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HomeMy WebLinkAboutItem 06.uNovember 2, 2011 00 Item No. Right Of Entry Agreement between Metropolitan Airports Commission and the City of Lakeville Proposed Action Staff recommends adoption of the following motion: Move to enter into agreement for entry onto Metropolitan Airport Commission property for the purpose of cleaning up the former police range site at 225 East of Cedar Avenue. Overview The city was allowed to use a borrow pit at 225 East of Cedar Avenue to use as a shooting range. The city signed a contract with MT2 LLC of Colorado in October to clean up the site. The access agreement will allow the city, consultant and contractor(s) to enter the site for the purpose of cleaning and closing the range. Primary Issues to Consider The contractor is prepared to start work and this agreement is needed to allow entry. The City Attorney has worked closely with MAC in the creation of this agreement. The work to be performed is required by law. Supporting Information Agreement with MAC, Maps of the area and insurance requirements for the project. ohn Kornmann, Administrative Sergeant Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: TEMPORARY RIGHT OF ENTRY AGREEMENT ON THE SHOOTING RANGE SITE AT AIRLAKE This Temporary Right of Entry is granted this day of 2011, by the Metropolitan Airports Commission, a public corporation under the laws of the State of Minnesota, ( "Grantor "), to the City of Lakeville (the "Grantee "), in accordance with the conditions herein described. (1) Recitals WHEREAS, Grantor is the owner of the real property at Airlake Airport ( "Airport"), located in Dakota County, Minnesota ( "Property "), graphically shown in the attached Exhibit 1; WHEREAS, Grantor identified the Property for future development at the Airport; WHEREAS, Grantee's police department has used the Property for purposes of a small arms "shooting range;" WHEREAS, the Dakota County Sheriff's Department also has used the Property for purposes of a small arms "shooting range." WHEREAS, Grantee has conducted a Phase I Environmental Site Assessment in November 2010 which identified remediable levels of lead and arsenic contamination; WHEREAS, Grantee has solicited remediation options and seeks to enter upon the Property in order to clean up the Property; WHEREAS, Grantor is willing to give Grantee a Temporary Right of Entry over and across portions of the Grantor's Property; WHEREAS, Grantor and Grantee recognize that this Temporary Right of Entry shall not be construed to bind the parties to a future lease or contract or to any terms of a future lease or contract for any Property at the Airport for future use as a shooting range; WHEREAS, Grantor has determined that by following certain guidelines the authorized uses under this Temporary Right of Entry can be accomplished without conflict with the Airport operations and the Grantor's use of the property; NOW, THEREFORE, for good and valuable consideration, as described herein, Grantor hereby grants and conveys this Temporary Right of Entry to the Grantee for the purpose of remediafion of the environmental contamination on the Property and restoration of the Property. The requirements and conditions for granting this Temporary Right of Entry are stated herein. (2) Term -1- This Temporary Right of Entry is valid from the date of execution of this agreement until Grantor, in its sole discretion, revokes this Temporary Right of Entry pursuant to Section 10. (3) Conditions of the Temporary Right of Entry (a) Grantee has prepared a Lakeville Shooting Range Investigation Results and Treatment Options Report ( "Report") and has entered into an agreement with Metals Treatment Technologies, LLC ( "MT2 "), a Colorado limited liability company, for remediation of the property. Grantee, or its contractor, shall perform remediation on the Property in accordance with this agreement and with the Minnesota Pollution Control Agency's ( "MPCA ") August 24, 2011 approval letter of the Report. (b) All costs associated with the Grantee's work as defined in this Temporary Right of Entry shall be borne by the Grantee. (c) Grantee shall be responsible for obtaining all necessary permits and approvals in its own name before starting work on remediation and final restoration. Grantee shall supply Grantor with copies of all permits, work plans, information, reports, notices and test results which are obtained and /or prepared in connection with the work and copies of all materials submitted by Grantee to any regulatory agency, including the MPCA, or received by the Grantee from any regulatory agency. Grantee shall provide Grantor with the right to review and provide comments to the site and safety plan and any future work plans prior to or contemporaneous with such plans' submittal to the MPCA. (d) Grantee is authorized to use such equipment necessary for the purposes of executing its approved plan of remediation and final restoration so long as such equipment does not impact airport operations; equipment and materials shall only be stored as approved by the Grantor's Airport Manager. The area for storage, if any, shall be restored completely to the condition in which it existed prior to use of the area for storage, and