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CC Staff Report 11-9-20 - Tietz AgreementCITY COUNCIL STAFF REPORT Monday,November 9,2020 Subject Approve Access Easement Agreement with John and Carrie Tietz Section CONSENT AGENDA Item No:D.5. Prepared By Kate Aanenson,AICP,Community Development Director File No:Planning Case No.2019-01 PROPOSED MOTION City Council approves the Access Easement Agreement conditioned upon recording of the plat and recording of the Deed for the future City-owned Outlot A." Approval requires a Simple Majority Vote of members present. SUMMARY With the Bluffs at Lake Lucy plat,the Tietz family driveway will be moved from Galpin Boulevard to Della Drive.The Tietz's will have to cross a portion of the future City-owned Outlot A to get to their property.This Access Easement Agreement will allow the Tietz's to construct,operate,repair and maintain a driveway through said Outlot A. DISCUSSION As part of the Galpin Boulevard reconstruction design plans,the County requested that the Tietz's property gain access off of the future Della Drive rather than Galpin Boulevard.There is an approximate 10-foot separation Outlot A)between the Tietz's property and future Della Drive.Because this easement was not in the original development agreement and the City owns the property over which the easement will be granted,the City Council must approve this agreement. RECOMMENDATION To meet the County's and City's recommendation for access,staff is recommending that the Access Easement Agreement be approved. ATTACHMENTS: Access Easement Agreement 1 212512v1 reserved for recording information) ACCESS EASEMENT AGREEMENT THIS ACCESS EASEMENT AGREEMENT (“Agreement”) is made, executed and entered into this _____ day of _____________, 2020, by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation (“Grantor”) and JOHN C. TIETZ and CARRIE M. TIETZ as Trustees of the JOHN C. TIETZ AND CARRIE M. TIETZ LIVING TRUST dated March 18, 2016 (“Grantee”). RECITALS A. Grantor is the owner of certain real property located in the City of Chanhassen, County of Carver, and State of Minnesota, hereinafter referred to as “Parcel A” and legally described as: Outlot A, The Bluffs at Lake Lucy, according to the recorded plat thereof, Carver, County, Minnesota B. Grantees are the owners of certain real property located in the City of Chanhassen, County of Carver, and State of Minnesota, hereinafter referred to as “Parcel B” and legally described as: That part of NE 1/4 of the NW 1/4 Section 10, Township 116 North, Range 23 West, Carver County, Minnesota, described as follows: Commencing at the North 1/4 corner, Section 10, Township 116 North, Range 23 West, thence southerly along the North-South 1/4 line of said Section 409.69 feet to the point of beginning, thence continuing southerly along North-South 1/4 line 60.08 feet to a point, thence westerly on a line parallel with the South line of the North 1/2 of the NE 1/4 of the NW 1/4 452.30 feet to the centerline of the Excelsior-Shakopee Road, thence northeasterly along the centerline of the Excelsior-Shakopee Road 61.50 feet, thence easterly and parallel with the South line of the North 1/2 of the NE 1/4 of the NW 1/4 435.76 feet to the point of beginning. 2 212512v1 and That part of the NE 1/4 of the NW 1/4 Section 10, Township 116 North, Range 23 West, Carver County, Minnesota, described as follows: Commencing at the North 1/4 corner Section 10, Township 116 North, Range 23 West, thence southerly along the North-South 1/4 line of said Section 469.77 feet to the point of beginning, thence southerly along the North-South 1/4 line 200.26 feet to a point on the South line of the North 1/2 of the NE 1/4 of the NW 1/4, thence westerly along the South line of the North 1/2 of the NE 1/4 of the NW 1/4, 518.43 feet to the centerline of the Excelsior-Shakopee Road, thence northeasterly along the centerline of the Excelsior-Shakopee Road 207.86 feet, thence easterly and parallel with the South line of the NE 1/4 of the NW 1/4 452.30 feet to the point of beginning. C. Parcel “A” abuts Parcel “B”. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, it is hereby mutually agreed by the Grantor and Grantee as follows: 1. Grant of Easement. The Grantor hereby grants, transfers and conveys to the Grantee and its successors and assigns for the benefit of Parcel B, an appurtenant perpetual access easement for vehicular and pedestrian ingress and egress purposes over and across those portions of Parcel A described on the attached Exhibit “A” and depicted on Exhibit “B” (“Easement Premises”) for access by vehicles and pedestrians to and from public streets and driveways to Parcel B. Grantee shall have no rights to use any other portion of Parcel A, except only those rights specifically granted herein. 2. Rights. The rights provided under this Agreement shall include the Grantee’s right to construct, operate, repair and maintain a driveway (“Driveway”) within the Easement Premises over, on, under, across and through the Easement Premises. This Agreement shall include the rights of the Grantee, its employees, contractors and agents to enter upon the Easement Premises at all reasonable times to construct, reconstruct, inspect, repair, and maintain a Driveway over, across, on, under, and through the Easement Premises, together with the right to grade, level, fill, drain, pave, and excavate the Easement Premises, and the further right to remove trees, bushes, undergrowth, and other obstructions interfering with the location, construction, and maintenance of the Driveway. 3. Use of Access Easement. The Easement Premises shall be used by Grantee solely for vehicular and pedestrian ingress and egress purposes only by and for Grantee, and Grantee’s successors, assigns, occupants, tenants, employees and/or business invitees. No other right to use any other portion of Parcel A is granted hereunder. 4. Maintenance and Repair. Grantee shall be responsible for all costs associated with the construction, maintenance, improvement, repair or reconstruction of the Driveway, 3 212512v1 including snow removal, and sweeping. Grantee shall maintain the Easement Premises, including landscaping located within the Easement Premises, in a neat, presentable and safe condition, at Grantee’s sole cost and expense. 