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HomeMy WebLinkAboutResolution 72-07 (2) AGREEMENT THIS AGREEMENT ts made and entered into this ) ~ day of Feb- ruary, ! 972, by and between - BARTON CONTRACTING COMPANY, herein- after called BARTON, as party of the first part, PARK CONSTRUCTION COMPANY, hereinaf- ter called PARK, as party of the second part, and THE CITY OF COLUMBIA HEIGHTS, MINNE- SOTA, hereinafter called CITY, as party of the third part, WITNE SSETH: WHEREAS, On February 8, 1971, an Agreement was entered into be- tween Burlington Northern, Inc., and CITY involving reconstruction and im- provement of a railroad classification yard which is partially located within the corporate limits of CITY, which Agreement provided for and contemplated blasting to improve and enlarge said railroad classification yard, and WHEREAS, PARK entered into a written Contract with Burlington North- ern, Inc., to do the construction work and, in turn, PARK by written Agreement sttblet the blasting portion of said Contract to BARTON, and 'WHEREAS, BARTON and PARK each have filed with the CITY Certifi- cates of Insurance, and WHEREAS, CITY issued a Permit to PARK to blast within the area of the CITY where reconstruction and improvement of said railroad classification yard is located and CITY has since revoked said Permit, and WHEREAS, CITY has informed both BARTON and PARK that CITY has been advised by residents of the area that damages have occurTed to the homes and to the facilities near the blasting site, and WHEREAS, Residents of the area have advised the CITY through its Council meetings that the insurance companies representing the parties to this Agreement who are performing the blasting work have denied liability for --1-- claims of damage, and WHEREAS, Burlington Northern, inc., has recently acquired the proper~y adjacent to many of the property owners who claim that they are suf- fering from the effects of the blasting, and WHEREAS, If the Blasting Permit is to be issued it is the purpose and endeavor of the CITY to have the owners of the adjacent property to be in the same condition subsequent to the blasting operation as such owners were prior to such blasting, NOW, THEREFORE, In consideration of the foregoing recited facts, and the covenants and agreements of the parties hereinafter contained and to be performed by them, respectively, as hereinafter set forth, the parties here- to agree as follows: 1. CITY agrees to issue a Blasting Permit to PARK, which Blasting Permit shall inure to the use and benefit of BAR- TON so as to permit BARTON to do all work required under BARTON'S Subcon- tract entered into by and between BARTON and PARK and said Blasting Permit shall be subject to all of the terms, provisions and conditions of this Agree- BARTON and PARK agree that - Construction operations shall be limited to a period be- 'tween 6:00 A.1V[. and 12:00 P.M. lb] Blasting operations shall be limited to a time period from 9:30 A.tV[. to 4:30 P.1V~. only on Mondays, Tuesdays, %AZednesdays, Thursdays and Fridays of each week, except that no blasting shall be done on any of such days if it be a legal holiday. Blasting shall be accomplished at a maximum of two (2) times (except for mis-fires) per day with an individual blast sequence not in excess of fifteen (15) minutes. [c] Blasting will be within the performance standards of the CITY, as hereinafter described, and as established by the --2-- ment. 2. ?; -7 Zoning Code of the CITY adopted September 10, 1959, as now amended, and specifically within the provisions of Section 5.12, Subdivision 8, of said Zon- ing Code. [dj An employee of the City Engineering Department, hereinaf- ter called CITY INSPECTOR, shall be assigned to monitor at all times the effects of the blasting. The CITY INSPECTOR shall handle the seismograph and take readings at the time of each blast. [el The seismograph readings shall be taken at the west side of the building structure nearest the blasting site. If] BARTON shall pay the entire salary cost, including fringe benefits, for the CITY INSPECTOR for his time spent on in- spections related to the blasting operations. Blast intensity shall not exceed the seismograph reading of 0.15 inches per second particle velocity average for ten (10) consecutive blasts and no single blast shall exceed 0.20 inches per second particle velocity at the nearest building structure. Each blast shall be so designed and carried out not to exceed 0.15 inches per second particle velocity. [gl If any blast intensity exceeds 0.20 inches per second par- ticle velocity, immediate steps shall be taken to reduce the charges and a written report shall be submitted to the City lV[anager as to the reason for the excessive reading. If, in the opinion of the City Council, the reason for the excessive reading is insufficient and unjustified, BARTON shall pay One Hundred Dollars ($100) to the CITY'S General Fund. Ih] BARTON and PARK shall furnish to the CITY from time to time as the CITY may require all plans and records and any other kind of information concerning said blasting which BARTON and PARK have at their disposal. Ii] Prior to general rock removal blasting, a pre-splitting of the rock layers shall be made at the easterly limit of the --3-- construction area where rock must be removed. The pre-splitting shall be com- pleted two hundred (200) yards ahead of any blasting site along the easterly limit of the construction area. 3. BARTON and PARK agree that - Iai No hammerheading, whether performed by BARTON or PARK, shall exceed 0.05 inches per second particle velocity as registered at the nearest building structure on the seismograph. Hammerhead- lng shall be restricted to the hours from 8:00 A.M. to 4:30 P.M. on the days that construction work is permitted, as provided in Paragraph 2[bi above. Any hammerheading which produces a reading over 0.05 shall require the party per- forming such hammerheading to pay the sum of One Hundred Dollars ($100) to the GITY'S General Fund for each violation of the restrictions of this para- graph. lb] BARTON and PARK shall exert their best efforts so that chil- dren and trespassers shall not come upon the premises dur- ing hours that construction operations are permitted, as provided for in Para- graph 2Iai of this Agreement. 