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HomeMy WebLinkAbout6.g. Encroachment Agreement – 2823 125th Ct WestI:\City Clerk\Agenda Items\Approved Items\6.g. Encroachment Agreement – 2823 125th Ct West.docx EXECUTIVE SUMMARY City Council Meeting: November 4, 2020 AGENDA ITEM: Encroachment Agreement – 2823 125th Ct West AGENDA SECTION: Consent PREPARED BY: Brian Erickson, PE, Public Works Director / City Engineer AGENDA NO. 6.g. ATTACHMENTS: Encroachment Agreement APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve and encroachment agreement at 2823 125th Court West BACKGROUND The property owner at 2823 125th Court W (Wilde Lake Estates) has requested the ability to construct/install, maintain and repair a drainage culvert in the existing right of way. Currently, stormwater is managed in this area via a ditch section with a culvert crossing at each driveway. The lots are large rural lots with a rural road section. The owner has agreed to maintain this culvert extension and should the culvert interfere with drainage or affect other proper use of the City’s right of way, the property owner will remove it. This agreement terminates upon the conveyance or sale of the property to a third party and will be removed at the property owner’s expense. The owner also agrees to notify the City within 10 days of the intended conveyance. The attached agreement was drafted by the City Attorney and the property owner has agreed to the terms as well. Once the owner has signed the agreement, they will be responsible for it to be recorded at Dakota County. RECOMMENDATION Staff is requesting City Council approval of the attached encroachment agreement. 1 Abstract PID: 34-84260-02-090 ENCROACHMENT AGREEMENT This Encroachment Agreement (this “Agreement”) is made as of the __ day of _________, 2020, by and between the City of Rosemount, a Minnesota municipal corporation (“City”) and Michael McNamara and Marisa McNamara, married to each other (the “Owners”). RECITALS A. The Owners are the fee owners of that certain real property situated in Dakota County Minnesota located at 2823 125th Court West, in the City of Rosemount and as legally described as follows: Lot 9, Block 2, Wilde Lake Estates, Dakota County, Minnesota. (the “Property”). B. The Property is subject to platted drainage and utility and right-of-way easements that were dedicated to the City in the plat of the Wilde Lake Estates (the “ROW”). C. The Owners would like to extend and maintain the existing drainage culvert benefiting the Property approximately 100 feet east of the Property driveway as depicted on the attached Exhibit A (the “Improvement”). D. The Improvement will encroach into the ROW. E. The City has agreed that the Owners may construct, repair, and maintain the Improvement within the ROW on the condition that the Owners execute this Agreement. AGREEMENT NOW, THEREFORE, on the basis of the premises and the mutual covenants and agreements as set forth in this Agreement, the parties agree as follows: 2 1. The aforementioned recitals are hereby incorporated herein and shall be construed as material terms. 2. At their own cost and expense, the Owners may construct, repair, and maintain the Improvement within the ROW. Said Improvement shall be constructed in the location on the Property shown on the attached Exhibit A. 3. The permission granted by the City in this Agreement is limited exclusively to the Improvement within the ROW as outlined in paragraph C of the Recitals of this Agreement and as depicted on the attached Exhibit A. No additional improvements may be constructed by the Owners in the ROW. 4. This Agreement shall not prevent or impair the use of the ROW by the City or any other entity entitled by law to so use the ROW. 5. In the event the Improvement interferes with the City’s use of the ROW or the City desires to construct a sidewalk, trail, or other improvements within the ROW that are not inconsistent with its easement interests, the City shall provide 30 days’ notice to Owners pursuant to Paragraph 9 of this Agreement that they must remove the Improvement. The Owners agree that they will remove the Improvement within 30 days of the date of the request from the City. If the Owners do not comply with the City’s request to remove the Improvement within 30 days of the date of the request, the City may enter onto the Property and remove the Improvement. The removal costs may be assessed by the City against the Property and the Owners hereby consent to the City levying such assessments for any unreimbursed amount associated with such costs against the Property. The Owners further hereby waive their rights to notice of hearing and hearing on such assessments and its right to appeal such assessments pursuant to Minnesota Statutes, Section 429.081. 6. The Owners shall be solely responsible for the maintenance of the Improvement and shall be entitled to maintain and repair the Improvement as needed, so long as such maintenance and repair does not interfere with the City’s use of the ROW nor expand the Improvement so that it is further encroaching into the ROW. Owner’s maintenance obligations contained herein also shall include any maintenance or repairs as may be required in the event water floods or backs-up into the surrounding City ROW or onto other properties within the surrounding area. 7. This Agreement shall terminate upon the conveyance or sale of the Property by the Owners to a third party. It shall not run with the land. The Owners shall notify the City pursuant to Paragraph 9 of this Agreement within 10 days of their intended conveyance of the Property. The Improvement must be removed by the Owners prior to the conveyance of the Property at the Owners’ expense. 8. The Owners 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 the Owners, their contractors, licensees, invitees, agents, or employees in connection with the Owners’ 3 construction, repair, or maintenance of the Improvement within the ROW or the City’s need to enforce this Agreement and any of Owner’s obligations contained herein. 9. The Owners agree not to suffer or allow any liens, claims, or processes to be placed against the City’s rights to or interest in the ROW as a result of the Owners’ use of the ROW, including, without limitation, any liens for labor or materials provided for the repair or maintenance of the Improvement. 10. Required notices to the parties to this Agreement shall be in writing, and shall either be hand delivered or mailed by certified mail, return receipt required to the following addresses: a) As to the City: 2875 145th Street West Rosemount, MN 55068-4997 Attn: City Public Works Director/Engineer b) As to the Owner: Michael and Marisa McNamara 2823 125th Court West Rosemount, MN 55068 11. Nothing contained in this Agreement shall be deemed a waiver by the City of any governmental immunity defenses, statutory or otherwise. Any claims shall be subject to the City’s governmental immunity defenses and the maximum liability limits provided in Minnesota Statutes, Chapter 466, if applicable. 12. This Agreement shall be governed by and construed and enforced in accordance with the laws of Minnesota. 13. This Agreement shall constitute the entire agreement between the parties and any prior understandings or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 14. Any modification to this Agreement shall be binding only if evidenced in writing and signed by both parties. 15. The Owners agree that the Owners’ use of the ROW is with the City’s permission and is not open, continuous, notorious, or any other manner supportive of a claim of adverse possession, prescriptive easement, abandonment, or other entitlement to the ROW. This Agreement is not a lease or easement and does not confer any estate or interest in real property to the Owners by the City beyond what is specifically recited herein. 16. This Agreement shall be recorded in the land records of Dakota County, Minnesota. The Owners shall be responsible for the payment of any and all recording fee. 4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. CITY OF ROSEMOUNT: By: ________________________ William Droste Its: Mayor By: ________________________ Erin Fasbender Its: City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this _____ day of ______, 2020, by William Droste and Erin Fasbender, the Mayor and City Clerk, respectively, of the City of Rosemount, Minnesota, a municipal corporation, on behalf of the City. __________________________________ Notary Public 5 OWNERS: _________________________ Michael McNamara _________________________ Marisa McNamara STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) This instrument was acknowledged before me this ______ day of _________, 2020 by Michael McNamara and Marisa McNamara, married to each other. _________________________ Notary This document was drafted by: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street, Suite 470 Minneapolis, MN 55402 (612) 337-9300 A-1 EXHIBIT A Location of the Improvement