HomeMy WebLinkAbout5K - Encroachment Agreememt for Landscaping Within Wensmann 3nd Addition Plat
MEETING DATE:
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AGENDA ITEM:
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ISSUES:
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CITY COUNCIL AGENDA REPORT
MAY 19, 2008
5K
JEFF MATZKE, PLANNER
CONSIDER APPROVAL OF A RESOLUTION APPROVING AN
ENCROACHMENT AGREEMENT FOR LANDSCAPING LOCATED ON A
PUBLIC EASEMENT WITHIN THE WENSMANN 2ND ADDITION PLAT
Introduction
This agenda report recommends approval of an Agreement for the Private Use
of Public Easement between the City of Prior Lake and Wilderness Ridge II
Association. The agreement allows the Wilderness Ridge II Association to
place landscaping on a Public Easement within the Wensmann 2nd Addition,
while indemnifying the City from any claims relating to the landscaping.
Historv
The final plat of Wensmann 2nd Addition was approved by the City Council on
September 4, 2001. The public easement was granted to the City in 1997 for
underground sanitary sewer and water utility purposes. This easement exists
over the southernmost part of Lot 29, Block 2, Wensmann 2nd Addition.
The Wilderness Ridge Association had located landscaping and screening
over the nearby area to provide screening for the town homes which faced
County Road 82. In the summer of 2007 the County Road 82 street and utility
project required removal of this landscaping for construction purposes. The
Wilderness Ridge Association would like to replace some of the landscaping in
the area to reestablish screening from the major roadway. The landscaping
design includes bushes and small trees which will have a mature height of no
greater than 6 feet as well as 3 to 4 ft. fieldstone boulders. This minimal
landscaping will allow for emergency construction access to the underground
utility lines.
Current Circumstances
The attached agreement is the City's standard Private Use of Public Easement
Agreement. This agreement protects the City's interest in the easement and
holds the City harmless if damage to the landscaping would occur as a result
of gaining access to the easement for any reason.
The location of the landscaping does not appear to interfere with any drainage
or utility issues other than those specified in the agreement.
There is no financial impact as a result of this agreement.
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ALTERNATIVES:
1. Adopt a Resolution approving the Private Use of Public Easement
Agreement.
2. Direct staff to prepare a resolution denying the Agreement.
3. Defer this item and provide staff with specific direction.
The staff recommends Alternative #1.
RECOMMENDED
MOTION:
A motion and second to approve a resolution approving the Private Use of
Public Easement Agreement and authorizing the Mayor and City Manager to
execute the agreement.
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4646 Dakota Street S.E.
Prior Lake, MN 55372-1714
RESOLUTION 08-xx
A RESOLUTION APPROVING AN ENCROACHMENT AGREEMENT FOR LANDSCAPING
LOCATED ON A PUBLIC EASEMENT OVER LOT 29, BLOCK 2, WENSMANN 2ND ADDITION
Motion By:
Second By:
WHEREAS, Wilderness Ridge II Association, a homeowners association, is the owner of Lot 29,
Block 2, Wensmann 2nd Addition; and
WHEREAS, The City is the owner of the following described easement:
Outlot A, BELMONT ESTATES, according to the recorded plat thereof, Scott County,
Minnesota; and
WHEREAS, The developer would like to install landscaping on the above referenced city-owned
easement; and
WHEREAS, The homeowners association is requesting approval of a Private Use of Public
Easement Agreement to allow for the installation of landscaping within the Public
Easement, and
WHEREAS The City Council reviewed this agreement on May 19, 2008.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The City Council of Prior Lake has determined the landscaping will not interfere with the public's
health, safety and welfare subject to the Private Use of Public Easement Agreement.
3. The Mayor and City Manager are hereby authorized to execute the encroachment agreement on
behalf of the City.
PASSED AND ADOPTED THIS 19TH DAY OF MAY, 2008.
YES
NO
Haugen
Dornbush
Erickson
LeMair
Millar
Haugen
Dornbush
Erickson
LeMair
Millar
Frank Boyles, City Manager
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Phone 952.447.9800 / Fax 952.447.4245
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Wilderness Ridge Public Easement Agreemel
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Disclaimer: This information is to be used for reference purposes only. Scott County does
not guarantee accuracy of the material contained herein and is not responsible for misuse
or misinterpretation. Surveyor information is updated daily and the data for this application
is updated weekly. For current information contact the Scott County Surveyors Office. The
preceding disclaimer is provided pursuant to Minnesota Statutes 9466.03, Subd. 21
(2000), and the user of this map acknowledges that the County shall not be liable for any
damages, and expressly waives all claims, and agrees to defend, indemnify, and hold
harmless the County from any and all claims brought by User, its employees or agents, or
third parties which arise out of the user's access or use of data provided.
