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HomeMy WebLinkAboutIV.B - License Agreement - CPKC1 LICENSE AGREEMENT THIS LICENSE AGREEMENT (“License”) is made and entered into this ______ day of ____________________, 2024 (the “Effective Date”), by and between Hastings Economic and Development and Redevelopment Authority, a public body corporate and politic (“HEDRA”), and CPKC, a Minnesota assumed name for Soo Line Railroad Company (the “Railroad”). HEDRA and Railroad may be referred to collectively herein as the “parties” or each a “party”. ARTICLE 1 PREMISES HEDRA, for and in consideration of the rents, covenants and conditions hereinafter contained to be performed and observed by Railroad, does hereby License to Railroad a portion of real property legally described on Exhibit A, attached hereto (the “HEDRA Property”). The portion of the HEDRA Property subject to this License is shown by a red box, depicted on Exhibit B, attached hereto (the “Licensed Property”), and includes parking areas, driveways and landscaped areas (the “Improvements”). The Licensed Property and the Improvements are collectively referred to herein as the “Premises”. ARTICLE 2 TERM Railroad shall have and hold the Premises from the Effective Date and terminating on July 31, 2024 (the “Term”), unless extended by the parties in writing. This License is terminable at will by Railroad upon 10 days’ advance written notice to HEDRA. From the effective date of the termination by Railroad, any proceeds from Railroads will be retained by HEDRA. ARTICLE 3 BASE RENT As consideration for this License, Railroad shall pay to HEDRA base rent in the amount of six hundred ($600.00) per month, due and payable on the 1st day of each month, with the first payment due upon execution by HEDRA. ARTICLE 4 [intentionally blank] ARTICLE 5 USE OF PREMISES The Premises shall be used by Railroad for the purpose of staging area for materials for use in replacing bridge ties on the adjacent lift span portion of the railroad bridge across the Mississippi River. Railroad agrees not to commit a nuisance in or upon the Premises so as to substantially interfere with the comfort and safety of others. 2 ARTICLE 6 RAILROAD’S ACCEPTANCE OF THE PREMISES/CONDITION HEDRA will not be obligated to construct or install any improvements in or to the Premises. HEDRA makes no representation, covenant or warranty of any kind, character or nature concerning the Premises or otherwise. Railroad accepts the Premises in “as-is”, “where-is”, and “with all faults” condition. ARTICLE 7 [intentionally blank] ARTICLE 8 ALTERATIONS, TITLE TO AND REMOVAL OF IMPROVEMENTS Except for non-structural alterations or improvements that in the aggregate do not exceed $5,000.00, Railroad may not without HEDRA’s prior written consent, make any alterations to the Premises. Railroad shall have no authority to create or place any lien or encumbrance of any kind whatsoever upon or in any manner to bind the interest of the HEDRA in the Premises, and Railroad covenants and agrees promptly to pay all sums legally due and payable by it on account of any labor performed on the Premises upon which any lien is or could be asserted. ARTICLE 9 REPAIRS, MAINTENANCE AND SIGNAGE Railroad shall, at all times during the Term, at its own cost and expense, keep and maintain the Premises for its intended use. Railroad shall be permitted to maintain signage on the Premises during the Term of the License. Railroad shall maintain all signage at its sole cost and expense. HEDRA shall approve such signage before its instillation. ARTICLE 10 REAL ESTATE TAXES AND SPECIAL ASSESSMENTS HEDRA shall be responsible for the payment of all real estate taxes and current and future installments of special assessments covering the Premises during the Term. ARTICLE 11 [intentionally blank] ARTICLE 12 INSURANCE Railroad hereby covenants and agrees that it shall at all times during the Term obtain and maintain and keep in force and effect, at a minimum, a comprehensive general liability insurance 3 policy with a combined limit of not less than One Million and 00/100 Dollars ($1,000,000.00) per occurrence; and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate, against claims for personal injury, death or property damage occurring in, on or about the Premises. HEDRA shall be named as an additional insured. Any deductible amount shall be paid by Railroad. All policies of insurance maintained in accordance with this Article 12 shall be subject to and governed by the following: a. All policies of insurance and the form thereof shall be standard policies of the insurer. b. Railroad shall deliver a certificate of insurance to the HEDRA upon execution of this