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Encroachment Agreement - 5801 3rd Street Signed County File_ IIIIIIII�IIIIIIIIHIIIIIIIIIIIIIIIIIIIilhil Record ID 2675544 SCANNED 2078317 . 001 AGREEMENT RELATING TO LANDOWNER IMPROVEMENTS WITHIN CITY EASEMENT ON LOTS 1 AND lA, BLOCK ONE (1), GATEWAY WEST 2ND ADDITION, IN THE CITY OF FRIDLEY, ANOKA COUNTY, MINNESOTA AGREEMENT RELATING TO LANDOWNER IMPROVEMENTS WITHIN CITY EASEMENT ON LOTS 1 AND 1A, BLOCK ONE (1), GATEWAY WEST 2ND ADDITION, IN THE CITY OF FRIDLEY, ANOKA COUNTY, MINNESOTA THIS AGREEMENT, made this day of , 2014,by and among the City of Fridley(hereafter referred to as "City"), a Minnesota municipal corporation, and Riazullah Mohamed Yussuff and Noor Faiza Mohamed Jahangi, husband and wife, and Novak- Fleck, Incorporated (hereafter referred to collectively and individually as"Landowners"). Based on the covenants, agreements, representations and recitals herein contained,the parties agree as follows: ARTICLE l TERMS 1.1 Terms. Unless specifically defined elsewhere in this Agreement, the following terms shall have the following meanings. 1.2 City. "City"means the City of Fridley, a Minnesota municipal corporation. 1.3 Subiect Lot. "Subject Lot" means Lots 1 and 1A, Block One (1), Gateway West 2nd Addition, Anoka County, Minnesota, according to the plat thereof on file and of record in the office of the Anoka County Recorder, Anoka County, Minnesota. The Subject Lot is located in the City of Fridley, Anoka County, Minnesota. 1.4 City Easement. "City Easement" means, individually and collectively, the following easements on the Subject Lot: The permanent drainage and utili easement on the Subject Lot dedicated on the recorded plat of Gateway West 2n Addition,Anoka County,Minnesota 1.5 Landowners. "Landowners" means collectively and individually Riazullah Mohamed Yussuff and Noor Faiza Mohamed Jahangi, husband and wife, and Novak-Fleck, Incorporated, a Minnesota corporation and their respective heirs, assigns and successors in interest with respect to the Subject Lot. 1.6 Formal Notice. "Formal Notice" means notice given by one party to the other if in writing and if and when delivered or tendered either in person or by depositing it in the United States mail in a sealed envelope, by certified mail, return receipt requested, with postage prepaid, addressed as follows: -1- IF TO CITY: City of Fridley Attention: Director of Public Works 6431 University Avenue,N.E. Fridley, MN 55432 IF TO LANDOWNERS Riazullah Mohamed Yussuff and Noor Faiza Mohamed Jahangi 5801 3' Street NE Fridley, MN 55432 Richard Novak President Novak-Fleck, Incorporated 8857 Zealand Avenue N. Brooklyn Park, MN 55445 or to such other address as the party addressed shall have previously designated by notice given in accordance with this Section. Notices shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third day after mailing if mailed as provided above, provided, that a notice not given as above shall, if it is in writing,be deemed given if and when actually received by a party. 1.7 Landowner Improvements. "Landowner Improvements"means the one hundred forty-four (144) square foot portion of the single family one story home with basement depicted in the attached Exhibit A. 1.8 City Easement Improvements. "City Easement Improvements" means all existing and future sanitary sewer, municipal water and storm water pipes, conduits, culverts, ditches, ponds, catch basins, water collection mechanisms, drainage facilities, maintenance access routes and other utility appurtenances lying within the City Easement now or in the future. 1.9 Property Sketch. "Property Sketch" means the property sketch depicting Landowner Improvements encroaching into the City Easement, a copy of which is attached hereto as Exhibit B. 1.10 City Utility Costs. "City Utility Costs" means all costs incurred by the City, (whether performed by the City or its agents or contractors), for the inspection of and access to and repair, maintenance and replacement of the City's Easement Improvements located in the City Easement and the placement of additional City Easement Improvements in the City Easement. City Utility Costs, include, without limitation: excavation costs, labor costs, costs of removing fill, costs of re-burying the City Easement Improvements, re-compacting the soils over the City Easement Improvements, restoring the City Easement area, and all engineering and attorneys' fees incurred in connection therewith. City Utility Costs also include the costs of temporarily removing the Landowner Improvements and subsequently replacing the Landowner Improvements in the City Easement, if such costs have not already been paid by the Landowners. -2- 1.11 Pre-Encroachment Costs. "Pre-Encroachment Costs" means a reasonable estimate by the City of the costs the City would have incurred for City Utility Costs if the Landowner Improvements did not exist. 