HomeMy WebLinkAbout3286SETTLEMENT, ENCROACHMENT, AND MAINTENANCE AGREEMENT
THIS SETTLEMENT, ENCROACHMENT AND AGREEMENT ("Agreement") is
entered into on this 16th day of April , 2024, by, between and among the CITY OF
EDINA, a Minnesota municipal corporation ("City"), and ALEX T. MITCHELL and RENEE
M. MITCHELL, married to each other ("Owners").
WHEREAS, the City commenced a road reconstruction project for Blake Road, City
Project ENG 22-2 ("Project");
WHEREAS, Owners are the fee owners of two parcels of real property that abut the Project
located in the City of Edina and legally described in Exhibit A attached hereto as Parcel 1 and Parcel
2 (collectively, the Parcels are referenced as the "Subject Property");
WHEREAS, Owners asserted that the Project resulted in an impairment of access or taking
of access related to the expansion of a retaining wall within the existing Blake Road right of way
that bisects the Subject Property;
WHEREAS, to ensure the success of the Project and prevent adverse impact to the Subject
Property and access to Mirror Lake, the Parties desire to enter into this Agreement;
WHEREAS, Owners have obtained all necessary permit(s) for installation of the Parcel 2
Improvements (defined herein).
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. City's Obligations.
A. The City has installed the Blue Trap Rock in the retaining wall within the right of
way on Parcel 1 ("Trap Rock Wall"). The Trap Rock Wall shall otherwise be built to the location,
scale, and dimensions shown per the City's original Project plans. The Owners shall pay Fifty Nine
Thousand Seven Hundred Thirty Five and 0/100 Dollars ($59,735.00) to the City, which was the
incremental cost of installation of the Trap Rock above the original cost of the keystone wall
proposed by the City. Owners shall make payment to the City immediately upon execution of this
Agreement.
B. The City has installed landscaping within the existing City right of way abutting
Parcel 1 pursuant to the Project plans. Owners shall not alter the landscaping within the City's right
of way for two (2) years after the completion of the Project. After the elapse of the two (2) year
period, Owners may alter or supplement the landscaping within the City's right of way on the
Subject Property provided that the alterations or additions do not block the sight lines, encroach
onto the public roadway, or interfere in any manner with the safe use of the City right of way (the
"Owner's Landscaping Improvements").
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C. The Project has been modified to provide opening in the retaining wall for a future
gate provided by the owner. The opening was installed by the City abutting Parcel 2 at the location
agreed upon by the parties, approximately Station 905 + 25' as indicated on the Project plans.
2. Owner's Rights and Obligations.
A. Owners, their successors and assigns, will have the right to use and access the gate
and Parcel 2 Improvements (defined herein) at all times. The City requests that Owners lock the
gate. Owners shall ensure that the gate is kept locked at all times when not in use. Owners, their
successors and assigns, shall be responsible for all necessary replacement, maintenance and repair
of the gate. The City shall be responsible for all necessary replacement, maintenance and repair of
the wall in which the gate is installed.
B. Owners shall have the option but not the obligation to maintain and repair the Trap
Rock Wall provided that such maintenance does not adversely impact the function of the Trap Rock
Wall or damage or impair the public roadway or right of way and that any such maintenance is
approved in advance by the City. Owners shall be responsible for obtaining all necessary permits
and paying all necessary fees relating to such maintenance or repair.
3. Encroachments.
A. Owners have installed the gate, helical screws and will install a platform on Parcel
2 (lakeshore side) abutting the gate to support the installation of stairs and may anchor any stairs
installed to the City's retaining wall improvements provided in the Plans, and this anchoring will
encroach within the City's right of way for Blake Road ("Parcel 2 Improvements").
B. The Owners' Landscape Improvements will also encroach within the City's right of
way abutting Parcel 1 ("Parcel 1 Improvements") between the property line of Parcel 1 and the "top
of the wall" as depicted in Exhibit B (collectively, Parcel 1 Improvements and Parcel 2
Improvements shall be referred to herein as the "Improvements").
C. The City approves the encroachment of the Improvements within the City's right of
way, conditioned upon the indemnification and hold harmless obligations under Paragraph 4 of this
Agreement and the following:
(i) The anchoring of the Parcel 2 Improvements do not damage, interfere with,
or otherwise compromise the City's Improvements included as part of the Project.
(ii) Except as otherwise provided in this Agreement, the installation of the
Improvements, and any other improvements not expressly assumed by the City in
this Agreement shall be solely at the Owners' expense.
(iii) Except as otherwise provided in this Agreement, Owners are solely
responsible for the design, construction, inspection, and maintenance of all
improvements installed by the Owners.
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(iv) Except as otherwise provided herein Owners are solely responsible for
obtaining all necessary permits to complete their work, including but not limited to
any potential road closure permits.
(v) Owners agree that the Improvements shall be constructed consistent with all
applicable federal, state and local laws and regulations.
D. The City shall take reasonable steps to coordinate with the Owners, or their designee,
to allow for the installation of the anchors required for the Improvements within Parcel 2.
4. City's Rights.
A. If the City believes the Trap Rock Wall is in need of repair, it shall first notify the
Owners, who shall have sixty (60) days to complete all necessary repairs and maintenance, weather
permitting. The Owners' option to repair the City's Trap Rock Wall shall exsit for a period of fifty
years from the date of this Agreement. Following the expiration of this fifty year period, if Owners
fail to repair or maintain the Trap Rock Wall, the City may remove, replace or modify the Trap
Rock Wall, in its sole discretion without the need for further agreement from the Owners. If Owners
continue to repair and maintain the Trap Rock Wall during this fifty year period, the City shall not
remove, replace or modify the Trap Rock Wall without the agreement of the Owners, except in the
event of a future road reconstruction of Blake Road abutting the Property. However, if the City
determines that there is an imminent threat to public safety or welfare requiring immediate action
the City may act to address such threat in its sole discretion, and will provide such notice to the
Owners as is practical given the situation. If the City is responsible for damage to the Trap Rock
Wall or Parcel 2 Improvements due to snow plowing or other repair or maintenance activities, then
the City shall be solely responsible for any repair or maintenance.
