7.8. SR 04-17-2017 EOty1� ,.,�� Request for Action
River
To Item Number
Mayor and City Council 7.8
Agenda Section Meeting Date Prepared by
Public Hearings April 17, 2017 Peter Beck, City Attorney
Item Description Reviewed by
Easement Vacation: Pipe Portfolio, 1340 6th Street Zack Carlton,Planning Manager
NW Reviewed by
Cal Portner, City Administrator
Action Requested
1. Approve,by resolution, the Easement Vacation request and the related Quit Claim Deed,with the
condition the vacation document and deed will not be recorded until the property owner has
executed the replacement easement agreements
2. Approve,by motion, the new Grant of Permanent Easements Agreement
3. Approve,by motion, the Utility and Ingress Access Easement Agreement connecting Quinn Ave
and the city water tower property
4. Approve,by motion, the License Agreement granting Forterra (Pipe Portfolio) permission to store
materials and park on portions of the city-owned water tower property
Background/Discussion
The Pipe Portfolio (formerly Cretex) property located north and west of Highway 10 and Proctor Avenue
surrounds a city water tower,has several city water and sewer lines running through it, and has Elk River
Municipal Utility (ERMU) electric lines running along the east,west, and south property lines. The parcel
also had several abandoned,but not vacated, street right-of-ways running through it, and several
substandard, and in some cases unnecessary,utility easements running through it.
In 2016, Pipe Portfolio requested to vacate the street right-of-ways. The city agreed, and the Council took
action to vacate the right-of-ways on condition that Pipe Portfolio provide replacement easements for the
existing water and sewer lines. The process of identifying the replacement easements required and
agreeing to a new easement agreement has proven to be a long process. Following is a summary of this
process, and the Council action requested:
1. The city needs to quit claim a portion of one of the vacated right-of-ways to complete the
vacation. Therefore, the Council is asked to approve this quit claim deed.
2. In addition to the vacated rights-of-way, there are three very old, substandard utility easements
running through the property for water and sewer lines. In the course of the discussions with
Pipe Portfolio,it was decided to vacate and replace these easements with a new, comprehensive
and up to date utility easement agreement. The Council is asked to approve the resolution
vacating the three old utility easements.
3. The council is asked to approve the new utility easement agreement (the "Grant of Permanent
Easements"),which addresses the following issues:
POWERED 6T
AR
a. The three old easements to be vacated will be replaced with five new/replacement
easements for water and sewer lines within the Pipe Portfolio property. The old easements
were as narrow as 10 or 15 feet. The city standard is 20 feet, so all five of the new easements
are 20 feet wide in the new utility easement agreement.
b. In the process of locating the existing water and sewer lines,it was determined that there are
several instances where Pipe Portfolio has production facilities which encroach on the water
and sewer utility lines. The new utility easement agreement has been drafted to address these
encroachments.
c. ERMU has overhead electric lines that appear to encroach on the Pipe Portfolio property
along the east, south, and west property lines. For this reason, three easements were added
to the new utility easement agreement along the east,west, and south sides, to protect
ERMU's electric lines.
4. Vacating the old right-of-ways leaves the city with no legal access to the water tower. Therefore,
the Council is asked to approve a 60 foot wide access easement (the "Utility and Ingress and
Access Easement") connecting the water tower property to Quinn Ave along the railroad.
5. It also came to the attention of the ERMU counsel/city attorney that Cretex/Pipe Portfolio have
for years been storing materials and parking vehicles on the water tower property. Neither
ERMU nor the city have a problem with this,but counsel has recommended that this use of
public property be authorized by a license agreement in the form of other agreements the city has
entered into for use of public property and rights-of-way. Therefore, the Council is asked to
approve the license agreement.
It is possible that there will be minor amendments to the legal descriptions and/or language of the
documents and agreements to be approved by the Council. The Council is requested to authorize staff to
make such minor revisions with the understanding that anything substantive will return to Council for
approval.
Financial Impact
None
Attachments
■ Easement Vacation Packet dated June 20, 2016
■ Resolution Vacating Drainage and Utility Easements
■ Resolution Approving Quit Claim Deed
■ Utility Easement Agreement
■ Access Easement Agreement
■ License Agreement
N:APublic Bodies\Agenda Packets\04-17-2017\Final\7.8 sr Pipe Portfolio EV.docx
City of
Elk az
River
Request for Action
To Item Number
Mayor and City Council 7.7
Agenda Section Meeting Date Prepared by
Public Hearings June 20, 2016 Zack Carlton, Planning Manager
Item Description Reviewed by
Pipe Portfolio (Forterra) —1340 6"' Street NW Chris Leeseber , Senior Planner
Street Easement Vacations Reviewed by
Cal Portner, City Administrator
Action Requested
Adopt, by resolution, the Easement Vacation request with the following conditions:
1. The resolution vacating the described easements will not be recorded until all conditions have been
met, and the new easements have been recorded.
2. Amend Industrial Boulevard vacation request to reflect the attached graphic.
3. Complete a survey to locate all existing public utilities.
4. Prepare new easement documents to establish a 20 -foot easement around all public utilities.
5. Prepare an easement document to establish an ingress/egress and utility easement on the north 60
feet (along BNSF property) of PID 75-402-0072, between the right-of-way for Quinn Avenue NW
and the city -owned lot (PID 75-402-0082).
6. Obtain a title commitment on the property from the north end of the Quinn Avenue right-of-way to
the BNSF property. The property shall be included in the required ingress/egress easement.
7. Prepare an easement document to the satisfaction of CenterPoint Energy, addressing concerns with
an existing gas main. Described in the attached letter.
8. Execute a license agreement, to the satisfaction of the city, permitting parking on the city owned
parcel (PID 75-402-0082).
Background/Discussion
The property owner, Pipe Portfolio, at 1340 6"' Street is requesting to vacate existing street right-of-way
easements located on the property. The property is the former Cretex plant north of Highway 10. The
plant was expanded a number of times, and as a result includes a number of street right-of-way
easements. The physical streets were removed as the plant expanded, and the rights-of-way no longer
serve a public access purpose.
The city and other agencies have a number of public utilities beneath the property. Some of which are
below the existing easements, and some which are protected by utility easements. ERMU staff requires
that all public utilities are accessible via an easement (right-of-way or utility). As a condition of approval,
staff included a requirement to prepare a survey identifying the public services, and preparation of a new
document establishing a 20 foot utility easement for all public utilities.
The proposal includes vacation of easements where structures have been constructed over existing
utilities, and within existing easements. Vacation of the requested easements does not remove the city's
ability to maintain the existing infrastructure, and new easements are required for the entire length of all
public utilities. This will include easements over land occupied by existing structures.
P a w E R E U 6 Y
NaA f RE]
Industrial Boulevard Easement
The city owns a parcel on the north portion of the plant which includes Well #3. The vacation request
for Industrial Boulevard provides the city with access to that parcel. Staff supports vacation of a portion
of the street easement, but requires a new ingress/egress and utility easement for continued access to the
city owned parcel. Staff included a condition of approval for adjustment to the vacation request (retaining
a portion of the Industrial Boulevard easement) and adding an easement along the railroad property for
continued access to Well #3. This is illustrated in the attached easement vacation diagram.
CenterPoint Energy Gas Line
The Meadowvale Street easement proposed to be vacated includes a gas line owned by CenterPoint
Energy. They expressed concern about maintaining access to their facility and require establishment of a
utility easement. Staff included a condition requiring preparation of a utility easement to the satisfaction
of CenterPoint Energy.
Financial Impact
None
Attachments
Location Map
Applicants Narrative
Easement Surveys dated April 29, 2016
Property Survey
Easement Vacation Diagram
CenterPoint Energy Letter dated June 8, 2016
Resolution for Easement Vacation
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Item 1. - EV 16-11
To: City of Elk River
From: Marinus Van Putten, Attorney for Applicant
Date: May 13, 2016
Re: Narrative regarding Vacation of Easements
We represent PIPE PORTFOLIO OWNER (MULTI) LP, a Delaware limited partnership,
Pipe") purchaser of the Cretex plant in Elk River ("plant"). A portion of the plant was subject
to street easements which we are asking the City of Elk River to vacate. Pipe and its
predecessors in title had cut off the road easements described below as the easements ended at
the plant's property and the only one using the easement was the plant. As a result, plant fenced
of its property and the easements more than 20 years ago. The fencing has not affected the
public as the public did not use the access into the plant.
In 1992, according the minutes of the Elk River City Council, a vacation of the easements was
approved but the follow up of obtaining and recording the resolution vacating was never
recorded. The plant has now been sold to Pipe and they are now asking the City to vacate that
part of Meadowvale Road (previously vacated by Sherburne County),
8t' Street and Industrial
Boulevard described as follows.
Parcel 1.
That part of Meadowvale Road, also known as Military Road, as shown on the plat of
AUDITOR'S SUBDIVISION NO. 3, which adjoins Lots 11, 12, 13, 14, and 15 of said
AUDITOR'S SUBDIVISION NO. 3 and which lies East of the extension North of the East line
of Upland Ave. NW, also known as County Highway No. 44.
Parcel 2:
That part of Industrial Boulevard which lies West of the extension North of the West line of
Quinn Avenue, located over, under and across part of AUDITOR'S SUBDIVISION NO. 3.
Parcel 3:
That part of 8t' Street which lies West of the Quinn Avenue, located over, under and across part
of AUDITOR'S SUBDIVISION NO. 3.
Parcels 2 and 3 have improvements that encroach. Parcel 1 was a County Road that was vacated
in 1969 by the Sherburne County pursuant to Commissioner's Minutes No. 14. No record of the
creation of the road could be found in the office of the Sherburne County Recorder.
Based on the above facts Applicant, PIPE PORTFOLIO OWNER (MULTI) LP, respectfully
requests that the City of Elk River vacate parcels 1, 2 and 3.
Thank you.
Marinus W. Van Putten, Jr.
