HomeMy WebLinkAboutA001 - Council Action Form dated May 26, 2026ITEM #:41
DATE:05-26-26
DEPT:P&H
SUBJECT:PROPERTY REZONING AT 3299, 3312, 3699 EAST 13TH STREET & 1699
570TH AVENUE FROM PRC (PLANNED REGIONAL COMMERCIAL) WITH
THE O-GNE NORTHEAST GATEWAY OVERLAY WITH A CONTRACT
REZONING AGREEMENT TO PRC WITH THE O-GNE NORTHEAST
GATEWAY OVERLAY, THEREBY REMOVING THE CONTRACT REZONING
AGREEMENT
COUNCIL ACTION FORM
BACKGROUND:
R-Pact Holdings, LLC & Jordan Elwell Properties are requesting a rezoning of land located at
3299, 3312, 3699 East 13th Street and 1699 570th Avenue in order to remove a previously
approved contract rezoning agreement from 2005 that was approved when the property was
originally approved as “PRC” (Planned Regional Commercial) with the O-GNE (Northeast
Gateway Overlay).
Approval of the request will maintain the base and overlay zones for commercial
development. (See Attachment A- Location Map). (See Attachment B- Land Use
Designation)
The subject site(s) were at one time approved for a large-scale development of a
regional mall and power retail center. The mall project approval was a multi-year
process of annexation, land use designation, and ultimately a rezoning for the project
that culminated in its approval in 2005, including a Contract Rezoning Agreement that
regulated certain elements of the project with a conceptual development plan. Since
that time, the original developer did not undertake the project and all of the land is now under
common ownership by a different entity. (See Attachment F- Contract Rezoning Agreement)
The current land owner has no plans to develop a regional mall and lifestyle shopping
center on this site. The owner has previously addressed City Council with
correspondence, most recently Fall 2025, seeking a change to the agreement. City
Council concurred with proceeding with a proposed change.
The owner is requesting through the rezoning process to remove the contract rezoning
agreement as the agreement pertains to development of a regional mall lifestyle center
since the owner has no plans for that style of development. The applicant’s statement is
provided in Attachment E.
The requirements of the current agreement included mandating concurrent development of
both the north and south sites on either side of 13th street consistent with a concept
development plan. The agreement also included requirements for minimum anchor store size
in the mall, evidence of leases and financial conditions as well as certain obligations for
extending water and sanitary sewer infrastructure to the site and street improvement
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obligations, among other items. A more detailed breakdown of the items in the contract are
included in an Addendum below.
The agreement originally referenced a concept development plan to be replaced with approval
of a more specific Masterplan for the regional mall project. The former developer received a
Masterplan approval in 2006 in connection with the agreement requirements. This Masterplan
approval would also be nullified as a result of removing the Contract Rezoning Agreement. An
excerpt of the Masterplan is included in Attachment D below.
Since the time of the original approval, the City adopted a new Comprehensive Plan, Ames
Plan 2040. The Plan designates the properties as the “Community Commercial Retail”
(Com-CR) (See Attachment C) Land Use designation. Adjacent to the site, land use
designations include Employment for land to the east south of 13th and RN4 and RN5 for
Residential development east and northeast of the site. Applicable zoning categories for
Community Commercial Retail include the current PRC zoning that is the proposed base
zoning of the application.
Removal of the contract rezoning agreement maintains the current PRC zoning and O-
GNE overlay district standards, which is consistent with Ames Plan 2040.
Public Outreach
Staff mailed a Notice of this action to property owners within 400 feet of the boundaries of the
zone. Rezoning Notice Signs have also been posted at the site.
Planning & Zoning
At the May 6th Planning & Zoning Commission meeting the Commission considered this
rezoning request. Staff presented the issue. The owner introduced themselves but had no
comments. The Commission did not have any further questions. No other discussion was had.
The Planning & Zoning Commission voted 6-0 to recommend City Council approve the
rezoning.
ALTERNATIVES:
1. The City Council can approve on first reading the request to rezone the properties
located at 3299, 3312, 3699 East 13th Street and 1699 570th Avenue from “PRC”
(Planned Regional Commercial) with the O-GNE (Northeast Gateway Overlay) and a
Contract Rezoning Agreement to “PRC” (Planned Regional Commercial) with the O-
GNE (Northeast Gateway Overlay), thereby removing the Contract Rezoning
Agreement, and to approve a resolution rescinding the Masterplan approval.
2. The City Council can deny the request to rezone the properties located at 3299, 3312,
3699 East 13th Street and 1699 570th Avenue and maintain the current rezoning
agreement.
3. The City Council can defer action on this item for 30 days and request more information
from the applicant or staff.
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CITY MANAGER'S RECOMMENDED ACTION:
The owner is requesting removal of the Contract Rezoning Agreement that was approved in
2005. The owner has no plans to ever construct a regional mall and lifestyle center as was
envisioned in the Contract Rezoning.
Although there is no specific proposal for the site at this time, the developer desires to
develop commercial on the site in the future. The current agreement based upon
development of a mall is a hinderance to the process because of the uncertainty it
creates about changing it and adds additional time to a future project approval process.
A Masterplan approved in 2006 will also be nullified with a Resolution as a separate action in
conjunction with the elimination of the Contract rezoning requirement.
Staff agrees that the regional mall concept is not feasible and likely will never be
feasible in the current economic development world based upon regional competition
in Altoona and West Des Moines, as well as internet based retail. If a mall were to be
become feasible, the owner could once again propose such a project under the PRC and O-
GNE zoning.
Although the contract rezoning agreement addresses a number of improvement
requirements for the developer, future development will still be subject to subdivision,
master plan/site development plans to ensure property coordination of public
improvements occurs. Therefore, eliminating the requirements established with the
initial rezoning will not be a detriment to the general welfare of the community because
of the remaining zoning standards and City development review processes that would
still apply to a future project.
Development of commercial at this location is an important part of the City’s
Comprehensive Plan as a premier site for commercial development within the city due
to access and visibility. However, a mall is not an essential development option to fulfill
the City’s desire for commercial development on these sites. Therefore, it is the
recommendation of the City Manager that the City Council adopt Alternative #1.
It should be noted that a companion text amendment to the O-GNE standards that
simplifies the review process and removes requirements that were originally based
upon a mall design concept will be presented to City Council in June.
ATTACHMENT(S):
Addendum.pdf
Attachments A-E.pdf
Attachment F- Rezoning Agreement.pdf
East 13th St and 570th Ave Rezoning ORD.pdf
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ADDENDUM
Ames Plan 2040. The Future Land Use Map classifies the land proposed for rezoning as
“Com-CR” (Community Commercial Retail). The zoning being maintained for this site is
supported by the Com-CR designation. No change to Land Use is proposed or occurring
as a result of this rezoning. Maintaining the site for commercial use is consistent with Plan
2040.
Proposed Zoning. The applicant proposes to remove the Contractual Rezoning
Agreement on the property while maintaining both the current PRC zoning and O -GNE
overlay standards. No change in actual zoning type is being proposed.
The O-GNE, which is being maintained, was primarily intended to be applied to this
commercial area with a regional shopping center. The Overlay has been applied to this
location since 2005. It was developed in conjunction with the mall approval and attempted
to address a number of design and compatibility issues for large scale mall project. Given
that the O-GNE addresses commercial designs with guidelines and standards that are
important for large scale general commercial development, it is being maintained in
conjunction with the PRC zoning designation. The base zone and overlay would still allow
for various types of commercial developments including shopping centers and other
commercial uses.
The owner has no plans to construct a regional mall which is the main basis of the O-
GNE and a master plan. A Masterplan approved in the December 2006 for a regional
mall and lifestyle center is being removed with the removal of the contract rezoning
agreement.
Changes to the O-GNE will be considered in the future to address the specifics of
commercial development and mall based requirements that are no longer
desirable. Protections for Ketelsen Marsh in rural Story County to the north of this site
are maintained in the O-GNE standards.
Contract Rezoning Agreement. The contract rezoning agreement was approved in
November of 2005. The agreement set expectations and requirements on several aspects
of site development at that time. The primary purpose was to ensure a certain manner of
development occurred in accordance with the expectations of the intended use of a
regional mall and to ensure the development materialized in the interests of the
community in a planned, orderly fashion to protect public health, safety and general
welfare and in the event the project was not feasible certain claw backs, remedies and
releases were attainable.
The main items included in the Agreement are outlined below:
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• Requirements on minimum anchor store size and number of stores.
• Construction of areas north and south of 13th Street within a given time period of either
side.
