HomeMy WebLinkAbout2012-09-25 CC Meeting Packet Enclosure ' r Enclosure 11
Oak Park Heights
Request for Council Action
Meeting Date September 25` 2012
Time Required: 10 Minutes
Agenda Item Title: St Croix River Crossing — Parking Lot
Agenda Placement New Business
Originating Department/Req tor E.:. Johnson Cit Administrator
Requester's Signature
r
Action Requested See Below/
Background /Justification (Please indicate if any previous action has been taken or if other public
bodies have advised):
Please see the attached:
1. Memo from Eric Johnson, dated 9/21/12
2. Withdrawal letter from Xcel Energy
3. Letter from Jon Chiglo, MNDOT dated 9/20/12
4. Scott Richards Planning report dated 9/6/12
5. Xcel / OPH License Agreement -- Signed June 21 2012
Page 101 of 128
City of Oak Park Heights
14168 Oak Park Blvd. N • Box 2007 • Oak Park Heights, MN 55082 • Phone (651) 439 -4439 • Fax (651) 439 -0574
September 21, 2012
MEMO
TO: City Council Members
FROM: Eric Johnson, City Admini or
RE: St. Croix River Crossing — Par ' g Lot / CUP
This item was scheduled to be discusse s a CUP Amendment for the Fly -Ash Site by the
Planning Commission on September 13 2012 and then brought before the City Council on
Sept 25th. That afternoon, Xcel Energy contacted the City asking for a continuance of this
matter until October 2012 so to allow the new A.S. King Plant Manager an opportunity to be
brought up to speed on the Project. The Planning Commission did concur to allow a
continuance until October.
Subsequently, the City received a letter from Xcel Energy (enclosed) in which they have asked
to withdraw the application in total. As of today (Friday 9/21/12) I have no official
communication from Xcel Energy as to what the situation or concern may be. UNOFFICAL
discussions with MNDOT seem to indicate that Xcel Energy believes that the City is vested to
issue a permit to MNDOT for the parking lot without the CUP as the site control falls under the
City's License Agreement.
Of course MNDOT is interested in pursuing this matter in a timely fashion so that it may
construct the parking lot as proposed; please see the enclosed letter from Mr. Jon Chiglo.
Unfortunately, the City cannot unilaterally proceed as may be indicated by Xcel Energy as there
are several points the License Agreement that would limit City authority, thus the City required
the CUP process and the parking lot would be a matter of discussion for Xcel, MNDOT and Phil's
Tara to figure out. To date, the City Council has indicated it did not want to control or maintain
this lot in total, rather only 20 parking spaces.
Page 102 of 128
The City's use Permit with Xcel Energy cites the following items:
Section 1 - Grant of Right of Entry is "NON - Exclusive" to the City, meaning Xcel could presumably do
other things with the site. In other words, the City does not have full control of the property to grant
authorities to Phil Tara's
Section 3a - Requires the City to use the property for "traditional park purposes ", a parking lot for a
private entity is likely not such criteria
Section 3g - This section states that the City may not in "any manner or form" inconsistent with
allowed use of the property (Traditional park purposes). By doing so, the City would be in violation of
the permit.
Section 19- This section states that the City may not delegate "rights, duties or obligations" and which
under this agreement would immediately void the permit. Considering this, how could the City
delegate anything to Phil Tara's? That would need to come from Xcel.
Section 20 - This section, in the last sentence clarifies that the City did not release this property
(Xcel) from other zoning, land -use, etc. over this property as a result of this license. In short, Xcel needs
to get a CUP for this if the City desired such action.
Discussion / Action Items:
1. MNDOT is requesting permission from the City to build the Parking lot without the need
for a CUP Amendment; this is an action the City Council may grant as the City has
contemplated a parking lot in this area for a number of years. However, it does not solve
the following two issues:
a. The City to date has not stated that it has an interest in operating or maintaining a
parking lot that will substantially benefit a private entity and which is the primary
reason for its construction. Has that changed?
b. The resolution of the CUP matter does not resolve the concerns with the City's Permit
with Xcel Energy, Xcel Energy should provide the City a waiver from certain
elements of the use Permit so that if the City does desire to assume full responsibility
of this parking lot that it would not be a violation of the City Use Permit with Xcel
Energy.