License Agreement and renewal certificates shall be delivered not less than ten (10) days prior to the expiration of any then current policy. c. All policies of insurance provided for in Article 12 shall be issued in a form reasonably acceptable to HEDRA by sound and reputable insurance companies and qualified to do business in the state in which the Improvements are located. ARTICLE 13 INDEMNIFICATION Railroad hereby agrees to indemnify, defend and save HEDRA and HEDRA’s elected officials, officers, staff, employees, agents and representatives (collectively, “HEDRA Indemnified Parties”) harmless from all claims, actions, judgments, suits, losses, fines, penalties, demands, costs and expenses and liability whatsoever, including reasonable attorneys’ fees, expert fees and court costs (“Railroad Indemnified Claims”) on account of (i) any damage or liability occasioned in whole or in part by any use or occupancy of the Premises or by any act or omission of Railroad or any of Railroad’s agents, employees, subtenants, assignees, licensees, contractors or invitees (collectively, “Railroad Parties”); or (ii) the use of the Premises by Railroad or any Railroad Parties and conduct of Railroad’s business by Railroad or any Railroad Parties, or any other activity, work or thing done, permitted or suffered by Railroad or any Railroad Parties, in or about the Premises. In case any action or proceeding is brought against HEDRA or any HEDRA Indemnified Parties solely by reason of any such Railroad Indemnified Claims, Railroad, upon notice from HEDRA, shall defend the same at Railroad’s expense by counsel approved in writing by HEDRA and HEDRA’s insurance carrier, which approval shall not be unreasonably withheld, conditioned or delayed. Railroad shall not be liable for damage or injury occasioned by the negligence or fault of HEDRA or its agents, contractors or employees. Railroad’s indemnification obligation under this Article 13 shall survive the expiration or earlier termination of this License. HEDRA hereby agrees to indemnify, defend and save Railroad and Railroad’s officers, trustees, directors, partners, beneficiaries, ground lessors, joint venturers, members, stockholders or other principals or representatives (and their respective successors or assigned) (collectively, “Railroad Indemnified Parties”) harmless from all claims, actions, judgments, suits, losses, fines, penalties, demands, costs and expenses and liability whatsoever, including reasonable attorneys’ fees, expert fees and court costs (“HEDRA Indemnified Claims”) on account of any act or omission of HEDRA or any of HEDRA’s agents or employees (collectively, “HEDRA Parties”). In case 4 any action or proceeding is brought against Railroad or any Railroad Indemnified Parties solely by reason of any such HEDRA Indemnified Claims, HEDRA, upon notice from Railroad, shall defend the same at HEDRA’s expense by counsel reasonably acceptable to HEDRA. HEDRA shall not be liable for damage or injury occasioned by the negligence or fault of Railroad or its agents, contractors, employees, or invitees. HEDRA’s indemnification obligation under this Article 13 shall survive the expiration or earlier termination of this License. ARTICLE 14 MECHANIC’S LIENS Railroad shall not suffer or permit any mechanic’s liens to be filed against the Premises or any part thereof by reason of work, labor, services, or materials supplied or claimed to have been supplied to Railroad or anyone holding (or claiming to hold) the Premises or any part thereof through or under Railroad. If any such mechanic’s liens or notice of lien shall at any time be filed against the Premises on account of an alleged debt of Railroad or any notice of lien by a party engaged by Railroad or Railroad’s contractor or materialmen to work on the Premises, Railroad shall cause the same to be discharged of record by payment, deposit, bond, order of court of competent jurisdiction or otherwise within forty-five (45) days after the date of filing the same, or in the event such party disputes the validity of such lien, such party may deposit 110% of the amount claimed by the lien holder in escrow with a title insurance company, and/or the other party, or as prescribed by law as security against foreclosure of the lien. If Railroad fails to discharge such mechanic’s lien within such period, then, in addition to any other right or remedy of HEDRA hereunder, HEDRA may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit in court or by giving security or in such other manner as is or may be prescribed by law. Any amount paid by HEDRA for any of the aforesaid purposes, and all reasonable legal and other expenses of such party, including reasonable