4-Attachment D. Perspective Purchaser Agreement with DEQ.pdf

l

TN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS

STA TE OF OREGON, ex rel.

RICHARD WHITMAN, DIRECTOR

DEPARTMENT OF ENVIRONMENT AL

QUALITY

Plaintiff, Case No.

CONSENT JUDGMENT

General Judgment

V. ORS 20.140 - State fees deferred at filing

CITY OF MILWAUKIE

Defendant.

Contents Page

14 1. Purpose

15 2. Stipulations and Findings

16 3. Work to be Perforn1ed

17 A. Remedial Design/Remedial Action

18 B. Modification of SOW or Related Work Plans

19 C. Additional Measures

20 D. Site Restrictions and Periodic Reviews

21 4. General Provisions

22 A. Project Managers

23 B. Supervising Contractor

24 C. DEO Approvals ............................................................................................. I I

25 D. Access to Property

26 E. Records

Page I - CONSENT JUDGM ENT GL V /smn/J UST! CE-#9556230-v I

Department of Justice 100 SW Markel Street Portland, OR 9720 I

(971) 673- 1880 / Fax: (971) 673-1886

City of Milwaukie: RFP for Design and Development of the Sparrow Site Attachment D

ATTACHMENT D

F. Notice and Sa1nples ........................................... .............. .... ............. .. ...... ..... J 3

2 G. Oual ity Assurance

3 H . Progress Reports

4 I. Other App licable Laws

5 J. Reimbursement of DEO Costs

6 K. ForceMajeure

7 L. Dispute Reso lution

8 M. Effect of Consent Judgment

9 N. Indemnification and lnsurance

10 0. Parties Bound

11 P. Modification

12 Q. Recording

13 R. Service

14 5. Releases from Liability and Covenant Not to Sue

15 6. Third-Party Actions

16 7. Defendant Waivers

17 8. Benefits and Burdens Run with the Land

18 9. Certification of Completion

19 l 0. Continuing Jurisdiction

20 Exhibit A: Property Legal Description

21 Exhibit B: Site Vicinity Map

22 Exhibit C: Remedial Action Scope of Work

23 Exhibit D: Service List

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Department of Justice 100 SW Markel Street Portland, OR 9720 I

(97 1) 673-1880 / Fax (971) 673-1886 l l. Purpose

2 This Consent Judgment is filed simultaneously with and for the purpose of resolving the

3 underlying complaint by the State of Oregon. Plaintiff State of Oregon ex rel. the Director of the

4 Department of Environmental Quality ("DEQ") and Defendant City of Milwaukie ("Defendant")

5 (collectively, the "Parties") desire to resolve this action without litigation and have agreed to

6 entry of the Consent Judgment without admission or adjudication of any issue of fact or law.

7 The mutual objectives of the Patiies are: (a) to protect public health, safety, and welfare and the

8 environment in accordance with ORS 465.200 through 465.410, and regulations promulgated

9 thereto, and (b) to facilitate productive reuse of prope1iy; and (c) to provide Defendant with

10 protection from potential liabilities in accordance with applicable law.

11 2.

Stipulations and Findings

A. Defendant stipulates:

(l) To entry of this Consent Judgment;

(2) To perform and comply with all provisions of this Consent Judgment; and

(3) To not litigate, in any proceeding brought by DEQ to enforce this Consent

16 Judgment or to assess penalties for noncompliance with this Consent Judgment, any issue other

17 than Defendant' s compliance with this Consent Judgment.

B. DEQ and Defendant stipulate:

(1) For the purposes of this Consent Judgment, the "Facility," as defined in

20 ORS 465.200( 13), means: (a) the property located at the intersection of Southeast Sparrow Street

21 and Southeast 25 th Street in Milwaukie, Clackamas County, Oregon, tax lot

22 I I E36CC0030023000 (the "Propetiy"); and (b) the full extent of existing known or unknown

23 contamination by hazardous substances of any media on, above, or below the Property, or that

24 has migrated, might have migrated, or hereafter migrates to anywhere from the Property.

25 (2) For the purposes of this Consent Judgment, "Matters Addressed" means all

26 investigation, removal, and remedial actions taken or to be taken and all remedial action costs

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D epartment of Justice I 00 SW Mark et S tr eel Portland, O R 9720 I

(97 1) 673-1 880 / Fax (97 I) 673-1 886 l incurred or to be incurred at or in connection with a release of hazardous substances at the

2 Facility.

3 (3) For the purposes of this Consent Judgment, "Existing Hazardous Substance

4 Releases" means : (a) any release of hazardous substances, as defined in ORS 465.200, at the

5 Facility existing as of the date of Defendant' s acquisition of ownership or operation of the

6 Property; (b) any spill or release of oil or hazardous material , as defined in ORS 466.605 , at the

7 Facility existing as of the date of Defendant's acquisition of ownership or operation of the

8 Property; and (c) the entry of oil into the waters of the state, as defined in ORS 468B .300, from

9 the Facility before the date of Defendant 's acquisition of ownership or operation of the Prope1ty.