to the satisfaction of Grantor. (e) Grantee is responsible for addressing, to the reasonable satisfaction of Grantor, any safety issues or impacts to airport operations in accordance with appropriate Federal, State, and MAC regulatory guidance. (f) Grantee shall keep the property, and this Temporary Right of Entry free and clear from any liens for labor performed or materials furnished and defend, at Grantee's cost, each and every lien asserted or filed against the land, any part thereof, or against this Temporary Right of Entry and pay each and every judgment resulting from such lien. (g) All work shall be carried on at such time or times and under such control as the Grantor's Airport Manager may impose to coordinate the same with the necessary continuous operation of the Airport, and shall not interfere with adjacent properties. (h) Grantee agrees to complete the remediation and final restoration of the Property to the reasonable satisfaction of Grantor as directed in Exhibit 2 ( "Restoration Plan"). Throughout the completion of the work by Grantee, Grantor may request inspection from Dakota County, the -2- MPCA, or any other government authority. Grantor also reserves the right to perform its own independent environmental testing on the Property. All access roads and adjacent properties shall be in the same condition upon completion as at initiation of this Temporary Right of Entry. (i) Grantee agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations. (j) Use of the property subject to this Temporary Right of Entry shall at all rimes comply with requirements under FAA regulations and state zoning requirements. No use will be allowed that adversely affects the Airport's capacity, security, safety, or operations. (k) Grantee shall have its own insurance as directed in Exhibit 3 and shall include Grantor as an additional insured. (1) Grantee's employees, agents, contractors and subcontractors or any other persons conducting activities on the Property for Grantee for purposes of remediation and restoration shall be bound by all terns of this Temporary Right of Entry. (4) Indemnification Grantee agrees to indemnify and save harmless Grantor, its Commissioners, officers, employees, agents and any successors, as well as any successor's to Grantor's interests, from any and all claims or causes of action arising or claimed to arise by reason of injury or death to person or damage to property and arising out of or incidental to Grantor's grant to Grantee of this Temporary Right of Entry or out of act or omission of person or persons incident to use and occupancy of the property. Grantee shall either (i) maintain insurance, a standard term policy or policies of insurance in amounts as hereinafter set out against public liability, blanket contractual liability and property damage including personal and advertising and products liability, or (ii) provide self - insurance of equivalent protection. Such policy or policies shall be in the amount of statutory limits provided by Minn. Stat. 466.04, or as such statute may be amended or modified from time to time, which currently requires one million five hundred thousand dollars ($1,500,000) per accident or occurrence or five hundred thousand dollars ($500,000) per person. The general liability insurance shall name Grantee as insured and shall also name Grantor as additional insured by endorsement to the policy or policies. Grantee also shall maintain statutory workers' compensation insurance or self - insurance for all employees performing work under this agreement. Nothing in this Temporary Right of Entry constitutes a waiver by Grantee of any statutory or common law, defenses, immunities, or limits on liability. The obligation of Grantee under this section cannot exceed the greater of (i) the amount that Grantee would be obligated to pay under the provisions and limitations of Minn. Stat. Chap 466 or (ii) the amount of insurance carried by Grantee applicable to a claim referred to in the first sentence of this Section 6. (5) Compliance with Laws Grantee shall comply with all laws, ordinances, rules and regulations of the United States of America, the State of Minnesota, or of agencies, departments or divisions thereof including -3- those of Grantor relating to lands under this Temporary Right of Entry. (6) Environmental Responsibilities Grantee shall be responsible for and shall indemnify, defend and hold harmless the Grantor against any environmental costs associated with the Grantor's Property, which arise out of or were caused by Grantee's actions, inactions, or activities related to the Grantor's Property during the term of this Temporary Right of Entry, including but not limited to liabilities, fines, damages, injuries, response costs or claims, attorney fees, and costs associated with meeting all applicable regulatory agency requirements. Grantee's grant of indemnity contained within this Section shall survive the termination of this Temporary Right of Entry. (7) Grantor's Right Of Entry Grantor shall at all times and through its agents and employees or contractors Have a right of entry upon the lands under this Temporary Right of Entry, as may be necessary in the development, maintenance, operation of the Airport. (8) Grantor's