CR 92-48 Amended Remediation And Monitoring Agreement
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February 19, 1992
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council Report 92-48
AMENDED AND RESTATED
REMEDIATION AND MONITORING AGREEMENT
WESTBROOKE PATIO HOMES ASSOCIATION
Proposed Aetion.
staff recommends ,adoption of the following motion: Move to
a~prove the Amended and Restated Remediation and Monitoring
Agreement with the Westbrooke Patio Homes Association and
authorize the Mavor and city Manaqer to sign the aqreement.
This action allows the City to enter upon common Westbrooke
property for the installation, monitoring, and maintenance of
certain groundwater wells as required by the MPCA.
Overview.
The 1988 Closure Order has required the city to study the Seventh
street Landfill's impact on the environment due to groundwater
contamination and methane migration. The latter issue has been
addressed in part with the construction of a methane barrier on
the east and south sides of the landfill.
The city is now under regulatory direction to address groundwater
contamination. Several new monitoring wells need to be
installed. A component of such an installation project is
obtaining approval from the Westbrooke Patio Homes Association to
enter upon their property to conduct well installation and
moni tor ing programs as proposed. Technically, the City cannot
proceed with its groundwater monitoring program without an
agreement in hand.
Primary
o
o
o
Issues to Consider.
What are the terms of the agreement?
Are there any costs associated with the agreement?
What are the options if the city and association do not
reach agreement?
Staff recommendation?
o
Supporting Doeuments.
o Amended and Restated Remediation and Monitoring
Agreement.
fr~~
James Gessele
Engineering Superintendent
CR92-48
page 2
Analysis.
o What are the terms of the agreement?
In general the newly drafted agreement eliminates most of
the obsolete references to the methane remediation project
and substitutes instead language suited to the groundwater
monitoring program. Westbrooke will grant to Hopkins a
temporary irrevocable license covering additional portions
of Westbrooke property to those outlined in the former.
agreement for the purpose of carrying out post-closure
requirements at the landfill. In addition to Block 2 and
Outlot A, the new agreement also includes Block 1.
The license includes the right to install,
replace and monitor groundwater wells,
piezometers until such time they are no
satisfy requirements of the Closure Order.
is difficult to speculate as to the number
maintain, repair,
gas probes and
longer needed to
At this time it
of years.
The Westbrooke Association will have the right to monitor
implementation of all post-closure requirements, including
investigations and remedial actions, as they pertain to the
Westbrooke property. The Association will have access to
all data and documents either submitted or received by the
city and will have the right to split samples taken by
Hopkins.
In terms of.indemnification the City agrees to hold harmless
Westbrooke or any Westbrooke member from any claims or
losses caused by reason of or arising out of the existence
of contamination in the soil or groundwater. Indemnity
shall be limited to effective insurance coverage available
to Hopkins. Hopkins further shall hold harmless Westbrooke
from liability in conjunction with orders, requirements, or
directives of the MPCA.
o Are there any costs assoeiated with this agreement?
Council should note there are no provisions for relocation
benefits in this license agreement.
o What are the options if the city and Association do not
reach an agreement?
I f the two parties cannot reach an agreement then most
assuredly the MPCA will step forth to take action. The
agency is judicially empowered to force an unwilling party
into compliance.
CR92-48
page 3
o Staff recommendation?
staff feels the city and Westbrooke residents would be best
served by agreeing to terms in the license and proceeding
with groundwater monitoring as soon as possible. staff
recommends approval of the amended and restated remediation
and monitoring agreement as attached to this report. staff
should point out that the final draft may have minor changes
that will not alter the intent of the provisions.
AMENDED ANJ) RJl:S'1'ATED REMEDIATION ANf) MONITORING AGRBdENT
THIS AMEND:EO AND RES'rATED REMEDIATION ANO MONITORING
AGREEMENT, mad.e and entered into as of this . day of
, 1992, by and between WESTBROOKE PATIO HOMES
AssociATION, INC., a Minnesota nonprofit corporation, with
mailing address eto United Homes CQrporation, P.O. 41156, .
Plymouth, Minnesota 55411-1156 ("Westbrooke") I and THE CITY' OF
HOPKINS, a municipal corporation and political subdivision of the
state of Minnesota, with offices at 1010 South First street,
Hopkins, Minnesota 55343 (ItHopkins"),
WITNESSETH;
REClil'ALS:
A. Westbrooke is the fee owner of certain real property
legally described on Exhibit A attached hereto and made a part
hereof (the "Westbrooke Property").
