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Home My WebLink About#10 - MOU with Valley Branch Watershed STAFF REPORT DATE: July 20, 2021 CONSENT AGENDA ITEM: Approve Memorandum of Understanding (MOU) with Valley Branch Watershed District for the Installation and Maintenance of Groundwater Monitoring Wells on City owned Property and Right-of-Way SUBMITTED BY: Jack Griffin, City Engineer REVIEWED BY: Kristina Handt, City Administrator Sarah Sonsalla, City Attorney Marty Powers, Public Works Director Chad Isakson, Assistance City Engineer ISSUE BEFORE COUNCIL: Should the City Council approve the Memorandum of Understanding (MOU) with Valley Branch Watershed District (VBWD) for the Installation and Maintenance of Groundwater Monitoring Wells (Wells) on City owned Property and Right-of-Way? BACKGROUND: The Valley Branch Watershed District (VBWD) is pursuing a flood mitigation comprehensive planning study for several landlocked basins that have been experiencing extreme high water conditions the past few years. The VBWD will be completing this study in partnership with the United States Army Corps of Engineers (USACE). In association with this Study, the VBWD has approached the City to install groundwater monitoring wells on property owned by the City of Lake Elmo or within Lake Elmo right-of-way. The approximate locations of the Wells are shown as Figures 2, 3, 5, 6, 7, and 8, as attached to the MOU. Groundwater monitoring wells are needed for the collection of water quality and lake level monitoring data around the study basins to inform and help calibrate the proposed groundwater models that will be developed and used in the planning study. A big part of the study requires a better understanding of the groundwater-surface water interactions near the basins. PROPOSAL DETAILS/ANALYSIS: The VBWD has prepared the attached Memorandum of Understanding (MOU) to establish the requirements, procedures, terms and conditions for locating, installing, accessing, monitoring, maintaining and removing the Wells upon completion of the study. It is the watershed District’s intention to install the Wells as early as the first week in August and that the Wells will likely be abandoned by the end of this year, but no later than December 31, 2022. As the public right-of-way manager, City staff, including the City Attorney, has reviewed the terms of the MOU to ensure that the wells will not adversely obstruct or interfere with the use of the public right-of-way, or other right-of-way users and that the City maintains its rights to continue to manage the public right-of-way for the benefit of all users. FISCAL IMPACT: No fiscal impact to the City. RECOMMENDATION: Staff is recommending that the City Council approve, as part of the consent agenda, the Memorandum of Understanding (MOU) with Valley Branch Watershed District (VBWD) for the Installation and Maintenance of Groundwater Monitoring Wells on City owned Property and Right-of-Way. If removed from the consent agenda, the recommended motion for the action is as follows: “Move to approve the Memorandum of Understanding (MOU) with Valley Branch Watershed District (VBWD) for the Installation and Maintenance of Groundwater Monitoring Wells on City owned Property and Right-of-Way.” ATTACHMENTS: 1. Memorandum of Understanding (MOU) with Valley Branch Watershed District (VBWD) for the Installation and Maintenance of Groundwater Monitoring Wells on City owned Property and Right-of-Way. 1 LA515-1-732518.v2 MEMORANDUM OF UNDERSTANDING Between the VALLEY BRANCH WATERSHED DISTRICT And the CITY OF LAKE ELMO For the INSTALLATION AND MAINTENANCE OF GROUND MONITORING WELLS ON CITY-OWNED PROPERTY AND RIGHTS OF WAY ARTICLE I Background, Introduction, and Purpose 1. In association with its Landlocked Basin Comprehensive Planning Study, the Valley Branch Watershed District (“District” or “VBWD”) intends to install groundwater monitoring wells (“Wells”) on property owned by the City of Lake Elmo (“Lake Elmo”) and within Lake Elmo right-of-way (collectively, the “City Property”). The approximate locations of the Wells are shown as Figures 2, 3, 5, 6, 7, and 8 on the attached Mapbook. 2. Lake Elmo has indicated acceptance of the District’s plan to install the Wells and conduct related monitoring activities on the City Property. 3. This Memorandum of Understanding (“MOU”) establishes requirements, procedures, and processes for guiding the activities and decisions of the District and Lake Elmo in matters relating to the Wells and the District’s Landlocked Basin Comprehensive Planning Study. 4. Both parties recognize that the objectives of this MOU can best be realized through close coordination and cooperation. ARTICLE II Installation of Wells and Ongoing Maintenance 1. VBWD desires to install Wells on the City Property for purposes of monitoring groundwater as part of its comprehensive planning study of landlocked basins that experience extreme high-water conditions. VBWD is conducting its study in partnership with the United States Army Corps of Engineers (USACE) and intends to use groundwater data to inform and calibrate certain groundwater models to be developed and used in the planning study. 