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Chavenelle Watermain Rd ExtMEMORANDUM January 17, 2002 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Watermain and Road Extension from Chavenelle Road at Radford Road to the Industrial Park I recommend adoption of a resolution approving the construction of the Chavenelle Road watermain extension and acquisition of property for the extension, through condemnation, if necessary, and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment CC: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Bill Baum, Economic Development Director Prel~amd by:. MichaelA. Koch, Public Works Director Address: 50W. 13a Street. Dubueue, IA 52001-4864 RESOLUTION NO. 28-02 RESOLUTION APPROVING A PUBLIC IMPROVEMENT PROJECT TO CONSTRUCT THE CHAVENELLE ROAD WATERMAIN EXTENSION, TO ACQUIRE PROPERTY FOR THE EXTENSION OF CHAVENELLE ROAD, AND TO ACQUIRE AGRICULTURAL LAND FOR THE PROJECT Whereas, the City Council of the City of Dubuque has considered a proposed public improvement project to construct the Chavenelle Road Watermain Extension and to acquire property for the extension of Chavenelle Road; and Whereas, the proposed project may require the acquisition of agricultural land by condemnation; and Whereas, Iowa Code Chapter 6B requires the City to set a time and place for a public hearing on the proposed project and to provide notice to each owner of such agricultural land that may be the subject of condemnation; and Whereas, a public hearing was held on January 21, 2002, after notice thereof to the owners of such land. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, AS FOLLOWS: Section 1. The City Council hereby approves the public improvement project to construct the Chavenelle Road VVatermain Extension and to acquire land for the extension of Chavenelle Road through a portion of the NVV % SW % Sec. 29 89N R2E 5th P.M. Section 2. That the Corporation Counsel and the City Manager are hereby authorized to acquire the property for the construction of the project, including acquisition of the land by condemnation, if necessary. Passed, approved and adopted this 21st day of January ,2002. Ann E. Michalski, Mayor Pro-Tem Attest: _ Jeanne F. SChneider, City Clerk MEMORANDUM December 14, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Approval of McFadden Property Purchase Attached please find a revised "To Be Set for Public Hearing" Agenda Item #4. This will replace the information that you received on your computer disk. Michael C. Van Milligen ' MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager William J. Baum, Economic Development Director Michael A. Koch, Public Works Director MEM ORANDUM December 13, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Approval of McFadden Property Purchase The City of Dubuque recently entered into a development agreement with' Ruscilli Development Company and McGraw Hill for the construction of a 300,000 square foot distribution center at the Dubuque Industrial Center West. The agreement stipulates that the City will extend a redundant water ma~n to the site to meet the company's insurance requirements. City Engineering and Water Depar[ment staff have determined the best route for the water main to the site would be from the existing main at Dubuque Industrial Center through the McFadden Farm. The City's Master Plan for the Dubuque Industrial Center West also includes building an extension of Chavenelle Drive to connect the two dead-end streets in Dubuque IndustriaJ Center and Dubuque Industrial Center West. These 5.7 acres will provide the land to run the waterline at this time and to build the roadway in the future. Economic Development Director Bill Baum is recommending that the City purchase the 5.7 acres of property for a total of $114,000 and other considerations. The negotiations had included the discussion of potential eminent domain, and Assistant City Engineer Gus Psihoyos is recommending that a public hearing be set for January 21, 2002, on the proposed public improvement project, which also initiates eminent ~loma~n proceedings. I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM/jh Attachment Mibhael C. Van Milligen Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager William J. Baum, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM TO: FROM: SUBJECT: December 13, 2001 Michael Van Miliigen, City Manager William J. Baum, Economic Development Director .~___,/',~~ Approval of McFadden Property Purchase INTRODUCTION This memorandum presents for City Council approval an offer to buy 5.7 acres of real estate for public utilities and street purposes from Vincent and Luella McFadden. DISCUSSION The City of Dubuque recently entered into a development agreement with Ruscilli Development Company and McGraw Hill for the construction of a 300,000 square foot distribution center at the Dubuque Industrial Center West. The agreement stipulates that [he City will extend a redundant water main to the site to meet the company's insurance requirements. City Engineering and Water Department staff have determined the best route for the water main to the site would be from the existing main at Dubuque industrial Center through the McFadden Farm. The street connection of Chavenelle Drive 15etween