City Council

Prepared by: City of Spearfish 625 N. Fifth Street Spearfish, SD 57783 (605) 717-1122 UTILITY EASEMENT AGREEMENT This UTILITY EASEMENT AGREEMENT (hereinafter “Agreement”) is made and entered into this 21st day of October, 2019, by and between REDWATER HOMES , L.L.C., a limited liability company organized under the laws of the State of South Dakota, 3515 Brookview Road, Spearfish, South Dakota 57783 (hereinafter “Owner”), and the CITY OF SPEARFISH, a municipal corporation and political subdivision of the State of South Dakota, 625 North Fifth Street, Spearfish, South Dakota, 57783 (hereinafter “Spearfish”). 1. Owner is the owner of the following-described real property situated in the City of Spearfish, Lawrence County, South Dakota, more commonly known as 4021 Pintlar Avenue to-wit: Lot 33 Block 8 of the Reserve on Higgins Creek, a part of Tract A of the Reserve on Higgins Creek, Higgins Creek Addition to the City of Spearfish, Lawrence County South Dakota situated in the NW1/4 of Section 33 T7N R2E BHM as shown on Plat Document No. 2014-5466 recorded in the Office of the Lawrence County Register of Deeds (hereinafter “Owner’s Property”). 2. A utility easement was previously granted over Owner’s Property as shown on Plat Document No. 2014-5466 recorded in the office of the Lawrence County Register of Deeds (hereinafter “Plat Easement”). 3. The parties desire to further define the use of the Plat Easement. NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Utility Easement Agreement Spearfish – Redwater Homes LLC City Project Number 190469 Page 1 of 4 Owner 4. Description. The physical location and boundaries of the Easement hereby granted (hereinafter the “Easement Area”) are illustrated on Plat Document No. 2014-5466 recorded in the office of the Lawrence County Register of Deeds. 5. Background. Spearfish owns and operates a sewer main located within a utility easement on Owner’s Property. The utility easement is shown on Plat Document No. 2014-5466 recorded in the office of the Lawrence County Register of Deeds (hereinafter “Easement”). 6. Purpose. The Easement hereby granted is for the purpose of locating, establishing, constructing, reconstructing, maintaining, replacing, repairing, excavating, inspecting, or removing the sewer main and all appurtenances thereto, as Spearfish may need or require. 7. Access. The Easement grants Spearfish the right of ingress and egress through, under, over, and across the Property and to otherwise do those things reasonable and necessary to effectuate the purpose of this Easement. 8. Exclusive Nature. The Easement runs to the exclusive benefit of Spearfish and is not a public easement. Owner retains the qualified right to use and enjoy the surface of the Easement Area and grant others rights to use the surface of the Easement Area in a manner that does not interfere with the purposes of this Easement. Owner shall not be permitted to construct or allow to be constructed any building, structure, parts of buildings and structures, or any other obstruction on the surface of the Easement Area, or in any airspace over the Easement Area, nor to substantially add to the groundcover over the Easement Area. Owner shall not grant any third party any rights to occupy or utilize the subsurface or airspace above the Easement Area without the express written consent of Spearfish. 