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Acquistion of Property_Corner of South Grandview and Rockdale RoadTHE CITY QF DUB E Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager Dubuque All-AmedcaClpl ., i .~ 2007 SUBJECT: City Acquisition of Property at Corner of South Grandview and Rockdale Road DATE: November 12, 2009 An opportunity has been presented to the City to remove a blighting neighborhood influence and create a beautiful passive park at a City gateway that will be enjoyed by the thousands of bicyclists and walkers who use Grandview Avenue each year. Mark Falb has offered to donate $235,000 to the City of Dubuque to acquire, demolish and landscape the sight of an abandoned gas service station at 1545 - 1545 '/2 South Grandview Avenue, on the corner of Grandview Avenue and Rockdale Road at the Highway 20 overpass. The donation is as follows: • The property would be acquired for $150,000; • Demolition costs not to exceed $25,000; • Contaminated soil removal or remediation costs not to exceed $10,000; and • The area would be landscaped at a cost of $50,000. Assistant City Attorney Tim O'Brien reviewed the environmental reports and spoke with the Iowa Department of Natural Resources and is satisfied that appropriate action has been taken on the site in the past to resolve environmental issues and that monitoring wells are confirming that appropriate action. I respectfully recommend Mayor and City Council acceptance of this generous donation and approval of the property acquisition, demolition and improvement of this site. Michael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Tim O'Brien, Assistant City Attorney OFFER TO BUY REAL ESTATE AND ACCEPTANCE TO: Scott J. Nelson (Seller) SECTION 1. REAL ESTATE DESCRIPTION. The City of Dubuque, Iowa (Buyer) offers to buy real estate in Dubuque County, Iowa, described as follows: Lot 2 of Lot 2 of Mineral Lot 12 in the City of Dubuque, Iowa, commonly known as 1545-1545'/2 South Grandview Avenue, 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 $150,000.00 payable in cash at closing. The closing shall be on or before December 15, 2009. 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 the date of closing, 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 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 November 19, 2009, 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 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. 13.1. 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, 2 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 the cost to remediate the environmental conditions exceeds $10,000.00, 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. 13.2. 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 3 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 November 16, 2009. 18.2. This Offer is subject to approval of the City Council of the City of Dubuque, Iowa, by not later than November 16, 2009 of an agreement between the City and an anonymous donor for funding the purchase price on terms acceptable to the City Council. 18.3. This Offer is subject to the assignment by Scott J. Nelson and/or his predecessor in title to Buyer and acceptance of such assignment by Underground Storage Tank Fund (the Fund) of atl rights and any co-payment responsibilities for remedial benefits through the Iowa Comprehensive Petroleum Underground Storage Tank Fund for UST Site LUST No. 8LTX02 Registration No. 8606651, together with approval by the City Council of an agreement by Scott J. Nelson and/or his predecessor in title that City shall not be required to reimburse Scott J. Nelson and/or his predecessor in title, or their successors or assigns, or any third party for any co-payments already made by any of them to the Fund. CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen, City Manager Dated: THIS OFFER IS ACCEPTED By: SCOTT J. NELSON Dated: F:\USERS\tsteckle\O'Brien\Grandview-Rockdale Property\PurchaseAgreement_110509.doc 4 ZZ~VES RK ENTERPRISES, INC. 4050 Westmark Drive P.O. Box 1840 Dubuque, Iowa 52004-1840 November 6, 2009 Mr. Michael Van Milligen City Manager 50 W 13th Street Dubuque, IA 52001 Dear Mike: Mark C. Falb Chairman & CEO 563-589-1200 563-589-1208 (Fax) I am writing to confirm our understanding regarding the City's acquisition of the property at the corner of South Grandview and Rockdale Road (formerly a convenience store) (the "Parcel"). I have offered to provide the City of Dubuque with the funding detailed below for the purpose of acquiring the Parcel, removing the existing structure and providing some initial landscaping on the site. The intent is to have the Parcel developed as a small, public park to be used by the citizens of Dubuque. As we discussed, the City will develop a long term landscaping plan which can be developed in phases as funding becomes available. I have talked to the owner, and he has agreed to sell the Parcel for this purpose only for $150,000. My understanding of our agreement as to my funding for this project is as follows: 1. I will contribute $150,000 to the City which will be used by the City to acquire the Parcel. 