HomeMy WebLinkAbout#06 - Encroachment Agreement (Northern Natural Gas-Reid Park Trail) STAFF REPORT
DATE: May 19, 2020
CONSENT
ITEM #:
AGENDA ITEM: Easement Encroachment Agreement with Northern Natural Gas.
SUBMITTED BY: Ben Prchal, City Planner
REVIEWED BY: Ken Roberts, Planning Director
Sarah Sonsalla, City Attorney
BACKGROUND:
During the design of the Northport Development there was/is a plan to install a trail from the Development to
Reid Park. The trail will cross the existing Northern Natural Gas line easement (and the gas line that lies within
the easement). Northern Natural Gas is requesting the City to enter into an easement encroachment agreement
prior to the installment/completion of the trail. This will give the City permission to construct the trail crossing
in Northern Natural Gas’s easement area and be able to maintain the trail in this location. At this point the trail
has not been constructed and should not be installed over the easement area until the easement encroachment
agreement has been signed. City staff and the City Attorney reviewed the easement encroachment agreement
and requested some changes to the agreement. These changes were accepted by Northern Natural Gas.
ISSUE BEFORE COUNCIL:
Should the Council approve the easement encroachment agreement?
PROPOSAL:
The easement encroachment agreement contains all of the specific details for what is expected from all parties
involved. Northern Natural Gas is allowing the City to cross its gas line easement area with the construction and
installation of a walking trail from Northport into Reid Park. Should Northern Natural Gas need to remove, repair,
or improve its gas line infrastructure within its easement and the City’s trail will be impacted by that work, the
costs associated with removing the trail or cost to reconstruct the trail will be the responsibility of the City and
not Northern Natural Gas. If the City does not sign the easement encroachment agreement, the trail will not be
allowed to be installed over the area encompassed by Northern Natural Gas’s easement.
FISCAL IMPACT:
There is a possibility of a fiscal impact. Under normal circumstances the City would only be responsible for
routine maintenance and then eventual replacement of the trail. However, in this case, in the instance that Northern
Natural Gas was to perform work in its easement and the work impacts the trail, the City may need to repair/replace
the trail sooner than what would normally be required. City staff does not know the likelihood of that scenario
playing out.
RECOMMENDATION:
Staff is recommending Council approve the easement encroachment agreement with Northern Natural Gas.
If removed from the consent agenda Staff recommends the following motion:
“Move to approve the easement encroachment agreement with Northern Natural Gas and authorize the Mayor
and City Clerk to sign said agreement”
ATTACHMENTS:
Easement Encroachment Agreement
Site Map
Drafted by/Return to:
Jason Godwin
Right of Way Department
Northern Natural Gas Company
1120 Centre Pointe Drive, Suite 400
Mendota Heights, MN 55120
651-456-1711
(19-166)
MNM86501-97
EATS: 75427
ENCROACHMENT AGREEMENT
This instrument made and entered into this 2nd day of April, 2020, by and between NORTHERN
NATURAL GAS COMPANY, a Delaware corporation, (hereinafter referred to as “Northern”), with
principal offices at 1111 South 103rd Street, Omaha, Nebraska 68124-1000, and CITY OF LAKE
ELMO, a Minnesota municipal corporation (hereinafter referred to as “Owner” whether one or more).
WITNESSETH THAT:
WHEREAS, Northern is the holder of an easement granted by Joseph H. Friedrich,
single, on the 3rd day of December, 1955, covering the following described premises in
Washington County, Minnesota:
N. 50 acres of S½ SE¼ 13-29-21
which easement was recorded the 2nd day of February, 1956, as Document No. 184293, in Book
198 of Deeds, at Pages 499-500, and defined to an eighty six foot wide strip by a Modification
and Amendment of Easement Grant dated October 22nd, 2013, recorded February 10th, 2014, as
Document No. 3979697; all in the Office of the County Recorder for Washington County,
Minnesota (hereinafter referred to as “Easement”); and
WHEREAS, pursuant to the authority contained in said Easement, Northern has
constructed and currently operates and maintains a 30-inch pipeline (MNM86502), and a 24-inch
pipeline (MNM86501), along with the right to install additional facilities from time to time
(hereinafter referred to as “Pipeline Facilities”), across and through the above described
premises; and
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WHEREAS, Owner is the present owner of the following described real property, with
Pipeline Facilities situated upon the following described land in Washington County, Minnesota
(hereinafter referred to as the “Owned Premises”):
Outlot C, Northport, Washington County, MN
WHEREAS, Owner plans to construct a bituminous hike and bike path (hereinafter referred
to as “Encroachment”) upon and within a portion of the confines of Northern’s Easement as
depicted on Exhibit “A” with this written consent; and
WHEREAS, Owner has been advised by Northern that Northern is a natural gas transmission
company and that Northern operates a high pressure underground natural gas pipeline through the
Owned Premises; and
WHEREAS, Owner has requested permission from Northern to maintain, use, and enjoy the
Encroachment upon a portion of Northern’s Easement and in close proximity to Northern’s
Pipeline Facilities; and
WHEREAS, Northern is willing to grant such permission upon the terms and conditions set
forth as follows.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Northern hereby grants permission to Owner to maintain, operate and use upon the
Owned Premises and in close proximity to Northern’s Pipeline Facilities, the said Encroachment,
subject to the following conditions:
A. That Owner assumes all risks for damages, injuries, or loss to either property or
persons, which may be incurred by Owner or its respective agents, invitees, or licensees present
on or in the vicinity of the Easement and in any way associated with said Encroachment.
B. That the permission granted herein is limited exclusively to the proposed
Encroachment within Northern’s Easement. Owner shall not alter the grade or permit such
alteration anywhere on the land upon which Northern has reserved its easement rights, without the
prior express written consent of Northern.
C. That Owner shall at all times conduct all its activities on said Easement in such a
manner as not to interfere with or impede the operation of Northern’s Pipeline Facilities and
activities in any manner whatsoever.
D. That Owner shall not plant any trees or shrubs within the confines of Northern’s
Easement without the prior express written consent of Northern.
E. That Owner agrees that the Encroaching Facilities shall be constructed according to
the requirements and restrictions set forth on Exhibit “B” attached hereto.
2. Owner agrees to indemnify, protect, and hold Northern, its parent, affiliates, subsidiaries,
and their directors, officers, employees, representatives, and agents harmless from and against any
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and all actions or causes of action, claims, demands, liabilities, loss, damage, injury, suit,
proceeding, judgment, cost, or expense of whatever kind or nature, including but not limited to
reasonable attorneys’ fees, arising from or as a result of any incident, act, action, cause of action,
negligence, transaction or omission of Owner in connection with, or incidental to the construction,
operation, maintenance, or use of the said Encroachment within, upon or in the vicinity of the
Easement Area, or from the operation, maintenance, use or presence of Northern’s Pipeline
Facilities upon or in the vicinity of the Encroachment except where such loss, cost, liability, or
expense was proximately caused by the negligence of Northern or its employees. It is understood
and agreed by the parties that under this Agreement, Owner shall be jointly and severally liable.
3. Owner agrees that protection of Northern’s Pipeline Facilities will be maintained at all
times.
4. Should Northern need to remove any of Owner’s said Encroachment within its Easement
in order to construct, maintain, operate, repair, remove, or resize Northern’s existing or additional
Pipeline Facilities, Owner or its respective heirs, successors, and assigns shall pay the cost of
removing and replacing or reinstalling said Encroachment. In addition, all repair and maintenance
work performed by Northern on its existing or additional Pipeline Facilities located on the Owned
Premises shall be performed in a reasonable workmanlike manner and Northern shall restore the
surface and grade of the Owned Premises where the work is performed, but shall not be liable for
loss, damage, or replacement to Owner’s said Encroachment or any associated equipment and
facilities that exist within the Easement, and in this regard, Owner hereby releases Northern, its
employees, agents, officers, and directors from any and all liability for any such loss or damage.
5. The Parties hereto understand that this Agreement in no way constitutes a waiver by
Northern of its rights to enjoy its Easement unencumbered by the construction of said
Encroachment within Northern’s Easement.
6. It is expressly agreed to by and between the parties hereto that if Owner is in violation of
any terms or conditions set forth in this Agreement, Northern, at its option, may terminate this
Agreement upon ten (10) days’ notice to the Owner. In the event of such termination, Owner shall
immediately remove any and all of said Encroachment which may be situated on the Easement, or
if Owner fails to remove any and all of said Encroachment, Northern may, at its option, remove
said Encroachment at the expense of Owner and without any liability whatsoever. It is further
agreed that the failure by Northern to exercise such option as to any such violation shall not
constitute a waiver of Northern’s future right to exercise such option as to the same or any future
violation.
7. The provisions of the Easement, and all rights, powers, privileges, and duties, obligations,
and liabilities created thereby, remain in full force and effect and are not affected hereby except to
the extent and in the manner set forth above.
8. Owner agrees to indemnify, defend and hold Northern, its parent and affiliated
companies, and the directors, officers and employees of any such corporate entities harmless from
and against any liability, damage, claims, loss, cause of action, suit, proceeding, judgment, cost
(including the cost or expense of environmental response, removal or remediation activities), fees
or expense, including reasonable attorney’s fees arising from: (1) non-compliance with any laws,
regulations and orders applicable to the ownership or the operation and maintenance of the said
Encroachment on the Owned Premises described herein, and (2) any incidents, acts, releases,
negligence, transactions or omissions, or conditions on or affecting the Easement caused by the
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Owner or its contractor that would (i) contribute to or constitute a violation of any local, state or
federal environmental rule, regulation, law or judicial order, (ii) result, in whole or in part, in any
requirement to clean up or otherwise remedy or remediate a condition, (iii) give rise to any lien,
liability, injunction, order, restriction, claim, expense, damage, fine or penalty, or (iv) adversely
affect human health or the environment at or near the Easement.
9. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED, AND AGREES ANY SUCH ACTIONS MAY NOT IN ANY EVENT BE
CONSOLIDATED TOGETHER.
This instrument and the covenants and agreements herein contained shall extend to and be
binding upon the heirs, executors, administrators, successors, and assigns of the parties and the
benefits of this Agreement shall run with the land.
[Remainder of page intentionally left blank. Signature and Acknowledgment pages follow.]
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IN WITNESS WHEREOF, the parties have executed this instrument the day and year first
above written.
“NORTHERN” “OWNER”
NORTHERN NATURAL GAS COMPANY CITY OF LAKE ELMO
By: By:
Name: Bryan P. Kruger Name:
Title: Attorney-in-Fact Title:
STATE OF MINNESOTA )
)SS
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this ___ day of __________, 2020,
by ______________________________, ____________________ for The City of Lake Elmo, a
Minnesota municipal corporation, on behalf of the municipal corporation.
(S E A L)
Notary Public
My Commission Expires
STATE OF NEBRASKA )
)SS
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this ___ day of __________, 2020,
by Bryan P. Kruger, Attorney-in-Fact, for Northern Natural Gas Company, a Delaware
corporation, on behalf of the corporation.
(S E A L)
Notary Public
My Commission Expires
31ST ST N LOWERNORTHEXHIBIT A - Page 1 of 3*Drawing NOT to Scale.**The Sole Purpose of this page is to document the approximate relative location of the hike/bike path to Northern's pipelines.
EXHBIT A - Page 2 of 3
EXHIBIT A - Page 3 of 3
EXHIBIT “B”
To: City of Lake Elmo
From: Northern Natural Gas
Subject: Bituminous Bike Path Adjacent to Reid Park and Northport Subdivision – Lake Elmo, MN
Date: 4/02/2020
EATS# 71241
Northern Natural Gas (NNG) has reviewed the plan provided by the developer, City of Lake Elmo, for the proposed
bituminous bike path which will connect Reid Park and Northport Subdivision in the City of Lake Elmo, MN.
The proposed path will encroach upon two NNG high pressure natural gas main lines; the 24-inch-diameter M450B
(MNM86501) pipeline at approximate milepost 32.83, and the 30-inch diameter M450C (MNM86502) pipeline at
approximate milepost 33.79, all in Section 13, Township 29N, Range 21W of Washington County, MN. These
locations are class III population density locations.
Engineering Notes
• Engineering requires that minimum depth-of-cover be increased to 36-inches above the M450B line prior to
construction so that all listed vehicles can pass wheel load calculations.
• Engineering advises against using vibratory rollers over the pipelines. If vibratory rollers are to be used on
the project, the vibration option will be switched off at an offset distance of 7-feet from the NNG pipeline.
Standard non-vibratory rolling will be allowed over the pipeline.
Encroachment Guidelines
• An NNG representative shall be present at all times when excavation work is being performed within 25 feet
of NNG’s pipeline. The contractor shall provide NNG an Iowa utility one call ticket with 48 hour notice prior
to excavating in the area.
• Appurtenances: All above grade appurtenances shall not interfere with ground patrols or leak surveys. All
light poles, manholes, signs, trees, shrubs, etc. must be placed a recommended offset distance of 35 feet from
NNG facilities.
• Heavy Vehicle Crossings: As a guideline, all vehicular crossings over the NNG pipeline have the following
load restrictions (per wheel) without additional protection:
o M450B Line:
o >30” Cover – 12,000 lbs.
o >36” Cover – 17,000 lbs.
o ≥42” Cover – 24,000 lbs.
M450C Line
>36” Cover –24,000 lbs.
• NNG engineering requests vehicle specifications for all construction equipment exceeding 80,000 lbs. gross
vehicle weight or exceeding the specified load restrictions that will be anticipated to cross NNG facilities.
NNG engineering shall recommend appropriate crossing protection methods, if required. Potential crossing
protection methods include: use of timber/steel plate matting, temporary bridge structures or pipeline
reinforcement.
• Any damages or modifications to NNG’s facilities shall be repaired or modified at the expense of the
encroaching party. An estimate can be provided by NNG for any modifications or repairs as required.
NNG requires that the aforementioned encroachment conditions are met to ensure pipeline integrity and safety during
and after construction. NNG engineering will continue to review any revised construction plans and new proposals as
they are developed.