C. DEQ finds , and Defendant neither admits nor denies:

(1) Defendant is a political subdivision (municipality) in the State of Oregon.

(2) The Property proposed for acquisition by Defendant, currently owned by

13 Tri County Metropolitan Transportation District of Oregon (TriMet), is 1.46-acre parcel located l 4 north of the intersection of Southeast Sparrow Street and Southeast 25 th Street in Milwaukie, J 5 Clackamas County, Oregon. The Property is listed in Clackamas County records as tax lot

16 l 1E36CC0030023000. The legal description of the Property is set forth in Exhibit A to this

17 Consent Judgment. The location of the Property is illustrated generally in the Site Vicinity Map, 18 Exhibit B to this Consent Judgment. All attachments are incorporated into this Consent Judgment

19 by this reference.

20 (3) The Prope1ty is covered with gravel, with asphalt patches beneath the gravel

21 in places. The western boundary is vegetated with trees, and slopes steeply upward

22 approximately 20 to 25 feet. The northern Property boundary slopes steeply downward

23 approximately 30 feet to an unnamed, ephemeral creek. TriMet used the Property as a

24 construction staging yard . Prior to TriMet use, the Property was owned and used by the Oregon

25 Department of Transportation (ODOT) as a yard for storage of stockpiled material including

26 asphalt grindings, mixed sand and gravel, and leaf debris . There are currently no structures on

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Department of Justice 100 SW Market Street

(97 1) 673-1880 / Fax (971) 673-1 886 the Prope1ty. No improvements were identified on the Propetty in historical maps and aerial

2 photographs except for clearing and placement of gravel and asphalt on the ground surface

3 during the operations at the Property by ODOT or TriMet. During an April 2018 site visit, areas

4 that appeared to indicate unauthorized camping activities (fire rings, refuse, etc.) were observed

5 in the northern and northwestern portions at the Property.

6 (4) The Defendant intends to develop the Property for use such as affordable

7 housing.

8 (5) A Phase I Environmental Site Assessment was completed by Landau

9 Associates in February 2011. No recognized environmental concerns (RECs) were identified.

l O However, based on anecdotal information on potential storage of petroleum contaminated soil at

11 the Property, soil sampling was recommended. A Phase II ESA was conducted by Landau

12 Associates in March 2012. Seven direct-push soil borings were advanced across the Property .

13 Groundwater was not encountered to a depth of 25-feet below ground surface (bgs) (the

14 maximum explored depth). Ten soil samples were analyzed for 13 priority pollutant metals, 15 diesel- and heavy oil-range hydrocarbons (TPH-Dx), benzene, toluene, ethylbenzene, and

16 xylenes (BTEX), and polycyclic aromatic hydrocarbons (PAHs). PAHs concentrations detected

17 in two samples were above DEQ risk-based concentration (RBC) for human health for

18 residential use. None of the other contaminants were detected above DEQ RB Cs. Oil-range

19 hydrocarbons were detected in eight of the l O samples at up to l 0, 100 mi I ligrams per kilogram

20 (mg/kg). DEQ has not published RBCs for oil-range hydrocarbons.

21 (6) Stantec completed a Phase I ESA of the Property for Metro and the City of

22 Milwaukie in March 2018. The 2018 Phase I ESA identified metals and petroleum hydrocarbon

23 constituents detected in soil samples collected by Landau during the 2012 focused Phase II ESA

24 as a REC for the Property . Stantec completed a Phase II ESA in April 2018. The Phase II was

25 limited to soil sampling using incremental sampling methodology (ISM). The generally flat

26 portion of the Property was designated as a single decision unit (DU). This DU was further

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Department of Justi ce 100 SW Market Street Po11land, OR 9720 I

(97 1) 673-1880 I Fax: (97 1) 673-1886 divided into three separate sampling units (SUs). A total of 20 soil borings were advanced

2 within each SU, for a total of 60 soil borings in the DU. For each boring location, three depth-

3 specific sample increments were collected: surface 0-1-foot bgs ; 1.5 to 4 feet bgs; and 6 to 8 feet

