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Sale of City-Owned Property at 1293 Walnut_Initiate Copyrighted January 19, 2021 City of Dubuque Items to be set for Public Hearing # 2. City Council Meeting ITEM TITLE: Sale of City-Owned Property at 1293 Walnut SUM MARY: City Manager recommending approval of a resolution declaring the City's intent to dispose of property at 1293 Walnut Street and setting the date for public hearing for February 1, 2021. RESOLUTION Intent to dispose of an interest in City of Dubuque real estate, setting a time and place for hearing and providing for the publication of notice thereof SUGGESTED Receive and File;Adopt Resolution(s), Set Public Hearing for February DISPOSITION: 1, 2021. Suggested Disposition: ATTACHMENTS: Description Type Set Public Hearing on 1293 Walnut Sale-MVM Memo City Manager Memo Staff Memo Staff Memo Resolution Setting Hearing Resolutions Public Notice of Hearing Supporting Documentation Purchase Agreement- Draft Supporting Documentation Dubuque THE CITY OF � ui-Aseria cih DuB E , . � . , � II � Maste iece on tj2e Mississi i zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Sale of City-Owned Property at 1293 Walnut DATE: January 14, 2021 Housing and Community Development Director Alexis Steger recommends City Council approval of a resolution declaring the City's intent to dispose of property at 1293 Walnut Street and setting the date for public hearing for February 1, 2021. I concur with the recommendation and respectfully request Mayor and City Council approval. � Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Cori Burbach, Assistant City Manager Alexis M. Steger, Housing and Community Development Director Dubuque THE CITY OF � All-Ameeisa Ciiy Du B E �.� �,� � I �,I� II Maste iece on the Mississi 1 zao��zoiz�zois � pp zoi�*zoi9 TO: Michael C. Van Milligen, City Manager FROM: Alexis M. Steger, Housing and Community Development Director SUBJECT: Sale of City-owned property at 1293 Walnut DATE: January 14, 2021 Introduction The purpose of this memorandum is to request the City Council to set a Public Hearing for the purpose of disposing of City-owned real property located at 1293 Walnut Street. Backqround The property at 1293 Walnut Street has been a problem property for over a year. The City took legal action by petitioning the courts for ownership, which was granted in December 2020. Immediately after gaining ownership the porch collapsed; however, the property is still viable for rehabilitation. Discussion An offer has been made by Affordable Housing Network to purchase the property at 1293 Walnut Street and the adjacent lot obtained through City petition. This property was identified to have great potential to rehabilitate and sell it to an income-qualifying household under 80% median income. The City strives to provide affordable homeownership opportunities throughout the City of Dubuque. The Affordable Housing Network, Inc has partnered with the city to further this goal. Recommendation I respectfully request the City Council approve the attached resolution, declaring the City's intent to dispose of the property and set the date for the public hearing to receive comments on the proposed sale. Prepared by Alexis Steger, Housing & Community Devel 350 W 611 St Suite 312 (563) 690-6072 Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13th St., Dubuque, IA 52001, (563) 589-4100 RESOLUTION NO. 16-21 INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE, SETTING A TIME AND PLACE FOR HEARING AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF WHEREAS, the City of Dubuque, Iowa (City) owns 1293 Walnut (the Property) legally described as: The Easterly 150 feet of Lot 5 of the Subdivision of Out Lot 740 in the City of Dubuque, Iowa; and Lot 15 & the Northerly Y2 of Lot 14 in "F. E. Bissell's Dubuque, being the South half of Out Lot 740" in the City of Dubuque, Iowa, according to the recorded plats thereof; and WHEREAS, the City acquired the Property by petition as an abandoned property for the purpose of its restoration and re -sale for owner -occupied housing; and WHEREAS, the City received an offer to purchase this property from Affordable Housing Network, Inc; and WHEREAS, by accepting the selected offer the City's objectives of providing homeownership to an income qualified buyer and rehabilitation of a vacated home can be realized and is consistent with the City goal of creating opportunities for affordable home ownership. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque, Iowa, proposes to dispose of its interest in the above described real estate to Affordable Housing Network, Inc for the sum of $1. Section 2. That the City Council shall conduct a public hearing on the proposed disposition of real estate in the City Council Chambers at the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa on the 1st day of February 2021 beginning at 6:30 p.m. Section 3. That the City Clerk be and is hereby authorized and directed to publish notice of the public hearing in the form attached hereto, according to law. Passed, approved and adopted this 19th day of January, 2021. Roy D. B , Mayor ATTEST: A Adrienne Breitfelder, City Clerk CITY OF DUBUQUE, IOWA OFFICIAL NOTICE PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, lowa, will hold a public hearing on the 1St day of February 2021, at 6:30 p.m. in the Historic Federal Building, 350 West Sixth Street, 2nd floor, Dubuque, lowa, at which meeting the City Council proposes to dispose of an interest in the following described real property by sale to Affordable Housing Network, Inc, an lowa non-profit corporation: The Easterly 150 feet of Lot 5 of the Subdivision of Out Lot 740 in the City of Dubuque, lowa; and Lot 15 & the Northerly '/2 of Lot 14 in "F. E. Bissell's Dubuque, being the South half of Out Lot 740" in the City of Dubuque, lowa, according to the recorded plats thereof; and At the meeting, the City Council will receive oral and written comments from any resident or property owner of said City to the above action. Written comments regarding the above public hearing may be submitted to the City Clerk's Office, City Hall, 50 W. 13t" Street, on or before said time of public hearing. Copies of supporting documents for the public hearings are on file in the City Clerk's Office, and may be viewed during normal working hours. Any visual or hearing impaired persons needing special assistance or persons with special accessibility needs should contact the City Clerk's Office at (563) 589-4100 or TTY (563) 556-9948 at least 48 hours prior to the meeting. Dated this day of , 2021 Adrienne Breitfelder City Clerk s'"�A i� 3P 6, c ? RESIDENTIAL PURCHASE AGREEMENT �s��o���,<..�� TO: City of Dubuque, a municipal corporation (SELLERS) The undersigned BUYERS hereby offer to buy and the undersigned SELLERS by their acceptance agree to sell the real property situated in Dubuque County , Iowa, locally known as 1293 Walnut Street and legally described as: The Easterly 150 feet of Lot 5 of the Subdivision of Out Lot 740 in the City of Dubuque, Iowa; and Lot 15 &the Northerly '/z of Lot 14 in "F. E. Bissell's Dubuque,being the South half of Out Lot 740" in the City of Dubuque, Iowa, according to the recorded plats thereof. together with any easements and appurtenant servient estates, but subject to any reasonable easements of record for public utilities or roads, any zoning restrictions, customary restrictive covenants and mineral reservations of record, if any, herein referred to as the "Property," upon the following terms and conditions provided BUYERS, on possession, are permitted to use the Property for residential purposes: 1. PURCHASE PRICE. The Purchase Price shall be $ 1.00 and the method of payment shall be as follows: $ 0.00 with this offer to be deposited upon acceptance of this offer and held in trust by as earnest money to be delivered to the SELLERS upon performance of SELLERS' obligations and satisfaction of BUYERS' contingencies, if any; and the balance of the Purchase Price: a) in cash at the time of closing with adjustment for closing costs to be added or deducted from this amount. This Agreement is not contingent upon BUYERS obtaining such funds. b) 2. REAL ESTATE TAXES. A. SELLERS shall pay all real estate taxes that are due and payable as of the date of possession and constitute a lien against the Property, including any unpaid real estate taxes for any prior years. B. SELLERS shall pay their prorated share, based upon the date of possession, of the real estate taxes for the fiscal year in which possession is given (ending June 30, 2021 ) due and payable in the subsequent fiscal year(commencing July 1, 2021 ). BUYERS shall be given a credit for such proration at closing (unless this agreement is for an installment contract) based upon the last known actual net real estate taxes payable accarding to public record. However, if such taxes are based upon a partial assessment of the present property improvements or a changed tax classification as of the date of possession, such �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� Revised June 2019 proration shall be based on the current millage rate, the assessed value, legislative tax rollbacks and real estate tax exemptions that will actually be applicable as shown by the Assessor's Records on the date of possession. C. BUYERS shall pay all subsequent real estate taxes. 