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CR 95-91 Authorize Binding Agreement With MPCA -..- -- "\ y 0 \ CJ ,?;- m ,y <0 . o P K \ 1;1. May 11, 1995 Council Report 95-91 AUTHORIZE BINDING AGREEMENT WITH MPCA- CONTROL OF 7th STREET LANDFILL ProDosed Action. Staff recommends adoption of the following motion: Move that Council authorize the Mavor and City Manaaer to enter into a bindina landfill cleanuo aareement between the City and the MPCA as it oertains to the 7th Street Landfill. This agreement is necessary to achieve compliance with requirements of the Minnesota Landfill Cleanup Act. Overview. since enactment of the Landfill Cleanup Act in early 1994, City staff has engaged in various response actions to requirements of the law. At first staff assumed the mantel of city responsibility for a final compliance effort with the methane problem. The program called for the . city to retain a consultant, develop a final methane remediation plan, install the plan, verify its effectiveness, and finally obtain a notice of compliance and turn over control of the landfill to the MPCA. Placing very high priority on final resolution of the Hopkins landfill site, the MPCA short-circuited the compliance process and flatly demanded that it should control remediation efforts. Through the fall of 1994 and the winter of 1995 staff has proceeded under this agency controlled mode to cooperate fully in reaching a final agreement for transfer of control. Attached is a draft of that agreement, the city attorney's letter that clarifies Hopkins' position on several provisions not included in the agreement, and a memo concerning a summary of terms in the agreement. Primary Issues to Consider. o summary of agreement terms o Alternatives o Staff recommendation Supportinq Information. o Draft of agreement o Doherty Rumble and Butler letter of clarification o Doherty Rumble and Butler summary memo e ~e~ Engineering superintendent e CR: 95-91 Page 2 Primary Issues to Consider. 0 Summary of agreement terms Council's attention is directed to the May 10 Jon Scoll memo that has targeted key terms of the agreement. The summarized terms speak for themselves, and staff is prepared to discuss these for further clarification should the need arise. 0 Alternatives Council has the following options in considering this agreement: 1. Deny approval of the agreement and elect to have the City bring the landfill into compliance. 2. Deny approval and seek to renegotiate certain terms. 3. Delay action and seek further information. 4. Approve the draft agreement as presented. . 0 Staff recommendation Staff urges Council to approve the draft agreement as presented and to authorize mayor and city manager signatures. e -.-- U.....J" "-'..1.'" -''-' UWO--.JU .1.0'\,...... --' I I nUL ~ UJ.":::" Jo.-l---J 1.0--1'-+ l'iU . '4;:)::7 r-\::'.J\::'.J,,/ \::'.JJ-J e STATE OF MINNESOTA OFnCE OF THE ATIORNEY GENERAL PUBUC AND HUMAN 'UI.soUllCE.~ SU1TE 9llO HUBEIrr H. HUMPHREY ill April 26. 1995 4(j MINNIISOTA snf.llT ~,PAl1L. MN531CI.1J:z1 .u'IOANEY CIlI'IDAL TaEl'HONE: (61~) 291-]0'75 Mr. Dick NowJi~ Esq. Doherty, Rumble & Butler, P.A. 2800 Minnesota World Trade Center 30 E. 7th Street St. Paul, MN 55]01 RE: Seventh Street Landfill Dear Mr. Nowlin: Enclosed please find the MPCA'g final iteration of the binding agreement for the Seventh Street Landfill. Yau will see that I have made a few additional changes. Chief among them are the legal description of the Landfill and the requirement for an Easement for Access for the ABJ Property after it is re-acquired. We have also changed the trigger date for lifting institutional controls so that they could be lifted as early as the year 2000, as Mr. Mielke requested. Finally, . we have clarified that the MPCA will own the response actions at the Landfill and the monitoring devices located off-site. Knowing that we are all anxious to conclude this aspect of the Seventh Street Landfill cleanup, I ask that your client sign all three signature pages and return them to me as soon as possible. I will return a fully executed signature page to you. I do not believe that we have any further points to negotiate. sa your cooperation in the execution of this Agreement will be appreciated. Sincerely yours, ~~ ' -. :~ \ M.......". \ '" . .'.....J ~' KA THL.fi;EN L. E Assistant Attorney Gene (612) 297-8756 Enclosure AG:60)8 vI . Fac,imile: (612) Zn-4B9. TOD; (612) 29(,..1410 . Toll Free Line: (800) 657-)787 (TOO Qr Y1Jitt) M FnllJl\ DDt.ocn.lIUCII Em"lovr:r Whn Valu.... ~;IV ..".,.. ~...--' ...._ .(~ _,....1---1 _.._.. J 1 C.aL __ ...__............._ .......__.... -- -- -- -- --- --- .........,......, . ''-' _ T.......-.oJ I V'-"....J..I:.J--J...J ~ e LANDFILL CLEANUP AGREEMENT BETWEEN THE CITY OF HOPKINS AND THE COMMISSIONER OF THE MINNESOTA POLLVT10N CONTROL AGENCY PURSUANT TO MINN. STAT. U l1SB.39-llSB.46 PREAMBLE The Commissioner of the Minnesota. PoUution Control Agency (Commissioner) has the power and duty to administer and enforce the provisions of the LandfIll Cleanup Act, Minn. Stat.~9 115B.39-115B.46 (1994) (the Act), including the authority to enter into binding agreements necessary [0 achieve compliance with me requirements of rhe Act. Minn. Stat, i 115B.40. subd.. 4 requires owners or operators of qualified facilities not SUbject to a cleanup order to complete specified activities and enter into a binding agreement with the Conunissioner before the Commissioner can issue a Notice of Compliance for the facility under Minn. Stat. 9 115B.40. subd. 7. . The 7th Street Landfill (Landfill) is a qualified facility within the meaning of Minn. Stat. ~ 115B.39, subd. 2(j) and is not subject to a cleanup order as that term is defmed in me Act. The City of Hopkins. me owner and operator of the Landfill has completed the closure activities at the Landfill, as required by Minn_ StaL , 115B.40, subd. 4(a)(l). NOW. THEREFORE, it is hereby agreed as follows: A. Parties to the Agreement. The parties to this Agreement arc: (1) The City of Hopkins. (hereinafter "City"). and (2) the Commissioner of the Minnesota Pollution Control Agency (Commissioner). . . . - ..._._____._<_n. .. ___._w. -..------.--.,.- .-- . -___. __ .._.. O_________n...._. U0"'U..l.~ --'----' ~O . .JD ......l.~LJ -.l I 'f1L...JL .. V J...c:.. --'.J.J .L D-I'-t f~U.4.::J.:J t"""'~~q/\:J..l..l . . including insurance agents, who may have information on such insurance coverage. The City shall cooperate and work with the Conunissioner to identify insurance policies and coverage, including giving testimony under oath and execution of affidavits. 2. Preservation of Rights. The City shall take all reasonable actions necessary to assert and preserve the right to the costs of defense and/or the payment for environmental response actions at the Landf1ll under any insurance policies referenced in Part F.l relating to claims for environmental response costs. Such actions shall include sending any required written notices to the insurance companies notifying the companies of a claim for damages for which payment is due or defense is required under the policies. The Commissioner may direct the City to take reasonable actions required under this paragraph and the City shall take such actions in accordance with the Conunissioner's directions. The City shall send copies of all written communications sent in pursuit of claims and any response by the insurance companies to Ken Meyer, MPCA, 520 Lafayette Road, St. Paul, MN 55155. . The City shall not be required to rake additional actions solely to preserve its rights where an insurer has notified the City whether it will pay t defend or deny a claim. By this agreement, the City is not obligated to retain outside professional assistance to pursue insurance claims. Prior (0 settling any claims for environmental response costs under any insurance policies referenced herein, the City shall obtain the Commissioner's written approval of the settlement. The City shall thereafter assign to the State all amounts received under such settlement as paymenr of the City's liability for envirornnental response costs incurred and to be incurred by the Commissioner. The payment shall be made by check to the State of Minnesota ~ Landfill Cleanup Account and sent to: e -5- (J..J.... ILJ..L'" ~~ uu~ ...J~ J....o"I,,"-" "-' J I r-''-'L- ' V..L.'::'" ...J...........J ~O..J--. I....U ~ ......--..l.J rl:::Jt.J..J/I:::'kJ..J . . . Ken Meyer Minnesota Pollution Conttol Agency 520 Lafayette Road St. Paul, MN 55155. 