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HomeMy WebLinkAbout5.D.1. Encroachment Agreement s: D. J, CITY OF SHAKOPEE co~~sr~'T Memorandum ; "",tJl TO: Mayor and City Council FROM: Mark McNeill, City Administrator SUBJECT: Encroachment Agreement -8051 Horizon Drive DATE: November 4, 2009 Comment: Introduction: The City Council is asked to agree to a change in the encroachment agreement for the above address which has been requested by the applicant, following action taken at the October 6th City Council meeting. Background: This item has been on the Council agenda three times previously. It appeared that a resolution had been reached at the third City Council meeting in October, where Council directed that the agreement include an automatic termination clause at the end of ten years. However, after sending the revised agreement document, staffwas advised by the applicants that the ten year termination date was a problem for them. They stated that it would create problems for them selling to any subsequent buyer. They also were concerned about the need to have to repeat this process in ten years. In response, the language reflecting the automatic termination clause has been deleted. The newly revised Agreement reflects that up until the ten year anniversary, the applicants will be reimbursed for a pro-rated portion of their initial payment if the encroachment is ordered out by the City. However, after ten years, the City could order their encroachment out after giving the notices outlined in the agreement, with no reimbursement. Recommendation: Assuming the Council is comfortable with the elimination of the 10 year automatic termination provision, the recommendation is to adopt the attached revised agreement. Relationship to Visioning: This does not meet any ofthe City's Visioning objectives. Action Required: It the Council concurs, it should, by motion, adopt a revised agreement with Richard Wett and Linda Green for an encroachment agreement for property located adjacent to 8051 Horizon Drive in Shakopee. < W~ Mark McNeill City Administrator MM:cn f<e V~SecQ 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. The City may terminate this Agreement after a ten (10) year period of time has elapsed from the date of the execution of this Agreement by providing written notice to the Owners. If such termination notice is given by the City after September 1 st of any year, said encroachments shall be removed by June 1st ofthe following year, providing that a minimum of sixty days' notice has been given. Otherwise, the encroachments shall be removed within 60 days; however, the City shall not unreasonably deny a request for an extension of the removal period due to unavoidable circumstances. If notice is given by the Owners of their intent to terminate, they shall provide 60 days' notice to the City. In the event that the City elects to develop the park property into a park or trail and terminates this Agreement prior to the end of the teri.(1 0) year period, the City shall refund to the Owners a prorated amount of the 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 3650 (the number of days in the ten (10) year period) and multiplying that number by the number of days that remain in the ten (10) year period as of the effective date of termination. In the event of the development of the land in question by the City, the City shall consider the retention of the pond, if its continued existence is consistent with the anticipated end usage of the property. P ev~se-~- lD~ 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, wife and husband ("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 I, Horizon Heights ("Park Property"); and C. The Owners have installed a pond that includes a waterfall and surrounding landscaping ("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 Owners the right to encroach into the Encroachment Area for the sole purpose of using, operating, maintaining, repairing and replacing the Encroachments. The permission granted by the City by this Agreement is limited exclusively to such purposes. I 2. The Owners agree to pay the City a fee of $ 2295.00 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 I Owners shall pay the City these fees upon execution of this Agreement by both parties. (total--$2845.00) 3. The Owners agree to maintain the Encroachments so that they have a neat and orderly appearance and in a reasonable condition not inconsistent with the current Error! Unknown document property name. natural state of the Park Property. 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. The City may terminate this Agreement after a ten (10) year period of time has elapsed from the date of the execution of this Agreement by providing written notice to the Owners. If such termination notice is given by the City after September 1 st of any year, said encroachments shall be removed by June 1 st of the following year, providing that a minimum of sixty days' notice has been given. Otherwise, the encroachments shall be removed within 60 days; however, the City shall not unreasonably deny a request for an extension of the removal period due to unavoidable circumstances. If notice is given by the Owners of their intent to terminate, they shall provide 60 days' notice to the City. In the event that the City elects to develop the park property into a park or trail and terminates this Agreement prior to the end of the ten (10) year period, the City shall refund to the Owners a prorated amount of the 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 3650 (the number of days in the ten (10) year period) and multiplying that number by the number of days that remain in the ten (10) year period as of the effective date of termination. In the event of the development of the land in question by the City, the City shall consider the retention of the pond, if its continued existence is consistent with the anticipated end usage of the property. 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' Error! Unknown docnment property name. 2 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 reasonable costs incurred by the City, including administrative and reasonable legal costs, m removmg the Encroachments can be assessed against the Property up to a maximum amount of $10,000 (the "Assessment Amount"). 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 with regard to the Assessment Amount. The Owners waive all right to appeal or otherwise contest or challenge the levy of the Assessment Amount. The Owners further agree' that any requirements of Minnesota Statutes, Chapter 429 relating to the Assessment Amount are waived to the extent that such requirements are not met. If the actual cost of removing the Encroachments is greater than the Assessment Amount, the City reserves the right to levy an assessment in a greater amount or to levy supplemental assessments pursuant to Minnesota Statutes, Section 429.071, but the Owners have not consented or agreed to such greater amount or supplemental assessments, nor have they waived any of their rights to challenge such greater assessment amount or supplement assessment pursuant to Minnesota Statutes Chapter 429. 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 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. 11. This Agreement shall be governed by and construed and enforced in accordance with the laws ofthe State of Minnesota. 12. 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 Error! Unknown document property name. 3 shall not be binding upon either party except to the extent incorporated in this Agreement. 13. Any modification of this Agreement shall be binding only if evidenced in writing signed by both parties. 14. 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,~ 55443-4300 Attn: City Administrator b) As to the Owners: Linda L. Green and Richard J. Wett 8051 Horizon Drive Shakopee, ~ 55443 or at such other address as either party may from time to time notify the other in writing. Error! Unknown document property name. 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 Error! Unknown document property name. S 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 Error! Unknown document property name. 6 EXHIBIT A Schematic of Encroachment Area Error! Unknown document property name. 7