4. BARTON and PARK agree that they shall establish a fund as herein provided for to reimburse property owners within the CITY for legal fees incurred by such persons in collecting property damages arising out of the blasting operations performed pursuant to the Permit to be is- sued by the CITY, which fund to be so established shall be subject to and in accordance with the terms and provisions of this Agreement as follows: Ia] Upon the execution and delivery of this Agreement by all of the parties hereto, BARTON shall contribute to said fund the sum of Ten Thousand Dollars ($10,000), PARK shall contribute to said fund the sum of Two Thousand Dollars ($2,000) and the Twelve Thousand Dollars ($12,000) total amount of said fund shall be deposited with Columbia Heights State Bank as Escrow Agent so as to obtain interest thereon. --4-- Ih] Any property owner within the CITY who recovers damages to his property as against BARTON or PARK as a result of blasting and who has employed an attorney in making recovery of such dama- ges, upon receiving payment of any such recovery, such property owner shall be entitled to additional compensation as and for attorney's fees in an amount equal to twenty-five per cent (25%) of the amount actually recovered by him if such recovery is made by settlement, even after institution of suit or com- mencement of trial, but before the rendering of a Verdict by a Jury or Findings of Fact by a Court. However, if such recovery is made upon or after the rend- ering of a Jury Verdict or Findings of Fact by a Court in any action instituted by any such property owner for damages to his property, then the amount to be paid out of the fund hereby established as and for attorney's fees shall be thirty-three and one-third (33 1/3To) of the actual recovery made and provided for by said Jury Verdict or Court Findings of Fact. Provided, however, that the benefits herein provided for in this paragraph shall be subject to, limited by and in accordance with the terms and conditions of Paragraph 5 of this Agreement. lc] The benefits provided to be paid to such property owners out of the fund established pursuant to the provisions of this Paragraph 4 shall not be applicable to the extent of any recovery made by any such property owner in which an insurance company has an interest by way of subrogation, assignment, loan receipt or otherwise on account of amounts paid to any such property owner. Id] Any such property owner who actually receives payment for damages to his property on account of said blasting, whether said payment results from settlement or by Court action, shall file notice with the Escrow Agent, in writing, of such recovery and such property owner shall be paid by the Escrow Agent the amount provided for in accord- ance with the terms of this Agreement. Any such property owner claiming a --5-- 7R -7 right to receive payment from said fund shall give written notice thereof to each of the parties hereto and to the Escrow Agent; if no objections are filed by any party with the Escrow Agent within ten (10) days after the receipt by each par- ty of said written notice the Escrow Agent shall make immediate payment to such property owner as provided for but, if any party files objections with the Escrow Agent to any such payment, the controversy shall be referred to the American Arbitration Association for determination in accordance with its rules and regulations, and any out-of-pocket costs incurred thereby shall be paid out of the fund established pursuant to Paragraph 4 of this Agreement. lei All income resulting from the fund established in accord- ance ~vith the terms and provisions of this Agreement shall be paid from time to time to the CITY upon written request made by the City Attorney to the Escrow Agent, which amounts, if any, so paid to the CITY shall be used solely to pay fees of experts and other persons whose services the City Attorney may deem necessary and advisable to engage with respect to any matter in any way connected with or arising out of the subject matter of this Agreement. If] tf at any time within six (6) years after BARTON has com- pleted its blasting operations upon the premises where construction operations are to be performed, the Twelve Thousand Dollars ($12,000) paid by BARTON and PARK to the Escrow Agent as above provided, shall become exhausted, then upon written notice from the Escrow Agent to BARTON and PARK, they shall deposit with the Escrow Agent, within ten (10) days of the receipt of said notice, the further sum of Five Thousand Dollars ($5,000) and if, during the period provided, said further sum shall become ex- hausted, BARTON and