1.12 Cost Differential. "Cost Differential" means the difference between the Pre- Encroachment Costs and the City Utility Costs caused by the existence of the Landowner Improvements. The City's reasonable determination of the amount of the Cost Differential shall be binding on the Landowners. The City's reasonable determination shall be appropriately supported by cost estimates obtained from independent contractors or engineers. ARTICLE 2 RECITALS Recital No. 1. The undersigned Landowners are the developer (Novak-Fleck, Incorporated) and buyers (Riazullah Mohamed Yussuff&Noor Faiza Mohamed Jahangi) of the Subject Lot located in Fridley, Anoka County, Minnesota. Recital No. 2 The City Easement is on the Subject Lot. The City owns the City Easement. The City Easement Improvements are within the City Easement and future City Easement Improvements may be located within the City Easement. Recital No. 3. Landowners have requested permission from the City to place Landowner Improvements within the City Easement. Recital No.4. Subject to the terms of this Agreement, the City is willing to allow the Landowner Improvements to be placed within the within the City Easement if the following conditions are met: a.) The Landowners maintain the Landowner Improvements; b.) The Landowners agree to pay the City any Cost Differential relating to inspections, access, repair, maintenance and replacement of the existing City Easement Improvements and the placement of any future City Easement Improvements in the City Easement. c.) The Landowners agree to protect the Landowner Improvements in the City Easement in order for the City to gain access to the City Easement Improvements and for the purposes of inspecting, repairing, maintaining, or replacing the City Easement improvements or adding future City Easement Improvements. d.) The Landowners agree to seek prior written approval from the City for any future alteration or modification of the Landowner Improvements in the City Easement. -3- NOW, THEREFORE, THE CITY OF FRIDLEY AND THE UNDERSIGNED LANDOWNERS, FOR THEMSELVES, AND THEIR SUCCESSORS, HEIRS AND ASSIGNS DO HEREBY AGREE: ARTICLE 3 AGREEMENTS 3.1 Existence And Maintenance Of Landowner Improvements. Under the terms and conditions stated herein, the Landowners, at their own cost, are hereby authorized by the City to maintain the Landowner Improvements within the City Easement. The existing Landowner Improvements are only permitted at the location specified in the Property Sketch. The Landowners shall not place any other structures, irrigation systems, buildings, fences, landscaping, trees or shrubs within the City Easement, except for the Landowner Improvements. The Landowners, at their own expense, shall maintain and repair the Landowner Improvements. 3.2 City Not Responsible For Landowner Improvements. Nothing contained herein shall be deemed an assumption by the City of any responsibility for construction, maintenance, replacement or repair of the Landowner Improvements. 3.3 Continuine Rip-ht To City Easement. Nothing contained herein shall be deemed a waiver or abandonment or transfer of the right, title and interest that the City holds to the City Easement. 3.4 Subordinate Position Of Landowner Improvements. The Landowner Improvements are subordinate to the rights of the City in the City Easement and in the City Easement Improvements. 3.5 Risk Of Loss. The Landowners understand and agree that the Landowner Improvements within the City Easement may be adversely affected by use of the City Easement. The parties agree that the City is not responsible for such events; the City shall have no liability to the Landowners for such events. The Landowners assume the risk of installing the Landowner Improvements in the City Easement area. 3.6 Landowners To Bear Cost Of Protecting_Landowner Improvements. The City is responsible for the repair and maintenance of the City Easement Improvements in the City Easement. The City may require the Landowners to protect the Landowner Improvements in the City Easement in the event and in order for the City to gain access to the City Easement Improvements for the purposes of inspecting, repairing, maintaining, or replacing, the City Improvements or adding future City Easement Improvements. -4- If the Landowners do not perform such tasks, the City may perform such tasks and in such case the Landowners shall reimburse the City for the City's costs and expenses. Prior to commencing such tasks, the City shall send Formal Notice to the Landowners and allow the Landowners twenty (20) days from the date of the Formal Notice to perform the tasks. If the Landowners have not completed the work within the twenty (20) days, then the City may proceed to perform the tasks. Once the City's costs and expenses have been determined by the City, the City shall send an invoice for such costs and expenses to the Landowners. The Landowners must pay the invoice within thirty(30) days after the date of the invoice. Such costs and expenses include, but are not limited to, costs charged to the City by third parties such as contractors as well as the costs for City personnel that may have performed the work. Bills not paid shall incur the standard penalty and interest established by the City for utility billings within the