Staff Report to North Ogden City Council SYNOPSIS / APPLICATION INFORMATION Application Request: Consideration and action on an agreement to allow access to a City owned property located at approximately 2992 North 300 East. Agenda Date: May 26, 2015 Applicant: Robert Marcott File Number: CPP 2015-01 PROPERTY INFORMATION Address: 2992 North 300 East. Zoning: Single Family Residential Zone (R-1-8) Existing Land Use: Vacant Proposed Land Use: Right of Access Parcel ID: 170450029 ADJACENT LAND USE North: Residential East: Agriculture/ Open Space South: Residential West: Residential STAFF INFORMATION Brian Smith bsmith@nogden.org (801) 737-2216 APPLICABLE ORDINANCES 11-2-1: Definition of Words and Terms 3-1-9: Disposal of City Property BACKGROUND The applicant is requesting the City grant a right of way access on city owned property, from 300 East to allow him better access to allow him better access to his garage. The City Council heard this request at their May 5, 2015 meeting. Direction was given to bring this request back with an agreement to allow the Marcott s utilize the property for access to their garage. The agreement stipulates that the Marcott s will be allowed to have access provided that they will provide a plan showing the improvements to be installed, the City Planner will approve the plan, no modifications will be made without city approval, improvements will comply with appropriate city ordinances, the property owner will provide weed control. The agreement does grant permission to use the property for access until the City determines a need for its use. No easements are being given. The City will not reimburse the owner for any expenses incurred. CITY COUNCIL CONSIDERATIONS Does the proposed use meet the requirements of the applicable City Ordinances?
Does the attached agreement meet the City Council s intent regarding access? CONDITIONS OF APPROVAL Obligations of Parcel Owner. o Parcel Owner shall provide a plan detailing where the improvements will be installed to the Planning Department of the City. o Parcel Owner shall not install any improvements until the Planning Department Director has given written approval of the Plan. No modifications may be made to the improvements after completion without written approval from the Planning Department Director. o Any improvement must comply with applicable building codes and be maintained in a safe and good workmanship manner. o Parcel Owner shall maintain the City s property with respect to weeds by applying, at least semi-annually, an herbicide to keep noxious weeds under control, or by mowing regularly. Parcel Owner may remove any vegetative materials including stumps, plants, etc. Parcel Owner may not relocate fence lines or any other permanent structure on the City property. o Parcel Owner agrees that at any point in the future the City may require the use of the property for other purposes and that Parcel Owner has no ownership rights in the installed improvements. o Parcel Owner agrees that they are being given permission to use the City s property. Because this permission is not the grant of an easement or other specific right in real property it may be revoked at any time by the City providing 30 day notice in writing. o Parcel Owner agrees that the City is not by this Agreement giving any guarantee about the future of the City property and Parcel Owner understands that any expenses incurred by Parcel Owner will not be reimbursed by the City. STAFF RECOMMENDATION This is a policy decision. If the City Council determines that granting access with the recommended conditions; then the agreement can be approved. EXHIBITS A. Area Map B. Site plan C. Draft Agreement
Area Map:
SITE PLAN
SITE PHOTO
AGREEMENT NO. AGREEMENT FOR INSTALLATION OF FENCING This Agreement for Installation of Fencing (hereinafter Agreement ) is entered into by and between Robert Marcott and Jilly Marcott ( Parcel Owner ), and North Ogden City, a Utah Municipality (the City ). Parcel Owner and the City are sometimes referred to individually as a Party and collectively as the Parties. This Agreement will be approved by the Parcel Owner and the City Council. Recitals WHEREAS, Parcel Owner, owns a parcel of land ( Parcel ), tax number 17-045-0028, which borders the property owned by the City; and WHEREAS, Parcel Owner desires to travel across a part of the municipal property to make better use of the garage on the Parcel; and WHEREAS, the City property requires ongoing maintenance; and WHEREAS, it will be to the advantage of Parcel Owner and the City to enter into this Agreement. NOW THEREFORE, Parcel Owner and the City agree as follows: Terms of Understanding 1. Incorporation of Recitals. Each of the recitals set forth above are hereby incorporated into this Agreement by this reference, and are made a part hereof. 