3. SPECIAL ASSESSMENTS. A. SELLERS shall pay in full all special assessments which are a lien on the Property as of the date of acceptance January 18, 2021 B. If"A" is stricken, then SELLERS shall pay all installments of special assessments which are a lien on the Property and, if not paid, would become delinquent during the calendar year this offer is accepted, and all prior installments thereof. C. All charges for solid waste removal, sewage and maintenance that are attributable to SELLERS' possession, including those for which assessments arise after closing, shall be paid by SELLERS. D. Any preliminary or deficiency assessment which cannot be discharged by payment shall be paid by SELLERS through an escrow account with sufficient funds to pay such liens when payable, with any unused funds returned to SELLERS. E. BUYERS shall pay all other special assessments. 4. RISK OF LOSS AND INSURANCE. SELLERS shall bear the risk of loss or damage to the Property prior to closing or possession, whichever first occurs. SELLERS agree to maintain existing insurance and BUYERS may purchase additional insurance. In the event of substantial damage or destruction prior to closing, this Agreement shall be null and void; provided, however, BUYERS shall have the option to complete the closing and receive insurance proceeds regardless of the extent of damages. The property shall be deemed substantially damaged or destroyed if it cannot be restored to its present condition on or before the closing date. 5. POSSESSION AND CLOSING. If BUYERS timely perform all obligations, possession of the Property shall be delivered to BUYERS on February 15, 2021 , and any adjustments of rent, insurance, taxes, interest and all charges attributable to the SELLERS' possession shall be made as of the date of possession. Closing shall occur after approval of title by buyers' attorney and vacation of the Property by SELLERS, but prior to possession by BUYERS. SELLERS agree to permit BUYERS to inspect the Property within 0 hours prior to closing to assure that the premises are in the condition required by this Agreement. If possession is given on a day other than closing, the parties shall make a separate agreement with adjustments as of the date of possession. This transaction shall be considered closed (upon the filing of title transfer documents) {�e�rt�e— and receipt of all funds then due at closing from BUYERS under the Agreement. 6. FIXTURES. Included with the Property shall be all fixtures that integrally belong to, are specifically adapted to or are a part of the real estate, whether attached or detached, such as: attached wall-to-wall carpeting, built-in appliances, light fixtures (including light bulbs), water softeners (except rentals), shutters, shades, rods, blinds, venetian blinds, awnings, storm windows, storm doors, screens, television antennas (including satellite dishes), air conditioning equipment (except window type), door chimes, automatic garage door openers, electrical service cables, attached mirrors, fencing, gates, attached shelving, bushes, trees, shrubs and plants. Also included shall be the following: All currently present at the property The following items shall not be included: �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� 2 Revised June 2019 7. CONDITION OF PROPERTY. A. The property as of the date of this Agreement including buildings, grounds, and all improvements will be preserved by the SELLERS in its present condition until possession, ordinary wear and tear excepted. B. , , � , , , � . , , , , , , ; , � • C. If "B" is deleted, BUYERS acknowledge that they have made a satisfactory inspection of the Property and are purchasing the Property in its existing condition. D. NEW CONSTRUCTION: If the improvements on the subject property are under construction or are to be constructed, this Agreement shall be subject to approval of plans and specifications by the parties within days of acceptance of this Agreement. New construction shall have the warranties implied by law, those specifically made by suppliers of materials/appliances, and those specifically tendered by the contractor. 