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92-7926R78 RESOLUTION NO. 7926 THE CITY OF RICHFIELD, MINNESOTA AUTHORIZING ENTRY FOR ENVIRONMENTAL TESTING BEFORE EMINENT DOMAIN PROCEEDINGS 7645 LYNDALE AVENUE SOUTH WHEREAS, the City of Richfield ("Richfield") is a municipal corporation and subdivision in the State of Minnesota organized and operating under Minnesota law, as amended, and is authorized by Minn. Stat. 412.211 to acquire real estate by exercising the power of eminent domain under and pursuant to Minn. Stat., Ch. 117; and WHEREAS, pursuant to Minn. Stat. 117.041, Subd. 2., "... a political subdivision by resolution may enter property for purposes of investigation, monitoring, testing, surveying, boring, or other similar activities necessary or appropriate to identify the existence and extent of a release or threat of release of a hazardous substance, pollutant, or contaminant if: 1) The ... political subdivision has reason to believe the acquisition of the property may be required pursuant to an eminent domain proceeding; 2) The ... political subdivision has reason to believe that a hazardous substance, pollutant, or contaminant is present on the property or the release of a hazardous substance, pollutant, or contaminant may have occurred or is likely to occur on the property; and 3) Entry on the property for environmental testing is rationally related to health, safety, or welfare concerns of the ... political subdivision in connection with eminent domain proceedings." WHEREAS, the City is in the process of acquiring necessary real estate to widen 77th Street between I-35W and Cedar Avenue ("77th Street Project"), has obtained federal and state commitments to assist in the financing of the design and construction of the project and has undertaken design of the proposed improvements, appraisal of affected real estate, environmental testing, related legal and other expenses in furtherance of the proposed 77th Street Project; and WHEREAS, the real estate located at 7645 Lyndale Avenue South, Richfield, MN 55423, and which is legally described as Lots 9 and 10, Block 7, Sunset Terrace, Hennepin County, MN ("Subject Property") is one of the parcels of real estate which the City must acquire in order to complete the 77th Street Project; and Resolution No. 7926 Page 2 WHEREAS, at the request of City staff and its engineering consultant, BRW, Inc., Braun Intertec Environmental, Inc. completed a pre-soil boring assessment of the Subject Property which includes the followin conclusions: and on-site observations ha' (Underground Storage Tanks) ("Subject Property"). Our of installation for the UST .Pollution Control Agency) i information from the. City o 1950's and 1960's, the sere USTs which were located on USTs located on the Site. former service. station indi the Site prior to the curre unknown whether soil and/or the Site due to possible re and/or former USTs. Theref preliminary environmental s the vicinity of the former product lines to evaluate w tanks have adversely impact Site. ground storage tanks. Out research e indicated that three USTs may currently exist at the Site esearch has indicated that the date registered with the MPCA (Minnesota January 1971. In addition, Richfield indicated that in the ce station located on the site had ifferent locations than the current he City information regarding the ated that five USTs were located at t USTs located at the Site. It is groundwater contamination exist at eases of petroleum from the existing re, Braun Intertec recommends that a bsurface evaluation be conducted in nd current USTs and associated ether possible releases from the d the soils and/or groundwater at the one water well was located research indicated that Cit Therefore, the occupants of City sewer probably had a s Site. Braun Intertec under connected to the City sewer the water well and septic s Water wells and septic syst or that have not been prope contamination to reach loca recommends that if the Ovate encountered during excavati they would be abandoned in by the Minnesota Department Code (Minnesota Statutes Ch WHEREAS, City staff a requested that Total Petro property, ("owner") permit the Subject Property for t and related sampling and t soil located upon the Subj Subject Property may have within or outside the Subj WHEREAS, the owner o refused to grant the City undertake such activities System. Our research indicated that n the Site. In addition, our sewer was not connected until 1966. the Site prior to the connection of ptic tank system installed at the tanks that the Site is currently and water. It is not known whether stem had been properly abandoned. ms that are not properly maintained ly abandoned can act as a conduit for groundwater. Braun Intertec well and/or septic system are n or future development at the Site, ccordance with regulations set forth of Health Water Well Construction Ater 1031). City consultants and attorneys have m Incorporated, lessee of the e City and its consultants to enter purpose of performing soil borings ing to attempt to determine whether Property or groundwater beneath the n contaminated by a release from Property; and Subject Property has so far its consultants permission to the Subject Property; and Resolution No. 7926 Page 3 WHEREAS, the City may incur liability under state or federal law for conditions of contamination present on the Subject Property if the City does not attempt in a reasonably prudent manner to investigate conditions present on the Subject Property prior to acquisition of the Subject Property; and WHEREAS, the City desires to be as well informed as possible concerning the extent of any possible contamination present on the Subject Property prior to negotiations concerning the possible purchase price for the Subject Property and prior to commencement of eminent domain proceedings in the event that the City is unable to obtain a.voluntary acquisition of the Subject Property. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield as follows: A. The City Council hereby finds that acquisition of the Subject Property in eminent domain proceedings may be required. B. The City has reason to believe that a hazardous substance, pollutant, or contaminant is present on the Subject Property or the release of a hazardous substance, pollutant or contaminant may have occurred or is likely to occur on the Subject Property. C. Entry upon the Subject Property for environmental testing is rationally related to health, safety, or welfare concerns of the City in connection with possible eminent domain proceedings. D. If the City Attorney has not previously done so, the City Council hereby directs the City Attorney to serve notice upon the owner of the Subject Property requesting permission to enter the Subject Property, stating the approximate time and purpose of the entry, and giving the Owner the option of refusing entry. The notice shall also give the Owner the option of requesting an equal amount of any sample or portion taken from the Subject Property and a copy of any data obtained or report issued. If the Owner of the Subject Property refuses to consent to the entry, the City Attorney is directed to apply for a court order authorizing the entry and the removal of any sample or portion from the Subject Property, giving notice of the court order to the Owner of the Subject Property. E. The City Engineer and the City Attorney are directed to require that City employees or consultants who enter the Subject Property do no unnecessary damage to the Subject Property and that they restore the Subject Property to substantially the same condition in which it was found. If said employees or consultants remove a sample or portion of the Subject Property for investigation, monitoring, or testing, or if they obtain any data or issue any report, they shall give the Owner of the Subject Property an equal amount of the sample or portion and a copy of any data or report, if requested by the Owner of the Subject Property, and they shall permit the Owner of the Subject Property to perform independent investigation, monitoring, or testing of the sample or portion. Resolution No. 7926 Page 4 F. Results of testing perfo included in any environments environmental impact stateme~ prepare under Minn. Stat., CY Adopted by the City Minnesota this 9th day of 1 of the City of Richfield, ber, 1992. i~ Martin J. K'rsch, Mayor ATTEST: '~ -~,l3YVL1~ I' P Thomas B. Ferber, City Clerk med on the Subject Property shall be assessment worksheet or t that the City is required to . 116D.