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1c. TH 5 Pedestrian Underpass: Approve License Agreement with UofM0 CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952.227.1190 Engineering Phone: 952.227.1160 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 TO: Todd Gerhardt, City Manager FROM: Paul Oehme, Director of Public Works /City Engineer �a DATE: October 24, 2011 64� SUBJ: Approve License Agreement with the University of Minnesota for the TH 5 Pedestrian Underpass — PW067B2b 5� PROPOSED MOTION "The City Council approves License Agreement with the University of Minnesota for the TH 5 Pedestrian Underpass in the amount of $9,993.50, contingent on the city attorney's final review and approval." City Council approval requires a simple majority vote of the City Council present. Park & Recreation DISCUSSION Phone: 952.227.1120 Fax: 952.227.1110 BACKGROUND Recreation Center On June 8, 2009, the City Council approved a resolution for a transportation 2310 Coulter Boulevard enhancement federal fund grant for a pedestrian underpass of TH 5 at the Phone: 952.227.1400 has been reviewed by the city attorney but the final document has not been Fax: 952.227.1404 Minnewashta Parkway intersection. This grant application was selected for funding in 2010. Planning & draft of the agreement is expected the week of October 17 but at the time of Natural Resources On April 11, 2011, the City Council held a public hearing for the TH 5 Phone: 952.227.1130 improvements MnDot is planning for the summer of 2012. Fax: 952.227.1110 Public Works DISCUSSION 7901 Park Place Phone: 952.227.1300 Staff is requesting the City Council approve a license agreement for right -of -way Fax: 952.227.1310 with the University of Minnesota for the proposed pedestrian underpass contingent on the city attorney's final review and approval. A draft agreement Senior Center has been reviewed by the city attorney but the final document has not been Phone: 952.227.1125 Fax: 952.227.1110 completed. Only some minor revisions to the agreement regarding insurance are left. The License is for a 50 -year term and is automatically renewable. The final Web Site draft of the agreement is expected the week of October 17 but at the time of www.ci.chanhassen.mn.us background submittal staff does not have the agreement. MnDot is requesting all right -of -way needs for the TH 5 project be submitted as soon as possible. Chanhassen is a Community for Life - Providing for Todayand Planning for Tomorrow Todd Gerhardt TH 5 Pedestrian Underpass: Approve License Agreement October 24, 2011 Page 2 The purchase price of the University of Minnesota property is $1.00 per square foot of license property and $.50 per square foot of temporary construction property. The University of Minnesota does not grant permanent easements to local units of government, however, it does grant temporary easements. The cost for the property acquisition is proposed to be included in the cost sharing agreement between the Minnesota Landscape Arboretum and the City of Victoria. Currently, there is not a lot of pedestrian movement from Minnewashta Parkway to the Minnesota Landscape Arboretum. However, the Arboretum wants to encourage more "walk -up" traffic and is planning to make internal capital improvements for this to happen. The City has partnered with the Arboretum to encourage the general public to utilize this facility. Chanhassen residents will be able to cross TH 5 at Minnewashta Parkway with a safe grade separated connection and gain access to the Arboretum. The pedestrian underpass will allow the Landscape Arboretum to become an extension of the City's park system for all to enjoy. The City of Victoria is planning to connect their trail system to the underpass and to the Lake Minnetonka LRT Regional Trail. A future trail connection is also planned from Century Boulevard to the Landscape Arboretum along TH 5 so this trail loops to the City's trail system. Attachment: License Agreement g: \eng \public \pw067b2b th 5 underpass \bkgd 102411 apprve license agreement with u of m.doc f V T UNIVERSITY OF MINNESOTA University Lease # U- Temporary Construction Agreement This Temporary Construction Agreement ( "Agreement ") is entered into on the date of last signature below by and between Regents of the University of Minnesota, a Minnesota constitutional corporation ( "Grantor ") and City of Chanhassan, a Minnesota municipal corporation ( "Grantee "). WHEREAS, Grantor is the owner of certain real property in Minnesota, as depicted on Exhibit A ( "Grantor's Property ") WHEREAS, Grantee desires to temporarily use a portion of obtain from Grantor a temporary construction easement over and across a portion of Grantor's Property. WHEREAS, Grantor agrees to grant to Grantee an easement under the terms and conditions set forth below. NOW, THEREFORE, the parties agree as follows: 1. Grant of Easement. 