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Althaus Agreement to Vacate EasementCopyrighted December 6, 2021 City of Dubuque Consent Items # 22. City Council Meeting ITEM TITLE: Althaus Agreement to Vacate Easement SUMMARY: City Manager recommending approval of an Agreement to Vacate Easement with Harry J. and Mary E. Althaus for the vacation of 48,391 square foot permanent right-of-way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, to facilitate future development of the property. SUGGESTED DISPOSITION: ATTACHMENTS: Description RESOLUTION Approving an Agreement to Vacate Easement between the City of Dubuque, Iowa and Harry J. and Mary E. Althaus Suggested Disposition: Receive and File; Adopt Resolution(s) Althaus Agreement to Vacate Easement-MVM Memo Staff Memo Resolution Agreement Area Map Type City Manager Memo Staff Memo Resolutions Supporting Documentation Supporting Documentation THE C DUjIBQTE Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Althaus Agreement to Vacate Easement DATE: November 30, 2021 Dubuque WAWca 914 ii 2007-2012.2013 2017*2019 City Engineer Gus Psihoyos recommends City Council approval of an Agreement to Vacate Easement with Harry J. and Mary E. Althaus for the vacation of 48,391 square foot permanent right-of-way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, to facilitate future development of the property. Althaus will pay the City $17,500 for the vacating and release of the easement. The agreement also includes provisions for the construction of sidewalks along the Althaus property, a pre -annexation agreement, and easements from Althaus for future City utility extensions to and along Gardner's Lane. The remaining right-of-way in Tanzanite Drive area is sufficient to accommodate existing and future utilities. I concur with the recommendation and respectfully request Mayor and City Council approval. Micl4ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Cori Burbach, Assistant City Manager Gus Psihoyos, City Engineer THE CITY OF DUB EE Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Manager FROM: Gus Psihoyos, City Engineer SUBJECT: Althaus Agreement to Vacate Easement DATE: November 24, 2021 Dubuque *America City I.F ZU07 • 2012 • 2013 INTRODUCTION This memo provides information regarding the approval of an Agreement to Vacate Easement with property Harry J. and Mary E. Althaus for the vacating of a 48,391 square foot permanent right of way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa. BACKGROUND Harry J. and Mary E. Althaus (Althaus) are the current owners of Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, along Tanzanite Drive. The City holds a 48,391 square foot permanent right of way easement that is part of Tanzanite Drive across the Althaus property as shown on the attached area map. The easement was originally granted to the City in 2001 as part of the Tanzanite Drive roadway extension project. The easement was for a proposed earthen embankment to support the roadway that was planned to be elevated above the Althaus property. Several years after the Tanzanite Drive extension project was completed the property owners filled the subject property to the road grade. This effectively negated the need for the embankment easement. As such, in 2004 the Althaus' and the City began discussing terms and conditions for the vacation of the easement to facilitate future development of the property. DISCUSSION Recently, the City and Althaus entered into an agreement to vacate the 48,391 square foot permanent right of way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa to facilitate future development of the property. Althaus will pay the City $17,500 for the vacating and release of the easement. The agreement also includes provisions for the construction of sidewalks along the Althaus property, a pre -annexation agreement, and easements from Althaus for future city utility extensions to and along Gardner's Lane. The remaining right of way in Tanzanite Drive area is sufficient to accommodate existing and future utilities. RECOMMENDATION I recommend that the City Council approve the Agreement to Vacate Easement with property Harry J. and Mary E. Althaus for the vacating of a 48,391 square foot permanent right of way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, to