B. Hopkins is the fee owner of certain real property
located adjacent to the Westbrooke Property previously used as a
landfill ('the "Landfill") and legally described on Exhibit B
attached hereto (the '''Landfill Property").
C. In June of 1988, Hopkins and the Minnesota Pollution
Control Agency (nMPCA") entered into a Closure Order by Consent
("Closure Order") covering the closing- of the Landfill and
certain actions required by Hopkins in relation thereto. The
terms of the Closur~ Order are incorporated herein.
D. Subsequent to the closure Order, volatile orqanio
oompounds and other pollutants (the "Contamination") have
continued to migrate toward and into the Westbrooke Property from
the Landfill Property.
E. On March , 1991/ Westbrooke and Hopkins entered
into a "Remediation and Monitoring Agreement" pursuant to which,
among other things, the parties set forth their understanding
with respect to the performance of a methane gas remediation
project ("Methane Project"), as well as the long-term monitoring-
and other actions required by the MPCA to be taken with respect
to the Contamination.
F. Hopkins has now oompleted the construction associated
with the Methane project, and the parties desire, by this
Agreement, to the Remediation and Monitoring Agreement so as to
eliminate now-oP$ol$te references to the Methane project and to
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provide for access to the Westbrooke Property by Hopkins, or ~ts
agents, employees, sufficient to enable Hopkins to carry out 1ts
responsibilities under (i) the Closure Order; (ii) a "Gas
Control/Recovery Remedial MeasureS Plan and Alternatives Report"
prepared by Braun Intertec dated July 31, 1991; (1ii) a Phase II
Geotechnical ~nvesti9ation/Environmental Monitoring system 'Work
Plan" dated o.etober 24, 1991; and (iv) further dire.ctives of the
MPCA relative to the Landfill or the Landfill Property (all of
the foregoing are collectively referred to hereafter as the
"Post-closure Requirements").
NOW THEREFORE, in consideration of the foregoing premises
and other good and valuable consideration, the reoeipt and
sufficiency of which are hereby acknowledged, Westbrooke and
Hopkins agree as follo~s:
1. Amendment and Restatement of Remediation, and Monitoring
Agreement. The parties agree that the Remediation and Monitoring
Agreement shall be, and hereby is, amended and restated by the
within Agreement.
:2 . Termination of License to perfornt"Mathane~roiect. The.
temporary irrevocable license attached to the original
Remediation and Monitoring Agreement as Exhibit e~ for the
purpose of permitting Hopkins to perform the Methane Project (the
"Prior Licensen)I is hereby terll'linated and the temporary license
referred to in paraqraph 3, below, substituted in lieu thereof.
The parties aqree to execute and deliver any further instruments
and documents necessary for the release and discharge of the
Prior License of record.
3. License to carry out Post-Closure_Requirem~nt~.
Westbrooke hereby grants to Hopkins a temporary irrevocable
license covering the portion Of the Westbrooke Property legally
described'in "EXhibit e" hereto (t.he "License Property") for the
purpose of carrying out the Post Closure Requirements. This
license shall include, without limitation, the right to install,
maintain, repair, replace and draw samples from ground water
monitoring wells in the positions designated approximatelY on
Exhibit D attached hereto and made a ,part hereof; the riqht to
install, maintain, repair, replace and use piezometers on the
Westbrooke Property; and (iii) the ri9ht to install, maintain,
repair and replace gas monitoring probes on the Westbrooke
Property.
4. Removal of Equipment; Termination of Lipens~. Hopkins
shall, at HOpkins sole expense, upon written notice from
Westbrookel and upon approval from appropriate sta~e and F~deral
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agencies, close, reIl\ove or relocate any..monitorin9 or remedial
equipment (inclUding, but not limited to, monitoring wells and
other remedial items) installed by Hopkins or its agents or
oontractors on the Westbrooke Property, in acoordance with all
federal or state laws, regulations and orders, if (a) the
location of such monitoring or remedial equipment interferes with
the ordinary use of the Westbrooke Property and residents
thereOf; or (b) such monitoring or remedial equipment is no
longer needed to implement the Post Closure Requirements. Upon
such notioe, the License. Property (or the portion thereof which
is no lonqer neoessary to implementation of the Post-Closure
Requirements) shall be restored as nearly as possible to its
condition prior to ~he installation of the equipment removed
therefrom. Such closure, relocation or removal shall take place
as soon as reasonably practical and, in no event, later than 120
days after Hopkins receipt of written notice from Westbrooke or
sixty (60) days after approval by the appropriate federal or
state agency, which ever oomes later. Upon suCh'olosure(
relocation or removal, said lioense shall terminate and Hopkins
shall aeknowledge the termination of said license in writing. If
a portion of the License Property is no longer needed for the
purposes herein described, then said license shall terminate with
respeot to such portion and Hopkins shall acknowledge the
termination of said license in ~iting.
