HomeMy WebLinkAbout6.f. Authorize Entry into Detour License Agreement with University of Minnesota
EXECUTIVE SUMMARY
City Council Regular Meeting April 19, 2022
AGENDA ITEM: Authorize Entry into Detour License AGENDA SECTION:
Agreement with University of Minnesota Consent
PREPARED BY: Nick Egger, P.E., Public Works Director AGENDA NO. 6.f.
ATTACHMENTS: Road License Agreement APPROVED BY: LJM
RECOMMENDED ACTION: Motion to approve City entry into agreement with University
of Minnesota granting City an easement for segment of Auburn Avenue
BACKGROUND
Maplewood Development began construction on underground infrastructure and grading for the first
phase of their Amber Fields development earlier this week. A portion of the scope for this phase will be
require a large trunk sanitary sewer line to be built within a portion of the Akron Avenue corridor as
Maplewood extends that street with their project. During the sewer work, access to Akron Avenue south
of the parking lot entrance for DCTC will be closed for several hundred feet, thereby restricting access
to the City’s UMore ballfield complex. With spring softball season beginning in mid-April, it will be
essential for teams and patrons of the ballfields to have a route of access. In order to enable the City to
detour ballfield access traffic through the UMore property using UMore private streets, an agreement
with the University of Minnesota is required.
The attached agreement document was provided to the City by the University in their format. Both City
Attorney Tietjen and I have reviewed the documents and are comfortable with the language in its final
format.
th
The detour is anticipated to be necessary beginning on or around the week of April 25, and will stay in
place for 4-6 weeks while Maplewood performs the trunk sewer installation and brings the roadway
corridor back up to grade. Thereafter, the rest of the Akron Avenue extension will be constructed under
traffic. The detour will be posted with signage to guide motorists to and through the alternative route.
The developer will keep the City apprised of their work schedule, and in turn the City will communicate
with DCTC as well as recreational sports teams to keep them aware of timing of activities.
RECOMMENDATION
Staff recommends the City Council approve entry into the attached license agreement with the University
of Minnesota to allow a detour of public traffic along University’s roadways to and from the UMore
ballfields complex, authorizing staff signature.
1
Road License Agreement
This Road License 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 political subdivision of the
State of Minnesota (“City” or “Licensee”).
WHEREAS, University is the owner of certain real property in Dakota County, Minnesota,
generally known as UMore Park (“University Property”), which property is served in part by
ndth
service roads identified as Audrey Avenue, 152 Street East, Babcock Avenue, 155 Street East,
and those portions of Akron Avenue as described on Exhibit A attached hereto (collectively,
“Service Roads”);
WHEREAS, Earl Street Partners II, LLC (“Developer”), pursuant to its acquisition of
approximately 435 acres of UMore Park land from University for residential development, which
acquisition included portions of existing Akron Avenue, is undertaking a project to construct
certain improvements on Akron Avenue in the City of Rosemount (“City”), Minnesota (the
“Project”);
WHEREAS, the City has access rights to and from the City’s UMore Ballfields, located at
14860 Akron Avenue (“City Ballfields”) from CSAH 42 and Akron Avenue pursuant to that
certain License Agreement between the City and University dated August 4, 2011 (“City
License”), which City License was assigned to and assumed by Developer on December 29, 2021;
WHEREAS, the Project will result in the temporary closure of a portion of Akron Avenue
adjacent to and north of the City Ballfields;
WHEREAS, City desires to obtain from University a temporary license over and across
portions of the Service Roads to temporarily provide an alternate route for the City and its invitees
to access the City Ballfields; and
University agrees to provide to City a temporary license according to the terms and
conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Provision of License.
1.1 University agrees to provide to City a temporary license over and across those portions of
the Service Roads depicted as part of the “Detour Route” on Exhibit A that are owned by
University (the “Detour Roadways”) for purposes of signage marking, repairing,
monitoring, and maintaining an alternate access route to and from the City Ballfields for
the benefit of City and users of the City Ballfields (the “License”). The City
acknowledges and agrees that University does not own or hold an interest in all portions
of the Service Roads that comprise the Detour Route, and that City is responsible for
obtaining additional access rights from other owners or interest holders of the Service
Roads. The License includes the right of City and its employees to enter upon the Detour
Roadways at all reasonable times for the purpose of corrective grading and filling,
signage installation, safety monitoring, and maintenance and restoration purposes
(“Work”), together with the right of the City and its invitees/users of the City Ballfields
to use the Detour Roadways for vehicular access to and from the City Ballfields (all of
the foregoing to whom such rights are granted are hereinafter referred to collectively as
the “City Parties”).
1.2 The City Parties’ rights to use the Detour Roadways 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 Detour Roadways that are of record or of which City has
knowledge; (b) all applicable federal, state, and local laws, regulations, ordinances, rules, and
requirements; and (c) applicable University ordinances, policies, procedures, and rules.
1.3 There is no separate use fee for this License.
2. Term; Operational Coordination.
2.1 The Agreement shall be effective on the Effective Date, and terminate the earlier
of (i) June 1, 2022 and (ii) the date the City Parties’ access to and from the City Ballfields is
restored from CSAH 42 (the “Term”).
2.2 The operational contacts for the City and University with respect to this Agreement
are as follows:
(b) University: Shari Sayles
612-236-5720
sesayles@umn.edu
(c) City: Nick Egger, PE
Public Works Director
651-322-2015
nick.egger@ci.rosemount.mn.us
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 Detour Roadways for the purposes of
this Agreement and shall keep University informed about the schedule and progress for restoration
of access to the City Ballfields from CSAH 42.
2
3. Use of the Detour Roadways.
3.1 City shall, and shall cause the other City Parties to, conduct all Work on the Detour
Roadways in compliance with all applicable local, state and federal health and safety regulations
for workers.
3.2 City shall, and shall cause the other City Parties to, perform all Work in a good,
safe, and workmanlike manner. City shall use its reasonable best efforts to ensure the City Parties
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 Detour Roadways.
3.3 Throughout the Term, the City shall maintain the Detour Roadways at City’s sole
cost and expense to provide a safe road surface, including correction of pre-existing and newly
created potholes and regrading of gravel roadways as needed due to weather conditions and/or use.
3.4 The City shall coordinate installation of additional signage at City’s sole cost and
expense clearly identifying the Detour Roadways as alternative access to the City Ballfields and
limiting the speed of vehicles to no greater than 20 miles per hour.
3.5 The City shall provide police patrol of the Detour Roadways in addition to the
City’s standard practice for detours at City’s sole cost and expense, and shall inform law
enforcement personnel of University’s concerns about the temporary public access through
University Property allowed by this Agreement: general public safety, speeding, trespassing, waste
dumping, and the presence of physical hazards and attractive nuisances.
3.6 City shall use its best efforts to minimize interference with or damage to
University’s Property and the conduct of its business thereon.
3.7 City, at its sole cost and expense, shall promptly restore any damage to the
University’s Property arising from or related to the City Parties’ use of the Detour Roadways
pursuant to this Agreement.
3.8 No later than expiration of the Term or earlier termination of this Agreement, City
shall: (a) remove all equipment, signage, and other property placed upon the Detour Roadways by
the City Parties; and (b) remove all debris resulting therefrom; and (c) in coordination and
consultation with the University, promptly repair and restore the surface of the Detour Roadways
to a condition equal to or better than pre-existing conditions at City’s sole cost and expense.
3.9 City shall keep the Detour Roadways 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.
3.10 Reservation of Rights. University reserves the right to use the Detour Roadways
on behalf of itself, its contractors, lessees, employees, agents, and invitees, and to inspect the City
3
Parties’ use thereof, and the City and University shall work cooperatively to coordinate the
respective uses of the City and University thereon.
4. Condition of the Detour Roadways; Environmental.
4.1 University has made no representation or warranty whatsoever to City concerning
the condition of the Detour Roadways. City accepts all rights granted under this Agreement in an
“AS IS, WHERE IS” and “WITH ALL FAULTS” condition.
4.2 City represents that it has inspected the Detour Roadways and enters into this
Agreement with knowledge of their condition. City shall determine the suitability of the Detour
Roadways 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 CC Parties can successfully use the Detour Roadways for
alternate access to and from the City Ballfields or CSAH 42, as applicable.
4.3 City shall provide to University without charge electronic copies of any test results
and reports it or other City Parties obtain pertaining to the Detour Roadways. All test results and
reports shall be sent to the University of Minnesota, Real Estate Office, 451 Donhowe Building,
th
319 15 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.
4.4 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 long,
thin fibers that readily separate when broken or crushed; (vi) radon; (vii) any other hazardous or
4
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 Detour Roadway, including the movement of any Hazardous
Substance through the air, soil, surface water, groundwater, or property.
4.5 City shall not—and shall use its reasonable best efforts to 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 Detour Roadways or University Property.
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.
4.6 City, at its sole cost and expense, shall:
a. Notify University prior to any activity on the Detour Roadways 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 Work the immediate area if any of the City Parties encounters a
Hazardous Substance in that area;
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 Detour
Roadways; (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 Detour Roadways;
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 Detour Roadways.
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.
5
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 Detour Roadways or University
Property resulting from a Release by any of the City Parties.
4.7 If University has reason to believe that a Hazardous Substance has been Released
on the Detour Roadways or University Property by any of the City Parties, then University and
City shall work cooperatively to perform an environmental audit by an environmental consultant
satisfactory to both parties at City’s sole cost and expense. Such an investigation shall be
commenced within ten (10) days after discovery, 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, including drafts if requested by University.
Not in limitation of any provision in this Agreement, all testing and remediation shall be at City’s
sole cost, and the City shall not dispose of any contaminants on the University’s Property.
4.8 For the purposes of storm water management from the Detour Roadways, to the
extent applicable, City shall serve as the “owner” for purposes of Minnesota Rules 7090 and shall
be responsible for obtaining, and complying with, any and all required permits, including, without
limitation, any applicable grading permit from University.
4.9 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 (including attorneys’ fees and costs) reasonably incurred by University in doing so. City
shall reimburse University for all such costs and expenses within forty (40) days after receipt of
an invoice therefor accompanied by reasonable supporting documentation.
5. Insurance.
5.1 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.
5.2 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 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
6
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.
5.3 City shall 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.
5.4 No endorsements, except those expressly stated herein, may be included on any
policy limiting coverage without University’s approval.
6. Indemnification and Release. City agrees to indemnify, defend, and hold harmless
University, its successors and assigns and their respective 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) (collectively,
“Damages”) resulting from or in connection with (i) the City Parties’ use of the Detour Roadways;
or (ii) any breach by City of this Agreement. Notwithstanding the foregoing, the City reserves its
right to assert any immunity or limits on liability under Minn. Stat. Ch. 466, or other applicable
State or Federal law, in its defense of such claims.
7. 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 and City’s failure to cure default: (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 Detour Roadways and discontinue all access thereto. City shall promptly
reimburse University for University’s costs and expenses (specifically including attorneys’ fees)
incurred in enforcing its rights upon a default, including, without limitation, performing City’s
obligations and/or removing the City Parties from the Detour Roadways within forty-five (45)
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.
8. Notices. Except as otherwise allowed by Section 2.2 above, 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); and
(i) in the case of University, is emailed or personally delivered to:
Regents of the University of Minnesota
c/o Real Estate Office
th
319 15 Avenue SE, Suite 451
Minneapolis MN 55455
reo@umn.edu
7
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 City, is emailed or personally delivered to:
Nick Egger, PE
Public Works Director
City of Rosemount
2875 145th Street W
Rosemount, MN 55068
nick.egger@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.
9. Counterparts. This Agreement may be executed 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.
10. 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.
11. 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.
12. Assignment. City may not transfer or assign its rights under this Agreement without the
prior written consent of University.
13. 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.
14. Exhibits. The Recitals and attached Exhibits A are incorporated by reference and
hereby made a part of this Agreement.
15. Survival. City’s obligations under Sections 3.7, 3.8, 3.9, 4.3, 4.4, 4.5, 4.6.e, 4.6.f, 4.7, 4.9,
6, and 7 of this Agreement shall survive the expiration or earlier termination of this Agreement.
8
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:
Date:
9
EXHIBIT A
The License and access rights given by University under the Agreement for the depicted Detour
Route extend only to those portions of the Detour Route owned by University.
A-1