3.5 EDSR 06-11-2012ITEM # 3.5
REQUEST FOR ACTION
TO ITEM NUMBER
Economic Develo ment Authority
AGENDA SECTION MEETING DATE PREPARED BY
Consent June 11, 2012 Annie Deckert, Director of Economic
Develo ment
ITEM DESCRIPTION REVIEWED By
Authorize Encroachment Agreement with Northern Natural ustin Femrite, Ci En ~ eer
Gas for Nature's Edge Business Center- Phase I REVIEWED BY
Cal Portner, Ci Administrator
ACTION REQUESTED
Authorize Encroachment Agreement with Northern Natural Gas for Nature's Edge Business Center-
Phase I
BACKGROUND/DISCUSSION
Similar to Northstar Business Park, a Northern Natural Gas (NNG) main easement runs between the
northern and southern property lines of Nature's Edge Business Center. To begin Phase 1 improvements
of Nature's Edge Business Center, the attached encroachment agreement with NNG needs to be
authorized by the EDA. Permanent structures cannot be built on this easement, however driveways or
parking lots are allowed conditional upon entering into the agreement. This agreement needs to be in
place by July 1 to begin the Phase I improvements.
Staff is seeking approval on the attached encroachment agreement with NNG subject to minor
modifications by the city attorney.
FINANCIAL IMPACT
There is no financial impact.
ATTACHMENTS
• Encroachment agreement between the EDA and Northern Natural Gas
Action Motion by Second by Vote
Follow Up
PaNIEBE~ B1`
,A`U
File No.: 12-019 ,~,
Litre & Tract No.: MNB 67701-7
E'~CROACH'~ZENT AGREE'~ZENT
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 ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY
OF ELK RIVER, a Minnesota public corporation (hereinafter referred to as "Owners").
WITNESSETH THAT:
WHEREAS, the Owners are the present Owners of the real property located in Sherburne
County, Minnesota, described in Exhibit "A" attached hereto and, by this 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 (Sel/NW1/) Section Eleven (11),
Township Thirty-two (32) North, Range Twenty-Six (26) West and the Northeast
Quarter of the Southwest Quarter (NE1/SW'/) except that portion recorded in
Volume 80, Page 376 of Deeds, containing 1.58 acres more or less, Section
Eleven (11), 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, Minnesota, and was defined to a 75-foot
wide strip of land by a Modification and Amendment of Easement Grant recorded on the 18tH
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
constructed 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, the Owners are developing a business park on the Owned Premises and will
be constructing certain improvements within the Easement, including a public street to be known
as 170th Lane, with storm sewer, sanitary sewer, watermain and concrete curb and gutter and
additional hard surface driveway and parking areas (hereinafter referred to as "Encroachment")
upon and within a portion of the confines of Northern's Easement, as partially shown on Exhibit
"A" attached hereto and, by this reference, made a part hereof, with this written consent; and
WHEREAS, the 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 within the Easement through the Owned Premises; and
File No.: 12-019
Line & Tract No.: ?~'1_~TB 67701-7
WHEREAS, the Owners have requested permission from Northern to maintain, use and
enjoy the Encroachment upon a portion of Northern's Easement and im close proximity to
Northern's Pipeline Facilities; and
WHEREAS, Northern is willing to grant such permission upon the teens and conditions
set forth as follows.
I~rOW, THEREFORE, in consideration of the mutual covenants, terns and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Northern hereby grants permission to the 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 the Owners assume all risks for damages, injuries or loss to either
property or persons, which inay be incurred by the 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 limited exclusively to the proposed
Encroachment within Northern's Easement. The 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 the Owners shall at all times conduct all its activities on said
Easement in such a manner as not to interfere with or impede the operation of Northern's
Pipeline Facilities and activities in any manner whatsoever.
D. That the Owners shall not plant any trees or shrubs within the confines of
Northern's Easement without the prior express written consent of Northern, which consent shall
not be unreasonably withheld.
2. The Owners agree to indemnify, 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 omission of the Owners in connection 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. The Owners agree that protection of Northern's Pipeline Facilities will be
maintained at all times.
-2-
File No.: 12-019
Line & Tract No.: '~~1?~~B 67701-7
4. Should Northern need to remove any of the Owners' said Encroachment within its
Easement in order to construct, maintain, operate, repair, remove or resize Northern's existing or
additional Pipeline Facilities, the Owners or its respective heirs, successors and assigns shall pay
the cost of removing and replacing or reinstalling said Encroaclunent. In addition, 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 workmanlike manner and Northern
shall restore the surface and grade of the Owned Premises where the work is performed, but shall
not be liable for loss, damage or replaceiment to the Owners' said Encroaclunent or any
associated equipment and facilities that exist within the Easement, and in this regard, the Owners
hereby release Northern, its employees, agents, officers and directors from any and all liability
for any such loss or damage.
~. 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 the Owners are
in material violation of any teens or conditions set forth in this Agreement, Northern, at its
option, may terminate this Agreement upon thirty (30) days' notice to the Owners and Owners'
failure to cure such violation; provided that if the nature of such violation is such that it requires
more than 30 days to cure, Owners shall have such reasonable additional period to cure as long
as Owners are diligently pursuing such cure. In the event of such termination, the Owners shall
immediately remove any and all of said Encroachment which may be situated on the Easement,
. or if the Owners fail to remove any and all of said Encroachment, Northern may, at its option,
remove said Encroachment at the expense of the Owners and without any liability whatsoever. It
is further agreed that the failure by Northern to exercise such option 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 manner set forth above.
8. The 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 rule,
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
a environment at or near the Easement.
-3-
File No.: 12-019
Line & Tract No.: '_VL?~~B 67701-7
This instrument and the covenants and agreements herein contained shall extend to and
be binding upon the heirs, executors, adiniuistrators, successors and assi~ls of the parties and the
benefits of this Agreement shall run with the land.
IN WITNESS WHEREOF, the parties have executed this instrument the day and year
first above written.
"NORTHERN"
NORTHERN NATURAL GAS COMPANY
By
Glen R. Hass
Agent and Attorney-in-Fact
"OWNERS"
ECONOMIC DEVELOPMENT
AUTHORITY OF THE CITY OF ELK
RIVER
By
Dan Tveite
President
By
STATE OF NEBRASKA )
ss.
COUNTY OF DOUGLAS )
Annie Deckert
Executive Director
The foregoing instrument was acknowledged 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)
Notary Public
My Commission Expires
-4-
File No.: 12-019
Line 8 Tract No.: ~~~B 67?01-7
STATE OF MII~~TESOTA )
ss.
COUNTY OF SHERBURNE )
The foregoing instrument was acknowledged before me this day of
2012, by Dan Tveite, the President for the Economic Development
Authority of the City of Elk River, a Mimnesota public corporation, on behalf of the corporation.
(SEAL)
STATE OF MINNESOTA )
ss.
COUNTY OF SHERBURNE )
Notary Public
My Commission Expires
The foregoing instrument was acknowledged before me this day of
2012, by Annie Deckert, the Executive Director for the Economic
Development Authority of the City of Elk River, a Minnesota public corporation, on behalf of
the corporation.
(SEAL)
Notary Public
My Commission Expires
Document Prepared by/to be Returned to: Northern Natural Gas Co., ATTN: ROW Dept., 1120 Centre Pointe Drive, Suite 400, Mendota
Heights, MN 55120.
-5-
EXHIBIT "A"
Page 1 of 2
The Northwest Quarter of the Southeast Quarter of Section 11, Township 32, Range 26,
Sherburne County, Miimesota, except the East X85.00 feet.
And also:
That part of the Northeast Quarter of the Southwest Quarter, said Section l 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 known 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 beginning 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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