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HomeMy WebLinkAboutEDA March 4, 1998 CITY of ANDOVER 1685 CROSSTOWN BOULEVARD NW. . ANDOVER. MINNESOTA 55304. (612) 755-5100 " Regular City Council Meeting - Wednesday, March 4, 1998 agenda Bookmark Name Call to Order - Following the 7:00 PM EDA Meeting 1. Receive Honor Award from Consulting Engineers Council of Minnesota/ South Andover Site 2. TIF/Commercial Park Update 3. Discuss Covenant not to Sue/South Andover Site 4. Authorize Relocation Payment/Mistelske award tif sas relocat Resident Forum Agenda Approval Consent Agenda Approval of Minutes minutes HRA Meeting I : .Public Hearing : Allocat~ 1998 CDBG Funds - Public Service Agencies phcdbg Discussion Items , 2. Lot Split, cont./I7203 Tulip St. NW/Johnson johnson / 3. Metes and Bounds Split/Ashford Development Corp ashford 4. Drainage Issue, cont./2776 I 64th Ave NW/JeffLeadens/98-8 ord988 5. Discuss Status of Trail Fee trailfee 6. Request Authorization to Make Purchase Offer/98-2/Septic Dump Station offer982 7. Discuss UPA New Transmission Line Project upa 8. Discuss Request from Neighborhoodl150th Lane NW Entrance Improvements/Winslow Hills/98-7 disc987 Staff. Committees. Commissions 9. Comp Plan Task Force Update compplan Non-Discussion/Consent Items 10 .Approve Quotes/Playground Equipment for Ages 2-5/97-15 ]' I .Approve Quotes/Playground Equipment for Ages 5-12/97-15 12 .Approve Change Order #l/Playground Equipment for Ages 5-12/97-15 13 .Approve Joint Powers Agreement for MIS Position/City of Champlin 14 . Award Bid/Crosstown MasonrylBricking Old City Hall/98-1 I 5 . Approve Deduct Change Order # I to 98-I/Crosstown MasonryIBricking of Old City Hall 16 .Notice of Youth First Mayor's Prayer Breakfast I 7 . Notice of Care About Kids/Northem Expo98 Breakfast I 8 . Approve Change Order/96-15/Public Works Expansion qt29715 qt59715 co19715 mis bid981 co1981 youth expo98 co9615 Mayor/Council Input Payment of Claims Adjournment / CITY OF ANDOVER REQUEST FOR COUNCIL ACTION \ ) DATE: March 4. 1998 AGENDA SECTION EDA Meeting ORIGINATING DEPARTMENT ITEM NO. Receive Award from Consulting Engineers Council of Minnesota/South Andover Site \. Scott Erickson,cbl Engineering The Mayor and City Council will be presented with a Honor Award bestowed upon the City by the Consulting Engineers Council of Minnesota for the cleanup of contaminated soils on the South Andover redevelopment site. , J FEB-13-1998 11:24 MAXIM ST PAUL 612 659 7348 P.02/02 Press Release \ ) City of Andover to Receive an Engineering Excellence Award The City of Andover is redeveloping an approximately 90 acre tract of land which has been home to numerous automobile junk yards and a disposal yard which at one time stored more than 200,000 tires. The site was listed as a Superfund site and is one of the rust projects in the State of Minnesota where an active Superfund site has undergone redevelopment. During early excavation activities at part of the site. previously undiscovered buried chemicals and contaminated soil were encountered. McCombs Frank Roos Associates and Maxim Technologies, Inc. were conn'acted by the City to oversee the excavation of the contaminated materials, characterization of the excavated wastes, negotiations for an ultimate waste treatment/disposal strategy with the / Minnesota Pollution Control Agency, and site clean-up implementation. Through innovative applications of health risk modeling and on-site soil treatment methods, the City saved in excess of $500,000 in cleanup costs and is preparing the land for transfonnation from a junk yard to a producti ve commercial property. To show recognition for the work perfonned at the superfund sIte, the City Of Andover, McCombs Frank ROOS Associates and Maxim Technologies, Inc. will be presented an Honor's award at the Consulting Engineer's Council Engineering Excellence Awards Banquet held on Friday, February 13, 1998 at the Radisson St. Paul Hotel. . I TOTRL P.02 CITY OF ANDOVER REQUEST FOR COUNCIL ACTION " DATE: March 4, 1998 AGENDA SECTION EDA ORIGINATING DEPARTMENT Executive Director/ Richard Fursman ITEM NO. (~~mercial Park Report The Economic Development Authority is requested to review the preliminary report on the status of the Commercial Park. Additional research is required before the absolute accuracy of the figures presented can be verified. A worksheet indicating project parameters and objectives is still being worked on and final numbers and estimates are being calculated. The report is however, a good snapshot of the project to date, and is accurate relative to the large numbers involved. I will be presenting additional information and updates at the meeting. / i PRELll" . ")Y iVnJ Jj-~~-l , , , MEMORANDUM DATE: TO: FROM: RE: / , , February 26, 1998 Economic Development Authority Richard Fursman Commercial Park Report This report is designed to provide an insight into the history of the commercial park development, and some detail as to the remaining work to be done, options and budget limitations. History: The idea of converting the salvage yard area to a redevelopment site was initiated in the late 1980's with the establishment of the tax increment financing districts (TIF). It became evident by 1994-95 that the TIF money being collected would surpass debt requirements by at least $12 million. The Frontage Road: In 1993-94, plans were established for the development of a frontage road along Bunker Lake Boulevard and then south along Kottkees bus service. This project took $1 million from TIF surpluses and is still in the process of being assessed. Buying Salvage Yards: Minnesota Pollution Control Agency began it's clean-up of the superfund site located in the salvage yards in 1995. The City soon after began negotiations to buy and remove the polluting operations. The following costs have been associated with acquiring yards to date: Salva!!e Yard Land Acquisitions Actual Wilbur Auto Parts Andover Auto Parts ATV Sandeen, John Leisinger Best Auto Parts Mistelske, Charles (relocation benefits) Mistelske, Charles (condemnation) Prater, Edward( eminent domain) Heidelberger, Rick (duplex) Heidelberger, Rick (relocation for tenants) Heidelberger, Rick (land and cleanup) Heidelberger, Rick (parcels 2 and 3) M.R. Olson $845,666.23 259,605.00 306,524.20 470,000.00 152,734.61 372,032.20 19,437.00 62,500.00 33,207.69 78,900.00 11,100.00 125,820.00 37,886.60 393,546.72 , Mom's Auto Salvage Mom's Auto Salvage (relocation) Mistelske, Charles Tax Ladies PRELIM 227,740.15 INARy 158,000.00 390,000.00 13,504.00 Subtotal $3,958,204.40 Other Expenditures Legal Fees Commercial Blvd. Extension 112,263.90 71,977.33 2,077,148.99 Total Expenditures $6,219,594.62 nond Proceeds Remaining $2,357,455.34 Other Resourccs Assessment Proceeds (94 Frontage Road).... En vironmental Grant................................... First year land sales (est.)