NOTE:1 have a meeting scheduled for Monday, Sept 24 with Xcel and MNDOT representatives to discuss this matter in
more detail. Hopefully more information will be attained for your review and consideration. 1 would lastly state that if I
have erred in an interpretation from MNDOT or Xcel Energy it is likely due to a lack of deep information at this point, as
more information arises I will make any necessary corrections.
Page 103 of 128
Xcel Energy Company
.Xcel Energy- Xcel Energy, A. S. King Plant
1103 King Plant Road
Bayport, Minnesota 55003
Telephone: (651) 731 -5730
Facsimile: (651) 731 -7337
September 14, 2012
Mr. Eric Johnson, City Administrator
City of Oak Park Heights
14168 Oak Park Boulevard
P.O. Box 2007
Stillwater, MN 55082
Re: City /Phil's Club Tara Parking Lot at A.S. King Fly Ash Disposal Site
South of Highway 36, West of Beach Road and Southeast of Phil's Club Tara
Conditional Use Permit Amendment
Your File: 798.02 —12.07
Dear Mr. Johnson:
Xcel Energy hereby withdraws its application for a Conditional Use Permit
amendment to allow construction of a parking lot at the A.S. King Fly Ash Disposal
Site. Please return to the undersigned the balance of the escrowed funds that the
City is currently holding in connection with the above - referenced CUP application.
Very truly yours,
l
Jim Zyduck
Director, A. S. King Plant
cc: file
5228313_1.DOC
Page 104 of 128
v ``" E v
rr Department of
395 John Ireland Boulevard
,,. , <' Saint Paul MN 55155
•
September 20, 2012 •
Eric Johnson, City Administrator
•
City of Oak Park Heights
14168 Oak Park Blvd.
•
•
Oak Park Heights, MN 55082
•
•
•
RE: St Croix Crossing Project — Club Tara Parking lot
Dear Mr. Johnson:
•
MnDOT has advertised for and is planning to open bids for the construction of the Club Tara and
City of Oak Park Heights parking lot on Friday, September 20, 2013. There have been several
recent conversations with Xcel, Oak Park Heights, Club Tara, and MnDOT concerning the
construction of the lot. I believe all parties want to see the lot constructed, and once constructed,
the parking lot will be beneficial to the city. However, to move forward in constructing this parking
lot, time is of the essence.
I offer the following possible solution and request the City and Xcel allow this parking lot
construction to move forward and start this fall:
City and Xcel acknowledge that the construction of the parking lot is consistent with the
City of Oak Park Heights / Xcel Energy (Northern State Power Company) License
Agreement — dated June 21, 2012.
9 City and Xcel Energy co -sign the attached MnDOT "permit to construct" to allow MnDOT
and its contractor access to the property for construction of the lot.
If this approach is not feasible, MnDOT would request assistance from the city in identifying
options to accommodate the current parking lot construction schedule.
In addition, MnDOT requests time on the council agenda for Tuesday, September 25, 2012 to
discuss this matter with the council and allow for council action. Thank you for your assistance
with this issue.
Since ely,
1 1J 1
JonlChiglo \ )
Proi Director
An Equal Opportunity Employer
441 etb 4 4 ;"
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PLANNING REPORT
TO: Eric Johnson
FROM: Scott Richards
DATE: September 6, 2012
RE: Oak Park Heights — City /Phil's Club Tara Parking Lot at A.S. King
Fly Ash Disposal Site — South of Highway 36, West of Beach Road
and Southeast of Phil's Club Tara - Conditional Use Permit
FILE NO: 798.02 —12.07
BACKGROUND ,
Tom Smith, representing Xcel Energy has made application for a Conditional Use
Permit (CUP) to allow construction of a parking lot at the A.S. King Fly Ash Disposal site
as part of the park area redevelopment. The parking lot would serve Phil's Club Tara as
well as the west side of the park on the Fly Ash Disposal site. The lot would be
constructed by the Minnesota Department of Transportation (MN DOT) and completed
in 2013. In that the south frontage road construction of Highway 36 impacts the current
parking for Phil's Club Tara, MN DOT has agreed to construct the lot on the Xcel
Energy property. The lot has been sized to also accommodate the needs of the City
related to the development of the park in this area.
