4.5. SR 08-17-2020City of
Qk*'
River
Request for Action
To
Item Number
Mayor and City Council
4.5
Agenda Section
Meeting Date
Prepared by
Consent
August 17, 2020
Ryan Sandhoefner, Engineering Technician II
Item Description
Reviewed by
Limited Use Permit for Non -Motorized Trail Along
Justin Femrite P.E., Public Works Director
Highway 10
Reviewed by
Cal Portner, City Administrator
Action Requested
Adopt, by motion, a resolution to approve Limited Use Permit #7102-0021 for a nonmotorized trail along
TH 10 from Simonet Drive to Lowell Avenue.
Background/Discussion
In coordination with MnDOT's TH 10 reconstruction project beginning in 2021, our detached Lake
Orono/TH 10 trail will be constructed on the south side of the highway from Simonet Dr NW, to Lowell Ave
NW. Because this trail will be constructed within MnDOT right of way, MnDOT requires a Limited Use
Permit.
Financial Impact
There are no additional financial obligations associated with this approval.
Attachments
■ Limited Use Permit # 7102-0021
Exhibit A — Trail Layout
Resolution
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional,` 01 e
service, and community engagement that encourages and inspires pi ospei l_ y INAMIRE1
STATE OF MINNESOTA
DEPARTMENT OF TRANSPORTATION
LIMITED USE PERMIT
C.S. 7102 (T.H. 10)
County of Sherburne
LUP # 7102-0021
Permittee: City of Elk River
Expiration Date: 07/30/2030
Coop./Const. Agmt #_1044570
In accordance with Minnesota Statutes Section 161.434, the State of Minnesota, through its
Commissioner of Transportation, ("MnDOT"), hereby grants a Limited Use Permit (the "LUP") to City
of Elk River, ("Permittee"), to use the area within the right of way of Trunk Highway No. 10 as shown
in red on Exhibit "A", (the "Area") attached hereto and incorporated herein by reference. This Limited
Use Permit is executed by the Permittee pursuant to resolution, a certified copy of which is attached
hereto as Exhibit B.
Non -Motorized Trail
The Permittee's use of the Area is limited to only the constructing, maintaining and operating a
nonmotorized trail ("Facility") and the use thereof may be further limited by 23 C.F.R. 652 also
published as the Federal -Aid Policy Guide.
In addition, the following special provisions shall apply:
SPECIAL PROVISIONS
TERM. This LUP terminates at 11:59PM on 07/30/2030 ("Expiration Date") subject to the right
of cancellation by MnDOT, with or without cause, by giving the Permittee ninety (90) days
written notice of such cancellation. This LUP will not be renewed except as provided below.
Provided this LUP has not expired or terminated, MnDOT may renew this LUP for a period of up
to ten (10) years, provided Permittee delivers to MnDOT, not later than ninety (90) days prior to
the Expiration Date, a written request to extend the term. Any extension of the LUP term will be
under the same terms and conditions in this LUP, provided:
LUP—Standardized LUP Form Page 1 of LU1001 7/31/2020
(a) At the time of renewal, MnDOT will review the Facility and Area to ensure the Facility and
Area are compatible.with the safe and efficient operation of the highway and the Facility
and Area are in good condition and repair. If, in MnDOT's sole determination,
modifications and repairs to the Facility and Area are needed, Permittee will perform such
work as outlined in writing in an amendment of this LUP; and
(b) Permittee will provide to MnDOT a certified copy of the resolution from the applicable
governmental body authorizing the Permittee's use of the Facility and Area for the
additional term.
If Permittee's written request to extend the term is not timely given, the LUP will expire on the
Expiration Date.
Permittee hereby voluntarily releases and waives any and all claims and causes of action for
damages, costs, expenses, losses, fees and compensation arising from or related to any
cancellation or termination of this LUP by MnDOT. Permittee agrees that it will not make or
assert any claims for damages, costs, expenses, losses, fees and compensation based upon
the existence, cancellation or termination of the LUP. Permittee agrees not to sue or institute
any legal action against MnDOT based upon any of the claims released in this paragraph.
2. REMOVAL. Upon the Expiration Date or earlier termination, at the Permittee's sole cost and
expense Permittee will:
(a) Remove the Facility and restore the Area to a condition satisfactory to the MnDOT District
Engineer; and
(b) Surrender possession of the Area to MnDOT.