............................. Contam ination Escrow.................................. MSA Reimbursement................................... Interest Income.................................... ..... .... subtotaL................. 287,518 500,000 150,000 40,000 463,600 100.000 $1,541,118 / Money left for project 53,898,573 FUTURE EXPENDITURES $ Commercial Auto: Commercial Auto Parts is the last of the salvage yards on the south side of Bunker. With the purchase of and clearing of this yard comes the final stages of development. Land and Buildings Award $520.000 (Presently in appeals court) Will likely be a higher amount. Moving Expenses: As high as $500.000 Mr. Mistleske has crushed a significant amount of his inventory. The crushed or sold inventory is not eligible for moving expenses. This item may well be lower cost, though it is to soon to tell. Miscellaneous site clean-up: The site will have some remaining contamination investigation and mitigation work. It is difficult to determine what the cost will be until further excavations are done. Site GradingIPondinglSoils Corrections: A large amount of soil will be moved from the eastern (Jay Street) side of the project area to the center of the site. Large excavations for ponding will take place in the center ofthe site as well. Some soil "' 2 corrections wiII be required up front to remove unstable material from the general area. Other soil corrections, for specific building pads, may need to be delayed until the site is sold, and then "custom graded." RoadlPathwaylUtiIity Development: Two north-south links between Bunker and Commercial Boulevards have been identified. The timing of these roads is linked again to available funds. At least one of these routes is needed for some development to occur. It wiII be and EDA decision as to what the priorities are. Miscellaneous Legal/Consultant Fees: $50,000 Strateg ic Concerns Release from EP A: The City is working closely with EP A officials to clear the site of all liability. This is an important element when it comes time to selling the property. Our City Attorney, Mr. Hawkins, has been in contact with the EPA attorney to finalize language to release any future property owner from liability and costs associated with the superfund clean-up. I TIF Icgislation: Significant changes in the Tlf law could have a negative impact on the City's capacity to payoff bonds. The potential for the most damage would come in the form of changing the tax rate for industJ'ial and commercial properties. If the tax rate on commercial and industrial property falls again, the amount of TIF dollars collected would be greatly reduced. The City has bonded in anticipation of continuing tax receipts from the TIF district, if the tax receipts shrink too much, the ability to pay off bonds will be jeopardized. In light of this problem, I will be informing our Senator and Representative of the probable negative impact on Andover. Wetlands and Development: Staff is currently working with the watershed board to find a way to develop the park and improve the conditions of the existing wetlands. The plans of the City impact significantly wetland area on the site. Staff is presenting the argument that the wetlands are of poor quality and should be moved or reconstructed. The planners, Leanord - Parker, have designed a number of features on the site which if done according to the plan, wiII require a significant amount of soil correction. PRELIMINARY / 3 , AGENDA SECTION EDA ITEM NO. Covenant Not To Sue 6. CITY OF ANDOVER REQUEST FOR COUNCIL ACTION DATE: March 4, 1998 ORIGINA T1NG DEPARTMENT City Attorney/ Bill Hawkins Enclosed is a copy of the Agreement and Covenant Not To Sue concerning the South Andover Site that will be entered into with the United States Environmental Protection Agency. This Agreement has been reviewed by myself as well as Special Environmental Counsel Robert J. Lindall. It is our recommendation that the City of Andover and Andover Economic Development Authority enter into this Agreement with the U.S. EPA. This Agreement would prevent any claims being made against the City, the Andover Economic Development Authority or any subsequent purchasers for prior clean-up costs incurred by the EP A or responsible parties. , ) J DRAFT / UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 5 IN THE MATTER OF: AGREEMENT AND COVENANT NOT TO SUE South Andover Site Andover, Anoka County, Minnesota U.S. EPA, REGION 5 CERCLA Docket No. City of Andover, Andover Economic Development Authority, Settling Parties. PROCEEDING UNDER SECTION 122(h) (1) OF CERCLA 42 U.S.C. !l 9622 (h) (1) I. JURISDICTION . / 1. This Agreement and Covenant Not to Sue ("Agreement") is entered into pursuant to the authority vested in the Administrator of the U.S. Environmental Protection Agency ("U.S. EPA") by Section 122 (h) (1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. !l 6922 (h) (1), and to the authority of the Attorney General of the United States to compromise and settle claims of the United States. The authority vested in the Administrator of U.S. EPA under Section 122(h) (1) of CERCLA has been delegated to the Regional Administrators of the U.S. EPA by U.S. EPA Delegation No. 14-14-D (Oct. 31, 1989). The Regional Administrator for Region 5 delegated this authority to the Director of the Superfund Division by U.S. EPA Delegation No. 14- 14-D (May 2,1996). 