3. Assignment of Rights. When requested by the Commissioner, the City shall assign to the Commissioner all rights I claims, and causes of action it has under the insurance policies referenced in Pan F. 1. for payment of environmental response costs arising out of the operation of the Landfill or other business of the City related to the Landfill. This assignment shall be executed on a form approved by the Commissioner and may include such reasonable terms and conditions as the Commissioner may prescribe to effectuate the assignment. The City shall execute the assignment within 60 days of a request by the Commissioner, but no earlier than July 1. 1996. The Commissioner shall not request any assignment before May 1. 1996. 4. Cooperation with the Commissioner. . 3. The City shall cooperate with the State and its legal counsel in the furtherance of the c1aiIru; and causes of action referenced in paragraph F.2. and shall obtain the written approval of the Commissioner before settling any such claims or causes of action. b_ The Ciry shall cooperate with the State and its legal counsel in the furtherance of the claims and causes of action assigned in Part F. 3 . Such cooperation shall include producing all documents and other ilems pertinent to the claims raised and other matters of evidentiary value for trial and pre-trial discovery. giving testimony under oath, notifying fonner employees having information pertinent to the claims or causes of action assigned to the State and encouraging such employees to make themselves available to the State for trial and/or deposition and appropriate pre-trial discovery proceedings. The State will pay the cases of funhering the claims, however, the State will not pay the City for its cooperation. . -6- - n_.__..___ _ ____... lJ:J/ U 1 /:J:J 1l1::!:..):J V~~ ~I rHUL ~ bl~ ~~:J 11::!..)4 l'lU."l::J::! rl'll'Jb/ feU..) . H. Cooperation with Environmental Response Actions, Access to Property and Records, and Assignment of Claims. L Coo?eration. The City shall cooperate with the Commissioner and with employees. agents, and contractors of the MPCA when the Conunissioner takes environmental response actions the Commissioner deems necessary at the LandfilL The Cicy shall not take any action that interferes with the environmental response actions that the Commissioner and the MCP A employees, agents and contractors undertake pursuant to paragraph K of this Agreement or the Landfill Cleanup Act, including any actions that disturb or impede the cover, monitoring system, or the gas veming system to be installed at the landfill. The City shall take the actions specified herein: a. StoragelPlacement Restriction. The City agrees not to place, or allow others to place any materials. personal property, equipment or any other items either on or in the Landflll without the written consent of the MPCA Project Manager. . b. Srorage Buildings. The City agrees to remove all storage buildings located within the Landfill Gas Control Distdct established by ordinance effective August 30, 1994, by July 31, 1995. In removing the buildings from the Landfill. the City shall not "J .. disa;umect or cause ro be disconnected the electric. sewer or 2as service to the site or interfere with or disturb any strUcOlre, installation or equipment that is pan of the closure or remedial action for the Landfill. The recycling dock on the Landfill shall not be affected by this provision. c. ABJ Property. The City shall acquire title to the ABJ Property described in C.!. by December I, 1995. The City shall. by December L 1995. extinguish the nonexclusive easement for road purposes created by warranty deed dared June I, 1981. described as follows: That part of the SOUIh Half of Section :?5. Township 117. Range 22, "described as follows: the Southeasterly 66 feet of the Northwesterly 216 feet of that part of the South Half of said Section 25 lying . Southeasterly and parallel with the Southeasterly right-of-way line of the Chicago, Milwaukee, St. Paul & Pacific Railroad. -7- \::0/ <CJ.l./:::>::J \::Ib;"):::> V~D 01 rHUL 7 b~~ ~~~ ~O~~ l'1U.'-t--.J.:;i' r\::l\::l (/\::1,,),,) , . Within thirty (30) days of aCQUisition of the ABJ PrOPerty, the City shall file an Easement for J.. . Access for the ABJ Propenv in the form of Attachment E grantin~ the Commissioner, the . H t Commissioner's al5!ents. emplov~es and contractors access in accordance with the rights granted to the Commissioner under paragraph G. The City shall file the Easement for Access with lhe county recorder or registrar of ritles of the county where the property is located. and shall provide the Commissioner with proof of such recording. When the Commissioner derennines that the Easement is no longer necessary to carry out the Conunissioner's duties or authorities under the Act or to protect public health or welfare. the Commissioner will file a release of the Easement with the recorder or the registrar of titles in the county where the property is located. d. lAnd Use. The City agrees to revise the provisions of its land use plan applicable to the Landfill to make them consistent with the land use plan developed by the Conumssioner under Minn. Stat. ~ 115B.412. subd_ 9 (1994) for future uses of the Landfill... . , within 60 days of the City's receipt of the Commissioner's land use plan. e. Assignment of Access Rights. The City shall assign to the Commissioner the access rights it currently holds to property not owned by the City upon which the CoIIUD.issioner and aurhorized employees, agents or representatives will be required to enter or conduct work in order to carry out the tenns of this Agreement if those rights are assignable. f. Procurement of Access Rights. The City shall make the first anempts, using its best efforts. to obtain easements for access to propeny not owned by the City to which the City does not currently hold assignable access or licensing rights and upon which the MPCA and its authorized employees, agents or representatives will be required to enter or conduct work in order to carry out the terms of this Agreement. Easements for access obtained by the City under this Part shall be in a form similar to that in Attachment B. . If the City is unable to obtain access using its best efforts. the MPCA agrees to use its authority under the statutes and regulations it administers to assist the -8- ~ -- -..- -. < . --- . '-'-koi-- -"'-'o....J ...Uo....J--r I,U. '-t...J..:J ,~~.L/ 1:::'U..:l DOHERTY ~iD1 W~ """"=l"~ c..-.:r ]:iIXI~_'__n ~.'nIO>t Jl>illdmr :z:no 01>0 "'..., 0.-, :JD &.>. _-. ISO s.."" AtIh s.m.. L~M_T,Jol.'IiI. [:;:00.$0__ !I RUMBLE $lio. l'llul, W m-..:.. .u fD 101m Itol;,.",;.pou.. M_1l. ~;oj W&.bi>:lau... D.C. :lm:l~ J;:!l'3 n..-. Cola,.do lI02ll1.5m 'Nap:..- (611) 291-9JJJ 1'I>Iopbobo (612) ~ ~pbDt>o ~ ~ ToIooph- (jQ]) n2-QID & BUTLER PM (612) Z11-!J.1l3 PAX (51Z) 3oCIl-~S& PAX r.Jl2) ~615 F>U: ('lO) Y12...Q!;O . P'lU)~=ONA1. ASSOC1J\nol' AlJDruqa .... lAw Wril<:r'. din:.:ldi..! tlIImbcr. 612.291-9376 Rtply 10 SAiOl. Pllll.I Office FAX COVER SHEET Transmission Date: May 1, 1995 Time: 8:27 am To: Jim Gessele and Steve Mielke Fax Number: 934-1834 From: Dick Nowlin Doheny, Rumble & Buder, St Paul, Minnesota ClientlMatter No.: 102688-9 . The following faxed material is~pages including the cover sheet. If you do not receive all of tl1ese pages, please call the Fax Center at (612) 291-9416. Doherty, Rumble & Butler St. Paul Fax Number (612) 291-9313 COMMENTS: -=============~==~======~=====~======================-===-= The ioformation contained in [his facsimile message is atTorney privileged and confidential, intended only for the use of tha individual or entity named above. If the rader of lhis message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient. you are hereby notified tha.t any disseminatioD, distribution Or copying of this communicatioD. is strictly prohibited. If you have received this commWlic:ation in error. please immediately notify us by telephone. and rerum the original message to us at the above St. Paul address via the U.S. postal service. ====~=~~~~~M~~~M~~~~~~~=~=~~====:=========~~~~~========~~~~ . 1::::..1......1' ~.Lt'.:;-..J ~O.'-I<:J UI,D 0 I r nUL. "7 O.L~ ::J.,);:J 10..:J'-I l'lU.'-I;:!::;l r-Ul:JtI/U-.J-.J . City in obtaining access to property necessary for the implementation of this Agreement. The City is not obligated by this Agreement to pay property owners to obtain access. The obligations of the paragraph shall expire one year from the date of execution of this Agreement. g. Institutional Controls. By September I. 1995, the City shall adopt and maintain or cause the adoption and maintenance of one or more long term official controls to prevent any construction of any kind within 80 feet of the south boundary of the Landfill from the Southeast corner to 250 feet West of the Southeast comer; 50 feet of the South boundary from 250 feet West of the Southeast comer to the Southwest comer; and 120 feet from the Northwest boundary The measures shall remain in place until at least October 31, 2000. As of October 31. 