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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 -2- 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 -3- 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 -4- 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.] -5- 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.