4 bgs. A total of nine SU samples (all depth intervals), three DU samples (all depth intervals, 5 including two replicates) and two DU samples (shallow interval only) were analyzed for J 3

6 priority pollutant metals, TPH-Dx, PAHs, and polychlorinated bi-phenyls (PCBs). In addition, 7 two composite soil samples were collected from the unauthorized camping areas, and analyzed

8 for 13 priority pollutant metals, TPH-Dx, and PAHs. PAH concentrations, converted to

9 equivalent benzo(a)pyrene toxicity, or TEQ, exceeded the DEQ RBC in the shallow fill

IO co1 lected from DU- I, and in the depth interval from 1.5-4 feet in the northern area (SU l) of the

11 Property. Arsenic, diesel-range hydrocarbons, and the benzo(a)pyrene TEQ exceed the

12 residential and urban residential RBCs in the unauthorized camping-area sample SS-2.

13 (7) The contaminants described in C(5) and C(6) are "hazardous substances"

14 within the meaning of ORS 465 .200(16). The presence of hazardous substances at the Property

15 constitutes a "release" of hazardous substances within the meaning of ORS 465.200(22), and

16 makes the Property a "fac ility" within the meaning of ORS 465.200(13).

17 (8) Pursuant to ORS 465.255( 1 )(b ), Defendant could become liable to DEQ and

18 other persons for re leases of hazardous substances at or from the Property by becoming the

19 owner or operator of the Property with actual or constructive knowledge of the releases. On

20 August 23 , 2018, Defendant applied to DEQ for a "prospective purchaser" agreement under

21 ORS 465.327. This Consent Judgment is intended to protect Defendant from potential liability

22 for pre-acquisition releases of hazardous substances at or from the Property, in return for

23 Defendant undertaking certain obligations, as described in this Consent Judgment. In

24 determining to propose this Consent Judgment, DEQ considered reasonably anticipated future

25 land uses at the Property and surrounding properties and consulted with the City of Milwaukie.

26 This Consent Judgment is entered into pursuant to ORS 465.325 and ORS 465.327.

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Department of Justice I 00 SW Market Street Portland, OR 97201

(97 1) 673-1880 / Fax: (97 1) 673- 1886

(9) On March 1, 2019, DEQ published notice of this proposed Consent Judgment

2 and provided oppo1iunity for public comment in accordance with ORS 465 .320( I) and

3 465.325(4)(d). Three pa1iies submitted comments. The comments voiced similar concerns, 4 including, I) there was inadequate investigation to define the extent of contamination; 2) the

5 proposed work required under the PPA would not results in substantial public benefit, and

6 3) land use concerns regarding schools, economic conditions, changes to the neighborhood, 7 transpo1iation , effects on habitat/greenspace, and funding sources. DEQ issued a response to

8 comment letter to each commenting party on April 15, 2019. The response letters are available

9 on DEQ's on-line database.

JO (10) ConsistentwithORS465.327(1):

(a) Defendant is a "person" within the meaning of ORS 465.200(21);

(b) Defendant is not currently liable under ORS 465.255, 466.640, or

13 4688.3 IO for the Existing Hazardous Substance Releases;

14 (c) Removal or remedial action is necessary at the Property to protect

15 human health or the environment;

16 (d) Defendant's ownership and operation of the Property will not cause, J 7 contribute to , or exacerbate existing contamination, increase health risks , or interfere with

18 remedial measures at the Property; and

19 (e) A substantial public benefit will result from this Consent Judgment.

20 (I I) Based on the administrative record, the Director of DEQ determines that:

21 (a) the release from liability set forth in Subsection 5.B satisfies the criteria set forth in ORS

22 465.327(1); (b) the covenant not to sue set forth in Subsection 5.D satisfies the criteria set forth

23 in ORS 465.325(7)(a) and (d); and (c) this Consent Judgment and Defendant's commitments

24 under this Consent Judgment will expedite removal or remedial action, minimize litigation, be

25 consistent with rules adopted under ORS 465.400, and be in the public interest.

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Depa11ment of Justice JOO SW Market Street

(971) 673-1880 / Fax: (97 1) 673-1 886

3. Work to be Performed

2 A. Remedial Design/Remedial Action

3 Defendant desires to remediate the Property to be protective for slab on grade

4 residential use subject to an Easement and Equitable Servitude as provided in subparagraph D

5 below. Defendant will perform the remedial design and remedial action in accordance with the

6 terms and schedules set forth in the Scope of Work ("SOW") attached to and incorporated by

7 reference into this Consent Judgment as Exhibit C, and the terms and schedules set forth in a

8 DEQ-approved work plan. Defendant will prepare a remedial action work plan for DEQ revi ew

9 and approval. Remedy implementation will be documented in a Remedial Action Completion l O Report.

