HomeMy WebLinkAbout20100621 - VI-08
MEMO
To:
Honorable Mayor and City Council
From:
Nick Egger – City Engineer
Date:
June 11, 2010
Re:
Authorize City Attorney to Negotiate Agreement – 110 Whispering Lane
The Council is requested to authorize the City Attorney to negotiate the terms of an agreement
with the owner of the property at 110 Whispering Lane, to ensure full disclosure of the
driveway grade and indemnification of the City due to the driveway grade being out of
compliance with standards.
The new home at 110 Whispering Lane was completed recently and is awaiting approval of a
Final Certificate of Occupancy from the City. However, the grade of the driveway was found
to be inconsistent with what was indicated on the approved plan and is in fact well out of
tolerances for approval to be considered by the City. The concern the City has is that the
driveway is too steep such that ordinary passenger cars will have difficulty entering the
approach without scraping portions of the undercarriage or body on either the driveway or the
street.
City staff has discussed options with the property owner, JHL Construction, and agree that it
would be impractical and cost prohibitive to modify either portions of the home/garage or
driveway to achieve a more reasonable and tolerable driveway grade. It is also the position of
City staff that it is not the City’s obligation, nor is it practical to make any accommodations to
City infrastructure within the right of way in order for the grades to be more reasonable.
Therefore, it is the consensus of all parties involved that a recorded agreement be
implemented requiring the owner to disclose this situation fully to any future owner of the
property such that that prospective owner can make a fully informed decision as it relates to
the driveway. The agreement would also absolve the City from liabilities for making an
exception to City standards in this case.
A copy of the draft agreement is attached for your reference.
Staff Recommendation
Staff is recommending authorization be granted to allow the City Attorney to negotiate the
agreement with the property owner at 110 Whispering Lane. If there are no further
amendments made to the language in the agreement, the process would carry forward and the
agreement signed and recorded without further approvals needed from the Council. If any
substantive changes to the agreement are requested from the property owner, staff will present
the final agreement to the Council for consideration and approval before binding the City.
NOTICE AND ACKNOWLEDGMENT
AND
INDEMNIFICATION AGREEMENT
This agreement is made and entered into this _____ day of _______, 2010, by and between
JHL Construction, Inc. and John Langenfeld, individually, (hereinafter collectively “Developer”)
with an address of 110 Sibley Street, Hastings MN 55033 and the City of Hastings, a Minnesota
th
Municipal Corporation, with an address of 101 East 4 Street, Hastings MN 55033 (hereinafter
“City”).
RECITALS
WHEREAS
1., JHL Construction, Inc. is the owner, in fee, of real property located at 110
Whispering Lane, Hastings MN 55033 and legally described as follows:
nd
Lot 1, Block 1, Williams 2 Addition,
Dakota County, Minnesota (hereinafter “the Subject Property”);
Dakota County Parcel ID #19-84301-010-01.
WHEREAS
2., John Langenfeld is the controlling shareholder of JHL Construction, Inc.
WHEREAS
3., Developer has constructed on the Subject Property a single family residence,
including a driveway providing access to the structure from Whispering Lane, a public right-
of-way.
WHEREAS
4., prior to initiating construction, Developer submitted building plans and
specifications to the City and obtained a building permit for construction of the single family
residence.
WHEREAS
5., the building plans submitted by Developer to the City as part of the building
permit process included driveway grade specifications which complied with the standards
and specifications required by the City for construction of driveways servicing single family
residential structures.
WHEREAS
6., after obtaining the building permit, the Developer completed construction of
the single family residence and driveway on the Subject Property which had an as-built
grade in excess of that set forth on the plans and specifications previously submitted to the
City and in excess of that determined suitable by the City for a single family residential
driveway.
WHEREAS
7., the City notified Developer of the discrepancy between the as-built driveway
grade and the plans and specifications previously submitted by the Developer.
WHEREAS
8., the Developer has determined that corrective measures are not practical and
Developer would incur substantial costs in correcting the condition which would include
excavation, regrading and resurfacing of the driveway, and changing the elevation and/or
relocation of the garage parking surface within the structure.
WHEREAS
9., the City engineer has determined that the steep grade of the driveway does not
create an imminent safety risk but has further determined that all future owners and
occupants of the Subject Property must be made aware of the steep grade condition to ensure
they and their successors can take proper action to maintain the driveway and safeguard
against damage or injury to person or property.
WHEREAS
10., the City has determined that mandatory removal and replacement of the
driveway surface, based on the estimated costs, is not warranted so long as the Developer
agrees to certain conditions that will provide reasonable notice to all future owners and
occupants of the property.
WHEREAS
11., the City has conditioned issuance of the Certificate of Occupancy for the
Subject Property upon Developer entering into a satisfactory agreement acknowledging
Developer’s obligations to provide notice to future owners and to hold the City harmless
from any claims that may arise as a result of the steep driveway condition.
WHEREAS
12., the parties wish to reduce their understanding and agreement to writing.
NOW, THEREFORE,
it is acknowledged, agreed and understood as follows:
1. The Recitals above are incorporated herein.
2. Developer shall provide conspicuous, written notice to all potential and actual purchasers of
the Subject Property that the grade of the driveway exceeds the standards otherwise allowed
within the City of Hastings for single family residential driveways. The notice shall include
a statement that “The City of Hastings shall be under no obligation to modify Whispering
Lane or any public improvements to accommodate for the steep grade of the driveway or to
prevent damage or injury to persons or property resulting from use of the driveway.”
3. Prior to entering into any contract for sale of the Subject Property, Developer shall cause this
notice and agreement to be recorded upon the public real estate records for the Subject
Property in the Office of the County Recorder in and for Dakota County, Minnesota and with
the expense of such recording paid by Developer.
4.Developer, being JHL Construction, Inc. and John Langenfeld, individually, and each of
them, hereby agrees to indemnify and hold harmless the City, its public officials, employees,
agents, and contractors from and against any and all loss, costs, damage, liability, claim,
action, cause of action or expense (including, without limitation, reasonable attorney fees
and costs) incurred by City and arising out of or in connection with the existence, use,
misuse, or condition of the driveway on the Subject Property except for those that directly
result from the negligence of the indemnified party or parties. The foregoing
indemnification shall survive any sale of the Subject Property by Developer to an initial
purchaser and shall also survive sale of the Subject Property to subsequent purchasers.
JHL CONSTRUCTION, INC.
Dated: _____________ By:____________________________
John Langenfeld
Its President
ACKNOWLEDGMENT
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this day of _________, 2010 by
John Langenfeld the President of JHL Construction, Inc.
____________________
NOTARY PUBLIC
Dated: _______________ By:___________________________
John Langenfeld, Individually
ACKNOWLEDGMENT
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this ___ day of ___________, 2010
by John Langenfeld, individually.
____________________
NOTARY PUBLIC
CITY OF HASTINGS
Dated: _________________ By:___________________________
Paul Hicks, Its Mayor
(SEAL)
By:___________________________
Melanie Mesko Lee, Its Assistant
City Administrator and City Clerk
ACKNOWLEDGMENT
STATE OF MINNESOTA )
)ss
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this _____ day of ________, 2010, by Paul
J. Hicks, Mayor and Melanie Mesko Lee, Assistant City Administrator/City Clerk, on behalf of the
City of Hastings, a Minnesota municipal corporation.
______________________________
Notary Public
Drafted By: Return to:
Daniel J. Fluegel City of Hastings
th
Fluegel Law Firm P.A. 101 East 4 Street
999 Westview Drive, Suite #1 Hastings, MN 55033
Hastings MN 55033
651-438-9777