facilitate the future development of the property. ACTION TO BE TAKEN I respectfully request approval of the Agreement to Vacate Easement with Harry J. and Mary E. Althaus for the vacating of a 48,391 square foot permanent right of way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa through the adoption of the enclosed resolution. Prepared by: Nate Kieffer, PE/PLS 2 Prepared by: Nate Kieffer. City of Dubuque 50 W. 13'" Street Dubuque IA 52001 (563) 589-4270 Retum to: Nate Kieffer. City of Dubuque 50 W. 13'" Street Dubuque IA 52001 (563) 589-4270 RESOLUTION NO.415-21 APPROVING AN AGREEMENT TO VACATE EASEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND HARRY J. AND MARY E. ALTHAUS Whereas, the City of Dubuque is party to an Agreement to Vacate Easement with Harry J. and Mary E. Althaus (Althaus) for the vacation of a 48,391 square foot permanent right of way easement that is part of Tanzanite Drive across Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, as shown on the Acquisition Plat recorded as Instrument Number 12718-01 in the Dubuque County Recorder's Office; and Whereas, the City has determined that the remaining right of way area in Tanzanite Drive is sufficient to accommodate existing and future utilities; and Whereas, Althaus has executed the Agreement to Vacate Easement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Agreement to Vacate Easement attached hereto is hereby approved. Section 2. The Mayor is authorized and directed to execute the Agreement to Vacate Easement on behalf of the City of Dubuque PASSED, APPROVED, AND ADOPTED this 6th day of December, 2021. r ly, Or, Roy D. B I, Mayor ATTEST: Grd/L�cfir.,n-e ;7 Adrienne N. Breitfelder, City Clerk AGREEMENT TO VACATE EASEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA AND HARRY J. AND MARY E. ALTHAUS �ecem�ner n� This Agreement to Vacate an Easement is made and entered into this )T° day of _ E` ��� , 2021, by and between the City of Dubuque, Iowa (City) and Harry J. and Mary E. Althaus (collectively, Althaus). WHEREAS, Althaus owns property known as Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa (Parcel Identification Number (PIN) 1002452009) and shown in red on Exhibit 1; and WHEREAS, City has a 48,391 square foot permanent easement (Easement) it acquired for Tanzanite Drive in 2001. The Easement is depicted in red hashmarks on Exhibit 2 and again in the Acquisition Plat on Exhibit 3 and is located on the Althaus property with PIN 1002452009; and WHEREAS, in addition to the Easement, City also owns Right of Way (ROW) in fee simple that runs adjacent to the Easement and along Tanzanite Drive; and WHEREAS, Althaus wishes that the City vacate the Easement. THEREFORE, for good and valuable consideration of the mutual covenants, representations, and agreements contained herein, City and Althaus agree as follows: SECTION 1. VACATION OF EASEMENT. The City will take all action as may be necessary or appropriate to vacate the Easement with the intent that once vacated, all right, interest and title once held by the City will revert to Althaus. The City will vacate the Easement within sixty (60) days of the Closing Date. SECTION 2. PURCHASE PRICE. The Purchase Price of $17,500.00 for vacation of the easement will be paid in full at the closing date. SECTION 3. CLOSING. If the parties timely perform allbligations, and all cur contingencies are met or waived, the closing will ocon or 4f t—3�,-2021 (the 1 Closing Date), or such other date as the parties may agree in writing.In 19 SECTION 4. TIME IS OF THE ESSENCE. Time is of the essence in this contract. SECTION 5. REMEDIES OF THE PARTIES. The sole remedy of the parties in the event of default is for breach of contract. Judgment for costs and attorney fees may be as permitted by law. MAQ11202020 SECTION 6. TIME FOR ACCEPTANCE. If this Agreement is not executed by the w �� parties on or before ' 1, 2021, it will be void. �n q December 7 SECTION 7. SIDEWALKS. 7.1 When any contiguous property is developed or public sidewalk is installed at adjacent properties, Althaus or Althaus's successors of ownership will install a public sidewalk along Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, PIN 1002452009, at Althaus's expense. The public sidewalk installed by Althaus must conform to City standards for public sidewalks. 7.2 When the City designs and improves any of the infrastructure abutting Lot 2 of Alt's Subdivision in Dubuque County, Iowa, PIN 1002452009, to include a public sidewalk, Althaus or Althaus's successors of ownership will install a public sidewalk that conforms to City standards for public sidewalks. 7.3 At any such future time when the City Council or City Manager directs installation of public sidewalks at Lot 2 of Alt's Subdivision, Plat 2, in Dubuque County, Iowa, PIN 1002452009, Althaus or Althaus's successors of ownership will install a public sidewalk that conforms with City standards for public sidewalks at Althaus's expense. SECTION 8. ANNEXATION. 8.1 Althaus will execute and submit to the City at Closing pre -annexation documents for a 7.7-acre parcel with PIN 1002452006 and shown in Exhibit 4. j 8.2 Althaus will execute and submit to the City at Closing pre -annexation documents for a-26-acre parcel with PIN 1002452009 and shown in Exhibit 1 in which t e Easement lies. 3.0 (f,PQ acrCS ,, AN4 Ra9eweN-f oc,'VAJIY SECTION 9. POSSIBLE FUTURE EASEMENT. 9.1 Althaus's former home is locally known as 17236 Gardners Lane, Dubuque, Iowa 52001 with PIN 1002452005 and shown in Exhibit 5. If at some future date, City needs a utility easement through any of the parcels 1002452006, or 1002452009; a utility easement through any combination of the parcels 1002452006, or 1002452009; or an easement through all of the parcels 1002452006, and 1002452009; Althaus will grant such easement to the City at no cost to the City and in a location mutually agreed to by Althaus and the City. However, Althaus will have two points of access off of Tanzanite Drive, including ingress and egress if needed, through this possible future easement. Parcel 1002452005 is excluded from this Section 9.1. 9.2 All access points off of Tanzanite Drive described in section 9.1 above must conform to current (at the time such access points are constructed) City and SUDAS standards for spacing and sight distance. E SECTION 10. WAIVER. Failure to promptly assert rights herein does not constitute a waiver of such rights or a waiver of any existing or subsequent default. SECTION 11. NOTICE. Any notice under this Agreement must be in writing and be deemed served when it is delivered by personal delivery or mailed by certified mail, addressed to the parties at the following addresses: Harry J. and Mary E. Althaus 39736 Arrow Drive Bellevue, IA 52031 City of Dubuque Attn: Denise Ihrig and Gus Psihoyos 50 West 131h Street Dubuque, Iowa 52001 SECTION 12. NO REAL ESTATE AGENT OR BROKER. Neither party has used the service of a real estate agent or broker in connection with this transaction. SECTION 13. OTHER PROVISIONS. 13.1 City Council Approval. This Agreement is subject to final approval by the City Council of the city of Dubuque, Iowa in its sole discretion. If the City Council of the city of Dubuque does not approve this Agreement, the Agreement becomes automatically void and neither party is bound by the terms and conditions herein. 13.2 Governing Law. This Agreement is governed by and construed in accordance with the laws of the state of Iowa. 13.3 Successors. Heirs. and Assigns. This Agreement binds the parties' successors, heirs, and assigns. 13.4 Entire Agreement. This Agreement contains the entire agreement between the parties and may not be modified, amended, or waived unless mutually agreed upon by the parties and in writing. 13.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which will be deemed one and the same instrument. 13.6 Paragraphs and Construction. Paragraph headings are for convenience of reference and do not limit or affect the meaning of this Agreement. Words and phrases herein should be construed as in the singular or plural number, and as masculine, feminine, or neutral gender according to text. 3 13.7 Severability. If any covenant, agreement, provision, term, or condition of this Agreement is deemed invalid or unenforceable, the remaining covenants, agreements, provisions, terms, or conditions of this Agreement will remain valid and enforceable to the fullest extent permitted by law. SECTION 14. DISPUTE RESOLUTION. 