HomeMy WebLinkAbout6.c. Approve Encroachment Agreement for Retaining Wall in Drainage & Utility Easement – 12580 Arklow Avenue
EXECUTIVE SUMMARY
City Council Meeting: November 1, 2022
AGENDA ITEM: Approve Encroachment Agreement for
Retaining Wall in Drainage & Utility
Easement – 12580 Arklow Avenue
AGENDA SECTION:
Consent
PREPARED BY: Nick Egger, PE Public Works Director AGENDA NO. 6.c.
ATTACHMENTS: Encroachment Agreement APPROVED BY: LJM
RECOMMENDED ACTIONS: Approve Encroachment Agreement and Authorize Mayor &
City Clerk Signatures
BACKGROUND
The owners of the home at 12580 Arklow Avenue, Chris and Megan Higgins, are proposing to make
landscaping and retaining wall installations in a portion of their side yard. Portions of some of the features
would be constructed within a side yard drainage and utility easement.
Typically, structures and landscaping installations within drainage and utility easements are not allowed in
easements in order to maintain the integrity of functionality of the space, 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 does happen to include both a sanitary sewer pipe and a stormwater
drainage pipe. However, upon detailed plan review, adjustment of the proposed plan to reduce the scope
of improvements, and further consideration, I 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 Higgins’s signed an
encroachment agreement giving conditional permission for the wall to remain. Since the retaining wall is
not planned to be four (4) feet tall or higher, no building permit is required for its construction.
The attached encroachment agreement describes the existing circumstances and indicates the conditions
that must be met going forward in order for the wall and landscaping to remain in place. The wall will not
be allowed to be expanded and no additional 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.
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PID: 34-48293-012-20
ENCROACHMENT AGREEMENT
This Encroachment Agreement (this “Agreement”) is made as of the __ day of _________,
2022, by and between the City of Rosemount, a Minnesota municipal corporation (“City”) and
Christopher & Megan Higgins, 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 12580 Arklow Avenue, in the City of Rosemount and as legally
described as follows:
Lot 22, Block 1, Meadow Ridge 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 Meadow Ridge 4th Addition.
C. Without prior permission from the City, the 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.
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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.
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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: Christopher & Megan Higgins
or current owner
12580 Arklow Avenue
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.
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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:
_________________________
Christopher Higgins
_________________________
Megan Higgins
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
This instrument was acknowledged before me this ______ day of _________, 2022 by
Christopher and Megan Higgins, married to each other.
_________________________
Notary
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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
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EXHIBIT A
Site Plan & Certificate of Survey
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