2. The City will then proceed to have the building demolished, the site back filled and landscaped. I will provide funding for the work as actual amounts are finalized by the City as follows: A. Demolition Costs -actual amount not to exceed $25,000 B. Contaminated Soil Removal or Remediation Costs, if any -actual amount not to exceed $10,000 C. Landscaping Costs - in the amount of $50,000. The initial landscaping design shall be provided by the City. WESTMARK ENTERPRISES, INC. 4050 Westmark Drive P.O. Box 1840 Dubuque, Iowa 52004-1840 Mr. Michael Van Milligen November 6, 2009 Page 2/ My total financial commitment to the project at this time is not to exceed $235,000 as outlined above and is conditioned upon the following: (a) approval of the project by the City Council; (b) quaycation of the City's fund into which the project funds are contributed as a tax exempt 501(c)(3) organization; and (c) the actual development and maintenance of the Parcel by the City as a public park for as long as any of the following people are alive: Mark Falb, Cheryl Falb, Laura Chandlee or Chad Chandlee. I understand that City Council approval is required and this issue will be taken to the Council within the next couple weeks. I may consider additional funding for more landscaping in the future, but make no commitments at this time. If my understanding of the agreement we reached is correct, please sign and date a copy of this letter and return it to me. If you have any questions or changes you would like to make, please contact me at your earliest convenience. Sincerely, .~--' ~~~ Mark C. F b City of Dubuque BY Michael Van Milligen DATE zz~~s ~ ENTERPRISES, INC. 4050 Westmark Drive P.O. Box 1840 Dubuque, Iowa 52004-1840 November 6, 2009 Mr. Michael Van Milligen City Manager 50 W 13"' Street Dubuque, IA 52001 Dear Mike: Mark C. Falb Chairman & CEO 563-589-1200 563-589-1208 (Fax) 1 am writing to confirm our understanding regarding the City's acquisition of the property at the corner of South Grandview and Rockdale Road (formerly a convenience store) (the "Parcel„). I have ofFered to provide the City of Dubuque with the funding detailed below for the purpose of acquiring the Parcel, removing the existing structure and providing some initial landscaping on the site. The intent is to have the Parcel developed as a small, public park to be used by the citizens of Dubuque. As we discussed, the City will develop a long term landscaping plan which can be developed in phases as funding becomes available. I have talked to the owner, and he has agreed to sell the Parcel for this purpose only for $150,000. My understanding of our agreement as to my funding for this project is as follows: 1. 1 will contribute $150,000 to the City which will be used by the City to acquire the Parcel. 2. The City will then proceed to have the building demolished, the site back filled and landscaped. I will provide funding for the work as actual amounts are finalized by the City as follows: A. Demolition Costs -actual amount not to exceed $25,000 B. Contaminated Soil Removal or Remediation Casts, if any -actual amount not to exceed $10,000 C. Landscaping Costs - in the amount of $50,000. The initial landscaping design shall be provided by the City. WESTMARK ENTERPRISES, INC. 4050 Westmark Drive P.O. Box 1840 Dubuque, Iowa 52004-1840 Mr. Michael Van Milligen November 6, 2009 Page 2/ My total financial commitment to the project at this time is not to exceed $235,000 as outlined above and is conditioned upon the following: (a) approval of the project by the City Council; (b) qualification of the City's fund into which the project funds are contributed as a tax exempt 501(c)(3) organization; and (c) the actual development and maintenance of the Parcel by the City as a public park for as long as any of the following people are alive: Mark Falb, Cheryl Falb, Laura Chandlee or Chad Chandlee. I understand that City Council approval is required and this issue will be taken to the Council within the next couple weeks. I may consider additional funding for more landscaping in the future, but make no commitments at this time. If my understanding of the agreement we reached is correct, please sign and date a copy of this letter and return it to me. If you have any questions or changes you would like to make, please contact me at your earliest convenience. Sin~ce~re--ley, / ~_ Mark C. Falb City of Dubuque BY Michael Van Milligen DATE