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HomeMy WebLinkAbout6.h. Biscayne Avenue Improvement Project, City Project 2020-01 Approve Easement Agreements with the University of Minnesota6.h. Biscayne Avenue Improvement Project, City Project 2020-01 Approve Easement Agreements with the University of Minnesota.docx EXECUTIVE SUMMARY City Council Meeting: July 7, 2020 AGENDA ITEM: Biscayne Avenue Improvement Project, City Project 2020-01: Approve Easement Agreements with the University of Minnesota AGENDA SECTION: Consent PREPARED BY: Stephanie Smith, PE, Assistant City Engineer AGENDA NO. 6.h. ATTACHMENTS: Easement Agreement, Temporary Construction Agreement APPROVED BY: LJM RECOMMENDED ACTIONS: Motion to approve the easement and temporary construction agreements with University of Minnesota for the Biscayne Avenue Improvement Project, City Project 2020-01. BACKGROUND This project is currently under construction. Utility improvement include sanitary sewer installation from Boulder Trail to 157th Street (Biscayne Business Park) to provide City service to this area. Watermain stubs to undeveloped properties will be installed per the 2040 Comprehensive Water Plan. In order to treat runoff stormwater from the new impervious surface created by the project, a new infiltration basin will be constructed along the west side of the roadway. On February 4, 2020, the City Council approved the appraised values and authorized offers of compensation and acquisition for right-of-way and easements required for the Biscayne Avenue roadway and utility construction. The right-of-way (ROW) for Biscayne Avenue is largely prescriptive, with a portion of the west side platted with the Biscayne Business Park development. With this improvement project, additional ROW and temporary construction easements will be acquired to accommodate the wider road section and stormwater facilities. The easements and right-of-way have been acquired from the private and business property owners adjacent to the roadway. The outstanding property easement areas are owned by the University of Minnesota on the east side of the roadway. The University has requested specific language in the documents granting easement, that are attached to this document. City attorney has reviewed these documents. RECOMMENDATION Staff recommends Council approve the temporary and permanent easement agreements with the University of Minnesota for the Biscayne Avenue Improvement Project, City Project 2020-01. 1 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (“Agreement”) is made effective the date of last signature below (“Effective Date”) by Regents of the University of Minnesota, a Minnesota constitutional corporation (the “Grantor” or the “University”), and the City of Rosemount, a Minnesota municipal corporation (the “Grantee” or the “City”). Recitals A. University is the fee owner of certain real property legally described on Exhibit A attached hereto (the “Property”); B. City is undertaking a project to construct certain improvements in connection with the construction of the Biscayne Avenue Improvement Project, City Project 2020-01 (the “Project”); and C. To assist with the Project, University wishes to grant to City an easement as hereinafter described in, over, across, beneath, and on the Property which is legally described on Exhibit A and depicted on Exhibit B attached hereto(the “Easement Area”), according to the terms and conditions contained herein, and City wishes to accept the easement according to the terms and conditions contained herein. A temporary construction agreement between University and City has been entered into contemporaneously herewith to allow City temporary use of the License Areas identified on Exhibit B. Terms of Agreement 1. Recitals. The recitals above are hereby incorporated herein and made part of the Agreement. 2. Grant of Easement. In consideration of a non-refundable, one-time fee of $100.00, due and payable on or before the Effective Date, University grants and conveys to the City a permanent, non- exclusive easement for drainage and utility purposes in, over, across, beneath, and on the Easement Area (the “Easement”). 3. Scope of Easement. The Easement includes the reasonable right of access to the Easement Area by the City, its contractors, agents, employees, vehicles and equipment on the portion of the Property on which Biscayne Avenue is located for the purpose of locating, constructing, reconstructing, operating, maintaining, inspecting, altering and repairing the utilities, drainage ways and stormwater facilities in, over, across, beneath and on the Easement Area. 2 The Easement granted herein also includes the right to cut, trim, or remove from the Easement Area such improvements, trees, shrubs, or other vegetation, and to prohibit obstructions and grading alterations to the Easement Area as in the City’s judgment unreasonably interfere with the Easement or the function of the facilities located therein. 4. Warranty of Title. University warrants that it is the fee owner of the Property and has the right, title, and capacity to convey to the City the Easement granted herein. City’s rights and the Easement granted hereunder are subject to any and all existing restrictions, covenants, easements, rights of way, and other encumbrances relating to the Easement Area that are of record or of which City has knowledge, including, without limitation, that certain Easement Agreement between the University and the Metropolitan Council dated February 15, 2006, as recorded in the Office of the Dakota County Recorder on March 1, 2006 as document number A2409373 and that certain Mining Lease Agreement between the University and Dakota Aggregates, LLC dated June 8, 2011, as amended, evidenced by the Memorandum of Lease dated August 23, 2013 and recorded in the Office of the Dakota County Recorder on September 5, 2013 as document number 2973846. 