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97-215(�' i�'° E? a i r�•, ��'a 1 ;,,F {�E; `w%6 � .F �. Presented By Referred To Council File # ` ` � Z ` c J � L � � Green Sheet # 7 b � RESOLUTION CITY OF SAINT PAUL, MINNESOTA „ Committee: Date 2 3 4 5 6 7 WHEREAS, the University of Minnesota ("University") is the current owner of the former Schnitzer Metal Scrap Izon property ("property"), a portion of which is located in the City of Saint Paul; and WI�REAS, a significant part of the properry became contaminated during ifs former operation as a salvage yard, with this part of the property now being listed on the Minnesota superfund list by the Minnesota Poilution Control Agency ("MPCA"); and WHEREAS the MPCA has identified the University and the City of Saint Paul, along with numerous other parties as potential responsible parties at the property; and WHEREAS the University has obtained approval of a Revised Response Action Plan fram the MPCA and has additionally proposed a Response Order by Consent which obliges the University, the City of Saint Paui and the City of Minneapolis to clean up the property; and WHEREAS, the University and St. Croix Partners, LLC, an aff liate of Hubbard Broadcasting, have entered into a Purchase Agreement for the property; and WHEREAS, St Croix will develop an office building, producrion studio or other unprovements on the property, thereby contributing to the employment and tax base of the City of Saint Paul; and WEIEREAS, the Housing and Redevelopment Authority of the City of Saint Paul ("HRA") is negotiating with St. Croix to enter into a development agreement to assist in the development of the property; and WHEREAS, the I3RA gave preliminary approval for fmancial participation in the development of the property in I�tA resolution 96-10J9-8; and WI�REAS, the City of Saint Paul and the other parties are desirous of cleaning up the property, facilitating the private development of the property, and settling their respective financial contributions, as potentially responsible parties, to the environmental remediation of the property: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 1 NOW THEREFORE BE IT RESOLVED, that the proper City of Saint Paul officials 2 are hereby authorized to execute a FINANCIAL ASSiIRANCE AND SET"TLEMENT q`�'Z�' 3 AGREEMENT BETWEEN LJNIVEI2,STTY OF MINNESOTA, CITY OF SAINT PAUL, 4 AND HOUSING AND REDEVELOPMENT AUTHORITY OF TI� CITY OF SAINT 5 PAIJL, in substantial conformity with the copy attached hereto; and 6 BE IT FURTHER RESOLVED, that the proper City of Saint Paul officials are hereby 7 authorized to execute a RESPONSE ORDER BY CONSENT in substautial conformity with the copy attached hereto. Requested by Department of: Adopted by Council: Date �� S,� `�� Adoption Cer[ified by Council Secretary By: Approved by Mayor: Date ay: ` t - G (JVI d Go Ji O%t i �- � C-lJ-$ LO ln�L�� By: �/y�� Form Appr ed by City At orney By� � . by Mayor for Submission to B _ % � �/ � �sh —��-����s ����� OATEINITIATED GREEN SHEET �� r ]�` OEPAftTMEN701RECTOR A �CT'COUNCII ?�'� ��\ NUY18ERFOR �CT'ATTORNEY �� OC[TYCIERK NOUTING � BUDGET DIRECTOR � FIN. & MGT. SEqVICES DIR. � OROER MAYOfl(OAASSISTANn �C�//.K�/L��p.s I. (CLIP ALL LOCA7fONS FOR SIGNATOREj REQUE5iED: G,` ��r C a�n r. c, L �c �i �Yt �'d O�-pe°i e�`� !— ��Si°Qri S� d l-�2�y� ,�jy C6hS3n�' '� _ �`u _ . _ . , e-., -f-a-., _ . 3.h � .SL.Rm 3t7 r (�h�!!'v� �p� PERSONAL SERVICE CONTRAC7S MUST ANSWER THE FOLLOWING OUESTIONS: 1. Has Mis pe(sonflirm evet wwketl under a contract fof this departmflnt? YES NQ 2. Has this perso�lfirm ever heen a C�ry employee? YES NO 3. Does this personlFirm possess a skill not normally possessed by any current city employee? YES NO Ezplain all yes answers on separate sheet entl attach to green Sheet RECOMMENDATIONS: Approve (A) or Rejecl _ PLANNiNG COMMISSION _ ( _ CIB CAMMfTTEE _ _ _ STAFF _ _ _ DISTRICT COURT _ , $UPPOFtTS WHICH COUNCILO&IF_CTNE2 .....�....., . ......_�.... ..,...._, ,,. . _....,.... . �...._. . .._.� ......... ......._. ...,,,. St�c h �o�c c�.,2,_a.n -f�r th-� 1��..�bv� �� -RXr��s io�i, �� ✓�: a c.t tl-� o r;�.-+� 1 a_ q'� 9'� , JQra� � c�' s ,- � s-- �e � � u..� i �'%-t � L� e. y? �— vy� i �Vdh� Council ResQarch Center P. �U 3J.�id �r CJ f�e c'�`� � 6� S� 0 Z`� S' fGC r'Z� , TOTAL AMOUNT OF TRANSACTION COSTlREVENUE BUDGETEp (CIRCLE ONE) 0-n � �S � Jc �-j �'h�L YES NO , �G FUNDIfiG SOURCE ACTIVITY NUMBER FINANCIAL INFORHiAT10N: (EXPLAIN) �� a�-a�s FINANCIAL ASSURANCE AND SETTLEMENT AGREEMENT BETWEEN UNIVERSITY OF MINNESOTA, CITY QF SAINT PAUL, AND HOUSING t1ND REDEVELOPMENT AUTHORITY OF THE CTTY OF SAINT PAUL I. PiJRPO5E WHEREAS the University of Minnesota ("University") is the current owner of the former Schnitzer Metal and Scrap Iron property ("Schnitzer Property° or 'Progerty"), a portion of which is located in the City of Saint Paul ("Saint Paul Portion"); WHEREAS a significant part of the Schnitzer Property became contaminated during its former operation as a salvage yard, with this part of the Property now being listed on the Pezmanent List of Priorities for the state of Minnesota and identified by the Minnesota Pollution Control Agency (°MPCA") as the "Schnitzer Site" or "Site"; WHEREAS the MPCA has identified the University and the City of Saint Paul ("City"), along with numerous other parties, as potential responsibie parties (°PRP's") at the Site; WHEREAS the University has obtained approval of a Revised Response Action Plan ("RRAP") dated September 16, 1996 from the MPCA in a letter dated November 14, 1996, as amended in a Response Action Summary letter to the MPCA dated December 27, 1996, (taken together the RRAP and the Response Action Summary, along with any amendments 336208.$ 1 �t�-ats thereto as required by the MPCA, constitute the "Approved RRAP") and has additionally proposed a Response Order by Consent ("Consent Order") which obliges the Remediating Parties identified therein to clean-up the Site to an unrestricted use status in accordance with the Approved RRAP; WHEREAS the University and St. Crois Partners, LLC ("St. Croix") have entered into a Purchase Agreement dated 3anuary 23, 1997, whereby St. Croiaf has agreed to , purchase the entire Schnitzer Property from Yhe University contingent upon the MPCA issuing a Certificate of Compietion once the Approved RRAP is fully implemented; WHEREA5 upon ohtaining title to the Schnitzer Property, St. Crouc will develop an o£fice building, production studio or other improvements on the Properiy, with certain of these improvements being on the Saint Paul Portion, thereby contributing to the employment and tax base of the City; and WHEREAS the University and City are desirous of cleaning up the Schnitzer Property, facilitating the private development Qf the Property and settling their respective financial contributions, as PRP's, to the environmental remediation of the Site: NOW, THEREFORE, BE IT RESOLVED THAT THE PARTIES HERETO AGREE AS FOLLOWS: 336208.8 2 ��-a�s n. CTPY AND HRA OBLIGATIONS A. The City and the Housing and Redevelopment Authority of the City of Samt Paul ("HRA") will enter into a development agreement (the "Development Agreement") with St. CroiY by March 12, 1997 that will assure that upon satisfaction of the Tas Increment Financing Conditions described in section II, D below that (i) the construction of buildings and other structures on the St. Paul Portion having a market value of at least $2,500,000 will be completed by January 1, 20Q0 and (ii) the minimum market value of the St. Paul Portion will be at least $3,150,000 by January 1, 2000. The Development Agreement will further require St. Cro"v� and Hubbard to sign an assessment agreement with the City to secure payment of tases on improvements and land value having a minimum market value of $3,150,000 on the St. Paul Portion. B. The HRA has obtained a contamination remediation grant in the amount of $1,089,500 from the Minnesota Department of Trade and Economic Development ("DTED") and has obtained, jointly with the Minneapolis Community Development Authority ("MCDA"), a grant in the amount of $1,275,001 from the Metropolitan Council under the Livable Communities Act Program ("LCAP"), such grant monies to cover a portion of the cost of soil remediation