CR 2013-049 Approve License and Use Agreement - 105 Harrison Ave SCity of Kopkin,5
May 21, 2013 Council Report 2013-049
APPROVE LICENSE AND USE AGREEMENT
Proposed Action
Staff recommends the following motion: "Move that Council adopt Resolution 2013-026,
Resolution Approving License and Use Agreement."
Overview
The property located at 105 Harrison Avenue South has been split into three parcels
for the purpose of constructing 2 new single family houses. The garage for 105
Harrison is located at the back of the lot and will no longer be able to access off of
Harrison Avenue. The owner has requested permission to construct a driveway from
their garage through the public right of way to 1St Street S between 101 Harrison
Avenue and Blake School.
• The attached agreement lays out the terms and conditions of the use. Additional
information is included below.
Supporting Information
■ Analysis of Issues
■ Blake School Letter
■ License and Use Agreement
■ Resolution 2013-026
vv
R. Bradford, P.E., City Engineer
Financial Impact: $ 0.00 Budgeted: Y/N NA Source: NA
Related Documents (CIP, ERP, etc.): NA Notes:
\\Lisa\Engineering\Council Reports\2013\CR2013-049 Approve Right of Way Usage License - 105 Harrison.docx.doc
Council Report 2013-049
Page 2
• Analysis of Issues
Background
105 Harrison Avenue South was divided into three lots for the purpose of constructing
two new houses. The lot division did not warrant review by the Zoning and Planning
Commission because the lots were already in existence.
The existing house at 105 Harrison will remain in place and has a garage located at the
back of the lot. The existing driveway extends south through the parcels that are planned
for the new houses. The owner of the property has requested to use the public alley right
of way between Harrison Avenue and Blake School for access to the garage. The
proposed driveway is shown on the attached drawing.
We had considered constructing a full concrete alley (at developer's expense) but decided
against it because of the burden on the City to maintain, plow, and collect refuse on a
dead end alley.
Neighbor Reaction
The proposed driveway in the public alley would be adjacent to 101 Harrison Avenue and
Blake School at 1St Street South. No other properties are adjacent to the driveway.
• Both the owner of 101 Harrison Avenue S. and Blake School have expressed concerns
about the driveway.
The 101 Harrison owner concerns include traffic on the driveway, parking on the
driveway during Blake events, pedestrian safety, and possible decrease in their property
value. They have also stated that there are technically feasible alternatives to accessing
the property from the alley.
Blake School shares some of the concerns of 101 Harrison and also expressed concerns
over the impact to possible future vacation of the alley right of way.
Analysis of Concerns and Possible Mitigation
Traffic on the driveway will be similar to any other driveway in town. It would be
substantially less traffic than in existing alleys that serve multiple houses. The owner of
105 Harrison has offered to build a privacy fence to screen the drive from the property at
101 Harrison.
Pedestrian safety was a concern because of the large number of people attending Blake
School events. Staff concluded that the length and narrowness of the driveway plus the
inclusion of a turnaround area on 105 Harrison would make it most likely that vehicles
• would not back out of the driveway. This would actually be a substantially safe
movement akin to most alley situation.
Council Report 2013-049
Page 3
• We understand the concern of parking in the right of way by the resident and Blake
School event attendees. We are requiring the owner to post and maintain "private drive"
and "no parking" signs at the entrance to the drive way. Additionally, no parking is
allowed in the right of way as per the agreement.
We do not have any information that would support and deny the question of property
value decrease.
The probable impact of the driveway on any vacation discussion with Blake School
would be a requirement that they give an access easement to 105 Harrison. In earlier
discussions, their request for the right of way vacation was related to building set back
limits and not to actual improvements in the vacated right of way. Staff s opinion is that
it is difficult to decide to keep the right of way unused, given that nobody knows if,
when, or for what purpose the right of way may be vacated.
Agreement
The City Attorney has drafted an agreement to allow the use of the right of way for a
driveway. There are a number of other places in town where this has been done. The
basic terms of the agreement are:
• Construction and maintenance allowed facilities shall be done at the cost of the
• homeowner.
• The facilities must be removed by the homeowner if required by the City.
