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Vacating Petition of Pine Street SHUTTLEWORTH & INGERSOLL, P.L.C. ATTORNEYS AT LAW Established 1853 115 3RD STREET S.E., SUITE 500 P.O. BOX 2107 CEDAR RAPIDS, IOWA 52406-2107 JAMES C. NEMMERS MICHAEL O. McDERMOTT JOHN M. BICKEL ROBERT D. HOUGHTON RICHARD S. FRY RICHARD C. GARBERSON GARY J. STREIT CARROLLJ.REASONER STEVEN J. PACE GLENN L. JOHNSON THOMAS P. PEFFER DENNIS J. McMENIMEN KEVIN H. COLLINS WILLIAM P. PROWELL DIANE KUTZKO MARK L. ZAIGER DOUGLAS R. OELSCHLAEGER WESLEY B. HUlSINGA DEAN R. EINCK LINDA M. KIRSCH CONSTANCE M. AL T WILLIAM S. HOCHSTETLER KURT L. KRA TOVIL BRIAN D. BERGSTROM GILDA L. BOYER DEAN D. CARRINGTON NANCY J. PENNER KEVIN J. CASTER THERESA C. DAVIS DAVID T. HAYES SARAH J. GAYER TELEPHONE: (319) 365-9461 FACSIMILE: (319) 365-8443 WEBSITE: shuttleworthlaw.com V.c. SHUTTLEWORTH (1900-1965) T.M. INGERSOLL (l902-1972) May 5, 2000 Honorable Mayor and City Council of Dubuque 50 W. 13th St. Dubuque, IA 52001 Re: Vacating the West 17 Feet of Pine Street Dear Mayor and Council Members: LAURIE L. DAWLEY JENNIFER R. CLARK DANA L. OXLEY DOUGLAS J. STILWELL REGISTERED PATENT LAWYERS JAMES C. NEMMERS GLENN 1.. JOHNSON DOUGLAS J. STILWELL COUNSEL JOAN LIPSKY LAURIE BERGREN OF COUNSEL THOMAS M. COLLINS WILLIAM R. SHUlTLEWORTH ~, 0 \-..,,) 0 ;=+: :'1: ::JJ 0'<, ~:;". c.: -...:... r-n r""i~ I C"J r '" co '11 _,......1 " C C ?;'" ~? m .~ () -,- ,>1 5;; _....~ co 0 o' CD U1 --I We represent Sadler Power Train, Inc., an Iowa corporation with its principal place of business in Cedar Rapids, Iowa. Recently, Sadler Power Train acquired the following described parcel of Dubuque real estate: Lot 190, Lot 191, Lot 191A, Lot 212, Lot 213, the East 35 feet of Lot 214, the East 15 feet of Lot 215, and the East 15 feet of Lot 216, all in East Dubuque Addition, in the City of Dubuque, Iowa, according to the recorded plat thereof, subject to easements of record. A sketch of the above-described real estate as well as the West 17 feet of Pine Street is attached for your reference. The above-described real estate is benefited by Ordinance No. 47-90, a copy of which is attached hereto. This Ordinance was filed on February 10, 2000, in Book 1443, Page 2000. This ordinance grants the owner of the above-described real estate the revocable permit and authority to construct and maintain an eight-foot high chain link fence along the North, South, and Easterly boundaries of the Westerly 17 feet of Pine SHUTTLEWORTH & INGERSOLL, P.L.e. Honorable Mayor and City Council of Dubuque May 5, 2000 Page 2 Street between 14th and 15th Streets in Dubuque, Iowa, as well as grants the right of said owner to use the land enclosed by said fence. Pursuant to the Ordinance, Sadler Power Train uses the fenced-in area of Pine Street to park customers' vehicles while awaiting service. Prior to Sadler Power Train's purchase of the above-described real estate, the prior titleholder, Donald J. Herbst, sold the West 20 feet of the East 35 feet of Lots 215 and 216 to the Department of Corrections as well as granted to the Department of Corrections an easement for ingress and egress across the East 15 feet of Lots 215 and 216. At the time of Sadler Power Train's purchase of the above-described real estate, the entire Easterly 35 feet of Lots 215 and 216 were fenced in and connected to the fence around the periphery of the West 17 feet of Pine Street. The entire fenced -in area was used by Donald Herbst. Shortly after Sadler Power Train purchased the above-described real estate from Donald Herbst, the Department of Corrections asked Sadler to remove the fence on the West 20 feet of the East 35 feet of Lots 215 and 216. The Department of Corrections is using this real estate to expand its parking lot. Due to the easement in favor of the Department of Corrections across the East 15 feet of Lots 215 and 216, Sadler is unable to fence in that area. Sadler Power Train is in need of additional property to park its customers' vehicles while awaiting service and would like to purchase the West 17 feet of Pine Street from the City of Dubuque. For these reasons, Sadler Power Train requests that the City of Dubuque vacate the West 17 feet of Pine Street. If you have any questions or need additional information, please do not hesitate to contact me. Thank you for your attention to this matter. Z~~ LLD:dc - Encl. cc: John Sadler -87- Filed February 18Rll I~R& NO. 47-90 1{43-2,OOO AN ORDINANCE AUTHORIZING Donald J. Herbst TO CONSTRUCT An eiaht foot hiah chain link. fence alono the North. South and Easterlv boundaries of the Westerly 17 feet of Pine Street between 14th & 15th Streets in Dubuque. Iowa. HOW lHEREFORE, BE IT ORDAINEO BY lllE CITY COUHCIL OF lllE CITY OF OUBUQUE, IOWA: Section le That .Donald J. Herbst as owners of the prl!nises known as 14th & flm Strpp.t<;; DUDuque. Iowa, anQ legally QescMoed as Lots 1901 1Q1 2121 213 and the alley d vidin s od lots and the Easterl 35 fleet or Lots 212 c:13 214. Zltl and 216 in East Dubuaue Addition. in the itv of Ou uaue. owa be and they are hereoy granted the revocable permit and