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FEMA Acceptance of Deeds and Agreements_Old Mill and Manson RoadsMasterpiece on the Mississippi Dubuque kital All- America City II 111! 2012 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Acceptance of Deeds and Agreements for Flood- Damaged Properties DATE: January 28, 2013 Planning Services Manager Laura Carstens recommends City Council approval of the purchase agreements and acceptance of the deeds for flood- damaged properties at 1711 Old Mill Road and 1654 Manson Road that were damaged in the flood of July, 2011. Both of these properties are part of the Iowa Department of Homeland Security & Emergency Management's Hazard Mitigation Grant Program, commonly referred to as FEMA's 404 Program that provides funds for purchase of flood damaged property. It is further recommended that the City Attorney's office be authorized to engage the services of Kevin Deeny to obtain Certificates of Iowa Title Guaranty for these properties. I concur with the recommendation and respectfully request Mayor and City Council approval. kri,„ Michael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Laura Carstens, Planning Services Manager Masterpiece on the Mississippi TO: Michael Van Milligen, City Manager FROM: Laura Carstens, Planning Services Manager SUBJECT: Acceptance of Deeds and Agreements for Flood- Damaged Properties DATE: January 28, 2013 Dubuque * * * ** AII4mehcaCAy 11111' 2012 INTRODUCTION This memorandum transmits for City Council consideration resolutions approving the purchase agreements and accepting the deeds for flood- damaged properties at 1711 Old Mill Road (single - family dwelling) and 1654 Manson Road (detached garage) that were damaged in the flood of July, 2011. Both of these properties are part of the Iowa Department of Homeland Security & Emergency Management's Hazard Mitigation Grant Program (HMGP), also commonly referred to as FEMA's 404 Program that provides funds for purchase of flood damaged property. DISCUSSION Planning and Legal staff have been working with ECIA to facilitate the buy -out of flood - damaged properties in the Manson Road /Old Mill Road area. The City has already demolished one structure through FEMA's 403 Program that allows a community to demolish a structure prior to actually taking ownership of the land. The two current structures are being purchased and demolished through FEMA's 404 Program that requires the City to actually purchase the properties prior to demolition. Planning staff anticipates going out for bid for demolition this spring, with actual demolition of the two structures within 90 days of awarding the bid for demolition. The following documents are attached to this memorandum: 1. Resolutions. For each property, a resolution (i) approving the purchase agreement for the property; (ii) accepting the deed transferring ownership of the property; (iii) accepting the deed restricting the future use of the property to open space (as required by the HMGP); and (iv) granting the City attorney authority to hire an attorney qualified to obtain an Iowa Certificate of Title Guaranty (as required by the HMGP) is attached. Acceptance of Deeds and Agreements for Flood- Damaged Properties Page 2 2. Purchase Agreements. The purchase agreement for each property is attached. 3. Attorneys' Estimates. The HMGP requires the City to obtain a Certificate of Title Guaranty from a participating attorney in the Iowa Finance Authority's Title Guaranty program. As required by the HMGP, estimates must be obtained from three (3) participating attorneys to ensure comparable pricing. Although there is no requirement to engage the services of the lowest bidder, an explanation must be provided when the lowest bidder is not chosen. In this instance, the City Attorney's office requests authorization to obtain the services of Kevin Deeny from Kane, Norby & Reddick, P.C. Although Mr. Deeny's estimate is twenty -five dollars ($25) higher per property than the lowest bidder, Mr. Deeny will review the abstracts for the properties and provide title opinions in addition to obtaining the Certificates of Title Guaranty. The other bidders did not include these additional services in their estimates. Also, the City has a long and well established working relationship with Kane, Norby & Reddick, P.C. These three (3) estimates are attached. RECOMMENDATION I recommend the City Council pass, adopt and approve the attached resolutions approving the enclosed purchase agreements, accepting the deeds described above, and authorizing the City Attorney's office to engage the services of Kevin Deeny to obtain Certificates of Iowa Title Guaranty for the flood damaged properties at 1711 Old Mill Road and 1654 Manson Road through the HMGP (FEMA 404 Program). Thank you. Enclosures cc: Gus Psihoyos, City Engineer Bob Schiesl, Assistant City Engineer Rich Russell, Building Services Manager Maureen Quann, Assistant City Attorney Kyle Kritz, Associate Planner Nicole Turpin, ECIA Page 1 of 1 IDIIAINIIINIIIIAO 'Doc ID 007658780013 Type OEN Kind DEED WITH RESOLUTION Recorded: 04/05/2013 at 12:11:23 PM Fee Amt: $253.60 Page 1 of 13 Revenue Tax: $181.60 Dubuque County Iowa Kathy Flynn Thurlow Recorder M620 13-00005945 e.Sir.,rF COURT OFFICER DEED 2 1 THE IOWA STATE BAR ASSOCIATION • Official Form No. P201 94,4,tio{ Recorder's Cover Sheet Preparer Information: (Name, address and phone number) Maureen A. Quann, Suite 330, 300 Main Street, Dubuque, IA 52001, Phone: (563) 589-4381 Taxpayer Information: (Name and complete address) City of Dubuque, Iowa Return Document To: (Name and complete address) 50 West 13th Street, Dubuque, IA 52001 Grantors: Grantees: Monte Thorpe City of Dubuque, Iowa Executor, The Estate of Zane C. Thorpe Legal description: See Page 2 Document or instrument number of previously recorded documents: C The Iowa State Bar AssodaUon 2008 IOWADOCSO EL19° File Number: 2013-00005945 Seq: 1 ta-tor Prepared by: Maureen Quann, Assistant City Attorney Address: 300 Main Ste 330 Telephone: 589 -4113 Return to: Kevin Firnstahl, City Clerk Address: City Hall- 50 W. 13th St Telephone: 589 -4121 RESOLUTION NO. 32 -13 APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY THE ESTATE OF ZANE