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HomeMy WebLinkAbout(5c) MN Dot ROW Permitrrri° rjF i+r .Ir~~I~H Council Agenda Item) C MEETING DATE: November 20, 2008 AGENDA ITEM: MnDot ROW Lease SUBMITTED BY: City Engineer BOARD/COMMISSION/COMMITTEE RECOMMENDATION: PREVIOUS COUNCIL ACTION: When the City was seeking permits for the installation of infrastructure for the lights on CR 75 and Northland Drive, MnDot discovered that the City had an open permit as it related to the water main extension near the water tower. At that time the City requested approval to install a water main in the Rail ROW and requested a permit for such. At that there was some confusion as to whether the City needed to pay an annual lease or just secure a permit. The City Engineer at that time submitted correspondence that based on his understanding the City did not need to enter into along term lease for the water line installation. This matter was brought to the Council's attention in 2007 and the staff has been working with MnDot to see if there is excess ROW that the City can purchase rather than pay a lease at $ 2,900 per year for 20 years. Randy Sabart has met with representatives of MnDot and visually went to the site to measure and resolve the situation. MnDot must maintain 100' from the center line of the rail - it use to be 50' until recently. The actual pipe Vies within 50' so there is no excess to purchase. The City has no choice but enter into the lease agreement. As a compromise MnDot has agreed to date the lease to the current date and not charge the back payments, penalty and interest. BUDGET/FISCAL IMPACT: $ 2,900 per year -Water Fund Obligation ATTACHMENTS: MnDot Lease Agreement REQUESTED COUNCIL ACTION: Authorize the Mayor and Administrator to execute the lease agreement between Mndot and the City of St. Joseph providing fora 20 year lease agreement with the fee based on the approved Mndot fee schedule. Minnesota Department of Transportation Office of Freight & Commercial Vehicle Operations 395 John Ireland Blvd. St. Paul, Mn 55155 S.P. 7300-405 Lease No. Parcel 200 H- 6000 STATE RAIL BANK PARALLEL UTILITY LEASE THIS LEASE is by and between the State of Minnesota, Department of Transportation, (Mn/DOT), and the City of St. Joseph (Tenant). IT IS AGREED: 1. In consideration of the payment of the rent hereinafter specified to be paid by Tenant, and the covenants and agreements herein contained, Mn/DOT hereby leases to Tenant certain property (hereinafter the "Property"), in the County of Stearns, State of Minnesota, described as follows: • Type of Property: Legal Description: Between Survey Station 130+00 and Survey Station 101+00 with a total of 2900 linear feet. of Sec. 10 , T. 124 N., R. 29 W., th P.M., including improvements, if any, as shown outlined in red on the attached EXHIBIT which is made a part hereof, for a twenty (20) year period, from August 15, 2008 through August 14, 2028, with the right of termination in both Mn/DOT and Tenant as hereinafter set forth. Upon written request of the Tenant and approval by Mn/DOT, this lease may be renewed for additional twenty (20) year period after the ending date, Mn/DOT reserves the right, in its sole discretion, not to renew this lease. Tenant's written request to renew the lease must be mailed to Mn/DOT at the above address not less than thirty (30) days before the ending date of the current lease period. 2. RENT. Tenant will pay annually to Mn/DOT, in advance, the sum of $2,900.00 per year for the first five (5) year interval and as adjusted for each subsequent five (5) year interval that this lease remains in effect, as rent for the Property, and will also pay all taxes and assessments that may be levied or assessed against any improvements made to the Property by the Tenant. Make checks payable to: COMMISSIONER OF TRANSPORTATION 3. RENT ADJUSTMENT. Mn/DOT reserves the right to adjust the five (5) year rental amount at any time while this lease remains in effect upon thirty (30) days' written notice to the Tenant. EACH FIVE YEAR TERM ANNUAL RATE-URBAN ANNUAL RATE-RURAL 0-5 $1.00/per Lin/Ft/ per Year $.50/ per Lin Ft/ per Year 6-10 $1.50/ per Lin Ft/ per Year $.75/ per Lin Ft/ per year 11-20 $2.00/per Lin Ft/ per Year $1.00/ per Lin Ft/ per year This schedule is subject to change after the initial 20 year lease period. 