Kerper Vacating EasementsCITY OF DUBUQUE, IOWA
MEMORANDUM
March 27, 200l
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Cotmcil Members
Michael C. Van Milligen, City Manager
Vacating Petition - Utility, Stormwater, and Embankment Easements
Public Works Director Mike Koch recommends vacating various easements in regard to the sale
of property at Kerper Boulevard and Kerper Court to the U.S. Postal Service, and further
recommends that this be set for public hearing on April 16, 2001.
I concur with the recommendation and respectfully request Mayor and City Council approval.
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Michael A. Koch, Public Works Director
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 28, 2001
TO:
Michael C. Van Milligen, City Manager
FROM: Michael A. Koch, Public Works Director
SUBJECT: Vacating Petition - Utility, Stormwater, and Embankment
Easements
INTRODUCTION
This is in response to a request from Brian J. Kane, representing John P.
and Letha A. Milhalakis and Richard L. and Cindy Billmeyer, for the vacating
of various easements in regard to the sale of property at Kerper Boulevard
and Kerper Court to the U.S. Postal Service.
DISCUSSION
The attached releases affect property proposed to be purchased by the U.S.
Postal Service legally described as Lot 5 of Kerper Industrial Park and Lot 2
of FDL Second Addition all in the City of Dubuque, Iowa. This area lies west
of Kerper Boulevard and north of 16TM Street and has recently been filled to
provide development.
This property is currently owned by John P. and Letha A. Mihalakis and
Richard L. and Cindy Billmeyer. When portions of this property were
originally sold to Dubuque Packing Company, certain easement rights were
reserved for storage of surface water, storm water, overflow sewage,
utilities, power lines, storm and sanitary services, temporary dumping
grounds and embankment slopes as indicated on the attached easements. A
portion of these easements ~ncumber said Lots 2 and 5.
Current platting in the area has defined specific areas for easements
necessary for storm and sanitary sewers and utilities. Other easements for
storage of surface water, storm water, overflow sewage, and temporary
dumping grounds are no longer required due to development of the area.
The easements to be released are as follows:
Resolution No. 775-52 filed as Instrument No. 3132-72 and modified
by Resolution Nos. 208-72 and 175-72 filed as Instrument Nos. 5001-
72 and 5000-72 respectively, concerning:
Temporary or permanent storage of surface water, storm water,
or overflow sewage.
Right-of-way for utilities or power lines.
Construct or maintain storm and sanitary sewers.
Right to use for temporary dumping grounds.
Grant of easement to construct and maintain embankment slopes and
to flow water across said lands as may be necessary for dredging
operations filed in Book 159TL, Page 550, and modified by Resolution
208-72 and 175-72 and filed as Instrument No. 5001-72.
The request to release a "Flood Control Easement" over the southerly 1,300
feet of Lot 2 of 2 of River Front Subdivision No. 4 dated September 21,
1972 and filed as Instrument No. 7298-72 cannot be released since storm
sewer piping currently exists at this location and is of vital importance to the
operation of the floodwall control structure.
In conjunction with the release of the above easements, the U.S. Postal
Service requests written confirmation that the City intends to maintain its
existing flood control program with respect to the real estate proposed to be
purchased.
The City has not previously committed to such an agreement or letter.
Affording the U.S. Postal Service a level of guarantee over and above the
other property owners in the area may cause the City undue liability. The
City will continue to operate and maintain floodwall property to prevent
damages to private property as it has done in the past.
RECOMMENDATION
The City does not have a need for the above easements, and I would
recommend approval of the request to vacate the easements as indicated on
the attached releases. I would recommend that the vacating of the
easements be set for public hearing on April 16, 2001.
ACTION TO BE TAKEN
The recommendation of the City Manager should be approved and a public
hearing should be scheduled on the disposal of the property through adoption
of the enclosed resolutions.
MAK/vjd
Prepared by Ronald L. Turner, P.L.S.
