University Ave Ext Pro purch Iowa Glass property
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MEMORANDUM
February 17, 2005
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: University Avenue Extension Project - Purchase of Elm Real Estate, L.C.
Property (Iowa Glass)
Corporation Counsel Barry Lindahl is recommending approval of a Purchase Agreement
for the Iowa Glass property to allow for the extension of University Avenue.
The purchase price is $181,000. There also was a disputed claim about a requirement
for Iowa Glass to install a box culvert to drain an adjacent property. The seller agrees to
pay the first $165,000 cost of the box culvert. The City agrees to pay the next $124,000
of the cost. Both parties agree to share equally in any costs above $289,000. The cost
of the box culvert is estimated at less than $289,000
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
, ,
BAR R Y A. L I N D A H L . S.
CORPORATION COUNSEL, CITY OF DUBUQUE
""
MEMO
To:
Michael C. Van Milligen
City Manager
DATE:
February 9, 2005
RE:
University Avenue Extension Project - Purchase of Elm Real
Estate, L.C. Property (Iowa Glass)
Mike:
Attached is the Purchase Agreement for the Elm Real Estate Property necessary for
this project. The Purchase Agreement has been approved and signed by Elm Real
Estate representatives.
The Purchase Agreement is consistent with the terms which we have negotiated with
Elm Real Estate.
I would recommend that the Purchase Agreement be submitted to the Mayor and City
Council Members for approval and that upon approval, the City be authorized to pay the
purchase price to Elm Real Estate, L.C. in the amount of $181 ,000.
Attachment
cc: Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, City Engineer
James E. Graham, Esq.
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113/ FAX (563) 583-1040 / EMAIL balesq@cityofdubuque.org
DATE
January 19. 2005
COUNTY
PROJECT
DUBUQUE
STP-U-21 00(623)--70-31
Universitv Avenue Extension Proiect
PARCEL
1
REVISED
OFFER TO PURCHASE
Owner(s)
Elm Real Estate. L.C.. % Mr. Steve Dummermuth. Jr.
Address
4150 C Street SW. Cedar Rapids. IA 52404
Pursuant to Federal and State regulations, the City of Dubuque, Iowa presents to you a revised offer of
$181.000.00*. This offer supercedes the previous offer made on April 14. 2004 but does not affect the ninety
(90) day written notice presented with that offer.
* Includes Compensation for:
Permanent Acquisition area,
Temporary Easement area,
all building, trees, shrubs,
landscaping, and surfacing
attached to the premises sought
and described herein.
Gene M. Asklof
Acquisition Agent
Prepared by: James E. Graham, Attorney at Law, 1715 South G Avenue, Nevada, Iowa 50201
For: City of Dubuque. Iowa, City Hall, 50 Wesl13th Street, Dubuque. lA 52001-4864
(515) 382.1698
(563) 589-4270
Page 1
PURCHASE AGREEMENT
PARCEL NO.
PROJECT NO.
1
STP-U-21 00(623)--70-31
COUNTY DUBUQUE
ROAD NO. University Avenue Extension
SELLER: Elm Real Estate. L.C.. an Iowa Limited Liability Company
THIS AGREEMENT made and entered into this _ day of
Dubuque, Iowa, Buyer.
1 a, SELLER AGREES to sell and furnish to Buyer a conveyance document, on formes) furnished by Buyer, and Buyer
agrees to buy the following real estate, hereinafter referred to as the premises, situated in parts of the following:
Lot 1 and Lot 2 of Subdivision of Lot 2 of the Subdivision of Lot 1 of the Subdivision of Lot 2 of Mineral Lot 237 and
Lot 2 of Mineral Lot 238 and a Subdivision of Part of Lot 1 of the Subdivisi~ of Mineral Lot 248 and Lot 2 of Newman
Place, all in the Citv of DubUQue, ,- .' ,
County of Dubuque, State of Iowa, and more particularly described on Page..2...., including the following buildings,
improvements and other property:
All land, buildinQs, trees, shrubs, landscapinQ and surfacinQ attached to the premises souqht and described herein
,20_, by and between Seller and the City of
1 b, GCLLCR ALGa AORCCG to COR.ey to D~'ler as relloo.s all of Gellar's rights of direct aacess te lligh;.a'f
excef'liRg and resel.iRg ta Geller tha ri!:jht of acceS3 at tha rella....iRg loeatiaR3:
1c, SELLER ALSO GRANTS to Buyer a temporary construction easement as shown on Plot Plan attached as Page~,
for the purpose of constructing roadway and appurtenances, and as shown on the project plans for said University
Avenue Extension improvement. Said Temporary Construction Easement shall terminate upon completion of this
highway project.
