Encroachment Agreement - ROW Agreement - 4000 Sunset Drive - 3/20/2023No delinquent taxes
Apr 6, 2023 1:21 PM
Hennepin County, Minnesota
Daniel Rogan
County Auditor and Treasurer
PID(s)
17-117-23-33-0031
1111111111111111111111
LAND TYPE Abstract (A)
DOC NUM 11192161
Certified, filed and/or recorded on
Apr 6, 2023 1:21 PM
Office of the County Recorder
Hennepin County, Minnesota
Amber Bougie, County Recorder
Daniel Rogan, County Auditor and Treasurer
Deputy 120
Document Recording Fee
Document Total
Pkg ID 2552375E
$46.00
$46.00
This cover sheet is now a permanent part of the recorded document.
(top 3 inches reserved for recording data)
LICENSE OF ENCROACHMENT
THIS LICENSE OF ENCROACHMENT ("License"), made effective as of this day of
2023, is entered into by and between the CITY OF SPRING PARK, a Minnesota municipal
corporation, whose address is 4349 Warren Avenue, Spring Park, Minnesota 55384 ("CITY"), and LAKE
MINNETONKA CONDOS LLC, a Minnesota limited liability company, whose mailing address is 4823 Twin Lake
Avenue North, Brooklyn Center, Minnesota 55429 ("LMC"). CITY and LMC may hereinafter be referred to individually
as a "Party" and collectively as the "Parties".
RECITALS:
A. LMC is the fee owner of certain real property commonly known as 4000 Sunset Drive, Spring Park,
Hennepin County, Minnesota 55384, as legally described on Exhibit A attached hereto and made a part hereof (the
"Property"); and
B. CITY is the fee owner of the platted right-of-way (the "ROW') legally described in Exhibit B attached
hereto and incorporated herein and as depicted on the Certificate of Survey prepared by Sambatek dated September
6, 2022 (the "Survey") attached hereto and incorporated herein as Exhibit C.
C. A two story, two-family residence (the "Residence"), with an attached stairway and landing, a
retaining wall, and other structures as depicted on the survey are situated on the Property and will be improved
substantially as depicted in Exhibit D attached hereto and incorporated herein (collectively, the "Improvements").
D. The Residence as currently situated encroaches upon the ROW as depicted on the Survey.
E. LMC desires to obtain CITY's consent to construct the Improvements, and use, maintain and repair
that portion of the Residence that encroaches into the ROW, and CITY is willing to allow the same, but only to the
extent consistent with the terms of this License.
F. LMC and CITY wish to resolve and settle any claims related to the location, use, and maintenance
of the Residence, Improvements, and ROW.
NOW, THEREFORE, for and in consideration of the mutual covenants herein contained, and other good and
valuable consideration, the sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as
follows:
AGREEMENT:
1. Recitals. The foregoing Recitals are true and correct and incorporated into the substantive body of
this License as though fully set forth here.
2. Encroachment Permitted: License Granted• Consent to Improvements, CITY hereby grants to LMC
a license for the continued location, use, maintenance and repair of the Residence and any existing bituminous surface
or other portion of the Residence that encroaches in the ROW ("Approved Encroachment"), This License constitutes
a license to locate, construct, use, maintain and repair the Approved Encroachments only and does not authorize an
expansion of the Residence outside of the Approved Encroachment. The rights granted under this License do not rise
to the level of a real property interest in or to the ROW. The License granted hereby shall be irrevocable except as
specifically provided in Section 8. The City further hereby consents to the construction of the Improvements.
3. Intentionally Omitted,
4. Maintenance: Repair. LMC agrees, at its sole cost and expense, to use, maintain and repair the
Residence, including the Improvements, in a manner consistent with all applicable laws, codes, and regulations, CITY
shall maintain the ROW in a sate condition at all times, and enforce proper use of the ROW incompliance with applicable
law.
5. No Other Encroachment Allowed. Except for the Approved Encroachment, LMC shall not create,
erect or construct any other encroachment on, above or below the surface of the ground on the ROW, or change the
grade or elevation of the ground surface on the ROW, or cause or permit any of these to be done by others,
6. Release4 Indemnification. LMC hereby releases CITY, its representatives, employees and elected
and appointed officials from any and all damages, claims, or liability with respect to the Improvements that may arise
due to the CITY's and the public's use of the ROW or operation and maintenance of infrastructure within the ROW.