9. Succession. This Easement shall be perpetual, shall run with the Property, and shall be binding upon the parties hereto and their respective successors and assigns. (separate signature pages follow) Utility Easement Agreement Spearfish – Redwater Homes LLC City Project Number 190469 Page 2 of 4  REDWATER HOMES , L.L.C. Jason R. Ward, Member State of South Dakota ) ) ss. County of Lawrence ) On this ____ day of _______________, 2019, before me, the undersigned officer, personally appeared Jason R. Ward, known to me or satisfactorily proven to be the person described in the foregoing instrument, and acknowledged that he executed the same in the capacity therein stated and for the purposes therein contained. In Witness Whereof, I have set my hand and official seal. (Seal) Notary Public My Commission Expires: Utility Easement Agreement Spearfish – Redwater Homes LLC City Project Number 190469 Page 3 of 4  CITY OF SPEARFISH (Seal) Dana Boke, Its Mayor Attest: ________________________________ Michelle DeNeui, Finance Officer State of South Dakota ) ) ss. County of Lawrence ) On this ____ day of _______________, 2019, before me, the undersigned officer, personally appeared Dana Boke and Michelle DeNeui, known to me or satisfactorily proven to be the persons described in the foregoing instrument, and acknowledged that they executed the same in the capacity therein stated and for the purposes therein contained. In Witness Whereof, I have set my hand and official seal. (Seal) Notary Public My Commission Expires: Utility Easement Agreement Spearfish – Redwater Homes LLC City Project Number 190469 Page 4 of 4 Prepared By: City of Spearfish 625 N. Fifth Street Spearfish, SD 57783 605-717-1122 ENCROACHMENT AGREEMENT AND LICENSE This ENCROACHMENT AGREEMENT AND LICENSE (hereinafter “Agreement”) is made and entered into this 21st day of October, 2019 by and between REDWATER HOMES , LLC, a limited liability company organized under the laws of the State of South Dakota, 3515 Brookview Road, Spearfish, SD 57783 (hereinafter “Owner”) and the CITY OF SPEARFISH, a municipal corporation and political subdivision of the State of South Dakota, 625 Fifth Street, Spearfish, South Dakota 57783 (hereinafter “Spearfish”). BACKGROUND AND PURPOSE 1. Owner is the owner of the following-described real property situated in the City of Spearfish, Lawrence County, South Dakota, more commonly known as 4021 Pintlar Avenue to-wit: Lot 33 Block 8 of the Reserve on Higgins Creek, a part of Tract A of the Reserve on Higgins Creek, Higgins Creek Addition to the City of Spearfish, Lawrence County South Dakota situated in the NW1/4 of Section 33 T7N R2E BHM as shown on Plat Document No. 2014-5466 recorded in the Office of the Lawrence County Register of Deeds. (hereinafter “Owner’s Property”). 2. Spearfish owns and operates a sanitary sewer main located within an easement on Owner’s Property. The utility easement is shown on Plat Document No. 2014-5466 recorded in the office of the Lawrence County Register of Deeds (hereinafter “Easement”). 3. Owner has built a residence on Owner’s Property with the following encroaching onto the Easement: Encroachment Agreement and License City of Spearfish – Redwater Homes Page 1 of 6 City Agreement 190424  3.1. Roof eave 3.2. Foundation 3.3. Concrete Patio (hereinafter “Owner’s Improvements”) as more fully reflected on “Exhibit A”, which is attached hereto and incorporated herein by reference. 3. Owner requests permission to allow Owner’s Improvements identified in Exhibit A to remain indefinitely within the Easement. 