• No parking or storage of vehicles is allowed in the right of way.
• "No parking" and "private street" signs are to be installed and maintained at the
entrance.
• Driveway is to be no wider than 9 feet.
0
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BLAKE
SCHOOL
z9oo
ChaIIenging the mind, engaging the heart
May 16, 2013
Hopkins City Council Members
c/o Hopkins City Hall
Hopkins, MN 55343
Dear Hopkins City Council Members,
I am writing on behalf of The Blake School to express our concerns with the proposed private
driveway to be built on the public alleyway that runs along the west edge of our campus. We
have been informed that a developer has purchased the property at 105 Harrison Ave. and
plans to divide the current triple lot into three separate lots, building two additional houses and
retaining the current house, and eventually selling all three homes. The private driveway, if
built, would service solely the existing home at 105 Harrison, though its path would take it close
(10 feet) behind the property at 101 Harrison (which sits on two lots) and even closer (5 feet) to
Blake's property. We understand the City Council needs to approve the easement being sought
so the private driveway can be built on public land, and we respectfully request that the
easement request be denied.
There are many reasons why we feel the proposed driveway should not be built. Some are
specific to Blake, but others pertain to the benefit of all the residents who live (or will live) along
this proposed driveway. I have detailed our concerns below.
1) For some time now, Blake has been in conversation with the City of Hopkins about the
possible future vacation of the alley way east of the houses on the east side of Harrison
Avenue. Right now, the only public purpose of the land is access to the water main that runs
underneath it for most of its length. That water main is nearing the end of its useful life and if it
needed to be repaired, it would be difficult to get the appropriate equipment to the necessary
site given the current state of the alleyway and its topography. Part of the street repair project
currently going on in the neighborhood involves the laying of a new, 16" water main under
Harrison Avenue, that would render the current, aging water main unnecessary. As the City has
clearly recognized, replacing (in a new location), rather than repairing (in its current location),
the old water main is the most prudent course of action. Once the new water main is
functioning, there would appear to be little reason for the City to retain ownership of the
alleyway, and the vacation of the alley way would benefit all the property owners whose land
adjoins the alley. Though it would still be possible for the City to vacate the alley even after the
easement was granted for the proposed private driveway, the new owners of the vacated land
on which the driveway would run would be saddled with the requirement of a perpetual
easement. The benefits of vacation are several, room for a much enhanced landscaping buffer
for the homes, larger yards for the homeowners and simplification of ownership. The current
and future owner of 101 Harrison (which could quite possibly one day be split into two
properties, thereby affecting two private home owners) would lose all these beneficial outcomes.
Therefore, if the easement for the private driveway is approved by the City Council, it would
appear that the short term desires of a developer without previous connection to the
neighborhood would have received more consideration than. the future opportunities of long-
standing neighborhood property owners. That would be neither fair nor far-sighted.
1
Business Office • 110 Blake Road South • Hopkins, MN 55343
TEL: 952-988-3450 FAX: 952-988-3455
2) When one considers the history of the land on which the alley runs, it would seem to be
doubly unfair and punitive to Blake to approve the private driveway easement. In November
1915, Blake donated to the then Village of West Minneapolis the westernmost ten foot strip of
land of the now twenty-four foot alley for the sum of one dollar. The reason for the donation
(according to document number 779067 filed Nov. 17, 1915) was a 'right-of-way for purpose of
a public street over and across' that strip of land. Obviously, over time, the use of that strip
changed, but when the time comes that the City of Hopkins (as the successor of the Village of
West Minneapolis) no longer benefits from the ownership of that same strip, it would seem only
appropriate for the City to vacate the land. According to Blake's attorneys, the law states that if
a City were to vacate land that was originally received from a single landowner, that land reverts
entirely to the original owner. Therefore, if the City were to vacate the entire alley, Blake would
rightfully gain ownership of the westernmost seventeen feet (the ten feet sold by Blake in 1915
plus half the remaining fourteen feet of the alley.) According to the most recent plan for the path
of the private driveway (shared with us by the developer), all of the first (northernmost) 65 feet
would be on the land that would be vacated to Blake, as would more than half of the remaining
100 feet of the driveway's length.
