2095 University Avenue Settlement AgreementCity of Dubuque
City Council Meeting
Consent Items # 013.
Copyrighted
July 5, 2023
ITEM TITLE: 2095 University Avenue Settlement Agreement
SUMMARY: City Attorney recommending approval of a settlement agreement with
Metropolitan Life I nsurance Company for 2095 University Avenue.
RESOLUTION Approving a Settlement Agreement between the City of
Dubuque, Iowa and Metropolitan Life Insurance Company
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Resolution Resolutions
Settlement Agreement Supporting Documentation
THE CITY OF
DUB TEI
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, ESQ.
CITY ATTORNEY
TO: MAYOR BRAD M. CAVANAGH AND MEMBERS OF THE CITY COUNCIL
DATE: JUNE 29, 2023
RE: SETTLEMENT AGREEMENT
Dubuque
AII•AneftCft
wi�uv�irx�x
2007-2012.2013
2017*2019
The City of Dubuque filed a petition for title to abandoned property for 2095 University
Avenue, owned by Dorothy Culbertson. Ms. Culbertson died over a decade ago and no
estate was opened to process the property. Culbertson's son lived in the house following
her death until he died. Following his death, no estate was opened to handle the property
and it fell into disrepair with the City performing maintenance including tree care, grass
cutting, snow removal, and securing the property. Liens for this work have been placed
on the property in addition to liens for utilities.
Upon filing of the petition Metropolitan Life Insurance Company resisted as it had a
mortgage on the property and was in process of foreclosing on the mortgage.
A settlement has been negotiated as the property sits in a key location related to the East-
West Corridor Study being at the intersection of Loras Boulevard and University Avenue.
The house will eventually be deconstructed for roundabout construction.
Pursuant to the terms of the settlement Metropolitan Life Insurance Company will consent
to entry of judgment on the City's petition in exchange for a payment from the City which
will be determined by an agreed upon and bracketed price. The City will pay no less than
$25,000 and no more than $45,000.
This settlement obtains a property necessary for future roundabout construction and
avoids lengthy and costly litigation. I recommend approval of the settlement agreement.
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 589-4381 / FAX (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org
Prepared by Crenna Brumwell 300 Main Street Suite 330 Dubuque IA 52001 563 589-4113
RESOLUTION NO. 214-23
APPROVING A SETTLEMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE,
IOWA AND METROPOLITAN LIFE INSURANCE COMPANY
WHEREAS, the City of Dubuque filed a petition for title to abandoned property for
2095 University Avenue, owned by Dorothy Culbertson; and
WHEREAS, Dorothy Culbertson is deceased; and
WHEREAS, Dorothy Culbertson executed a mortgage on the property with the last
assignment of mortgage to Metropolitan Life Insurance Company; and
WHEREAS, the mortgage has been foreclosed; and
WHEREAS, in consideration of the agreements set forth in the Settlement
Agreement, Metropolitan Life Insurance Company provides its written consent to a
dispositive judgment in the litigation action, allowing the City to acquire title to the
property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA
AS FOLLOWS:
Section 1. The Settlement Agreement attached hereto is hereby approved.
Section 2. The City Manager is hereby authorized and directed to sign the
Settlement Agreement on behalf of the City of Dubuque and perform the obligations of
the City under the Agreement.
Passed, approved and adopted this 5th day of July, 2023.
.• M. Cavaa�5V, Mayor
Attest:
Adrienne Breitfelder, City Clerk
SETTLEMENT AGREEMENT
COME NOW Metropolitan Life Insurance Company, by its servicer, Mr. Cooper, f/k/a
Community Loan Servicing, LLC ("MetLife"), and the City of Dubuque, Iowa (the "City")
(hereinafter referred to collectively as the "Parties"), in order to resolve the litigation pending in the
Iowa District Court for Dubuque County assigned Case No. EQCV 112762 brought by the City of
Dubuque, Iowa under Iowa Code Section 657A.1O13 (the "Litigation"), and in furtherance of the
resolutions to be passed by the Dubuque City Council involving the real estate located at 2095
University Ave., Dubuque, Iowa, owned by Dorothy Culbertson, that is legally described as:
Lot 2 of Lot 13, and the Westerly 2 feet of Lot 1 of Lot 13, of the Subdivision of Mineral
Lot 172; and Lot 2 in Mabel Subdivision, in the City of Dubuque, Iowa, according to the
recorded plat thereof. (Being the same property conveyed by fee simple deed from
Benedict F Erschen a/k/a Ben F. Erschen, a/d/a Ben Erschen widower, not remarried. To
Dorothy A. Culbertson, dated 3/1/1991 recorded on 9/15/1993 in document No. 12169-
93, in Dubuque County Records, State of Iowa.)
hereinafter the "Residential Property", agree as follows:
1. MetLife's interest in the Residential Property. MetLife is the owner and holder of a
Mortgage on the Residential Property by virtue of a Real Estate Mortgage made May 31, 2005 by
Dorothy Culbertson, recorded June 1, 2005 in the records of the Dubuque County Recorder at
Instrument No. 005175200005 (the "Mortgage"). The Mortgage has been foreclosed by the Order
entered March 31, 2023 in the Litigation (the "Judgment").