1.1 Grantor grants to Grantee a temporary easement over and across that portion of Grantor's Property [legally described as ] [as depicted on Exhibit B] (the "Easement Area ") for purposes of (the "Easement "). 1.2 The Easement Area is subject to: (a) any and all existing restrictions, covenants, easements, licenses, permits, leases and other encumbrances relating to the Easement Area; (b) all applicable federal, state, and local laws, regulations, ordinances, rules, and requirements; and (c) applicable Grantor ordinances, policies, procedures, and rules. 2. Term The Easement shall be effective on (the "Term "). and end on 3. Fee. The fee for this easement is Four Thousand Two Hundred Twenty -eight and No /100 Dollars ($4,228.00) which is due and payable as follows: Grantee shall pay to Grantor the fee without demand, offset, or counterclaim. 1 4. Use of the Easement Area 4.1 Grantee and its employees, contractors, and consultants shall conduct all work on the Easement Area under a site - specific safety and health plan as defined and required in OSHA 29 CFR 1910.120. 4.2 Grantee and its contractors and consultants shall perform all construction in a good, safe, and workmanlike manner. Grantee and its contractors and consultants shall comply with all applicable federal, state, and local laws, regulations, ordinances, rules, and requirements and all applicable Grantor ordinances, policies, procedures, and rules in their use of the Easement Area. 4.3 Grantee, at its sole cost and expense, shall ensure security and safety in the Easement Area during construction. 4.4 Grantee shall use its best efforts to minimize interference with or damage to Grantor's Property and the conduct of its business thereon. 4.5 Grantee, at its sole cost and expense, shall promptly restore any damage to Grantor's Property arising from or related to Grantee's use of the Easement Area pursuant to this Agreement; or at Grantor's option, Grantee shall upon demand reimburse the Grantor for any costs incurred by Grantor in restoring such damage. 4.6 Promptly after completion of construction, Grantee, at its sole cost and expense, shall: (a) remove all equipment and other property placed upon the Easement Area by Grantee or its contractors or consultants; and (b) remove all debris resulting therefrom; and (c) in coordination and consultation with the University, promptly restore the surface of the Easement Area to University's reasonable satisfaction. If Grantee's obligations in this Section are not completed within 30 days after the end of the Term, Grantor shall have the right, but not the obligation, to perform them and Grantee agrees to reimburse Grantor for its costs incurred in doing so upon receipt of an invoice. 4.7 Grantee shall keep the Easement Area free of any and all mechanics', material suppliers', and other liens arising out of any work, labor done, services performed, or materials furnished for Grantee or its contractors or consultants or claimed to have been furnished for Grantee or its contractors or consultants; provided, however, that Grantee shall have a right to reasonably contest the filing of any mechanics' lien if: (i) Grantee provides the Grantor with security reasonably satisfactory to the Grantor (and for this purpose, a bond, letter of credit, or cash escrow in an amount' equal to one hundred fifty percent (150 %) of the lien will be considered satisfactory); and (ii) Grantee causes Grantor's property to be released from the lien or liens in question not later than thirty (30) days prior to the time Grantor's interest in the subject property would be forfeited. 5. Reservation of Rights Grantor reserves the right to occupy and use the Easement Area to inspect Grantee's use thereof and in any manner that is not inconsistent with the rights granted herein. 2 6. Condition of the Pre mises; Environmental 6.1 Grantor has made no representation whatsoever to Grantee concerning the condition of the Easement Area or the nature or extent of Grantor's ownership interest therein. Grantee accepts all rights granted under this Agreement in an "AS IS, WHERE IS" and "WITH ALL FAULTS" condition, and subject to all limitations on Grantor's rights, interests, and title to the Easement Area. 6.2 Grantee represents that it has inspected the Easement Area and enters into this Agreement with knowledge of its condition. Grantee shall determine the suitability of the Easement Area for Grantee's intended use, including without limitation geotechnical, structural, environmental, and health or safety conditions. Grantee acknowledges that this Agreement does not contain any implied warranties that Grantee or Grantee's contractors or consultants can successfully use the area to perform Grantee's work. 6.3 Grantee shall provide to Grantor without charge electronic copies of any test results and reports it or its contractors or consultants obtain pertaining to the Easement Area. All test results and reports shall be sent to the University of Minnesota, Real Estate Office, 424 Donhowe Building, 319 15 Avenue Southeast, Minneapolis, MN 55455 -0199, prior to submission to any regulatory agency. Grantor may comment separately on said results and reports to any regulatory agency, but shall not alter any submission from Grantee to any regulatory agency. 