Easement Agreement, Ace Construction-Dubuque, L.L.CCity of Dubuque
City Council Meeting
Consent Items # 09.
Copyrighted
November 7, 2022
ITEM TITLE: Easement Agreement, Ace Construction -Dubuque, L.L.0
SUMMARY: Senior Counsel recommending City Council adopt the
resolution approving an Agreement between Ace Construction -Dubuque,
L.L.C. and the City for an access easement and the Grant of Easement
itself.
RESOLUTION Approving an Agreement by and between the City of
Dubuque, Iowa and Ace Construction -Dubuque, L.L.0 and a Grant of
Easement to the City of Dubuque
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
Memo Staff Memo
Resolution Resolutions
Grant of Easement Supporting Documentation
Agreement Supporting Documentation
THE CITY OF
DUB E
Masterpiece on the Mississippi
BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL
MEMO
To: Mayor Brad M. Cavanagh and
City Council Members
DATE: October 27, 2022
RE: Easement Agreement, Ace Construction -Dubuque, L.L.C.
Dubuque
AII•America City
2007-2012.2013
2017*2019
On August 1, 2022, the City Council approved a resolution authorizing acquiring property
owned by Ace Construction -Dubuque, L.L.C. (Ace) by eminent domain if necessary for
access to a City water well located adjacent to the property.
Since that time, Water Department Manager Chris Lester and I have worked with the
attorney for Ace to acquire easements on the property, rather than acquiring the entire
parcel. With the cooperation of Ace, we believe the easements will provide appropriate
access to the water well for inspection, repairs, maintenance and/or replacement.
Attached is the resolution approving an Agreement between Ace and the City for an
access easement and the Grant of Easement itself.
I recommend the City Council adopt the resolution approving the Agreement and the
Grant of Easement.
BAL:JLM
CC' Mike C. Van Milligen, City Manager
Crenna M. Brumwell, City Attorney
Chris Lester, Water Department Manager
Prepared by Barry A. Lindal, Esq. 300 Main St., Ste 330 Dubuque IA 52001-6944 (563) 583-4113
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13t' St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 345-22
APPROVING AN AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA
AND ACE CONSTRUCTION-DUBUQUE, L.L.0 AND A GRANT OF EASEMENT TO
THE CITY OF DUBUQUE
WHEREAS, on August 1, 2022, the City Council approved a resolution authorizing
acquiring property owned by Ace Construction -Dubuque, L.L.C. (Ace) by eminent domain
if necessary for access to a City water well located adjacent to the Ace property; and
WHEREAS, Ace and the City have tentative entered into an Agreement attached
hereto for a Grant of Easement to the City of Dubuque subject to City Council approval;
and
WHEREAS, the City Council finds that the Agreement and Grant of Easement
should be approved and the Grant of Easement accepted.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA AS FOLLOWS:
1. The Agreement by and between the City of Dubuque, Iowa and Ace Construction -
Dubuque, L.L.0 and the Grant of Easement to the City of Dubuque are hereby
approved.
2. The Mayor is hereby authorized and directed to sign the Agreement on behalf of
the City of Dubuque.
3. The Grant of Easement is hereby accepted.
Brad M..!..
Attest:
a��'rz /7 &AW
Adrienne N. Breitfelder, City Clerk
GRANT OF ACCESS EASEMENT
For and in consideration of the sum of One Dollar and other good and valuable
consideration, the receipt whereof is hereby acknowledged Ace Construction -Dubuque,
L.L.C. (Grantor) of Dubuque County, State of Iowa, for its successors and assigns, does
hereby grant, sell and convey to the CITY OF DUBUQUE, IOWA, a municipal
corporation, its agents and contractors, from the date hereof, a perpetual easement
across the following described real estate situated in Dubuque, Iowa, to wit:
All that part of Lots 193, 194, 195 and 196 lying North and West of Railroad,
subject to Railroad Right of Way, and all in "Map of Eagle Point or Ham's
Addition to the City of Dubuque 1854" (commonly known as Ham's Addition) in
the City of Dubuque, Iowa, according to the recorded plat thereof (the Property).
As shown Exhibit A (the Easement Area) attached hereto and by reference made a part
hereof for the purpose of repairing, maintaining and replacing the City water well (the
Well) shown on Exhibit A together with the right of access over the Easement Area and
upon the terms and conditions set forth herein.
1. The Regular Inspection Easement is for regular monthly inspections of the Well.
The Regular Inspection Easement is lane Nine (9) feet by One Hundred Twenty -
Five Feet (188) as shown on Exhibit A and must be clear of all permanent
obstructions which will allow City vehicles and personnel access to the Well. City
shall provide Ace not less than forty-eight (48) hours' notice of intended use of
the Regular Inspection Easement provided to Ace by email at
aceconstruction.lm@gmail.com and by telephone at 563-495-8193. The Regular
Inspection Easement may be occupied by City for not more than forty-eight (48)
hours. In the event the Regular Inspection Easement is not clear of all
obstructions, City may cause the obstructions to be removed at Ace's cost.