2. Settlement of the Litigation. In consideration of the agreements of the City of
Dubuque, Iowa set forth in this Agreement, MetLife, through its counsel, shall provide its written
consent to a dispositive judgment in the Litigation allowing the City to acquire title to the
Residential Property, pursuant to Iowa Code Section 657A.IOB.
3. Consideration for Written Consent to Entry of Judgment in the Litigation. In
consideration of MetLife: (i) bearing the costs of foreclosure of the Residential Property; (ii)
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removing the dead tree from the Residential Property; and (iii) payment by the City of Dubuque
of Fair Market Value of the Residential Property (defined in Section 7 below); MetLife shall
consent to entry of judgment in the Litigation in favor of the City A copy of a draft consent is
attached to this Agreement as Exhibit "1" and incorporated herein by this reference. MetLife shall
consent at the time of execution of this Agreement by the City, following the final approval of the
Agreement by the City Council, filing the Consent upon receipt of the Fair Market Value of the
Residential Property from City.
4. Reservation of Rights. MetLife hereby expressly reserves all of its rights against
the mortgagor(s) and borrower(s), including Dorothy Culbertson, deceased, who has been named
as a Defendant in the Litigation. Following performance of this Agreement, the City shall have
no rights against either Dorothy Culbertson, MetLife, or against the Residential Property, except
as otherwise provided herein or the Order of the Court in the Litigation awarding the City of
Dubuque the Residential Property in the Litigation.
5. Approval of this Agreement. The City of Dubuque (the "City") will notice for
consideration, and approval, its agreements set for this in this Agreement. The City Council of
Dubuque, Iowa (the "City Council"), will be presented for a vote, a resolution to further its long
range plan of building a roundabout on the Residential Property following its demolition of the
improvements on the Residential Property.
6. Resolution and Authorization. The Resolution of the City Council shall provide
approval of the terms set forth herein and shall grant Michael C. Van Milligen, City Manager for the
City of Dubuque, authorization to sign this Agreement and perform the obligations of the City of
Dubuque under this Agreement.
7. Fair Market Value. The Parties shall select an appraiser for the Residential
Property. The appraisal may be a "broker's price opinion", "desk top appraisal", or similar "short
form" appraisal and need not be a full appraisal report. The appraiser shall be unbiased. If the
valuation of the Residential Property "as is" is less than $25,000.00 the Fair Market Value shall
be $25,000.00. If the valuation of the Residential Property "as is" is greater than $45,000.00 the
Fair Market Value shall be $45,000.00. If the valuation of the Residential Property "as is" is
between $25,000.00 and $45,000.00, the Fair Market Value shall be the "as is" valuation reached
by the appraiser selected by the Parties. The cost of the appraisal, so long as it does not exceed
$1,000.00 shall be borne by MetLife.
8. LegalRepresentation. The Parties acknowledge that they are represented by legal
counsel. The Parties acknowledge that they enter into this Agreement knowingly and voluntarily
after having been fully advised by their attorneys of their rights in this matter and of the scope and
effect of this Agreement.
9. No Rule of Construction Against Party Drafting. The Parties acknowledge that all
Parties, through their legal counsel, played a substantive role in drafting and/or had an equal
opportunity to review and/or modify the provisions set forth in this Agreement. Thus, in the event
of any misunderstanding, ambiguity, or dispute concerning this Agreement's provisions, or
interpretation, the Parties agree no rule of construction shall be applied that would result in having
this Agreement interpreted against any Party.
10. Integrated Agreement/Severability. This Agreement and the exhibits attached hereto
constitute the entire understanding between the Parties concerning the subject matter hereof. No other
prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise,
between the Parties relating to the subject matter hereof and not embodied in this Agreement shall be
of any force or effect. This Agreement shall not be modified except in a writing signed by all Parties
hereto. If any provision of this Agreement shall, because of its scope and breadth, be held to be
invalid, unenforceable, or contrary to public policy, whether in whole or in part, such provision shall
be reformed and enforceable to the fullest permissible scope and breadth and, in any event, the
remaining provisions shall not be affected by such holding.
11. Partial Invalidity. If any term or provision of this Agreement is held invalid or
unenforceable to any extent, the remaining terms and provisions of this Agreement shall not be
affected thereby, but each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
12. Other Documents. The Parties agree that they shall execute and deliver such other
and further documents as may be necessary to implement fully the terms and conditions of this
Agreement.
13. Abatement of Alleized Nuisance. Following execution of this Agreement, and entry
of a judgment on the City's Petition in the Litigation, and following payment of Fair Market Value
to Met Life, the City may demolish the improvements located on the Residential Property.
14. Breach of Agreement/Prevailing Party Costs and Expense. If either party to this
Agreement breaches any provision of this agreement binding upon it, the non -breaching party
shall be entitled to recover all costs, including but not limited to, reasonable attorney's fees from
the breaching party resulting from such breach. Further, in the event any legal action or
proceeding is commenced to interpret or enforce the terms of, or obligations arising out of, this
agreement, or to recover damages for the breach thereof, the party prevailing in any such action
or proceeding shall be entitled to recover from the non -prevailing party all reasonable attorneys'
fees, costs and expenses incurred by the prevailing party. The Parties reserve all rights and
remedies available at law or in equity for the enforcement of this Agreement.
15. Binding Effect. This Agreement is binding upon, and shall inure to the benefit of,
the Parties hereto and their respective heirs, representative, successors, and assigns. This
Agreement shall have no force or effect if the City of Dubuque City Council does not authorize
the Agreement to be made and executed.
16. Applicable Law. This Agreement shall be governed by the laws of the State of
Iowa. This agreement shall be deemed to have been entered into in the State of Iowa. Any suit
brought with respect to this agreement shall be brought in the District Court for Dubuque County,
Iowa.
17. Captions/Headings. The captions/headings are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or intent of such sections
nor in any substantive way affect this Agreement.
18. Due Authority. Each of the Parties hereto respectively warrants and represents,
which warranty and representation shall survive the date of this Agreement, that: (i) it has good
right, and authority to enter into this Agreement and perform its respective obligations hereunder;
(ii) the execution and delivery hereof by the individuals set forth below, and the consummation of
the transactions herein provided have been duly authorized and approved by such Parties,
including, if necessary, its Manager(s) as required by law and/or its Articles of Organization and
Bylaws and do not violate any provision thereof or of any agreement as to which it is a Party or is
otherwise bound; and (iii) this Agreement, upon execution and delivery by the individuals set forth
below, will constitute a valid and binding obligation, enforceable against it in accordance with its
terms.
19. Parties' Respective Expenses. Except as otherwise set forth herein, the Parties
shall bear their respective attorneys' fees and costs incurred in connection with the Litigation and
the negotiation and documentation of this Settlement Agreement, and the performance of their
obligations under this Agreement.
20. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which together shall be deemed to be one and
the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile transmission or electronic mail shall be as effective as delivery of a manually executed
counterpart thereof. For proof purposes, it shall not be necessary to produce or account for all
counterparts, and copies, facsimile copies, and/or email copies of original signatures may be used.
THE FOREGOING SETTLEMENT AND RELEASE AGREEMENT HAS BEEN
READ AND FULLY UNDERSTOOD BEFORE THE SIGNING OF SUCH
AGREEMENT.
IN WITNESS WHEREOF, the Parties hereto have affixed their signatures on the date first
above written.
METROPOLITAN LIFE INSURANCE
By:
Waldo D, Gray - Senior Principal Legal
Nationstar Mortgage, LLC, a Delaware limited liability
company - Subservicer
Date: 6/19/2023
Approval as to Form:
/s/ Mark D. Walz
Mark D. Walz
Dentons Davis Brown Law Firm
215 loth Street, Suite 1300
Des Moines, IA 50309
Telephone: (515) 288-2500
mark.walzkdentons. com
ATTORNEY FOR METLIFE
Crenna M. Brumwell
City Attorney
300 Main Street, Suite 300
Dubuque, IA 52001
Telphone: 563-583-4113
cbrumwel(d),cityofdubuque.org
ATTORNEY FOR THE CITY OF DUBUQUE
CITY OF DUBUQUE, IOWA
By: vW-st Aakx""
Micha 1 C. Van Milligen eity Manager
for City of Dubuque, Iowa, as
Representative for City of Dubuque, Iowa
Date: 07/06/2023