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ACCESS AND INDEMNIFICATION AGREEMENT
This Access Agreement is made and entered into this 31 day of August 2005 by and
between Mady - Foss Partnership ("Grantor") and the City of Columbia Heights,
Minnesota ("City").
BACKGROUND AND PURPOSE
The Grantor owns property at 3919 Central Avenue Northeast in Columbia Heights,
Minnesota ("Property"). The Property is currently occupied by commercial retail. The
Property is located adjacent to 3939 Central Avenue Northeast, Columbia Heights,
Minnesota (the "Site").
As part of the redevelopment process, the City is initiating additional investigation to
define the vertical and horizontal extent of an unpermitted dump and associated soil or
ground water, which have been identified at the Site. Based on field observations, it
appears as though the waste extends off the Site and onto the Property. The Site has
been enrolled in the Minnesota Voluntary Investigation and Cleanup ("VIC") Program
and the Petroleum Brownfields Program (PBP). administered by the Minnesota Pollution
Control Agency ("MPCA").
Access will be required to obtain additional information regarding dump, as well as
contaminated soil and/or ground water that appears to extend off the Site. At a
minimum, this will entail advancing soil borings, installing monitoring wells and
collecting ground water samples as part of a long-term monitoring program. Depending
on the results of the investigation, access may be required to conduct remediation for
the Property. All disturbed areas will be restored to their original condition.
Various tasks associated with this work are expected to take place from September of
2005 to September 2006. Long-term monitoring may consist of collecting ground water
samples several times a year. The duration of long-term monitoring will be based on the
results of the investigation and the effectiveness of remediation.
GRANT OF ACCESS AND INDEMNIFICATION
1. Grantor hereby grants to the City, their employees, agents, consultants and
contractors ("Grantees") the right to enter upon the Property for the purposes of
conducting investigation. In general, investigative activities will be conducted as
described by the MPCA.
2. The City shall defend, indemnify, and hold harmless Grantor and its agents from
all claims, losses, damages, costs, judgments or expenses, including reasonable
attorney fees, arising directly from the performance or failure to perform activities
contemplated by this Agreement.
GENERAL PROVISIONS
3. The City will attempt to notify the Grantor in advance of scheduled investigative
activities so as to not unreasonably disturb Grantor's use of the Property.
4. The Grantees shall not enter buildings of Grantor without notification and
permission.
5. The City will pay any and all fees which may be required in connection with the
installation, maintenance, or removal of monitoring wells and/oror any other
monitoring equipment. The City will be responsible for permanently sealing the
well(s), in accordance with Minnesota Department of Health ("MDH") Regulations
once the well(s) is/are no longer required.
6. If necessary, monitoring wells installed on the Property wiU be constructed at
grade to minimize interference with Grantor's use of the Property.
7. This Agreement and all amendments hereto shall be construed as covenants
running with the land. This Agreement may be terminated for cause by either
party upon written notice to the -other, provided the terminating party has first
expressed its grievance(s) in writing to the non-terminating party and allowed a
reasonable amount of time for remedy.
8. The Parties agree to cooperate with one another and their representatives to
effectuate the purposes of this Agreement. This Agreement is for the exclusive
benefit of the Parties, their successors in interest or assigns and shall not be
deemed to give or imply legal or equitable right, interest, remedy or claim to any
other entity or to any other persons except for the Grant of Access as described
in Paragraph 1 of this Agreement. Any modifications or amendments hereof
shall be by a written document signed by both Parties hereto.
9. This Agreement shall be governed and interpreted in accordance with the laws of .
the State of Minnesota.
IN WITNESS WHEREOF, this Agreement has been execu d the day and year first
above written.
By:
By ~
Gary Pete son, Mayor