2. This Agreement is made and entered into by U.S. EPA, and the City of Andover and the Andover Economic Development Authority ("Settling Parties"). Each Settling Party consents to and will not contest U.S. EPA's jurisdiction to enter into this Agreement or to implement or enforce its terms. II. BACKGROUND 3. This Agreement concerns the South Andover Superfund Site ("Site") located in Andover, Anoka County, Minnesota. The Site is a "facility" as defined by Section 101(9) of CERCLA, 42 U.S.C. ,/ !l 9601 (9) . 4. The Site is located at 2050 Bunker Lake Boulevard in the southern area of the City of Andover, Minnesota, and is comprised of several parcels of land which jointly total approximately 50 acres. The Site is irregular in shape. Bunker Lake Boulevard defines the northern extent of the Site, while Jay Street is located approximately 500 feet east of the Site. 5. Several small businesses involved with used car and auto part sales, auto salvage operations, and auto body repair existed both at the Site and adjacent to the Site along both Bunker Lake Boulevard and Jay Street. Increased residential development was initiated 1/4-mile north of the Site in the early 1970s, and continued development is occuring to the east, north, and south. / 6. Waste storage and disposal activities began at the Site during the mid-1950s. More than 1,000 drums of waste were stored at the Site. Ink, ink and paint sludge, adhesives, chlorinated and nonchlorinated solvents were stored, disposed of in trenches, and burned at the Site. Solvent recovery, the storage of transformers and salvaged electrical equipment, and smelting have also occurred at the Site. Solid and liquid chemical waste dumping and open pit burning of solvents occurred during the 1960s and 1970s. Drum storage and chemical waste disposal areas were partially obscured by auto salvage operations and more than three million waste tires. Two tire fires occurred at the Site. The first occurred during July 1988 and was extinguished with water. A second, much larger tire fire occurred in February 1989. The fire was smothered with sand. 7. Hazardous substances within the definition of Section 101(14) of CERCLA, 42 USC ~ 9601(14), were released into the environment at or from the Site, posing a risk to human health or the environment. These substances included: polycyclic aromatic hydrocarbons ("PARs"), polychlorinated biphenyls ("PCBs"), lead, and antimony. 8. In July 1985, U.S. EPA notified twenty-one potentially responsible parties ("PRPs") that it intended to conduct a Remedial Investigation/Feasibility Study ("RI/FS") at the Site, but that U.S. EPA would consider an offer by the PRPs to conduct the RI/FS. Failure on the part of the PRPs to negotiate such , / 2 action resulted in the U.S. EPA conducting the RIfFS, in response to the release or threatened release of hazardous substances at or from the Site. 9. On October 22, 1981, U.S. EPA proposed the Site for listing on the National Priorities List (~NPL"), set forth at 40 C.F.R. Part 300, Appendix B, pursuant to Section 105 of CERCLA, 42 U.S.C. ~ 9605. Final listing of the Site on the NPL occurred on September 8, 1983. 10. From the fall of 1985 through the summer of 1987, U.S. EPA undertook an RI in response to a release or a substantial threat of a release of hazardous substances to the groundwater at the Site. Because contamination was found in groundwater, an FS was conducted to evaluate possible remedies. U.S. EPA issued a Record of Decision (~ROD") on March 30, 1988, which documented a decision for remedial action of groundwater. U.S. EPA issued an amendment to the ROD on June 9, 1992, as a result of a Design Investigation (~DI"), which revealed that a discrete plume of contamination did not exist at the Site. The amended ROD required only continued monitoring of groundwater, the abandonment of wells, and re-sampling of wells if action levels are exceeded. 11. In June 1990, in response to a release or a substantial threat of a release of hazardous substances in soils at the Site, U.S. EPA commenced another RIfFS. The RI was completed on July 30, 1991, and the FS was completed on December 19, 1991. U.S. EPA's remedy for contaminated soil was documented in another ROD issued on December 24, 1991. The major components of the selected remedy included the excavation and biological treatment of predominantly PAR-contaminated soil, the excavation and off- site disposal of PCB, heavy metal, and PAR-contaminated soil, and removal of drums. In May 1994, an amendment to the ROD for soil was issued. This action amended the original decision so that PAR-contaminated soils could be taken off-site for thermal treatment. 12. The final remedy for the Site consisted of: excavation and off-site thermal treatment of soil contaminated with carcinogenic PARs exceeding 4 parts per million (~ppm/l); excavation and off-site landfilling of soil contaminated with lead exceeding 500 ppm, antimony exceeding 25 ppm, or PCBs 3 exceeding 2 ppm; three years of post-excavation groundwater monitoring; well abandonment; and three years of post-excavation surface water and sediment monitoring. 13. In performing response actions at the Site, U.S. EPA incurred response costs at or in connection with the Site. On January 28, 1991, the United States of America ("the United States"), on behalf of the Administrator of U.S. EPA, filed a complaint pursuant to Section 106 and 107 of CERCLA, 42 U.S.C. ~~ 9606, 9607, against a number of PRPs to recover the response costs incurred by U.S. EPA. On August 27, 1993, the United States District Court for the District of Minnesota entered a Consent Decree (United States of America v. Acme Tag Companv. et al., Civil Action No. 3-91-51), under which the defendants who settled therein ("Settling Defendants") agreed, at their expense, to perform Remedial Design/Remedial Action ("RD/RA") at the Site and implement the remedies selected in the RODs and their amendments. They also agreed to pay $2,773,000 in partial reimbursement of U.S. EPA's Past Response Costs, as well as all future U.S. EPA response costs, including oversight costs. Mr. Cecil Heidelberger, an owner of property at the Site, was not a signatory to the Consent Decree. 