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Miss. Valley Truck, Miller purcMEMORANDUM November 26, 2002 TO:The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Offer to Buy Real Estate and Acceptance - Mississippi Valley Truck Center, Inc. (William and Mary MilledMiller Logging Company) Economic Development Director Bill Baum recommends City Council approval of the Offer to Buy 1.486 acres of Real Estate and Acceptance of the property on the 4th Street Peninsula owned by Mississippi Valley Truck Center, Inc. The negotiated purchase of this property includes the following significant terms: 1. Purchase price of $517,500, to be paid at closing (on or before February 3, 2003). Possession will occur on July 1, 2003. The Millers will remain on the property rent-free during the intervening time subject to granting the City an easement for public utility work for Bell Street on the easterly portion of their property prior to closing. 2. The City will recognize a charitable contribution by the Millers for the difference between the purchase price and their most recent appraisal. 3. The City agrees to release, indemnify and hold harmless the Millers from any liability for environment matters. The City has previously performed a Phase I Environmental Assessment that identified approximately 10 barrels of unknown substances stored on the property. The Millers are required to dispose of the barrels prior to closing. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager William Baum, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM November 25, 2002 TO:Michael Van Milligen, City Manager FROM:William Baum, Economic Development Director SUBJECT:Offer to Buy Real Estate and Acceptance - Mississippi Valley Truck Center, Inc. (VVilliam and Mary Miller/Miller Logging Company) Introduction This memorandum presents for City Council review and approval an Offer to Buy Real Estate and Acceptance for the sale of 1.486 acres of land owned by Mississippi Valley Truck Center, Inc. (William and Mary Miller) on the 4th Street Peninsula to the City. Background The City has been negotiating the purchase of the Mississippi Valley Truck Center property for over two years. The City Economic Development Department, and Barry Lindahl have met on many occasions with the owners, Bill and Mary Miller and their attorney Brian Kane. The City has assisted the company in finding a new location by hiring engineers and real estate brokers, resulting in visit to potential properties. After reviewing many sites, the Millers have located a site south of the City near the intersection of US61/151, and have recently obtained rezoning approval of the property. In May of 2002 the City Council established fair market value of $442,669 for the 1.486 acres of property, which included a deduct for demolition of existing structures. After unsuccessful negotiations, the City moved forward and approved eminent domain action in October 2002. Discussion Negotiations continued over the value of the property, particularly the differences in the appraisals completed by the City and the property owners. Final negotiations between the City staff and the property owners have concluded with this recommended negotiated purchase of this property with the following significant terms: 1. Purchase price of $517,500, to be paid at closing (on or before February 3, 2003). Possession will occur on July 1,2003. The Millers will remain on the property rent-free during the intervening time subject to granting the City an easement for public utility work for Bell Street on the eastedy portion of their property prior to closing. 2. The City will recognize a charitable contribution by the Millers for the difference between the purchase pdce and their most recent appraisal. 3. The City agrees to release, indemnify and hold harmless the Millers from any liability for environment matters. The City has previously performed a Phase I Environmental Assessment that identified approximately 10 barrels of unknown substances stored on the property. The Millers are required to dispose of the barrels prior to closing. 