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Home My WebLink About5I Encroach Agree Agenda Report Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: JANUARY 6, 2020 AGENDA #: 5I PREPARED BY: SARAH SCHWARZHOFF, CITY ATTORNEY PRESENTED BY: SARAH SCHWARZHOFF AGENDA ITEM: CONSIDER APPROVAL OF AN ENCROACHMENT AGREEMENT WITH JASON AND REBEKAH CLARK TO ALLOW AN EXISTING FENCE TO REMAIN ON CITY PROPERTY GOAL AREA AND OBJECTIVE: Public Safety 1. Ensure a safe and quality-built environment. DISCUSSION: Introduction The purpose of this agenda item is to request City Council approval of an encroachment agreement with Jason and Rebekah Clark to allow an existing fence to remain on City property. Current Circumstances In the summer of 2019 City staff observed that a fence on the property located at 5912 Crossandra Street SE was located partially on City owned property. City staff began an enforcement action to have the fence removed or relocated. The property owners, Jason and Rebekah Clark, requested that the fence be permitted to remain as it had been in place for many years, was in place prior to the Clark’s purchase of the property and would be costly to move. The Clarks offered to purchase the property, but City staff determined that sale of the property would not be in the public’s best interest due to the ongoing need for drainage in the area. City staff did review the existing fence and its current impact and determined that the fence was not currently creating any interference with the City’s use of the property for drainage. Therefore, City staff offered the Clarks the option of entering into an encroachment agreement which would allow the fence to remain in place until the City needs the fence to be removed or until the fence is replaced. At that time the fence would be reinstalled on the Clarks property. The Clarks agreed to this compromise. The City attorney drafted an encroachment agreement. The agreement states that the fence may remain in its current location until it is removed, replaced or interferes with the City’s use of the property. The agreement provides that the Clarks are responsible for all costs related to the fence. The agreement requires the Clarks obtain insurance and indemnify the City for any damage or injury that occurs due to the fence. This agreement is similar to the private use of public property agreements that have been used over the past several years for commercial property’s use of public property (Blahnik sidewalk, Boathouse patio, Edelweiss cow). The agreement allows the property owner to avoid the expensive relocation of the fence while protecting the City’s interests. If the Council approves this agreement, the Clarks will need to sign the agreement, pay the costs of its drafting and record the agreement against the property in order for the fence to remain. FINANCIAL IMPACT: No financial impact. ALTERNATIVES: 1. Motion and second as part of the consent agenda to approve an encroachment agreement with Jason and Rebekah Clark to allow an existing fence to remain on City property. 2. Motion and a second remove this item from the consent agenda for additional discussion. RECOMMENDED MOTION: Alternative #1 ATTACHMENTS 1. Encroachment Agreement ENCROACHMENT AGREEMENT This Encroachment Agreement (“Agreement”) is made this _____ day of ________, 2019 between the City of Prior Lake, a municipal corporation organized under the laws of the State of Minnesota (“City”) and Jason Clark and Rebekah Clark, husband and wife (“Clarks”). RECITALS WHEREAS, the Clarks own certain land located at 5912 Crossandra Street SE, Prior Lake, MN, 55372 and legally described as Lot 1, Block 5, Cardinal Ridge 3rd Addition (“Lot”); WHEREAS, City owns certain land north of the Lot, legally described as Outlot C, Cardinal Ridge 3rd Addition (“Outlot”); WHEREAS, a property owner prior to the Clarks installed a fence on the Lot which fence encroaches upon the Outlot; WHEREAS, the City is willing to allow the fence and personal property located within the Fence (collectively the “Fence”), to remain on the Outlot subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein, the parties agree as follows: 1. PUBLIC PROPERTY. The Clarks acknowledges that the Outlot is public property. 2. ENCROACHMENT. The City has determined that the existence and maintenance of the Fence on the Outlot is incidental to and will not interfere with the City’s use of the Outlot. Therefore, the City hereby consents to the Clarks maintaining the Fence in its current location, as depicted in Exhibit A, subject to the terms and conditions of this Agreement. 3. INDEMNITY. The Clarks 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 this Agreement, the Fence and any personal property located within the Fence, including but not limited to the condition and location of the Fence, the 2 placement or use of any personal property within the Fence, or any damage or personal injury that occurs to anyone at or within the Fence. 4. INSURANCE. The Clarks shall maintain a general liability insurance policy which provides coverage for damage to personal property and injury to persons including coverage related to the Fence and the tree described below. Said policy shall contain a clause which provides language stating that the company that issues the policy shall not cancel, non-renew, or materially change the policy without first providing the City thirty (30) days’ prior written notice. The Clarks shall provide the City with a Certificate of Insurance that names the City as an additional insured. 5. WAIVER OF CLAIMS. The Clarks acknowledge City’s ownership of the Outlot for the benefit of the public and knowingly and voluntarily waive and release any and all claims against the City arising from, based on, or related to the use of the Outlot as permitted by this Agreement. 6. CONDITION OF OUTLOT. The Clarks acknowledge the City has made no representations or warranties regarding the condition of the Outlot or its suitability for the uses permitted by this Agreement. 7. ACCESS. If the City desires access to the Outlot area within the Fence, the City shall request such access in person or in writing. The Clarks shall allow the City access to the Outlot within the Fence at all reasonable times. 8. BINDING EFFECT. 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. 9. MAINTENANCE. The Clarks shall perform, as and when necessary, and pay the cost for, such maintenance of the Fence as may be reasonably necessary to maintain the Fence in good and aesthetic condition and repair. 10. TREE. Located within the Fence but on the Outlot is a tree. As long as the Fence remains on the Outlot the Clarks will own and be responsible for any and all maintenance and care of the tree including trimming and removal as needed and any damage caused by the tree. Upon removal of the Fence and expiration or termination of this Agreement, the ownership of and responsibility for the tree shall revert to the City. 11. COMPLIANCE WITH LAWS. The Clarks shall comply with all federal, state and local laws, rules and regulations in relation to the Fence and its location and maintenance on the Outlot. 12. EXPIRATION. If at any time the Clarks remove or replace the Fence, the Clarks shall ensure that any replacement fence or other fixture or personal property shall be installed and located solely on the Lot. Upon removal or replacement of the Fence this Agreement shall automatically terminate and the Clarks and their heirs, successors and assigns shall no longer have any right to place anything on or use in any way the Outlot. 3 13. TERMINATION. The City may terminate this Agreement by written notice to the Clarks if, in the opinion of the City Manager, the Fence adversely interferes with the City’s use of the Outlot. If the City terminates this Agreement, the Clarks shall have thirty (30) days from receipt of the written notice to remove the Fence and restore the Outlot to its condition prior to placement of the Fence. 14. ENTIRE AGREEMENT. This Agreement contains all the terms and conditions related to the location and maintenance of the Fence on the Outlot 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. WITNESS WHEREOF, the parties have caused these presents to be executed as of the day and year aforesaid. CITY OF PRIOR LAKE: ____________________________ Kirt Briggs, Mayor ____________________________ Jason Wedel, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _____ day of_____________, 2019, by Kirt Briggs, Mayor of the City of Prior Lake, and Jason Wedel, City Manager of the City of Prior Lake, Minnesota, a municipal corporation on behalf of the corporation. . Notary Public 4 JASON AND REBEKAH CLARK: ____________________________ Jason Clark ____________________________ Rebekah Clark STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _____ day of_____________, 2019, by Jason Clark and Rebekah Clark, husband and wife. Notary Public Drafted By: Hoff Barry, P.A. 100 Prairie Center Drive, Suite 200 Eden Prairie, MN 55344 5 Exhibit A Location of Fence