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Encroachment Agreement between City-HOA-Chan Three(reserved for recording information) ENCROACHMENT AGREEMENT AGREEMENT made this +h day of Ivl�t' , 2020, by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation ("City"), and THE BLUFFS AT LAKE LUCY HOMEOWNERS ASSOCIATION, a Minnesota non-profit corporation ("HOA") and CHAN THREE DEVELOPMENT, INC., a Minnesota corporation ("Developer"). 1. BACKGROUND. A. City is the fee owner of certain real property located in the City of Chanhassen legally described as follows: Outlots A and B, The Bluffs of Lake Lucy, Carver County, Minnesota, according to the recorded plat thereof ("Subject Property") B. The HOA is the homeowner's association for ail lots within The Bluffs at Lake Lucy plat. C. Developer is the owner of certain real property being platted as Lots 1 and 2, Block 1, The Bluffs at Lake Lucy, Carver County, Minnesota, according to the recorded plat thereof ("Developer Property"). 2121340 1 C. The HOA is the owner of an irrigation and re -use system to be installed by Developer within the City Property, City drainage and utility easements within Developer Property ("Easement Areas") and within the boulevard areas of Della Drive, a City right of way, located within The Bluffs at Lake Lucy ("Boulevards") and has requested authorization from the City to encroach on the City Property for the re -use systems as depicted on the attached Exhibit "A" and for an irrigation system to be located within the Boulevards. 2. ENCROACHMENT AUTHORIZATION. The City hereby approves the encroachment on the City Property for the re -use system and within the Easement Areas and Boulevards for the irrigation system subject to the conditions set forth in this Agreement. Further conditions of encroachment approval are: • The City shall have no responsibility to maintain, inspect or repair the re -use system located over the City Property or the irrigation system within the Easement Areas and Boulevards. • The re -use system located on the City Property must not impact or increase water drainage on the City Property or cause any adverse drainage patterns or erosion to the City Property. • The HOA, its successors and assigns shall comply with all terms required by the City under the Riley Purgatory Bluff Creek Declaration dated October 9, 2020 and recorded October 12, 2020 with the Carver County Registrar as document number TT215903 or any future amendments thereto ("Declaration"). • The HOA shall maintain the irrigation and the re -use system consistent with all applicable federal, state and local laws and regulations. • The HOA, its successors and assigns, are fully responsible and liable for any and all damage caused to the irrigation and re -use system because of it being constructed on the City Property, Easement Areas or Boulevards. • The HOA, its successors and assigns, will own and maintain the re -use system located on the City Property and the irrigation_ system located within the Easement Areas and Boulevards. 3. NONCOMPLIANCE. In the event the HOA, its successors and assigns, fails to maintain the re -use system on the City Property in accordance with the requirements of the Declarations or this Agreement and such failure continues for 60 days after the City gives the HOA written notice of such failure, the City may take whatever steps necessary to bring the re -use 2121340 2 system into compliance with the Declarations and this Agreement or may terminate this Agreement. The City may charge the costs incurred under this Paragraph to the HOA, its successors and assigns. The HOA shall reimburse the City for such costs within 30 days of billing by the City. It is expressly understood and agreed that the City is under no obligation to bring the re -use system into compliance with the Declarations, and in no event shall this Agreement be construed to impose any such obligation on the City. In addition, the HOA agrees that it is, and will be, solely responsible to address complaints and legal claims brought by any third party with regard to the maintenance and operation of the re -use system and the consequences there from. The HOA expressly agrees to defend and hold the City harmless from any such third -party claim. 4. REIMBURSEMENT OF COSTS. The HOA agrees to reimburse the City for all costs incurred by the City in the enforcement of this Agreement, or any portion thereof, including court costs and reasonable attorneys' fees. 5. INDEMNIFICATION. This Agreement imposes no liability of any kind whatsoever on the City. The HOA and the Developer, their successors and assigns, hereby agree to indemnify and 'void harmless the City and its agents and employees against any and all claims, demands, losses, damages, and expenses (including reasonable attorneys' fees) arising out of or resulting from the HOA or the HOA's agents, members or employee's negligent or intentional acts, or any violation of any safety law, regulation or code in the performance of this Agreement, without regard to any inspection or review made or not made by the City, its agents or employees or failure by the City, its agents or employees to take any