HomeMy WebLinkAbout6.h. Approval of License and Maintenance Agreement for Clark Road
EXECUTIVE SUMMARY
City Council Regular Meeting Date: November 20, 2018
AGENDA ITEM: Approval of License and Maintenance
Agreement for Clark Road
AGENDA SECTION:
Consent
PREPARED BY: Kim Lindquist, Community Development
Director AGENDA NO. 6.h.
ATTACHMENTS: Agreement, Map APPROVED BY: LJM
RECOMMENDED ACTION: Motion to Approve the License and Maintenance Agreement
Between the City and Flint Hills Resources Relating to Clark Road.
ISSUE
Flint Hills Refinery representatives have requested that the City turnover maintenance control of Clark
Road in the vicinity of the Plant, just west of Hwy 52. The City recognizes that the street, while public, is
currently used exclusively for access to FHR property. Flint Hills is interested in treating the road similar
to other internal road systems, in that there would be restricted access. This would require installation of a
gate or some other type of barrier. FHR also has committed to do all maintenance on the road, including
plowing and pavement maintenance. The City does have public utilities in the road and therefore is
retaining the right of way at this time. The currently installed utilities are for the benefit of FHR.
The agreement recognizes that maintenance is the responsibility of the Company and that the City retains
right of way ownership. However, Flint Hills is interested in vacating the right of way and maintaining
ownership of the property while granting of an easement for the public utilities. This is a much more
complex process that will require title work and legal time. Should FHR choose to pursue this action, they
would pay the city costs for processing the vacations.
The attached agreement has been drafted by the City Attorney and city staff, and FHR representatives are
in agreement and feel it accurately reflects the arrangement as initially envisioned.
RECOMMENDATION
Staff recommends the Council approve the License and Maintenance Agreement between the City and
Flint Hills Resources relating to Clark Road.
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LICENSE AND MAINTENANCE AGREEEMENT
This License and Maintenance Agreement (the “Agreement”) is made and entered into on
the ______ day of ___________________, 2018, by and between the City of Rosemount, a
Minnesota municipal corporation, (the “City”), and Flint Hills Resources Pine Bend, LLC, a
Delaware limited liability company (the “Company”).
RECITALS:
WHEREAS, the Company is the owner of property legally described in Exhibit A attached
hereto (the “Company Property”), which includes an underlying fee title interest in the land within
the Clark Road right-of-way; and
WHEREAS, the City has an easement for right-of-way purposes over that part of Clark
Road located within the limits of the City (the “ROW”), as depicted in the attached Exhibit B; and
WHEREAS, the City has certain utility facilities located within the ROW; and
WHEREAS, the Company, its employees, agents, servants, representatives, invitees, and
persons or entities making deliveries thereto are the only users of the section of Clark Road located
on the Company Property within the city limits of the City of Rosemount (said section of Clark
Road hereinafter referred to as the “Road”); and
WHEREAS, the Company desires greater control over the access, use and maintenance of
the Road; and
WHEREAS, the Company has agreed to maintain and repair the Road in return for a
license allowing it greater control of access, use and maintenance of the Road; and
WHEREAS, the parties wish to set forth the terms and conditions under which the
Company will use and maintain the road, allowing for the continued City use of the utility
facilities; and
NOW, THEREFORE, subject to the license terms and conditions of this Agreement, in
reliance upon the above recitals, and in reliance upon the representations, warranties and covenants
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of the parties herein contained, the City and the Company agree as follows:
ARTICLE 1
SCOPE OF USE AND MAINTENANCE
1.1 Encroachments. The Company will be allowed exclusive use of the Road, subject
to the City’s utility easement rights set forth below, including but not limited to the right to
construct, repair, operate and maintain an access gate across the Road.
1.2 Maintenance. The Company agrees to maintain and repair the Road, at its sole expense,
for the duration of the Agreement, including any repairs necessitated by City work within the
ROW, including but not limited to repairing any section of road damaged or destroyed in the
process of accessing City utility facilities, subject to the following: The City will be responsible
for any repairs to the road, not including any improvement within the ROW or upon the Road
located, installed or constructed by or for the sole benefit of the Company. necessitated by the
future installation of City utility facilities or by the replacement or repair of substantial portions
of City utility facilities, except to the extent that such facilities predominantly benefit the
Company and its affiliates. For the purposes of this Agreement, “maintenance” includes, but is
not limited to, the repair or replacement of the pavement, sweeping, snow plowing, and striping.
1.3 Notice. The Company must notify the City Engineer at least 48 hours before the
Company performs any construction, repair or maintenance work within the ROW that would have
a materially-adverse effect on the future use of the ROW for a roadway. No such work shall take
place without City staff being given the opportunity to be present at the site. Further, if the City
determines in its reasonable estimation that any proposed work may potentially cause an unsafe
condition or damage or impair the Road, the City shall have the authority to prevent such work
from being done by giving notice to the Company. Notwithstanding the foregoing, in the event of
an emergency situation or the existence of an unsafe condition of Company’s land, the prescribed
48 hour notice requirement shall be waived by the City. However, in the event of such situation,
said waiver shall not relieve the Company from the Company’s obligation to notify the City of the
work as soon as possible. The City shall have no obligation to notify the Company of its intent to
do work within the ROW.
ARTICLE 2
CITY LICENSE GRANT
2.1 License Grant. The City hereby grants the Company a license to occupy, access,
use, maintain and repair the Road and to install upon it and within the ROW such improvements
as Company determines to be necessary to effectuate the same, pursuant to the terms and
conditions of this Agreement. The City makes no representations or warranties as to the condition
of the Road or ROW, or their suitability of use for any improvements or use contemplated herein.
2.2 License. The terms of this Agreement shall only create a license for the Company
to occupy, access, use, maintain and repair the Road and to install upon it and within the ROW
certain improvements, including without limitation an access gate. This Agreement does not create
an interest in real property such as an easement or any other property right.
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2.3 No Taking. The termination of this Agreement by the City shall not constitute a
taking as defined in Minnesota Statutes Section 117.025. The City and the Company acknowledge
and agree that the City continues to have a right-of-way easement over the Road, and must have
the ability to use the Road and the ROW for any public purpose (subject to the terms of this
Agreement) and that such use may eliminate part or all of the rights granted under this Agreement.
ARTICLE 3
INDEMNIFICATION OF CITY
3.1 Indemnification of City. The Company hereby agrees to indemnify, defend and
hold the City, its council, agents, employees, attorneys and representatives (collectively,
“Indemnitees”) harmless against and in respect of any and all claims, demands, actions, suits,
proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies,
including interest, penalties and attorneys' fees, that the City incurs or suffers, which arise out of,
result from or relate to:
a) the installation and maintenance of any improvements located within the ROW,
and the maintenance and repair of the Road; and
b) any other activity in the Right-of-Way Property or on the Road pursuant to this
Agreement or under the assumed authority of the City by the Company, its
contractors, its members or any party acting under the authorization or direction of
the Company.
The Company shall not be responsible to indemnify, defend or hold harmless the Indemnitees for
any claim, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including interest, penalties and attorneys’ fees, that are
incurred due to the negligence or intentional misconduct of the Indemnitees or their contractors.
3.2 Governmental Immunity. Nothing contained herein shall be deemed a waiver by
the City of any governmental immunity defenses, statutory or otherwise. Further, any and all
claims brought by Company, its successors or assigns, shall be subject to any governmental
immunity defenses of the City under common law and the maximum liability limits provided in
Minnesota Statutes, Chapter 466.
3.3 Hazardous Substances. The Company agrees that no hazardous substances,
pollutants or contaminants (other than materials normally and commonly used for
installation/maintenance of roadways and the type of improvements located on the ROW and the
Road) shall be used for any installation or maintenance of improvements in the ROW or in the
maintenance and repair of the Road. The City shall not be responsible for any costs, expenses,
damages, demands, obligations, including penalties and reasonable attorneys’ fees, or losses
resulting from any claims, actions, suits, or proceedings based upon a release of any hazardous
substances, pollutants, or contaminants, caused by the Company.
3.4 Risk. The Company assumes all risk with respect to its activities within and use
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of the Road and ROW.
ARTICLE 4
CITY MAINTENANCE RIGHTS
4.1 Failure to Maintain. If the Company fails to maintain or repair the Road or any
improvements installed therein in accordance with the terms of this Agreement, the City may, but
is not obligated to, make such repairs or provide such maintenance as it determines, in its sole
judgment, to be necessary for public health and safety, as provided in this paragraph, or terminate
this Agreement. If the City reasonably believes that the Company has failed to maintain or repair
the Road or any improvements installed therein in accordance with the terms of this Agreement
and such failure continues for 30 days after the City gives the Company written notice of such
failure or, if such tasks cannot be completed within 30 days, after such time period as may be
reasonably required to complete the required tasks provided that Company is making a good faith
effort to complete said task. If Company does not complete the repair or maintenance tasks within
the required time period after such notice is given by the City, the City shall have the right to enter
upon the ROW to perform such repair or maintenance tasks as in its reasonable judgment it
determines are required, at the sole cost of the Company. In such case, the City shal l send the
Company an invoice of for all costs associated with the repair or maintenance performed by the
City including, but not limited to, all staff time, engineering and legal and other reasonable costs
and expenses incurred by the City.