Attached for reference:
Exhibit 1: Project Narrative
Exhibit 2: Cover Sheet (Page 1)
Exhibit 3: In Place Topography and Utility Plan (Sheet 12)
Exhibit 4: Construction Plan (Sheet 13)
Exhibit 5: Construction Details (Sheet 14)
Exhibit 6: Turf Establishment and Drainage Plan (Sheet 17)
Exhibit 7; Signing and Pavement Marking Detail (Sheet PM2)
Exhibit 8: Lighting Quantities (Sheet SL1)
Exhibit 9: Lighting Details (Sheet SL2)
Exhibit 10: Lighting Details (Sheet .SL4)
Exhibit 11: Lighting Plan (Sheet SL 5)
Page 107 of 128
Exhibit 12: Moelter /Xcel Site Park Plan
Exhibit 13: Existing Site Pictures (8 pictures)
ISSUES ANALYSIS
Project Description. The description of the parking lot project from the applicant is as
follows:
Background: Xcel Energy is the owner of the property located in the southwest
quadrant of the Highway 36 and Beach Road intersection (here -on referred to as the
property). The property is an inactive ash landfill that is permanently capped and
closed. A long -term license agreement was executed between the City of Oak Park
Heights and Xcel Energy that allows the City access to the property for use as a public
park and additional green space. While designing the park, the City identified the need
for a parking lot to be constructed east of Phil's Tara Hideaway to provide the public
access to the park.
In addition, the Minnesota Department of Transportation (MN DOT) plans to construct a
new frontage road on the south side of Highway 36 adjacent to the property as part of
the St. Croix River Bridge Project. The new frontage road will impact Phil's Tara
Hideaway's current parking arrangements. In order to mitigate this impact, MN DOT
identified the need to construct a parking lot for Phil's Tara Hideaway on Xcel property.
Merging the two parking lot plans together, MN DOT plans to construct on parking lot on
Xcel Energy property that will be used for both public parking (for park access) and
private parking (for Phil's Tara Hideaway customers).
Parking Lot Design: The parking lot will be positioned east of Phil's Tara Hideaway
and south of the future frontage road. The lot will have 71 parking stalls, one with a van
accessible handicap parking stall. An eight foot wide concrete walkway will be
constructed from the parking lot to Phil's Tara Hideaway. Entrance to the lot will be on
the north east corner of the parking lot. A 10 foot curb drop will be built on the south
east side of the parking lot to provide a tie in to a future trail system. Refer to enclosed
drawings for complete parking lot design, lighting plan, and storm water drainage plan.
Need for Conditional Use Permit: Given the fact that Xcel Energy is owner of the
property that the proposed parking lot will be located on, Xcel Energy is submitting this
application to amend the Conditional Use Permit to allow for use of the land as a
parking lot for public and private parking.
Comprehensive Plan. The Comprehensive Plan designates this area as Park
Facilities /Open Space. The parking lot will serve the park as well as Phil's Club Tara.
The proposed use is consistent with the Comprehensive Plan, the Park and Trail Plan
and the recently adopted Moelter /Xcel Park Plan for this area.
2
Page 108 of 128
Zoning Ordinance. The property is zoned I Industrial District in which governmental
structures and facilities such as the park are a permitted use. Parking Tots are an
allowable accessory use in the district, but the proposed parking lot is an off site use for
a private business thus requiring a CUP.
The City may consider at a later date the rezoning of the property from I Industrial to P-1
Public - Institutional District. This is an issue for the Planning Commission to discuss at a
separate meeting.
Access. Access to the proposed parking lot will be from a temporary 20 foot access
road to be constructed from the roadway in front of Phil's Club Tara and extending into
the parking lot. The access roadway would be replaced by the south frontage roadway
when it is constructed as part of the St Croix River Bridge project.
Parking. The proposed lot is 71 parking stalls, one of which is disability accessible.
The disability stalls for Phil's Club Tara are already adjacent to the building. The one
accessible stall in the parking lot will be available for park users. Of the 71 spaces, 20
will be dedicated to the City for park use. They will be located at the south and east
ends of the parking lot. The stalls should be signed indicating that they are for park use
only.
The plans indicate that the lot is to be constructed with a bituminous curb on the east
side to allow for future expansion of the lot. The City is satisfied that the 71 parking
stalls proposed for Phil's Club Tara and the park will satisfy the demand. The City's
park plan for this area indicated a 68 stall parking lot to address both users. As such,
the City will require the parking lot be constructed with all concrete curb and gutter.
