HomeMy WebLinkAbout6D - McCoy Easement
/~PRio CITY COUNCIL AGENDA REPORT
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MEETING DATE:
AGENDA #:
PREPARED BY:
REVIEWED BY:
AGENDA ITEM:
DISCUSSION:
ALTERNATIVES:
JANUARY 5, 2004
6D
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)
History: 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. The McCoy's attorney
has reviewed the agreement and proposed a number of modifications that
were incorporated in the document.
Upon request by the applicant, the Council continued this item on December
15, 2003. The applicant was unable to secure the required insurance prior to
the 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.
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www.cit1Jofpriorlake.com
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Phone 952.447,4230 / Fax 952.447.4245
RECOMMENDED
MOTION:
The staff recommends alternative # 1. The following motion is required:
REVIEWED BY:
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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
January 5, 2004.
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 5th day of January 2004.
YES NO
Haugen Haugen
Blomberg Blomberg
LeMair LeMair
Petersen Petersen
Zieska Zieska
{Seal} Frank Boyles, City Manager
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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
; 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
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WHEREAS, such continued use of the Pemlit Property 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 Permit Property for other
purposes which are not consistent with Owners' use of the Pennit Property, and therefore
the City intends to retain all of its right, title, and interest in the Permit Property;
NOW, THEREFORE, the paIiies agree as follows:
1. Permit. The City Council has granted the Owners of Lot 1, Block 2,
Wilds a variance, subject to certain conditions, to permit the construction of a deck on the
rear of the house. The suppOli members necessary to construct the deck will encroach on
the City's drainage and utility easement.
Owners acknowledge and agree that the placement and construction of the deck is
at Owners' sole 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 Permit Property must be kept open to the public use at all
items, and no fence or other obstruction may be placed on the Permit 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 Permit 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 the Owners' deck encroachment, which determination
will be 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
Permit Agreement by giving thirty (30) days written notice of termination 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
Property legally described above within said thirty (30) day notice period, including all
debris. If this Permit Agreement is terminated by the City as provided herein, Owners
will be solely responsible for all costs and expenses related to removal of the deck on
Owners' property.
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If Owners fail to remove the deck as required by a proper notice of tem1ination,
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 any costs related to removal of the deck as
provided for herein, the City may assess the costs against the Owners' Property.
3.1 License. The Owners hereby grant City an irrevocable license to enter
upon Owners' property for the purpose of removing the deck, in the event Owners fail to
remove the deck.
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 of this Permit Agreement, or any costs
incurred by the City to remove Owners' deck from the Pennit Property pursuant to
Paragraph 3 of this Pennit 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 make improvements to the Permit Property in exercise of its easements rights for
drainage and utility purposes 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, 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
their encroachment on the Permit Property if deemed necessary by the City for the full
exercise of its easement rights.
6. Indemnity. Owners shall defend, indemnify, and hold harmless the City
and its employees, subcontractors, attomeys, agents, and representatives from and against
all claims, damages, losses, costs and expenses, including attomey'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
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Certificate ofInsurance for said policy which specifically details the conditions of this
Paragraph 6.
8. Waiver of Claims. Owners acknowledge City's easement rights on and
under the Pennit 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 of this
Permit 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 Property. Owners accept the Permit Property "as is" and the
City makes no warranties regarding the conditions of the Pennit 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 pennit 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
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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 _ day of
,20_, by and , the
and , respectively of
, on behalf of the (corporation/partnership).
Notary Public
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EXHIBIT A
The south 5.00 feet ofthe north 10.00 feet of the west 18.00 of the east 28.00 feet of Lot
1, Block 2, The Wilds, Scott County, Minnesota.
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