Modification and Vacation of Easement — 1064 and 1076 University Avenue Copyrighted
August 21, 2023
City of Dubuque Consent Items # 010.
City Council Meeting
ITEM TITLE: Modification and Vacation of Easement— 1064 and 1076 University
Avenue
SUM MARY: City Manager recommending City Council approve the proposed
modification and vacation of easement and authorize the mayor to sign
the attached agreement for the properties at 1064 and 1076 University
Avenue.
RESOLUTION Approving an Agreement Regarding Modification and
Vacation of Easements Between Adjoining Properties Owned by Chad
A. Streff& Kymberly A. Streff
SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
MVM Memo City Manager Memo
Staff Memo Staff Memo
Resolution Resolutions
E�ibit A- 2016 Easement Document Supporting Documentation
Easement Modification Agreement Supporting Documentation
Dubuque
THE CITY QF �
All-Meriea Ciry
DLT B E ; . � . �
�� � �
MaSt� Z�C� aYd t�Q Mt55ZSSZ Z zoa�•zoiz•�ai3
YP pp za��*zai�
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Modification and Vacation of Easement— 1064 and 1076 University Avenue
DATE: August 15, 2023
Planning Services Manager Wally Wernimont is recommending City Council approve the
proposed modification and vacation of easement and authorize the mayor to sign the attached
agreement for the properties at 1064 and 1076 University Avenue.
In 1993, the owner of 1076 University Avenue proposed to construct an addition to the front of
the building. Based on the zoning regulations, the addition required a variance from the Zoning
Board of Adjustment (ZBA)for setbacks as well as for parking. A public hearing was held and the
ZBA placed conditions on approval. One of the conditions was that an owner of 1076 University
Avenue secure an access and parking agreement through the adjacent Whisky River Property at
1064 University Avenue. The property owner,who owned both properties, agreed to the condition.
The City was made party to the easement agreement as a condition of approval (see attached
Exhibit A). The original agreement states in part:
"WHEREAS, the parties also agree to the following terms:
11. As this Joint Driveway and Parking Easement Agreement is being created for
the benefit of the parties and to comply with the requirements of the City of
Dubuque Zoning Ordinance and a Zoning Board of Adjustment Decision of
November 18, 1993 docketed as 89-93, this Agreement shall not be modified or
removed wifhout approval of the City of Dubuque. This restriction shall be binding
upon the heirs, successors, and assigns of the First and Second Party."
Because the property owner, who owns both 1064 and 1076 University Avenue, is requesting to
remove the parking requirement from easement which satisfied the off-street parking
requirements for 1076 University Avenue, a parking variance was needed to be granted by the
ZBA.
On July 27, 2023, the ZBA held a public hearing on the parking variance request. At the meeting,
the applicants stated their intent was to remove the parking requirement from the easement. All
property owners within 200 feet of the property were notified of the parking variance
request. During the public hearing, no one spoke in opposition to the request. After reviewing
the criteria for granting of a variance, the ZBA granted the parking variance.
With approval of the parking variance, the parking portion of the easement is unnecessary. The
property owner is now requesting modification of the parking and access easement to remove the
parking requirement. A private access easement will remain in place to provide one-way access
through the 1076 University property for the benefit of the property at 1064 University Avenue.
Since the applicant is now proposing to modify the easement agreement to remove the parking
easement language, the City is required to review the proposed modification.
I concur with the recommendation and respectfully request Mayor and City Council approval.
�
Mic el C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Wally Wernimont, Planning Services Manager
2
Dubuque
THE CITY OF �
AIFA�erisaCily
Du 8 E �.r��������,:k�:
rI � I ��r
Maste iece on the Mississi Z 2007*2012•2013
� pp zoi�*zoi9
TO: Michael C. Van Milligen, City Manager
FROM: Wally Wernimont, Planning Services Manag�
DATE: August 14, 2023
RE: Modification and Vacation of Easement — 1064 and 1076 University
Avenue
INTRODUCTION
The purpose of this memo is to provide information to the City Council on a request by
the property owner to modify an existing parking and access easement agreement for the
properties at 1064 and 1076 University Avenue.