in accordance with the Approved RRAP. The LCAP grant will be allocated as follows (i) $910,SD0 to the St. Paul Portion; (ii) $125,051 to the Minneapolis Portion; and (iii) $239,450 to the adjoining Watkins property. Additionaliy, the MCDA has obtained a DTED grant of $397,790 of which $324,605 will be allocated for the clean-up of 336208.8 3 ��-a�s the Watkins property and the balance of $73,185 to the Minneapolis Portion of the Schnitzer Property. To the extent that the full amount of the MCDA's DTED grant or the LCAP grant allocation for the Watkins properry are not necessary for cleaning up the Watkins properiy, the unspent amount will be allocated to the Minneapolis Portion of the Schnitzer Site. The HRA will commit up to $404,196 in local match monies in order to receive these grants. Similarly, the MCDA wili contribute $84,000 in loca] match monies. In aggregate, the DTED and LCAP grants for the Schnitzer Site, including any rollover monies from the Watldns property, along with the HRA and MCDA local match monies, are hereinafter refened to as the "Grant" or "Grant Monies." C. Subject to requirements of the DTED and LCAP grant programs, and Section III(C) of this Agreement, the HRA and City wiil make the Grant Monies immediately available to pay for Approved Costs as defined in Section II(D) below. The I�RA will administer the DT'ED and LCAP grants for the Minneapolis Portion on behalf of the MCDA. D. The HRA has commenced and will diligently continue to follow the proceedings required to create (a) a"soils correction" taY increment financing district pursuant to Minn. Stat. §469.174, subd. 19, and a hazardous substance subdistrict pursuant to Minn. Stat. §469.175, subd. 7, on the Saint Paul Portion of the Schnitzer Property (the "Soiis Condition District") and (b) a(i) "renewal and renovation" t� increment district pursuant to Minn. Stat. §469174, subd. 1Q(a) covering the Saint Paul Portion of the Schnitzer Property and the Saint Paul portion of the property and commoniy referred to as 336208.8 4 �t't -a�S the "Watkins Property" bearing parcel identification number 29-29-23-32-001 and two parcels in Saint Paul cunently owned by St. Croix or affiliates bearing parcel identification numbets 24-24-23-32-0017 and 29-29-23-32-0018, and (ii) a hazardous substance subdistrict covering the Schnitzer Property (collectively the "Renewal and Renovation District"). If Minn. Stat. §469.176, subd. 4j is amended in the 1997 legislative session to clarify that hazardous substance remediation as an eligible cost to be paid from tas increments (the "Amendment"), the City will, subject ta the Tas Increment Financing Conditions (as hereinafter de�ned), request the County to certify the Renewal and Renovation District. If the amendment is not passed by the state legislature, the City wil] request the County to certify the Soils Condition District subject to tfie Taac Increment Financing Conditions. Taac increments from the taY increment district so certified (the "TIF DistricY') wiil provide taY increment funds for remediat3ng the contamination on the Saint Paul Portion; provided that nothing herein shall obligate either the City or the HRA to approve said TIF District and the amended project redevelopment plan and tas increment financing plan therefor (collectively the °Ta�c Increment Financing Conditions"). Tas increment will be collected from the TIF district through December 31, 2009. E. Upon satisfaction of the Ta7c Inctement Financing Conditions, the HRA wiil issue and deliver to the University a special obligation ta�cable Ta�c Increment Revenue Note ("Note") with simple interest at 3% per annum, in the principal £ace amount of $3,500,000. The principal balance of the Note shall at all times equal the sum of all principal advances made under the Note to reimburse the University for "Approved Costs" as hereinafter 336208.8 5 a� -�.�.s defined, less the portion thereof paid as hereinafter provided. No advances shal] be made under the Note unless and until all available Grant Monies and any monies collected from PRPs and not used for other purposes (see, e.g., Section V(D) and (E) below) have first been applied to pay, or to reimburse the University for, all Approved Costs. The principal balance of the Note shall be deemed paid when and to the extent any PRP monies are applied towards reimbursement of the University's Approved Costs. "Approved Costs" as used herein are actual costs paid by the University since January 1, 1996 in investigation, preparation, procurement and implementation of the Approved RRAP, including MPCA fees, engineering consulting costs and legal fees paid by the University for negotiations with the MPCA, along with other eligible costs agreed to by the Parties to this Agreement. The Approved Costs will be allocated on a five sixths - one siYths basis between the St. Paul and Minneapolis Portions, respectively, such that the HRA share will be five-sixths of the total Approved Costs for the Site ("Saint Paul Costs"). The Note shal] have a term which commences upon issuance of the Note and a final maturity date of December 31, 2009. It shall be payable solely from and be secured by a pledge of (i) all tas increment revenue derived from the TIF District and (ii) any payments made by St. Croix or Hubbard Broadcasting, Inc. in lieu of such tas increment proceeds under the Develapment Agreement (collectively "Pledged Monies"). In the event that the principal balance of the Note, including interest accrued thereon at 3% per annum, is not fully paid within eight (8) years of the effective date of the Note, the simple interest at 6% per annum shall accrue on any balance remaining thezeafter. 336208.8 6 �� -�.�.5 F. Advances for Saint Paul Costs shall be deemed to be made under the Note and interest shall commence to accrue on the advances on the later of (i} the date on which the Note is issued and (ii) the date on which Approved Costs (allocated on a five si�rths - one siacths basis between the St. Paul and Minneapolis portionsj, not reimbursed by Grant Monies or monies collected from PRPs, are paid by the University, as documented by the University to the reasonable satisfaction of the HRA. The principal balance due under the Note and interest due thereon shall be paid semi-annually. Interest shall be deemed due only to the eactent of available Pledged Monies which shall be applied first to pay interest. Principal shall be deemed due if and to the eactent (i} the underlying advance has been documented as provided above and (ii) Pledged Monies not required to pay interest are available therefore. Upon eapiration of the term of the Note all obligations to repay the Note and interest thereon shall terminate. G. The University's obligations, as set forth herein, are contingent upon the HRA Board of Commissioners approving the Soils Condition District, the amended project redevelopment plan and the tax increment financing plan, all as referenced in Section II(D) herein as the T� Increment Finanaing Conditions, and taking all other action necessary to provide the tas increment assistance contemplated by Section II(D), (E) and (F) of this Agreement. A public hearing is presently set for March 12, 1997 on the Tax Increment Financing Conditions for the Soiis Condition District and the HRA staff will use its reasonable best efforts to have formal action taken at such meeting. In the event action is not taken by March 26, 1997, on the Soils Condition District, or negative action is taken by 336208.8 7 q�-a�.s or before March 26, 1997, on the Soils Condition District, the University shall be fully and completely released from its obligations under this Agreement. H. The University acknowledges that the City's and HRA's capacity to fulfill their obligations hereunder can be modified, in whole or in part, by Yhe passage of legislation by the Minnesota State Legislature and further acknowledges that the City and HRA will then be obligated only to the eictent that the t� increment assistance contemplated hereunder can be legally provided by the City and the HRA. I. The City wiil permit the stock-piling of contaminated soil within the TIP District, if necessary and subject to applicable MPCA regulations, in order for the University to e2cpedite