14.1 City and Althaus will attempt in good faith to resolve any dispute or claim arising out of or in relation to this Agreement through negotiations between a designated individual from each of the parties with authority to settle the relevant dispute. If the dispute cannot be settled amicably within thirty (30) days from the date on which either party has served written notice of dispute on the other, then the remaining provisions of this section will apply. 14.2 If a dispute or claim arising out of or in relation to this Agreement of the performance of any of the terms of this Agreement cannot be resolved by negotiations between the parties, such matter or matters will be resolved through binding arbitration, applying the following rules and procedures: (A) Arbitration will be held in Dubuque, Iowa; (B) The arbitration will be heard by one (1) arbitrator mutually selected by the parties; and (C) The arbitration will be heard under the rules of the American Arbitration Association (AAA). CITY OF DUBUQUE, IOWA HARRY J. AND MARY E. ALTHAUS By: k 4,z By: '� Roy D. BuolPMayor Harry J. Alth s Attest: By: 44cPn7te /l Az*� Adrienne Breitfelder, City Clerk On this 7rI day of Z)azx .bc� , 2021, before me, a Notary Public in and for said state, personally appeared Roy D. Buol and Adrienne Breitfelder known to me to be the person(s) named in and who executed the foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. 12 �lSH L. GLEASON "a nnin�sslonNumber719986 4:6 nv Commission Expires I._...__ I a • I3.23 Pm a� Notaryublic in the State of Iowa My Commission expires !cam 13 a3 On this 5' day of OC7190E/4 2021, before me, a Notary Public in and for said state personally appeared Harry J. and Mary E. Althaus r o�y� n t m��e��to beAlie person(s) named in and who executed the foregoing instrum�n aW Vkkneci'ge t 'at they executed the same as their voluntary act and deed. //,( A 7 , Notary Publi the State o�Qvy� ,�OWA =J,E2500� My Commis n expires IRE$ 61 EXHIBIT 1 PIN 1002452009 r a I ■ MAQ 11202020 a d i EXHIBIT 2 PERMANENT EASEMENT AND RIGHT OF WAY MAQ 11202020 1 IWWI Ir MAQ 11202020 EXHIBIT 3 ACQUISITION PLAT SHOWING PERMANENT EASEMENT AND RIGHT OF WAY MAQ11202020 12718-41 271801 2001 AUG 10 PH 1120 ACQUISITION PLAT COUNTY DUBUQUE PROJECT NO. TANZANITE DR, EXTENSION PARCEL NO,10-02-452-004 SECTION 2 TOWNSHIP 89N RANGE 2E RIGHT OF WAY: FEE 76113 S.F. EASEMENT_48391 -S.F. (PERM.) 21039 S,F.(TEMP.) ACQUIRED FROM HARRY J, & MARY E. ALTHAUS LEGAL DESCRIPTION LOT 1-2-27-SEC. 2 T89N, R2E OF THE 5TH P.M. 16 i0 17 29 OM1 NE-NE-9EC. 11 EMERALD ACRES NO. 2 NO2.06'C' @y� I _ 60, 01 SG2'D6x "E ww (APLINE PARK) LOT 1-2-27 SEC. 2, T89N, R2E OF THE 57H P.M, PERMANENT EASEMENT 48391 S.F. C-1 R-1970,00 L-263,43 DELTA-7R2'14" T-126.69 CHID BRG-667'27'44"E CH-253,26 TEMPORARY EASEMENT 21039 S.F. LOT 1-2-27 SEC. 2, T89N, R2E OF THE 5TH P.M. TANZANITE DR, IIW ENGINEERS & SURVEYORS, INC, ''I I L POINT OF BEGINNING L Y1 (ACQ¢¢UISTION) 4 I ACQUIS11ION AREA \ \ 1 £ 76113 S.F. N 1 \ W �\ b EDT 1-1-11 1/2- NE -SEC. 2, T09N, CT t31EW0�1 R2E OF THE 5TH P.M. \ 1QJ (ALPINE PARK) \ I � 1 1 W W f / Ic LT 2-2-27 I T89N, R2E OF THE 5TH I P.M. 0 100 200 SCALE: I"-100' LEGEND ■ FWND 5/6. IRON ROD W/ CAP N0. AS NOTED i FOUND I" IRON PIPE D SET 5/0" IRON ROD W/ ORANGE CAP NO, 15352 ( ) RECOND DINENSAN I DATE PREPARED: 12-5-00 UY CERDEY TNAT IE $URt2Y WAS DONE AND MIS PLAT MADE NOE Y ME ON UT O[ NR NY OIRECT PERSONAL SUPEANSION A. MATI AM AI,ICENSEO LSURKYOEA UNOER MIONAS J. Sw ME LAWS CE DE STAR aIAND 0., - OS1[R - FOR HIM ENCPIEfR9 AND EUPYEYORS. P.C. =_ r l5 15352 �ti�%, - J'� >` /''i•0�f0 „�" MONAS J. OSRIV GATE ",.,5 J?``ca UEENM N0. 15152 NY UEENSE RENEWAL DATE IS 12731/2DM „ i1�NN�OMA�.. PAIRS COwI[0 BY MI5 CEATTICARON I MAQ11202020 Sheet 3 of 3 COUNTY AUDITOR Dubuque, Iowa y( , 200 The foregoing plat wa entered of record in the office of the Dubuque County Auditor this T D dayofwb20O1 County Auditor of Dubuque County, Iowa COUNTY ASSESSOR Dubuque, Iowa V V5/ /0 206( 111e foreghng plat was a tcred of record in the office of the Dubuque County Assessor this _dayof�,200(. County Assess • ol'Dub unty, Iowa 12 Sheet 2 of 3 SURVEYOR'S CL+RTIFICATE 1, Thomas J. Oster, hereby certify that I am a Licensed Land Surveyor in the State of Iowa, and that the following tract of real estate was surveyed and platted by me or under my direct personal supervision, To Wit: A part of Lot I of 2 of 27, Section 2, Township 