14. On December 16, 1994, the District Court granted the United States' motion for partial summary judgment as to the amount of Mr. Cecil Heidelberger's liability for unreimbursed Past Response Costs incurred at the Site. The amount of these costs, which included U.S. EPA costs, U.S. Department of Justice costs, and prejudgment interest, was $1,073,441.98. To date, Mr. Heidelberger has not paid the amount of this judgment. 15. U.S. EPA's unrecovered Past Response Costs as of February 1994, before interest, were $525,219.96. 16. The Settling Defendants began remedial actions at the Site in July 1994. A pre-final inspection was conducted on September 30, 1994. A final inspection was conducted on November 15, 1994, which indicated that all remaining construction items identified in the pre-final inspection were completed. A Preliminary Site Close Out Report ("PCOR") was signed by William E. Muno, Director of the Waste Management Division, U.S. EPA, Region 5, on November 1, 1994. 4 17. The Andover Economic Development Authority ("the Authority"), acting at all times as an alter ego for, and on behalf of, the City of Andover, acquired parcels of property at the Site through purchase; through the exercise of eminent domain authority by purchase or condemnation; or through tax forfeiture, abandonment, bankruptcy, or other circumstances, as outlined in Appendix A, attached hereto, for the purpose of redeveloping the properties (hereinafter, "the Properties") as part of a planned industrial/commercial park. The legal descriptions of the Properties are attached hereto as Appendix B. 18. The Settling Parties represent, and for the purposes of this Agreement U.S. EPA relies on those representations, that the Settling Parties' involvement at the Site is limited to the following: a. The Settling Parties did not conduct or permit the generation, transportation, storage, treatment or disposal of any hazardous substances at the Site; b. The Settling Parties did not contribute to the release or threat of release of hazardous substances at the Site through any action or omission, or play any role in the management or operation of any businesses or activities at the Site at any relevant time; c. The Settling Parties acquired the Properties at the Site for the purpose of developing, as a public project, a commercial/light industrial park. The project, as planned, encompasses the entire Site and approximately 40 acres of additional real estate adjacent to or surrounding the Site. d. The Settling Parties, pursuant to their participation in the Minnesota Pollution Control Agency's Voluntary Investigation and Cleanup Program ("VIC Program"), and in the interest of redeveloping the Properties as part of an industrial/commercial park, have conducted soil testing on the Properties and have discovered additional hazardous substances, as defined by Section 101(14) of CERCLA, 42 U.S.C. ~ 9601(14). The Settling Parties have undertaken, at their expense, in cooperation with the Minnesota " 5 Pollution Control Agency ("MPCA") and u.s. EPA, to excavate and properly dispose of such hazardous substances; e. The Settling Parties have incurred costs, and will incur approximately $10 million in total costs, in re- developing Site and off-Site properties as a planned commercial/light industrial park. Such costs include acquiring and remediating the Properties under the MPCA's VIC Program. The total re-development costs are outlined in Appendix C. 19. U.S. EPA and Settling Parties desire to resolve the Settling Parties' alleged civil liabilities for U.S. EPA's Past Response Costs at the Site and for any U.S. EPA costs relating to Existing Contamination at the Site arising from the Settling Parties' ownership of Site properties, without litigation and without the admission or adjudication of any issue of fact or law. III. PARTIES BOUND / 20. This Agreement shall apply to and be binding upon the United States, and shall apply to and be binding on the Settling Parties, their officers, directors, employees, and agents. Each signatory of a Party to this Agreement represents that he or she is fully authorized to enter into the terms and conditions of this Agreement and to legally bind such Party. 21. Notwithstanding any other provisions of this Agreement, all of the rights, benefits and obligations conferred upon the Settling Parties under this Agreement may be assigned or transferred to any person after prior and reasonable written notice to U.S. EPA,except that U.S. EPA shall not consent to the assignment or transfer of any of the rights, benefits and obligations under this Agreement to any person whose liability for Past Response Costs or response actions at the Site has been legally established prior to the transfer of the Properties, or whose liability for such costs or actions has been alleged by the United States in any judicial or administrative proceeding. U.S. EPA shall inform Settling Parties of the withholding of its consent to the transfer of the rights, benefits, and obligations ; 6 / to such persons within sixty (60) days after U.S. EPA's receipt of Settling Parties' notice of the transfer of any Properties. 22. The Settling Parties agree to pay the reasonable costs incurred by U.S. EPA to review any subsequent requests for consent to assign or transfer any of the Properties. 23. In the event of an assignment or transfer of any of the Properties or an assignment or transfer of an interest in any of the Properties, the assignor or transferor shall continue to be bound by all the terms and conditions, and subject to all the benefits, of this Agreement except as U.S. EPA and the assignor or transferor agree otherwise and modify this Agreement, in writing, accordingly. Moreover, prior to or simultaneous with any assignment or transfer of any of the Properties, the assignee or transferee must consent in writing to be bound by the terms of this Agreement including but not limited to the certification requirement in Paragraphs 33 and 35 of this Agreement in order for the Covenant Not to Sue in Section X and the Contribution Protection in Section XIII to be available to that party. The Covenant Not To Sue in Section X and the Contribution Protection in Section XIII shall not be effective with respect to any assignees or transferees who fail to provide such written consent to