HomeMy WebLinkAbout6.h. Settlement Agreement with Arcon Development, Inc. ti s,
440 ROSEN4OU
EXECUTIVE SUMMARY
CITY COUNCIL
City Council Regular Meeting: February 21, 2012
AGENDA ITEM: Sett lement Agreement with Arcon A NDA CTION:
Development, Inc.
PREPARED BY: Andrew U. Brotzler, PE, Director of Public
AGENDA NO ( -G(.
Works /City Engineer
ATTACHMENTS: Settlement Agreement APPROVED BY:
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RECOMMENDED ACTION:' Motion to authorize the execution of a settlement agreement
with Arcon Development, inc.
BACKGROUND:
In 2011 as part of the Prestwick 2n Addition development project, the city conveyed to Arcon
Development, Inc. three (3) exception parcels owned by the city located along Akron Avenue. During the
development of these parcels within the overall Prestwick 2nd Addition development, the grading contractor encountered septic drain fields that were part of the original on -site septic system.
At the time that °the city had the houses demolished on the properties the on -site septic tanks were
removed consistent with past practice and code. The drain fields which are typically constr of trench
rock are not generally excavated as the material does not impede development of the property. However,
in this instance the drain field encountered by the contractor for the Prestwick 2nd Addition development
was constructed of crushed battery cases. Apparently this was a common practice in Dakota County in
the 50's, 60's and 70's. Unfortunately the crushed battery cases contain low levels of lead which
necessitates the removal and disposal of the material at an approved land fill site.
Arcon Development, Inc. has requested that the city participate in the cost associated with the disposal of
the material. The estimated cost for disposal is $18 to $19 per ton with the city providing the truck
transportation of the material to SKB. The attached agreement that has been prepared by the city attorney
stipulates that the city would reimburse Arcon Development, Inc. for 50% of the cost up to a maximum
of $7,600.
Based on the purchase agreement between the city and Arcon Development, Inc. for the sale of the
exception parcels, it is the city attorney's opinion that the city is not legally responsible to fi
participate in the cost of disposing of -this material. Consideration to enter into an agreement for the city
to financially participate in 50% of the cost is a measure to work in a good faith effort towards an equitable
resolution to a matter that neitherrparty created. The attached agreement stipulates that Arcon
Development, Inc. releases the city from any and all claims.
`SUMMARY:
Staff recommends Council approval of the attached settlement agreement.
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SETTLEMENT AGREEMENT
This Agreement is made this day of , 2012, by and between the
City of Rosemount, Minnesota„ a Minnesota municipal corporation (the "City "), anda Arcon
Development, Inc., a Minnesota corporation ( "Arcon "). .
WHEREAS, the City and Arcon ate parties to an agreement entitled Land Exchange
Agreement, dated , 2011, pursuant to which the City conveyed to Arcon land
depicted on Exhibit A attached hereto, and hereby made a part of this Agreement (the "Subject
Property "); and
WHEREAS, in connection with the development of the Subject Property, Arcon i.
discovered crushed battery case material that had been used as a drain field for a septic system
on the Subject Property; and -
WHEREAS, Arcon has excavated the battery case material and asserts'that the City is
` responsible for removal of the material; and R
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,: WHEREAS, the City denies that it has any legal responsibility to` remove the battery case
material, but as a compromise of a disputed claim and to avoid the expenditure of public funds
and resources in litigation, and to,avoid the uncertainty of litigation, the City agrees to settlement
of the dispute on the terms and conditions set forth herein. l
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NOW, THEREFORE, on the basis of premises and the .mutual covenants contained
herein, the parties agree as follows:
. 1. Arcon will make arrangements with SKB Environmental, Inc. ( " SKB ") for disposal
of the battery case material at the SKB containment facility in the City of Rosemount.
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2. The City will load the excavated battery case material and dispose of it at the SKB 1°
' industrial waste facility by , 2012. ` k.
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3. Arcon will pay to SKB all fees required for disposal of the battery case material at 1.
SKB' s' facility.
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4. Upon receipt of a final bill, Arcon will invoice the City for fifty percent (50 %) of the
cost of disposal charged by SKB, including with such invoice the bill and receipt
from SKB showing the amount of material deposited and the total charge. Within 30
days of receipt of such invoice, the City will reimburse to Arcon fifty percent (50 %)
Y # of such costs; provided, however, that the City's reimbursement to Arcon will not
exceed Seven Thousand Six Hundred Dollars ($7,600).
5. In consideration of this Agreement, Arcon forever releases and discharg s the City,
its officers, agents, and employees from any and all claims for, or related in any way .
to, the condition of the Subject Property, or its soils, or any materials of any nature
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whatsoever, stored, deposited, or located on or under the soils of the Subject Property f
existing as of the date of- transfer �f the Subject Property from the City to Arcor, and I
will indemnify, defend, and protect the City,. its officers, agents, and employees from
any and all such claims brought againstfthe City in the future.
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IN WITNESS WHEREOF, the parties, by their authorized representatives, have a
executed this Agreement as of the day and date first above written. .
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CITY OF ROSEMOUNT r
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By: 1 .
r r Its Mayor F
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Its Clerk
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ARCON DEVELOPMENT, INC.
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By:
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398086v1 CLL RS220 -285 2
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