2. The Service/Maintenance Easement is intended for the need to pull the Well for
repairs, maintenance and/or replacement which require crane access to the Well
and storage of the large Well elements. Use of the Service/Maintenance
Easement is only expected to be once in every several years with the exception
of emergencies. In addition to the Regular Inspection Easement, the area shown
as the Service/Maintenance Easement must be clear of all permanent
obstructions which will allow City vehicles and related equipment and personnel
access to the Well for repairs, maintenance and replacement of the Well. City
shall provide Ace not less than twenty-four hours' notice of intended emergency
use of the Regular Inspection Easement and the Service/Maintenance Easement
and not less than 120 hours' notice of intended ordinary use provided to Ace by
email at aceconstruction.lm@gmail.com and by telephone at 563-495-8193. The
Service/Maintenance Easement may be occupied by City for not more than 14
days. In the event the Service/Maintenance Easement are not clear of all
obstructions, City may cause the obstructions to be removed at Ace's cost.
10192022ba1
To have and to hold unto the said City of Dubuque, Iowa, forever, and the undersigned
does hereby expressly covenant that Ace Construction -Dubuque, L.L.C. is the owner in
fee of said real estate and has good right to execute this agreement.
Dated at Dubuque, Iowa this day of -..._ , 2022.
Ace Construction -Dubuque, L.L.C.
By: ,'..
Louis Mihalakis
NOTARY PUBLIC
STATE OF IOWA,
COUNTY OF DUBUQUE COUNTY, SS:
On this -�v day of9 C-'(6904.D., 2022 before me, the undersigned, a
Notary Public in and for said County, in said State, personally appeared Louis Mikhilakis
to me known to be the identical person(s) named in and who executed the within and
foregoing instrument, to which this is attached, and acknowledged that he executed the
same as his voluntary act and deed on behalf of Ace Construction-Dubuque,.�L.L.Q--)
JEFF'RE'Y' L.. 8a ALT'ER.S
Nurimnbaeir 145486
WY 00,01o" Esp., NiOV 19, 2023
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abf r - Exhibit A Speeial Aehi--m in 015
Al"�-74w a part of NON PT OF LOTS 193, 194, 195, & 196 HAMS ADD
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101' 7"
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Legend
Mihalakis Property
Regular Inspec6an Easement (928.26 sq ft)
SeruicefMaintenance Easement (1,394.18 sq R)
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563-589-4291
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10192022ba1
AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
ACE CONSTRUCTION-DUBUQUE, L.L.0
This Agreement (this Agreement), dated for reference purposes the r day of
Ncvem6r, 2022, is made and entered into by and between the City of Dubuque, Iowa and
Ace Construction -Dubuque, L.L.C.
WHEREAS, Ace Construction -Dubuque, L.L.C. (Ace) is the owner of the Real
Estate legally described as follows:
All that part of Lots 193, 194, 195 and 196 lying North and West of Railroad, subject
to Railroad Right of Way, and all in "Map of Eagle Point or Ham's Addition to the
City of Dubuque 1854" (commonly known as Ham's Addition) in the City of
Dubuque, Iowa, according to the recorded plat thereof (the Property)
and;
WHEREAS, the City of Dubuque (City) owns a water well (the Well) on property
adjacent to the Property which Well supplies potable water to the entire City of Dubuque;
and
WHEREAS, it is essential for City Water Department personnel to have access to
the Well for maintenance, repairs and/or replacement; and
WHEREAS, City and Ace desire to enter into an agreement to provide City access
to the well upon the terms and conditions set forth herein.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
SECTIONI. ACCESS EASEMENT. Ace agrees to convey to City an access easement
as set forth in the attached Easement Agreement.
SECTION 2. COMPENSATION. City agrees to pay to Ace upon execution of this
Agreement One Thousand Two Hundred Fifty Dollars ($1,250) and One Thousand Two
Hundred Fifty Dollars ($1,250) on each anniversary of this Agreement while this
Agreement is in effect.
SECTION 3. TERMINATION. Either party may terminate this Agreement upon thirty
(30) days written notice delivered to the other party.