4. USE OF PROPERTY. Tenant will use the Property for the following purpose only: Installation and maintenance of a buried system placed PARALLEL in the outermost five (5) feet of the Rail Bank right of way which includes; two (2) water main pipes at the depth of 16 inch DI water main. Tenant must contact the Mn/DOT Permit Office in St. Cloud (320)255-4176, regarding any major work /repair that will be conducted anytime within the Rail Bank right of way. A copy of the plans must be submitted to the Mn/DOT Permit Office showing manhole locations and the entry and exit points of the buried system parallel and across Rail Bank property and a copy of the plans must be submitted along with this signed lease agreement. It will be the sole responsibility of Tenant to comply with all laws, regulations, or ordinances imposed by any jurisdiction governing the use of the Property. Failure to comply will not relieve Tenant of the obligation to pay rent. Tenant's use of the Property must not interfere with the public's use of any adjacent highway or State Rail Bank property. 5. MAINTENANCE AND REPAIRS. Tenant will keep the Property in good condition at Tenant's own expense and will not call on Mn/DOT to make any improvements or repairs. Contact the Permit Office listed in #4 (Use of Property) above regarding any work other than routine maintenance that requires excavation. 6. ASSIGNMENT AND SUBLETTING. Tenant will not assign this lease or sublet the Property, in whole or in part, without the written consent of Mn/DOT. 7. NOTICES. All notices herein provided to be given, or which may be given, by either party to the other, will be deemed to have been fully given when served personally on Mn/DOT or Tenant or when made in writing addressed as follows: to Tenant at the mailing address above stated and to Mn/DOT at the leasehead address. The address to which notices are mailed may be changed by written notice given by either party to the other. 8. CANCELLATION. This lease will be subject to cancellation by either party at any time for any reason during the term hereof by giving the other party notice in writing at least 30 days prior to the date when the cancellation is to become effective. Furthermore, this lease will be subject to cancellation by Mn/DOT if the Property is needed for transportation purposes (as determined solely by Mn/DOT) by giving Tenant notice in writing at least 30 days prior to the date when the cancellation is to become effective. In the event of cancellation any unearned rent paid by Tenant will be returned. 9. INDEMNIFICATION AND RELEASE. Tenant will defend, indemnify, save harmless, and release Mn/DOT and Mn/DOT's employees from and against all claims, demands, and causes of action for 2 injury to or death of persons or loss of or damage to property (including Tenant and Tenant's property) occurring on the Premises or connected with Tenant's use and occupancy of the Property, regardless of whether such injury, death, loss or damage is caused in part by the negligence of Mn/DOT or is deemed to be the responsibility of Mn/DOT because of its failure to supervise, inspect or control the operations of Tenant or otherwise discover or prevent actions or operations of Tenant giving rise to liability to any person. 10. LIABILITY INSURANCE. Before the execution of this lease by Mn/DOT, Tenant will provide Mn/DOT with a properly executed Certificate(s) of insurance that clearly shows the coverage required below, and which provides that such insurance will not be cancelled except on 30 day's prior written notice to Mn/DOT. a. Tenant will maintain, during the full term of this lease, commercial general liability insurance, or equivalent form, with coverage that is consistent with the risk involved with the performance of this lease, with a limit of not less than $1,000,000 each occurrence. If such insurance contains a general aggregate limit, it will apply separately to this lease. 11. RIGHT TO ENTER. Tenant will allow Mn/DOT and Mn/DOT's contractors and authorized licensees to enter upon the Property for any of the following purposes: to survey the land, to take soil borings, to perform utility relocation or repair work, to perform any other work which is preparatory to a transportation construction project, or to make emergency repairs required for corridor safety. If there is a highway bridge above any part of the Property, Tenant will allow Mn/DOT to enter upon the Property to inspect, maintain, and repair the bridge and its structural supports. If any of these operations substantially restrict the Tenant's use of the Property, rent will be reduced proportional to the restricted use of the Property during the period of the restricted use. The reduction (or abatement) of rent will be Tenant's only claim against Mn/DOT based on such restriction of use. 12. ADJACENT CORRIDOR FACILITY/ ACCESS FOR MAINTENACNE AND REPAIRS. Tenant will not permit the storage of any substance or material on the Property, which