C. THORPE IN THE CITY OF DUBUQUE, IOWA Whereas, the City Council of the City of Dubuque previously determined it is in the City's best interest to participate with the East Central Intergovernmental Agency and the Iowa Department of Homeland Security & Emergency Management to acquire flood damaged properties located in the floodplain in the Manson Road and Old Mill Road area, including the following described real estate (the Property): Lot 2 of Lot 2 of Lot 1 of Lot 1 of Lot 1 of Lot 1 of Lot 1 of Lot 1 of Lot 2 of Lot 1 of Lot 4 of Mineral Lot 501, in the City of Dubuque, Iowa, according to Alex Anderson's Map of the Mineral Lots of Julien Township & Vicinity & the recorded plats thereof, subject to easements of record; and Whereas, the City Council previously approved submission of a grant application for Iowa Department of Homeland Security & Emergency Management's Hazard Mitigation Grant Program (HMGP) funds for the acquisition of the Property by the passage, approval and adoption of Resolution Number 417 -11 on December 5, 2011; and Whereas, through its participation in and compliance with the HMGP , the City of Dubuque has agreed to pay fifteen percent (15 %) of the cost of acquiring the Property; the state of Iowa will pay ten percent (10 %) of such cost; and the federal government will pay the remaining seventy -five percent (75 %) of such cost; and Whereas, a purchase agreement, a copy of which is attached hereto (the Purchase Agreement), has been tentatively agreed upon between the City and the owner of the Property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. hereby approved. Section 2. The City Attorney is hereby authorized to retain an attorney qualified to obtain a Certificate of Title Guaranty for the Property, as required by the HMGP. The Purchase Agreement for and the acquisition of the Property is Section 3. Subject to satisfaction of the conditions in the Purchase Agreement, the City of Dubuque accepts the Court Officer's Deed from the Executor of the Estate of Zane C. Thorpe, conveying the owner's interest to the City of Dubuque, Iowa for the Property. Section 4. Subject to satisfaction of the conditions in the Purchase Agreement, the City of Dubuque accepts the Mitigation Model Deed Restriction from the Executor of the Estate of Zane C. Thorpe, limiting the present and future use of the Property to open space, as required by the HMGP. Section 5. The City Clerk is hereby authorized and directed to cause said Court Officer's Deed and Model Mitigation Deed Restriction to be recorded in the office of the Dubuque County Recorder, together with certified copy of this Resolution. Passed, approved and adopted this 4th day of February 2013. Roy D. oI, Mayor Attest: Pagel of 1 111111111111110 111111111111111 Doc ID: 007658760012 Type: GEN Kind DEED WITH RESOLUTION FeeoAmt: $287 002Page013 a1 of:12:47 PM eRevenue Tax: $220.00 Dubuque County Iowa Kathy Flynn Thurlow Recorder Fi1e2013-00005944 WARRANTY DEED THE IOWA STATE BAR ASSOCIATION Official Form #101 Recorder's Cover Sheet crA 0 Preparer Information: (Name, address and phone number) Maureen A. Quann, Suite 330, 300 Main Street, Dubuque, IA 52001, Phone: (563) 589-4381 Taxpayer. Information: (Name and complete address) City of Dubuque, Iowa Return Document To: (Name and complete address) 50 West 13th Street, Dubuque, IA 52001 Grantors: Ken J. Lin Grantees: City of Dubuque, Iowa Legal description: See Page 2 Document or instrument number of previously recorded documents: ®The Iowa State Bar Association 2005 IOWADOCS® uLtP Q Pkikov File Number: 2 13-00005944 Seq: 1 Prepared by: Maureen Quann, Assistant City Attorney Address: 300 Main Ste 330 Telephone: 589 -4113 Return to: Kevin Firnstahl, City Clerk Address: City Hall- 50 W. 13th St Telephone: 589 -4121 RESOLUTION NO. 33 -13 APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY THE ESTATE OF KEN J. LIN IN THE CITY OF DUBUQUE, IOWA Whereas, the City Council of the City of Dubuque previously determined it is in the City's best interest to participate with the East Central Intergovernmental Agency and the Iowa Department of Homeland Security & Emergency Management to acquire flood damaged properties located in the floodplain in the Manson Road and Old Mill Road area, including the following described real estate (the Property): Lot 2 of Lot 2 of Lot 2 of Lot 2 of Lot 1 of Lot 4 of Mineral Lot 501, in the City of Dubuque, Iowa, according to the recorded plat thereof ; and Whereas, the City Council previously approved submission of a grant application for Iowa Department of Homeland Security & Emergency Management's Hazard Mitigation Grant Program (HMGP) funds for the acquisition of the Property by the passage, approval and adoption of Resolution Number 417 -11 on December 5, 2011; and Whereas, through its participation in and compliance with the HMGP , the City of Dubuque has agreed to pay fifteen percent (15 %) of the cost of acquiring the Property; the state of Iowa will pay ten percent (10 %) of such cost; and the federal government will pay the remaining seventy -five percent (75 %) of such cost; and Whereas, a purchase agreement, a copy of which is attached hereto (the Purchase Agreement), has been tentatively agreed upon between the City and the owner of the Property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Purchase Agreement for and the acquisition of the Property is hereby approved. Section 2. The City Attorney is hereby authorized to retain an attorney qualified to obtain a Certificate of Title Guaranty for the Property, as required by the HMGP. Section 3. Subject to satisfaction of the conditions in the Purchase Agreement, the City of Dubuque accepts the Warranty Deed from the owner of the Property, conveying the owner's interest to the City of Dubuque, Iowa for the Property. Section 4. Subject to satisfaction of the conditions in the Purchase Agreement, the City of Dubuque accepts the Mitigation Model Deed Restriction from the owner of the Property, limiting the present and future use of the Property to open space, as required by the HMGP. Section 5. The City Clerk is hereby authorized and directed to cause said Warranty Deed and Model Mitigation Deed Restriction to be recorded in the office of the