2. Obligations of the City. As consideration hereof, the City and Parcel Owner mutually agree as follows: a. The City agrees to allow for the installation of certain improvements associated with a concrete driveway to facilitate better access to the Parcel Owner s garage. b. Provide 30 day notice if permission to use the property is revoked. 3. Obligations of Parcel Owner. a. Parcel Owner shall provide a plan detailing where the improvements will be installed to the Planning Department of the City. b. Parcel Owner shall not install any improvements until the City Planner has given written approval of the Plan. i. No modifications may be made to the improvements after completion without written approval from the City Planner. Page 1 of 5 Marcott Agreement
c. Any improvement must comply with applicable building codes and be maintained in a safe and good workmanship manner. d. Parcel Owner shall maintain the City s property with respect to weeds by applying, at least semi-annually, an herbicide to keep noxious weeds under control, or by mowing regularly. i. Parcel Owner may remove any vegetative materials including stumps, plants, etc. ii. Parcel Owner may not relocate fence lines or any other permanent structure on the City property. e. Parcel Owner agrees that at any point in the future the City may require the use of the property for other purposes and that Parcel Owner has no ownership rights in the installed improvements. f. Parcel Owner agrees that they are being given permission to use the City s property. Because this permission is not the grant of an easement or other specific right in real property it may be revoked at any time by the City providing 30 day notice in writing. g. Parcel Owner agrees that the City is not by this Agreement giving any guarantee about the future of the City property and Parcel Owner understands that any expenses incurred by Parcel Owner will not be reimbursed by the City. 4. Amendments and Waivers. This Agreement may not be modified, amended or terminated except by an instrument in writing, signed by each of the Parties affected thereby. No failure to exercise and no delay in exercising any right, remedy or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy or power provided herein or by law or in equity. 5. Drafting and Voluntary Execution. The drafting and negotiation of this Agreement have been participated in by all of the Parties hereto, and for all purposes this Agreement shall be deemed to have been drafted jointly by all such Parties. The Parties acknowledge that they have been represented by legal counsel of their choice in all matters connected with the negotiation and preparation of this Agreement, or that they have had the opportunity to be represented by counsel, and that they have reviewed this Agreement with their counsel, or that they have had the opportunity to review this Agreement with their counsel, and that they fully understand the terms of this Agreement and the consequences thereof. Furthermore, the Parties hereto have been afforded the opportunity to negotiate as to all terms of this Agreement, and that they are executing this Agreement voluntarily and free of any undue influence, duress, or coercion. The Parties hereto further acknowledge that they have relied on their own judgment, belief, knowledge, and advice from their affiliates and agents, as well as any other representative or consultant, as to the extent and effect of the terms and conditions Page 2 of 5 Marcott Agreement
contained herein without any reliance upon any statement or representation of any other party or any officer, director, employee, agent, servant, adjustor, or attorney on acting on behalf of the other party. Moreover, the headings in this Agreement are for convenience only and shall not be interpreted to limit or affect in any way the meaning of the language contained herein. 6. Entire Agreement. The complete understanding of the parties is contained herein. No other Agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party to any other party concerning the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible and alleged Agreements, representations, covenants, and warranties concerning the subject matter hereof are merged herein. This is an integrated Agreement. The provisions of this Agreement are solely for the benefit of the Parties and will not be construed as benefiting any third party. 7. Successors and Assigns. The rights and obligations of the Parties to this Agreement will be binding on, and will be of benefit to, each of the Parties successors, assigns, heirs and estates. Neither this Agreement nor any of the provisions, terms or conditions hereof can be assigned to any other party, individual or entity without assigning the rights as well as the responsibilities under this Agreement. The other Party shall be provided written notice of any assignment of this Agreement by either Party. 