HomeMy WebLinkAbout6.h. Northern Natural Gas Encroachment Agreement for Autumn PathI:\City Clerk\Agenda Items\Approved Items\6.h. Northern Natural Gas Encroachment Agreement for Autumn Path.docx
EXECUTIVE SUMMARY
City Council Regular Meeting: August 1, 2022
AGENDA ITEM: Northern Natural Gas Encroachment
Agreement for Autumn Path
AGENDA SECTION:
Consent
PREPARED BY: Brian Erickson, PE, City Engineer AGENDA NO. 6.h.
ATTACHMENTS: Agreement APPROVED BY: LJM
RECOMMENDED ACTION: Motion to Approve an encroachment agreement with Northern
Natural Gas for Autumn Path public infrastructure constructed within a gas line easement.
BACKGROUND
The construction of Autumn Path in coordination with the final phases of the Bella Vista development
resulted in public infrastructure crossing an existing Northern Natural Gas (NNG) pipeline easement.
This crossing was allowed on the condition that the City of Rosemount executed an encroachment
agreement with NNG.
During the planning and design phase the city’s consultant identified several constraints within the planned
Autumn Path corridor. The NNG easement was one of those issues and as a result of coordination NNG
allowed the crossing of their easement with road and utilities. A condition of that approval was the
requirement that the City of Rosemount execute an encroachment agreement with NNG. That agreement
was received this year.
The attached encroachment agreement details the constraints on the city regarding the easement and
includes limiting of tree planting, fencing and sprinkling. Additionally, should the city violate the
easement, NNG reserves the right to terminate the easement. Should that occur the city would then be
required to remove any and all encroachments within a reasonable timeframe.
The city attorney has reviewed the agreement and the requested changes have been accepted by NNG.
RECOMMENDATION
Staff recommends that the City Council approve the encroachment agreement Northern Natural Gas.
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Drafted by/Return to:
Jason N. Godwin
Northern Natural Gas Company
1120 Centre Pointe Drive, Ste. 400
Mendota Heights, MN 55120
651-456-1711
(20-014)
MNM80301-01
EATS 77958
ENCROACHMENT AGREEMENT
This instrument made and entered into this _________ day of July, 2022, by and between
NORTHERN NATURAL GAS COMPANY, a Delaware corporation, (hereinafter referred to as
“Northern”), with principal offices at 1111 South 103rd Street, Omaha, Nebraska 68124-1000, and
THE CITY OF ROSEMOUNT, a Minnesota municipal corporation (hereinafter referred to as
“Owner” whether one or more).
WITNESSETH THAT:
WHEREAS, Northern is the holder of an easement granted by Emma Goss and William J.
Goss, her husband, et al., on September 1, 1932, covering the following described premises in
Dakota County, Minnesota:
Northeast Quarter (NE¼) of Section 21, Township 115N Range 19W
which easement was recorded November 10, 1932, as Document No. 131561, in Book 193 of
Deeds, at Page 462-463, and defined to an eighty foot (80') wide strip July 21, 196 by that
Modification and Amendment of Easement Grant recorded August 14, 1967, as Document No.
340689, in Book K of M.R., at Page 184; all in the Office of the Register of Deeds for Dakota
County, Minnesota (hereinafter referred to as "Easement"); and
WHEREAS, pursuant to the authority contained in said Easement, Northern has
constructed and currently operates and maintains a 12-inch pipeline (MNM80301), along with the
right to install additional facilities from time to time (hereinafter referred to as “Pipeline
Facilities”), across and through the above described premises; and
WHEREAS, Owner is the present owner of the following described real property, with
Pipeline Facilities situated upon the following described land in Dakota County, Minnesota
(hereinafter referred to as the “Owned Premises”):
OUTLOT B of Bella Vista
WHEREAS, Owner plans to work in concert with private developers to construct a
Subdivision known as Bella Vista 7th Addition, including streets, curbs, sewers, grading, storm
water management, and landscaping (hereinafter referred to as “Encroachment”) upon and within
a portion of the confines of Northern’s Easement as depicted on Exhibit “A”, with this written
consent; and
WHEREAS, Owner has been advised by Northern that Northern is a natural gas transmission
company and that Northern operates a high pressure underground natural gas pipeline through the
Owned Premises; and
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WHEREAS, Owner has requested permission from Northern to maintain, use, and enjoy the
Encroachment upon a portion of Northern’s Easement and in close proximity to Northern’s
Pipeline Facilities; and
WHEREAS, Northern is willing to grant such permission upon the terms and conditions set
forth as follows.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. Northern hereby grants permission to Owner to maintain, operate and use upon the
Owned Premises and in close proximity to Northern’s Pipeline Facilities, the said Encroachment,
subject to the following conditions:
A. That Owner assumes all risks for damages, injuries, or loss to either property or
persons, which may be incurred by Owner or its respective agents, invitees, or licensees present
on or in the vicinity of the Easement and in any way associated with said Encroachment.