BACKGROUND
In 1993, the owner of 1076 University Avenue proposed to construct an addition to the
front of the building. Based on the zoning regulations, the addition required a variance
from the Zoning Board of Adjustment (ZBA) for setbacks as well as for parking. A public
hearing was held and the ZBA placed conditions on approval. One of the conditions was
that an owner of 1076 University Avenue secure an access and parking agreement
through the adjacent Whisky River Property at 1064 University Avenue. The property
owner, who owned both properties, agreed to the condition.
The City was made party to the easement agreement as a condition of approval (see
attached Exhibit A). The original agreement states in part:
"WHEREAS, the parties also agree to the following terms:
11. As this Joint Driveway and Parking Easement Agreement is being
created for the benefit of the parties and to comply with the requirements of
the City of Dubuque Zoning Ordinance and a Zoning Board of Adjustment
Decision of November 18, 1993 docketed as 89-93, this Agreement shall
not be modified or removed without approval of the City of Dubuque. This
restriction shall be binding upon the heirs, successors, and assigns of the
First and Second Party."
Since the applicant is now proposing to modify the easement agreement to remove the
parking easement language, the City is required to review the proposed modification.
Modification and Vacation of Easement— 1064 and 1076 University Avenue Page 2 of 2
DISCUSSION
Because the property owner, who owns both 1064 and 1076 University Avenue, is
requesting to remove the parking requirement from easement which satisfied the off-
street parking requirements for 1076 University Avenue, a parking variance was needed
to be granted by the ZBA.
On July 27, 2023, the ZBA held a public hearing on the parking variance request. At the
meeting, the applicants stated their intent was to remove the parking requirement from
the easement. All property owners within 200 feet of the property were notified of the
parking variance request. During the public hearing, no one spoke in opposition to the
request. After reviewing the criteria for granting of a variance, the ZBA granted the
parking variance.
With approval of the parking variance, the parking portion of the easement is
unnecessary. The property owner is now requesting modification of the parking and
access easement to remove the parking requirement. A private access easement will
remain in place to provide one-way access through the 1076 University property for the
benefit of the property at 1064 University Avenue.
As stated previously, since the City was made party to the easement through the 1993
variance approval, the City must approve any modification to the easement.
RECOMMENDATION
Staff recommends the City Council approve the proposed modification and vacation of
easement and authorize the mayor to sign the attached agreement.
Thank you.
cc: Crenna Brumwell, City Attorney
Attachments
2
Prepared by Wally Wernimont City of Dubuque Planning Services 50 W 13th St Dubuque, Iowa 52001 (563)589-4210
Return to Adrienne N.Breiffelder City of Dubuque City Clerk 50 W 13111 St Dubuque, Iowa 52001 (563)589-4120
RESOLUTION NO. 264-23
APPROVING AN AGREEMENT REGARDING MODIFICATION AND VACATION OF
EASEMENTS BETWEEN ADJOINING PROPERTIES OWNED BY CHAD A. STREFF &
KYMBERLY A. STREFF
Whereas, Chad A. Streff & Kymberly A. Streff are the owners of the properties of
1064 and 1076 University Avenue also legally described as:
Lot 2 of Lot 4 of the Subdivision of Mineral Lot 80, in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements of record; and
Lot 3 of Lot 4 of the Subdivision of Mineral Lot 80, in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements of record; and
Whereas, on November 18, 1993, the City of Dubuque Zoning Board of Adjustment
granted a setback and parking variance for an addition to 1076 University Avenue; and
Whereas, the Zoning Board of Adjustment place a condition requiring the owner of
1076 University Avenue to secure an access agreement through the adjacent Whisky River
Property located at 1064 University; and
Whereas, a Joint Driveway and Parking Easement Agreement was filed December ,
21, 2016 as Instrument No. 2016-17239 that complies with the condition of the variance;
and
Whereas, the property owners of 1064 and 1076 University Avenue wish to remove
the parking portion of the easement from the Joint Driveway and Parking Easement
Agreement; and
Whereas, the agreement requires the City to approve of any modification or
removal to/of the Joint Driveway and Parking Easement Agreement; and
Whereas, on July 27, 2023, the Zoning Board of Adjustment approved a parking
variance for 1076 University that makes the parking requirements of the easement
obsolete; and
Whereas, via the attached agreement, the parties have come to terms as set forth
herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The agreement regarding modification and vacation of easements
attached hereto is hereby approved.
Section 2. The mayor is authorized and directed to sign the Agreement on
behalf of the City of Dubuque.