may create a fire hazard to an adjacent corridor facility (including any overhead bridge and its structural supports). If Mn/DOT determines that Tenant is using the Property in such a way as to create a danger to the adjacent corridor facility or the traveling public thereon, and if, upon receiving notice, Tenant does not immediately remedy the danger to the satisfaction of Mn/DOT, then Mn/DOT may immediately cancel this lease and take possession of the Property. Any requirement for giving notice of cancellation set out elsewhere in this lease will not apply to cancellation under this paragraph. Unearned rent paid by Tenant will be returned. The Tenant will not open, block or otherwise disturb the surface facilities above the property without the approval of Mn/DOT, except in the case of emergency. In the case of an emergency, the Tenant will use its best efforts to minimize disruption to the surface facilities and will not leave the surface facilities blocked longer than necessary to conduct the necessary repairs to its own facilities and the surface facility. If the Tenant disturbs the surface facilities, for any reason, it will be responsible for repairing the surface to at least as good a condition as existed before such disruption. 13. CIVIL RIGHTS ACT. Tenant will not discriminate on the grounds of race, color, sex, or national origin against any person in access to and use of the facilities and services operated or otherwise maintained on the Property; and Tenant will operate and maintain such facilities and services in compliance with Title VI of the Civil Rights Act of 1964, and Title 49, Code of Federal Regulations, Part 21. 14. DEFAULT BY TENANT - MN/DOT'S REMEDIES. The following occurrences are "events of default": (a) Tenant defaults in the due and punctual payment of rent, and such default continues for five (5) days after notice from Lessor; however, Tenant will not be entitled to more than one 3 notice for default in payment of rent during any rental period, and if, within the rental period after any such notice, any rent is not paid when due, an event of default will have occurred without further notice. (b) Tenant breaches any of the other agreements, terms, covenants, or conditions which this lease requires Tenant to perform, and such breach continues for a period of thirty (30) days after notice by Mn/DOT to Tenant. At any time after the occurrence of either of the above events of default, Mn/DOT may immediately terminate this lease upon giving written notice to Tenant and may then re-enter and take possession of the Property in such manner as allowed or provided by law. Tenant will pay Mn/DOT all costs and expenses, including attorney's fees, in any successful action brought by Mn/DOT to recover unpaid rent, or to recover damages for breach of any of the other covenants, agreements, terms, or conditions which this lease requires Tenant to perform, or to recover possession of the Property. 15. HOLDING OVER. If Tenant remains in possession of the Property after the end of this lease with the consent of Mn/DOT, express or implied, Tenant will occupy the Property as a Tenant from month to month, subject to all conditions, provisions, and obligations of this lease in effect on the last day of the term. 16. MOVING OUT. At the expiration or sooner termination of this lease, Tenant will leave the Property in as good condition as when delivered to Tenant. 17. SALE OF PROPERTY. If Mn/DOT sells the Property, Mn/DOT's liability for the performance of its covenants under this lease will end on the date of the sale, and Tenant will look solely to the purchaser for the performance of those covenants. 18. ADDITIONAL AGREEMENTS. This document is a lease only. It does not constitute or convey to the Tenant an easement or other ownership interest in the property. The Tenant will not be considered a displaced person at the expiration or termination of this lease, and will not be eligible for any property holder or utility relocation expenses. 19. ENTIRE AGREEMENT. This lease contains the entire agreement between Mn/DOT and Tenant with respect to its subject matter and may be amended only by subsequent written agreement between them. Except for those which are set forth in this lease, no representations, warranties, or agreements have been made by Mn/DOT or Tenant to one another with respect to this lease. TENANT(S): Mn/DOT: ay: Date: STATE OF MINNESOTA DEPARTMENT OF TRANSPORTATION COMMISSIONER OF TRANSPORTATION By: Director Office of Land Management 4 Date: By: STATE OF MINNESOTA ) ss. COUNTY OF ) Date: Approved as to form and execution OFFICE OF CONTRACT MANAGEMENT Date: By: