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