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HomeMy WebLinkAbout13.A.1. Park Encroachment Agreements 1'3.A.1. CITY OF SHAKO PEE Memorandum TO: Mayor and City Council FROM: Mark McNeill, City Administrator SUBJECT: Park Encroachment Agreements DATE: August 18, 2009 Comment: Introduction: The Council is asked to discuss criteria for an agreement which would allow specific encroachments to remain on city park properties and natural resources corridors. Background: At the July 21 meeting of the City Council, the Council directed staffto look at ways of accommodating certain encroachments into parks or natural resources corridors to remain, but with restrictions. A variety of options were discussed at that meeting regarding a fairly substantial encroachment at 8051 Horizon drive. Alternatives included requiring the property owner absorb the cost of drafting an encroachment agreement; and to post a bond to either maintain the property, and/or to remove the encroachment if required at some point in the future. The City Attorney reminded the Council at that meeting that land which has been acquired through a park dedication could not be sold by the City. However, an encroachment agreement could be negotiated that would be similar to the utility encroachment agreement in the Industrial Park that was recently approved by Council. Proposed Encroachment Agreement Document: The City Attorney has drafted a document which would allow the encroachment to remain, with the following conditions: . Homeowner is responsible for the repair and maintenance of the encroachment. · City may use the encroachment area for the purpose for which the area was originally intended. . City assumes no responsibility for the encroachment. · The Agreement runs with the land (the Agreement would be recorded against the property by the City). A 30 day notice to terminate the Agreement may be given by either party. Homeowner must remove the encroachment upon direction from the City at their cost. . If the homeowner fails to removes the encroachment, the City may do so and assess the costs of said removal back against the homeowner through a 429 process. The homeowner would agree to waive contesting the assessment, up to a predetermined dollar amount. . The homeowner would agree to hold harmless and indemnify the City. . The property owner would have to purchase liability insurance to cover the impacts of the encroachment, up to $1 million. Value determination: In consideration for the City allowing an encroachment into park property, the Council would require a property owner to compensate the City for the use of the park property and for the administrative, engineering, and legal costs associated with allowing the encroachment. This would be negotiated separately from the Agreement. In order to determine a fair amount of compensation, I spoke with an appraisal company with whom the City often does business for appraisal services, and with two local realtors who are knowledgeable about land values. It was felt that finding a way to determine a cost per square foot as compensation for the encroachment to remain in place until otherwise needed for its intended public purpose would be appropriate. The question is whether the land should be valued as raw land, or as improved property? The consensus of the discussion was that it would be more appropriate to treat the encroached-upon area as improved property. If so, how should a value be determined? Having a separate appraisal performed for each encroachment would be costly, and might exceed the value of the appraisal. It is suggested that determining a land value per square foot, based on today's lot prices, would be a method to start. One of the realtors commented that a 10,000 square foot lot might retail in the $4 to $6 /sq ft. range today -if so, we could use $5 as the average. Because not all of the encroached upon area is as valuable as the buildable area of the lot, and because this is not a sale of the land but rather a long term ''use'' compensation, a value of one-half ($2.50/sq. ft.) might be appropriate. Administrative costs: In addition to the costs of the park and natural resources staffs, there are the costs for the City Attorney to review and draft the agreement itself, administration costs relating to processing the Council's consideration; engineering costs for surveying, and recording costs for the agreement. A figure of $550 is proposed. Budget Impact: The intent of this agreement would be to, at minimum, cover the City's costs to accommodate the encroachment. Any proceeds from land compensation could be assigned to go to the Park Reserve fund, or toward natural resources purposes as determined by the Council. As an example of the money involved, for the encroachment on Horizon Drive (which totals approximately 1100 sq. ft,) the proposed fee to allow the encroachment to remain in place would be $3300. Recommendation: The best solution from the standpoint of consistency would be to have all encroachments removed. However, in the event that the Council wishes to allow certain encroachments to continue, it should give approve the compensation and cost reimbursement guidelines above, and direct that an Encroachment Agreements be utilized. Relationship to Visioning: This supports Goal D, "Vibrant, Resilient, and Stable". Action Required: Council should give direction regarding the use of encroachment agreements and compensation amounts for encroachments on City property. ~~~ Mark McNeill City Administrator MM:cn DRAFT ENCROACHMENT AGREEMENT This Encroachment Agreement ("Agreement") is made as of , 2009, by and between the City of Shakopee, a Minnesota municipal