1998. the City may terminate the controls if eight consecutive quarterly landfill gas sampling events show landfill gas levels below the Lower Explosive Limit at wells designated by the Commissioner. . The Ciry shall adopt and maintain or cause the adoption and maintenance of one or more long term official controls to prohibit unauthorized access by the public to the Landfill. particularly in the use of off-road vehicles, all-terrain vehicles. snowmobiles, mountain bikes and other equipment with the capability of damaging the Landfill cover. h. Landfill Gas Control District. The City shall take action to include the following described property in the Landfill Gas Control District by June 1, 1995: That part of the South Half of Section 25, Township 117, Range 22, Hennepin County. Minnesota. described as follows: Beginning at the point of intersection of the Nonh line of said South Half of Section 25 with the Southeasterly right-of-way of the Soo Line Railroad Company (formerly known as the Chicago, Milwaukee, Sc. Paul, and Pacific Railroad); thence Southwesterly, along said Southeasterly right-of-way. a distance of 54_64 feet to its intersection with a line drawn parallel with and distant 33.00 . feet South of said Nonh line of the South Half of Section 25; thence East, along said parallel line, a distance of 68.56 feet to its intersection with a line drawn perpendicular to said Southeasterly right-ai-way line from said point of beginning; thence -9- ------- 1::..1--.1'" 't'..J-l.~ ..:.'--.1 l!JO-'-t1t:.J Ul'~ ~l rMUL 7 D~~ ~J~ ~O~~ I'IU. '-I~:J r-'d'd:J/lI")"} . Northwesterly, along said perpendicular line, a distance of 41.40 feet to the point of beginning. The City shall continue in effect the Landfill Gas Control District and the restrictions imposed on it. 2. Access (Q Pro"Oerry. The City hereby grants to the Commissioner and to employees, agents, and contractors of the MPCA and the Commissioner, access [0 the Landfi11' for the purpose of taking environmental response action and related actions as the Commissioner deems necessary to carry out this Agreement and his duties and authorities under the Act, including installation of structures and equipment deemed necessary by the Commissioner, sampling of ground water and gas monitoring wells located hereon and installing additional ground water and gas monitoring wells as the Commissioner deems necessary. The MPCA shall obtain all necessary permits for installation and maintenance of ground water monitoring wells, shall maintain the monitoring wells, and. upon completion of e the environmental response acrions including all required morutoring. shall seal the monitoring wells in accordance with State law. The Cil)' shall allow requests for such access conditioned only upon presentation of proper identification. The Commissioner may install fences or other equipment or structures by which the Commissioner may control access to the Landfill by persons not authorized under this Agreement. The City may authorize other persons to enter the LandfIll or an area for which the Commissioner has installed access controls only after written approval from the MPCA Project Manager_ Written approval shall only be granted if the Project Manager determines that such entry will not adversely affect enviromnental response actions implemented or to be implemented by the Commissioner. Within 30 days after the effective date of this Agreement, the City shall file an Easement for Access in me form of Attachment C granting the Commissioner, his agents, employees and contractors, an Easement for Access for the property described in e paragraph D_1., less the parcel described in paragraph C.1- in accordance with the rights -10- u..--.... ~..L""....:J--.l DO.......,..L J.....I '.l.....l --.J I I nuL... .... UJ.C ~..J...J .1.0..JJ..-t .~U ~ '-t--.!"::;' 1~J.l':JI'~..J.J , e granted to the Commissioner under paragraph G. The City shall file the Easement for Access with the county recorder or registrar of titles of the county where the following property is located, and shall provide the Conunissioner with proof of such recording. When the MPCA Conunissioner determines that the Easement is no longer necessary to carry out his duties or authorities under the Act or to protect public health or welfare, the Commissioner will file a release of the Easement wirh the recorder or the registrar of titles in the county where the property is loca[ed. 3. Access to Records. The City shall retain and preserve all records relating to the operation of the Landfill and other businesses of the City related to the Landfill, including but not limited to customer lists, disposal record~ and hauling records. The City shall retain such records for ten (10) years after the effecrive date of this Agreement or until receiving written notice from the Commissioner releasing the City from this requirement, whichever is sooner. The City shall not move such records from City Hall without prior . notice to and written approval of the Commissioner. The City hereby grants to the Commissioner and to employees, agents and contractors of the MPCA, access to all records of the Landfill and lhe records of other businesses of the City relared to the Landfill, regardless of the location of such records. If such records are kept at a location other than the Landfill, the Commissioner or his authorized representatives shall have access to such other locations for the purpose of inspecting such records. The City shall honor all reasonable requests for such access conditioned only upon presentation of proper identification. If requested by the Commissioner, the City shall transfer all such records to the custody and control of the Commissioner. 4. Provision of Information. By September I, 1995, the City shall provide the Commissioner with a list of all known solid waste haulers who delivered waste to the LandIIlI while the City operated the Landfill. This list shall include, to the extent the City can e locate it within City records, the following information for each hauler: a start date and an end date during which the hauler made deliveries to the Landfill, the hauler's proportional -11- I:::J--J/ 'CJ..L/ .:J--J tJo.y.L U~D ~I rHUL 7 O.LL ~~~ lb~y I~U."-lU::; r't;Jll/I:::l-5-5 , e contribution to the annual tonnage delivered to the Landfill, the hauler's mailing address. and a contact person at the hauler's organization. The City shall cooperate and work with the Commissioner to locate and provide this information. 5. Assignment of Claims. Warranties and Licenses Related to Remedy Construction. Installation and Equipment. The Ciry hereby assigns to the Commissioner any and all rights arising out of contracts for the design, construction. installation or purchase of response actions or response action components for the Landfill inclUding rights with respect to deficient or defective design, construction. or installation; rights under warranties; and licenses to use any equipment or processes. The City makes no warranties or representations to the Commissioner regarding any of the rights hereby assigned, or the merits of claims, if any, which the City may have thereunder; or any defenses, limitations, or rights of setoff or counterclaim which may exist with respect thereto. e 6. Lawsuits. The City warrants that there are no pending lawsuits related to the landfIll or to other property referenced in this agreement as of the date of execution of this Agreement except the following: Earth Protector. Inc. v. Barbara Aamot. et a1., Court File ,;J . No. MX91-6132, Hennepin County, Minnesota. The City has a continuing obligation to promptly infonn the Commissioner of pending lawsuirs related to an property referenced in this Agreement during the term of this Agreement. If the City fails to provide full, accurate and complete disclosure of the existence of pending lawsuits, the Commissioner may I at his discretion, cancel this Agreement upon thirty (30) days written notice to the Cicy. I. Property Rights Regarding Property Adjacent to the Landfill. 