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Garfield Avenue (1695) Retaining Wall Emergency RepairTHE CITY OF ~~. DLTB E Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: 1695 Garfield Avenue Retaining Wall Emergency Repair Work DATE: October 14, 2008 Dubuque maAn~rlcacitll .~r.~ 2007 City Engineer Gus Psihoyos recommends City Council authorization for emergency repairs to the retaining wall at 1695 Garfield Avenue, adjacent to Hamilton Street, in the interest of public safety. In 2002, there was some dispute as to the ownership of this wall. City staff executed an agreement with the owner of the property at that time, agreeing to make this one repair, and then the City has no further responsibility for the wall. There is a complication. While this item was referred to me by the City Council at the September 3, 2002 City Council meeting, we can find no record that I received City Council authorization to execute this agreement. City Attorney Barry Lindahl advises that without City Council authorization, the agreement is not binding on the City, however, the City Council could decide at this time to still honor the agreement. I apologize for this oversight of an important step in the process in 2002. This certainly could have consequences beyond this retaining wall as there were other retaining walls built by the WPA in the early part of the 20th Century. One example that the City is currently working on is the Cox Street retaining wall along the Loras College campus. However, each set of circumstances is unique and should be dealt with on a case-by-case basis. I concur with the recommendation and respectfully request Mayor and City Council approval. ~ `~' -- Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer THE CITY OF Dubuque DT '~~ ~ A~-AmericaCity V t Masterpiece on the Mississippi 2007 TO: Michael C. Van Milligen, City Mana er FROM: Gus Psihoyos, City Engineer ,~ SUBJECT: 1695 Garfield Avenue Retaining Wall Emergency Repair Work DATE: October 14, 2008 INTRODUCTION This memo requests the City Council approve the attached resolution authorizing emergency repairs to the retaining wall at 1695 Garfield Avenue, adjacent to Hamilton Street. DISCUSSION The retaining wall at 1695 Garfield Avenue, adjacent to the Hamilton Street side of the property, is in a deteriorated condition with observed rotational movement and stability concerns. The sidewalk and parking lane along Hamilton Street have been barricaded to protect property and maintain public safety. The Engineering Department would like to remove the retaining wall and reconstruct it before there is any damage to property and to protect public safety. (Note attached photograph.) In 2002, the previous property owner questioned the ownership and maintenance of the retaining wall and provided documentation to the City that the wall was originally constructed in the 1940s as part of a WPA project. It was the City's contention that a WPA project on its own does not provide sufficient evidence that the City has ownership responsibility of said wall. In an attempt to resolve the wall ownership dispute in a mutually beneficial manner, the former Public Works Director signed an agreement with the property owner that the City would perform cone-time partial wall reconstruction. All future wall maintenance is the responsibility of the property owner. (Note attached 2002 agreement.) IIW Engineers & Surveyors, PC (IIW) has been retained to develop the plans and specifications for this work and to provide assistance during the bid-letting and construction phases of the project. BUDGET IMPACT The City has an annual program for maintenance and repair of stone retaining wall budgeted in the five-year capital improvement program (CIP 2501029). Since the City is in need to repair six retaining walls in Fiscal 2009 ($1,806,100), the following Fiscal Year 2009 CIP projects have been canceled and will be considered in the FY2010 budget process: Improvements to the 18~h Street Building ($665,526); Foye, Merchant, and Gold Street Reconstruction ($554,000); Four Mounds Road Improvements ($164,000); and Cold Storage Building Mezzazine Project -Municipal Services Building ($20,700); and City Hall Window Washing ($15,000). The 1695 Garfield Street Retaining Wall Project is currently estimated at $75,900, including engineering & contingency. ACTION TO BE TAKEN The Engineering Department requests approval of the attached resolution by the City Council so that emergency repairs can be made to the 1695 Garfield Avenue retaining wall in the interest