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HomeMy WebLinkAboutA017 - Court Documents for City of Ames vs. Hunziker, Allen, Smith, and Western Surety Company - at:9 a,� 3E,"v� IN THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY ��;L� CfT1'( ER{t MY OF Air ES,joriA THE CITY OF AMES, IOWA, * Plaintiff, * CASE NO. * VS. * ERBEN A. HUNZIKER; FRANK W. * DIRECTIONS FOR SERVICE "BILL" ALLEN; GERALD E. SMITH; AND WESTERN SURETY COMPANY, * Defendants. TO: John P. Stark, Sheriff Story County Courthouse Nevada, Iowa 50201 SERVE: Erben A. Hunziker Gerald E. Smith 3012 Briggs Circle 2127 Coneflower Court Ames, Iowa 50010 Ames, Iowa 50010 Frank W. "Bill" Allen John Langeland 3912 Stonebrooke Circle Registered Agent for Ames, -Iowa 50010 Western Surety Company 215 Duff Avenue Ames, Iowa 50010 ON COMPLETION OF SERVICE NOTIFY: John R. Klaus City Attorney Municipal Building 5th & Kellogg Ames, Iowa 50010 (515) 239-5146 NAME AND SIGNATURE OF' ATTORNEY: DEPOSIT FOR COST OF SERVICE Deposit Waived Deposit for $ required and receipt thereof acknowledged. IN THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY THE CITY OF AMES, IOWA, * Plaintiff, * CASE NO. * vs. * ERBEN A. HUNZIKER; FRANK W. "BILL" ALLEN; GERALD E. SMITH; AND WESTERN SURETY COMPANY, * ORIGINAL NOTICE * Defendants. TO THE ABOVE NAMED DEFENDANTS: You are hereby notified that there is now on file in the office of the Clerk of the above county, a Petition in the above entitled action, a copy of which Petition is attached hereto. The Plaintiff' s attorney is John R. Klaus, City Attorney for the City of Ames, Iowa, whose address is Ames City 'Hall , 5th & Kellogg, Ames, Iowa 50010. You are further"' notified that unless, within 20 days after service of this Original Notice upon you, you serve, and within a reasonable time thereafter file, a written special appearance, motion or answer, in the Iowa District Court for Story County, at the Courthouse in Nevada, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. Clerk of Court County Courthouse IN THE IOWA DISTRICT COURT FOR STORY COUNTY THE CITY OF AMES, IOWA, Plaintiff, Case No. VS. ERBEN A. HUNZIKER; FRANK W. "BILL" ALLEN; GERALD E. SMITH; PETITION FOR DECLARATORY AND WESTERN SURETY COMPANY, JUDGMENT, AND OTHER RELIEF Defendants. COMES NOW the Plaintiff, City of Ames, and for cause of action against the Defendants, states and says: DIVISION I. 1. Section 409. 14, Code of Iowa, states that: "No county, recorder shall hereafter file or record, nor permit to be filed or recorded, any plat purporting to lay out or subdivide any tract of land into lots and • blocks within any city having a population by the latest federal census of twenty-five thousand or over . . . unless such plat has been first filed with and approved by the Council of such city . . . " 2. Section 409.5, Code of Iowa, states that: "The Council may require . . . the installation of side- walks, paving, sewers, water, gas, and electric utilities before the plat is approved. " 3. The City of Ames has a population of more than 25,000 by the latest federal census. 4. Section 23.25(1) of the Municipal Code of the City of Ames, Iowa, states: "Before a final plot will be approved and accepted, the City shall require the owner and subdivider of the land being platted to make adequate provision for the disposal of sanitary sewage from the platted area with due regard being given to present or reasonably foreseeable needs of the entire area shown in the conceptual development plan. There shall be constructed, at the owner' s and subdivid- er' s expense, a sanitary sewer system including all necessary pumping stations, pumping equipment, manholes, and other necessary or desirable appurtenances to provide for the discharge of sanitary sewage from all lots or parcels of land within the platted area to a connection with the City' s sanitary sewers. The sanitary sewer system shall be constructed in accordance with the plans and specifications of the City and at the sewer grades as established by the City. The installation of the sewers shall be under the supervision and inspection of the department of public works, and the subdivider may be required to pay a reasonable charge for the engineering and inspection service. The above mentioned facilities for the collection and disposal of sanitary sewage from the platted area shall , upon final approval and accep- tance by the City, become the property of the City. " 5. Section 21.7(1) of the Ames Municipal Code states: "Tapping the main sewer. Tapping the main sewer by any means other than machine-drilling a round, smooth hole in' the main sewer pipe is prohibited. No hand methods are allowed. --I.f the sewer pipe is cracked or otherwise damaged during drilling, the sewer pipe shall be replaced by the plumber holding the permit for the job. Use of a ' concrete encasement. alone, without an acceptable sleeve or anchor arrangement as a method for repair or re-en- forcement of the sewer pipe is prohibited. " 6. The Defendants Erben A. Hunziker and .Frank W. "Bill" Allen, as Stonebrooke Partners, applied to the Ames City Council for approval of a final plat of a subdivision named Stonebrooke Second Addition, and tendered to the City certain sanitary sewer installations pertaining thereto. 7. The Ames City Council accepted the sanitary sewers for Stonebrooke Second Addition by Resolution 88-28 on February 2, 1988. 8. The Ames City Council approved the final plat for Stonebrooke Second Addition by Resolution 88-145 on May 10, 1988. 9. The final plat of Stonebrooke Second Addition was filed with the Story County Recorder by E. A. Hunziker and Frank W. Allen, as Stonebrooke Partners, on July 13, 1988. 10. The sanitary sewer system constructed for Stonebrooke Second Addition was inspected by the Public Works Department of the City of Ames on September 7, 1988 by passing a television camera through the sewer, and it was then observed that tapping of the main sewer had been done by means other than machine-drilling a round, smooth hole in the main sewer pipe. It appeared that rough, rectangular holes had been cut by hand. 11. The hand sawed rectangular taps in the main sewer are not in accordance with the City of Ames specifications for the sewers required for approval of a subdivision plat. 12. The said , sewer taps were made by Gerald E. Smith, a plumber li- censed by the City of Ames. 13. The hand sawed rectangular taps will leak where the "corners" of the hole are not covered by the circular flange of the connection fitting. 14. Some uncovered corners as described above have been observed. 15. It is necessary to make a more thorough television inspection and then repair the uncovered corner by piping "grout" into those spaces. 16. The exact cost of such further inspection, and the repairs that should be made at the same time is not known, but it will be more than $5,000.00. 17. On June 29, 1989, representatives of the City of Ames met with Frank W. Allen and demanded that E. A. Hunziker and Frank W. Allen, as the Stonebrooke Partners and developers of the subdivision for which the sewer was constructed, pay the aforesaid costs of inspection and repair, which demand was refused. WHEREFORE, it is prayed that the Defendants Erben A. Hunziker and Frank W. Allen be declared jointly and severally liable to the City of Ames for the costs of inspecting and repairing the aforesaid sewer taps, and that the Plaintiff have judgment for costs. DIVISION II. 1. The allegations of paragraphs 1 through 17 of Division I are hereby realleged as if fully set out. 2. The Defendant Gerald E. Smith is licensed as a master plumber by the City of Ames, Iowa. 3. On December 28, 1989, a written demand was made on Gerald E. Smith, that he pay the cost of inspection and repair of the aforesaid sewer taps, which he refused to do. 4. Section 21.36 of the Ames Municipal Code states: f BOND OF MASTER PLUMBER. Before a master plumber' s li- cense shall be issued the applicant shall file with the city clerk a bond in the sum of ten thousand dollars ($10,000.00), to save the city harmless on account of any and all failures on the part of said applicant to comply in all particulars with the ordinances of the city, and the rules and regulations of the local and state boards of health. Where two (2) or more persons in the same firm or corporation are licensed as master plumbers only one bond as requried herein need be filed for such firm or corporation. 5. Gerald E. Smith has executed and filed with the City of Ames a bond, secured by Western Surety Company, for purposes of Section 21.36 of the Ames Municipal Code. 6. On December 28, 1989, a written notice of the demand against the said plumber was sent to Western Surety Company. WHEREFORE, it is prayed that the Defendants Gerald E. Smith and West- ern Surety Company be declared liable to the City of Ames, Iowa for costs of inspecting and repairing the aforesaid sewer taps. JOHN R. KLAUS City Attorney 5th & Kellogg Ames, Iowa 50010 (515) 239-5146 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the fore;oing instrument was served upon each of the attorneys of record of all parties to the above-entitled cause by enclosing the same in all envelope addressed to each such attorney at his respectivewru�s ar, disclosed by the pleadings of record herein, with postage fully paid and by depositing said envelope in a United States Post wii ,. deonsd ry in��>n� ,Iowa on the me_(lay