B. If the City finds it necessary to repair, maintain or replace the retaining wall or
reconstruct the City's right of way abutting Parcels 1 and 2, it shall first notify the Owners, who
shall have sixty (60) days, weather permitting, to remove all attachments to the retaining wall or
other Improvements located within Parcel 2 to the extent deemed necessary by the City, in order
for the City to complete any city work required within the City right of way abutting Parcel 2.
However, if the City determines that there is an imminent threat to public safety or welfare requiring
immediate action, the City may act to address such threat in its sole discretion, and will provide
such notice to the Owners as is practical given the situation. If Owners fail to remove the
Improvements within sixty (60) days, weather permitting, the City may remove the Improvements
as necessary. Upon completion of the any City work requiring removal of the Improvements, the
Owners may reinstall the Improvements authorized under this Agreement, provided Owners
coordinate with the City to allow for the reinstallation of the Improvements.
5. Release and Indemnification.
A. Owners hereby release and waive any and all claims, whether asserted or not,
Owners have or could have raised against the City in connection with the Project, including without
limitation claims for inverse condemnation, impairment or taking of access, or interference with
the use and enjoyment of the Subject Property. This Agreement constitutes resolution of all
potential damages, losses, reestablishment benefits, interest on unpaid damages, attorneys' fees,
appraisal fees, and other costs due or claimed, without limitation, arising out of the Project. This
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release does not waive any future claims which may be asserted if access to the Subject Property is
permanently limited, removed, or taken.
B. Owners, for themselves, their successors and assigns hereby assume all risks related
to the Improvements and the installation and use of the Improvements and shall forever indemnify
and hold harmless the City, its officials, agents, and employees from and against all liability,
actions, claims, demands, costs, damages, or expense of any kind which may be brought or made
against the City, its officials, agents, or employees or which the City may pay or incur, by reason
of the installation, repair and maintenance of the Improvements and the Owners', their invitees',
agents', successors', and assigns', use of the gate and Improvements, including without limitation
any claims for personal injury or death, other than liability, actions, claims, demand, costs, or
damages which arise from the intentional, willful, or negligent actions of the City, its officials,
agents, or employees.
6. Miscellaneous.
A. The signatories hereto acknowledge on behalf of their respective entities that each
signatory has the full authority and power to execute this Agreement, and that all consents and/or
approvals necessary for each respective entity to enter into this agreement have been obtained or
waived.
B. Each of the parties hereto further acknowledges and agrees that it entered into this
Agreement of their own free will and not under any form of duress.
C. This Agreement shall be deemed to have been drafted by the joint efforts of the
parties hereto.
D. This Agreement contains the entire agreement between the parties and supersedes
any and all prior agreements, arrangements, or understandings between the parties relating to the
subject matter hereof. No oral understandings, statements, promises or inducements contrary to the
terms of this Agreement exist, and this Agreement may not be amended, waived, terminated, or
otherwise changed in any respect, except in writing.
E. This Agreement shall be governed by and construed in accordance with the laws of
the State of Minnesota, and any action to enforce same shall be brought in a court located in
Hennepin County, Minnesota.
F. This Agreement shall be recorded against the title to the Subject Property.
G. This Agreement shall run with the land and shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, successors, representatives, and assigns.
H. It is understood and agreed that this Agreement may be executed in a number of
identical counterparts, each of which shall be deemed an original for all purposes, but all of which
together shall constitute one and the same instrument. The acceptance and approval of each party
may be made by hand-written signature scanned and converted to an electronic document, an
electronic /s/ signature, or other electronic indication of acceptance and agreement.
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[Signature pages to follow.]
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CITY OF EDI
B
Scott Neal
Its City Manager
James B. Hovland
Its Mayor
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before e this 16th day of April ,
2024, by James B. Hovland and Scott Neal, respective City Manager, of the City
of Edina, a Minnesota municipal corporation
SHARON M. ALLISON
Notary Public-Minnesota
My Commission Expires Jan 31, 2025
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OWNER •
itch Alex T. ell
(„eivut w,t1
Renee M. Mitchell
STATE OF MINNESOTA
)ss.
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me this ill' day of A tw.k
2024 by Alex T. Mitchell and Renee M. Mitchell, married to each other.
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THIS INSTRUMENT DRAFTED BY:
CAMPBELL KNUTSON, P.A.
Professional Association
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
Telephone: (651) 452-5000
AMP/
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EXHIBIT A
Legal Description of Subject Property
Parcel 1:
Lot 1, Block 1, Taft Addition, Hennepin County, Minnesota, according to the recorded plat thereof;
Parcel 2:
Lots 31 and 33, Auditor's Subdivision Number 325, according to said plat thereof, Hennepin County,
Minnesota.
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Wall Encroactimen1 Area Exiitba
PID: 30-117.2141-0021
Address m 5020 ti lalce Rd S
City of Edina, 11,thinesota
Pf,460P40, 0 i 7d 47 400 De* 1,11=3 Mateo ay
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EXHIBIT B
Depiction of Parcel 1 Encroachment
4889-6401-2712, v, 2
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