City. 3.7 Emergency. Notwithstanding the requirements contained in Sections 3.6 relating to a twenty (20) day Formal Notice to the Landowners to perform its obligations under Sections 3.6, the City shall not be required to give such Formal Notice if the City's Public Works Director or the Public Works Director's designee determines that an emergency exists. In such instance, the City, without giving Formal Notice to the Landowners may perform the work and in such case the Landowners shall reimburse the City for the costs and expenses relating to the work. Once the City's costs and expenses have been determined by the City, the City shall send an invoice for such costs and expenses to the Landowners. The Landowners must pay the invoice within thirty(30) days after the date of the invoice. Such costs and expenses include, but are not limited to, costs charged to the City by third parties such as contractors as well as the costs for City personnel that may have performed the work. Bills not paid shall incur the standard penalty and interest established by the City for utility bills within the City. 3.8 Cost Deferential. If a Cost Deferential occurs relating to the access to or inspection, maintenance, repair or replacement of the City Easement Improvements or relating to construction of new City Easement Improvements in the future, then the Landowners shall pay the Cost Deferential to the City. The Landowners must make payment for the Cost Deferential within 30 days after the City has sent a written invoice for the Cost Deferential to the Landowners. 3.9 Modifications To Landowner Improvements. If in the future the Landowners desire to alter or modify the Landowner Improvements, Landowners must submit such alteration or modification plans to the City for its review and approval. Landowner may not alter or modify the Landowner Improvements without first obtaining the written approval of the City's Public Works Director or the Public Works Director's designee. 3.10 Remedies. If the Landowners fail to perform their obligations under this Agreement, then the City may avail itself of any remedy afforded by law or in equity and any of the following non-exclusive remedies: a.) The City may specifically enforce this Agreement. -5- b.) If the Landowners fail to make payments under Section 3.6, 3.7 or 3.8, then the City may certify to Anoka County the amounts due as payable with the real estate taxes for the Subject Lot in the next calendar year; such certifications may be made under Minnesota Statutes, Chapter 444 in a manner similar to certifications for unpaid utility bills. The Landowners waive any and all procedural and substantive objections to the imposition of such usual and customary charges on the Subject Lot. Further, as an alternate means of collection, if the written billing is not paid by the Landowners, the City, without notice and without hearing, may specially assess the Subject Lot for the costs and expenses incurred by the City. The Landowners hereby waive any and all procedural and substantive objections to special assessments for the costs including, but not limited to, notice and hearing requirements and any claims that the charges or special assessments exceed the benefit to the Subject Lot. The Landowners waive any appeal rights otherwise available pursuant to Minnesota Statute § 429.081. The Landowners acknowledge that the benefit from the performance of tasks by the City equals or exceeds the amount of the charges and assessments for the costs that are being imposed hereunder upon the Subject Lot. No remedy herein conferred upon or reserved to the City shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 3.11 Indemnification. The Landowners shall indemnify, defend and hold the City, its council, agents, consultants, attorneys, employees and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies including interest, penalties and attorneys' fees, that the City incurs or suffers, which arise out of, result from or relate to any of the following: a.) The Landowner Improvements; b.) Installation and maintenance of the Landowners Improvements; c.) Failure by the Landowners to observe or perform any covenant, condition, obligation or agreement on their part to be observed or performed under this Agreement; and d.) Use of the City Easement for Landowner Improvements. -6- 3.12 City Duties. Nothing contained in this Agreement shall be considered an affirmative duty upon the City to perform the Landowners' obligations contained in Article 3 if the Landowners do not perform such obligations. 3.13 No Third Party Recourse. Third parties shall have no recourse against the City under this Agreement. 3.14 Recording. Upon execution by the parties, City shall record this Agreement with the Anoka County Recorder and Landowners shall bear the cost of recording fees associated with this Agreement. 