Dubuque County Recorder, together with certified copy of this Resolution. Passed, approved and adopted this 4th day of February Attest: 2013. VOLUNTARY ACQUISITION PROGRAM FOR FLOOD DAMAGED RESIDENCE OFFER TO BUY REAL ESTATE AND ACCEPTANCE To: Zane C. Thorpe c/o Monte Thorpe, herein designated as "Seller ". The City of Dubuque, a municipal corporation of the State of Iowa (herein referred to as the "City "), acting pursuant to this municipal powers in administering its Voluntary Flood Recovery Program Project does hereby offer to buy all the Seller's right, title and interest in the real estate locally known as 1654 Manson Road, Dubuque, County of Dubuque, Iowa and legally described as follows: LOT 2- 2- 1- 1- 1- 1- 1- 1 -2 -1 -4 MINERAL LOT 501 Together with all the Seller's rights, title and interest in all fixtures, buildings and improvements located on the above - described real estate, free and clear of all liens, encumbrances, reservations, exceptions and modifications. The entirety of the above - described interests being conveyed shall hereinafter be referred to as the "Property ". The Property shall be conveyed with good, clear, merchantable title, subject to easements of record for public utilities. For the purpose of this document, said fixtures include all personal property that integrally belongs to or is part of the above - described real estate, whether attached or detached, such as light fixtures (including fluorescence tubes but not mazda bulbs), awnings, storm windows, storm doors, storm sashes, screens, attached linoleum, plumbing fixtures, water heaters, water softeners, automatic heating equipment, air conditioning equipment other than window type, door chimes, built -in -items and electrical service cable, fencing, gates and other attached fixtures, trees, bushes, shrubs and plants unless specifically exempted. In consideration of the covenants and obligations contained herein, the parties agree as follows: 1. PURCHASE PRICE The City offers to purchase all the Seller's right, title and interest in the Property for $113,553.00 subject to Iowa Emergency Management Division approval, payable at Closing, which sum shall be reduced by any amounts paid by the City or others on behalf of or to the Seller for the purposes set forth in paragraphs 8A and 8B. The Seller shall receive no other compensation from the City for the Seller's right, title and interest in the Property. 2. ABSTRACT AND TITLE Seller shall promptly deliver to the City for examination an abstract of title for the Property, continued to a date subsequent to the date of this offer, prepared pursuant to Iowa Code Sections 614.29 through 614.38, Iowa Land Title Association Abstracting Standards, and Iowa Land Title Examination Standards of the Iowa State Bar Association. The abstract shall begin the government patent to the Property and show merchantable title in Seller. The cost of the continuance of an existing abstract shall be paid by the City. In the event that the Seller is unable to deliver an existing abstract to the City, the costs of creating a new 40 -year abstract shall be paid by the Seller. The Seller shall pay all costs required to perfect its title to the Property and shall pay the costs of any additional abstracting and /or title work due to acts or omissions of Seller, including transfers or death of Seller or assigns. The abstract shall become the property of the City when the Purchase Price is paid in full. 3. DEED On or before 12/31/2012, or at such date as the parties may mutually agree (the "Closing Date "), the Seller shall have completed its obligations under paragraph 2 and paragraph 7 and the Seller shall execute and deliver to the City a Warranty Deed for the Property in recordable form (i.e. signed and acknowledged) conveying simple title to the Property to the City. The Seller shall further deliver to the City a declaration of value as required under Section 428A.1 of the Code of Iowa, and a groundwater hazard statement as required under Section 58.69 of the Code. The Deed shall be on the General Warranty Deed form approved by the Iowa State Bar Association. 4. FOR THE SELLERS: JOINT TENANCY IN PROCEEDS If, and only if, the Sellers, immediately preceding this offer, hold the title to the Property in joint tenancy, and such joint tenancy is not later destroyed by operation of a law or by acts of the Sellers then (1) the proceeds of this sale shall be and continue in Sellers as joint tenants with rights of survivorship and not as tenants in common; and (2) the City, in the event of death of either Seller, agrees to pay any balance of the proceeds of this sale to the surviving Seller and to accept Deed from such surviving Seller consistent with paragraph 2 above. 5. POSSESSION On and after the Closing Date, the City shall be entitled to immediate possession of the Property and to receipt of all rents and profits from the Property thereafter. 6. INSPECTION OF THE PROPERTY The City, at its expense, shall have the right to conduct such investigations, inspections and inventories of the Property as it deems reasonable or necessary prior to Closing. The Seller hereby grants the City, its officers, agents, employees and independent contractors, the right to enter upon the Property at reasonable times upon reasonable notice, oral or written, from time to time after the date of this Offer for the purposes of investigating, inspecting and performing inventories of the Property and for other purposes and inventories by the City, regardless of outcome thereof, shall not affect Seller's representation or warranties set forth in paragraph 18. The seller will grant access to the City to inspect the flood damaged property for personal property, hazardous materials, etc. that must be removed prior to closing. 