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CR 2000-085 License and Use Agreement Public Row At 2nd Ave. S and 7th St. S. . . . l f. CITY OF ~ May 11, 2000 f.tOPK1NS Council Report 2000-85 LICENSE AND USE AGREEMENT PUBLIC ROW AT 2ND AVE. SO. AND 7TH ST. SO. Proposed Action Staff recommends adoption of the following motion: Move that Council approve a License and Use Aqreement between the City and Donfraco LLC and authorize the Mayor and City Clerk for siqnature. Overview In June 1999 Council approved a Conditional Use Permit tor the construction of the Frana and Sons office building at the intersection ot 2nd Ave. South/7th St. South off T.H.169. One of the conditions required the developer to make geometric changes at the intersection to eliminate a free right turn from westbound to northbound movements. With the removal of the free right turn right-at-way, area became available for the developer to create three additional parking lot spaces. The developer requested vacation of the unused right-of-way and staff recommended instead a land use agreement. The agreement is before Council for action. Primary Issues to Consider . Purpose of agreement . Terms and conditions . Recommendations Supporting Information . Location map . License and Use Agreement d=ss~ Engineering Superintendent Financial Impact: ~ Budgeted: Y/N NA Source: NA Related Documents (CIP, ERP, etc.): Notes: . . . Council Report 2000-85 May 11, 2000 Page 2 Analysis: . Purpose of agreement The agreement permits Frana and Sons to use public right-of-way for the purpose of expanding its parking lot and to provide additional sight-line conforming landscaping at the intersection. This was an understanding reached by the City and the developer at the time of adoption of the CUP. . Terms and conditions The developer agrees to the following: . to use the encroachment area for parking only . not to damage or interfere with public utilities within the area . waive any property rights to the encroachment area . the agreement can be terminated by the City upon 24 months prior written notice . upon termination will restore the site to its original condition . Recommendation Staff feels a license and use agreement superior to the actual right-of-way vacation. Staff is reluctant to give up right-of-way that it may deem vital in future roadway geometric needs. Staff recommends adoption of the use agreement. . LICENSE AND USE AGREEMENT This License and Use Agreement (this "License Agreement") is made and entered into this day of_ __._~. 2000. by and between the City of Hopkins, a municipal corporation under the laws of the State of Minnesota (the "City"), and Donfraco LLC, a limited liability company under the laws of the State of Minnesota (the "License Holder"). RECIT ALS A. License Holder is the fee owner of Real Property ("License Holder's Property") situated in the City of Hopkins, Hennepin County, Mimlesota, and legally described in Exhibit A attached hereto and incorporated herein by reference. B. License Holder's Property is contiguous with the rights of way of Seventh Street . South and Second Avenue South and State High way 169 which are public streets maintained by the City or the State ofMiIIDesota. In connection with the development and improvement ofthe License Holder's Property, the License Holder has requested that it be permitted to use a portion of such street rights of way for the uses and purposes stated in tl1 is License Agreement. That portion of such street rights of way to be used by the License Holder is legally described in Exhibit B attached hereto . and incorporated herein by reference and is herein referred to as the "License Area". C. The City has agreed to grant to License Holder a License to use the License Area for the uses and purposes and upon the terms and conditions stated in this License Agrccmcnt. NOW. THEREFORE, in consideration of thc foregoing Recitals. which arc incorporated herein and made a part of this License Agreement, and ofthe terms and conditions hereinafter stated, the City and the Liccnsc Holder agree as follows: c .\Ii le\hnpciv\dOTl IraCll.agl . 1. License. Subject to the provisions of this License Agreement, the City hereby grants to License I-Iolder a nonexclusive license (the "License") for the uses and purposes stated in Paragraph 2 of this T ,iccnse Agreement, in. under, over and across the License Area. The City hereby authorizes the License Holder to use the License Area on a nonexclusive basis, solely for the uses and purposes and on the terms and conditions set forth in this License Agreement. The License granted by this License Agreement shall continue for the term stated in Paragraph 5 of this License Agreement and is granted subject to the rights of the public in the rights of way of Second Avenue South, Seventh Street South and State Highway 169. By granting the License and entering into this License Agreement, the City makes no walTanty, representation or agreement that it has good and marketable fee simple title to the License Area nor does the City agree to warrant or defend the License or License Holder's interest from other parties who may claim any right, title or interest in . the License Area. The License is appurtenant to License Holder's Property, and may not be transferred or assigned except to an owner of License Holder's Property in connection with the conveyance of License Holder's Property. 