Purchase of Bricktown Parking Lot_Dubuque InitiativesTHE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Bricktown Parking Lot
DATE: May 27, 2008
Economic Development Director Dave Heiar is recommending that a public hearing be
scheduled for June 16, 2008, to consider the financing to purchase the Bricktown
Parking Lot located on the southeast corner of Locust and Third Street.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
May 23, 2008
TO: Michael C. Van Milligen, City Manger
FROM: David J. Heiar, Economic Development Director
RE: Bricktown Parking Lot
INTRODUCTION
This memorandum presents for City Council consideration a resolution to set a public
hearing on the financin~ to purchase the Bricktown Parking Lot located on the southeast
corner of Locust and 3` Streets.
BACKGROUND
When Cooper Acquisitions renovated the Bricktown building at 299 Main Street in 2001,
a couple of the owners also entered into a contract with Paul Fahey to purchase the
parking lot on the southeast corner of Locust and 3~d Streets. Due to the recent change
in management, and the financial restructuring of the business, it has been determined
that Cooper Acquisitions can not cash flow the business and the purchase of this
property.
The original purchase contract included a clause, allowing the City to purchase the
parking lot for $400,000 if the business defaulted on its monthly payments. The City had
a recent appraisal of the property which places the value at more than $400,000.
DISCUSSION
Although this parking lot is important to the downtown area, Budget Director Jenny
Larson has indicated that our parking fund does not have an extra $400,000 at this time.
However, there would be sufficient parking funds to pay for this parking lot on a contract
purchase. The current owner (Mr. Fahey) does not want to sell on contract. Dubuque
Initiatives has agreed to lend the City $400,000 at 5% interest to purchase this key
parking lot. The loan could be repaid over 15 years. The parking tot would become part
of the City's public parking system with parking meters.
Based on the letter received from the Iowa Department of Natural Resources on
December 20, 2007, this site is subject to environmental monitoring and is not eligible to
be reclassified at this time. The site is considered a low risk for ground water ingestions,
but a high risk for ground water vapor. In order to receive a letter of "No Further Action",
the owner needs to submit 4 consecutive quarterly monitoring reports that show no
increased contamination in the sample. In the last 8 quarterly reports, the first 7 had
decreasing or steady results, but the 8th quarter showed an increase in contaminates.
Since this site is covered by the UST fund, the owner can seek reimbursement for these
monitoring costs. Another monitoring report was submitted to the IDNR on May 1, 2008
which indicates the contamination levels for the past quarter have been stable.
Staff has been working with Dubuque Initiatives, the environmental consultants, Paul
Fahey and Cooper Development LLC, to put together agreements to purchase and
finance the parking lot. The loan agreement with Dubuque Initiatives requires a public
hearing.
Attached is a copy of the proposed "Offer to Buy Real Estate and Acceptance" and the
proposed "Loan Agreement". The Offer to Buy Real Estate will also appear on the June
16, 2008 agenda and is subject to:
Approval of the City Council of the City of Dubuque, Iowa, by not later than
June 16, 2008 of a Loan Agreement between the City and Dubuque Initiatives
for the purchase of the Real Estate on terms acceptable to the City Council.
2. The assignment by Robert Humke and Pride Service, Inc. to Seller and
acceptance of such assignment by Underground Storage Tank Fund (the
Fund) of all rights and any co-payment responsibilities for remedial benefits
through the Iowa Comprehensive Petroleum Underground Storage Tank Fund,
together with approval by the City Council of an agreement by Seller and
Robert Humke and Pride Service, Inc. that City shall not be required to
reimburse Seller or Robert Humke or Pride Service, Inc, or their successors or
assigns, or any third party for any co-payments already made by any of them to
the Fund .
3. The termination of the Real Estate Contract between Seller and Cooper
Acquisitions, LLC, filed November 18, 2002, Instrument No. 22160-02 prior to
the date of closing.
4. The approval by the City Council by not later than June 16, 2008 of an
agreement between Buyer and Cooper Development LLC to retain the Real
Estate as a parking lot for ten years from the date of closing in consideration for
payment by Cooper Development LLC to City of $1,000.00 per month for such
ten year period.
The proposed Loan Agreement with Dubuque Initiatives is an unsecured $400,000 loan
at 5% interest to be repaid over 15 years. An amortization schedule is attached to the
agreement. The City anticipates using the revenue ($1,000 per month) from Cooper
Development, LLC and revenue from parking meters ($14,000 annually, minus the cost of
meters and maintenance) in the lot to offset the payments of $38,222 per year to
Dubuque Initiatives.
RECOMMENDATION
I recommend that the City Council set a public hearing on June 16, 2008 on the proposed
loan agreement with Dubuque Initiatives to finance the purchase of the "Bricktown"
parking lot located at the southeast corner of Locust and 3rd Streets.