corporation ("City") and John & Jane Smith ("the Smiths"). RECITALS A. The Smiths own the property located at: City of Shakopee, County of Scott, State of Minnesota, legally described as follows: [insert legal description] ("Smiths' Property"); and B. The City owns property ("Park Property") adjacent to the Smiths' Property. The legal description ofthe Park Property is: [insert legal description] C. The Smiths have install ed [insert description of the encroachments] ("Encroachments") that encroach into a portion ("the Encroachment Area") of the Park Property. A schematic drawing of the Encroachment Area is attached as Exhibit A to this Agreement; and D. The City is willing to allow the Encroachments to remain on the Park Property subject to the terms and conditions contained in 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. The City grants the Smiths the right to encroach into the Encroachment Area for the sole purpose of maintaining and repairing the Encroachments. The permission granted by the City by this Agreement is limited exclusively to such purpose. 2. This Agreement shall not prevent or impair the City from using the Encroachment Area for any use that it is entitled by law to use the Encroachment Area. 3. The City does not warrant that the Encroachment Area is suitable for the purposes for which it is permitted to be used under this Agreement. The Smiths. assume all risk with respect to their activities within and use of the Encroachment Area. The City shall have no responsibility with regard to any failure of or damage to the Encroachments. 4. This Agreement 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. This Agreement shall be for an indefinite term and continue until terminated by either the City or by the Smiths by written notice to the other. Such notice shall be given at least 30 days in advance of the effective date of the termination. Such notice shall be delivered either personally or by mail. If such service cannot be made, service may be posted on the Encroachment Area. Before the effective date of termination, the Smiths shall remove the Encroachments from the Encroachment Area at their sole cost and expense, and shall return the Encroachment Area to its preexisting condition or better, unless otherwise directed by the City. 5. If the Smiths fail to remove the Encroachments or to return the Encroachment Area to its preexisting condition upon termination of this agreement either by them or by the City, the City may enter the Encroachment Area and remove the Encroachments. The Smiths agree that all cost incurred by the City, including administrative and legal costs, in removing the Encroachments can be assessed against the Property up to a maximum amount of $ The Smiths understand that the exact amount of the assessments cannot be determined at the present time, and understand that the final assessment will be determined in accordance with the City's adopted assessment policy. The Smiths waive notice of hearing and hearing on the special assessments. The Smiths waive all right to appeal or otherwise contest or challenge the levy of the special assessments. The Smiths further agree that any requirements of Minnesota Statutes, Chapter 429 relating to special assessments are waived to the extent that such requirements are not met. 6. The Smiths 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 Smiths, their contractors, licensees, invitees, agents, servants or employees in connection with the construction, repair, maintenance, or removal of the Encroachments. 2 7. The Smiths shall purchase and maintain general liability insurance to protect them from claims for damages because of bodily injury, death, and injury to or destruction of tangible property, including loss of use resulting from the Encroachments. The base limits of this policy shall be at least $1,000,000 combined single limit. The Smiths shall provide the City with evidence of such insurance in the form of a certificate of insurance, no later than ten (10) days after execution of this Agreement. If the Smiths fail to give such certificate of insurance to the City, this Agreement shall be null and void. The Smiths shall provide additional certificates of insurance to the City from time to time upon the reasonable request of the City. 8. The Smiths agree not to suffer or allow any liens, claims and processes to be placed against the City's rights to or interest in the Encroachment Area as a result of the use of the Encroachment Area, including, without limitation, any liens for labor or materials provided for the construction, repair or maintenance of the Encroachments. 9. This Agreement shall be governed by and construed and enforced in accordance with the laws ofthe State of Minnesota. 10. This Agreement shall constitute the entire agreement of the parties and any prior understanding 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. 11. Any modification of this Agreement shall be binding only if evidenced in writing signed by both parties. 12. In the event that any action is filed in relation to this Agreement, the City is entitled to recover its costs, fees and reasonable attorney's fees incurred in connection with such action. 13. Required notices to the parties to this Agreement shall be in writing, and shall either be hand delivered or mailed to the following addresses: a) As to the City: City of Shakopee 129 South Holmes Street Shakopee,MN 55443-4300 Attn: City Administrator b) As to The Smiths: or at such other address as either party may from time to time notify the other in writing. 