2. Purpose of License and Use of License Area. The License is granted [or the sole purpose of permitting License Holder to construct and maintain a parking lot, certain parking improvements related thereto, and landscaping, within the License Area, all as depicted in the site plan attached to this License Agreement as Exhibit C, and to use SLlch parking lot to provide parking for the office building to he constructed by License Holder on License Holder's Property. The License and License Holder's use of the License Area are limited to the specific purposes and uses stated in this License Agreement, and License I [older shall use the License Area for no other . purposes. c .\ti lc\hOJlC iv\dnll rr~co.agt - :2 - . 3. No Interference. In the performance and exercise of the License and its rights and obligations under this License Agreement, License Holder shall not damage or interfere in any manner with the condition or operation of any public roads, streets, curbs, sidewalks, sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, facilities, or other utility improvements or public or quasi public facilities without the prior written approval of the City, which approval may be withheld in the City's reasonable discretion and may be conditioned on License Holder agreeing to restore and repair any damage to such facilities or improvements. 4. No Property Interest. This License Agreement is not intended to grant to License Holder any property interest in the public Tights of way of Second Avenue South, Seventh Street South OT State Highway 169, and is made subject and subordinate to the prior, superior and . continuing right of the City to use any such public rights of way as a street and for any other public use and for the purpose of laying, installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles and utility improvements, streets and sidewalks, and for other pub! ie ust:s. 5. Term. The term ol'this License Agreement and the License shall begin on the date stated in the first paragraph of this License Agreement and shall continue until terminated by the City or by License Holder upon 24 months prior written notice to the other party. Should either party \vish to terminate the License Agreement and the License, such party shall serve written notice of termination on the other party and this License Agreement and the License shall terminate and be of no further effect on the second anniversary date or the date on which notice of termination is . given. The recordation of an Affidavit by either patty that such notice oftennination has been given shall conclusively establish that this License Agreement and the License have been terminated. c \filc\hnpciv\donrracn agt - ) - . 6. Restoration of Public Right-of-Way. License Holder shall, after completion of the construction, installation, maintenance, removal or relocation of any parking improvements constructed or maintained by License Holder within the License Area, at its own cost repair, restore and return the License Area and the public right of way and any highway, road, sidewalk, utility or other improvements to the same condition existing before such construction, installation, maintenance, repair, removal or relocation. All such construction, repair and restoration shall be done in accordance with Law, now or hereafter in effect, and such work shall be completed as promptly as reasonably possihle. If License Holder does not properly perform and complete the work, remove all dirt, rubbish, equipment and material, and restore the publ ic right of way to the same or better condition, the City may complete such restoration, including restoring any highway and any highway, road, sidewalk, utility or other improvements to the same condition at the expense . of License Holder. License Holder shall, upon demand, pay to the City the direct and indirect cost ofthe work done for or performed by the City, including but not limited to, the City's administrative costs. Notwithstanding the foregoing provisions of this Paragraph 6, in the event this License Agreement is terminated by the City, except in the case of termination resulting from License Holder's default hereunder, License Holder shall not be responsible for the costs of removal of parking improvements or the restoration of the License Area and the Public Right of Way, provided that, in such event, License Holder agrees the City shall be entitled to remove any parking improvements constructed or maintained by License Holder within the License Area from the License Area. 7. Damac-e. License Holder shall be responsible for damage to street improvements, . existing utilities, curbs. gutters and sidl:walks due to License Holder's installation, maintenance. repair or removal ofthe improvements to be constructed and maintained within the License Area by c \lIlc\hopciv\donfmw agl - 4 - . License Holder, and shall repair, replace and restore all damage to public right of way and any improvements therein at its sole expense and such improvements at its sole expense and subject to approval by the City, which approval shall not be unreasonably withheld or delayed. 