PARK agree that they shall on each such occasion make deposit of Five Thousand Dollars ($5,000) within ten (!0) days of the receipt of notice from the Escrow Agent as hereinbefore provided. [g] Any residue of the original Twelve Thousand Dollars --6-- ($12,000) remaining six (6) years after the date BARTON completes its blasting and construction operations at the premises shall be returned to the extent that the same shall then suffice as follows: Two Thousand Dollars ($2,000) to PARK and the remainder to BARTON. Ih] tf BARTON and PARK are required to, and in accordance with the terms of this Agreement do, deposit with the Escrow Agent amounts in addition to the Twelve Thousand Dollars ($12,000) provided to be paid into the fund at the time of the making, execution and delivery of this Agreement, then any residue of additional amounts so deposited which re- main in the hands of the Escrow Agent six (6) years after the date BARTON com- pletes its blasting and construction operations at the premises shall be re- turned to BARTON and PARK, as they may jointly, in writing, so direct the Es- crow Agent. All parties hereto agree that the establishment of the fund provided for by Paragraph 4 of this Agreement shall not of liability on the part of either BARTON or PARK. 5. No property oxAmer making any claim for damages to his property on account of blasting shall be entitled to any benefits under the provisions of Paragraph 4 of this Agreement except to the extent permitted in this Paragraph 5 and unless and until he shall have first complied with all of the terms and provisions hereof - Ia] Each property owner who seeks any benefits under the pro- visions of Paragraph 4 of this Agreement shall from time to time file, in duplicate, with the City Manager, on forms which will be avail- able at his office, a Report of Damage specifying any and all damage done to his property. Only the damage so reported shall be included within the rice of Claim hereinafter provided for. --7-- constitute or be deemed in any manner whatsoever to constitute any admission 7 lb] Any property owner seeking any benefits under the provi- sions of Paragraph 4 of this Agreement shall file with the City Manager, in duplicate, a written Notice of Claim on forms which will be available to all property owners at the City Manager's office. All such No- tices of Claim shall be filed at the office of the City Manager not later than ninety (90) days after BARTON has notified the City Manager, in writing, of the completion of said blasting operations. No property owner shall be entit- led to file more than one Notice of Claim which shall include all of each prop- erty owner's claims for damage arising out of the said blasting operations. The said Notice of Claim shall include, among other things, the name (s) of the property owner(s), his or their residence address (es), the address of the prop- erty claimed to have been damaged, a description of the place of damage and the general nature thereof, and the approximate dollar amount of any such dam- ages claimed by such property owner(s) (which amount of damages so stated by the claimant shall not constitute an evidentiary admission as to the extent of such damage). The filing of a Notice of Claim is a condition precedent to the entitlement of any benefits under the provisions of Paragraph 4 of this Agree- ment and, unless such Notice of Claim is filed as provided for herein, a prop- erty owner shall not have or be entitled to the benefits under the provisions of Immediately upon the filing of any such Notice of Claim, the City Manager shall deliver a copy thereof to BARTON and PARK. BARTON, PARK, their respective insurers, or any of them, shall have ninety (90) days after the filing of a Notice of Claim to negotiate with any claimant, to examine the claimant's premises for the purpose of evaluating the alleged damage caused and in order to determine what offer should be made to each claimant in payment and satisfaction of his claim for property damage. No claimant shall have or be entitled to any benefits under the provisions of Paragraph 4 of this Agreement unless such claimant permits BARTON, PARK, --8-- said Paragraph 4. their respective insurers, or any of them, to inspect, at reasonable times and hours, the premises alleged to have been damaged with respect to the damages claimed thereto. If within ninety (90) days after any claimant files Notice of Glaim with the Gity Manager, BARTON, PARK, their res- pective insurers, or any of them, make settlement with any such claimant, then such claimant shall not have or be entitled to any benefits under the pro- visions of Paragraph 4 of this Agreement. If within ninety (90) days after the filing of a Notice of Claim with the City Manager, BARTON, PARK, their respec- tire insurers, or any of them, make a written Offer of Settlement to any such claimant and such claimant does not accept the Offer of Settlement so made and thereafter recovers, whether by settlement, Jury Verdict or Findings cf Fact by a Court, an amount less than the amount so offered to such claimant, then such claimant shall not have or be entitled to any benefits under the provisions of Paragraph 4 of this Agreement. If no Offer of Settlement is made within said ninety (90) day period, a claimant may have and be entitled to the benefits un- der the provisions of Paragraph 4 of this Agreement provided all other terms and conditions of this Agreement have been met and complied