Passed, approved, and adopted this 21 st day of August 2023.
. Cav g , yor
ATTEST:
Trish Gleason, Assistant City Clerk
illllllllllllilllllllllllllllllllllll lllllllllllllllilllilllllllllllllllif llllli
Doc ID: 008568840005 Type: GEN
Kind: EASEMENT
Recorded: 12/21/2016 at 11:54:33 AM
Fee Amt: $27.00 Paqe i of 5
Dubuque County Iowa
John Murphy Recorder
File2O1 6-000 1 72 3 9
Prepared by: Wemer Hellmer,DAY&HELLMER,P.C.,679 Bluff Strcet,Dubuque,IA 52001;563-557-1885
Retum to: Werner Hellwer,DAY&HELI.MER,P.C.,b79 Bluff Street,Dubuque,IA 52001;563-557-1885
JOINT DRIVEWAY AND PARKING EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT made on this�day of ,�����,.,h e�e ,
2016,by and between Michael T.O'Dowd and Mary M.O'Dowd Ehlers,who are refened to in
this agreement as"First Party"and Thomas P. O'Dowd and James K. O'Dowd,referred to in
this agreement as"Second Party".
WITNESSTH:
WHEREAS,"First Party"are the owners of the following described real estate located at
1070 University Avenue,Dubuque,Iowa, legally described as:
Lot 2 of Lot 4 of the Subdivision of Mineral Lot$0, in the City of Dubuque,
Iowa,according to the recorded Plat thereof. (hereinafter referred to as"Parcel I")
WHEREAS,"Second Party"are the owners of certain real estate located at 1076
University Avenue,Dubuque,Iowa,legally described as:
Lot 3 of Lot 4 of Mineral Lot 80,City of Dubuque, Iowa, according to the
recorded Plat thereof. (hereinafter referred to as"Parcel II")
WHEREAS,First Parly grants Second Party an easernent for parking and driveway
purposes across"Parcel I". The Parties agree to use said easement for driveway and parking
purposes only.
WHEREAS,"Second Party"grants"First Party"an easement for driveway purposes
across"Parcel II"solely for purposes of egress to Nevada Street.
��7 0� �►��'x�
��
WHEREAS,the parties also agree to the following terms:
1. The driveway portion of"Parcels I and IP'shall be kept clear of non-moving vehicles
and other impediments to traffic which would prevent or unduly inhibit the ingress
and egress of the parties.
2. The parties agree to share the parking lot located on"Parcel I"for parking purposes
only.
3. Parking on"Parcel P'will be on a"first come, first serve"basis and there will be no
restrictions as to the hours either party can use said lot.
4. Parking lot and driveway maintenance for"Parcels I and II"includes,but is not
limited to, snow removal, seal coating and repair of the surface or striping of the
parking lot. Each of the parties hereto,their heirs, successors and assigns shall bear
one half(1/2)of the cost of maintaining said parking lot and driveway in a reasanably
good condition, including maintenance and reconstruction when reasonably
necessary.
5. The parties agree that no maintenance sha11 be done without consent in writing of the
other party.
6. "First Party"shall be responsible for cleaning the parking lot and driveway located on
"Parcel P'and"Second Party"shatl be responsible for cleaning the driveway located
on"Parcel II".
7. These provisions do not apply to the two(2)car spaces located behind building on
"Parcel I".
8. One(1)car space located behind the building on"Parcel II"shall be reserved for the
ups�airs rental unit of the building.
9. Parties shall be liable for any excavation work done on their respective parcels. If
such excavation work becomes necessary for either parcel,it will be the responsibility
of the owner of the pazcel requiring the excavation to replace the asphalt.
10.Notwithstanding the above provisions, either party causing darnage to said driveway
andlor parking lot easement area through negligence by the party themselves or others
for them,or on their behalf, shall be wholly responsible for any such damage
resulring from any such negligence.
11.As this Joint Driveway and Parking Easement Agreement is being created to for the
benefit of the parties and to comply with requirements of the City of Dubuque Zoning
Ordinance and a Zoning Board of Adjustment Decision of November 18, 1993
docketed as 89-93,this Agreement shall not be modified or removed without
appraval af the City of Dubuque, This restrietion shall be binding upon ti�e heirs,
successors,and assigns of the First and Secand Party.