Blake, over its history, has shown its willingness to support the public good by several times
transferring portions of its property when the City asked. In 1967, Blake once again donated
land to the City of Hopkins for'the construction, reconstruction, installation, improvement and
maintenance of public water mains and utilities.' While the conversation between Hopkins and
Blake regarding the vacation of the alley way has been on hold for the last year or so, Blake
would certainly be interested in restarting that conversation, as well as discussing other
arrangements (some of which were included at one point in a Blake drafted Memorandum of
Understanding shared with the City) that would benefit both the City and Blake. However, if a
permanent easement is granted for a privatedriveway on this portion of the alley way, the
prospect of the benefits would be foreclosed or diminished for both the City and Blake,
particularly the benefits of a much enhanced landscape buffer for the adjacent homeowners.
Given the long-standing, positive presence Blake has had in Hopkins, we would hope the short-
term desires of a third -party without any existing ties to the City, would not be allowed to trump
the mutually beneficial outcomes a different plan for the alley way would have for the School,
the City, and the neighborhood.
3) Beyond considerations of fairness, we believe adding a private driveway to the mix of First
Street traffic would be unsafe. Cars exiting the Blake campus onto First Street would have a
limited view of any vehicles entering First Street from the private driveway. Similarly, the cars
exiting the driveway would not have as clear a view as desired of the vehicles leaving Blake.
Furthermore, as residents have informed us on a number of occasions, the 'woods' between.
Blake's property and the Harrison Ave. houses south of First Street are play areas for many
neighborhood children. Putting vehicular traffic on what has been a neighborhood play area,
free of cars for many, many years would potentially put some unsuspecting children (especially
given the limited use of the driveway) at risk of harm. Even the plan for the driveway, snaking
its way between existing trees and utility poles, would seem to be less than ideal for safety.
4) Another concern that has been raised by Blake's neighbors in the past has been the
landscape buffering (or lack thereof) between Blake's campus and their homes. By allowing a
private driveway to be built on the public alleyway, some of the trees and bushes that presently
form a natural visual barrier from our hockey arena would need to be sacrificed. Even though
the plans call for maneuvering the driveway around some larger trees, we believe having a
driveway paved so close to the existing trees will inevitably lead to their destabilization and
• ultimately their loss. Furthermore, if Blake were ever to implement the transportation
N
component of its Master Site Plan for our Hopkins Campus, which calls for a two-lane road
running along the east side of the arena, we would have expected to erect a more significant
natural barrier (more plantings, a berm, etc.) on the land Blake would obtain from the city
vacating the alley. With a private, paved driveway just five feet from our property line, these
plans would likely be impeded, if not rendered impossible. Again, we would like Blake's and our
neighbor's desires and plans to be given as much consideration by the City Council as those of
a single lot real estate developer.
5) We realize that one of the main arguments for allowing the private driveway to be built is that
the existing house on the lot at 105 Harrison Ave. would have no other means of access to its
garage. Blake believes there are other reasonable alternatives, though perhaps not ideal ones
for a land developer whose main interest is profiting from the purchase and sale of the property.
First, it appears that a driveway could be built along the far southern edge of the lot at 105
Harrison, though it would certainly require some excavation and the redesign of the patio on the
south side of the house. If that isn't desirable, then why can't.a shared driveway be built
straddling the property line between the lot at 105 Harrison and the lot directly south of it?
Another option might be to build a tuck under garage at 105 Harrison, as is envisioned for the
other homes to be built on the other two lots. One or two of these solutions may not be feasible,
and all might be more expensive to carry out than building a driveway in the alleyway. But why
should the property owner at 105 Harrison effectively be provided with additional public land in
order to save the developer money at a material imposition and detriment to the existing
homeowner at 101 Harrison and a preclusion of future beneficial use of the alley for buffering
and setback between residential and campus uses? We are aware that the current resident at
101 Harrison has made many of these same suggestions, but I don't believe they have received
any convincing explanation from the developer about why none of the alternatives would be
workable. Blake would appreciate receiving that explanation before the Council votes on the
permanent easement proposal.