the remediation of the contamination so as to allow the earliest development of the Property reasonably achievable. TII. UNIVERSITY OBLIGATIONS A. The University will be responsible for administering the clean-up of the entire Schnitzer Property, including the St. Paul Portiory in accordance with the Approved RRAP. B. The University has advanced funds for developing and procuring approval of the Approved RRHP and will continue to advance funds necessary to fully implement the RRAP and to fulfili all obligations of the Response Order By Consent. Such advances will occur unless and until Grant Monies or contributions from PRP's at the Site are available to make payment toward such eacpenditures. The University will be reimbursed for the advancement of these funds, to the e�ent possible and allowable, from (i) the Grant Monies, 336208.8 8 °l�•a� (ri) contributions, if any, from the PRPs at the Site, and (rii) if necessary, tas increment subject to the limitarions in Sections II (D), (E) and (F) of this Agreement. The University's obiigation to advance all funds necessary to fully implement the Approved I2RAP and to fulfill all obligations of the Response Order By Consent, however, is not limited by the amount of Grant Monies received or the amount of tax increment generated. The HRA staff agrees, in the event that the University advances funds that are in excess of the estimated clean-up costs for the Saint Paul Portion as set forth in the DTED and LCAP grant applications ($3.5 miliion), to consider submitting further grant applications in an amount sufficient to reimburse such excess eJCpenditures. C. The University will submit to the HRA evidence of advances for Approved Costs prior to the disbursement of Grant Monies and the certification of advances against the Note. Grant Monies will be disbursed by the City on a monthly basis for Approved Costs that are eligible for reimbursement in accordance with DTED and L.CAP requirements. For purposes of disbursing the Grant Monies, allocation between the St. Paul and Minneapolis Portions shall be on a five svtths-one siYth basis, respectively, up to the maximum amount of the Grants available for each Portion. PRP monies, if any, will be allocated and disbursed as set forth in Section V(D) and (E) of this Agreement. TaY increment, if any, will be disbursed in accordance with Section II(D), (E) and (F) of this Agreement. D. The University will administer the clean-up of the Site in a cost effective manner and in accordance with the Approved RRAP through its environmental consultant, 336208.8 9 q�-a�s PEER Environmental, Inc. or such other consultant selected and retained by the University. Upon completion of the remediation, the University will seek a Certificate of Completion from the MPCA pursuant to Minn. Stat. §115B.175 and a Notice of Compliance from the MPCA in accordance with the Response Order by Consent. E. The University will establish and administer an escraw account to facilitate receipt of settlement payments by de minimis PRP's which enter into a Consent Order with the MPCA ("De Minimis Account"). The University will authorize disbursement of monies from the De Miraimis Account as required pursuant to Section V(D) below. The University will provide the HRA with a report on the status of the De Minimis Account on a monthly basis, or on such other frequency as the Parties mutually agree. F. The University will establish and administer a second escrow account to facilitate receipt of monies received from settlements with, or judgments against, non-de minimis PRP's ("Non De Minimis Account"). The University will authorize disbursement of monies from the Non-De Minimis Account as required pursuant to Section V(E) below. The University will provide the HRA with a monthly report on the status of the Non-De Minimis Account, or on such other frequency as the Parties mutually agree. G. Pursuant to Section V(C) below, the University will use reasonable best efforts to pursue and obtain settlements with, or judgments against, Non De Minimis PRP's and to deposit the contributions received thereby into the Non-De Minimis Account. H. The University will convey title to the Property to St. CroiY once a Certificate of Completion has been issued by the MPCA. In the event St. Croix does not purchase the 336208.8 10 9� -z.�,s Property and the University finds another buyer reasonably acceptable to the HRA, this agreement may be amended upon mutual agreement of the Parties. I. The University will be solely responsible for the obligations imposed by Part XVI ("Hoid Harmless Agreement") of the Response Order By Consent. J. The University wiil obtain, through its environmental consultant, general liability insurance as required by Part XX of the Response Order By Consent. K. The University will request that the MPCA offer a de minimis settlement to appropriate parties immediately after execution af the Response Order by Consent by the University and the City. IV. JOINT OBLIGATIONS A. The University and City will both sign the proposed Response Order By Consent with the MPCA, as attached hereto as EYhibit A or as reasonably modified by the MPCA. B. The City, HRA, and University will cooperate with one another in negatiations with or in seeking approval from all necessary entities and parties, including the MPCA, the City o£ Minneapolis, Ramsey County, the PRP Group and other PRPs, Hubbard Broadcasting Company and St. Crois. 336208.8 11 a� -ats v. SETIZEMENT A. The Parties agree that the fulfillment of the above-identified obligations by each of the respective Parties shall constitute good and sufficient consideration in full satisfaction of each Party's contribution toward the remediation of the Schnitzer Site. B. The Parties further agree that the Response Order By Consent embodies a "settlement" as that term is used in Section 113(f)(2) of CERCLA, 42 U.S.C. §9613(fl(2), as amended, and that as Remediating Parties, the Parties are entitled, with respect to the Schnitzer Site, to contribution protection from any person not a party to the Consent Order to the e}rtent provided by Section 113(f)(2)(3) of CERCLA, 42 U.S.C. §9613(�(2)(3), as to matters addressed in the Order. C. To the e}rtent it has legal standing to do so, the University wiil use its reasonable best efforts to pursue cost recovery claims of the HRA, City, University, MCDA and City of Minneapolis, pursuant to Minn. Stat. §§115B.01 to 115B.24, the Minnesota Environmental Response and Liability Act ("MEI2LA"). The HRA and City will cooperate with and assist the L3niversity to the extent they are reasonably requested by the University to do so. "Reasonable best efforts" means seeking a judgment or settlement up to the point when competent environmental counsel advises the Parties that the costJbenefit associated with further eapenditures is not reasonably justi£iable. If the Parties disagree as to the appropriateness of the determination, the Parties agree to submit the matter to binding arbitration utilizing an arbitrator selected by the American Arbitration Association and who 336208.8 12 �� -a�.s is knowledgeabie in the area of environmental law, including PRP legal responsibilaty under MERLA. The Parties may request the Attorney General's assistance, as needed. D. Monies from the De Minimis Account will be disbursed, first, for payment to the MPCA in the amount required by part XIX of the Response Order by Consent; second, for payment to the City of St. Paul in an amount up to $320,000 to reimburse the City of St. Paul for a portion of its local match contribution; and third, to reimburse the University for unreimbnrsed Approved Costs, with a corresponding reduction in the Note principal after payment of any accrued interest thereon, to the eatent such costs have been submitted and certified as an advance against the Note. For purposes of this Subparagraph only, the term "Approved Costs" does not include legal fees paid by the University for negotiations with the MPCA. E. Amounts recovered from non-de minimis PRPs pursuant to cost recovery action undez MERLA or through negotiation shall be deposited in the Non-De minimis Account and allocated in the following order: (i) To reimburse the University for legal and other costs it incurs from the