1*I4W THERE�ORE,in consideration of$1.00 and other valuable consideration,"First
Party"does hereby grant and convey to"Second Party",and"Second Party"grants to"FirsY
Party", and all eventual owners and snccessors and assigns of"Parcels I and IP',the easement
rights and responsibilities stated abave.
This easement shall be binding on the parties,their heirs, and all successvrs in interest.
Dated this ?t4 day of,j�c��,6►� ,2016,
* ,�� _ �t , �`���.6�?�,,�
Michael T.O'Dowd Mary M 'Dowd Ehlers
`�,�--_a�`,�� (/� c� ----.,_
Thornas P.O'Dowd J K.�'Dowd
City of Dubvque
By Laura Carstens,
Plamiing Services Mana�er
STATE OF-��,�',�� )
)ss.
��COUNTY }
£hi this �S'�day of_�,�,�,C�e+� 201b,befare me,the undersigned,a Notary
Aublic in and for the State af�pe.rsonaliy appeared Micha�l T.O'Dowd,to me
known to be the identical person named in and who executed the foregoing and acirnowledged
that he executed th�same as his voiuntary act and d.
.�
Notazy Public in an for !�'�',�,�
.��"""'�. ROMINA REYES �
'�`�����=NOTary PubliC.Sfate of Texas i
::;
Z��'.._ .t��:Comm.Expires 11-17-2019 �t
'�.,;,a�,r� Notaty{D 130443371 f
STATE OF IQWA }
) ss.
DUBLJQUE COUNTY )
t3Q this�day af,��'�-� 20ib,befflre rr�e, the undeisigned, a Nvtary
Public in and for the�tat�of iowa,�crson�lly appeared Mary M.U'i�owti�hters,to me 3znawn
to be the identical person named in and who e�cecuted the foregoing and aeknowledged that s�e
execute�i;4�a;�c as her valuntary act and dee[I.
4�P�'�L� ;N�^PJ�=R�-IELLMEW ��
� : Comr�,iseionNumbar 87 __ __
_= My comrc�.�"P. tyotaiy Public in and for the S#ate af Iowa���_
,o,,..
STATF.C}F TOWA )
)ss.
DUBUQUE COUNTY )
4n this �k_ d�y of '�,u�;Q,_.) ?016,k+efore r�r�e, th�und�.rsigt�ed,a Nfltary
�'►a�lic in and fur tite Sta�e af Iuwa,persanally a�ared"Thc�mas P.4'Dowd,to me know-n to be
the identical per�on narned in and�.vho executed the foregoing and acknowledged t�at h�
execuxed the sarnc as his vc�luntary act and deed.
o��v�, N1=RkER HELLMER l,� (�
��� Comn�isaion Nu b�e�j 1�8�7�84� ------ - _ _
,ow'
• My Corr�m.Exp.R��T_ �iv�ry Yubli�in�iz�r tl�e�tate�f Yowa
�TA`l��t)h,��`--' )
�55.
�j1C2�.FU�e��l�Cov�v� j
C}r�tliis � _day of�Q�C�-�'u-i�.�201 f�,bef���m�,�e u�rsf�n�d, ��I�t�,�
i�ublic i.n and�or th�State o� ;�p�c�,,personaiiy appeared 3ames i;,C9't�or�d, to t��e kx�own
to be the id�ntical persc7n named in and wha executed the fQr�goin�and ackn�w�edged that he
excet�t�cE�he�me as his zFol�tntary aet and deed.
r
�e�"�a� ^ATHER�NE svVAFrtS _ a.._m.�. C�. _ q.
� �� :�ammiesion No.762180 �f�ta�y i'ublii sn�a;d#ar 1�2e�#�te of _.
` -�� Arfy ccx►yn Fx{�b�' S"� _ —
�
STATE OF IOWA )
) ss.
DUBUQUE COUNTY )
On this 2 r�� day of�,��.� 2016, before me,the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Laura Carstens,to me known to be the
identical person named in and who executed the foregoing and acknowledged that she executed
the same as her voluntary act and deed.
