The URL can be used to link to this page

Home My WebLink About5L - Encroachment Resolution MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: ALTERNATIVES: REVIEWED BY: CITY COUNCIL AGENDA REPORT 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 JUNE 20, 2005 5L DANETTE MOORE, PLANNING COORDINATOR CONSIDER APPROVAL OF A RESOLUTION APPROVING AN ENCROACHMENT AGREEMENT FOR THE INSTALLATION OF A FENCE IN A SANITARY SEWER, WATER AND STORM DRAIN EASEMENT Historv: James Murphy wishes to install a six foot fence along the west perimeter of his property. Since the property contains an easement, Mr. Murphy is requesting approval of an Encroachment Agreement to allow for the installation of a fence six feet in height in the City's sanitary sewer, water, and storm drain easement on property located at 16055 Northwood Road. Issues: In 1977, the City acquired a 20 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 six foot fence along the side 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 has no issues with allowing the fence in the sanitary sewer easement provided the property owner executes the Encroachment Agreement. The City Council has three alternatives: 1. Adopt a Resolution approving the Encroachment Agreement. 2. Direct staff to prepare a reso.~tion ,denYing the Agreement. 3. Defer thiO provide. ff with specific direction. Frank Boyles, C' M ag r 1:\05 files\encroachment agreements\murphy\cc report. doc www.cityofpriorlake.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 1 ' WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION OS-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 16055 NORTHWOOD ROAD MOTION BY: SECOND BY: James A. Murphy is the owner of property located at 16055 Northwood Road; and The City owns a 20 foot wide sanitary sewer, water and storm drain easement on the property; and The property owner would like to install a fence six 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 20,2005, 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 six foot 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 20th day of June, 2005. {Seal} YES NO HauQen Haugen Fleming Fleming LeMair LeMair Petersen Petersen Zieska Zieska Frank Boyles, City Manager I: \05 files\encroachment agreements\murphy\resolution05xx.doc www.cityofpriorlake.com Page 1 Phone 952.447.4230 / Fax 952.447.4245 I . A2reement For Encroachment on Public Easement Agreement made this 20th day of June, 2005, by and between the City of Prior Lake, Minnesota, a municipal corporation ("City"); and James A. Murphy ("Property Owner"). A. Property Owner is the fee owner of the following property described in Scott County, Minnesota, legally described as follows, to-wit: Plat 25141 Northwood, and having a street address of 16055 Northwood Road (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 twenty (20) foot drainage and utility easement, 1:\05 files\encroachment agreements\murphy\agreement for encroachment on public easement.doc 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 if Property Owner so chooses in 1:\05 files\encroachment agreements\murphy\agreement for encroachment on public easement.doc 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 James A. Murphy And Frank Boyles, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of ,2005, by Jack Haugen, Mayor of the City of Prior Lake, Minnesota, a municipal corporation on behalf of the corporation. NOTARY PUBLIC 1:\05 files\encroachment agreements\murphy\agreement for encroachment on publiC easement.doc 3 __.....,0...,__'______--.., ._.-..'t._-"o,-~.._-.-.._"-,_.....,,,.. .........._..._-_.__.~.__....._.._.'.... -,_ STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of ,2005, 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 2005, 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 1:\05 files\encroachment agreements\murphy\agreement for encroachment on public easement.doc 4 ._-,>- . '......r > .....__. ....."'.....--