HomeMy WebLinkAbout20070904 - VI-08
VI-8
Memo
To:
Mayor Hicks and City Council
From:
John Hinzman, Planning Director
Date:
September 4,2007
Subject:
Authorize Execution of License to Encroach #2007-40 - Canadian
Pacific Rail yard - 3rd and Bailey
REQUEST
The City Council is asked to authorize execution of the attached License to Encroach.
The agreement would allow construction of a fence at the Canadian Pacific Rail yard
located southeast of 3rd and Bailey Streets.
BACKGROUND
The City of Hastings has directed CP rail to provide fencing to screen its existing rail
yard from neighboring residences. The fence would cross an unimproved alley and
right-of-way (4th Street).
RECOMMENDATION
Approval is recommended. The license allows the city to retain ownership of the right-
of-way, and allow construction of the fence screening
ATTACHMENTS
. Site Plan
. License to Encroach
8/15/2007
Page 2 of2
LICENSE TO ENCROACH UPON RIGHT-OF-WAY
This License Agreement is made on September _,2007, by and between the City of
Hastings, a Minnesota Municipal Corporation, with a business address of 101 East 4th Street,
Hastings, MN 55033 ("Licensor"), and Soo Line Railroad Company, a Minnesota Corporation and a
wholly owned subsidiary of Canadian Pacific Railway, of 501 Marquette Avenue, Suite 800,
Minneapolis, Minnesota, 55402, its Successors and Assigns ("Licensee").
RECITALS.
A. Licensor is the owner ofthat portion of a platted but unimproved street right-of-way for 4th
Street East lying to the East of Bailey Street, and an unimproved alley in Block 123, as the
same are depicted on the plat of the Town (now City) of Hastings Blocks 100 through 199,
on file and of record in the office of the County Recorder, Dakota County, Minnesota (said
street right-of-way being hereinafter referred to as the "4th Street East Right -of-Way" and the
alley being hereinafter referred to as the "Block 123 Alley").
B. Licensee is the fee owner of real property in Dakota County, Minnesota, legally described as
follows:
The West one-ha(f of Lot 3 and all of Lots 4,5 and 6, Block 123;
and all of Block 129 excluding therefrom Lot 1 and the East one-
half of Lot 2; of the Town (now City) of Hastings Blocks 100
through 199, Dakota County, Minnesota (hereinafter referred to
as "the Railroad Property'').
C. That Licensee currently operates upon the Railroad Property an outdoor storage yard
associated with its railroad operations.
D. Licensee desires to construct a fence to provide screening of the outdoor storage yard which
fence would cross and be placed upon the 4th Street East Right-of-Way and the Block 123
Alley.
E. The parties desire to enter into an agreement whereby Licensor will grant to Licensee
permission to construct and maintain a fence upon the 4th Street East Right-of-Way and the
Block 123 Alley, subject to certain restrictions and conditions.
NOW, THEREFORE, in consideration of the mutual promises contained in this License
Agreement, the parties agree as follows:
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Section 1. Grant of Licensee~ Description of Premises.
Licensor grants to Licensee a license to occupy and use for the purpose of constructing and
maintaining a fence to visually screen the outdoor storage yard operated on the Railroad Property,
subject to all of the terms and conditions of this License Agreement, the following described
property located in the City of Hastings, County of Dakota, State of Minnesota:
See Attached Legal Description
Section 2. Limitation to Described Purpose.
The property described in Section 1 may be occupied and used by Licensee solely for the
purpose of construction and maintenance of a fence to screen the outdoor storage yard on the
Railroad Property and for incidental purposes relating to such purpose during the period beginning
September _, 2007, and continuing until this License Agreement is terminated as provided herein.
Section 3. License Payments.
No license payments shall be required of Licensee during the term of this Agreement.
Section 4. Condition of Premises Not Warranted
Licensor does not warrant or represent that the above-described property is safe, healthful, or
suitable for the purposes for which it is permitted to be used under the terms of this License
Agreement.
Section 5. Maintenance.
Licensee shall maintain the fence and all associated structures to ensure the fence remains
structurally sound and has a well-maintained appearance. The required maintenance shall include,
but not be limited to, keeping the fence painted or stained, promptly repairing broken sections of the
fence when notified by the City of any deficiencies, and cutting and preventing the growth of
vegetation in and around the fence to prevent damage and an unsightly appearance.
Section 6. Indemnification of Licensor.
Licensee shall indemnify and hold Licensor harmless from and against any and all liability
for personal injuries, property damage, or for loss of life or property resulting from, or in any way
connected with, the condition or use of the premises covered by this license, or any means of ingress
or egress from such premises, except liability for personal injuries, property damages, or loss of life
or property caused solely by the negligence of Licensor.
Section 7. Licensee Has No Interest or Estate.