date of this Agreement forward that are associated with the pursuit of settlements with, or judgments against, PRP's; (ii) To reimburse to the City of 3t. Paul the balance, if any, of the $320,000 not recovered and paid from the De minimis Account; (iii} To reimbuzse, on a pro rata basis, the City, HRA and the University for Approved Costs not otherwise reimbursed from the De minimis Account or any grant or local match monies provided by the HRA or MCDA or covered by tas increment notes issued by the HRA or MCDA, with a corresponding reduction in the notes principal after payment of any accrued interest thereof, in the event such costs, or a portion thereof, have been submitted and certified as advances against the notes. For purposes of this subparagraph E 336208.8 13 q� -a �s (iii) only, Approved Costs shall include the City's, the FiRA's and the University's legal fees and other unreimbursed out-of-pocket costs associated with the negotiation of this Agreement and negotiations with the remediation contractor; (iv) To reimburse the Universify for advances for Approved Costs it has made against the tu� increment notes issued by HRA and MCDA not otherwise previously reimbursed (allocated between the St. Paul and Minneapolis Portions on a five sixths - one siarth basis, respectively) with a conesponding reduction in the Note principal, after payment of any interest accrued thereon; (v) To reimburse on a pro rata basis: a. the City for the balance of its local match contribution ($84,196); b. the MCDA for its local match contrihution of $84,000; and c. the University for the difference between the amount of interest which would have accrued on the tas increment note issued by the HRA and MCDA at a rate of 6% and the interest accrued at a rate of 3% for the first eight (8) years of the Note; and (vi) To reimburse the DTED and LCAP grants as set out in the respective applications for such grants. F. The City and HRA's performance of their obligations hereunder shall not associate the C�ty and the HRA with contamiiiation at the Schnitzer Property. \i/!I GENERAL FROVISIONS A. The term of this Agreement shall commence with its signing by duly authorized representatives for ail the Parties and terminate with the termination of the Tax Increment Note or issuance of a Notice of Completion under Sections XXIII and XXVIII of the Response Order by Consent whichever occurs later. 336208.8 ' 14 qZ -� tS B. In the event that any term or provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest elctent permitted by law. C. No modification of this Agreement, except as otherwise provided herein, shali be binding upon the Parties unless made in writing and executed on behalf of each Party by a duly authorized representative. D. The captions in this Agreement aze for convenience only and shall not constitute a limitation of any terms. E. All notices required hereunder shall be deemed given when deposited in the United States mail, first class postage prepaid, and addressed to the other Parry at the address set forth below or at such other address as may be hereinafter designated in writing by any Party to all other Parties: City of Saint Paul: Mr. Charles Armstrong Finance Department Room 140 City Hall 5t. Paul, MN 55102 Housing and Redevelopment Authority of the City of Saint Paul: Mr. David GontarQk Planning and Economic Development 1300 City Hall A.nnex 25 West Fourth Street St. Paul, M1V 55102 336208.8 15 q�-ats F University of Minnesota: Mr. Paul Tschida Assistant Vice President Safety & Health Management University of Minnesota Room 310 TSB 511 Washington Avenue S.E. Minneapolis, MI3 55455 This Agreement shall be interpreted in accordance with and governed by the Laws of the State of Minnesota. University of Minnesota By its: City of Saint Paul By its: City of Saint Paul By its: Housing and Redevelapment Authority of the City of Saint Paul By its: .�' Approved as to form: Attorney for the Universiry of Minnesota Approved as to form: c � As 'stant City Attorney of Saint Paul 336208.8 16 � �� -ats �� � .. STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY In the Matter of Response Actions Ilnder the Minnesota Environmental Response RE5PONSE ORDER and Liability Act, Minn. Stat. § 115B.01 BY CONSENT to 115B.24 at the Schnitzer Iron and Metal Company Site. Based on the information available to the parties on the effective date of this RESPONSE ORDER BY CONSENT 9R-B�, and without triai or adjudication of any issues of fact or law, TT IS HEREBY ORDERED AND AGREED: I. Jurisdiction This RESPONSE ORDER BY CONSENT ("Order'� is issued pursuant to the authority of the Minnesota Pollution Control Agency ("MPCA") by the Minnesota Environmental Response and Liability Act ("MERLA"), Minn. Stat. § 115B.01 to 115B.24 and by Minn. Stat. chs. 1 I S and 116. A. On the basis of the information siunmarized in the Statement of Facts, �, and MPCA files and records, the MPCA has determined that (1) the Schnitzer Iron and Metal Company Site ("Schnitzer Site" or "Site"), a former metal recycling facility located at 2703 Territorial Road in St. Paul, Minnesota, constitutes a facility within the meaning of Minn. Stat. § 115B.02, subd. 5; (2) one or more substances found at the Schnitzer Site are hazardous substances within the meaning of Minn. Stat. § 1 l SB.02, subd. 8; (3) there have been one or q� -a�s more releases or threatened releases, and continue to be releases or threatened releases, within the meaning of Minn. Stat § 11 SB.02, subd. I5, of these hazardous substances; (4) with zespect to the releases or threatened releases &om the Schnitzer Site, the University of Minnesota, the City of St. Paul, Minnesota, and the City of Minneapolis, Minnesota (the "Remediaring Parties"), are responsibie persons within the meaning of Minn. Stat. § 115B.03; (5) the actions to be taken pursuant to this Order aze to protect the public health and weifare and � _i� • .- � �.��'� � .� � ..' s ..t. . - .� �.- _�� �� � t . • .� - J� )- v.� .J� U_.1 . : �� � . - ' �- •� � beginning and completing the actions required by this Order are reasonable. B. In signing this Order, the Remedaating Parties aze settling a disputed matter between the MPCA and the Remediating Parties. The Remediating Parties do not admit, and rstain the right to contest in any proceeding, other than a proceeding to implement or enforce this Order, the validity of any determinations made in Paragraph A of this Part by the MPCA. The Remediating Parties specifically agree to undertake all actions required of them by the tenms and conditions of this Order within the rime frames specified herein. The MPCA shall not be required to prove the determinations made in Paragraph A in any action to enforce this Order or any remedy under this Order, except that a Commissioner's order issued under Part VIII of this Order (Reso]ution of Disputes) is subject to judicial review as provided in Part VIII, Pazagraph C with respect to whether response actions required by the Commissioner's order aze reasonabie and e� necessary. Nothing in this Pazagraph shall relieve the MPCA Commissioner of the burden to show, in any action to recover costs under Part XIX of this Order (Recovery of Expenses) that the costs incurred were reasonable and necessary. q� -a�s u. ►� � ��� Uniess otherwise e�cplicifly stated, the definitions provided in Minn_ Stat. § 1 I SB.02 shall conh�ol the meaning of the terms used in this Order. III. ' • �e_ � Ttris Order shall apply to and be binding upon the following parties: A. The University of Minnesota ("University'�; B. The City of St. Paul, Minnesota; C. The City of Minneapolis, Minnesota; and D. The Minnesota Poilution Conuol Agency. The parties identified in A-C above aze sometimes hereinafter collectively referred to as the "Remediating Parties." iv. Statement of Facts For the purposes of this Order, the following constitutes a summary of the faets upon which this Order is based. None of the facts related herein shali be considered admissions by any party with respect to any person not a party to this Order or to any ptoceeding other than a proceeding to implement or enforce this Order. A. T'he Schnitzer Iron and Metal Company Site is located at 2703 Temtorial Road in St. Paul, Ramsey County, Minnesota, in