Lighting. The lighting plans indicate the fixtures to be used and the locations. All of
the proposed fixtures will comply with the 25 foot maximum height requirement. The
diagrams show a slightly protruding lens below the shield on the fixtures. All of the
lights will be required to be full cut off with no lens below the shield.
The lighting plan shows that the lot and the walkway to Phil's Club Tara will be
adequately lit.
All lighting for the site shall be in compliance with the Zoning Ordinance and subject to
review and approval of City staff. In compliance with the Zoning Ordinance, all lighting
will need to be shut off one hour after closing at Phil's Club Tara.
Landscaping. The landscape plan indicates that the lot will be planted with a low
maintenance seed mixture, both surrounding the parking lot and within the lot island.
As part of the landscaping for the entire St. Croix Bridge and corridor project, additional
landscaping would be added at a later date, likely in 2015. At that time MN DOT will be
required to provide a plan for landscaping the lot subject to approval of the City. All
plantings will need to be in compliance with the limitations of the site in regards to the
landfill cap.
3
Page 109 of 128
Grading and Drainage. Any grading and drainage issues shall be addressed subject
to review and approval of the City Engineer and the Middle St Croix Water Management
Organization.
Design Guidelines. There are no structures proposed for the parking lot, thus Design
Guideline review is not required.
License Agreement. A license agreement between Phil's Club Tara and Xcel will be
required to address legal right of access, use and maintenance issues. The final
agreement shall be subject to review and approval of the City Attorney before it is put
into effect.
Conditional Use Permit. The construction of the parking lot is subject to a conditional
use permit. The Planning Commission must review the impacts of the proposed project
in making its recommendation. The conditional use permit criteria, found in Section
401.03.A.7 of the Zoning Ordinance, are found as follows:
1. Relationship to the specific policies and provisions of the municipal comprehensive plan.
2. The conformity with present and future land uses in the area.
3. The environmental issues and geographic area involved.
4. Whether the use will tend to or actually depreciate the area in which it is proposed.
5. The impact on character of the surrounding area.
6. The demonstrated need for such use.
7. Traffic generation by the use in relation to capabilities of streets serving the property.
8. The impact upon existing public services and facilities including parks, schools, streets,
and utilities, and the City's service capacity.
9. The proposed use's conformity with all performance standards contained herein (i.e.,
parking, loading, noise, etc.).
The construction of this parking lot is included in the existing park plans for the site.
The parking lot is needed both for Phil's Club Tara and for access to the new play
equipment, trails and future development within the Moelter /Xcel park area. There
should be no environmental issues, and no adverse impacts to the surrounding area or
to public services. The parking lot will be in conformity with all performance standards.
CONCLUSION AND RECOMMENDATION
Based upon the preceding review, City staff recommends approval of the CUP to allow
for the construction of a parking lot on the A.S. King Fly Ash Disposal site for the use of
Phil's Club Tara and the City of Oak Park Heights subject to the following conditions:
1. All of the 20 City designated parking stalls shall be signed indicating that they are
for park use only.
2. The parking lot shall be constructed with all concrete curb and gutter surrounding
the entire lot.
4
Page 110 of 128
3. All of the light fixtures shall be required to be full cut off with no lens protruding
below the shield. All lighting placed on the site shall be in compliance with the
Zoning Ordinance and is subject to review and approval of City staff.
4. All lighting shall be shut off one hour after closing at Phil's Club Tara.
5. MN DOT shall be required to provide a plan for landscaping the parking lot
subject to approval of the City. All plantings will need to be in compliance with
the limitations of the site in regards to the landfill cap.
6. Any grading and drainage issues shall be addressed subject to review and
approval of the City Engineer and the Middle St Croix Water Management
Organization.
7. The City will not require conformance with the Design Guidelines for the project.
8. A license agreement between Phil's Club Tara and Xcel will be required to
address legal right of access, use and maintenance issues. The final agreement
shall be subject to review and approval of the City Attorney before it is put into
effect.
Pc: Julie Hultman
5
Page 111 of 128
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, (the "Agreement ") dated effective the / day of
,, yr +� ' __ 201} is by and between NORTHERN STATES POWER COMPANY,
a Minnesota corporation, d/b /a Xcel Energy, at an address of 414 Nicollet Mall,
Minneapolis, MN 55401 (hereinafter referred to as "Licensor ") and the CITY OF OAK
PARK HEIGHTS, a municipal corporation, at an address of Pt ).1)( 2.1;c7 Sttiti...•:.lu. S S`c• r
(hereinafter referred to as "Licensee ").
WITNESSETH
WHEREAS, Licensee desires to use Licensor's property depicted on Exhibit A
(the "Property ") for various activities as described below; and
WHEREAS, Licensor is willing to permit Licensee the use of Licensor's property
on a non- exclusive basis, subject to the terms and conditions of this Agreement.
NOW, 'THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, Licensor and Licensee agree as follows:
Milm19 1. Grant of Right of Entry. Licensor hereby grants to Licensee the non - exclusive
right to enter upon and use the Property owned by Licensor. Such right of entry is
granted only during the time periods listed in this Agreement as set forth in Section 2
below, and only for the purposes set forth in Section 3 below.
2. Term. The term of this Agreement shall be from January 1, 2011 through
December 31, 2061, unless sooner terminated by Licensor. Licensor may terminate this
Agreement only if the Minnesota Pollution Control Agency (MPCA) or any other
regulatory agency requires Licensor to remove its fill material from the site; Licensor
must then provide Licensee with prior written notice, of Licensor's intent to terminate this
Agreement. If this License is not terminated by December 31, 2061, it shall automatically
renew for an additional 20 year period, subject to the foregoing termination provision.
3. Allowed Uses/Restrictions.
Use of Property:
some a) Licensee may use the Property for traditional public park purposes that do not
penetrate/disturb the surface. Any park structures shall be constructed on floating
concrete slabs or other non - permanent foundation systems that do not come
within one foot above the geornembrane /clay cap.
b) Licensee shall make no ground elevation changes to the Property or construct any
structure, trails, etc. without confirmation from Xcel Energy and the MPCA that
the cap functionality will not be impacted or that an amended closure plan has
been approved by the MPCA •
I
Page 112 of 128
c) The grant to Licensee under Paragraph 1 herein shall extend to Licensee's
employees, agents, independent contractors, subcontractors, volunteers, invitees,
and suppliers.
d) Licensee shall install signage on the Property to notify members of the public and
others of access restrictions, access hours, emergency contact information, park
identification and other items as set forth in this Agreement. The signage and non-
permanent shelter structures that do not come within one foot above the
geomembrane/clay cap. Licensee shall ensure all signage and any other items or
equipment that are located or installed on the Property by the Licensee for the
Permitted Use will be removed prior to the expiration or termination of the
Agreement.
e) Within the scope of parkland activities of the Licensee identified within its
comprehensive plan, the Licensee shall make reasonable efforts, consistent with
City Park management practices, to ensure the Property is kept free of rubbish,
waste, debris and kept in a neat, safe and orderly condition. Licensee shall also
ensure that the Property will be cleaned of any trash or debris and the Property and
the surrounding areas will be returned to Licensor in a cleaned and respectable
condition prior to the expiration or termination of the Agreement. Upon
expiration or termination of the Agreement, Licensee shall reasonably restore the
Property to its original condition by removing all above - ground structures, signage
and equipment. Surface improvements (e.g. trails, asphalt, etc.) can remain in
place.
t) Licensee may not store pesticides, herbicides, or any other chemicals or biological
agents ( "Agricultural Chemicals ") on the Property, or store any petroleum
products on the Property. Licensee shall use all Agricultural Chemicals according
to approved U. S. Government label instructions and properly dispose of all
Agricultural Chemical containers according to applicable government regulations.
Licensee may not dispose of any trash, chemicals or other substances on the
Property, and may not use any part of the Property for landfill purposes, but may
place refuse receptacles upon the property for public use.
Imiaosa
g) The Property shall not be used in any mariner or form inconsistent with the
allowed use of the Property stated herein or as may be permitted by subsequent
agreements.
h) Licensee shall use its best efforts to ensure that all vehicular traffic shall be
limited to existing roads on the Property. No motorized vehicles, recreational
vehicles, commercial vehicles or trailers shall be parked or stored on the Property
by Licensee or anyone else pursuant to this Agreement. No equipment shall be
stored on the Property by Licensee.