ARTICLE 5
TERM
5.1 Term and Termination. This Agreement shall be effective on the date set forth
above (the “Effective Date”). The Company shall become responsible for maintaining and
repairing the Road, at its sole expense, from the Effective Date until termination. Upon
termination, the City shall resume maintenance and repair responsibilities. In the event that
Company defaults with respect to the terms of this Agreement, after providing Company with 30
days’ written notice of the default and the Company fails to cure the default, the City may terminate
this Agreement. If the City determines, in its sole judgment, that the Road is required for public
use, it may terminate this Agreement by providing 90 days’ written notice to Company. The
Company may terminate this Agreement at any time by providing 90 days’ written notice to the
City. In such event and prior to termination, Company shall, at its sole expense, remove any and
all improvements installed, constructed or located within the ROW or on the Road as directed by
City. If the Company fails to timely remove improvements, the City may do so and charge the
Company for its reasonable costs.
ARTICLE 6
MISCELLANEOUS
6.1 Incorporation. The recitals contained herein are incorporated in and made a part of this
Agreement.
6.2 No Third Party Recourse. Third parties shall have no recourse against the City or Company
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under this Agreement. The covenants and conditions of this Agreement are intended for the benefit
of the parties hereto and are not intended to create any third party beneficiaries.
6.3 Validity. If any portion, section, subsection, sentence, clause, paragraph or phrase
of this Agreement is for any reason held to be invalid, such decision shall not affect the validity of
the remaining portion of this Agreement.
6.4 No Assignment. The parties mutually recognize and agree that this Agreement
shall not be assigned by the Company to a non-affiliated entity unless said assignment is agreed to
by the City in writing.
6.5 Amendment. The parties hereto may by mutual written agreement amend this
Agreement in any respect. Any agreement on the part of any party for any such amendment must
be in writing.
6.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of Minnesota.
6.7 Notice. Any notice required to be given under this Agreement shall be sufficiently
given by one party to the other if in writing and if and when delivered or tendered either in person
or by depositing it in the United States mail in a sealed envelope, by certified mail, return receipt
requested, with postage prepaid, addressed as follows:
a) If to Company: Flint Hills Resources Pine Bend, LLC
4111 East 37th Street North
Wichita, KS 67220
b) If to City: City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Attention: Community Development Director
With a copy to: Kennedy & Graven, Chartered
ATTN: Rosemount City Attorney
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
or to such other address as the party addressed shall have previously designated by notice given in
accordance with this section. Notices shall be deemed to have been duly given on the date of
service if served personally on the party to whom notice is to be given, or on the third day after
mailing if mailed as provided above.
6.8 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which shall constitute one and the same
instrument.
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6.9 Headings. The subject headings of the paragraphs and subparagraphs of this
Agreement are included for purposes of convenience only, and shall not affect the construction of
interpretation of any of its provisions.
6.10 No Additional Waiver Implied By One Waiver. In the event any agreement
contained in this Agreement is breached by the Company and thereafter waived in writing by the
City, such waiver shall be limited to the particular breach so waived and shall not be deemed to
waive any other concurrent, previous or subsequent breach hereunder. All waivers by the City
must be in writing.
6.11 Insurance. The Company represents that the Company has general liability
insurance and hereby agrees to provide the City with a formal letter stating that its general liability
insurance is current and providing the coverage limits of the policy. The Company agrees to keep
its general liability policy in place and active at all times during the term of this Agreement and
the Company agrees to give the City written notice of any policy cancellation or changes in the
general liability policy limits.
6.12 Entire Agreement. This Agreement shall constitute the entire agreement between
the parties, and any prior understanding or representation of any kind preceding the date of the
Agreement shall not be binding upon either party except to the extent incorporated into this
Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this License and Maintenance
Agreement.
FLINT HILLS RESOURCES PINE BEND, LLC
By:
Its: ________________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this ___ day of _________, 2018,
by _________________, the _____________________ of Flint Hills Resources Pine Bend, LLC,
a Delaware limited liability company, in their authorized capacity as representative of the
company.
Notary Public
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CITY OF ROSEMOUNT
By
William Droste, Mayor
By
Erin Fasbender, City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this ____ day of ____________, 2018, by
William Droste and Erin Fasbender, the Mayor and City Clerk, respectively, of the City of
Rosemount, a Minnesota municipal corporation, on behalf of the municipal corporation.
Notary Public
This instrument drafted by:
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
(612) 337-9300
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EXHIBIT A TO
LICENSE AGREEMENT
Legal Description of the Company Property
(Insert description of Flint Hills property adjacent to Clark Road)
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544959v1 BDL RS215-4
EXHIBIT B TO
LICENSE AGREEMENT
Depiction of Clark Road ROW
(Insert depiction of Clark Road right-of-way)
13095
12800
12895
12730
12100
12555
12250
13005
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Clark Road