1- Installation of Drinking Water Wells. The ground water monitoring wells on or adjacent to the Landfill indicate that the ground water is currently contaminated with vinyl chloride and manganese above the MiIUlesota Department of Health's (MDH) Health . Risk Limits (HRls) for private drinking water wells. The City shall not install or allow to be installed any drinking water well within the City except in compliance with Minn. Rules -12- tJ..J.I ~J...F..::::J-.....J \::JO.4J. U~D ~~ rHUL 7 DL~ ~~~ LD~4 NU.4:J~ rl1 L:::/~'L:\J . 4725.4450 and after receiving the written approval of the MPCA Commissioner and rhe Minnesota Deparonem of Health. 2. Restrictive Covenant. Within thirty (30) days after the effective date of this Agreement, the City shall file a Restrictive Covenant on the parcels described in this :l '_~.'"-'___N__..'--" . paragraph in the form of Atcaclunent C restricting the use of the property as described in Paragraphs D. The City shall file the Restrictive Covena.nt with the county recorder or registrar of titles of the county where the property is located, and shall provide the Commissioner with proof of such recording. When the MPCA Commissioner determines that a Restrictive Covenant is no longer necessary to carry out the Commissioner's duties or authorities under the Act or to protect public health or welfare, the Commissioner will release the Restrictive Covenant by filing a release with the recorder or the registrar of titles in the county where the property is located . . J. Wai\'er. Notwithstanding any other provisions of this Agreement, the City hereby waives any and all claims against the MPCA Commissioner or the State of Minnesota for damages, for any taking of prcperty rights. including inverse condemnation, or for any restriction of use, diminution of value, or loss of use or enjoyment of any property owned by the City arising out of: 0) any work to be peIfonned by or under the direction of the Commissioner to carry out his duties or authorities under the Act; (2) the presence of the Landfill or any releases or threatened releases of hazardous substances or pollutants or contaminants or landfill gas from the Lmdfill; and (3) the installation, operation or maintenance of any associated strUctures and equipment at the Landfill or adjacent property. Except for claims for which the Commissioner may be liable under Paragraph N (Liabilil)") of this Agreement, the City hereby waives any claims against the Commissioner for . damages or response costs arising out of acts or omissions of the Conunissioner in carrying out -13- \J~/Ul/::;~ Ub:4C:: VKb ~I ~HUL ~ bl~ ~~~ Ib~4 NU.4~::; f-'l::ll...:V033 . his responsibilities under this Agreement or his duties Of responsibilities under the Act related to the LandfIll. K. Recording of the Agreement. Within 30 days after the effecrive date of this Agreement, the Ciry shall record with the county recorder or registrar of titles of the counties where the Landfill is located, a copy of this Agreement and shall provide the Commissioner with proof of such recording_ L. Issuance of Notice of Compliance. Upon satisfactory completion by the City of the obligations under this Agreement, as determined by the Conunissioner. the Commissioner agrees to issue to the City a Notice of Compliance for the Landf1.l1 pursuant to Minn. Stat. ~ 115B.40, subd. 7, subject to Minn. Stat. ~ 115B.40, subd. 7(a)(2). After issuance of the Notice of Compliance: (1) the Commissioner shall assume all further responsibilities for environmental response actions at the Landfill in accordance with MiJUl. Stat. ~ 115B.40. subd.7(b); (2) the Commissioner shall e terminate the 1988 Order by Consent relating to the Landfill. The City shall have a continuing obligation to fully comply with this Agreement including the requirements of paragraphs F (Insurance), G (Cooperation with Environmental Response Actions), H (Restrictive Covenam), and I (Waiver) of this Agreement. The Parties agree that by implementation of the Landfill Cleanup Act and this Agreement, me Commissioner does not assume responsibility of any kind for conditions or activities that existed or were conducted on or as a result of the Landfill prior to the date on which the Commissioner conunences work. on the LandfLll. M. Financial Assurance. The Commissioner hereby releases the City from the financial assurance obligations imposed by the 1988 Consent Order and agrees that {he monies accumulated pursuant to the Order may be used for the acquisition of the ADI Propeny. e -14- \Cl::J/ I::J 1 /::7::J IdtJ:4c UKV ~I rHUL 7 blc ::7~::J ItJ~4 l'lU. "!:J::7 t-'1d14/1d..:U . N. Enforceability . This Agreement is enforceable by Ihe parties. This Agreement shall be governed by and construed under the laws of the State of Minnesota. The venue of any action under this Agreement shall be in Ramsey County District Court. The Commissioner retains the right to take any action, legal, equitable or administrative, that may be available to implement or enforce the tenns of this Agreement or to take any other action under the Commissioner's authority in the event of any non- compliance with this Agreemem. O. Liability and Governmental Inununities. Each party agrees that it shall be responsible for its own acts and omissions and the results thereof, and those of its officers, employees and agents, in carrying OUt its obligations under this Agreement, and shall not be responsible for the acts or omissions of the other party, its officers, employees or agents. The liability of the Commissioner shall be . governed by the provisions of the Minnesota Tort Claims Act] Minn. Sta[. ~~ 3.732. et seq., and other applicable law. Nothing contained in this Agreement shall constitute a waiver by the Commissioner of any governmental immunity afforded by law. The liability of the City shall be governed by the provisions of the Municipal Tort Claims Act. Minn. Stat. ~~ 466.01 et seq.. and other applicable Jaw. Nothing conrained in this Agreement shall constitute a waiver by the City of any govermnental immunity afforded by law. P. Information. The Commissioner shall submit the following documents to the City for its review a reasonable time prior to commencing me task: Construction Design and Bid Specifications. including fence construction Construction Schedule Land Use Plan Change Orders in excess of $50,000 e Additional Environmental Response Action Design Plans, including fence construction. -15- l::]:;J/l::]1/:;l::J l::ltj:4.) ~~d ~I rHUL 7 bl~ ~~:;J Id~q I'IU. '4:;J~ J-'l::]1:;J/l::].),5 . e The City may comment on each document. All information exchanged under this Agreement shall be directed through the following persons: Ken Meyer City Clerk MPCA City Manager 520 Lafayette Road 1010 First Street South St. Paul, MN 55155 Hopkins. MN 5534 Q. Amendments. This Agreement may be amended only by written agreement among the parties to this Agreement. R. Successors and Assigns. This Agreement is binding upon the City and its successors and assigns, and upon the Commissioner and his successors and assigns. s. Severability . . If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal by a court, the validity and enforceability of the other provisions shall not be affected thereby. e -16- u::v Ul/::J~ Ut:l:"l.,j V~d 01 ~HUL 7 bl~ ::J.,j~ 1~..J~ l'lU. "+::J::! .Ulb/Ij.,j..J e T. Effective Date. This Agreement is effective upon the date that it is signed by the Attorney General. BY THEIR SIGNATURES BELOW. THE UNDERSIGNED REPRESENT THAT THEY HAVE AUTHORITY TO BIND THE PARTIES THEY REPRESENT, THEIR AGENTS, SUCCESSORS AND ASSIGNS. IT IS SO AGREED: MINNESOT A POLLUTION CONTROL CITY OF HOPKINS AGENCY COMMISSIONER By By Date Title By Date Title As to Form and Execution . Date HUBERT H. HUMPHREY m Attorney General By State of Minnesota Title By (NAME OF ATTORNEY) Date Assisrant Attorney General EPp4:l~HPFILl.JB3 Date . Attorney for NIPCA Corrunissioner . -17- \::l::J/Ul/::;I::J Ut:l:""-.J UKD ~I ~HUL 7 bl~ ::;I..J~ lO-.J"" NU.4::J:J t-'\::ll :::VlJ.i.i ~ ~ ~ . Attachment B AGREEMENT BETWEEN PROPERTI'" OWNER AND THE COMMISSIONER OF THE MINNESOTA POLLUTION CONTROL AGENCY PURSUANT TO MINN. STAT. ~9 115.04, SU8D. 3, U5B.17, SUBD. 4, 115B.412, SUBD. 2 AND 116.091 The Commissioner of the Minnesota Pollution Control Agency (MPCA) is undertaking an enViromnental response action at the Sevenih Street LandfilL The en.....irorunental response action requires off-site monitoring at , which is owned by (Property Owner). The Property Owner hereby consents and authorizes the Commissioner of the MPCA, the Commissioner's employees, designees and agents to enter the Property for the purpose of . sampling and maintaining existing groundwater and gas monitoring wells. The Property Owner further agrees not to convey any title, easement or other interest in the property unless the 11PCA Commissioner has been notified, by certified mail, at least thirty (30) days prior to the conveyance, and provisions satisfactory to the MPCA Commissioner have been made to assure continued access to and operation and maintenance of the monitoring wells . The Commissioner will attempt to notify the Property Owner at least 48 hours before entering the property. Work will be conducted during regular business hours (8:00 a.m. to 5:00 p.m.) unless the Commissioner receives permission to conduct work during different hours. The Commissioner will conduct the activities so as to minimize interference v.ri.th the use of the property. If any portion of the property is disturbed as a result of the Commissioner's activities, the Commissioner will restore the property to as close to its original condition as is reasonably . possible under the circumstances. The Property Owner will take reasonable precautions to insure \::1::1/ '::J.l/ :::;0 l.It:l:q-:l u~o ~I rHU~ 7 O.l~ ~-:l~ .lOJ~ I~U.'