U.S. EPA. / IV. DEFINITIONS 24. Unless otherwise expressly provided herein, terms used in this Agreement which are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Agreement or in any appendix attached hereto, the following definitions shall apply: a. "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ~ 9601, ~ ~. b. "Agreement" shall mean this Agreement and Covenant Not to Sue and any attached appendices. In the event of conflict between this Agreement and any appendix, the Agreement shall control. / 7 c. "Day" shall mean a calendar day. In computing any period of time under this Agreement, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day. d. "U.S. EPA" shall mean the United States Environmental Protection Agency and any successor departments, agencies or instrumentalities of the United States. e. "Existing Contamination" shall mean any hazardous substances, pollutants, or contaminants, as defined by Section 101(14), 42 U.S.C. ~ 9601(14), present or existing on or under the Site as of the effective date of this Agreement. f. "Interest" shall mean interest at the current rate specified for interest on investments of the Hazardous Substance Superfund established by 26 U.S.C. ~ 9507, compounded annually on October 1 of each year, in accordance with 42 U.S.C. ~ 9607(a). g. "Paragraph" shall mean a portion of this Agreement identified by an arabic numeral or a lower case letter. h. "Parties" shall mean U.S. EPA and the Settling j Parties. i. "Past Response Costs" shall mean all costs, including but not limited to direct and indirect costs, that U.S. EPA or the U.S. Department of Justice on behalf of U.S. EPA has paid at or in connection with the Site through February 1994, plus accrued Interest on all such costs through such date. j. "The Properties" shall mean the parcels of real property at the Site currently held in title by the Andover Economic Development Authority, as an alter ego for and on behalf of the City of Andover, as outlined in Appendix A, the legal descriptions of which are provided in Appendix B. k. "Section" shall mean a portion of this Agreement identified by a roman numeral. / 8 1. "Settling Parties" shall mean the City of Andover, a municipal corporation, Andover City Hall, 1685 Crosstown Boulevard, Andover, Minnesota 55304, and the Andover Economic Development Authority, a body corporate and politic. m. encompassing Boulevard in generally on "Site" shall mean the South Andover Superfund approximately 50 acres, located at 2050 Bunker Andover, Anoka County, Minnesota, and depicted the map included in Appendix D. site, Lake n. "United States" shall mean the United States of America, including it departments, agencies and instrumentalities. V. WORK TO BE PERFORMED \ 25. The Settling Parties hereby agree that they shall continue to participate in the MPCA's VIC Program for further remediation relating to Existing Contamination at the Site until such time that a written Certificate of Completion is issued by MPCA to the Settling Parties indicating that the Settling Parties have satisfactorily completed all actions and have met all relevant performance standards necessary for further remediation of the Site under the VIC Program. A copy of the Settling Parties' Site Contingency Plan and schedule is attached as Appendix E and is herein incorporated by reference. 26. The Settling Parties shall immediately notify U.S. EPA upon their receipt of a written Certificate of Completion issued by MPCA, and shall remit copies of the Certificate of Completion to the persons identified below within seven (7) days of receipt: John J. O'Grady Remedial Project Manager U.S. EPA, Region 5 (SR-6J) 77 West Jackson Boulevard Chicago, Illinois 60604 Kevin C. Chow Assistant Regional Counsel U.S. EPA, Region 5 (C-29A) 77 West Jackson Boulevard Chicago, Illinois 60604 I 9 VI. ACCESS 27. The Settling Parties and each of their assignees, successors in interest, lessees, and sublessees, who hold an interest in any of the properties, agree to provide to U.S. EPA, its authorized officers, employees, representatives, and all other persons performing response actions under U.S. EPA oversight, an irrevocable right of access at all reasonable times to any of the Properties and to any other property to which access is required for the implementation of response actions at the Site, if necessary, to the extent access to such other property is controlled by the Settling Parties, for the purposes of performing and overseeing response actions at the Site under federal law. U.S. EPA agrees to provide reasonable notice to the Settling Parties of the timing of response actions to be undertaken at the Properties. Notwithstanding any provision of this Agreement, U.S. EPA retains all of its access authorities and rights, including enforcement authorities related thereto, under CERCLA, the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. ~ 6901, ("RCRA") et. ~, and any other applicable statute or regulation, including any amendments thereto. 28. Within 30 days after the effective date of this Agreement, the Settling Parties shall record a certified copy of this Agreement with the Recorder's Office, Anoka County, State of Minnesota. Thereafter, each deed, title, or other instrument conveying an interest in any of the Properties shall contain a notice stating that the Properties are subject to this Agreement. A copy of these documents should be sent to the persons listed in Section XIV (Notices and Submissions) . 29. The Settling Parties shall ensure that assignees, successors in interest, lessees, and sublessees, of any of the Properties shall, at the time of receipt of their interest in any of the Properties from the Settling Parties, agree to provide the same access and cooperation. The Settling Parties shall ensure that a copy of this Agreement is provided to any current lessee or sublessee on or of any of the Properties as of the effective date of this Agreement and shall ensure that any subsequent leases, subleases, assignments or transfers of any of the Properties or an interest in the Properties are consistent with this Section, and Section III (Parties Bound), of the Agreement. 