the Northwest quarter of Section 29, T29N, R23 W and a� -a�s in the City of Minneapolis, Hennegin County, Minnesota, in the Northeast quarter of Section 30, T29N, R23 W. A map of the Schnitzer Site is attached as E3chibit 1. B. The industrial activities at the Schnitzer Site consisted of general scrap metal recycling. Primary activities involved the salvage, cutting, baling, and shipment for regrocessing or reuse of iron and steel in various forms. During certain periods of operation at the facility, automobiles were crushed and recycled. Scrap was acquired intemuttently from electric utilities and used electric uansformers were processed by removal of the contents and cutting up of transformer casings. Lead battezies were accumulated on-site and were recycled and/or resold in bulk for reprocessing. Some cleazung solvents were used during operation of the Schnitzer Site. Both above-ground and below-ground fuel storage tanks were found on the Schnit2er Site. The general industrial activities were catried out for approximately 50 years and ended in 1983, although certain specified activities were carried out for more limited periods. C. In November 1986, pursuant to Minn. Stat. § ll SB.17, subd. 13, the MPCA listed the Schnitzer Site on the Permanent List of Priorities ("PLP") with a preliminary Hazard Ranking System ("HRS I") score of 10.46. D. In 1987, the Liquidating Trust for Schnitzer Iron & Metal Company ("Schnitzer") entered into a Response Order by Consent with the MPCA (" 1987 Order"). The persons who owned the land at the time were also signatories to the 1987 Order buY were parties to and bound by that Order oniy with respect to the provisions conceming access and conveyance of title. The 1987 Order required Schnitzer to: complete a Remedial Investigation ("RI") of the Schnitzer Site to determine the extent and magnitude of the Site contamination; conduct a Feasibility Study ("FS") to evaluate options which could be used in remediating the Site contamination; propose a a�-a�s I. Pursuant to Minn. Stat. § I I SB_ 17, Subd. 14, the University has submitted to the MPCA Commissioner (or the Commissioner's delegee ), and the MPCA Commissioner (or deIegee ) has reviewed and/or approved: Several remedial investigation reports setting forth information about the nature, scope and extent of the releases and threatened releases at and from the Schnitzer Site; 2. Letters and other written communication regarding the desired cleanup of the Site from the community perspecrive and pmposals conceming the proposed development for the Site. 3a A Pre-Cleanup Investigation and Focused Feasibility Study Report dated September, 1996 setting for[h the response action alternatives; and 4. A Response Action Plan ("RAP") dated Augvst 9, 1996, and a Revised Response Action Plan ("RRAP") dated September 16, 1996 for the Schnitzer Site setting forth the response actions reasonable and necessary nursuant to Mann. Stat. § 115B.17. subd. 2a to respond to the releases and threatened releases to protect the u i kr�an health and welfare and the environment and to allow development of the �ro,oertv_. Each of the documents referenced in subparts 1-4 is incorporated herein in its entirety by reference. By letter dated November 14, 1996 (Exhibit 2) the MPCA approved the RI2AP q�.a �.S RAP for the selected remedial action(s); and finally, implement the RAP resulting in fina] cleanup of the Schnitzer Site. Schnitzer has failed to fulfill its obiigations under the 1987 Order. E. Investigation of the Schnitzer Site, which began in March 1985, identified surface soil contamination with lead and with polychlorinated biphenyls (PCBs). Soil borings found lead and PCB's at various depths tested, with the highest concentrations being found in surface soils. Ciround water monitoring wells installed in February 1986 indicated the absence of PCBs or lead in the ground water samples. In 1987, field studies conducted by Schnitzer Iron and Metal Company found: small areas contained PCB levels in excess of 25 parts per million (ppm); PCB concentrations significantly declined with depth in the soils and total lead concentration in the soils exceeded 1,OOQ ppm in portions of the Site. F. On August 31, 1987, the University and the ScYanitzer Liquidating Trust entered into a Purchase Agreement for the Schnitzer Site. The Purchase Agreement obligated the Liquidating Trust for Schnitzer Iron and Metal Company to fully implement the above- mentioned 1987 Order. The University is the curtent owner of the Schnitzer Site. G. A cost analysis evaluating the various cleanup options was prepared by the Universiry's consultant, Peer Environtnental & Engineering Resources, Inc. ("Peer Environmentai") and submitted to the MPCA on Mazch 23, 1945. A conceptual RAP was submitted by Peer Environmental to the MPCA on August 8, 1995. H. The MPCA alleges that the Remediating Parties and others are "resgonsible persons" under MERLA, Minn. Stat. § 115B.03, Subd. ](a). This Order provides for the carrying out of response actions in lieu of further enforcement proceedings under MERLA. �t� -a�s �. :,, , , :�„ , _ ,,, A. The RRAP for the Schnitzer Site, Na� any tnoclifications approved by the Commissioner or the MPCA Response Unit 3 Supervisor under this Ozder, constiUrte and are hereinafter collectively referred to as the "Approved RAP." B. The cleanup standard incorporated in the Approved RAP for the Site requires all soils containing lead in excess of a median concentration of 400 mg/kg andJor polychlorinated biphenols ("PCBs") in excess of 1 mg/kg to be excavated and disposed at an off-site facility approved for such wastes. ■. • . a��ss�r.s�►� - - - - - - `"�!- --' � . . . �_. �- = - q� -a � �. „� � � � A. The Remediating Parties agree fo implement the Approved RAP in accordance with the Schedule in the Approved RAP or other schedules submitted by the Remediating Parties and agproved by the Commissioner. B. Upon complete implementation of the Approved RAP, the Commissioner agrees to issue a Certificate or Certificates of Completion in accordance with Part XXII herein. C. The Remediating Parties agree to reimburse the MPCA's costs as provided in Part XIX of this Agreement. VII. Review and Ap�roval of Submittals The review of each submittal, document, report or schedule (collectively referred to hereinafter as "Submittal") which is required to be submitted to and reviewed by the Commissioner under this Order shall be as follows: A. The Commissioner shall review each Submittal made by the Remediating Parties that is required to be approved by this Order and notify the Remediating Parties in writing of his approval, disapproval, or modification of the Submittal. In the event the Submittal is approved, it shali become an integral and enforceable part of this Order. If the Submittal is disapproved in whole or part, the MPCA Commissioner shall notify the Remediating Parties in writing and shali explain the amendments or revisions that aze necessary to bring the Submittal into compliance with this Order. In the event the Submittal is modified, the Commissioner shall notify the q�-a� 12emediating Parties in writing of the specific modifications made to the Submitta! and the reasonstherefor. B. Within thirty (3Q) calendaz days of receipt of any notice of disapproval or modification, or on the fust working day thereafter, the Remediating Parties shall; (1) submit revisions to correct inadequacies that led to disapproval; (2) respond to the modifications; or (3) state in writing the reasons why the Submittal, as originally submitted, should be approved. C. If the Remediating Parties fail to make a submission as required by paragraph B or, if the Remediating Parties make such a submission and the parties have not reconciled all issues with respect io the Submittal within thirty (30) days of the submission under paragraph B, the Commissioner shall make final modifications of the Submittal which the Commissioner deems teasonable and necessary to protect public health, welfaze and the environment or to conform to the requirements of this Order. Subject to the provisions of Part VIII (Resolution of Disputes), the Submittal, as finally modified by the Commissioner, shall become an integral and enforceable part of this