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HomeMy WebLinkAbout5G4 - McCoy Indemnification agt CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: AGENDA ITEM: DISCUSSION: ALTERNATIVES: RECOMMENDED MOTION: DECEMBER 15, 2003 ~ 5G4 CYNTHIA KIRCHOFF, AICP, PLANNER JANE KANSIER, PLANNING COORDINATOR CONSIDER A RESOLUTION APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT TO ALLOW FOR THE ENCROACHMENT OF A DECK IN A REAR YARD 10 FOOT DRAINAGE AND UTILITY EASEMENT (Case file #03.131 PC. McCOY) Historv: On December 1, 2003, the City Council directed staff to prepare a resolution with findings overruling the Planning Commission's decision to deny a Variance from the required 15 foot rear yard setback for the construction of deck addition as requested by Tim and Jane McCoy, 2830 Fox Run NW. The City Council supported a 10 foot rear yard setback Variance with the condition that the McCoy's enter into a Private Use of Public Property Agreement with the City. The agreement is necessary because the deck proposes to encroach 5 feet into the rear yard 10 foot drainage and utility easement. The agreement is attached to this report; however, the legal description of the easement encroachment has not been provided by the McCoys to the City. Staff anticipates this information will be submitted prior to the City Council meeting. Conclusion: The attached resolution is consistent with the City Council's direction for approval of a 10 foot rear yard setback Variance with the condition that a Private Use of Public Property Agreement be executed, including an insurance and indemnification provision. The City Council has two alternatives: 1. Adopt attached the attached resolution to approve the Private Use of Public Property Agreement, including the insurance and indemnification provision. 2. Table or continue consideration of this item for specific reasons, The staff recommends alternative # 1. The following motion is required: A motion and second as part of the Consent Agenda to approve Resolution 03-XX approving the Private Use of Public Property Agreement. L:\03 Files\03 Appeals\03-131 McCoy\agreemnt cc consent report.doc www.cit11ofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 REVIEWED BY: L:\03 Files\03 Appeals\03-131 McCoy\agreemnt cc consent report.doc 2 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 03-XX RESOLUTION OF THE PRIOR LAKE CITY COUNCIL APPROVING A PRIVATE USE OF PUBLIC PROPERTY AGREEMENT FOR PROPERTY LOCATED AT 2830 FOX RUN NW MOTION BY: SECOND BY: WHEREAS, The City Council approved a 10 rear yard setback Variance for Tim and Jane McCoy for the construction of a deck addition on property located at 2830 Fox Run NW, Prior lake MN, and legally described as follows: lot 1, Block 2, The Wilds, Scott County, Minnesota; and WHEREAS The proposed deck addition encroaches 5 feet into the rear yard 10 foot drainage and utility easement; and WHEREAS, The City Council approved the Variance with the condition that the applicant enter into a Private Use of Pubic Property Agreement with the City because of the easement encroachment; and WHEREAS, The City Council approved the Private Use of Public Property Agreement thereon on December 15, 2003. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE: 1) The above recitals are incorporated as if fully set forth herein. 2) The Mayor and City Council are hereby authorized to execute the Private Use of Public Property Agreement on behalf of the City. Passed and adopted this 15th day of December 2003. YES NO Haugen Haugen Blomberg Blomberg leMair leMair Petersen Petersen Zieska Zieska {Seal} City Manager 1:\03 files\03 appeals\03-131 mccoy\agreement resolution.doc .ty f . I k www.clopnorae.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 PERMIT AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY THIS AGREEMENT is made and entered into this 15th day of December, 2003, by and between the CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred to as "City"), and Tim and Jane McCoy, (husband and wife) (hereinafter referred to as "Owners"). RECITALS WHEREAS, Owners are the fee owner of a tract of land in Scott County, Minnesota, located at 2830 Fox Run NW, and legally described as follows: Lot 1, Block 2, The Wilds (hereinafter referred to as "the Permit Property"); and WHEREAS, the plat of The Wilds dedicated an easement for drainage and utility purposes to the City over the northerly 10 feet of Lot 1, Block 2, The Wilds; and WHEREAS, the portion of the deck serving Owners' Property encroaches on said easement described on Exhibit A attached hereto (the encroached portion of the property hereinafter referred to as the "Permit Property"); and WHEREAS, Owners wish to use the Permit Property for a deck encroachment; and WHEREAS, Owners have requested the City to authorize continued use of the Permit Property for deck encroachment purposes; and L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 1 ,. .~""-""--'---"----"'^'~.'''''." ^ .. --~'~'---"""-'*--~'-"""-_.~"~-'-''''''''---'~-'-'__--,....-.___.____.,"'_........,.,.___~._.__~___.^..h_,___.