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HomeMy WebLinkAbout18- Temporary Construction Easement - United States Postal Service (USPS) - Baxter Lane Roadway Improvements, Parcel 11-2 PROJECT NAME: BARTER LANE CITY OF BOZEMAN ROADWAY IMPROVEMENTS Engineering Division PROJECT#: 4524.11402.01 Public Works Department 88 �e PARCEL#: 11-2 CO.,�►°� TEMPORARY CONSTRUCTION y EASEMENT 0 1:3 W L- TEMPORARY CONSTRUCTION EASEMENT THIS TEMPORARY CONSTRUCTION EASEMENT ("TCE") granted this 1".4- day of 4 20�, by the United States Postal Service, an independent establishment of the executive branch of the Government of the United States, 475 L'Enfant Plaza, SW, Room 6670, Washington, DC 20260-1862 (the "USPS"), to the City of Bozeman, Montana, a Municipal Corporation of the State of Montana, ("City"). The designation USPS and City as used herein shall include said parties, their heirs, successors and assigns, and shall include the singular, plural, masculine, feminine or neuter as required by context. WHEREAS, USPS is the owner of a tract of land and improvements in Gallatin County, Montana located at 2201 Baxter Lane in Bozeman, MT , (the "USPS's Parcel"), and legally described in Exhibit 1, attached hereto and incorporated herein, at which USPS operates the Bozeman Main Post Office. WHEREAS, City, in consideration of the grant of a public use easement to the City by USPS, has agreed to perform the USPS Property Improvements (as defined below) and has determined that a temporary non-exclusive construction easement over portion of USPS's Parcel, ("TCE Area"), described as follows: A temporary construction easement to the City of Bozeman, located in Tract C-113 as set forth on Certificate of Survey 1979, located in the SE'/4 of Section 35, Township 1S, Range 5E, P.M.M., Gallatin County, Montana, recorded March 5, 1997, Official Records, and being further described (pursuant to Postal Service Regulation) as follows: Beginning at a point which bears S 89' 22' 30" W a distance of 1377.46 feet from the southeast corner of said Section 35; Thence from said True Point of Beginning along the South line of said Section 35, S 890 22' 30" W a distance of 450.00 feet; Thence N 000 37' 30" W a distance of 580.00 feet; Thence N 89' 22' 30" E a distance of 450.00 feet; Thence S 00°37 '30" E a distance of 580.00 feet to the True Point of Beginning, more particularly described as follows and as shown on the attached Exhibit A; Said temporary construction easement is more particularly described as beginning at the southwest corner of the Easement herein described, being a point on the north right-of-way of Baxter Lane, from which point the south quarter corner of Section 35, T1S, R5E, P.M.M., bears S 000 58' 53" W, 50.00 feet to the south section line of Section 35; Thence N 890 01' 07" W, 819.82 feet along the south section line of Section 35, said point of beginning; Thence, from said point of beginning, N 000 56' 39" E, 40.00 feet along the west line of Tract C-1 B; Thence, S 890 01'07" E, 103.61 feet; Thence, S 000 56' 26" W, 26.00 feet; Thence, S 89' 01' 07" E, 346.24 feet to the east line of Tract C-1 B; Thence, S 00' 56' 39" W, 14.00 feet along the east line of Tract C-1 B to the north right-of-way of Baxter Lane; Thence, N 89001' 07" W, 449.85 feet along the north right-of-way of Baxter Lane to the point of beginning, and containing 8,992 sq. ft., more or less, and as shown on Exhibit 2, attached hereto and incorporated herein; CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 1 of 7 is reasonably necessary for the construction of certain improvements to the driveway and parking area of the USPS's Parcel, including expanding the existing parking lot by 10 parking spaces on the southeast corner of the property, adjusting the adjacent parking lot luminaires, replacing/relocating the existing LISPS business sign, grading, landscaping, irrigation system, and resurfacing and tie-in of existing driveway onto Baxter Lane in accordance with the conceptual plans attached hereto as Exhibit 3, and labeled as "Expand Parking Lot Area. Remove Trees/Landscaping and Reset Luminaire" in red, and in accordance with the Final Plans (as such term is defined in the Construction Rider attached hereto as Exhibit 4) agreed upon by the parties (collectively, the "USPS Property Improvements") . WHEREAS, the USPS and City desire to set forth their respective rights and obligations for the TCE on USPS Parcel as documented, agreed, and signed to in the Memorandum of Agreement for the Baxter Lane Roadway Improvements under final design and construction plans dated May 5, 2016 under City Project#14509.00. NOW, THEREFORE, for and in consideration of the mutual promises set forth herein and the sum of one dollar ($1.00), represents the value of temporarily encumbering the TCE Area, and other good and valuable consideration, received in hand and acknowledged by the USPS prior to the start of the TCE term, the USPS and City covenant and agree as follows: AGREEMENTS A. Temporary Construction Easement. USPS hereby grants to City a temporary, non-exclusive easement, over, under, in, along, across and upon the TCE Area, for the completing the USPS Property Improvements. In the event the City shall use the TCE Area for any purpose other than that set forth