4. Relocation expenses will also be paid to the company and are estimated to be $62,000 plus the cost of connecting and disconnecting the equipment used in the mulching operation of the company. Recommendation This acquisition will support the adopted Master Plan for the Port of Dubuque and will further the redevelopment activities taking place as part of the America's River projects, including the extension of Bell Street. I recommend that the City Council approve the Offer to Buy Real Estate and Acceptance for the property on the 4th Street Peninsula owned by Mississippi Valley Truck Center, Inc. Action Step The action step is to approve the attached Offer to Buy Real Estate and Acceptance. Attachment F:\USERS\WBaum\Port of Dubuque\offertobuy. mem.millertrucking~doc Prepared By: Brian J. Kane, 2100 Asbury Road, Suite 2, Dubuque, IA 52001 (563) 582-7980 OFFER TO BUY REAL ESTATE AND ACCEPTANCE TO: MISSISSIPPI VALLEY TRUCK CENTER, INC., an Iowa business corporation ("Seller") The undersigned Buyer hereby offers to purchase certain real estate located in Dubuque County, Iowa, from the Seller, upon the following terms and conditions: 1. Real Estate Description. Buyer offers to buy real estate in Dubuque County, Iowa, described as follows: William Miller Fourth Street Place in the City of Dubuque, Iowa, plus that portion of Wall Street and the alley depicted on the Plat referred to as Instrument No. 4034- 72 of the records of the Dubuque County Recorder, attached hereto as Exhibit "A" and by this reference made a part hereof, with any easement and appurtenant servient estates, but subject to any zoning and other ordinances, any covenants of record, any easements of record for public utilities, roads and highways, and any other easements of record, hereafter designated the "Real Estate." Seller acknowledges that Buyer disputes Seller's ownership of the highhghted portion of Exhibit "A". Buyer acknowledges that Seller disputes Buyer's objection to Seller's ownership of the highhghted areas shown on Exhibit "A". This transaction resolves in full such dispute. 2. Bargain Sale/Purchase Price. The parties acknowledge that: (a) The Buyer, as a municipal corporation in the State of Iowa, has commenced eminent domain proceedings to condemn the Real Estate; and, (b) The parties acknowledge that the value of the Real Estate, shown by the appraisal obtained by Seller, is $672,462.00. Attached hereto as Exhibit "B" and by this reference made a part hereof is the November 15, 2002 cover letter to the appraisal performed for Seller by Ms. Mary Clarke, of Luksetich Appraisals, of Dubuque, Iowa, which the parties acknowledge to be the value of the Real Estate shown by the appraisal; and, Page 1 of 11 (c)The Seller, as a long term corporate citizen of the City of Dubuque, Iowa, and with the intent to make a gift, is willing to sell the Real Estate to Buyer for: (i)$517,500,00, to be paid pursuant to Section 2(d)(i) below, and, (ii)Seller, with donative intent, gives the balance of the value of the Real Estate, or $154,962.00, to Buyer. Buyer acknowledges that Buyer is a charitable entity within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Buyer agrees to execute at the Closing (defined below) the Form 8283, Non-Trust Charitable Contribution, recognizing the receipt of, and the value (pursuant to the appraisal) of the charitable contribution made by Seller to Buyer as referred to herein; and, (d) The bargain sale aspect of this transaction shall be paid as follows: (i)$517,500.00 to be paid at the Closing by certified check, cashier's check, electronic funds transfer or other means which provides immediately available cash to the Seller; and, (ii)The purchase and bargain sale of this Real Estate, and the acceptance of the charitable contribution made herein, is subject only to the conditions and contingencies described in this Offer to Buy Real Estate and Acceptance. Buyer represents to Seller that Buyer has sufficient funds to close this transaction in a timely fashion. 