4. Spearfish is willing to permit Owner’s Improvements to remain in the Easement subject to the terms and condition of this Agreement. NOW THEREFORE, in consideration of the covenants, conditions, benefits, and obligations herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 5. The foregoing recitals are hereby incorporated and made a part of this Agreement. 6. Allowed Encroachment. Owner’s Improvements may remain in the Easement for the purposes indicated herein and as further described and illustrated by Exhibit A, subject at all times to the terms and conditions of this Agreement. No expansion nor any change of use of Owner’s Improvements nor any additional encroachments are permitted. Owner’s use is non-exclusive, and Spearfish retains the right to utilize the Easement. In the event that excavation is required or Spearfish otherwise desires to make use of the Easement, Spearfish may, but is not required to, provide Owner with reasonable notice to remove any encroachments. All removal and replacement of the encroachments shall be at Owner’s cost. 7. Permissible Use. Owner’s use of the Easement is limited to the existing roof eave, concrete patio, and foundation. No other improvements or uses are allowed. Owner may remove the improvements described herein at any time. Upon the removal of the improvements and restoration of the area, this Agreement and all rights of the Owner shall cease without further notice or action by either party. Owner hereby releases any and all right, title, claim, or interest which Owner may have or may allege to have to the Easement, including any rights arising out of adverse possession or otherwise attributable to the encroachments permitted herein. 8. Owner’s Responsibility. 8.1. Owner shall not make additional improvements in the Easement that will Encroachment Agreement and License City of Spearfish – Redwater Homes Page 2 of 6 City Agreement 190424  conflict with Spearfish’s Easement or sewer main. 8.2. At all times during the term of this Agreement, Owner shall be solely responsible for maintenance, clean up, weed control, and supervision of Owner’s Property. 8.3. Owner shall comply with all federal, state, county, and municipal laws and regulations affecting Owner’s Property. 8.4. Owner may not assign or sublease all or any portion of the Easement without specific written authorization from Spearfish. 8.5. Owner acknowledges and agrees that Spearfish shall have full right of access at any time to the Easement for maintenance of all city infrastructure. Upon termination of this Agreement, for any reason and by any party, Owner shall promptly remove any improvements or property from the Easement. 8.6. If this Agreement has been revoked and any use or occupancy of the Easement is not immediately discontinued, Spearfish may remove any such improvement, structure, property, or obstruction or cause to be made to such repairs upon the same as may be necessary to render the same secure and safe, the cost and expense of which shall be assessed against the Owner, including all fees, costs, and expenses incurred, including attorneys’ fees associated with the enforcement of or collection of the same. Spearfish may enforce this provision in any manner provided by law, including the abatement of public nuisances. 