herein, the City shall be in breach of this TCE. In the event of such breach, USPS shall notify the City in writing of the precise nature of the breach; email notice to the City is specifically allowed. City shall remedy such breach within three (3) days of its receipt of USPS's written notice. In the event City fails to remedy such breach, the USPS has the option of terminating this TCE by providing written notice to the City that the TCE is terminated and recording a discharge of the Easement in the property records of Gallatin County, in which event, City shall restore the TCE Area to as good or better condition than that prior to this Easement at no cost to the USPS. If the TCE is terminated in accordance herewith, the City agrees that it will execute any discharge, affidavit or other agreement required to remove the TCE as an encumbrance on USPS's Parcel. B. Term. This TCE shall commence on upon the date granted, provided that it has been fully executed and the City has paid USPS the consideration referenced above. This TCE shall expire upon the City's completion of the USPS Property Improvements or by December 31, 2019, whichever shall first occur. Upon the expiration or termination of the TCE, all of the rights and benefits of City in this TCE shall automatically cease and be of no further force or effect with the exception of the Construction Rider, attached hereto incorporated herein as Exhibit 4, the terms of which shall remain in effect until the warranty period expires one year from completion of all work in paragraph 1 of this TCE. C. Duties. 1. All work performed by City hereunder shall be coordinated with the Postmaster and performed in full compliance with all applicable local, state and federal statutes, rules, regulations, orders, codes, directives, and ordinances, and any binding judicial or administrative interpretations thereof or requirements CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 2 of 7 thereunder and under the provisions of the Construction Rider. In addition, City shall obtain all necessary local, state and federal permits, licenses and approvals required for the performance of such work. City shall relocate the sign to a location approved by USPS. 2. Prior to the expiration or termination of this TCE, City shall restore the TCE Area to in as good condition or better than it was in prior to City's entry, including but not limited to restoration as specified in Final Plans including; replacement of asphalt removed or destroyed for grading purposes; and replacement of striping, or other improvements removed or damaged by City in the course of performance of the work. 3. Interference. The USPS reserves the right to use the TCE Area for any purpose not inconsistent with the rights granted herein. The City agrees throughout the duration of this TCE to provide the USPS, its employees, customers, and the public with continual and uninterrupted access to the USPS's Parcel. 4. In the event USPS, its employees, customers, or the public are not provided with continual and uninterrupted access to the USPS's Parcel, City shall be in breach of this TCE. In the event of such a breach, USPS shall notify the City in writing of the precise nature of the breach; email notice to the City is specifically allowed. City shall restore reasonable access to the USPS Parcel within three (3) hours of its receipt of USPS written notice to remedy the breach. In the event the City fails to restore continual and uninterrupted access to the USPS Parcel, the USPS has the option of terminating this TCE by providing written notice to the City that the TCE is terminated and recording a discharge of the Easement in the property records of Gallatin County, in which event City shall restore the TCE Area to as good condition or better than it was in prior to City's entry at no cost to the USPS. If the TCE is terminated in accordance herewith, the City agrees that it will execute any discharge, affidavit or other agreement required to remove the TCE as an encumbrance on USPS's Parcel. 5. During the term of this TCE, City shall be responsible for maintenance and repair of the TCE Area, which includes but is not limited to snow and ice removal, landscaping, grading, paving and removal of all trash and debris caused by City's exercise of its rights under this TCE. In addition, City shall be responsible for City's equipment and facilities, and any and all costs related thereto. In the event the City fails in its responsibility to maintain and repair the TCE Area as set forth above, upon reasonable notice and opportunity to cure, USPS shall have the right to perform such maintenance and/or repair, and shall further have the right to recover its costs from the City. 6. Insurance. City, or any consultant, contractor or subcontractor entering the TCE Area on its behalf, shall be required to maintain and keep in effect insurance, with USPS named as additionally insured, against claims for personal injury, (including death), and property damage, under a policy of comprehensive general public liability insurance, with such limits, (through basic coverage plus umbrella coverage), as may be reasonably requested by the USPS from time to time, but not less than $1,000,000 in coverage for bodily injury, (including