ACTION STEP
The action step is for the City Council to adopt the attached resolution.
Cc: Tim Horsfield
Jenny Larson
F:\USERS\DHeiar\Bricktown Parking Lot\Parking lot purchase memo.doc
Council Member Kevin Lynch introduced the
"RESOLUTION FIXING DATE FOR A MEETING ON
LOAN AGREEMENT BETWEEN THE CITY OF
INITIATIVES, AND PROVIDING FOR PUBLICATION
moved that the same be adopted. Council Member
motion to adopt. The roll was called and the vote was;
following Resolution entitled
THE AUTHORIZATION OF A
DUBUQUE AND DUBUQUE
OF NOTICE THEREOF", and
Joyce Connors seconded the
AYES: Braig, Buol, Connors, Jones, Lynch, Resnick, Voetberg
NAYS: None
Whereupon, the Mayor declared the resolution duly adopted as follows:
RESOLUTION NO. 186-08
RESOLUTION FIXING DATE FOR A MEETING ON THE
AUTHORIZATION OF A LOAN AGREEMENT BETWEEN THE CITY OF
DUBUQUE AND DUBUQUE INITIATIVES, AND PROVIDING FOR
PUBLICATION OF NOTICE THEREOF
WHEREAS, it is deemed necessary and advisable that the City of Dubuque,
Iowa (the "City"), should provide for the authorization of a Loan Agreement between the
City of Dubuque and Dubuque Initiatives (the "Lender") in the principal amount of
$400,000.00 (the "Agreement"), as authorized by Sections 384.24A and 384.83, Code
of Iowa, as amended, a copy of which is now before this Council and incorporated
herein by this reference, for the purpose of acquiring the real property described as Lots
87, 88, and the North 20 feet 3 inches of Lot 86 in the City of Dubuque, Iowa, according to
the United States Commissioners' Map of the Town of Dubuque, Iowa; and
WHEREAS, the loan provided for it
only out of the net earnings of the parking
lien on the future net revenues thereof; and
the Agreement shall be payable solely and
enterprise system of the City and shall be a
WHEREAS, before such an agreement may be authorized, it is necessary to
comply with the provisions of the City Code of Iowa, as amended, and to publish a
notice of the proposal and of the time and place of the meeting at which the Council
proposes to take action for the authorization of the agreement and to receive oral and/or
written objections from any resident or property owner of the City to such action;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
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Section 1. That this City Council meet in the Historic Federal Building, 350 West
6th Street, Dubuque, Iowa, at 6:30 o'clock P.M., on the 16th day of June, 2008, for the
purpose of taking action on the matter of the authorization of the Agreement and the
approval of the provisions thereof, in the principal amount of $400,000.00, for the
purpose of acquiring the real property described therein.
Section 2. That the City Clerk is hereby directed to cause at least one
publication to be made of a notice of said meeting, in a legal newspaper, printed wholly
in the English language, published at least once weekly, and having general circulation
in said City, said publication to be not less than four clear days nor more than twenty
days before the date of said public meeting on the authorization of said Agreement.
Section 3. The notice of the proposed action shall be in substantially the
following form:
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NOTICE OF MEETING OF THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA, ON THE MATTER OF THE
PROPOSED AUTHORIZATION OF A LOAN AGREEMENT
BETWEEN THE CITY OF DUBUQUE AND DUBUQUE
INITIATIVES IN THE PRINCIPAL AMOUNT OF
$400,000.00, AND PROVIDING FOR PUBLICATION OF
NOTICE THEREOF
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque,
Iowa (the "City") will hold a public hearing on the 16th day of June, 2008, at 6:30 o'clock
P.M., in the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at which
meeting the Council proposes to take additional action for the authorization of a Loan
Agreement , in the principal amount of $400,000.00 (the "Agreement"), between the
City and Dubuque Initiatives, as Lender, for the purpose of acquiring the real property
described therein. Principal and interest due on the Agreement will be payable solely
and only out of the net revenues of the parking enterprise system of the City and shall
be a lien on the future net revenues thereof
A copy of the Agreement has been placed on file in the office of the City Clerk
and may be inspected during regular office hours.
At the above meeting the Council shall receive oral or written objections from any
resident or property owner of the City, to the above action. After all objections have
been received and considered, the Council will at this meeting or at any adjournment
thereof, take additional action for the authorization of the Agreement or will abandon the
proposal.
This Notice is given by order of the City Council of Dubuque, Iowa, as provided
by Sections 384.24A and 384.83 of the City Code of Iowa, as amended.
Dated this 6th day of June, 2008.
Jeanne F. Schneider, CMC
City Clerk
1t 6/6
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PASSED AND APPROVED this 2nd day of
June , 2008.
Mayor
ATTEST:
City Clerk
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CIG-3
9/91
CERTIFICATE
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is
a true and complete copy of the portion of the corporate records of said Municipality
showing proceedings of the Council, and the same is a true and complete copy of the
action taken by said Council with respect to said matter at the meeting held on the date
indicated in the attachment, which proceedings remain in full force and effect, and have
not been amended or rescinded in any way; that meeting and all action thereat was duly
and publicly held in accordance with a notice of meeting and tentative agenda, a copy of
which was timely served on each member of the Council and posted on a bulletin board
or other prominent place easily accessible to the public and clearly designated for that
purpose at the principal office of the Council (a copy of the face sheet of said agenda
being attached hereto) pursuant to the local rules of the Council and the provisions of
Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at
least twenty-four hours prior to the commencement of the meeting as required by said
law and with members of the public present in attendance; I further certify that the
individuals named therein were on the date thereof duly and lawfully possessed of their
respective city offices as indicated therein, that no Council vacancy existed except as
may be stated in said proceedings, and that no controversy or litigation is pending,
prayed or threatened involving the incorporation, organization, existence or boundaries
of the City or the right of the individuals named therein as officers to their respective
positions.
WITNESS my hand and the seal of said Municipality hereto affixed this 3rd day of
June, 2008.
ity Clerk, Dubuque, Iowa
SEAL
F:\USERS\DHeiar\Bricktown Parking Lot\Dubuque Initiatives resolution setting hearing.doc
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(This Notice to be posted)
NOTICE AND CALL OF PUBLIC MEETING
Governmental Body: The City Council of Dubuque, Iowa.
Date of Meeting: June 2, 2008.
Time of Meeting: 6:30 o'clock P.M.
Place of Meeting: Historic Federal Building, 350 West 6th Street, Dubuque,
Iowa.
PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental
body will meet at the date, time and place above set out. The tentative agenda for said
meeting is as follows:
• Resolution fixing date for a meeting on the authorization of a Loan
Agreement between the City of Dubuque and Dubuque Initiatives,
and providing for publication of notice thereof
Such additional matters as are set forth on the additional 14 page(s) attached hereto.
This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of
Iowa, and the local rules of said governmental body.
ity Clerk, Dubuque, Iowa
June 3, 2008
The City Council of Dubuque, Iowa, met in Regular session, in the Historic
Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6:30 o'clock P.M., on the
above date. There were present Mayor Roy D. Buol in the chair, and the following
named Council Members:
Karla Braig, Joyce Connors, Ric Jones, Kevin Lynch, David Resnick
and Dirk Voetberg
Absent: None
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LOAN AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE INITIATIVES
This Loan Agreement, dated for reference purposes the day
of 2008, by and between the City of Dubuque, Iowa (City) acting
through its City Council (the Council) and Dubuque Initiatives of Dubuque, Iowa
(Lender). The parties agree as follows:
1. Lender shall loan to City the sum of $400,000 (the Loan).
2. The Loan proceeds shall be used to pay the costs of the purchase of Lots
87, 88, and the North 20 feet 3 inches of Lot 86 in the City of Dubuque, Iowa, according to
the United States Commissioners' Map of the Town of Dubuque, Iowa (the Project).
3. City agrees to repay the Loan, with interest at 5% per annum, according to
the Loan Amortization Schedule attached hereto.
4. The Council has adopted a Resolution (the Resolution) authorizing and
approving the form of this Loan Agreement and establishing the terms thereof, and the
Resolution is incorporated herein by reference, and the parties agree to abide by the
terms and provisions of the Resolution. The Loan and the interest thereon shall be
payable solely and only out of the net earnings of the parking enterprise system of the
City and shall be a lien on the future net revenues thereof. The Loan shall not be a
general obligation of the City nor shall it be payable in any manner by taxation, and the
City shall in no manner be liable by reason of the failure of the net revenues to be
sufficient for the payment of the Loan,
5. City may borrow additional money, issue bonds or enter into other loan
agreements and issue additional bonds or notes which are at the time of their issuance
on a parity and equality of rank with the Loan with respect to the lien and claim of such
collection of net revenues, [provided that the total indebtedness of the City including this
Loan Agreement does not exceed the Constitutional or statutory limitations.
6. In connection with the Loan, Lender represents and agrees as follows:
a. Lender understands that no prospectus or official statement
containing material information with respect to City, the Loan or the Project is
being prepared or authorized by City and that, with the degree of due diligence
Lender deems necessary, Lender has made its own investigation and analysis
with respect to City, the Project and the Loan and the security therefore.