C�r�
Notary Public in and for the State of Iowa
-'��°; WVERNER NELL�IER
;e� . Commis.�io� t�umb�er
M�Gcrs sa�on p r8r9�4
�„� Ex irea �
Prepared by and Return To:Samuel M. DeGree,300 Main St.,Suite 323,Dubuque, Iowa 52001 (563)582-2000
AGREEMENT REGARDING MODIFICATION AND VACATION OF EASEMENTS
This Agreement Regarding Modification and Vacation of Easements is entered into
this _ day of , 2023 between Chad A. Streff 8i Kymberly A. Streff,
husband and wife (collectively "Streff'), and the City of Dubuque, Iowa.
Recitals
A. Streff is the owner of real estate legally described as:
Lot 2 of Lot 4 of the Subdivision of Mineral Lot 80, in the City of Dubuque,
Iowa, according to the recorded plat thereof, subject to easements of record;
("Parcel I");
B. Streff is also the owner of real estate legally described as:
Lot 3 of Lot 4 of the Subdivision of Mineral Lot 80, in the City of Dubuque,
Iowa, according to the recorded plat thereof, subject to easements of record;
("Parcel II");
C. Parcel I and Parcel II are subject to a Joint Driveway and Parking Easement
Agreement filed December 21, 2016 as Instrument No. 2016-17239 in the records of the
Dubuque County Recorder ("2016 Easement"). The 2016 Easement grants an easement over
Parcel I in favor of Parcel II for parking and driveway purposes as well as an easement over
Parcel 11 in favor of Parcel I for the purpose of egress to Nevada Street.;
D. Streff desires to modify the 2016 Easement to vacate and terminate the easement
over Parcel I in favor of Parcel II, and to modify to other terms of the agreement relating to
use and maintenance of the easement areas;
E. The 2016 Easement prohibits the modification or removal of this easement without
Page 2
the approval of the City of Dubuque.
Therefore, in consideration of the mutual terms and conditions herein, the parties
agree as follows:
1. Vacation and Termination of Easement. The easement over Parcel I in favor of
Parcel II for driveway and parking purposes is, effective as of the date of recording of this
agreement, hereby vacated and terminated and of no further force or effect. No party to
this agreement or any successor to such party in ownership of any of the real estate
described herein shall have any further right or obligation with respect to such easement.
The easement over Parcel II in favor of Parcel I for purposes of egress to Nevada street shall
remain in full force and effect.
2. Termination of Certain Agreement Terms. Paragraphs 1-10 of the 2016 Easement
are hereby stricken., removed, and terminated. Paragraph 11 of the 2016 Easement shall
remain in full force and effect.
3. New Easement Terms. The easement over parcel II in favor of Parcel I for purposes
of egress to Nevada street shall be subject to the following terms:
A. The driveway portion of Parcel I shall be kept clear of non-moving
vehicles and other impediments to traffic which would prevent or
unduly inhibit the ingress and egress of the parties.
B. Notwithstanding the foregoing provisions, either party causing damage
to said driveway easement area intentionally or through negligence by
the party themselves or others for them, or on their behalf, shall be
wholly responsible for any such damage resulting from any such
negligence or intentional damage.
4. City Approval. The City of Dubuque joins in executing this agreement for
purposes of consenting to the modification of the 2016 Easement.
5. Miscellaneous. This agreement is binding upon the parties hereto and their
successors and assigns and shall be governed by and construed under the laws of the state of
Iowa. In the event of the dispute with respect to this agreement, the prevailing party shall be
entitled to recover any costs, including reasonable attorneys' fees incurred , in connection
with such dispute.
Page 2
Chad A. Streff
Kymberly A. Streff
STATE OF IOWA, DUBUQUE COUNTY ) ss:
On this day of , 2023, before me, a Notary Public, personally appeared
CHAD A. STREFF and KYMBERLY A. STREFF, who executed the foregoing instrument and
acknowledged that they executed the same as their voluntary act and deed.
Notary Public In and For the State of
Iowa
CITY OF DUBUQUE
Brad Cavanagh
STATE OF IOWA, DUBUQUE COUNTY, ss:
On this day of (ACV-Si- , 2023, before me, the undersigned, a Notary Public in
and for said County and said Stdte, personally appeared Brad Cavanagh, as Mayor of the City of
Dubuque, Iowa, and executed the foregoing instrument, and acknowledged that they executed the
same as the voluntary act and deed of the City of Dubuque, Iowa.
o T�ISDEE LYNN'BLUE ` /56-7
�: Commission Number 842479
aw� MY Comm.Exp.9 pko).r Notary Public In and For the
State of Iowa
Page 2