death), and property damage, which amounts shall be adjusted upon reasonable request of USPS from time to time to amounts which are normal and customary for similar operations. The policy shall provide that it shall not be cancelable nor may it expire without at least thirty (30) days' prior written notice to the USPS. CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 3 of 7 Prior to the commencement of the construction under the TCE, there shall be delivered to the USPS a certificate of the insurance carrier certifying that the policy so delivered has been issued and is in effect and the duration thereof. At least thirty (30) days before any policy shall expire (10 days for non-payment of premium), City shall deliver to the USPS a replacement certificate, and at least twenty (20) days prior to the date that the premium on any policy shall become due and payable, the USPS shall be furnished with satisfactory evidence of its payment. 7. The City, by acceptance of this TCE, agrees for and on behalf of itself and all persons who may at any time use, occupy, visit or maintain said TCE herein granted to the City, that the USPS, its successors and assigns shall not be responsible for damages, loss to property, injuries or death, which may arise from or be incident to the use or occupation of the TCE Area. 8. The City, by acceptance of this TCE, agrees to defend, indemnify and hold harmless, the USPS against any and all claims, demands, damages, costs, expenses, and legal fees, including the cost of defense, for any loss, injury, death or damage to persons or property, which, at any time, is suffered or sustained by the USPS, its employees, the public, or by any person whosoever may be using, occupying, visiting, or maintaining the property that is the subject of this TCE, or may be on or about the property that is the subject of this TCE, when such loss, injury, death or damage is asserted to have been caused by any negligent act or omission, or intentional act or misconduct of the City, its agents, servants, employees, invitees, or contractors or by the breach of this TCE by the City or its agents, servants, employees, invitees, or contractors. The USPS shall not be liable and the City waives and releases the USPS from all claims for damage to persons or property sustained by the City, or the City's employees, agents, servants, invitees, contractors and customers resulting by reason of occupying or visiting the property that is the subject of this TCE and/or pertaining to any equipment or appurtenances being used. All property belonging to the City and any use of the TCE shall be at the risk of the City, and the USPS shall not be liable for damages to any such property or for theft or misappropriation thereof. 9. City is not permitted to discharge storm water runoff within the TCE Area or USPS's Parcel generally. Such prohibition shall include, but not be limited to, discharging silt, hazardous materials or other environmental contaminants within the TCE Area or USPS's Parcel generally. Further, City shall comply with all environmental laws when performing any activity within the TCE Area or USPS's Parcel generally. In the event that any hazardous materials or other environmental contaminates are discharged by the City, its employees, agents, contractors or invitees, the City shall be solely responsible for the cost of any remediation or clean up required by applicable law or regulations and shall indemnify and hold the USPS, its successors, and assigns harmless against any and all claims, demands, damages, costs, expenses, and legal fees incurred by USPS in connection with or related to any such discharge, remediation or clean up. 10.Applicable Law. Any claim, controversy or dispute arising out of this TCE shall be governed by federal law. 11. This TCE is granted subject to any and all restrictions, covenants, other easements, encumbrances, liens of any kind, leases, and interests of others, including rights-of-way for roads, pipelines, railroads, and public utilities, whether or not matters of public record. CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 4 of 7 12.The USPS does not warrant that the TCE Area is suitable for the purposes set forth herein and City hereby waives any express or implied warranty on the part of USPS. USPS has no knowledge of subsurface conditions and makes no representations as to soil types, existence of underground utilities, or any other latent conditions that may impact City's use and enjoyment of said TCE. D. Authorized Representative. Each individual signing on behalf of a party to this TCE states that he or she is the duly authorized representative of the signing party and that his or her signature on this TCE has been duly authorized by, and creates the binding and enforceable obligation of, the party on whose behalf the representative is signing. E. Notice. Prior to performing any activity within the TCE Area, City shall provide USPS with at least 48 hours prior notice before entering the TEC Area. For purposes of notices set forth herein, notice addresses are: City: City of Bozeman USPS: USPS HQ Attention: Public Works Director Attention: James Ruffing P.O. Box 1230 475 L'Enfant Plaza, SW, Room 6670 2090 Stadium Drive Washington, DC 20260-1862 Bozeman, MT 59715 With