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CR 10-131 Approve 2nd Amendment to Cooperative Agreement w/ 9 Mile Creek Watershed District Project 2006-05City of Hopkins December 7, 2010 Council Report 2010-131 APPROVE SECOND AMENDMENT TO COOPERATIVE AGREEMENT WITH 9 MILE CREEK WATERSHED DISTRICT CITY PROJECT NO. 2006-05 Proposed Action Staff recommends the following motion: "Move that Council adopt Resolution 2010-079, Resolution Approving Amendment to Cooperative Agreement with 9 Mile Creek Watershed District." Overview At the May 2, 2006, meeting, the Hopkins City Council petitioned the 9 Mile Creek Watershed District to improve 9 Mile Creek with a bank stabilization project. Since that time, contamination has been found in the creek. This amendment formalizes the financial responsibilities for the study and remediation work in the petitioned project. The City's contribution capped at $25,000 out of what will minimally be $200,000 of work. The remaining portion of the work will be funded through Hennepin County and State of Minnesota Grants and • by the Watershed District. To date, $60,000 in grants have been secured. • Supportiniz Information ■ Second Amendment to Cooperative Agreement ■ Resolution 2010-034 ohn R. Bradford, P.E. City Engineer Financial Impact: $25,000 Budgeted: Y/N Yes Source: PIR Related Documents (CIP, ERP, etc.): CII' Notes: SECOND AMENDMENT TO THE COOPERATIVE AGREEMENT Between the Nine Mile Creek Watershed District and the City of Hopkins Nine Mile Creek Bank Stabilization and Habitat Enhancement Project, Hopkins This Second Amendment to the Cooperative Agreement (Second Amendment) is made by and between the Nine Mile Creek Watershed District (NMCWD), a'watershed district created pursuant to Minnesota Statutes Chapter 103D, and the City of Hopkins (Hopkins), a home rule charter city under Art. XII, sec. 4, of the Minnesota Constitution (together, the Parties). WHEREAS the Parties entered the Cooperative Agreement on March' •21, 2007, to provide for the joint conduct of the Nine Mile 'Gfeek Bank Stabilization and Habitat Enhancement Project (the Project); WHEREAS the Parties jointly conducted due diligence for the Project that included a phase I environmental site assessment and limited additional, phase II sampling and analysis, which determined that there are recognized environmental conditions in the Project area; Is WHEREAS the Parties agree that the recognized environmental conditions require appropriate management and, as necessary, further investigation and professional and technical analysis; WHEREAS the Parties, wishing to secure technical review and liability assurance from the State of Minnesota, agree that the Project should be enrolled in the Minnesota Pollution Control Agency's Voluntary Investigation and Cleanup Program and/or the Petroleum Brownfields Program (together, VIC), as determined necessary by sampling and analysis completed for the Project and further sampling and analysis as may be necessary; WHEREAS the Parties, hoping to secure third -party funding for the environmental assessment and development and execution of a VIC-approved response action plan and construction contingency plan (RAP) for the Project, applied to and have received funding for the Project from the Hennepin County Environmental Response Fund; and WHEREAS, notwithstanding that NMCWD does not own property within the Project area and is not responsible for contamination within the Project area, the NMCWD has an interest in the stabilization, restoration and enhancement of the banks of Nine Mile Creek in Hopkins, and the Parties wish NMCWD to direct, in partnership with Hopkins, the conduct of environmental assessment and development and execution of a RAP for the Project, in accordance with the terms of the Cooperative Agreement as modified by this Second Amendment. SECOND AMENDMENT- December 1, 2010 Nine Mile Creek Watershed District -Hopkins Bank Stabilization and Habitat Enhancement Project Cooperative Agreement • IT IS AGREED by and between the Parties that they enter this Second Amendment to the Cooperative Agreement fully executed by the Parties as of March 21, 2007, and as first amended by the Parties as of July 6, 2010 (First Amendment). The terms of the Cooperative Agreement, as amended by the First Amendment, remain unchanged except as specifically provided herein. The following are added to section 3.1 of the Agreement: 3.1.8 NMCWD will cooperate with Hopkins in all communications and outreach to property owners affected by the Project and to property owners from whom additional easements may be required to facilitate environmental assessment and execution of a RAP for the Project. 3.1.9 NMCWD will serve as a co -applicant and will participate in efforts required to secure technical assistance and/or a letter or letters of liability assurance from VIC for Hopkins and NMCWD for the Project. The NMCWD and Hopkins will jointly determine the level of liability assurance from VIC necessary for the Project. NMCWD further agrees to provide all reasonable assistance, including but not limited to providing information on Project site environmental conditions produced pursuant to the terms of this • Agreement, to any landowner whose interests are implicated by the Project, subject to the Data Practices Act and other applicable law. 3.1.10 Upon approval of Hopkins, NMCWD will contract with an environmental consultant to perform additional phase II environmental site assessment work for the Project area as may be necessary in response to guidance from and discussions with VIC. NMCWD will contract with an environmental consultant to design a RAP to be submitted to VIC and to revise the RAP if necessary to respond to guidance from and discussions with VIC. 3.1.11 Upon approval of the RAP for the Project by VIC, acquisition by Hopkins of easements satisfactory to NMCWD, and approval of the NMCWD Board of Managers and Hopkins, NMCWD will contract for the execution of the RAP in accordance with Minnesota procurement law. 3.1.12 NMCWD may contract for the environmental investigation and execution of the RAP in stages to facilitate timely and efficient conduct of the Project. 