of public safety through adoption of the attached resolution. Prepared By: Jon Dienst, Civil Engineer cc: Dennis Waugh, IIW Engineers & Surveyors, PC Barry Lindahl, City Attorney Bob Schiesl, Assistant City Engineer RESOLUTION NO. 371-08 AUTHORIZING EMERGENCY REPAIRS TO THE RETAINING WALL AT 1695 GARFIELD AVENUE Whereas, a retaining wall along 1695 Garfield Avenue is failing and threatening the public sidewalk on Hamilton Street; and Whereas, Iowa Code § 384.103 provides that when emergency repair of a public improvement is necessary and the delay of advertising and a public letting might cause serious loss or injury to the city, the governing body shall, by resolution, make a finding of the necessity to institute emergency proceedings and shall procure a certificate from a competent registered professional engineer or architect, not in the regular employ of the city, certifying that emergency repairs are necessary, and that in that event the governing body may contract for emergency repairs without holding a public hearing and advertising for bids; and Whereas, the City Council finds that the emergency repair of the retaining wall is necessary to protect the public sidewalk on Hamilton Street and the delay of advertising and a public letting might cause serious loss or injury to the city; and Whereas, the City has procured a certificate from a competent professional engineer registered in the State of Iowa, not in the regular employ of the City, certifying that emergency repairs to the retaining wall are necessary. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: . Section 1. The City Council finds that it is necessary to institute emergency proceedings to repair the retaining wall along 1695 Garfield Avenue. Section 2. The City Manager is hereby authorized to proceed with instituting such emergency repairs as provided by law. Passed, adopted and approved this 20th day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk ~,.~. ~~- l mil! 1 120` ~'7-~2 :'~OZ OCT 30 AM 1Q~ ~7 s ;' u,ATHY FLYf~r~ rttUr2La'~ COiJ~tTY RECORDER ~~~. DUBIlO[!E CO.. IOWA FEES ~~ Prepared by: Ronald J. Tumer, City of Dubuque, 50 W. 13'" Street, Dubuque, IA 52001 (563) 589-4270 AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND THE ALBERT J. REISCH ESTATE Now on this~,"~~ day of G~oa~,e , 2002, the City of Dubuque (City) and the Albert J. Reisch Estate (Reisch Estate), in consideration of the mutual covenants set forth herein, agree as follows: Whereas, the Reisch Estate is the owner of Lot 242 of Ham's Addition in the City of Dubuque, Iowa, at 1695 Garfield; and Whereas, there is public right-of-way abutting the Reisch Estate property; and Whereas, there is abutting the Reisch Estate property a retaining wall; and, Whereas, the retaining wall is located on the public right-of-way; and Whereas, a dispute has arisen between City and the Reisch Estate as to the responsibility for the repair, maintenance, and reconstruction of the retaining wall; and Whereas, the parties now desire to resolve the present dispute and to provide for the responsibility for all future repair, maintenance or reconstruction of the retaining wall; and Whereas, Katherine Kelley (Kelley) as Executor of the Reisch Estate, is duly authorized to enter into this agreement on behalf of the Reisch Estate; and Now,' therefore, it is agreed by and between the parties as follows: 1. City shall reconstruct at City's expense a 60-foot section of retaining wall along Hamilton Street in the area where the wall is deflecting. The reconstruction will include the following: a, Remove existing stone. /: ~ b. Remove existing lilac bushes in area of construction. c. Construct new concrete footing. d. Reconstruct the wall using existing stone if possible. e. Backfiil behind the wall with clean stone. f. Sod the disturbed area. g. Repair sidewalk damaged by construction, if any. h. All work shall be completed in a workman-like manner. 2. All construction shall be to Standard City of Dubuque Specifications and Pians and City shall provide on-site observation during construction. 3. The temporary easement attached hereto for the easterly six feet of Lot 242 of Ham's Addition for wall construction purposes shall be executed by Kelley as Executor of the Reisch Estate. 4. The City shall restore the disturbed area due to the construction except for the replacement of the existing lilac bushes which shall be the responsibility of the Reisch Estate. 