Road, Suit~ C
Canton, MI 48188 /
/
S. Miscellaneous.
/
(1) Conflict of Developer agre.bs that, to its best knowledge and belief, no
member, officer of th~ City, or its designees or agents, nor any
consultant or )f the body of the City, and no other public
official of the ,o or 'has exercised any functions or
responsibilities with ~ct during his or her tenure, or who is in a
position to participate in ,g process or gain insider information
with regard to the Project, have any interest, direct or indirect, in any
contract or subcontract, or thereof, for work to be performed in
connection with the Project, ny activity, or benefit therefrom, which is part
of this Project at any time duri~ persons tenure.
(2) Non-Discrimination. In ou'~the Project, the Developer shall not
discriminate against any en or ap~icant for employment because of race,
creed, color, sex, natiol origin, gen'~l, er identity, marital status, sexual
orientation, religion, age disability. The Developer shall insure that applicants
for employment are employment, anck~the employees are treated during
employment, without ~rd to their age, rac~;.,creed, color, disability, gender
identity, marital status sexual orientation, rel~ion or national origin.
(3) Provisions Not Me~ Nith Deed. None of the provisions of this Agreement are
intended to or shall merged by reason of any deed transferring title to the
Property or any par f from the City to the DevelOper or any successor in
interest, and any deed shall not be deemed t~ affect or impair the
provisions and co reement.
(4) Titles and Any titles of the several sections of this Agreement are
inserted for )nvenience of reverence only and shall be ,disregarded in
construing or interpreting any of its provisions.
(5) Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Iowa.
(6) A,qreement Bindin,q in Successors in Interest. This agreement shall apply to and
bind the successors in interest of the parties.
10
(7) Entire Agreement. This Agreement and the exhibits hereto reflect the entire
agreement between the parties re ling the subject matter hereof, and
supersedes and replaces all prior 9ments, negotiations or discussions,
whether oral or written. This Agreemer may not be amended except by a
subsequent writing signed by all parties h,
PENINSULA DEVELOPMENT COMPANY, CITY OF IOWA CITY, IOWA
L.L.C. ~
By:
Barry Kemper, Preside~k, Ernest W. Lehman, Mayor
ATTEST:
By:~
Marian K. Karr, City Clerk
,~ Approved B~
JOHNSON COUNTY ) City Attorney's Office '
On this day of 2003, me, the undersigned, a Notary Public in
and for said County and State, ~, appeared Lehman and Marian K. Kart, to
me personally known, who being by duly sworn, that they are the Mayor and City
Clerk, respectively, of said municipal poration executing within and foregoing instrument;
that the seal affixed thereto is the I of said municipal ,ration; that said instrument was
signed and sealed on behalf of municipal corporation by of City Council of said
municipal corporation; and that the Ernest W. Lehman arian K. Karr acknowledged
the execution of said instrument to y act and deed said municipal corporation,
by it and by them voluntaril' d.
Notary Public in and for the of Iowa
\
\
11
STATE OF IOWA )
) SS:
JOHNSON COUNTY )
On this day 2003, before me, a notary public in
and for the State of Iowa, appeared to me personally known, who
being by me duly sworn that the is the President of PENINSULA
DEVELOPMENT COMPANY, ~., a Michi imited liability company, and that said
instrument was signed on behalf the said lit liability company by authority of its
managers and the said Barry execution of said instrument to be the
voluntary act and deed of said limited by it voluntarily executed.
Public in and for the State of Iowa
eleanor/agt/peninsula agreement.doc
12
Prepared by: Karin Franklin, PCD, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5232
RESOLUTION NO. 04-7
RESOLUTION CONSENTING TO THE ASSIGNMENT OF THE PENINSULA
NEIGHBORHOOD DEVELOPMENT AGREEMENT FROM TERRY L. STAMPER
HOLDINGS, EEC., TO PENINSULA DEVELOPMENT, LL.C., AND
APPROVING THE SECOND AMENDMENT TO THE PENINSULA
NEIGHBORHOOD DEVELOPMENT AGREEMENT.
WHEREAS, the City of Iowa City owns a large parcel of land known as the Peninsula; and
WHEREAS, approximately 82 acres of this land has been deemed an appropriate site for a
residential development project; and
WHEREAS, the City has undertaken a lengthy planning process to envision with the community
the most appropriate type of development for this land; and
WHEREAS, the Iowa City City Council has adopted the Peninsula Plan and has rezoned 82.1
acres to enable implementation of this plan; and
WHEREAS, the City Council, by Resolution 00-231 approved an agreement with Terry L. Stamper
Holdings, LLC as the developer of this project; and
WHEREAS, Terry L. Stamper, the individual, is no longer associated with the development
company developing this piece of land and has assigned the Development Agreement between
Terry L. Stamper Holdings EEC. to Peninsula Development L.LC.; and
WHEREAS, the development team, minus Terry L. Stamper, will proceed with the development of
the Peninsula Neighborhood under the name of the new company, Peninsula Development
EEC.; and
WHEREAS, an amended agreement has been drafted setting forth the rights and responsibilities
of the City and Peninsula Development L.L.C. for the development of the remainder of the 82.1
acre tract.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA, THAT:
1. The City consents to assignment of the Peninsula Neighborhood Development Agreement
from T. L. Stamper Holdings, EL.C, to Peninsula Development, L.L.C., and the Mayor is
authorized to sign and the City Clerk to attest a Consent to Assignment upon approval of
the terms thereof by the City Attorney.