6.4 Definitions. For purposes of this Agreement: "Environmental Laws" means any and all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any governmental authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substances, environmental protection, or health and safety, as now or may at any time hereafter be in effect and as amended from time to time, as well as the regulations adopted and promulgated thereunder, including without limitation: the Clean Water Act, also known as the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.; the Superfund Amendments and Reauthorization Act of 1986, Public Law 99 -499, 100 Stat. 1613; the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11001 et seq.; the Resource Conservation and Recovery Act, also known as the Solid Waste Disposal Act, 42 U.S.C. Section 6901 et seq.; and the Minnesota Environmental Response and Liability Act, Minnesota Statutes Chapter 115B. "Hazardous Substance" means (i) hazardous materials, hazardous wastes, and hazardous substances as those terms are defined under any Environmental Laws; (ii) petroleum, petroleum products, and by- products, including crude oil and any fractions thereof; (iii) natural gas, natural gas liquids, liquefied natural gas, synthetic gas, and any mixtures thereof, (iv) asbestos or any material that contains any hydrated magnesium silicate minerals that crystallize as bundles of 9 long, thin fibers that readily separate when broken or crushed; (vi) radon; (vii) any other hazardous or radioactive substance, material, contaminant, pollutant, or waste; (viii) any substance with respect to which any federal, state, or local Environmental Law or governmental agency requires environmental investigation, monitoring, or remediation; and (vix) any other substance or material now or in the future deemed to be hazardous, dangerous, toxic, or a pollutant or contaminant under any Environmental Laws. "Release" means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching, or migration of a Hazardous Substance into the indoor or outdoor environment (including, without limitation, the abandonment or disposal of any barrels, containers, or other closed receptacles containing any Hazardous Substance), or into or out of any Easement Area, including the movement of any Hazardous Substance through the air, soil, surface water, groundwater, or property. 6.5 Grantee shall not —and shall ensure that others do not — Release, install, use, generate, store, locate, produce, process, treat, transport, incorporate, discharge, emit, deposit, or dispose of Hazardous Substances in, upon, under, over or from the Easement Area, or violate any Environmental Laws. Grantee shall indemnify, defend and hold harmless Grantor from and against any claim, damage or expense arising out of Grantee's breach of the foregoing obligations and covenants. 6.6 Grantee, at its sole cost and expense, shall: a. Notify Grantor prior to any activity on the Easement Area that involves the Release, use, storage, generation, treatment, transportation, disposal, or handling of any Hazardous Substance; b. Comply with all Environmental Laws, including but not limited to those governing the Release, use, storage, generation, treatment, transportation, disposal, or handling of Hazardous Substances; C. Immediately stop construction or any other activity in an area if Grantee encounters a Hazardous Substance in that area; d. Give immediate notice to Grantor's Department of Environmental Health and Safety at 612- 626 -6002 or, after normal business hours, the Police Department dispatch at 612 - 624 -2677 (i) if Grantee encounters a Hazardous Substance; (ii) if a Hazardous Substance is Released on or from the Easement Area; (iii) of a violation of any Environmental Laws; (iv) of an inspection or inquiry by any governmental agency with respect to Grantee's use of the Easement Area; or (v) if Grantee receives any notice from any governmental agency alleging that any Environmental Laws have been violated by Grantee with respect to Grantee's use of the Easement Area. e. Promptly perform any investigative, remedial