__ WHEREAS, such continued use of the Permit Property is not inconsistent with current use ofthe property by the City and the public; and WHEREAS, the City may in the future desire to use the Pennit Property for other purposes which are not consistent with Owners' use ofthe Permit Property, and therefore the City intends to retain all of its right, title, and interest in the Permit Property; NOW, THEREFORE, the parties agree as follows: 1. Permit. Owners shall be pennitted to use the Permit Property for deck encroachment purposes at Owners' sole expense and risk, and with full knowledge that the City may, upon notice as provided herein, require Owners' deck to be removed from the Permit Property at any future date, at Owners' sole expense. The Pennit Property must be kept open to the public use at all items, and no fence or other obstruction may be placed on the Pennit Property without the prior written approval of the City, which may be given or withheld in the sole discretion of the City. 2. Maintenance of Penn it Property; Modification. Owners shall maintain the Permit Property in good condition at all times, at their sole cost and expense. If Owners fail to do so, the City may cause the necessary repair or maintenance to be done at Owners' cost. If Owners fail to pay the City for such costs, the City may assess the costs against Owners' Property. Owners shall not make any modifications to the drainage and utility easement or otherwise modify the Permit Property 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 Permit Property for a purpose which is inconsistent with deck encroachment use by Owners, to be determined in the City's sole discretion, or in the event Owners fail 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 tenninate this Pennit Agreement by giving ninety (90) days written notice oftermination to Owner by certified mail at the following address: 2830 Fox Run NW, Prior Lake, MN 55372. Such notice may, at the City's option, require Owners to completely remove the deck from the Pennit Property within said ninety (90) day notice period, including all debris. Ifthis Permit Agreement is terminated by the City as provided herein, Owners will be solely responsible for all costs and expenses related to construction of a deck which is located on Owners' Property, in accordance with all City Ordinances. If Owners fail to remove the deck as required by a proper notice of tennination, the City may cause the removal to be done and the costs of such work shall be paid by Owner. If Owners fail to pay the City for such costs, the City may assess the costs against the Owners' Property. L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 2 4. Consent to Special Assessment. Owners hereby acknowledge and consent to the City's right to specially assess any costs incurred by the City for any repair or maintenance performed pursuant to Paragraph 2 ofthis Permit Agreement, or any costs incurred by the City to remove Owners' deck from the Permit Property pursuant to Paragraph 3 of this Permit Agreement. Owners waive any right to protest or appeal any special assessment levied pursuant to this Permit Agreement. 5. Future Development. Owners understand and acknowledge that the City may utilize the Permit Property at some future date and in the sole discretion ofthe City. In the event the City undertakes such development, and if this Permit Agreement is not terminated by the City as provided above, Owners agree to cooperate to the extent practicable to use its best efforts to accommodate City's use of the Permit Property for the purposes stated herein. However, Owners specifically acknowledge City has the absolute right to terminate this agreement or otherwise require Owners to discontinue Owners' use of the Permit Property, in which case Owners may be denied access to Owners' property. If such should occur, Owner will have no recourse against City, including actions for diminution in value or a taking without compensation. 6. Indemnity. Owners 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 permit Property for deck encroachment purposes, including but not limited to the maintenance, repair or removal of Owners' deck, except liability caused solely by the negligence of the City. 7. Insurance. As long as this Permit Agreement is in existence, Owners shall maintain a general liability insurance policy which provides coverage for the Permit Property 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. Owners shall provide the City with a Certificate oflnsurance for said policy which specifically details the conditions of this Paragraph 6. 8. Waiver of Claims. Owners acknowledge City's ownership of the Permit Property and knowingly waive any and all claims against the City related to Owners' use of the Permit Property, including but not limited to claims of abandonment, diminution in value, takings and contractual claims arising out ofthis Permit Agreement, except any claims which are the result of the sole negligence or willful misconduct of the City or its employees or agents. L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 3 9. Condition of Property. Owners accept the Permit Property "as is" and the City makes no warranties regarding the conditions of the Permit Property or the suitability of Permit Property for Owners' 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. 11. 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. Recording. Owners 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 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 L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 4 STATE OF MINNESOTA) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 20_, by and ,the and , respectively of , on behalf of the (corporation/partnership). Notary Public L:\03 Files\03 Appeals\03-131 McCoy\Private Use Agreement.DOC 5 ~'.^"'~ --"'-~-'-"""~'''~"'''''-'-__''~'''' '_,._,.._........~._______"M.-'-___'_._~_________.,,_.____,__~._~"_"