a Copy To: USPS Attention: Postmaster 2201 Baxter Lane Bozeman, MT 59718-9998 [SIGNATURES AND NOTARY ACKNOWLEDGEMENTS ON FOLLOWING PAGES.] CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 5 of 7 IN WITNESS WHEREOF, the parties hereto have executed this Temporary Construction Easement of the day and year first above written. USPS: Unite tates Postal Service By: Its: Contracting Officer STATE OF )SS. County of On this Z 3Irokday of F"r,n4.r�, 20 /8 , personally appeared before me Jos � . "LAW Contracting Officer who being by me duly sworn, did say that he/she represents the United States Postal Service, and acknowledged to me that, acting under a delegation of authority duly given and evidenced by law and presently in effect, he/she executed said instrument as the act and deed of the United States Postal Service for the purposes therein mentioned. SEAL ,,// ', N TARP UBLIC My commission expires: Akaa e-,e Le '63. -'--eae'e -� .. ELEANOR A IAPERCHIA Notary Public, North Carolina Randolph County M Commission Expires . ... �U�o.ue-wc6zc_ to CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 6 of 7 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the CITY OF BOZEMAN, a Municipal Corporation of the State of Montana, Grantee herein, acting by and through its City Manager and City Clerk for the City of Bozeman, hereby consents and agrees to the obligations set forth in this instrument and accepts for public purposes, the real property, or interest therein, described in this instrument and consents to the recordation thereof: CITY OF BOZEMAN Date: By: Andrea Surratt City Manager B0Z ATTEST: A;�V' By: Robin Crough City Clerk TIN CO STATE OF MONTANA ) )SS. County of Gallatin ) The foregoing instrument was acknowledged before me this day of 2A by Andrea Surratt and Robin Crough, known to me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to this instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this day and year above written. 4ia�ASW.F�-1 BRENotary ub c Notary Public in and forth t to f Montana me'NOTARIAZ.di for the State of Montana My Commission Expires: / - Residing at: cP5.SF.AL.=Q;= Bozeman, Montana My Commission Expires: December 02,2018 CITY OF BOZEMAN PROJECT NAME:BAXTER LANE ROADWAY IMPROVEMENTS Parcel 11-2 PROJECT#:4524.11402.01 Page 7 of 7 EXHIBIT 1 . PERSONAL ��s�rrArxvE�� WARRANTY DEEP � .t [to 171 P15M4 Ztis dead it trade bar 0ENEVMVE S.GW.irdWr ft ft wo P><MM Olaf.M as hr=W ltspresattad"of the Now of P.+tvw Gray, Jr_. *M"d. talruanMw Tara Uaw$am Pbsrtt Sarrlce. sa iadaperdertt eseablisfirrr era Of the atteemiw braadt of ft garvetamettt of tltc UMM ft"09 USC M),the Vow—** Wheats,%t Lsm V►M and Tidwmettr of&*=Graf Jr.wss Ina*sad execowd In the lifetime of the deeede-it olti%wilt was dgly Wffd ted w Wobw by dte District Corm fm and for&a Cam"of Oa kdit.Stan of MOM MM.Ptiobate NO. DF U-100. Whemeas.Q=Mr Eugene Graf M bras&iy app6*mwd Personal PAxesr &W t of said Eam on Aur m n.i1983. sod is now muffled w d se ft in said capstitr. Now.Tber>rfore,M=M%#w pttwets eutf'erted upon OraMoar Btt=cuM Orsf 111 as hrsonal lGeptesewnive by the i*robrte Cade.&Uftr Bugcta that M at Pkt aW tlepnesenenive srd Gpq w Genevieve S.Gmf do bendy greet,bargain. ss11.Canvey.warn wd eonrieat u ro Said Gnnlee far•abe rM wed.do fotkwmg desttibed property simse in Daft' Coatty'1rOMM"10"! ** 8055 East Tufts Ave, Suite 400, Denver CO 80237-1881• Tract C-18,Ccfdrsmw Of Survey NO- 1979 k SE 114 aad NE 114 of Section 33.Towtsbip 1S Range SE. P.M.M. Aceordb9 to the official putt dtereof on file aM of rcrord iM dte aflice of dte Gsliatin Cotany Ctexlc aad Retarder Togedw V tt arty and all wam aad wager rigbts upoe and or grpwwnuu to dw praperty, eaduding only Mrfaee right � Z pruendy pwscssed by Gmwtors.and.rhkb is hert:by reserved by Graeeo s_ v g Pwsnant sa Pbstal Service Regtataaort,the property is otficrwfse described is a ran-neoond surrey as tolfowz: Sec Aaadted E:Ittbit A V # TO HAVE AND TO HOLD the said premises.with lair appmomtes rmm the said Vantre.bs snetmsors and assigns lirtewc.. tD And dw said Gnwwrs do hereby rovenanr w and wM de panm.dw awy nc dw own" in foc simple of saidd pmnbres:dear they are bee from all c=wnUalrces eaoept an easoments. . taxes, agree '"M. Rzainim. a meaattts attd � sr aacurnbcstta e M retard or assessed against shove property- that they wilt warrant and defend the same from a@ iawtiti ttsitrts witrttyoevar. �. ` DATED:*K.?71ygf �. .L✓' J !Q.as Persmnl Represera4ve �}- of ft Me Of EUGENE GRAF.JR GENEVMVE S.ORAF STATE OF MONTANA COUNTY OF GALL&TIN J The foregoing kwftatent was wJM&wledged before me.a wry lwlrait in and for said State personally appeared EUGENE Gak1►F.M as Pt:fwmd Rtprese Od"of ttre F.sutac of EUGENE MtAF.JX known a me to be rite person whose ttmte is sdti X*W w the Wkhfn lastrutttent and ackanarledged to me drat be ewcMd rite seats on behatt of the Elate of lrugene tlrsr Jr. Mycommk%bn :,_ 11-12-9a STaai�"''�., /witness my eared sad ofClcw seal. Nosey► �►;GpYtiR; Residing at Bozeman, Monte g !` ls : SEAL - SrAM OF MONTAM - COUNTY OF GALLATIN � The f nMQfng ittstrunteer was at:k wwbdged betwe me.a Notsty Pubtle is sad for said Son persomlly f{ fed GENEV IEVE 'S.GRAF.