• Evidence of equity and financing by the developer.
• Evidence of a minimum number of leases within a given timeframe.
• Verification of retail outlets that must be new to the community.
• Requirements for construction of infrastructure such as Sanitary Sewer, Water Main
construction and Storm Sewer.
• Requirements and responsibilities for street construction and improvements.
• Other legal requirements and protections.
If the rezoning is approved, these agreement requirements will no longer apply and
development will occur under standard zoning and subdivision processes. Future
development will still be subject to a public hearing either due to subdivision
proposal or by requirements of the O-GNE for a Master Plan approval of a project.
Existing Uses of Land. Land uses that occupy the subject property and other
surrounding properties are described in the following table.
Direction from Subject Property Existing Primary Land Uses
Subject Property Farmland / Undeveloped
North Farmland/ Undeveloped
East Farmland/ Undeveloped/ Industrial
Warehouse
South Farmland/ Undeveloped, Railroad and
some rail siding, Barilla to the south
West Interstate 35 along with Industrial &
Commercial
Infrastructure. No infrastructure considerations are necessary with this action. Since the
original approval, water main infrastructure exists that can serve the site along with a
trunk line sewer extension across the south property frontage.
Any future development on this site must meet any additional requirement for
infrastructure on its own beyond what has already been installed. Site access, frontage
improvements, shard use path extension, 270 th paving, and internal water and sewer
extension will be addressed at the time of a future development.
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Findings of Fact. Based upon an analysis of the proposed rezoning and laws pertinent
to the proposed map amendment, staff makes the following findings of fact:
1. The subject property is owned by R-Pact Holdings, LLC & Jordan Elwell Properties. The
rezoning request and statement of justification is included as Attachment E.
2. Ames Municipal Code Section 29.1507(1) allows the property owner to initiate an amendment
to the Official Zoning Map.
3. The proposed rezoning is consistent with the classification of “Com-CR” (Community
Commercial Retail) identified on the Ames Plan 2040 Future Land Use Map described on
Attachment C.
4. Development in the “PRC” and O-GNE zoning district requires a Master Plan and site
plan review process to assure that such development and intensity of use assures a
safe, functional, efficient, and environmentally sound operation.
5. Potential impacts on infrastructure and City services for this site are consistent with
what is already anticipated for the area.
Public Notice. The City provided mailed notice to all property owners within 400 feet of
the subject property prior to the Planning and Zoning Commission meeting in accordance
with the notification requirements of Chapter 29.
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Attachment A- Location & Zoning
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Attachment B- Land Use Map
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Attachment C -Land Use Guiding Principles
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Attachment D- 2006 Master Plan
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Attachment E- Applicants Statements
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: William D. Banine. The Firancial Center.666 Walnul Suite 2000. Des Moines.lA 50309-3989. 515-243-7100
AN AGREEMENT PERTAINING TO TEE REZONING
A}ID DEVELOPMENT OF LANI)
IN THE CITY OF AMES
THIS AGREEMENT, made and entered into this 7L day of lb?bttl!4
2005, by and between the CITY OF AMES, IOWA, a municipal corporation (hereinafter called
"City") established pursuant to the Iowa Code and acting under the authorization of Iowa Code
Chapter 414 (2005); and WOLFORD DEVELOPMENT OPTIONS, L.L.C., aNevada limited
liability company, its successors and assigns (all hereinafter collectively called "Developer").
WITNESSETH THAT:
WHEREAS, the parties hereto desire the improvement and development of an area
legally described as set out on Appendix A, hereinafter called the "Site;"
WHEREAS, Developer has petitioned the City requesting that zoning regulations of the
City be changed to rezone the Site from a zoning district classification of Agricultural ('A) and
Planned Industrial C'PI), as applicable, to the Planned Regional Commercial ("PRC") zoning
district.
WHEREAS, the Parties agree that said zoning change should occur subject to imposition
on Developer of conditions that are in addition to existing regulations ofthe City, all as provided
for by Iowa Code $ 414.5 (2005);
NOW, IUEREFORE, the parties hereto have agreed and do agree as follows;
ARTICLE 1.
INTDNT AND PURPOSE
t.l IntenL
It is the intent of this Agreement to provide for the development of a planned regional
commercial center that will serve not only the City, but also the surrounding market area. Such
commercial center is characterized by a lifestyle center north of East 13th Street and a power
center south of East 13th Street, both of which shall include anchor stores, and free-standing
retail, dining and entertainment establishments served by common parking areas. The
provisions of this Agreement, coupled with the ordinances of the City of Ames, Iowa, will
facilitate dwelopment in a planned, orderly fashiorl so as to protect public healttr, safety, and
general welfare, in accordance with the Lffd Use Policy Plan of the City.
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1,2 Puroose.
Therefore, it is the purpose ofthis Agreement to:
A. Document, record, and give notice of a certain plan of development, and the
public and private measures and undertakings essential to the implementation of that plan of
development. for the Site,
B. Provide remedies to the City in the event the said plan of development is not
adhered to or achieved by the Developer.
C. Provide parameters for requests for releases of the Developer in the event
project completion is not feasible, and upon completion ofthe planned improvements,
This Agreement does not create or vest in any person or organization other than the City
any rights or cause of action with respect to any performance, obligation, plan, schedule or
undertaking stated in this Agreement witi respect to the Developer or the Project, This
Agreement does not prevent the City from amending, modifying, or releasing the Developer
from some or all ofthe provisions of this Agreement. No person shall have ary cause of action
or recourse against the City or Developer by reason of any suoh amendment, modificatiotl or
release.
ARTTCLE 2.
DEFINITIONS
2,1 Definitions.
In addition to other definitions set forth in this Agreement, all capitalized terms used and
not otherwise defined herein shall have the following meanings unless a different meaning
clearly appears from the context:
A. Asreement means this Agreement Pertaining to Rezoning and Development
of Land in the City of Ames and all appendices hereto, as the same from time to time may be
modified, amended, or supplanted.
B. Qjlg means the City of Ames, Iowa, or any successor to its functions.
C. Concentual Site Plan shall
conceptual development plan for the Site as
incorporated herein by tlis reference.
mean the graphic depiction of Developer's
shown in Appendix E attached hereto and
D. Developer means Wolford Development Options, L.L.C., a Nevada limited
liability oompany, and its lessees, licensees, successors and assigns.
E. East Barilla Site shall mean that area of land described on Appendix D
hereto,
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F. I'HWA shall mean the Federal Highway Administration, an agency of the
United States of America.
G. Gross Buildins Area (GBA) shall mean the area of a building measured to
the exterior face ofthe buildine line without deductions.
H. Iown Code shall mean the Iowa Code (2005).
I. IDOT shall mean tlre Iowa Department of Transportation, an instrumentality
ofthe State of lowa.
J. Maior Anchor Store shall mean
80.000 square feet GBA.
a Retail Store containing not less than
K. Minor Anchor Store shall mean a Retail Store containing more than 10,000
square feet GBA and less than 80,000 square feet GBA" and also includes a multi-screen movie
tieatre.
L. North Site shall mean that arca of land described by Appendix B attached
hereto.
M. Outoarcel shall mean a separately platted tract of land within the Site that
will legally support free-standing buildings and designated as such on Appendix E.
N. Proiect shall mean a lifestyle shopping center and related improvements to be
constructed on the North Site and a power center and related improvements as defined in tlis
Agreement to be constructed on the Souti Site.
O. Rezoning Ordinance shall mean an ordinance subjecting the Site to the
Planned Regional Commercial District, and North East Gateway Overlay District zoning
regulations of tle City.
P. REA shall mean the form of reciprocal easement agreement entered into by
and among the Developer and the owners of the ldajor Anchor Stores, as amended from time to
time. The City acknowledges that it is possible that there may be separate REAs for the North
Site and the South Site; therefore, the term "REA' shall refer to the reciprocal easement
agreements, collectively.
a Retail Store (which may be a Major Anchor Storg a Minor Anchor Store, or
a Specialty Store) shall mean a store or similar commercial concern incorporating one or more of
the operations typically found at a shopping center or a lifestyle center including without
limitation the sale ofgoods and services, entertainment uses, and ofEce uses.
R, Site shall mean the land legally described in Appendix A attached hereto.
The Site includes the North Site. the South Site. and the East Barilla Site.
S. Soecialtv Store shall mean a Retail Store containing less than 10,000 square
feet GBA.
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hereto
T. South Site shall mean Ihat area of land described by Appendix C attached
U. SUDAS shall mean Statewide Urban Design and Specifications, current
edition.
V. Trallic Studv shall mean the October 2003 traffrc study by HWS Consulting
Group, Inc. entitled "I 35 and E. l3th Development."
iffif^1%
3,1 RezoninsOrdinance.
This Agreement shall be construed under Iowa Code $ 414.5 as a wdtten agreement by
Developer for the imposition of conditions that are in addition to existing regulations, which
Agreement has been entered into by Developer and City prior to the public hearing required
under $ 414.5. Dweloper understands and agrees that the execution of this Agreement is a
condition precedent to any action by the City in holding a public hearing on the Rezoning
Ordinance or taking any council action with respect to a rezoning ordinance. City and Developer
agree that the conditions contained in this Agreement are reasonable and the result of extensive
negotiations between the parties, and that the conditions and requirements imposed upon the
parties herein are necessary to satisry public needs that are directly caused by Developer's
rezoning request.
3.2 Effective Date of Rezonine Ordinance.
A. City and Developer agree that this Agreement is the binding obligation of
Developer immediately upon Developer's execution and delivery of this Agreement to the City
before tlre public hearing required under lowa Code $414.5, subject to final passage of the
Rezoning Ordinance by the City Council in accordance with Iowa Code g 380.3. In addition to
binding the Dweloper, the City desires that the effect of the Rezoning Ordinance shall be to
make this Agreement a coveoant running with the land subjeoted to the Rezoning Ordinance at
such time as Developer acquires fee simple title to that land. Because the Rezoning Ordinance
shall become effective under Iowa Code g 380.6 only when published in accordance with Iowa
Code $ 380.(3), it is agreed by Developer that the City Council may direct the City Clerk to
defer publication of the Rezoning Ordinanoe until Developer gives proof to the City by an
opinion oftitle by an attorney at law who has examined the abstract oftitle of the land that is the
subject of the Rezoning Ordinance that fee simple title to that land has been conveyed to
Dweloper. At the time of such publication" the Agreement shall be a covenant valid and binding
on the Developer and the land subjected to the Rezoning Ordinance,
B. The City may enact the Rezoning Ordinance for the Site. If the aforesaid
opinion of title with respect to the Site is not delivered to the City as aforesaid by the ls day of
December, 2007, the City may repeal or change the Rezoning Ordinance, and Developer shall
have no cause of action against the City for or by reason ofsuch repeal or change.
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3,3 Effect of Aereement,
Developer and City shall diligently and in good faith proceed to comply with all of the
terms, conditions, and covenants contained in this Agreement, and all ordinances ofthe City of
Ames, Iowa. The City shall have no obligation to issue any approvals with respect to any
grading, excavation, construction, reoonstructiolr, or remodeling on the North Site until the City
Council determines that the Master Plan for the Site and Major Site Development Plan submitted
by Developer for the North Site comply with the requirements of the ordinances and policies of
the City of Ames and this Agreement. The City shall have no obligation to issue any approvals
with respect to any grading, excavation, construction, reconstruction, or remodeling on the South
Slte until the City Council determines that the Master Plan for the Site and Major Site
Development Plan submitted by the Developer for the South Site comply with the requirements
ofthe ordinances and policies ofthe City ofAmes and this Agreement. Consistent with Section
4.4 hereof, the Master Plan and the Major Site Development Plan shall show the East Barilla Site
as property for future development.
3,4 Concertual Site Plan.
The Conceptual Site Plan shall be supplanted by the Master Plan when approved by the
City pursuant to the O-GNE Ordinance, which in turn shall be supplanted by the Major Site
Development Plan when approved by the City for the respective portions ofthe Site.
ARTICLE 4,
IMPROVf,MENTS TO BE CONSTRUCTED
4.1 I)eveloner's Obligation to Construct.
The Developer agrees to construct a regional commercial lifestyle center on the North
Sitg and may construct a regional oommercial power center on the South Site, all in a manner
that is consistent with the ordinances and polioes of the City, and this Agreement. Developer
shall also construct certain on-site and off-site infrastructure improvements in support of tlre
Projecg all as required by Article 7 ofthis Agreement.
4.2 North Site Imorovements.
Developer agrees to construct or cause to be constructed a minimum of four hundred
ninety-eight thousand (498,000) square feet GBA of buildings and other regional commercial
improvements on the North Site, exclusive of Outparcels, as follows:
A. Two (2) Major Anchor Stores totaling at least one hundred sixty thousand
(160,000) square feet GBA;
B. A combination of Major Anchor Stores, Minor Anchor Stores, and Specialty
Stores totaling at least four hundred ninety-eight thousand (498,000) square feet GBA; and
C. Subject to the requirements of Sections 4.2.A and 4.2.8, above:
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5.2 ConstructionPeriod.
A. North Site, Developer agrees to complete the construction ofthe exteriors of
buildings having not less than 498,000 square feet GBA as described in Section 4.2, and the site
and off-site improvements relating thereto within three (3) years from the date of issuance to
Developer or its assigns ofthe first building permit related to any portion of the North Site.
B. South Site. Dweloper agrees, exercisable at its option, to complete the
construction of the exteriors of buildings having not less than 300,000 square feet of GBA
described in Section 4.3, and the site and off-site improvements relating thereto, within three (3)
years from the date of issuance to Developer, or its assigns, ofthe first building permit related to
ary portion of the South Site,
5,3 Conditions Precedent to Citv's Obligation to Issue Permits and Auorovals - North Site.
The City shall have no obligation to issue any permits or approvals in connection with the
North Site until the Developer has satisfied each and every one of the following conditions
precedent:
A. Submission of Evidence of Eouitv Capital and Financine. Developer shall
submit to the City evidence of equity capital and written commitments for funding and financing
necessary for completion of the North Site. The commitments for financing shall be
unconditional commitments to provide construction mortgage financing and shall provide for a
loan-to-value ratio as determined by Developer's lender, subject to customary conditions based
on the Developer's performance of certain obligations prior to receiving funding including, but
not limited to, preJeasing requirements, covenants pertaining to title, provision of mechanic's
lien waivers, inspection duties, approval of the construction budget of Developer's general
contractor for the North Site, and other commercially reasonable due diligence requirements.
The level of equity capital shall be deemed acceptable hereunder if provided in the amounts
required by Developer's lenders.
B. Submission of Evidence of Leases. Developer shall submit to the City
evidence of binding Iease or sale commitments (which may be in the form of so-called short-
form leases or memoranda of sales contracts) from purchasers or tenants for the North Sile, as
follows:
L Developer shall submit to the City fully executed binding lease or
sale transaction instruments as referenced in Section 5.3.B above with at least
three hundred twenty-nine thousand (329,000) square feet GBA of Major
Anchors, Minor Anchors, and Specialty Shops, ofwhioh there must be: (a) at least
two Major Anchor Stores having an aggreEale area of not less than one hundred
sixty thousand (160,000) square feet cBA; O) at least eighty thousand (80,000)
square feet GBA ofRetail Stores that did not have a store open for business in the
City as of December 31, 2004; AND (o) not less than forty thousand (40,000)
square feet GBA ofMinor Anchor Stores.
2. Rental or purchase price information may be redacted.
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L At least one hundred sixty thousand (160,000) square feet GBA of
such space must be Retail Stores that did not have a store open for business in the
City as ofDecember 3 l, 2004; and
2. At least eighty thousand (80,000) square feet GBA ofthe above-
stated 160,000 square feet GBA shall be Minor Anchor Stores.
4.3 South Site Improvements.
Developer agrees to construct or cause to be constructed, exercisable at Developer's
option, a minimum of thnee hundred thousand (300,000) square feet GBA ofbuildings and other
regional commeroial improvements on the South Site, exclusive of Outparcels, that shall include
at least one (l) Major Anchor Store ofnot less than eighty thousand (80,000) square feet GBA.
The balance ofthe said three hundred thousand (300,000) square feet GBA ofbuildings shall be
comprised of either Major Anchor Stores, Minor Anchor Stores, and/or Specialty Stores.
4.4 No East Barilla Site Imorovements Reauired.
Developer and City agree that Developer shall not be required to construct any regional
commercial improvements on the East Barilla Site pursuant to the terms of this Agreement.
Developer acknowledges that it shall submit a Master Plan for the East Barilla Site as property
for future development at the time that Developer seeks Master Plan approval for the North Site
or the South Site, but that it may be required to submit a new Master Plan for the East Barilla
Site in the future if the development plans of Developer or its successors and assigns for the East
Barilla Site vary materially from the approved Master Plan for the East Barilla Site.
4,5 Force Maieure.
With respect to the requirements of this Article 4, it is understood that delays could result
from causes that may reasonably be presumed to be beyond the control of either pa(y. Those
causes are agreed to be: governmental war measures, wind storms, or labor strikes. Both parties
shall, in good fait[ use such effort as is reasonable under all the circumstances known at the
time to mitigate delays caused by such events and make reasonable allowances ofadditional time
for performance of the requirements of this Article when any event as aforesaid causes an
unavoidable delay. Any party desiring an allowance of additional time for performance shall
give witten notice thereof to the other party within 20 days of the occurence of the event that
caused or will cause delay.
ARTICLtr 5.
TIMING AI\D BI]ILD-OUT OF THE PROJECT
5.1 Single-PhaseConstruction,
Dweloper agrees to construct, or cause to be constructed, the improvements described in
Sections 4.1, 4.2 nd 4.3 for both the North Site and, when applicable, the South Site,
concurrently and not in phases.
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5.4 Conditions Precedent to Citvrs Oblisation to Issue Permits and Anorovals - South Site"
The City shall have no obligation to issue any permits or approvals in connection with the
South Site until the Developer has satisfied each and every one of the following conditions
precedent:
A. Submission ofEvidence ofEquity Capital and Financing. IfDeveloper elects
to construct power center improvements on the South Site, Developer shall submit to the City
evidence of equity capital and written commitments for funding and financing necessary for
completion of the South Site. The commitments for financing shall be unconditional
commitments to provide construction mortgage financing and shall provide for a loan-to-value
ratio a$ determined by Developer's lender, subject to customary conditions based on the
Dweloper's performance of certain obligations prior to receiving funding including, but not
limited to, pre-leasing requirements, covenants pertaining to title, provision of mechanic's lien
waivers, inspection duties, approval ofthe construction budget ofDevelope/s general contractor
for the South Sitg and other commercially reasonable due diligence requirements. The level of
equity capital shall be deemed acceptable hereunder if provided in the amounts required by
Developer's lenders.
B. Submission of Evidence of Leases. Developer shall submit to the City
evidence of binding lease or sale commitments (which may be in the form of so-called short-
form leases or memoranda of sales contracts) from ourchasers or tenants for the South Site- as
follows:
1. Developer shall submit to the City fully executed binding sale or
lease transaction instruments as referenced in Section 5.4.8 above with at least
one Major Aachor Store and with additional Major Aachor Stores, Minor Alchor
Stores, and Specialty Stores having an aggregate area ofnot less than fifty percent
(50%) ofthe number determined by subtracting the actual total square feet GBA
of such Major Anchor Store from three hundred thousand (300,000) square feet
GBA required under Section 4.3 hereof
2. Rental or purchase price information may be redacted.
5.5 Procedure for Review of Information. Decisions by the City as to whether information
submitted by the Developers satisfies the requirements of Sections 5.3.d 5.3.B, 5.4.A and 5.4.B
above shall be made by the City Afiorney.
5.6 Irsuance of Permits and Approvals.
A. The City shall not be obligated to issue any permits or approvals for any
portion ofthe Site until Developer has provided fue protection service, sanitary sewer service,
and interior all-weather construction road service to the property lines of the North Site and the
South Site as required to support Dweloper's construction activities. There shall be no
obligation to provide interior construction road service for the Soutl Site until the Developer
takes out building permits fcr the South Site.
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B. The City shall not be obligated to issue any permits or approvals with respect
to the South Site until the City issues to the Developer, or its assigns, all permits and approvals
that will support the construction ofat least 329,000 square feet GBA in accordance with Section
5.3.B.1,
ARTICLE 6.
OTHER RESTRICTIONS
6.1 Waiver of Tax Abatement,
In consideration ofthe City's execution ofthis Agreement, Developer hereby covenants
that it shall not seek or obtain any form of tax abatement with respect to the Site, whether
authorized under the Iowa Code or the Municipal Code of the City, and Developer, acting on its
own behalf and for its successors and assigns, hereby irrevocably and permanently waives any
right that it may have under law to seek or obtain any form oftax abatement with respect to the
Site.
6.2 General Anplicabilitv of Other Laws and Ordinances.
The parties acknowledge and agree that this Agreement is being executed in
contemplation of the Conceptual Site Plan, but without further review or approval of specific
plans for the Project. Therefore, the parties acknowledge and agree that it is not possible to
anticipate all of the infrastructure requirements of Developer that may be required to properly
develop the Site. Therefore, the parties agree that all work done by or on behalf of the Developer
with respect to public streets, sidewalks, bike paths, building design and construction, and
utilities Ooth on-site and off-site) shall be made in compliance with the Iowa Code, the Ames
Municipal Code, SUDAS, and all other federal, state, and local laws and policies of general
applicatiorl whether or not such requirements are specifically stated in this Agreement.
ARTICLE 7.
PT'BLIC INT'RASTRUCTURE
7.1 Comoliance With Ordinances and Other Rules of General Aoolication.
All work perfiormed pursuant to this Article 7 shall be done in good and workmanlike
fashiotL in compliance with StlDAS, City ordinances, rules, regulations, and standards that are
generally applicable to all development projects regulated by the City, and all such work shall be
approved in advance by the City in accordance with standard practices ofthe City.
7.2 Water.
A. East 13th Street East to 570th Avenue. Developer shall pay City a connection
fee ofForty-one thousand Dollars ($41,000.00) for the right to connect to the existing City water
main along East 13th Street west ofits intersection with 570th Avenue.
B. 570th Avenue North of East 13th Street. Developer, at its cost shall, in
conjunction with Developer's construction activities and prior to the issuance ofany City permits
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or approvals, extend a twelve-inch (12") water main from East 13th Street north along 57fth
Avenue to the northern boundary ofthe North Site.
C. East l3th Street East of 570th Avenue. While Developer shall be obligated at
its cost to extend a twelve-inch (12") water main along East 13th Street through and east of its
intersection with 570th Avenue to the eastern boundary ofthe East Barilla Site, such obligation
for the extension east of 570' Avenue shall arise only at such time that Developer fites a final
plat affecting the East Barilla Site, and Developer shall not be obligated to construct such water
main until the City approves a final plat covering all or part of the East Barilla Site. However,
the Developer and the City agree that if development by anyone occurs on land in the vicinity of
the Site, and East of 570'o Avenue, the Developer shall proceed immediately with the
construction ofthe said water main upon receipt of written notice from the City to do so.
D- Early Development East of the Site, The City and Developer acknowledge
that one ofthe inducements to the City for enactment ofthe Rezoning Ordinance is the extension
ofa water main eastward from 57oth Avenue to the eastern boundary ofthe Sitg and north of
East 13th Street along 570th Avenue to the northem boundary of the Site, for purposes of
facilitating the economic development of the land lying east of the Site. If such development
begins before December 1, 2007, the Clty may construct the aforesaid water main and the
Developer shall reimburse the City for each progress payment and final payment made by the
City for that worh within ten days ofthe City's notice to Developer ofa payment having been
made. The Developer shall have no obligation to reimburse the City as aforesaid until such time
as the Developer has acquired title to the Site. If the Developer acquires title to the Site while
such work is in progress or after it is completed, the Developer shall then reimburse the City for
all payments made by the City for such work not later than ten days following a request for
payment by the City.
7,3 Sanitarv Sewer,
A. Initial Obligation of Developer. In conjunction with Developer's construction
activities and prior to the issuance of any City permits or approvals with respect to the North Site
or the South Site, Developer at its sole cost wilt extend a trunk eighteen inch (18,') sanitary sewer
line within existing city right-of-way along East 13th street from Dayton Avenue to 570th
Avenue; and, a twelve inch (12") sanitary sewer line along 570b Avenue fiom East l3t Street to
tlte north line of the North site. while Developer shall be obligated, at its cos! to extend a
twelve inch (12") sanitary sewer main along East 136 Street through and east of its intersection
with 570* Avenue to the eastem boundary of the East Barilla sitg such obligation for the
extension east of570ft Avenue shall arise only at such time that Developer or its Juccessors and
assigns file a final plat affecting the East_ Barilla Site, and Developer shall not be obligated to
construct such sanitary sewer east of 570fr Avenue until the city approues a final plat Jovering
all or part of the East Barilla site. However, the Developer and city agee that if development
occurs on the land in the vicinity of the site, east of 570'D Avenue, the Developer shall proceed
immediately with the construction of the said sanitary sewer upon receipt of written notiie from
the City to do so.
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B. Develooer's Obligation at Time of Subdivision. In connection with the final
platting proceedings for any portion ofthe Site, Developer shall extend sewer mains to service
each portion ofthe Site that is so plafted.
C. Early Development East of the Site, The City and Developer acknowledge
that one ofthe inducements to the City for enactment ofthe Rezoning Ordinance is the extension
of sanitary sewer service eastward from Dalton Avenue to the eastern boundary ofthe Site, and
north ofEast 13th Street along 570th Avenue to the northem boundary ofthe Site, for purposes o
facilitating the economic development of the land lying east of the Site. If such development
begins before December l, 2007, the City may construct the aforesaid sanitary sewer extensions
and the Developer shall reimburse the City for each progress payment and final payment made
by the City for that work, within ten days of the City's notice to Developer ofa payment having
been made, The Developer shall have no obligation to reimburse the City as aforesaid until such
time as the Developer has acquired title to the Site. If tbe Dweloper acquires title to the Site
while such work is in progress or after it is completed, the Developer shall then reimburse the
City for all payments made by the City for such work not later than ten days following a request
for payment by the City.
7.4 Water and Sanitarv Sewer Extension Benefits Adiustment.
For the purpose of assessing the costs of water and sanitary sewer utility extensions on
the basis of benefit to land areas, it is recogaized that the City has the authority, and shall take all
necessary action, to establish water and sanitary sewer utility connection fee districts pursuant to
the procedures provided for by lowa Code g 3S4.3S(3). The City shall, subject to its
govemmental discretion, establish such districts with respect to the areas of land that are not a
part ofthe Site but which will be served and benefitted by the extension of water and sanitary
sewer.utilities pursuant to this Agreement; and the money collected by tlre City by virtue of such
districts shall be disbursed to the Developer to such extent and in such amounts as the City shall
determine to be an equitable adjustment for the benefit provided to the areas within such districts
by virtue ofthe Developer's construction ofwater and sanitary sewer utility facilities as required
by this Agreement.
7.5 Storm Water.
Developer, at its cost, will construct all storm water 'Best Management
Practices" for water quality and quantity control facilities on the Site and off-site to the extenr
necessary to support the management of storm water drainage and disposal from the Site. Such
construction shall be when and where it is deemed necessary by the City in consultation with the
Developer to assure the proper function ofthe storm water management system for the Site.
7.6 f,lectric.
Developer, at its cost shall install or relocate all streetlights along public streets in the
Site; and, along l3'Street east fiom the east exit ramps for I-35; and, along 570s Avenue north
of its intersection with 13* Street; and, along l3h Street east of 570h Avenue to the eastem
boundary ofthe East Barilla Site at such time as when street improvements east of570t Avenue
are required.
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7,7 Bicvcle/PedestrianPaths.
Developer will extend a l0 foot wide bike path on the north side of East 13th
Street from the eastem edge ofthe paving ofthe north entrance ramp for I-35 to the eastern edge
of the North Site.
7.8 Cv-Ride,
Developer will contribute Fifty Thousand Dollars ($50,000) for the acquisition of
a bus and will construct drop/off and turn-around facilities at both the North Site and the South
Site, ifthe South Site is developed.
7.9 Streets.
A. Interstate I-35 / East l3th Street Interchanqe. Developer, at its sole cost, shall
complete all studies, designs, and construction of improvements required by the IDOT and the
FIIWA with respect to the Interstate I-35/East 13th Street interchange.
B, East l3th Sfieet and 570t Avenue Improvements.
L City Responsibility. It is recognized that the existing two lanes of
roadway on East 13th Street adjacent to the Site, extending from the easterly most
point of the I-35 interchange rarnp to the east line of the East Barilla Site are
deteriorated and in need of reconstruction; and, that the costs of that
reconstructing is the City's responsibility. It is also recognized that it will be more
effrcient for the Developer to do that reconstruction work in the context of other
improvements to East 13th Street for which Developer has agreed to be
responsible. It has been determined by the estimates of the City's engineers that
the cost for reconstruction ofthe said two lanes ofEast 13th Street is equivalent to
the cost of the contemplated paving of570th Avenue north of East 13th Street to
the north boundary of the Site. Therefore, in consideration of the Developer
causing the reconstruction of the said existing two lanes of East 13th Strest
roadway to the standsrds of the City, and to be compliant u/ith the statutory
requirements for public bidding of street improvements, the City shall, subject to
its governmental discretion and in accordance with statutory procedures, award a
contract for the construction of the 570- Avenue roadway to City standards for
the full width of the roadway from the north line of East 13th Street to the north
line ofthe Site.
2. Develooer Responsibilitv. The Developer shall construct at its sole
expense, to the standards of the City, all the improvements stated in the Traftio
Study, plus the reconsfiuction to City standards ofthe full width of roadway on
East l3th Street adjacent to the Site, extending from the easterly most point on tle
I-35 interchange ramp to the east line ofthe Site. Notwithstanding the foregoing,
Developer and City agree that Developer shall not be required to construct any
East l3tl Street improvements east from 570th Avenue to the east boundary of
the East Barilla Site until a final plat is filed with respect to the East Barilla Site.
However, the Developer and City agree that if development by anyone occurs on
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land in the vicinity of the Site, and east of 570' Avenue, or if improvements are
needed due to road condition or traffic volume, the Developer shall proceed
immediately with the construction of the said East 13u Street east from 570rr
Avenue to the east boundBry ofthe East Barilla Site as an industrial street meeting
City standards, plus the improvements for that street segment detailed in the
above stated Traffrc Study, upon receipt of witten notice fiom the City to do so.
C. Developer Responsibility for Traflic Study Work. By way of specification
but not limitation it is agreed that Developer, at its sole cost, shall construct all of the roadway
and right-oflway improvements speoified in the Traffic Study, including, without limitation, lane
widening/reconstruction, turn lanes, and traffrc signals, plus work required by the FHWA or
IDOT, but excluding work to be performed by the City pursuant to Sestion 7.9(BXl) hereof. If
the Tra.flic Study is modified and such modifications are approved by the City, Developer shall
be bound by such modifications to the Traffrc Study.
D. East l3th Street Access Points. The City acknowledges that the Developer
shall be allowed access points for the Site as shown on Appendix E, conceptual Site Plaq subject
to the requirements of tJre IDOT, the City, and the FHWA.
7.lO Permits and Apnrovals Withheld
It is understood and agreed that the City shall issue no permits or approvals with respect
to any work or installations on the Site until Developer has perficrmed or completed all of
Developer's obligations under Article 7 or work is in progress to complete those obligations. If a
permit or approval is issued by the City based on such work in progress, and such progress
should cease for any reason, the City shall issue no further permits or approvals until progress on
such work is resumed.
?.11 Letter of Credit
To secure the completion of the publio infrastructure .requirements of Artiole 7,
except for interchange improvements and improvements east of 570- Avenue, Developer shall
provide as a condition for approval ofa final plat a letter of credit to the benefit ofthe City in
such amount as shall be reasonably required by the City's engineers, in a form approved by the
City's attorney. Said letter of credit shall be maintained in effect until the said infrastructure
requirements are completed and accepted by the City, but the letter of Credit may be replaced in
lower amounts to reflect work that has been completed and accepted by the City,
ARTICLf, 8.
FEDS, PERMITS, A}ID EASEMENTS
8.1 Rishts of Wav.
Developer, without receipt of additional consideration other than the City's execution of
this Agreemen! but after it acquires title to the Site, shall grant and dedicate to the City all
additional rights of way for East 13th Street and 570th Avenue required by the City in
connection with the Project, as a condition preoedent to any permits or approvals by the City.
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8,2 Easements.
Dweloper, without receipt of additional consideration other than the City's execution of
this Agreement, but after it acquires title to the Site, shall grant to the City all necessary
easements and licenses that the City deems necessary to establish and support public
infrastructure improvements and facilities on the Site, as a condition precedent to any permits or
approvals by the City.
ARTICLE 9.
EFTECT OF COVENANTS UPON Dtr!'ELOPER AND THE SITE
9,1 Covenants: Binding Upon Successors in Interest: Duration,
It is intended that the agreements and covenants provided in tiis Agreement shall be
covenants running with the land and that they shall, in any event, and without regard to technical
classification or designation, legal or otherwise, and except only as otherwise specifically
provided in this Agreement, be binding to the fullest extent permitted by law and equity, for the
benefit and in favor o{ and enforceable by, the City, its successors and assigns, against the
Developer, its successors and assigns and every successor in interest to the Sitg and the
Improvements erected or to be erected thereor; or any part thereof until this Agreement is
terminated, in whole or in part, pursuarrt to Article 10 hereof.
9.2 Citv's Rishts To Enforce.
With respect to an area of land on the Site constituting the "foot print" or parcel of a
Major Anchor Store for which the City has issued a "certificate of occupancy" pursuant to the
City's Building Codg the obligations of this Agreement shall be released with respect to that
"foot print" or parcel. In amplification, and not in restriotion of the provisions of the preceding
Section, it is intended and agreed that the City and its successors and assigns shall be deemed
beneficiaries of the agreements and covenants provided in this Agreement, both for and in its
own right and also for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor or for whose benefit such agreements and covenants
have been provided. Such agreements and covenants shall run in favor of the City until this
Agreement is terminated, in whole or in par! pursrant to Article l0 hereof and such agreements
and covenants shall be in force and effect, without regard to whether the City has at any time
been, remains, or is an owner of any land or interest therein to or in favor of which such
agreements and covenants relate. The City shall have the rlglrt, in the event of any breach of any
such agreement or covenant, to exercise all the rights and remedies, and to maintain any actions
or suits at law or in equity or other proper proceedings to enforoe the curing of such breach of
agreement or covenant. The City intends to preserve and extend the enforceability of the
agreements and covenants provided in this Article by filing appropriate claims in accordance
with Iowa Code Sections 614.24 and 614.25.
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ARTICLE 10.
NATURtr OF COVtrNANTS - TERMINATION
t0.l Construction of Covenants.
The covenants contained in this Agreement are entered into by the Developer for the
benefit of the City for purposes of inducing the City to enact the Rezoning Ordinance. Nothing
contained in this Agreement shall be construed as a covenant by Developer or its successors and
assigns to conduot an active business operation, whether continuous or otherwise, on any portion
ofthe Site.
10,2 Condition Precedent to Develooer's Oblisations - Termination for Failure to Obtrin
Financins. If by December 1,2007 Developer fails to obtain written commitments for equity
capital and funding and financing for construction of the North Site improvements required by
4.2 hereo{ and submit to the City the evidence of finanoing and leases required by 5.3A and
5.3B hereof with respect to the North Site, the City may then, as its remedy for Developer's
failure of performance, repeal or change the zoning designation of the Site as the City deems
appropriate and Developer shall have no cause of action against the City for or by reason of such
repeal or change in zoning regulations.
ARTICLN, 1T.
REMEDMS.
11.1 In General.
A. Except as otherwise specifically provided in this Agreement, in the event ofa
default by either party under this Agreement, the aggrieved party may, by written Notice of
Default to the paAy in default, demand that it proceed immediately to cure or remedy zuch
default, and in any event, complete such cure or remedy within ninety (90) days after receipt of
such notice.
B. In the event that Notice of Default is given as provided above and action to
cure or remedy tlre default is not promptly taken or not diligently pursued, or the default is not
cured or remedied within the time allowed, then the party in default may be declared to be in
breach ofthis Agreement by the aggrieved party.
C. In the event ofa breach ofthis Agreement, in addition to zuch other rights as
the aggrieved party may have hereundeE 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 breach
of its obligations. It is further agreed that as an additional remedy for a breach ofthis Agreement
by Developer, the City may repeal or change the zoning designations of the Site as the City
deems appropriate, and Developer shall have no cause ofaction against the City for or by reason
of such repeal or change in zoning regulations.
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ll.2 Other Riehts and Remedies. No Waiver bv Delav.
City and Developer shall have the right to institute such actions or proceedings, as each
may deem desirable for effectuating the purposes of this Article. Provided, that any delay by
City or Developer in instituting or prosecuting any such actions or proceedings or otherwise
asserting its rights shall not operate as a waiver of such rights or to deprive either City or
Developer of or limit such rights in any way; it being the intent of this provision that City and
Developer should not be constrained to exercise such remedies at a time when such party may
still hope otherwise to resolve the problems created by the default involved so as to avoid the
risk of being deprived of or limited in the exercise of such remedies because of concepts of
waiver, laches, or otherwise. No waiver in fact made by City or Developer with respect to any
specific default by the other party shall be considered or treated as a waiver of the rights of City
or Developer with respect to any other defaults by the other party or with respect to the particular
default, as the case may be, except to the extent specifically waived in writing by City or
Developer.
I1.3 Rights and Remedies Cumulative.
The rights and remedies ofthe parties to this Agreement, whether provided by law or by
tlis Agreement, shall be cumulative, and the exercise by either party ofany one or more of such
remedies sha[1 not preclude the exercise by it, at the same or different times, of any other such
remedies for the same default or breach or ofany of its remedies for any default or breaoh by tlre
other party. No waiver made by either party shall be deemed a waiver in any respeot in regard to
any other rights ofthe party making the waiver or of any other obligations ofthe other party.
ARTICLE 12.
MISCELI-4,T{EOUS,
lz,L RepresentativesNotlndividuallvLiable.
A. No member, official, employee, or agent of City shall be personally liable to
Developer in the event of any default or breach by City or for any amount that may become due
to Developer or for any obligations under the terms ofthis Agreement
B. No member, manager, employee, or agent of Developer shall be personally
liable to City in the event of any default or breach by Developer or for any amount that may
become due to the City or for any obligations ofDeveloper under the terms ofthis Agreement.
C. Notwithstanding anything contained in this Agreement to the contrary, the
person or persons executing this Agreement on behalf of either party shall incur no personal
liability with respect to either party's performance hereunder.
12,2 Fire. Extended Coveraee Insurance.
Dweloper shall keep in force fire and extended coverage insurance upon the Site
improvements witi insurance underwriters authorized to do business in the State of lowa. The
form and amounts ofsuch insurance shall be approved by the City, whioh approval shall not be
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unreasonably \ /ithheld. Such insurance shall be in amounts and form satisfactory to Developer's
lender.
12,3 Indemnitv. Fees. Exoenses.
Following Developer's acquisition of legal title to the Site, the Developer shall assume,
defend, indemnify, protect and hold harmless the City and its oIficers, employees and agents
from any and all claims, demands, actions or causes of action of whatsoever kind occasioned
wholly or in part by any negligent act or omission of Developer and its contractors, agents or
assigns arising out ofor in any way connected with its possession ofthe Site, the construction of
the Site improvements and the development of the Site, The Developer's obligation to
indemnify and hold harmless shall include the obligation to pay all reasonable expenses incurred
by the City in defending itself with regard to any ofthe aforementioned claims, or in enforcing
the provisions of this paragraph, including all out-of-pocket expenses such as attorney's fees.
Notwithstanding the abovg Developer shall have no obligation to indemnify the City for any
claims or causes ofaction resulting from the acts or omissions ofthe City in the exercise ofthe
City's rights under the easements reserved by the City for landscaping exterior fixtures and
maintenance,
The Developer agrees that with respect to those portions ofthe Project that it owns and
develops to pay, or cause to be paid, all license fees, permit fees, and insurance premiums related
to its possession of the Site, the construction of the Site improvements and the dwelopment of
the Site. It is the intention ofthe parties that the City shall not incur pecuniary liability by reason
ofDeveloper's failure to comply with applicable Federal, State and local laws, rules, ordinances,
regulations, orders, licenses and permits and the Developer shall indemnify and hold harmless
the City and its oflicers, employees, and agents against all such claims by or on behalf of any
perso4 firm, or corporatiorL and all costs and expenses incurred in connection with any such
claim or in connection with any action or proceeding brought thereon. Nothing contained in this
Section 12.3 shall be construed to constitute any form of agreement by Developer to indemnift
the City in connection with any third party challenges to the City's power or authority to enter
into this Agreement, the validity of the Rezoning Ordinance, or any approvals required or
otherwise granted in connection herewith by the City.
12.4 Citv Not a Guarantor. Suretv or Partner,
City is not a guarantor or surety for the completion ofthe Site improvements nor for any
indebtedness incurred by Developer. It is mutually understood that nothing in this Agreement is
intended or shall be construed as in any way creating or establishing the relationship of
copartners between the parties hereto, or as constituting Developer as a contractor, agent or
representative of City for any purpose of in any manner whatsoever.
12.5 Time.
Time is ofthe essence in the performance ofthis Agreement.
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12.6 Titles ofArticles and Sections,
Titles of tlte several sections, subsections, and paragraphs of tlis Agreement are inserted
for convenience of reference only and shall be disregarded in construing or interpreting any of
the provisions ofthis Agreement.
12,7 Asreement Bindins on Successors in Interest.
This Agreement shall inure to the benefit of and shall be binding upon successors and
assigns ofthe parties.
12.8 Extensions for Non-Workinp Davs.
In the event the last date for performing any act required by this Agreement falls upon a
weekend day or holiday, then the time for performing such act shall be extended to the next
following working day.
12,9 Noticer.
A notice, demand, or other communication under this Agreement by either party to the
other shall be sufficiently given or delivered if it is dispatched by registered or certi{ied mail,
postage prepaid, retum receipt requested; delivered personally; or sent by overnight courier
service, as follows:
A. In the case ofDeveloper, addressed to:
Wolford Development Options, L.L.C.
Attention: President
Four Squares Business Center
1200 Mountain Creek Road- Suite 102
Chattanoog4 TN 37405
B. In the case of City, addressed to:
City of Ames
Attention: City Clerk
P. O. Box 811
515 Clark Street
Ames. Iowa 50010
or to such otlter address as either may, from time to time, designate in writing and forward to the
other as provided in this Article.
l2.l0 Recordation.
Following the effectiveness of the Zoning Ordinance, the City Clerk shall cause this
Agreement to be recorded at Developer's expense in the land records of the Story County
Recorder's Offce. A duplicate original of this Agreement and all the Appendices shall be
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maintained in the OfIice of the City Clerk, City Hall, 515 Clark Street, Ames, Iowa, 50010. All
expense of recording this Agreement and any ofthe documents contemplated by this Agreement
to be recorded by City shall be paid by Developer within fifteen (15) days ofnotice from City of
the amount thereof,
12.ll Counterparts.
This Agreement is executed in two (2) counterparts, each of which shall constitute one
and the same instrument. A copy of this Agreement, including all the Appendices shall be
maintained in the o{fice of the City Clerk of City.
IN WITNf,SS WHEREOF, the City has caused this Agreement to be duly executed in
its name and behalfby its Mayor and its seal to be hereunto duly affrxed and attested by its City
Clerk, and the Developer has caused this Agreement to be duly executed in its name and behalf
on or as ofthe day first above written.
STATE OF IOWA STORY COUNTY, ss: ":i.:' r,. tr '
This instrument was acknowledged before me on the dL 6u, of Mn*rrJ.uJ
2005 by Ted Tedesco and Diane R, Voss, as Mayor and City Clerk, respectively, ofthe City of
Ames, Iowa on behalf of whom this instrument was executed.
[Page 1 of2 signature pages]
." 1( o- | ,JILL L. RtppERGER
9lfu? | coMMrssioN # 14s540-jgl*- | ity cc,:. ."::aatcit EXFiR=s
JILL L. RIPPERGER
CITY OF AMES, IOWA, an Iowa
municipal
Notary Public in ah
dlw060l\03\ag-an€s d€velopment-wdb.doc
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WOLFORD DEVELOPMENT
OPTIONS, L,L,C., a Nevada limited
liability company
STATE OFlTnnrs<ee-lL^l [i*.ouNrY, ss:
This lnstrument was acknowledged before me on the l-{ lhday of
by James L. Wolfod as Chief Manager of Wolford Development Options, L.L.C. on behalf of
whom this instrument was executed.
2 of2 signature pagesl
Notarv Public in and for said State
d:\wO60 l\o3Ugr-smes developmenr-wdb-doc
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APPENDD( A
LEGAL DESCRIPTION OF THE SITE
T}LA.T PART OF THE WEST 1/2 OF T}IE SOUTHEAST I/4 OF SECTION 31. TOWNSHIP
84 NORTH, RANGE 23 WEST OF TFIE sTHP.M,, STORY COUNTY, IOWA, LYINGEAST
AND NORTH OF THE INTERSTATE HIGIMAY 35 RIGHT.OF-WAY AND CONTAINING
59.72 ACRES, MORE OR LESS;
AND TI{E INTERSTATE HIGHWAY 35 RIGHT.OF.WAY, CONTA]NING 21.12 ACRES
MORE ORLESS
AND
THAT PART OF TTIE SOUTI{EAST I/4 OF TTIE SOUTI{EAST 1/4 OF SECTION 3I,
TOWNSHIP 84 NORTH, RANGE 23 WEST OF T}IE 5TH P.M., STORY COUNTY, IOWA
LYINGNORTH OF THE INTERSTATE HIGIIWAY 35 RIGHT.OF-WAY AND
CONTAINING 39.90 ACRES, MORE OR LESSI
AND T}IE INTERSTATE HIGF{WAY 35 RIGHT-OF-WAY. CONTA]NING 0,29 ACRES
MORE ORLESS:
AND
THENORTFIEAST 1/4 OF TIIE SOUTTIEAST 1/4 OF SECTION 3I. TO\4T{SHIP 84
NORTII RANGE 23 WEST OF TIIE 5TT{ P.M., STORY COLINTY, IOWA AND
CONTAINING 40,02 ACRES, MORE OR LESS.
AND
PARCEL 'A" IN T}IE NORTTIWEST FRACTIONAL QUARTER OF SECTION 5,
TOWNSHIP 83 NORTH, RANGE 23 WEST OF TFIE 5TTI P,M., STORY COUNTY, IOWA.
AS SHOWN ON THE "PLAT OF SIIRVEY (AMENDED)- FrLED IN TIIE OFFTCE OF THE
RECORDER OF STORY COUNTY, IOWA5 ON TFIE I2TH DAY OF DECEMBE& 1997,
AND RECORDED IN BOOK 15. PAGE 90-91 AND CONTAINING 55.18 ACRES MORE OR
LESS.
AND
PARCEL "C" IN THE EAST FRACTIONAL HALF (E, FRL. %) OF SECTION SIX (6)
TOWNSHTP ETGHTY-THREE (83) NORTT! RANGE TWENTY-THREE (23) WEST OF Tr{E
5TTI P.M., STORY COIJNTY, IOWA, AS SHOWN ON TI{E'PLAT OF SIJRVEY'FILED IN
TT{E OFFICE OF TI{E RECORDER OF STORY COUNTY, IOWA ON TIIE 22ND DAY OF
TIJLY,1997, AND RECORDED INBOOK 15, PAGE 16 AND CONTAINING 96.61 ACRES,
MOREORLESS.
AND
PART OT THEEAST FRACTIONAL % OF SECTION 6, TOVINSHIP 83 NORTE RANGE
23 WEST OF THE 5TH P.M., STORY COUNTY, IOWA! LYING IN T}IE INTERSTATE
HIGI{WAY RIGIIT-OF-WAY. CONTAINING IO.O9 ACRES MORE OR LESS.
32
APPENDD( B
LEGAL DESCRIPTION OF THE NORTE SITE
T}IAT PART OF THE WEST 1/2 OF THE SOUTHEAST 1/4 OF SECTION 3I, TOWNSHIP
84 NORTTI, RANGE 23 WEST OF TI{E 5TH P.M., STORY COI.'NTY, IOWA. LYING EAST
AND NORTH OF TT{E INTERSTATE HIGHWAY 35 RIGHT-OF-WAY AND CONTAINING
59.72 ACRES, MORE OR LESS;
AND TTIE INTERSTATE HIGTMAY 35 RIGHT.OF-WAY, COMAINING 21.12 ACRES
MORE ORLESS;
AND
THAT PART OF THE SOI,TTI{EAST 1/4 OF TT{E SO1ITITEAST I/4 OF SECTION 31,
TOWNSHIP 84 NORTH, RANGE 23 WEST OF TITE sTH P.M., STORY COUNTY, IOWA
LYINGNORTH OF TIIE INTERSTATE HIGHWAY 35 RIGHT-OF-WAY AND
CONTAINING 39.90 ACRES, MORE OR LESS;
AND TTIE INTERSTATE HIGIMAY 35 RIGHT-OF.WAY. CONTAINING 0.29 ACRES
MORE ORLESS;
AND
TTIE NORTI{EAST 1/4 OF T}IE SOI]THEAST 1/4 OF SECTION 31. TOWNSHIP 84
NORTII, RANGE 23 WEST OF TTIE 5TH P.M., STORY COUNTY, IOWA AND
CONTAINING 40.02 ACRES. MORE OR LESS:
AND
PART OF TI{E EAST FRACTION AL % OF SECTION 6, TOWNSHIP 83 NORTH, RANGE
23 WEST OF TI{E sTH P.M., STORY COUNTY, IOWA. LYING IN TI{E INTERSTATE
HIGHWAY RIGHT-OF.WAY, CONTAINING IO.O9 ACRES MORE ORLESS.
