Property Acquisition_321 E. 22nd Street_BayTHE CITY OF
Dui
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Bee Branch Creek Restoration, Property Acquisition
DATE: July 29, 2014
Dubuque
band
AI -America City
r
2007 • 2012 • 2013
City Engineer Gus Psihoyos recommends City Council approval to purchase a
residential dwelling for the appraised value of $67,000 located at 321 E. 22nd Street
owned by Gary E. Bay and Susan M. Bay. This purchase is part of the acquisition
program associated with the Bee Branch Creek Restoration Project.
In addition to being near where the proposed 22nd Street Bridge is to be constructed,
the City's project will involve disruptive excavation work on three sides of the building. If
owned by the City during construction of the Upper Bee Branch project, it would
eliminate the involvement of a third party (and tenants) in the event that the building is
negatively impacted during construction. It will also allow the City more latitude to
protect the building and deal with impacts that arise before, during, and after
construction of the Bee Branch Project.
Following construction of the Bee Branch Creek Restoration Project, the intent is to
stabilize the building and renovate as necessary to reintroduce the building back into
the City's housing stock.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Gus Psihoyos, City Engineer
THE CITY OF
DUI1tJE
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer - Q--
DATE: July 25, 2014
SUBJECT: Bee Branch Creek Restoration, Property Acquisition
Dubuque
kitind
All -America City
hlill!
2007 • 2012 • 2013
INTRODUCTION
The purpose of this memorandum is to seek authorization to acquire 321 E. 22nd Street,
Dubuque, Iowa (the Property) for the Bee Branch Creek Restoration Project.
BACKGROUND
In December of 2001, the City Council formally adopted the Drainage Basin Master Plan
(DBMP) prepared by HDR Engineering (Omaha, Nebraska). Based on the study,
approximately 1,150 homes and businesses in the Bee Branch watershed are at risk of
flood damage.
In December of 2004, the City Council established the alignment for the Bee Branch
Creek Restoration Project, from 15th and Sycamore Street to 24th and Washington
Street, establishing the properties to be acquired for the Bee Branch Creek Restoration
Project.
In April of 2010, the City Council authorized the execution of a Programmatic
Agreement with the Iowa Department of Natural Resource, the State Historical
Preservation Officer, and the U.S. Army Corp of Engineers as a condition of obtaining
the necessary permits to proceed with construction of the Bee Branch Creek
Restoration Project.
DISCUSSION
Per the terms of the Programmatic Agreement, the City was tasked with preparing a
National -Register nomination level survey of the potentially eligible historic East 22nd
and Washington neighborhood district which includes 321 E. 22nd Street. In addition, the
City must "ensure that all historic architectural properties (such as 321 E. 22nd Street)
whose removal is not necessary for the project will be protected from both direct and
indirect adverse effects produced by (the Project)."
321 E. 22nd Street (the Property) was recently listed for sale by Mr. Gary Bay and Mrs.
Susan Bay (the Owners).
In addition to being near where the proposed 22nd Street Bridge is to be constructed,
the City's project will involve disruptive excavation work on three sides of the building. If
owned by the City during construction of the Upper Bee Branch project, it would
eliminate the involvement of a third party (and tenants) in the event that the building is
negatively impacted during construction. It will also allow the City more latitude to
protect the building and deal with impacts that arise before, during, and after
construction of the Bee Branch Project.
The Owners have agreed to sell the property for the appraised value of $67,000.00.
Enclosed is the Offer to Buy Real Estate and Acceptance (the Offer) signed by Mr. Gary
E. Bay and Mrs. Susan M. Bay, the owners of 321 E. 22nd Street.
The building will remain following construction of the Bee Branch Creek Restoration
Project. The intent is to stabilize the building and renovate as necessary to reintroduce
the building back into the City's housing stock following the completion of the Bee
Branch Creek Restoration Project.
RECOMMENDATION
I recommend that the City acquire 321 E. 22nd Street for the Bee Branch Creek
Restoration Project per the terms of the attached Offer.
BUDGET IMPACT
The purchase price is within the budget established for the property. It will be funded
from the FY2013 appropriation of $2,723,388 for property acquisitions for the Bee
Branch Creek Restoration Project (CIP# 7201654).
REQUESTED ACTION
I respectfully request that the City Council adopt the attached Resolution approving the
Offer and authorizing acceptance of the Warranty Deed and any other related steps
necessary to carry out the terms of the Offer.
Attach.
cc: Barry Lindahl, City Attorney
Maureen Quann, Assistant City Attorney
Gus Psihoyos, City Engineer
Steve Brown, Project Manager
2
11�III IIII��VIII VIII SII IIIA�I IIIII�II llll�llll 11111 11111 1111 1111
Doc ID: 008139630004 Type: GEN
Kind: DEED WITH RESOLUTION
Recorded: 11/10/2014 at 12:10:08 PM
Fee Amt: $133.40 Page 1 of 4
Revenue Tax: $106.40
Dubuque County Iowa
Kathy Flynn Thurlow Recorder�i
File20 14-00012 V Q V
®THE IOWA STATE BAR ASSOCIATION Maureen AQuann FOR THE LEGAL EFFECT OF THE USE OF
Oficial Form No.103-May A.2006 THIS FORM CONSULT YOUR LAWYER
Return To:Maureen A.Ouann- Suite 330 300 Main Street Dubuuue. Iowa 52001 (563)589-4381
Preparer:Maureen A. Ouann. Suite 330 300 Main Street Dubuque, Iowa 52001 (563)589-4381
Taxpayer: City of Dubuque.Iowa 50 West 13th Street Dubuque, Iowa 52001
WARRANTY DEED -JOINT TENANCY
ssGct as'°<
For the consideration of one Dollar(s)and other valuable consideration,
Gary E. Bay and Susan M. Bay,husband and wife
do hereby
Convey to the City of Dubuque,Iowa
as Joint
Tenants with Full Rights of Survivorship,and not as Tenants in Common,the following described real estate in
Dubuque County, Iowa:
Lot 2 of Lot 3 in"KEMPS' SUBDIVISION"in the City of Dubuque, Iowa,according to the recorded
Plat thereof
Grantors do Hereby Covenant with grantees, and successors in interest,that grantors hold the real
estate by title in fee simple;that they have good and lawful authority to sell and convey the real estate;that the
real estate is free and clear of all liens and encumbrances except as may be above stated;and grantors
Covenant to Warrant and Defend the real estate against the lawful claims of all persons except as may be above
stated.. Each of the undersigned hereby relinquishes all rights of dower,homestead and distributive share in and
to44l=aal`estate. Words and phrases herein, including acknowledgment hereof, shall be construed as in the
singular Pr plural number, and as masculine or feminine gender, according to the ntext.
Dat 1
ai`y E. Ba' ntor) usan M. Bay (Grantor)
tTPrT COUNTY OF
I
TVA1,6cord was acknowledged before me this _
day of
1 ,by
Cra . Bay and ugan M. Bay,husband and wife
J
Signature of tary Public
(This form of acknowledgment for individual grantor(s)only)
500
C.N U-,zr 0 `d"o�Ov
RESOLUTION NO. 225-14
RESOLUTION APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY
GARY E. BAY AND SUSAN M. BAY, IN THE CITY OF DUBUQUE
Whereas, the City of Dubuque intends to acquire certain real estate as necessary
for the Bee Branch Creek Restoration Project (the Project) for stormwater mitigation
activities as recommended in the 2001 "Drainage Basin Master Plan"; and
Whereas, this certain real estate is not currently part of or located within the Bee
Branch Creek Restoration Project; and
Whereas, the Owners of this certain real estate proposed that the City of
Dubuque acquire the certain real estate legally described as follows (the Property):
Lot 2 of 2 and East 1/2 of Lot 90 & Lot 1 of 1 of East'/2 of Lot 91 all in
East Dubuque Addition; Lots 5 and 6 in Morgan's Subdivision; South
1/2 of the South 1/5 of Lot 490; Lot 2 of Lot 3 in Kemp's Subdivision
subject to "private alley" all in the City of Dubuque, Iowa.
Whereas, the City has executed a Programmatic Agreement among the U.S.
Army Corps of Engineers, the Iowa Department of Natural Resources, the State Historic
Preservation Office and the City of Dubuque regarding the construction of the Project
which requires the City to ensure that the Property is protected from the adverse effects
of construction; and
Whereas, the Project requires excavation and construction activities within close
proximity of the Property; and
Whereas, ownership of the Property would allow the City latitude to protect the
building and deal with impacts that arise before, during, and after construction of the
Project; and
Whereas, the acquisition of this real estate is a voluntarily negotiated purchase
by the City of Dubuque under Section 6B.1A of the Code of Iowa, and is not an
acquisition by the City of Dubuque through its exercise of the power of eminent domain
under Chapter 6B of the Code of Iowa; and
Whereas, a purchase agreement .has been finalized with the owners of the real
estate scheduled for acquisition and an Acknowledgment of Voluntary Negotiation has
been executed by the Owners.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the City Council of the City of Dubuque, Iowa hereby approves
the Offer to Buy Real Estate and Acceptance attached hereto.
Section 2. That the City of Dubuque be and is hereby authorized to accept a
Warranty Deed from the owners, conveying the owner's interest to the City of Dubuque,
Iowa for the herein described real estate.
Section 3. That the City Attorney be and is hereby authorized and directed to
cause said Warranty Deed to be recorded in the office of the Dubuque County
Recorder, together with a certified copy of this Resolution.
Section 4. That the City Attorney be and is hereby directed to forward a copy of
this Resolution to the Dubuque County Assessor and the Dubuque County Auditor.
Passed, approved and adopted this 4th day of August, 2014.
Roy D. BI, Mayor
Attest:
PM—
KevinS. Firnstahl, Cit erk
CERTIFICATE of the CITY CLERK
STATE OF IOWA )
SS: .
COUNTY OF DUBUQUE )
I, Kevin S. Firnstahl, do hereby certify that I am the duly appointed, qualified, City Clerk
of the City of Dubuque, Iowa, in the County aforesaid, and as such City Clerk, I have in
my possession or have access to the records of the proceedings of the City Council. I
do further state that the hereto attached Resolution No. 225-14 is a true and correct
copy of the original.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa, on this 5th day of August, 2014.
Kevi S. irnstah , City Clerk
T �*a
0 0 ,:tSEAL�
O Mp
y,
Y
OFFER TO BUY REAL ESTATE AND ACCEPTANCE
TO: Susan M. Bay and Gary E. Bay, (Seller):
SECTION 1. REAL ESTATE DESCRIPTION. The City of Dubuque, Iowa (Buyer)
offers to buy real estate in Dubuque County, Iowa, described as follows:
Lot 2 of 2 and East 1/2 of Lot 90 & Lot 1 of 1 of East 1/2 of Lot 91 all in
East Dubuque Addition; Lots 5 and 6 in Morgan's Subdivision; South
1/2 of the South 1/5 of Lot 490; Lot 2 of Lot 3 in Kemp's Subdivision
subject to "private alley" all in the City of Dubuque, Iowa.
legal description to be confirmed per continued abstract per Section 7, with any
easements and appurtenant servient estates, but subject to the following: a. any zoning
and other ordinances; b. any covenants of record; c. any easements of record for public
utilities, roads and highways designated the Real Estate.
SECTION 2. PRICE. The purchase price shall be payable to Seller in cash at closing
as follows: $67,000.00.
SECTION 3. REAL ESTATE TAXES. Seller shall pay any unpaid real estate taxes
payable for fiscal year 2012-2013 and prior years. Seller shall also pay real estate taxes
for fiscal year 2013-2014 at closing. Seller shall pay real estate taxes for fiscal year
2014-2015 prorated to the date of closing. Buyer shall pay all subsequent real estate
taxes. Any proration of real estate taxes on the Real Estate shall be based upon such
taxes for the year currently payable unless the parties state otherwise.
SECTION 4. SPECIAL ASSESSMENTS. Seller shall pay all special assessments, if
any, which are a lien as of the date of closing.