LMC agrees that it shall Indemnify, hold harmless and defend CITY, its representatives, employees and elected and
appointed officials from and against all claims, damages, loss and expenses of any sort including reasonable attorney's
fees and court costs, arising out of or resulting from the use, maintenance and repair of the Improvements.
7. Settlement and Mutual Release. Except for any default under the terms of this License and for good
and valuable consideration exchanged in connection herewith, the receipt and sufficiency of which are hereby
acknowledged, LMC and CITY, and each of their respective representatives, employees, agents, successors, assigns,
and elected and appointed officials, hereby release and discharge each other from any and all claims, demands, actions
or causes of action of whatever kind, nature and description, whether known or unknown, as of and after the Effective
Date arising from any and all damages, claims, or liability with respect to the Parties' dispute regarding the location,
use, maintenance or repair of the ROW, Residence, andfor Improvements. It is expressly understood and agreed that
this Agreement is made in compromise of disputed and controverted claims, and that nothing contained herein shall
constitute or be deemed an admission of fault, liability, wrongdoing, or malfeasance of any kind, or as an admission of
the validity of the allegations, claims, or contentions of any Party.
8. Termination of License and Removal of Improvements. Upon the default by LMC under the terms
of this License, CITY retains the right to immediately revoke this License by notifying LMC in writing at the address
listed in the initial paragraph of this License. LMC shall remove the Improvements from the ROW within one hundred
eighty (180) days of the date of the written notice to LMC or, if removal is not feasible within such period, LMC shall
have diligently undertaken to effect removal within such period, If LMC fails to timely remove or undertake to remove
the Improvements from the ROW, as applicable, then CITY may remove same and charge the cost of removal to LMC,
Should LMC fail to pay the costs of CITY's removal of the Improvements with thirty (30) days of invoice therefor, CITY
may assess the costs against the Property pursuant to Minnesota Statutes Chapter 429. LMC acknowledges and
agrees that the exact amount of the assessment cannot be determined at the present time and waives any rights to
notice of a hearing and a hearing on the special assessment, LMC also waives all rights to an appeal or to otherwise
challenge the levy of a special assessment. LMC further agrees that any requirements of Minnesota Statutes Chapter
429 are waived to the extent such requirements are not met.
9. No Waiver by City. Nothing in this License shall be deemed a waiver by the City of any governmental
immunity defenses, statutory or otherwise. Any claims shall be subject to the City's governmental immunity defenses
and the maximum liability limits provided in Minnesota Statutes Chapter 466. This License shall not constitute a waiver
or an abandonment by the City of its property rights in the area in which the Approved Encroachment is located.
10. Binding Effect. This License shall be recorded and shall be binding upon the successors, heirs,
executors, administrators, representatives, or assigns of the parties hereto, and upon all persons acquiring an interest
thereunder and shall be a restrictive covenant running with the Property.
11. Controlling Laws. This License and the provisions contained herein shall be construed, controlled,
and interpreted according to the laws of the State of Minnesota, and all duly adopted ordinances, regulations, and
policies of CITY now in effect and those hereinafter adopted. The location for settlement of all claims, controversies,
disputes, arising out of or relating to any part of this License, or any breach hereof, shall be in Hennepin County,
Minnesota.
12. Savings Clause. If any sentence, phrase, paragraph, provision, or portion of this License is for any
reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed an
independent provision and such holding shall not affect the validity of the remaining portions hereto.
13. Attome 's Fees. LMC agrees that it shalt be liable for reasonable attorney's fees incurred by CITY,
K CITY is required to take any actions, through litigation or otherwise, to terminate or enforce this License.
14. Entire Agreement. This License constitutes the entire agreement between the parties with respect
to the specific matters contained herein and supersedes all previous discussions, understandings, and agreements.
Any amendments to or waivers of the provisions herein shall be made by the parties in writing. No other agreements,
oral or otherwise, regarding the subject matter of this License shall be deemed to exist or to bind either party hereto.
15. Recordina. LMC will record this License, at its expense, in the public land records of Hennepin
County, Minnesota, where it shall encumber the Property.