W E
S
200 0 200 Feet
Mihalakis-Billmeyer-U.S. Postal Service Easement Releases
RESOLUTION NO. 135-01
RESOLUTION OF INTENT TO DISPOSE OF INTEREST AND VACATE
UTILITY AND OTHER VARIOUS EASEMENTS OVER LOT 5 OF KERPER
INDUSTRIAL PARK AND LOT 2 OF FDL SECOND ADDITION IN THE
CITY OF DUBUQUE, IOWA, DUBUQUE COUNTY, IOWA
Whereas, John P. and Letha A. Mihalakis and Richard L. and Cindy
Billmeyer are the current owners of Lot 5 of Kerper Industrial Park and Lot 2
of FDL Second Addition; and
Whereas, utility and other various easements are currently recorded
over and across said lots; and
Whereas, John P. and Letha A. Mihalakis and Richard L. and Cindy
Billmeyer have petitioned to vacate the easements in said lots.'
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. That the City of Dubuque intends to dispose of its
interest and vacate utility and other easements over Lot 5 of Kerper
Industrial Park and Lot 2 of FDL Second Addition, as described in Resolution
No. 775-72 and filed as Instrument No. 3132-72; and Book 159TL, Page
550, in the Office of the Dubuque County Recorder.
Section 2. That the City Clerk be and is hereby authorized and
directed to cause a notice of intent to be published in the manner as
prescribed under Section 364.7 Code of Iowa, 1999 or amended.
Passed, approved and adopted this 2nd day of April,
2001.
Terrance M. Duggan, Mayor
Attest: , ,
Jeanne F. Schneider, City Clerk
Prepared by D. F!knt Drake, Kane, Norby & Reddick SC, 2100 _Asbury Road, Suite 2, Dubuque. IA. 52001 319/5827980
RELEASE OF EASEMENT
This Agreement for Release of Easement is entered into this
__day of , 2001 by and between the City of Dubuque,
Iowa (City) and John P. Mihalakis and Letha A. Mihalakis, husband
and wife and Richard L. Billmeyer and Cindy Billmeyer, husband and
wife'(jointly hereafter referred to as Owners).
RECITALS
A. Owners are the owners of real estate legally described as
follows:
Parcel 1:
Lot 5 of Kerper Industrial Park, in the City of Dubuque,
County of Dubuque, State of Iowa, according to the
recorded plat thereof.
Parcel 2:
Lot 2 of FDL Second Addition, in the City of Dubuque,
County of Dubuque, State of Iowa, according to the
recorded plau thereof.
(The Real Estate)
B. The City of Dubuque transferred the Real Estate to a
predecessor in interest of Owner and in connection with such
transfer retained certain easement rights as referenced in
Resolution No. 775-52, filed May 9, 1972 as Instrument No. 3132-72,
as modified by Resolution No. 208-72, filed July 6, 1972 as
Instrument No. 5001-72 and Resolution No. 175-72 filed July 6, 1972
as Instrument No. 5000-72 (the Resolutions);
C. The City no longer requires the easements retained and
Owners desire that such easements be released.
D. The parties have reached agreement with respect to the
release of such easements and desire to set forth their agreement
in writing.
THEREFORE, in consideration of the mutual terms and covenants
contained herein, the parties agree as follows:
1. Release of Easements.
releases in their entirety the
and restrictions:
The City hereby relinquishes and
following easements, reservations
Ao
The right in the City of Dubuque to use said property for
the temporary or permanent storage of surface water,
storm water, or overflow sewage until such time as the
City Council shall by Resolution declare such right is no
longer required.
Easement of right of way for all utilities or power lines
now in place.
Easement in the City of Dubuque to construct and maintain
such storm and sanitary sewers across or under said
property as its needs may require.
The right in the City of Dubuque to use such portion of
said property as may be necessary for a temporary dumping
ground until the access to the City's dumping grounds on
the City Island has been restored.
