HomeMy WebLinkAbout6.e. Acquisition of Easements - Old County Road 38/132nd Court West Street and Utility Improvements, City Project #387AGENDA ITEM: Acquisition of Easements Old County
Road 38/132 Court West Street and
Utility Improvements, City Project #387
AGENDA SECTION:
Consent
PREPARED BY: Andrew J. Brotzler, P.E., City Enginee I
Amount
AGENDA NO. i p,C
ATTACHMENTS: Payment Authorization, Map
APPROVED BY:
RECOMMENDED ACTION: Motion to Authorize Payment for Permanent Roa ay
Easement across Old County Road 38 of the Old County Road 38/132 Cou West Street
and Utility Improvements Project to Soo Line Railroad Company as Recommended within
the Executive Summary.
Parcel
Name
Address
Amount
Parcel 17
Soo lane Railroad Company
501 Marquette
Avenue, Muineapohs,
MN 55042
$16,000
4 ROSEMOUNT
BACKGROUND:
CITY COUNCIL
City Council Meeting: September 19, 2006
EXECUTIVE SUMMARY
As part of the negotiations with Soo Lme Railroad Company for the re- construction of the at -grade
crossing, it was determined that the acquisition of a permanent easement is appropriate. The City has
appraised the value of the easement at $16,000.
Pending Council approval of this item, WSB will acquire signed easements for the property listed on the
attached map. Staff is requesting that Council authorize payment to Soo Line Railroad Company:
SUMMARY:
Staff is recommending that Council authorize the payment for permanent roadway easement as proposed
m the above motion.
G \ENGPROJ 387\ AuthonzePavmen tEasementAcgmsmonCC9 -19 -06 doc
ROADWAY EASEMENT NUMBER 31769
Date: 20
In consideration of the sum of Sixteen Thousand and No /100 Dollars ($16,000.00), the
receipt whereof is hereby acknowledged, SOO LINE RAILROAD COMPANY, a corporation
under the laws of the State of Minnesota, having its principal place of business at 501
Marquette Avenue, Minneapolis, Minnesota 55402, and doing business as Canadian
Pacific Railway, "Grantor") hereby grants, conveys and transfers unto CITY OF
ROSEMOUNT, a municipal corporation under the laws of Minnesota "Grantee a
roadway easement "Easement described and conditioned as follows:
1. DESCRIPTION OF PROPERTY: The Easement is granted over, across and through a
strip of land 100 00 feet in width situated in Rosemount, Dakota County, Minnesota, shown
and described
A strip of and 100.00 feet m width over that part of the 100.00 foot wide Grantor's
right -of -way, over that part of Government Lot 2, Section 21, Township 115, Range
19, Dakota County, Minnesota, the centerline of which is described as follows.
Commencing at the Northeast corner of the Northeast Quarter of the Southwest
Quarter of Section 21, Township 115, Range 19, Dakota County, Minnesota, thence
South 00 degrees 19 minutes 33 seconds West, assumed bearing along the east
line of said Northeast Quarter of the Southwest Quarter, 19.09 feet, thence South
88 degrees 58 minutes 37 seconds West, 1085 75 feet, to the point of beginning of
said line to be hereinafter described, thence westerly and northwesterly, 437 29
feet, along a tangential curve, concave to the northeast having a radius of 680.00
feet and a central angle of 36 degrees 50 minutes 43 seconds, thence North 54
degrees 10 minutes 40 seconds West, tangent to the last described curve, 803 09
Public Roadway Easement 806 07/04
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Agreement Number 31769
Page 1 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
feet: thence northwesterly, 85.65 feet, along a tangential curve concave to the
southwest, having a radius of 700.00 feet and a central angle of 07 degrees 00
minutes 39 seconds; thence North 61 degrees 11 minutes 19 seconds West,
tangent to the last described curve, 200 00 feet, and said line there terminating
Said strip of and is to extend by its full width from the easterly right -of -way line of
said Grantor, to the westerly right -of -way line of said Grantor.
hereinafter referred to as the "Easement Area
2. PURPOSE: The Easement shall be limited to the installation, construction,
maintenance, repair, replacement, and use of a roadway (the "Roadway for public
vehicular and pedestrian ingress and egress over, through and across the Easement Area.
Except for Roadway lighting, the Grantee may not place utilities of any kind within the
Easement Area.