3. Real Estate Taxes. Real estate taxes shall be prorated to the date of Closing. Buyer shall be responsible for real estate taxes, if any, after the date of Closing on the Real Estate. 4. Special Assessments. Buyer shall pay all special assessments which are a lien on the Real Estate as of the date of acceptance of this offer. All other special assessments shall be paid by Buyer. The parties acknowledge that there are no special assessments against the Real Estate as of the date hereof. 5. Risk of Loss and Insurance. The parties acknowledge that the Real Estate is not susceptible to loss from the date of this Offer through and including the Date of Possession hereof; Page 2 of 11 therefore, prior to Seller's delivery of possession of the Real Estate to Buyer, all risk of loss shall be upon Buyer until possession of the Real Estate shall be delivered to Buyer on the Date of Possession. Seller shall maintain existing liability insurance as set out in Exhibit "C" attached hereto and by this reference made a part hereof from the Date of Closing to the Date of Possession. 6. Care and Maintenance. The Real Estate shall be preserved in its present condition and delivered intact at the time possession is delivered to Buyer, ordinary and reasonable wear and tear excepted. See Sections 8 and 19 below. 7. Possession/Date of Closing. If Buyer timely performs all obligations, possession of the Real Estate shall be delivered to Buyer free from ail tenancies (including MILLER LOGGING COMPANY) on (or at the election of Seller, before) July 1, 2003 ("Date of Possession"). The Closing shall occur on or before January 2, 2003 (herein sometimes referred as the "Closing Date" or "Closing"). Seller shall, prior to July 1, 2003, remove at Seller's cost all of the property described in the inventory attached hereto as Exhibit "D" and by this reference made a part hereof and no personal property of Seller (or MIDWEST LOGGING COMPANY) shall be located upon the Real Estate after July 1, 2003. In all other respects, no personal property of Seller shall be located upon the Real Estate afler the Date of Possession. The parties agree to physically meet at the Real Estate on the Date of Possession to inspect the Real Estate. If Seller fails to deliver possession to Buyer on or before the Date of Possession, or should Seller (or MILLER LOGGING COMPANY) allow any of their personal property to remain on the Real Estate (not including buildings or fixtures), then Seller shall be obhgated to pay to Buyer $1,000.00 per day as a penalty until such personal property is removed. The parties agree to cooperate in order to effectuate the foregoing. Seller is responsible to Buyer for moving the personal property of MILLER LOGGING COMPANY. 8. Improvements. All improvements that integrally belong to or are part of the Real Estate shall be considered a part of the Real Estate and included in this sale. Notwithstanding the foregoing, Seller may remove any such improvements or other fixtures which belong to or are a part of the Real Estate at or prior to the Date of Possession. 9. Use of the Purchase Price. At time of settlement, funds of the purchase price maybe used to pay taxes and other liens and to acquire outstanding interests, if any, of others. 10. Abstract of Title. Seller, at Buyer's expense, shall promptly obtain an abstract of title to the Real Estate (except for the streets, alleys and other areas depicted on Exhibit "A" attached hereto and by this reference made a part hereof) continued through the date of this agreement which shall be examined by Buyer's attorney. Such abstract shall show merchantable title in Seller to that portion of the Real Estate to which title is not disputed in conformity with this agreement, Iowa law and title standards of the Iowa State Bar Association. The Seller shall make every reasonable effort to promptly perfect title. The abstract shall become the property of Buyer ~vhen the purchase price is paid in full. Seller shall pay the cost of any additional abstracting and title work due to any act or Page 3 of 11 omission of Seller. The abstract shall be obtained from an abstractor qualified by the Title Guaranty Division of the Iowa Housing Finance Authority. 