2. The Mayor is authorized to sign and the City Clerk to attest the Second Amendment to the
Peninsula Neighborhood Agreement between the City and the Peninsula Development
EEC.
Resolution No. 04-7
Page 2
3. The City Clerk is hereby directed to record said agreement upon passage of this
resolution.
Passed and approved this 6th day of January ,20 04
A.~roved by ~
C]TY"~LERK City Attorney's Office
It was moved by Wilhurn and seconded by Champion the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Champion
X Kanner
X Lehman
X O'Donnell
X Pfab
X Vanderhoef
X Wilburn
SECOND AMENDMENT TO PENINSULA NEIGHBORHOOD
DEVELOPMENT AGREEMENT
This Second Amendment to the Peninsula Neighborhood Development Agreement is hereby
made and executed by the City of Iowa City (hereinafter "City"), 410 East Washington Street,
Iowa City, Iowa 52240, and Peninsula Development Company, L.L.C., as Assignee of Terry L.
Stamper Holdings, L.L.C., (hereinafter "PDC" and/or "Develope¢'), 5781 Sheldon Road, Suite C,
Canton, MI 48188. The City is a municipal corporation organized under the laws of the State of
Iowa. PDC is a Limited Liability Corporation organized under the laws of the State of Michigan.
WHEREAS, the City of Iowa City and Terry L. Stamper Holdings, L.L.C., (hereinafter ("TLS")
entered into the Peninsula Neighborhood Development Agreement, which was recorded at
Book 2986, Page 49, Records of the Recorder of Johnson County, Iowa and a First Amendment
thereto, which was recorded at Book 3060, Page 735, Records of the Recorder of Johnson
County, Iowa; and
WHEREAS, TLS has assigned all its dghts under the Peninsula Development Agreement to
PDC; and
WHEREAS, the City has agreed to consent to said Assignment subject to approval of the terms
of said consent by the City Attomey; and
WHEREAS, the City, pursuant to the original Peninsula Neighborhood Development Agreement
with TLS, transferred the Peninsula Neighborhood First Addition and Lots 31, 32, 33, 34, 35,
and Outlot I of the Peninsula Neighborhood Second Addition to TLS. With the exception of
individual lots transferred by TLS to homeowners, TLS shall transfer said property to PDC within
thirty (30) days of final execution of this Agreement; and
WHEREAS, the City has prepared The Peninsula Plan and Guidelines to serve as a concept
plan for the development of the Peninsula Neighborhood. The Peninsula Plan shows the layout
of streets, blocks and alleys and their relationship to public spaces and existing views. The
Guidelines recommend a range of building types but do not specify their location or quantity.
The Guidelines and Plan are intended to provide direction for the design and development of
the Peninsula; and
WHEREAS, this agreement outlines the terms and conditions, and the relative rights and
responsibilities of the City, as owner, and PDC, as developer, for the development of The
Peninsula Neighborhood (hereinafter "The Peninsula").
For and in consideration of the mutual promises set forth herein, the parties hereby a~lme as
follows:
A. Amendment. This Second Amendment to the Peninsula Neighborhood Development
Agreement supercedes and replaces all prior agreements between the City and PDC as
assignee of Terry L. Stamper Holdings, L.L.C.
B. Le.qal Description. The property which comprises the Peninsula Neighborhood is legally
described as follows:
THAT PART OF AUDITOR'S PARCEL NO. 95080, IOWA CITY, JOHNSON
COUNTY, IOWA DESCRIBED AS FOLLOWS: COMMENCING AS A POINT OF
REFERENCE AT THE SOUTH QUARTER-CORNER OF SECTION 4,
TOWNSHIP 79 NORTH, RANGE 6 WEST OF THE 5th P.M.; THENCE
N1°39'04'~/V, 1317.17 FEET ALONG THE EAST LINE OF THE SOUTHWEST
QUARTER OF SAID SECTION 4; THENCE S89°42'21"W, 562.55 FEET ALONG
THE SOUTH LINE OF GOVERNMENT LOT 5 OF SAID SECTION 4, TO A
NORTHEASTERLY CORNER OF SAID AUDITOR'S PARCEL NO. 97099;
THENCE S89°44'39'~/V, 330.00 FEET; ALONG A NORTHERLY LINE OF SAID
AUDITOR'S PARCEL NO. 95080; THENCE N01°37'40'~/V, 203.27 FEET ALONG
AN EASTERLY LINE OF SAID AUDITOR'S PARCEL NO. 95080, TO THE
POINT OF BEGINNING; THENCE N01°39'47'~/V, 778.50 FEET ALONG AN
EASTERLY LINE OF SAID AUDITOR'S PARCEL NO. 95080; THENCE
S76°21'45'"VV, 469.26 FEET ALONG A NORTHERLY LINE OF SAID AUDITOR'S
PARCEL NO. 97099; THENCE N65°29'48'~/V, 971.46 FEET ALONG A
NORTHERLY LINE OF SAID AUDITOR'S PARCEL 95080; THENCE
S57°05'21"W, 772.80 FEET ALONG A NORTHWESTERLY LINE OF SAID
AUDITOR'S PARCEL NO. 95080 TO A POINT OF INTERSECTION WITH THE
EASTERLY BANK OF THE IOWA RIVER AND A WESTERLY LINE OF SAID
AUDITOR'S PARCEL NO. 95080; THENCE S17°00'58'~/V, 601.80 FEET;
THENCE S41°29'18"W, 400.00 FEET; THENCE S32°19'39"E, 520.00 FEET;
THENCE S07°44'49"E, 993.53 FEET; THENCE S56°38'56"E, 810.00 FEET;
THENCE N59°50'25"E, 194.38 FEET; THENCE N62°35'26'~/V, 230.00 FEET;
THENCE N12°35'57'~/V, 470.00 FEET; THENCE N81°48'04"E, 200.00 FEET;
THENCE N08°07'42'~V, 309.36 FEET TO A SOUTHWESTERLY CORNER OF
AUDITOR'S PARCEL NO. 97099; THENCE N02°30'39"E, 499.39 FEET ALONG
A WESTERLY LINE OF SAID AUDITOR'S PARCEL NO. 97099; THENCE
N37°48'08"E, 31.58 FEET ALONG A NORTHWESTERLY LINE OF SAID
AUDITOR'S PARCEL NO. 97099; THENCE N60°46'24"E,1172.27 FEET;
ALONG A NORTHWESTERLY LINE OF SAID AUDITOR'S PARCEL NO. 97099;
THENCE S89°59'09"E 283.72 FEET ALONG A NORTHERLY LINE OF SAID
AUDITOR'S PARCEL NO. 97099 TO THE POINT OF BEGINNING AND
CONTAINING 82.1 ACRES SUBJECT TO EASEMENTS AND RESTRICTIONS
OF RECORD.