If, without MnDOT's written consent, Permittee continues to occupy the Area after the Expiration
Date or earlier termination, Permittee will remain subject to all conditions, provisions, and
obligations of this LUP, and further, Permittee will pay all costs and expenses, including
attorney's fees, in any action brought by MnDOT to remove the Facility and the Permittee from
the Area.
3. CONSTRUCTION. MnDOT will construct the Facility under its project number: SP 7102-135.
The cost will be a shared between MnDOT and the Permittee under Cooperative Agreement
number 1044570.
At no cost or expense to MnDOT, Permittee is responsible for any and all future construction of
the Facility and continuous maintenance, and supervision of the Facility shall be at no cost or
expense to MnDOT.
Before Permittee's construction or alterations of any kind, the plans for such construction shall
be approved in writing by MnDOT's District Engineer,
LUP — Standardized LUP Form Page 2 of 6 LU1001 7/31/2020
The Permittee shall operate and maintain the Facility at the location shown in the attached
Exhibit "A".
The Permittee shall maintain all slopes and ditches in such manner that drainage, erosion
control and aesthetics are perpetuated.
The Permittee shall preserve and protect all utilities located on the lands covered by this LUP at
no expense to MnDOT and it shall be the responsibility of the Permittee to call the Gopher State
One Call System at 1-800-252-1166 at least 48 hours prior to performing any excavation.
Any crossings of the Facility over the trunk highway shall be perpendicular to the centerline of
the highway and shall provide and ensure reasonable and adequate stopping sight distance.
4, MAINTENANCE. Any and all maintenance of the Facility shall be provided by the Permittee at
its sole cost and expense, including, but not limited to, plowing and removal of snow and
installation and removal of regulatory signs. No signs shall be placed on any MnDOT or other
governmental agency sign post within the Area. MnDOT will not mark obstacles for users on
trunk highway right of way.
5. USE. Other than as identified and approved by MnDOT, no permanent structures or no
advertising devices in any manner, form or size shall be allowed on the Area. No commercial
activities shall be allowed to operate upon the Area.
Any use permitted by this LUP shall remain subordinate to the right of MnDOT to use the
property for highway and transportation purposes. This LUP does not grant any interest
whatsoever in land, nor does it establish a permanent park, recreation area or wildlife or
waterfowl refuge. No rights to relocation benefits are established by this LUP.
This LUP is non-exclusive and is granted subject to the rights of others, including, but not limited
to public utilities which may occupy the Area.
6. APPLICABLE LAWS. This LUP does not release the Permittee from any liability or obligation
imposed by federal law, Minnesota Statutes, local ordinances, or other agency regulations
relating thereto and any necessary permits relating thereto shall be applied for and obtained by
the Permittee.
Permittee at its sole cost and expense, agrees to comply with, and provide and maintain the
Area, Facilities in compliance with all applicable laws, rules, ordinances and regulations issued
by any federal, state or local political subdivision having jurisdiction and authority in connection
with said Area including the Americans with Disabilities Act ("ADA"). If the Area and Facilities
are not in compliance with the ADA or other applicable laws MnDOT may enter the Area and
perform such obligation without liability to Permittee for any loss or damage to Permittee thereby
incurred, and Permittee shall reimburse MnDOT for the cost thereof, plus 10% of such cost for
overhead and supervision within 30 days of receipt of MnDOT's invoice.
LUP — Standardized LUP Form Page 3 of 6 LU1001 7/31/2020
7. CIVIL RIGHTS. The Permittee for itself, successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree that in the event improvements are
constructed, maintained, or otherwise operated on the Property described in this Limited Use
Permit for a purpose for which a MnDOT activity, facility, or program is extended or for another
purpose involving the provision of similar services or benefits, the Permittee will maintain and
operate such improvements and services in compliance with all requirements imposed by the
Acts and Regulations relative to nondiscrimination in federally -assisted programs of the United
States Department of Transportation, Federal Highway Administration, (as may be amended)
such that no person on the grounds of race, color, national origin, sex, age, disability, income -
level, or limited English proficiency will be excluded from participation in, denied the benefits of,
or be otherwise subjected to discrimination in the use of said improvements.
8. SAFETY. MnDOT shall retain the right to limit and/or restrict any activity, including the parking
of vehicles and assemblage of Facility users, on the highway right of way over which this LUP is
granted, so as to maintain the safety of both the motoring public and Facility users.