5. The Reisch Estate shall be responsible for all future repair, maintenance, or reconstruction of the retaining wall that abuts the perimeter of said Lot 242, unless said future repair, maintenance, or reconstruction of the retaining wall is necessary due to City's work as described herein being completed in a negligent manner. 6. This Agreement shall be binding upon the undersigned parties and their heirs, successors and assigns. CITY OF DUBUQUE OWNER By: •~ ~ a By: ~P~ . Mi ael A. Koch, Public Works Director Katherine elfey, As E cutor Of the Albert J. Reisc Estate STATE OF IOWA, DUBUQUE COUNTY, ss: 'L Subscribed and sworn to before me this ~ ~ - day of ~~~~ 2002, by Michael A. Koch, who acknowledged to me that his is the Public Works Director for the City of Dubuque, Iowa, and that he is authorized and has voluntarily executed the foregoing document on behalf of the City of Dubuque, Iowa. ,r~ ~~ RONALD J. TURNEA :~ ~ Commisaton Number 188684 ~H `~ ~o.: llr comR.l.e~oe Eiplre~ Z-'f:~ Notary lic, State o IOWA On this Z~"`day of 0C7y~ 2002, before me, the undersigned, a Notary Public in and for said State, personally appeared Katherine Kelley, to me known to be the identical person named in and who executed the foregoing instrument,. and acknowledged that the person, as the fiduciary, executed the instrument as the voluntary act and deed of the person and of the fiduciary as is duly authorized to execute this Agreement on bek~}If of tfj~ Rq~ch Estates 1112 'mss E GOODMAN, ~R. Nota Public,/Stat_e of Iowa « . 10N NO. 147F'?~ orr- CQNMISS/ON F; - .. / G-~I...G ~ !~ Prepared by: Ronald J. Tumer, City of Dubuque, 50 W. 13"' Street, Dubuque, IA 52001 (563) 589-4270 GRANT OF TEMPORARY EASEMENT FOR BACKSLOPE AND PROPERTY ADJUSTMENT For and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt whereof is hereby acknowledged, Katherine Kelley, As Executor of the Albert J. Reisch Estate 526 W. 5~' Street Dubuque, Iowa 52001 of Dubuque County, State of Iowa, does hereby grant and convey to the CITY OF DUBUQUE, IOWA, a municipal corporation, its agents and contractors, a temporary easement as shown on the attached exhibit across the following described real estate situation in Dubuque, fovea, to wit: Lot 242 of Ham's Addition in the City of Dubuque, Dubuque County, Iowa Said easement shall be along the easterly six feet of said Lot 242, for the purpose of reconstructing a retaining wall and adjusting, if necessary, the yard area and other improvements ,located thereon, in accordance with the Plans and Specifications currently on file in the office of the City Engineer. Said easement shall be null and void upon completion and acceptance of the construction project by the City Council. It is understood and agreed that the City herein shall restore the disturbed area due to the construction except for the replacement of the existing lilac bushes which shall be the responsibility of the Reisch Estate. To have and to hold unto the said City of Dubuque, Iowa, for the duration of the project, and the undersigned does hereby expressly covenant that the Albert J. Reisch Estate is the owner in fee of said real estate and has good right to execute this agreement and that it is duly authorized to execute this easement on behalf of said Estate, and that the City of Dubuque, its agents or contractors, shall at all times during such project have free access to and egress from and over said real estate to maintain, remodel or repair said backslope thereon or therein. Dated at Dubuque, Iowa this 2 2 %~ day of ~C~U~~~ , 2002. atherine Kelley Executor of the Albert J. R 'sch Estate STATE OF IOWA ) ) ss: ESJUNTY OF DUBUQUE ) On this ZZ ~ day of ~c~v ~~ , A. D., 2002 before me, the undersigned, a Notary Public in and for said State, personally appeared Katherine Kelley, to me known to'be the identical person{s) named in and who executed the foregoing instrument, and acknowledged that the person, as the fiduciary, executed the instrument as the voluntary act and deed of the person and of the fiduciary and that she is duly authorized to execute this instrument on behalf of the Reis JAMES E GOODMAN, JR. COMMISSION NO. 147622 ~ow~ { ~CQM~I~SI~N~?CPIRES CITY OF DUBUQUE, IOWA COUNCIL PROCEEDINGS OFFICIAL City Council, Regular Session, September 3, 2002 Council met in Regular Session at 6:30 P.M. in the Library Auditorium Present: Mayor Duggan, Council Members Buol, Cline, Connors, Markham, Michalski, Nicholson, City Manager Michael Van Milligen, Corporation Counsel Barry Lindahl. Mayor Duggan read the call and stated this is the regular session of the City Council called for the purpose of acting upon such business which may properly