Order. VIII. Resolution of Disputes A. If a dispute arises as to any part of this Order, any party may initiate dispute resolution by providing to the other parties a written statement setting forth the matter in dispute, the position of the paRy, and the information the party is relying upon to support its position. A' dispute about a final modification of a Submittal shall be initiated within fourteen (14) calendaz days after receipt of the final modification. The other parties sha11 provide a written statement of q� -115 their position and supporting information to the initiating party within 30 days after receipt of the initial statement. B. "T'he pazties shall meet to discuss resolution of the dispute within 14 days after the initiating party receives the statement of position from the responding parry(ies). Any mutually agreeable resolution reached by the parties shall be reduced to writing within 30 days after the meeting of the parties in the fomi of an executed amendment to the Order or in such other form as the parties shall agree to. If no written resolut�on is executed or agreed to within that time, the Commissioner shail issue a written decision to the Remediating Parties resolving the dispute within 45 days after the meeting of the parties. C. If a Commissioner's decision is issued under this Part VIII, it shall become an integral and enforceable part of the Order unless the Remediating Parties commence an action to chalienge the Coznmissioner's decision within 14 days of the date of issuance of the decision. For purposes of judicial review, the Commissioner's decision shaii be considered a final decision of the MPCA. IX. Creation of Da�er If the Commissioner determines that activities undertaken in implementing or in noncompliance with this Order or any other circumstances or activities, aze creating a danger to the health or weifaze of the people on the Schnitzer Site or in the surrounding area oz to the environment, the Commissioner may order the Remediating Parties to stop further implementation of this Order for the period of time needed to abate the danger or may petition a io ��_a.ts court of appropriate jurisdiction for such an order. The Remediating Parties shall comply with the order from the Commissioner upon receipt. G� E��s� __e�� A. i3nless otherwise specified, any Submittals made by the Remediating Parties pursuant to this Order, shall be sent by fust class mail, or tiand delivemd to: Dale Trippier Project Manager Minnesota Poilurion Control Agency 520 Lafayette Road St. Paul, MN 55155-4144 B. Documenu sent to the Remediating Parties shall be addressed as follows unless the remediating parties specifies otherwise: University of Mianesota: City of St Paul: City of Minneapolis: XI. Project Mana�ers A. The MPCA and the Remediating Parties shall each designate a Project Manager for the purposes of overseeing the amplementation of this Order. The MPCA Project Manager is Dale Trippler. The Remediating Parties' Project Manager is Either MPCA or the Remediating Parties may change its designated Project Manager or designate an alternate Project Manager by so notifying the other party in writing. To ihe maximum extent possible, communications between the Remediating Parties and the MPCA concerning the terms and conditions of this Order shall be directed through the Project Managcrs. � �.� .alS B. Each Project Manager shall have the authority to: (1) take samples or direct that samples be taken; (2) direct that work stop for a period not to exceed seventy-two (72) hours if the Project Manager deternunes that activities at the Schnitzer Site may create a danger to public health or welfare or the envimnment; (3) observe, take photographs and make such other reports on the progress of the work as the Project Manager deems appropriate; (4) review records, files and docuznenu relevant to this Order; and (5) make or authorize minor field modifications in the Approved RAP or in techniques, procedures or design utilized in carrying out this Order which are necessary to the completion of the response actions. Any field modifications shall be approved orally by both Project Managers. Within seventy-two (72) hours following the modification, the Project Manager who requested the modification shall prepare a memorandum detailing the modification and the reasons therefore and shall prepaze a memorandum detailing the modification and the reasons therefor and shali provide or mail a copy of the memorandum to the other Project Manager. C. The Project Managers of both parties shall either be on the Schnitzer Site or available on call by telephone during all hours of response action work. The absence of any Project Manager from the Schnitzer Site shall not be cause for stoppage of response action work. XII. Reoorting The Remediating Parties shall submit to the MPCA Pxoject Manager written progress reports on implemeniation of the Approved RAP in accordance with the requirements and time schedutes set out in the Approved RAP. The Remediating Parties shal] propose in these reports any additional activities they believe to be necessary which are not included in the Approved �2 q�.a�s RAP and shall describe the activities and the impact of the additional activities on the other activities conducted pursuant to ihis Order. The MPCA Project Manager may, in his discretion, direct that these reports be submitted at extended intervals or that no further reports be submitted. XIII. �amgling and Data Availabilit� The Commissioner and the Remediating Parties shall make available to each other the results of sampling, tests or other data generated by either party, or on its behalf, with respect to the implementation of this Ordec. At the request of the MPCA Pmject Manager, the remediating parties shall allow split or duplicate samples to be taken by the MPCA during sample collection conducted during the implementation of this Order. The remediating parties' Project Manager shall endeavor to notify the MPCA Project Manager not less than ten (10) days in advance of any sample collection. If it is not possible to provide ten (10) days prior notification, the Remediating Parties shali notify the MPCA Project Manager as soon as possible after becoming aware that samples will be collected. 1�\� t�--�_��_��'�_�_� 23otwithstanding any document retention policy to the contrary, the Remediating Parties shall retain and preserve for a minimum of six (6) yeazs after termination of this Order all records and documents in their possession or in the possession of their divisions, employees, agents, accountants, contractors or attorneys which relate in any way to the presence of 'ha2ardous substances or pollutants and contaminants at the Schnitzer Site or to the implementation of this Order . Following the six (6) year document retention period, the i, q� a�s Remediating Parties shall notify the MPCA a miniznum of ninety (90) days before destroying any documents and shall relinquish such documents to the MPCA upon request. Should any portion of the work performed hereunder be undertaken through contractors or agents of the Remediating Parties, then the Remediating Parties agree to include in their contracts with such contractors and agents a document retention requirement meeting the terms of this paragraph. XV. �cess The MPCA, its officers, employees, contractors, agenu or authorized representatives shall have authority to enter the Schnitzer Site at all reasonable times for purposes of inspecting records, operating logs, contracts and other documents relevant to implementation of this Order; conducting such inspections, sampling and tests as the Commissioner or MPCA Project Manager deem necessary; taking response actions; verifying the data submitted to the MPCA by the Remediating Parties, and taking any other action authorized pursuant to this Order. If records required to be retained under this Order are kept at a location other than the Schnitzer Site, the MPCA, its officers, empioyees, contractors, agents or authorized representatives shall have access to such other location at all reasonable times for the purposes of inspecting the records. The Remediating Parties, their officers, employees, contractors, agents and authorized representatives shall honor all reasonable requests for such access by the MPCA,.its officers, employees, contractors, agents and authorized representatives conditioned only upon presentation of proper credentials. 