Best and Flanagan LLP, Attorneys for Pipe
612-227-9045 (cell) and 612-349-5654 (office)
mvanputten(cr,bestlaw. com
60 South 6th Street, Suite 2700
Minneapolis, MN 55402
2389626
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TO:
ive r
Anderson, Cliff
Benoit, Steve*
Carlton, Zack
Cunningham, John*
Dummer, Dave*
Eddy, Colleen
Femrite, Justin*
Fischer, Suzanne
Hecker, Michael
Leeseberg, Chris
Mroz, Kristin
MEMORANDUM
Othoudt, Amanda
Portner, Cal
Ruprecht, Bob
Simon, BrieAnna*
Stevens, Matt
Thompson, Mark
Wisner, Brandon*
ERMU
Adams, Troy *
Fuchs, Mark *
Volk, Eric
FROM: Chris Leeseberg, Senior Planner
Receives hard copy of packet)
Off -Site Agencies
Balgobin, Andrew
Beck, Peter
Hohnbeek, Ken
Juricich, Mike
Lewis, Rhonda
Olson, Greg*
DATE: June 1, 2016
SUBJECT: Site Plan Review Meeting — Monday, June 6, 2016 —11:00 a.m. — Upper Town
Item Anticipated
Case #
Proposal Staff Meeting Dates
1. EV 16_11 Pipe,Portfolio (Cretex) Road Easements Vacation
S ZC CC 6/20/16
Ak-xAt r, ix,
2• P 16-08 Miske Meadows Final Plat ZC CC — 6/20/16
3 OA 16-06 City of Elk River Ordinance Amendment, ZC
PC — 6/28/16
Distilleries CC — 7/18/16
4. V 16-05 Werk Variance for deck, 18681 Ulysses St NW BS BOA — 6/28/16
P 16-07 Venture Pass Partners, LLC, Preliminary and Final PC — 6/28/16
5 SP 16-05
Plat for ER Ventures Addition, Site Plan for BS
CC — 7/18/16
PetSmart
6• CR 16-03 Spectrum School, 17796 Industrial Cir NW,
CL CC — 6/20/16
Concept Review for Addition
7 V 16-06 Church of St. Andrews, 534 4'" Street NW CL BOA 6/28/16
P 16-09 ERX Tech Shops, Aggregate Commercial Fourth
CL
PC — 6/28/16
CU 16-18 Addition Preliminary & Final Plat, CLIP CC --- 7/18/16
OA 16-05 City of Elk River Ordinance Amendment, XCR CL
PC — 6/28/16
CC — 7/18/16
10. CU16-19 Lake State Recycling, Amend CUP, 19131 CL
PC — 6/28/16
Industrial Blvd. CC 7/18/16
PLEASE LABEL YOUR MEMO WITH YOUR COMMENTS A5 FOLLOWS:
SPR Memo—(department name)
OUTSIDE AGENCIES — PLEASE USE OWN LETTER HEAD FOR COMMENTS
C CenterPoint,
Energy
June 8, 2016
Chris Leeseberg
Senior Planner
700 West Linden Avenue
PO Bax 1155
Minneapolis, MN 55440-1155
RE: Site Plan Review, Item #1 Road Easement Vacation Pipe Portfolio (Cretex)
Dear Mr. Leeseberg:
With reference to the proposed Item #1, road Easement Vacation Pipe Portfolio (Cretex)
also known as Meadowvale road, CenterPoint Energy does have an existing 2" steel
Class 6 (55psig) distribution gas main in Meadowvale road being vacated.
Since this gas main is an important part of our distribution system in this area, we must
object to this proposed Vacation unless suitable easement rights are reserved to
CenterPoint Energy, pursuant to MnSta 160.29 & MnRule 7819.3200.
Please reserve an easement to CenterPoint Energy, created by and within the
document establishing the RLS and filed with the Sherburne County Recorder's
office, over the following area of the proposed street vacation:
Should construction require relocation of the gas main we may consider removing our
objection should the petitioner wish to reimburse CenterPoint Energy the cost of
relocating the existing gas main. Additionally, the petitioner must create any easements
necessary for such relocation. Please inform the petitioner to contact Andrew Balgobin,
Administrative Engineer at 612.321.5426 to discuss this and any other options that may
be available.
Thank you for the advance notice and as always, please send me a copy of the "final
action" map.
Respectfully,
CENTERPOINT ENERGY
l u c_k , t. 6.
Chuck Mayers SR/WA
Right -of -Way Agent III
pc: Andrew Balgobin, Administrative Engineer
Mark Johnson, Supervisor
James Carlson, Foreperson advanced
Nathen Nazareno, Engineer
Item 1. - EV 16-11
To: City of Elk River
From: Marinus Van Putten, Attorney for Applicant
Date: May 13, 2016
Re: Narrative regarding Vacation of Easements
We represent PIPE PORTFOLIO OWNER (MULTI) LP, a Delaware limited partnership,
Pipe") purchaser of the Cretex plant in Elk River ("plant"). A portion of the plant was subject
to street easements which we are asking the City of Elk River to vacate. Pipe and its
predecessors in title had cut off the road easements described below as the easements ended at
the plant's property and the only one using the easement was the plant. As a result, plant fenced
of its property and the easements more than 20 years ago. The fencing has not affected the
public as the public did not use the access into the plant.
In 1992, according the minutes of the Elk River City Council, a vacation of the casements was
approved but the follow up of obtaining and recording the resolution vacating was never
recorded. The plant has now been sold to Pipe and they are now asking the City to vacate that
part of Meadow -vale Road (previously vacated by Sherburne County), 8a' Street and Industrial
Boulevard described as follows.
Parcel 1.
That part of Meadowvale Road, also known as Military Road, as shown on the plat of
AUDITOR'S SUBDIVISION NO. 3, which adjoins Lots 11, 12, 13, 14, and 15 of said
AUDITOR'S SUBDIVISION NO. 3 and which lies East of the extension North of the East line
of Upland Ave. NW, also known as County Highway No. 44.
Parcel 2:
That part of Industrial Boulevard which lies West of the extension North of the West line of
Quinn Avenue, located over, under and across part of AUDITOR'S SUBDIVISION NO. 3.
Parcel 3:
That part of 8a' Street which lies West of the Quinn Avenue, located over, under and across pail
of AUDITOR'S SUBDIVISION NO. 3.
Parcels 2 and 3 have improvements that encroach. Parcel I was a County Road that was vacated
in 1969 by the Sherburne County pursuant to Commissioner's Minutes No. 14. No record of the
creation of the road could be found in the office of the Sherburne County Recorder.
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City of
Elk
River
Resolution 16-
A Resolution of the City of Elk River to Vacate
Three Road Right -of -Way Easements
Case No. EV 16-11
WHEREAS, application has been made by the property owner to vacate the road right-of-
way easements described in Exhibit A attached hereto; and,
WHEREAS, vacation of the easements are appropriate as the applicant owns all of the
property around the easements, and the easements no longer provide
necessary public access to a parcel; and
WHEREAS, a public hearing was held on June 20, 2016, before the City Council of the
City of Elk River on such request after published and posted notice had been
given, and all persons interested were given an opportunity to be heard at the
public hearing.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, as follows:
1. The petition to vacate the road right-of-way easements described in Exhibit A is
hereby granted; and,
2. Vacation of the easements described in Exhibit A shall be effective at the time of
recording of the document.
Passed and adopted this 20"' day of June, 2016.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
P O w E R E U 9 1
AUR
Exhibit A
Meadowvale Road Easement:
That part of Meadowvale Road, also known as Military Road, as shown on the plat of
AUDITOR'S SUBDIVISION NO. 3, which adjoins Lots 11, 12, 13, 14, and 15 of said
AUDITOR'S SUBDIVISION NO. 3 and which lies East of the northerly extension of the
East line of Upland Ave. NW, also known as County Highway No. 44.
Unnamed Road Easement:
That part of 8th Street which lies West of the Quinn Avenue, located over, under and across
part of AUDITOR'S SUBDIVISION NO. 3.
AND
That part of 8th Street which lies West of the Quinn Avenue, located over, under and across
part of AUDITOR'S SUBDIVISION OF LOT 6 OF AUDITOR'S SUBDIVISION NO. 3.
Industrial Boulevard Easement:
That part of Industrial Boulevard which lies West of the northerly extension of the West line
of Quinn Avenue, located over, under and across part of AUDITOR'S SUBDIVISION NO.
POWERED 0Y
AUR
City of
Elk
River
Resolution 17-
A Resolution of the City of Elk River to Vacate Utility Easements
Case No. EV 17-01
WHEREAS, pursuant to Minnesota Statutes Section 412.851, after two (2) weeks'
published and posted notice of the hearing and after mailing written notice
of the hearing at least ten (10) days before the hearing to each property
owner affected by the proposed vacation, the Elk River city Council has
conducted a hearing to consider the vacation of the utility easements legally
described on the attached Exhibit"A" ("Easements"); and
WHEREAS, vacation of the easements are appropriate as the vacated easements no longer
provide appropriate access to the infrastructure and will be replaced with
utility easements that satisfy current access and maintenance standards; and
WHEREAS, a public hearing was held on April 17, 2017,before the City Council of the
City of Elk River on such request after published and posted notice had been
given, and all persons interested were given an opportunity to be heard at the
public hearing; and
WHEREAS, it appears that it is in the public interest to vacate the Easements;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River,Minnesota, as follows:
1. The Easements described on the attached Exhibit A are hereby vacated upon the
Owner of the Subject Property granting replacement easements approved by the City
both in form and legal description;
2. The City Clerk is directed to file a certified copy of this Resolution with the County
Auditor and County Recorder/Registrar of Titles in accordance with the terms of
this Resolution.
NATUREJ
Passed and adopted this 17I day of April 2017.
