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HomeMy WebLinkAbout6.i. Request by Joshua Otis for approval of an Easement Encroachment Agreement EXECUTIVE SUMMARY City Council Regular Meeting: October 5, 2021 AGENDA ITEM: Request by Joshua Otis for approval of an Easement Encroachment Agreement to construct a patio within a drainage and utility easement AGENDA SECTION: Consent PREPARED BY: Anthony Nemcek, Senior Planner AGENDA NO. 6.i. ATTACHMENTS: Encroachment Agreement, Site Location, Aerial, 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 initially approached by the homeowner about constructing a swimming pool on their property. Staff noticed that there was a wide easement along the rear of the property to accommodate a drainage swale. The homeowner decided not to construct a pool but has instead asked to install a patio that extends from the back of the house into the easement area a distance of nine feet. The easement contains no infrastructure, and its dedication on the plat was to ensure that the grading in that area was not altered and that drainage is not impeded. Staff from the Planning and Engineering departments conducted a site visit and determined that the proposed patio would not impact the movement of water on the site While staff does not typically support structures such as a patio within an easement, this situation is unusual and certainly the easement is wider than it likely reasonably needs to be as the swale being protected by the easement serves only the subject parcel. 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 a patio that extends into the drainage and utility easement along the rear of the property located at 2062 140th Street West. 1 Abstract[TMD1] PID: 34-14503-03-010 ENCROACHMENT AGREEMENT This Encroachment Agreement (this “Agreement”) is made as of the __ day of _________, 2021, by and between the City of Rosemount, a Minnesota municipal corporation (“City”) and Joshua M. Otis and Kelli A. Otis, 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 2062 140th St West, in the City of Rosemount and as legally described as follows: Lot 1, Block 3, Biscayne Pointe 4th Addition, Dakota County, Minnesota. (the “Property”). B. The Property is subject to platted drainage and utility easements (the “DUE”) that were dedicated to the City in the plat of the Biscayne Pointe 4th Addition . C. The Owners would like to construct a patio benefiting the Property as depicted on the attached Exhibit A (the “Improvement”). D. The Improvement will encroach into the DUE. E. The City has agreed that the Owners may construct, repair, and maintain the Improvement within the DUE 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 DUE. 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 DUE 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 DUE. 4. This Agreement shall not prevent or impair the use of the DUE by the City or any other entity entitled by law to so use the DUE. 5. In the event the Improvement interferes with the City’s use of the DUE or the City desires to construct other improvements within the DUE 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 DUE nor expand the Improvement so that it is further encroaching into the DUE. 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 DUE or onto other properties within the surrounding area. 7. 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’ construction, repair, or maintenance of the Improvement within the DUE or the City’s need to enforce this Agreement and any of Owner’s obligations contained herein. 8. 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 DUE as a result of the Owners’ use of the DUE, including, without limitation, any liens for labor or materials provided for the repair or maintenance of the Improvement. 3 9. 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: Public Works Director b) As to the Owners: Joshua & Kelli Otis or current owner 2062 140th Street West Rosemount, MN 55068 10. 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. 11. This Agreement shall be governed by and construed and enforced in accordance with the laws of Minnesota. 12. 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. 13. Any modification to this Agreement shall be binding only if evidenced in writing and signed by both parties. 14. The Owners agree that the Owners’ use of the DUE 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 DUE. 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. 15. 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 ______, 2021, 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: _________________________ Joshua Otis _________________________ Kelli Otis STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) This instrument was acknowledged before me this ______ day of _________, 2021 by Joshua Otis and Kelli Otis, married to each other. _________________________ Notary This document was drafted by: Kennedy & Graven, Chartered 150 South Fifth Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 A-1 EXHIBIT A Location of the Improvement Easement Area In Blue