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HomeMy WebLinkAbout5J - Resolution - Public Right-of-Way 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: ISSUES: FINANCIAL IMPACT: CITY COUNCIL AGENDA REPORT JULY 17, 2006 5J JANE KANSIER, PLANNING DIRECTOR CONSIDER APPROVAL OF A RESOLUTION APPROVING AN ENCROACHMENT AGREEMENT FORA FENCE LOCATED IN THE PUBLIC ROAD RIGHT-OF-WAY Introduction This agenda report recommends approval of an Agreement for the Private Use of Public Property between the City of Prior Lake and James and Denise Casey, owners of the property at 14031 Greenway Avenue. The agreement allows an existing fence to remain in the public right-of-way, while indemnifying the City from any claims should the fence be damaged or removed. Historv In 1997, the owner of the property located at 14031 Greenway Avenue erected a fence located within the Greenway Avenue right-of-way. The City staff notified the owner of the violation and tried to work with the owner to remove the encroachment. In 2002, the property was sold to the current owners, James and Denise Casey. The staff notified the new property owners of the existing encroachment, and continued to work with these owners to correct the violation. The staff referred this case to the City Attorney in 2005. The City Attorney's office convinced the property owners to sign the attached agreement. Current Circumstances The attached agreement is the City's standard Private Use of Public Property Agreement. This agreement protects the City's interest in the right-of-way and holds the City harmless if damage would occur as a result of gaining access to the right-of-way for any purpose. The City's concern with the location of the fence in the right-of-way is one of public safety. The location of the fence does not appear to interfere with traffic patterns. However, the fence does have the possibility of interfering with maintenance of the street, and, if the street is to be reconstructed, the fence and landscaping will be within the construction limits. The attached Private Use of Public Property Agreement allows the City to require removal of the encroachment with a SO-day notice. The agreement also indemnifies the City against all claims or damages based on the continued encroachment. There is no financial impact as a result of this agreement. www.cityofpriorlake.com R\Agenda Reports\July 17 2006\Encipfii~~~.Qfil~36g~%QrgS2.44 7.4245 ALTERNATIVES: RECOMMENDED MOTION: Reviewed by: 1. Adopt a Resolution approving the Private Use of Public Property Agreement. 2. Direct staff to prepare a resolution denying the Agreement. 3. Defer this item and provide staff with specific direction. The staff recommends Alternative #1. A motion and second to approval a resolution approving the Private Use of Public Property Agreement and authorizing the Mayor and City Manager to execute the agreement. iL anager R\Agenda Reports\July 17 2006\Encroachment Agreement AgendaDOC 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 RESOLUTION 06-xx A RESOLUTION APPROVING AN ENCROACHMENT AGREEMENT FOR A FENCE LOCATED IN THE PUBLIC ROAD RIGHT-OF-WAY AT 14031 GREENWAY AVENUE Motion By: Second By: WHEREAS, James and Diane Casey are the owners of property located at 14031 Greenway Avenue, legally described as follows: Lots 1 and 2, Block 1, The Harbor West, according to the recorded plat thereof, Scott County, Minnesota; and WHEREAS, There is an existing fence located in the public road right-of-way adjacent to this property; and WHEREAS, The property owner is requesting approval of a Private Use of Public Property Agreement to allow the fence to remain in the public right-of-way; and WHEREAS, The City Council reviewed this agreement on July 17, 2006. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The City Council of Prior Lake has determined the existing fence will not interfere with the public's health, safety and welfare subject to the Private Use of Public Property Agreement. 3. The Mayor and City Manager are hereby authorized to execute the encroachment agreement on behalf of the City. PASSED AND ADOPTED THIS 17TH DAY OF JULY, 2006. YES NO Haugen Haugen Dornbush Dornbush Erickson Erickson LeMair LeMair Millar Millar Frank Boyles, City Manager R:\Agenda Reporls\July 17 2006\Encroachmenl Agree~ESi!tYofpriorlake.com Phone 952.447.4230 / Fax 952.447.4245 LOCATION MAP 14031 GREENWAY AVENUE & &O(} I 42 3 DIJ CD DIJ , )~ i {S I I I ~ LJ- Location of Casey Property (i) AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY This Agreement is made this / q day of ~ . ?006, .between the CITY OF PRIOR LAKE, Minnesota, a municip;11;rporati the "City"), and James P. Casey and Denise A. Casey (the "Owners"). RECITALS A. The Owners are the fee owners of property located at 14031 Greenway Avenue, Prior Lake, Minnesota (the "Owners' Property"), legally described as follows: Lots 1 and 2, Block 1, The Harbor West, according to the recorded plat thereof, Scott County, Minnesota B. The Owners' Property abuts Greenway Avenue, a road dedicated to the public as Conroy Street in the plat of The Harbor West (the "Road"). C. The Owners maintain a fence and landscaping on the Owners' Property, which fence and landscaping encroaches on the Public Property (the "Improvement"). D. The Owners desire to maintain the Improvement in is current location. The City is willing to permit the Improvement to remain in its current location, subject to the terms and