come before the City Council. Invocation was given by Deacon Dave McGhee of Nativity Catholic Church. Mayor Duggan swore in Council Member Roy D. Buol as Mayor Pro-Tem. Proclamations: Regional Dragon Boat Festival Days (September 6, 7, and 8, 2002) received by Sue Hamilton; Always Remember 9-11 Day (September 11, 2002); Alzheimer's Association Memory Walk Awareness Day (September 14, 2002) received by Diane Brondyke; Awareness Day for A-T (September 14, 2002) received by Linda, Tony, Joel, and Rebecca Harvey. CONSENT ITEMS Minutes Submitted: Cable TV Regulatory Commission of 8/14; City Council of 8/19 and 8/27; Downtown Planning Committee of 8/12; Electrical Code Board of 8/19; Historic Preservation Commission of 8/13 and 8/14; Long Range Planning Advisory Commission of 8/21; Zoning Advisory Commission of 8/14; Zoning Board of Adjustment of 8/22, upon motion received and filed. Proof of publication of City Council Proceedings of 8/5/02; proof of publication of List of Claims and Summary of Revenues for the month ending June 30, 2002, upon motion received and filed. Notice of Claims/Suits: Lois Link vs. City of Dubuque; James Van Vors vs. Pamela B. Arensdorf and City of Dubuque, upon motion referred to the Legal Staff for investigation and report. Citizen Communications: (a) Angela C. Simon regarding the closure of Main Street in preparation for the All That Jazz Festival on August 16, 2002, upon motion received and filed and referred to the City Manager; (b) Kelly Sullivan Soley regarding outdoor cafes, Town Clock Plaza, and support for the arts; upon motion received and filed and referred to the City Manager; (c) Sharon Culpepper regarding north end drainage, upon motion received and filed and referred to the City Manager; (d} Katherine Kelley regarding maintenance of the retaining wall on the north side of Hamilton Street, upon motion received and filed and referred to the City Manager; (e) Karen M. Kuhle regarding the recent eight inch rainstorm of August 21 and City Manager submitting a response to correspondence from Karen M. Kuhle, upon motion received and filed. Environmental Stewardship Advisory Commission: David B. Czarnecki submitting his resignation from the Environmental Stewardship Advisory Commission, upon motion received and filed and accepted resignation. Legal Department Intern: Communication from Crenna Brumwell thanking the City Council for the opportunity to work in the Legal Services Department as an intern, upon motion received and filed. 1 Katherine Kelley 526 W. 5th St. ' Dubuque, IA 52001 ~ t~ Augast 22, 2042 ~ `~ c ~ v -'-' Mike Koch `~ ~ i C~ ~ Dubuque, i 52001 a' ~- ~ ~ ~ ~ r.~ Dear Mr. Koch, I am writing in regard to the maintenance ofthe wall on the south side ofHamiiton St. The neares# property to this wall belonged to my father (who died in Feb.. ,this year). I am now handling his estate. . The house on this property was built in the late I894's..it stood without benefit of a wall over 3Q years. During the depression years, the WPA installed this wall for the city, this was told to ire by my father who worked for the WPA. Years later, in 1947 , my father purchased this house, he lived in it 55 years. When we first bought the house it only had a basement under one room , my father hired a contractor to enlarged the basement_.The contractor found the earth under the horse to be solid sand . I know this to be a fact because I was there. I truly believe .the wall was installed to protect the street from the sand, when they widen it to accommodate the modern cars. The city department of engineers have examined this wall and have found it to be on city street right of way. Our property is twenty -five feet wide ,the house is twenty- two feet wide ,the property line is more than four feet to the waIl. Our claim is that we should not have to maintain .the wall, since it was installed for the city on city property. We are asking the city to clarify this matter so we may sell the property. Our potential buyer cannot wait much longer for an answer ,their financing is being held up subject to the clearance ofthis issue .They have been waiting since mid -July for a definite answer on this matter. We will stand to lose a potential buyer over something we feel is not our responsibility. It was installed for the city on city property, it should not be our responsibility any more than any other owner of property sitting on this sand hill. Yaur attention to this matter as so as possible would be appreciated.. Sincerely, ~ ' ~~j~ ~• ~ . Katherine Kelley cc: ivlichael Van Milligan Terry Duggan Gus Psihoyos Barry Lindlhal Daniel Nchalson inn lvtrchalski john Markham Ray D Buol Joyce Conners Patricia Cline >~ 5o wes~ 13a, s~ Dubuque, Iowa 52Ua1~864 (~~ 589-4270 (319) 589-4149 FAX Ms. Katherine Kelley 526 W. 5~' Street Dubuque, iA 52001 RE: 1695 Garfield Retaining Wal[ Dear Ms. Kelley: ~ a~rrov Dvs ~`.