It is the intent of the City to release any and all rights of
the City obtained by virtue of the Resolutions and such
Resolutions, and the easements contained therein, shall hereafter
be null and void and no longer effect or restrict the Real Estate.
2. Miscellaneous. This Agreement shall be binding upon the
parties hereto and their heirs, successors and assigns. This
Agreement shall be governed by and construed under the laws of the
State of Iowa.
3. Requirement of Resolution. This Agreement shall be
binding upon City when approved by Resolution of the City Council
of the City of Dubuque, Iowa and signed by an authorized
representative of the City.
CITY OF DUBUQUE
By
John P. Mihalakis
Letha A. Mihalakis
-2-
Richard L. Billmeyer
Cindy Billmeyer
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2001, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared and ,
to me personally known, who being by me duly sworn, did say that
they are the and
respectively, of the corporation executing the within and foregoing
instrument; that (no seal has been procured by the) (the seal
affixed thereto is the seal of the) corporation; that said
instrument was signed (and sealed) on behalf of the corporation by
authority of its Board of Directors; and the said
and
acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation, by it and by them
voluntarily executed.
Notary Public
in and for State of Iowa
STATE OF IOWA )
COLrNTY OF DUBUQUE ) ss:
On this day of , 2001, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared John P. Mihalakis and Letha A. Mihalakis,
husband and wife, to me known to be the persons named in and who
executed the foregoing instrument, and acknowledged that they
executed the same as their voluntary act and deed.
Notary Public
in and for State of Iowa
-3-
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2001, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared Richard L. Billmeyer and Cindy Billmeyer,
husband and wife, to me known to be the persons named in and who
executed the foregoing instrument, and acknowledged that they
executed the same as their voluntary act and deed.
Notary Public
in and for State of Iowa
-4-
Prepared by D, Flint Drake, Kane, Norby & Reddick PC, 2100 Asbury Road, Suite 2, Dubuque, IA 52001 319/5827980
RELEASE OF EASEMENT
This Agreement for Release of Easement is entered into this
day of , 2001 by and between the City of
Dubuque, Iowa (City) and John P. Mihalakis and Letha A. Mihatakis,
husband and wife and Richard ~. Billmeyer and Cindy Billmeyer,
husband and wife (jointly hereafter referred to as Owners).
RECITALS
A. Owners are the owners of real estate legally described as
follows:
Parcel 1:
Lot 5 of Kerper Industrial Park, in the City of Dubuque,
County of Dubuque, State of Iowa, according to the
recorded plat thereof.
Parcel 2:
Lot 2 of FDL Second Addition, in the City of Dubugue,
County of Dubuque, State of Iowa, according to the
recorded plat thereof.
(The Real Estate)
B. A predecessor in interest to Owners granted to the City of
Dubuque easements by a Grant of Easement dated February 23, 1956
and recorded August 17, 1956 in Book 159 TL, page 550, as modified
by Resolution No. 208-72, filed July 6, 1972 as Instrument No.
5001-72 in the records of the Dubuque County Recorder and further
modified by Resolution No. 175-72 recorded July 6, 1972 as
Instrument No. 5001-72 in the records of the Dubuque County
Recorder (the Grant of Easement).
C. The City no longer requires the easements identified
within the Grant of Easement and Owners desire that such easements
be released.
D. The parties have reached agreement with respect to the
release of such easements and desire to set forth their agreement
in writing.
THEREFORE, in consideration of the mutual terms and covenants
contained herein, the parties agree as follows:
!. Release of Grant of Easement. The City hereby
relinquishes and releases all of its right and interest under the
Grant of Easement and the Grant of Easement shall hereafter be null
and void and no longer effect or restrict the Real Estate.
2. Miscellaneous. This Agreement shall be binding upon the
parties hereto and their heirs, successors and assigns. This
Agreement shall be governed by and construed under the laws of the
State of Iowa.