8. Indemnification. License Holder, for itself, its successors, assigns, agents, contractors and employees, agrees to indemnify, defend and hold harmless City, its ofTicials, representatives, employees and agents from and against any and all claims, demands, losses, damages, liabilities, fines and penalties and all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys' fees and costs of defense arising directly or indirectly, in whole or in part out of the construction, installation, use, operation, maintenance, repair, removal or relocation of the improvements to be constructed and maintained by License Holder within the License Area or any breach by License Holder of its obligations described in this . License Agreement, except to the extent arising scrtely from the City's willful action or negligent acts or om]SSlons. 9. Insurance. License Holder and/or any of its subcontractors or agents shall maintain throughout the term ofthis License Agreement, Workers' Compensation Insurance (during the course of construction operations) complying with all statutory requirements and comprehensive general liability insurance, which latter insurance shall provide the following coverages and minimum limits: a. Bodily injury liability: $1,000,000.00 each person $3,000,000.00 each occurrence b. Property damage liability $3,000,000.00 each occurrence or c. Bodily injury and property damage combined $3,000,000.00 single limit . c :\li Ic\lwpc iv\d0IlfraC0 .agt - 5 - . . . License Holder agrees that with respect to the above-required insurance contracts will contain the following required provisions: d. The City and its officers, agents, employees, board members and elected officials shall be named as additional insured (as the interests of each may appear) as to all applicable coverage; and e. Such Contracts shall provide for thirty (30) days notices to the City prior to cancellation, revocation, nonrenewal or material change. f. Such insurance contracts shall also provide for waiver of subrogation by the insurer for any subrogation claims against the City. License Holder shall provide the City with certificates evidencing the above insurance coverage prior to the commencement of any work within the License Area or issuance of any permits for such work. 10. Default. If License Holder is in defauLt of its obligations, including, but not limited to, restoration requirements for more than thirty (30) days after recei ving written notice from the City of the default, the City may terminate and revoke the License and the rights of License Holder under this License Agreement, by written notice to License Holder and such termination shall be effective 30 days after delivery of notice of termination. If License Holder shall default in the performance of its obligations under this License Agreement, the City may, ailer the above notice to License Holder and failure of License Holder to cure the default, take such action as may be reasonably necessary to abate or remedy the default or the condition caused by the default. License Holder shall reimburse the City for the City's reasonable costs, including costs of collection and attomeys' fees, incurred as a result of License Holder's default and the correction or abatement thereof, and such costs may be levied as a special assessment against License Holder's Property pursuant to Minn. Stat. Chapter 429 should License Holder f~lil to pay such costs within 30 days of delivery of a demand for payment to License Holder. c :\filc\hn pciv\don fraco.agt - 6 - . . . It. Notices. All notices or other communications required or permitted to be given under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, to the following addresses: All notices to License Holder shall be given to the party listed as the owner and taxpayer in the real property taxation records maintained by Hennepin County, Minnesota, and deli vered to the address on file in such records for the owner and taxpayer of License Holder's Property. If to City: City of Hopkins Attention: Engineering Supervisor 1010 First Street South Hopkins, Minnesota 55343 Hand delivered notices shall be deemed to have been given on the date of delivery. Ifnotice is given by certified mail, such notice shall be deemed to have been given on the next business day following the date of mailing. 