attorneys’ fees, in procuring the discharge of such lien, with all necessary disbursements in connection therewith, with interest thereon at the rate of five percent (5%) per annum from the date of payment shall be repaid by Railroad on demand. Any such amount owed by Railroad to HEDRA shall become immediately due and payable by Railroad as Additional Rent with the next succeeding installment of monthly Base Rent which shall become due after such demand. Nothing herein contained shall imply any consent or agreement on the part of HEDRA to subject HEDRA’s estate to liability under any mechanic’s lien law. ARTICLE 15 ASSIGNMENT AND SUBLETTING Railroad shall not sell, assign, mortgage, pledge, or in any manner transfer this License or any real estate or interest thereunder. ARTICLE 16 DEFAULT AND REMEDIES a. If Railroad shall fail to promptly keep and perform any other obligations of this License, strictly in accordance with the terms of this License, and shall continue in default for a period of thirty (30) days after written notice thereof by HEDRA of default 5 and demand of performance (and Railroad is not diligently proceeding to cure a non- monetary default), then and in any such event and as often as any such event shall occur; and upon such default HEDRA may declare the Term ended, and enter into said Premises with process of law and expel Railroad or any person occupying the same in or upon said Premises; such reentry shall not work a forfeiture of the rents to be paid nor affect the covenants to be performed by Railroad. b. If HEDRA shall fail to promptly keep and perform any other obligations of this License, strictly in accordance with the terms of this License, and shall continue in default for a period of thirty (30) days after written notice thereof by Railroad of default and demand of performance (and HEDRA is not diligently proceeding to cure a non- monetary default), then and in any such event and as often as any such event shall occur; and upon such default Railroad may declare the Term ended, and HEDRA shall be obligated to any balance due pursuant to the terms stated in Article 2. ARTICLE 17 COMPLIANCE WITH LAWS Railroad shall, at Railroad’s sole cost and expense, comply with all federal, state, and local laws and regulations which may be applicable to the Premises. Railroad will observe and comply with the requirements of all policies of public liability, fire and all other policies of insurance at any time in force with respect to the Premises and the personal property therein. Railroad shall secure and maintain all appropriate licenses and permits required from all federal, state, and local governments, if any, needed to operate its business on the Premises so long as the License is in effect. ARTICLE 18 AMENDMENTS No waivers, alterations or modifications of this License or any agreements in connection therewith shall be valid unless in writing duly executed by both HEDRA and Railroad herein. ARTICLE 19 RECORDING This License shall not be recorded. ARTICLE 20 SURRENDER OF PREMISES Railroad shall, after the last day of the Term or upon any earlier termination, surrender and yield the Premises to HEDRA. 6 ARTICLE 21 SERVICE OF NOTICE Every notice, approval, consent or other communication authorized or required by this License shall not be effective unless the same shall be in writing and sent postage prepaid by United States registered or certified mail, return receipt requested, as follows: If to HEDRA at: City of Hastings Attn: John Hinzman 101 – 4th Street East Hastings, MN 55033 If to Railroad at: or to such other address as either party may designate by notice given from time to time in accordance with this Article 21. Any notice given in accordance with the provisions of this Article 21 shall be deemed to have been given as of the date occurring two (2) days after such notice shall have been placed for mailing with the United States Postal Service. The amounts payable by Railroad to HEDRA hereunder shall be paid to the address designated by HEDRA from time to time. ARTICLE 22 HOLDING OVER In the event Railroad continues to occupy the Premises after the last day of the Term or any extension hereby created, Railroad shall pay all actual damages sustained by HEDRA as a result of any such holdover. ARTICLE 23 CAPTIONS The captions appearing in this License are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such Articles of this License or in any way affect this License. ARTICLE 24 INVALIDITY OF PROVISIONS If any term, covenant, condition or provision of this License or the application thereof, to any person or circumstance shall, at any time, or to any extent, be invalid or unenforceable, the remainder