2. Lake Elmo agrees that VBWD may install the groundwater monitoring Wells on the City Property in the areas demonstrated on the Mapbook attached to this MOU and incorporated herein. Said installation shall be at the expense of VBWD. VBWD agrees that the use of the City Property is with Lake Elmo’s permission and not by adverse possession, prescriptive easement, or other entitlement and that Lake Elmo has not abandoned the City Property. This MOU does not convey any interest in real property to VBWD. 2 LA515-1-732518.v2 3. Lake Elmo agrees to allow VBWD and its agents to access the City Property depicted on Figures 2, 3, 6, 7, and 8 on the attached Mapbook for purposes of installing and maintaining the Wells at reasonable times. VBWD shall provide Lake Elmo reasonable notice before accessing the City Property for any reason. Upon such notice, Lake Elmo agrees to communicate with VBWD if there are planned activities at the time of Well installation, monitoring, or sealing the Wells, in efforts to minimize interference with the VBWD’s activities under this Agreement. VBWD shall install the Wells in a manner that will not obstruct or interfere with the use of the public right-of-way, including drainage and right- of-way use by small/dry utilities. Lake Elmo does not and cannot guarantee or warrant that access to the City Property or the Wells on the City Property will not be obstructed at the time of Well installation, monitoring, or sealing of the Wells by VBWD due to other permitted right-of-way uses that may be happening on the City Property including various construction activities by the City and its contractors. VBWD acknowledges that the City and its right of way users may enter the City Property at any time to conduct any activities in the discretion of the City. Lake Elmo may, at any time, require the removal of any Well, if it is deemed in the sole discretion of Lake Elmo that the Well is interfering with Lake Elmo’s use of the City Property (including, but not limited to, construction projects, utility installation, or ensuring that well separation requirements are being adhered to). 4. VBWD assumes all responsibility for the Wells, including all maintenance relating thereto, unless maintenance is required due to the negligence or willful conduct of Lake Elmo or its officials, employees, agents, or contractors. Lake Elmo agrees not to tamper with or otherwise alter the Wells. Lake Elmo shall provide timely notice to VBWD if an issue concerning any Well arises so that it may be corrected by VBWD. VBWD shall comply with all applicable laws, ordinances, and governmental regulations affecting its use of the City Property and the Wells. VBWD shall not use the City Property for the transportation, storage, handling or disposal of any hazardous substances, hazardous wastes, pollutants, or contaminants as defined in Chapter 42, Section 9601 et. seq. of the United States Code (“CERCLA”) or Minnesota Statutes Chapter 115B (“MERLA”). 5. VBWD shall ensure that any contractor installing the Wells or performing any work on the City Property maintains commercial general liability insurance that has a policy limit of at least $1,500,000. 6. VBWD shall defend, indemnify, and hold harmless Lake Elmo, its officials, agents, contractors, and employees, from and against all suits, demands, causes of action, liabilities, or claims for injury or damages of whatever nature, including personal injury, death, or damage to property, arising out of, or related to VBWD’s use of the City Property pursuant to this MOU or the use of the City Property by VBWD’s agents, contractors, and invitees, unless caused by the negligence or intentional acts or omissions of Lake Elmo, its agents, officials, employees, and assigns. 7. VBWD and Lake Elmo acknowledge that the length of time the Wells will be installed is not certain as of the time of this MOU’s execution. VBWD anticipates the Wells will be abandoned and removed by December 31, 2021. In no event shall the Wells be allowed to 3 LA515-1-732518.v2 remain after December 31, 2022 unless otherwise mutually agreed to by the parties. The parties agree to communicate regarding the timing of removal of the Wells. VBWD shall be solely responsible for all costs of abandoning and removing the Wells. 8. If any terms of this MOU are violated by VBWD, Lake Elmo shall provide VBWD with written notice of the violation and provide VBWD with five business days to be in compliance with the terms of this MOU. If VBWD does not correct the violation within five business days, Lake Elmo may terminate this MOU. In that event, VBWD shall remove the Wells within 30 days of the date of termination. If any terms of this MOU are violated by Lake Elmo, including but not limited to any interference or obstruction of those VBWD activities stated herein by Lake Elmo, VBWD shall provide Lake Elmo with written notice of the violation and provide five business days for Lake Elmo to comply with the terms of this MOU. If Lake Elmo does not correct the violation within five business days, VBWD may pursue the full extent of legal remedies, including but not limited to the recovery of attorney fees and costs incurred in enforcing this MOU. 9. This MOU represents the entire agreement between Lake Elmo and VBWD regarding the matters provided herein and supersedes any prior oral or written agreements regarding the same. This MOU shall be effective immediately upon signature of Lake Elmo and the VBWD and shall remain in effect until all Wells are removed, the MOU is terminated by Lake Elmo in accordance with paragraph 8, or the MOU is mutually terminated by both parties. CITY OF LAKE ELMO By: Date: Its Mayor By: Date: Its City Clerk APPROVED AS TO FORM: Date: City Attorney, City of Lake Elmo VALLEY BRANCH WATERSHED DISTRICT By: Date: Its President By: Date: Its Secretary 4 LA515-1-732518.v2 APPROVED AS TO FORM Attorney for Valley Branch Watershed District LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2 LA515-1-732518.v2