3. RESERVATIONS: Grantor reserves unto itself, and its successors and assigns:
(a) fee title to the Easement Area to itself; Grantee's maintenance and use of
the Easement Area, however long continued, shall not vest in the Grantee
rights adverse to those of the Grantor other than those granted by this
Agreement,
(b) the right and privilege to use Easement Area for the maintenance,
construction, and operation of railroad tracks and facilities;
(c) the right to permit other parties to use the Easement Area in a manner that
does not unreasonably interfere with the Grantee's use of the Easement
Area pursuant to this Agreement;
(d) the right of incidental use of the Easement Area in a manner that does not
unreasonably interfere with the Grantee's use of the Easement Area
pursuant to this Agreement and
(e) the right and privilege to use the Easement Area for any and all other
purposes that are not inconsistent with the use thereof for the purpose or
purposes permitted by this Agreement or which unreasonably interferes with
or restricts the rights granted to Grantee.
4. TERM, TERMINATION AND EXPIRATION:
(a) This Easement shall remain in effect so long as required by Grantee for
Roadway purposes or until such time as Grantor determines that the use of
the Easement Area for Roadway purposes is inconsistent with the safe
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Agreement Number 31769
Page 2 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
Public Roadway Easement 806 07/04
Dakota County Minnesota
Agreement Number 31769
operation of railroad trains on or adjacent to the Easement Area The
Easement shall be subject to termination or expiration as follows.
(i)
Abandonment In the event the Easement Area is not used for a
period of twelve (12) consecutive months and Grantor serves upon
Grantee a written notice alleging such non -use If Grantee, does not
refute said allegation or use of the Roadway is not commenced within
30 days following receipt of said written notice, then Grantee shall be
deemed to have agreed with Grantor's allegations and the Easement
shall therewith be extinguished.
(il) Removal In the event Grantee substantially removes the Roadway
with the intent of not replacing it, then the Easement shall therewith
be extinguished.
(Ili) Breach If Grantee is unable or urwiiiing to cure a breach of any of
the provisions of this Agreement within thirty (30) days (or such longer
period as may be reasonably required if Grantee promptly initiates the
cure and diligently prosecutes the cure to completion) following
receipt of a written notice from Grantor detailing such breach, then
this Easement shall therewith be terminated The foregoing shall be
subject, however, to reasonable seasonal accommodations for any
physical work to the Roadway required to cure a breach.
(iv) Termination by Grantor The parties agree that the Easement Area is
located upon or adjacent railroad right of way If, in the opinion of
Grantor, rail traffic levels or rail infrastructure dictate that the
existence of the Roadway is inconsistent with the safe operation of
railroad trains, then Grantor may, upon 18 months advance written
notice to Grantee terminate this Easement. The foregoing right of
termination:
A) shall not be unreasonably acted upon by Grantor;
B) shall be supported by data evidencing a change in rail traffic
or Infrastructure that gives rise to Grantor's decision to
terminate the Easement, and
C) shall be applicable to Grantor, its successors and assigns
for only so long as the land adjacent to the Easement Area is
used for rail transportation.
(b) Upon termination or expiration of this Easement for any reason, except for
portions of the Roadway within 10 feet of the centerline of any railroad track
owned by Grantor, Grantee shall, its sole expense, promptly remove the
Roadway from the Easement Area and restore the Easement Area to
substantially its former state. In the event that Grantee fails to remove the
Page 3 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
(a)
Public Roadway Easement 808 07/04
Dakota County, Minnesota
Agreement Number 31769
Roadway, within thirty (30) days following receipt by Grantee of a written
notice from Grantor that it intends to remove the Roadway, the Roadway
may be so removed Upon receipt of a bill therefor. Grantee shall
immediately pay to Grantor the costs incurred by Grantor in the removal of
the Roadway, plus ten percent (10
5. ROADWAY CONSTRUCTION, MAINTENANCE AND REMOVAL WORK:
Division of Responsibility Grantee shall be responsible, at its cost and
expense, for all work necessary to install, construct, maintain, repair, replace
and remove the Roadway, except for those portions within 10 feet of the
centerline of any railroad track owned by Grantor (the "Track Zones
Grantor, unless it notifies Grantee to the contrary, shall install, maintain and
remove those parts of the Roadway within the Track Zones at Grantee's
expense; provided, that Grantor's expense shall in all circumstances be
reasonable and customary in the railroad industry for the type of work
undertaken Unless reimbursement has been paid in advance, upon receipt
of a bill therefor, Grantee shall reimburse Grantor for such work within the
Track Zones.
(b) Roadway work by Grantee
(i)
Grantee, shall secure all necessary public approvals and permits for
the construction, maintenance, operation or removal of the Roadway
from or in the Easement Area.
(ii) Prior to any construction, maintenance or removal of the Roadway
Grantee shall be responsible for determining the location and
existence of any pipes, wires, conduits, sewers, piling or other
obstructions to the construction of the Roadway and shall indemnify,
hold harmless and defend the Grantor from and against any and all
liability for damage to the foregoing pipes, wires, conduits, sewers,
piling or other obstructions, if any, caused by the construction or
maintenance of the Roadway. Grantor makes no representation by
the granting of this indenture that the Easement Area is free of any
such pipes, wires, conduits, sewers, pilings or other obstructions.
(iii) Grantee shall not carry on any work in connection with the installation,
maintenance, repair, changing or renewal of the Roadway within 25
feet of the center line of any Grantor owned track until.
(1) it shall have given Grantor at least three (3) days' written
notice, and
(2) an authorized representative of Grantor shall, at Grantor's
election, be present to supervise same Upon bills being
Page 4 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
(i)
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Dakota County, Minnesota
Agreement Number 31769
rendered for the authorized representative's supervision,
Grantee shall promptly reimburse Grantor for all reasonable
expenses incurred by it in connection with such supervision,
including all labor costs for flagmen supplied by Grantor to
protect railroad operations, and for the entire cost of the
furnishing, installation and later removal of any temporary
supports for said tracks, if any.
(iv) Grantee shall, at its sole expense, do all necessary grading of the
Roadway approaches to said grade crossing and install drainage
culverts, if required by Grantor, all in a manner satisfactory to the
Grantor's Division Engineer or other designated representative;
provided that if such grading is completed according to approved
plans, any such grading shall be deemed approved by Grantor.
(v) Except repairs caused by Grantor's malicious acts, Grantee, at
Grantee's sole expense, whenever notified in writing by Grantor to do
so, shall promptly make such repairs to or changes in the Roadway,
including reasonable changes in location as Grantor may require to
accommodate changes in railroad operations or construction of
railroad facilities.
(vi) Grantee, at Grantee's sole expense, whenever notified in writing by
Grantor to do so, shall promptly make emergency repairs to the
Roadway as Grantor and Grantee agree are necessary. If Grantee
fails to make such repairs within a reasonable period, Grantor shall
have the right, at its election, to make these emergency repairs to the
Roadway and in such event Grantee, upon bills being rendered
therefor, will promptly reimburse Grantor for all expenses incurred in
connection therewith.
(c) Roadway work by Grantor. Unless Grantee is notified to the contrary, on a
case -by -case basis, Grantor shall construct, maintain and remove that part of
the Roadway within the Track Zones at Grantee's expense; provided, that
Grantor's expense shall in all circumstances by reasonable and customary in
the railroad industry for the type of work undertaken. Grantee shall, upon
receipt of an invoice therefor, pay Grantor for all costs and expenses
incurred by Grantor in connection with.
The construction, maintenance or renewal of improvements
necessary for rail bed, tracks, flanger signs, drainage, and road
surface,
(ii) Flagging services as may be required by Grantor;
Page 5 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
(iii) Any grading, paving, installation of approach signs and the paving of
the roadway approaches up to the edge of the rail ties performed by
Grantor;
(iv) Incidental work and materials to construct, maintain, or renew any at
grade crossing, roadway or appurtenances thereto, other than signal
or warning devices, including gates;
(v) Other incidental expenses and reasonable administration or overhead
charges not to exceed reasonable and customary expenses incurred
or allocated under similar circumstances in the railroad industry
6. TAXES AND ASSESSMENTS: Grantee shall assume and pay any taxes or
assessments which may be levied by any competent authority by reason of the existence
or use of said land for Roadway purposes.
7. LIABILITY, INDEMNITY AND INSURANCE:
(a) In consideration for the grant of the Easement, without which it would not be
granted, Grantee assumes all risk of damage to or destruction of the
Roadway through any cause whatsoever while located upon and across the
Easement Area, except from Grantor's willful malicious misconduct.
(b) Subject to applicable law, Grantee shall fully indemnify Grantor against any
and all loss, damage, liability, claims, suits, judgments, costs, and expenses
(including reasonable attorneys' and witness fees) in any manner pertaining
to injury to or death of any person or damage to or destruction of any
property, where such injury, death, damage, or destruction arises in whole or
in part from any act or omission of the Grantee (or the Grantee's employees,
agents, representatives, or invitees) in connection with the use of the
Easement Area for Roadway purposes.
8. ENVIRONMENTAL:
(a) The Grantee:
(i)
Public Roadway Easement 806 07/04
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Agreement Number 31769
shall be familiar with the requirements of, comply with, and secure at
the Grantee's own expense any permits or licenses required by, all
applicable laws, regulations, ordinances, and standards, including
without limitation all Environmental Laws;
(ii) shall, upon written request by the Grantor (but only in such
circumstances where Grantor has reasonably reliable information that
the Easement Area has been contaminated), provide the Grantor with
the results of appropriate reports and tests from a qualified engineer
Page 6 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
Public Roadway Easement 806 07/04
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Agreement Number 31769
to demonstrate that the Grantee has complied with all Environmental
Laws relating to the Easement Area,
(iii) shall not in any manner cause or allow the Easement Area to become
a hazardous waste treatment, storage or disposal facility within the
meaning of, or otherwise bring the Property within the ambit of the
Resource Conservation and Recovery Act, 42 U S.C. 6901 et seq or
any similar state statute or local ordinance,
(iv) shall not, without prior written disclosure to and approval by the
Grantor, Use or authorize the Use of any Hazardous Substance on
the Easement Area, except for the storage and transportation of
roofing shingles and other incidental and associated uses and such
other utilization as may be in accordance with Environmental Laws;
(v) shall not cause or allow the Release or threat of Release of any
Hazardous Substance on, to, or from the Easement Area;
(vi) shall promptly notify the Grantor of any actual or suspected Release
of any Hazardous Substance on, to, or from the Easement Area,
regardless of the cause of the Release,
(vii) shall promptly provide the Grantor with copies of all summons,
citations, directives, information inquiries or requests, notices of
potential responsibility, notices of violation or deficiency, orders or
decrees, claims, causes of action, complaints, investigations,
judgments, letters, notices of environmental liens or Response actions
in progress, and other communications, written or oral, actual or
threatened, from the United States Environmental Protection Agency,
the United States Occupational Safety and Health Administration, or
other federal, state or local agency or authority, or any other entity or
individual, concerning any Release of a Hazardous Substance on, to
or from the Property, or any alleged violation of or responsibility under
any Environmental Law relating to the Property; and
(viii) shall promptly take all necessary action in Response to any Release
or Use of a Hazardous Substance at the Property that gives rise to
any liability, claim, cause of action, obligation, demand, fine, penalty,
loss, judgment or expense under any Environmental Law, or causes a
significant public health or workplace effect, or creates a nuisance.
(b) Grantee hereby releases and agrees to indemnify, hold harmless and defend
Grantor and its directors, officers, stockholders, divisions, agents, affiliates,
subsidiaries, predecessors, successors and assigns, or anyone acting on its
behalf or their behalf, from and against any and all Claims (including without
limitation any Claims arising under any Environmental Law and all Claims
Page 7 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
(c) As used in this Section, the following terms have the following definitions:
(i)
Public Roadway Easement 806 07/04
Dakota County, Minnesota
Agreement Number 3'769
arising at common law, in equity or under a federal, state or local statute, rule
or regulation) of every kind, past, present and future, existing and contingent,
known and unknown, arising from any injury to persons, firms or corporations
whomsoever, including injuries resulting in death, and damage to property
whatsoever, wherever such persons or property are located, caused by or
attributable to, in whole or in part, any act or omission of the Grantee (or the
Grantee's employees, agents, representatives, or invitees) in connection with
the exercise of the right and privilege herein granted, including without
limitation the Use or Release of Hazardous Substances by the Grantee and
the breach by the Grantee of any of its warranties, representations or
covenants The Grantee's obligations hereunder shall survive the
termination or expiration of this easement.