8. ABSTRACT AND TITLE. SELLERS, at their expense, shall promptly obtain an abstract of title to the Property continued through the date of acceptance of this Agreement, January 18, 2021 , and deliver it to BUYERS' attorney for examination. It shall show merchantable title in SELLERS in conformity with this Agreement, Iowa law, and Title Standards of the Iowa State Bar Association. The SELLERS shall make every reasonable effort to promptly perfect title. If closing is delayed due to SELLERS' inability to provide marketable title, this Agreement shall continue in force and effect until either party rescinds the Agreement after giving ten days written notice to the other party. The abstract shall become the property of BUYERS when the purchase price is paid in full. SELLERS shall pay the costs of any additional abstracting and title work due to any act or omission of SELLERS, including transfers by or the death of SELLERS or their assignees. 9. SURVEY. BUYERS may, at BUYERS' expense prior to closing, have the property surveyed and certified by a Registered Land Surveyor. If the survey shows any encroachment on the Property or if any improvements located on the Property encroach on lands of others, the encroachments shall be treated as a title defect. If the survey is required under Chapter 354, SELLERS shall pay the cost thereof. 10. ENVIRONMENTAL MATTERS. a) SELLERS warrant to the best of their knowledge and belief that there are no abandoned wells, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks located on the Property, the Property does not contain levels of radon gas, asbestos or urea-formaldehyde foam insulation which require remediation under current governmental standards, and SELLERS have done nothing to contaminate the Property with hazardous wastes or substances. SELLERS warrant that the Property is not subject to any local, state, ar federal judicial or administrative action, investigation ar order, as the case may be, regarding wells, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks. SELLERS shall also provide BUYERS with a properly executed �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� 3 Revised June 2019 GROLTNDWATER HAZARD STATEMENT showing no wells, private burial sites, solid waste disposal sites, private sewage disposal system, hazardous waste and underground storage tanks on the Property unless disclosed here: None b) BUYERS may at their expense, within days after the date of acceptance, obtain a report from a qualified engineer or other person qualified to analyze the existence or nature of any hazardous materials, substances, conditions or wastes located on the Property. In the event any hazardous materials, substances, conditions or wastes are discovered on the Property, BUYERS' obligation hereunder shall be contingent upon the removal of such materials, substances, conditions or wastes or other resolution of the matter reasonably satisfactory to BUYERS. However, in the event SELLERS are required to eXpend any sum in excess of $ to remove any hazardous materials, substances, conditions or wastes, SELLERS shall have the option to cancel this transaction and refund to BUYER all Earnest Money paid and declare this Agreement null and void. The expense of any inspection shall be paid by BUYERS. The expense of any action necessary to remove or otherwise make safe any hazardous material, substance, conditions or waste shall be paid by SELLERS, subject to SELLERS' right to cancel this transaction as provided above. ll. DEED. Upon payment of the purchase price, SELLERS shall convey the Property to BUYERS by Special Warranty deed, free and clear of all liens, restrictions, and encumbrances except as provided in this Agreement. General warranties of title shall extend to the time of delivery of the deed excepting liens or encumbrances suffered or permitted by BUYERS. 12. JOINT TENANCY IN PROCEEDS AND IN REAL ESTATE. If SELLERS, immediately preceding acceptance of the offer, hold title to the Property in joint tenancy with full right of survivorship, and the joint tenancy is not later destroyed by operation of law or by acts of the SELLERS, then the proceeds of this sale, and any continuing or recaptured rights of SELLERS in the Property, shall belong to SELLERS as joint tenants with full rights of survivorship and not as tenants in common; and BUYERS in the event of the death of any SELLER, agree to pay any balance of the price due SELLERS under this contract to the surviving SELLERS and to accept a deed from the suroiving SELLERS consistent with Paragraph 15. 13. JOINDER BY SELLER'S SPOUSE. SELLER'S spouse, if not a title holder immediately preceding acceptance, executes this agreement only for the purpose of relinquishing all rights of dower, homestead and distributive share ar in compliance with Section 561.13 of the Code of Iowa and agrees to execute the deed or real estate contract for this purpose. 