7. REMOVAL OF PERSONAL PROPERTY AND DEBRIS Prior to the Closing Date, the Seller, at its own expense, shall remove all personal property, equipment, and debris from the Property including, but not Limited to, vehicles, vehicle parts, appliances, storage containers, household cleaners and solvents, construction materials, firewood, etc.. 8. APPLICATION OF PURCHASE PRICE AND DEDUCTIONS FOR FLOOD ASSISTANCE RECEIVED A. Prior to disbursing payment to the Seller, the City shall use a portion of the Purchase Price to satisfy the Seller's obligations under this document to remove personal property and debris and to pay taxes, assessments, liens, acquisition of other parties' outstanding interest in the Property, and other costs incidental to the conveyance by Seller of merchantable title to the City. B. Seller acknowledges that this voluntary acquisition is made pursuant to a program funded by the Federal Emergency Management Agency (FEMA). In order to prevent the duplication of Federal Assistance made to flood disaster victims, FEMA requires that certain types of assistance received by the Seller from state, federal, and private sources for flood related damaged be deducted in determining the Purchase Price. 9. RELOCATION OUTSIDE FLOODPLAIN The Seller acknowledges that it is required to relocate outside of National Flood Insurance Program (NFIP) Zone A floodplain boundaries. 10. INSURANCE Seller shall maintain and keep in force and effect all existing property and liability insurance until termination of occupancy. 11. STATUS QUO MAINTAINED The Property shall be preserved in its present condition and Seller shall deliver it intact at the time possession of the City is given. All risk of loss or damage to the Property is on the Seller until the City takes possession. Prior to possession by the City, the Seller shall promptly give written notice to the City of any loss or damage to the Property. In the event of loss, damage or destruction of all or part of the Property, the City shall have the option to terminate this Agreement effectively immediately. However, in the case of loss, damage or destruction of all or part of the Property from causes covered by insurance, the City shall have the option to either: (1) take possession of the Property and accept an assignment of all Seller's right, title and interest in and to any claims Seller has under the insurance policies covering the Property; or (2) terminate this Agreement effective immediately. 12. UTILITIES The Seller shall be responsible for payment of all utility expenses incurred by it or incurred by any other occupants prior to the termination of occupancy including, without limitation, of the foregoing sewer, solid waste, and water charged which may be assessed for collection pursuant to Iowa Code Section 384.84. 13. TAXES Seller shall pay all of the taxes on the property (real and personal) up to the date of closing. The Seller agrees and acknowledges that Seller shall be responsible for the entire amount of the real estate taxes for the current fiscal year up to the date of closing. If any such taxes cannot be determined by the date of the closing, such taxes shall be based on the amount of the last determinable installment, proportionately adjusted by any change on the assessed valuation attributable to capital improvements and which are determinable on the date of closing. 14. SPECIAL ASSESSMENTS Seller shall pay in full all special assessments on the Property, which have been certified to the County Treasurer for collection before the Closing Date. 15. TIME IS OF THE ESSENCE Time is of the essence of this Agreement. 16. LEASES Seller represents and warrants to the City that there are no leases, tenancies, or other rights of occupancy for use for any portion of the Property. The foregoing representation and warranty shall survive Closing Date. Seller shall hold harmless and indemnify the City 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 Property. 17. APPROVAL OF COURT If the Property is an asset of any estate, trust or guardianship, this document shall be subject to Court approval prior to payment of Purchase Price, unless declared unnecessary by the City's legal department. If Court approval is necessary, the appropriate fiduciary shall proceed promptly and diligently to bring the matter on for hearing to enable the issuance of a Court Officer's Deed. 18. ENVIRONMENTAL MATTERS The Seller hereby represents and warrants to the City that: A. Environmental Representations and Warranties (1) There are no abandoned wells, agricultural drainage wells, solid waste disposal sites or underground storage tanks (as defined in Iowa Code Chapter 455 B) located in, on or about the Property. (2) There is and has been no hazardous waste stored, generated, treated, transported, installed, dumped, handled, or placed in, on or about the Property. (3) At no time has any Federal or State hazardous waste clean -up funds been expended with respect to any part of the Property. (4) There has never been any solid waste disposal site or underground storage tank located in, on or about the Property, nor has there been any releases from an underground storage tank on real property contiguous to the Property which as resulted in any hazardous substance coming in contact with the Property. (5) The Seller has not received any directive, citation, notice, letter or other communication, whether written or oral, from the Environmental Protection Agency, the Iowa Department of Natural Resources, any other governmental agency with authority under any Environmental Laws, or any other person or entity regarding the release, disposal, discharge, or presence of any hazardous waste on the Property, or any violation of any Environmental Laws. (6) To the best of the Seller's knowledge, neither the Property, nor the real property contiguous to the Property, nor the predecessors in title to the Property, are in violation of or subject to any existing, pending or threatened investigation or inquiry by any governmental authority or to any removal or remedial obligations under any Environmental Laws. The foregoing representations are warranties, and the Environmental Indemnifications set forth in the following subparagraph B, shall survive the Closing. In addition, the foregoing representations and warranties and the indemnification provisions in the Offer to Buy shall not be affected by any study, investigation, or inspection of the Property by the City or the City's agents. B. Environmental Indemnification The Seller agrees to indemnify and hold harmless the City from and against any and all claims, demands, fines, penalties, causes for