C. Representations and Warranties of Developer. The Developer makes the following
representations and warranties:
1. The Developer is a limited liability company duly organized under the laws of the
State of Michigan, has power to enter into this Agreement and to perform its
obligations hereunder, and is not in violation of any provisions of its articles of
organization, operating agreement, any other agreement or the laws of the
States of Michigan or Iowa.
2. The Developer has the full power and authority to execute this Agreement and
this Agreement shall constitute the legal, valid and binding obligation of the
Developer in accordance with its terms, and the consent of no other party is
required for the execution and delivery of this Agreement by the Developer or the
consummation of the transaction contemplated hereby.
3. The making and performance of this Agreement by the Developer and the
execution and delivery of the documents to be delivered by the Developer
pursuant hereto, have been duly authorized by all necessary action of the
Developer, and this Agreement and such documents will be valid and binding
obligations of the Developer enforceable in accordance with their terms.
4. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a breach of, the terms, conditions or previsions of any
contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which the Developer is now a party or by which it is bound,
nor do they constitute a default under any of the foregoing.
5. The Developer's pumhase of the Peninsula Property and its other undertakings
pursuant to this Agreement, are and will be used for the purpose of development
of the property and not for speculation in land holding.
D. Zonin.q/OPDH Plan ("ReRulatin.q Plan"). Development of the Peninsula shall be
governed by the Planned Development Housing Oveday (OPDH) and Sensitive Areas
Oveday (OSA) adopted June 29, 2000 by Ordinance No. 00-3938; the Conditional
Zoning Agreement, including the Regulating Plan and Peninsula Neighborhood Code,
adopted February 20, 2001 by Ordinance No. 01-3958 and amended May 3, 2001 by
Ordinance No. 01-3966, Mamh 11, 2003 by Ordinance No. 03-4063, and June 24, 2003,
by Ordinance No. 03-4087; the Final Plat of the Peninsula Neighborhood First Addition,
including the Peninsula Neighborhood Covenants adopted by Resolution No. 01-155 on
June 12, 2001; the replat of the Peninsula Neighborhood First Addition adopted by
Resolution No. 03-78 on Mamh 11, 2003, the Final Plat of the Peninsula Neighborhood
Second Addition adopted by Resolution No. 03-263 on August 19, 2003, and all
subsequent plats of the Peninsula Neighborhood and any subsequent amendments to
the zoning, plans, plats, Code or Covenants, mutually agreed to by both parties, and
formally adopted by the City.
E. Development Phasinq. The OPDH/Regulating Plan includes a phasing plan which
identifies sub-areas of the property (hereinafter "phases") and the order in which these
phases or portions thereof will be purchased and developed by PDC. These sub-areas
are numbered 1 through 6 with number 1 being the first area to be platted and conveyed
to Developer and number 6 being the last. Final plats for the first phase, known as
Peninsula Neighborhood First Addition, and the second phase, known as Peninsula
Neighborhood Second Addition, have been approved by the City. The First Addition and
Lots 31 through 35 and Outlot I of the Second Addition were conveyed to Developer's
predecessor. The Developer shall submit a final plat for each Phase which must be
approved by City pdor to conveyance of that Phase. Upon submission of a final plat by
Developer, the City shall initiate the application and process for the approval of each plat
through the Planning & Zoning Commission and the City Council. Unless otherwise
agreed to by the Parties, in writing, platting shall proceed in accordance with the phasing
plan outlined in the OPDH/Regulating Plan. The phasing schedule and configuration of
the phases may be amended or altered with the mutual wdtten consent of both parties,
as executed by the City Manager or his/her designee on behalf of the City and by the
President of PDC on behalf of the Developer.
