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HomeMy WebLinkAboutIV. a. Access Agreement – Hudson Manufacturing Cleanup – Dakota CountyACCESS AGREEMENT BETWEEN DAKOTA COUNTY AND THE HASTINGS ECONOMIC DEVELOPMENT AND REDEVELOPMENT AUTHORITY This Agreement is between Dakota County, Minnesota (“County”) and the Hastings Economic Development and Redevelopment Authority (“Owner”) for access by the County, its employees, duly authorized representatives or agents, including employees of Bonestroo (the environmental consulting firm hired by the County) to Owner’s real estate, including buildings situated thereon(“Property”) for the performance of services described below. The Property is located in Hastings, Minnesota, and is identified by the following Property Identification Numbers: 193215006050, 193215005070, 193215005021, 193215006060, 193215006061, 193215006090 and 193215005072(commonly referred to as the Hudson Manufacturing site). 1.ACCESS AND PURPOSES Owner hereby permits the County, its employees, duly authorized representatives, agents and subcontractors to enter upon and have rights of ingress and egress over and accessat reasonable times to the Property for the following purposes: (“Services”) See Exhibit A, attached hereto and incorporated herein by reference. The County will notify the Owner two (2) days in advance of any Services to be performed on the Property. 2.TERM This Agreement shall be in effect from the date of execution by all parties through_____July 31, 2013_____, or for the length of time needed to complete the Services, whichever is longer. After the expiration of such term, if Owner wishes to withdraw permission for continued access, Owner shall notify the County of this fact in writing at least sixty (60) days prior to the effective date. The County shall then perform site restoration activities (e.g., seal monitoring wells) on the Property within a reasonable amount of time. 3.SCOPE OF WORK AND DISCLOSURE OF UNDERGROUND FACILITIES The Services to be performed may include subsurface investigative work. The nature and location of the proposed boreholes and/or monitoring wells are presented in Exhibit B, attached hereto and incorporated by reference herein. The County or Bonestroo will contact public utility locating services and will make a good faith effort to locate underground improvements which could potentially interfere with the proposed work, or be damaged by the proposed work. Since Owner has the most detailed and intimate knowledge of the types and locations of buried improvements, Owner will be called upon to assist Bonestroo to locate buried improvements. Consequently, Owner will be required to review the proposed work to insure that damage is not done to buried structures. By signing this Agreement, Owner represents that it has no notice or knowledge of underground tanks, pipes, utilities, and/or other man-made structures or improvements in the proposed drilling locations, and could not, with reasonable diligence, obtain plans showing such improvements or otherwise determine the location of such improvements. Owner agrees to waive any claims against the County, its employees, duly authorized representatives and agents, including Bonestroo, for damage to underground structures and utilities whichare not marked,which are not otherwise called to the County or Bonestroo's attention, and/or which are not correctly shown on furnished plans. Owner will be consulted and will be allowed to view the drilling/well locations before work commences. HEDRA Meeting Packet - July 14, 2011Page 18 of 99 4.CONSEQUENTIAL DAMAGES No party to this Agreement shall be liable to any other party for any consequential damages incurred due to the fault of the other or their agents. Consequential damages include, but are not limited to, loss of use and loss of profit. 5. DAMAGE TO PROPERTY The County agrees to conduct the Services so as to minimize interference with the Owner’s use of the Property. If any portion of the Property is disturbed as a result of the County’s activities, the County will restore the Propertyto as close to its original condition as is reasonably possible under the circumstances. 6. INDEMNIFICATION The County agrees that it shall be liable for injury to or loss of property or personal injury or death caused by an act or omission of any employee of the County in performance of this Agreement, under circumstances where the County, if a private person, would be liable to the claimant in accordance with Minn. Stat. ch. 466. The County’s liability shall be governed by the provisions of the Municipal Tort Claims Act, Minn. Stat. ch. 466. 7.ASSIGNMENT This Agreement and the rights conferred hereby cannot be assigned or transferred by the County. 8.MODIFICATIONS Any alterations, variations, modifications, or waivers of the provisions of this Agreement shall only be valid when they have been reduced to writing and signed by the County’s authorized representative and the Owner. 9.SEVERABILITY The provisions of this Agreement shall be deemed severable. If any part of this Agreement is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Agreement unless the part or parts that are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Agreement with respect to either party. 