IV.4. Approve Encroachment Agreement at 708 Robinwood Lane; Stanley December 1, 2020 Council Report 2020-092
APPROVE ENCROACHEMENT AGREEMENT
708 ROBINWOOD LANE
Proposed Action
Staff recommends the following motion: Approval of Encroachment Agreement at 708 Robinwood Lane.
Overview
708 Robinwood Lane is in the process of being sold, and city staff was recently contacted by a closing agent
representing the seller. During review and preparation for the sale closing, the buyer discovered that the
detached garage, which was built decades ago, had been built partially within a platted utility easement. The
buyer requested that the seller obtain an encroachment agreement prior to closing as a permission for the
garage to remain. Staff has reviewed the area and finds this arrangement acceptable, as no city utilities exist
in this easement and a future city need here is not anticipated. The easement does need to remain, as
overhead power does span the easement.
This situation is not uncommon, during projects staff often discovers structures, landscaping, retaining
walls, or fencing that is within an easement or right-of-way. In those instances we work with the property
owner avoid impacts. While this agreement memorializes the presence of the garage, the city’s standard
protocol if we were working in the area would be to work around the structure and avoid impacts to the
garage.
The attached encroachment agreement was prepared by the City Attorney and reviewed by the City
Engineer. The agreement has been executed by the owner, staff recommends approval.
Supporting Information
Encroachment Agreement
_________________________________
Nate Stanley, P.E.
City Engineer
1
ENCROACHMENT AGREEMENT
This Encroachment Agreement (“Agreement”) is made as of the ___ day of ____________,
2020, by and between the City of Hopkins, a Minnesota municipal corporation (the “City”), and
Faron Kuehn (the “Owner”).
RECITALS
A. The Owner is fee owner of Hennepin County PID 13-117-22-33-0019, real property
that is legally described as follows:
Lot 4, Block 2, Robinwood 5th Addition, Hennepin County, Minnesota.
(the “Property”).
B. The Property is subject to a platted public drainage and utility easement on its southern
boundary (the “Easement”) and the Owner has constructed a garage within said
Easement contrary to local laws and regulations (collectively, the “Encroachment”). A
depiction of the Encroachment is contained on Exhibit A attached hereto.
C. The City has agreed that the Owner may utilize the Easement for the Encroachment on
condition that the Owner executes this Agreement.
AGREEMENT
NOW, THEREFORE, on the basis of the premises and the mutual covenants and
agreements set forth in this Agreement, the parties agree as follows:
1. The Owner may continue to maintain the Encroachment, including the
aforementioned garage, within the Easement and in accordance with this Agreement.
2. The permission granted by the City in this Agreement is limited exclusively to the
Encroachment, as outlined in paragraph B of the recitals of this Agreement, and no additional
improvements may be constructed or installed by the Owner within the Easement unless expressly
authorized by the City or the Hopkins City Code.
2
3. This Agreement shall not prevent or impair the future exercise of easement rights
by the City, including the right to enter the Easement for locating, constructing, reconstructing,
operating, maintaining, inspecting, altering and repairing water main, sanitary sewer lines, utilities,
drainage ways, and stormwater facilities therein.
4. The Owner shall be solely responsible for the maintenance of the Encroachment,
including but not necessarily limited to the garage, and any movable property located within the
Easement, and shall be entitled to maintain and repair the Encroachment as needed, so long as such
maintenance and repair does not interfere with the City’s rights within the Easement or expand the
Encroachment so that it is further encroaching into the Easement.
5. In the event that the garage is destroyed to the extent that it must be removed and
reconstructed, the Owner shall reconstruct it so that it is no longer within the Easement, i.e. remove
the entire Encroachment.
6. In the event that the garage is voluntarily removed by the Owner, any new garages
or other improvements must be constructed on the Property so that they are not within the
Easement, and otherwise in compliance with all local ordinances, and said activity shall also
require the Owner to remove the entire Encroachment from the Easement.
7. This Agreement shall run with the Property and shall inure to the benefit of and be
binding upon the parties to this Agreement and their respective successors and assigns.
8. The Owner, its successors and assigns shall indemnify, hold harmless, and defend
the City, its officials, employees, contractors and agents, from and against any and all claims,
losses, proceedings, damages, causes of action, liability, costs or expenses (including reasonable
attorneys’ fees), arising from or in connection with or caused by any act, omission or negligence
of the Owner, its contractors, licensees, invitees, agents, servants or employees in connection with
the Owner’s use, repair or maintenance of the Encroachment within the easement.
9. Upon a determination by the City that it is necessary to utilize the Easement in an
authorized manner that is inconsistent with the Encroachment, or that it is necessary for any other
reason, including public safety, the City may, at its sole discretion, terminate this Agreement at
any time by giving the then owner of the Property thirty (30) days’ advance written notice of the
termination, except that no notice period will be required in the case of an emergency condition as
determined solely by the City and the Agreement may then be terminated immediately. Prior to
the effective date of termination of this Agreement, the Owner shall entirely remove the
Encroachment at its sole cost. If the Owner fails to remove the Encroachment, the City may
remove it and charge the cost of removal back to the Owner for reimbursement. The Owner’s
obligation to remove the Encroachment and to indemnify the City shall survive revocation or
termination of this Agreement.
10. The Owner agrees not to suffer or allow any liens, claims, or processes to be placed
against the City’s rights to or interest in the Easement area as a result of the Owner’s use of the
Easement, including, without limitation, any liens for labor or materials provided for the repair or
maintenance of the Encroachment.
3
11. Nothing contained in this Agreement shall be deemed a waiver by the City of any
governmental immunity defenses, statutory or otherwise. Any claims shall be subject to the City’s
governmental immunity defenses and the maximum liability limits provided in Minnesota Statutes,
Chapter 466, if applicable.
12. This Agreement shall be governed by and construed and enforced in accordance
with the laws of Minnesota.
13. This Agreement shall constitute the entire agreement between the parties and any
prior understandings or representation of any kind preceding the date of this Agreement shall not
be binding upon either party except to the extent incorporated in this Agreement.
14. Any modification to this Agreement shall be binding only if evidenced in writing
signed by both parties.
15. The Owner agrees that its use of the Easement area is with the City’s permission
and is not open, continuous, notorious, or any other manner supportive of a claim of adverse
possess, prescriptive easement, abandonment, or other entitlement to the Easement property. This
Agreement is not a lease or easement and does not confer any estate or interest in real property to
the Owners by the City beyond what is specifically recited herein.
[signature pages to follow]
4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
CITY OF HOPKINS
By:________________________
Jason Gadd
Its: Mayor
By:________________________
Mike Mornson
Its: City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ___ day of _________, 2020,
by Jason Gadd and Mike Mornson, the Mayor and City Manager, respectively, of the City of
Hopkins, Minnesota, a municipal corporation, on behalf of the City.
__________________________________
Notary Public
A-1
EXHIBIT A
Depiction of Encroachment