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909 Oakwood Heights Cir - Encroachment Agreement 6/14/2012Receipt#: 209306 ABSTRACT FEE $46.00 Return to: DOUGHERTY MOLENDA 7300 WEST 147TH STREET STE 600 APPLE VALLEY, MN 55124 2874202 llOIEIIIIIIII Recorded on 6/14/2012 10:21:32AM By. STG, Deputy Joel T. Beckman County Recorder Dakota County, MN 16( ENCROACHMENT AGREEMENT This Encroachment Agreement ( "Agreement ") is made and entered into this 9 day of hIA , 2012, by and between the City of Eagan, a Minnesota municipal corporation (the "City "), and Andre B. Montgomery and Julianne V. Montgomery, husband and wife ( "Montgomery "); Chad W. Jeske and Crista J. Jeske, husband and wife ( "Jeske "); Lynn R. Klocek, a single person, ( "Klocek "); John A. Henderson, a single person ( "Henderson "); Todd S. Petersen, a single person ( "Petersen "); Cornelius K. Hetherington, a single person ( "Hetherington "); and Gregory P. Stewart and Kari K. Stewart, husband and wife ( "Stewart"). Montgomery, Jeske, Klocek, Henderson, Petersen Hetherington and Stewart are hereinafter collectively referred to as the "Landowners." Landowners and the City are collectively referred to as the "Parties." and and and LOT 1, BLOCK 1, OAKWOOD HEIGHTS 3 ADDITION WHEREAS, Montgomery is the fee owner of Condominium Unit No. 1 of CIC Plat 287; WHEREAS, Jeske is the fee owner of Condominium Unit No. 2 of CIC Plat 287; and WHEREAS, Klocek is the fee owner of Condominium Unit No. 3 of CIC Plat 287; and WHEREAS, Henderson is the fee owner of Condominium Unit No. 4 of CIC Plat 287; WHEREAS, Petersen is the fee owner of Condominium Unit No. 5 of CIC Plat 287; and WHEREAS, Hetherington is the fee owner of Condominium Unit No. 6 of CIC Plat 287; WHEREAS, Stewart is the fee owner of Condominium Unit No. 7 of CIC Plat 287. WHEREAS, the Landowners have an interest in the common area of the CIC Plat 287 known as Lot 1, Block 1, Oakwood Heights 3 Addition (hereinafter the "Property"); and WHEREAS, Landowners desire to construct a residential deck with structural footings on a portion of the Property (hereinafter the "Improvements "); and WHEREAS, in order to construct the Improvements, it is necessary for the Landowners to encroach within certain dedicated public drainage and utility easements (the "Easement ") granted in favor of the City on the Property; and WHEREAS, Dakota Electric Association obtained a permit from the City and constructed an electrical line within the Easement that may be impacted by the Improvements; and WHEREAS, the City is willing to allow Landowners to encroach within the Easement, as more particularly set forth on Exhibit "A" attached hereto, all upon the terms and conditions contained herein: 1. ENCROACHMENT. The City hereby authorizes Landowners to construct, maintain and repair the Improvements within the Easement. 2. No WAIVER. Nothing in the Agreement shall be deemed a waiver or abandonment of the City's or Dakota Electric's rights in the Easement. 3. COSTS. The Landowners shall be responsible for all costs relating to the construction, maintenance and repair of the Improvements. 4. ASSUMPTION OF RISK. Landowners acknowledge that the construction of the Improvements within the Easement may impact future maintenance, repairs and/or replacement of the utility lines within the Easement, including that utility line owned by Dakota Electric, and it may require extraordinary efforts with related expenses and possibly damage the Improvements. By entering into this Agreement, Landowners acknowledge that placement of the Improvements within the Easement is at their own risk and Landowners assume any and all damage and/or liability that may result from any work performed by the City, Dakota Electric and /or any other agents within the Easement. Landowners agree not to pursue any claim against the City, Dakota Electric or their respective contractors and agents for any damage to the Improvements or any buildings located on the Property resulting from any activity performed within the Easement. 5. MAINTENANCE. The Landowners shall maintain the Improvements in a safe and aesthetically pleasing condition. No advertising or posting shall be permitted upon the Improvements. 