Map Scale
1 inch = 125 feet
http://gis.co.scott.mn. us/ScottGIS/printPreview .aspx ?PrintOptData= Wilderness Ridge Public Ease... 5/12/2008
PERMIT AGREEMENT FOR
PRIVATE USE OF PUBLIC EASEMENT
THIS AGREEMENT is made and entered into this 19th day of May, 2008, by and between the CITY OF PRIOR
LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and the WILDERNESS RIDGE II
ASSOCIATION, (a homeowner's association) (hereinafter referred to as "Owner").
RECITALS
WHEREAS, Owner is the fee owner of a tract of land in Scott County, Minnesota, located at 3702 Fox Tail Trail,
Prior Lake, Minnesota and described as follows:
Lot 29, Block 2, WENSMANN 2ND ADDITION
(hereinafter referred to as "Owner's Property"); and
WHEREAS, the City is the owner of an easement, legally described as follows:
Permanent easements for drainage and utility purposes over, under and across the following described parcel of
land:
That part of the Northeast Quarter of Section 34, Township 115, Range 22, Scott County, Minnesota, described
as follows:
A strip of land 50.00 feet in width lying 25.00 feet on each side of the following described centerline:
Commencing at the southwest corner of said Northeast Quarter; thence on an assumed bearing of North 0 I
degrees 07 minutes 25 seconds West along the west line of said Northeast Quarter a distance of 1205.38 feet;
thence South 72 degrees 49 minutes 00 seconds East a distance of 444.81 feet; thence North 84 degrees 32
minutes 58 seconds East a distance of 60.00 feet to the point of beginning of the centerline to be described;
thence North 80 degrees 52 minutes 06 seconds East a distance of 253.55 feet; thence Easterly and
Southeasterly 224.97 feet along a tangential curve, concave to the southwest, radius 150.00 feet, central angle
85 degrees 55 minutes 51 seconds; thence South 13 degrees 12 minutes 03 seconds East, along a tangent, a
distance of 276.35 feet, thence southeasterly 99.87 feet along a tangential curve, concave to the northeast,
radius 785.91 feet, central angle 07 degrees 16 minutes 80 seconds; thence South 20 degrees 28 minutes 53
seconds East, along tangent, a distance of 558.07 feet; thence southeasterly and southerly 98.91 feet along a
tangential curve, concave to the west, radius 274.53 feet; thence South 00 degrees 09 minutes 45 seconds West,
along tangent, a distance of 25.00 feet to the south line of said Northeast Quarter and said centerline there
terminating; also that part of the Northeast Quarter of Section 34 which lies within the circumference of a
60.00 foot radius circle, the center of said 60.00 feet radius circle being the point of beginning of the above
described centerline.
Said easements being described as follows:
EASEMENT I
A strip of land lying southerly of a line drawn parallel with and 110.00 feet northerly of the South line of said
Northeast Quarter; lying northerly of the northerly right of way line of County Road No. 82; and lying within
the above described parcel of land.
EASEMENT 2
A strip of land, 80.00 feet in width; the centerline of said strip being described as follows: Commencing at the
southwest corner of said Northeast Quarter; thence on an assumed bearing of North 0 I degrees 07 minutes 25
seconds West along the West line of said Northeast Quarter a distance of 1205.38 feet to the actual point of
beginning of the centerline to be described; thence South 72 degrees 49 minutes 00 degrees East a distance of
472.76 feet; thence South 38 degrees 03 minutes 07 seconds East a distance of 115.25 feet and there
terminating.
WHEREAS, Owner wishes to use the Public Easement for landscaping purposes as identified in EXHIBIT A; and
WHEREAS, Owners have requested the City to authorize continued use of the Public Easement for landscaping
purposes; and
WHEREAS, such continued use of the Public Easement is not inconsistent with current use of the property by the
City and the public; and
WHEREAS, the City may in the future desire to use the Public Easement for other purposes which are not
consistent with Owners use of the Public Easement, and therefore the City intends to retain all of its right, title, and interest
in the Public Easement;
NOW, THEREFORE, the parties agree as follows:
I. Permit. Owners shall be permitted to use the Public Easement for landscaping purposes, as identified in
EXHIBIT A, at Owner's sole expense and risk, and with full knowledge that the City may, require Owner's landscaping to
be removed from the Public Easement at any future date, at Owner's sole expense. The Public Easement must be kept open
to the public use at all items, and no fence or other obstruction may be placed on the Public Easement without the prior
written approval of the City, which may be given or withheld in the sole discretion of the City.
2. Maintenance of Public Easement: Modification. Owner shall maintain the Public Easement in good
condition at all times, at their sole cost and expense. If Owner fails to do so, the City may cause the necessary repair or
maintenance to be done at Owner's cost. If Owner fails to pay the City for such costs, the City may assess the costs against
Owner's Property.
Owner shall not make any modifications to the landscaping or otherwise modify the Public Easement without the
prior written approval of the City, which may be given or withheld in the sole discretion of the City.
3. Termination. In the event the City desires to use the Public Easement for a purpose which is inconsistent
with landscaping use by Owner, to be determined in the City's sole discretion, or in the event Owner fails to comply with
any requirement of this Agreement within sixty (60) days after receiving a notice from the City requesting such compliance,
the City through its City Manager may terminate this Permit Agreement by giving ninety (90) days written notice of
termination to Owner by certified mail at the following address: 7400 Metro Blvd, Suite 380, Edina, MN 55439. Such
notice may, at the City's option, require Owner to completely remove landscaping from the Public Easement within said
ninety (90) day notice period, including all debris. If this Permit Agreement is terminated by the City as provided herein,
Owner will be solely responsible for all costs and expenses related to construction of landscaping which is located on
Owners Property, in accordance with all City Ordinances.
If Owner fails to remove landscaping as required by a proper notice of termination, the City may cause the removal
to be done and the costs of such work shall be paid by Owner. If Owner fails to pay the City for such costs, the City may
assess the costs against the Owner's Property.
4. Consent to Soecial Assessment. Owner hereby acknowledges and consents to the City's right to specially
assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 of this Permit
Agreement, or any costs incurred by the City to remove Owner's landscaping from the Public Easement pursuant to
Paragraph 3 of this Permit Agreement. Owner waives any right to protest or appeal any special assessment levied pursuant
to this Permit Agreement.
5. Future Develooment. Owner understands and acknowledges that the City may utilize the Public
Easement at some future date and in the sole discretion of the City. In the event the City undertakes such development, and
if this Permit Agreement is not terminated by the City as provided above, Owner agrees to cooperate to the extent
practicable to use its best efforts to accommodate City's use of the Public Easement for the purposes stated herein.
However, Owner specifically acknowledges City has the absolute right to terminate this agreement or otherwise require
Owner to discontinue Owner's use of the Public Easement, in which case Owner may be denied access to Owner's property.
If such should occur, Owner will have no recourse against City, including actions for diminution in value or a taking without
compensation.
6. Indemnitv. Owner shall defend, indemnify, and hold harmless the City and its employees, subcontractors,
attorneys, agents, and representatives from and against all claims, damages, losses, costs and expenses, including attorney's
fees, which may be incurred by or asserted against the City or for which the City may be held liable, which arise out of or
result from use of the Public Easement for landscaping purposes, including but not limited to the maintenance, repair or
removal of Owner's landscaping, except liability caused solely by the negligence of the City.
7. Insurance. As long as this Permit Agreement is in existence, Owner shall maintain a general liability
insurance policy which provides coverage for the Public Easement for any damage to property of others or injuries to
persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than One Million Dollars
($1,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in
Paragraph 6 above. Said policy shall name the City as an additional insured, and shall contain a clause which provides that
the insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior
written notice. Owner shall provide the City with a Certificate of Insurance for said policy which specifically details the
conditions of this Paragraph 6.
8. Waiver of Claims. Owner acknowledges City's ownership of the Public Easement knowingly waives any
and all claims against the City related to Owner's use of the Public Easement, including but not limited to claims of
abandonment, diminution in value, takings and contractual claims arising out of this Public Agreement, except any claims
which are the result of the sole negligence or willful misconduct of the City or its employees or agents.
9. Condition of Easement. Owner accepts the Public Easement "as is" and the City makes no warranties
regarding the conditions of the Public Easement or the suitability of Public Easement for Owner's purposes.
10. Binding Effect. This Permit Agreement shall run with the land and shall be binding on and inure to the
benefit of the parties hereto, their heirs, successors, or assigns.
II. Whole Agreement: Modifications. This Permit Agreement contains all of the terms and conditions
relating to the permit granted herein, and replaces any oral agreements or other negotiations between the parties relating to
the permit. No modifications to this Permit Agreement shall be valid until they have been placed in writing and signed by
all parties hereto.
12. Recordation. Owner shall cause this Permit Agreement to be recorded in the Office of the Scott County
Recorder at their cost and expense.
IN WITNESS WHEREOF, the parties have executed this Permit Agreement as of the date first above written.
CITY OF PRIOR LAKE
OWNER(S)
By:
Jack G. Haugen, Mayor
(Owner Name)
By:
Frank Boyles, City Manager
STATE OF MINNESOTA)
)ss
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of ,20_, by Jack
G. Haugen and Frank Boyles, The Mayor and City Manager, respectively of the City of Prior Lake, on behalf of
the City of Prior Lake through authority granted by its City Council.
Notary Public
STATE OF MINNESOTA)
)ss
COUNTY OF )
The foregoing instrument was acknowledged before me this
and , the
, respectively of
( corporation/partnership).
day of
,20_, by
and
, on behalf of the
Notary Public
/
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NILDERNESS RIDGE II
FRONT BERM TREES AND SHRUBS
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