other prudent precautions. In the event the City, upon the failure of the HOA to comply with any conditions of this Agreement, performs said conditions pursuant to its authority in this Agreement, the Developer, it successors and assigns, and 2121340 3 HOA shall indemnify and hold harmless the City, its employees, agents and representatives for its own negligent acts in the performance of the HOA's required work under this Agreement, but this indemnification shall not extend to intentional or grossly negligent acts by the City. 6. HOLD HARMLESS AND INDEMNITY. In consideration of being allowed to encroach on the City Property, Easement Areas and Boulevards, the HOA and Developer, and their successors and assigns, hereby agree to indemnify and hold the City, its officers, employees and agents, harmless from any damage caused by the construction, installation and maintenance, or lack thereof, of the re -use systems that are located on the City Property as depicted on Exhibit "A" and the irrigation system located within Easement Areas or Boulevards, caused in whole or in part by the encroachment on the City Property, Easement Areas and Boulevards. 7. TERMINATION OF AGREEMENT. The City may terminate this Agreement at any time if the HOA fails to comply with the terms of this Agreement or it is reasonably necessary for the City to occupy the City Property, Easement Areas or Boulevards and the irrigation or re -use systems are inconsistent with the City's use of the City Property, Easement Areas or Boulevards. Prior to termination, the City will give HOA and the Developer, or its successors and assigns, thirty (30) days advance written notice, except that no notice period will be required in the case of an emergency condition as determined solely by the City and this Agreement may then be terminated immediately. The HOA and Developer, or their successors and assigns, shall remove the irrigation or re -use systems to the extent either impacts the City Property, Easement Areas or Boulevards or upon City termination of the Agreement, to the effective date of the termination of this Agreement. If the HOA or Developer, or their successors and assigns fail to do so, the City may remove the irrigation system or re -use system to the extent 2121340 4 it impacts the City Property, Easement Areas or Boulevards and charge the cost of removal back to HOA, or its successors and assigns, for reimbursement. 8. RECORDING. This Agreement shall run with the land and shall be recorded against the title to the City Property and Developer Property. [Remainder ofpage intentionally left blank.] [Signature pages to follow.] 2121340 CITY: CITY OF CHANHASSEN By (SEAL) Elise Ryan, Mayor And Heather John;tql, Interim City Manager STATE OF MINNESOTA ) )ss. COUNTY OF CARVER ) I The foregoing instrument was acknowledged before me this day of �lOVerV r— , 2020, by Elise Ryan and by Heather Johnston, respectively the Mayor and Interim City Manager of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. --k �W -7 , Nota y Public J KIM T. MEUWISSEN Notary Public -Minnesota MY Commission Expires Jan 31, 2025 2121340 6 HO. STATE OF MINNESOTA ) )ss. COUNTY OF The foregoing instrument was acknowledged before me this 3"'-c4 day of NoLq. - , 2020, by ON -K.,4 U kju the Q—u-i d of The Bluffs at Lake Lucy HomeowneN Association, a Minnesota nonprofit corporation, on behalf of the entity. LORI L CLARK No�ryub Plic AAIMOWU 31 2023 0j� 0-� aq�L Notary Public 2121340 7 DE CH :E STATE OF MINNESOTA ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 311-� day of IU byk%..,�y— , 2020, by Craig Allen, the President of Chan Three Development, Inc., a Minnesota corporation, on behalf of the entity, Grantor. LORI L CLARK Notary Public IL Minnesota gx 31 2023 DRAFTED BY: CAMPBELL KNUTSON, Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: (651) 452-5000 AMP 2121340 8 (& (J� CQ-�L'L Notary Public EXHIBIT "A" 2121340 9 2121340 10 rD � Exhibit "B" — Page 2 i'l hi 7 sag 2121340 10 rD � Exhibit "B" — Page 2 i'l its P -r U- /4 qaV . 'n F 2121340 10 rD � Exhibit "B" — Page 2 Lij -.19 i'l its P -r qaV . 'n F z z ElY4 -c Lij -.19 i'l its P -r qaV . 'n F I CONSENT TO ENCROACHMENT AGREEMENT Bridgewater Bank, a Minnesota corporation, which holds a Mortgage filed the 12th day of October, 2020, in the Office of the County Recorder in and for Carver County, Minnesota, as Document No. T215904 on the subject property, the development of which is governed by the foregoing Encroachment Agreement, agrees that the Encroachment Agreement shall remain in full force and effect even if it lWecloses on its mortgage. Av Dated this day of 6UAI 020. LIZ STATE OF MINNESOTA ) ) ss. COUNTY OF Thomas D. Johnson Its: Senior Vice President Construction Lending The foregoing instrument was acknowledged before me the 2 "c( day of /yoy�, 2020, by Thomas D. Johnson, the Senior Vice President Construction Lending of Bridgewater Bank, a Corporation under the laws of Minnesota on behalf of the Corporation. Notary Public This Instrument Drafted By: Custom Home Builders Title, LLC 10850 Old County Road 15 Plymouth, MN 55441 NADIYA S. RINGEN Notary Public Minnesota My Commission Expires January 31, 2025