SECTION 5. POSSESSION. Subject to the conditions in Section 14, possession of the
Real Estate shall be delivered to Buyer on or before September 1, 2014, or such other
date as the parties may agree in writing.
SECTION 6. 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.
SECTION 7. ABSTRACT AND TITLE. Seller, at its expense, shall promptly obtain an
abstract of title to the Real Estate continued through the date of acceptance of this offer,
and deliver it to Buyer for examination. It shall show merchantable title in Seller in
conformity with this agreement, Iowa law and Title Standards of the Iowa State Bar
Association. The abstract shall become the property of the Buyer when the purchase
price is paid in full. Seller shall pay the costs of any additional abstracting and title work
072414DLM
due to any act or omission of Seller, including transfers by or the death of Seller or its
assignees.
SECTION 8. DEED. Upon payment of the purchase price, Seller shall convey the Real
Estate to Buyer, by Warranty Deed, free and clear of all liens, restrictions, and
encumbrances except as provided in 1 a. through 1 c. Any general warranties of title shall
extend only to the time of acceptance of this offer, with special warranties as to acts of
Seller continuing up to time of delivery of the deed.
SECTION 9. TIME IS OF THE ESSENCE. Time is of the essence in this contract.
SECTION 10. REMEDIES OF THE PARTIES.
10.1 If Buyer fails to timely perform this contract, Seller may forfeit it as provided in the
Iowa Code, and all payments made shall be forfeited or, at Seller's option, upon thirty
days written notice of intention to accelerate the payment of the entire balance because of
such failure (during which thirty days such failure is not corrected) Seller may declare the
entire balance immediately due and payable. Thereafter this contract may be foreclosed
in equity and the Court may appoint a receiver.
10.2 If Seller fails to timely perform this contract, Buyer has the right to have all
payments made returned to it.
10.3 Buyer and Seller also are entitled to utilize any and all other remedies or actions at
law or in equity available to them and shall be entitled to obtain judgment for costs and
attorney fees as permitted by law.
SECTION 11. CONTRACT BINDING ON SUCCESSORS IN INTEREST. This
contract shall apply to and bind the successors in interest of the parties.
SECTION 12. CONSTRUCTION. Words and phrases shall be construed as in the
singular or plural number, and as masculine, feminine or neuter gender, according to the
context.
SECTION 13. TIME FOR ACCEPTANCE. If this offer is not accepted by Seller on or
before August 1, 2014, it shall become void and all payments shall be repaid to the Buyer.
SECTION 14. OTHER PROVISIONS.
14.1 The Offer is subject to final approval of the City Council of the City of Dubuque,
Iowa in its sole discretion.
14.2 Buyer, its counsel, accountants, agents and other representatives, shall have full
and continuing access to the Real Estate and all parts thereof, upon reasonable notice
to Seller for the purpose of inspecting, surveying, engineering, test boring, performance
of environmental tests and such other work as Buyer shall consider appropriate,
provided that Buyer shall hold Seller harmless and fully indemnify Seller against any
damage, claim, liability or cause of action arising from or caused by the actions of
Buyer, its agents, or representatives upon the Real Estate (except for any damage,
claim, liability or cause of action arising from conditions existing prior to any such entry
upon the Real Estate), and shall have the further right to make such inquiries of
governmental agencies and utility companies, etc. and to make such feasibility studies
and analyses as Buyer considers appropriate.
14.3 Until thirty (30) days after Acceptance by both parties, Buyer shall have the right to
terminate this agreement if environmental conditions exist on the Real Estate if Buyer
determines in its sole discretion that such conditions must be remediated. Prior to
terminating this Agreement pursuant to this section, Buyer shall offer Seller the
opportunity to remediate the Real Estate to the satisfaction of Buyer in its sole discretion
and at Seller's sole cost.
THIS OFFER IS ACCEPTED
Dated:
CITY OF DUBUQUE, IOWA SELLERS
BUYER
By: ® By:
Michael C. Van Mil!igen Susan M. Bay
City Manager
By:
Gary E. Bay
3
Exhibit A
Bee Branch Creek Restoration Project Property Acquisition
Address: 321 E. 22nd Street