5. Condition of the Easement Area. The Easement Area is made available to City in “AS IS, WHERE IS, WITH ALL FAULTS” condition. Except for University’s warranty set forth in Section 4 above, no verbal or written representations, warranties, promises or guarantees (whether express, implied, statutory, or otherwise) are given to City with respect to the Easement Area, and City has confirmed independently all information that it considers material to its use of the Easement Area. 6. No Liens. City shall keep the Easement Area and Property free of any and all mechanics’, material suppliers’, and other liens arising out of any work, labor done, services performed or materials furnished or claimed to have been furnished for City. 7. Restoration of Property. City shall promptly restore damage to the Easement Area and Property arising from City’s exercise of its rights pursuant to this Easement. City agrees to hold University harmless and indemnify it from and against any and all loss, damage, liability, claims, cost, and expense arising from City’s use of the Easement Area and exercise of its rights hereunder. 8. Environmental Matters. City shall not install, use, generate, store or dispose of in or about the Easement Area any hazardous substance, toxic chemical, pollutant or other material regulated by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or the Minnesota Environmental Response and Liability Act or any similar law or regulation relating to environmental protection or human health (collectively, “Environmental Laws”), including without limitation any material containing asbestos or PCBs (collectively, “Hazardous Materials”) without University’s written approval of each Hazardous Material. If, in the course of exercising its rights hereunder, City encounters any Hazardous Materials, it shall immediately stop the work, notify University, and proceed in accordance with instructions issued by University. In the event of any disturbance or release of Hazardous Materials resulting from City’s use of or presence on the Easement Area, City shall comply with the requirements of agencies responsible for enforcement of Environmental Laws and shall provide University with copies of any submittals or notifications to local, state or federal environmental regulatory agencies. 9. Abandonment or Termination of Use. If the Easement herein granted is no longer used for 3 the purpose herein described, City shall provide a suitable Quit Claim Deed or other agreement extinguishing this Agreement. In addition, upon University’s request, City, at its sole cost and expense, shall remove all improvements and other property placed on, in, or under the Easement Area and remove all existing debris therefrom and restore the Easement Area to a condition reasonably acceptable to University. The provisions of this Section shall survive the termination of this Agreement. 10.Notice. A notice, communication, or demand by either party to the other shall be sufficiently given or delivered upon receipt if personally delivered or sent by email (with confirmation of receipt by recipient) 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 University, is addressed or personally delivered to: Regents of the University of Minnesota c/o Real Estate Office 319 15th Avenue SE, Suite 451 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 ogccontracts@umn.edu (ii) in the case of Grantee, is addressed or personally delivered to: City Administrator Rosemount City Hall 2875 145th Street West Rosemount, MN 55068 pwadm@ci.rosemount.mn.us 11. Binding Effect of Agreement. The Agreement shall commence on the Effective Date and shall run with the land. City may not assign or otherwise transfer its rights under this Agreement without the prior written consent of University. The Agreement shall be binding upon University and its successors and assigns and shall be for the benefit of City and its permitted successors and assigns, in perpetuity, subject to Section 9 above. STATE DEED TAX DUE HEREON: NONE Remainder of Page Intentionally Left Blank; Signature Pages to Follow} 4 GRANTOR: REGENTS OF THE UNIVERSITY OF MINNESOTA By: Name: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____day of 2020 by _________________________, the _______________________________ of Regents of the University of Minnesota, a Minnesota constitutional corporation, on behalf of the University. Notary Public NOTARY STAMP OR SEAL 5 GRANTEE: CITY OF ROSEMOUNT By: Name: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____day of 2020 by _________________________, the _______________________________ of the City of Rosemount, a Minnesota municipal corporation, on behalf of the City. Notary Public NOTARY STAMP OR SEAL THIS INSTRUMENT DRAFTED BY: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 A-1 EXHIBIT A Legal Description of the Property and Easement Area The Property PID: 34-03310-01-010 Section 33, Township 115, Range 19, Dakota County, Minnesota. Abstract Property. The Easement Area A perpetual easement for drainage and utility purposes over, under, and across the south 50.00 feet of the west 50.00 feet, as measured at right angles, of the Southwest Quarter of Section 33, Township 115, Range 19, Dakota County, Minnesota. EXCEPT therefrom the west 33.00 feet and the south 33.00 feet, as measured at right angles, of said Southwest Quarter. B-1 EXHIBIT B Depiction of the Easement Area and License Areas B-2 Temporary Construction Agreement This Temporary Construction Agreement (“Agreement”) is entered into on the date of last signature below (“Effective Date”) by and between Regents of the University of Minnesota, a Minnesota constitutional corporation (“University”) and the City of Rosemount, a Minnesota municipal corporation (“City” or “Licensee”). WHEREAS, University is the owner of certain real property in Dakota County, Minnesota, legally described as Section 33, Township 115, Range 19, Dakota County, Minnesota (“University’s Property”); WHEREAS, City is undertaking a project to construct certain improvements in connection with the construction of the Biscayne Avenue Improvement Project, City Project 2020-01 (the “Project”); WHEREAS, University has agreed by a separate agreement to grant a permanent easement to City for drainage and utility purposes to assist with the Project (the “Easement Area”), as depicted on Exhibit A; WHEREAS, City desires to obtain from University a temporary construction license over and across portions of University’s Property to facilitate the Project; and University agrees to provide to City a temporary construction license according to the terms and conditions set forth below. NOW, THEREFORE, the parties agree as follows: 2. Provision of License. 2.1 University agrees to provide to City a temporary license over and across those portions of University’s Property described on Exhibit B and depicted on Exhibit A (the “License Areas”) for purposes of access, staging, and other purposes reasonably necessary to complete the Project (the “License”). The License includes the right of City, its contractors, agents, employees (collectively, “City Parties”) to enter upon the License Areas at all reasonable times for the purpose of construction, grading, sloping, and restoration purposes, and all purposes ancillary thereto, together with the right to remove trees, shrubs or other vegetation in the License Areas, as well as the right to deposit construction materials within the License Areas and to move, store, and remove equipment and supplies, and to perform any other work necessary and incident to the Project. 2.2 City’s rights to use the License Areas and the License provided hereunder are subject to: (a) any and all existing restrictions, covenants, easements, rights of way, and other encumbrances relating to the License Areas that are of record or of which City has knowledge, including, without limitation, that certain Easement Agreement between the University and the 2 Metropolitan Council dated February 15, 2006, as recorded in the Office of the Dakota County Recorder on March 1, 2006 as document number A2409373, and that certain Mining Lease Agreement between the University and Dakota Aggregates, LLC dated June 8, 2011, as amended, evidenced by the Memorandum of Lease dated August 23, 2013 and recorded in the Office of the Dakota County Recorder on September 5, 2013 as document number 2973846; (b) all applicable federal, state, and local laws, regulations, ordinances, rules, and requirements; and (c) applicable University ordinances, policies, procedures, and rules. 2.3 The fee for this License is $1,500.00, which is due and payable by City upon the signing of this Agreement. 3. Term. The Agreement shall be effective on the Effective Date, and terminate on June 30, 2021 (the “Term”). City will notify Shari Sayles with University’s Office of Planning, Space and Real Estate at (612) 236-5720 at least 24 hours prior to first entering onto the License Areas for the purposes of this Agreement and shall keep University informed about the schedule and progress for the Project. 4. Use of the License Areas. 4.1 City shall, and shall cause the other City Parties to, conduct all work on the License Areas and Easement Area under a site-specific safety and health plan as defined and required in OSHA 29 CFR 1910.120 and in compliance with all other applicable local, state and federal health and safety regulations for workers. 4.2 City shall, and shall cause the other City Parties to, perform all construction in a good, safe, and workmanlike manner. City shall, and shall cause the other City Parties to, comply with all applicable federal, state, and local laws, regulations, ordinances, rules, and requirements and all applicable University ordinances, policies, procedures, and rules in their use of the License Areas and Easement Area. 4.3 City shall ensure security and safety in the License Areas and Easement Area during construction. 4.4 City shall use its best efforts to minimize interference with or damage to University’s Property and the conduct of its business thereon. Such efforts shall include, but not be limited to, installation of a silt fence (at a minimum) or other appropriate fence type along the eastern edge of License Area A to serve as a visual barrier and mitigate any potential damage to University’s research plots. 4.5 City, at its sole cost and expense, shall promptly restore any damage to University’s Property arising from or related to the City Parties’ use of the License Areas and Easement Area pursuant to this Agreement; or at University’s option, City shall upon demand reimburse the University for any costs incurred by University in restoring such damage. 4.6 Promptly after completion of construction, City shall: (a) remove all equipment and other property placed upon the License Areas by the City Parties; and (b) remove all debris 3 resulting therefrom; and (c) in coordination and consultation with the University, promptly restore the surface of the License Areas to University’s reasonable satisfaction. If City’s obligations in this Section are not completed within 30 days after the end of the Term, University shall have the right, but not the obligation, to perform them and City agrees to reimburse University for its costs incurred in doing so upon receipt of an invoice. 4.7 City shall keep the License Areas free of any and all mechanics’, material suppliers’, and other liens arising out of any work, labor done, services performed, or materials furnished for the City Parties or claimed to have been furnished for the City Parties. 5. Reservation of Rights. University reserves the right to occupy and use the License Areas to inspect City’s use thereof and in any manner that is not inconsistent with the rights granted herein. 6. Condition of the Premises; Environmental. 6.1 University has made no representation whatsoever to City concerning the condition of the License Areas. City accepts all rights granted under this Agreement in an “AS IS, WHERE IS” and “WITH ALL FAULTS” condition. 6.2 City represents that it has inspected the License Areas and Easement Area and enters into this Agreement with knowledge of their condition. City shall determine the suitability of the License Areas and Easement Area for City’s intended use, including without limitation geotechnical, structural, environmental, and health or safety conditions. City acknowledges that this Agreement does not contain any implied warranties that the City Parties can successfully use the License Areas and Easement Area to perform the Project. 6.3 City shall provide to University without charge electronic copies of any test results and reports it or other City Parties obtain pertaining to the License Areas and Easement Area. All test results and reports shall be sent to the University of Minnesota, Real Estate Office, 451 Donhowe Building, 319 15th Avenue Southeast, Minneapolis, MN 55455-0199, prior to submission to any regulatory agency. University may comment separately on said results and reports to any regulatory agency, but shall not alter any submission from City 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 4 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 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 License Areas and Easement Area, including the movement of any Hazardous Substance through the air, soil, surface water, groundwater, or property. 6.5 City shall not—and shall ensure that the other City Parties do not—violate any Environmental Laws, including but not limited to those governing the Release, use, generation, storage, treatment, transportation, discharge, disposal or handling of Hazardous Substances in, upon, under, over or from the License Areas and Easement Area. City shall indemnify, defend and hold harmless University from and against any claim, damage or expense arising out of City’s breach of the foregoing obligations and covenants. 6.6 City, at its sole cost and expense, shall: a. Notify University prior to any activity on the License Areas and 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 any of the City Parties encounters a Hazardous Substance in that area; 5 d. Give immediate notice to Linnea Henkels of University’s Department of Environmental Health & Safety at 612.626.7095 (i) if the City Parties encounter a Hazardous Substance; (ii) if a Hazardous Substance is Released on or from the License Areas or Easement Area; (iii) of a violation of any Environmental Laws; (iv) of an inspection or inquiry by any governmental agency with respect to the City Parties’ use of the License Areas or Easement Area; or (v) if City receives any notice from any governmental agency alleging that any Environmental Laws have been violated by any of the City Parties with respect to their use of the License Areas or Easement Area. e. Promptly perform 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 Released by any of the City Parties. f. Promptly respond to and comply with any United States Environmental Protection Agency and/or Minnesota Pollution Control Agency notice, order, request, or demand relating to potential or actual contamination on the License Areas or Easement Area resulting from a Release by any of the City Parties. 6.7 If University has reason to believe that a Hazardous Substance has been Released on the License Areas or Easement Area by any of the City Parties, then University has the right, but not the obligation, to require City, at City’s sole cost and expense, to perform an environmental audit by an environmental consultant satisfactory to University. Such an investigation shall be commenced within ten (10) days after University’s request, and thereafter be diligently prosecuted to completion. City shall provide to University without charge an electronic copy of the environmental audit immediately after it is completed. 6.8 If any of the City Parties expose or disturb soils, water, or other materials that appear to be contaminated based on visual and olfactory observation and/or field screening activities, City shall test the soils, water, and other materials at City’s cost; testing shall be conducted by a certified laboratory. While the soils, water, and other materials are being tested, all potentially contaminated excavated 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 City. In addition, solely at University’s discretion and upon the University’s request, City will provide to University splits of any samples of materials that City collects so that University may undertake independent testing and analysis of the sample material. a. If testing confirms—or any agency with jurisdiction thereof determines—that the excavated soils, water, or other materials are contaminated, City shall, at its sole cost, collect, remove and appropriately dispose of all such contaminated soils, water, or other materials at an approved facility. City shall assume full responsibility for impacted soil, water, and all other materials collected, excavated and removed from the License Areas or Easement Area. City 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 University. City shall provide to University without charge copies 6 of all test results and documentation regarding analysis and disposal of impacted soil, water, and materials removed from the License Areas or Easement Area, including, but not be limited to, waste manifests, bills of lading, chain of custody documents and landfill/disposal facility receipt records. City shall also consult with University 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, City may with University’s prior written consent dispose of such materials on the License Areas or Easement Area in accordance with existing MPCA Guidelines. 6.9 Before performing any construction or other work on the License Areas or Easement Area, City shall provide to University all documents evidencing City’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, City shall provide to University documentation of compliance with University’s Storm Water Compliance Procedure. City shall make the documents available to University before construction commences and on a weekly basis during the course of construction as maintenance and inspection records become available. City shall submit to University a final summary report on all the above activities within thirty (30) days after substantial completion of construction. 6.10 If City fails to perform its obligations under this Section, University shall have the right, but not the obligation, to perform City’s obligations and charge City for the costs and expenses reasonably incurred by University in doing so. City shall reimburse University for all such costs and expenses within ten (10) days after receipt of an invoice therefor accompanied by reasonable supporting documentation. 7. Insurance. 7.1 City shall obtain and keep in force the following insurance: a. Occurrence based general liability insurance covering claims arising from operations under this Agreement, whether such operations are performed by City or the other City Parties, with limits required in Minnesota Statues Section 466. b. Workers compensation insurance in compliance with the statutory requirements of the State of Minnesota. c. City shall provide to University prior to this Agreement’s Effective Date fully executed Certificates of Insurance evidencing that it has the required coverage. d. City may self-insure with respect to the requirements of this Section. 7.2 The City's contractors (“Contractors”) shall obtain and keep in force the 7 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. Regents of the University of Minnesota and the City of Rosemount shall be named as an Additional Insureds for ongoing and completed operations for claims arising out of the acts or omissions of Contractors. 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-owned automobiles. Regents of the University of Minnesota and the City of Rosemount shall be named as an Additional Insureds for claims arising out of the acts or omissions of Contractors. 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. 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. An Umbrella or Excess Liability insurance policy may be used to supplement City's Contractors’ 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. 7.3 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 University; and (ii) that the policy is primary and any insurance maintained by University 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 University. All policies shall be written by a reputable insurance company acceptable to University or with a current AM Best Rating of A-VII or better, and authorized to do business in Minnesota. 7.4 City shall waive and require all contractors and consultants of every tier to waive all subrogation and recovery rights against University. This shall be provided on the commercial general liability policy using a Waiver of Transfer of Rights of Recovery 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. 8 7.5 No endorsements, except those expressly stated herein, may be included on any policy limiting coverage without University’s approval. 7.6 City shall require Contractors to provide to University prior to commencing any work on the License Areas and Easement Area fully executed Certificates of Insurance evidencing that the required coverage and endorsements. Upon request by University, City shall require Contractors to provide University with certified copies of insurance policies and all endorsements substantiating maintenance of the insurance required by this Agreement. 8. Indemnification and Release. City agrees to indemnify, defend, and hold harmless University 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) the City Parties’ use of the License Areas or Easement Area; or (ii) any breach by City of this Agreement 9. Intentionally Deleted. 10. Default. If at any time City or the other City Parties fail to perform their obligations under this Agreement, University, in its sole discretion, may, upon not less than 10 days written notice to City (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 City’s obligations and charge City for its costs reasonably incurred in doing so; or (iii) terminate the Agreement and remove the City Parties and their property and equipment from the License Areas. City shall promptly reimburse University for University’s uses incurred in performing City’s obligations and/or removing the City Parties from the License Areas within ten (10) days after receiving an invoice therefor. University’s remedies set forth in this Section shall be in addition to, and not in limitation of, any other remedies that University 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 sent by email (with confirmation of receipt by recipient) 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 University, is addressed or personally delivered to: Regents of the University of Minnesota c/o Real Estate Office 319 15th Avenue SE, Suite 451 Minneapolis MN 55455 reo@umn.edu and University of Minnesota Office of the General Counsel 9 Attn: Transactional Law Services Group 360 McNamara Alumni Center 200 Oak Street SE Minneapolis, MN 55455-2006 ogccontracts@umn.edu (ii) in the case of City, is addressed or personally delivered to: City Administrator Rosemount City Hall 2875 145th Street West Rosemount, MN 55068 pwadm@ci.rosemount.mn.us 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 may be executed in electronically and in counterparts, each counterpart of which shall be deemed an original, and all of which shall constitute one Agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement. 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. City may not transfer or assign its rights under this Agreement without University’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 are incorporated by reference and hereby made a part of this Agreement. (REMAINDER OF PAGE INTENTIONALLY BLANK) 10 IN WITNESS WHEREOF, the University and City execute this Agreement. Regents of the University of Minnesota By: __________________________________ Name: Title: Date: City of Rosemount By: Name: Title: Mayor Date: By: Name: Title: City Clerk Date: ________________________________ A-1 EXHIBIT A Easement Area and License Areas A-2 B-1 EXHIBIT B License Areas That part of the Southwest Quarter of Section 33, Township 115, Range 19, Dakota County, Minnesota, described as follows: Commencing at the northwest corner of said Southwest Quarter; thence on an assumed bearing of North 89 degrees 42 minutes 48 seconds East along the north line of said Southwest Quarter, a distance of 33.00 feet to the intersection with a line lying 33.00 feet easterly of, as measured at a right angle, and parallel with the west line of said Southwest Quarter, being the east right-of-way line of Biscayne Avenue; thence South 00 degrees 11 minutes 04 seconds West along said east right-of-way line, a distance of 56.90 feet to the point of beginning of the easement to be described; thence continuing South 00 degrees 11 minutes 04 seconds West along said east right-of-way line, a distance of 600.00 feet; thence South 89 degrees 48 minutes 56 seconds East, a distance of 5.00 feet; thence North 00 degrees 11 minutes 04 seconds East, a distance of 25.00 feet; thence North 03 degrees 59 minutes 55 seconds East, a distance of 150.33 feet; thence North 00 degrees 11 minutes 04 seconds East, a distance of 200.00 feet; thence North 05 degrees 31 minutes 34 seconds West, a distance of 50.25 feet; thence North 00 degrees 11 minutes 04 seconds East, a distance of 50.00 feet; thence North 04 degrees 23 minutes 22 seconds West, a distance of 125.40 feet to the point of beginning. AND That part of the Northwest Quarter of Section 33, Township 115, Range 19, Dakota County, Minnesota, described as follows: Commencing at the southwest corner of said Northwest Quarter; thence on an assumed bearing of North 89 degrees 42 minutes 48 seconds East along the south line of said Northwest Quarter, a distance of 33.00 feet to the intersection with a line lying 33.00 feet easterly of, as measured at a right angle, and parallel with the west line of said northwest Quarter, being the east right-of-way line of Biscayne Avenue; thence North 00 degrees 11 minutes 04 seconds East along said east right-of-way line, a distance of 518.10 feet to the point of beginning of the easement to be described; thence continuing North 00 degrees 11 minutes 04 seconds East along said east right-of-way line, a distance of 800.00 feet; thence South 89 degrees 48 minutes 56 seconds East, a distance of 5.00 feet; thence South 00 degrees 11 minutes 04 seconds West, a distance of 100.00 feet; thence South 05 degrees 31 minutes 34 seconds East, a distance of 100.50 feet; thence South 00 degrees 11 minutes 04 seconds West, a distance of 200.00 feet; thence South 05 degrees 53 minutes 42 seconds West, a distance of 50.25 feet; thence South 00 degrees 11 minutes 04 seconds West, a distance of 275.00 feet; thence South 07 degrees 46 minutes 45 seconds West, a distance of 75.66 feet to the point of beginning.