John J. Dietz,Mayor
ATTEST:
Tina Allard, City NATUREI
Exhibit A
Easements
1. The easement for utility purposes located within the Subject Property granted by
Cretex Companies,Inc. to the City of Elk River by quit claim deed dated September 22,
1975 and filed on September 26, 1975 as Document Number 133188 with the Office of the
County of Sherburne Registrar of Deeds;
2. The easement for utility purposes located within the Subject Property granted by
Myrtle V. Patenaude to the Village of Elk River by warranty deed dated April 18, 1960 and
filed on January 7, 1964 as Document Number 98435 with the Office of the County of
Sherburne Registrar of Deeds;
3. The easement for utility purposes located within the Subject Property granted by Elk
River Concrete Products Company to the Village of Elk River by easement dated June 6,
1946 and filed on June 21, 1947 as Document Number 72031 with the Office of the County
of Sherburne Registrar of NATUREJ
Resolution 17-____
A Resolution of the City of Elk River to Quit Claim a Portion of a Vacated
Right-of-Way
WHEREAS, Pipe Portfolio Owner (Multi) LP, a Delaware limited partnership, (“Owner”)
is the fee owner of real property legally described in Exhibit A (“Owner
Parcel”); and
WHEREAS, on June 20, 2016, the City Council agreed to vacate three rights-of-way no
longer needed for public travel; and
WHEREAS, to give effect to the vacation of a portion of one of the rights-of-way, it is
necessary to execute and deliver a quit claim deed to that portion of the right
of way; and
WHEREAS, it appears that it is in the public interest to execute and deliver the quit claim
deed;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, as follows:
1. The quit claim deed attached as Exhibit B to this resolution is hereby approved and
the Mayor and City Clerk are hereby authorized to execute and deliver the quit claim
deed upon the owner of the underlying Property granting replacement easements for
the vacated rights-of-way approved by the city both in form and legal description
Passed and adopted this 17th day of April 2017.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
Exhibit A
Property
Exhibit B
Quit Claim Deed
1
191925v1
(Reserved for Recording Data)
QUIT CLAIM DEED
STATE DEED TAX DUE HEREON: $1.65
Dated: ___________________, 2017.
FOR VALUABLE CONSIDERATION, CITY OF ELK RIVER, a Minnesota municipal
corporation, Grantor, hereby conveys and quitclaims to PIPE PORTFOLIO OWNER (MULTI)
LP, a Delaware limited partnership, Grantee, real property in Sherburne County, Minnesota,
described as follows:
That part of the Northwest Quarter of the Northeast Quarter of Section 33,
Township 33, Range 26, Sherburne County, Minnesota, described as
follows, which lies West of the northerly extension of Quinn Avenue:
Beginning at the northwest corner of the Southwest Quarter of the Northeast
Quarter of Section 33, Township 33, Range 26 and running thence east
along the east and west 1/16 section line of the Northeast Quarter of said
Section 33, a distance of 914.8 feet; thence north a distance of 33 feet;
thence west and parallel to above 1/16 section line, a distance of 914.8 feet;
thence south a distance of 33 feet to the point of beginning and being a part
of Lot 8, Auditor’s Subdivision No. 3, Sherburne County, Minnesota.
together with all hereditaments and appurtenances belonging thereto.
Grantor certifies that Grantor is unaware of any wells on the above described property.
The consideration for this transfer was less than $500.00.
191925v1 2
CITY OF ELK RIVER
BY:
John J. Dietz, Mayor
AND:
Tina Allard, City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF SHERBURNE )
The foregoing instrument was acknowledged before me this ________ day of
______________, 2017, by John J. Dietz, Mayor and Tina Allard, City Clerk of the City of Elk
River, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the
authority granted by its City Council.
NOTARY PUBLIC
Check here if part or all of the land is Registered (Torrens)
Tax Statements for the real property
described in this instrument should be sent to:
Pipe Portfolio Owner (Multi) LP
DRAFTED BY:
CAMPBELL KNUTSON
Professional Association
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
Telephone: 651-452-5000
AMP/cjh
GRANT OF PERMANENT EASEMENTS
THIS GRANT OF PERMANENT EASEMENTS (this “Grant of Easements”) is made on
this ______ day of _________________, 2017, by Pipe Portfolio Owner (Multi) LP, a Delaware
limited partnership (“Grantor”) to the City of Elk River, a Minnesota Municipal Corporation,
situated in Sherburne County, Minnesota (“Grantee”).
RECITALS
Grantor is the owner in fee simple of real property located in the County of Sherburne,
Minnesota, which is legally described on Exhibit A attached hereto (the “Property”). Grantor
has requested that Grantee vacate and convey to Grantor certain existing easements and rights of
way on the Property and has agreed to replace those easements and rights of way with a
permanent, non-exclusive easements for public utility purposes in, under and upon those portions
of the Property legally described on Exhibit B attached hereto. The easements are individually
described as “Easement 1,” “Easement 2,” “Easement 3,” “Easement 4,” Easement 5,”
“Easement 6,” “Easement 7,” “Easement 8” and collectively referred to herein as “Easements.”
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
Grantor:
1. Vacations – Grantee has approved the vacation of the easements legally described
on Exhibit C attached hereto contingent upon Grantor providing this Grant of
Easements.
2. Quit Claim Deed – Grantee shall deliver to Grantor a quit claim deed and
resolution approving the conveyance by Grantee to Grantor of the real property
legally described on Exhibit D attached hereto in a timely manner.
3. Grant of Easements – Subject to Grantee’s fulfillment of its obligations set forth
in Paragraphs 1 and 2 above, Grantor hereby grants to Grantee, its successors and
assigns, permanent, non-exclusive easements permitting Grantee the right to
install, operate, maintain, repair, remove and replace water, sewer and electric
lines, and related facilities (the “Utility Facilities”) under, on or above the surface
of those portions of the Property (the “Easement Areas”) legally described on
Exhibit B attached hereto, together with the right of reasonable and necessary
ingress and egress to and from the Easement Areas in connection with the
exercise of the rights granted herein. The Easements shall permanently run with
the title to the Property and shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, and assigns, including, but
without limitation, to all subsequent owners of the Property and the Easement
Areas and all persons claiming under them.
4. Use of Easement Areas by Grantor – Grantor hereby agrees that Grantor will not
perform or allow or cause the construction of any structures or other
improvements on the Easement Areas, including fencing or landscaping, which
could damage or obstruct the Utility Facilities or interfere with Grantee’s access
to or Grantee’s right to construct, maintain, and repair the Utility Facilities.
Grantor hereby reserves and retains all other property rights in and to the
Easement Areas, including without limitation, the right to use the Easement Areas
for any purpose whatsoever, including, but not limited to, the right to use,
maintain and/or operate any Encroachments (hereinafter defined), so long as such
use does not interfere with Grantee’s rights hereunder. Grantor agrees that
Grantee’s approval will be required before the installation of any new
improvements in the Easement Areas, including the installation of fences, trees or
other landscaping; provided, however, Grantee agrees to grant such approval so
long as the proposed improvement will, in Grantee’s judgment, not interfere with
Grantee’s rights hereunder.
5. Conduct of Work and Notification – Any installation, maintenance, replacement,
repair and/or removal of the Utility Facilities performed by Grantee, its agents
and employees, shall be performed at Grantee’s sole cost and expense after thirty
(30) days’ notice to the Grantor, except that Grantor may waive this notice period
and, in an emergency, the work may be initiated by Grantee after reasonable
notice.
6. Prohibition Against Liens – Grantee shall not permit any mechanics’,
materialmen’s or other liens to be filed against the Property or any part thereof for
work or materials furnished Grantee in connection with the Easements.
7. Easement 1 Requirements.
A. Grantor placed improvements within the original easement description for
the Utility Facilities located in Easement 1. The City agrees to vacate the original
easement description and provide a new legal description for the Utility Facilities
as provided in Easement 1 which will place the existing Utility Facilities on the
west boundary of the Easement Area, rather than in the center of the Easement
Area.
B. Grantor agrees that Grantor is fully responsible and liable for any and all
damage caused to the Grantor’s improvements located within 10 feet of the
westerly boundary of Easement 1 and agrees to indemnify and hold the Grantee
harmless from any damage caused to such improvements in connection with the
use, maintenance, repair or replacement of the utility located within Easement 1.
C. If at any time, Grantee’s Utility Facilities or Grantee’s ability to access or
exercise its rights under this Agreement are inconsistent with the Grantor’s use of
Grantor’s Property for the improvements identified in Paragraph 7B of this
Easement Agreement, Grantor shall remove the improvements or provide an
alternate easement and relocation of the public utilities, or propose another option
sufficient to address the Grantee’s need to occupy or access the Easement Areas,
at Grantor’s sole cost and expense, including the relocation of the Utility
Facilities. Upon relocation of the Utility Facilities, the Grantee shall vacate the
relevant portion of the Easement Areas replaced by the alternative easement.
Grantee will give the Grantor thirty (30) days advance written notice of the need
to remove the improvements or provide an alternate easement and relocation of
the Utility Facility, except that no notice period will be required in the case of an
emergency condition as determined solely by the Grantee. If Grantor fails to
remove the improvement, Grantee may remove the improvement to the extent it
impacts the Grantee’s use of the Easement Areas or operation of its Utility
Facilities within the Easement Area and charge the cost of removal back to the
Grantor for reimbursement.
8. Indemnification.
A. Grantee agrees to indemnify and to hold harmless the Grantor and its
agents, contractors, licensees or invitees from and against any and all claims, of
every person, including without limitation, employees, agents, contractors,
invitees, and permittees of the Grantee, resulting from, arising out of, or in any
way connected with the exercise of the privileges and rights of the Grantee,
except for any negligence on the part of Grantor, its agents, contractors, licensees
or invitees and except as otherwise provided under this Agreement.
B. Grantor agrees to indemnify and to hold harmless the Grantee, its officers,
employees and agents from and against any and all claims of every person,
including without limitation, employees, agents, contractors, invitees, and
permittees of the Grantor, resulting from, arising out of, or in any way connected
with the Grantor’s use of the Easement Areas authorized under Paragraph 4 of
this Agreement, except for any negligence on the part of Grantee, its agents,
contractors, licensees or invitees.