14 a�-a�s �,� .,,._.,�; : �z,, , A. The Remediating Pazties agree to indemnify and save and hold the MPCA, its agents and employees hannless from any and all claims or causes of action arising from or on account of acts or omissions of the Remediating Parties, their o£ficers, employees, agents, or contraciors in nnplementing this Order. B. Within fourteen (14) working days of receipt by the MPCA Commissioner of no6ce of any ciaim or cause of action against the MPCA arising from or on account of acts or omissions of the Remediating Parties, their officers, employees, agents, or contractors in implementing this Order (hereinafter referred to as a"claim"), the MPCA Commissioner shall give written notice to the Remediating Parties of this ciaim or action. �ailure of the MPCA to give such notice shall not relieve the Remediating Parties of any obligation that it znay have to the MPCA except to the extent the Remediating Parties demonstrate that the defense of the claim is prejudiced thereby. C. The Remediating Parties shall be entitled to participate in the defense of any claim and it may elect to assume the defense if the MPCA and the Minnesota Attorney Generai's Office give their written approval of counsel employed for such defense. If the Remediating Parties elect to assume the defense of a claim: (a) the MPCA shall have the right to employ sepazate counsel at its own expense and to participate in the defense thereof; (b) no compromise or settlement thereof may be effected by the Remediating Parties without the wzitten consent of the MPCA and the Minnesota Attorney GeneraPs Office (which shall not be unreasonably withheld) unless the sole consideration required by the settlement is a sum of money that is paid i5 a� . a�S solely and in full by the Remediating Parties and MPCA obtains a full release and discharge of all claims which were or could have been brought against the MPCA in the matter; and (c) the Remediating Parties shall have no liability with respect to any compmmise or settlement thereof effected by the MPCA unless MPCA obtains written consent of the Remediating Parties, which consent shall not be unreasonably withheld. D. If the Remediating Parties are obligated to indemnify the MPCA but elect not to assume, or fail to assume, the defense of a ciaim, the MPCA shall be entitied to assume the defense and prosecute or settle the claim with counsel of its own choice, at the expense of the Remediating Parties. E. If the claim is asserted against both the Remediating Parties and the MPCA and there is a conflict of interest which renders it inappropriate for the same counsel to represent both the Remediating Parties and the MPCA, the Remediating Parties shall be responsible for paying for sepazate counsel for the MPCA. XVII. Other Claims A. Nothing herein is intended to baz or release any claims, causes of action ot demands in law or equity by or against any person, firm, partnership, municipality or other legal entity not a signatory to this Order for any liability they may have arising out of or relating in any way to the release or threatened release of hazardous substances or poliutants or contaminants or to the generation, storage, treatment, handling, transportation, disposal or release of any hazardous substances or pollutants or contaminants at or from the Schnitzer Site. ie ��-a�s B. Nothing herein is intended to extinguish any claiming, causes of action, demands in law or in equity, rights or defenses that the Remediating Par[ies may have under applicable law regarding any liability arising out of or relating in any way to the release or threatened release of hazardous substances or pollutants or contaminants or to the generarion, storage, treatment, handling, transportation, disposal or release of any hazardous substances or pollutants or contaminants at or from the Sctuutzer Site, except that such rights or defenses shall not serve as a defense to enforcement of the terms and conditions of this Order. C. The MPCA shall not be held to be a party to any contract entered into by the Remediating Parties to implement the requirements of this Order. XVIII. Other A�plicable Laws All actions required to be taken pursuant to this Order shall be undertaken in accordance with the requirements of all applicable local, state and federal laws and regulations including permit requirements. If there is a conflict in the application of federal, state or local laws or regulations, the most stringent of the conflicting provisions shall apply. �ii � �• � �� i�_..�� A. Within thirty (30) days of the effective date of this Order, the Remediating Parties shall pay into the Environmental Response, Compensation and Compliance Account of the State of Minnesota, by check payable to the Minnesota Pollution Control Agency, the sum of Thirtv_ Seven Thousand Five Hundred Dollazs ($�7_,�) as reimbursement of a DOrtion the MPCA's costs incurred in connection with the investigation and other response actions concerning the Schnitzer Site including administrative and legal expenses. °^� -^�^' ��''�:° �.,"' ^'�°" '�° ^, F." >� n � �-a� -. . . . �- - .. .. ; -� .,: . , �.,��-� , ,- u' ; �.. �, .� i - -. - . _�' u' : � .� ._n �- u' . ��. �. . *_�� . u �� F .. . - i -. . �� •.K s , • - �•� � . � .���. s - .�. - .. . -� � �� . . . - � �a .a - ii s� • y)' � � -� � - � � � . - .r - . � �t � �' �, t� v.�- � - U' : ��t �- t� s � � '- -. ' B. The Remediating Parties also agree to reimburse the Environmental Response, Compensation and Compliance Account for reasonable and necessary costs incurred by MPCA for=11 investieation and other resnonse act'�o�s concerninQ the Schnitzer Site incfuding le�al and administrative costs incurrea between December 13 1995. and the effective date of this Agreement, and 21 te- impiementing or overseei� implementation of this Order including administrative and legal expenses, and including costs incurred to perform response actions suspended by the Remediating Parties under Part VIII of this Order (Resolution of Disputes). Within sixty (60) days following receipt of the MPCA Commissioner's reimbursement statement, the Remediating Parties shall pay the required sum into the Bnvironmental Response, Compensation and Compliance Account of the State of Minnesota by check payable to the Minnesota Pollution Control Agency. C. The Remediating Parties shall pay interest at the rate determined pursuant to Minn. Stat. § 549.09, subd. 1(c) on any amounts not paid to the MPCA within the time required sn this Part. D. The Remediating Parties may agree among themselves as to the apportionment of responsibility for the payments required by this part, but their liability to the MPCA for these payments shall Ue joint and several. ix q �_a� �. ,� � � _r:� Before coaunencing work to carry out the response actions required by the Appmved RAP, the Remediating Parties shall provide the Commissioner with current certificates of insurance certifying coverage for general liability wlth minimum limits of One Million Dollars ($1,000,000) per occurrence and with an annual aggregate of at least Two Million Dollars ($2,000,000), exclusive of legal defense costs, for claims of bodily injury and properry damage resulting from work required to implement this Order. The insurance coverage shall provide thaz it cannot be canceled for any reason except after thirty (30) days written notice to the MPCA Commissioner. These insurance limits are not to be construed as maximum limits. The Remediating Parties are solely responsible for determining the appropriate annount of insurance they should carry for injuries or damages resulting from work required to implement this Order. The Remediating Parties may satisfy the requirements of this Part by providing certificates of insurance showing that the required coverage has been provided by the remediation contractor and that the Remediating Parties aze a named insured under the contractor's insurance. XXI. �ovenants Not to Sue A. In consideration for and conditioned upon the Remediating Parties' performance of the terms and conditions of this Order, and based on the information known to the MPCA on the effective date of this Order, the MPCA covenants not to bring against the Remediating Parties any administrative, legal or equitable action availabte to the MPCA, including c]aims under Minn. Stat. §§ 115B.01 to 115B.24, 42 U.S.C. § 9607, or other state or federal law, re�arding any release or threatened release of hazardous substances at the Schnitzer Site which is addressed by this Order. i �� ��.