HomeMy WebLinkAbout5I - Mueller/ Fence in Easement
CITY COUNCIL AGENDA REPORT
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
MEETING DATE:
AGENDA #:
PREPARED BY:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
JUNE 7, 2004
51
CYNTHIA KIRCHOFF, AICP, PLANNER
JANE KANSIER, PLANNING COORDINATOR
CONSIDER APPROVAL OF A RESOLUTION APPROVING A RESOLUTION
APPROVING AN ENCROACHMENT AGREEMENT FOR THE INSTAllATION OF
A FENCE IN A SANITARY SEWER, WATER AND STORM DRAIN EASEMENT
Historv: Glenn Mueller is experiencing trespass as a result of pedestrians using his
-rear yard as a shortcut. He therefore wishes to insall a five foot fence along the back
of his property. Since the property contains an easement, Mr. Mueller is requesting
approval of an Encroachment Agreement to allow for the installation of a fence five
feet in height in the City's sanitary sewer, water, and storm drain easement on
property located at 16672 Creekside Circle SE.
Issues: In 1970, the City acquired a 30 foot wide sanitary sewer, water and storm
drain easement on the applicant's property. The applicant has applied for a fence
permit to install a 5 foot chain link fence along the rear property line that encroaches
into the City's easement.
The City may allow this encroachment with the execution of an Encroachment
Agreement. This agreement protects the City's interest in the easement and holds
the City harmless if damage would occur as a result of gaining access to the
easement and sanitary sewer line, water line, or storm drain.
Conclusion: The engineering staff have no issues with allowing the fence in the
sanitary sewer easement provided the property owner executes the encroachment
agreement.
ALTERNATIVES: The City Council has three alternatives:
REVIEWED BY:
1. Adopt a Resolution approving the Encroachment Agreement.
2. Direct staff to prepare a resolution denying the Agreement.
3. Defer this item and provide staff with specific direction.
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Page 1
www.cityofpriorlake.com
Phone 952.447.4230 / Fax 952.447.4245
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
RESOLUTION 04-XX
RESOLUTION APPROVING AN ENCROACHMENT AGREEMENT
TO ALLOW FOR THE INSTALLATION OF A FENCE
IN A SANITARY SEWER, WATER, AND STORM DRAIN EASEMENT
ON PROPERTY LOCATED AT 16672 CREEKSIDE CIRCLE SE
MOTION BY:
SECOND BY:
Glenn Mueller is the owner of property located at 16672 Creekside Circle SE; and
The City owns a 30 foot wide sanitary sewer, water and storm drain easement on the
property; and
The property owner would like to install a chain link fence five feet in height in the sanitary
sewer, water and storm drain easement; and
The property owner is requesting approval of an Encroachment Agreement to allow for the
installation of the fence in the City's easement; and
On June 7,2004, the City Council reviewed the Encroachment Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, that:
1. The above recitals are herein fully incorporated herein as set forth above.
2. The City Council of Prior Lake has determined that the installation of the five foot chain link fence in the public
easement would be in the public interest subject to an encroachment agreement.
3. The Mayor and City Manager are hereby authorized to execute the encroachment agreement on behalf of the
City.
Passed and adopted this 7th day of June, 2004.
{Seal}
YES
NO
HauQen HauQen
BlomberQ Blomberg
LeMair LeMair
Petersen Petersen
Zieska Zieska
Frank Boyles, City Manager
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www.cityotpriorlake.com
Page 1
Phone 952.447.4230 / Fax 952.447.4245
A2reement For Encroachment on Public Easement
Agreement made this ih day of June, 2004, by and between the City of Prior Lake,
Minnesota, a municipal corporation ("City"); and Glenn Mueller ("Property Owner").
A. Property Owner is the fee owner of the following property described in Scott
County, Minnesota, legally described as follows, to-wit:
Lot 5, Jo-Anna Hi-View 3rd Addition except the north 5 feet, and having a street
address of 16672 Creekside Circle SE (the "Property").
B. The City owns an easement for drainage and utility purposes over, on and across a
portion of the Property.
C. Property Owner desires to construct and maintain a fence or other temporary
improvement over, on and across the Property, which otherwise would encroach
on the City's easement.
D. The City is willing to permit an improvement to be constructed and maintained by
Property Owner over, on and across its easement, subject to the following terms
and conditions of this Agreement.
AGREEMENT
In consideration of the foregoing and the mutual covenants herein, the parties agree as
follows:
1. Improvement Permitted. The City hereby approves the encroachment on its
easement for the construction of a fence or other improvements described as follows, to-wit: the
installation of a fence six (6) feet in height in a thirty (30) foot drainage and utility easement,
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conditioned upon the installation of all improvements being removable, as may be necessary,
where the fence or other such improvements as above described, encroaches on existing utilities.