9. ASSIGNMENT. No assignment of this LUP is allowed.
10. IN WRITING. Except for those which are set forth in this LUP, no representations, warranties,
or agreements have been made by MnDOT or Permittee to one another with respect to this
LUP.
11. ENVIRONMENTAL. The Permittee shall not dispose of any materials regulated by any
governmental or regulatory agency onto the ground, or into any body of water, or into any
container on the State's right of way. In the event of spillage of regulated materials, the
Permittee shall notify in writing MnDOT's District Engineer and shall provide for cleanup of the
spilled material and of materials contaminated by the spillage in accordance with all applicable
federal, state and local laws and regulations, at the sole expense of the Permittee.
12. MECHANIC'S LIENS. The Permittee (for itself, its contractors, subcontractors, its materialmen,
and all other persons acting for, through or under it or any of them), covenants that no laborers',
mechanics', or materialmens' liens or other liens or claims of any kind whatsoever shall be filed
or maintained by it or by any subcontractor, materialmen or other person or persons acting for,
through or under it or any of them against the work and/or against said lands, for or on account
of any work done or materials furnished by it or any of them under any agreement or any
amendment or supplement thereto.
13. NOTICES. All notices which may be given, by either party to the other, will be deemed to have
been fully given when served personally on MnDOT or Permittee or when made in writing
addressed as follows: to Permittee at:
13065 Orono Parkway
Elk River, MN 55330
LUP — Standardized LUP Form Page 4 of 6 LU1001 7/31/2020
and to MnDOT at:
State of Minnesota
Department of Transportation
District 3 Right of Way
7694 Industrial Park Rd.
Baxter, MN 56425-8096
Theaddress to which notices are mailed may be changed by written notice given by either
party to the other.
14. INDEMNITY. Permittee shall indemnify, defend to the extent authorized by the Minnesota
Attorney General's Office, hold harmless and release the State of Minnesota, its Commissioner
of Transportation and employees and any successors and assigns of the foregoing, from and
against:
(a) all claims, demands, and causes of action for injury to or death of persons or loss of or
damages to property (including Permittee's property) occurring on the Facility or connected with
Permittee's use and occupancy of the Area, except when such injury, death, loss or damage is
caused solely by the negligence of State of Minnesota, but including those instances where the
State of Minnesota is deemed to be negligent because of its failure to supervise, inspect or
control the operations of Permittee or otherwise discover or prevent actions or operations of
Permittee giving rise to liability to any person;
(b) claims arising or resulting from the temporary or permanent termination of Facility user
rights on any portion of highway right of way over which this LUP is granted;
(c) claims resulting from temporary or permanent changes in drainage patterns resulting in
flood damages;
(d) any laborers', mechanics', or materialmens' liens or other liens or claims of any kind
whatsoever filed or maintained for or on account of any work done or materials furnished; and
(e) any damages, testing costs and clean-up costs arising from spillage of regulated
materials attributable to the construction, maintenance or operation of the Facility.
LUP — Standardized LUP Form Page 5 of 6 LU1001 7/31/2020
MINNESOTA
DEPARTMENT
OF TRANSPORTATION
CITY OF ELK RIVER
BY
Its
RECOMMENDED FOR APPROVAL
By:. ___ _ . .......
District And
Engineer
Its
Date
APPROVED BY:
COMMISSIONER OF TRANSPORTATION
Director, Office of Land Management
Date
The Commissioner of Transportation
by the execution of this permit
certifies that this permit is
necessary in the public interest
and that the use intended is for
public purposes.
LUP — Standardized LUP Form Page 6 of 6 LU1001 7/31/2020
City of
Elk
River
City of Elk River
City Council
Resolution 20-
A Resolution of the City Council of the City of Elk River to Approve Limited
Use Permit 7102-0021
WHEREAS, the City of Elk River has requested a Land Use Permit for the operation of
recreational trail use in various Minnesota State Highway right-of-way; and
WHEREAS, the Minnesota Department of Transportation has approved the proposal and
will accommodate the public use through the Limited Use Permit;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk
River, Minnesota, as follows: to approve Limited Use Permit Number 7102-0021 for the
purpose of trail within the right-of-way of U.S Highway 10.
Passed and adopted this 171h day of August 2020.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk