Revocable Permit_James E. UnderhillTHE CITY OF Dubuque
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DUB E AN-Amedcal~ty
Masterpiece on the Mississippi
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Revocable Permit -James E. Underhill
DATE: September 30, 2008
City Engineer Gus Psihoyos recommends City Council approval to revoke Ordinance
No. 30-96, the revocable permit authorizing James E. Underhill to operate and maintain
a building located in City right-of-way at 108 Terminal Street in conjunction with Mr.
Underhill's lease of 0.16 acres of City property on Terminal Street. Mr. Underhill's lease
expired on March 31, 2008.
concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van illigen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, City Engineer
THE CITY QF
DuB ~
Master-pieee on the Mississippi
TO: Michael C. Van Milligen,
FROM:
DATE:
SUBJECT:
City Mana er
Gus Psihoyos, City Engineer
September 29, 2008
Revocable Permit -James E. Underhill
INTRODUCTION
Dubuque
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Zoos
This memorandum is to request City Council approval to revoke Ordinance No. 30-96,
the revocable permit authorizing James E. Underhill to operate and maintain a building
located in City right-of-way at 108 Terminal Street in conjunction with Mr. Underhill's
lease of 0.16 acres of City property on Terminal Street.
BACKGROUND
On March 31, 2008, the Underhill lease expired. In that letter, the City Manager also
notified Mr. Underhill that because the lease had expired, the City Manager intended to
request the City Council to terminate the revocable permit.
DISCUSSION
Ordinance No. 30-96 (attached) provided Mr. Underhill the authority to operate and
maintain the building at 108 Terminal in conjunction with the lease. Since the buildings
and improvements are being removed per the lease terms, the ordinance granting the
revocable permit should also be revoked.
ACTION TO BE TAKEN
The City Council is requested to adopt the enclosed ordinance revoking Ordinance No.
30-96, the revocable permit to James E. Underhill to operate and maintain a building
within the Terminal Street right-of-way.
cc: Steve Sampson Brown, Project Manager
Preparer: Barry A. Lindahl, Esq Address: Suite 330, 300 Main Street, Dubuque, IA, 52001
Telephone: (563) 583-4113
ORDINANCE NO. 59-08
REVOKING THE REVOCABLE PERMIT GRANTED BY ORDINANCE NO.30-
96 TO JAMES E. UNDERHILL TO OPERATE AND MAINTAIN A BUILDING
LOCATED WITHIN THE TERMINAL STREET RIGHT-OF-WAY
Where, Ordinance No. 30-96 granted a revocable permit to James E.
Underhill to operate and maintain a building located within the Terminal Street
right-of-way; and
Whereas, the City Council has determined the the permit should now be
revoked.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. The permit granted by Ordinance No. 30-96 and all permission
and authority to occupy the Terminal Street right-of-way is hereby revoke.
Section 2. This odinance shall take effect on publicatoin.
Passed, approved and adopted this 6th day of October, 2008.
Roy D. Buol. Mayor
Attest:
Jeanne F. Schneider, City Clerk
ORDINANCE NO. 30 -96
AN ORDINANCE AUTHORIZING JAMES E. UNDERHILL TO OPERATE AND MAINTAIN
A BUILDING LOCATED WITHIN TERMINAL STREET RIGHT-OF-WAY
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE,
IOWA:
Section 1. That James E. Underhill (Permittee) as the owner of the
building at 108 Terminal Street, Dubuque, Iowa, be and it is hereby granted the
revocable permit and authority to operate and maintain the building at 108
Terminal Street which is located within Terminal Street right-of-way under the
terms and conditions set forth in this Ordinance.
Section 2. That such operation and maintenance shall be under the
supervision and direction of the City Manager, and in accordance with all
applicable state and federal 1 aws and regulations, and the Ordinances of the City
of Dubuque.
Section 3. That the permission herein granted is expressly conditioned on
permittee's agreement to:
Assume any and all liability for damages to persons or property
which may result from the existence, location, or operation of the
building at 108 Terminal Street; and
b. Procure and maintain in force during the term of this permit a
policy of liability insurance as set forth in the attached Insurance
Schedule; and
Pay on behalf of the City of Dubuque, all sums which the City of
Dubuque shall become obligated to pay by reason of the liability
imposed upon the City of Dubuque for damages of any kind resulting
from the location, existence, or maintenance of said building at 108
Terminal Street sustained by any person or persons, caused by
accident or otherwise to defend at its own expense and on behalf of
said City any claim against the City of Dubuque arising out of the
location, existence, or maintenance of said building at 108 Terminal
Street and to pay reasonable attorney fees therefor; and
d. Indemnify, defend and hold the City of Dubuque free and harmless
from any and all claims, loss, liability and expense for death
and/or injuries to third persons or damages to property of third
persons, or for damage to any property of the City of Dubuque which
may occur as a result of or in connection with the location,
maintenance and repair of the facility, work or improvement
permitted herein.
e. Pay a lease payment of 3250.00 per year in advance on May 1st of
each year the ordinance remains in effect. The annual rental shall
be increased or decreased proportionately by the same percentage of
the increase or decrease, as the case may be, in the Consumer Price
Index for all Urban Consumers (CPI-U)) as published by the Bureau of
Labor Statistics, U.S. Department of Labor between the month of May
of each year (commencing with the year 1996) and the month of May of
the current year, but in no event shall the annual rental be less
than E150.00 per year.
