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HomeMy WebLinkAbout6.g. Approve Encroachment Agreement for Retaining Wall in Drainage & Utility Easement – 2900 125th Court W EXECUTIVE SUMMARY City Council Meeting: October 4, 2022 AGENDA ITEM: Approve Encroachment Agreement for Retaining Wall in Drainage & Utility Easement – 2900 125th Court W AGENDA SECTION: Consent PREPARED BY: Nick Egger, PE Public Works Director AGENDA NO. 6.g. ATTACHMENTS: Encroachment Agreement APPROVED BY: LJM RECOMMENDED ACTIONS: Approve Encroachment Agreement and Authorize Mayor & City Clerk Signatures BACKGROUND The owners of the home at 2900 125th Court West, Michael and Lori McDevitt, recently had a pool constructed in their rear yard. Part of the pool project included landscaping adjacent to the pool along with several sections of boulder retaining walls. One wall segment was constructed within a side yard drainage and utility easement without consultation or permission from the City. Typically, structures and landscaping installations within drainage and utility easements are not allowed in order to maintain the integrity of functionality of the easement, which may contain underground utilities and pipes, or may be required to facilitate access to a piece of public infrastructure or public space. In this case, the easement in question happens to be primarily for conveyance of surface drainage from the McDevitt’s property and the property next door. With this as context and upon a field review and further consideration, at this time City staff have concluded that it is apparent no adverse impact is presented by the presence of the retaining wall, and that the wall could remain if the McDevitt’s signed an encroachment agreement giving conditional permission for the wall to remain. The attached encroachment agreement describes the existing circumstances and indicates the conditions that must be met going forward in order for the wall to remain in place. The wall will not be allowed to be expanded and no additionally installations of items in the drainage and utility easement will be allowed. The agreement also stipulates that if in the future it is determined by the City that an adverse impact has presented itself due to the presence of the retaining wall, the City will serve notice to the property owner and the City has the authority to require the wall to be removed if it is necessary to correct the negative impacts. RECOMMENDATION Staff recommends Council approve the attached encroachment agreement and authorize the Mayor and City clerk to affix their signatures. 1 PID: 34-84260-020-10 ENCROACHMENT AGREEMENT This Encroachment Agreement (this “Agreement”) is made as of the __ day of _________, 2022, by and between t he City of Rosemount, a Minnesota municipal corporation (“City”) and Michael and Lori McDevitt, 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 2900 125th Court West , in the City of Rosemount and as legally described as follows: Lot 1, Block 2, Wilde Lake Estates, 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 Wilde Lake Estates . C. Without prior permission from the City, t he Owners have constructed a retaining wall benefiting the Property as depicted on the attached Exhibit A (the “Improvement”). D. The Improvement encroaches into the DUE. E. The City has reviewed the installation of the Improvement, and determined that at this time of this Agreement, the Improvement does not interfere with the use of the DUE. F. The City has agreed that the Owners may keep, repair, and maintain the Improvement within the DUE on the condition that the Owners execute this Agreement. 2 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: 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 keep, repair, and maintain the Improvement within the DUE. Said Improvement shall be limited to only 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 that at a future time 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. 3 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. 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: Michael & Lori McDevitt or current owner 2900 125th Court 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 fees. 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 ______, 2022, 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 OWNERS: _________________________ Michael McDevitt _________________________ Lori McDevitt STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) This instrument was acknowledged before me this ______ day of _________, 2022 by Michael and Lori McDevitt, married to each other. _________________________ Notary 5 This document was drafted by: City of Rosemount 2875 145th Street W Rosemount, MN 55068 (651) 322-2022 and Kennedy & Graven, Chartered 150 South Fifth Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 A-1 EXHIBIT A Location of the Improvement