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Licensee agrees that Licensee does not and shall not claim at any time any interest or estate
of any kind or extent whatsoever in the 4th Street East Right-of-Way or the Block 123 Alley
properties of Licensor by virtue of the rights granted under this License Agreement or Licensee's
occupancy or use of the above-described property of Licensor under this License Agreement.
Section 8. Termination.
The license granted hereunder may be terminated as follows:
A. Licensee may terminate the license at any time, by giving written notice to Licensor,
specifying the date of termination, such notice to be given not less than ten days prior
to the termination date, and subject to the requirements of Licensee for restoration set
forth below.
B. Licensor may terminate the license at any time, by giving written notice to Licensee,
specifying the date of termination which shall allow Licensee a reasonable time, not
to exceed 90 days, in which to remove all fencing of Licensee from the property
described in Section 1 above, and subject to the requirements of Licensee for
restoration set forth below.
C. If Licensee ceases operation of an outdoor storage yard on the Railroad Property, the
license shall automatically terminate 30 days after the date of such cessation,
provided that Licensee shall remain obligated to perform the requirements and
obligations for restoration following termination as set forth in this License
Agreement.
D. If Licensee shall make an assignment of its interests under this Agreement for the
benefit of creditors, or be placed in receivership or adjudicated a bankrupt, or take
advantage of any bankruptcy or insolvency law, Licensor may terminate the license
by giving written notice to the Licensee, specifying the date of termination, such
notice to be given not less than thirty days prior to the date specified in such notice
for the date of termination.
Section 9. Restoration.
Upon termination of the license, Licensee must, at Licensee's sole expense, restore that
portion of the 4th Street East Right-of-Way and the Block 123 Alley described in Section 1 to its
condition existing prior to the date of construction of the fence which shall include, but not be
limited to, removal of all debris and foundation material, filling with appropriate material all
excavated areas, and reasonable grading of the resulting surface and seeding to prevent erosion. All
such work must be completed in a good and workman like manner to Licensor's satisfaction.
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Section 10. Asshmment Bv Licensee.
Licensee may assign, without Licensor's consent, Licensee's rights hereunder but only to an
assignee who is also a purchaser or successor in title to the Railroad Property. Upon any attempt by
Licensee to assign its interest to an individual or entity other than a purchaser or successor in title to
the Railroad Property, the license granted hereunder shall automatically terminate provided that
Licensee shall be obligated to perform all restoration obligations of Licensee under this License
Agreement.
Section 11. Governin2 Law.
This License Agreement shall be governed by, construed, and enforced in accordance with
the laws of the State of Minnesota.
Section 12. Entire A2reement
This License Agreement constitutes the entire agreement between the parties and any prior
understanding where representation of any kind proceeding the date of this License Agreement shall
not be binding on either party except to the extent incorporated in this License Agreement.
Section 13. Modification of A2reement.
Any modification of this License Agreement or additional obligation assumed by either party
in connection with this License Agreement shall be binding only if evidenced in writing signed by
each party or an authorized representative of each party.
Section 14. Notices.
Any notice provided for or concerning this License Agreement shall be in writing and shall
be deemed sufficiently given when sent by certified or registered mail if sent to the respective
address of each party as set forth at the beginning of this License Agreement or, in the case of
assignment, to an address provided by the assigning party, by certified or registered mail, to the
opposite party, at least ten days prior to the date of such notice.
Section 15. Attornev Fees.
If any lawsuit is filed in relation to this License Agreement, the unsuccessful party in the action shall
pay to the successful party, in addition to all these sums that either party may be called on to pay, a
reasonable sum for the successful parties attorney's fees.
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Dated this _ day of
,2007.
CITY OF HASTINGS, A MINNESOTA
MUNICIPAL CORPORATION
By:
Paul J. Hicks, Mayor
(SEAL)
By:
Melanie Mesko Lee,
Assistant City Administrator/City Clerk
Dated this _ day of
,2007.
SOO LINE RAILROAD COMPANY
By:
Its:
ACKNOWLEDGMENT
STATE OF MINNESOTA)
) SS.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this _ day of , 2007 by
Paul J. Hicks and Melanie Mesko Lee the Mayor and Assistant City Administrator/City Clerk of the
City of Hastings, Minnesota.
NOTARY PUBLIC
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ACKNOWLEDGMENT
STATE OF MINNESOTA)
) ss.
COUNTY OF DAKOTA )
by
The foregoing instrument was acknowledged before me this _ day of
, Licensee.
,2007
NOTARY PUBLIC
THIS INSTRUMENT DRAFTED BY:
FLUEGEL LA W FIRM P.A.
1303 South Frontage Road, Suite #5
Hastings, MN 55033
651-438-9777
(DAN/Imp)
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