33
A}PDNDD( C
LEGAL DESCRIPTION OF SOUTH SITT,
PARCEL "C" IN TTIE EAST FRACTIONAL HALF (E. FRL, 7,) OF SECTION SIX (6),
TOWNSHIP EIGHTY-THREE (83) NORTII RANCE TWENTY-THREE (23) WEST OF T1IE
5TH P.M., STORY COI]NTY, IOWA" AS SHOWN ON TTTE "PLAT OF SURVEY' FILED IN
THE OFFICE OF TT{E RECORDER OF STORY COLINTY, IOWA ON T}IE 22ND DAY OF
JULY, 1997, AND RECORDED IN BOOK I5. PAGE 16 AND CONTAINING 96.61 ACRES,
MORE ORLESS.
-LJ-
34
APPENDD( D
LDGAL DESCRIPTION OF TEE EAST BARILLA SITE
PARCEL 'A" IN THE NORTHWEST FRACTIONAL QUARTER OF SECTION 5,
TOWNSHIP 83 NORTH, RANGE 23 WEST OF TFIE 5TH P.M., STORY COIJNTI IOWA
AS SHOWN ON TIIE "PLAT OF SURVEY (AMENDED)' FILED IN T}IE OFFICE OF THE
RECORDER OF STORY COIJNTY. IOWA, ON TTIE 12TH DAY OF DECEMBER 1997,
AND RECORDED IN BOOK 15, PAGE 9O-9I AND CONTATNING 55.18 ACRES MORE OR
LESS,
a i
35
APPENDD( E
CONCEPTUAL SITE PLAN
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APPENDIX
37
WOLFORD DEVELOPMENT
OPTIONS, L.L.C,, a Nevada limited
liability company
This instrument was acknowledged before me on the L{1( day or N\ovar,.blf . zoos
by James L Wolford as Chief Manager of Wolford Development Oflions, L.L.C. on behalf of
whom this instrument was executed.
Notary Public in
[Page 2 of 2 signature pages]
for said State-r"**oJt-**!
l.lOfnnV
PUBLIC,
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38
DO NOT WRITE IN SPACE ABOVE THIS LINE, RESERVED FOR RECORDER
Prepared by: Renee Hall, City Clerk’s Office, 515 Clark Avenue, Ames, IA 50010
Phone: 515-239-5105 Return to: Ames City Clerk, P.O. Box 811, Ames, IA 50010
ORDINANCE NO.
AN ORDINANCE AMENDING THE OFFICIAL ZONING MAP OF THE
CITY OF AMES, IOWA, AS PROVIDED FOR IN SECTION 29.301 OF
THE MUNICIPAL CODE OF THE CITY OF AMES, IOWA, BY CHANGING
THE BOUNDARIES OF THE DISTRICTS ESTABLISHED AND SHOWN
ON SAID MAP AS PROVIDED IN SECTION 29.1507 OF THE
MUNICIPAL CODE OF THE CITY OF AMES, IOWA; REPEALING ALL
ORDINANCES AND PARTS OF ORDINANCES IN CONFLICT
HEREWITH AND ESTABLISHING AN EFFECTIVE DATE
BE IT HEREBY ORDAINED by the City Council of the City of Ames, Iowa;
Section 1: The Official Zoning Map of the City of Ames, Iowa, as provided for in
Section 29.301 of the Municipal Code of the City of Ames, Iowa, is amended by
changing the boundaries of the districts established and shown on said Map in the
manner authorized by Section 29.1507 of the Municipal Code of the City of Ames, Iowa,
as follows: That the real estate, generally at 3299, 3312, 3699 East 13th Street and 1699
570th Avenue from Planned Regional Commercial (PRC) with the Northeast Gateway
Overlay (O-GNE) and a Contract Rezoning Agreement to Planned Regional
Commercial (PRC and Northeast Gateway Overlay (O-GNE) without a Contract
Rezoning Agreement.
REAL ESTATE DESCRIPTIONS:
APPENDIX A:
That Part Of The West 1/2 Of The Southeast 1/4 Of Section 31, Township 84
North, Range 23 West Of The 5th P.M., Story County, Iowa, Lying East And North Of
The Interstate Highway 35 Right-Of-Way And Containing 59.72 Acres, More Or Less;
And The Interstate Highway 35 Right-Of-Way, Containing 21.12 Acres More Or Less
and, That Part Of The Southeast 1/4 Of The Southeast 1/4 Of Section 31, Township 84
North, Range 23 West Of The 5th P.M., Story County, Iowa, Lying North Of The
Interstate Highway 35 Right-Of-Way And Containing 39.90 Acres, More Or Less; And
39
The Interstate Highway 35 Right-Of-Way, Containing 0.29 Acres More Or Less; and
The Northeast 1/4 Of The Southeast 1/4 Of Section 31, Township 84 North, Range 23
West Of The 5th P.M., Story County, Iowa And Containing 40.02 Acres, More Or Less.
And Parcel "A" In The Northwest Fractional Quarter Of Section 5, Township 83 North,
Range 23 West Of The 5th P.M., Story County, Iowa, As Shown On The “Plat Of Survey
(Amended)" Filed In The Office Of The Recorder Of Story County, Iowa, On The 12th
Day Of December, 1997, And Recorded In Book 15, Page 90-91 And Containing 55.18
Acres More Or Less. And Parcel “C” In The East Fractional Half (E. Frl. 1/2) Of Section
Six (6), Township Eighty-Three (83) North, Range Twenty-Three (23) West Of The 5th
P.M., Story County, Iowa, As Shown On The “Plat Of Survey” Filed In The Office Of
The Recorder Of Story County, Iowa On The 22nd Day Of July, 1997, And Recorded
In Book 15, Page 16 And Containing 96.61 Acres, More Or Less. and Part Of The East
Fractional 1/2 of Section 6, Township 83 North, Range 23 West of The 5th P,M., Story
County, Iowa, Lying In The Interstate Highway Right-Of-Way, Containing 10.09 Acres
More Or Less.
APPENDIX B (North Site):
That Part Of The West 1/2 Of The Southeast 1/4 Of Section 31, Township 84
North, Range 23 West Of The 5th P.M., Story County, Iowa, Lying East And North Of
The Interstate Highway 35 Right-Of-Way And Containing 59.72 Acres, More Or Less;
And The Interstate Highway 35 Right-Of-Way, Containing 21.12 Acres More Or Less;
and that Part Of The Southeast 1/4 Of The Southeast 1/4 Of Section 31, Township 84
North, Range 23 West Of The 5th P.M., Story County, Iowa, Lying North Of The
Interstate Highway 35 Right-Of-Way And Containing 39.90 Acres, More Or Less; and
The Interstate Highway 35 Right-Of-Way, Containing 0.29 Acres More Or Less; and
The Northeast 1/4 Of The Southeast 1/4 Of Section 31, Township 84 North, Range 23
West Of The 5th P.M., Story County, Iowa And Containing 40.02 Acres, More Or Less;
and Part Of The East Fractional 1/2 of Section 6, Township 83 North, Range 23 West
Of The 5th P M„ Story County, Iowa, Lying In The Interstate Highway Right-Of-Way,
Containing 10.09 Acres More Or Less.
APPENDIX C (SOUTH SITE):
Parcel “C” In The East Fractional Half (E. Frl. 1/2) Of Section Six (6), Township
Eighty-Three (83) North, Range Twenty-Three (23) West Of The 5th P.M., Story
County, Iowa As Shown On The “Plat Of Survey’ Filed In The Office Of The Recorder
Of Story County, Iowa On The 22nd Day Of July, 1997, And Recorded In Book 15,
Page 16 And Containing 96. 61 Acres, More Or Less.
APPENDIX D (East of Barilla Site):
Parcel "A" In The Northwest Fractional Quarter Of Section 5, Township 83 North,
Range 23 West Of The 5th P.M., Story County, Iowa As Shown On The "Plat Of Survey
(Amended)" Filed In The Office Of The Recorder Of Story County, Iowa, On The 12th
Day Of December, 1997, And Recorded In Book 15, Page 90-91 And Containing 55.18
40
Acres More Or Less.
Section 2: All other ordinances and parts of ordinances in conflict herewith are hereby
repealed to the extent of such conflict.
Section 3: This ordinance is in full force and effect from and after its adoption and
publication as provided by law.
ADOPTED THIS day of , .
Renee Hall, City Clerk John A Haila, Mayor
41