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Page 113 of 128
i) Licensee shall bear the entire cost associated with its Permitted Use and securing
MPCA approval, if required, for SW -54 Closure Plan modifications; Licensor's
contributions to this effort will be limited to the resources of Licensor's staff.
j) Licensor shall bear the cost of closed landfill inspections and maintaining the non-
park areas identified in Attachment A.
k) Licensor and the Minnesota Pollution Control Agency (MPCA) reserve the right
to approve or deny proposed plan(s) and construction drawing(s) for the Permitted
Use. Licensor and the MPCA reserve the right to request modifications to the
plan(s) and drawing(s) when it is necessary to protect the Property.
1) Licensee shall use its best effbrts to ensure that there shall be no overnight parking
or camping on the Property.
4. Insurance. Licensee shall be utilizing this Property for the purposes of a public
park. Throughout the term and any extension term hereof, the Licensee shall extend and
maintain its insurance coverage for Licensee's operations as to the Property, currently in
the amount of One Million and Five Hundred Thousand Dollars ($1,500,000.00
aggregate) and will name Licensor as an additional insured, which coverage shall be
evidenced by a Certificate of Insurance provided to Licensor prior to access to and
occupation of the Property and annually thereafter. In the event the Minnesota
Legislature amends Minnesota Statutes Chapter 466 to increase the statutory limits as set
forth therein, the Licensee shall increase the insurance limits accordingly. In addition,
Licensee shall maintain workers' compensation coverage at statutory limits.
5. Compliance with Laws, Rules & Regulations. At its sole cost and expense,
Licensee shall give all necessary notices and obtain all required permits, licenses,
authorizations and approvals and shall comply and ensure that all of its employees,
agents, independent contractors, subcontractors, suppliers, invitees and representatives
comply with all applicable federal, state and local laws, ordinances, governmental rules
and regulations relative to the operations under this Agreement, including those relating
to the preservation of the public health and safety, employment laws, environmental laws,
zoning, ordinances, rules and regulations and those within the Occupational Safety and
Hazard Act (OSHA). Licensee shall be liable for any fines or assessments levied
thereunder against licensee resulting from its acts or omissions hereunder.
6. Safety. Licensee shall identify hazardous and potentially hazardous areas on or
about the Property and shall inform its employees, independent contractors,
subcontractors, suppliers, invitees and representatives and members of the public so as to
safeguard against any and all hazards or other safety risks.
7. Costs. Licensee shall timely pay all fees, taxes, wages, salaries and other charges
and expenses in any manner associated with this Agreement.
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Page 114 of 128
8. Security. Licensee shall provide all reasonable security it deems necessary to
protect the Licensee's permitted uses. Licensor shall have no liability, except due to
Licensor's gross negligence or willful misconduct, for any injury, loss or damage arising
out of Licensee's failure to properly provide such security.
9. Partnership or Joint Venture. Nothing in this Agreement shall be interpreted or
construed as a partnership or joint venture between Licensor and Licensee concerning
Licensee's operations on the Property.
10. Licensee to Indemnify.
(a) (i) As used in this License, the term "Claims" means (1) losses, liabilities,
and expenses of any sort, including attorneys' fees; (2) fines and penalties;
(3) environmental costs, including, but not limited to, investigation,
removal, remedial, and restoration costs, and consultant and other fees and
expenses; and (4) any and all other costs or expenses.
(ii) As used in this License, the term "Injury" means (1) death, personal
injury, or property damage; (2) loss of profits or other economic injury; (3)
disease or actual or threatened health effect; and (4) actual damages.
(b) Licensee covenants and agrees to at all times protect, indemnify, hold harmless,
and defend the Licensor, its directors, officers, agents, employees, successors,
assigns, parents, subsidiaries, and affiliates from and against any and all Claims
arising from, alleged to arise from, or related to any Injury actually occurring, as a
result of or arising from, the Licensee's uses of the Property as set forth herein or
related to;
(i) this License; or
(ii) the Licensee's or any other person's presence at the Property as a result
of or related to this License.
(c) The Licensee's duty to protect, indemnify, hold harmless, and defend hereunder
shall apply to any and all Claims and Injury arising from the Licensee's uses of the
Property, including, but not limited to:
(i) Claims asserted by any person or entity, including, but not limited to,
employees of the Licensee or its contractors, subcontractors, or their
employees;
(ii) Claims arising from, or alleged to be arising in any way front, the
existence at or near the Property of (1) asbestos or asbestos containing
materials; or (2) any hazardous materials, regardless of origin; or
4
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(iii) Claims arising from, or alleged to be arising in any way from, the acts
or omissions of the Licensee, its invitees, employees, licensees, agents,
contractors, invitees and other persons.
(d). Limitation of Indemnification Liability. Under no circumstances will Licensee
be required to pay any amounts in excess of the limits on liability established in
Minnesota Statutes § 466.04, without regard to any exceptions set forth in
Minnesota Statutes.* 466.03.
11. Covenant Not to Sue. Licensee, for itself and its representatives, successors, and
assigns, does hereby covenant and agree not to sue or bring any action (whether legal or
not) against Licensor for injuries sustained to Licensee's person and property or the
person and property of Licensee's employees, agents, independent contractors,
subcontractors, invitees, suppliers, representatives, customers or members of the public
due to or in anywise growing out of or connected directly or indirectly with Licensee's
stated and associated activities and presence in and about the Property except due to
Licensor's gross negligence or willful misconduct. Any suit by Licensor against Licensee
under this agreement shall be subject to the limitations imposed by paragraph 10 d above
12. Licensee's Sole Risk and Expense. Licensee agrees that use of the Property by the
Licensee hereunder, or its employees, licensees, agents, contractors, subcontractors,
invitees, suppliers and other persons and members of the public, shall be at the sole risk and
expense of Licensee.
13. Services. The Property, including any improvements thereon, is "as is." Any
service to or on the Property shall be at the sole expense of the Licensee, including, but
not limited to, permits, licenses, fees and any associated costs of "hook -up ", and must be
approved by Licensor in advance.
15. Distance and Height Requirements. The Licensee shall construct and use the
Property so as to maintain the maximum distance between the Permitted Uses and the
Licensor's electric, natural gas, and/or railroad facilities, or other facilities located on the
Property, allowable by the height, width and terrain of the Property. If the Permitted Uses
crosses over or under the Licensor's electric, natural gas, and /or railroad facilities the
crossing shall be as directed by the Licensor. Notwithstanding the foregoing, minimtun
vertical and horizontal separations, as directed by the Licensor, shall be maintained on all
crossings and parallel encroachments. Licensor shall provide Licensee with a master Iist of
required distances from identified facilities of Licensor and a map identifying same which
shall be attached hereto as Exhibit B.
16. Removal and Relocation. The Licensor can remove at its own expense all items
from the Property, or any part thereof, installed or otherwise on the Property pursuant to this
License, or relocate the same to a different location on the Property if the Permitted Use
should interfere, in the Licensor's sole and absolute discretion, with the operation and
maintenance of the Licensor's facilities as now or hereafter constructed. In the event that
5
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the Licensee's use of the Property should, in the reasonable judgment of the Licensor,
constitute a hazard to the Licensor's facilities or the general public, the Licensor may require
immediate removal, relocation, or modification of the Pemutted Use to eliminate such
interference or hazard, and may suspend the Licensee's right to use the Property under this
License until such removal, relocation, or modification is completed. If Licensee's items
constitute a hazard to the Licensor's facilities or the general public, then any removal,
relocation or modification of Licensee's items installed on the Property shall be at
Licensee's expense provided that Licensee was notified by Licensor of the need to remove
the items from the property and after being provided reasonable time in which to do so,
failed to remove such items..
17. Licensor's Electric Power Advisory. The Licensee agrees and understands that the
Licensor may have constructed electric power generation, transmission, distribution, or
related facilities on the Property, the Licensee has been hilly advised by the Licensor that
such electric facilities may now transmit and may continue to transmit electric current at
significant voltages, and that the conductors on electric lines may not be insulated. The
Licensee shall advise all of its employees, licensees, agents, contractors, subcontractors,
invitees, suppliers and other persons, including members of the public, who enter upon the
Property, pursuant to the provisions of this License, of the existence and nature of such
electric facilities and the potential danger and risk involved.
