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3.7. SR 08-08-2011REQUEST FOR ACTION TO ITEM NUMBER Honorable Ma or and Ci Council 3.7. AGENDA SECTION MEETING DATE PREPARED BY Consent Au st 8, 2011 ustin Femrite, P.E. ITEM DESCRIPTION REVIEWED B)/ Approval of License Agreement with Harvest Reaper, LLC Robert Thistle, Interim City (AKA Beaudry Oil & Services) Administrator REVIEWED BY ACTION REQUESTED Approval of the attached License Agreement for the use of the Quinn Avenue right-of--way. BACKGROUND/DISCUSSION As directed by the City Council at the July 18, 2011 meeting, we worked with the City Attorney to develop the attached License Agreement between the City of Elk River and Harvest Reaper, LLC. Harvest Reaper, LLC is the fee title owner of the adjoining property to this portion of Quinn Avenue. Harvest Reaper, LLC leases the facility to Beaudry Oil and Services. The attached License Agreement will allow the licensee to install a fence across Quinn Avenue to secure their site in accordance with requirements of the State Fire Marshal as discussed at the July 18 meeting. This License Agreement does not allow for any revised use of the facility but rather will allow the Licensee to continue to operate the facility as they have for many years. FINANCIAL IMPACT The applicant will be required to pay the City a $300 licensing fee. This fee will be collected annually to cover costs for yearly review of the license. ATTACHMENTS • License agreement Action Motion by Second by Vote Follow Up N:\Public Bodies\Ciry Council\Council RCA\Agenda Packet\08-08-2011\Beaudry License.docx LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made this 8th day of August , 2011, by and between The CITY OF ELK RIVER, MINNESOTA , a Minnesota Municipal Corporation ("Licensor") and Harvest Reaper a Minnesota Limited Liability Corporation ("Licensee"). RECITALS A. Licensor is the owner of that portion of the dedicated right of way of Quinn Avenue described on Exhibit A attached hereto and located in the City of Elk River, County of Sherburne, State of Minnesota (the "License Area"). B. Licensee has requested Licensor to grant a license to Licensee to use the License Area for the limited purposes set forth in this Agreement. C. The License Area is not presently needed by Licensor for public travel purposes, but does contain certain public utilities to which Licensee requires 24 hours per day, 7 days per week access. D. Licensor agrees to grant Licensee the right to use the License Area for limited purposes, upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the Recitals and the agreements contained herein, Licensor and Licensee agree as follows: 1. License. Licensor hereby grants to Licensee, subject to the terms and conditions of this Agreement, anon-exclusive license (the "License") to use the License Area. 2. No Interest in License Area. Licensee acknowledges and agrees that this Agreement does not grant Licensee any estate or other interest in the License Area or any part thereof, except the License expressly described herein. 3. License Fee. In consideration for Licensor's grant of the License to Licensee, Licensee shall pay an annual License Fee ("License Fee") to Licensor of $ 300.00. The initial License Fee shall be payable upon execution of this Agreement. Thereafter, the License Fee shall be payable on December 31St of each year for the following year. The License shall automatically terminate on January 1St if the License Fee is not received by Licensor on the preceding December 31St 4. Permitted Uses. The License Area may be used by Licensee solely for the purposes of traveling to and across the License Area and for parking operable vehicles. Under no circumstances, at any time, shall Licensee place any temporary or permanent structures on the License Area. Nor shall Licensee do any excavation or other improvements to the License Area without the prior written approval of Licensor. Licensee may fence and gate the License Area, provided that Licensor grants prior written approval of the fence and gate and that Licensor is provided a key or other means of obtaining access to the License Area 24 hours per day, 7 days per week. Licensor does not warrant that the License Area is suitable for the purposes for which it is permitted to be used under this Agreement. Licensee assumes all risk with respect to activities within the License Area. 5. Limitation of Liability. Licensee acknowledges that its use of the License Area is subject to Licensor's right to access and use the License Area at any time for purposes related to the operation, maintenance, repair or replacement of the utilities located within the License Area. Licensee acknowledges that the operation, maintenance, replacement and/or repair of these utilities by Licensor may impact Licensee's use of the License Area and may result in damage to the License Area and/or vehicles or property located in or on the License Area. Licensor shall not be responsible or liable to Licensee for any loss or damage to Licensee or its property, or anyone claiming by or through Licensee, and Licensee assumes all risk of loss or damage to Licensee's property located in the License Area. 6. Maintenance. Licensee agrees that its use of the License Area will comply with all applicable laws, rules and regulations and that Licensee shall maintain the License Area, including plowing and sweeping as necessary, in the condition reasonably required by Licensor. 7. Indemnity. Licensee shall defend, indemnify and save Licensor and its officers, employees, and agents harmless from and against all liabilities, losses, obligations, claims, suits, damages, penalties, causes of action, costs and expenses (including without limitation, court costs and reasonable attorneys' fees) arising from or relating to the use, condition, occupancy or operation of the License Area or any part thereof by Licensee, or any failure on the part of Licensee to perform or comply with any of the terms of this Agreement, or any injury, death, disability or damage to any person or property occurring in or on the License Area in connection with Licensee's use of the License Area, or any act or omission by Licensee or its officers, employees,. contractors or agents or anyone claiming by or through them. 8. Insurance. Licensee shall, at Licensee's sole cost and expense, maintain commercial general liability insurance against claims for personal injury, death or property damage occurring upon, in or about the License Area, such insurance to afford protection to the limit of not less than $1,000,000.00 in respect to injury or death to a single person, and to the limit of not less than $3,000,000.00 in respect to any one accident, and to the limit of not less than $500,000.00 in respect to any property damage, and shall name Licensor as an additional insured. All policies of insurance shall be written in companies that are qualified to do business in the State of Minnesota with a minimum AM Best Rating of at least A-. Licensee shall procure and deliver to Licensor certification from the respective insurance companies indicating that the insurance to be maintained by Licensee is in force. Such certificates shall require the insurance companies to give thirty (30) days' advance notice to Licensor of any cancellation or modification of coverage. Licensee agrees that such policy or policies shall contain a waiver of subrogation clause as to Licensor. Licensee waives, releases and discharges Licensor from all claims or demands whatsoever which Licensee may have or acquire in the future arising out of damage to or destruction of the License Area. 9. Assi nabilit~ This Agreement, and the License herein granted, may not be assigned or transferred to any Third Party by Licensee and shall automatically terminate if any effort is made to assign it. 10. Termination. Licensor may terminate the License granted by this Agreement for any reason, in its sole discretion, upon 30 days written notice from Licensor to Licensee. In addition, Licensor may terminate the License granted by this Agreement immediately upon notice to Licensee if Licensor determines, in its sole discretion, that it is necessary to do so. Licensee may terminate this Agreement at any time, upon written notice to Licensor. Licensee shall remove all vehicles and other property from the License Area and return the License Area to its existing condition, by the effective date of a termination, or within 24 hours of notice of an immediate termination. 10. No Waiver. No waiver of any breach of any agreement, covenant, or restriction contained herein shall be construed to be a waiver of any other or future breach of the same or other covenants or restrictions. 11. Notice Addresses. All notices shall be sent by registered or certified mail addressed as follows: Licensor: City Engineer City of Elk River 13065 Orono Parkway Elk River, MN 55330 Licensee: Harvest Reaper, LLC 630 Proctor Ave Suite 300 Elk River, MN 55330 Either party may, by such notice, designate a new or other address to which notice may be mailed. IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above. [SIGNATURES CONTAINED ON FOLLOWING PAGES] LICENSOR: CITY OF ELK RIVER By: Its: Manor By: Its: City Clerk LICENSEE: By: Its: Exhibit A The portion of Quinn Avenue NW located within the City of Elk River described as follows: That portion of Quinn Avenue located south of the BNSF railroad, east of PID 75-403-0070 and north of a line starting at the southwesterly most corner of PID 75-403-0070 at a bearing of North 90 degrees 00 minutes 00 seconds West to the western right of way line of Quincy Avenue.