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HomeMy WebLinkAbout13.C.1. Encroachment Agreement - 8051 Horizon Drive /3,(:'./. CITY OF SHAKOPEE Memorandum TO: Mayor and City Council FROM: Mark McNeill, City Administrator SUBJECT: Encroachment Agreement -8051 Horizon Drive DATE: September 15,2009 Comment: Introduction: The City Council is asked to incorporate the provisions for an encroachment agreement discussed at the September 1 st meeting, into a document specifically for 8051 Horizon Drive in Shakopee. Background: The previous two City Council meetings, there has been discussion regarding an encroachment onto a conservation easement owned by the City at the above address. The encroachment consists of a pond, waterfall, walkway, and some landscaping. The Council gave direction that the following criteria could be included into a possible agreement: . Reimbursement to the City of$2.50/square foot, plus a $550 administrative fee . Include homeowners insurance language, stating that the homeowner has coverage for incidents occurring on the encroachment area. . The City is to be added as an additional insured, and that it should be included in a hold harmless and indemnity agreement to be provided by the homeowner. . The term of the agreement shall be 7-10 years in duration before the encroachment can be ordered out by the City. . There shall be established minimum standards for maintenance of the affected area. Attached is a proposed easement agreement. As of this writing, the homeowners insurance is still being researched by the applicant. We have proposed eight years as the duration. There was a concern on the part of the applicants' attorney that the City should not be in a position of ordering the encroachment out, if there was a need to develop the encroached upon area for its originally intended purpose (park, or other active use area). As a compromise, we are suggesting that if the City does choose to develop the encroachment area before the end of the eight years, that the City would by formula determine a prorated refund (based on the amount oftime that is left), and pay that to the applicants. Otherwise, it is our assumption that the Council is okay with the pond, waterfall, and appurtencences remaining. Note that the Park and Recreation Advisory Board had originally recommended that only the waterfall and pond be allowed to stay in place; however, that has not been a subject of discussion with the Council. Budget Impact: If the correct area of the encroachment is 1110 square feet, the amount to be paid by the applicant would be $3,325. Recommendation: If the Council wants to allow the encroachment to remain, I recommend that the attached encroachment agreement be approved. Relationship to Visioning: This is unrelated to any of the Visioning goals. Action Required: If the Council concurs, it should, by motion, authorize the appropriate officials to execute the attached encroachment agreement for property at 8051 Horizon Drive in Shakopee. ~~ Mark McNeill City Administrator MM:cn ENCROACHMENT AGREEMENT This Encroachment Agreement ("Agreement") is made as of this _ day of , 2009, by and between the City of Shakopee, a Minnesota municipal corporation ("City") and Linda L. Green and Richard J. Wett, ("Owners"). RECITALS A. The Owners own the property located at: 8051 Horizon Drive, City of Shakopee, County of Scott, State of Minnesota, legally described as follows: Lot 1, Block 1, Horizon Heights, 3rd Addition ("Owners' Property"); and B. The City owns undeveloped park property which is adjacent to the Owners' Property. The legal description of the Park Property is: Park 1, Horizon Heights ("Park Property"); and C. The Owners have installed l<l1'lqs~a,ping ("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: 356109v3 JJT SH155-23 1. The City grants the Owners the right to encroach into the Encroachment Area for the sole purpose of using, operating, maintaining, repairing and repla,cing the Encroachments. The permission granted by the City by this Agreement is limited exclusively to such purposes. 2. The Owners agree to pay the City a fee of $ for the use of the Encroachment Area along with the City's administrative costs of $550.00 which were incurred by the City in processing and recording this Agreement. The Owners shall pay the City these fees upon execution of this Agreement by both parties. 3. The Owners agree to maintain the Encroachments so that they have a neat and orderly appearance and are free of weeds and algae at all times. The Owners also agree to maintain the pond and waterfall in good working order so that the water circulates. 4. 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. 5. 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 Owners 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. 6. 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 one of the parties. Either party may terminate this Agreement at any time for any reason, by providing prior written notice to the other at least 30 days in advance of the effective date of termination. If such service cannot be made, service may be posted on the Encroachment Area. An affidavit of termination signed by the City Administrator shall constitute prima facie evidence of termination of this Agreement by the City. The City shall not be permitted to terminate this Agreement for a period of eight years from the date of this Agreement, unless the City is developing the Park Property into a Park or the Owners are in breach of one of the terms of this Agreement. In the event that the City is developing the Park Property into a Park and terminates this Agreement within the eight year period, the City shall refund to the Owners the remaining amount of usage fee and administrative costs that were paid by the Owners. The amount of the refund shall be calculated by taking the total amount of the usage fee and administrative costs paid by the Owners and dividing it by 2922 (the number of days in the eight year period) and multiplying that number by the number of days that remain in the eight year period as of the effective date of termination. 356109v3 JJT SH155-23 2 7. Before the effective date of termination, the Owners 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. 8. If the Owners 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 the Owners' Property and remove the Encroachments. The Owners hereby grant the City a temporary easement for purposes of entering their Property in order to remove the Encroachments. The Owners agree that all costs incurred by the City, including administrative and reasonable legal costs, in removing the Encroachments can be assessed against the Property up to a maximum amount of $ The Owners 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 Owners waive notice of hearing and hearing on the special assessments. The Owners waive all right to appeal or otherwise contest or challenge the levy of the special assessments. The Owners 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. 9. 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, servants or employees in connection with the construction, repair, maintenance, removal or operation of the Encroachments. In addition, 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) caused by an injury to a member of the public caused by the Encroachments. 10. The Owners shall purchase and maintain homeowners' 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 $300,000 combined single limit. The Owners shall provide the City with evidence of such insurance in the form of a certificate of insurance, no later than 10 days after execution of this Agreement. If the Owners fail to give such certificate of insurance to the City, this Agreement shall be null and void. The Owners shall provide additional certificates of insurance to the City from time to time upon the reasonable request of the City. 356109v3 JJT SH155-23 3 11. The Owners 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. 12. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Minnesota. 13. 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. 14. Any modification of this Agreement shall be binding only if evidenced in writing signed by both parties. 15. 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 Owners: Linda L. Green and Richard J. Wett 8051 Horizon Drive Shakopee, MN 55443 or at such other address as either party may from time to time notify the other in writing. 356109v3 JJT SH155-23 4 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 356109v3 JJT SH155-23 5 Linda L. Green Richard J. Wett STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of , 2009, by Linda L. Green and Richard J. Wett, Notary Seal This document was drafted by: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street, Suite 470 Minneapolis, MN 55402 356109v3 JJT SH155-23 6