12. Miscellaneous. a. This License Agreement is made and executed in the State of Minnesota, and shall be constmed and enforced according to the laws of Minnesota. b. The invalidity or unenforccability of any provision of this License Agreement shall not affect or impair the validity of any other provisions, all of which shall remain in full force and effect. c. The paragraph or section titles and captions in this License Agreement are for convenience of reference only and do not define, limit or constme the contents of the sections and paragraphs of this License Agreement. c:lfilclhopcivldonfraco agt ~ 7 - . d. This License Agreement shall be binding upon and inure to the benefit of the parties hereto and, subject to the restrictions and limitations herein contained, their respective successors and assigns. e. Any modification to this License Agreement shall only be effective if in writing and signed by all of the parties to this License Agreement. IN WITNESS WHEREOF, the City and License Holder have executed this License Agreement effective as of the date first above written. City of Hopkins, Minnesota By Eugene J. Maxwell, Its Mayor . STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) By Skwefl.=€;=Mietire,9.:fS'Mmmger Terry Obermaier, Its City Clerk The foregoing instrument was acknowledged before me this pal of , 2000, by Eugene J. Maxwell, the Mayor and ~~~;tJi~~, the ity Clerk 1\4rn'tag€1!' of the City of Hopkins, a municipal corporation under the laws of Minnesota, on behalf of the municipal corporation. Notary Public DONFRACO LLC :' )\ /-~ ; ? :.J.;'--'~T/ i ) . .--....~-. .. B "1171 . V j.,,.. Y f.f,l:Vl)-- :.nf}-1...'L-._............._.___. Peter 1. Donnino Its Chief Manager . c :\fi I e\hopc iv\do nlraco. agt - 8 - . . . ST ATE OF MINNESOTA ) )SS ) COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this ) ,r) 'Ij; day of /-L)/~IIL it 2000, by Peter 1. Donnino, the Chief Manager of Donfraco LLC, a Minnesota limited liability company, on behalf of the limited liability company. THIS INSTRUMENT WAS DRAFTED BY: ~~ _ --~~~il~Lp~~iiC )] J S-7'JOi~L/L ') . . I )':~. LYNN M. MOREY I ' NOTARY PUBUC- MINNESOTA My Conm. EllI*W.... 31. 2005 . 't/WtNtN\.4-.--.-"t.-vv...,^~.v.~--f...-Jl~". Miller, Steiner & Curtiss, P.A. 400 Norwest Bank Building ] 0]] First Street South Hopkins, Minnesota 55343 c: I fil clh opcivldon fr~co_ ~gl - 9 - ~ . EXHIBIT A LICENSE HOLDER'S PROPERTY PARCEL A (Certificate of Title No. 642651): Lot 3D, Block 1, Park Valley Second Addition Hennepin County, Minn., according to the plat thereof on file or of record in the office of the Register of Deeds in and for said County, except that part thereof lying Southerly and Westerly of the fOllowing described line: Beginning at a point on the East line of Section 25, Township 117, Range 22, distant 33.02 feet North of the Southeast corner of the North 1/2 of said Section; thence run Westerly parallel with the South line of said North 1/2 for a distance of 497.92 feet, said line hereinafter referred to as Line "A"; thence deflect to the right at an angle of 88 degrees 45 minutes 08 seconds for a distance of 300 feet; thence deflect to the right at an angle of 90 degrees 00 minutes 00 seconds for a distance of 34 feet to the actual point of beginning of the line being described; thence deflect to the right at an angle of 90 degrees 00 minutes 00 seconds to the intersection with a curve having a radius of 110 feet, said curve being tangent to last described line and a line drawn parallel with and distant 40 feet Northerly of said Line "A"; thence deflect left along said curve to its intersection with said 40 foot parallel line and there terminating. . PARCEL B (Certificate of Title No. 643011): Lot 31, Block 1, Park Valley Second Addition Hennepin County, Minn., according to the plat thereof on file or of record in the office of the Register of Deeds in and for said county, except that part thereof described as follows: All that part of Lot 31, Block 1, Park Valley Second Addition Hennepin County, Minnesota, and the west 8 feet of the East 350 feet of the South 230.28 feet of the North 2607 feet of the East Quarter of Section 25, Township 117, Range 22 which lies Southerly of the following described line: . Beginning at a point on the East line of said Section distant 33.02 feet North of the Southeast corner of the North 1/2 of said Section; thence run Westerly parallel with the South line of said North 1/2 for a distance of 497.92 feet, said line hereinafter referred to as Line "A"; thence deflect to the right at an angle of 88 degrees 45 minutes OB seconds for a distance of 300 feet; thence deflect to the right at an angle of 90 degrees 00 minutes 00 seconds for a distance of 34 feet to the actual point of beginning of the line being described; thence deflect to the right at an angle of 90 degrees 00 minutes 00 seconds to the intersection with a curve having a radius of 110 feet, said curve being tangent to the last described line and a line drawn parallel with and distant 40 feet ./ .