or other activities necessary to avoid or minimize injury or liability to any person, or to prevent the Release or spread of any Hazardous Substance, or to prevent the spread of any contamination; and f. Promptly respond to and comply with any notice, order, request, or demand relating to potential or actual contamination on the Easement Area. 6.7 If Grantor has reason to believe that a Hazardous Substance has been Released on the Easement Area by Grantee or its contractors or consultants, then Grantor has the right, but not the obligation, to require Grantee, at Grantee's sole cost and expense, to perform an environmental audit by an environmental consultant satisfactory to Grantor. Such an investigation shall be commenced within ten (10) days after Grantor's request, and thereafter be diligently prosecuted to completion. Grantee shall provide to Grantor without charge an electronic copy of the environmental audit immediately after it is completed. 6.8 If Grantee or its contractors or consultants expose or disturb soils, water, or other materials that appear to be contaminated based on visual and olfactory observation and/or field screening activities, Grantee shall test the soils, water, and other materials at Grantee's cost; testing shall be conducted by a certified laboratory. While the soils, water, and other materials are being tested, all potentially contaminated soils and other materials shall be stored on 10 mil poly and covered appropriately until testing is complete. Water shall be stored and labeled, if necessary, in an approved storage vessel. Stored soils, water, and other materials shall be appropriately secured on -site, and are the responsibility of the Grantee. In addition, solely at Grantor's discretion and upon the Grantor's request, Grantee will provide to Grantor splits of any samples of materials that Grantee collects so that Grantor may undertake independent testing and analysis of the sample material. a. If testing confirms —or any agency with jurisdiction thereof determines —that the soils, water, or other materials are contaminated, Grantee shall, at its sole cost, collect, remove and appropriately dispose of all contaminated soils, water, or other materials at an approved facility. Grantee shall assume full responsibility for impacted soil, water, and all other materials collected, excavated and removed from the Easement Area. Grantee shall (a) seek and receive from a State and/or country approved disposal facility written pre- approval for receipt of impacted materials; and (b) provide such pre- approval to Grantor. Grantee shall provide to Grantor without charge copies of all test results and documentation regarding analysis and disposal of impacted soil, water, and materials removed from the Easement Area, including, but not be limited to, waste manifests, bills of lading, chain of custody documents and landfill /disposal facility receipt records. Grantee shall also consult with Grantor before preparing any application for participation in the Minnesota Pollution Control Agency ( "MPCA ") Voluntary Investigation and Clean -up Program ( "VIC ") and /or the Petroleum Brownfields Program ( "PB "). b. If testing determines that the soils, water, or other materials are not contaminated, Grantee may with Grantor's prior written consent dispose of such materials on the Easement Area in accordance with existing MPCA Guidelines. 6.9 Before performing any construction or other work on the Easement Area, Grantee shall provide to Grantor all documents evidencing Grantee's compliance with the requirements of the National Pollution Discharge Elimination System (NPDES) and /or State Disposal System Stormwater Permit for Construction Activity, including but not limited to the preparation and implementation of a Stormwater Pollution Prevent Plan ( "SWPPP ") and associated maintenance records. In addition, Grantee shall provide to Grantor documentation of compliance with Grantor's Storm Water Compliance Procedure. Grantee shall make the documents available to Grantor at a pre - construction meeting before construction commences and on a weekly basis during the course of construction as maintenance and inspection records become available. Grantee shall submit to Grantor a final summary report on all the above activities within thirty (30) days after substantial completion of construction. 6.10 If Grantee fails to perform its obligations under this Section, Grantor shall have the right, but not the obligation, to perform Grantee's obligations and charge Grantee for the costs and expenses reasonably incurred by Grantor in doing so. Grantee shall reimburse Grantor for all such costs and expenses within ten (10) days after receipt of an invoice therefor accompanied by supporting data in a form to reasonably evidence the costs in question. 7. Insurance 7.1 Grantee, at its sole cost and expense, shall require its contractors entering onto the Property to obtain and keep in force the insurance described in this Section. a. Occurrence based general liability insurance covering claims arising from operations under this Agreement with minimum limits of $5 million per occurrence, $5 million annual general aggregate per project, $5 million annual aggregate for Products /Completed Operations, $5 million Personal and Advertising Injury, $50,000 fire damage (any one fire), and $5,000 medical expense (any one person per occurrence). Products and Completed Operations coverage must be maintained for at least three years after the Construction Completion Date. The general aggregate limit shall be maintained for at least three years after the Construction Completion Date. The Regents of the University of Minnesota shall be named as Additional Insureds for ongoing and completed operations for claims arising out of the acts or omissions of Grantee, its contractors' or consultants', and anyone else for whom Grantee is responsible. There should be no endorsement or modification limiting the scope of coverage for liability arising from pollution, explosion, collapse, underground property damage, or damage to the work. b. Business Automobile Liability Insurance with a minimum limit of $1 million each accident for bodily injury and property damage. Coverage shall apply to all owned, hired, and non -owed automobiles. The Regents of the University of Minnesota shall be named as Additional Insureds for claims arising out of the acts or omissions of Grantee, its contractors' or consultants', or anyone else for whom Grantee is responsible. Pollution liability coverage equivalent to that provided by ISO pollution liability - broadened coverage for autos endorsement CA 99 48 and the Motor Carrier Act endorsement MCS90 shall be included. C. Workers' compensation insurance in compliance with all statutory requirements of the State of Minnesota. 0 d. Employer's Liability (Part B) Insurance with minimum limits of $5 million bodily injury by disease per employee; $5 million bodily injury by disease aggregate; and $5 million bodily injury by accident. e. Contractor's Pollution Liability Insurance in the amount of $2 million per occurrence and written on an occurrence basis. Damages covered by pollution liability insurance shall include bodily injury, property damage, environmental damage, loss of use of property, governmental ordered cleanup costs, completed operations and defense including costs, charges and expenses incurred in the investigation, adjustment or defense of claims for damages, as a result of pollution conditions (including mold and fungi) arising from Grantee's operations under the Agreement, (a) at the Easement Area, (b) in the course of transporting materials to or from the Easement Area, or (c) at or emanating from disposal sites to which the Grantee transported materials. Coverage for mold and fungi and for disposal sites may be on a claims made basis. Claims -made provisions, if any, must have a retroactive date of policy inception and must include an extended reporting period that is equal to the completed operations extension of five (5) years after the end of the Term. The Regents of the University of Minnesota shall be named as Additional Insureds for claims arising out of the acts or omissions of Grantee, its contractors' or consultants', or anyone else for whom Grantee is responsible. f. An Umbrella or Excess Liability insurance policy may be used to supplement Grantee's policy limit to satisfy the minimum policy limits required by this Agreement. If these policies are not follow -form of the underlying coverage, the coverage shall, at a minimum, provide the coverage available on the underlying policies. 7.2 All policies shall provide: (i) that the policy will not be canceled, materially changed, or non - renewed without at least thirty (30) days' prior written notice to Grantor; and (ii) that the policy is primary and any insurance maintained by Grantor is excess and non- contributory. The certificates of insurance must reflect that the insurance requirements of this Agreement have been met as reasonably determined by Grantor. All policies shall be written by a reputable insurance company acceptable to Grantor or with a current AM Best Rating of A -VII or better, and authorized to do business in Minnesota. 7.3 Grantee shall waive and require all contractors and consultants of every tier to waive all subrogation and recovery rights against Grantor. This shall be provided on the commercial general liability policy using a Waiver of Transfer of Rights of Recover Against Others to Us endorsement and on the workers' compensation policy using a Waiver Of Our Rights To Recover From Others Endorsement in favor of Regents of the University of Minnesota. 7.4 No endorsements, except those expressly stated herein, may be included on any policy limiting coverage without Grantor's approval. 7.5 Grantee shall provide to Grantor prior to commencing any work on the Easement Area fully executed Certificates of Insurance evidencing that it has obtained the required 7 coverage and endorsements. At Grantor's option, Grantee shall provide Grantor with certified copies of insurance policies and all endorsements substantiating maintenance of the insurance required by this Agreement. 7.6 Grantee shall impose the same or, at its election, more stringent requirements on its contractors and consultants performing work on the Easement Area. 8. Indemnification and Release Grantee agrees, to the extent of the liability limits in Minn. Stat. ch. 466, to indemnify, defend, and hold harmless Grantor and its officers, employees, agents, and others acting on their behalf from and against any and all loss, damage, liability, cost and expense (specifically including attorneys' fees and other costs and expenses of defense) resulting from (i) Grantee's or its contractors or consultants' negligent use of the Easement Area; or (ii) any breach of this Agreement. 9. Taxes and Fees Grantee shall pay when due all taxes, assessments or other government charges against the Easement Area or Grantor's Property to the extent attributable to Grantee's use thereof. 10. Default If at any time Grantee or Grantee's contractors or consultants fail to perform its obligations under this Agreement, Grantor, in its sole discretion, may, upon not less than 10 days written notice to Grantee (or immediately in the event of any danger or potential danger to human health or the environment): (i) seek specific performance of the unperformed obligations; (ii) perform Grantee's obligations and charge Grantee for its costs reasonably incurred in doing so; or (iii) terminate the Agreement and remove Grantee from the Easement Area. Grantee shall promptly reimburse Grantor for Grantor's uses incurred in performing Grantee's obligations and/or removing Grantee from the Easement Area within ten (10) days after receiving an invoice therefor. Grantor's remedies set forth in this Section shall be in addition to, and not in limitation of, any other remedies that Grantor may have at law or in equity. 11. Notices A notice, communication, or demand by either party to the other shall be sufficiently given or delivered upon receipt if personally delivered or three (3) days after sent by U.S. registered mail or certified mail, postage prepaid, return receipt requested; and (i) in the case of Grantor, is addressed or personally delivered to: Regents of the University of Minnesota C/o Real Estate Office 319 15 Avenue SE, Suite 424 Minneapolis MN 55455 reo @umn.edu and University of Minnesota Office of the General Counsel Attn: Transactional Law Services Group 360 McNamara Alumni Center 200 Oak Street SE Minneapolis, MN 55455 -2006 (ii) in the case of Grantee, is addressed or personally delivered to: or at such other address with respect to either such party as that party may, from time to time, designated in writing and forward to the other as provided in this Section. 12. Counterparts This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. 13. Severability If any provision of this Agreement is declared invalid, illegal or otherwise unenforceable, that provision shall be deemed to have been severed from this Agreement and the remainder of this Agreement shall otherwise remain in full force and effect. 14. Complete Agreement This Agreement (including all exhibits) constitutes the complete agreement between the parties with respect to the matters addressed herein. This Agreement shall be amended only in a writing duly executed by the parties to this Agreement. 15. Assignment Grantee may not transfer or assign its rights under this Agreement without Grantor's prior written consent. 16. Authority Each of the undersigned parties represents and warrants that it has full authority to enter into this Agreement, and each individual signing this Agreement on behalf of a corporation or other entity hereby represents and warrants that he or she has full authority to sign on behalf of and to bind that party thereby. 17. Exhibits Attached Exhibits A and B incorporated by reference and hereby made a part of this Agreement. (REMAINDER OF PAGE INTENTIONALLY BLANK) IN WITNESS WHEREOF, the Grantor and Grantee execute this Agreement. Regents of the University of Minnesota By:_ Name: Title: Date: City of Chanhassen By:_ Name: Title: Date: 10