10 VII. DUE CARE/COOPERATION \ / 30. The Settling Parties shall exercise due care at the Properties with respect to the Existing Contamination and shall comply with all applicable local, State, and federal laws and regulations. The Settling Parties recognize that the implementation of any additional response actions at the Site, if necessary, may interfere with the Settling Parties' use of the Properties, and may require closure of any operations or a part thereof. The Settling Parties agree to cooperate fully with U.S. EPA in the implementation of any additional response actions at the Site and further agree not to interfere with such response actions. U.S. EPA agrees, consistent with its responsibilities under applicable law, to use reasonable efforts to minimize any interference with the Settling Parties' operations by such entry and response. In the event the Settling Parties become aware of any action or occurrence which causes or threatens a release of hazardous substances, pollutants, or contaminants at or from the Site that constitutes an emergency situation or may present an immediate threat to public health or welfare or the environment, Settling Parties shall immediately take all appropriate action to prevent, abate, or minimize such release or threat of release, and shall, in addition to complying with any applicable notification requirements under Section 103 of CERCLA, 42 U.S.C. ~ 9603, or any other law, immediately notify U.S. EPA of such release or threatened release. VIII. FAILURE TO COMPLY WITH AGREEMENT 31. In addition to any other remedies or sanctions available to U.S. EPA by virtue of Settling Parties' failure to comply with the requirements of this Agreement, any Settling Party who fails or refuses to comply with any term or condition of this Agreement shall be subject to enforcement action pursuant to Section 122(h) (3) of CERCLA, 42 U.S.C. ~ 9622 (h) (3). If the United States, on behalf of U.S. EPA, brings an action to enforce this Agreement, Settling Parties shall reimburse the United States for all costs of such action, including but not limited to costs of attorney time. 32. The obligations of Settling Parties under this Agreement are joint and several. In the event of the failure of anyone or more Settling Parties to meet any obligations required 11 under this Agreement, the remaining Settling Party shall be responsible for such obligations. IX. CERTIFICATION 33. By entering into this Agreement, the Settling Parties certify that to the best of their knowledge and belief they have fully and accurately disclosed to U.S. EPA all information known to the Settling Parties and all information in the possession or control of their officers, directors, employees, contractors and agents which relates in any way to any Existing Contamination or any past or potential future release of hazardous substances, pollutants or contaminants at or from the Site and to its qualification for this Agreement. The Settling Parties also certify that to the best of their knowledge and belief they have not caused or contributed to a release or threat of release of hazardous substances or pollutants or contaminants at the Site. 34. The Settling Parties further certify that the total costs expended and to be incurred by the Settling Parties for the acquisition, remediation, and re-development of the Properties at the Site have been fairly and reasonably estimated to be approximately $10,000,000. 35. If the United States determines that information provided by the Settling Parties subject to these certifications is not materially accurate and complete, the Agreement, within the sole discretion of the United States, shall be null and void and the United States reserves all rights it may have. X. COVENANT NOT TO SUE BY U.S. EPA 36. Except as specifically provided in Section XI (Reservations of Rights by U.S. EPA) , U.S. EPA covenants not to sue or take any other civil or administrative action under Sections 106 or 107(a) of CERCLA, 42 U.S.C. ~~ 9606 or 9607(a), against Settling Parties for any and all civil liability for reimbursement of U.S. EPA's Past Response Costs associated with this Site, or for injunctive relief or reimbursement of response costs under Sections 106 or 107(a) of CERCLA, 42 U.S.C. ~~ 9606 or 9607(a), with respect to the Existing Contamination. This covenant shall take effect upon issuance of a written Certificate of Completion by the MPCA to the Settling Parties indicating that J 12 the Settling Parties have satisfactorily completed all further remedial actions relating to Existing Contamination at the Site required under the VIC Program, and have met all relevant performance standards necessary for further remediation of the Site under the VIC Program, as required by Paragraph 25 of this Agreement. This covenant not to sue is conditioned upon the satisfactory performance by Settling Parties of their obligations under this Agreement. This covenant not to sue extends only to Settling Parties and does not extend to any other person, except as otherwise provided in Section III (Parties Bound) . XI. RESERVATIONS OF RIGHTS BY U.S. EPA 37. The covenant not to sue by U.S. EPA set forth in Paragraph 40 does not pertain to any matters other than those expressly identified therein. U.S. EPA reserves, and this Agreement is without prejudice to, all rights against Settling Parties with respect to all other matters, including but not limited to: a. any liability for failure of Settling Parties to meet a requirement of this Agreement; b. any liability resulting from past or future releases of hazardous substances, pollutants or contaminants, at or from the Site caused or contributed to by the Settling Parties, their successors, assignees, lessees or sublessees; c. any liability resulting from exacerbation by Settling Parties, their successors, assignees, lessees, or sublessees, of Existing Contamination; d. any liability resulting from the release or threat of release of hazardous substances, pollutants, or contaminants, at the Site after the effective date of this Agreement, not within the definition of Existing Contamination; e. criminal liability; 13 f. liability for damages for injury to, destruction ; of, or loss of natural resources, and for the costs of any natural resource damage assessments; and g. liability for violations of local, State or federal law or regulations. 