Revocation (a) Grantor shall have the right to revoke this Temporary Right of Entry at any time, at Grantor's sole discretion. (b) In the event Grantor revokes this Temporary Right of Entry, Grantor may, at Grantor's sole discretion, require Grantee to repair any damage caused by Grantee and to restore the property to its original condition before the commencement of this Temporary Right of Entry, with all of the above subject to the satisfaction of Grantor and completed at Grantee's sole expense. (9) Civil Rights Grantee assures that it will comply with pertinent statutes, Executive Orders, and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from federal assistance. This Provision obligates Grantee or its transferee for the period during which federal assistance is extended to the airport program, except where federal assistance is to provide or is in the form of personal property or real property or interest therein or structure or improvements thereon. In these cases, the Provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the Property is used by the sponsor or any transferee for the purpose for which federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the Property. (10) Affirmative Action and Nondiscrimination In accordance with Grantor's Affirmative Action Policies, no person shall illegally be -4- excluded from full -time employment rights in, be denied the benefits of, or be otherwise subjected to discrimination in the project which is the subject of this Temporary Right of Entry on the basis of race, creed, color, sex, marital status, public assistance status, age, disability, or national origin. The Affirmative Action Policies as may be amended from time to time shall be applicable to this Temporary flight of Entry. (11) Without Prejudice It is understood that the granting of this Temporary Right of Entry and use of the Grantor's Property is conditioned upon and shall be without prejudice to the rights of the Grantor as owner and operator of the aforesaid public Airport of which the subject Grantor's Properly constitute a part. (12) Commitments to Federal and State Agencies (a) Nothing in this Temporary Right of Entry shall be construed to prevent Grantor from making such commitments as it desires to the Federal Government or the State of Minnesota in order to qualify for the expenditure of Federal or State funds on the Airport. (b) This Temporary Right of Entry shall be subordinate to the provisions of and requirements of any existing or future agreement between Grantor and the United States, relative to the development, operation, or maintenance of the Airport. This Temporary Right of Entry and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or non - exclusive use of the Airport by the United States during the time of wax or national emergency. IN WITNESS WHEREOF, the parties of this Temporary Right of Entry have hereunto set their hands on the dates written below: METROPOLITAN AIRPORTS COMMISSION By: Its: Date: CITY OF LAKEVILLE IIn Title: -5- \ \ \ \ \ I \ 4 ' �� \\ ACCESS ROAD ED SIMS � � I 1 I 1 t l e 1 1 S H ! i e 2, 1 a S"ln2 e), cs, I / C$1 ( W I o mm / QDHS 28 WSW ( TR1 F ,' �a�e i / v" gH8 )2 .. � NB 2B If i201 I ) / , � ® / c9a 1 ne 22 � UILDIN ? ' ! (Dc . OF SLO ETOE H0 2n " ' \ f i 1 sw-, _ NN J V I� E32 -, wee �1 v, wF -vo 1 , I N ��� EXISTING TOP OF BERM LIMIT OF GRADING - J (ice LEGEND GWI PROPOSED GROUNDWATER MONITORING WELL 'wv-1c PROPOSED WETLAND PIEZOMETER wETLANo LAKEVILLE SHOOTING RANGE 'n=n PROPOSED TEST PIT ®csa PROPOSED SURFACE CONFIRMATION SAMPLE FINAL GRADE PLAN SURFACE WATER AND SOIL SAMPLE Sw -, SCALE Hem HAND BORING LOCATION PROJECT ID 10L009 DATE: APPROXIMATE EXISTING TREE LINE ARE IO2Wtt FIGURE NO. PREPD BV:CKV — 960 — APPROXIMATE FINAL GRADE (TINTERVAL) CHECKED BV: KMMi teen � ®�� nm..neceunern.emem ey uc 10/25/2011 937:02 AM ckv X'AMSVE \20IDV0L009 -00AcadAehib'RS and fin,—Afinol plan.d, 0 2011 FA ffi"trtlme B EnWmnmen( U-C Exhibit 3 INSURANCE 1. Required Insurance Effective as of the first day of entry upon the Property by Grantee, and continuing during the entire period of this Temporary Right of Entry, Grantee is solely responsible to obtain and maintain in full force all insurance coverage specified in this Temporary Right of Entry, including the following insurance coverage. Grantee has the right, but not the duty, to verify that the insurance required in this Temporary Right of Entry has been obtained and maintained in full force. Grantee may satisfy this requirement at its sole responsibility by having Contractors and Subcontractors at any level obtain and maintain the required insurance. This in no way limits the liability of the Grantee to Grantor for the required insurance. a. Grantee shall either (i) procure and maintain insurance, with underwriters licensed to underwrite such insurance in Minnesota, a standard term policy or policies of insurance in amounts as hereinafter set out protecting both Grantor and Grantee against public liability and property damage, or (ii) provide self - insurance providing equivalent protection. Such policy or policies shall be in the amount of statutory limits provided for by Minn. Stat. § 466.04, or as such statute may be amended or modified from time to time, and in