HomeMy WebLinkAbout10F - Fountain Hills 2nd Addn.
MEETING DATE:
AGENDA #:
PREPARED BY:
REVIEWED BY:
AGENDA ITEM:
DISCUSSION:
CITY COUNCIL AGENDA REPORT
NOVEMBER 4, 2002
10F
CYNTHIA KIRCHOFF, AICP, PLANNER
JANE KANSIER, PLANNING COORDINATOR
ADOPT A RESOLUTION APPROVING A PRIVATE USE OF
PUBLIC PROPERTY AGREEMENT TO LOCATE A
FREESTANDING SIGN IN A DRAINAGE AND UTILITY
EASEMENT IN FOUNTAIN HILLS 2ND ADDITION
(Case file #02-121)
History: Wensmann Homes would like to install a freestanding
(subdivision monument) sign in a drainage and utility easement
dedicated as part of the Fountain Hills 2nd Addition plat. The sign is
proposed to advertise the Fountain Hills residential development
located on Fountain Hills Court.
Storm sewer extends through the easement. The sign is proposed to be
installed between two lines that are approximately 45 feet apart (see
Attachment 2).
In order to locate the sign within the easement, Wensmann Homes
could either request to vacate a portion of the easement or obtain
permission for its location by the City Council through a Permit
Agreement for Private Use of Public Property.
Staff believes that the agreement would be the more practical route,
because it would have to be shown that the vacation would serve the
public interest. The City's standardized Private Use of Public Property
Agreement has been modified to deal with the specific facts of this
situation (see Attachment 4). The agreement must be executed by the
City and Wensmann Homes and recorded at Scott County. The
agreement would also require the removal of the sign if necessary for
maintenance and/or replacement of the utilities and/or placement of
additional public utilities.
Current Circumstances: The plat for Fountain Hills 2nd Addition was
approved in June 2002.
16200\~~€~~e1\\9~~15~E~uJUfi5\C~~~rMffinesota 55372-1714 / Ph. (952) 447-4230 / Fax (952, 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
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AL TERNA TIVES:
RECOMMENDED
MOTION:
REVIEWED BY:
The zoning ordinance permits signage in residential districts up to 50
square feet in sign area and 10 feet in height. Also, identification signs
must be set back a minimum of 10 feet from a property line.
At its closest point, the sign footing is shown approximately 4 feet
from the storm sewer line. However, the engineering department
would like the sign to be set back a minimum of 10 feet from the storm
sewer.
Iss..ue.:. The City Council must determine whether it is appropriate to
allow Wensmann Homes to construct a sign within the drainage and
utility easement, and to execute a Permit Agreement for Private Use of
Public Property.
rnnrIUfi:;nn. The planning and engineering staff do not have an issue
with allowing the sign within the easement provided it does not
interfere with the maintenance of the storm sewer. The City Attorney
has assisted to prepare this Agreement. A copy of the Agreement has
been provided to the developer. Staff expects to receive a signed copy
prior to the City Council meeting.
The City Council has three alternatives:
1. Approve the Permit Agreement for Private Use of Public Property.
2. Deny the Permit Agreement for Private Use of Public Property.
3, Table or continue consideration of this item for specific reasons.
The staff recommends alternative # 1:
L:\02FILES\02subject\02-121 Fountain\CC Report.doc
2
RESOLUTION 02-XX
RESOLUTION OF THE PRIOR LAKE CITY COUNCIL APPROVING AN AGREEMENT FOR THE
PRIVATE USE OF PUBLIC PROPERTY FOR WENSMANN HOMES
MOTION BY:
SECOND BY:
WHEREAS:
On June 24, 2002, the City Council approved the final plat known as Fountain Hills 2nd Addition,
subject to conditions identified by Resolution 01-107; and
WHEREAS:
A drainage and utility easement was dedicated over all of Lot 21, Block 3, Fountain Hills 2nd
Addition; and
WHEREAS:
Wensmann Homes is requesting approval of a Private Use of Public Property Agreement in order
to install a sign in the drainage and utility easement on Lot 21, Block 3, Fountain Hills 2nd
Addition.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PRIOR LAKE,
MINNESOTA:
1. The recitals set forth above are incorporated herein as if fully set forth.
2. The Agreement for the Private Use of Public Property includes all of the conditions that must be met in order to
maintain the sign in its current location.
3. The City Council agrees to allow the private use of public property, subject to the terms set forth in the Permit
Agreement.
4. The Mayor and the City Manager are hereby authorized to execute this Permit Agreement on behalf of the City.
Passed and adopted this 4th day of November, 2002.
YES NO
Haugen Haugen
Gundlach Gundlach
LeMair LeMair
Petersen Petersen
Zieska Zieska
Frank Boyles, City Manager
1:\02fi1es\02subject\02-121 fountain\agree resolution.doc Page I
16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
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PROPOSED MONUMENT SIGN
ATTACHMENT 4
PERMIT AGREEMENT FOR
PRIVATE USE OF PUBLIC PROPERTY
THIS AGREEMENT (hereinafter referred to as "Permit Agreement') is
made and entered into this 4th day of November, 2002, by and between the
CITY OF PRIOR LAKE, Minnesota, a municipal corporation (hereinafter referred
to as "City'), and Wensmann Homes, a Minnesota corporation (hereinafter
referred to as "Wensmann').
RECITALS
WHEREAS, Wensmann is the fee owner of a tract of land in Scott
County, , located at Fountain Hills Court, Prior Lake, Minnesota,
and legally described as follows:
Lot 21, Block 3, Fountain Hills 2nd Addition
(hereinafter referred to as "Wensmann Property').