the Dubuque Industrial Center and Dubuque Industrial Center West is in the Master Plan for the area. City Engineering and Legal staff have negotiated with the McFaddens on the proposed route and the proposed cost of acquiring the property. The negotiations have led to a proposal by the McFaddens to sell the City a total of 5.7 acres for $114,000. The proposal also is conditioned upon the McFaddens having three accesses on each side of the roadway, a waiver of any special assessments or connection fees for the roadway and water line, and an agreement to allow the McFaddens to continue to farm the property as tong as it does not interfere with the City's construction of the street or water main. The McFaddens also are requesting the City follow through with initiating eminent domain proceedings, as had been discussed in negotiations. RECOMMENDATION I recommend the City Council approve the purchase of the property as outlined in the attached December 12, 2001 letter from Brian Kane. The proposed purchase will accelerate the construction of the required water main, and provide the City with adequate Right of Way to construct the connection of Chavenelle roads at a later date. F:\USERS\VVBaum\Memos to Mike - General~Memo about McFaddens.doc Brian J. Kane Gary K. Norby Les V. Keddick* D. Flint Drake~' Brad 3. Heying KANE, NORBY & REDDICK, P.C. ATTORNEYS 2100 ASBURY ROAD, SUITE 2 DUBUQUE, IA 52001-3069 Todd L. Stevenson* MaryBeth Pfeiler Salmon Mary A. Cherba g. evin T. Deany All admitted in Iowa Phone: (563) 582-7980 *Also admitted in Illinois Facsimile: (563) 582-53 I2 **Also admitted in Wisconmn E-mail: BKane~KaneNorbylaw.com December 12, 2001 FOR SETTLEMENT PURPOSES ONLY Of Counsel: Louis P. Pfeiler PERSONAL AND CONFIDENTIAL Mr. Barry A. Lindahl Attomey at Law 330 Harbor View Place Dubuque, IA 52001 RE: VINCENT AND LUELLA McFADDEN FARMJCITY OF DUBUQUE Dear Barry: This letter follows-up our December 11,200t meeting with you, Mr. Gus Psihoyos of the City Engineering Department and Mr. and Mrs. John McFadden. We have now had a Ynance ro review the November 23, 2001 appraisal prepared by Felderman Appraisals and we have shared that appraisal with Mr. Tom Kane, .the appraiser for Mr. and Mrs. McFadden. Further, John McFadden has had a chance to speak to his father. Suffice it to say that our appraisers disagree as to the appropriate methodology and applicable value in this matter. Further, it appears to us that Mr. Felderman valued the entire farm and not just the sixty-three (63) acres, more or less, most directly affected by this matter. Nevertheless, for purposes of resolving this matter in a timely fashion, we are authorized to propose the following resolution for your consideration: I. The City would acquire the 3.04 acre right-of-way for the water main and the roadway and an additional 2.66 acre permanent easement, for a total of 5.7 acres; 2. The total purchase price to be paid by the CiW would be $114,000.00; 3. The City shall additionally ~ant up to three accesses on both the north and south side of the road (whenever built) to Mr. and Mrs. McFadden and their successors in rnterest. The location of such accesses shall be consistent with the ordinances of the City of Dubuque and the construction of any accesses shall be in accordance with such ordinances and standards therein; 4. The location of the 5.7 acres referred to in Section 1 above shall be at the location which has been mutually ageed upon by the parties; 5. Mr. and Mrs. McFadden, and their descendants, shall not be required to pay any special or other assessment for the construction of the road or for connecting to the water lines which is the subject of this matter; 6. To the extent that such use does not interfere with the City's construction, Mr. and Mrs. John McFadden, or their successors, shall be allowed to continue to farm the farm over and across any of the property referred to in Section 1 above, for no rent, provided such farming activity does not interfere with the City's use or intended use of the property or with the City's construction plans with regard to such property in any way; and, 7. This transaction will be designated a "friendly condemnation" by the City Council. Please advise if the City is amenable tc these terms. If so, we can promptly reduce them to writing and work toward closing the transaction in a timely fashion. Mr. 'and Mrs. McFadden have not yet read this letter; we reserve the right to make any changes they may request. We look forward to heating from you. In the meantime, please do not hesitate to contact us directly should you have any questions. Thank you. Best regards, KAN'E, NORBY & REDDICK, P.C. BJK:db Copy To: Mr. and Mrs. John McFadden By Brian J. Kane TO: FROM: SUBJECT: CITY OF DUBUQUE, IOWA MEMORANDUM December 13, 2001 Michael C. Van Milligen, City Manager Gus Psihoyos, Assistant City Engineer ~./~. Watermain and Road Extension From Chavenelle Road At Radford Road to the Industrial Park INTRODUCTION The enclosed resolution sets a time and place for a public hearing on the proposed watermain extension and the proposed acquisition of agricultural land to construct the Chavenelle Road Watermain Extension and to acquire the property for the extension of Chavenelle Road. BACKGROUND The project consists of extending a 16" watermain from Chavenelle Road at Radford- Road through the McFadden property and the property purchased by the City from the Bergfeld farm to the Chavenelle Road Extension. This watermain would provide a dual watermain feed to the Industrial Park and would increase the quantity of flow available to the Industrial Park area. The selected alignment for this project was originally developed by Kirkham Michael as part of the Industrial Park development utilizing Bergfeld's farm and extending Chavenelle Road at Radford Road to the Industrial Park. In an effort to work with the McFaddens on a most appropriate route, the Kirkham Michael alignment has been .shifted to the south by City Engineering staff. The attached plan shows the proposed route and property potentially to be condemned for the watermain project. Because this project may require the acquisition of agricultural land by eminent domain, it is necessary to hold a public hearing on the proposed public improvement project. The resolution sets a time and place for the public hearing and directs the Clerk to send a notice of intent to commence the public improvement project to the property owners whose agricultural land may be the subject of condemnation. The public hearing on the proposed public improvement project and the acquisition of agricultural land for that purpose is set for January 21, 2002. RECOMMENDATION I would recommend that the City Council establiSh the time and place for the public hearing for the Watermain Extension of Chavenelle Road and to acquire agricultural land for the project. ACTION TO BE TAKEN The City Council is requested to adopt the resolution to establish the time and peace of the public hearing on the proposed public improvement project and the acquisition of agricultural land for the proposed public improvement project and the acquisition of agricultural land for the proposed public improvement project. Prepared by Michael Felderman, Civil Engineer cc: Michael A. Koch, Public Works Director Bob Green, Water Department Manager Vincent McFadden ~ ~ RO~ 100'--3.25ac ROW & Easement Area=5.70ac Length= 1415.53 SITE LOCATION Not. To Scale PURPOSE: V~cent McFadden Fanta J 13989 Old Highway Road Prepared by: Michael A. Koch, Public Works Director Address: 50 W. 13~" Street, Dubuque, IA 5200%4864 RESOLUTION NO. - 01 RESOLUTION SETTING A TIME AND PLACE FOR PUBLIC HEARING ON A PROPOSED PUBLIC IMPROVEMENT PROJECT TO CONSTRUCT THE CHAVENELLE ROAD WATERMAIN EXTENSION AND TO ACQUIRE PROPERTY FOR THE EXTENSION OF CHAVENELLE ROAD, AND TO ACQUIRE AGRICULTURAL LAND FOR THE PROJECT Whereas, the City Council of the City of Dubuque intends to consider a proposed public improvement project to construct the Chavenelle Road Watermain Extension and to acquire property for the extension of Chavenelle Road; and Whereas, the proposed project may require the acquisition of agricultural land by condemnation; and Whereas, Iowa Code Chapter 6B requires the City to set a time and place for a public hearing on the proposed project and to provide notice to each owner of such agricultural land that may be the subject of condemnation. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, AS FOLLOWS: Section 1. That a public hearing be set for 6:30 p.m. on January 21, 2002, at the Carnegie-Stout Public Library Auditorium for the purpose of considering a proposed publio improvement project to construct the ChaveneIle Road Watermain Extension and to acquire land for the extension of Chavenetle Road through a portion of the NW ¼ of the SW ¼ and a portion of Lot 1 of Lot 1 of the SW ¼ of the SW ¼ a in Sec. 29, T89N, R2E, 5TM P.M., Dubuque County, Iowa. Section 2. That City Clerk shall mail and publish the notice of intent to commence a public improvement project required by Section 6B.2(a). Passed, approved and adopted this day of ,2001. Attest: Terrance M. Duggan, Mayor Jeanne F. Schneider, City Clerk NOTICE OF INTEINWi' TO COMMENCE A ?UBLIC IMPROVEMENT PROJECT TO CONSTRUCT THE CHAVENELLE ROAD WATER MAIN EXTENSION AND TO ACQUIRE LA_ND FOR TI-EE EXTENSION OF CHAVENELLE ROAD AND TO ACQLrlRE AGRICULTURAL LAND FOR THE PROJECT Owner and Contract Purchasers Location or Address of Affected Agricultural Land TO: Vincent J. and Luella M: McFadden 13989 Old Highway Road Dubuque, Iowa 52002 13622 Old Highway Road Dubuque, Iowa 52004 and other City of Dubuque residents Under .the provisions of Chapter 6B of the Iowa Code, a governmental body which proposes to acquire agricultural land under power of eminent domain for a public improvement project is required to give notice of intent to commence the pr~ect m all owners of such agricultural land whose properties may be acquired in whole or in pan for the project. See I.C.A. §§ 6A.21(a) and 6B.2A. 1. DESCRIPTION OF THE PROJECT. NOTICE IS HEREBY GIVEN to the above identified owners o£ agricultural land that the City Council of the City of Dubuque, Iowa will consider authorizing t)e commencement of a project to construct the extension of the 16" water main along Chavenelle Road and to acquire the land for the construction of the extension of Chavenelle Road wh/ch project is to be known as the Chavenelle Road Water Main Extension Project (the Project). 2. PRIVATE PROPERTY MAY BE ACQUIRED BY PURCHASE OR CONDEMNATION. If the above described project is approved by the City Council, the City of Dubuque will be required to acquire property for the project improvements. Upon review of Dubuque County property records, it appears that agricultural land owned by the above identified persons may have to be acquired in whole or in part for the project. The City of Dubuque wit! attempt to purchase the required agricultural land by good faith negotiations, and i~ may condemn those properties which it is unable to purchase. The proposed location of the above described public improvement is shown on a conceptual drawing of the project which is now on file in the office of the City Clerk ar City Hall, 13th and Central Ave., Dubuque, Iowa and available for public inspection. 3. PROCESS TO DECIDE TO PROCEED WITH THE PROJECT AND TO ACQUIRE PROPERTY; ACTION RBQUIP~E~ D TO PROCEED WITH PROIECT; OPPORTL~qITY FOR PUBLIC INPUT. In making the decision to proceed with the above described project and to authorize the acquisition of property and property interests, the City Council is required to hold a pubhc hearing, giving persons interested in the proposed project the opportunity to present their views regarding the project, and regarding the proposed acquisition of property for the project. The public hearing on the project will be held at the regular meeting of the City Council, on January 2t, 2002, at 6:30 p.m. in the Auditorium at the Carnegie Stout Public Library, 360 W. 11th Street, Dubuque, Iowa. In order for the City of Dubuque to proceed with the above described project and commence the acqmsiuon of property for the project, the City Council wilt be required to approve the project and authorize acquisition of private property for the project by City Council resolution. The City Council is scheduled to consider adoption of the resolution initiating the above described project following the public hearing. If the project is approved by the City Council, an appraiser retained by the City of Dubuque will determine the compensation to be paid for property or property interests that are needed for the project. The City of Dubuque will offer no less than the appraised value and will attempt to purchase only the needed property by good faith negotiations. If the City of Dubuque is unable to acquire properties needed for the project by negotiation, the City of Dubuque will acquire those properties by condemnation. 4. CONTACT PERSON. Persons desiring further information regarding the proposed public improvement project or its impact on the properties identified above may contact Assistant City Engineer Gus Psihoyos at City Hall, 13th and Central Avenue, Dubuque, Iowa'52001 by mail or in person or by telephone at 563 589-4275. 5. STATEMENT OF RIGHTS. Just as the law grants certain entities the right to acquire private property, you as the owner of propc'u'ty have certain rights. You have the right to: a. Receive just compensation for the taking of property. (Iowa Const., Article I, Section 18) b. An offer to purchase which may not be less than the lowest appraisal of the fair market value of the property. (Iowa Code §§ 6B.45, 6B54) Receive a copy of the appraisal, if an appraisal ~s required, upon which the acquiring agency's determination of just compensation is based not less than 10 days before being contacted by the acquiring agency's acquisition agent. ( Iowa Code §6B.45) d. When an appraisal is required, an oppgrtunity to accompany at least one apprmser of the acquiring agency who appraises your property. (Iowa Code §6B.54) e. Participate in good faith negotiations with the acquinng agency before the acquiring agency begins condemnation proceedings. (Iowa Code §6B.3(1)) f. If you cannot agree on a purchase price with the acquiring agency, a determination of just compensation by an impartial compensation commission and the right to appeal its award to district court. (Iowa Code §§ 6B.4, 6B.7, and 6B.18) A review by the compensation commission of the necessity for the condemnation if your property is agricultural land being condemned for industry. (Iowa Code § 6B.4A) Payment of the agreed upon purchase price, or if condemned, a deposit of the compensation coramission award before you are required to surrender possession of the property. (Iowa Code §§ 6B.25 and 6B.54(11)) i. Reimbursement for expenses incidental to transferring title to the acquiring agency. (Iowa Code §§ 6B.33 and 6B.54(10)) Reimbursemem of certain litigation expenses: (1) if the award of the compensation commissioners exceeds 110 percent of the acquiring agency's final offer before condemnation; and (2) if the award on appeal in court is more than the compensation commissioner's award. (Iowa Code § 6B.33) k. At least 90 days written notice to vacate occupied property. (Iowa Code § 6B.54(4)) 1. Relocation services and payments, if you are eligible to receive them, and the right to appeal your eligibility for and mount of payments. (Iowa Code §316.9) The rights set out in this Statement are not claimed to be a full and complete list or explanation of an owner's rights under the law. They are derived from Iowa Code Chapters 6A, 6B and 316. For a more thorough presentation of an owner's rights, you should refer directly to the Iowa Code or contact an attorney of your choice. This Notice is given by authority of the City of Dubuque, Iowa. Jeanne F. Schneider City Clerk City Hall and Central Avenue Dubuque, Iowa $2001 T¢1¢ $65 $$9-4275 NOTICE OF INTENT TO coMMENCE A pUBLIC 12VEPROVEMENT PROJECT TO CONSTRUCT THE CHAVENELLE ROAD WATER MAIN EXTENSION AND TO ACQUIRE LAND FOR THE EXTENSION OF CHAVENELLE ROAD AND 1'O ACQUIRE AGRICULTURAL LAND FOR THE PROJECT Owner and Contract Purchasers Location or Address of Affected Agricultural Land TO: Vincent J. and Luella M. McFadden 13989 Old Highway Road Dubuque, Iowa 52002 13622 Old Highway Road Dubuque, Iowa 52004 and other City of Dubuque residents Under the provisions of Chapter 6B of the Iowa Code, a governmental body which proposes to acquire agricultural land under power of eminent domain for a public improvement project is required to give notice of intent to commence the project to all owners of such agricultural land whose properties may be acquired in whole or in part for the project. See I.C.A. §§ 6A.21(a) and 6B.2A. 1. DESCRIPTION OF THE PROJECT. NOTICE IS HEREBY GIVEN to the above identified owners of agricultural land that the City Council of the City of Dubuque, Iowa will consider authorizing the commencement of a project to construct the extension of the 16" water main along Chavenelle Road and to acquire the land for the construction of the extension of Chavenelle Road which project is to be known as the Chavenelte Road Water Main Extension Project (the Project). 2. PRIVATE PROPERTY MAY BE ACQUIRIED BY PURCHASE OR CONDEMNATION. If the above described project is approved by the City Council, the City of Dubuque will be required to acquire property for the project tmprovements. Upon review of Dubuque County property records, it appears that agricultural land owned by the above identified persons may have to be acquired in whole or in part for the project. The City of Dubuque will attempt to purchase the required agricultural land by good faith negotiations, and it may condemn those properties which it is unable to purchase. The proposed location of the above described public improvement is shown on a conceptual drawing of the project which is now on file in the office of the City Clerk at City Hall, 13th and Central Ave., Dubuque, Iowa and available for public inspection. 3. PROCESS TO DECIDE TO PROCEED B/-ITH THE PROJECT AND TO ACQUIRE PROPERTY; ACTION REQUIRED TO PROCEED WITH PROJECT; OPPORTUNITY FOR PUBLIC INPUT. In making the decision to proceed with the above described project and to authorize the acquisition of property and property interests, the City Council is required to hold a public hearing, giving persons interested in the proposed project the opportunity to present their views regarding the project, and regarding the proposed acquisition of property for the project. The public heating on the project will be held at the regular meeting of the City Council, on January 21, 2002, at 6:30 p.m. in the Auditorium au the Carnegie Stout Public Library, 360 W. 11th Street, Dubuque, Iowa. In order for the City of Dubuque to proceed with the above described project and commence the acquisition of property for the project, the City Council will be required to approve the project and authorize acquisition of private property for the project by City Council resolution, the City Council is scheduled to consider adoption of the resolution initiating the above described proj eot following the public hearing. If the project is approved by the City Council, an appraiser retained by the City of Dubuque will determine the compensation to be paid for property or property interests that are needed for the project. The City of Dubuque will offer no less than the appraised value and will attempt to purchase only the needed property by good faith negotiations. If the City of Dubuque is unable to acquire properties needed for the project by negotiation, the City of Dubuque will acquire those properties by condemnation. 4. CONTACT PERSON. Persons desiring further information regarding the proposed public improvement project or its impact on the properties identified above may contact Assistant City Engineer Gus Psihoyos at City Hall, 13th and Central Avenue, Dubuque, lo,va 52001 by mail or in person or by telephone at 563 589-4275. This Notice is given by authority of the City of Dubuque, Iowa. Jeanne F. Schneider City Clerk City Hall 13th and Central Avenue Dubuque, Iowa 52001 Tele 563 589-4275 BARRY A, LIND AHL, CORPORATION COUNSEL, ESQ. CITY OF DUBUQUE MEMO To: MVM, City Manager Gus Psihoyos, Assistant City Engineer Mike Koch, Public Works Director/City Engineer DATE: December 14, 2001 McFadden Attached is what I think is a final draft of the offer to buy. We still need a drawing which will be attached as Exhibit A which will be at least the approximate location of the roadway and easement, subject to survey for the deed. There is no language included in the offer for the McFaddens' fight to continue using the property for farming. Instead, and in order to get a draft for Council review, we are incorporating Brian's letter and then Brian and I will have to work out the language allowing the McFaddens to continue to farm, to be included in the deed. Please let me know whether you have any additions or corrections. BAL/jm Attachment SUFt'E $30, HARBOR VIEW PLACE, 300 MAIN STREET DUEUQUE, IA 52001-6944 TELEPHONE (563) 583-41 t3 / FAX (563) 583-1040 / EMAIL BALESQ(~,~MWCI,NET OFFER TO BUY ESTATE AND ACCEPTANCE TO: VINCENT McFADDEN and LUELLA McFADDEN, HUSBAND AND WIFE, AS SELLERS The und~signed BUYER h~reby off, rs to buy and the undarsi~neA SELLERS by their acceptance agree to sell the real property situated in Dubuque County, Iowa, and legally described as: [legal description to be supplied later] (the real estate is that real estate for right-of-way and easement purposes consisting in total of 5.7 acres, more or less, as depicted on the drawing attached hereto as ExMblt "A" and by this reference made a part hereof), together with any casements and appurtenant scrviant estates, but subject to any easements of record for public utilities or roads, any zoning restrictions, custc~m~y restrict/ye coven~uts, and mineral reservations of recorc~ if any, herein red,red to as thc "Property," upon the following terms and conditions provided BUYER, on possession, is pennltted to use the Property for construction of water main and street. I. PURCHASE PRICE. The Ptttchase Price shall be $114,000.00 and the method of payment shall be as follows: $-0- with this offer and the balance of the Purchase Price as follows: The Purchase Price shall be paid in full at the closing (defined below). 2. REAL ESTATE TAXES. SELLERS shall pay mai estate taxes prorated to thc date of closing and any unpaid real estate taxes payable in prior years. BUYER shall pay all subsequent real estate taxes. Unless othcnvise provided in this agreement, at closing SELLER5 shall pay BUYEP~ or BLr~R shall be given a credit for, taxes ~om the first day of July prlor to possession to the date of possession ba~ed upon the last known actual net real estate taxes payable according to public records. 3. SPECIAL ASSESSMENTS, A. BUYEK slmll pay at time of closing all installments of special assessments which ere 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, BUYER shall pay all other spec/al assessments or/natallments not payable by SSLL S. 4. RISK OF LOSS AND INSURANCE. SELLERS shall bear the risk of loss or damage to the Property prior to closing or possession, whichwer first occurs. .SELLERS agree to maintain existing insurance and BUYE~ may purchase additional 5. POSSESSION AND CLOSING. If BUYER timely performs all obligations, possession of tlm Property shall be delivered to BUYER on or be£ore Sanuary 31,2001, and any adjustments of rent, insurance, interest and all charges attributable to SELLERS' possession gh~l_l be made as of the date ofpossessiom Closing ~h~l] occur a~er approval offitle by BUYER and vacation of the Property by SELLERS, but prior to possession by BUYEi~. SELLERS agree to permit BUYER to inspect thc Property within 24 hours prio~ to closing to assure that the premises arc in the condition required by this agreement, This transaction shall be considered closed: Upon the delivery of thc titlc transfer documents to BUYER and receipt of all funds then due at closing from BUYER under the a~reemcnt. 6. FIXTURES. There are no fixtures included with the Property. 7. CONDITION OF PROPERTY. The Property as ofthe date ofthis agreement will be prcscrwd by the SELLERS in its.present condition until posscsslon, ordinary wear and tear excepted. SELLERS make no Warranties, express or impliex~ as to the condition of the Prol~rty. A. BUYER acknowledges that it has made a satisfactory inspection of'the Property and is purchasing the Property in its existing condition. 8. ABSTRACT AND TITLE SELLERS, at their expanse, shah promptly obtain an abstract o£rifle to the Property continued through a date witM, thirty (30) days of the date of closing and deliver it to BUYER'S attorney for ex~m~n~tiom It Shal! show merchantable tire in SELLERS in confonnity with this agreemant, Iowa law, ad'title standards of the Iowa State Bar Association. The SELLERS shall make every reasonable effort to promptly perfect rifle. If closing is delayed due to SELLERS' inability to provide marketable rifle, this agreement shall continue in fOrce and effect until either party rescinds the agreement aiter giving 10 days written notice to the other pasty. The abstract shall become thc property of BUYER when the Purchase Price is paid in full. SELLEKS shall pay the costs of any additional abstracting and title work duc to any act or omission of S]~LLERS, including trausfers by or the death of SI~LLERS or their assignees. Unless stricken, the abstract shall be obtained from an abstracter qtmlified by the Titi~ Cnmranty Division of the Iowa Housing Finance Authority. 9, SURVEY. If a survey is rcqcJxed under Iowa Code Chapte~r 354, or city or county ordinances, BUYER shall pay the costs thereof. 