~ - Northerly of said Line "An; thence deflect left along said curve to its intersection with said 40 foot parallel line; thence continue Easterly along said 40 foot parallel line for a distance of 30 feet and there terminating. . PARCEL C (Abstract): The West 8 feet of the East 350 feet of the South 230.28 feet of the North 2607 feet of the East Quarter of Section 25, Township 117, Range 22. PARCEL 0 (Abstract): . That part of the Southeast Quarter of the Northeast Quarter, Section 25, Township 117, Range 22, Hennepin County, Minnesota, described as follows: Commencing at the southeast corner of the Northeast Quarter of said Section 25; thence on an assumed bearing of North 89 degrees 45 minutes 46 seconds West along the south line of said Northeast Quarter a distance of 328.65 feet; thence North 0 degrees 32 minutes 12 seconds East a distance of 73.00 feet to the actual point of beginning; thence South 89 degrees 45 minutes 46 seconds East a distance of 30.00 feet; thence easterly and northeasterly a distance of 50.03 feet along a tangential curve to the left having a radius of 36.00 feet and a central angle of 79 degrees 37 minutes 42 seconds; thence North 10 degrees 36 minutes 32 seconds East, tangent to said curve, a distance of 156.98 feet to a line drawn westerly, perpendicular to the east line of said Northeast Quarter, from a point on said east line 2376.72 feet south from the northeast corner of said Northeast Quarter; thence westerly along said perpendicular line a distance of 115.27 feet to a point 342.00 feet westerly along said perpendicular line from the east line of said Northeast Quarter; thence southerly, parallel with the east line of said Northeast Quarter to its intersection with a line bearinq North 89 degrees 45 minutes 46 seconds West from the actual point of beginning; thence South 89 degrees 45 minutes 46 seconds East to the actual point of beginning. Excepting from the above PARCELS C and D those parts thereof lying Southerly and Westerly of the following described line: Beginning at a point on the East line of Section 25, Township 117, Range 22, distant 33.02 feet North of the Southeast corner of the North Half of said Section; thence run Westerly parallel with the South line of said North Half for a distance of 497.92 feet, said line hereinafter referred to as Line "A"; thence deflect to the right at an angle of 88 degrees 45 minutes 08 seconds for a distance of 300 feet; thence deflect to the right at an angle of 90 degrees 00 minutes 00 seconds for a distance of 34 feet to the actual point of beginning of the line being described; thence deflect to the right al an angle of 90 degrees 00 minutes 00 seconds to the intersection with a curve having a radius of 110 feet, said curve being tangent to last described line and a line drawn parallel with and distant 40 feet Northerly of said Line "A"; thence deflect left along said curve to its intersection with said 40 foot parallel line; thence continue Easterly along said 40 foot parallel line for a tltdistance of 30 feet and there terminatinq. ~2 . . . EXHIBiT B LICENSE AREA A part of Lots 30 and 31, Block 1, Park Valley Second Addition, Hennepin County, Minnesota, according to the plat thereof on file or of record in the office of the Register of Deeds in and for said County, being more particularly described as follows: Commencing at a point on the East line of Section 25, Township 117, Range 22, distant 33.02 feet North of the Southeast corner of the North 1/2 of said Section: thence run Westerly parallel with the South line of said North 1/2 for a distance of 497.92 feet, said line hereinafter being referred to as Line "A"; thence deflect to the right at an angle of 88 degrees 45 minutes 08 seconds for a distance of 300 feet; thence dellect to the right at an angle of 90 degrees 00 minutes 00 seconds for a distance of 34 feet; thence deflect to the right at an angle of 90 degrees 00 minutes 00 seconds, and along a line hereinafter referred to as Line "B", a distance of83.75 to the point of beginning, being the intersection of said Line "B" with a curve having a radius of 110 feet, said curve being tangent to said Line "B" and to a line drawn parallel \\lith and distant 40 feet Northerly of said Line "A"; thence along said 110- foot-radius curve, being concave northeasterly and having a central angle of 88 degrees 45 minutes 08 seconds, an arc distance of 170.39 feet to a point of reverse tangency; thence westerly, along a reverse tangent line, a distance of 107.63 feet to the intersection thereof with the southerly extension uf said Line "B"; thence northerly, along said extension of Line "B", a distance of 107.63 feet to the point of beginning. c: \ [il c\lwpci v\doll fracll.agt 8624 Curb -. 1ypIcgr. p~r dly stBhdards . 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