89 North, Range 2 East of the Fifth Principal Meridian, Dubuque County, Iowa, more particularly described as follows: Commencing at the Southeast corner of aforementioned Lot I of 2 of 27, said point being the point of beginning; Thence South 88 degrees 57 minutes 11 seconds West, 698.57 feet along the South line of aforementioned Lot I of 2 of 27 to a point; Thence North 60 degrees 35 minutes 01 seconds West, 283,12 feet along the line of aforementioned I.ot I of 2 of 27 to a point; Thence South 83 degrees 46 minutes 37 seconds East, 342.32 feet to a point of curvature; Thence South 87 degrees 27 minutes 44 seconds East, 253.25 feet along the chord of a 1970,00 foot radius curve concave northeasterly to a point of tangency; Thence North 88 degrees 51 minutes 09 seconds East, 348.70 feet to a point on the East line of aforementioned Lot 1 of 2 of 27; Thence South 02 degrees 06 minutes 48 seconds East, 85,00 feet along the East line of aforementioned Lot 1 of 2 of 27 to the point of begimning. The above described parcel was surveyed and platted for rlght-of-way purposes for the extension of Tanzanite Drive; the plat of which is attached hereto and made a part of this certificate; contains 76,113 square feet, more or less, and is subject to casements of record and not of record, All monuments were Placed or shall be placed within one year from the date this plat Is recorded. t hereby certify that this land surveying document was prepared and 'o related survey work was performed by me or under my direct pers o" W4 n,, State of supervision and that I am a duly licensed Land Surveyor under the laws of Iowa, _ 1110NA5 J. _ °srea 'y - FOR IIW ENGINEERS AND SURVEYORS, P,C, 15352 ° ` ~� AN 11,,, Thomas J, Oster Date License Number 15352 SEAL My license renewal date is December 31, 2001 Pages or sheets covered by this seal: Surveyor's Certificate Only OWNER'S CONSENT Tl�t� Iowa © , 20 0/ The foregoing acquisition plat, being a part of Lot I of 2 of 27, Section 2, ownship 89 North Range 2 East of the Fifth Principal Meridian, Dubuque County, Iowa, is made with the free consent and in accordance with the desires of the undersigned owners a proprietors of said real estate. State oflowa ) Ey' ss: County of ) On this, -el day of trq� , A.D. 20�, before me, a Notary Public in and for said state, personally appeared � Gr E to me known to be Ore persons Want in and who executed the for oing instrument�a acknowledged that they executed the same as their voluntary act an d. Notary Pub is in the State of Iowa cam.....�CHum6eNt88884 My Commission Expires 7 p X ar C°mmISAIDA Erplre42�17 13 EXHIBIT 4 PIN 1002452006 MAQ11202020 ArcG IS Web Map or M tip- {_ ke �• r IF •'t 10 1/31/2020 10:45:18 AM ❑ Public Land Survey Townships ❑ Parcels t_J County Boundary MAQ 11202020 1:2, 000 0 0.01 0.03 0.05 mi �I I ITI I I� 0 0.02 0,04 0.08 km Ed., Inc., Duquque County, Iowa Wk AppEuilderferArcGIS © Dubuque County CIS EXHIBIT 5 PIN 1002452005 MAQ 11202020 ArcG IS Web Map N 2/3/2020 4:09:07 PM ❑ Public Land Survey Townships ❑ Parcels County Boundary MAQ 11202020 "It a 1:2, 000 0 0.01 0.03 0.05 mi �I I ITI I I� 0 0.02 0,04 0.08 km Ed, , Inc., Duquque County, Iowa Wk AppEuilderfcrArcG IS © Dubuque County GIS THE CTIY OF DUB E Masterpiece on the Mississippi Insert Title Insert Subtitle DAGIS;� nLeuquE AREA —G RA>uic INFERHATioH S-11 .. _... _..._..._.. + W C9 95 47 DISCLAIMER: This Information was compiled using the Dubuque area Geographic Information System (DAGIS), which includes data created by both the City of Dubuque and Dubuque County. It is understood that, while the City of Dubuque and participating agencies utllized the Irmost current and a«u ate information available, DAGIS and s su ppuers do not warrant the accuracy or currency of the Information or data contained herein. The City and participating agencies shall not be held liable for any direct, Indirect, incidental, nsequential, punitive, or special damages, whether foreseeable or uunforeseeable, arls Ing out of the authorized or unauthorized use of this data or the inability to use this data or out of any breach of warranty whatsoever. 1 inch = 100 feet 100 50 0 100 Feet N Map Prepared by: City of Dubuque W E Engineering Division 50 West 13th Street Dubuque, Iowa 52001 Phone: (563) 589-4270 S Fax: (563) 589-4205