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09-12081 2 3 4 CITY O Presented Whereas; RockTenn is a papermaking company with facilities located in the Midway neighborhood of Saint Paul and is considered a Permitted Indusirial User under the Service Availabiliry Charge ("SAC") policies and procedures of the Metropolitan Council, Environmental Services division ("MCES"); and Whereas; RockTenn has implemented over the yeazs a number of pollution prevention and water use reduction initiatives resulting in permanent process changes to its papermaking operations at a cost to RockTenn in excess of $25 million; and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Requestedy�B artment o£ By: Approved by the Office BY� i? Approved by -' Attorn By: Adoption Certified by Counc' Secretary By: BY� / f ( ,//L/ ` - Approve y : Date �� /.�J By: � � Whereas; As a result of these permanent process changes, RockTenn has succeeded in reducing the volume of industrial waste discharges to the metropo]itan sewer system; and these r.eductions, in turn, have resulted in the accumulation by RockTenn of site-specific SAC credits; and Whereas; In the past, RockTenn has supported and assisted the City in the assignment by MCES of RockTenn's site-specific credits to the City as city-wide credits; and Whereas; MCES has announced a change to its SAC Procedure Manual, which will become effective January 1, 2010 that will preclude additional city-wide credits and sit�specific credits after December 31, 2009; and Whereas; The number of remaining site-specific credits in excess of those currently needed by RockTenn to pay for its current, ongoing operations is in dispute between RockTenn and MCES, and RockTenn is appealing MCES' determination of credits; and Whereas; the assignment of additional city-wide credits will benefit the City; and Whereas; RockTenn will invest time and resources in appealing MCES' determination. Now therefore be it resolved that the council hereby ratifies the Memorandum of Understanding dated October, 2009 with RockTenn, a copy of which is attached hereto. Council File # d Green Sheet # 3085576 RESOLUTION 41NT PA1J�. MINNESOTA �p �ic v�Ge �d �%�.� Adopted by Council: Date �����p' � � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � FS —Financial ConWM Person & Phone: Marqaet Kelly 266-8796 Must Be on Council F�qenda by (Date): 04-NOV-09 Doc. Type: RESOL1IffON E-DoeumentRequired: Y Doeument Co�aet: Margaet Kslly Contact Phone: 266-8796 ToWI # of Signature 23 OCT 2009 y Assign Number For Routing Order Ail Locations for Sgnature) �l'l-/�U.o�' Green Sheet N�: 3085576 2 �"mancialServices II DepartmentDireUor I � 3 ' Attoioe (� CityAttornev 4 aYOPS Offire Mavor/Assistaet 10 Resolution seeking CouncIl nrification of a Memorandum of Understanding (MOUj between the City of Saint Paul and RockTenn regazding an appeal of SAC credits for the benefit of the City. Recommendations: Approve (A) or Reject (R): Planning Commission CIB Committee Civil Service Commission Personal Service Contracts Must Answer the Following Questions: 1. Has this person/firm ever worked under a contrect for this department? Yes No 2. Has this pe�son/firm ever been a dty employee? Yes No 3. Does this person/firtn possess a skill not nortnalry possessed by any curtent city employee? Yes No Explain all yes answere on separete sheet and attaeh to green sheet. Initiating Problem, Issues, Opportuniry (Who, What, When, Where, Why): The attached Memorandum of Understanding obligates the City to cooperate with RockTenn as they appea( Met Commcil's SAC credit determination, and fiuther obligates the City, if city-wide ccedits become available, to compensate RockTenn as the credits are used AdvanWges If Approved: The Ciry and RockTenn will be bound to the terms of the ageement. The City could benefit from additionat city-wide SAC credits DisadvantagesifApproved: Noneknown Disadvantages If Not Approved: � The City would not benefit from additional city-wide SAC credits should they become available. Total Amount of Transaction: Funding Source: Financial Infortnation: (Euplain) CostlRevenue Budgeted: Activity Number: � �� = � - lU 9ryjp � �� VVY �r � `a �����" '� F October 23. 2009 10:58 AM pa„p � �s i��� MEMORANDUM OF UNDERSTANDING CTTY OF ST. PAUL AND ROCK TENN COMPANY This Memorandum of Understanding ("MQU") is entered this _ day of October, 2009, by and between the City of St. Paul (the "Cit�') and Waldorf Corporation, d/b/a Rock-Tenn Company, a Delawaze corporation ("RockTenn"}. The City and RockTenn may be referred to collectively from time to time in this MOU as "the Parties." PRELINIINARY STATEMENT OF FACTS 1. RockTenn is a papermaking company with facilities located in the Midway District of the City. RockTenn employs 470 people at its facilities in the City and is considered a Permitted Industrial User under the Service Availability Charge ("SAC") policies and procedures of the Metropolitan Council, Environmental Services division ("MCES"). 2. RockTenn has unplemented over the years a number of pollurion prevention and water use reduction initiatives resulting in permanent process changes to its papexmaking operations at a cost to RockTenn in excess of $25 million. As a result of these permanent process changes, RockTenn has succeeded in reducing the volwne of industrial waste dischazges to the metropolitan sewer system. These reductions, in turn, have resulted in the accumulation by RockTenn of site-specific SAC credits. These SAC credits currently exceed the credits needed by RockTenn to pay for its current, ongoing opera�ions. In 1986-87, the City requested RockTenn's assistance and cooperation in seeking a SAC credit review froxn MCES to facilitate an assignment to the City for City-wide use of RockTenn's site-specific SAC credits beyond those needed for ongoing operations at that time. RockTenn did provide such assistsnce and cooperation in the form of supplying the City with discharge information and information concerning permanent process changes that RockTenn had implemented to reduce its industrial waste discharges into the �9 �a4.