action, losses, damage, liabilities, expenses, and costs (including court costs and reasonable attorney's fees — which may include the value of services provided by the City's legal department — incurred by the City to enforce this provision), asserted against or incurred by the City by reason of or arising out of the breach of any representation or warranty of the Seller set forth above: C. Additional Environmental Provisions The Seller shall not store, generate, treat, transport, install, dump, handle, or place in, on or about any portion of the Property any hazardous waste or hazardous substance. If the Seller receives any notice from any governmental authority or any other party regarding the release or presence of any hazardous waste or hazardous substance on any portion of the Property, the Seller shall immediately notify the City of such fact. In addition, the City or its agents shall have the right to enter upon the Property at any time to perform additional environmental studies. If at any time the City in its sole and irrevocable discretion determines that hazardous waste or hazardous substances are present on any portion of the Property, the City may terminate this Offer to Buy effective immediately. 19. CONTRACT BINDING ON SUCESSORS IN INTEREST The document shall apply to and bind the heirs, executors, administrators, partners, assigns and successors in interest of the respective parties. 20. INTENTION OF USE OF WORDS AND PHRASES Words and phrases contained herein, including the acknowledgement clause, shall be construed as in the singular and plural number, and as masculine, feminine or neuter gender, according to the context. 21. VOLUNTARY ACQUISITION The Seller, as owner of the damaged Property as a result of flooding, acknowledges that the City has presented this Offer for the Property pursuant to the City's Voluntary Acquisition Program. The Seller's acceptance of this Offer is a voluntary acquisition. The Seller is under no duress or coercive action by the City to accept this Offer and the City will not pursue acquisition of the Property by eminent domain or other means if the Seller declines to accept this Offer. The Seller further acknowledges that if it accepts this Offer, it will be necessary to move pennanently from the Property. 22. REPRESENTATION AND CLOSING AGENT By signing, the Seller acknowledges that the Maureen Quann from the City of Dubuque, Iowa represents the City, and will serve as the closing agent for the City. The Seller further acknowledges that this law firm represents only the interests of the Buyer and that the Seller is free to retain counsel of the Seller's choice. 23. FINAL AUTHORIZATION The Seller acknowledges that the preliminary budget for the Offer to Buy was approved by the Dubuque City Council on 12/5/2011 and Final Authorization from the City is required before this Offer is binding on either party. 24. OFFER This Offer shall become null and void unless accepted, declined, or countered by the Seller on or before September 6, 2012. This Offer is presented in person to the Seller on this 23 day of August, 2012. The foregoing Offer is accepted by the undersigned Seller this Z i day of %fuse/ , 2012. By: Zane Thorpe, c /ojvlonte Thorpe The Final Authorization was approved and authorized by the Dubuque City Council on the day of , 2012. By: By: / %y 49%/ Mark Schneider Authorized Representative Attest: VOLUNTARY ACQUISITION PROGRAM FOR FLOOD DAMAGED RESIDENCE OFFER TO BUY REAL ESTATE AND ACCEPTANCE To: Ken J. Lin, herein designated as "Seller ". The City of Dubuque, a municipal corporation of the State of Iowa (herein referred to as the "City "), acting pursuant to this municipal powers in administering its Voluntary Flood Recovery Program Project does hereby offer to buy all the Seller's right, title and interest in the real estate locally known as 1711 Old Mill Rd., Dubuque, County of Dubuque, Iowa and legally described as follows: LOT 2- 2- 2 -2 -1 -4 MINERAL LOT 501 Together with all the Seller's rights, title and interest in all fixtures, buildings and improvements located on the above - described real estate, free and clear of all liens, encumbrances, reservations, exceptions and modifications. The entirety of the above - described interests being conveyed shall hereinafter be referred to as the "Property ". The Property shall be conveyed with good, clear, merchantable title, subject to easements of record for public utilities. For the purpose of this document, said fixtures include all personal property that integrally belongs to or is part of the above - described real estate, whether attached or detached, such as light fixtures (including fluorescence tubes but not mazda bulbs), awnings, storm windows, storm doors, storm sashes, screens, attached linoleum, plumbing fixtures, water heaters, water softeners, automatic heating equipment, air conditioning equipment other than window type, door chimes, built -in -items and electrical service cable, fencing, gates and other attached fixtures, trees, bushes, shrubs and plants unless specifically exempted. In consideration of the covenants and obligations contained herein, the parties agree as follows: 1. PURCHASE PRICE The City offers to purchase all the Seller's right, title and interest in the Property for $137,687.00 subject to Iowa Emergency Management Division approval, payable at Closing, which sum shall be reduced by any amounts paid by the City or others on behalf of or to the Seller for the purposes set forth in paragraphs 8A and 8B. The Seller shall receive no other compensation from the City for the Seller's right, title and interest in the Property. 