11. Deed. On the Closing Date, Seller shall convey the Real Estate to Buyer by Warranty Deed (Corporate Grantor or otherwise) (and certain portions of the Real Estate as designated on Exhibit "A" via Quit Claim Deed), free and clear of all liens and encumbrances but subject to easements and restrictions of record. Any general warranties of title conta'med in the Warranty Deed(s) shall extend only to the time of acceptance of this Offer to Buy Real Estate and Acceptance, with special warranties as to acts of Seller continuing up to time of delivery of the Warranty Deed(s). Seller shall additionally deliver to Buyer a Quit Claim Deed from MILLER LOGGING COMPANY and WILLIAM and MARY MILLER, husband and wife, with regard to the Real Estate, effective as of the Date of Possession. 12. Time is of the Essence. Time is of the essence in this contract. 13. Remedies of the Parties (a) If Buyer fails to timely perform this contract, or any of Seller's conditions herein are not satisfied (or waived in writing) at or prior to Closing, Seller shall not be required to close hereunder. Alton-natively, Seller may, at or prior to Closing, forfeit this Contract as provided by Iowa Code Chapter 656(2001). (b) If Seller fails to timely perform this contract, or if any of Buyer's conditions herein are not satisfied (or waived in writing) at or prior to Closing, Buyer shall not be required to close hereunder. (c) Buyer and Seller are also entitled to utilize any and all other rcnuedies or actions at law or in equity available to them and shall be entitled to obtain judgment for costs and attorney's fees as permitted by law. The parties specifically agree that each of them shall have the remedy of specific performance in equity notwithstanding any other provision herein or by law to the contrary. 14. Contract Binding on Successors in Interest. This contract shall apply to and bind the successors in interest of the parties. 15. Construction. Words and phrases shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the context. 16. Time for Acceptance. If this Offer is not accepted by Buyer on or before December 3, 2002 it shall become void. 17. Conditions Precedent to Buyer's Obligation to Purchase. Buyer's obligation to purchase the Real Estate under the bargain purchase referred to herein and to accept the charitable contribution Page 4 of 11 fi'om Seller as referred to herein is expressly conditioned upon the satisfaction of the following condition prior to Closing: (a)The approval of this Offer to Buy Real Estate and Acceptance by the City Council of the City of Dubuque, Iowa on or before December 2, 2002. 18. Conditions Precedent to Seller's Obligation to Make Bargain Sale and Make Contribution and Give Charitable Contribution. Seller's obligation to make the bargain sale and give the charitable contribution herein with respect to the Real Estate is expressly conditioned upon the satisfaction of the following conditions prior to Closing: (a)Seller obtaining approval of this Offer to Buy Real Estate and Acceptance by the Board of Directors and Shareholders of Seller, MISSISSIPPI VALLEY TRUCK CENTER, INC. 19. Condition and Groundwater Hazards. As of the Closing Date, Buyer shall have inspected the Real Estate and shall accept it in "AS IS" condition as of the Closing Date. Buyer shall felease, indemnify and hold harmless Seller with regard to any environmental claim, clean-up or remediation imposed or threatened by the State of Iowa, the federal government or any other governmental agency or entity, or any private person, arising out of or related to the Real Estate, which indemnity and defense shall survive the closing hereof. 20. Moving/Relocation Expenses. Buyer shall paymoving, reestablishment and relocation expenses to Seller in addition to the purchase price referred to in Section 2 hereof, ail of which is separate tSom this Offer to Buy Real Estate and Acceptance. 21. Recording Costs. Notwithstanding any other provision herein, the Buyer shall be responsible for all recording costs and abstracting costs in connection with the transactions contemplated herein. 22. Miscellaneous. The parties agree that all understandings and agreements, if any, previously made between the parties hereto are merged in this Agreement, which alone fully and completely expresses their understanding with respect to the purchase and bargain sale of the Real Estate. This agreement may not be changed or terminated orally, but only by an instrument in writing executed by all of the parties hereto. This agreement shall not be transferred or assigned without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. This agreement shall be governed by and construed in accordance with the la~vs of the State of Iowa. This Offer to Buy Real Estate and Acceptance may be signed in counterparts or by facsimile signatures which, when taken together, shall constitute one original agreement. Each party shall bear and be responsible for its own attorneys' fees. The Sellers request that the City support, at no cost to the City, applications by the Sellers to ECIA for low interest loans to assist in moving, relocating and reestablishing the Sellers' business at the Sellers' new location. Page 5 of 11 23. Easement/Utility. Seller shall grant an easement to Buyer in the form attached hereto as Exhibit "E" and by this reference made a part hereof. Further, Seller acknowledges that Buyer will be contracting for certain utility improvements on and near the Real Estate and Seller hereby conscmts to the same, all as depicted on Exhibit "E" and by this reference made a part hereof. Buyer agrees to cooperate with Seller in minimizing disruptions to Seller's business with regard to such construction. DATED: NOVEMBER ,2002. THE CITY OF DUBUQUE, AN IOWA MUNICIPAL CORPORATION, BUYER BY Michael C. VanMilligen, Its City Manager THIS OFFER IS ACCEPTED NOVEMBER ~ 2002. MISSISSIPPI VALLEY TRUCK CENTER, INC. BY Its President MILLER LOGGING CO. BY Its President WILLIAM A. MILLER MARY MILLER G:\WPDOCSkDONNABkDocskMississippi Valley Truck Cent~ (Miller William) Offer to Buy Real Estate and Acceptance.wpdlqoveraber 26, 2002 Page 6 of 11 EXHIBIT "A" Page 7 of 11 EXHIBIT "A" EXHIBIT "B" Appraisal of Mary Clarke. Page 8 of 11 LLrKSETICH APPRAISALS 2255 J.F.K. ROAD ASBURY SQUARE DUBUQUE, IOWA 52002 (563) 556-8840 November 15, 2002 Mr. Brian Kane, Attorney Kane, Norby, & Reddick, P.C. 2100 Asbury Road Dubuque, Iowa 52001 RE: Update Appraisal of Miller Logging Company, 380 E. 4th Street, Dubuque, Iowa 52001. Dear Mr. Kane: At your request, I have personally re-evaluated the property mentioned above and considered the increase in size of the parcel from the first date of the appraisal. The parcel has increased in size from 64,730 sq.ft, to 74,718 sq.ft. The total increase is 9,988 sq.ft. Taking into consideration the increase in size, the value has increased. The appraiser has evaluated the market value of the land and is still comfortable with the value of $9.00 per sq.ft. Based on this information the following calculation is used to estimate the market value of the subject property: 74,718 sq.ft, x $9.00 per sq.ft. = $672,462. After considering all of the factors affecting Market Value, it is my opinion, that the Market Value of the subject property as of November 15, 2002 is estimated to be $672,462. Sincerely, Mary E. Clark Iowa Certified General Real Property Appraiser EXHIBIT "B" EXHIBIT "C" See attached existing insurance of Seller for the Real Estate. Page 9 of 11 · Mov '26 02 12:35p Ualli$ Kunnert Price 319583577S p.2 ACORD. CERTIFICATE OF LIABILITY INSURANCE eeooucER (563)S83-5775 FAX Wallis,Kuanert,Price & Smith $$D Tow~ Clock Plaza P.0. Box Dubuque, IA 52004-0[76 I COVERAGES DATE (NEa~DtYY) [~/2G/2002 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDEI~ THIS CERI~FICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGB AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE THE POUC[EB OF INSURANCE LISTED BELOW HAVE BEEN ISBUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIRFJ~ENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY SE ISSU ED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE T'ERN~. EXCLUSIONS AND CONDmONS OF SUCH POLICIES. ACCREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAiD CLNMS. CERTIFICATE HOLDER I IADDITIONAL INSURED; 1 ~LS LIRER L= I , =Km The City of Dubuque $0 West [3th St. Dubuque, ZA , Hov ,26 02 12:38p Wallis Kunnert Price 3185835778 p.3 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on the certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. EXHIBIT "D" See attached inventory list. Page l0 of 11 Nov,25. 2002 5:40PM BARRY A LINDAHL, ESQ No.9225 P. 2/8 BILL MILLER LOGGING INC. INVENTORY PARTS ROOM: 25 Pallets of pm'ts Refer: 80 cu. fi, 1 Four drawer file: 6 Pallets of misc. Chop saw: Work bench cabinet: 4'H x 4'D x 5'L 2 Truck batteries: 2 Fuel tanks: Heater: Truck seat: Auto: Table: Truck seat: 2 Soda machines: 5 Pallets of misc. Truck motor: 2 Pallets: 1 Four drawer file: Refer: 3 Pallets: 20 Boxes of air falters: Hot water heater: 150 cu. ft. of mist: Desk: Chair: Sewing raaehiae: Trunk: Olass case: 200 cu~ iL Truck seat: Truck b~_~mper: 150 cu. fu misc. Hoses: 6 Tires: Full size wagon on second floor:. boy.25. 2002 5:40PM BARRY A L]NDAHL, ESQ No,9226 P, 3/6 BILL MILLER LOGGING INC. INVENTORY CONTINUED Page 2 Truck bed limaer: Truck seat: 2 Truck bumpers: M]sc. 400 cu. R. Washer: Dryer: 2 Metal cab'mets: 100 cu. ~. each Metal cab'met: 4'D x 6'L x 3'H Truck batteries 4 Parts washer: 17 33 Gal. barrels: 6 Pallets: ToolBox: 100 cu. fu ToolBox: 100 cu. ft. Drill Press: 2 Grinders: Press: Work bench: 4'W x 4'H x 8'L 2 Pallets: 2 Welders: Band saw: 3 Hoists: FlOOr jaclc: 4 Pallets of tires: 3 Large offroafl tires: 10 Pallets of misc. Ladder: Truck motor: 12 55 Gal. barrels: Steel ra~k: Cart: 2 Oil tanks: 150 cu. ft. each 5 Truck fires: 12 Barrels: N,ov,25. 2002 5:40PM BARRY A LINDAHL, ESQ No,9226 P. 4/6 BILL MILLER LOGGING INC. INVENTORY CONTINUED Page 3 2 Pallets: 4 Barrels: 15 Tires: 36 Truck tires: 4 Metal tire racks: Wagon: 4 Large offroad tires: Truck motor: Air compressor: 2 Fuel pumps: Desk: Ice chest: Truck transmission: 2 Ton jib crane: Battery charge~. Cabinet: 300 cu. ft. 4 Barrels: Tool chest: 100 cu. ft. 1 4 drawer file cab: Work bench: 4'D x 4'H x $'L 4 Pallets: TOOL ROOM: 2 Tool boxes: 6 Pallets: WASIt BAY: BBQ: Headache rock: Ladder: 12 Barrels: 4 Chairs: 10 Pallets of misc. l~ck: 150 en. ft. N~v.25, 2002 5:40PM BARRY A LINDAHL, ESQ No,9226 P. 5/6 BILL MILLER LOGGING INC. INVENTORY CONTINUED Page 4 2 Chairs: Track differential: 2 Steel cables: 1 Large offroad tire: 4 Truck tir~: Skid steer loader: (Case) W/forks 4 Chairs: Truck differential: OWI~IDE: 3 Truck tires: 5 Loads of mulch: 16 Cement blocks: Portable containers 1,000 lbs. Ea. 8 Loads of tree trunks: 3 Rolls offence: 3 Semi Van Trailers: StOrage 4 Loads of mulch: FeconDye Machine: 20'L x 8'H x 2 Loads of firewood: 2 Large offroad tires: 2 Tank.~: Morbark 1300 hdustrial Tub Orin~: Mobil 3 Cement barriers: Steel pile: 2 loads Tank: 6 Loads ofmulcl~ 8 Loads of trees: Elevator: 50~L x 4'W x 4'H w/wheel assembly Low boy semi trailer: End Loade~. N,ov.25. 2002 5:40PM BARRY A LINDAHL, ESQ No,9226 P, 6/6 BILL MILLER LOGGING INC. INVENTORY CONTiln-,3ED Page 5 O~FICE: Table: 200 cu. ft. Desk: 200 cu. ft. 3 Cha'~s: Book case: ~ Book ~ons: Cabin~: 150 cu. ft. Refer: 40 cu ft. Microwave w/stand: Stand: 6 4 Drawer files: 2 Desks: 2 PC's: 4 Dishpacks: 3 Chairs: 2 Cabinets: 100 cu. ft. each Copier: 2 Drawer ~e: 10 Book cartons: gm. Desk: 6 Book cartons: Television: 10 cu ~. EXHIBIT "E" Page 11 of 11 EXHIBIT "E"