accordance with any other applicable law. Grantee is responsible to ensure that such policy or policies shall provide for a minimum of ten (10) days written notice of cancellation. It is understood that the specified amounts of insurance in no way limit the liability of Grantor to Grantee. Grantee shall furnish a certificate from the insurance carrier or carriers using the standard ACORD form, showing such insurance to be in full force and effect during the term of this Temporary Right of Entry, or shall deposit copies of the policies, which give this coverage with Grantee, or provide evidence of self - insurance satisfactory to Grantor. All such policies shall name Grantor as additional insured. b. For Grantee and all Contractors and Subcontractors, worker's compensation insurance and employer's liability insurance with no less than the minimum limits required by Minnesota law if Grantee or Contractors or Subcontractors have employees located at the Property. Employer's liability insurance will have limits of at least $100,000.00 bodily injury per disease per employee, $500,000.00 bodily injury per disease aggregate and $100,000.00 bodily injury per accident. The policy or Grantee by this Temporary Right of Entry shall agree to a waiver of subrogation against Grantee. Exhibit 3 2. Form of Insurance /Grantor's Riphts The liability policies required above shall name Grantor as an additional insured and shall provide insurance with respect to Grantee's full indemnification and defense responsibilities contained in this Temporary Right of Entry. All required insurance policies shall insure on an occurrence and not a claims -made basis, shall be issued by insurance companies which are licensed or admitted in Minnesota, and shall not be cancelable, reduced or materially changed unless thirty (30) days prior written notice shall have been given to Grantor. Grantee's insurance is primary; therefore any policy issued to Grantor providing duplicate or similar coverage shall be deemed excess over Grantee's policies. Grantee shall provide the insurance required above for the benefit of Grantor, including all liabilities, losses, damages, suits, actions, claims, judgments, settlements, fines or demands against Grantor. The insurance shall include coverage for Grantor's legal fees and costs for investigation and defense by legal counsel acceptable to Grantor of any claim and any legal fees and costs incurred by Grantor. Grantee shall be responsible for all deductibles. Grantee and its insurer by policy endorsement shall waive all subrogation rights against Grantor on all claims and insurance policies. Original certificates, using the standard ACORD form, or at Grantor's option, copies of the policies evidencing coverage shall be delivered to Grantor or to its designated agent at least ten (10) days prior to the first day of the tern of this Temporary Right of Entry and at least fifteen (15) days prior to each renewal of such insurance. If Grantee fails to comply with these insurance requirements or to deliver to Grantor copies of such policies and certificates evidencing the required coverage, Grantor, in addition to any remedy available pursuant to this Temporary Right of Entry or otherwise and without providing any notices required under Section 19 [Default], may, but shall not be obligated to, obtain such insurance, or a bond or other method of risk transfer, and Grantee shall pay to Grantor on demand the premium costs thereof, plus an administrative charge of twelve percent (12 %). 3. Insurance Requirements for Contractors /Subcontractors Grantee shall include and enforce the following provisions in any contracts for work done on the Property: a. Contractors' and Subcontractors' Insurance The contractor shall not commence work under this contract nor shall contractor allow any subcontractor to commence work until all insurance hereinafter required has been procured and such insurance is approved by Grantor. Insurance shall be placed with companies rated A- or higher by Exhibit 3 A.M. Best. Insurance as hereinafter provided shall be kept intact and in force throughout the term of this construction contract. The insurance shall be in a form satisfactory to Grantor and copies of policies or certificates using the standard ACORD form, evidencing such coverage shall be furnished upon Grantor's request during the duration of the construction contract. The contractors shall furnish four (4) copies of an insurance certificate to Grantor or its designated representative using the most current standard ACORD form as evidence of the required insurance. The certificate shall indicate that at least fifteen (15) days' prior written notice will be given to Grantor in the event of cancellation, nomenewal or any material change in the policies. The insurance certificate must be signed and dated by an authorized representative of the insurance company. The contractor agrees to obtain, maintain, and pay for all insurance, as set forth below, that will insure for liability for all damages or injury to any person or any property in any manner connected with or resulting from the work provided for in this construction contract or resulting from the use by the contractor, subcontractors, or any of their agents and employees, of materials, equipment, or other property whether owned by Grantor, the contractor, subcontractors, or third parties. All of contractor's insurance shall be primary, and Grantor shall have all the same rights and coverages as the contractor under the insurance policies. The contractor agrees to provide the insurance, as set forth below, for the benefit of Grantor, including all liabilities, losses, suits, claims, judgments, fines or demands against Grantor (hereinafter "the Claim "), regardless of Grantor's fault. The insurance policies shall not limit or delete Grantor's coverage in any way based upon Grantor's acts or omissions. The insurance shall include coverage for Grantor's legal fees and costs for investigation and defense of the Claire and any legal fees and costs incurred by Grantor. The contractor shall be responsible for all deductibles. The contractor shall submit insurance renewals to a Grantor contract administrator or its designated representative. Renewals must include project name and project location. Renewals submitted without this information will be returned. The contractor waives any subrogation rights against Grantor on all claims and insurance policies. Failure to provide insurance as required herein shall be a material breach of this construction contract, which may result in termination of this construction contract for cause. Exhibit 3 b. Workers' Compensation Insurance The contractor shall produce and shall maintain during the life of this construction contract workers' compensation insurance for all employees working on this project as required by statute and shall also require that all subcontractors and sub - subcontractors maintain the same coverage and limits of workers' compensation insurance for their employees. Workers' compensation insurance policies shall also provide employer's liability insurance with a limit of $100,000.00 each accident, $500,000.00 Disease Policy Limit and $100,000.00 Disease each employee. All policies shall contain a waiver of subrogation against Grantor. The contractor shall be responsible for ensuring subcontractors and sub - subcontractors maintain the insurance requirements outlined herein. Upon request, the contractor will be required to provide evidence of such. C. Contractors' Comprehensive General Liability Insurance The contractor shall procure and maintain, throughout the term of the construction contract, comprehensive general liability insurance covering personal injury including bodily injury and property damage liability with a combined single limit of $5,000,000.00 for each occurrence and aggregate. The policy shall contain an endorsement for cross liability and severability of interest coverage. The comprehensive general liability insurance and umbrella liability insurance if applicable, shall name the contractor as insured and shall also name Grantor as additional insured and shall provide contingent liability for operations of subcontractors and sub - subcontractors. The insurance shall cover completed operations and products liability as well as broad form contractual liability. Completed operations coverage shall be maintained for a minimum of five (5) years. The property damage liability portion of the policy shall not contain any exclusions with reference to damage due to blasting, collapse, or underground facilities. In lieu of Grantor being named as additional insured on the contractor's comprehensive general liability insurance, the insurance may provide liability coverage for the benefit of Grantor by means of Grantor's protective liability policy subject to Grantor's review and approval of such policy. Exhibit 3 an OR The contractor shall also require that all subcontractors and sub - subcontractors maintain the same coverage and limits of insurance outlined herein. Comprehensive Automobile Liability Insurance The contractor shall provide comprehensive automobile liability insurance covering bodily injury and property damage with a combined single limit of $3,000,000.00 for each occurrence. Comprehensive automobile liability insurance shall provide coverage for all automobiles owned by the contractor and all hired and non -owned vehicles. The contractor shall also require that all subcontractors and sub - subcontractors maintain the same coverage and limits of insurance. The contractor shall also provide contingent automobile liability insurance for the operations of subcontractors and sub - subcontractors to ensure coverage as described in this paragraph. The contractor shall be responsible for ensuring subcontractors and sub - subcontractors maintain insurance requirements outlined herein. Pollution Liability Insurance The contractor shall procure and maintain pollution legal liability insurance with a limit of at least $5,000,000 per occurrence and in the aggregate, completed operations coverage shall be maintained for a minimum of five years. f Grantor's Right to Review Grantor, by and through its Risk Management Department, in cooperation with the contracting entity, reserves the right to review, modify, reject or accept any required policies of insurance, including limits, coverages, or endorsements, herein from time to time throughout the life of this construction contract.