9. Encroachments.
A. Grantee hereby approves the existing encroachments in the Easement
Areas caused by Grantor’s building/structures as described on Exhibit E
(each, an “Encroachment” and collectively, the “Encroachments”). All
Encroachments on the Easement Area shall be at the sole risk of Grantor and
no part or loss or damage thereto from whatever cause is to be charged or
borne by Grantee, unless caused by the intentional misconduct or gross
negligence of Grantee, its employees, agents or contractors. Grantee will
exercise due care and diligence to avoid injury or damage to Encroachments
in Easement Areas.
B. Grantee may terminate the authorization of any or all of the
Encroachments granted hereunder if at any time it is necessary for the
Grantee to occupy or access the Utility Facilities or Easement Areas and
the applicable Encroachment is inconsistent with the Grantee’s use of the
Easement Areas, unless Grantor provides an alternate Easement Area to
relocate the applicable Utility Facility within 30 days of notice by Grantee.
In conjunction with the foregoing, the parties shall work in good faith to
amend this Grant of Easements as necessary. All costs, including but not
limited to the cost of any survey work, relocation of the applicable Utility
Facility and processing and recording any easement amendments and
vacations, shall be at Grantor’s sole cost and expense.
10. Assignability. This Grant of Easements may not be assigned or transferred to any
third party by Grantee without the prior written approval of Grantor and shall
automatically terminate if any effort is made to assign or transfer it without
written approval.
11. Warranty of Title – Grantor represents and warrants to Grantee that Grantor is the
only owner of fee simple title to the Property and that, to Grantor’s knowledge,
there are no (i) owners or mortgages, contracts for deed, leases, rental agreements,
occupancy agreements, or (ii) any other encumbrances or verbal or written
agreement of any nature whatsoever affecting title to the Property except matters
of record. Grantor, on behalf of itself, its successors and assigns, hereby
indemnifies and holds harmless Grantee against and from any and all claims for
loss, damage, or expenses which may be incurred by Grantee based upon any
claim from a party whose consent was required (but was not obtained) for this
Grant of Easements.
12. Severability. The invalidity of any portion of this Grant of Easements will not
and shall not be deemed to affect the validity of any other provisions. In the event
that any provision of this Grant of Easements is held to be invalid, the parties
agree that the remaining provisions shall be deemed to be in full force and effect
as if they had been executed by both parties subsequent to the expungement of the
invalid provision.
13. Entire Agreement. This Grant of Easements constitutes the entire agreement
between the parties and any prior understanding or representation of any kind
preceding the date of this Grant of Easements shall not be binding on any party
except to the extent incorporated by this Grant of Easements.
14. Amendments. Any modification of this Grant of Easements or additional
obligation assumed by either party in connection with this Grant of Easements
shall be binding only if evidenced in writing signed by each party or an authorized
representative of each party.
15. Governing Law. It is agreed that this Grant of Easements shall be governed by,
construed, and enforced in accordance with the laws of the State of Minnesota.
16. Permanent. The terms and provisions of this instrument shall run with the land,
and shall extend to and be binding is upon Grantor, Grantor’s heirs, legal
representatives, successors, and assigns.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Grant of Easements on
the above date.
GRANTOR: PIPE PORTFOLIO OWNER (MULTI) LP,
a Delaware limited partnership
By: PIPE PORTFOLIO GP LLC,
a Delaware limited liability company,
its general partner
By: WPC HOLDCO LLC,
a Maryland limited liability company,
its sole member
By: W. P. CAREY INC.,
a Maryland corporation,
its sole member
By:
Name:
Title:
GRANTEE: CITY OF ELK RIVER
By:
John J. Dietz
Its: Mayor
By:
Tina Allard
Its: City Clerk
Drafted by:
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this day of ,
2017, by ________________________, the __________________ of W. P. CAREY INC., a
Maryland corporation, as sole member of WPC HOLDCO LLC, a Maryland limited liability
company, as sole member of PIPE PORTFOLIO GP LLC, a Delaware limited liability company,
as general partner of PIPE PORTFOLIO OWNER (MULTI) LP, a Delaware limited partnership.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF SHERBURNE )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2017, by John J. Dietz, the Mayor, and Tina Allard, the City Clerk of the City
of Elk River, a Minnesota Municipal Corporation, on behalf of the corporation.
Notary Public
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
File No.: 01040-17971a
Parcel 1
All that part of Lot Fourteen (14) of Auditor's Subdivision No. 3, (said Lot 14 being a part of the
Northeast Quarter of the Northwest Quarter (NE 1/4 of NW 1/4) of Section Thirty-three (33),
Township Thirty-three (33), Range Twenty-six (26)), and all of that part of the Southeast
Quarter of the Southwest Quarter (SE 1/4 of SW 1/4) of Section Twenty-eight (28), Township
Thirty-three (33), Range Twenty-six (26), South of the Railroad right-of-way, that lies west of
the following described line: Beginning at a point on the north line of the right-of-way of the
Meadow Vale road which is 230 feet northwesterly of the intersection of said north right-of-way
line with the west line of Lot 13 of Auditor's Subdivision No. 3; thence northeast 70 degrees
angle right for 120 feet to an iron stake, thence at angle right 76 degrees and 30 minutes to a
second iron stake a distance of 60 feet; thence north parallel with the east line of said Lot 14 of
Auditor's Subdivision No. 3, a distance of 783 feet to the South line of right-of-way of the
Northern Pacific Railway, and there terminating. All of said lands lying and being in the
County of Sherburne and State of Minnesota;
EXCEPT that part of the West 276.20 feet of Lot 14, Auditor's Subdivision No. 3 City of Elk
River, Sherburne County, Minnesota lying northerly of Meadowvale Road, formerly known as
Sherburne County Road No. 44.
Parcel 2
That part of Lot 14, Auditor's Subdivision No. 3, Village of Elk River, Sherburne County,
Minnesota, lying Northerly of the Meadowvale Road, lying Westerly and Southerly of Line 1 as
hereinafter described; and lying Southerly and Easterly of Line 2 as hereinafter described.
Line 1 is described as follows: Beginning at the Northeast corner of Lot 13 of said Auditor's
Subdivision No. 3; thence West along the North line of said Lot 13 a distance of 100 feet to the
point of beginning of said Line; thence North at right angles a distance of 60 feet; thence West
parallel with the North line of said Lot 13 a distance of 84.5 feet, more or less, to the Westerly
line of said Lot 13, extended Northerly; thence North along said extended line a distance of 90
feet; thence West parallel with the aforesaid North line of said Lot 13 to an intersection with
Line 2 as hereinafter described.
Line 2 is described as follows: Beginning at the intersection of the West line of Lot 13, Auditor's
Subdivision No. 3, Village of Elk River, and the North right-of-way line of Meadowvale Road;
thence Northwesterly along said North line of Meadowvale Road 230 feet to the point of
beginning of the line to be described; thence Northeast 70 degrees angle right for 120 feet to an
iron stake; thence right 76 degrees and 30 minutes to a second iron stake a distance of 60 feet;
thence North parallel with the East line of said Lot 14, Auditor's Subdivision No. 3, to an
intersection with Line 1 above described.
AND
That part of Lot 14, AUDITOR'S SUBDIVISION NO. 3, and that part of the Southeast Quarter
of the Southwest Quarter (SE 1/4 of SW 1/4) of Section 28, Township 33, Range 26, described
as follows: Beginning at the Northeast corner of Lot 13 of said AUDITOR'S SUBDIVISION
NO. 3; thence West along the North line of said Lot 13 a distance of 100 feet; thence North at
right angles a distance of 60 feet; thence West parallel with the North line of said Lot 13 a
distance of 84.5 feet, more or less, to the Westerly line of said Lot 13 extended Northerly;
thence North along said extended line a distance of 90 feet; thence West parallel with the
aforesaid North line of Lot 13 to an intersection with the following described line: Commencing
at the intersection of the West line of Lot 13 of AUDITOR'S SUBDIVISION NO. 3 with the
North line of the right-of-way of the Meadowvale Road; thence Northwesterly along said North
line 230 feet; thence Northeast 70 degrees angle right for 120 feet; thence angle right 76 degrees
30 minutes 60 seconds to the point of beginning of the line to be intersected; thence North
parallel with the East line of said Lot 14 to the aforesaid point of intersection; thence North
along said line pa rallel with the East line of said Lot 14 to an intersection with the South right-
of-way of the railroad; thence Southeasterly along said right-of-way line to the NW corner of
Lot 11 of said AUDITOR'S SUBDIVISION NO. 3; thence South along the line between Lots 14
and 11 of said AUDITOR'S SUBDIVISION NO. 3 to the point of beginning.
Parcel 3
Lot Thirteen (13), Auditor's Subdivision No. 3, in the Village of Elk River, Sherburne County,
Minnesota.
Parcel 4
That part of Lot 11, AUDITOR'S SUBDIVISION NO. 3, Village of Elk River, Sherburne
County, Minnesota, lying Northeasterly of the Meadowvale Road, except beginning at a point
on the Northeasterly right-of-way line of said road, 232.95 feet measured at right angles East of
the West line of said Lot 11; thence North parallel to said West line 153 feet; thence Easterly at
right a ngles to the Easterly line of said Lot 11; thence Southerly along said Easterly line to the
aforesaid right-of-way line; thence Northwesterly along said right-of-way line to the point of
beginning, reserving, however, an easement for purposes of a sewer main and water main over
and across a strip of land 15 feet in width commencing at the intersection of the North line of the
Meadowvale Road, so-called, with a line parallel with and 232.95 feet distant East of the West
line of said Lot 11; thence North and parallel to said West line 153 feet; thence East at right
angles to the East line of said Lot 11; thence North to the Northeast corner of said Lot 11; thence
Northwesterly along the South line of the ra ilroad right-of-way to the Northwest corner of said
Lot 11 and there terminating.