3.1.13 NMCWD will timely provide to Hopkins all information necessary for the administration of grant funding received for Project. SECOND AMENDMENT- December 1, 2010 • Nine Mile Creek Watershed District -Hopkins Bank Stabilization and Habitat Enhancement Project Cooperative Agreement • The following are added to section 3.2 of the Agreement: 3.2.9 Hopkins will communicate with and conduct outreach to property owners affected by the Project and will acquire additional easements as required by the NMCWD to facilitate conduct of environmental assessment and execution of a RAP for the Project. 3.2.10 Hopkins will cooperate and consult with NMCWD on the conduct of the environmental assessment and the development and implementation of a RAP. Hopkins' approvals, as provided in section 3 of the Agreement, as amended, will not be unreasonably withheld. 3.2.11 Hopkins will be responsible for administration of grant funding received for the Project, including required reporting. 3.2.12 Hopkins will enroll the Project in VIC and will participate in efforts required to secure technical review and/or a letter or letters of liability assurance from VIC for Hopkins and NMCWD for the Project. Hopkins and the NMCWD will jointly determine the level of liability assurance from VIC necessary for the Project. Hopkins further agrees to provide all reasonable assistance, including but; not limited to providing information on Project site environmental conditions produced pursuant to the terms of this Agreement, to any landowner whose interests are implicated by the Project, subject to the Data Practices • Act or other applicable law. Paragraphs 4.4 and 4.4.1 of the Agreement are renumbered 4.5 and 4.5.1 and the following are added as new section 4.4 of the Agreement: 4.4 Costs of Environmental Assessment, Development and Execution of RAP, VIC Program Participation 4.4.1 Each party will pay its internal costs of its participation in the development and execution of the environmental assessment and the development and implementation of the RAP. 4.4.2 NMCWD will be responsible for the contracted costs of the development and execution of the environmental assessment, the development and implementation of the RAP, and the costs of participation in the VIC program, except that Hopkins will contribute up to $25,000 to costs for Hopkins participation in the VIC program, execution of environmental assessment, and implementation of the RAP. Grant funding received by either or both of the parties for the Project will reimburse NMCWD for the contracted costs of the environmental assessment work, the development and execution of the RAP and the costs of participation in the VIC program. SECOND AMENDMENT- December 1, 2010 • Nine Mile Creek Watershed District -Hopkins Bank Stabilization and Habitat Enhancement Project Cooperative Agreement .7 The following is added as section 7 of the Agreement and remaining sections and paragraphs of the Agreement are renumbered accordingly. 7. Environmental Contamination Indemnification NMCWD enters this Agreement solely for the purposes of ensuring that the Project is completed as intended by the Parties. NMCWD does not now and has never had an ownership interest in any property that is the site of the Project, and does not now and has not ever exercised control over the use, operation or, management of the Project property as may render NMCWD a potentially responsibleparty for contamination under state and/or federal law. Hopkins will hold harmless, defend and indemnify NMCWD for any claim, damages, liabilities, costs, losses or expenses relating to a claim or action against NMCWD by Hopkins or any third party, including any govermnental body, emanating from actual or alleged environmental conditions at, on or near the Project property or arising out of or resulting from the Project. Hopkins' obligations under this paragraph shall survive the termination of the Agreement. IN WITNESS WHEREOF, the Parties have executed this Second Amendment. NINE MILE CREEK WATERSHED DISTRICT 40 =y a political subdivision of the State of Minness xota ° .,34 111 1 LUAnn Tolliver, President APPROVED AS TO FORM Dated: AND EXECUTION By District Counsel SECOND AMENDMENT- December 1, 2010 4 • Nine Mile Creek Watershed District -Hopkins Bank Stabilization and Habitat Enhancement Project Cooperative Agreement 0 0 Dated: a SECOND AMENDMENT- December 1, 2010 • Nine Mile Creek Watershed District -Hopkins Bank Stabilization and Habitat Enhancement Project Cooperative Agreement CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2010-079 RESOLUTION AMENDING COOPERATIVE AGREEMENT WITH NINE MILE CREEK WATERSHED DISTRICT WHEREAS, the City of Hopkins petitioned the Nine Mile Watershed District to complete a restoration project along Nine Mile Creek from Excelsior Boulevard to the southern corporate limits, and WHEREAS, the City and the District agree that mitigating found contamination in 9 Mile Creek is in the public interest, and WHEREAS, the amendment delineates the rights and responsibilities of the City and the District, NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Hopkins, Minnesota: 1. The City adopts the Second Amendment to the Cooperative Agreement with the Nine Mile Creek Watershed District. 2. The Mayor and City Manager are hereby authorized and instructed to execute the amendment. Adopted by the City Council of the City of Hopkins this 7 1 day of December, 2010. By ATTEST: Terry Obermaier, City Clerk Eugene J. Maxwell, Mayor