10. ENVIRONMENTAL MATTERS. A. SELLERS warrant to the best of their knowledge and belief that there are no abandoned wens, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks located un the Property, the Property does not contain levels of radon, gas, asbestos or urea-formaldehyde foam insulation which requke remediation under current governmental standards, and SELLERS have done nothing ~o contaminate the Property with hazardous wastes or substances. SELLERS warrant that the Property is not subject to any local, state or federal judicial or administrative action, investigation or order, as the case may b~, regarding wells, solid waste disposal sites, hazardous wastes or substances, or underground storage tanks. SELLERS shall also provide BUYER with a properly exerted groundwater hazard statement showing no wells, solid waste disposal sites, hazardous waste and underground storage tanks on the Property unless disclosed here: NONE. 11. DEED. Upon payment of thc Purchase Price, SET J .RRS shall convey the Property to BUYER by Warranty Deed, free and clear of all liens, restrictions, and encumbrances except as provided in this agreement. General warranties of title shall ex'tend tn the time of delivery of the deed excepting liens or encumbrances suffered or permitted by BUYE1L See Section 20(o) and (e) below. 12. JOI~T TENANCY l/q PROCEEDS A.ND IN REAL ESTATE. If SELLERS, immediately preceding acceptance of the offer, hold title to the Property in joint tenancy With fall right of survivorship, and the joint tenancy is not late~ destroyed by operation of law or by acts o the SELLERS, then the proceeds of this sale, and may continuing or recaptured fights of SELLERS in the Property, shall belong to SELLFIIS as joint tenants with fall rights of sun~ivorshlp and not as tenants in common; and BUYER, in the event of the death of any SELLER, agrees to pay any balance of the price due SELLERS under this agreement to the sm'riving SELLERS and to aceept a deed from the surviving SELLERS consistent with paragraph 1 I. 13. JOINDER BY SELLER'S SPOUSE, SELLER'S spouse, if not a title holder immediately preoeding acceptance, executes this agreement only for the purpose of relinquishing all rights of dower, homestead, and distn~outive share or in eompliaace with Section 561.13 of the Code of Iowa and agrees to execute the deed or real estate contract for this purpose. 14. USE OF pLrRCHASE PRICE. At the time of settlement, funds ortho Purchase Price may be used to pay taxes and other lions and to aoquire outstanding interests, if any, of othe~s. 15. RElVlEDIES OF TI4'F. PARTIES. A. If BUYER fails 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, a SELLERS" option, upon 30 days wrilI~a notice of intention to accelerate the payment of the entire balance because of BUYER'S default (during which 30 days the default is not corrected), SELLERS may declare the entire balance ~mm~xtiately due and . Deo.l/, ZUOl 1:22PM BAKNY A LiNDAHL, E~ No,577G P, 5/10 payable, Thereafter this agm~mant may be foreclosed in equity and the court may appoint a receiver. B. If SET-) -~-RS fail to timely perform this agreemcm, BUYER has the right to have all payments made returned to them. C. BUYER and SELLERS are also entitled tn u~Hze any ~nd al~ other remedies or actions at law or in equity available to them, and the prevailing patty shall be entitled to obtain judgment for costs and aftomey fees. 17, NOTICE. Any notice under thls agreement shall be in writlng and be deemed served when it is delivered by personal delivery or mailed by certified mail, addressed to the parties at the addresses given below. 18. f~ENERAL PROVISIONS. In the perform.n~ce of each part of thls 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 ~h.l! survive the closing, This agreement contains the entire agreement of the part/es and shall not be amended except by a written instrtunent duly signed by SELLERS and BDYER. Paragraph headings are for convenience of reference and shall not l~rnit or afl'ec~ the meaning of this agreement. Words and phrases berai~l shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. 19. NO KEAL ESTA'I~ AGENT OR BROKER. lqeither pa~ty has used the service of a real estate agent or broker in connection with this transaction. 20. ADDITIONAL PROVISIONS. BUYER has inspected the Property and purchases the Property in "AS IS" condition. BUYER is not relying upon any representations or warranties of SELLERS not set out in full ha writing herein. BUYER, as a municipal corporation in the State o£Iowa, has commenced eminent domain proceedings to condemn thc Property. This agreement is in full resolution of such eminent domain proceedings. The purclmse price includes a~'~gcs to crops, if any, and any other ~m*ges which SELLERS may be entitled to as a result oftbe tt~eatencd condcm,~tion procccdings. (0 The Property shall be conveyed, as provided in Seetian t 1 above, via a Warranty Deed. Such Warranty Deed cenveying the Property ~1! include those provisions set Dec.l/. 2091 I:33PM BARRY A LINDAHL, ESQ No.5776 P. 6/10 out in the December 12, 2001 letter attached hereto as Exhibit "B" and by tiffs reference made a part hereof. This trs~saction is subject to the approval of this Offer to Buy Real Estate and Acceptance by the City Council ofthe City of Dubuque, Iowa on December 17, 2001. The legal description with regard to the Property shaI! be prepared a~ the instance of BUYER, a~ BUYER'S sole expense, with regard to any surveying and pl~t~ng of the Property so that the appropriate legal descripfio~ can be included on the Warranty Deed conveying the Property from SELLERS to BUYER. Thc BU'YER has agreed, if and when a street is constructed on the Propel'ty, to provide such fencing at BUYER'S expense as necessa~ to restrain livestock f~om going on such sa~t. BUYER further agrees to keep clear and opm the existing filing for drainage pm'poses or to provide oth~r satisfactovd water &ainage in lieu of such filing. If needed, BUYER agrees to install a cattle undercrossiug under the street when the street is constructed and paved. 