2 6. INSURANCE AND INDEMNIFICATION. The Landowners shall maintain comprehensive liability insurance in an amount acceptable to the City Attorney. The Landowners shall name the City as an additional insured on the policy and shall provide a copy of the insurance certificate to the City contemporaneously with the execution of this Agreement. The Landowners shall indemnify and hold the City and its employees, agents and contractors harmless from (i) any and all claims arising out of or related to use by Landowners, their guests or invitees of that portion of the Easement on which Landowners have or will construct Improvements, and (ii) any and all claims arising out of or related to the maintenance of the Easement by the City or its employees, agents or contractors, including, without limitation, damage to the Improvements caused by their equipment. 7. DEFAULT. If the Landowners fail to take any action required in connection with this Agreement, the City will provide a written notice of default to the Landowners giving Owner a 30 -day cure period. Notice need not be given in the event emergency repairs are needed. After the 30 -day cure period, the City may take action and bill the Landowners for the costs thereof. If the Landowners fail to reimburse the City for the costs thereof within ten (10) days after receipt of the bill, the City may take any action permitted by law to collect the amount owed plus the costs of collection, including, but not limited to attorneys' fees. 8. VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or phrase of this agreement is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this Agreement. 9. BINDING AGREEMENT. The Parties mutually recognize and agree that all terms and conditions of this recordable agreement shall run with the land herein described and shall be binding upon the successors and assigns of the parties hereto. 3 CITY OF EAGAN By: Mike Maguire Its: Mayor /1 itt( By: Christina M. Scipioni its: ; Clerk STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this 15 day of , 2012, by Mike Maguire and Christina M. Scipioni, the Mayor and Clerk of the Ci of Eagan, a Minnesota municipal corporation, on behalf of the municipal corporation. C , ))1' Notary Public 4 STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) LYNN R. KLOCEK NOTARY PUBLIC-MINNESOTA My Commission Expires Jan 31. 2015 M Andre B. Montgomery The foregoing instrument was acknowledged before me this /D day of , 2012, by Andre B. Montgomery and Julianne V. Montgomery, husband and wife 5 STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) LYNN R. KLOCEK NOTARY PUBLIC- MINNESOTA My Commission Expires Jan 3t 20t5 to Chad W. eske Crista J. Jeske The foregoing instrument was acknowledged before me this /l day of .w , 2012, by Chad W. Jeske and Crista J. Jeske, husband and wife. Notar)f 6 STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) Lynn R . Klocek The foregoing instrument was acknowledged before me this day of V1 1 , 2012, by Lynn R. Klocek, a single person. Notary Public GINA M. BALLWEBER Notary Public- Minnesota My Commission Expires Jan 31, 2013 7 LYNN R. KLOCEK NOTARY PUBLIC - MINNESOTA My Commission Expires Jan 31 2015 w ■ 8 Jolt` A. H &nderson STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this /0 t day of .11 , -4Itej , 2012, by John A. Henderson, a single person. Notary Public STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of , 2012, by Todd S. Petersen, a single person. LYNN R. KLOCEK NOTARY PUBLIC-MINNESOTA My Commission Expires Jan 31. 2015 w r odd S. Petersen Notary`Public 9 STATE OF MINNESOTA) )ss. LYNN R. KLOCEK NOTARY PUBLIC- MINNESOTA My Commission Expires Jan 31. 2015 w Cornelius K. Hetherington COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this /� day of , 2012, by Cornelius K. Hetherington, a single person. 10 LYNN R. KLOCEK NOTARY PUBLIC-MINNESOTA My Commission Expires Jan 31 2015 ■ THIS INSTRUMENT WAS DRAFTED BY: SEVERSON, SHELDON, DOUGHERTY & MOLENDA, P.A. 7300 West 147th Street, Suite 600 Apple Valley, MN 55124 (952) 432 -3136 (RBB: 206 -4768) Kari K. Stewart STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this /0 of / , 2012, by Gregory P. Stewart and Kari K. Stewart, husband and wife. "Public 11 JX MIBI 1' "A" C .0 C U pUTINq . 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