8. General Terms and Conditions. a. No Joint Venture, Partnership or Third Party Rights. This Agreement does not create any joint venture, partnership, undertaking or business arrangement between the parties hereto, nor any rights or benefits to third parties. Property Owner is not an agent, contractor, or in any way connected to the City which would incur additional liability or responsibility to or for Property Owner. b. Severability. If any part or provision of this Agreement shall be determined to be unconstitutional, invalid or unenforceable by a court of competent jurisdiction, then such a decision shall not affect any other part or provision of this Agreement except that specific provision determined to be unconstitutional, invalid or unenforceable. If any condition, covenant or other provision of this Agreement shall be deemed invalid due its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. c. Attorney s Fees. If this Agreement or any of the exhibits hereto are breached, each party shall pay their own attorney s fees. d. Counterparts. This Agreement and any originals of exhibits referred to herein may be executed in any number of duplicate originals or counterparts, each of which (when the original signatures are affixed) shall be an original, but all of which shall constitute one and the same instrument. e. Indemnification. Property Owner agrees to indemnify the City from all claims for damages cause by the improvements installed by Property Owner, whether the damage be incurred by the City, Property Owner, or third party. Property Owner further agrees to indemnify the City from any claims for damages resulting from the ongoing maintenance performed by Property Owner on the City property. Page 3 of 5 Marcott Agreement
9. Other Terms and Conditions. a. State/Federal Law. The parties agree, intend and understand that the obligations imposed by this Agreement are only such as are consistent with state and federal law. The parties further agree that if any provision of this Agreement becomes, in its performance, inconsistent with state or federal law or is declared invalid, this Agreement shall be amended in writing by both parties. Should the parties be unable to agree upon a modification of the condition, covenant, or provision the contract becomes voidable by either party. b. Integration. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and integrates all prior conversations, discussions or understandings of whatever kind or nature and may only be modified by a subsequent writing duly executed and approved by the parties hereto. c. Applicable Law. This Agreement is entered into under and pursuant to and is to be construed and enforceable in accordance with the laws of the State of Utah. d. Arbitration. All disputes under this Agreement shall be resolved through binding Arbitration. If the City and Parcel Owner are unable to resolve an issue through discussions, the parties shall attempt within ten (10) business days to appoint a mutually acceptable expert in the professional discipline(s) of the issue in question. If the parties are unable to agree on a single acceptable arbitrator they shall each, within ten (10) business days, appoint their own individual appropriate expert. These two experts shall, between them, choose the single arbitrator. Each Party shall pay one half the fees of the chosen arbitrator. The chosen arbitrator shall within fifteen (15) business days, review the positions of the parties regarding the arbitration issue and render a decision. The arbitrator shall ask the prevailing party to draft a proposed order for consideration and objection by the other side. Upon adoption by the arbitrator, and consideration of any objections, the arbitrator's decision shall be final and binding upon both parties. If the arbitrator determines as a part of the decision that either Party s position was not only incorrect but was also maintained unreasonably and not in good faith then the arbitrator may order the Party to pay the arbitrator s fees. e. Notices. Any notices, requests or demands required or desired to be given hereunder shall be in writing and shall either be delivered personally or by certified mail or express courier delivery to the parties at the following addresses: If to the City: North Ogden City S. Annette Spendlove, City Recorder 505 E. 2600 N. North Ogden, Utah 84414 If to the Parcel Owner Robert Marcott 2992 N. 300 E. North Ogden, UT 84414 Page 4 of 5 Marcott Agreement
WHEREFORE, Parcel Owner and the City voluntarily enter into this Agreement as of the date(s) set forth below. NORTH OGDEN CITY By: Brent R. Taylor, Mayor Date: Attest: S. Annette Spendlove Date: The Marcotts By: Robert Marcott Date: By: Jilly Marcott Date: Page 5 of 5 Marcott Agreement