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HomeMy WebLinkAbout6.o. Request by Peter Dorsey for an Easement Encroachment Agreement to Construct a Retaining Wall Within a Drainage and Utility Easement EXECUTIVE SUMMARY City Council Meeting: August 5, 2019 AGENDA ITEM: Request by Peter Dorsey for an Easement Encroachment Agreement to Construct a Retaining Wall Within a Drainage and Utility Easement. AGENDA SECTION: Consent PREPARED BY: Anthony Nemcek, Planner AGENDA NO. 6.o. ATTACHMENTS: Encroachment Agreement, Site Location, Site Plan APPROVED BY: LJM RECOMMENDED ACTION: Motion to Approve the Encroachment Agreement and Authorize the Mayor and City Clerk to enter into the Agreement. BACKGROUND City staff was approached by Peter Dorsey regarding the retaining wall on his property at 13796 Clare Downs Way. The 48” retaining wall is currently located right at the easement line and in close proximity to the site swimming pool. The wall is leaning and bowing in its current state, and showing signs of imminent failure which could also compromise the integrity of the swimming pool. Mr. Dorsey is requesting to encroach into the drainage and utility easement along the rear of his property by six feet (6’) to reconstruct the failing wall and install a better drainage system to ensure the stability of the new retaining wall. There is a storm sewer, with easement, located approximately thirty feet (30’) from the rear property line at its closest point, and no utilities are located within the drainage and utility easement located on Mr. Dorsey’s property. The encroachment agreement includes a provision that states if the city needs to conduct work in the drainage and utility easement, the property owner is responsible for the costs of either removing the retaining wall to accommodate the work or, at the City’s discretion, any extraordinary measures that may be needed to avoid removing the retaining wall. Any extraordinary measures would need to be mutually agreed to. While staff does not typically support structures such as a retaining wall into an easement this situation is unusual and certainly there are few, if any, other options. The Encroachment Agreement allows the City to financially protect itself while allowing the applicant to continue existing use of his property as currently developed. RECOMMENDATION Staff is recommending approval of the easement encroachment agreement to accommodate replacement of the failing, existing retaining wall with a new boulder retaining wall six feet inside the drainage and utility easement along the rear of the property located at 13796 Clare Downs Way. 590496v1RS215-3 1 ENCROACHMENT AGREEMENT This Encroachment Agreement (“Agreement”) is made as of the ____ day of _________________ 2019, by and between the City of Rosemount, a Minnesota municipal corporation (“City”) and Peter and Jill Dorsey, husband and wife, (“Owner”). RECITALS A. The City has an easement for drainage and utility purposes over part of the property legally described as Lot 4, Block 4, Evermore Clare Downs according to the recorded plat thereof, and situated in Dakota County, Minnesota (the “Property”); B. Owner desires to install a boulder retaining wall (the “Wall”) on the Property that extends six feet into the drainage and utility easement along the rear property line and within the area depicted on the site plan attached as “Exhibit A” (“Encroachment Area”); C. The City is willing to allow HOA to install the Wall within the Encroachment Area on the Property, pursuant to the terms of this Agreement. AGREEMENT NOW, THEREFORE, on the basis of the premises and the mutual covenants and agreements set forth in this Agreement, the parties agree as follows: 1. Owner may install, repair, maintain and reconstruct the Wall within the Encroachment Area. The City must approve the exact location of the Wall. 2. The permission granted by the City by this Agreement is limited exclusively to the Wall within the Encroachment Area and no additional improvements shall be made by the Owner on the Property. 3. In the event that the City, in its reasonable discretion, determines that the Encroachment materially interferes with the City’s use of the drainage and utility easement, Owner shall be responsible for the cost of removing the Wall or any extraordinary measures that may be employed to avoid removal of the wall subject to agreement of the City. If Owner does not comply with the City’s request to remove the Wall within 30 days of receiving the request from the City, the City may remove the Wall and assess the removal costs against the Owner-owned parcel legally 590496v1RS215-3 2 described as Lot, 4, Block 4, Evermore Clare Downs. Owner may replace the Wall at another location on the Property, if approved by the City. 4. Owner shall indemnify, hold harmless and defend the City, its officials, employees, contractors and agents, from and against any and all claims, losses, proceedings, damages, causes of action, liability, costs or expenses (including reasonable attorneys’ fees), arising from or in connection with or caused by any act, omission or negligence of Owner, its contractors, licensees, invitees, agents, servants or employees in connection with the Wall, the repair, reconstruction, or maintenance of the Wall and Owner’s use of the Property and Encroachment Area. 5. Owner agrees not to suffer or allow any liens, claims and processes to be placed against the City’s rights to or interest in the Property as a result of its use of the Property, including, without limitation, any liens for labor or materials provided for the repair or maintenance of the Wall. 6. This Agreement may only be terminated, modified or amended with the written consent of both parties. No termination, modification or amendment will be effective until a written instrument has been recorded with Dakota County. 7. This Agreement shall be recorded in the office of the County Recorder in and for Dakota County, Minnesota. It shall run with the land and shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. [The remainder of the page is intentionally left blank.] 590496v1RS215-3 3 CITY OF ROSEMOUNT By William Droste, Mayor By Erin Fasbender, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ____ day of ___________________, 2019, by William Droste and Erin Fasbender, the Mayor and City Clerk, respectively, of the City of Rosemount, a Minnesota municipal corporation, on behalf of the municipal corporation. Notary Public 590496v1RS215-3 4 OWNER By Peter Dorsey, as husband of Jill Dorsey By Jill Dorsey, as wife of Peter Dorsey STATE OF MINNESOTA ) ) ss. COUNTY OF ________ ) The foregoing instrument was acknowledged before me this ___ day of __________________, 2019, by Peter Dorsey and Jill Dorsey, husband and wife, Owner. ____________________________ Notary Public This document was drafted by: Kennedy & Graven, Chartered (MDT) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402