SECTION 4. GRANT OF RIGHT OF FIRST REFUSAL. Ace hereby grants City a right
of first refusal with regard to the Property as follows:
If Ace receives a bona fide offer from a third party to purchase the Property, Ace
shall give notice in writing to City stating the price and terms upon which the
10192022bal
Property is proposed to be purchased via the bona fide offer from the third party,
and Ace shall provide a copy of such offer to City. City shall have the right to
purchase the Property at the price and on the terms so stated except as
otherwise provided herein. If City does not so elect to purchase the Property
within twenty (20) days from the date on which Ace receives the written notice as
set out above, then Ace shall have the right to sell the Property at not less than
the price so stated and not on terms more favorable to the third party; thereafter,
City shall no longer have a right of first refusal hereunder. If City matches the
bona fide third party offer by notice in writing to Ace within twenty (20) days of
City's receipt of such written notice, then Ace shall proceed to continue the
abstract and proceed to closing following the procedure and within the time as
described below. A "bona fide" third party offer for these purposes shall be a
written offer to purchase the Property from a buyer with the documented
wherewithal (e.g., bank letter or other evidence) to afford such purchase and to
pay the purchase price in a timely fashion.
Upon City's exercising its rights of first refusal herein, Ace, at its expense, shall
promptly continue and pay for the abstract of title to the Property continued
through a date not more than thirty (30) days prior to the closing date stated in
the notice of the exercised of the option. The proposed closing date shall be no
later than sixty (60) days after the written exercise of the option. Such abstract
shall show merchantable title in Ace in conformity with this Agreement, Iowa law
and title standards of the Iowa State Bar Association.
The abstract shall become the property of City when the purchase price is paid in
full. Ace shall pay costs of additional abstracting or title work due to acts or
omissions of Ace and be responsible for prorated real estate taxes, real estate
transfer tax and other normal seller expenses for real estate closings in Dubuque
County, Iowa.
Upon payment of the purchase price, Ace shall convey the Property to Citv by
Warranty Deed, free and clear off all liens, restrictions and encumbrances.
SECTION 5. City shall defend, indemnify, and hold harmless Ace against any and all
claims by or on behalf of any person, firm, corporation, and its employees or agents,
arising out of the City's access agreement identified in Section 1 above, and all costs
and expenses incurred, including attorney fees, in connection with such claim, or in
connection with any defense of legal proceeding, civil action, or other proceeding brought
herein. Said indemnity protection shall include, but is not limited to: workman's
compensation claims, personal injury or death, property damage, environmental damage
or claims, judgments, liens, and mechanics liens. Further, City waives any and all
immunity or other defenses, of any kind, to the extent that it would interfere with it's
obligations described in this indemnity protection to Ace.
10192022bal
SECTION 6. The City will repair any damage to the property or grounds including, but
not limited to, filling any holes or tracks created by its equipment during use of the access
easement.
SECTION 7. This Agreement is subject to the approval of the City Council.
THE CITY OF DUBUQUE ACE CONSTRUCTION-DUBUQUE, L.L.0
e M
MEM M,.
By. 6� flllJ�"
10192022bal
Doc ID: 011040910006 Type: GEN
Kind: EASEMENT
Recorded: 11/16/2022 at 02:30:36 PM
Fee Amt: $32.00 Paqe i of 6
Dubuque County Iowa
John Murphy Recorder
File2022-00013959
RECORDER'S COVER SHEET
GRANT OF EASEMENT
Preparer Information:
Barry A. Lindahl, City Attorney, 300 Main Street, Suite 330, Dubuque, IA 52001,
Telephone: (563) 583-4113
Taxpayer Information:
City of Dubuque, Iowa, 50 West 13th Street, Dubuque, IA 52001
Return Document To:
Barry A. Lindahl, City Attorney, 300 Main Street, Suite 330, Dubuque, IA 52001
Legal Description:
See Page 1 of Grant of Easements
Grantors:
Ace Construction -Dubuque, L.L.C.
Grantees:
The City of Dubuque, Iowa
DBQ City Clerk 320°
GRANT OF ACCESS EASEMENT
For and in consideration of the sum of One Dollar and other good and valuable
consideration, the receipt whereof is hereby acknowledged Ace Construction -Dubuque,
L.L.C. (Grantor) of Dubuque County, State of Iowa, for its successors and assigns, does
hereby grant, sell and convey to the CITY OF DUBUQUE, IOWA, a municipal
corporation, its agents and contractors, from the date hereof, a perpetual easement
across the following described real estate situated in Dubuque, Iowa, to wit:
All that part of Lots 193, 194, 195 and 196 lying North and West of Railroad,
subject to Railroad Right of Way, and all in "Map of Eagle Point or Ham's
Addition to the City of Dubuque 1854" (commonly known as Ham's Addition) in
the City of Dubuque, Iowa, according to the recorded plat thereof (the Property).
As shown Exhibit A (the Easement Area) attached hereto and by reference made a part
hereof for the purpose of repairing, maintaining and replacing the City water well (the
Well) shown on Exhibit A together with the right of access over the Easement Area and
upon the terms and conditions set forth herein.
The Regular Inspection Easement is for regular monthly inspections of the Well.
The Regular Inspection Easement is lane Nine (9) feet by One Hundred Twenty -
Five Feet (188) as shown on Exhibit A and must be clear of all permanent
obstructions which will allow City vehicles and personnel access to the Well. City
shall provide Ace not less than forty-eight (48) hours' notice of intended use of
the Regular Inspection Easement provided to Ace by email at
aceconstruction.lm@gmail.com and by telephone at 563-495-8193. The Regular
Inspection Easement may be occupied by City for not more than forty-eight (48)
hours. In the event the Regular Inspection Easement is not clear of all
obstructions, City may cause the obstructions to be removed at Ace's cost.
2. The Service/Maintenance Easement is intended for the need to pull the Well for
repairs, maintenance and/or replacement which require crane access to the Well
and storage of the large Well elements. Use of the Service/Maintenance
Easement is only expected to be once in every several years with the exception
of emergencies. In addition to the Regular Inspection Easement, the area shown
as the Service/Maintenance Easement must be clear of all permanent
obstructions which will allow City vehicles and related equipment and personnel
access to the Well for repairs, maintenance and replacement of the Well. City
shall provide Ace not less than twenty-four hours' notice of intended emergency
use of the Regular Inspection Easement and the Service/Maintenance Easement
and not less than 120 hours' notice of intended ordinary use provided to Ace by
email at aceconstruction.lm@gmail.com and by telephone at 563-495-8193. The
Service/Maintenance Easement may be occupied by City for not more than 14
days. In the event the Service/Maintenance Easement are not clear of all
obstructions, City may cause the obstructions to be removed at Ace's cost.
10192022bal
To have and to hold unto the said City of Dubuque, Iowa, forever, and the undersigned
does hereby expressly covenant that Ace Construction -Dubuque, L.L.C. is the owner in
fee of said real estate and has good right to execute this agreement.
Dated at Dubuque, Iowa this 6 day of �_ , 2022.
Ace Construction -Dubuque, L.L.C.
Y
By.
Louis Mihalakis
NOTARY PUBLIC
STATE OF IOWA,
COUNTY OF DUBUQUE COUNTY, S:
On this day of (9C A.D., 2022 before me, the undersigned, a
Notary Public in and for said County, in said State, personally appeared Louis Mikhilakis
to me known to be the identical person(s) named in and who executed the within and
foregoing instrument, to which this is attached, and acknowledged that he executed the
same as his voluntary act and deed on behalf of Ace Construction-Dubuqu�.L.C',,--)
JEFFREY L.. WAITERS
C IftMblr 145M
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Prepared by Barry A. Lindal, Esq. 300 Main St., Ste. 330, Dubuque IA 52001-6944, (563) 583-4113
Retum to Adrienne N. Breitfelder, City Clerk, 50 W. 131h St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 345-22
APPROVING AN AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA
AND ACE CONSTRUCTION-DUBUQUE, L.L.0 AND A GRANT OF EASEMENT TO
THE CITY OF DUBUQUE
WHEREAS, on August 1, 2022, the City Council approved a resolution authorizing
acquiring property owned by Ace Construction -Dubuque, L.L.C. (Ace) by eminent domain
if necessary for access to a City water well located adjacent to the Ace property; and
WHEREAS, Ace and the City have tentative entered into an Agreement attached
hereto for a Grant of Easement to the City of Dubuque subject to City Council approval;
and
WHEREAS, the City Council finds that the Agreement and Grant of Easement
should be approved and the Grant of Easement accepted.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA AS FOLLOWS:
1. The Agreement by and between the City of Dubuque, Iowa and Ace Construction -
Dubuque, L.L.0 and the Grant of Easement to the City of Dubuque are hereby
approved.
2. The Mayor is hereby authorized and directed to sign the Agreement on behalf of
the City of Dubuque.
3. The Grant of Easement is hereby accepted.
Brad M. anagh, Mayor
Attest:
44t'ix"nz /7' A4'e4
Adrienne N. Breitfelder, City Clerk
CERTIFICATE of the CITY CLERK
STATE OF IOWA
SS:
COUNTY OF DUBUQUE )
I, Adrienne N. Breitfelder, City Clerk, do hereby certify that I am the duly appointed,
qualified, City Clerk of the City of Dubuque, Iowa, in the County aforesaid, and as such
City Clerk, I have in my possession or have access to the records of the proceedings of
the City Council. I do further state that the hereto attached Resolution No. 345-22 is a
true and correct copy of the original.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa, on this 14th day of November, 2022.
OF
4SEA10 gAr
,
Adrienne N. Breitfelder, City Clerk