~'~' September 16, 2002 This letter is written as a follow-up to your letter dated August 2~, 2002, regarding the maintenance responsibility of the retaining wall at the comer of Garfield and Hamilton at 1695 Garfield Avenue. The Clty has done further investigation on the maintenance responsibility of the retaining wall with various department heads and Clty management. Whether the wall is on City or private property does not determine the responsibility for maintenance. As an example, a property owner is responsible for the cost of installing and maintaining the sidewalk in front of their property even though this too is on public property. The responsibility would be the same even if the City built the sidewalk as part of a street paving program. This same responsibility holds true for the retaining. wall, regardless of whether the City built the wall or that this wall is on City property. Since the wall was required for the construction of the sidewalk, you, as the property owner, would be responsible for the maintenance of the retaining wall. The City has obtained an estimate to repair the damaged portion of the wall far $35,750. As a matter of fairness and to resolve any future dispute over maintenance responsibll'dy, the City would be willing to repair the wall on a "one-time" basis iF you will agree that future maintenance of the wall is the responsibility of the owner or future owners: The City would need a temporary easement on your property lot for construction purposes. The replacement of the lilacs that are along the tap of the walk would be your responsibility. 1f this proposal is agreeable to you, please call me at (563) 589-4270 and the City will prepare a formal agreement and temporary easement document for your signature, after which the wail would be reconstructed based upon contractor availability. Sincerely, ~ ~~ cc; /Mlchael C: Van Milligen, City Manager Barry Lindahl, Corporation Counsel Ronald J. Turner, P.L.S. Michael A. Koch Public Works Director Servtse / People ~'ity Reaponsibllitq ImwvaHat- Teamwork J Kathesiae Kelley 526 W. 5th St . buba4ue, lA 52001 - August 22, 2fl02 Mike Koch 50 E. 13~ St. Dubuque, I S20t11 Dear Mr. Koch, I am writing in regard to the maintenance of the wall on the south side of Hamilton St. The nearest property to this wall belonged to my father (who died in Feb.. ,this year)., I am now handling his estate. The house on this property was built in the late 189d's..It stood without benefit of a wall over 3Q years. During the depression years. the WPA installed this wall for the city, this was told to me by my father who worked for the WPA. Years later, in 1947 , my father purchased this ` house, he lived in it 55 years. When we first bought the house it only had a basement under one room , my father hired a comraetor.to enlarged the basement..The contractor found the earth under the house to be solid sand . I 1Qlow this to be a fact because I was there. I truly believe .the wall was installed to protect the street from the sand, when they widen it to accommodate the modern cars. The city department of ez;gineers have examined this wall and have found it to be on city street right of way. - . Our property is twenty -five feet wide ,the house is twenty- two feet wide ,the ,property .line is more than four feet to the wall. Our claim is that we should not rhave to maintain .the wall, - since it was installed for the city on city property- . We are asking the city to clarify this matter so we may sell the property. Our potential i ' buyer cannot wait much longer for an answer ,their financing is being held up subject to the clearance of this issue .They have been waiting since mid -rely for a definite answer on this matter. We will stand to Iose a potential buyer over something we feel is not our responsibility. ' Tt was installed for the city on city property, it should not be our responsibility any more than any other owner of property sitting on this sand hill. Your attention to this matter as so as possible would be appreciated.. Sincerely, ~~~ ~~ ~~~ Katherine KeIley cc: Michael Van Milligan Terry Duggan Gus Psihoyos Barry Lindlhal Daniel Nicholson min Michalski John Markham Roy'D Buol Joyce Conners Patricia Cline