4.4. SR 07-09-2012REQUEST FOR ACTION
TO ITEM NUMBER
~Ia~or and Cirn Council -~.-~
AGENDA SECTION MEETING DATE PREPARED BY
Consent Jul~r 9, 2012 Annie Deckert, Director of Economic
De~Telo _ ment
ITEM DESCRIPTION REVIEWED By
Resolution authorizing an Encroachment agreement Between ustin Femrite, Cin Engineer
the City and Northern Nat«ral Gas Company- in Nature's Edge REVIEWED BY
Business Center Cal Portner, City administrator
ACTION REQUESTED
adopt resolution authorizing Encroachment agreement with Northern Natlzral Gas for Nature's Edge
Business Center- Phase I.
BACKGROUND/DISCUSSION
Similar to Northstar Business Park, a Northern Nat<ual Gas (NNG) main easement nuns bet<~een the
northern and southern property lines of Nature's Edge Business Center. To begin Phase 1 impro~-ements
of Nature's Edge Business Center, the attached Encroachment agreement with NNG needs to be
authorized by the Cit<~ Council. The agreement was authorized b~ the Economic De~-elopment ~uthorit<r
at their June meeting; however, it has been brought to our attention the agreement needs to be between
the cit<- and NNG. This agreement needs to be in place to begin the Phase I impro~Tements.
FINANCIAL IMPACT
There is no tu~ancial impact.
ATTACHMENTS
• Resolution
• Encroachment agreement Bet~reen the Cifi and Northern Nat«ral Gas
/01Ct1011 Motion br Second br Vote
Follow Up
PD~EAED B"f
',AU~~
RESOLUTION 12-
A RESOLUTION OF THE CITY OF ELK RIVER
A RESOLUTION AUTHORIZING AN ENCROACHMENT AGREEMENT
BETWEEN THE CITY OF ELK RIVER AND NORTHERN NATURAL GAS
COMPANY IN NATURE'S EDGE BUSINESS CENTER
WHEREAS, the City of Elk Ri~rer is beginning Phase I of infrastn~cture impro~rements for
its city-owned Nature's Edge Business Center; and
WHEREAS, Northern Natural Gas Compan~r is the holder of an easement across Nature's
Edge Business Park granted b~ H.R. ~Io~er and Martha C. ~Io~er, husband and wife, on the
~~r'' da of June, 196, co~Tering the premises as outlined in the attached Encroachment
agreement; and
WHEREAS, the cit<r is de~Teloping a business park on the premises and will be
constructing certain improvements within the Easement as outlined in the attached
Encroachment agreement; and
WHEREAS, the cit<r has requested permission from Northern to maintain, use, and enjo~r
the Encroachment upon a portion of Northern's Easement and in close prozimit~ to
Northern's Pipeline Facilities; and
WHEREAS, Northern is willing to grant such permission upon the terms and conditions
set forth in the attached Encroachment agreement; ~u~d
WHEREAS, Northei-~~ and the city acl~~owledge that Nature's Edge Business Center
de~-elopment will require additional encroachments on Northern's Easement for pri~-ate
dri~-ewa~r and parking facilities; and
WHEREAS, Northern agrees to work with the city and to enter into Future encroachment
agreements to facilitate such de~-elopments.
NOW, THEREFORE, BE IT RESOLVED that the 1la~ror and the City- Clerk of the
Cit<~ of Elk Ri~-er are herebir authorized to approve the Encroachment agreement between
Northern Natural Gas Company- and the Cit<- of Elk Ri~-er in the form presented at this
meeting.
Passed and adopted this 9`'' dam of July 2012.
John J. Dietz, ~Ia~ror
_~TTEST:
Tina Allard, City Clerk
N:'Public Bodiee t'itc Counal~~.Counal RCS, ~~enda Paget 0 U~) 2U 13~~.~.~ Resolution 12 _L~ NNG Encroadiment~i~ceementdoc
File No.: 12-019
Line & Tract No.: MNB 67701-7
ENCROACHMENT AGREEMENT
This instrument made and entered into this day of 2012,
by and between NORTHERN NATURAL GAS COMPANY, a Delaware corporation,
(hereinafter referred to as "Northern"), with principal offices at P.O. Box 3330, Omaha,
Nebraska 68103-0330, and the CITY OF ELK RIVER, a Minnesota muiucipal corporation
(hereinafter referred to as "Owners" whether one or more).