21. bIISCELLAi~EOUS. The parties agree that all understandings and agreement% if any, previously made between the parties hereto are merged in this Agreement, which alone fully and cempletely expresses their understanding with respect to the purchase and bargain sale of the Real Estate. This agreement may not be changed or terminated orally, but only by an instrume~ in writing executed by all of the parties hereto. This agreement ~h~]l not be transferred or assi~p~ed without the prior wt~ten cense~t ofthe other party hereto, whi~ consent sl~all not be mareasonably wiffflaeld. This agreement shall be governed by and eonstraed in accordance ~th the laws of the Stat~ of Iowa. This Offer to Buy Real Estate and Acceptance may be signed in counterparts or by facsimile signatures which, when taken together, shall censfirme one orig~n-l agreement. Each party shall bear and be responsible for its own attorneys' fees. 22. ACCEPTANCE. When accepted, this agreement shall become a binding contract. If not accepted and delivered to BUYER on or before the 27th day of December, 2001, this agreement shall be null and void and all payments made shall be returned immedistely to BUYER. If accepted by SELLERS at a later date and acceptance is satisfied in writing, then this agreement shall be valid and binding. Accepted D~ECEMBEK__, 2001. SELLERS Dated DECEMBER__, 2001 BUYER VINCENT McFADDEN CORPORATION, BUYER THB CITY OF DUBUQU~ AN IOWA MIINICIPAL BY LUELLA McFADDEN Its CiV M~aager Micha~l C. VanIVRll~g~n~ Sceattacheddrawiag, EXHIBIT "A" B~au ~. K~n~ D. FI~ Drak~ Brad Z H~yi~ KANE, NORBY & REDDICK, 2100 ASBURY ROAD~ 8UFgE 2 D~SUQU~, IA 52001-S069 MmyB~ Pf~il~ S~u~n Ma~y A. Chm'ba K~vin T, D~y AU admitted in Iowa Phon~: (563) $82-7980 *Also ~Imkted in Illinois Facdm/le: ($6~) 5R2-~312 **Also admitted/a W'm~si~ E-~ih Bgane~KmeNotbylaw, c0m December 14, 2001 FOR SETTLElVlENT PURPOSES ONLY PERSONAL AND CONFIDENTIAL Mr. Barry A. Lindahl Attorney at Law 330 Harbor View Place Dubuque, IA 52001 RE: VINCENT AND LUELLA McFADDEN FARM/CITY OF DUBUQUE Dear Barry: This letter foUows-up our December 11, 2001 mcct/ng with you, M.r. Gus Psihoyos of the City Engineering Department and Mr. and Mrs. John McFadden. We have now had a chance to review the November 23, 2001 appraisal prepared by Felderman Appraisals and we have shared that appraisal with Mr. Tom Kane, the appraiser for Mr. and Mrs. McFadden. Further, John McFadden has had a chance to speak to his father. Suffice it to sa}, thz~ our appraisers disagree as to the appropr/ate methodology and applicable value in this matter. Further, it appears to us that Mr. Feldarman valued the enffre farm and not just the sixty-three (63) acres, more or less, most directly affected by thi~ ma~tcr, Nevertheless, for purposes of resolving this matter in a *imely fashion, we are authorized/o propose the following resolution for your eonslderatlon: 1. The C/ty would acquixe the 3.04 acre rigid-of-way for the water main and the roadway and an additional 2.66 acre permnnem easement, for a ~otal of 5.7 acres; 2. The total purchase price to be paid by the City would be $114,000.00; 3. The City shall additionally grant up to three accesses on both the north and south side of the road (whenever built) to IVlr. and Mrs. McFadden and their successors in interest. The location of such accesses shall be consistent with thc ordinanCeS Of the City of Dubuque and the construction of any accesses ~hall be in accordance with such ordinances and standards therein; 4. The location of the 5.7 acres referred to in Section 1 above shall be at tho location which has been mutually agreed upon by thc parties; 5. Mr. and Mrs. McFadden, and their descendants, shall not be required to pay any special or other assessment for thc construction of the road or for conucctlng to thc water lines which is the subject of this matter, 6. To the extent that such usc does not interfere with the City's construction, Mr. and Mrs. John McFaddc~ or their successors, shall be allowed to continue to farm the farm over and across any of the property refen, ed to in Section 1 above, fm no rent, provided such farming activity does not interfere with thc City's usa or intended use of thc property or with the Citfs construction plans with regard to such property in any way; and, 7. TMs transaction will be desil/natcd a "friendly condemnation" by thc City Council. Please advise if the City is menable to these terms. If so, w~ can promptly reduce them to writing and work toward closing the transaction in a timely fashion. Mr, and Mrs. McFadden have not yet read this later; we reserve the right to make any changes they may request. Wc look forward to hearing from you. In the mea~ime, please do not hesitate to contact us directly should you have any questions. Thank you. Best regards, KANE, NORBY & KEDDICK, P.C. BJK:db Copy To: Mr. and Mrs. Jo}II1 McFadden By Bdau I. Kane