�' metropolitan sewer system. In huv, the City submitted information to MCES, resulting in MCES assigning to the City for City-wide use 11,788 site-specific SAC credits thaz were available as a result of RockTenn's changed operations. In 1987, the 11,788 SAC credits were fully assigned to the City, in accordance with SAC Procedures, without payment to RockTenn. 4. At the beginning of 2009, the City again expressed the willingness to have any excess site- specific SAC credits attributable to RockTenn's operations reassigned by MCES to the City for City-wide use. RockTenn was and is willing to cooperate with and facilitate the City's efforts to obtain such reassignment from MCBS. 5. In Febniary 2009, MCES sent to RockTenn a letter detailing its findings from the requested SAC credit review to determine and confrm RockTenn's site-specific SAC credits. MCES made the determination that it had been miscalculating such eredits for the past 10 years. MCES stated it had erroneously reported a potential grandpazent credit and that the corrected "modified SAC Baseline is 5,970 Units: ' 6. In May 2009, RockTenn wrote to MCES challenging its revised SAC credit deternunation and providing explanation and documentation supporting its posifion that 18,183 SAC credits were a�ailable because of permanent process changes made over the years by RockTenn. On June 8, 2009, MCES made a final agency decision rejecting RockTenn's position and reaffirming its February 2009 determivation that only 5,970 site-specific SAC credits are attributable to RockTenn's operations. In response to a request by RockTenn for reconsideration of its final decision, MCES agreed to meet with RockTenn on August 5, 2009, at which time RockTenn submitted addifional historical documents conceming wastewater discharges and permanent process changes that it had implemented. J� i�o� 7. On August 7, 2009, within 60 days of MCES' s final agency decision as required by law, RockTenn filed a petition for writ of certiorari in the Minnesota Court of Appeals, seeking judicial review of MCES's finai aaency decision (the "Appeal"). The Appeal is currenfly pending before the court of appeals. 8. On August 13, 2009, MCES denied RockTenn's request for reconsideration and advised that it intended to stand by its final decision that RockTenn has 5,970 SAC credits and not 18,183 SAC credits. 9. The Parties recognize the MCES has announced a change to its SAC Procedure Manual, which wilI become effective January 1, 2010 that will preclude additional city-wide credits and site-specific credits after December 31, 2009. Therefore, tune is of the essence in resolving the SAC credit dispute and it is in the best interests of both Parties to take a11 reasonabie and prudent action to save and preserve any and all rights the Parties may have under the current SAC policy to effectuate the assignment of site-specific 5AC credits attributable to RockTenn's operations to the City for City-wide use. Such reasonable and pmdent action includes, but may not be limited to, seeking a stay of MCES's final agency decision on the SAC credits from MCES and, 3n the event such stay request is denied, from the Minnesota Court of Appeals (the "Stay"). This action will be undertaken solely by RockTenn and the City will not be a party to or provide legal services towazd the action. dy �ao� T7NDERSTANDIN& OF THE PARTIES VJHEREFORE, based upon the above Preliminazy Statement of Facts, which is incorporated into and made a part of this Understanding, the City and RockTenn expressly understand as follows: 1. The Parties recognize that a favorable outcome of the Appeat will be mutually beneficial to the City and RockTenn. Accordingly, RockTenn shall continue to employ the considerable time and resources it has already eapended in prosecuting the Appeal. 2. The City shatl provide its continuing cooperation with RockTenn in connection with the Appeat and the Stay request, in RockTenn's effart to ensure that the current SAC policy shall continue to govem the SAC credits that aze determined to be auailable as site-specific SAC credits arising from RockTenn's operations. 3. Upon the conclusion of the Appeal and the final deteruiination of the number of site- specific SAC credits available as a result of RockTenn's operations, the Parties shall review the result If excess SAC credits are available, the City shatl resume its 2009 request to MCES, seeking an assignment to the City for City-wide use, of RockTenn's site-specific SAC eredits. The ParGies agree t�at the assignment requested by the City sY�all consist of all site-specific SAC credits over and above the approximately 4,000 SAC credits that RockTenn requires for current and future operations (the "Assigned Credits"). 4. In the event SAC credits are assigned to the City £or City-wide use, City agrees to compensate RockTenn at the rate of 50 percent of the Base SAC unit charge at the time of the use of any of the Assigned Credits. Compensation will be paid as credits are used. In the event SAC credits aze assigned to the City for City-wide use, the City agrees tA give priority to the use of the Assigned Credits over any other City-wide SAC credits and 0 Or �ada� agrees to use the Assigned Credits before using any other City-wide SAC credits, so that compensation to RockTenn will not be delayed. 6. The adminishation of the City shall prompfly and in good faith take all action necessary to effectuate the understandings and ageements stated in this MOU by seeking whatever approvals are legally necessary to allow the City to fulfill the obligations contained in tbis MO�J. 7. In the event that MCES changes its rules, policies or procedures in a manner that impaus or eliminates the use of the Assigned Credits, the City's obligation to compensate RockTenn for the Assigned Credits shall cease. WHEREFORE, the Pazties to this MOU, intending to be legally bound, execute this document as of the date first stated above. WALDORF CORPORATION dlbta ROCKT �ANY By: Its: CTTY OF ST. PAUL � By: 'e7�,�.�.. >., , ,.� BY. Its: I�� Mayor Director, Office of Financial Services Approved as to form: � � Ass taut City Attomey