As we did in 1915 and again in 1967, Blake would be willing now to support proposals that
serve the needs of the whole neighborhood in which it has been proudly located for almost
ninety years. However, the proposed driveway seems to be serving the needs of only one party
— a developer whose connection to the neighborhood will end as soon as it sells the properties
on which it seeks to profit. Blake respectfully requests the Hopkins City Council to deny the
proposal for a permanent easement on the alleyway between 101 Harrison Ave. and our
campus. The long-term good of long-standing residents should be given more weight than the
short-term, profit -oriented plan from which this proposal stems.
Thank you for your consideration.
dSincerBogursky
f Business and Finance
e School
Cc: John Bradford, Hopkins City Engineer
0
LICENSE AND USE AGREEMENT
This License and Use Agreement (this "License Agreement") is made and entered into this
day of , 2013, by and between the City of Hopkins, a municipal
corporation under the laws of the State of Minnesota (the "City"), and Golden Valley Land
Company, a Minnesota corporation (the "License Holder").
RECITALS
A. License Holder is the fee owner of Real Property ("License Holder's Property")
situated in the City of Hopkins, Hennepin County, Minnesota, and legally described in Exhibit A
attached hereto and incorporated herein by reference.
B. . License Holder's Property is contiguous with the north/south alley dedicated in the
plat of West Minneapolis Center and lying east of License Holder's Property, which is a dedicated
but unimproved public alley way. Said north/south public alley way is contiguous with a 10 foot
wide strip of land owned by the City and located immediately east thereof. Said north/south
public alley way and 10 foot wide strip of land owned by the City are collectively referred to in this
License Agreement as the "City Property". The License Holder has requested that it be permitted
to use a portion of the City Property for the uses and purposes stated in this License Agreement.
That portion of the City Property to be used by the License Holder is legally described in Exhibit B
attached hereto and incorporated herein by reference and is herein referred to as the "License
Area".
C. The City has agreed to grant to License Holder a License to use the License Area
for the uses and purposes and upon the terms and conditions stated in this License Agreement.
HopcivillLicenseAndUseAgreement.GoldenValieyLand.5.17.13
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
herein and made a part of this License Agreement, and of the terms and conditions hereinafter
stated, the City and the License Holder agree as follows:
1. License. Subject to all of the terms and conditions stated in this License
Agreement, the City hereby grants to License Holder a nonexclusive license (the "License") for the
uses and purposes stated in Paragraph 2 of this License Agreement, in, over and across the License
Area. The City hereby authorizes the License Holder to use the License Area on a nonexclusive
basis, solely for the uses and purposes and on the terms and conditions set. forth in this License
Agreement. The License granted by this License Agreement shall continue for the term stated in
Paragraph 4 of this License Agreement.. By granting the License and entering into this License
Agreement, the City makes no warranty that it has good and marketable title to the License Area
nor does the City agree to warrant or defend the License or License Holder's interest from other
parties who may claim any right, title or interest in the License Area. The License is appurtenant
to License Holder's Property, and may not be transferred or assigned except to a fee owner of
License Holder's Property in connection with the conveyance of License Holder's Property.
2. Purpose of License and Use of License Area. The License is granted for the sole
purposes of permitting License Holder to construct, install, maintain and use a private driveway
for vehicular access to the garage located on License Holder's Property, subject to all of the terms
and conditions stated in this License Agreement; including the following terms, conditions and
restrictions:
a. The private driveway to be constructed by License Holder within the License Area
may only be used to provide vehicular access to the garage located on the License
Holder's Property, and may not be used to provide access to any other properties.
2
14opcivillLicenseAndUseAgreement.GoldenVaileyLand.5.17.13
b. No parking or storage of vehicles or other equipment is allowed within the License
Area.