�`�, B. Nothing in this Order shall preclude the MPCA from exercising any administrative, legal or equitable remedy available to it to require additional response actions by the Remediating Parties in the event that MPCA discovers any release oz threatened release of hazardous substances or pollutants or contaminants at the Schnitzer Site which is not addressed under this Order or in the event that the implementation of the requirements of this Order are insufficient to remedy any release or thzeatened release of hazardous substances or pollutants or contaminants at the Schnit2er Site which aze addressed under this Order;�rovided that the t��re t, it �r t�rins anv additional action seekj�g to require the Remediating P�rties to meet �oil cle�nuo standacds at the Schnitzet Site more str�gent than• (]1 a median concentration of 400�g1ke of ]ead and (2) 1 mefk� of PCBs. C. The Remediating Parties covenant not to sue and agrees not to assert any claim, which the Remediating Parties could have brought againsi the MPCA at the time of execution of this Order and which azises out of or relates to the release or threatened release of hazardous substances or pollutants or contaminants at the Schnitzer Site. XXII. ('ontribution Protection/Effect of Settlement A. The parties agree that this Order embodies a"settlemenP' as that term is used in Section I 13(fl(2) of CERCLA, 42 U.S.C. § 9613(�(2}, as amended, and that the Remediating Parties aze entitied, with respect to the Schnitzer Site, to contribution protection from any person not a party to this Order to the extent provided by Section 113(�(2) and (3) of CERCLA, 42 U.S.C. § 9613(�(2) and (3) for al] matters addressed in this Order. The matters addressed in this Order are all response actions taken and to be taken, and aii response costs incurred and to be incurred, in implementing the Approved RAP at the Schnitzer Site. B. If_ pursuant to any rigl�ts preservcd in Part XXl (Covenants Not to Sue), an administrative or }udicial procecding should be initiated by the MPCA against the Remediating ?o ��.a�s Parties, for injunctive relief, recovery of response costs, or other appropriate relief relating to the Schnitzer Site, the Remediating Parties shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusian, claim-splitting, or other defenses based upon any contenfion that the claims raised in the subsequent proceedings were or should have been raised in connection with this Otder; provided, however, that nothing in this Part affects the enforceability of the covenants not to sue included in Part XXI. C. The Remediating Parties agree that with respect to any suit or claim for contribution brought against them for matters related to this Order, they will no6fy the MPCA in writing within ten (l0} days of service of a complaint upon them. In addition the Remediating Parties shall notify the MPCA within ten (10) days of service or receipt of any motion for summary judgment and within ten (10) days of receipt of any order from a court setting a case for trial. XXITI. Notice �`°�n of Com�letion A. Subject to and in consideration of the Remediating Parties' compliance with terms and conditions of this Order, the Commissioner agrees to issue a otice �`°��-'��� of Completion to the Remediating Parties upon approval by the Commissioner of a report certified by the engineering consultant for the construction and implementation of the Approved RAP that ail elements of the Approved RAP have been completed in accordance with the design objectives and the goa(s of the response actions as described in the Approved RAP. If deemed necessary by the Remediating Parties for purposes of the planned commercial development of the Schnitzer ?� �(�-a�s Site, the Commissioner agrees to consider reviewing and approving the implementarion of the Approved RAP in two phases, and the issuance, if appropriate, of two Llotices GeR-i€sates of Completion. The Notice Se�sa�e or Notices C�i�sates of Completion will be issued as soon as practicable after submission of the consultant's report. ^^-� r,.�:�,..,«„ ,.c �,......i�.:,.., :......va . .. .. . B. Issuance of the Notice Cert�fisate-or L�iotices�sates of Completion under this Part XXIII does not release or otherwise affect the Remediating Parties' obligation to perforni all obligations under this Order not fully performed upon issuance of the tice �'°-'���'�,r tice r'�^•��t�,f Completion. XXIV. Extensions of Schedules A. An extension of time to perform any obligation of the Remediating Parties under this Order shall be granted if the Remediating Parties submit a written request in a timely fashion and the Commissioner determines that good cause exists for granting the extension. The zequest shall specify the reasons why the extension is needed. Extensions shall only be granted for such period of time as the Commissioner determines is reasonable under the circumstances. A tequested extension shall not be effective until approved by the Commissioner . B. The burden shall be on the Remediating Parties to demonstrate to the satisfaction of the Commissioner that the request for the extension has been submitted in a timely fashion and that �ood cause exists for granting the extension. C. Good cause for granting an extension includes, but is not limited to: �� o�� _a1s Circunnstances beyond the reasonable control of the Remediating Parties, their officer, employ�s, conuactors, agents, or authori2ed representatives, including delays caused by the MPCA, its officers, employees, contractors, agents, or authorized representatives; 2. Stoppage of work under Part IX (Creation of Danger) if the work stoppage was not the result of any noncompliance by the Remediating Parties with this Order; 3. Good faith invocation by the Remediating Parties of Dispute Resolution under Part VIII of this Order, tegazding imglementation of work undet this Order where Remediating Parties request a reasonable extension of time to perform the disputed work; 4. Delays which are directly attributable to any changes in permit terms or conditions or delay in issuance of a peanit needed to implement the requirements of this Order, if the Remediating Parties filed a timely application for the necessary permit; and 5. Delays caused by Site condiYions discovered during the preconstruction or consiruction period. XXV. Enforcea6ilitX This Order is legally enforceable by any pariy in a court of appropriate jurisdiction. XXVI. Amendment of Order This Order may be amended only by a written agreement between the Remediating Parties and their successors , and the MPCA. ?3 �1-als ��. . ,� This Order shall be binding upon the Remediating Parties, theu successors and assigns, and upon the MPCA, its successors and assigns. XXVIII. �ermination The obligations of the Remediating Parties under this Order shail be deemed satisfied and response actions undet this Order may be terminated upon receipt by the Remediating Parties of written notice from the Commissioner that the remediating parties have demonsttated, to the satisfaction of the MPCA Commissioner, that all response actions required under this Order have been completed and all terms and conditions of this Order have been perfonned. Parts XV (Access), XXVII (Successors), and, to the extent necessary to enforce those parts, Part XXV (Enforceability) shall survive any termination of response action under this Order. J�XIX. Effective Date This Order is effective upon the date that the Commissioner executes this Order. 24 ,� BY THEIR SIGNATURES BELOW, THE UNDERSIGNED REPRESENT Tf�AT T'f�Y HAVE AUTHORITY TO B1ND THE PARTIES TI3EY REPRESENT Tf IS SO AGREED: BY Tf� REMEDIATTNG PARTIES University of Minnesota BY THE MPCA: Peder Lazson Acting Commissioner GP28201 I v2 AG:47428 vi 25 City of St. Paul City of Minneapolis Effective Date ��-a►.r