-kJ::> no<::'::J"'::J...:U ~ . . that it does not damage the equipment and wells on the property and that it does not disrupt or interfere with the operation of the wells or the work being conducted by the Commissioner. The Commissioner wilJ be responsible for compliance with state laws and regulations relating to the monitoring which will be Wldertaken as part of the envirorunental response action and pursuant to this agreement. All equipment, installations and structures shall be owned and maintained by the Commissioner. The Commissioner will obtain any maintenance permits and pay any applicable fees Charles W. Williams Property Owner Dated: Dated: . AO:60S2 v I . 2 --- -- ---- - 05/01/95 08:44 DRB 5T PRUL ~ 612 935 1834 NO. 459 P021/033 . , . . Attachment C EASEMENT TIllS INDENTURE, made this day of ) 19 > between City of Hopkins, of the County of Hennepin, State of Minnesota, party of the first part, and the STATE OF MINNESOTA, a sovereign body, by its Commissioner of the Minnesota Pollution Control Agency, party of the second part~ WITNESSETH: WHEREAS, City of Hopkins entered into a Landfill Cleanup Agreement on <date> with the Commissioner of the Minnesota Pollution Control Agency pursuant to the Landfill Cleanup Act, Minn- Stat. ~~ 115B.39-115B.46 (1994) (the "Act"), related to the Seventh Street Landfill . which is located in Section 25, Township 117, Range 22, Hopkins Township, Heooepin County, Minnesota; and WHEREAS, the Commissioner has the authority to acquire an interest in real property necessary for environmental response actions under Minn. Stat. ~g 115B.412, subd. 3 and 1158.17, subd. 15; and WHEREAS, under the Landfill Cleanup Agreemen~ City of Hopkins agreed to convey to the 8T ATE OF MINNESOTA an Easement to certain described parcels of property that it owns and which are hereinafter described. NOW THEREFORE, the said party of the first part for valuable consideration does hereby grant a perpetual easement to the STATE OF MINNESOTA acting through its Commissioner of the Minnesota Pollution Control Agency (Commissioner) for the purposes and . under the terms and conditions as hereinafter described in the following described premises situated in the County of Hennepin and the State of Minnesota, to-wit: ld::J/\11/~::J lltJ:44 V~d ~I ~HUL ~ bl~ ~~~ ItJJ4 NU.4::J~ 1-'1l2;'Y033 . . That part of the Northwest Quarter of the Southwest Quarter of Section 25 Township 117, Range 22~ Hennepin County, Minnesota, beginning at the northeast corner of Outlot B, Westbrooke Patio Homes; thence westerly along the south line of Seventh Street South and, by extension, to its intersection with the southeasterly right-of-way line of the Soo Line Railroad Company; thence southwesterly along the said southeasterly right--of-way line of said railway to its intersection with the west line of section 25, TO'WIlship 117, Range 22; thence southerly aJong said west line of said Section 25 to the southwest comer of the Northwest Quarter of the Southwest Quarter thereof; thence easterly along the south line of said Northwest Quarter of the Southwest Quarter of Section 25, to the southwest comer of Outlot A, Westbrooke Patio Homes; thence northerly along the west line of said plat of Westbrooke Patio Homes to the southwest comer of said Outlot B; thence easterly along the south line of said Outlot B to the southeast comer thereof; thence northerly along the east line of said Outlot B to the point of beginning; and That part of the South Half of Section 25, Township 177, Range 22, Hennepin County. Minnesota, beginning at the point of intersection of the North line of said . South half of Section 25 with the southeasterly right-ai-way line of the Soo Line Railroad (fonnerly known as the Chicago, Milwaukee, St. Paul. and Pacific Railroad); thence Southwesterly, along said Southeasterly right-of-way, a distance of 54.64 feet to its intersection with a line drawn parallel with and distant 33.00 feet south of said north line of the south half of Section 25; thence East, along said parallel line. a distance of 68.56 feet to its intersection with a line drawn perpendicular to said Southeasterly right-of-way line from said point of beginning' thence Northwesterly, along said perpendicular line, a distance of 41.40 feet to the point of beginning. THE PURPOSE AND INTENT OF THIS EASEMENT IS TO: 1. Penn it the Commissioner and employees, agents and contractors of the Commissioner and the Mhmesota Pollution Control Agency to enter the property and to take environmental response actions (as that term is defined in Minn. Stat. ~ 115B.39, subd. 2(g)) as the Conunissioner deems necessary to tarry out his duties and authorities under the Act, including access to existing response action equipment and structures, installation of structures . and equipment deemed necessary by the Commissioner, and sampling and installing ground water monitoring wells and gas monitoring wells and probes and extraction wells. 2 05/U1/:J5 0tJ:44 U~b ~I ~HUL ~ 512 935 1~34 NO. 459 P023/033 , . . 2. Allow the Commissioner to sample and maintain existing ground water and gas monitoring wells and probes and install and maintain additional ground water and gas monitoring wells and probes as the Commissioner deems necessary. THE EASEMENT IS SUBJECT TO THE FOLLOWING COVENANTS AND CONDITIONS: 1. The Commissioner may install fences or other equipment or structures by which the Conurussioner may control access to all or a portion of the property. City of Hopkins may grant access to other persons to enter an area for which the Commissioner has installed access controls only after written approval of the MPCA Commissioner. 2. City of Hopkins shall not take or allow others to take any action thai interferes . with environmental response actions of the Commissioner. 3. City of Hopkins shall not place or allow others to place any materials, structures, personal property, equipment or any other items on the property without the prior written consent of the Commissioner. 4_ City of Hopkins shall allow access pursuant to this Easement conditioned only upon presentation of proper identification. S. The Commissioner is the owner of all response action equipment and structures on the property_ Such response action equipment and structures cannot be sold, mortgaged or otherwise disposed of without the \Witten approval of the MPCA Commissioner and, if the equipment and structures are bond-financed] the Minnesota Commissioner of Finance. 6. City of Hopkins shall not convey any other easement for any purpose in the . property, including, but not limited to, road or utility easements, without a written authorization from the Commissioner. 3 -- - - .--.- 05/01/95 08:45 DRB 5T PRUL ~ 612 935 1834 NO.459 P024/033 , . . This Easement and the covenants contained herein shall run with the land and shall be binding on all persons and entities who shall come into ownership or possession of the property as described herein. IN TESTIMONY WHEREOF, the parties of the ftrst part have hereunto set their hands the day and year rust above written. (Name) . (Nmne) STATE OF MINNESOTA COUNTY OF On this _ day of , , before me a notary public within and for said County and State, personally appeared (Names) <titles - if political subdivision> to me personally kno\Vn, who, being duly sworn by me on oath, did say that he/she/they is/are the persons who signed the foregoing instrument and acknowledged that they signed the same as hislher free act and deed for the uses and purposes therein set forth- Notary Public, County, MN My commission expires . 