3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. CITY OF SHAKOPEE By: John Schmitt Its: Mayor By: Mark McNeill Its: City Administrator By: Judith S. Cox Its: City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of , 2009, by John Schmitt, Mark McNeill and Judith S. Cox, the Mayor, City Administrator and City Clerk respectively, of the City of Shakopee, Minnesota, a municipal corporation, on behalf of the City. Notary Public 4 John Smith Jane Smith STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of , 2009, by and , husband and wife. Notary Seal This document was drafted by: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street, Suite 470 Minneapolis, MN 55402 5 > . J 1-~ A. CITY OF SHAKOPEE MEMORANDUM To: Mayor and City Council Mark McNeill, City Administrator From: Jamie Polley, Park, Recreation and Natural Resources Director Peter Ouchakof, Natural Resources Intern Subject: Park and Open Space Encroachment -8051 Horizon Dr Meeting Date: July 21,2009 INTRODUCTION: The resident of the encroachment on Park and Open Space at 8051 Horizon Dr is appealing the PRAB's decision to the City Council. BACKGROUND: On May 2,2006 the City Council approved Resolution No, 6417, a Resolution Implementing a Program to Mark Boundaries of Park, Open Space and Conservation Easements. On September 16,2008 the City Council approved Resolution No. 6806, a Resolution of the City of Shako pee adopting the Process to Remove Park, Open Space and Conservation Easement Encroachments (Attachment A). Staff completed marking the boundaries of all conservation easements, park land and open space and has been completing the process to correcting the encroachments. On June 22, 2009 the resident exercised their right, under Step 4. D. 1 and appealed the encroachment on park and open space to the PRAB. The PRAB reviewed the encroachment and recommended 4-2 to allow the pond to remain but to move or remove the waterfall, wood pile and all other structures onto the resident's property. The resident is now exercising their right under Step 4. D. 2 to appeal the PRAB's decision to the City Council (Attachment B). DISCUSSION The resident is seeking the City Council's review ofthe park and open space encroachment located at 8051 Horizon Dr. The encroachment in question is a landscaped pond. City staff initially visited the site on May 29,2009. At that time, the staff determined that a portion ofthe pond crossed into the Park and Open Space area. Following the notice to the resident, the resident of the property promptly requested that a staff member re-visit the property with the resident present to determine the exact location of the easement. Using a GPS unit, it was determined that a portion of the pond, as well as a landscaped garden and several structures on the north end of the pond, did cross into the Park and Open Space area. The boundary line crossed the pond roughly 6 feet from the north end ofthe pond, and spanned roughly 12 feet through the pond. Pictures of the encroachment are included as Attachment C. < , The resident stated that they were aware that their backyard was adjacent to the Park and Open Space area, but were not aware that the pond crossed over the boundary. According to the resident, a pond built by the previous owner was present at the time the current residents purchased the house. The current residents remodeled and upgraded the old pond, but kept it in the same location. They believed the placement of the pond was within the boundary based on the location of the previous pond. REQUESTED ACTION: If the City Council concurs move to allow or remove all or portions of the encroachment located at 8051 Horizon Dr. Page 2 of2 , A TT ACHMENT A , RESOLUTION NO. 6806 A RESOLUTION ADOPTING A PROCESS TO REMOVE PARK, OPEN SPACE AND CONSERVATION EASEMENT ENCROACHMENTS WHEREAS, Resolution No. 6417 of the City of Shakopee City implemented a program to mark boundaries of park, open space, and conservation easements; and, WHEREAS, the City of Shakopee Park and Recreation Advisory Board recommended the City Council adopt a resolution implementing a process to remove encroachments from park, open space and conservation easements. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, that it hereby approves and adopts the following process to remove park, open space and conservation easement encroachments: LEVEL WORK TO BE COMPLETED Meet with all staff to be included in the process Step 1 A. Agree to a plan for marking boundaries and encroachment issues B. Involvement and approval of EAC, PRAB, and City Council Notices to residents A. Identify residents living next to park, open space, or conservation easements Step 2 B. Create link to online mapping for residents C. Notify residents of deadline to correct encroachments D. Notify residents that they can call and request a boundary marking but that it will be completed as quickly as possible otherwise E. Provide residents with staff contact information Field work A. Reference mylar for property corner iron monuments Step 3 B. Locate property corner iron monuments C. Install boundary markers D. Identify potential encroachment issues and document with photo E. Create GIS database of existing and newly installed boundary markers F. As requested, meet with residents regarding boundary markers Encroachment Corrective Actions A. Send follow-up letter with photo to residents with encroachment issues B. Residents will have 10 working days to respond to the request to have the encroachment removed and area restored within 60 days C. Provide residents with restoration activities to be completed as a result of the Step 4 encroachment - case by case issue D. Complete second inspection following timeframe to have encroachment removed and take photos for records E. If encroachment