*tenant w eat to be dw parson w#toss twee b*tbscribnd w the wtrhie iroatumm and ackttordadDxl w rat dot she oftcoad the saint_ My corm mom expirw 11-12-98 STRq"'�r`'a. WiMM My heard and oftle NO. Nowy �,. ?�©yfry EXHIBITA FILM 171 047W 3XMIT A MaUMMt OF POOe ntOTOGRA14*C QiAL"Y Beginning at a point which bears S 89 degrees 22130" V a distance of 1377.46 feet from the southeast corner of said Section 35; Thence from said True Point of Beginning along the south line of said Section 35 S 89 degrees 22130" W a distance of 450.00 feet; Thence N 00 degrees 3713011 W a distance of S80,00 feet; Thence N 89 degrees 22130" E a distance of 450.00 feet; Thence S 00 degrees 37130" 2 a distance of 580.00 feet to the True Point of Beginning_ Said Tract being 5.992 acres along with and subject to any existing easements. 341614 VIurnW J Oft of NW,Cm* 91 Gralla+tTn.a !glad for RTT, 1 d 3&Z0 P, K, and recoftbd in Book 17 1„ MR 470 . U&N aft C&9+, Aecmder. By l lr RT: AMERICAN LAND TITLE CO. FE $12.00 r f \\\ \\\\ \\\\ \\\\ \\\\ \\\\ \\\\ \\\\ \\\\\ \\ \\ \\\\ \\\\ \Current Owner: Postal Service \\ \\\ \\\ \\\\\\\\\ \\`2201 Baxter Lane \\\\ \\\\\ \\\\ \\\ \\\\ 'Bozeman, MT59715 \\\ \\\\ \\\ \\\\ \\\\\ \\\\ \\\\\ \\\\ \\\\\ \\\\ \\\\\ \\\\ TRACT C-1B OF COS 1979 \ \\\\ \\\\\ \\\\ \\\\ \\\\ \ SEC. 35, T1S, R5E \ \\\\ \\\\\ 'L1 N00' 56' 39" E, 40.00 FEET \ \ \\\ \\\\\ \\\ \ \\\ \\\\ .L2 S 89' 01' 07" E, 103.61 FEET \\\ \\\\ \\ \\\ \\\\ \\\\ L3 S 00° 56'26" W, 26.00 FEET \\\ \\\ \\\L4 S 89' 01' 07" E, 146.40 FEET \\\\ \\\\ \\L5 N 00° 58' 53" E, 30.00 FEET \\ \\\\ \\\ \\\\ \\\\\ \\L6 S 89° 01' 07" E, 199.82 FEET \\\ \\\\ \\\\ \\\\ \\\\\ \\L7 S 00° 56' 39" W, 44.00 FEET \\\\ \\\\ \\\\ \\\\ \\\\\ \\L8 \ 89° 01' \" W 4 985 FEET\\\\\\\\\ \\\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\ EXISTING PROPERTY LINE \ \\\\ \\\\\ \\\\ \\\\\ \\\ PARCEL 11-2 TCE\ \\ \\\\ \\\ \\ EXISTING UTILITY \\ NEW TEMP. CONST. \\\\ \\\\\ \\\\ \ \\EASEMENT EASEMENT \\\ \\\ \\\ \\\ \\\ \\\ \\ EXISTING \\ \\\L I \\\ \\\\ \\\\\\\\ \\ \ \ \L \\\\ \\\\ \ \ f rSr:i;iii: isisis.is f\ .........::::::::::::::::::::.-:::::. % L4 ............................................................ ........::::::::::::::::::::::::::::.. .................... r 77 POB zZ BBAAAXXTER LANE �11 R/W Legend ® Existing Easement 40 0 40 eo New Temp. Const. EasementSCA® LE IN N Area Remaining n A temporary construction Easement to the City of Bozeman, located in Tract C-113 as set forth on Certificate of Survey 1979, located in the SEY4 of Section 35, T1S, RSE, P.M.M., Gallatin County, Montana, more particularly described as follows; Beginning at the southwest corner of the easement herein described, being a point on the north right-of-way of Baxter Lane, from which point the south quarter corner of Section 35, T1S, RSE, \\ \ Current Owner: \\ \\ \ \\ \\\ \\\ The United States Postal Service \\ \\\\\ \\ Baxter Lane Bozeman, MT59715 \\ \\\ \\ \\\\ \\\EXISTING PROPERTY LINE \\\\ \\\ \\ \\\\ \\\\\\\�\r'7\ \ \\\\\\ \\ \\�PARCEL 11-1 PUE \\ \\\\ \\\\\ \\ \ \ NEW PUBLIC USE \\ \\ \\\\ \\\ EASEMENT \ \\ \\\ \\\ \ \\\ \ \\\ PARCEL 11-2 TCE NEW TEMPORARY \\ \ \ \CONSTRUCTION \\\\ \\ \ \\\ EASEMENT\ \ \\ \ \ \\\\ \\\\ \ \ \\\ \ EXPAND PARKING LOT \\ AREA. REMOVE EXISTING l TREES/LANDSCAPING \\ \\\ \ EASEMENT ! v jN \ V AND RESET LUMINAIRE. \ b\\\ \\\ \\ im Y n � .... _5rad.LY^ '_ r.. 7-1 j BAXTERLANE pi Exhibit 4 CONSTRUCTION RIDER 1. Improvements to USPS Parcel. City agrees to construct the USPS Property Improvements (as defined in the Temporary Construction Easement to which this TCE Construction Rider is referenced), within the TCE Area to permit the USPS to grant of the Easement to the City so that the City may undertake a project related to roadway capacity and safety improvements for Baxter Lane, including roadway surface, sidewalk, curb and gutter, and utilities, hereinafter called the "Project" or the "Roadway Improvements", which Project is described in the final design and construction plans dated May 5, 2016 under City Project #14509.00. City shall be responsible for design, construction and all costs related thereto for the USPS Property Improvements. City agrees to provide construction oversight for the USPS Property Improvements to ensure that the USPS Property Improvements are completed in compliance with the Final Plans, defined below, and industry standards. 2. Final Plans. City has provided USPS with conceptual plans to accommodate the operations of the USPS Parcel,within the existing parameters, requirements, and regulations for USPS facilities,which conceptual plans are included at Exhibit 3 to the Temporary Construction Easement. City shall provide USPS with final engineering certified drawings and details ("Final Plans") for written approval by the USPS prior to commencement of construction, which Final Plans shall be attached and made a part of this Easement Construction Rider. 3. Notice to Proceed. City shall commence construction of the USPS Property Improvements upon receipt of written approval of the Final Plans (the"Notice to Proceed") from the USPS Contracting Officer or the USPS Contracting Officer designee ("USPS CO"). 4. Construction Schedule. City has provided a draft schedule,but shall provide a detail construction schedule with submission of the Final Plans, for final approval to USPS before starting work. Said improvements, shall be completed to the satisfaction of USPS no later than December 31, 2019. 