4 05/01/95 08:45 DRB 5T PRUL ~ 612 935 1834 NO.459 P025/033 . . ' . e Accepted by the Commissioner of the Minnesota Pollution Control Agency pursuant to Minn. Stat. ~~ 115B.412. subd. 3 and 1158.17, subd. 15. By Charles W. Williams Commissioner ACKNOWLEDGMENT STATE OF MINNESOTA COUNTY OF RAMSEY e On this day of , > before me a notary public within and for said County and State. personally appeared Charles W. Williams, Commissioner of the Minnesota Pollution Control Agency, to me personally known, who, being duly sworn by me on oath, did say that he is the person who signed the foregoing instrument and acknowledged that he signed said instrument as the free act and deed of the State of Minnesota. Notary Public, County, MN My commission expires TffiS INSTRUMENT WAS DRAFTED BY: Kathleen Winters Assistant Attorney General 900 NCL Tower 445 Minnesota Street St. Paul, Minnesota 55] 01 e AG:5884 "1 5 ------ 05/01/95 08:45 D~~ ~I ~HUL ~ 512 935 1834 NO.459 P026/033 . - , e Attachment D DECLARATION OF RESTRICTIONS AND COVENANTS THIS DECLAR.A.TION, made this _ day of , ]9 . by City of Hopkins. (hereinafter referred to as "Declarant"): WITNESSETH: VlHEREAS, Declarant is the fee owner of the real property legally described herein; and WHEREAS, Declarant entered into a Landfill Cleanup Agreement on <date> with the Commissioner of the Minnesota Pollution Control Agency pursuant to the Landfill Cleanup Act, Minn. Stat. ~9 115B.39-115B.46 (1994) (the 'IAct"), related to the Seventh Street Landfill which e Declarant owns and which is located in Section 25. Township 117, Range 22, Hopkins Township, Hennepin County. Minnesota; and WHEREAS, under the Landfill Cleanup Agreement, Declarant agreed to place a Restrictive Covenant on portions of certain parcels of property that it owns and which are hereinafter described. NOW THEREFORE, Declarant makes the following declarations as to limitations. restrictions and uses to which the subject property may be put, and specifies that such declarations shall constitute covenants to run with the land as provided by law and shall be binding on all parties and all persons claiming under them. l. There shall be no construction of any structure without the 'Written approval of the CO:rnnllssioner of the Minnesota Pollution Control Agency (MPCA) on the follo\Ving described e parcels of property: --. -.-------.-----..- 05/01/95 08:45 DRB 5T PRUL ~ 612 935 1834 NO.459 P027/033 . - - e That part of the Northwest Quarter of the Southwest Quarter of Section 25 Township ] 1 7, Range 22, Hennepin County, Minnesota, beginning at the northeast comer of Outlot B, Westbrooke Patio Homes; thence westerly along the south line of Seventh Street South and, by extension, to its intersection with the southeasterly right-of-way line of the Soo Line Railroad Company; thence southwesterly along the said southeasterly right-of-way line of said railway to its intersection with the west line of section 25, Township 117, Range 22; thence southerly along said west line of said Section 25 to the southwest comer of the Northwest Quarter of the Southwest Quarter thereof; thence easterly along the south line of said Northwest Quarter of the Southwest Quarter of Section 25, to the southwest comer of Outlot A, Westbrooke Patio Homes; thence northerly along the west line of said plat of Westbrooke Patio Homes to the southwest comer of said Outlot B; thence easterly along the south line of said Outlot B to the southeast comer thereof; thence northerly along the east line of said Outlot B to the point of beginning; and That part of the South Half of Section 25, Township 177~ Range 22, Hennepin . County, Minnesota, begiIllling at the point of intersection of the North line of said South half of Section 25 with the southeasterly right-of-way line of the Soo Line Railroad (formerly known as the Chicago, Milwaukee, St. Paul, and Pacitic:: Railroad); thence Southwesterly, along said Southeasterly right-of~way. a distance of 54.64 feet to its intersection with a line drawn parallel with and distant 33.00 feet south of said north line of the south half of Section 25; thence East, along said parallel line, a distance of 68.56 feet to its intersection with a line drawn perpendicular to said Southeasterly right-of-way line from said point of beginning' thence Northwesterly, along said perpendicular line, a distance of 41.40 feet to the point of beginning. 2. Drinking water wells may only be installed in compliance with Minn. R. 4725.4450 and any amendments thereto and after the written approval of the Commissioner of the MPCA and the Minnesota Department of Health on the parcels of property described. in paragraph 1 of this document. 3. There shall be no access to the above-described property by persons other than e Declarant and the MPCA without prior written approval from the MPCA. 2 05/01/95 08:46 DRB 5T PRUL ~ 612 935 1834 NO.459 P028/033 . - . - e 4. When the MPCA Commissioner determines that a Restrictive Covenant is no longer necessary to carry out his duties or authorities under the Act or to protect public health or welfare. the Commissioner may terminate this declaration and release all or a portion of the affected property from all or any part of the terms and conditions of this declaration. IN WITNESS WHEREOF J the undersigned being the Declarant herein has caused this declaration to be executed on the day and year first above written. (Name) (Title) . (Name) ACKNOWLEDG~ STATE OF MINNESOTA COUNTY OF On this _ day of , , before me a notary public within and for said County and State. personally appeared (Names) <titles - for political subdivisions> to me personally known, who, being duly sworn by me on oath, did say that he/she/they is/are the persons who signed the foregoing instrument and acknowledged that they signed the same as free act and deed for the uses and purposes therein set forth. e Notary Public, County, MN My commission expires 3 .-------- .----- -.------- 05/01/95 08:46 DRE 5T PRUL ~ 612 935 1834 NO. 459 P029/033 - - ~ . Accepted by the Commissioner of the Mirmesota Pollution Control Agency pursuant to Minn. Stat. 9~ ] 15BA12, subd. 3 and 115B.17, subd. 15 By Charles W. Williams Commissioner ACKNOWLEDGMENT STATE OF MINNESOTA COUNTY OF RAMSEY On this _ day of . 19 -J before me a notary public within and for said County and State, personally appeared Charles W. Williams, Commissioner of the Minnesota . Pollution Control Agency, to me personally known, who being duly sworn by me on oath, did say that he is the person who signed the foregoing instrument and acknowledged that he signed said instnunent as the free act and deed of the State of Minnesota Notary Public, County, MN My commission expires TIllS INSTRUMENT WAS DRAFTED BY: Kathleen Winters Assistant Attorney General 900 NeL Tower 445 Minnesota Street St_ Paul, :Minnesota 55101 e AG:51178 vI 4 05/01/95 08:46 DRB ST PRUL ~ 612 935 1834 NO.459 P030/033 , - . Attachment E EASEMENT THIS INDENTURE, made this day of , 19 , between City of Hopkins, of the County of Hennepin, State of Mjnneso~ party of the fust part, and the STATE OF MINNESOTA, a sovereign body, by its Commissioner of the Minnesota Pollution Control Agency, party of the second part. WITNESSETH: WHEREAS, City of Hopkins entered into a Landfill Cleanup Agreement on with the Commissioner of the Mirmesota Pollution Control Agency pursuant to the Landfill Cleanup Act, Minn. Stat. 99 115B.39-115B.46 (1994) (the "Acttl), . related to the Seventh Street Landfill which is located in Section 25, Township 117, Range 22, Hopkins Township, Hennepin C01mty, Minnesota; and vntEREAS, the Commissioner has the authority to acquire an interest in real property necessary for environmental response actions under Minn. Stat. 9~ 1158.412, subd. 3 and IISB.17. subd. 15; and WHEREAS, under the Landfill Cleanup Agreement, City of Hopkins agreed to convey to the STATE OF MINNESOTA an Easement to certain described parcels of property that it owns and which are hereinafter described. NOW THEREFORE, the said party of the fIrst part for valuable consideration does hereby grant a perpetual easement to the ST A IE OF MINNESOTA acting through its Commissioner of the Minnesota Pollution Control Agency (Commissioner) for the purposes and . under the terms and conditions as hereinafter described in the following described premises situated in the County of HeIUlepin and the State of Minnesota, to-wit: ...---.