18. Disclaimer of Warranty. Licensor makes no representation as to the suitability of
the Property for the Permitted Use and no such representation, or any other
representations, are made by Licensor or shall be implied by operation of law or
otherwise. Additionally, Licensor shall have no responsibility or liability, of any kind,
type, nature or description on account of the failure, cessation or termination of electric
service to the Property; on account of inadequate or improper functioning of the
equipment of Licensee; on account of any interference, regardless of source, with the
exception of interference caused by any of Licensor's equipment that is not operating
within its own specific license parameters, with signals transmitted from the equipment of
Licensee, of any kind, type, nature or description, including by way of illustration but not
limitation, loss or damage due to fire, water, windstorm, hail, lightning, earthquake, riot,
vandalism, theft, acts of contractors, acts of agents or employees or others utilizing the
Property, or for any other cause whether originating from, within or without the
communications system of the Licensee. Further, the Licensor shall have no liability or
responsibility of any kind, nature or description for maintenance, repair, restoration or
renovation of the equipment of the Licensee.
laws
19. Assignment. Licensee shall not assign, sell, delegate, subcontract or otherwise
transfer or encumber in any manner whatsoever, all or any portion of the rights, duties or
obligations under this Agreement. Any such transfer or encumbrance shall be null and
void and shall permit Licensor to terminate this Agreement immediately without written
notice.
6
Page 117 of 128
•
20. Licensor's Reserved Rights. Licensor reserves the right, at any time and from time
to time, to make such use of the Property as is necessary to comply with the requirements
of SW -54, the facilities closure plan, post closure plan and contingency action plan and
for the purpose, including, but not limited to, the construction, operation or maintenance
of its, transmission or distribution and appurtenant facilities located or to be located on
the Property. In the exercise by Licensor of all of the foregoing rights, Licensor will use
its best efforts not to materially interfere with the Permitted Use. Unless Licensor must
act immediately due to a threat to human health or a threat to the environment, Licensor
will provide at least six (6) months of notice to Licensee if it exercises the foregoing
rights or any other rights of Licensor to enter into or use the Property in a manner that
will substantially impair Licensee's use of the property. However, Licensor shall not in
any event be liable for inconvenience, annoyance, disturbance or other damage to
Licensee, or the Permitted Use, by reason of the exercise of the foregoing rights or any
other rights of Licensor to enter into or use the Property, and the obligations of Licensee
under this License shall not be affected in any manner. The City does not release or
relinquish any other zoning, land -use, police or other legal authority over the property or
it's Licensor as a result of this License.
21. Encumbrances. Licensee shall keep the Property free and clear of any and all
liens and encumbrances arising or which might arise, for any reason, out of Licensee's
occupancy and use of the Property by anyone in connection with the Permitted Use.
22. Entire Agreement. This Agreement and Exhibit attached hereto and try this
reference incorporated herein, constitute the full and complete understanding of the parties
regarding the subject matter hereof. This Agreement shall supersede and replace all prior or
contemporaneous oral or written agreements, correspondence or understandings. Any
modification or amendment of this Agreement must be made in writing and executed by
both parties hereto.
23. Amendment. This Agreement may be amended only by a written amendment
signed by both parties.
24. Licensed Interest Only. This License does not convey an interest in real property.
25. Non - Transferable Right. This License shall not pass with title to Licensee's
personal property or improvements and shall not run with the Property.
26. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Minnesota.
27. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute one
instrument.
7
Page 118 of 128
28. Binding Effect. All the terms, conditions and covenants of this Agreement shall
be binding and shall inure to the benefit of the successors and assigns of the parties
hereto.
END OF AGREEMENT
8
Page 119 of 128
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date indicated below:
NORTHERN STATES POWER COMPANY,
a Minnesota corporation d/b /a Xeel Energy
/d
By: /V
Greg P. Chamberlain
Portfolio Delivery & Integration
Xcel Energy Service Inc.
Authorized Agent for Northern States Power Company,
a Minnesota corporation, d/b /a/ Xcel Energy
Agreed to and accepted by the Licensee as of this 41.5 day of_ li;tA , 2011.
CTI Y OF OAK PARK IGHTS, , /
a municifi ' ; z agyi /
��.•'..'.; y' t I'
Its: _ _ -
5167457_2.DOC
9
Page 120 of 128
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