with. If] Such Offer of Settlement shall be delivered both by letter sent certified mail to the claimant's residence address and by service upon the claimant at his residence address in the manner provided for the service of Summons in a civil action in the District Courts of the State of 1Vlinnesota. Each claimant to whom any Offer of Settlement is made must, by written notice filed %vith the City Manager, accept said Offer within thirty (30) days after the receipt of said Offer by certified mail or service upon him as provided above, ~vhichever shall be earlier. If any such Offer of Settle- ment so made in accordance with this Paragraph 5If] and ParagraphS[e] is not accepted ~vithin the aforedescribed thirty (30) days period, said Offer of Set- --9-- their respective insurers, or any of them, to inspect, at reasonable times and hours, the premises alleged to have been damaged with respect to the damages claimed thereto. Id] If within ninety (90) days after any claimant files Notice of Claim with the City Manager, BARTON, PARK, their res- pective insurers, or any of them, make settlement with any such claimant, then such claimant shall not have or be entitled to any benefits under the pro- visions of Paragraph 4 of this Agreement. lei If within ninety (90) days after the filing of a Notice of Claim with the City 1V[anager, BARTON, PARK, their respec- tive insurers, or any of them, make a written Offer of Settlement to any such claimant and such claimant does not accept the Offer of Settlement so made and thereafter recovers, whether by settlement, Jury Verdict or Findings cf Fact by a Court, an amount less than the amount so offered to such claimant, then such claimant shall not have or be entitled to any benefits under the proviSions of Paragraph 4 of this Agreement. If no Offer of Settlement is made within said ninety (90) day period, a claimant may have and be entitled to the benefits un- der the provisions of Paragraph 4 of this Agreement provided all other terms and conditions of this Agreement have been met and complied with. If] Such Offer of Settlement shall be delivered both by letter sent certified mail to the claimant's residence address and by service upon the claimant at his residence address in the manner provided for the service of Summons in a civil action in the District Courts of the State of Minnesota. Each claimant to whom any Offer of Settlement is made must, by written notice filed with the City Manager, accept said Offer within thirty (30) days after the receipt of said Offer by certified mail or service upon him as provided above, whichever shall be earlier. If any such Offer of Settle- ment so made in accordance with this Paragraph 5If] and ParagraphS[el is not accepted within the aforedescribed thirty (30) days period, said Offer of Set- --9-- tlement shall be deemed to have been rejected. BARTON, PARK, their respec- tive insurers, or any of them, as they may choose between themselves, shall simultaneously with the mailing of any written Offer of Settlement to the claim- ant mail a copy thereof to the City Manager. [g] Any claimant making claim in any Court for damages to his property in the amount of the jurisdictional limit of the Anoka County Conciliation Court or less, as said jur- isdictional limit now exists or may hereafter be, shall not have or be entit- led to any benefits under the provisions of Paragraph 4 of this Agreement. Ih] Any claimant, regardless of the amount claimed, who ultimately recovers in any action instituted by him in any Court or otherwise the amount specified by Para- graph 5[g] of this Agreement or less for damages to his property shall not have or be entitled to any benefits under the provisions of Paragraph 4 of this Agreement. Iii A property owner may have and be entitled to the benefits under the provisions of Paragraph 4 of this Agreement only for damages to his tangible property and the benefits under the provisions of said Paragraph 4 shall not be paid on or for any amounts recovered on account of personal or bodily injury or damage other than to the tangible property of such property owner. If a property owner makes claim for both damage to tangi- ble property and for personal or bodily injury, any settlement, Jury Verdict or Findings of Fact by a Court shall specifically state the amounts recovered or awarded, if any, on account of any such damage to tangible property; should any such settlement, Jury Verdict or Findings of Fact by a Court not specifically state the amounts recovered or awarded on account of any dam- age to tangible property, then such property owner shall not have or be entit- -10- -7 led to any benefits under the provisions of Paragraph 4 of this Agreement. 6. Each of the parties hereto reserve all rights and benefits and shall be subject to all obligations under all and any other written agreements or contracts existing between any of them as therein specified. Each of the parties hereto acknowledges receipt of a fully executed original copy of this Agreement. IN WITNESS WHEREOF: The parties hereto have caused this Agree- ment to be executed and delivered the day and year first above written. W. In Pr~%s ence~ 0 f: As:.t'o B~rton Contracting Company BARTON CONTRACTING GOMPANY By ~~ ~~"'~'~ President Party~of the First Part A~o P~Oonstruction Company APPROVEDAS M Mf , PARK-~(~NSTRtICTIO NCO, A~PANY . / :-' , ~ Pre s ide nt Party of the Second THE C OF IA HEI HTS ~- -/ - /~Iayor Manager Party of the Third Part -1!-