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b. Lender is acquiring the Loan for its own account and not with a
view to resale or other distribution thereof and does not presently intend to divide
the Loan or to resell or otherwise dispose of all or any portion of the Loan.
c. Lender understands that the Loan (i) is not being registered under
the Securities Act of 1933, as amended, and is not being registered or otherwise
qualified for sale under the laws of the State of Iowa or the "blue sky" laws and
regulations of any other state, (ii) will carry no rating from any national rating
agency, and (iii) may not be readily marketable.
7. This Loan Agreement is executed pursuant to the provisions of Sections
384.24A and 384.25 of the City Code of Iowa, as amended, and shall be read and
construed as conforming to all provisions and requirements thereof.
IN WITNESS WHEREOF, we have hereunto affixed our signatures all as of the
date first above written.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
ATTEST:
Jeanne F. Schneider, City Clerk
(SEAL)
DUBUQUE INITIATIVES
By:
(Signature)
(Name)
(Title)
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Loan Amortization Schedule
290 Locust Street (Bricktown Parking Lot)
Loan Amount
Annual Interest Rate
Term of Loan in Years
First Payment Date
Frequency of Payment
5.00%
15
1 /1 /2009
Semi-Annually
No. Due Date Payment Due Interest Principal Balance
$ 400,000.00
1 1 /1 /2009 $ 19,111.06 $ 10,000.00 $ 9,111.06 $ 390,888.94
2 7/1/2009 $ 19,111.06 $ 9,772.22 $ 9,338.84 $ 381,550.10
3 1 /1 /2010 $ 19,111.06 $ 9,538.75 $ 9,572.31 $ 371,977.79
4 7/1 /2010 $ 19,111.06 $ 9,299.44 $ 9,811.62 $ 362,166.17
5 1 /1 /2011 $ 19,111.06 $ 9,054.15 $ 10,056.91 $ 352,109.26
6 7/1/2011 $ 19,111.06 $ 8,802.73 $ 10,308.33 $ 341,800.93
7 1 /1 /2012 $ 19,111.06 $ 8,545.02 $ 10,566.04 $ 331,234.89
8 7/1/2012 $ 19,111.06 $ 8,280.87 $ 10,830.19 $ 320,404.70
9 1 /1 /2013 $ 19,111.06 $ 8, 010.12 $ 11,100.94 $ 309, 303.76
10 7/1/2013 $ 19,111.06 $ 7,732.59 $ 11,378.47 $ 297,925.29
11 1 /1 /2014 $ 19,111.06 $ 7,448.13 $ 11,662.93 $ 286,262.36
12 7/1 /2014 $ 19,111.06 $ 7,156.56 $ 11, 954.50 $ 274, 307.86
13 1/1/2015 $ 19,111.06 $ 6,857.70 $ 12,253.36 $ 262,054.50
14 7/1/201.5 $ 19,111.06 $ 6,551.36 $ 12,559.70 $ 249,494.80
15 1/1/2016 $ 19,111.06 $ 6,237.37 $ 12,873.69 $ 236,621.11
16 7/1 /2016 $ 19,111.06 $ 5,915.53 $ 13,195.53 $ 223,425.58
17 1/1/2017 $ 19,111.06 $ 5,585.64 $ 13,525.42 $ 209,900.16
18 7/1/2017 $ 19,111.06 $ 5,247.50 $ 13,863.56 $ 196,036.60
19 1/1/2018 $ 19,111.06 $ 4,900.92 $ 14,210.14 $ 181,826.46
20 7/1/2018 $ 19,111.06 $ 4,545.66 $ 14,565.40 $ 167,261.06
21 1 /1 /2019 $ 19,111.06 $ 4,181.53 $ 14, 929.53 $ 152, 331.53
22 7/1/2019 $ 19,111.06 $ 3,808.29 $ 15,302.77 $ 137,028.76
23 1 /1 /2020 $ 19,111.06 $ 3,425.72 $ 15,685.34 $ 121, 343.42
24 7/1/2020 $ 19,111.06 $ 3,033.59 $ 16,077.47 $ 105,265.95
25 1/1/2021 $ 19,111.06 $ 2,631.65 $ 16,479.41 $ 88,786.54
26 7/1/2021 $ 19,111.06 $ 2,219.66 $ 16,891.40 $ 71,895.14
27 1 /1 /2022 $ 19,111.06 $ 1, 797.38 $ 17, 313.68 $ 54, 581.46
28 7/1/2022 $ 19,111.06 $ 1,364.54 $ 17,746.52 $ 36,834.94
29 1 /1 /2023 $ 19,111.06 $ 920.87 $ 18,190.19 $ 18,644.75
30 7/1/2023 $ 19,110.87 $ 466.12 $ 18,644.75 $ 0.00
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OFFER TO BUY REAL ESTATE AND ACCEPTANCE
TO: Paul M. Fahey (Seller)
SECTION 1. REAL ESTATE DESCRIPTION. The City of Dubuque, Iowa (Buyer)
offers to buy real estate in Dubuque County, Iowa, described as follows:
Lots 87, 88, and the North 20 feet 3 inches of Lot 86 in the City of Dubuque, Iowa,
according to the United States Commissioners' Map of the Town of Dubuque, Iowa
with any easements and appurtenant servient estates, but subject to the following: a. any
zoning and other ordinances; b. any covenants of record; c. any easements of record for
public utilities, roads and highways (the Real Estate).