1 d. The premises also includes all estates, rights, title and interests, including all easements, and all advertising devices
and the right to erect such devices as are located thereon. SELLER CONSENTS to any change of grade of the
highway and accepts payment under this agreement for any and all damages arising therefrom. SELLER
ACKNOWLEDGES full settlement and payment from Buyer for all claims per the terms of this agreement and
discharges Buyer from liability because of this agreement and the construction of this public improvement project.
2. Possession of the premises is the essence ofthis agreement and Buyer may enter and assume full use and enjoyment
of the premises per the terms of this agreement. SELLER GRANTS Buyer the immediate right to enter the premises
for the purpose of gathering suryey and soil data. SELLER MAY surrender possession of the premises or building
or improvement or any part thereof prior to the time at which he has hereinafter agreed to do so, and agrees to give
Buyer ten (10) days notice of Seller's intention to do so by calling Buyer.
3. Buyer agrees to pay and SELLER AGREES to grant the right of possession, convey title and surrender physical
possession of the premises as shown on or before the dates listed below.
PAYMENT AMOUNT
AGREED PERFORMANCE
DATE OF PERFORMANCE
on conveyance of title
on surrender of possession
on possession and conveyance
TOTAL LUMP SUM
$
$
$ 181,000.00
$ 181,000.00
BREAKDOWN
60 days after Buyer approval
AC.lSQ.FT.
Land by Fee Title
Underlying Fee Title
Permanent Easement
Temporary Easement
106,520 Sq.ft.
N/A
N/A
14.860 Sq.ft,
Fence:
Fence:
rods woven
rods ba rbed
4. Each page and each attachment is by this reference made a part hereof and the entire agreement consists of 8
pages. -
DISTRIBUTION: TWO COPIES RETURNED TO BUYER -- ONE COPY RETAINED BY SELLER
Page 2
PARCEL NO.
PROJECT NO.
1
STP-U-21 00(623)--70-313
COUNTY DUBUQUE
ROAD NO. University Avenue Extension
SELLER: Elm Real Estate. L.C.. an Iowa Limited Liability Company
5, SELLER WARRANTS that there are no tenants on the premises holding under lease except:
James Newman, 2792 University Avenue. Dubuque. IA 52001
Eunice Newman, 2792 University Avenue. Dubuque, IA 52001
Acme Glass and Auto Parts. 2792 Universitv Avenue, DubuQue.IA 52001
Eunice's Unique Tractors. 2792 University Avenue. Dubuque, IA 52001
James Insurance & Consultants, 2792 University Avenue, Dubuque. IA 52001
6. This agreement shall apply to and bind the legal successors in interest of the Seller and SELLER AGREES to pay all
liens and assessments against the premises, including all taxes and special assessmants payable until surrender of
possession as required by the Code of Iowa, and agrees to warrant good and sufficient title. Names and addresses
of lienholders are: Firstar Bank Iowa. N.A.. 222 Second Avenue S.E.. Cedar Rapids. IA 52401
7. Buyer may include mortgagees, lienholders, encumbrancers and taxing authorities as payees on warrants issued in
payment of this agreement. In addition to the Total Lump Sum, Buyer agrees to pay $100.00 for the cost of adding
title documents required by this transaction to Seller's abstract of title. If requested to do so, SELLER WILL deliver
to the Buyer an abstract of title to the premises. Buyer agrees to pay the cost of abstract continuation. SELLER
AGREES to provide such documents as may be required by Iowa Land TITle Standards to convey merchantable title
to the Buyer. SELLER ALSO AGREES to obtain approval of this agreement, if requested by Buyer, in the evenltitle
to the premises becomes an asset of any estate, trust, conservatorship or guardianship. Buyer agrees to pay court
approval costs and all other costs necessary to transfer the premises to Buyer, but not attorney fees. Claims for such
transfer costs shall be paid in amounts supported by paid receipts or signed bills.