C. License Holder shall install aild maintain a "Private Driveway. No Parking" sign at
the. entrance of the License Area to First Street South. The sign shall be
maintained within the License Area at the entrance to First Street South and shall at
all times be in compliance with the Municipal Uniform Traffic Control Device -
code requirements.
d.. The private driveway shall be no more than 9 feet in width and confined to the
location depicted in Exhibit C attached hereto. .The private driveway shall be
constructed of hard surfaced material and otherwise in compliance with the City's
codes, regulations and construction standards.
e. License Holder shall be solely responsible for the construction, repair and
maintenance of the private driveway within the License Area, including, but not
limited to, snow and ice removal and resurfacing.
f. Grading and filling will be allowed within the License Area for the sole purpose of
the initial construction and installation of the private driveway improvements in
accordance with the permit(s) issued for such construction by the City. License
Holder shall restore the License Area, following such initial construction of private
driveway improvements by re -grading, seeding and replacement of any trees
removed during construction with 2" caliber trees, the number, species and location
of which are to be determined by the City Engineer following construction of the
private driveway.
n
3
Hopcivil\LicenseAndUseAgreementGoldenValleyLand.5.17.13
g. License Holder shall also be allowed to install and maintain a privacy fence within
the License Area west of the private driveway and opposite the property at 101
Harrison Avenue South. Such fence must comply with all applicable ordinances
and regulations and must be maintained at License Holder's sole expense. The
City may require the removal of the privacy fence at any time upon thirty (3 0) days'
notice to License Holder whereupon License Holder shall remove the privacy fence
and restore the License Area to its pre-existing condition within said thirty (30) day
period.
The License and License Holder's use of the License Area are limited and subject to the
specific purposes, uses and conditions stated in this License Agreement. .No other use of or
encroachment within the License Area is permitted by this License Agreement.
I. No Property Interest. This License Agreement and the License are personal to
License Holder. No interest in the title to the City Property is granted, created or transferred by this
License Agreement. This License Agreement and the License are subject. and subordinate to the
prior, superior and continuing right ofthe. City to use the City Property as a public alley or street .
and for other public uses and purposes.
4. Term. The term of this License Agreement and the License shall begin on the
date stated in the first paragraph of this License Agreement and shall continue until the earlier of
the following dates (which earlier date is herein referred to as the "Termination Date"), namely: a)
the date on which permanent vehicular access has been established to the garage located on
License Holder's Property in a location other than within the License Area, or b) the date on which
the City has opened and improved a public alley within the .City Property providing vehicular
access to License Holder's Property by the construction of public street or alley improvements
4
Hopcivil\LicenseAndUseAgreementGoldenValleyLand.5.17.13
within the City Property. From and after the Termination Date, either party may terminate this
License Agreement of record upon fifteen (15) days written notice to the other party, and this
License Agreement and the License shall terminate and be of no further effect as of the
Termination Date. The recordation of an Affidavit by either party certifying that the conditions
for termination of the License stated in this paragraph have been met and such notice of
termination has been given shall conclusively establish that this License Agreement and the
License have been terminated.
5. Restoration. Upon termination of this License Agreement and the License,
License Holder or its successors in title to License Holder's Property shall, if so directed by the
City, immediately remove all of the private driveway improvements from the License Area, at
their sole expense, restoring the License Area to substantially the same condition that existed prior
to installation of the private driveway improvements.
6. Indemnification. License Holder agrees to defend, indemnify and hold harmless
the City, its officials, officers and employees from and against any and all liability, loss, costs,
damages and expenses which the City, its officials, officers or employees may hereafter sustain,
incur, be required to pay arising out of the construction, maintenance and use of .the private
driveway improvements within the public alley way as permitted by this License Agreement,
including reasonable attorneys fees and costs incurred in the defense thereof.
7. . Notices. All notices or other communications required or permitted to be given
under this License Agreement shall be in writing and shall be hand delivered or sent by certified
mail, return receipt requested, to the following addresses:
All notices to License Holder shall be given to the party listed as the owner and taxpayer in
the real property taxation records maintained by Hennepin County, Minnesota, and
delivered to the address on file in such records for the owner and taxpayer of License
Holder's Property.
5
HopcivillLicenseAndUseAgreement.GoldenValleyLand.5.17.13
If to City: City of Hopkins
Attention: City Engineer
1010 First Street South
Hopkins, MN 55343
Hand delivered notices shall be deemed to have been given on the date of delivery. If notice is
given by certified mail, such notice shall be deemed to have been given on the next business day
following the date of :trailing.