38. Nothing in this Agreement is intended to be nor shall it be construed as a release, covenant not to sue, or compromise of any claim or cause of action, administrative or judicial, civil or criminal, past or future, in law or in equity, which the United States may have against any person, firm, corporation or other entity not a signatory to this Agreement, except as otherwise provided in Section III (Parties Bound) . 39. With respect to any claim or cause of action asserted by the United States, the Settling Parties shall bear the burden of proving that the claim or cause of action, or any part thereof, is attributable solely to Existing Contamination. , / 40. Nothing in this Agreement is intended to limit the right of U.S. EPA to undertake future response actions at the Site or to seek to compel parties other than the Settling Parties to perform or pay for response actions at the Site. Nothing in this Agreement shall in any way restrict or limit the nature or scope of response actions which may be taken or be required by U.S. EPA in exercising its authority under federal law. Settling Parties acknowledge that they have acquired property where response actions have been and may be required. XII. COVENANT NOT TO SUE BY SETTLING PARTIES 41. Settling Parties agree not to assert any claims or causes of action against the United States, or its contractors or employees, with respect to Past Response Costs or this Agreement, including but not limited to: a. any direct or indirect claim for reimbursement from the U.S. EPA Hazardous Substance Superfund established by 26 U.S.C. ~ 9507, based on Sections 106(b) (2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. ~~ 9606(b) (2), 9607, 9611, 9612, or 9613, or any other provision of law; 14 \ I b. any claims arising out of the response actions at the Site, including those for which the Past Response Costs were incurred; and c. any claim against the United States pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. ~~ 9607 and 9613, relating to Past Response Costs or response actions undertaken at the Site. 42. Nothing in this Agreement shall be deemed to constitute approval or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. ~ 9611, or 40 C.F.R. 300.700(d). XIII. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION 43. Nothing in this Agreement shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Agreement. U.S. EPA and Settling Parties each reserve any and all rights (including, but not limited to, any right to contribution), defenses, claims, demands, and causes of action which each Party may have with respect to any matter, transaction, or occurrence relating in any way to the Site against any person not a Party hereto. 44. U.S. EPA and Settling Parties agree that the actions undertaken by Settling Parties in accordance with this Agreement do not constitute an admission of any liability by any Settling Party. Settling Parties do not admit, and retain the right to controvert in any subsequent proceedings other than proceedings to implement or enforce this Agreement, the validity of the facts or allegations contained in Section II of this Agreement. 45. The Parties agree that Settling Parties are entitled, as of the effective date of this Agreement, to protection from contribution actions or claims as provided by Sections 113(f) (2) and 122 (h) (4) of CERCLA, 42 U.S.C. ~~ 9613 (f) (2) and 9622 (h) (4), for "matters addressed" in this Agreement. The "matters addressed" in this Agreement are all Past Response Costs incurred by U.S. EPA or by the U.S. Department of Justice on behalf of U.S. EPA; all response actions taken and all response costs incurred by any other person at this Site as of the effective date of this Agreement; and all response actions and all response costs to be incurred by U.S. EPA or any other person at this Site / 15 with respect to Existing Contamination at, on, or under the Properties. 46. Each Settling Party agrees that with respect to any suit or claim for contribution brought by it for matters related to this Agreement, it will notify U.S. EPA in writing no later than 60 days prior to the initiation of such suit or claim. Each Settling Party also agrees that, with respect to any suit or claim for contribution brought against it for matters related to this Agreement, it will notify U.S. EPA in writing within 10 days of service of the complaint or claim upon it. In addition, each Settling Party shall notify U.S. EPA within 10 days of service or receipt of any Motion for Summary Judgment and within 10 days of receipt of any order from a court setting a case for trial, for matters related to this Agreement. 47. In any subsequent administrative or judicial proceeding initiated by U.S. EPA, or by the United States on behalf of U.S. EPA, for injunctive relief, recovery of response costs, or other appropriate relief relating to the Site, Settling Parties shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the covenant not to sue by U.S. EPA set forth in Section X of this Agreement. XIV. RETENTION OF RECORDS 48. Until 10 years after the effective date of this Agreement, each Settling Party shall preserve and retain all records and documents now in its possession or control, or which come into its possession or control, that relate in any manner to response actions taken at the Site or to the liability of any person for response actions conducted and to be conducted at the Site, regardless of any corporate retention policy to the contrary. 