issue corrected provide resident with thank you letter F. If encroachment issue not corrected the following process will be completed: 1. Letter sent from City Attorney 2. City Attorney will file a Court Order . BE IT FURTHER RESOLVED that it hereby approves the City of Shako pee Park and Recreation Advisory Board to address and resolve park and open space encroachment issues with residents. BE IT FURTHER RESOLVED that it hereby approves the City of Shako pee Environmental Advisory Committee to address and resolve conservation easement issues with residents. Adopted in session of the City Council of the City of Shako pee, Minnesota, held this _ Day of ,2008. John J. Schmitt Mayor of the City of Shako pee ATTEST: City Clerk , ATTACHMENT B To: Ms. Jamie Polley and Shakopee City Council July 7, 2009 We will be appearing before you on July 21,2009, to resolve a dispute between the Shakopee Park Board and ourselves. The property in question is at 8051 Horizon Drive in Shakopee. The property abuts park land or open space. The boundaries were not clearly marked, nor was there any evidence that the area was intended as anything but open space, as there are no trails or public access. This is an old suburb development. We are a married couple who purchased this property in 2000. The pond and stream bed were in existence at the time of purchase as indicated by a copy of the sales brochure. Thus the water feature is more than 10 years old. The existing pond and structure were re-lined three years ago, and a waterfall filtration system was added. In 2008, a park ranger measured our back yard, which we then discovered was smaller than we understood it to be. A part of the pond and the waterfall extend into park preserve. We would have never added the waterfall in that space, had we been aware of this encroachment. We did not change the original pond that existed there. The ranger stated that he did not think this would present a problem, as there was no hard construction such as buildings or fences on the property. The encroachment, with the exception of the filtration system and liner, is entirely natural, made of stone, gravel, mulch and plantings. There are fish in the pond. A pump is kept on in the winter, providing year-round open water which has become a haven for wild animals and birds. To our knowledge, there is no other open water all winter, nor any other open, accessible water in the immediate area without animals crossing a highway. The park board, in a divided vote, allowed the pond and the greenery to remain, but ordered the waterfall removed. There are a number of problems with this order: *Without replacing the entire filtration system, as mentioned by landscaper Brad Tabke, chair of the park board, (who voted to retain the waterfall) the pond will become stagnant and mosquito-ridden, polluting the drinking water of the animals and birds. *To remove the waterfall would require removing the entire pond and large boulders surrounding it, bringing in large quantities of earth and relining the pond. The entire area would have to be redone. * We would have to attempt to keep the koi and other fish alive during this process and not disturb the nesting owls and other wildlife which currently live in harmony on the land. This include turkeys, many deer, occasional hawks, raccoons, woodchucks, fox, and sometimes coyotes. . */t is impossible to remove the waterfall without traversing the forest with heavy equipment such as a backhoe or bobcat, as our property is now terraced and in- accessible. The city would have to give us as permit to cross the area. Heavy boulders will need to be removed which cannot be done by hand. This can stress tree roots and land. *The damage done in removing the waterfall would be greater than any problem it presents by remaining intact. The shifting of land could lead to erosion and degradation of the area. We believe that the pond and waterfall are much more an asset to the woods and wildlife than a liability. We would like to keep the terracing and natural plants and organic ground cover, along with the pond and waterfall. Therefore, we suggest the following options: *The city of Shakopee could give us an easement for approximately ten feet of encroachment. We will maintain the filtration and water expenses. We will add no development of any type beyond what is in place. We are willing to remove our woodpile, small benches and statues onto our property. *The city of Shakopee could-sell us approximately ten feet encroachment the width of the property (or if preferred, the width of the waterfall and pond area.) We will continue to maintain the waterfall and pond and allow free access of wildlife. *We could donate the waterfall to the city of Shakopee and agree to maintain it as long as we own the property. The park board discussed returning the preserve to its natural state. We are unclear as to what the natural state of a forest is which is second or third-growth. This area is heavily covered in buckthorn and tree-choking vines, some of which we have cleaned out. Is this "natural?" We do not understand why there has been little effort to remove non-native species. The park board used the term "zero-tolerance" for encroachment. We believe that city council meant for fleXibility to exist, which is why they built an appeal process. We sincerely request that some consideration be given to allow this idyllic space to remain undamaged. Yours very truly, Linda Green and Richard Wett ,-----...---- --- ~--- --- J I I I I I I I I I I I I I I I I \ \ I ~ I .~~ :;1 I 1 .. 'f I . "J:\ I ...' I I " I . II ii t~. ~ -.1 H:' f ' l~~ .. I I i I ,,~, ~ I I . ~ ~ \ 7 I I I ! I \ I .< I I I I