---- - 05/01/95 08:47 DRB ST PRUL ~ 512 935 1834 NO.459 P031/033 . . That part of the South Half of Section 25. Township 117. Range 22, described as follows: commencing at the point of intersection of the North line of said South Half with the Southeasterly right-of-way line of the Chicago, Milwaukee. St. Paul & Pacific Railroad; thence Southwesterly along said Southeasterly right-of-way line a distance of 200 feet to the point of beginning of the land to be described: Thence Southeasterly at right angles to said right-of-way line a distance of 150 feet; thence Southwesterly parallel to and 150 feet Southeasterly of said Southeasterly right-of-way Railroad line to the West line of said Section 25; thence North along said Section line to its intersection with the said Southeasterly right-of-way of said Railroad; thence Northeasterly along said Southeasterly right- of-way line to the point of beginning. THE PURPOSE AND rNTENT OF THIS EASEMENT IS TO: 1. Penn it the Commissioner and employees, agents and contractors of the Commissioner and the Minnesota Pollution Control Agency to enter the property and to take environmental response actions (as that tenn is defined in Minn. Stat. ~ 115B.39, subd. 2(g)) as . the Commissioner deems necessary to carry out his duties and authorities under the Act, including access to existing response action equipment and structures, installation of structures and equipment deemed necessary by the Commissioner, and sampling and installing ground water monitoring wells and gas monitoring wells and probes and extraction wells. 2. Allow the Commissioner to sample and maintain existing ground water and gas monitoring wells and probes and install and maintain additional groWld water and gas monitoring wells and probes as the Commissioner deems necessaJj'. THE EASEMENT IS SUBJECT TO THE FOLLOW'ING COVENANTS AND CONDITIONS: 1. The Commissioner may install fences or other equipment or structures by which the Commissioner may control access to all or a portion of the property. City of Hopkins may . grant access to other persons to enter an area for which the Commissioner has installed access controls only after written approval of the MPCA Commissioner. 2 05/01/95 08:47 DRB ST PAUL ~ 612 935 1834 NO. 459 P032/033 I . . . 2. City of Hopkins shall not take or allow others to take any action that interferes with environmental response actions of the Commissioner. 3. City of Hopkins shall not place or allow others to place any materials. structures, personal property, equipment or any other items on the property without the prior written consent of the Commissioner. 4. City of Hopkins shall allow access pursuant to this Easement conditioned only upon presentation of proper identification. 5. The Commissioner is the ovmer of all response action equipment and structures on the property. Such response action equipment and structures cannot be sold, mortgaged or othervnse disposed of without the written approval of the MPCA Commissioner and, if the . equipment and structures are bond-financed, the Mirmesota Commissioner of Finance. 6. City of Hopkins shall not convey any other easement for any purpose in the property, including, but not limited to, road or utility easements, without a written authorization from the Commissioner. This Easement and the covenants contained herein shall nul with the land and shall be binding on all persons and entities who shall come into ownership or possession of the property as described herein. IN TESTIMONY WHEREOFj the parties of the first part have herelUlto set their hands the day and year first above written_ CITY OF HOPKINS . (Name) (Name) 3 05/131/95 08:47 DRB 5T PRUL 7 512 935 1834 NO. 459 P033/033 . . . STATE OF MINNESOTA COUNTY OF On this _ day of . . before me a notary public within and for said County and State, personally appeared and . the and of the City of Hopkins, to me personally known, who. being duly sworn by me on oath, did say that they are the persons who signed the foregoing instrument and acknowledged that they signed the same as theirfree act and deed for the uses and purposes therein set forth. Notary Public, County, MN My conunission expires Accepted by the Commissioner of the Minnesota Pollution Control Agency pursuant to Minn. Stat. ~~ 115B.412, subd. 3 and 1I5B,I7, subd. 15. By . Charles W _ Williams Commissioner ACKNOWLEDGMENT STATE OF MINNESOTA COUNTY OF RAMSEY On this _ day of ) , before me a notary public within and for said County and State, personally appeared Charles W. Williams, Commissioner of the Minnesota Pollution Control Agency, to me personally known, who, being duly sworn by me on oath. did say that he is the person who signed the foregoing instrument and acknowledged that he signed said instrument as the free act and deed of the State ofMilUlesota_ Notary Public. County, MN My commission expires THIS INSTRUMENT WAS DRAFTED BY: Kathleen Winters . Assistant Attorney General 900 NeL Tower 445 Minnesota Street S1. Paul. Minnesota 55101 AG:60SJ vI 4 DOHERTY -',;" , . I ',\, I . I ,j ~:.I 1. ~ .' r ~ : ~ . r ~ I .1 I I : I ' , ~ . ,. I' I,. . . . I I' ~ . l' , RUMBLE " . I I' r !", -, '~, " r ! ,I! ~." Jr I' f : r r I", -..,:;"., ~ ~ I ~ ~ '. 1 , . . , ~ -, ',<., I'" "1 ~, :. ", I" I 't",,'~,1 ~-'1"1 ~'P~II ',lli.:1t",lf"'lh 'dll1n.'....,.1.l '~-ll ~ ;..:.. ""<'1:-_'. 'T"'I,_. , & BUTLER "I,: : '." .' . I: ", -;;, . 'I" . " ,; . ; . q., ~ 1:,'1\ '-, \--.1 '. .\!LorrH"'..... oil LH.... J.., ' :'_1: r !" r 291-9376 ",'.' '-.,1' " I:;' ;:1.' May 4, 1995 Mr. Ken Meyer Minnesota Pollution Control Agency Groundwater and Solid Waste Division 520 Lafayette Road St. Paul, MN 55155 Ms. Kathleen Winters Assistant Attorney General Minnesota Pollution Control Agency 445 Minnesota Street, Suite 900 St. Paul, MN 55101-2127 Re: Landfill Cleanup Agreement Hopkins 7th Street Landfill . Dear Ken and Kathleen: The City staff has reviewed the final draft of the Landfill Cleanup Agreement (" Agreement") transmitted by Kathleen's letter of April 26, 1995 and is ready to present the Agreement to the City Council with recommendation for execution at its meeting on May 16. It is expected that the Council will act favorably on the Agreement and authorize its execution based on the positive reception to your presentation at its meeting on March 21, 1995 and other work sessions and communications including the Westbrooke Patio Homes informational meeting, City staff appreciates the incorporation of a number of the changes requested during our conference call on April 10. The three signature pages will be executed and transmitted to Kathleen immediately following Council authorization. We have reviewed the April 26 draft of the Agreement and offer a number of suggestions for minor changes which are listed on the attachment. Three other changes to the Agreement are suggested as welL On Page 3, Section 1. 2 identifies no land area; we assume that the easement applies only to the Landfill area. The City would also like the following sentence added to the second paragraph in I. 2, : "The City may request the Commissioner to release or modify this restriction at any time following issuance of a Notice of Compliance. " . The City would also like Section H.4. dealing with the hauler list to be deleted. Only a limited amount of information about the waste haulers who used the Landfill is available, and, in FDN I9In7 DOHERTY RUMBLE . & BUTLER Mr. Ken Meyer Ms. Kathleen Winters May 4, 1995 Page 2 addition, because of Minn. Stat. ~ 115B.40, subd. 7(b)(2), it would appear that this information would be of very marginal benefit. During the negotiation of the Agreement, it became apparent to City staff that there were a number of items which were important to the City and which it believed should have been included in the Agreement, but which, due to uniformity considerations and other factors, the Agency has been unwilling to incorporate. The City recognizes that since it wants to have the MPCA take over and fully fund the remediation, monitoring and maintenance at the Landfill, it cannot demand the inclusion of any of these provisions in the Agreement at this time. Nevertheless, the City desires to clarify its position on a number of these issues for purposes of future reference and has asked that we provide written descrip-tion of these topics and the City's . understanding of them. The following attempts to summarize these items prior to execution of the Agreement in order to give you opportunity to comment, if desired. 