SECTION 2. PRICE. The purchase price shall be $400,000.00 payable in cash at
closing. The closing shall be July 1, 2008.
SECTION 3. REAL ESTATE TAXES. Seller shall pay all real estate taxes payable for
the fiscal year in which the closing takes place and prorated to the date of possession and
any unpaid real estate taxes for prior years. Buyer shall pay all subsequent real estate
taxes.
SECTION 4. POSSESSION. If Buyer timely performs all obligations, possession of the
Real Estate shall be delivered to Buyer on July 1, 2008, with any adjustments of rent,
insurance, and interest to be made as of the date of transfer of possession.
SECTION 5. USE OF PURCHASE PRICE. At the time of settlement, funds of the
purchase price may be used to pay taxes and other liens and to acquire outstanding
interests, if any, of others.
SECTION 6. ABSTRACT AND TITLE. Seller, at Seller's expense, shall promptly
obtain an abstract of title to the Real Estate continued through the date of acceptance of
this offer, and deliver it to Buyer for examination. It shall show merchantable title in Seller
in conformity with this agreement, Iowa law and Title Standards of the Iowa State Bar
Association. The abstract shall become the property of the Buyer when the purchase
price is paid in full.
SECTION 7. DEED. Upon payment of the purchase price, Seller shall convey the Real
Estate to Buyer by Warranty Deed, free and clear of all liens, restrictions, and
encumbrances except as provided in 1 a. through 1 .c. Any general warranties of title
052308ba1
shall extend only to the time of acceptance of this offer, with special warranties as to acts
of Seller continuing up to time of delivery of the deed.
SECTION 8. TIME IS OF THE ESSENCE. Time is of the essence in this Contract.
SECTION 9. REMEDIES OF THE PARTIES.
9.1 If Buyer fails to timely perform this Contract, Seller may forfeit it as provided in the
Iowa Code, and all payments made shall be forfeited or, at Seller's option, upon thirty
days written notice of intention to accelerate the payment of the entire balance because of
such failure (during which thirty days such failure is not corrected) Seller may declare the
entire balance immediately due and payable. Thereafter this Contract may be foreclosed
in equity and the Court may appoint a receiver.
9.2 If Seller fails to timely perform this Contract, Buyer has the right to have all
payments made returned to it.
9.3 Buyer and Seller also are entitled to utilize any and all other remedies or actions at
law or in equity available to them and shall be entitled to obtain judgment for costs and
attorney fees as permitted by law.
SECTION 10. CONTRACT BINDING ON SUCCESSORS IN INTEREST. This Contract
shall apply to and bind the successors in interest of the parties.
SECTION 11. TIME FOR ACCEPTANCE. If this offer is not accepted by Seller on or
before , 2008, it shall become void and all payments shall be repaid to the
Buyer.
SECTION 12. JOINDER BY SELLER'S SPOUSE. Seller's spouse, if not a titleholder
immediately preceding acceptance of this offer, executes this Contract only for the
purpose of relinquishing all rights of dower, homestead and distributive shares or in
compliance with Section 561.13 of the Iowa Code and agrees to execute the deed or real
estate Contract for this purpose.
SECTION 13. RIGHTS OF INSPECTION, TESTING AND REVIEW. Buyer, its counsel,
accountants, agents and other representatives, shall have full and continuing access to
the Real Estate and all parts thereof, upon reasonable notice to Seller. Buyer and its
agents and representatives shall also have the right to enter upon the Real Estate at
any time after the execution and delivery hereof for any purpose whatsoever, including
inspecting, surveying, engineering, test boring, performance of environmental tests and
such other work as Buyer shall consider appropriate, provided that Buyer shall hold
052308ba1
Seller harmless and fully indemnify Seller against any damage, claim, liability or cause
of action arising from or caused by the actions of Buyer, its agents, or representatives
upon the Real Estate (except for any damage, claim, liability or cause of action arising
from conditions existing prior to any such entry upon the Real Estate), and shall have
the further right to make such inquiries of governmental agencies and utility companies,
etc. and to make such feasibility studies and analyses as it considers appropriate.