B. That the permission granted herein is limited exclusively to the proposed
Encroachment within Northern’s Easement. Owner shall not alter the grade or permit such
alteration anywhere on the land upon which Northern has reserved its easement rights, without the
prior express written consent of Northern.
C. That Owner shall at all times conduct all its activities on said Easement in such a
manner as not to interfere with or impede the operation of Northern’s Pipeline Facilities and
activities in any manner whatsoever.
D. That Owner or Northern shall have the right to remove or clear any trees or shrubs
within the confines of Northern’s Easement.
E. That Owner shall not install fences within 30 feet of Northern’s Pipeline Facilities
within the confines of Northern’s Easement without prior written approval by Northern.
F. That Owner shall not install any sprinkler heads within 5 feet of Northern’s Pipeline
Facilities and will hand dig any sprinkler system lines crossing Northern’s Pipeline Facilities or
that come within 24 inches of Northern’s Pipeline Facilities.
G. That Owner agrees that the Encroachment shall be constructed according to the
requirements and restrictions set forth on Exhibit “B” attached hereto.
2. Owner agrees to indemnify, protect, and hold Northern, its parent, affiliates, subsidiaries,
and their directors, officers, employees, representatives, and agents harmless from and against any
and all actions or causes of action, claims, demands, liabilities, loss, damage, injury, suit,
proceeding, judgment, cost, or expense of whatever kind or nature, including but not limited to
reasonable attorneys’ fees, arising from or as a result of any incident, act, action, cause of action,
negligence, transaction or omission of Owner in connection with, or incidental to the construction,
operation, maintenance, or use of the said Encroachment within or upon the Easement Area, or
from the operation, maintenance, use or presence of Northern’s Pipeline Facilities upon or in the
vicinity of the Encroachment except where such loss, cost, liability, or expense was proximately
caused by the negligence of Northern or its employees. It is understood and agreed by the parties
that under this Agreement, Owner shall be jointly and severally liable if the liability results from
the actions of a third-party contractor engaged by the Owner.
3. Owner agrees that protection of Northern’s Pipeline Facilities will be maintained at all
times in accordance with Northern’s Engineering Standards for encroachments. Northern is
responsible for providing the Owner with an engineering review within thirty (30) days of
receiving written drawings or plans of any proposed construction, excavation, or grading within
the Easement on the Owned Premises.
4. Should Northern need to remove any of Owner’s said Encroachment within its Easement
in order to construct, maintain, operate, repair, remove, or resize Northern’s existing or additional
Pipeline Facilities, Owner or its respective heirs, successors, and assigns shall pay the cost of
removing and replacing or reinstalling said Encroachment. In addition, all repair and maintenance
work performed by Northern on its existing or additional Pipeline Facilities located on the Owned
Premises shall be performed in a reasonable workmanlike manner and Northern shall restore the
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surface and grade of the Owned Premises where the work is performed, but shall not be liable for
loss, damage, or replacement to Owner’s said Encroachment or any associated equipment and
facilities that exist within the Easement, and in this regard, Owner hereby releases Northern, its
employees, agents, officers, and directors from any and all liability for any such loss or damage.
5. The Parties hereto understand that this Agreement in no way constitutes a waiver by
Northern of its rights to enjoy its Easement unencumbered by the construction of said
Encroachment within Northern’s Easement.
6. It is expressly agreed to by and between the parties hereto that if Owner is in violation of
any terms or conditions set forth in this Agreement, Northern, at its option, may terminate this
Agreement upon ten (10) days’ notice to Owner. In the event of such termination, Owner shall
remove any and all of said Encroachment which may be situated on the Easement within a
reasonable time, or if Owner fails to remove any and all of said Encroachment, Northern may, at
its option, remove said Encroachment at the expense of Owner and without any liability
whatsoever. It is further agreed that the failure by Northern to exercise such option as to any such
violation shall not constitute a waiver of Northern’s future right to exercise such option as to the
same or any future violation.
7. The provisions of the Easement, and all rights, powers, privileges, and duties, obligations,
and liabilities created thereby, remain in full force and effect and are not affected hereby except to
the extent and in the manner set forth above.
8. Owner agrees to indemnify, defend and hold Northern, its parent and affiliated
companies, and the directors, officers and employees of any such corporate entities harmless from
and against any liability, damage, claims, loss, cause of action, suit, proceeding, judgment, cost
(including the cost or expense of environmental response, removal or remediation activities), fees
or expense, including reasonable attorney’s fees arising from: (1) non-compliance with any laws,
regulations and orders applicable to the ownership or the operation and maintenance of the said
Encroachment on the Owned Premises described herein, and (2) any incidents, acts, releases,
negligence, transactions or omissions, or conditions on or affecting the Easement that would (i)
contribute to or constitute a violation of any local, state or federal environmental rule, regulation,
law or judicial order, (ii) result, in whole or in part, in any requirement to clean up or otherwise
remedy or remediate a condition, (iii) give rise to any lien, liability, injunction, order, restriction,
claim, expense, damage, fine or penalty, or (iv) adversely affect human health or the environment
at or near the Easement.
9. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED, AND AGREES ANY SUCH ACTIONS MAY NOT IN ANY
EVENT BE CONSOLIDATED TOGETHER.
This instrument and the covenants and agreements herein contained shall extend to and be
binding upon the heirs, executors, administrators, successors, and assigns of the parties and the
benefits of this Agreement shall run with the land.
[Remainder of page intentionally left blank. Signature and Acknowledgment pages follow.]
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IN WITNESS WHEREOF, the parties have executed this instrument the day and year first
above written.
“NORTHERN” “OWNER”
NORTHERN NATURAL GAS COMPANY CITY OF ROSEMOUNT
By: By:
Name: Bryan P. Kruger Name:
Title: Attorney-in-Fact Title: Mayor
By:
Name: __________________
Title: City Clerk
STATE OF NEBRASKA )
)SS
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me this ___ day of __________, 2022,
by Bryan P. Kruger, Attorney-in Fact, for Northern Natural Gas Company, a Delaware
corporation, on behalf of the corporation.
(S E A L)
Notary Public
My Commission Expires
STATE OF MINNESOTA )
)SS
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this ___ day of __________, 2022,
by ______________________, the _______________________, for City of Rosemount, a
Minnesota municipal corporation, on behalf of the municipal corporation.
(S E A L)
Notary Public
My Commission Expires
Phone(952) 937-5150 12701 Whitewater Drive, Suite #300Fax(952) 937-5822 Minnetonka, MN 55343(888) 937-5150Bottom of pipelineat 940.4, top ofpipeline at 941.4.Top of sanitary lineat 930.25 (10.15 ftclearance).Street at 948 (6.6 ftclearance).Bottom of pipelineat 940.4.Top of watermainat 937 (3.4 ftclearance).Top of watermainis at 938 (2.4 ftclearance).EXHIBIT A - Page 1 of 2
EXHIBIT A - Page 2 of 2
To: City of Rosemount, Lennar Homes
From: Northern Natural Gas
Subject: Bella Vista 7th Addition, S21 T115N R19W Dakota County MN Date: 01/30/2022
EATS# 77958
Northern Natural Gas (NNG) Engineering has reviewed the preliminary site plan provided by the developer, Lennar
Corporation, and designed by Westwood Professional Services, Inc. for the proposed Bella Vista 7th Additions. The
developer’s plan consists of grading, drainage, and erosion control.
The proposed development will encroach upon an NNG high pressure natural gas branch line, the 12-inch-diameter
Rosemount Junction to St Paul TBS 1P (M452A) in Section 21, Township 115N, Range 19W of Dakota County, MN,
near pipeline milepost 0.73. The proposed project area is currently a class 3 population density area.
Pipeline History
The M452A main line consists of 12.75” outside diameter (steel pipe. The line was originally installed in 1981.
Engineering Notes
Engineering does not have major issues with the installed depths of the foreign utilities and vertical clearance
distances. Engineering does not believe there will be major cathodic protection implications from the 8"
ductile iron water main with 2.4-feet of clearance and 3.4-feet of clearance.
NNG engineering prefers minimum 4’ depth of cover at roadway crossings.
Any grading over the NNG pipeline may not cause the pipeline to become shallow. See Grade Modifications
section of the below standard Encroachment Guidelines.
Encroachment Guidelines
An NNG representative shall be present at all times when excavation work is being performed within 25 feet
of NNG’s pipeline. The contractor shall provide NNG a Minnesota utility one call ticket with 48 hour notice
prior to excavating in the area.
Mechanical excavation is allowed up to 24 inches from the NNG pipeline. Hand excavation or hydrovac
excavation is required when excavating 24 inches or closer to NNG’s pipeline.
Permanent Structures: Any enclosed structure or building permanent in nature regardless of purpose may
not be installed inside the NNG easement and should be installed a minimum of 35 feet from NNG facilities.
Foreign Utilities: All foreign utilities (water, gas, sanitary, sewer, oil, communication, etc.) must cross
NNG’s pipelines at or near a right angle with a required minimum of 12 inches of separation. It is preferred
that foreign utilities cross under NNG’s pipeline where reasonable. Foreign utilities running parallel to NNG
facilities must be placed a recommended minimum offset of 30 feet from NNG facilities.
Appurtenances: All above grade appurtenances shall not interfere with ground patrols or leak surveys. All
light poles, manholes, signs, trees, shrubs, etc. must be placed a recommended offset distance of 30 feet from
NNG facilities.
Fence Posts: New residential, commercial and industrial fences may not cross pipelines. Fences running
parallel to NNG facilities have a minimum recommended offset of 30 feet.
EXHIBIT "B" - Page 1 of 2
Grade Modifications: Earthwork and other grade modification must maintain a minimum of 36 inches of
cover (or existing cover if less than 36 inches) over NNG’s pipeline after construction in all locations.
Grading modifications shall not be designed to impound water above NNG facilities.
Road Crossings: All road crossings must cross the NNG pipeline at or near a right angle and maintain a
minimum of three feet of cover over the pipeline within the roadway and road ditches. Roads running parallel
to NNG’s facilities must be outside the easement and offset a recommended distance of 25 feet from NNG
facilities.
Heavy Vehicle Crossings: As a guideline, all vehicular crossings over the NNG pipeline have the following
load restrictions (per wheel) without additional protection:
o ≥36” Cover – 24,000 lbs.
NNG engineering requests vehicle specifications for all construction equipment exceeding 80,000 lbs. gross
vehicle weight or exceeding the specified load restrictions that will be anticipated to cross NNG facilities.
NNG engineering shall recommend appropriate crossing protection methods, if required. Potential crossing
protection methods include: use of timber/steel plate matting, temporary bridge structures or pipeline
reinforcement.
Any damages or modifications to NNG’s facilities shall be repaired or modified at the expense of the
encroaching party. An estimate can be provided by NNG for any modifications or repairs as required.
NNG requires that the aforementioned encroachment conditions are met to ensure pipeline integrity and safety during
and after construction. NNG engineering will continue to review any revised construction plans and new proposals as
they are developed.
EXHIBIT "B" - Page 2 of 2