F. Conditions Precedent to Conveyance. Prior to the conveyance of any further Phases or
portion thereof, the Developer shall:
1. Submit a final plat for the phase and obtain final plat approval from the City; and
2. Complete the sale of or commence construction on at least 50% of the units in
each preceding Phase; and
3. Install and obtain the City's acceptance of the public improvements and install
any pdvate open space amenities, or, in the alternative, provide escrow funds for
110% of the cost thereof, in each preceding Phase; and
4. Comply with the OPDH/Regulating Plan in each preceding Phase; and
Submit to the City evidence satisfactory to the City that the Developer has the
financial ability to install the necessary public improvements and pdvate
amenities in conformance with the Construction Plans and Final Plat of the phase
or portion thereof to be conveyed.
Upon approval of the final plat for each Phase and upon the Developer's satisfaction of
the conditions precedent to conveyance, the City shall transfer the ownership of the
Phase (or portion thereof if the parties mutually agree) to PDC in accordance with the
provisions of Section H of this Agreement.
G. Deadlines for Conveyance. Closing on Developers purchase must occur on or before:
1. January 1, 2005, for the remainder of the Peninsula Neighborhood Second
Addition; and
2. Within three (3) years of closing on the immediately preceding phase for the
Third, Fourth, Fifth, and Sixth Additions of the Peninsula Neighborhood (for
example, closing on the Fourth Addition must occur within three (3) years of
closing on the Third Addition).
Failure of the Developer to meet the conditions precedent to conveyance enumerated in
Section F hereof within the deadlines for conveyance set forth at Section G hereof shall
be a default under this Agreement, and subject the Developer to the previsions of
Section Q hereof.
H. Transfer of Real Estate.
1. Purchase Price. The 82.1 acre property will be sold to PDC for a minimum sum
of $1,300,000 plus 6.5% interest compounded annually on the principal
remaining after unit pdce payments are deducted from $1,300,000 after each
closing, said interest running from January 31, 2002. As the total number of units
established for the property is 410, this yields a base pdce of $3171.00 per unit,
not including interest as calculated above. At closing on portions of the property
beyond the end of Phase One, the pdce shall consist of the per-unit base pdce
multiplied by the total number of final site-plan approved units plus 6.5% interest
on the outstanding principal balance remaining after closing of the preceding
Phase or portion thereof. Therefore, the parties acknowledge that successive
phases may result in higher per unit land prices as necessary to meet the
minimum cost plus interest as outlined above. Upon transfer/closing of the final
Phase, a final reconciliation shall be performed to establish the pdce necessary
to meet the minimum cost of $1,300,000 plus 6.5% interest compounded
annually from January 31, 2002. Payment for the conveyance of property and
interest shall be in immediately available funds.
2. Possession and Closing. Subject to Developer's satisfaction of all conditions
precedent to closing, the parties shall close on final platted phases within forty-
five (45) days of final plat approval, and possession of the real estate shall be
delivered to Developer on the date of closing with any adjustments for interest
and liens to be made as of the date of transfer of possession. Closings shall
occur at City Hall unless the parties mutually agree on another location.
3. Abstract and Title. The City, at its expense, shall provide an Abstract for the
property to be conveyed continued through the date of final platting, for
examination by the Developer. The Abstract shall show good and merchantable
title in the City in conformity with this Agreement, Iowa Law and the Title
Standards of the Iowa State Bar Association.
4. Deed. Upon payment of the purchase pdce, City shall convey the real estate to
Developer by warranty deed, free and clear of all liens, restrictions and
encumbrances except zoning and other ordinances, covenants and easements
of record. The cost of recording the deed shall be borne by Developer.
5. Real Estate Taxes. As the City owns all the parcels, there are no taxes to be
prorated.
6. Special Assessments. City shall pay all special assessments which are a lien on
the real estate as of the date of closing.
7. Transfer tax. The contemplated transfers are exempt from Iowa real estate
transfer tax.
8. Condition of Property. Developer acknowledges that it has made a satisfactory
inspection of the property and is purchasing the real estate in its present
condition. The Developer acknowledges and agrees that the City has not made
and does not hereby make any representations, warranties or covenants of any
kind or character whatever, expressed or implied, with respect to the quality,
integrity, nature of, use or condition of any of the parcels or any improvements,
fixtures and personal property located on or used in connection with any of the
parcels. As of the closing, the Developer shall be conclusively deemed to have
accepted the land on an "as-is" basis.
I. Infrastructure.
1. Installation by Developer. PDC shall extend, construct and/or install all
necessary infrastructure improvements for each phase within the Peninsula
Neighborhood, including:
All streets, sidewalks and alleys within the Peninsula Neighborhood;
All utilities;
City water and sanitary sewer lines;
A stormwater management system.
The installation or construction of all infrastructure shall be in accordance with
City design standards and improvement requirements.
The Peninsula Design Guidelines shall supersede the "Iowa City Municipal
Design Standards" for the infrastructure where the two conflict and are
irreconcilable.
2. Time Pedod for Installation. After closing on any portion of the Peninsula
Property and upon issuance of all necessary permits and approvals as required,
PDC will diligently undertake to install and construct the infrastructure and their
related appurtenances. The construction of the infrastructure will be substantially
completed 18 months after closing on the relevant phase or portion thereof. If
such infrastructure construction is not substantially completed within 18 months
after closing, subject to the property dghts (including curative dghts, if any) of any
secured lender to PDC, which has financed acquisition of all or any portion of the
Property, development and/or home construction, City shall, after providing PDC
with a 30-day written notice to cure, have the dght to take possession of the
property and any infrastructure thereon and PDC shall, upon demand by City,
convey said property by warranty deed to City, free and clear of all liens except
those of any lender which has financed acquisition of all or any portion of the
property, development, and/or home construction. PDC shall have no right to
any equity in said property and City shall retain all sums paid by PDC for said
property. City may enforce PDC's obligation to convey said property to City in an
action for specific performance. The prevailing party in an action for specific
performance shall pay the other party's reasonable attorney's fees and costs.
City's dght to take possession and title as set forth herein is non-exclusive and
City shall have all other remedies available by law, including, but not limited to,
termination of the Agreement and recovery of damages.
J. Environmental Considerations. Portions of the 82.1 acre property contain wooded
ravines and slopes, as outlined and depicted on the diagram attached hereto as Exhibit
"A'. These features shall be subject to the provisions of the Sensitive Areas Ordinance
and shall be preserved to the extent possible. The OPDH/Regulating Plan provides for
the protection of areas that are identified for preservation dudng construction of the
neighborhood and such areas shall be protected in perpetuity through an appropriate
conservation easement and/or dedication of the affected land to a land conservancy or
the City.
The lower-Peninsula, a City owned property located adjacent to the Peninsula
development site, contains City water wells. The lower-Peninsula is also being designed
as a passive park, and the parties acknowledge that it is anticipated the area will
undergo ecological restoration to become a self-sustaining native landscape. Further,
due to the proximity of the Peninsula Neighborhood to City water-supply wells,
appropriate restrictive covenants shall be executed with each final plat to place
limitations on the use of chemicals for landscaping purposes on all properties within the
Peninsula. These covenants shall be part of legal papers to be approved during the final
plat stage of each phase within the development.
K. Affordable housing. The City and PDC acknowledge their collective intent to develop the
Peninsula Neighborhood with a mixture of housing types and a range of property values.
To assure that a minimum percentage of the constructed dwelling units are affordable
and remain affordable over time, 10% of the total number of dwelling units shall be
constructed for and/or marketed to non-profit housing organizations ("non-profit housing
organizations" includes the Iowa City Housing Authority). The number or percentage of
affordable units to be included in each phase or portion thereof is shown on the
OPDH/Regulating Plan approved February 20, 2001 by Ordinance No. 01-3958, as
amended.
To meet the goal of providing affordable housing within the Peninsula Neighborhood,
PDC agrees that it will consult with local non-profit housing organizations to design
dwelling units or lots which are suitable for the needs of and are affordable to said non-
profit housing organizations. PDC also agrees to discount the market value of lots by
10% for any lots sold to a local Iowa City non-profit housing organization. In the event
the Parties disagree as to market value of lots to be conveyed under this provision,
"market value" shall be determined by an appraisal performed by an appraiser of the
City's choosing.
L. Peninsula Neighborhood Design Review Board. Upon approval of the final plat and
completion and acceptance of infrastructure, the Peninsula Neighborhood Design
Review Board (PNARB), comprised of two members of the City staff appointed by the
City Manager and the Town Architect representing the Developer, shall commence
review of permit applications for proposed structures within the approved Final Plat.
Contemporaneously with the PNARB review, the City Building Inspection Division shall
commence review of permit applications within the approved Final Plat. The PNARB
review shall consist of assuring compliance with the architectural Covenants of the
Peninsula Neighborhood and the Building Division will assure compliance with the
Peninsula Neighborhood Code and any other pertinent laws and regulations of the City
of Iowa City. The City will issue building permits for dwellings and any approved non-
residential buildings that conform to the approved final OPDH/Regulating Plan and Final
Plat, the adopted Peninsula Neighborhood Code, and any other pertinent laws and
regulations.
M. Access to Property. Pdor to conveyance of the Property by the City to the Developer,
the City shall permit representatives of the Developer to have access to any part of the
Property as to which the City holds title, at all reasonable times for the purpose of
obtaining data and making vadous tests concerning the Property necessary to carry out
this Agreement. After the conveyance of the Property by the City to the Developer, the
Developer shall permit the representatives of the City access to the Property at all
reasonable times which it deems necessary for the purposes of this Agreement
including, but not limited to, inspection of all work being performed in connection with the
construction of the infrastructure. No compensation shall be payable nor shall any
charge be made in any form by any party for the access provided for in this paragraph.
N. Time is of the Essence. Time is of the essence in this contract. Failure to promptly
assert rights of City or Developer herein shall not, however, be a waiver of such dghts or
a waiver of any existing or subsequent default.
O. Prohibitions against Assignment and Transfer.
1. The Developer represents and agrees for itself, and its successors and assigns,
that:
a. the Developer (except as so authorized) has not made or created, and
that it will not make or create, or suffer to be made or created, any total or
partial sale, assignment, conveyance, or lease, or any trust or power, or
transfer in any other mode or form of or with respect to this Agreement or
the Property, or any part thereof or any interest therein, or any contract or
agreement to do any of the same, without the prior wdtten approval of the
City.
b. Notwithstanding the restrictions set forth in this section, the Developer
may:
(1) Make such transfer or assignment only by way of secudty for, and
only for, the purpose of obtaining financing necessary to enable the
Developer to perform its obligations with respect to constructing the
infrastructure under this Agreement.
(2) Sell or lease units or lots in portions of the Peninsula Neighborhood
conveyed to PDC.
2. In the absence of a specific wdtten agreement by the City to the contrary, no
such transfer or approval by the City thereof shall be deemed to relieve the
Developer, or any other party bound in any way by this Agreement or otherwise,
of its obligations with respect to the construction of the infrastructure or from any
of its other obligations under this Agreement.
P. Parties in Control of Developer. The Developer agrees that the Developer will promptly
notify the City of any and all changes whatsoever with respect to the identity of the
managers of the Developer, which ara currently Barry Kemper, William R. Johns and
Wayne Webber. In the event of any change with respect to the identity of the managers,
the City shall have the option to terminate the agreement.
Q. Remedies.
(1) In General. Except as otherwise provided in this Agreement, in the event of any
default or breach of this Agreement, or any of its terms or condition, by either
party herein, or any successor to such party, such party (or successor) shall,
upon written notice from the other, proceed immediately to commence to cure or
remedy such default or breach and shall complete such cure or remedy, within
thirty (30) days after receipt of such notice. In case such curative action is not
taken or not diligently pursued, or the default or breach is not cured or remedied
within thirty (30) days, the aggrieved party may institute such proceedings as
may be necessary or desirable in its opinion to cure and remedy such default or
breach, including, but not limited to, proceedings to compel specific performance
by the party in default or breach of its obligations.
(2) Termination by City. In the event that
(a) in violation of this Agreement the Developer (or any successor in interest)
assigns or attempts to assign this Agreement or any dghts therein, or in
the Property in violation of this Agreement; or
(b) There is any change with respect to the identity of the managers of the
Developer; or
(c) The Developer fails to satisfy the conditions precedent to conveyance of
any phase of the property as identified in Section F hereof within the time
periods set forth in Section G hereof; or
(d) The Developer does not pay the Purchase Pdce and take title to any
phase upon tender of conveyance by the City pursuant to this Agreement,
and if any such default shall not be cured within thirty (30) days after the date of written
demand by the City, then this Agreement, and any rights of the Developer, or any
assignee or transferee, in this Agreement, or adsing therefrom with respect to the City or
the Peninsula Property, shall, at the option of the City, be terminated by the City, in
which event, neither the Developer (or assignee or transferee) nor the City shall have
any further dghts against or liability to the other under this Agreement.
(3) Other Rights and Remedies of City; No Waiver by Delay. The City shall have the
right to institute such actions or proceedings as may be necessary to enforce the
Developer's covenants and obligations under this Agreement and to seek
damages caused by a breach or default by the Developer. Any delay by the City
in instituting or prosecuting any such actions or proceedings or otherwise
asserting its dghts hereunder shall not operate as a waiver of such rights or to
deprive it of or limit such rights in any way (it being the intent of this provision that
the City should not be constrained (so as to avoid the risk of being depdved of or
limited in the exercise of the remedy provided in this Section because of
concepts of waiver, laches, or otherwise) to exercise such remedy at a time when
it may still hope otherwise to resolve the problems created by the default
involved); nor shall any waiver in fact made by the City with respect to any
specific default by the Developer under this Section be considered or treated as
a waiver of the rights of the City with respect to any other defaults by the
Developer under this Section or with respect to the particular default except to
the extent specifically waived in wdting.
R. Notices. All notices, requests, demands and other communications that are required or
permitted to be given under this Agreement will be in wdting and will be deemed to have
been sufficiently given for all purposes hereunder if (a) delivered personally to the party
to whom the same is directed, or (b) sent by certified mail, postage prepaid, return
receipt requested, at the addresses identified below; or to such other party at such other
address as shall have been given in writing in accordance herewith.
City of Iowa City
ATTN: Stephen J. Atkins, City Manager
410 East Washington Street
Iowa City, IA 52240
With copies to:
Eleanor Dilkes, City Attorney
Kadn Franklin, Director of PCD
Barry Kemper, President
Peninsula Development Company
C/o Progressive Management Construction
5781 Sheldon Road, Suite C
Canton, MI 48188
S. Miscellaneous.
(1) Conflict of Interest. Developer agrees that, to its best knowledge and belief, no
member, officer or employee of the City, or its designees or agents, nor any
consultant or member of the governing body of the City, and no other public
official of the City who exercises or has exercised any functions or
responsibilities with respect to the Project dudng his or her tenure, or who is in a
position to participate in a decision-making process or gain insider information
with regard to the Project, shall have any interest, direct or indirect, in any
contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the Project, or in any activity, or benefit therefrom, which is part
of this Project at any time dudng or after such persons tenure.
(2) Non-Discrimination. In carrying out the Project, the Developer shall not
discriminate against any employee or applicant for employment because of race,
creed, color, sex, national origin, gender identity, madtal status, sexual
orientation, religion, age or disability. The Developer shall insure that applicants
for employment are granted employment, and the employees are treated during
employment, without regard to their age, race, creed, color, disability, gender
identity, madtal status, sex, sexual orientation, religion or national origin.
(3) Provisions Not Merged With Deed. None of the provisions of this Agreement ara
intended to or shall be merged by reason of any deed transferring title to the
Property or any part thereof from the City to the Developer or any successor in
interest, and any such deed shall not be deemed to affect or impair the
provisions and covenants of the Agreement.
(4) Titles and Sections. Any titles of the several sections of this Agreement are
inserted for convenience of reverence only and shall be disregarded in
construing or interpreting any of its provisions.
(5) Goveminq Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Iowa.
(6) Agreement Bindinq in Successors in Interest. This agreement shall apply to and
bind the successors in interest of the parties.
(7) Entire A.qreement. This Agreement and the exhibits hereto reflect the entire
agreement between the parties regarding the subject matter hereof, and
supersedes and replaces all prior agreements, negotiations or discussions,
whether oral or written. This Agreement may not be amended except by a
subsequent writing signed by all parties hereto.
PENINSULA DEVELOPMENT COMPANY, CITY OF IOWA CITY, IOWA
L.L.C.
Barry Kemper, President Ernest W. Lehman, Mayor
ATTEST:
M~fian K. Kan', City Clerk
STATE OF IOWA )
)SS:
JOHNSON COUNTY )
On this [, day of ::~,~uA~u ,200~-, before me, the undersigned, a Notary Public in
and for said County and State, pc~rsonally appeared Ernest W. Lehman and Marian K. Karr, to
me personally known, who being by me duly swom, did say that they are the Mayor and City
Clerk, respectively, of said municipal corporation executing the within and foregoing instrument;
that the seal affixed thereto is the seal of said municipal corporation; that said instrument was
signed and sealed on behalf of said municipal corporation by authority of City Council of said
municipal corporation; and that the said Emest W. Lehman and Marian K. Karr acknowledged
the execution of said instrument to be the voluntary act and deed and said municipal corporation,
by it and by them voluntarily executed.
SONDRAEFORT I
l~.)Commiss)on Number 159791
I'~."1 My C~mm~sion Expires I Nota~ Public in and for ~e State of Iowa
STATE OF MICHIGAN )
) SS:
~U ~ !5. #. COUNTY )
2
On this day of ~)(~,(" , 2003, before me, a notary public in
and for the State of Michigan, personally appeared Barry Kemper, to me personally known,
who being by me duly sworn did say that the person is the President of PENINSULA
DEVELOPMENT COMPANY, gL, C., a Michigan limited liability company, and that said
instrument was signed on behalf of the said limited liability company by authority of its
managers and the said Barry Kemper acknowledged the execution of said instrument to be the
voluntary act and deed of said limited liability core_pan)/by it voluntad~ e~xecuted.
'--~otary P~blic i~~ t~e State of Michigan
eleanor/agtJpeninsula agreement.doc
Prepared by: Andy Matthews, Asst. City Attorney, 410 E. Washington Street, Iowa City, IA 52240 (319) 356-5030
RESOLUTION NO. 04-8
RESOLUTION RATIFYING SETTLEMENT OF A RATE CASE PENDING BEFORE THE
FCC RELATING TO MEDIACOM COMMUNICATIONS CORPORATION'S PROPOSED
RATE INCREASE AND ITS CALCULATIONS RELATING TO ESTABLISHMENT OF A
MAXIMUM PERMITTED RATE FOR BASIC CABLE SERVICE
WHEREAS, pursuant to the public law and the regulations of the Federal Communications
Commission (FCC), the City of Iowa City, Iowa (City) retains regulatory authority over basic cable
television services provided by Mediacom Communications Corporation [d/b/a MCC Iowa, LLC]
(Mediacom) in the authorized franchise area encompassing the City; and
WHEREAS, Mediacom filed an FCC Form 1240 dated April 29, 2003, for the purpose of requesting
and justifying an adjustment to its rates for basic cable services to a level of $14.00 per subscriber
per month [inclusive of FCC regulatory fees] to be effective on or about August 1, 2003; and
WHEREAS, in the exercise of its regulatory authority, the City reviewed these filings and determined
that Mediacom's FCC Form 1240 calculated maximum permitted rate was not correctly established;
that Mediacom's requested rate for basic cable services was unreasonable; and
WHEREAS, the findings from the City's review of these filings were presented in a report prepared
by the City's consultant, Rice Williams Associates, previously provided to the City Council; and
WHEREAS, the City Council, by Resolution No. 03-242, denied Mediacom's requested rate increase
of $14.00 per subscriber (inclusive of FCC regulatory charges) and determined that Mediacom's rate
for basic service tier cable programming services shall not exceed the level of $11.83 per subscriber
per month (inclusive of FCC regulatory charges) for bills rendered after August 1, 2003; and
WHEREAS, the parties have reached an agreement as to the rate increase for basic cable services
and establishment of a maximum permitted rate as set out in the attached 2003 Rate Settlement
Agreement, which by this reference is incorporated herein. The settlement would establish a rate
of $11.75 per subscriber per month, inclusive of FCC regulatory charges for bills rendered after
execution of the Settlement Agreement by the parties hereto, for basic cable service.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA, THAT:
(1) The 2003 Rate Settlement Agreement attached hereto is in the public interest and is
approved as to form and content.
(2) The Mayor is authorized to sign and the City Clerk to attest said Rate Settlement
Agreement.
Passed and approved this 6th day of 2004.
ATTEST:
Approved by:
CITY-CLERK
City Attorneys Office
Resolution No. 04-8
Page 2
It was moved by Vanderhoef and seconded by 0' Donnel 1 the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
X Bailey
X Champion
X Elliott
X Lehman
X O'Donnell
X Vanderhoef
X Wilburn
Iowa City, Rate Settlement 2003
For MCC Iowa, LLC
2003 RATE SETTLEMENT AGREEMENT
Mediacom Communications Corporation on behalf of itself and it's subsidiary, MCC Iowa LLC
(collectively "Mediacom") and the City of Iowa City (City) agree to the terms and conditions
enumerated below regarding the price of basic service for the community of Iowa City:
1. Mediacom will implement the basic rate orS11.75 (excluding franchise fees and
regulatory fees) as soon as possible upon full execution of this agreement. Mediacom
further agrees to maintain the basic rate orS11.75 (excluding franchise fees and
regulatory fee) through July 2005.