(1) Environmental Condition. Seller warrants to the best of its knowledge
and belief that there are no wells, solid waste disposal sites, hazardous wastes
or substances, underground storage tanks or burial sites located on the Real
Estate, except as set out below. Seller further warrants that with the exception of
a former petroleum underground storage tank release(s), Seller has done nothing
to contaminate or allow the contamination of the Real Estate and has no
knowledge of any contamination other than that from the former petroleum
underground storage tank release(s). Seller warrants that the Real Estate is not
subject to any local, state, or federal judicial or administrative action,
investigation or order regarding its environmental condition or environmental
compliance, except as may arise from the former petroleum underground storage
tank release(s). Seller shall provide Buyer with a properly executed Groundwater
Hazard Statement showing no wells, solid waste disposal sites, hazardous
wastes, underground storage tanks and private burial sites on the Real Estate,
with the exception of a former petroleum underground storage tank release(s),
which shall be considered a warranty and representation by Seller to Buyer.
Buyer shall have the right to inspect the Real Estate prior to the closing and to
take whatever tests or perform such examination, as Buyer shall deem
appropriate, at its own risk and its sole cost and expense, to evaluate the
environmental condition of the Real Estate and allow Seller to make the
environmental determinations required herein. Prior notice of such activity by
Buyer shall be provided to Seller and written results of such activity shall be
shared with Seller. In the event any adverse environmental condition is
discovered or suspected on, at, under, or about the Real Estate, Buyer's
obligation hereunder shall be contingent upon the resolution of the environmental
condition by Seller in a manner satisfactory to Buyer, in its sole discretion. Seller
shall have no more than five (5) days to respond to Buyer with what steps Seller
is willing to take and in what time period to resolve Buyer's concerns regarding
the environmental condition of the Real Estate. If environmental matters cannot
be resolved to Buyer's satisfaction, Buyer shall have the option to cancel this
transaction and declare this Agreement null and void. Seller shall fully cooperate
with Buyer and/or Buyer's representative in the environmental assessment and
investigation.
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(2) Release of Reports and Data. Within five (5) days of the date of this
Agreement, Seller shall provide to Buyer copies of any and all reports,
correspondence, sampling or monitoring results related to the environmental
condition of the Real Estate. Upon request, Buyer shall promptly provide Seller
with a copy of all environmental consulting or engineering reports, separate
laboratory analysis reports, and other material information and data received by
Buyer regarding the environmental condition of the Real Estate, or which are
otherwise received or generated pursuant to this Agreement.
SECTION 14. VIOLATIONS OF REGULATIONS. Seller warrants that there are no
notices, orders, suits, judgments or other proceedings relating to fire, building, zoning,
air pollution, health violations or other matters that have not been corrected. Seller has
notified Buyer in writing of any past notices, orders, suits, judgments or other
proceedings relating to fire, building, zoning, air pollution or health violations as they
relate to the Real Estate of which it has actual notice;
SECTION 15. ENCUMBRANCES. Seller warrants that the Real Estate will as of the
date of closing be free and clear of all liens, security interests, and encumbrances;
SECTION 16. UNDERGROUND STORAGE TANKS. Seller warrants and represents
that there are no underground storage tanks or piping on or in the Real Estate and that
all such tanks and piping have been removed according to applicable state regulations.
SECTION 17. TENANTS. The Property is free and clear of any occupants, and no party
has a lease to or other occupancy or contract right in the Property which shall in anyway
be binding upon the Property, except for the Contract referred to in Sec. 18.4;
SECTION 18. OTHER PROVISIONS.
18.1 This Offer is subject to the approval of the City Council of the City of Dubuque,
Iowa, by not later than June 16, 2008.
18.2. This Offer is subject to approval of the City Council of the City of Dubuque, Iowa,
by not later than June 16, 2008 of a Loan Agreement between the City and
Dubuque Initiatives for the purchase of the Real Estate on terms acceptable to the
City Council.
18.3. This Offer is subject to the assignment by Robert Humke and Pride Service, Inc. to
Seller and acceptance of such assignment by Underground Storage Tank Fund
(the Fund) of all rights and any co-payment responsibilities for remedial benefits
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through the Iowa Comprehensive Petroleum Underground Storage Tank Fund for
UST Site LUST No. 7LTJ87 Registration No. 8601272, together with approval by
the City Council of an agreement by Seller and Robert Humke and Pride Service,
Inc. that City shall not be required to reimburse Seller or Robert Humke or Pride
Service, Inc, or their successors or assigns, or any third party for any co-payments
already made by any of them to the Fund .
18.4. This Offer is subject to the termination of the Real Estate Contract between Seller
and Cooper Acquisitions, LLC, filed November 18, 2002, Instrument No. 22160-02
prior to the date of closing.
18.5. This Offer is subject to the approval by the City Council by not later than June 16,
2008 of an agreement between Buyer and Cooper Development, LLC to retain the
Real Estate as a parking lot for ten years from the date of closing in consideration
for payment by Cooper Development, LLC to City of $1000.00 per month for such
ten year period.
Dated:
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen, City Manager
THIS OFFER IS ACCEPTED
PAUL M. FAH EY
KATHY FAHEY
Dated:
052308ba1
-"v"' STATE O F I O ANA
Fields of Opportunities
CHESTER J. CULVER, GOVERNOR DEPARTMENT OF NATURAL RESOURCES
PATTY JUDGE, LT. GOVERNOR ~ RICHARD A, LEOPOLD, DIRECTOR
December 20, 2007
Robert Humke
Pride Service, Inc.
6754 Mitchell Road
LaMotte, lA 52054-9530
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CERTIFIED MAIL
SUBJECT: Site Monitoring Report Review -'Martin Oil at 280 Locust Street in Dubuque, Iowa
Registration No. 8601272 LUST No. 7LTJ8?
Dear Mr. Humke:
The Department of Natural Resources (DNR) has received the Site Monitoring Report (SMR) for the
referenced site on 12/12/05. Thank you for the submittal. The site was originally classified as high risk in
the department's 11/13/00 letter. The 12/12/05 report recommends site reclassification to "no action
required". We have conducted a completeness review of the reports as described in Subrule 567-
135.12(6) of the Iowa Administrative Code. A Site Monitoring Report is considered to be complete if it
contains all information and data required by the DNR's administrative rules and guidance.
Upon review of the report and file information we can not reclassify the site at this time. The department
accepts the reclassification of the Soil Leaching and Soil Vapor pathways to "no action required" based
on soil resampling conducted in 2005. However, the site remains classified high risk for the Groundwater
Vapor pathway for actual receptors and low risk for the potential Groundwater Ingestion and
Groundwater Vapor pathways. Based on the groundwater data the department will not require active
corrective action at this time. Refer to subsequently listed deficiencies.
The department identified some technical problems in the SMR. These problems require correction/
clarification with the revised SMR submittal:
1. Not all monitoring wells from the accepted Tier 2 were sampled for the report. An explanation/
justification for deviation from the monitoring plan was not provided. SMR received by the
department 12/27/02 states in the Site Reclassification section "...EMW-1, EMW-2, MW-6, EMW-3
and MW-2 have been destroyed, Maxim is recommending replacement of wells EMW-1, EMW 2,
MW-6 and MW-2 ". Only MW-2 (source well) was replaced in 2003. ACSNR and ASSNR receptors
are high risk for toluene. EMW-1 is located between the groundwater source and ACSNR-1 and
ASSNR-1 receptors and satisfies the Transition/Guard (T/G) well criteria for these receptors. Note:
ACSNR is located more than SOft from the source well. The department acknowledges other wells
from the Tier 2 monitoring plan (e.g. MW-5, MW-7, MW-9, etc.) have been sampled and are below
the SSTLs. However, they are all located past the high risk receptors. At minimum installation and
sampling of EMW-1 is required. Refer-to issue #2.
2. The steady and declining criteria have not been met at the site. The department acknowledges
the SSTLs have been met. Based on available groundwater data the department will waive
monitoring of all monitoring wells from the accepted Tier 2 monitoring plan that have not
WALLACE STATE OFFICE BUILDING / 502 EAST 9th STREET /DES MOINES, IOWA 50319-0034
515-281-5918 TDD 515-242-5967 FAX 515-281-6794 www.iowadnr.gov
reached steady and declining criteria. However, you are required to monitor MW-2, EMW-1,
and MW-5 until exit monitoring criteria is met for all chemicals of concern. Note: ethylbenzene
concentration in MW-5 increased significantly during 08/31/05 sampling event.
The department has identified some technical problems which may not be acceptable in future report
submittals. These problems do NOT require correction in the report, but are identified below for the
attention and benefit of your consultant.
1. The SMR report title page was not provided. Tier 2 report title page was provided instead.
2. Percent reduction should have been applied to all soil data for the software the choose the correct soil
maximum (which is the resampled maximum location, not the next highest concentration).
3. The Soil Contamination map is illegible. Use larger scale.
4. The Groundwater Contamination map is not a copy from the accepted Tier 2 report. Refer to page 12
of the SMR guidance for the requirements
5. The date of measurements is not indicated on the Groundwater Flow Direction map.
The department can not accept the SMR at this time based on the above defrciencies. You are
required to complete the following:
Within 90 calendar days submit a revised SMR. Note that this completeness review does not
address accuracy. Accuracy problems, if present in this report, may prevent its acceptance when
this site is proposed for a no action required classification. Be aware that the outlined deficiencies
in the SMR must be fully addressed in conjunction with a S1l~IIZ re-submittal. Incomplete SMR
Reports not submitted in the format required by the department will be rejected.
Attach a cover letter to the revised SMR. In the cover letter provide a brief description of how each
of the above listed defrciencies has been addressed in the revised report. With each response
provide a reference ident~ing where revisions are located in the revised report. List and number
your responses in the same order as the deficiencies. If a deficiency can be completely addressed
solely with a brief, concise statement in the cover letter, rather than by inclusion of a revised page
or section in the report, you may do so.
If a letter is submitted instead of a SMR revision, a new SMR Report cover page, signed by yourself
and your Certified Groundwater Professional, must be included with the letter.
If you are unable to meet the above schedule, notify the department in writing as soon as possible.
Provide a detailed reason for the delay. and a firm date by which the report will be submitted.
If you have any questions or if we may be of further assistance please feel free to contact me at
Rochelle.Cardinale@ dnr.iowa.gov or by phone 515/242-6488 or Kate.Meyer@dnr.iowa.gov or by phone
at 515/242-6491. In all correspondence regarding this project, please include the LUST number, which is
indicated in the subject heading of this letter.
Sincerely,
~~~~
Kate Meyer
Environmental Specialist
Underground Storage Tank Section
C: Field Office 1
G~B Robins
(Gaylen Hiesterman, Tetra Tech, Inc., 2213 LaPorte Road, Waterloo, IA 50702
'~ TETRATECH
May 1, 2008
Mr. Paul Fahey
Rainbo Oil Company
2255 Kerper Blvd
Dubuque, IA 52001
Subject: Resort Review/Comment:
Former Martin Oil
280 Locust Street
Dubuque, IA
LUST #7LTJ87
UST #8601272
Dear Mr. Fahey:
Tetra Tech respectfully submits this letter in response to Ms. Jill Reimer's request on April 30,
2008. This letter outlines the contaminant trends of those chemicals of concern, as documented
in the attached Site Monitoring Report, which are being monitored as required by the Iowa DNR.
The above referenced LUST facility has previously been classified "high risk" due to toluene
concentration in a groundwater sample from MW-2 in May 2000 and historical soil contamination
from a sample collected in 1990 during tank closure activities. In addition, "low risk" conditions
exist due to contaminant concentrations and the presence of potential receptors based on
property zoning and soil types. Subsequent site work from 2001 to 2005 included collection of
groundwater and soil samples for analysis of chemicals of concern which has resulted in
reclassification of all soil pathways to "no further action" due to levels in soil less than applicable
Iowa DNR target levels.
In addition, groundwater data collected from 2001 to 2005 indicates an overall reducing trend
across the site with no monitoring wells sampled in 2004 and 2005 having a level of benzene,
toluene, ethyl benzene or xylene that exceeded that chemicals "low risk" action level.
Unfortunately the Iowa DNR was not willing to grant the reclass~cation request in 2005 to "no
action required" due to the groundwater data not meeting the steady or declining trend (increase
>20% from previous sample) as outlined in applicable rules and guidelines.
_- Therefore in~pptzIIO$_vyE~ected-#he-three-groundwater-sarx~sles~peei#ied~y~e~owa-BNR- __
and analyzed those samples for the four chemicals of concerns listed previously. Resuks
indicated benzene and toluene concentrations decreased at all three locations since 2005. Ethyl
benzene and xylene concentrations decreased at two locations while increasing >20% at one
location since 2005.
Further evaluation of the 2008 groundwater data indicates that no minimum action level has been
exceeded for the four chemicals of concern. For Iowa DNR to require any further assessment
activities or corrective action at this site, as long as receptors stay the same, any of the four
Tetra Teti
2213 La Porte Road, Waterloo. IA 50702
7e1 319.232.6591 Fax 319.232.0373 www.tetratech.com
chemicals of concern would have to increase to levels greater than those listed below.
• Benzene -minimum action level of 290 parts per billion in groundwater
• Toluene -minimum action level of 7,300 parts per billion in groundwater
• Ethyl benzene -minimum action level of 3,700 parts per billion in groundwater
• Xylene -minimum action level of 73,000 parts per billion in groundwater
In summary, based on current Iowa DNR rules and interpretation of those rules, obtaining "no
further action" status for this site, or any LUST site in Iowa, requires not only the action levels
being met for three consecutive sampling events but also meeting the steady and declining trend.
If Tetra Tech can be of any further assistance on this project please call us at (319) 232-6591.
Sincerely,
D. l iesterman, CGP ',~
Manager
GDH/mho
Attachment: Site Monitoring Report for LUST #7LTJ87