HomeMy WebLinkAboutVI-11 - License to Encroach - 731 31st Street W
City Council Memorandum
To: Mayor Fasbender & City Councilmembers
From: John Hinzman, Community Development Director
Date: January 7, 2019
Item: Authorize Signature – License to Encroach – Peterson – 731 31st Street W
Council Action Requested:
Authorize Signature of the attached License to Encroach Agreement for a rear
patio located on property owned by the Charles D. and Amanda C. Peterson
located at 731 31st Street W. A simple Council majority is necessary for action.
Background Information:
The existing patio was constructed partially within a drainage and utility easement.
The License would allow for current use of the encroachment, but 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 encroachment was discovered upon title review for a property
transfer.
Financial Impact:
Recognition of the encroachment will allow for sale of the property and continued
use.
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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LICENSE TO ENCROACH
THIS AGREEMENT is made by and between the City of Hastings, a Minnesota
municipal corporation, as Licensor, (“City”) and Charles D. Peterson and Amanda C.
Peterson, husband and wife, as Licensee. Where referred to herein, Licensee shall
include reference to Licensee’s successors, and assigns as to the Licensee’s Property, as
defined herein.
RECITALS
A. Licensee is the owner of real property located generally at 731 31st Street West in
the City of Hastings, Dakota County, Minnesota and legally described on the
attached Exhibit A (hereinafter referred to as “Licensee’s Property”):
B. Licensee’s Property is encumbered by a drainage and utility easement over the
southern 20 feet of Licensee’s Property as more fully defined in the Plat of South
Oaks of Hastings 2nd Addition, Dakota County, Minnesota (hereafter “the
Drainage and Utility Easement”).
C. It has come to the attention of both City and Licensee that the most southerly
portion of the patio on Licensee’s Property encroaches into the Drainage and
Utility Easement by less than ten feet. The portion of the patio that encroaches
into the Drainage and Utility Easement is hereinafter referred to as the
“Encroaching Improvement”.
D. The City of Hastings has established written policies prohibiting improvements
within drainage and utility easements within the City.
E. Licensee does not wish to remove the Encroaching Improvement at this time and
has asked the City for permission to allow the Encroaching Improvement to
remain in its present location, subject to certain restrictions.
F. City is willing to grant Licensee permission for the Encroaching Improvement to
remain in its current location and as an encroachment into the Drainage and
Utility Easement, but only subject to the terms and conditions set forth in this
License to Encroach.
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NOW, THEREFORE, it is agreed as follows:
GRANT OF LICENSE AND SPECIAL CONDITIONS
1. This License to Encroach grants to Licensee, and the successors and assigns of
Licensee’s Property, the right to continue the existing encroachment of the
Encroaching Improvement within the Drainage and Utility Easement and imposes
obligations and responsibilities upon Licensee, in exchange for the permission
allowing the Encroaching Improvement to remain as an encroachment within the
Drainage and Utility Easement. This License to Encroach, and the rights granted
hereunder, is not and shall not be construed as a lease or a release, termination or
subordination of the Drainage and Utility Easement, and Licensee shall not at any
time claim any interest or estate of any kind or extent whatsoever inconsistent
with the City retaining all right, title and interest to the Drainage and Utility
Easement, indefinitely, and Licensee shall not interfere with or prohibit the City’s
use of the Drainage and Utility Easement, except to the extent specifically
authorized herein, by virtue of this License to Encroach or their occupancy or use
of Licensee’s Property.
2. Licensee shall have the right to encroach within that portion of the Drainage and
Utility Easement only for the purpose of maintaining the Encroaching
Improvement in its current location as of the date of this License to Encroach.
This License to Encroach shall not allow or permit Licensee to expand the amount
or extent of the encroachment beyond what exists on the date of this License to
Encroach. The City has photographs on file that show the extent of the
encroachment which the parties agree shall be conclusive proof of the extent of
the encroachment as of the date of this agreement.
3. Licensee shall not install or place any new fence or any other structure or
improvement of any type within the Drainage and Utility Easement. Licensee
shall not store or place any other personal property within the Drainage and
Utility Easement.
4. Licensee agrees to defend and save the City harmless from any claims, demands,
actions or causes of action by any person arising out of any acts or omissions on
the part of Licensee, their successors and assigns, and their agents, servants,
employees, or family members in relation to the use of the Drainage and Utility
Easement for the purposes outlined in this Agreement.
5. Licensee acknowledges there is a private sanitary sewer main within the Drainage
and Utility Easement that services adjacent properties and in the event access to
that sanitary sewer main would ever be needed for repair or maintenance
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purposes, excavation in the Drainage and Utility Easement may be necessary and
could possibly result in damage to the Encroaching Improvement.
6. Licensee agrees that the terms of this License to Encroach shall run with
Licensee’s property and shall bind Licensees’ heirs, successor’s and assigns.
7. The City is authorized by Licensee to record this License to Encroach upon the
public records for Dakota County, Minnesota and in the event the City records the
Agreement, all costs thereof shall be paid for by Licensee.
This License to Encroach is granted as of January 7, 2019.
LICENSOR:
CITY OF HASTINGS
A Minnesota municipal corporation
Dated: _____________________ By: ___________________________
Mary Fasbender, Mayor
(SEAL) By: ___________________________
Julie Flaten, City Clerk
LICENSEE:
_________________________________
Charles D. Peterson
_________________________________
Amanda C. Peterson
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ACKNOWLEDGMENT
STATE OF MINNESOTA)
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me 7th day of January, 2019,
by Mary Fasbender and Julie Flaten, the Mayor and City Clerk of the City of Hastings,
a Minnesota municipal corporation.
Notary Public
ACKNOWLEDGEMENT
STATE OF MINNESOTA)
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this _______ day of
____________________, 2019, by Charles D. Peterson and Amanda C. Peterson,
husband and wife.
___________________________
Notary Public
THIS INSTRUMENT DRAFTED BY AND RETURN TO:
FLUEGEL LAW FIRM P.A.
Attention: Daniel J. Fluegel
999 Westview Drive, Suite #1
Hastings, MN 55033
651-438-9777
(DAN/has)
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EXHIBIT A
LEGAL DESCRIPTION
That part of Lot Three (3) and Lot Four (4), Block Five (5), South Oaks of Hastings 2nd
Addition, Dakota County, Minnesota, described as follows: Commencing at the
southeast corner of Lot 4, Block 5; thence South 79 degrees 18 minutes 40 seconds West
(assumed bearing) along the south line of said Lot 4, Block 5, a distance of 5.00 feet to
the point of beginning of the land to be described; thence continuing South 79 degrees 18
minutes 40 seconds West along said south line of Lot 4 and Lot 3, Block 5, a distance of
45.50 feet; thence North 10 degrees 41 minutes 20 seconds West parallel to with the east
line of said Lot 4, Block 5, a distance of 106.00 feet to the north line of said Lot 3, Block
5, thence North 79 degrees 18 minutes 40 seconds East along the north line of said Lot 3
and Lot 4, Block 5, a distance of 45.50 feet; thence South 10 degrees 41 minutes 20
seconds East, parallel with said east line of Lot 4, Block 5, a distance of 106.00 feet to the
point of beginning.
Dakota County Parcel Identification No.: 19-71026-05-042
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