authority to con- struct and maintain eicht foot hioh chain link. fence and land enclosed by said fence under the terms and conditions set forth in this Ordinancee Section 2. That such construction shall be done in accordance with plans heretofore subllllitted by permittees and approvetl by the City Manager. under the supervision and direction of the City Manager. and 1n accordance with all applicable state and federal laws and regulations. and the Ordinances of the Ci ty of Dubuque. Section 3. That the pennfssion herein granted is expressly conditioned on pennittees' agreement to: a) Assume any and all liability for damages to persons or prop- erty which lIli.y result from the existence. location, instal- lation. construction or maintenance of said eiC/ht foot hioh chain link. fence and the land enclosed bv said fence b) Pay on behalf of the City of Dubuque, all sums which the City of Dubuque shall become obligated to pay by reason of the l1abl1 i ty imposed upon the Ci ty of Dubuque for damages . I of any kind resulting fran the location, installation, existence, construction or maintenance of said. pi~ht font hiah chain link fence and the land enclosed by sald Te ce sust.ained by any person or persons, caused by accldent or otherwise to defend at its own expense and on behalf of said City any claim against the City of Dubuque arising out of the location, installation, existence, construction or maintenance of said eight foot high chain link fence and the land enclosed bv sald fence and to pay reasonable attorney fees thererore; and c) Indemn ify, defend and hold the City of Dubuque free and harmless from any and all claims, loss, liability and ex- pense for death and/or injuries to third persons or damages to' property of thi rd persons, or for damage to any property of the City of Dubuque which may occur as a resu1 t of or in connection with the location, installation, construction, -maintenance and repair of the facility, work or improvement permitted herein. Section 4. That the pennission herein granted is expressly conditioned upon permi ttees' further agreement that should the ri ght and pri v11 ege herei n granted be rescinded or revoked by the City Council, peMtl1ttees. or their successors in interest, as owners of the abutting property, shall within ten (10) days after receipt of written notice from the City Manager, so to do, at their own expense, remove said eioht foot hiah fence and in the event of their failure so to do, the City of Dubuque shall be authorized to renove said eight foot high fence at permittees' expense and dlspose or the same, and the pennittee Shall have no claim against the City or its agents for damages resulting from the removal of said eight foot high fence Section 5. That pennittees convenant and agree that the revocable pennit herein granted does not constitute an approval of the design, erection, loca- tion, construction, repair or maintenance of said facility and said pennit- tees hereby convenant and agree not to assert such claim or defense against the City of Dubuque in the event of claim asserted for death, personal in- juries and/or property damage against the permittees arising out of or in any way connected with the location, installation, construction, design, repair and maintenance of the facility herein permitted, Sect10n 6. Thi 5 Ord; nance shall become effective and the rights here- under accrue to Donald J. Herbst when thi 5 Ordi nance has been adopted by the Ci ty Counci 1 and the terms and (69) Sect10n 7. That the City Cl erk. be and she is authorized and d1 rected to file ll,t penaittees' IllXpense a copy of this Ordinance in the office of the Reco~r in and. for Dubuque County. Iowa, conditions' thereof accepted. by pennittees by acce~tance endol"'Sed on this Ck'di nance. Passed, approved and adopted tn'! 5 ~ day of May . 1990. 9~o/ ATTEST: 7t ()~ C1ty~"' ACCEPTANCE OF ORO[NANCE NO. '17-'1.' The undersigned having read and being flllllf11ar with the terms and conditions of Ordinance No~ 77- 90 hereby, for them- selves, their successors or assigns, as owners of the abutting property t accept the Sem! and agree to be bound by the condi- tions and agreements therein contained to be performed by permittees. Oated: 1'1/1 Y ;J;1 y.;. 9 D BY:V?C~'t(/! ~ r .L_ ~J 1 Property CMner ao~~'-tJ:T. Hb',\"dsr -- BY: [u, L J II' !Ill :n ~r (70) . ~ }./I )~ L.- /' ,/ 5 J /It!'l r I i z- i 17;;,'l I ' .Iv , , , .J tI'l :-- Jtj , "'-- '\ ~ ... ~ ~ ~ "...., ~ "/ \ >... L en'- /I' ff (!) J' ~ -{f\ '-b " , - i .... t L...r 18 -;> ,,' I" '-- /1 '1 4';_" ....,.__.. '" r "'-" 1 ---. . Lor J'fD :J. loco' L...'- l<f f 001 / r ..- " -=:::..:- - - :2,,1 ~ ~ " I\.. 'l' J '-I ~ ~' ~ 1 .. .- Owned by John Sadler and Nathan Sadler City of Dubuque, Ordinance 47-90 to fence and use land W 17' of Pine St. Owned by Correctional Services W 20' of E 35' of Lots 215 and 216 tJ . ,!S II-{ kI .<;t' 0 ~ I.' ~ ,,' P,"" u1''( ~" I,' vJ \ fI. 0 "' o ~. ..I ft"" > -'-"":-'- 1 VI> J,.,," 2:1.1 ,~ I ilJ ,,~.J t....:f'2./L. J>l ,,- LtTr-.z./ ) WIo,;,1 ,L.,,-rl.q' I.u ~~' J"r;1J,3 Sl 3.>-' ..... / 7 J '-{ T If s- / - ,