5. [Reserved]. 6. [Reserved]. 7. Termination for Default. a. If City refuses or fails to begin construction, or to prosecute the work with such diligence as will ensure its completion within the time specified in this Easement Construction Rider, ("Construction Rider"), or any extension thereof, or fails to complete said work within such time, City shall be in breach and USPS shall be entitled to its rights and remedies under the Agreement. Whether or not the City's right to proceed with the work is terminated, their sureties are liable for any damage to the USPS resulting from his refusal or failure to complete the work within the specified time. b. City's right to proceed shall not be so terminated nor City charged with resulting damage if: i. The delay in the completion of the work arises from unforeseeable causes beyond the control and without the fault or negligence of City, including but not restricted to acts of God, acts of the public enemy, acts of Government in either its sovereign or contractual capacity, acts of another contractor in the performance of a contract with the USPS, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes,unusually severe weather, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of both City and such subcontractors or suppliers; and ii. City, within 20 days from the beginning of any such delay(unless the USPS CO grants a further period of time before completion and acceptance under the Construction Rider), notifies the contracting officer in writing of the causes of delay. Ili. The USPS CO must ascertain the facts and the extent of the delay and extend the time for completing the work when, in his judgment,the findings of facts justify such an extension, and his findings of fact shall be final and conclusive on the Parties, subject to appeal as provided in the clause of this contract entitled "Claims and Disputes." Pending final decision on an extension of time hereunder, the City must proceed diligently with the performance of this Construction Rider and in accordance with the USPS CO's decision. Inability to comply with state, city, or local construction or zoning laws or ordinances, or with restrictive covenants, or obtaining financing shall not be regarded as an unforeseeable cause. c. The rights and remedies of the USPS provided in this clause are in addition to any other rights and remedies which may be available to the USPS by law or under the TCE or this Construction Rider. 8. Inspection. a. City must,without charge to USPS, replace any material, correct any workmanship or supply omitted work found by the USPS not to comply with the contract requirements,unless in its interest the USPS consents to accept such material or workmanship or omitted work. b. The USPS Property Improvements must be accessible for inspection by the authorized representative of the USPS CO to determine whether contractual requirements are being met during construction and/or acceptance inspection of construction of the facility. Failure of the USPS to identify deficient work or materials shall not shift the responsibility for correction of such deficient work or materials to the USPS. c. If the City does not replace rejected material, correct rejected workmanship, or supply omitted work, then in addition to any other remedies available to it, the USPS may terminate this Construction Rider without liability to the USPS. d. In the absence of a specific agreement, time allowed for completion of any work required under the provisions of this paragraph is limited to thirty(30) days. 9. License,Permits, Safety,Indemnification. a. City,without additional expense to the USPS, is responsible for identifying and complying with zoning requirements, if applicable, obtaining any necessary licenses and permits required, and for complying with any applicable federal, state, and municipal laws, codes, and regulations, in connection with the performance required under or related to this Construction Rider. City must take proper safety and health precautions to protect the work, the workers, the public and the property of others. City is responsible also for all materials delivered and work performed until completion and acceptance of the entire construction work, except for any completed unit of construction that may have been accepted. 10. Compliance With Labor Standards. City, and its affiliates, developers, contractors and subcontractors agree to comply with the Davis-Bacon Act and with applicable Occupational Safety and Health Act(OSHA) standards, to provide for similar compliance in contracts, subcontracts with States or political subdivisions thereof, and to insert the clauses in all subcontracts with private persons or firms. City, its developer, contractor or subcontractor agree to comply with the Labor Laws and a breach of this clause may be grounds for termination of this Construction Rider and debarment as a contractor and subcontractor as provided for in 29 CFR 5.12. 11. Site Conditions. City must examine the USPS Parcel and be thoroughly acquainted with conditions thereon. The City will be responsible for site conditions including but not limited to subsurface or latent physical conditions or unknown physical conditions. 12. Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this Construction Rider will not be subject to the Claims and Disputes in paragraph 23 of this Construction Rider. Such disputes must be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the City(or any of the City's developer, contractor or subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. 13. Safety and Health Standards. a. Materials, supplies, articles, or equipment manufactured or furnished under this contract or order must conform to the Occupational Safety and Health Standards (29 CFR 1910)pursuant to authority in the OSHA, and to other safety and health requirements specified in this Construction Rider or order. b. If no OSHA standard exists, federal or other nationally recognized standards apply. Copies of current OSHA Standards are available from regional and/or area offices of the U. S. Department of Labor, Occupational Safety and Health Administration. c. If this Construction Rider or order contains a USPS standard and an OSHA standard covering the same general area of applicability, the USPS standard governs and takes precedence,unless the OSHA standard contains more rigorous or stringent safety requirements, in which case the OSHA standard governs and takes precedence. 14. Contract Work Hours and Safety Standards Act—Overtime Compensation. If this Construction Rider provides for payments aggregating $2,000 or more, the requirements of this clause apply. a. Overtime Requirements. No developer, contractor or subcontractor contracting for any part of the contract work may require or permit any laborer or mechanic to work more than 40 hours in any workweek on work subject to the provisions of the Contract Work Hours and Safety Standards Act,unless the laborer or mechanic receives compensation at a rate not less than one-and-one-half times the laborer's or mechanic's basic rate of pay for all such hours worked in excess of 40 hours. b. Violation, Liability for Unpaid Wages, and Liquidated Damages. In the event of any violation of Subsection a. above, City and its developers, contractors and any subcontractor responsible for the violation are liable to any affected employee for unpaid wages. City and subcontractor are also liable to the USPS for liquidated damages, which will be computed for each laborer or mechanic at$100 for each day on which the employee was required or permitted to work in violation of Subsection a. above. c. Records. City, its developer, contractor or subcontractor must maintain for three years from the completion of the contract for each laborer and mechanic (including watchmen and guards) working on the contract payroll records which contain the name, address, social security number, and classification(s) of each such employee, hourly rates of wages paid, number of daily and weekly hours worked, deductions made, and actual wages paid. City its developer, contractor or subcontractor must make these records available for inspection, copying, or transcription by authorized representatives of the LISPS and the Department of Labor, and must permit such representatives to interview employees during working hours on the job. (The Department of Labor information collection and record keeping requirements in this Subsections a-d has been approved by the Office of Management and Budget under OMB control numbers 1215-0140 and 1215-0017.) d. Subcontracts. City must insert Subsections a through d of this clause in all subcontracts, and must require their inclusion in all subcontracts at any tier. 15. Contract Work Hours and Safety Standards Act—Safety Standards. a. Since this Construction Rider includes construction, alteration, repair, painting, or decorating, City may not require any laborer or mechanic to work in surroundings or under conditions that are unsanitary, hazardous, or dangerous to the laborer's or mechanic's health or safety, as provided under standards promulgated by the Secretary of Labor under the authority of 40 U.S.C. 333 (see 29 CFR 1910 and 1926). b. If the City fails to comply with this clause, the USPS, at its discretion,may cancel this Construction Rider, and charge to the City any costs incurred to put the USPS Parcel back to its original condition. c. The City agrees to insert this Section 15, including this Subsection c. in all contracts, subcontracts and to require its inclusion in all contracts, subcontracts at any tier. 16. Omissions and Defects. If omissions and defects from the contract requirements and approved construction plans remain on the scheduled USPS date of beneficial occupancy, the USPS may take beneficial occupancy and notify the City in writing of the obligation to complete or correct the remaining deficiencies or defects by a designated date. City must complete or correct the omissions or defects by the designated date or the USPS may terminate this Construction Rider. 17. Convict Labor. In connection with the work under this contract, the City agrees not to employ any person undergoing sentence of imprisonment, except as provided by Public Law 89-176, September 10, 1965 (18 U.S.C. 4082(c) (2)) and Executive Order 11755, December 29, 1973. 