WITNESSETH THAT:
WHEREAS, Owners are the present Owners of the real property located in Sherburne
County, Minnesota, described in Exhibit "A" attached hereto and, by tlus reference, made a part
hereof (hereinafter referred to as the "Owned Premises"); and
WHEREAS, Northern is the holder of an easement across the Owned Premises granted
by H. R. Moyer and Martha C. Moyer, husband and wife, on the 25th day of June, 1965,
covering the following described premises in Sherburne County, Minnesota:
The Southeast Quarter of the Northwest Quarter (Se'/4NW'/4) Section Eleven (11),
Township Thirty-two (32) North, Range Twenty-Six (26) West and the Northeast
Quarter of the Southwest Quarter (NE'/4SW'/4) except that portion recorded in
Volume 80, Page 376 of Deeds, containing 1.58 acres more or less, Section
Eleven (ll), Township Thirty-two (32) North, Range Twenty-six (26) West.
which easement was recorded the 13th day of August, 1965, as Document No. 101606 in the
Office of the Register of Deeds for Sherburne County, Mimlesota, and was defined to a 75-foot
wide strip of land by a Modification and Amendment of Easement Grant recorded on the 18ti'
day of May, 1984, as Document No. 181916 in the Office of the County Recorder for Sherburne
County, Minnesota (hereinafter referred to as "Easement"); and
WHEREAS, pursuant to the authority contained in said Easement, Northern has
constricted and currently operates and maintains an 8-inch pipeline and a 12-inch pipeline along
with the right to install additional pipelines and facilities from time to time (hereinafter referred
to as "Pipeline Facilities") across and through the above described premises; and
WHEREAS, Owners are developing a business park on the Owned Prenuses and will be
constricting certain improvements within the Easement, including a public street to be lalown as
170ti' Lane, with storill sewer, sanitary sewer, water main and concrete curb and gutter
(hereinafter referred to as "Encroachment") upon and within a portion of the confines of
Northern's Easement, as partially shown on Exlubit "A" attached hereto and, by tlus reference,
made a part hereof, with this written consent; and
WHEREAS, Owners have been advised by Northern that Northern is a natural gas
transmission company and that Northern operates a high pressure underground natural gas
pipeline witlun the Easement through the Owned Premises; and
WHEREAS, Owners have requested permission from Northern to maintain, use and
enjoy the Encroachment upon a portion of Northern's Easement and in close proximity to
Northern's Pipeline Facilities; and
WHEREAS, Northern is willing to grant such permission upon the terms and conditions
set forth as follows.
File No.: 12-019
Line & Tract No.: MNB 67701-7
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Northern hereby grants permission to Owners to maintain, operate and use upon
the Owned Premises and in close proximity to Northern's Pipeline Facilities, the said
Encroachment, subject to the following conditions:
A. That Owners assume all risks for damages, injuries or loss to either
property or persons, which may be incurred by Owners or its respective agents, invitees or
licensees present on or in the vicinity of the Easement and in any way associated with said
Encroachment, unless caused by the negligence or willful misconduct of Northern, its agents or
employees.
B. That the permission granted herein is linuted exclusively to the proposed
Encroachment within Northern's Easement. Owners shall not alter the grade or permit such
alteration anywhere on the land upon which Northern has reserved its easement rights without
the prior express written consent of Northern, which consent shall not be unreasonably withheld.
C. That Owners shall at all times conduct all its activities on said Easement in
such a maiuler as not to interfere with or impede the operation of Northern's Pipeline Facilities
and activities in any manner whatsoever.
D. That Owners shall not plant any trees or shrubs witlun the confines of
Northern's Easement without the prior express written consent of Northern, which consent shall
not be unreasonably withheld.
2. Owners agree to indemiufy, protect and hold Northern, its parent, affiliates,
subsidiaries and their directors, officers, employees, representatives and agents harmless from
and against any and all actions or causes of action, claims, demands, liabilities, loss, damage,
injury, suit, proceeding, judgment, cost or expense of whatever kind or nature, including but not
limited to reasonable attorneys' fees, arising from or as a result of any incident, act, action, cause
of action, negligence, transaction or onussion of Owners in coiulection with, or incidental to, the
construction, operation, maintenance or use of the said Encroachment within or upon the
Easement, or from the operation, maintenance, use or presence of Northern's Pipeline Facilities
upon the Easement, except where such loss, cost, liability or expense was proximately caused
solely by the negligence or willful misconduct of Northern or its employees.
3. Owners agree that protection of Northern's Pipeline Facilities will be maintained
at all times.
4. Northern acl~~owledges that Owners will be dedicating a public right of way and
installing public infrastructure within Northern's Easement, including a public street to be lalown
as 170ti' Lane, with storm sewer, sanitary sewer, water main and concrete curb and gutter.
Subject to the terms of this Agreement, should Northern need to work within this public right of
way, or need to impact or remove any of the public infrastructure within the Easement, in order
to constn~ct, maintain, operate, repair, remove or resize Northern's existing or additional Pipeline
Facilities:
a) Except in the case of emergencies, Northern shall obtain the necessary permits and
approvals from the Owners prior to any work that will disrupt the passage of any city
street;
b) Northern and Owners shall work together to ensure that impacts on the public
infrastructure are minimized to the extent possible and the public health, safety and
welfare is protected at all times;
c) All repair and maintenance work performed by Northern on its existing or additional
Pipeline Facilities located on the Owned Premises shall be performed in a reasonable
worlananlike manner and Northern shall restore the surface and grade of the Owned
Prenuses where the work is performed; and
-2-
File No.: 12-019
Line & Tract No.: MNB 67701-7
d) Except for the costs of loss or damage caused by the sole negligence or willful
misconduct of Northern, Owners or its respective heirs, successors and assigns shall pay
the cost of removing, replacing or reinstalling the Encroachment, whether or not caused
by or resulting from Northern's operation, maintenance, relocation, alteration, removal or
replacement of its pipeline facilities, and Northern shall not be liable for loss, damage or
replacement to Owners' Encroachment or any associated equipment and facilities that
may be constricted within the Easement, and in this regard, Owners hereby release
Northern, its employees, agents, officers and directors from any and all liability for any
such loss or damage.
e) Northern shall not be required to remove, lower, reinforce, replace, relocate or alter its
facilities within the Easement to accommodate Owners, unless and until Owners enters
into a written agreement to reimburse Northern for all costs and expenses associated
therewith.
5. The parties hereto understand that this Agreement in no way constitutes a waiver
by Northern of its rights to enjoy its Easement.
6. It is expressly agreed to by and between the parties hereto that if Owners are in
material violation of any terms or conditions set forth in this Agreement, Northern, at its option,
may, upon thirty (30) days' written notice to Owners of such violation and Owners' faihire to
cure such violation within said 30 days or, if the nature of such violation is such that it requires
more than 30 days to cure, Owners' failure to diligently pursue such cure, seek an injunction or
other appropriate remedy compelling Owners compliance with the terms and conditions of this
Agreement, or Northern may cure such violation at the expense of Owners. It is further agreed
that the failure by Northern to exercise such options as to any such violation shall not constitute a
waiver of Northern's future right to exercise such option as to the same or any future violation.
7. The provisions of the Easement, and all rights, powers, privileges, duties,
obligations and liabilities created thereby, remain in full force and effect and are not affected
hereby except to the extent and in the mamler set forth above.
8. Owners agree to indemnify, defend and hold Northern, its parent and affiliated
companies, and the directors, officers and employees of any such corporate entities harmless
from and against any liability, damage, claims, loss, cause of action, suit, proceeding, judgment,
cost (including the cost or expense of environmental response, removal or remediation
activities), fees or expense, including reasonable attorneys' fees arising from: (1) noncompliance
with any laws, regulations and orders applicable to the ownership or the operation and
maintenance of the said Encroachment on the Owned Premises described herein, and (2) any
incidents, acts, releases, negligence, transactions or omissions, or conditions arising from
Owners' ownership or operation of the Encroachment on or affecting the Easement that would
(i) contribute to or constitute a violation of any local, state or federal environmental Wile,
regulation, law or judicial order, (ii) result, in whole or in part, in any requirement to clean up or
otherwise remedy or remediate a condition, (iii) give rise to any lien, liability, injunction, order,
restriction, claim, expense, damage, fine or penalty, or (iv) adversely affect human health or the
enviromnent at or near the Easement.
9. Northern and Owners aclc~7owledge that Owners' Business Park development will
require additional encroachments on Northern's Easement for private driveway and parking
facilities. Northern agrees to work with Owners and to enter into future encroachment
agreements to facilitate such developments. This instrument and the covenants and agreements
herein contained shall extend to and be binding upon the heirs, executors, administrators,
successors and assigns of the parties and the benefits of this Agreement shall run with the land.
-,
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File No.: 12-019
Line & Tract No.: MNB 67701-7
IN WITNESS WHEREOF, the parties have executed this instrument the day and year
first above written.
"NORTHERN" "OWNERS"
NORTHERN NATi_7RAL GAS COMPANY CITY OF ELK RIVER
By
Glen R. Hass
Agent and Atton7ey-in-Fact
By
John J. Dietz
Mayor
By
Tina Allard
City Clerk
STATE OF NEBRASKA )
ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acla7owledged before me this day of
2012, by Glen R. Hass, the Agent and Attorney-in-Fact for Northern
Natural Gas Company, a Delaware corporation, on behalf of the corporation.
(SEAL)
STATE OF MINNESOTA )
ss.
COUNTY OF SHERBURNE )
Notary Public
My Commission Expires
The foregoing instrument was aclalowledged before me tlus day of
2012, by John J. Dietz, the Mayor of the City of Elk River, a Minnesota
municipal corporation, on behalf of the corporation.
(SEAL )
STATE OF MINNESOTA
COUNTY OF SHERBURNE
ss.
Notary Public
My Commission Expires
The foregoing instrument was acknowledged before me this
2012, by Tina Allard, the City Clerk
Minnesota municipal corporation, on behalf of the corporation.
(SEAL)
day of
of the City of Elk River, a
Notary Public
My Commission Expires
Document Prepared bi~;to be Refii7ied to: Northern Nahum Gas Co., ~TTN: ROW Dept., 1120 Centre Pointe Driae, Suite X00, ~~Iendota
Heights, 1~IN ~ ~ 120.
EXHIBIT "A"
Page 1 of 2
The Northwest Quarter of the Southeast Quarter of Section 1 1, Township 32, Range 26,
Sherburne County, Minnesota, except the East 585.00 feet.
And also:
That part of the Northeast Quarter of the Southwest Quarter, said Section 1 1, lying Easterly of
the Easterly line of the right of way of U. S. Highways No. 10, 52, and 169. Excepting therefrom
that part thereof described as commencing at the Northwest corner of said Northeast Quarter of
the Southwest Quarter; thence South along the West line thereof a distance of 521.10 feet; thence
East at right angles a distance of 275.00 feet; thence South at right angles a distance of 200.00
feet to a point to be hereafter lalown as Point "B" for the purpose of this description; thence
deflect 69 degrees 27 minutes 30 seconds to the right in a Southwesterly direction along a line to
be hereafter known as Line "A" for the purpose of this description, a distance of 277.15 feet,
more or less, to intersect said Easterly line of the right-of--way of U. S. Highways No. 10, 52, and
169, said point of intersection also being the actual point of begimling of the tract to be hereby
described; thence Northeasterly along said Line "A" to a point thereon a distance of 635.72 feet
Northeasterly of said Point "B" as measured along said Line "A"; thence North parallel with said
West line of the Northeast Quarter of the Southwest Quarter to intersect the North line of said
Northeast Quarter of the Southwest Quarter, thence West along said North line a distance of
871.13 feet, more or less, to said Northwest corner of the Northeast Quarter of the Southwest
Quarter; thence South along said West line thereof to intersect said Easterly line of the right-of-
way of U. S. Highways No. 10, 52, and 169; thence Southeasterly along said Highway right-of-
way to the point of beginning.
And also:
The Southeast Quarter of the Northwest Quarter, said Section 11. Excepting therefrom the North
420.00 feet of the West 630.00 feet thereof. Also excepting therefrom that part of the West
200.00 feet thereof lying South of the South line of said North 420.00 fee thereof.
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