1. Closure and Remediation. The City understands that the 7th Street Landfill, which is the subject of the Agreement, was closed in 1980 pursuant to and in compliance with the MPCA Solid Waste Rules then in effect (SW6). These rules, in part, required the placement, compaction and maintenance of a two foot cover over the waste deposit. Despite subsequent problems, the Landfill was lawfully closed. The closure order executed between the City and the MPCA in 1988 was, though termed a closure order, essentially a Superfund contaminant investigation and remediation agreement. That document addressed and required further investigation of groundwater contamination and landfill gas migration. It was titled a "closure order" because additional closure activities were contemplated in 1988 in anticipation of the more elaborate closure requirements in the new (1988) Solid Waste Facility rules. The attitude of the Agency and landfill remediation consultants has changed dramatically since 1988 so that the idea of additional closure! capping activities at the Landfill IS not currently under consideration. Nevertheless, it is the City's understanding that the work done under the closure order, ~.g., the landfill gas migration investigation, and remediation, including barrier construction, groundwater investigation, and subsequent monitoring activities, were environmental response actions even though they were undertaken incident to a "closure" order. It is the City's understanding that the Agency agrees with this position for the . purpose of determining the eligibility of environmental response cost reimbursement. FON 191727 DOHERTY RUMBLE . & BUTLER il ,,> . Mr. Ken Meyer Ms. Kathleen Winters May 4, 1995 Page 3 2. Notice of Compliance. The City has requested that the Agreement list the specific items which must be completed by the City in order for the Notice of Compliance to be issued by the Commissioner. The Agency has refused to include this specification in the Agreement. The City's understanding is that the following items are those which must be completed before the Agency will issue the Notice of Compliance: . Submission of copies of insurance policies: Section G. 1, . Actions requested to assert and preserve insurance coverage for defense and environmental response actions: Section G.2. . Removal of storage buildings within Landfill Gas Control District: Section H.lb. . Acquisition of title to the ABJ Property and extinguishment of road easement: Section H. lc. . . Conveyance and recording of easement for access for the ABJ property: Section H.lc. . Revision of the City's land use plan provision applicable to the Landfill, if Commissioner's land use plan is received prior to December 31, 1995: Section H.ld. . Assignment of assignable access rights to non-owned property: Section H.le. . Assistance with procurement of access rights to non-owned property needed by the MPCA to carry out Agreement: Section H. 1 f. . Adoption of institutional controls to prevent construction adjacent to southern and northwestern boundary: Section H.lg. . Adoption of official to control to prohibit unauthorized access to the Landfill: Section H.lg. . Expansion of Landfill Gas Control District: Section H.lh. . Execute and record Easement for Access governing Landfill Site: Section H.l. . Provision of information regarding waste haulers: Section H.4. . Execution and filing of restrictive covenant: Section 1.2. . Recording of the Agreement: Section K. It is also understood that the actions listed in Paragraph A, numbers 2, 4, 5 and 6, of Art Dunn's letter to Mr. Steve Mielke of August 30, 1994, relating to qualification of the Landfill under the Landfill Cleanup Program do not have to be completed by the City. . FlJN 1'11"717 3 DOHERTY RUMBLE . & BUTLER '.. .,'r Mr. Ken Meyer Ms. Kathleen Winters May 4, 1995 Page 4 3. Storage Building Demolition. City staff has advised that demolition of the building on the northeast portion of the Landfill may result in the termination of the utility service to this building, based on decision by the utility providers. It is suggested that this situation be assessed by MPCA staff and the remediation contractor. The City has also requested that the cost of demolishing the building be included as a reimbursable environmental response action. It is our understanding that Agency staff does not object to this position. 4. Extensions. You have advised that the Minnesota Attorney General's office has taken the position that a paragraph authorizing time extensions for performing obligations under the Agreement will not be included because extensions can be handled by amendment. The City has expressed concern about its ability to complete the acquisition of the ABJ . Property by December I, 1995 and understands that, if necessary, a time extension via amendment will be handled expeditiously by the Agency. 5. Covenant Not to Sue. You have advised that the Attorney General's Office was hesitant to include a Covenant Not to Sue in the Agreement, arguing that the statutory provision dealing with liability limitation, Minn. Stat. g 115BAO, subd. 7(b), provided as much as was necessary. The City understands that in consideration of its performance of the terms, covenants and provisions contained in the Agreement, the MPCA will not take any other administrative, legal and/or equitable action against the City in relation to the Landfill so long as the City is in compliance with the Agreement. City staff also wishes to repeat its interest in having the easements and !"es!rictions relating to the use of ~he Landfill property be eliminated as soon as it is safely possible to do so, so that the City can reuse the property for recreational activities. There is a limited amount of land available for recreational use in the City, and this land needs to be beneficially reused. Thanks very much for your prompt and cooperative action with regard to the Agreement. Very truly yours, i , I I ': . I .- --......--- _~ I ~ ,_ . ---- :::.\- .', . .._- 4o-..-T ./ '._'" ..-" , Dic~ Nowlin, for \ . DOHERTY, RUMBLE & BUTLER, P,A. FON 191727 4 - - ME\.fORANDUM . VIA F ACSIMD..E - 935-1834 TO: Jim Gessele FROM: Jonathan P _ Scall DATE: May 10, 1995 RE: Summary of Terms of Landfill Qeanup Agreement Between Hopkins and MPCA The following are the key Tenns of the agreement as finally negotiated between Hopkins and the MPCA for the takeover by the MPCA of responsibility for the 7th Street Landfill: . In general, the agreement sets out what the City must perfonn under the Landfill Cleanup Act (LeA) to obtain a -notice of compliance" from the MPCA, which is needed, in turn, for the City to secure reimbursement for various unrcimbursed costs in connection with remedial actions at the landfill. . . The agreement provides that effective at once, the MPCA gets a surface easement over the entire landfill to c:u:ry out remedial actions. including construction of an active extxaction system. The City retains the underlying fee title to the landfill. . By June 1, 1995, the City provides the MPCA copies of all of its insurance polices and insurance-related information. . The City cooperates with the MPCA in all response actions the MPCA "deems necessary!' at the landfill, and the City rakes no action on the W1dfill without MPCA approval. . "By December 1, 1995, the City (at its expense) acquires the ABJ property. . The City removes the storage buildings and other structures within the "landfill gas control district- by July 31, 1995. . The entire property (including property acquired from ABJ) will be subject to a blanket easement in favor of the MPCA for its activities, and a restrictive covenant. . By September 1, 1995, the City shall have in place official controls preventing construction within 80 feet of the south boundary of the landfill from the southeast . comer to 250 feet west of the southeast comer; SO feet of the south boundary from 25 MEMORANDUM Jim Gesse1e . May la, 1995 Page 2 west of the southeast comer to the southwest comer and 120 feet from the nonhwest boundary. The controls remain in place until at least October 31, 2000, but terminate sooner if eight consecutive quarterly gas samples show readings below the LEL. . By September 1, 1995, the City provides the MPCA with lists of haulers and other information regarding the operation of the landfill. The MPCA has. access to landfill operations records, which remain stored at City Hall. . The MPCA releases the City from its financial assurance, so as to enable the City to recover the $152,000 cash escrowed under the Oosure Order. Some or all of this money can be used for acquisition of the AB1 property. . The City agrees to revise its land use plan applicable to the landfill to make it consistent with a land use plan to be developed by the MPCA regarding future uses of the landfill. . . The easement and the restrictive covenants are rdeased when the MPCA detennines that they are no longer needed. skb IPS &3436 .