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4.4. SR 10-06-2014 City of Elk - Request for Action River O. To Item Number Mayor and City Council 4.4 Agenda Section Meeting Date Prepared by Consent October 6, 2014 Justin Femrite, P.E., City Engineer Item Description Reviewed by Northern Natural Gas Encroachment Agreement Cal Portner, City Administrator Reviewed by Action Requested Approve,by motion,the Northern Natural Gas Encroachment Agreement for crossing of a pipeline easement with improvements in Nature's Edge Business Center Phase 2. Background/Discussion Similar to Phase 1 of the development,the city, again,needs to cross the Northern Natural Gas pipe line and associated easement with improvements in Phase 2. Approval of the attached agreement is necessary for permission from Northern Natural Gas to make the improvements. Financial Impact None Attachments • Encroachment Agreement • Exhibit B—Encroachment Guidelines P a w E A E U a r Template Updated 4/14 INIM UREI Drafted by/Return to: Northern Natural Gas Company, 1120 Centre Pointe Drive, Suite 400, Mendota Heights, MN 55120, Attn:Tony Stucchi File No. 14-034 Line & Tract No. MNB85801-3 ENCROACHMENT AGREEMENT This instrument made and entered into this day of , 20 , 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 the CITY OF ELK RIVER, 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 H.R. Moyer and Martha C. Moyer on June 25, 1965, covering the following described premises in Sherburne County, Minnesota: The Southeast Quarter of the Northwest Quarter and the Northeast Quarter of the Southwest Quarter, except that portion recorded in Vol. 80, Pg. 376 of Deeds, containing 1.58 acres more or less, all in Section 11, Township 32 North, Range 26 West; and which easement was recorded on August 13, 1965, as Document No. 101606, and defined to a 75- foot wide strip October 5, 1992, recorded October 7, 1992, as Document No. 267640; all in the Office of the Recorder for Anoka 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 12-inch pipeline MNB67701 and a 8-inch pipeline MNB67702, 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 WHEREAS, Owner is the present owner of the following described real property, with Pipeline Facilities situated upon the following described land in Sherburne County, Minnesota (hereinafter referred to as the "Owned Premises"): Outlot B, NATURES EDGE BUSINESS CENTER, which is part of the Northeast Quarter of the Southwest Quarter and part of the Northwest Quarter of the Southeast Quarter, all in Section 11, Township 32, Range 26, Sherburne County, Minnesota. WHEREAS, Owner plans to perform site grading, build up a pond, construct two roads, sanitary sewer lines, storm drain lines, and water lines (hereinafter referred to as "Encroachment") upon and within a portion of the confines of Northern's 75-foot wide 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. -2- E. That Owner agrees that the Encroachment 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 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. -3- 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 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. IN WITNESS WHEREOF, the parties have executed this instrument the day and year first above written. ,'NORTHERN" "OWNER" NORTHERN NATURAL GAS COMPANY By: By: Name: Joseph A Jessen Name: John J. Dietz Title: Agent and Attorney-in-Fact Title: Mayor By: Name: Tina Allard Title: City Clerk -4- STATE OF NEBRASKA ) )SS COUNTY OF DOUGLAS ) The foregoing instrument was acknowledged before me, a Notary Public, this day of , 20 , by Joseph A. Jessen, Agent and Atorney-in-Fact, for Northern Natural Gas Company, a Delaware corporation, on behalf of the corporation. (S E A L) Notary Public My Commission Expires STATE OF MINNESOTA ) )SS COUNTY OF SHERBURNE ) The foregoing instrument was acknowledged before me this day of 520 by John J. Dietz, the Mayor of the City of Elk River, a Minnesota municipal corporation, on behalf of the corporation. (SEAL) Notary Public My Commission Expires STATE OF MINNESOTA ) )SS COUNTY OF SHERBURNE ) The foregoing instrument was acknowledged before me this day of 520 by Tina Allard, the City Clerk of the City of Elk River, a Minnesota municipal corporation, on behalf of the corporation. (S E A L) Notary Public My Commission Expires -5- Exhibit B pg 1 of2 4orthern Natural Gas To: City of Elk River From: Northern Natural Gas Subject: Nature's Edge Business Center Phase 2 Date: 9/11/2014 EATS#49072 Northern Natural Gas (NNG) Engineering has reviewed the revised construction plans received September 2nd, 2014 by Hakanson Anderson for the City of Elk River related to the proposed commercial property development in Sherburne County, Minnesota. Developer's plans consist of a new bituminous entrance road, grading modifications, and associated utilities (water, storm sewer, sanitary sewer, etc.)in Pierce County, Wisconsin. Temporary workspace will be required for contractors to complete their work and will include new utility crossings and road crossings over NNG's natural gas pipeline within NNG's 75-fool-wide strip easement. This proposed project will encroach upon two Northern Natural Gas branch pipeline, the 12-inch-diameter St. Michael Branch Line (MNB67701), and the 8-inch-diameter St. Michael Branch Line Loop (MNB67702) in Section 11 Township 32N Range 26W of Sherburne County,Minnesota. Northern Natural Gas (NNG) requires that the builder meet the following encroachment conditions to ensure pipeline integrity and safety during and after construction. Said encroachment conditions are contained in the NNG engineering standards ES 0065, "Encroachment Guidelines for Natural Gas Pipelines." Encroachment Guidelines • An NNG representative shall be present at all times when excavation work is being performed within 25 feet of Northern Natural Gas's pipeline. This requirement is per NNG operating procedure OP 80.102, "Damage Prevention Program." The contractor shall provide Northern a Minnesota utility one call ticket with 48 hour notice prior to excavating in the area. • Mechanical excavation is allowed up to 24 inches from the NNG pipeline. Hand excavation or hydrovac excavation is required when excavating 24 inches or closer to NNG's pipeline. • Permanent Structures: Any enclosed structure or building permanent in nature regardless of purpose may not be installed inside NNG's easement and should be installed a minimum of 35 feet from a Northern pipeline. • Foreign Utilities: All foreign utilities (water, gas, sanitary, sewer, oil, communication, etc.) must cross Northern's pipelines at or near a right angle with Exhibit B Pg.2 of 2 a required minimum of 12 inches of separation. It is preferred that foreign utilities cross under Northern's pipeline where reasonable. Foreign utilities running parallel must be placed outside the easement a recommended minimum offset of 30 ft. from NNG's pipeline. • Appurtenances: All above grade appurtenances shall not interfere with ground patrols or leak surveys. All light poles, manholes, signs, trees, shrubs, etc. must be outside the easement a recommended offset distance of 30 feet from a Northern pipeline. • Fences: All fences (posts, gates, chain link, wood panels, etc.) shall not interfere with ground patrols or leak surveys. All fences running parallel to Northern facilities must offset a minimum distance of 25 ft. from a Northern pipeline. Fences may not cross Northern facilities within the easement. • Road Crossings: All road crossings must cross Northern's pipeline at or near a right angle and maintain a minimum of three feet of cover over the pipeline within the in the road way and road ditches. Roads running parallel to Northern's facilities must be outside the easement and offset a recommended offset distance of 25 ft. • Grade modifications: Earthwork and other grade modification must maintain a minimum of three feet of cover over NNG's pipeline after construction in all locations. Grading modifications shall not be designed to impound water above NNG's facilities. • Heavy Vehicle crossings: NNG engineering requests vehicle specifications for all construction equipment that will be anticipated to cross NNG facilities. NNG engineering shall recommend appropriate crossing protection methods per site if required. Potential crossing protection methods include: additional dirt cover, use of timber/steel plate matting, temporary bridge structures, or pipeline reinforcement as required. As a guideline, all crossings have the following wheel load restrictions without additional pipeline crossing protection: 0 24" Cover— 15,000 lbs. 0 36" Cover—30,000 lbs. 0 48" Cover—50,000 lbs. • 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. Northern Natural Gas Engineering will continue to review any revised construction plans and new proposals as they are developed.