HomeMy WebLinkAboutVIII-09 Authorize Signature - Encroachment Agreement - Miller (751 Bohlken Dr)
City Council Memorandum
To: Mayor Fasbender & City Councilmembers
From: John Hinzman, Community Development Director
Date: October 16, 2023
Item: Authorize Signature – Encroachment Agreement – Miller – 751 Bohlken Drive
Council Action Requested:
Authorize signature of the attached Encroach Agreement to allow construction of
a pool within a drainage and utility easement on property owned by Brian and
Jennifer Miller located at 751 Bohlken Drive. A simple Council majority is
necessary for action.
Background Information:
The subject property is encumbered by a large drainage and utility easement
across the backyard prohibiting construction of the proposed pool. City Staff has
reviewed the proposed use and supports construction of the pool within the
easement. The License to Encroach would allow for the proposed use only, and
would prohibit any future encroachments within the easement. It would also hold
the City harmless from any future claims and demands for use of that portion of
the easement.
The City Council approved a similar encroachment agreement in 2019 for 743
Bohlken Drive.
Financial Impact:
Issuance of the license will allow for a property improvement and increase in
valuation.
Advisory Commission Discussion:
N\A
Council Committee Discussion:
N\A
Attachments:
• Location Map
• License to Encroach
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LOCATION MAP
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ENCROACHMENT AGREEMENT RELATING TO LANDOWNER POOL
AND RELATED IMPROVEMENTS ON A PORTION OF 751 BOHLKEN
DRIVE IN THE CITY OF HASTINGS, DAKOTA COUNTY, MINNESOTA
THIS AGREEMENT (“Agreement”) is made, entered into and effective this _____ day
of ______ , 2023 by and between the City of Hastings, a Minnesota municipal
corporation, and Brian J. Miller and Jennifer M. Miller, husband and wife.
Subject to the terms and conditions hereafter stated and based on the representations, warranties,
covenants, agreements and recitals of the parties, the parties do hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Terms. The following terms, unless elsewhere specifically defined herein, shall
have the following meanings as set forth below.
1.2 City. “City” means the City of Hastings, a Minnesota municipal corporation.
1.3 Landowner. “Landowner” means Brian J. Miller and Jennifer M. Miller, their
successors and assigns in interest with respect to the Encroachment Property.
1.4 City Easement. “City Easement” means the City’s drainage and utility easement
located on the Encroachment Property.
1.5 Encroachment Property. “Encroachment Property” means the following real
property owned by Landowner and located in the City of Hastings, Dakota County, Minnesota:
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Lot Thirteen (13), Block One (1), South Oaks of Hastings 2nd Addition according to the
recorded plat thereof, Dakota County, Minnesota.
PID #:19.71026.01.130
(Torrens No. 169056)
1.6 Landowner Improvements. “Landowner Improvements” means Landowner’s
pool and related improvements on a portion of the Encroachment Property, as depicted on Exhibit
A, attached hereto and incorporated herein.
1.7 Utility Costs. “Utility Costs” means all costs incurred by the City, (whether
performed by the City or its agents or contractors), for the inspection of and access to and repair,
maintenance and replacement of the City’s Easement and the placement of additional
improvements in the City Easement. Utility Costs, include, without limitation: excavation costs,
labor costs, costs of removing fill, costs of re-burying any improvements, re-compacting the soils
over the City Easement, restoring the City Easement area, and all engineering and attorneys’ fees
incurred in connection therewith. Utility Costs also include the costs of temporarily removing the
Landowner Improvements and subsequently replacing the Landowner Improvements in the City
Easement, if such costs have not already been paid by the Landowner.
1.8 Pre-Encroachment Costs. “Pre-Encroachment Costs” means a reasonable
estimate by the City of the costs the City would have incurred for Utility Costs if the Landowner
Improvements did not exist.
1.9 Cost Differential. “Cost Differential” means the difference between the Pre-
Encroachment Costs and the Utility Costs in light of the existence of the Landowner
Improvements. The City’s determination of the amount of the Cost Differential shall be binding
on the Landowner. The City’s determination shall be appropriately supported by cost estimates
obtained from independent contractors or engineers.
ARTICLE 2
RECITALS
2.1 Landowner owns the Encroachment Property.
2.2 The Encroachment Property has been developed with Landowner Improvements.
2.3 The City Easement lies within the Encroachment Property.
2.4 The City has established written policies prohibiting certain private encroachments
and improvements within drainage and utility easements within the City.
2.5 Landowner has located the Landowner Improvements within the City Easement.
2.6 Subject to the terms of this Agreement, the City is willing to allow the Landowner
Improvements to remain within the City Easement if the following conditions are met:
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(a) The Landowner maintains the Landowner Improvements.
(b) The Landowner agrees to pay the City any Cost Differential relating to inspections,
access, repair, maintenance and replacement of City Easement and the placement
of any additional improvements by Landowner in the City Easement.