AND
A part of Lot 11, Auditor's Subdivision No. 3, Village of Elk River, Sherburne County,
Minnesota, lying adjacent to the so-called Meadowvale Road described as follows:
Commencing at a point on the South line of said Lot 11 that is 232.95 feet distant from the West
line of Lot 11 measured at right angles to said West line of Lot 11 of its extension; thence
Northerly parallel to West line of Lot 11 a distance of 176.65 feet to point of beginning; thence
continue on said Northerly course a distance of 153 feet; thence at right angles 90 degrees
direction of Easterly a distance of 120 feet; thence at right angles 90 degrees South a distance of
234.85 feet to the Northerly line of said Meadowvale Road; thence Northwesterly along said
right-of-way line a distance of 145.17 feet, more or less, to point of beginning.
AND
The South Sixty (60) feet of that part of Lot Eleven (11), Auditor's Subdivision No. 3, City of
Elk River, Sherburne County, Minnesota, described as follows:
Commencing at the Southwest (SW) corner of said Lot Eleven (11), thence East along the South
line of said Lot Eleven (11) a distance of 100 feet; thence at right angles North and parallel with
the West line of said Lot Eleven (11) to the South line of the County Road known as the
Meadowvale Road as located and established across said Lot Eleven (11) on July 1, 1972;
thence Northwesterly along the South line of said road to the West line of said Lot Eleven (11);
thence South on the West line of said Lot Eleven (11) to the point of beginning.
AND That part of Lot Eleven (11), Auditor's Subdivision No. 3, Sherburne County, Minnesota, described as follows: Commencing at the Southwest corner of said Lot 11; thence East along the South line of said Lot 11 a distance of 100 feet; thence at right angles North and parallel to the West line of said Lot 11 to the South line of the County Road known as the Meadowvale Road as presently located and traveled across said Lot 11; thence Northwesterly along the south line of the said County Road to the West line of Lot 11; thence South on the West line of Lot 11 to the point of beginning, except for the South 60 feet thereof.
AND
That part of Lot Eleven (11) of Auditor's Subdivision No. 3, Sherburne County, Minnesota,
described as follows:
Commencing at a point 150 feet East and Sixty (60 ) feet North of the Southwest corner of said
Lot Eleven (11); thence North and parallel to the West line of said Lot Eleven (11) to the South
line of the Meadowvale Road, so-called; thence Northwesterly on and along the South line of
Meadowvale Road to the intersection thereof with a line running parallel with and 100 feet
distant East of the West line of said Lot Eleven (11); thence South and parallel with said West
line to a point Sixty (60) feet distant North from the South line thereof; thence Easterly Fifty
(50) feet, more or less, to the point of beginning.
AND
Lot 12 of Auditor's Subdivision No. 3 and that part of Lot 15 of Auditor's Subdivision No. 3 that
lies East of the County road running North and South through said Lot 15, being a part of th e
Northeast Quarter of Northwest Quarter of Section 33, Township 33, Range 26, Sherburne
County, Minnesota ;
AND That part of Lot 23, Auditor's Subdivision No. 3, Village of Elk River, Sherburne County,
Minnesota, described as follows:
Beginning at a point on the East line of said Lot 23, 480 feet South of the Northeast corner
thereof; thence North along the East line of said Lot 23, 480 feet to the Northeast corner thereof;
thence West along the No rth line of said Lot 23 to the Northwest corner thereof; thence South
on the West line 488 feet, more or less, to the intersection with the Northerly right of way line
of U.S. Highway 10; thence Southeasterly along the northerly right of way line of U.S. Highway
10 to the East line of said Lot 23; thence North on the East line of said Lot 23 to the point of
beginning.
AND
That part of Lot Eight (8), Auditor's Subdivision No. 3, in the Village of Elk River, Sherburne
County, Minnesota, lying Northerly of a line 360 feet distant North of the iron pipe at the
Southwest corner of said Lot Eight (8); thence Easterly and parallel with the South line of said
Lot Eight (8) to the Great Northern Railroad right-of-way and there termin ating
EXCEPT that part of Lot Eight (8) Auditor's Subdivision No. 3 lying Northerly of a line
commencing at a point on the West line of said Lot Eight (8), 360 feet distant North of the iron
pipe at the Southwest corner of said Lot Eight (8); thence Easterly and parallel with the South
line of said Lot Eight (8) to the Great Northern Railroad right-of-way and there terminating; and
West of a line running par allel with and distant 240 feet distant East of the West line of said Lot
Eight (8).
AND
That part of Lot Eight (8), Auditor's Subdivision No. 3, in the Village of Elk River, Sherburne
County, Minnesota, lying southerly and westerly of the following described line: Commencing
at a point on the West line of said Lot Eight (8), 300 feet north of the southwest corner running
thence easterly and parallel with the South line of said Lot 8 to a point 60 feet distance from the
southwesterly line of the right of way of the Burlington Northern Railroad; thence Southeasterly
and parallel with said southwesterly right of way line to the northerly extension of the West line
of Quinn Avenue thence South along the Westerly line of Quinn Avenue to the South line of
said Lot 8; and also all of Lot 8 Lying East of Quinn Avenue.
EXCEPT Beginning at the northwest (NW) corner of the southwest (SW) 1/4 of the northeast
(NE) 1/4 of section 33, twp.33, range 26 and running thence east along the east and west 1/16
section line of the northeast 1/4 of section 33, twp.33, range 26, a distance of 914.8 feet, thence
north a distance of 33 feet, thence west and parallel to above said 1/16 section line a distance of
914.8 feet, thence south a distance of 33 feet to the point of beginning; being a part of Lot 8,
Auditor’s Subdivision No. 3, to the Village of Elk River, Minnesota.
ALSO EXCEPT That part of Lot Eight (8) of Auditor's Subdivision No. 3, according to the duly
recorded plat thereof, lying Easterly of the Northerly extension of the East line of Quinn
Avenue, as presently located and established in the City of Elk River.
Parcel 5
Lots 8, 9, 10 , 11 and 12, Plat of Auditor’s Subdivision of Lot 6 of Auditor's Subdivision No 3
Elk River.
AND All that portion of the Burlington Northern Railroad Company's (formerly the Great Northern
Railway Company) 35.0 foot wide Spur Tract right of way, being 10.0 feet wide on the Easterly
side and 25.0 feet wide on the Westerly side of said Railroad Company's Spur Track centerline,
as originally located and constructed upon, over and across the SW1/4NE1/4 of Section 33,
T33N, R26W, 4th P.M., Sherburne County, Minnesota; bounded on the South by a line drawn
parallel with and distant 112.5 feet Northerly of, as measured radially to, the centerline of
Minnesota Trunk Highway No. 10-3, as surveyed, located and constructed and bounded on the
Easterly side by the centerline of Quinn Stre et in the Village of Elk River, Minnesota,
according to the recorded plat thereof.
Parcel 6
Lot Seven (7), of Auditor's Subdivision Number Three (3), in the Village of Elk River, Sherburne County, Minnesota.
Parcel 7
That part of Meadowvale Road, also known as Military Road, as shown on the plat of
AUDITOR'S SUBDIVISION NO. 3, Sherburne County, Minnesota, which adjoins Lots 11, 12,
13, 14, and 15 of said AUDITOR'S SUBDIVISION NO. 3 and which lies east of the extension
North of the East line of Upland Ave. NW, also known as County Highway No. 44.
Parcel 8
That part of Industrial Boulevard which lies west of the extension north of the West line of Quinn Avenue, located over, under and across part of AUDITOR'S SUBDIVISION NO. 3, Sherburne County, Minnesota.
Parcel 9
Those parts of 8th Street which lie west of Quinn Avenue located over, under and across part of
AUDITOR'S SUBDIVISION NO. 3, Sherburne County, Minnesota, and over and across part of
Auditor’s Subdivision of Lot 6 of AUDITOR'S SUBDIVISION NO. 3, Sherburne County,
Minnesota more particularly described as follows:
That part of the Southwest ¼ of the Northeast ¼ of Section 33, Township 33, Range 26,
Sherburne County, Minnesota, described as follows, that lies West of the northerly extension of
Quinn Avenue:
Beginning at the northwest corner of the Southwest ¼ of the Northeast ¼ of Section 33,
Township 33, Range 26 and running thence east along the east and west 1/16 section line of the
Northeast ¼ of said Section 33, a distance of 914.8 feet; thence north a distance of 33 feet;
thence west and parallel to above 1/16 section line, a distance of 914.8 feet; thence south a
distance of 33 feet to the point of beginning and being a part o f Lot 8, Auditor ’s Subdivision No
3, Sherburne County, Minnesota;
AND
That part of the following described tract l ying within Auditor’s Subdivision of Lot 6 of
Auditor’s Subdivision No. 3 Elk River:
All that part of Lot Six (6) of AUDITOR’S SUBDIVISION NO. Three (3) in the Village of Elk
River, Sherburne County, Minnesota, that lies north and west of the Great Northern Railway
Spur Right of Way as the same is now located and constructed over and across said tract, and
west of the northerly extension of the west line of Hope Street as shown on the duly recorded
plat of W. H. Houltons’ Addition to the Village of Elk River;
That lies North of the north lot line of Lot 12 of Auditor’s Subdivision of Lot 6 of Auditor’s
Subdivision No. 3 Elk River, according to the recorded plat thereof in Sherburne County,
Minnesota; and
That lies South of the North line of Lot Six (6) of AUDITOR’S SUBDIVISION NO. Three (3)
in the Village of Elk River, according to the recorded plat thereof in Sherburne County,
Minnesota.
Abstract.
EXHIBIT B
LEGAL DESCRIPTION OF EASEMENT AREAS
Easement 1
A 20 foot wide drainage and utility easement over, under and across that part of Lot 12, the
unnamed road north of Lot 12, Lot 11, and Spur Track as shown on the plat of AUDITOR’S
SUBDIVISION OF LOT 6 OF AUDITOR’S SUBDIVISION NO. 3, said easement lying 1.00
foot to the right and 19.00 feet to the left of the following described line:
COMMENCING at the northwest corner of AUDITOR’S SUBDIVISION OF LOT 6 OF
AUDITOR’S SUBDIVISION NO. 3; thence North 89 degrees 06 minutes 43 seconds East,
assumed bearing, along the north line of said AUDITOR’S SUBDIVISION OF LOT 6 OF
AUDITOR’S SUBDIVISION NO. 3, a distance of 161.00 feet to the POINT OF BEGINNING;
thence South 00 degrees 09 minutes 30 seconds West, a distance of 822.30 feet to a point on the
northerly right of way line of U.S. Highway 10 and said line there terminating.
The sidelines of said easement shall be lengthened or shortened so as to terminate on said north
line of AUDITOR’S SUBDIVISION OF LOT 6 OF AUDITOR’S SUBDIVISION NO. 3 and
said northerly right of way line of U.S. Highway 10.
Easement 2
A drainage and utility easement over, under and across that part of Lot 8, AUDITOR’S
SUBDIVISION NO. 3 and that part of unnamed road north of Lot 12, AUDITOR’S
SUBDIVISION OF LOT 6 OF AUDITOR’S SUBDIVISION NO. 3 lying southerly of the
following described “Line A” and northerly of the following described “Line B”:
“LINE A”
COMMENCING at the southwest corner of Lot 8, AUDITOR’S SUBDIVISION NO. 3, thence
North 00 degrees 01 minutes 15 seconds East, assumed bearing, along the west line of said Lot 8,
a distance of 38.93 feet to the POINT OF BEGINNING of said “Line A”; thence South 53
degrees 44 minutes 59 seconds East, a distance of 41.68 feet; thence North 88 degrees 58
minutes 57 seconds East, a distance of 127.21 feet; thence North 89 degrees 03 minutes 19
seconds East, a distance of 466.57 feet; thence North 89 degrees 59 minutes 48 seconds East, a
distance of 220.74 feet to the west right of way line of Quinn Ave and said line there terminating.
“LINE B”
COMMENCING at said southwest corner of Lot 8, AUDITOR’S SUBDIVISION NO. 3, thence
South 00 degrees 01 minutes 15 seconds West along the west line of AUDITOR’S
SUBDIVISION OF LOT 6 OF AUDITOR’S SUBDIVISION NO. 3, a distance of 1.76 feet to
the POINT OF BEGINNING of said “Line B”; thence South 58 degrees 03 minutes 41 seconds
East, a distance of 28.30 feet; thence North 88 degrees 52 minutes 05 seconds East, a distance of
165.20 feet; thence North 87 degrees 52 minutes 54 seconds East, a distance of 260.58 feet;
thence North 89 degrees 59 minutes 14 seconds East, a distance of 317.68 feet; thence South 87
degrees 29 minutes 22 seconds East, a distance of 81.15 feet to the west right of way line of
Quinn Ave and said line there terminating.
Easement 3
A 20 foot wide drainage and utility easement over, under and across that part of Lot 11, Lot 12,
Lot 23, and Military Road as shown on the plat of AUDITOR’S SUBDIVISION NO. 3, the
centerline is described as follows:
COMMENCING at the southeast corner of Lot 11, thence North 00 degrees 01 minutes 15
seconds East, assumed bearing, along the east line of said Lot 11, a distance of 10.02 feet to the
POINT OF BEGINNING of the centerline to be described; thence North 56 degrees 25 minutes
03 seconds West a distance of 33.05 feet; thence North 38 degrees 18 minutes 53 second West, a
distance of 11.54 feet; thence South 51 degrees 35 minutes 48 seconds West, a distance of 23.16
feet; thence South 68 degrees 05 minutes 09 seconds West, a distance of 79.62 feet; thence North
88 degrees 28 minutes 32 seconds West, a distance of 78.37 feet; thence North 83 degrees 19
minutes 24 seconds West, a distance of 186.59 feet; thence North 77 degrees 57 minutes 55
seconds West, a distance of 138.58 feet; thence North 03 degrees 03 minutes 56 seconds West, a
distance of 209.71 feet; thence North 00 degrees 09 minutes 21 seconds East, a distance of
173.96 feet; thence North 58 degrees 06 minutes 53 seconds West, a distance of 124.81 feet;
thence North 54 degrees 19 minutes 43 seconds West, a distance of 146.42 feet to a point on the
east right of way line of C.H. 44 / Upland Avenue NW and said centerline there terminating.
The sidelines of said easement shall be lengthened or shortened so as to terminate on said east
line of Lot 11, the east line of Lot 23, and said east right of way line of C.H. 44 / Upland Ave
NW.
Easement 4
An easement for drainage and utility purposes legally described as the West 10.00 feet of that
part of Lot 23, AUDITOR’S SUBDIVISION NO. 3, Village of Elk River, Sherburne County,
Minnesota described as follows: Beginning at a point on the East line of said Lot 23, 480.00 feet
South of the Northeast corner thereof; thence North along the East line of said Lot 23, a distance
of 480.00 feet to the Northeast corner thereof; thence West along the North line of said Lot 23 to
the Northwest corner thereof; thence South on the West line a distance of 488.00 feet more or
less, to the intersection with the Northerly right of way line of U.S. Highway No. 10; thence
Southeasterly along the northerly right of way line of U.S. Highway No. 10 to the East line of
said Lot 23; thence North on the East line of said Lot 23 to the Point of Beginning.
AND the West 10.00 feet of that part of Lot 15, AUDITOR’S SUBDIVISION NO. 3, Village of
Elk River, Minnesota which lies East of the East line of County Highway No. 44 also known as
Upland Ave.
Easement 5
An easement for drainage and utility purposes legally described as the East 10.00 feet of Lots 7,
8, 9, and 12, plat of AUDITOR’S SUBDIVISION OF LOT 6 OF AUDITOR’S SUBDIVISION
NO. 3.
AND the East 10.00 feet of the following described parcel: That part of Lot 8, AUDITOR’S
SUBDIVISION NO. 3, Village of Elk River, Minnesota lying southerly and westerly of the
following described line: Commencing at a point on the West line of said Lot 8, distant 300.00
feet north of the southwest corner; thence easterly and parallel with the South line of said Lot 8
to a point 60.00 feet distant from the southwesterly line of the right of way of the Burlington
Northern Railroad; thence Southeasterly and parallel with said Southwesterly right of way line to
the northerly extension of the West line of Quinn Avenue; thence South along the Westerly line
of Quinn Avenue to the South line of said Lot 8.
EXCEPT that part described as follows: Beginning at the Northwest corner of the
Southwest Quarter of the Northeast Quarter of Section 33, Township 33, Range 26,
Sherburne County, Minnesota; thence east along the east and west 1/16th Section line of
the Northeast Quarter of Section 33, Township 33, Range 26, a distance of 914.80 feet;
thence north 33.00 feet; thence west and parallel with the above said 1/16th section line a
distance of 914.80 feet; thence south a distance of 33.00 feet to the Point of Beginning:
being part of Lot 8, AUDITOR’S SUBDIVISION NO. 3, Village of Elk River,
Minnesota
AND the East 10.00 feet of that portion of the Burlington Northern Railroad Company’s
(formerly the Great Northern Railway Company) 35.00 foot wide Spur Track right of way, being
10.00 feet wide on the Easterly side and 25.00 feet wide on the Westerly side of said Railroad
Company’s Spur Track centerline, as originally located and constructed upon, over and across
the Southwest Quarter of the Northeast Quarter of Section 33, Township 33, Range 26,
Sherburne County, Minnesota; bounded on the South by a line drawn parallel with and distant
112.5 feet Northerly of, as measured radially to, the centerline of Minnesota Trunk Highway No.
10-3, as surveyed and bounded on the Easterly side by the centerline of Quinn Street in the
Village of Elk River, Minnesota according to the recorded plat thereof.
Easement 6
An easement for drainage and utility purposes over that part of the following described
properties:
That part of Lot 23, AUDITOR’S SUBDIVISION NO. 3, Village of Elk River,
Minnesota described as follows: Beginning at a point on the East line of said Lot 23,
480.00 feet South of the Northeast corner thereof; thence North along the East line of said
Lot 23 , 480.00 feet to the Northeast corner thereof; thence West along the North line of
said Lot 23 to the Northwest corner thereof; thence South on the West line 488.00 feet.
More or less, to the intersection with the Northerly right of way line of U.S. Highway No.
10; thence Southeasterly along the northerly right of way line of U.S. Highway No. 10 to
the East line of said Lot 23; thence North on the East line of said Lot 23 to the Point of
Beginning.
Lot 12, plat of AUDITOR’S SUBDIVISION OF LOT 6 OF AUDITOR’S
SUBDIVISION NO. 3 ELK RIVER.
AND all that portion of the Burlington Northern Railroad Company’s (formerly the Great
Northern Railway Company) 35.00 foot wide Spur Track right of way, being 10.00 feet
wide on the Easterly side and 25.00 feet wide on the Westerly side of said Railroad
Company’s Spur Track centerline, as originally located and constructed upon, over and
across the Southwest Quarter of the Northeast Quarter of Section 33, Township 33,
Range 26, Sherburne County, Minnesota; bounded on the South by a line drawn parallel
with and distant 112.5 feet Northerly of, as measured radially to, the centerline of
Minnesota Trunk Highway No. 10-3, as surveyed, located and constructed and bounded
on the Easterly side by the centerline of Quinn Street in the Village of Elk River,
Minnesota according to the recorded plat thereof.
Which lies South of the following described Line: Commencing at the Northwest corner of Lot
23, AUDITOR’S SUBDIVISION NO. 3, Village of Elk River, Minnesota; thence South 0
degrees 01 minutes 10 seconds East along the West line of said Lot 23 a distance of 488.00 feet
to the Northerly right of way line of U.S. Highway No. 10; thence return North 0 degrees 01
minutes 10 seconds West along said West line of Lot 23 a distance of 1.75 feet to the Point of
Beginning of the Line to be described; thence South 68 degrees 06 minutes 17 seconds East a
distance of 196.11 feet; thence South 67 degrees 57 minutes 36 seconds East a distance of 250.64
feet; thence South 71 degrees 00 minutes 14 seconds East a distance of 240.77 feet; thence South
76 degrees 34 minutes 39 seconds East a distance of 267.57 feet along a line to be referred to as
Line A to a point to be referred to as Point 1; thence continue South 76 degrees 34 minutes 39
seconds East along the extension of said Line A, a distance of 50.00 feet; thence on a bearing of
South a distance of 8.44 feet to the Northerly right of way line of U.S. Highway No. 10 and there
terminating. Except the west 10.00 feet of said Lot 23.
Also that part of said Lot 11 described as follows: Beginning at the above referenced Point 1;
thence North 13 degrees 25 minutes 21 seconds East a distance of 18.00 feet; thence South 76
degrees 34 minutes 39 seconds East a distance of 12.00 feet; thence South 13 degrees 25 minutes
21 seconds West a distance of 18.00 feet to intersect the southeasterly extension of the above
referenced Line A; thence North 76 degrees 34 minutes 39 seconds West along said extension of
Line A, a distance of 12.00 feet to the Point of Beginning.
For the purpose of this description the bearings are based on the Sherburne County Coordinate
System (North American Datum of 1983, 2011 adjustment).
Easement 7
A drainage and utility easement over, under, and across that part of Lot 8, AUDITOR’S
SUBDIVISION NO. 3, more particularly described as follows:
The East 20 feet of the West 75 feet of the South 373 feet of Lot 8.
Easement 8
A 20 foot drainage and utility easement over, under and across the Northeast Quarter of Section
33, Township 33, Range 26, Sherburne County, Minnesota, lying 10.0 feet on each side of the
following described centerline:
Commencing at the northwest corner of the Northeast Quarter of said Section 33; thence on an
assumed bearing of South 1331.36 feet along the west line of said Northeast Quarter; thence East
160.89 feet to the point of beginning of the line to be described; thence North 11 degrees, 13
minutes, 30 seconds East 317.5 feet; thence North 00 degrees, 01 minutes, 50 seconds West 310
feet and there terminating.
EXHIBIT C
LEGAL DESCRIPTION OF EASEMENTS VACATED BY GRANTOR
1. Parcel 1:
That part of Meadowvale Road, also known as Military Road, as shown on the plat of
AUDITOR’S SUBDIVISION NO. 3, which adjoins Lots 11, 12, 13, 14, and 15 of said
AUDITOR’S SUBDIVISION NO. 3 and which lies east of the extension North of the East
line of Upland Ave. NW, also known as County Highway No. 44.
2. Parcel 2:
That part of Industrial Boulevard which lies west of the extension north of the West line of
Quinn Avenue, located over, under and across part of AUDITOR’S SUBDIVISION NO. 3
EXCEPT that part adjoining the Southerly Railroad Right of Way line on the East of the Pipe
property.
3. Parcel 3:
Those parts of 8th Street which lies west of Quinn Avenue located over, under and across
part of AUDITOR'S SUBDIVISION NO. 3, Sherburne County, Minnesota, and over and
across part of Auditor’s Subdivision of Lot 6 of AUDITOR'S SUBDIVISION NO. 3,
Sherburne County, Minnesota.
4. Water Main Easement over Grantor Property recorded as Sherburne County Recorder
Document No. 98435
5. Utility Easement recorded as Sherburne County Recorder Document No. 133188 and
legally described as follows:
A 15 foot perpetual utility easement over, under and across the Northeast Quarter of Section
33, Township 33, Range 26, Sherburne County, Minnesota, lying 7.5 feet on each side of the
following described centerline:
Commencing at the northwest corner of the Northeast Quarter of said Section 33; thence on
an assumed bearing of South 1331.36 feet along the west line of said Northeast Quarter;
thence East 160.89 feet to the point of beginning of the line to be described; thence North 11
degrees, 13 minutes, 30 seconds East 317.5 feet; thence North 0 degrees, 01 minutes, 50
seconds West 310 feet and there terminating.
6. Sanitary Sewer Easement over Grantor Property recorded as Sherburne County
Recorder Document No. 72031.
EXHIBIT D
LEGAL DESCRIPTION OF GRANTEE PROPERTY TO BE QUIT CLAIMED TO
GRANTOR
That part of the Southwest ¼ of the Northeast ¼ of Section 33, Township 33, Range 26,
Sherburne County, Minnesota, described as follows, that lies West of the northerly extension of
Quinn Avenue:
Beginning at the northwest corner of the Southwest ¼ of the Northeast ¼ of Section 33,
Township 33, Range 26 and running thence east along the east and west 1/16 section line of the
Northeast ¼ of said Section 33, a distance of 914.8 feet; thence north a distance of 33 feet;
thence west and parallel to above 1/16 section line, a distance of 914.8 feet; thence south a
distance of 33 feet to the point of beginning and being a part of Lot 8, Auditor’s Subdivision No
3, Sherburne County, Minnesota.
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191673v7
EXHIBIT E
DEPICTION OF ENCROACHMENTS
[To be inserted]
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191911v2
UTILITY AND INGRESS AND ACCESS EASEMENTS
THIS EASEMENT GRANT (this “Easement Grant”) is made and entered into on
___________________, 2017, from PIPE PORTFOLIO OWNER (MULTI) LP, a Delaware
limited partnership (“Grantor”), to the CITY OF ELK RIVER, a Minnesota municipal
corporation, situated in Sherburne County, Minnesota (“Grantee”).
In consideration of One Dollar ($1.00) and other good and valuable consideration in hand
paid by Grantee, the receipt and sufficiency of which Grantor hereby acknowledges, Grantor
hereby grants, conveys and sells to Grantee, its successors and assigns, permanent non-exclusive
easements for utility and access purposes over, under and across the following described
property:
An easement for utilities, ingress and egress over that portion of vacated industrial boulevard
adjoining the easterly line of Lot Eight (8), Auditor’s Subdivision No. 3, Sherburne County,
Minnesota;
AND
A 60 foot easement for utility, ingress and egress adjoining the easterly line of the following
described property:
That part of Lot Eight (8), Auditor's Subdivision No. 3, Sherburne County, Minnesota,
lying Northerly of a line 360 feet distant North of the iron pipe at the Southwest corner
of said Lot Eight (8); thence Easterly and parallel with the South line of said Lot Eight
(8) to the Great Northern Railroad right-of-way and there terminating;
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191911v2
EXCEPT that part of Lot Eight (8) Auditor's Subdivision No. 3 lying Northerly of a line
c ommencing at a point on the West line of said Lot Eight (8), 360 feet distant North of the iron
pipe at the Southwest corner of said Lot Eight (8); thence Easterly and parallel with the South
line of said Lot Eight (8) to the Great Northern Railroad right-of-way and there terminating;
and West of a line running parallel with and distant 240 feet distant East of the West line of
said Lot Eight (8).
together with the right to construct, install, maintain, repair, use, modify and service facilities for
utility and access purposes within the easement area and for no other purpose (the “Easement
Areas”).
1. Grantee hereby consents to any encroachments on the Easement Areas existing on the
date of this Easement Grant as a result of this Easement Grant.
2. Grantor hereby reserves for itself and its successors and assigns the right to use the above
Easement Area along with Grantee; and Grantor may use such Easement Areas for other
purposes not inconsistent with the rights granted to Grantee under this Agreement.
3. The Grantee will exercise due care and diligence to avoid injury or damage to Grantor’s
existing improvements within the Easement Areas. The Grantee shall indemnify and save
harmless Grantor and its officers, directors, agents, and employees, against and from any
and all liability, damage, expense, cause of action, suit, claim, or judgment for injury or
death to persons or damage to property sustained by anyone in and about the Easement
Areas, arising out of or in any way connected with the Easement Grant or Grantee’s agents’,
employees’, contractors’, or invitees’ use or occupation of the Easement Area for the
operation, maintenance, relocation, replacement, substitution or removal of the utilities
within the Easement Areas, unless caused by the intentional misconduct or negligence of
Grantor, its employees, agents or contractors. Furthermore, all fixtures, equipment, and
property of every kind and description of persons claiming by or through Grantee which
may be on the Easement Areas shall be at the sole risk and hazard of Grantee and no part
or loss or damage thereto from whatever cause is to be charged or borne by Grantor, unless
caused by the intentional misconduct, negligence or accident of Grantor, its employees,
agents or contractors.
4. If this Easement Grant should interfere with Grantor’s, or Grantor’s tenant’s operations
or use on Grantor’s property outside of the Easement Areas, the Grantee agrees upon the
request of Grantor to relocate the Easement Areas at the expense of Grantor, with the
vacated portion of this Easement Grant being released and conveyed back to Grantor and
the site of the relocated easement area being conveyed and included in this Easement
Grant as though it had been included ab initio.
5. Grantor represents and warrants to Grantee that Grantor is the only owner of the fee
simple title to the Easement Areas and that there are no (i) owners or mortgages,
contracts for deed, leases, rental agreements, occupancy agreements, or (ii) any other
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191911v2
encumbrances or verbal or written agreement of any nature whatsoever affecting title to
the Easement Areas except matters of record. Grantor, on behalf of itself, its successors
and assigns, hereby indemnifies and holds harmless Grantee against and from any and all
claims for loss damage, or expenses which may be incurred by Grantee based upon any
claim from a party whose consent was required (but was not obtained) for this Grant of
Easement.
6. Any modifications of this Grant of Easement or additional obligation assumed by either
party in connection with this Grant of Easement shall be binding only if evidenced in
writing signed by each party or an authorized representative of each party
7. It is agreed that this Grant of Easement shall be governed by, construed, and enforced in
accordance with the laws of the State of Minnesota.
[Signature Continued on Next Page]
[Signature Page to City Utility and Drainage Easement]
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191911v2
IN WITNESS WHEREOF, the Grantor has caused this agreement to be executed as of
the date and year first above written.
PIPE PORTFOLIO OWNER (MULTI) LP,
A DELAWARE LIMITED PARTNERSHIP
By: PIPE PORTFOLIO GP LLC,
a Delaware limited liability company, its
general partner
By: WPC HOLDCO LLC,
a Maryland limited liability company, its
sole member
By: W. P. CAREY INC.,
a Maryland corporation, its sole member
By: _________________________
Name:
Title:
STATE OF
_______________ }
}
}
ss
COUNTY OF
____________
The foregoing instrument was acknowledged before me this day of , 2016,
by ________________________, the __________________ of W. P. CAREY INC., a
Maryland corporation, as sole member of WPC HOLDCO LLC, a Maryland limited liability
company, as sole member of PIPE PORTFOLIO GP LLC, a Delaware limited liability
company, as general partner of PIPE PORTFOLIO OWNER (MULTI) LP, a Delaware
limited partnership.
Notary Public
This instrument drafted by:
BEST & FLANAGAN, P.L.L.P. (MVP)
60 South 6th Street, Suite 2700
Minneapolis, MN 55402
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is made this _________ day of
________________, 2017, by and between the CITY OF ELK RIVER, MINNESOTA, a
Minnesota municipal corporation (“Licensor”) and PIPE PORTFOLIO OWNER (MULTI)
LP, a Delaware limited partnership, its successors and assigns (“Licensee”).
RECITALS
A. Licensor is the owner of the property described on Exhibit A attached hereto and
located in the City of Elk River, County of Sherburne, State of Minnesota (the “Property”).
B. Licensee has requested Licensor to grant a license to Licensee to use that portion
of the Property designated as the “License Area” on Exhibit B attached hereto for the limited
purposes set forth in this Agreement.
C. The License Area is not presently needed by Licensor for public purposes, but
does contain certain public utilities to which Licensor requires 24 hours per day, 7 days per week
access.
D. Licensor agrees to grant to 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, its tenants, invitees, agents,
contractors, employees and guests, subject to the terms and conditions of this Agreement, a non-
exclusive license (the “License”) to use the License Area.
2. Term. The term of the License shall be for an unlimited period unless sooner
terminated as hereinafter provided.
3. 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.
2
4. Permitted Uses. The License Area may be used by Licensee and the other parties
permitted above solely for the purpose of traveling to and across the License Area, for parking
operable vehicles and for storing movable equipment and storage containers. Under no
circumstances, at any time, shall Licensee place any 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. Licensor, its officers, employees and agents, shall have the
right to enter the License Area at all times. 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 its 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 on the Property and in
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 acknowledges that the License Area is in good order,
condition and repair, and 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
as necessary, in a similar condition that the License Area is in on the date hereof, and not commit
any nuisance or waste on the License Area.
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 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. The foregoing
indemnification does not apply to any liability, cause of action, expense or cost suffered or
incurred by Licensor as a result of the gross negligence or willful misconduct of Licensor, its
officers, employees, agents, contractors and attorneys.
8. Environmental Compliance. Licensee covenants, represents and warrants to
Licensor: (i) that it will not use or permit the License Area to be used, whether directly or
through contractors, agents or tenants, for the generating, transporting, treating, storage,
manufacture, emission of, or disposal of any Hazardous Materials as hereafter defined; (ii) that
there have been no investigations or reports involving Licensee by any governmental authority
which in any way pertain to Hazardous Materials relating to the License Area; and (iii) that its
operations on the License Area will not violate any federal, state or local law, regulation,
ordinance or requirement governing Hazardous Materials. Hazardous Materials are defined as
3
any dangerous, toxic or hazardous pollutants, chemicals, waste, polychlorinated biphenyls,
asbestos, formaldehyde, petroleum, including crude oil or any fraction thereof, natural gas,
natural gas liquids, liquefied natural gas, synthetic gas usable for fuel or mixtures thereof or
substances as defined in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq., or the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. 6901, et seq., or the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. 1801, et seq., or the Minnesota Environmental
Response and Liability Act, as amended, Minn. Stat. Ch. 115B, or any other federal, state or
local environmental laws, statutes, regulations, requirements or ordinances.
9. Compliance with Laws. Licensee shall not commit or permit any act to be
performed on the License Area or omission to occur with will be in violation of any statute,
regulation or ordinance of any governmental body or which will be in violation of any insurance
policy carried on the License Area by Licensor.
10. 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.
11. Assignability. This Agreement, and the License herein granted, may not be
assigned or transferred to any third party by Licensee without the prior written approval of
Licensor and shall automatically terminate if any effort is made to assign it without written
approval.
12. 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 of Licensee’s property from the License Area and return the License Area to its
4
existing condition by the effective date of a termination, or within 24 hours of notice of an
immediate termination.
13. Miscellaneous Provisions.
a. Entire Agreement. This Agreement and the exhibits attached hereto
embody the entire understanding between the parties and supersede all prior
understandings and agreements related to the subject matter. This License cannot be
amended, altered or modified, and no provisions can be waived, except by a written
instrument executed by the party affected.
b. Benefit. This Agreement shall bind and inure to the benefit of the parties
and their respective successors and permitted assigns.
c. No Waiver. No waiver of any breach or 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.
d. 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
with a copy to: General Manager
Elk River Municipal Utilities
13069 Orono Parkway
Elk River, MN 55330
Licensee: c/o W. P. Carey Inc.
50 Rockefeller Plaza
New York, NY 10020
Attn: Asset Management Department
with a copy to: W. P. Carey Inc.
50 Rockefeller Plaza
New York, NY 10020
Attn: Legal Transactions Department
Either party may, by such notice, designate a new or other address to which notice may
be mailed.
e. Heading and Captions. The headings and captions of the paragraphs and
subparagraphs of this Agreement are inserted for convenience and reference only and
5
shall not constitute a part of this Agreement or a limitation on the scope of any paragraph
or subparagraph.
f. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable under any
applicable law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction without
invalidating the remainder of this Agreement in such jurisdiction or any provision hereof
in any other jurisdiction.
g. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same document.
h. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date first written above.
S-1
LICENSOR:
CITY OF ELK RIVER
By:
Its: Mayor
By:
Its: City Clerk
STATE OF _____________ )
) SS
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ____ day of __________,
2017, by ______________________, its Mayor and _________________________ its City
Manager for the CITY OF ELK RIVER, a Minnesota municipal corporation, on behalf of the
corporation.
Notary Public
S-2
LICENSEE:
PIPE PORTFOLIO OWNER (MULTI) LP,
a Delaware limited partnership
By: PIPE PORTFOLIO GP LLC,
a Delaware limited liability company,
its general partner
By: WPC HOLDCO LLC,
a Maryland limited liability company,
its sole member
By: W. P. CAREY INC.,
a Maryland corporation,
its sole member
By:
Name:
Title:
STATE OF ____________ )
) SS
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ____ day of __________,
2017, by _____________________, the __________________ of W. P. CAREY INC., a
Maryland corporation, as sole member of WPC HOLDCO LLC, a Maryland limited liability
company, as sole member of PIPE PORTFOLIO GP LLC, a Delaware limited liability
company, as general partner of PIPE PORTFOLIO OWNER (MULTI) LP, a Delaware
limited partnership.
Notary Public
Drafted by:
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
A-1
EXHIBIT A
Description of Licensor’s Property
THAT PART OF LOT 8, AUDITOR’S SUBDIVISION NO. 3, IN THE
VILLAGE OF ELK RIVER, SHERBURNE COUNTY, MINNESOTA LYING
NORTHERLY OF A LINE COMMENCING AT A POINT ON THE WEST
LINE OF LOT 8, 360 FEET DISTANT NORTH OF THE IRON PIPE AT THE
SOUTHWEST CORNER OF LOT 8; THENCE EASTERLY AND PARALLEL
WITH THE SOUTH LINE OF SAID LOT 8 TO THE BURLINGTON
NORTHERN SANTE FE RAILWAY (FORMERLY THE GREAT NORTHERN
RAILROAD) RIGHT OF WAY AND THERE TERMINATING; AND WEST
OF A LINE RUNNING PARALLEL WITH AND 240 FEET DISTANT EAST
OF THE WEST LINE OF SAID LOT 8.
(Sherburne County PID 75-402-0082).
B-1
EXHIBIT B
Description of the License Area
A license for parking purposes over, under, and across that part of Lot 8, AUDITOR'S
SUBDIVISION NO. 3, more particularly described as follows:
That part of said Lot 8 lying Southwesterly of the BNSF Railroad southwesterly right of way line
and North of the South 672.6 feet.
AND
The North 130 feet of the South 490 feet of the West 240 feet of said Lot 8.
Contains 57,022 square feet, more or less.
240
B
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240
PARKING EASEMENT
PARKING EASEMENT
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WEST LINE, LOT 8EAST LINE, LOT 11NORTH LINE OF SOUTH
672.6 FEET OF LOT 8
130130EAST LINE OF THEWEST 240 FEET, LOT 8Parking Easement for: Sidley Austin LLP
Location: City of Elk River, Sherburne County, Minnesota
I hereby certify that this survey, plan, or report
was prepared by me or under my direct
supervision and that I am a duly Licensed Land
Surveyor under the laws of the State of Minnesota.
Christina M. Hopp Lic. No. 46173
Date:
0 12060
N
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S
W
Legend
- Denotes Parking Easement
SOUTHWEST CORNER, LOT 8
360Description of Parking Easement:
An easement for parking purposes over, under, and across that part of Lot 8, AUDITOR'S SUBDIVISION NO. 3,
more particularly described as follows:
That part of said Lot 8 lying Southwesterly of the BNSF Railroad southwesterly right of way line and North of the
South 672.6 feet.
AND
The North 130 feet of the South 490 feet of the West 240 feet of said Lot 8.
Contains 57,022 square feet, more or less.
SOUTH LINE, LOT 8490 672.64285 Lexington Ave. N., St. Paul, Minnesota 55126
Phone: 651.415.3800 Fax: 651.415.2001
Bismarck Cedar Rapids Denver Detroit Lakes Fargo
Minot Sioux Falls St. Paul Williston
Web: www.ulteig.com
Ulteig Job Number: 16.01410
Section: 33 Township: 33N Range: 26W, 4th P.M.
County: Sherburne
Sheet 1 of 1
PRELIMINARY