49. After the conclusion of the document retention period in the preceding paragraph, Settling Parties shall notify U.S. EPA at least 90 days prior to the destruction of any such records 16 I / or documents, and, upon request by U.S. EPA, Settling Parties shall deliver any such records or documents to u.S. EPA. Settling Parties may assert that certain documents, records, or other information are privileged under the attorney-client privilege or any other privilege recognized by federal law. If Settling Parties assert such a privilege, they shall provide u.S. EPA with the following: 1) the title of the document, record, or information; 2) the date of the document, record, or information; 3) the name and title of the author of the document, record, or information; 4) the name and title of each addressee and recipient; 5) a description of the subject of the document, record, or information; and 6) the privilege asserted. However, no documents, reports, or other information created or generated pursuant to the requirements of this or any other judicial or administrative settlement with the United States shall be withheld on the grounds that they are privileged. If a claim of privilege applies only to a portion of a document, the document shall be provided to u.S. EPA in redacted form to mask the privileged information only. Settling Parties shall retain all records and documents that they claim to be privileged until u.S. EPA has had a reasonable opportunity to dispute the privilege claim and any such dispute has been resolved in Settling Parties' favor. 50. By signing this Agreement, each Settling Party certifies individually that, to the best of its knowledge and belief, it has: a. conducted a thorough, comprehensive, good faith search for documents, and has fully and accurately disclosed to u.S. EPA, all information currently in its possession, or in the possession of its officers, directors, employees, contractors or agents, which relates in any way to the ownership, operation or control of the Site, or to the ownership, possession, generation, treatment, transportation, storage or disposal of a hazardous substance, pollutant or contaminant at or in connection with the Site; b. not altered, mutilated, discarded, destroyed or otherwise disposed of any records, documents or other information relating to its potential liability regarding the Site, after notification of potential liability or the filing of a suit against the Settling Party regarding the Site; and 17 c. fully complied with any and all U.S. EPA requests for information regarding the Site pursuant to Sections 104(e) and 122(e) of CERCLA, 42 U.S.C. ~~ 9604(e) and 9622(e), and Section 3007 of the Resource, Conservation and Recovery Act, 42 U.S.C. ~ 6927. XV. NOTICES AND SUBMISSIONS 51. Whenever, under the terms of this Agreement, notice is required to be given or a document is required to be sent by one Party to another, it shall be directed to the individuals at the addresses specified below, unless those individuals or their successors give notice of a change to the other Parties in writing. Written notice as specified herein shall constitute complete satisfaction of any written notice requirement of this Agreement with respect to U.S. EPA and Settling Parties. As to U.S. EPA: I John J. O'Grady Remedial Project Manager U.S. EPA, Region 5 (SR-6J) 77 West Jackson Boulevard Chicago, Illinois 60604 Kevin C. Chow Assistant Regional Counsel U.S. EPA, Region 5 (C-29A) 77 West Jackson Boulevard Chicago, Illinois 60604 As to Settlino Parties: William G. Hawkins, Esq. William G. Hawkins and Associates 2140 Fourth Avenue North Anoka, Minnesota 55303 XVI. INTEGRATION/APPENDICES 52. This Agreement and its appendices constitute the final, complete and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this 18 I Agreement. The Parties acknowledge that there are no representations, agreements or understandings relating to the settlement other than those expressly contained in this Agreement. , 53. The following appendices are attached to and incorporated into this Agreement: Appendix A is a summary of the Authority's and City of Andover's acquisitions of properties at the Site; Appendix B contains the legal descriptions of the Properties; Appendix C is a summary of the Settling Parties' total approximate costs for the acquisition, remediation, and re- development of the Properties as part of a planned commercial/light industrial park; Appendix D is a map of the Site; Appendix E is the Authority's and City of Andover's Site Contingency Plan and schedule for further remediation of Existing Contamination at the Site under the MPCA's VIC Program. / XVII. PUBLIC COMMENT 54. This Agreement shall be subject to a public comment period of not less than 30 days pursuant to Section 122(i) of CERCLA, 42 U.S.C. ~ 9622(i). In accordance with Section 122(i) (3) of CERCLA, U.S. EPA may modify or withdraw its consent to this Agreement if comments received disclose facts or considerations which indicate that this Agreement is inappropriate, improper or inadequate. XVIII. EFFECTIVE DATE 55. The effective date of this Agreement shall be the date upon which U.S. EPA issues written notice that the public comment period pursuant to Paragraph 54 has closed and that comments received, if any, do not require modification of or U.S. EPA withdrawal from this Agreement. , 19 XIX. TERMINATION / 56. If any Party believes that any or all of the obligations under this Agreement are no longer necessary to ensure compliance with the requirements of this Agreement, that Party may request in writing that the other Party agree to terminate the provision or provisions establishing such obligations; provided, however, that the provision or provisions in question shall continue in force unless and until the party requesting such termination receives written agreement from the other party to terminate such provision or provisions. IT IS SO AGREED: U.S. Environmental Protection Agency By: William E. Muno Superfund Division Director Date I u.S. Department of Justice By: Lois J. Schiffer Assistant Attorney General Environment and Natural Resources Division Date 20 . \ , '\ I THE UNDERSIGNED SETTLING PARTY enters into this Agreement in the matter of [insert U.S. EPA docket number], relating to the South Andover Superfund Site, Andover, Anoka County, Minnesota: FOR SETTLING PARTY: [Name] [Address] By: [Name] [Date] 21 CITY OF ANDOVER REQUEST FOR COUNCIL ACTION DATE: March 4. 1998 AGENDA SECTION EDA ORIGINATING DEPARTMENT City Attorney/ Bill Hawkins ITEM NO. Mistelske: Payment for search costs L\, A relocation claim has been submitted by Conworth, Inc. on behalf of Charles Mistelske for replacement site search costs in the amount of$I,OOO. The EDA is requested to approve this amount. ;