conditions of this Agreement. AGREEMENT In consideration of the foregoing and the mutual covenants herein, the parties agree as follows: 1. PUBLIC PROPERTY. The Owners acknowledge that the Improvement encroaches on the Road, which Road was dedicated to the public by the plat of The Harbor West and which must remain open to the public for public use. 2. IMPROVEMENT. Subject to the City's right to terminate this Agreement as provided elsewhere in this Agreement, the Owners may maintain the Improvement in its location as of the date of this Agreement for the remainder of the useful life of the Improvement. Notwithstanding anything to the contrary contained in this Agreement, the City may terminate this Agreement on sixty (60) days written notice to Owners (the "Termination Notice"). Within sixty (60) days of the date of the Termination Notice, the Owners shall remove so much of the Improvement as is necessary to remove the encroachment and to comply with any applicable setback requirements then in effect. The Termination Notice shall not affect the Owners' right to submit a petition to the City seeking a variance from the applicable setback requirements, which petition, if so submitted, will be considered by the City in accordance with the City's usual standards for granting or denying petitions for variances. The submission of such a petition shall not extend the 60-day time period for removing the Improvement as required by this Agreement. ON: 282733 The Owners shall not be permitted to replace the Improvement or increase the amount or scope of the encroachment. 3. MAINTENANCE. The Owners shall perform, as and when necessary, and pay the cost for, such maintenance of the Improvement as may be reasonably necessary to maintain the fence in good and aesthetic condition and repair. 4. INDEMNITY. The Owners 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 Owners being allowed to continue the encroachment of the Improvement on the Road, including, but not limited to, any claim asserted against the City as a result of the failure of the Owners to maintain the Improvement road in such a condition as to prevent against inj\tfY to persons or property. 5. INSURANCE. Owners shall maintain a general liability insurance policy which provides coverage for damage to the property of others or injury to persons. Such coverage shall be on an occurrence basis and, if reasonably available as part of a standard homeowner's policy without substantial additional cost, shall include contractual liability coverage with respect to the indemnity obligation in Paragraph 4 above. Said policy shall contain a clause which provides the insurer will not change, non-renew, or materially change the policy without first providing the City thirty (30) days prior written notice. The Owners shall provide the City with a Certificate of Insurance for such coverage that specifically details the conditions in Paragraphs 4 and 6 of this Agreement. 6. WAIVER OF CLAIMS. The Owners acknowledge City's ownership of the Road and knowingly and voluntarily waive and release any and all claims against the City arising from, based on, or related to Owners' being permitted to maintain the encroachment of the Improvement on the Road 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. The Owners acknowledge being represented by legal counsel in connection with this Agreement, and that the Owners have read and understand the terms of this Agreement. 7. CONDITION OF ROAD. The Owners acknowledge the City has made no representations or warranties regarding the condition of the Road or its suitability for the uses permitted by 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, the Owners and each successor owner of the Owners' Property shall be fully discharged and relieved of liability under this Agreement upon ceasing to own any interest in the Owners' Property; provided, however, that any obligations arising pursuant to Paragraph 4 of this ON: 282733 2 Agreement shall not be discharged or released by the transfer of the Owners' or successor owner's, as the case may be, interest in the Owners' Property. 9. ENTIRE AGREEMENT. This Agreement contains all the terms and conditions relating to the Road Improvements 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. The Owners shall cause this Agreement to be filed for record within 30 days of its execution by the Owners and the City. Evidence of filing shall be provided to the City within 30 days thereafter. CITY OF PRIOR LAKE By Frank Boyles, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of , 2006, by Frank Boyles, City Manager of the City of Prior Lake, Minnesota, a municipal corporation on behalf of the corporation. NOTARY PUBLIC DN: 282733 3 OWNER '~ STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) .--:-- The foregoing instrument was acknowledged before me this E day of :..; u IC/c. 2006, by James P. Casey. . ~1;iuL-- NOTARY PUBLIC STATE OF MINNESOTA ) ABBAS HASSAN HARB I ) ss. Nnt...., p -- T ublic-Minnesota COUNTY OF SCOTT ) My Commission Expires Jan 31, 2010 The foregoing instrument was acknowledged before me this tl day of ~ v Y'\.. e..., 2006, by Denise A. Casey. ~~1:6-{- ARY PUBLIC This instrument was drafted by: ABBAS HASSAN HARS J u.~otary Public-MinnAC>ft40_ '"7 Commission """'LeI Exp/rq Jan 31, 2010 Michael E. Burns Halleland Lewis Nilan & Johnson 600 U.S. Bank Plaza South 220 South Sixth Street Minneapolis MN 55402-4501 ON: 282733 4