3.15 Binding Agreement. The parties mutually recognize and agree that all terms and conditions of this recordable Agreement shall run with the Subject Lot and shall be binding upon the heirs, successors, administrators and assigns of the parties. Upon request by the Landowners,the City will prepare for the Landowners, at standard City charges, a special assessment search indicating the extent to which, if any, there is a levied or pending special assessment under Section 3.10 hereof. 3.16 Amendment And Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this Agreement or in any document delivered pursuant hereto which inaccuracies would otherwise constitute a breach of this Agreement, waive compliance by another with any of the covenants contained in this Agreement and performance of any obligations by the other or waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any of its obligations under this Agreement. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions,whether or not similar,nor shall any waiver constitute a continuing waiver. 3.17 Governing Law. This Agreement shall be governed by and construed in accord with the laws of the State of Minnesota. 3.18 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. �I 3.19 Headings. The subject headings of the sections in this Agreement are included for purposes of convenience only, and shall not affect the construction of interpretation of any of its provisions. IN WITNESS WHEREOF, the parties have executed this Agreement the year and day first set forth above. CITY OF FRIDLEY LANDOWNERS By: Scott Lund,Mayor Riazullah Mohamed Yussuff M r �-5 alter WAvisCity ger Noor Faiza Mo ed ahangi Novak-Fleck, Incorporated Richard Novak Its President I i i -8- STATE OF MINNESOTA ) ss: COUNTY OF ANOKA ) On this 4*--day of 1jhLA iat 014,before me a Notary Public within and for said County, personally appeared Scott LIsa Walter Wysopal to me personally known, who being each by me duly sworn, each dithey are respectively the Mayor and City Manager of the City of Fridley, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed in behalf of said municipality by authority of its City Council and said Mayor and City Manager acknowledged said instrument to be the free act and deed of said municipality. ROBERTA S.COLEINS ` Neary Pub Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF ANOKA On this day o , 2014, before me a Notary Public within and for said County,personally appear4ed Riazu ah M Named Yussuff and Noor Faiza Mohamed Jahangi, husband and wife, to me personally known to be the persons described in and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed. CANDICE L.JOHNSON Notary Public-MinnesotaAd 'e:. My Commission Expires Jan 31,2015 Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF ANOKA ) On this V day 2014, before me a Notary Public within and for said County, personally appeared Richar ovak to me personally known, who being by me duly sworn, did say that he is the President of Novak-Fleck, Incorporated, a Minnesota corporation, the corporation named in the foregoing instrument, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors and said Richard Novak acknowledged said instrument to be the free act and deed of the corporation. CANDICE L.JOHNSON . Notary Public-Minnesota My Commission Expires Jan 31,2015 0 JU Notary Public -9- AFTER RECORDING,PLEASE THIS INSTRUMENT DRAFTED BY: RETURN THIS INSTRUMENT TO: Darcy M.Erickson Darcy M.Erickson LeVander,Gillen&Miller,P.A. LeVander,Gillen&Miller,P.A. 633 South Concord Street,Suite 400 633 South Concord Street,Suite 400 South St.Paul,MN 55075 South St.Paul,MN 55075 (651)451-1831 (651)451-1831 -10- EXHIBIT A PROPERTY SKETCH DEPICTING LANDOWNER IMPROVEMENTS -10- Exhibit A DIY--LAND SURVEYING, .P.A.© LAND SURVEYORS 11947 Idaho Ave. N. N INVOICE N0. 33247 Champlin, Minnesota 55316 F.B. NO. XXX PHONE (763) 323-1300 SCALE 1'= 20' FAX ('63) 323-7035 W nylandsurveyOgwestoffice.net O Denotes Iron Monument Found r[% E ,5urtt :gars Ttrtifiratr NOTE: PROPERTY CORNERS S SET BY DEVELOPERS SURVEYOR NOVAK FLECK 1 I-�--I 5801 3rd Street NE L— Q W J ' I Ld U dC °' V) zw i O LLQ Encroaching :2 ch LJ Q Landowner Q o = 0 F a LL m LU Improvements a I o i o I I—I z � 10 — Window Well 36.0 r, O67.0 J 4— 36.0 Oii I—�— �s � H h+�l ---South line of Lot 1 I zC") 134.94 N89'13'00"W I Existing I City Q' Easement Note: Survey Certificate Amended by City of Fridley for Exhibit Purposes LOTS 1 AND 1A, BLOCK 1, GATEWAY WEST 2ND ADDITION This survey Is certified only to the above named person or persons and not to subsequent oonere,mortgages or tide Insurer. The only easements shown ore from plats of record of Information provided by client, All brebyg certify dimensions and floor elesurvey as must be verified by undo I hereby certify that this survey was prepared by me or under my direct supervision, and that I am a duly Registered Land Surveyor under the laws of the State of Minnesota. Signed Surveyed by us this 20TH day of JANUARY 20 13 Milton E. Hyland, Minn. Reg_ No. 20262 ANOKA COUNTY MINNESOTA r - Document No.: 2078317.001 ABSTRACT I hereby certify that the within instrument was filed in this office for record on: 02/26/2014 9:34:00 AM Fees/Taxes In the Amount of $46.00 JONELL M. SAWYER Anoka County Property Tax Administrator/Recorder/Registrar of Titles TAP, Deputy Record ID: 2675544