Section 4. That the permission herein granted is expressly conditioned
upon permittee's further agreement that should the right and privilege herein
granted be rescinded or revoked by the City Council , permittee, or its successors
in interest, shall within ten (10) days after receipt of written notice from the
City Manager, so to do, at their own expense, remove said building and in the
event of their failure to do so, the City of Dubuque shall be authorized to
remove said building at permittee's expense and dispose of the same, and the
permittee shall have no claim against the City or its agents for damages
resulting from the removal of said building.
Section 5. That permittee covenants and agrees that the revocable permit
herein granted does not constitute an approval of the design, erection, location,
repair or maintenance of said facility and said permittee hereby covenant and
agree not to assert such claim or defense against the City of Dubuque in the
event of claim asserted for death, personal injuries and/or property damage
against the permittee arising out of or in any way connected with the location,
design, repair and maintenance of the facility herein permitted.
Section 6. That this permit may be rescinded or revoked by the City
Council at any time in its sole discretion and for any reason the City Council
finds to be appropriate.
Section 7. This Ordinance shall become effective and the rights hereunder
accrue to James E. Underhill when this Ordinance has been adopted by the City
Council and the terms and conditions thereof accepted by permittee by acceptance
endorsed on this Ordinance.
Section 8. That the City Clerk be and she is authorized and directed to
file at permittee's expense a copy of this ordinance in the Office of the
Recorder in and for Dubuque County, Iowa.
Passed, approved and adopted this 6th day of May
1996.
/~~~
• Terrance Duggan
Mayor
Atte$t: ~
Karen M:•=Chesterman
Deputy City Clerk
ACCEPTANCE OF ORDINANCE NO. .SHI' ' 9jC
The undersigned having read and being familiar with the terms and
conditions of Ordinance No..~~ ~ y~ hereby, for themselves, their successors or
assigns, as owners of the abutting property, accept the same and agree to be
bound by the conditions and agreements therein contained to be performed by
permittees.
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Title: ~t~=tcu~~.iy~
Dated: ~7~ /~ /y~~
INSURANCE SCHEDULE
1. Any policy of insurance or certificate of insurance required hereunder
shall be with a carrier authorized to do business in Iowa and a carrier
that has received a rating of A or better in the current Best's Rating
Guide.
2. Any policy of insurance required hereunder shall provide for a thirty-day
notice to the City of any material change or cancellation of the policy
prior to its expiration date.
3• shall have its insurance agent or
company certify in writing that any policy of insurance required herein
with an aggregate limit of liability has not been reduced by paid or
reserved claims at the time of issuance of policy or certificate.
4• shall furnish copies of the following
policies to the City, with limits not less than the following, or greater
if required by law,. and shall also furnish certificates of insurance from
all independent contractors or subcontractors hired by or
any independent contractor or subcontractor hired by the independent
contractor or subcontractor, which certificates shall provide evidence of
coverage for limits not less than the following, or greater if required by
law:
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit $2,000,000
Products-Completed Operation Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
OR
Combined Single Limit $2,000,000
Medical Payments $ 5,000
Coverage is to include: occurrence form, premises/operations/products/
completed operations coverage, independent contractors' coverage,
contractual liability, broad form property damage, personal injury, City
of Dubuque named as an additional insured with 30 days written notice of
change or cancellation.
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J. E. UNDERHILL (Ifs
PH. 319-557-9996
830 HAWKEYE DR., NO. 2
DUBUQUE, IA 52001 S
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City Manager's Office
City Hall
50 West 13th Street
Dubuque, Iowa 52001-4864
(563) 589-4110 phone
(563) 589-4149 fax
(563) 690-6678 TDD
ctymgr~cityofdubuyue.org
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February 11, 2008
Mr. James Underhill
10 Terminal Street
Dubuque, IA 62001
RE: City of Dubuque -Underhill Lease (Expiration Date: June 8, 2007)
Revocable Permit (May 6, 1996)
Dear Mr. Underhill:
On August 31, 2007, the City agreed to a temporary arrangement to allow you to
use .16 acres of City-owned property on Terminal Street. The agreement terms
provided for amonth-to-month lese of the property until such time that the City
could provide a formal response to your request for a lease renewal or
extension.
The City has determined not to renew or extend the lease. Therefore, this letter
serves as formal notice that all rights of occupancy by you are terminated as of
March 31, 2008.
Par. 8 of the Lease and Agreement dated June 9, 1982, provides:
Upon termination of this Lease, for any cause whatsoever, Lessee
shall have the privilege, during the period of six (6) months after the
termination of this lease, for any cause whatsoever, to remove any
and all buildings and improvements made by Lessee upon the
demised premises, provided the same are free of landlord's liens
and other lien rights in Lessor. It is agreed that ail such buildings
and improvements are to remain personal property without regard
in what manner they may be affixed to the real estate. In the event
of such removal, the premises shall be returned to essentially the
same condition as they were on June 9, 1982. Failure to remove
any of such buildings and improvements, or other property of
Lessee within such six month's period, shall constitute an
abandonment thereof and said buildings, improvements, or other
property shalt become the sole and exclusive property of the
Lessor.
Service People Integrity Responsibility Innovation
Teamwork
Page 2
February 11, 2008
It is therefore requested that you remove any buildings and improvements from
the property within six (6) months or no later than September 30, 2008.
It is also the City's intent to rescind the May 6, 1996 Revocable Permit at the
September 15, 2008 City Council meeting.
If you have any questions, please contact me at 563.589.4110.
Sincerely,
~~
Michael C. Van Milligen
City Manager
Sent via Certified Mail, Return Receipt