2. ABSTRACT AND TITLE Seller shall promptly deliver to the City for examination an abstract of title for the Property, continued to a date subsequent to the date of this offer, prepared pursuant to Iowa Code Sections 614.29 through 614.38, Iowa Land Title Association Abstracting Standards, and Iowa Land Title Examination Standards of the Iowa State Bar Association. The abstract shall begin the government patent to the Property and show merchantable title in Seller. The cost of the continuance of an existing abstract shall be paid by the City. In the event that the Seller is unable to deliver an existing abstract to the City, the costs of creating a new 40 -year abstract shall be paid by the Seller. The Seller shall pay all costs required to perfect its title to the Property and shall pay the costs of any additional abstracting and /or title work due to acts or omissions of Seller, including transfers or death of Seller or assigns. The abstract shall become the property of the City when the Purchase Price is paid in full. 3. DEED On or before 12/31/2012, or at such date as the parties may mutually agree (the "Closing Date "), the Seller shall have completed its obligations under paragraph 2 and paragraph 7 and the Seller shall execute and deliver to the City a Warranty Deed for the Property in recordable form (i.e. signed and acknowledged) conveying simple title to the Property to the City. The Seller shall further deliver to the City a declaration of value as required under Section 428A.1 of the Code of Iowa, and a groundwater hazard statement as required under Section 58.69 of the Code. The Deed shall be on the General Warranty Deed form approved by the Iowa State Bar Association. 4. FOR THE SELLERS: JOINT TENANCY IN PROCEEDS If, and only it the Sellers, immediately preceding this offer, hold the title to the Property in joint tenancy, and such joint tenancy is not later destroyed by operation of a law or by acts of the Sellers then (I) the proceeds of this sale shall be and continue in Sellers as joint tenants with rights of survivorship and not as tenants in common; and (2) the City, in the event of death of either Seller, agrees to pay any balance of the proceeds of this sale to the surviving Seller and to accept Deed fiom such surviving Seller consistent with paragraph 2 above. 5. POSSESSION On and after the Closing Date, the City shall be entitled to immediate possession of the Property and to receipt of all rents and profits from the Property thereafter. 6. INSPECTION OF THE PROPERTY The City, at its expense, shall have the right to conduct such investigations, inspections and inventories of the Property as it deems reasonable or necessary prior to Closing. The Seller hereby grants the City, its officers, agents, employees and independent contractors, the right to enter upon the Property at reasonable thnes upon reasonable notice, oral or written, from time to time after the date of this Offer for the purposes of investigating, inspecting and performing inventories of the Property and for other purposes and inventories by the City, regardless of outcome thereof, shall not affect Seller's representation or warranties set forth in paragraph 18. The seller will grant access to the City to inspect the flood damaged property for personal property, hazardous materials, etc. that must be removed prior to closing. 7. REMOVAL OF PERSONAL PROPERTY AND DEBRIS Prior to the Closing Date, the Seller, at its own expense, shall remove all personal property, equipment, and debris from the Property including, but not limited to, vehicles, vehicle parts, appliances, storage containers, household cleaners and solvents, construction materials, firewood, etc.. 8. APPLICATION 01? PURCHASE PRICE AND DEDUCTIONS FOR FLOOD ASSISTANCE RECEIVED A. Prior to disbursing payment to the Seller, the City shall use a portion of the Purchase Price to satisfy the Seller's obligations under this document to remove personal property and debris and to pay taxes, assessments, liens, acquisition of other parties' outstanding interest in the Property, and other costs incidental to the conveyance by Seller of merchantable title to the City. B. Seller acknowledges that this voluntary acquisition is made pursuant to a program funded by the Federal Emergency Management Agency (FEMA). In order to prevent the duplication of Federal Assistance made to flood disaster victims, FEMA requires that certain types of assistance received by the Seller from state, federal, and private sources for flood related damaged be deducted in determining the Purchase Price. 9. RELOCATION OUTSIDE FLOODPLAIN The Seller acknowledges that it is required to relocate outside of National Flood Insurance Program (NFIP) Zone A floodplain boundaries. 10. INSURANCE Seller shalt maintain and keep in force and effect all existing property and liability insurance until termination of occupancy. 11. STATUS QUO MAINTAINED The Property shall be preserved in its present condition and Seller shall deliver it intact at the time possession of the City is given. All risk of loss or damage to the Property is on the Seller until the City takes possession. Prior to possession by the City, the Seller shall promptly give written notice to the City of any loss or damage to the Property. In the event of loss, damage or destruction of all or part of the Property, the City shall have the option to tenninate this Agreement effectively immediately. However, in the case of loss, damage or destruction of all or part of the Property from causes covered by insurance, the City shall have the option to either: (1) take possession of the Property and accept an assignment of all Seller's right, title and interest in and to any claims Seller has under the insurance policies covering the Property; or (2) terminate this Agreement effective immediately. 12. UTILITIES The Seller shall be responsible for payment of all utility expenses incurred by it or incurred by any other occupants prior to the termination of occupancy including, without limitation, of the foregoing sewer, solid waste, and water charged which may be assessed for collection pursuant to Iowa Code Section 384.84. 13. TAXES Seller shall pay all of the taxes on the property (real and personal) up to the date of closing. The Seller agrees and acknowledges that Seller shall be responsible for the entire amount of the real estate taxes for the current fiscal year up to the date of closing. If any such taxes cannot be determined by the date of the closing, such taxes shall be based on the amount of the last determinable installment, proportionately adjusted by any change on the assessed valuation attributable to capital improvements and which are determinable on the date of closing. 14. SPECIAL ASSESSMENTS Seller shall pay in full all special assessments on the Property, which have been certified to the County Treasurer for collection before the Closing Date. 15. TIME IS OF THE ESSENCE Time is of the essence of this Agreement. 16. LEASES Seller represents and warrants to the City that there are no leases, tenancies, or other rights of occupancy for use for any portion of the Property. The foregoing representation and warranty shall survive Closing Date. Seller shall hold harmless and indemnify the City 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 Property. 17. APPROVAL OF COURT If the Property is an asset of any estate, trust or guardianship, this document shall be subject to Court approval prior to payment of Purchase Price, unless declared unnecessary by the City's legal department. If Court approval is necessary, the appropriate fiduciary shall proceed promptly and diligently to bring the matter on for hearing to enable the issuance of a Court Officer's Deed. 18. ENVIRONMENTAL MATTERS The Seller hereby represents and warrants to the City that: A. Environmental Representations and Warranties (1) There are no abandoned wells, agricultural drainage wells, solid waste disposal sites or underground storage tanks (as defined in Iowa Code Chapter 455 B) located in, on or about the Property. (2) There is and has been no hazardous waste stored, generated, treated, transported, installed, dumped, handled, or placed in, on or about the Property. (3) At no time has any Federal or State hazardous waste clean -up funds been expended with respect to any part of the Property. (4) There has never been any solid waste disposal site or underground storage tank located in, on or about the Property, nor has there been any releases from an underground storage tank on real property contiguous to the Property which as resulted in any hazardous substance coming in contact with the Property. (5) The Seller has not received any directive, citation, notice, letter or other communication, whether written or oral, from the Environmental Protection Agency, the Iowa Department of Natural Resources, any other governmental agency with authority under any Environmental Laws, or any other person or entity regarding the release, disposal, discharge, or presence of any hazardous waste on the Property, or any violation of any Enviromnental Laws. (6) To the best of the Seller's knowledge, neither the Property, nor the real property contiguous to the Property, nor the predecessors in title to the Property, are in violation of or subject to any existing, pending or threatened investigation or inquiry by any governmental authority or to any removal or remedial obligations under any Environmental Laws. The foregoing representations are warranties, and the Environmental Indemnifications set forth in the following subparagraph B, shall survive the Closing. In addition, the foregoing representations and warranties and the indemnification provisions in the Offer to Buy shall not be affected by any study, investigation, or inspection of the Property by the City or the City's agents. B. Environmental Indemnification The Seller agrees to indemnify and hold harmless the City from and against any and all claims, demands, fines, penalties, causes for action, losses, damage, liabilities, expenses, and costs (including court costs and reasonable attorney's fees — which may include the value of services provided by the City's legal department — incurred by the City to enforce this provision), asserted against or incurred by the City by reason of or arising out of the breach of any representation or warranty of the Seller set forth above. C. Additional Environmental Provisions The Seller shall not store, generate, treat, transport, install, dump, handle, or place in, on or about any portion of the Property any hazardous waste or hazardous substance. If the Seller receives any notice from any govemrental authority or any other party regarding the release or presence of any hazardous waste or hazardous substance on any portion of the Property, the Seller shall immediately notify the City of such fact. In addition, the City or its agents shall have the right to enter upon the Property at any time to perform additional environmental studies. If at any time the City in its sole and irrevocable discretion determines that hazardous waste or hazardous substances are present on any portion of the Property, the City may terminate this Offer to Buy effective immediately. 19. CONTRACT BINDING ON SUCESSORS IN INTEREST The document shall apply to and bind the heirs, executors, administrators, partners, assigns and successors in interest of the respective parties. 20. INTENTION OF USE OF WORDS AND PHRASES Words and phrases contained herein, including the acknowledgement clause, shall be construed as in the singular and plural number, and as masculine, feminine or neuter gender, according to the context. 21. VOLUNTARY ACQUISITION The Seller, as owner of the damaged Property as a result of flooding, acknowledges that the City has presented this Offer for the Property pursuant to the City's Voluntary Acquisition Program. The Seller's acceptance of this Offer is a voluntary acquisition. The Seller is under no duress or coercive action by the City to accept this Offer and the City will not pursue acquisition of the Property by eminent domain or other means if the Seller declines to accept this Offer. The Seller further acknowledges that if it accepts this Offer, it will be necessary to move permanently from the Property. 22. REPRESENTATION AND CLOSING AGENT By signing, the Seller acknowledges that the Maureen Ouann from the City of Dubuque, Iowa represents the City, and will serve as the closing agent for the City. The Seller further acknowledges that this law firm represents only the interests of the Buyer and that the Seller is free to retain counsel of the Seller's choice. 23. FINAL AUTHORIZATION The Seller acknowledges that the preliminary budget for the Offer to Buy was approved by the Dubuque City Council on 12/5/2011 and Final Authorization from the City is required before this Offer is binding on either party. 24. OFFER This Offer shall become null and void unless accepted, declined, or countered by the Seller on or before September 6, 2012. This Offer is presented in person to the Seller on this 23 day of August, 2012. ���0 �� The foregoing Offer is accepted by the undersigned Seller this o day of6 /y4 6/y4042012. By: _��.�j % By: Kg J. Lin The Final Authorization was approved and authorized by the Dubuque City Council on the day of A ; 03 , 2012. By: J ' i —az- e Mark Schneider Authorized Representative Attest: Page 1 of 3 Maureen Quann - RE: Iowa Title Guaranty Program From: Kevin Deeny <kdeeuy@kanenorbylaw.com> To: Maureen Quann <Mquanntcityofdubuque.org> Date: 01/14/2013 4:09 PM Subject: RE: Iowa Title Guaranty Program Maureen, I spoke with Carrie Nutt at Title Guaranty. She said that with these FEMA program acquisitions, most buyers have been obtaining a Title Guaranty Certificate but not a Commitment. I can do commitments If that Is what you want. I will need to examine the abstracts either way and prepare title opinions. Then you can close on the transactions. Following the closings, the abstracts will need to be updated. Then I will prepare the Title Guaranty Certificate. Our charge to examine the abstract and prepare a title opinion and Title Guaranty Certificate (and Commitment If requested) will be $175 for each property. Our fee does not include any fee charged by Title Guaranty for the Certificate. If that is acceptable, please let me know, and I will get started. If you want me to return the abstracts to you to use a different attorney, please let me know. I will take no offense, I assure you. If you have any questions, please let me know. Thanks. Kevin T. Deeny Kane, Norby & Reddlck, P.C. 2100 Asbury Rd, Ste 2 Dubuque, Iowa 52001 Ph: 563 -582 -7980 Fax: 563 -582 -5312 This e-mail (including any attachments) Is covered by the Electronic Communications Privacy Act, 18 U.S.C. Sec. 2510- 2521, is confidential and may contain attorney - client materials and /or attorney work product, legally privileged and protected from disclosure. This e -mall is intended only for the addressee named above. If you are not the Intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this communication Is strictly prohibited. Please call us immediately at 563-582-7980 and ask to speak to the sender or reply to the sender that you have received the message in error, then delete It and any and all copies of It. If you are a client of our firm, this e- mail confirms that communication to you by a -mall Is an acceptable way to transmit attorney - client information. Thank you. Except as otherwise agreed In writing, any discussion of tax matters contained herein Is not Intended or written to be used, and cannot be used, for the purpose of avoiding any penalties that may be Imposed under federal tax laws. From: Maureen Quann [ malito:Mquann @cityofdubuque.org] Sent: Friday, January 11, 2013 12:10 PM To: Kevin Deeny; Les Reddlck Subject: RE: Iowa Title Guaranty Program Sle: / /C: \Documents and Settings\ nquann \Local Settings \Temp\XPgtpwise150F42D9DD... 01/14/2013 From: "Jason Comisky" <jcornisky @fuerstelaw.com> To: <Mquann @cltyofdubuque.org> Date: 01/14/2013 1:30 PM Subject: TG Estimate Maureen, We typically charge $150 to review the preliminary and final title report and have a staff member do Title Guaranty. Let me know If you have any questions. Sincerely, Jason L. Comisky Fuerste, Carew, Juergens & Sudmeler, P.C. 151 West 8th St. 200 Security Building Dubuque, IA 62001 Phone: 563-556-4011 Fax: 663-556-7134 Notice: Since a -mall messages sent between you and Fuerste, Carew, Juergens & Sudmeier, P.C. and its employees are transmitted over the Internet, Fuerste, Carew, Juergens & Sudmeler, P.C. cannot assure that such messages are secure. You should be careful In transmitting Information to Fuerste, Carew, Juergens & Sudmeler, P.C. that you consider confidential. If you are uncomfortable with such risks, you may decide not to use e-mail to communicate with Fuerste, Carew, Juergens & Sudmeler, P.C. This message Is covered by the Electronic Communication Privacy Act, 18. U.S.C. Sections 2510 -2515, Is intended only for the use of the person to whom It is addressed and may contain Information that Is confidential and subject to the attorney - client privilege. It should not be forwarded to anyone else. If you received this message and are not the addressee, you have received this message In error. Please notify the person sending the message and destroy your copy. Thank you. Maureen Qaanu - Title Guaranty Estimate Page 1 of 1 From: "Clu-istopher C. Fry" <CFry @OCTHOMASLAW.COM> To: "mquann ©cityofdubuque,org" <mquamt @cityofdubuque.org> Date: 01/14/2013 10:00 AM Subject: Title Guaranty Estimate Maureen, Our firm would charge $250 per property. Thanks for thinking of us. Chris Christopher C. Fry O'Connor &Thomas P.C. Roshek Building 700 Locust Street, Suite 200 Dubuque, IA 52001 P: 563- 557 -8900 ext 259 F: 563 -556 -1867 This e-mail (including any attachments) Is covered by the Electronic Communications Privacy Act, 18 1.8,0. §§ 2510 -2521, is confidential and may contain attorney- cllenl materials and /or attorney work product, legally privileged and protected from disclosure, This a -mall is Intended only for the addressee named above. If you are not the Intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please call vs Immediately at 583 -557 -8400 and ask to speak to the sender or reply to the sender that you have received the message In error, than delete II and any and all copies of It Ae with all a -mall and attachments, you should scan each to verify that It Is Virus free. O'Connor & Thomas, P.C. Is not responsible for loss or damage arising from use of this a -mall communication. IRS CIRCULAR 230 NOTICE: TO COMPLY WITH U.S. TREASURY REGULATIONS, WE ADVISE YOU THAT ANY U.S. FEDERAL TAX ADVICE INCLUDED IN THIS COMMUNICATION IS NEITHER INTENDED NOR WRITTEN TO BE USED, AND CANNOT BE USED, TO AVOID ANY U.S. FEDERAL TAX PENALTIES OR TO PROMOTE, MARKET, OR RECOMMEND TO ANOTHER PARTY ANY TRANSACTION OR MATTER WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF O'CONNOR & THOMAS, P.C. For further Information regarding any of the above notices, please visit: halo: / /www octhomaslaw.corn. Thank you. file: / /C: \Doeuntents and Settings \mquann \Local Settings \Temp\XPgrpwise \50F3D738DB.,. 01/14/2013