8. Buyer agrees that any agricultural drain tiles which are located within the premises and are damaged or require
relocation by highway construction shall be repaired or relocated at no expense to Seller. Where Buyer specifically
agrees to construct and maintain fence, the fence shall be constructed and maintained for vehicle access control
purposes only at no expense to Seller. Buyer shall have the right of entry upon Seller's remaining property along the
right of way line, if necessary, for the purpose of connecting said drain tile and constructing and maintaining said fence.
Seller may pasture against said fence at his own risk. Buyer will not ba liable for fencing private property or
maintaining the same to restrain livestock.
9. If Seller holds title to the premises In joint tenancy with full rights of survivorship and not as tenants In common at the
time of this agreement, Buyer will pay any remaining proceeds to the survivor of that joint tenancy and will accept title
solely from that survivor, provided the joint tenancy has not been destroyed by operation of law or acts of Seller.
10. These premises are being acquired for public purposes and this transfer is exemptfrom the requirements forthe filing
of a Declaration of Value by the Code of Iowa.
11. Buyer hereby gives notice of Seller's five-year rightto renegotiate construction or maintenance damages not apparent
at the time of the signing of this a9reement as required by the Code of Iowa.
12. This written agreement constitutes the entire agreement between Buyer and Seller and there is no agreement to do
or not to do any act or deed except as specificallv provided for herein.
13. Seller states it has made full disclosure to the best of its knowledge as to the existence of burial sites. wells. sohd waste
disposal, the presence of hazardous substances and underground tanks on the premises described and sought herein.
14. It is understood and agreed that, after the bid opening for this University Avenue Extension project and after the
successful bidder has been chosen, Buyer will inform Seller in writing of the successful bidder's name and address.
Buyer will request the successful bidder either work with the Seller or the Seller's contractor to fill the land required
for the project and Seller's remaining lands at the same time or concurrently with the construction of the fill work for
the highway project as authorized in Paragraph 15.
15. It is understood and agreed that Seller is hereby reserved the light to use that part of the fee simple right of way
located below the elevations shown on Page 7 to fill to an elevation shown for the purpose of developing and using
that area for parking only. Seller may fill to that elevation as indicated subject to the supervision of the Buyer's City
Engineer. This right to fill and to use this area for parking purposes only shall cease and terminate in the event that
Seller fails to exercise this right within ten (10) years of the date of the recording of this Purchase A9reement. Seller
may exercise the right to fill by sending a notice of intent to do so to the Buyer's City Engineer along with a copy of
Seller's ?e~elopment plan for Buyer's review and approval. Seller shall have the right to use the parking area subject
to Buyer s nght t~ enter thereon for purposes of maintaIning Buyer's storm sewer located thereon. Any such entry will
be made by ,:"ntten notice from Buyer to Seller or Seller's successor in interest. Buyer will refill any excavation It
makes for maintenance purposes and Seller shall be responsible to replace the parking paving at no expense to the
Buyer.
Page 3
PARCEL NO.
PROJECT NO.
1
STP-U-2100(623\--70-313
COUNTY DUBUQUE
ROAD NO. University Avenue Extension
SELLER: Elm Real Estate, L.C.. an Iowa Limited Liabilitv Company
]6. (a) Buyer claims that Seller had agreed in ]99] to construct a box culvert on Seller's property in conjunction with
Buyer's project to install a box cnlvert under University Avenue but the box culvert was not constructed. Buyer
estimates that the cost in ]99] to construct the box culvert was $]65,000. Seller does not acknowledge this obligation
to construct the culvert, but nevertheless, agrees to resolve Buyer's claim as follows: Buyer now agrees to construct the
box culvert shown on the attached Exhibit A, more particularly described on Page 8 of this Purchase Agreement, in
conjunction with Buyer's University Avenue Extension Project. Seller agrees to pay Buyer $165,000 for all
construction costs, including, but not limited to, engineering and inspection costs, of the box culvert at the time of
closing on the purchase of Seller's property. Buyer and Seller acknowledge that the Buyer's total cost to construct and
engineer and inspect the box culvert may be in excess of the 1991 estimate of $165,000. Buyer agrees that it will pay
the actual construction, engineering and inspection cost for the box culvert in excess of$165,OOO but not exceeding a
total of $ 124.000 (i.e. if the total cost is $289,000, Seller's share is $165,000 and Buyer's share is $124,000).