9. Indemnification and Hold Harmless. Owner agrees to indemnify and hold Spearfish and its officers, agents, and employees harmless from and against any and all actions, suits, damages, liability, or other proceedings that may arise as the result of Owner’s Improvements encroaching on Spearfish’s easement and from any and all use of the Easement by Owner and Owner’s guests, invitees, and anyone using the property at Owner’s invitation or in furtherance of Owner’s purposes. Spearfish’s Easement includes the ability of Spearfish to locate, establish, construct, reconstruct, maintain, replace, repair, excavate, inspect, or remove the sanitary sewer main and all appurtenances thereto, as Spearfish may need or require. As such, Owner understands and agrees that Owner’s Improvements may become damaged during any of these activities. Owner agrees to hold Spearfish and its officers, agents, and employees harmless from and against any and all actions, suits, damages, liability, or other proceedings that may arise as the result of Spearfish’s use of the Easement. Owner specifically agrees that Spearfish is not responsible for any damages to Owner’s Encroachment Agreement and License City of Spearfish – Redwater Homes Page 3 of 6 City Agreement 190424  Improvements as a result of Spearfish’s use of the Easement. 10. License, Duration, and Revocation. The parties agree that this Agreement constitutes a license and not an easement or other interest in real property. As such, the license is revocable at the will of Spearfish, upon thirty (30) days’ written notice to Owner, unless revocation arises from Owner’s violation of any term of this Agreement, in which case, Spearfish may immediately revoke this Agreement, without notice. Should Owner fail to maintain the Easement in good condition, in addition to Spearfish’s right to terminate the Agreement, Spearfish shall also have the right (but not the responsibility) to clean up the property and assess the cost of doing so against Owner. Spearfish reserves the right to withdraw this Encroachment Agreement and License for any reason, and without cause. 11. Fees. The annual fee is $0.00 12. Legal Fees and Costs. Should any action be taken by Spearfish to enforce all or any portion of this Agreement, Owner shall, in addition to all other remedies, be responsible to reimburse Spearfish for all attorney’s fees, costs, and disbursements incurred by Spearfish. 13. Legally Binding. All agreements, covenants, conditions, and obligations contained in this Agreement shall be legally binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 14. Complete Agreement. This Agreement constitutes a written memorandum of the entire understanding and agreement between the parties and supersedes all prior understandings, negotiation, or agreements between them, whether written or verbal, with respect to the subject matter hereof. 15. Modification. No oral modification hereof shall be binding upon the parties, and any modification shall be in writing and signed by the parties. In Witness Whereof, the Parties have set their signatures. [Separate signature pages follow] Encroachment Agreement and License City of Spearfish – Redwater Homes Page 4 of 6 City Agreement 190424  REDWATER HOMES , LLC By: ________________________________ Jason Ward, Member State of South Dakota ) ) ss. County of Lawrence ) On this____day of_______________ , 2019, before me, the undersigned officer, personally appeared Jason Ward, Member, Redwater Homes, LLC, known to me or satisfactorily proven to be the person described in the foregoing instrument, and acknowledged that he executed the foregoing instrument for the purposes therein contained. In Witness Whereof, I have set my hand and official seal. (Seal) _______________________________ My Commission Expires: __________ Notary Public Encroachment Agreement and License City of Spearfish – Redwater Homes Page 5 of 6 City Agreement 190424  CITY OF SPEARFISH By: ____________________________ (Seal) Dana Boke, Its Mayor Attest: ________________________________ Michelle DeNeui, Finance Officer State of South Dakota ) ) ss. County of Lawrence ) On this ____ day of _______________, 2019, before me, the undersigned officer, personally appeared Dana Boke and Michelle DeNeui, known to me or satisfactorily proven to be the persons described in the foregoing instrument, and acknowledged that they executed the same in the capacity therein stated and for the purposes therein contained. In Witness Whereof, I have set my hand and official seal. (Seal) _______________________________ My Commission Expires: __________ Notary Public Encroachment Agreement and License City of Spearfish – Redwater Homes Page 6 of 6 City Agreement 190424  PAID OCT 21, 2019 10/21/19 COUNCIL BILL LIST 2XL CORPORATION JANITORIAL $ 387.59 3D SPECIALTIES INC SIGNAGE/DECALS $ 1,184.50 A & B WELDING SUPPLY CO GASES/PARTS/TOOLS $ 948.72 A & J SUPPLY IRON $ 392.40 A&B BUSINESS INC OCT2019 CONTRACT BASE RATE $ 2,529.06 ADAMS - ISC RESEAL HYD CYLINDER/SHIPPING $ 706.49 ALPINE IMPRESSIONS POLOS/TEES $ 346.50 AMERICAN RED CROSS WATER SAFETY INSTR COURSE $ 74.00 APCO INTERNATIONAL INC GROUP & ONLINE MEMBERSHIPS $ 339.00 BAKER & TAYLOR BOOKS $ 726.41 BELLE FOURCHE LANDFILL SOLID WASTE DISPOSAL $ 27,113.04 BIRKELAND, JACOB REFEREE/SCOREKEEPER $ 97.50 BLACK HILLS ENERGY SEP/OCT ELECTRICITY $ 7,058.85 BLACK HILLS PIONEER LEGALS, CLASSIFIEDS ETC. $ 1,163.02 BLACK HILLS PURE INC WATER & COOLER RENTALS $ 51.50 BSN SPORTS LLC (4) V-NECK REFEREE SHIRTS $ 75.00 BUTTE ELECTRIC COOP ELECTRICITY $ 55,228.63 CBH COOPERATIVE SEP 2019 FUEL $ 22,111.96 CENGAGE LEARNING BOOKS $ 185.91 CENTER FOR EDUCATION & EMP ENCYCL OF PUBLIC EMP LAW $ 254.95 CENTURYLINK INC PD/FD 911 LINES & BACKUP $ 976.06 CITY OF SPEARFISH CC OFFICE/SUBSC/TRAVEL $ 4,959.93 CLIMATE CONTROL SYSTEMS & BOILER STARTUP/FAC SVC CALLS $ 7,426.14 REGENCY MIDWEST VENTURES LODGING $ 352.00 COCA-COLA BOTTLING CO CONCESSIONS & KITCHEN SUPPLIES $ 3,992.48 COMBINED BLDG SPECIALTIES ROOM SIGNAGE $ 419.00 DG INVESTMENT INTERMEDIATE MILESTONE SUPPORT 09/19-08/20 $ 1,026.00 CREATIVE PRODUCT SOURCING BIGFOOT TEES - ASSORTED SZES $ 1,724.88 CULLIGAN SOFT WATER CORP WATER $ 66.50 ZW USA INC 2 CASES OF WASTE BAGS $ 279.01 MEDNANSKY, DOUGLAS LED MOGUL BASE $ 1,050.00 EINING, JACOB REFEREE/SCORE KEEPER $ 127.50 ENTENMANN-ROVIN BADGES/RUSH FEE $ 1,197.00 FEDEX FORENSICS $ 13.12 FIB-AP PURCHASE CARDS ITEMIZED BY VENDOR TOTAL $106,539.41 $ - EDDIE'S TRUCK CENTER PARTS/LABOR/REPAIRS $ 16,479.26 FMG INC SEP2019, EXIT 8/CITY HALL SITE $ 4,670.20 GALLS LLC UNIFORMS/GLOVES/DEFENSE/BATTS $ 4,103.03 VIEHAUSER ENTERPRISES LLC COMMERCIAL SVC CALLS/KEYS/PARTS $ 1,079.43 GRAINGER INC (4) BATTERIES $ 291.48 HACH CO HQd SENSOR CAP REPLACEMENT $ 153.06 HARMON, MICHAEL PER DIEM MEALS $ 47.00 HAWKINS INC CHEMICALS $ 5,322.40 HDR ENGINEERING INC SEP2019, ELKHORN LIFT ST/UT RATES/WWTP $ 6,407.29 HEARTLAND PAPER CO JANITORIAL SUPPLIES $ 552.24 HEIMAN FIRE EQUIPMENT INC PARTS $ 709.25 HIGHWAY IMPROVEMENT INC ASPHALT CRACKSEALING $ 57,802.00 JENNER EQUIPMENT CO REPAIRS/PARTS $ 856.87 KANE, RACHEL REFEREE/SCOREKEEPER $ 90.00 KEYPER SYSTEMS TAMPER SEALS $ 53.45 KLARENBEEK, SANDY ELECTION WKR/MILEAGE $ 192.60 KLJ SOLUTIONS HOLDING CO WILDLIFE HAZ ASSESS TO 9/22/19 $ 6,994.91 KNECHT HOME CENTER INC BATT/SILICONE/PARTS/ETC $ 1,121.22 KODRU EQUIPMENT INC ACTUATOR REPLACEMENT $ 2,744.31 KONE INC MAINTENANCE OCT19 TO DEC19 $ 160.69 KT CONNECTIONS MGD SVCS AGMT/FIREWALL/SVC CALLS $ 7,247.50 LIGHTHOUSE UNIFORMS INC UNIFORM UPGRADES $ 189.05 MCMASTER CARR, INC DECK BRUSHES $ 176.18 MONTANA-DAKOTA UTILITIES NATURAL GAS $ 1,823.26 MIDCO BUSINESS CABLE/INTERNET $ 924.01 MIDCONTINENT TESTING LABOR SEP 2019 WATER TESTING $ 1,989.25 MIDWEST TURF & IRRIGATION PROGRAMMABLE RECEIVER $ 264.99 MONEY MOVERS SEP 2019 MAINTENANCE FEE $ 7.50 MUTH ELECTRIC INC PARTIAL BILLING/CAMPGROUND $ 2,081.85 NATIONAL PUBLIC SAFETY IN '20 NATL DIR OF LAW ENF ADMIN $ 149.00 NORTHERN HILLS TRNG CENTER SEP MOWING/JANITORIAL SVCS $ 4,332.10 PRO WINDMILL INC AIR CARE/PROFESSIONAL SVCS. $ 773.00 PISANI SUSAN R ELECTION TRAINING/MILEAGE $ 222.60 PETTY CASH P&Z-WELLS FARGO PLAT/EASEMENT FILING FEES $ 92.00 WATER TREE INC LABOR/MATERIALS $ 133.24 PRECISION MECHANICAL LLP 8/6/19 RECLAIMING $ 1,000.00 PUSH PEDAL PULL INC SERVICE EQUIP $ 512.54 QUIK SIGNS INC BUS CARDS/NAME TAGS/MAGNETS/SIGNS $ 1,116.47 ROSEN & ROSEN INDUSTRIES MESH LIME SM/MD/LG $ 366.32 RAPID FIRE PROTECTION INC SPRINKLER SYSTEM FLUSH $ 3,969.39 REED, THERESA DAWN DOWNTOWN RR, SEP JANITORIAL $ 450.00 RAPID CITY REGIONAL HOSPITAL SCREENINGS X 3 $ 1,960.00 ROBINSON, PATRICIA A ELECTION TRAINING/MILEAGE $ 192.60 ROLANDO PRINTED SPECIALTIE NAMEPLATES X 2 $ 25.74 RUSHMORE COMMUNICATION INC TROUBLE SHOOT/STANDPIPES $ 404.00 SAFEWAY STORES INC GROCERY/MEAT/BAKERY $ 61.11 SAND CREEK PRINTING CORP 4,000 CAMPGROUND BROCHURES $ 330.00 SANITATION PRODUCTS INC TAILGATE TRIP CYL/CONNECTOR $ 920.25 SCALA INC SIGN CHANNEL RENEWAL EXP 10/20 $ 280.00 SD STATE PLUMBING COMMISS ULMER, SPR-E1024-86-1262P $ 105.00 SERVALL TOWEL & LINEN JANITORIAL $ 1,172.16 SIMON CONTRACTORS OF SD GR ACRES PARKING LOT $ 3,700.12 SOUTH DAKOTA ONE CALL MESSAGE FEES/SEP2019 $ 203.70 SPEARFISH AUTO SUPPLY REPAIR PARTS $ 1,611.54 VIVI BENE INC ELECTRICAL LABOR AND REPAIRS $ 5,374.15 SWEDEEN, CHRISTIAN REFEREE/SCORE KEEPER $ 172.50 TRAFFIC & PARKING CONTROL POLE/FINIAL/BALL CAP/BRACKETS $ 3,543.30 THE ICE MAN LLC INC ICE $ 296.10 FBM HOLDINGS LLC FAIR LABOR STDS HANDBOOK $ 536.99 THOMSON REUTERS WEST SEP SUBSCRIPTION $ 474.40 TIMECLOCK PLUS HARDWARE RENEWAL 10/19 - 10/20 $ 365.76 TITAN MACHINERY PARTS/TIE ROD $ 619.34 TNEMEC CO INC EPOXOLINE $ 227.26 TTG ENTERPRISES LEVEL SENSOR FOR POLYMER TANK $ 1,258.50 ALB TWILIGHT LLC RESTOCK SMART PADS II $ 168.00 TYLER BUSINESS FORMS 1099 MISC, W2 AND ENVELOPES $ 327.65 TYLER TECHNOLOGIES INC SUPPORT/HOST WEB SITE: OCT19 $ 179.10 THE UPS STORE #5137 SHIPPING $ 106.28 CITY OF SPEARFISH UTILITIES $ 2,231.96 VANWAY TROPHY & AWARD PLAQUES/KJW PARK $ 312.00 CLARITY TELECOM LLC PHONE - AUG 2019 $ 3,374.01 VELA, DEREK REFEREE/SCOREKEEPER $ 135.00 VISUAL WORKS INC AUG2019 ONLINE RESERVATIONS $ 216.00 INTEGRITY ACQUISITION LLC PARTS/LABOR/REPAIRS $ 1,529.05 WHITE'S QUEEN CITY MOTORS PARTS $ 66.23 WILLIAMS STANDARD SERVICE RESET TPMS SYSTEM $ 25.78 WOLFF'S PLUMBING & HEATING WATER HEATER ANNUAL FLUSH $ 2,215.62 ** TOTAL ** $ 423,496.20 FUND TOTALS 101 GENERAL FUND $ 116,513.82 201 SECOND PENNY SALES TAX $ 49,495.12 202 HOSPITALITY TAX $ 22,337.32 214 911 EMERGENCY FUND $ 1,572.54 294 FIRE CAPITAL FUND $ 157.44 602 WATER $ 25,848.82 603 ELECTRIC PRODUCTION $ 1,403.13 604 SEWER $ 35,309.32 606 AIRPORT $ 7,367.99 610 PARKING FUND $ 552.98 612 SOLID WASTE FUND $ 49,684.78 615 CAMPGROUND FUND $ 6,713.53 999 POOLED CASH $ 106,539.41 ** TOTAL ** $ 423,496.20