5. Restoration. Upon completion of any work requiring the opening of the Easement Premises, Grantee shall, in all cases, place the Easement Premises in a condition as good as it existed prior to the Grantee’s work. 6. Indemnification. Grantee shall indemnify and hold the Grantor harmless from and against all liability, actions, claims, demands, costs, damages, or expense of any kind which may be brought or made against the Grantor relating to accidents, injuries, loss, or damage of or to any person or property occurring on or about the Easement Premises. Such indemnity shall not apply to the extent of any loss or claim due to or arising from the negligent or wrongful acts or omissions of the Grantor, its officials, employees or agents. Nothing contained in this Agreement shall be construed as a waiver by the Grantor of any limitations on liability contained in Minnesota Statutes, Chapter 466. 7. Insurance. The Grantee and any future owners of Parcel B shall, at all times during the term of this easement agreement maintain comprehensive general liability insurance coverage of the Easement Premises in amounts equivalent, at a minimum, to the municipal liability limits in effect at any given time under Minnesota State Law. [Presently, under Minnesota Statutes, Section 466.04, the municipal liability limits in effect for 2015 are $500,000 per person and $1,500,000 per occurrence; limits are double for the release of hazardous substances]. In the event that the statutory municipal limits of liability under state law are increased, the amounts of coverage shall be increased to the limits of municipal liability. 8. Compliance with Applicable Laws. The Grantee shall at all times comply with all applicable laws, ordinances, rules, regulations, and codes, federal, state, and local, whether now or hereafter promulgated or enacted in its construction of the driveway, use and maintenance of the driveway and Easement Premises. 9. Entire Agreement. This Agreement contains the complete understanding and agreement of the parties hereto with respect to all matters referred to herein, and all prior representations, negotiations, and understandings are superseded hereby. 10. No Waiver. No waiver of any default of any obligation by any party hereto shall be implied from any omission by the other party to take any action with respect to such default. 11. Notices. All notices permitted or required to be given under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) one business day after being delivered to a reliable and recognized overnight courier or messenger service which provides receipts of delivery, with fees prepaid or charged to the sending party, or c) three business days after being deposited in the United States mail in a sealed envelope by certified mail, postage prepaid, addressed to the respective party at the address set forth herein or 4 212512v1 to such other address as set forth in a notice given in accordance with this Section. The notice addresses of the initial Owners are as follows: Grantor: City of Chanhassen 7700 Market Boulevard P.O. Box 147 Chanhassen, MN 55317 Attention: City Manager Grantees: John C. Tietz and Carrie M. Tietz, Trustees c/o John C. Tietz and Carrie M. Tietz Living Trust 7011 Galpin 55331 Excelsior, MN 55044 12. Severability. The invalidity of any portion of this Agreement shall not impair in any manner the validity, enforceability or effect of the rest of this Agreement. 13. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota. 14. Covenants to Run with Land. The easement, rights and the maintenance and repair responsibilities set forth in this Agreement shall run with Parcels A and B and shall be binding upon, and inure to the benefit of the owners, their heirs, successors and assigns, and any other person or entity at any time thereafter who shall become the owner of Parcel A and/or Parcel B. 15. Termination. This Easement shall terminate if the driveway constructed within the Easement Premises is abandoned or relocated by the Grantee from the Easement Premises. Upon abandonment or relocation of the driveway, the Grantee shall remove the driveway and related improvements at the Grantee’s cost. 16. Counterparts. This Easement Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which, when taken together, constitute the same instrument. 17. Title. The above named Grantor covenants with the Grantee, its successors and assigns, that Grantor is well seized in fee title of the above described easement premises; that Grantor has the sole right to grant and convey the easement to the Grantee; and that there are no unrecorded interests in the easement premises. Remainder of page intentionally left blank. Signature pages follow.] 5 212512v1 IN WITNESS WHEREOF, this easement has been executed on the day and year first above written. GRANTOR: CITY OF CHANHASSEN By ___________________________________ SEAL) Elise Ryan, Mayor And __________________________________ Heather Johnston, Interim City Manager STATE OF MINNESOTA ) ss. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this _______ day of 202__, 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. Notary Public 6 212512v1 GRANTEE: JOHN C. TIETZ AND CARRIE M. TIETZ LIVING TRUST dated March 18, 2016 John C. Tietz, Trustee Carrie M. Tietz, Trustee STATE OF MINNESOTA ) ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this ______ day of ______________, 2020, by John C. Tietz and Carrie M. Tietz as Trustees of the John C. Tietz and Carrie M. Tietz Living Trust dated March 18, 2016 Notary Public THIS INSTRUMENT WAS 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 7 212512v1 EXHIBIT “A” TO ACCESS EASEMENT AGREEMENT A 20.00 foot easement for access purposes over, on, under and across that part of Outlot A, THE BLUFFS AT LAKE LUCY, according to the recorded plat thereof, Carver County, Minnesota, the centerline of said easement is described as commencing at the most westerly corner of said Outlot A; thence on an assumed bearing of South 87 degrees 51 minutes 50 seconds East along the most westerly south line of said Outlot A, a distance of 53.83 feet to the actual point of beginning; thence North 05 degrees 49 minutes 56 seconds East, a distance of 9.56 feet to the southerly right of way line of Della Drive and there terminating; The side lines of said easement are to be prolonged or shortened to terminate at said most westerly south line of Outlot A and southerly right of way line of Della Drive Encroachment Area = 192 sq. ft 8 212512v1 EXHIBIT “B” TO ACCESS EASEMENT AGREEMENT