14. STATEMENT AS TO LIENS. If BUYERS intend to assume or take subject to a lien on the Property, SELLERS shall furnish BUYERS with a written statement prior to closing from the holder of such lien, showing the correct balance due. 15. USE OF PURCHASE PRICE. At 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. 16. APPROVAL OF COURT. If the Property is an asset of an estate, trust or conservatorship, this Agreement is contingent upon Court approval unless declared unnecessary by BUYERS' attorney. If the sale of the Property is subject to court approval, the fiduciary shall promptly submit this Agreement for such approval. If this Agreement is not so approved by either party may declare this Agreement null and void, and all payments made hereunder shall be returned to BUYERS. 17. REMEDIES OF THE PARTIES. A. If BUYERS fail to timely perform this Agreement, SELLERS may forfeit it as provided in the Iowa Code (Chapter 656), and all payments made shall be forfeited; or, at SELLERS' �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� 4 Revised June 2019 option, upon thirty days written notice of intention to accelerate the payment of the entire balance because of BUYERS' default (during which thirty days the default is not corrected), SELLERS may declare the entire balance immediately due and payable. Thereafter this agreement may be foreclosed in equity and the Court may appoint a receiver. B. If SELLERS fail to timely perform this Agreement, BUYERS have the right to have all payments made returned to them. C. BUYERS and SELLERS are also 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. 18. NOTICE. Any notice under this Agreement shall be in writing and be deemed served when it is delivered by personal delivery or by certified mail return receipt requested, addressed to the parties at the address given below. 19. CERTIFICATION. Buyers and Sellers each certify that they are not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National and Blocked Person" or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and are not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney's fees and costs) arising from or related to my breach of the foregoing certification. 20. GENERAL PROVISIONS. In the performance of each part of this Agreement, time shall be of the essence. Failure to promptly assert rights herein shall not, however, be a waiver of such rights or a waiver of any existing or subsequent default. This Agreement shall apply to and bind the successors in interest of the parties. This Agreement shall survive the closing. Paragraph headings are for convenience of reference and shall not limit or affect the meaning of this Agreement. Words and phrases herein shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. 21. INSPECTION OF PRIVATE SEWAGE DISPOSAL SYSTEM. Delete inappropriate alternatives below. If no deletions are made, the provisions set forth in Paragraph A shall be deemed selected. A. Seller represents and warrants to Buyer that the Property is not served by a private sewage disposal system, and there are no known private sewage disposal systems on the property. B. , C. 22. ADDITIONAL PROVISIONS: (check if applicable) A. SALE OF BUYERS' PROPERTY. This Agreement is contingent upon the sale and settlement of the BUYERS' property locally known as on or before If settlement has not been made by this date, the SELLERS may rescind this Agreement by giving notice to BUYERS that unless sale and settlement of BUYERS' property is made within five (5) business days of such notice, then this Agreement shall be null and void. Unless SELLERS give such written notice, this Agreement shall remain valid until the sale of BUYERS'property. �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� 5 Revised June 2019 SELLERS reserve the right to continue to offer the Property for sale. Should SELLERS receive another offer which they desire to accept, BUYERS shall have days from the delivery of written notice to waive the "contingency of sale." Notice from the BUYERS to the SELLERS, removing the contingency of sale, shall be timely delivered to the SELLERS along with reasonable assurance that BUYERS can complete the purchase without the sale of the property referenced above. If BUYERS do timely remove such contingency, this Agreement will remain in full force and effect (but without being contingent on the sale of BUYERS' property). If BUYERS do not timely remove such contingency, SELLERS will immediately return to BUYERS all earnest money paid, this Agreement will be of no further force and effect, and neither party will have any further obligation to the