(b) In the event all costs of constructing the box culvert, Including but not limited to, engineering and inspection costs,
exceeds $289,000, Seller and Buyer agree that the cost of construction in exoess of $289,000 shall be shared equally
by Seller and Buyer.
(c) In the event Seller, at Seller's discretion, determines that the remaining property is a developable site, Seller shall
construct a commercial building of not less than 8,000 square feet on the property with a certificate of occupancy for
such building issued by not iater than three years from the date of acceptance of tre University Avenue Extension
project by the City of Dubuque City Council. For every year or part thereof after t~e expiration of such three-year
period that Seller has not been issued a certificate of occupancy for such building, Seller shall repay to Buyer one-fifth
of the total amount of Buyer's contribution under paragraphs (a) and (b) to the consjruction of the box culvert until a
certificate of occupancy is issued or Buyer's contribution has been fully repaid, whicljever first occurs.
,
(d) Seller shall grantto Buyer for no additional consideration a permanent drainage ea~ementto present improvements
other than parking from being constructed on the easement .and to provide the city wjth the right to access, construct,
reconstruct, maintain, repair or replace the box culvert. i
I
17. This Purchase Agreement is subject to final approval by the City of Dubuque City Cd,uncil.
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PARCEL NO.
PROJECT NO.
1
STP-U-21 00(623)--70-31
COUNTY DUBUQUE
ROAD NO. Universitv Avenue Extension
SELLER: Elm Real Estate, L.C.. an Iowa Limited Liability Company
Page 4
SELLER'S SIGNATURE AND CLAIMANT'S CERTIFICATION: Upon due approval and execution by the Buyer,
we the undersigned claimants certify the Total Lump Sum payment shown herein is just and unpaid.
ELM REAL ESTATE, L.C., an Iowa Limited Liability Company
% Iowa Glass Depot
P.O. Box 122
Cedar Rapids, IA 52406
/"'-- ~
<,,/ C .-~:~
By:~.-:/ 'c" .
Name:
Title:
-....
By:
Name:
Title:
SELLER'S ALL-PURPOSE ACKNOWLEDGMENT
STATE OF -J-c,<J,- }
COUNTY OF L-, ..'" } ss:
On this I day of ~ h ,AD. 200) , before
me,.!b~ undersigned, a Notary Public in and for said State, personally appeared
::::''''C'Je.., f1/1 (J(.......~.....</ I'11vll'tt
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to be the person(s) whose name(s) is/are subscribed to the within instrument I
and acknowledged to me that he/8.o4hay executed the s~me in his/h<lFAAeir I
authorized capacit~), and that by his/Aefl!heir signature~) on the instrument I
the persony.f. or the entity upon behalf of which the personf"l acted, executed i
the Instrument '/ c': / / I
~/~ J/ ~c/~gn In Ink) I
;;~ I
! / (Print! Type Name) ~ I
J Nota Public State of ./ /'1/.0""--1
JOHN H. EHRHART
COMMISSION NO. t40962
MY COMMISSION EXP:;~ES
q --2'1-0
v
_ to me personally known
or _ proved to me on the basis of satisfactory evidence
~Jlj1-\AL ~
~ ~
. .
lOW"
CAPACITY CLAIMED BY SIGNER:
INDIVIDUAL
-;::::... CORPORATE
Title(s) of c~orate Of!ic;1,S): _
~ 6./.~_,f-" 'f:~l'tl
. ~~
_ Corporate Seal is affixed
_ No Corporate Seal procured
PARTNER(s):
_ Limited Partnership
_ General Partnership
ATTORNEY-IN-FACT
EXECUTOR(s) or TRUSTEE(s)
GUARDIAN(s) or CONSERVATOR(s)
OTHER:
SIGNER IS REPRESENTING:
List nam~(s) O~itY.(ieS) O>-PB. r~. _
er,..-.. '.(,:::Yt ' C' C/
BUYER'S ACKNOWLEDGMENT
STATEOFIOWA:ss: Onthis day of ,20 ,before me, the
undersigned, personally appeared , known to me to
be the of Buyer and who did say that said instrument was signed on behalf of
Buyer by the authority duly recorded in its minutes, and acknowledged the execution of said instrument, which
signature appears hereon, to be the voluntary act and deed of Buyer and by it voluntarily executed.