2. Mediacom will file a "Projection Period Only'Z FCC Form 1240 with modifications to
Modules A, D, F, G and H. Specific components to the 2004 and 2005 filings are
identified on "Attachment A". During the period of rate freeze (through July 2005)
the City agrees to not mandate any channel additions to the basic line-up.
3. Both parties agree to allocate the Public, Educational and Governmental (PEG) operating
costs to Iowa City customers with an amortization period of seven years. The city will
not contest the inclusion of these PEG operating costs in future rate filings during the
period of the current franchise agreement and any extension thereof.
4. The basic rate reduction would apply only to the basic-only customers. Implementation
of the $11.75 basic rate will not result in a reduction to the current price for Family
package subscribers.
5. The City will waiver the 30-day advance notice requirement associated with the
implementation of the $11.75 basic rate.
6. Mediacom will not be liable for customer refunds for the period of time beginning
August 1, 2002, until the new basic rate is implemented.
7. Mediacom and the City will jointly withdraw the appeal currently pending before the
FCC within 60 days of full execution.
8. Both parties will jointly announce the settlement for a basic rate reduction and price
stability to the basic only customers in Iowa City. Any press release would be mutually
agreed upon by the parties.
9. It is understood that this agreement will terminate in the event of a determination of
effective competition by the Federal Communication Commissions during its term.
10. It is understood by both parties that this settlement will not be prejudicial to either party's
substantive positions.
Iowa City, Rate Settlement 2003
For MCC Iowa, LLC
Agreed and Executed by:
City of Iowa City,
Ernest W. Lehman, Mayor
Name, Title
/~~, ~~te 1/6/oa
~gfiat~lre ....
Mediacom Communications Corporation,
Name, Title J
Signature
Wimess By:
2
Iowa City, Rate Settlement 2003
For MCC Iowa, LLC
ATTACHMENT A
Since the settlement rate covers two filing periods, Mediacom will FCC Form t240 as a
"Projection Period Only" filing £or both periods. Modifications to Module A, D, F, G, H and I
will be made to produce a Maximum Permitted Rate that justifies the settlement rate through
July 2005. The specific line modifications for each filing period are provided below:
2004 Filing Period 2005 Filing Period
Module A (Settlement Rate) Module A (Settlement Rate)
Line A-1 $11.7500 Line A-1 $11.7500
Module D (Base Rate) Module F & G Not Utilized
Line D2 $ 1.4749
Line D4 $(0.1400) Module H (True-up Calculation)
Line D5 $(1.0097) Line HI2 $ 0.0000
Line D6 $ 0.2502 Line H13 $ 0.0000
Line D7 $ 0.1767 Line H14 $ 0.0000
Module F & G Not Utilized Module I (New Maximum Permitted Rate)
Line 18 - Adjustment to produce a
Module H (True-up Calculation) minimum MPR of $11.7500
Line H12 $ 0.0000
Line H13 $ 0.0000
Line H14 $ 0.0000
Module I (New Maximum Permitted Rate)
Line 18 - Adjustment to produce a
Minimum MPR of $11.7500
3
MINUTES DRAFT
IOWA CITY TELECOMMUNICATIONS COMMISSION
FRIDAY, JANUARY 2, 2004 -- 5:00 P.M.
CITY CABLE TV OFFICE, 10 S. LINN ST.-TOWER PLACE PARKING FACILITY
MEMBERS PRESENT: Kimberly Thrower, Terry Smith, Jim Pusack, Brett Castillo
MEMBERS ABSENT: Saul Mekies
STAFF PRESENT: Drew Shaffer, Mike Brau, Dale Helling
OTHERS PRESENT:
RECOMMENDATIONS TO CITY COUNCIL
The Commission unanimously passed a resolution recommending to the City Council that the negotiated rate
settlement agreement with Mediacom be adopted.
RATE SETTLEMENT AGREEMENT
Smith, who had worked with staff on the agreement provided a synopsis of the agreement. Mediacom raised
their basic tier rate to $13.95 in August and the City contested that amount with Mediacom appealing the
City's rate resolution to the Federal Communications Commission. In the past four months the City and
Mediacom have been working on a rate agreement. The current offer of a rate of $11.75 is the third offer
made by Mediacom and involves several issues. The funding for Public Access Television (PATV) is
provided by Mediacom and passed through the rate base to subscribers. The agreement stipulated that
PATV's annual payment will be amortized over seven years in the FCC rate form used to calculate the
maximum permitted rate. The basic tier rate will be frozen through July, 2005.
Pusack said he was concerned that the agreement stipulated that it will be implemented "as soon as possible"
but did not specify a deadline. Thrower voiced the same concern. Smith said that it is Mediacom's intent to
implement the new rate in the next billing cycle after approved by Council and pointed to a provision in the
agreement that waives the required 30 day public notice of any rate change. Helling said that if Mediacom
did not implement the new rate in the next billing cycle that they would need to show that there was no
possible way to do so.
Smith moved and Castillo seconded a motion to recommend to the City Council that the negotiated rate
settlement agreement with Mediacom be adopted. The motion passed unanimously.
ADJOURNMENT
Smith moved and Castillo seconded a motion to adjourn. The motion passed unanimously. Adjournment
was at 5:15 p.m.
Respectfully submitted,
Cable TV Adminil~~y