3. Recpairement of Resolution. This Agreement shall be
binding upon City when approved by Resolution of the City Council
of the City of Dubuque, Iowa and signed by an authorized
representative of the City.
CITY OF DUBUQUE
-By
John P. Mihalakis
Lethe A. Mihatakis
Richard L. Billmeyer
Cindy Biltmeyer
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of 2001, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared and ,
to me personally known, who being by me duly sworn, did say that
they are the and
respectively, of the corporation executing the within and foregoing
instrument; that (no seal has been procured by the) (the seal
affixed thereto is the seal of the) corporation; that said
-2-
instrument was signed (and sealed) on behalf of the corporation by
authority of its Board of Directors; and the said
and
acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation, by it and by them
voluntarily executed.
Notary Public
in and for State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2001, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared John P. Mihalakis and Letha A. Mihalakis,
husband and wife, to me known to be the persons named in and who
executed the foregoing instrument, and acknowledged that they
executed the same as their voluntary act and deed.
Notary Public
in and for State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2001, before me, the
undersigned, a Notary Public in and for the State of Iowa,
personally appeared Richard L. Billmeyer and Cindy Billmeyer~
husband and wife, to me known to be the persons named in and who
executed the foregoing instrument, and acknowledged that they
executed the same as their voluntary act and deed.
Notary Public
in and for State of Iowa
¸--3--
Brian J. Kane
Gary K. Norby .
Les V. Reddiek*
D. Flint Drake**
Brad J. Heying
Todd L. Stevenson*
Louis P. Pf¢iler
MaryBeth Pfeiler Salmon
MaD' A. Cherba
KANE, NORBY & REDDICK, P.C.
ATTORNEYS
2100 ASBURY ROAD, SUITE 2
DUBUQUE, IA 52001-3069
All admitted in Iowa
*Also admitted in Illinois
**Also admitted in Wisconsin
March 9, 2001
Phone: (319) 582-7980
Facsimile: (319) 582-5312
E-mail: knrpc~mcleodnsa.net
Mr. Barry A. Lindahl
Corporation Counsel
196 CyCare Plaza
Dubuque, IA 52001
Re: John P. Mihalakis/Richard L. Billmeyer/U.S. Postal
Service/City of Dubuque/KerPer Real Estate
Dear Barry:
We have now received confirmation from the U.S. Postal Service
that, in conjunction with the above transaction, the Postal Service
desires the release of all of the easements identified in title
commitment exceptions 14, 15, and 28. We previously forwarded to
you proposed Releases of Easement related to these items. We
attach copies of those items for your reference.
We want these releases to be placed on the city council agenda
for the March 19 council meeting to set a public hearing thereon
for the next council meeting.
The Postal Service also wants to receive a letter from the
City indicating that the City intends to maintain its existing
flood control program, at least with respect to the real estate to
be sold to the Postal Service. We attach ~raft language related to
such a letter for your consideration.
We look forward to hearing from you. Thank you.
Best regards,
KANE, NOR~BY & RED~DIC~
BJK:meh
cc: Rozann M. Heininger via facsimile 314/872-5193
Howard T. Townsend via facsimile 913/266-2510
John P. Kelly, Esquire
Mr. Junnie Mihalakis
Mr[ Richard L. Billmeyer
-,v 9 /2.: 9 lo
.3132-72
'" DU,,t. UQi'.-' C,C. };'lA .
RESOLUTION AUTHORIZIr~G SALE OF RcA~ EST~£'E
Whereas the Dubuque Packing Company has offered to
purchase from the City of Dubuque, Iowa~ for the purchase price
of Ten Thousand, Five Hundred Dollars {~10,500) in cash, the
r~al esCate hereinafter described~ aubJec= to the easements
hereinafter enumerated; and
Whereas the City Council of the City of Du&uque has
determined that"said property is not required to serve any
presen~ or fo~seeable public use; and
Whereas the reasonable value of said property, sub-
~ect to the rights herein described, has been ~etermined by a
board of competent appraisers to De $10,500;
mOW THEReFORe, ~g IT RE~OLVnD ~Y THE CIIT' COUNCIL OF
TEE CITY OF DUNUQUE, AA FOLLOWS:
Section ~. That the City of Dubuque, Iowa does hereby
grant and convey unto the Dubuque Packing Company, an iowa
corporation of Dubuque, Iowa, for the agreed 2urcnase price
of Ten Thousand, Five Hundred Dollars ($10~00) all of its
right, title and interest in and to the following described
real estate situated in the Cit~ of Duouque, Dubuque Countz,
Iowa:
Commencing at ~he southwest corner of Lot 6&3, East
Dubuque No.2 Addition; thence northerly along the westerly
line of Lo~ 6~3 and 6~2, East Dubuque~Noo2 Addition, a
distance oI 168 feet; thence north 69° O8' east a distance
of 75.5' to east property line of Lot 6&2, .East Dubuque
~o.2 Addition, which is point of beginning; ~nence north
69o'08' east a distance of ~3 feet more or less aion~ a
line which lies north of and parallel to the cen~erline
of Easg Sixteenth Street Extended; t~ance norsh 12° 16'
west along a line which lies 2CO~ west of and parallel
to east edge of levee %op; thence north 570 west a distance
of 310' more o~ess, a long a line which lies 190~ south-
westerly of ~ para~le! to the centerllne of
Fengler Street extended; thence southerly alonq a meander-
ing line which is the west bank o£ old Lake ?costa an~ ~zJ~'
easterly suodivision line of Lot 20 Ja~ger's Subdivision,
all of %~iltes Duouque, Railroad Addition, and East Duouque
No.2 Addition to point of ~eginning
subject to the following easements:
-2-
(a) The right in the City of Dubuque to use said
property for the temporary or~rmanen: stora&e of surface
water, storm water, or overflow sewaEe until such time ss the
City Council shall by Resolution declare such riEh~ is no
longer required.
(b) Easement of right of way for all utilities or
power lines now in place.
(c) Easement in the City of Dubuque to construct
and maintain 'such storm and sanitary sewers across or under
said property as its needs maf'require;
(d) The right in the City of Dubuque to use such
portion o£ s~id proper:y as may be necessary for-a tempora~'y
dumping ground until the access to the Ci~y,s dumping grounds
on ~he Cl~y Island has been restored.
Secti~,n 2. That the M~yor and City Clerk are hereby
authorized an'~p~wered to execute a Quit Claim Deed in the
name of the City of DuOuque, conveying the above descrioed
real estate and to deliver the same to said purchaser upon
receipt of said purchase price.
Dated this ~ day of _~~_. ,A.D. 1952.
Attest:
CERTIFICATE OF CITY CLERK
STATE O? IOWA )
) SS:
COUNTY OF DUBUOUE )
I, ].eo F. Frommelt, do hereby certify that I am the duly appointed,
qualified', and acting Clerk of the City of Dubuque in the County aforesaid,
and as such Clerk I have in my possession, or have access to, the records
of the proceedings of ~:he City Council.
attached,, ,~esolut i.on
copy of the origina! resolution
I do further state that the hereto
No. 77~'-5~- is a correct
No. 775-52 approved and
adopted by the City Council of the City of Dubuque, Iowa, at a session
held by said Council on the 9th day of_ Dece. mbe~
19 52 , and that according to the records of my office publication of [he
proposed proposal of the disposal of interest in real property as described
In said resolution was made in the Telegraph Herald newspaper on
November 10, 19 52 , and on November 17, 19 5'P
In Testimony Whereof, I hereunto set my hand and officia! seal.
Dated a~ Dubuque, Iowa thi~ ~th day of ?,~Y 19 72
Leo F. Frommelt
Clerk of the City of Dubuque, Io~,,~