5. No Interest in Real Estate. The parties agree that
Hopkins has, by this Agreement, acquired no intarest or estate in
any portion of the Westbrooke Property, and that the rights of
Hopkins with respect thereto shall be those of a licensee only.
6. ~.westbrooke shall have the right to monitor
the implementation of the Post-Closure Requirements, and all
investigations or remedial actions required by any federal or
state governmental authority with respect to the Contamination.
Westbrooke's right to monitor all investigative, monitoring and
remedial actions shall include, but not be limited, to the
following: .
(a) The right to review and analy~e;
1. All data collected hy Hopkins, its agents and
contractors with respect to the contamination on
the Westbrooke Property or the Landfill Property;
2. Any documents submitted by or on behalf of Hopkins
to any federal or state governmental authority
whioh sets forth, summarizes or analyzes such
data;
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3. Any .documents submitted by or on behalf of ~opkins
to any federal or state governmental authorlty
which relate to the implementation, status or
effectiveness of the Post-Closure Requirements or
any other investigation, monitorinq or remedial
action that maybe required by any federal or state
governmental authority with respect to the
Contamination; and
4. Any documents received by or on behalf of Hopkins
from any federal or state governmental authority
with respeot to the Contamination.
Hopkins shall keep and preserve complete and acourate
reoords of all such data and complete and accurate
documents for a period of 36 months after expiration of
the last governmentally-required action, whether
investigatory, remedial, monitoring or otherwise,
related to the Contamination. Westbrooke shall have
the right to examine and photocopy such records and
doouments during ordinary busine$s hours upon three (3)
days written notiee to Hopkins, and Hopkins shall make
the same, or photooopies thereof, available for
examination at Hopkins' city office or such other
places the parties shall mutually agree.
(b) The riqht to split samples taken by Hopxins, its agents
and contractors, from the monitoring or extraction
equipment located on the Westbrooke Property.
Westbrooke, or its engineers, shall qive Hopkins
reasonable notioe that it requiras such split sa~ples.
Hopkins shall have the similar right to review and
analysis the results of any monitoring, samplinq or
other testing on the Westbrooke property undertaken })y
Westbrooke, including receipt of split samples and
copies of testing or engineering reports or reports of
consultants with respeot thereto. .
7. comp~iance by Ho~kins wJLth Post-clo~u~e.Requirements.
Hopkins covenants and agrees that it will fully comply with all
Post-Closure Requirementsl as these pertain to the Westbrooke
Property.
8. Indemnification. Hopkins agrees as follows:
(a) Hopkins shall indemnify and hold harmless Westbrooke
and any Westbrooks member from and against any claims
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that it or.they may have, or '\ithich lUay be. brought by
third parties against them, inC?ludinq, without .
limitation, claiDs in tort, nu~sancer trespass, str~ct
liability, or for personal injury, property da~age or
any other claims or cause of aotion, and including
losses caused by reason of or arising out of the
existence in the soil or ground water on or under the
Westbrooks property of the contamination. provi~ed
that Hopkins' indemnity under this paragraph shall be
limited to effective insurance coverage available to
Hopkins with respect to such claim or claims.
Hopkins further agrees that it shall defand, indemnify
and hold harmless Westbrooke and any member thereof
from and against any liability or expense in
conjunction with any order, requirement, or directive
of the MPCA or other governmental authority having
jurisdiction ('tGovernmental Directive"), proyided that.
Westbrooke or the affected member shall have first
given written notice to Hopkins requesting defense and
indemnity under this paragraph and further Drovide~, .
that if Hopkins proves that the environmental
contamination which is the subject of the Governmental
Directive is not caused by or miqrating from the
Landfill, then Hopkins' indemnification under this
subparagraph shall cease.