10.GOVERNING LAW This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Minnesota, without giving effect to the principles of conflict of laws. All proceedings related to this Agreement shall be venued in Dakota County, Minnesota. 11.ENTIRE AGREEMENT This Agreement is the final expression of the agreement of the parties and the complete and exclusive statement of the terms agreed upon. HEDRA Meeting Packet - July 14, 2011Page 19 of 99 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. COUNTY OF DAKOTA By___________________________________________ Lynn Thompson, Director Physical Development Division APPROVED AS TO FORM:Date of Signature____________________________ ____________________________________ Assistant Dakota County Attorney/Date K-11-179 OWNER (I represent and warrant that I am authorized by law to execute this Agreementand legally bind the Owner.) By___________________________________________ _____________________________ [print name] _____________________________ [print title] Date of Signature____________________________ HEDRA Meeting Packet - July 14, 2011Page 20 of 99 EXHIBIT A POSSIBLE SERVICES Phase I Environmental Site Assessment To provide access to personnel from Dakota County and/or personnel from Bonestroo (the environmental consulting firm hired by the County) to conduct an inspection of the property in accordance with the Phase I environmental site assessment (ESA) inspectioncriteria outlined in American Society for Testing and Materials (ASTM) Standard No. E-1527-05. It is anticipated that the property inspection will require 2 to 3 hours of time to complete. Access is required to both indoor and outdoor areas of the property. Photographs of site features will be taken as part of the inspection and included in the Phase I ESA report. To provide a person meeting the definition of either an owner or operator of the facility, and having knowledge of current and/or past operations at the facility, and to make that person available for an interview to be conducted by County and/or Bonestroo personnel as part of the Phase I ESA. The interview is a required standard component of Phase I ESAs and will include general questions regarding past and/or current operations, with an emphasis of practices related to storage and/or use of hazardous materials and/or petroleum products. To review a draft copy of the Phase I ESA report and to provide comments as appropriate to correct or clarifyany portions of the report. As the Phase I ESA is being paid for using a Federal Grant, copies of the report may be provided to the U.S. EPA and/or the Minnesota Pollution Control Agency (MPCA) as part of required submittals by the County, and become public records. One complete electronic copy on CD of the final report will be provided to you for your use upon completion of the final Phase I ESA Report. The Phase I ESA report will be prepared for use by Dakota County. The Owner may also rely on the report to the extent defined in the Phase I ESA report. Letters of reliance for other parties will not be provided unless specifically agreed to in writing by the County and Bonestroo prior to completion of the Phase I ESA report HEDRA Meeting Packet - July 14, 2011Page 21 of 99 Phase II Environmental Site Assessment and/or Environmental Site Investigations To provide access to personnel from Dakota County and/or personnel from Bonestroo (the environmental consulting firm hired by the County) to conduct environmental assessment sampling activities on the property in accordance with the Phase II environmental site assessment (ESA) criteria outlined in American Society for Testing and Materials (ASTM) Standard No. E-1903-97, and/or environmental site investigation activities needed to furtherdefine the nature and extent of contamination documented during the Phase II ESA or during investigations conducted previously by others at the property. The specific scope of work for the Phase II ESA or environmental site investigation will be detailedin a Site-Specific Sampling and Analysis Plan (SSSAP) to be prepared by Bonestroo, and submitted to and approved by the U.S. EPA to prior to commencement of on-site sampling activities. An electronic copy of the SSSAP will be provided to Owner concurrently with submittal to U.S. EPA, and generally 5 to 10 work days before the scheduled start of on-site sampling activites. It is anticipated that the assessment activities will require 2 to 3 days of time to complete. Access is required to both indoor and outdoor areas of the property. Photographs of site features will be taken as part of the inspection and included in the Phase II ESA report. Possible assessment activities: Soil borings – Soil borings will in most instances be performed using a hydraulicprobe sampling system or a hollow stem auger drill rig, and will be used to collect soil samples from the ground surface to a typical depth of 10 or 20 feet below ground surface. In paved areas, soil borings will typically result in the creation of a 4-inch to 12-inch diameter opening in the concrete or asphalt pavement in order to provide access to the underlying soil. Soil removed from the borings will need to be managed until a determination is made as to whether the soil is contaminated. Borings notcompleted as monitoring wells will be properly abandoned. Monitoring wells - ”Permanent” or “temporary” groundwater monitoring wells consisting of 1- or 2- inch ID, Schedule 40 polyvinyl chloride (PVC) casing and screen may be installed in select soil borings. “Permanent” monitoring wells will be completed with a lockable, flush-mount protective cover, and will be installed where: (a) unstable soil or other geologic conditions preclude installation of temporary wells, (b) wells constructed in accordance with Minnesota Pollution Control Agency standards are needed to confirm whether previously documented contaminants in groundwater exceed regulatory standards, or (c) it is anticipated that multiple rounds of groundwater sampling will be required to achieve assessment or investigation objectives. Temporary wells will be used in situations where the primary purpose at a sampling location is: (a) to confirmthe presence/absence and/or general levels of of contaminants in groundwater, (b) to document the depth to groundwater at locations where groundwater samples will not be collected, or (c) to provide the ability to collect groundwater samples at a later date at locations where only soil samples will be collected and analyzed as part of initial sampling activities.. Upon completion of investigation activities the monitoring wells will be properly abandoned. Groundwater sampling - Groundwater samples will be obtained from the from the permanent or temporary groundwater monitoring wells. Groundwaterremoved from the wells will need to be managed until a determination is made as to whether the groundwater is contaminated. Soil vapor sampling - Soil vapor monitoring may be performed at locations based on the results of the soil and groundwater samples. Permanent or temporary vapor probes may be installed to a typical depth of 10 or 20 feet below ground surface. Test Pits – Test pits may be excavated using a backhoe at locations where: (a) buried objects of potential environmental significance such as underground storage tanks are known or suspected to be present, or (b) historic fill materials are known or suspected to be present which can be HEDRA Meeting Packet - July 14, 2011Page 22 of 99 more effectively evaluated through observation of a broader exposure of material than is possible through sampling conducted via soil borings. Test pits will be conducted only in unpaved areas unless specifically proposed in other locations inthe SSSAP and specifically permitted by the Owner. In general, test pits will be 2 to 4-feet in width, 10 to 15-feet in length, and 4 to 12-feet deep. Materials excavated from the test pits will be returned to the test pit on the date of excavation. The surface will not be restored beyond returning the excavated materials to the test pit, roughly smoothing the surface with the backhoe, and compacting the materials by driving over the returned soil with the tires of the backhoe. Due to expansion of soilthat occurs upon excavation, mounding of the ground surface may be present following restoration. Investigative wastes (i.e., soil and water) will be properly stored on the Property at a location to be identified by the Owner until such time as laboratory and other analyses are completed by which to determine disposal requirements, if any. The Owner is responsible for storage, management, and the proper disposal of that waste (if necessary).Funding maybe available from the grant to pay for the proper disposal. One complete electronic copy on CD of the final report will be provided to you for your use upon completion of the final Phase II ESA Report. As the Phase II ESA is being paid for using a Federal Grant, copies of the report may be provided to the U.S. EPA and/or the Minnesota Pollution Control Agency (MPCA) as part of required submittals by the County, and become public records. The Owner should review the results contained in the final report and evaluate their reporting obligations to the U.S. EPAand/orMPCA resulting from the potential documentation of the presence of contaminants in soil, groundwater, soil vapor, or building materials at concentrations that exceed regulatory thresholds or standards. HEDRA Meeting Packet - July 14, 2011Page 23 of 99 Asbestos and Building MaterialsInspection The asbestos inspection will be completed by a Minnesota licensed asbestos inspector. The inspection will identify homogenous sampling areas of suspected asbestos containing materials (ACMs) in the structure. Collect and submit samples for analysis using polarized light microscopy by a NVLAP-certified lab. The asbestos inspection standard is a destructive inspection technique to determine the presence of suspected ACMs hidden within wall chases and under flooring. The samples obtained are small in size, but do require holes to be put into walls and ceilings. Repairs will not be made unless agreed to prior to the inspection. The building materials inspection will be performed for those building materials listed in MN Rule 7035.0805. One complete electronic copy on CD of the final report will be provided to you for your use upon completion of the inspection. Although efforts will be made to identify ACM, due to the nature of buildings, restricted access, etc. it is not always possible to fully identify or access all hazardous building materials in advance of demolition; therefore, the owner should secure the services of a qualified asbestos inspector to be on-site if the structure(s) are to be demolished or renovated. HEDRA Meeting Packet - July 14, 2011Page 24 of 99