BUYER'S APPROVAL
Notary Public in and for the State of Iowa
Recommended by:
Right of Way Project Agent
(Date)
Approved by:
City of Dubuque, Iowa
(Date)
Iowa Department of Transportation
ACQUISITION PLAT
EXHiBIT "A"
Page 5
COUNTY
PROJECT NO.
SECTION
ROW-FEE
ACCESS RIGHTS
ACQUIRED FROM
DUBUQUE,
,
STP-U.21 00(623)-,- 70-31
27 TOWNSHIP
106,520. SF". . EASE
1
2E
STATE CONTROL NO.
PARCEL NO.
89N RANGE
EXCESS~FEE
. ACQUIRED IN mE NAME OF' THE CITY OF DUeUQUE
~
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I !\R[M,
LOT 1 OF2 or I..
LOT 2 or 2 or 1=
LOT 2 NEWM.o\N: PLACE..
lOTAL'"
J,6205f
44,790 Sf
5a,\\~ Sf
106,520 SF
ST.&.. 1207-+~ i
rtlH1G
p,1. SM, nOH15.35
(UNIVERSITY AVE. CON.)
CURVE OMA
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8..19'05'55"
T ;"B7.W'
l ..169,65'
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LEGEND:
. fOUND MONUMENT A5 NOTEO
o SET 5/8" REl3AR W/YEllOW CAP KI57H
RECORD O1STANcr/B[^RING
(l,l, ST^, tZOHJI3.07
(UNI"t~~lty foNE, (Xl,)
CURVE DATA
&. ;" 10'00'00'.n
B ..09'57'52"
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R ;" 515.00'
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prepored ~;,d Iller.loled lurvey ,,"ork "o~ p"lo,oned by on~
/If yndll my dlrecl pe'tot1oIIlJPi"t.iM and l~oll oon 0 duly
l\l:llutdl\lM SU!IIIY(I[ IJrufel lilt Ia'f(l. (II (lie S((!\l (II ~1l\'l.
ST[VE!4 b. MlLllGAU
lICENSE.No.157n
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~fr IIce,.,.e I. ."bjed tb renewal on Decen.'b'" JI. 2004.
1'1,11 ,.till/colion oppl;e, o(1ly 10 II". SIoee!
Page 6
1/1
IOWA DE:PARTMENT OF tRANSPORTATION
HIGHWAY DIVISION
PLOT PLAN
PARCEL NO.: 001
OWNER: ELM REAL ESTATE,. L.C
SECTION:
T
~R
LEGEND
SCALE: 1 "= 1 no'
w.o; OR ~SEMEHT UNe:r
.Acctss POINT:
....
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CITY OF
U8UQUE
PROP~RTY tiNE!
ST22Ci,H02.11
<t40.00
S7A. 2204+68"':1, ~
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.0;' ~ 1, ~~ 'r~" ~O ~'O 51A. .1203+5,.86
O'i \.O~ \.~'t ~~\..O\ '1 tt 67.01
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fA. '1202+91..042
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S1,l" \102H8.H
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TEMPO~Y E:ASE~t.(NT TO
CONSTRUCT nbAfJWAY <<
.....PPURT!NAf.icts
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STP-U-2100(623)--70-31
COUNTY,
,
DUBUQUE
PROJEct NO.,
17e290j02\D\\'9~\CS\CS PlTOOI.DWG (MVOl=ln)
FU'~Jc~y1j, ~904.jQ,05:~(I o.m.
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Page 8
EXHIBIT' A'
PERMANENT DRAINAGE EASEMENT
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<:. PERMANENT DRAINAGE
::E. EASEMENT LINES
OINT OF BEGINNING
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P POSED UNNERS\1'< "'IE. E)(TENS
JonuoJ)' u, 'loa J:\J;ll p,m.
176290j02\Dw<;l~\CS\CS-f'f;AMOAAINAOE,DWG (MVOeR)
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MN
200~
DATE:
,7G2gQlIJ2
JOB MO.
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UNIVERSITY AVENUE EXTENTION 0
CITY OF DUBUQUE I
DUBUOUE, IOWA SCALE: 1"
50 ''"''1'"' I
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50'
DRAWN,
""'
APf'ROVED:
H:J.,.\!ad R. G-een Company