8. No Waiver. Nothing in this Agreement shall constitute
a waiver of any right by westbrooke, Westbrooke's members or any
resident of the Westbrooke Property to recover from Hopkins or
any other person or entity any contribution, indemnity or other
damages or costs incurred in relation to the contamination.
Nothing in this Agreement shall be construed to waive, limit or
compromi$e the abili~y or discretion of Hopkins to pursue any
action or proceeding a9ainst any responsible party other than
Westbrooke or its members, or to contest or compromise,
administratively or judicially, any order, action or requirement
of the MPCA or any governmental agency with respect to the
Landfill, Landfill Property or the Westbrooke property. No
undertaking of Hopkins in this Agreement, other than as expressly
provided in paragraph 8, above, shall be deemed to constitute an
indemnity by Hopkins for any claims by private persons,
inoluding, without limitation, claims in tort, nuisance,
trespass, strict liability or for personal injury, property
damaqe, or any other olaims or causes of action, whether now
existing or hereafter arising. Nothing in this Agreement shall
oonstitute for any purposes an admission of legal liability by
Hopkins with respect to any matter in this Agreement, constitute
(b)
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a waiver or compromise of any legal liability of any party to
Hopkins; or; other than as expressly provided in paragraph 8,
above, oonstitute on the part of-Hopkins a waiver or limitation
of any right or defense of Hopkins under any rule of law or
statute, including Minn. Stat. Ch. 466, or Minn. stat. Ch. 11SB.
9. Merqer. The provisions of this Agreement shall govern
over any oontrary term, eondition or provision contained in any
prior agreement between the parties.
10. e.inding Ac;reement;,Jnforcement. This Agreement shall
be binding upon and inure to the benefit of the parties hereto
and their suocessorS and assigns, includin91 without limitation,
any purchaser of the Westbrooke Property or the Landfill
Property. This Agreement shall be enforceable at law or in
equity by any member or resident of Westbrooke, l;!rovide.d that any
enforcement by a member shall be as,a derivative olaim in the
name of and on behalf of Westbrooke. The foregoing
notwithstanding, no assignment by Hopkins of all or any part of
its duties and obligations hereunder shall release Hopkins from
the performance of such duties and obligations unless Westbrooke
expressly releases Hopkins, in writing, from the performance of
such d~ties and Obligations.
11. Notices. All notices or other oommunications hereunder
shall be in writing and shall be hand-delivered or sent by
registered or certified first class mail:
(a) If to Hopkins: at its address set out in ~~e preamble
to this Agreement, to the attention of the City
Manager, with a copy to:
Doherty, Rumble and Butler
2800 Minnesota World Trade Center
30 East Seventh street
St. Paul, Minnesota 55101
Attn: Jonatban P. scoll, Esq.
(b) If to Westbrooke: at its address set out in the
preamble to this Agreement, to the attention of the
President, with a copy to:
George Nelson, Esq.
Nelson Law Office, P.A.
32 South Tenth Street
suite 112
Hopkins, Minnesota 55343
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unless a change of address is qiven pursuant to the provisions of
this paragraph. The day notice is given by mail shall be deemed
to be the day followinq the day of mailinq.
12. Severability and surviv~l. The unenforceability or
invalidity of any provision or provisions of this. Agreement as to
any persons or oircumstances shall not render that provision or
those provisions unenforoea~le or invalid as to any other person
or ciroumstanoes, and all other provisions hereof, in all
respects, shall remain valid and enforoeable. .
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed as of the date first written above.
WESTBROOKE PATIO HOMES
ASSOCIATION; INC.
By
Its President
THE CITY OF HOPKINS
By
It.s
By
Its
STATE OF MINNESO'rA
COUNTY OF
)
) ss.
)
The foregoinq instrument was acknowledged before me
this ___ day of , 1991, by
the President of Westbrooke patio Homes Association, Inc., a
corporation, on behalf of the corporation.
,
Notary PUblic
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COUNTY OF
)
) SS~
,- )
STATE OF MINNESOTA
The foregoin9 instrument was acknowledged before me
this day of , 1991, by
the Mayor of the City of Hopkins and by I. ,
the city Clerk of the city of Hopkins, a Minnesota Munioipal
corporation, on behalf of said city.
Notary Public
THIS INSTRUMENT WAS ORAF'r'ED BY:
Jonathan P. scoll
Doherty, Rumble & Butler, P.A.
2800 Minnesota World Trade Center
30 East 7th street
St. Paul~ MN 5510~-4999
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