18. Warranty (Construction). a. If within one (1)year of acceptance of the work under this contract, the USPS finds that warranted work needs to be repaired or changed because materials, equipment, or workmanship were inferior, defective, or not in accordance with this Construction Rider's terms, City must promptly and without expense to the USPS: i. Place in a satisfactory conditions all of the warranted work; ii. Satisfactorily correct all damage to equipment, the site, improvements within the TCE Area, or its contents that is the result of such unsatisfactory work; and iii. Satisfactorily correct any work, materials, or equipment disturbed in fulfilling the warranty. b. Should the City fail to proceed promptly in accordance with the warranty, the USPS may terminate this Construction Rider. 19. Design and Approval Requirements. a. Unless otherwise exempted within this Construction Rider, City must employ the services of an architect-engineer, who is licensed to practice in the state in which the facility is located, to prepare for the approval of the USPS, complete specifications and working drawings including architectural, structural,mechanical, electrical and site improvement work for the construction of the facility in accordance with all requirements included in this Construction Rider. All final drawings must bear the appropriate registration seal. All fees or charges required for architect/engineer services, for necessary permits or approvals, for connection charges, or for similar fees incidental to construction of the facility must be at City's sole cost and expense. b. All submissions required for approval by the USPS must be correlated, checked and signed by a responsible official of the architect-engineer's firm and must be accompanied by a certification in the following format: "I certify that all phases of this project(1) have been coordinated and checked for accuracy, (2) are complete in accordance with all applicable requirements, and(3) are in compliance with all codes and meet standard industry practices." ................................. c. All improvements and all appurtenances thereto, must be designed and constructed in conformity with all applicable local laws, ordinances, and regulations which relate to construction, safety and sanitation. The final drawings must be signed and sealed by the architect-engineer with this statement: "This Project has been designed and must be constructed in strict accordance with standard industry practices." d. The minimum requirements established by this Construction Rider must not be construed as lowering the standards established by the local, county, or state laws, ordinances, or regulations. When such local, county or state requirements are more stringent than the minimum requirements set forth in this Construction Rider, the more stringent requirements must govern. e. Approval by the USPS of any drawings and specifications constitutes approval of general arrangement only and is not to be construed as waiving or changing any requirements set forth in this Construction Rider unless a deviation,waiver or other change is specifically identified and approved by the USPS CO. f. The City must be responsible, in all cases, for the proper design and coordination of architectural, structural,plumbing, electrical, heating, ventilation, air conditioning, site elements, etc., for the project. g. Unless otherwise specified, no construction activity at the USPS Parcel may be commenced until City has received written notice from the USPS CO of approval of the Final Plans. Changes or modifications which may be required during construction must be approved in writing by the LISPS CO prior to proceeding with such changes. 20. Changes (Construction) The USPS CO may at any time, without notice to any sureties, by written order designated or indicated to be a change order, make changes in the work within the general scope of the contract, including changes: a. In the specifications (including drawings and designs); b. In the method or manner of performance of the work; Any other written or oral order(which, as used in this Section 20, includes direction, instruction, interpretation, or determination) from the USPS CO that causes a change will be treated as a change order only if the City gives the contracting officer written notice stating (1)the date, circumstances, and source of the order and(2)that the City regards the order as a change order. This notification must be delivered to the contracting officer within 30 days of receipt of the change order. 21. Indemnification by City. City agrees to indemnify and hold harmless, the USPS and its officers, agents, representatives, customers and employees from all claims, loss, damage, actions, causes of action, expense and/or liability, including the cost of defense, resulting from,brought for, or on account of any work performed under or related to this Construction Rider or any breach of any term of this Construction Rider, any personal injury or death or properly damage received or sustained by any persons or property, growing out of, occurring, or attributable to including but not limited to City's developers, affiliates, contractors, or subcontractors. 22. Disputes. Any disputes that arise between City and USPS that arise under this Construction Rider shall be subject to the Contract Disputes Act, 41 U.S.C. §601, et. Seq. (the "CDA")with the exception of Section 12.