IV.7. Approve Right of Way Encroachment Agreement – 5 6th Avenue South; Stadler (CR2015-148)November 23, 2015 N o P��� S Councol Report 2015-14�
Approve Right of ay Encroach�ent Ag�eernent - 5 6g'' /�verrue Sou#h
Proposed Action
Staff recommends adoption of the following motion: Move that Council approves a right of way
encroachment agreement between the City and the property owners at 5 6th Avenue South.
Overview
The building at 5 6th Avenue South (Midnight Market building) currently encroaches onto the
public right of way a little over 2 feet (about 101 sq ft). The property is owned by Eugene and
Eileen Ma�cwell. It is unknown why the building was built to encroach onto the ROW. The
parties have agreed to the enclosed encroachment agreement to memorialize the terms and
conditions. The current property owners requested an encroachment agreernent to clear the
property title. The proposed encroachment agreement terms are similar to an encroachment
agreement approved in May, 2015 for an encroaching private retaining wall at 8660 Excelsior
Blvd. The City Attorney and legal counsel representing the property owners have jointly drafted
the attached agreement.
City staff recommends approval of the encroachment agreement.
Primarv Issues to Consider
Terms of the agreement
• Termination clause: The City may terminate upon 60-day written notice in the event the
encroachment is removed. City may terminate immediately in event of threat to public
health, safety or welfare.
• Any disturbance of the encroachment will be replaced at the sole cost of the property
owners.
• Property owners required to maintain the encroachment in good repair and must seek
City review & approval prior to any modifications or improvements.
• Property owner must include the encroachment area as insured premises under their
liability insurance policy
Supportinq Information
• Proposed Encroachment Agreement
• Photogr ph of 5 6th Ave S building encroachment
,- �
- - _�
Steven J. Stadler, Public Works Director
Financial Impact: n/a Budgeted: Source:
Related Documents (CIP, ERP, etc.):
Notes:
ENCROACHMENT AGREEMENT
T�IIS ENCROACHMEleT�' AGREEMENZ' ("Agreement") is made on
, 2015 ("Effective Date"), by and among the City of Hopkins, a
Minnesota municipal corporation ("City"); and Eugene Maxwell and Eileen Maxwell, married to
each other (the "Property Owners").
RECITALS
a. City is the owner of 6ti' Avenue South, a public road in the City of Hopkins, Hennepin
County, Minnesota (the "Road").
b. Property Owner is the owner of the real property in Hennepin County, Minnesota legally
described on attached Exhibit A(the "Property").
c. The Property abuts the Road.
d. Part of the 1-story block and brick building on the Property encroaches over the east
property line onto the Road ("Encroachment"). The Encroachment is depicted and
legally described on attached Exhibit B.
e. The Parties have agreed on terms and conditions for the Property Owners to maintain the
Encroachment and desire to enter into this Agreement to memorialize the agreed terms
and conditions.
AGREEMENT
NOW, THEREFORE, it is hereby and herein mutually agreed, in consideration of
promises and considerations of the Parties as set forth, as follows:
1. The above Recitals and attached Exhibits are a material part of this Agreement and are
incorporated herein.
2. The City hereby grants to the Property Owners a non-exclusive license within the Road in
the current location of the Encroachment as depicted and legally described on attached
Exhibit B("License"), subject to the terms and conditions of this Agreement.
3. The License shall commence upon the Effective Date and shall terminate pursuant to
Paragraph 6 below ("Term"). . _ _ _ _
4. The Property Owners shall, during the Term, maintain, at Property Owners sole cost and
expense, the current Encroachment improvements in good repair and in compliance with
all applicable local, state and federal rules and regulations. In the event the Property
1
Owwrgers desire to improve the Encroachrnent, Property Owners shall submit a plan,
subject io the review and approval of the City, and any worlc shall stricily comply vvith
the approved plans and shall be at the sole cost and expense of the Property Owners.
5. In the event the City desires to make improvements within the Road the City will take
reasonable measures to limit disturbance of the Encroachment. Any areas of the
Encroachment that are disturbed will be replaced at the sole cost and expense of the
Property Owners.