(c) The Landowner agrees to temporarily remove the Landowner Improvements in the
event the City has need to access the area where the Landowner Improvements exist
in order for the City to inspect, repair, maintain, and replace the City Easement or
construct additional improvements in the City Easement.
ARTICLE 3
AGREEMENTS
3.1 Maintenance of Landowner Improvements. Under the terms and conditions
stated herein, the City authorizes the Landowner Improvements to remain in the City Easement
pursuant to Exhibit A. Landowner shall not expand Landowner Improvements further into the City
Easement.
Landowner shall not place any other structures, retaining walls, irrigation systems,
buildings, fences, landscaping, trees or shrubs in the City Easement, except for the Landowner
Improvements, without the City’s written consent.
Landowner, at its own expense, shall maintain and repair the Landowner Improvements.
3.2 City Not Responsible for Landowner Improvements. Nothing contained herein
shall be deemed an assumption by the City of any responsibility for construction, maintenance,
replacement or repair of the Landowner Improvements.
3.3 Continuing Right to City Easement. Nothing contained herein shall be deemed
a waiver or abandonment or transfer of the right, title and interest that the City holds to the City
Easement.
3.4 Subordinate Position of Landowner Improvements. The Landowner
Improvements are subordinate to the rights of the City in the City Easement.
3.5 Risk of Loss. Landowner understands and agrees that the Landowner
Improvements within the City Easement may be adversely affected by damage caused to
Landowner Improvements arising out of the City’s use of the City Easement, natural events, or by
cause of third parties. The parties agree that the City is not responsible for such events; the City
shall have no liability to Landowner for such events.
3.6 Landowner to Bear Cost of Relocating Landowner Improvements. The City is
responsible for any necessary repair and maintenance of the City Easement for drainage purposes.
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The City may require the Landowner at the expense of the Landowner to temporarily
remove and subsequently replace the Landowner Improvements in the City Easement in order for
the City to gain access to the City Easement for the purpose of inspecting, repairing, maintaining,
or replacing the City Easement or adding future improvements.
If the Landowner does not perform such tasks, the City may perform such tasks and in such
case the Landowner shall reimburse the City for the City’s costs and expenses. Prior to
commencing such tasks, the City shall send a notice to the Landowner and allow the Landowner
twenty (20) days from the date of the written notice to perform the tasks. If the Landowner has
not completed the work within the twenty (20) days, then the City may proceed to perform the
tasks. Once the City’s costs and expenses have been determined by the City, the City shall send
an invoice for such costs and expenses to the Landowner. The Landowner must pay the invoice
within thirty (30) days after the date of the invoice. Such costs and expenses include, but are not
limited to, costs charged the City by third parties such as contractors as well as the costs for City
personnel that may have performed the work. Bills not paid shall incur the standard penalty and
interest established by the City for utility billings within the City.
3.7 Emergency. Notwithstanding the requirements contained in Sections 3.6 relating
to a twenty (20) day written notice to the Landowner to perform its obligations under Sections 3.6,
the City shall not be required to give such notice if the City’s Public Works Department determines
that an emergency exists. In such instance, the City, without giving notice to the Landowner may
perform the work and in such case the Landowner shall reimburse the City for the costs and
expenses relating to the work. Once the City’s costs and expenses have been determined by the
City, the City shall send an invoice for such costs and expenses to the Landowner. The Landowner
must pay the invoice within thirty (30) days after the date of the invoice. Such costs and expenses
include, but are not limited to, costs charged the City by third parties such as contractors as well
as the costs for City personnel that may have performed the work. Bills not paid shall incur the
standard penalty and interest established by the City for utility bills within the City.
3.8 Cost Deferential. If a Cost Deferential occurs relating to the access to or
inspection, maintenance, repair or replacement of the City Easement or relating to construction of
new improvements in the future, then the Landowner shall pay the Cost Deferential to the City.
The Landowner must make payment for the Cost Deferential within thirty (30) days after the City
has sent a written invoice for the Cost Deferential to the Landowner.
3.9 Remedies. If the Landowner fails to perform its obligations under this Agreement,
then the City may avail itself of any remedy afforded by law or in equity and any of the following
non-exclusive remedies:
(a) The City may specifically enforce this Agreement.
(b) If Landowner fails to make payments under Section 3.6, 3.7 or 3.8, then the City
may certify to Dakota County the amounts due as payable with the real estate taxes
for the Encroachment Property in the next calendar year; such certifications may
be made under Minnesota Statutes, Chapter 444 in a manner similar to certifications
for unpaid utility bills. The charges shall be evenly allocated among the
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Encroachment Property. The Landowner waives any and all procedural and
substantive objections to the imposition of such usual and customary charges on
the Encroachment Property.