8. Miscellaneous.
a. This License Agreement is made and executed in the State of Minnesota, and shall
be construed and enforced according to the laws of Minnesota.
b. The invalidity or unenforceability of any provision of this License Agreement shall
not affect or impair the validity of any other provisions, all of which shall remain in
full force and effect.
C. The paragraph or section titles and captions in this License Agreement are for
convenience of reference only and do not define, limit or construe the contents of
the sections and paragraphs of this License Agreement.
d. This License Agreement shall be binding upon and inure to the benefit of the
parties hereto and, subject to the restrictions and limitations herein contained, their
respective successors and assigns.
e. Any. modification to this License Agreement shall only be effective if in writing
and signed by all of the parties to this License Agreement.
f. . License Holder and License Holder's successors in title to License Holder's .
Property shall maintain throughout the term of this License Agreement general
liability insurance providing coverage for all insurable losses arising out of the use
b
HopeivillLicenseAndUseAgreement.GoldenValleyLand.5.17.13
of the License Area by the License Holder for the purposes stated in this License
Agreement. Upon request from the City to License Holder, License Holder shall
provide the City with a copy of a current Certificate of Insurance evidencing that
License Holder is maintaining the insurance coverage required by this paragraph.
IN WITNESS WHEREOF, the City and License Holder have executed this License
Agreement effective as of the date first above written.
City of Hopkins, Minnesota
Eugene J. Maxwell, Its Mayor
By
Michael J. Mornson, City Manager
STATE OF MINNESOTA )
)SS
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2013, by Eugene J. Maxwell, the Mayor of the City of Hopkins, a
municipal corporation under the laws of Minnesota, on behalf of the municipal corporation.
Notary Public
STATE OF MINNESOTA )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2013, by Michael J. Momson, the City Manager of the . City of
Hopkins, a municipalcorporation under the laws of Minnesota, on behalf of the municipal
corporation.
Notary Public
7
HopciviMicenseAndUseAgreement.GoldenValicyLand.5.17.13
Golden Valley Land Company
By
Its
STATE OF MINNESOTA )
)SS
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of .
2013, by the
of Golden Valley Land Company, a corporation under the laws of Minnesota, on behalf of the
corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Jeremy S. Steiner
Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota.55343
8
HopcivillLicemeAndUseAgreemenkGoldenValleyLand.5.17.13
EXHIBIT A
LICENSE HOLDER'S PROPERTY
Lot 22, Block 37, West Minneapolis Center, according to the recorded plat thereof, Hennepin
County, Minnesota
EMUBIT B
LICENSE AREA
That part of the 14 foot wide north/south public alley dedicated in the recorded plat of West
Minneapolis Center and that part of the 10 foot wide strip of land immediately east of said 14 foot
wide north/south public alley, which lies east of Lots 22, 23 and 24 in Block 37 of West
Minneapolis Center, south of the south right-of-way line of Fust Street South and north of the
south line of said Lot 22, extended east,
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EXHIBIT C
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HOPKINS, MN;,may„,.
CITY OF HOPKINS
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2013-026
RESOLUTION APPROVING LICENSE AND USE AGREEMENT
WHEREAS, the City of Hopkins owns public alley right of way south of 1St Street South
between Blake School and Harrison Avenue South; and
WHEREAS, the owner of 105 Harrison Avenue South has requested to use the public alley right
of way to access their property via a driveway; and
WHEREAS, a driveway is a proper use for public alley right of way; and
WHEREAS, the owner of 105 Harrison Avenue South has agreed to certain conditions and
stipulations on the facilities to be constructed and use of the right of way; and
WHEREAS, the owner of 105 Harrison Avenue South has agreed to pay for all improvements in
the right of way;
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hopkins hereby
• approves the License and Use Agreement as detailed and authorize the Mayor and City Manager
to execute said agreement.
•
Adopted this 21St day of May, 2013
Attest:
Kris Luedke, City Clerk
Hopcivil\Resolution.Gimberline 1
M.
Eugene J. Maxwell, Mayor