2. Maintenance. The Property Owner shall solely be responsible for the maintenance
of the fence or other permitted improvement on the City's easement as may be reasonably
necessary to maintain such improvement in good and aesthetic condition and repair.
3. Lienholders' Consent. Any person claiming an interest in the Property, whether
as mortgagee, lienholder, or otherwise, must consent to the terms and conditions of this
Agreement and agree to be bound by the terms and conditions hereof.
4. Termination. The City may, at its sole discretion, terminate this Agreement at any
time by giving the then Property Owner of the Property thirty (30) days' written notice to remove
altogether the fence or improvement as hereinabove described. The Property Owner shall
remove the fence or other such improvement on or before the effective termination date at the
Property Owner's sole cost and expense. If the Property Owner fails to remove the fence or any
other improvement as required hereby, the City may do so and charge the Property Owner and/or
assess such costs as thereby incurred as an assessment against the Property.
5. Emergencv. Notwithstanding anything herein to the contrary, the City may, acting
by and through its City Manager, declare that an emergency exists whereby the fence or other
permitted improvement over, on and across its drainage and utility easement must be removed.
The City Manager shall provide Property Owner with a written notice describing the emergency
and declaring when the fences or other permitted encroachment is to be removed. Such notice
shall be delivered to the Property Owner in person or posted on the Property in the event the
Property Owner cannot be found. Upon issuance of such written notice of removal by the City
Manager, Property Owner agrees to remove, or allow the City to so remove, such fence or other
improvement as directed by the City pursuant to the issued written notice. The Property Owner
shall pay for such cost and expense of removal, regardless who performs such removal.
6. Hold Harmless and Indemnitv. Property Owner shall indemnify, defend and hold
the City and its employees, contractors, agents, representatives, elected and appointed officials,
and attorneys harmless from any and all claims, damages, losses, costs and expenses, including
attorneys' fees, arising from, based on, or related to the Owner being allowed to construct and
continue to maintain the encroachment of the fence and other above-described improvement on
the City's easement, including, but not limited to, any claim asserted against the City as a result
of the failure of the Owner to maintain the fence or other improvement in such a condition as to
prevent against injury to persons or property.
7 . Waiver of Claims. Property Owner acknowledges City's ownership of the
drainage and utility easement and knowingly and voluntarily waives and releases any and all
claims against the City arising from, based on, or related to Owner's being permitted to maintain
the encroachment of the fence or other above-described improvement as permitted by this
Agreement, including but not limited to claims of abandonment, diminution in value, takings and
contractual claims arising out of this Agreement, except any claims which are the result of the
sole negligence or willful misconduct of the City or its employees or agents. Property Owner
acknowledges being able to be represented by legal counsel ifProperty Owner so chooses in
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2
connection with this Agreement and that Property Owner has read and understands fully the
terms of this Agreement.
8. Binding Effect. Except as hereinafter provided, this Agreement shall run with the
land and bind and inure to the benefit of the parties hereto and their respective heirs, successors
and assigns. Notwithstanding anything to the contrary contained in this Agreement, Property
Owner and each successor owner of the Property shall be fully discharged and relieved of
liability under this Agreement upon ceasing to own any interest in the Property; provided,
however, that any obligations arising pursuant to Paragraph 6 of this Agreement shall not be
discharged or released by the transfer of Property Owner's or successor owner's, as the case may
be, interest in the Property.
9. Entire Agreement. This Agreement contains all the terms and conditions relating
to the permitted encroachment on City's easement and replaces any oral agreements or other
negotiations between the parties. No modifications of this Agreement shall be valid until they
have been placed in writing and signed by all parties hereto.
10. Recording. Property Owner shall cause this Agreement to be filed for record
within 30 days of its execution by Property Owner and the City. Evidence of filing shall be
provided to the City within 30 days thereafter.
CITY OF PRIOR LAKE
PROPERTY OWNER
By
Jack Haugen, Mayor
Glenn Mueller
And
Frank Boyles, City Manager
STATE OF MINNESOTA )
) SSe
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this _ day of , 2004,
by Jack Haugen, Mayor of the City of Prior Lake, Minnesota, a municipal corporation on behalf
of the corporation.
NOTARY PUBLIC
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3
STATE OF MINNESOTA )
) ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this _ day of , 2004,
by Frank Boyles, City Manager of the City of Prior Lake, Minnesota, a municipal corporation on
behalf of the corporation.
NOTARY PUBLIC
STATE OF MINNESOTA )
) ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this _ day of
2004, by
NOTARY PUBLIC
THIS INSTRUMENT WAS DRAFTED BY:
Halleland Lewis Nilan Sipkins & Johnson
Pillsbury Center - Suite 600
220 South Sixth Street
Minneapolis MN 55402-4501
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