"Claim" or "Claims" means any and all liabilities, suits, claims,
counterclaims, causes of action, demands, penalties, debts,
obligations, promises, acts, fines, judgments, damages, consequential
damages, losses, costs, and expenses of every kind (including
without limitation any attorney's fees, consultants' fees, response
costs, remedial action costs, cleanup costs and expenses which may
be related to any Claims);
(ii) "Environmental Law" or "Environmental Laws" means the
Comprehensive Environmental Response, Compensation and Liability
Act "CERCLA 42 U S C 9601 et seq., the Resource
Conservation and Recovery Act, 42 U S C. r 6901 et seq., the
Federal Water Pollution Control Act, 33 U S.C. 1251 et seq., the
Clean Water Act, 33 U.S C. 1321 et seq., the Clean Air Act, 42
U S.0 7401 et seq., the Toxic Substances Control Act, 15 U.S.C.
2601 et seq., all as amended from time to time, and any other federal,
state, local or other governmental statute, regulation, rule, law or
ordinance dealing with the protection of human health, safety, natural
resources or the environment now existing or hereafter enacted,
(iii) "Hazardous Substance" or "Hazardous Substances" means any
petroleum product, distillate, or fraction, radioactive material, chemical
known to the Federal Government or the State of Minnesota to cause
cancer or reproductive toxicity, polychlorinated biphenyl or any other
chemical, substance or material listed or identified in or regulated by
an Environmental Law of the United States or the State of Minnesota
including but not limited to Federal or Minnesota hazardous waste
laws;
Page 8 of 10 Soo Line Railroad Company Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
9. MISCELLANEOUS:
(iv) `Release" or "Released" means any actual or threatened spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing or spreading of any
Hazardous Substance into the environment, as "Environment' is
defined in CERCLA;
(v) `Response" or "Respond" means action taken in compliance with
Environmental Laws to correct, remove, remediate, cleanup, prevent,
mitigate, monitor, evaluate, investigate, assess or abate the Release
of a Hazardous Substance;
(vi) "Use" means to manage, generate, manufacture, process, treat,
store, use, re -use, refine, recycle, reclaim, blend or burn for energy
recovery, incinerate, accumulate speculatively, transport, transfer,
dispose of, or abandon a Hazardous Substance.
(a) Grantee /Grantor: As used in this Agreement, the terms "Grantee" and
"Grantor" shall include the parties first named above and their respective
successors or assigns.
(b) Headings: The paragraph headings used in this Agreement are used solely
for the purpose of convenience They are not intended to, and do not,
modify or limit the wording of the paragraphs to which they are appended,
and they shall not be used or construed as guides to the interpretation of
said paragraphs.
(c) Severability of Terms Each provision, paragraph, sentence, clause, phrase,
and word of this Agreement shall apply to the extent permitted by applicable
law and is intended to be severable. If any provision, paragraph, sentence,
clause, phrase or word of this indenture is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the legality or validity
of the remainder of this Agreement.
Public Roadway Easement 806.07/04
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Agreement Number 31769
No Waiver: Any act or omission constituting a breach of this Agreement
shall be limited to such act or omission and shall not be construed as a
permanent or continuing waiver thereof,
Notices Any notice given by a party pursuant to this Agreement, shall be
good if served upon the other party, or if deposited in a United States post
office, certified mail, addressed to the other party at its last known address
Merger: This Agreement completely outlines all of the rights, responsibilities,
and obligations of the parties hereto and said indenture may not be amended
or altered except by an instrument in writing signed by both parties.
Page 9 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
(g)
This Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Grantor and the Grantee.
STATE OF MINNESOTA
ss:
COUNTY OF HENNEPIN
Public Roadway Easement 806 07/04
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Agreement Number 31769
Furthermore, this Agreement merges all prior oral representations and
negotiations of the parties hereto
No Warranty: Grantor does not warrant title to the Easement Area, and
makes no representations or warranties, express or implied, as to the
habitability of the Easement Area or the fitness of the Easement Area for
Grantee's purpose or any other particular purpose.
Notary Seal Notary Public
SOO LINE RAILROAD COMPANY
doing business as Canadian Pacific Railway
By:
David S. Drach
Its: Director, Real Estate Marketing, U.S.
The foregoing easement was acknowledged before me this day of
20, by David S. Drach, Director, Real Estate Marketing, U.S., of Soo
Line Railroad Company, a corporation under the laws of the State of Minnesota, on behalf
of the corporation.
This instrument was drafted by:
Charles D Weise
Real Estate Department
Canadian Pacific Railway
501 Marquette Ave. S Suite 804
Minneapolis, MN 55402
Page 10 of 10 Soo Line Railroad Company, Grantor
City of Rosemount, Grantee
CANADIAN PACIFIC RAILWAY
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