WHEREAS, the City is the owner of an easement for drainage and utility
purposes that extends over Wensmann+s Property; and
WHEREAS, the Wensmann desires to install and maintain a freestanding
sign that would encroach upon the City+s easement (the encroached portion
hereinafter referred to as the "Permit Property'); and
WHEREAS, the use of the Permit Property for a freestanding sign is not
now inconsistent with use of the Permit Property by the City and the public for
drainage and utility purposes; and
WHEREAS, Wensmann+s use of the Permit Property may at some time
in the future become inconsistent with the City+s use of the 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:
ON: 166090
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1. Permit. Wensmann shall be permitted to use the Permit
Property to install and maintain a freestanding sign at Wensmann+s sole
expense and risk, and with full knowledge that the City may, upon notice as
provided herein, require Wensmann+s freestanding sign to be removed from
the Permit Property at any future date, at Wensmann+s sole cost and expense.
2. Maintenance of Permit Property: Modification. Wensmann shall
maintain the freestanding sign and land immediately surrounding it on the
Permit Property in good condition at all times, at its sole cost and expense. If
Wensmann fails to do so, the City may cause the necessary repair or
maintenance to be done and the costs billed to Wensmann. If Wensmann fails
to pay the City for such costs, the City may assess the costs against
Wensmann+s Property.
2.1 Wensmann shall not make any modifications to the freestanding
sign 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.
3.1. Termination for Incompatibility. The City in its sole discretion
acting through its City Manager may determine that Wensmann+s use of the
Permit Property to install and maintain a freestanding sign is incompatible
with the City+s use of the Property for drainage and utility purposes. If such
circumstances arise, the City shall provide Wensmann with ninety (90) days+
. written notice as provided in subparagraph 3.3 below, to remove the sign
including all debris. Wensmann must restore the Permit Property to its
original condition.
3.1.1. If Wensmann fails to restore the sign within the time specified in
the Notice, the City may remove the sign, restore the property and charge
Wensmann for the costs. If Wensmann fails to pay such costs, the City may
assess the costs against Wensmann+s Property.
3.2. Termination for Failure to comply with Conditions of Permit
Agreement. The City, in its sole discretion, acting through its City Manager,
can terminate this Permit Agreement if Wensmann fails to comply with any of
the conditions set forth herein. The City shall provide Wensmann written
notice, as provided in subparagraph 3.3, that Wensmann is failing to comply
with a provision of this Permit Agreement. The notice shall set forth the time
within which Wensmann must comply with the directions set out in the notice.
3.2.1. If Wensmann fails to correct the deficiencies set out in the notice
within the time frame specified in the notice, the City may correct the
discrepancies and charge Wensmann for the costs. If Wensmann fails to pay
such costs, the City may assess the costs against Wensmann+s property.
ON: 166090
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3.3 Notice: Notices shall be provided as set forth below:
To Wensmann:
Wensmann Homes
1895 Plaza Drive
Eagan, MN 55122
To City:
Frank Boyles, City Manager
City of Prior Lake
16200 Eagle Creek Avenue
Prior Lake, MN 55372-1714
4. Consent to Special Assessment. Wensmann 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 Wensmann+s freestanding sign from the Permit Property pursuant to
Paragraph 3 of this Permit Agreement. Wensmann waives any right to protest
or appeal any special assessment levied pursuant to this Permit Agreement.
5. Future Development. Wensmann understands and
acknowledges that at some future date Wensmann+s continued use of the
Permit Property may become inconsistent with the City+s use of the Permit
Property. A determination that Wensmann+s use of the Permit Property is
inconsistent with or interferes with the City+s use is within the sole discretion
of the City. Notwithstanding the foregoing, the City and Wensmann agree to
work cooperatively to accommodate the joint use of the Permit Property to the
extent practicable. However, Wensmann specifically acknowledges City has
the absolute right to terminate this Permit Agreement or otherwise require
Wensmann to discontinue Wensmann+s use of the Permit Property. If such
should occur, Wensmann specifically waives any right to recourse against City,
in any form, manner or under any theory of law or equity.
6. Indemnity. Wensmann shall defend, indemnify, and hold
harmless the City and its employees, subcontractors, attorneys, agents, and
representatives harmless from and against any and 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 Wensmann+s use of the Permit Property and
maintenance of a freestanding sign for the installation except liability caused
solely by the negligence of the City.
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7. Insurance. As long as this Permit Agreement is in existence,
Wensmann 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
ON: 166090
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indemnity provided for 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. Wensmann shall provide
the City with a Certificate of Insurance for said policy.
8. Waiver of Claims. Wensmann acknowledges City+s ownership
interest in the Permit Property and knowingly waives any and all claims
against the City related to Wensmann+s use of the Permit Property, including
but not limited to claims of abandonment, diminution in value, takings and
contractual claims arising out of this Permit Agreement.
9. Condition of Property. The City makes no warranties regarding
the conditions of the Permit Property or the suitability of Permit Property for
Wensmann+s purposes. Wensmann+s use of the Permit Property is "AS IS.'
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. Recordation. Wensmann 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 )
) 55.
COUNTY OF )
ON: 166090 4
The foregoing instrument was acknowledged before me this _ day of
, 2002, 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 )
) 55.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
, 2002, by and , the
and , respectively of
, on behalf of the (corporation/partnership).
Notary Public
This instrument was drafted by:
The City of Prior Lake
16200 Eagle Creek Avenue
Prior Lake, MN 55372-1714
ON: 166090
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