[Remainder of page intentionally blank; signature pages to follow]
IN WITNESS WHEREOF, the parties have executed this License on the day and yearfirst written above.
LMC:
STATE OF MINNESOTA )
) S&
COUNTY OF HENNEPIN )
LAKE MINNETONKA CONDOS LL.C,
a Minnesota limited liability company
By: J��L M
Namef Joseph M. Cheney
Title: Sole Member
This License of Encroachment was acknowledged before me on this 6th day of March, 2023, by Joseph M. Cheney,
the sole member of Lake Minnetonka Condos LLC, a Minnesota limited liability company.
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[Stamp] 1
[signature[
Title and Rank: i z
My Commission Expires:
Error! Unknown document property name.
CITY: CITY OF SPRING PARK,
a Minnesota municipalwrporation
By:±Anderson,
ockvam, Mayor
By:
Administrator
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This license of Encroachment was acknowledged before me on thisday of rn& , 2023, by Jerome
Rockvam and Mike Anderson, the Mayor and City Administrator, respectively of the City of Spring Park, a Minnesota
municipal corporation.
r
THIS INSTRUMENT WAS DRAFTED BY
AND WHEN RECORDED RETURN TO:
Kennedy & Graven, Chartered (MDT)
150 South Fifth Street, Suite 700
Minneapolis, MN 55402-1299
Error! Unknown document property name.
EXHIBIT "A"
Legal Description of LMC's Property
That part of Lot 14, Skarp and Lindquist's Hazeldell Addition to Minnetonka described as follows:
Beginning at a point in the Southeasterly line of said Lot 14 distant 367 feet Northeasterly measured
along the Southeasterly line of said Lot 14 from the most Southerly corner thereof; thence North 55
degrees 22 minutes West to the shore of Lake Minnetonka; thence Northeasterly along the shore of
said lake to the most Northerly comer of Lot 14: thence Southeasterly along the Northeasterly line
of said Lot 14 to the most Easterly comer thereof; thence Southwesterly along the Southeasterly line
of said Lot 14 a distance of 48.5 feet; more or less to the point of beginning, Hennepin County,
Minnesota
PIN: 17-117-23-33-0031
EXHIBIT "B"
Legal Description of ROW
A 20 foot wide strip of land lying between Lots 13 and 14 as dedicated on the plat of SKARP &
LINDQUIST'S HAZELDELL ADDITION TO MINNETONKA, lying within the Southwest Quarter of
Section 17, Township 117, Range 23, Hennepin County, Minnesota, more particularly described as
follows:
Commencing at the South Quarter Corner of said Section 17; thence South 89 degrees 40 minutes 29
seconds West, assumed bearing along the south line of said Southwest Quarter of Section 17, a distance
of 2251.84 feet to Meander Corner l 2; thence North 05 degrees 55 minutes 28 seconds West, a distance
of 1220,07 feet to a found magnetic nail at the intersection of the most southerly corner of the right of
way to be described and a point on the northwesterly right of way of Sunset Drive, as dedicated on said
plat and the point of beginning of the land to be described; thence North 58 degrees 16 minutes 33
seconds West, along the southwesterly line of said dedicated right of way, a distance of 142.57 feet to a
found half -inch iron pipe marked by Licensed Surveyor No. 17006; thence continuing North 58 degrees
16 minutes 33 seconds West, approximately 5 feet to the edge of water of Lake Minnetonka; thence
northeasterly along the edge of water of Lake Minnetonka, a distance of approximately 20.11 feet to the
intersection with the northeasterly line of said dedicated right of way being a line 20 feet northeasterly of
and parallel with the above described southwesterly right of way line; thence South 58 degrees 16 minutes
33 seconds East, along said northeasterly right of way line, approximately 7 feet to an iron pipe set and
marked by Licensed Surveyor No. 43933; thence continuing South 58 degrees 16 minutes 33 seconds
East, a distance of 142.81 feet to a found half -inch iron pipe at the intersection of said northwesterly right
of way of Sunset Drive; thence South 32 degrees 04 minutes 23 seconds West, along said northwesterly
right of way line, a distance of 20.00 feet to the point of beginning and there terminating.
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