of this License or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this License shall be valid and enforceable to the 7 fullest extent permitted by law. ARTICLE 25 HEDRA’S ACCESS TO PREMISES HEDRA shall have reasonable rights of access to the Premises after reasonable notice and during normal business hours for the purpose of inspecting the condition thereof from time to time throughout the Term of this License. HEDRA shall also have reasonable rights of access to the Premises after reasonable notice for the purpose of surveying, geotechnical testing or other investigation in preparation for the construction of any future project for which HEDRA purchased the Premises. In the event of an emergency, HEDRA shall have the immediate right to access the Premises, without prior notice to Railroad. ARTICLE 26 ENTIRE AGREEMENT This License entered into between HEDRA and Railroad as to the Premises supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the Premises and it contains all of the covenants, agreements and other obligations between the parties in respect to said Premises. ARTICLE 27 LIABILITY OF HEDRA Railroad’s elected officials, officers, staff, employees, agents and representatives will have absolutely no personal liability with respect to any provision of this License or any obligation or liability arising from this License. ARTICLE 28 GOVERNING LAW; VENUE This License will be governed by and construed according to the laws of the State of Minnesota. Any actions or proceedings arising under this License, in connection with the Premises will be venued in state or federal courts located in Dakota County, Minnesota, to the exclusion of all other venues. Railroad hereby expressly consents to the exercise of personal jurisdiction over Railroad by such courts. ARTICLE 29 AUTHORITY HEDRA and Railroad hereby represent and warrant that each individual executing this License on behalf of said entity is duly authorized to execute and deliver this License on behalf of said entity and that this License is binding upon said entity in accordance with its terms. 8 ARTICLE 30 BROKERS Each party warrants to the other that it has had no dealings with any broker or agent in connection with this License. Notwithstanding the foregoing, each party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the other party by any broker, finder, or other person, with whom the other party has or purportedly has dealt. ARTICLE 31 TIME OF THE ESSENCE With respect to all acts of the Railroad and HEDRA required under or pursuant to this License, time is of the essence. ARTICLE 32 COUNTERPARTS This License may be executed in counterparts, each of which shall be deemed an original, but which taken together shall constitute one and the same instrument. Electronic or facsimile signatures shall be deemed sufficient to create a binding obligation hereunder and shall have the same force and effect as an original signature of such party. ARTICLE 33 HAZARDOUS MATERIALS Railroad shall not keep or have in or on the Premises any article or thing which is deemed “hazardous” or “extra hazardous” by any responsible insurance company or under federal, state or local law, rule, regulation, code or ordinance except in compliance with all requirements of applicable law. To the extent caused by Railroad or its employees, agents, or invitees, Railroad shall indemnify and save harmless HEDRA against all liabilities, damages, claims, fines, penalties, costs and other expenses, including, reasonable attorneys’ fees, which may be imposed upon, incurred by, or asserted against HEDRA by reason of any use or condition of the Premises or any part thereof, including, without limitation, liability resulting from the use, storage, generation, or reLicense of any “hazardous substance,” “hazardous waste,” “pollutant” or “contaminant” (as such terms may be now or hereafter defined under any applicable federal, state, or local statute, ordinance, or regulation, collectively referred to as “Hazardous Material”). [The remainder of this page has been intentionally left blank.] 9 IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year first above written. HEDRA: HASTINGS ECONOMIC DEVELOPMENT AND REDEVELOPMENT AUTHORITY By ________________________________ Trevor Johnson Its President By ________________________________ Alexander Menke Its Secretary 10 RAILROAD: CPKC By: Its: A-1 EXHIBIT A LEGAL DESCRIPTION OF HEDRA PROPERTY Real property located in Dakota County Minnesota legally described as follows: Outlot B, Riverfront Addition, except that portion platted as Riverfront 2nd Addition PID 196395000021 and Outlot A, Riverfront Addition PID 196395000010 B-1 EXHIBIT B DEPICTION OF PREMISES