Further, as an alternate means of collection, if the written billing is not paid by the
Landowner, the City, without notice and without hearing, may specially assess the
Encroachment Property for the costs and expenses incurred by the City. The
Landowner hereby waives any and all procedural and substantive objections to
special assessments for the costs including, but not limited to, notice and hearing
requirements and any claims that the charges or special assessments exceed the
benefit to the Encroachment Property. The Landowner waives any appeal rights
otherwise available pursuant to Minnesota Statute § 429.081. The Landowner
acknowledges that the benefit from the performance of tasks by the City equals or
exceeds the amount of the charges and assessments for the costs that are being
imposed hereunder upon the Encroachment Property.
No remedy herein conferred upon or reserved to the City shall be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay
or omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as may be deemed
expedient.
3.10 Indemnification. The Landowner shall indemnify, defend and hold the City, its
council, agents, consultants, attorneys, employees and representatives harmless against and in
respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies including interest, penalties and
attorneys’ fees, that the City incurs or suffers, which arise out of, result from or relate to any of the
following:
(a) The Landowner Improvements;
(b) Maintenance of the Landowners Improvements;
(c) Failure by the Landowner to observe or perform any covenant, condition, obligation
or agreement on their part to be observed or performed under this Agreement; and
(d) Use of the City Easement for Landowner Improvements.
3.11 City Duties. Nothing contained in this Agreement shall be considered an
affirmative duty upon the City to perform the Landowner’s obligations contained in Article 3 if
the Landowner does not perform such obligations.
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3.12 No Third Party Recourse. Third parties shall have no recourse against the City
under this Agreement.
3.13 Recording. The Landowner shall record this Agreement with the Dakota County
Recorder against the Encroachment Property and within thirty (30) days after the date of this
Agreement, the Landowner shall present evidence to the City that this Agreement has been
recorded.
3.14 Binding Agreement. The parties mutually recognize and agree that all terms and
conditions of this recordable Agreement shall run with the Encroachment Property and shall be
binding upon the heirs, successors, administrators and assigns of the parties. The obligations of
the Landowner contained in this Agreement are joint and several.
3.15 Amendment and Waiver. The parties hereto may by mutual written agreement
amend this Agreement in any respect. Any party hereto may extend the time for the performance
of any of the obligations of another, waive any inaccuracies in representations by another contained
in this Agreement or in any document delivered pursuant hereto which inaccuracies would
otherwise constitute a breach of this Agreement, waive compliance by another with any of the
covenants contained in this Agreement and performance of any obligations by the other or waive
the fulfillment of any condition that is precedent to the performance by the party so waiving of any
of its obligations under this Agreement. Any agreement on the part of any party for any such
amendment, extension or waiver must be in writing. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver.
3.16 Governing Law. This Agreement shall be governed by and construed in accord
with the laws of the State of Minnesota.
3.17 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
3.18 Headings. The subject headings of the sections this Agreement are included for
purposes of convenience only, and shall not affect the construction of interpretation of any of its
provisions.
3.19 Notice. Notice shall mean notices given by one party to the other if in writing and if
and when delivered or tendered either in person or by depositing it in the United States mail in a
sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid,
addressed as follows:
If to City: City of Hastings
Attention: City Administrator
101 4th Street
Hastings, MN 55033
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If to Owner: Brian R. Miller
Jennifer M. Miller
751 Bohlken Drive
Hastings, MN 55033
or to such other address as the party addressed shall have previously designated by notice given in
accordance with this Section. Notices shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be given, or on the third day after mailing if
mailed as provided above, provided, that a notice not given as above shall, if it is in writing, be deemed
given if and when actually received by a party.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement the year and day
first set forth above.
CITY OF HASTINGS
By: ____________________________________
Mary Fasbender, Mayor
ATTEST:
By: _____________________________________
Kelly Murtaugh, City Clerk
STATE OF MINNESOTA )
)
COUNTY OF DAKOTA )
On this ___ day of ____________________, 2023, before me a Notary Public within and
for said County, personally appeared Mary Fasbender and Kelly Murtaugh to me personally
known, who being each by me duly sworn, each did say that they are respectively the Mayor and
the City Clerk of the City of Hastings, the Minnesota municipal corporation named in the foregoing
instrument, and that the instrument was signed in behalf of said municipal corporation by authority
of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation.
________________________________________
Notary Public
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LANDOWNER
By:
Brian R. Miller
By:
Jennifer M. Miller
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
On this _____ day of _____________________, 2023, before me a Notary Public within
and for said County, personally appeared Brian R. Miller and Jennifer M. Miller, husband and
wife.
Notary Public
THIS INSTRUMENT DRAFTED BY AND
AFTER RECORDING PLEASE RETURN TO:
Korine L. Land, #262432
LeVander, Gillen & Miller, P.A.
1305 Corporate Center Drive, Suite 300
Eagan, MN 55121
(651) 451-1831
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EXHIBIT A
CITY EASEMENT & ENCROACHMENT AREA
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