6. The City may terminate this Agreement and the License upon 60-day written notice to the
Property Owners in the event the Encroachment is removed from the License area and
such removal continues for 6 consecutive months (the "Termination Event"). For
purposes of this Paragraph, the Termination Event does not include any improvement to
the Encroachment pursuant to Paragraph 4 above. The City may terminate this
Agreement and the License immediately upon providing written notice in the event the
City determines that such termination is necessary to protect the health, safety and
welfare of the public from, as reasonably determined by the City, an immediate threat.
Immediately upon termination, the Property Owners shall remove the Encroachment
from the Road and shall restore, to the satisfaction of the City, the License area to a
condition consistent with the Road at the sole cost and expense of the Property Owners.
In the event the Property Owners fail to remove the Encroachments from the Road and
restore the License Area upon termination, the City may, but is not obligated to, complete
such work. In such an event, the Property Owners shall pay to the City, within 30 days
notice, the City costs for said work.
7. The Property Owners shall include the Encroachment as insured premises under their
property liability insurance policy. Within 10 business days of the Effective Date
Property Owners shall provide the City with evidence of said insurance. Said insurance
shall be maintained at all times during the Term.
8. Property Owners hereby agree that it will indemnify, defend and hold harmless the City
of Hopkins, its elected official, officers, employees, agents and consultants ("Indemnified
Parties") against all liabilities, judgements, claims, costs and expenses including
reasonable attorneys' fees, which may occur or arise against the Indemnified Parties,
arising from Property Owners' use of the License area.
9. All notices required under this Agreement shall be written and delivered either by hand
delivery or first class U.S. mail, postage paid, to the following address:
a. If to the City: City of Hopkins
1010 lst Street South
Hopkins, MN 55343
Attn: City Manager
2
b. If to Property Owners: Eugene �nd Eileen 1l�axwell
5 6th Ave. S.
Hopkins 1VIN 55343
10. This Agreement runs with the land and is binding on the Property Owners, their heirs,
successors and assigns. This Agreement is appurtenant to The Property and may only be
assigned accordingly.
11. This Agreement and License creates no easement or other interest in that part of the
License area beyond that created herein.
IN WITNESS WHEl�OF, the parties herein haVe executed this Agreement on the
Effective Date
CITY OF HOPKINS
By
Mayor
And
By
City Clerk
STATE OF MINNESOTA )
) SS
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on
by
and , Mayor and Clerk, respectively, of the City
of Hopkins, a Minnesota municipal corporation, on behalf of said corporation.
Notary Public
4
STATE OF MINNESOTA
) SS
COUNTY OF
• .
Eugene Maxwell
Eileen Maxwell
This instrument was acknowledged before me on , 2015 by Eugene
Maxwell and Eileen Maxwell.
Drafted by:
Hoff, Barry & Kozar, P.A.
Suite 160
775 Prairie Center Drive
Eden Prairie MN 55344
5
Notary Public
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That part of the existing road right-of-way of 6th Avenue South adjoining the westerly line of
Block 1, West IVlinneapolis, according to the recorded plat thereof, Hennepin County,
Minnesota, described as follows:
Commencing at the southwest corner of Lot 30, said Block 1; thence on an assumed bearing of
North 03 degrees 06 minutes 41 seconds East along the west line of said Block 1, a distance of
28.99 feet to the southerly wall of an existing building and the point of beginning of the parcel
of land to be described; thence North 86 degrees 10 minutes 45 seconds West along said
southerly wall, a distance of 2.46 feet to a southwest corner of said existing building; thence
North 03 degrees 39 minutes 54 seconds East along the westerly wall of said existing building,
a distance of 45.06 feet to the northwest corner of said existing building; thence South 86
degrees 18 minutes 16 seconds East along the northerly wall of said existing building, a
distance of 2.02 feet to the west line of said Block 1; thence South 03 degrees 06 minutes 41
seconds West along said west line, a distance of 45.07 feet to the point of beginning.