other hereunder. _ B. TERMITE INSPECTION. at their expense shall have the Property inspected for termites or other wood destroying insects by a licensed pest inspector prior to closing. If active infestation or damage due to prior infestation is discovered, SELLERS shall have the option of either having the Property treated for infestation by a licensed pest exterminator and having any damage repaired to the BUYERS' satisfaction or, declaring this Agreement null and void and returning all earnest money to BUYERS. This provision shall not apply to fences, trees, shrubs or outbuildings other than garages. BUYERS may accept the property in its existing condition without such treatment or repairs. _ C. WELL TEST. SELLERS, at expense, shall provide BUYERS, within days after acceptance of this offer, a report issued by the county health department, or a qualified testing service, indicating the location of any well on the Property and that water from each well (1) is safe for its intended use and (2) is in sufficient quantity for its intended use. If BUYERS receive an unsatisfactory report, the basis for which cannot be resolved between BUYERS and SELLERS within days of receipt thereof, then upon written notice from BUYERS to SELLERS, this agreement shall be null and void and all earnest money paid shall be returned immediately to BUYERS. _ D. RADON TEST. Within days after the date of acceptance of this offer, SELLERS, at expense, shall have the property tested far the presence of Radon gas by a qualified professional and shall provide the written results of such test to BUYERS within the same time period. If said results reveal the presence of Radon in the Property at a level greater than 4.0 pCi/L and SELLERS do not agree to remediate the Property at SELLERS' expense such that the Radon levels in the Property are reduced to a level below 4.0 pCi/L, then BUYERS shall have the option to terminate this agreement, in which case all earnest money shall be returned to BUYERS and this Agreement shall be of no further force or effect. X E. NO REAL ESTATE AGENT OR BROKER. Neither party has used the services of a real estate agent or broker in connection with this transaction. Each party agrees to indemnify and save harmless the other party from and against all claims, costs, liabilities and expense (including court costs and reasonable attorney's fees) incurred by the other party as a result of a breach of this representation, which shall survive closing. F. OWNERS' ASSOCIATION. If the property is subject to control by an association of owners, this Agreement is contingent upon the timely satisfaction or waiver of those conditions set forth on the Owners' Association Addendum attached hereto and by this reference made a part hereo£ Buyers may, before closing and no later than days after receipt of all responsive documents, elect to cancel this Agreement by written notice of cancellation to Sellers. If Buyers elect to so cancel this Agreement, then this Agreement shall be null and void and the earnest money paid by Buyers shall be refunded. In the event Buyers do not timely notify Sellers of cancellation, this Agreement shall be binding and remain in full force and effect. X G. OTHER: Attach Addendum. See 'Additional Provisions - OTHER INFORMATION - Addendum' �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� 6 Revised June 2019 ACCEPTANCE. When accepted, this Agreement shall become a binding contract. If not accepted and delivered to BUYERS on or before January 18, 2021 , this Agreement shall be null and void and all payments made shall be returned immediately to BUYERS. Accepted Dated SELLERS CITY OF DUBUQUE BUYERS AFFORDABLE HOUSING NETWORK, INC. SS#: SS#: SELLERS BUYERS SS#: SS#: 5400 Kirkwood Blvd SW, Cedar Rapids, 50 W. 13 Street, Dubuque, IA 52001 IA 52404 Address Address Phone: (563) 583-4113 Phone: (319) 363-1403 �O The Iowa State Bar Association 2021 Form No.152,Residential Purchase Agreement IowaDocs� � Revised June 2019 Additional Provisions - OTHER INFORMATION - Addendum CITY COUNCIL APPROVAL. This Agreement is subject to the approval of the City Council for the City of Dubuque,Iowa. TENANTS. The Real Estate is free and clear of any occupants, and no party has a lease to or other occupancy or contract right in the Real Estate which shall in anyway be binding upon the Real Estate. Seller shall hold harmless and indemnify the Buyer for and against any claims,which may arise or be based upon any alleged leasehold interest, tenancy, or other right of occupancy or use for any portion for the Real Estate. This covenant shall survive the closing.