B. Modification of SOW or Related Work Plans

(I) If DEQ determines that modification to the work spec ified in the SOW and/or

13 in work plans developed pursuant to the SOW is necessary in order to implement or maintain the l 4 effectiveness of the remedy set forth in the ROD, DEQ may require that such modification be

15 incorporated in the SOW and/or such work plans; provided, any such modification may be

16 required pursuant to this paragraph only to the extent that the modification is consistent with the

17 scope of the remedy selected in the ROD .

18 (2) Subject to dispute resolution under Subsection 7.M., Defendant will modify

19 the SOW and/or work plans as required by DEQ and implement any work required by the

20 modifications. Before invoking dispute resolution under Subsection 7.M., Defendant and DEQ

21 will make a good-faith effort to resolve any dispute regarding DEQ-requested modifications by

22 informal discussions for no more than 30 days following notice from DEQ of a requested

23 modification.

24 C. Additional Measures

25 Defendant may elect at any time during the term of this Consent Judgment to

26 undertake measures, beyond those required under thi s Consent Judgment and the SOW, Page 8 - CONSENT JUDGMENT G L V /smn/JUSTlCE-#9556230-v I

Department of Justice 100 SW Market Street Portl and, OR 9720 1

(97 1) 673-1880 / Fax (97 1) 673- 1886 necessary to address the release or threatened release of hazardous substances at the Property.

2 Such additional measures are subject to prior approval by DEQ. DEQ ' s approval will be granted

3 if DEQ determines that the additional measures are consistent with the remedial action objectives

4 in the SOW and will not threaten human health or the environment.

D. Site Restrictions and Periodic Reviews

(I) Defendant agrees to record an Easement and Equitable Servitude in a form

7 approved by DEQ if required as described within the Scope of Work attached as Exhibit C.

8 (2) Property subject to the Easement and Equitable Servitude may be freely

9 alienated at any time after recording, provided the deed or other instrument of conveyance refers

IO to or incorporates the Easement and Equitable Servitude.

11 (3) Any deed, title, or other instrument of conveyance regarding the Property

12 must contain a notice that the Property is the subject of this Consent Judgment. Defendant, in any

13 such deed or conveyance, must also reserve such access (by easement, right-of-way, or

14 otherwise) as might be necessary to carry out Defendant's obligations under this Consent

15 Judgment.

16 (4) After five years DEQ will review the remedy to ensure that the Property

17 remains protective of public health, safety, and welfare and the environment. Periodic reviews

18 will include evaluation of monitoring data, progress reports, inspection and maintenance reports, 19 land and water uses, compliance with institutional controls, and any other relevant information.

20 Based on the results of the initial review DEQ may change the frequency of remedy review.

21 4. General Provisions

22 A. Project Managers

23 (1) To the extent possible, all repo1ts, notices, and other communications required

24 under or relating to this Consent Judgment must be directed to:

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Department of Justice I 00 SW Market Street Portland , OR 9720 I

(97 I) 673-1 880 I Fax (97 1) 673-1 886

DEO Project Manager

Mark Pugh, R.G.

Department of Environmental Quality No1thwest Region 700 NE Multnomah Street Portland, OR 97232 Phone: 503 229-5587 Email: pugh.mark@deq.state.or.us

Defendant Project Manager

Carrie Rackey Stantec 9400 SW Barnes Road, Suite 200 Portland, OR 97225 Phone: 971-230-5230 Email: carrie.rackey@stantec.com

Copy to (attorney):

David Rabbino Jordan Ramis PC 2 Centerpointe Drive, 6th Fl.

Lake Oswego, OR 97035 Phone: 503-598-5536 Email: david.rabbino@jordanramis.com

(2) The Project Managers or their respective designees must be available and

1 I have the authority to make day-to-day decisio ns necessary to complete the work described under

12 Section 3.

B. Supervising Contractor l 3

14 (1) All aspects of the work to be performed by Defendant pursuant to this

15 Consent Judgment must be performed under the direction and supervision of a qua! ified

I 6 employee or contractor having experience in hazardous substance remediation and knowledge of

17 applicable state and federal laws, regulations, and guidance.

18 (2) Before initiation of remedial design work for the Property, Defendant will

19 notify DEQ in writing of the name, title , and qualifications of any proposed supervising

20 contractor. DEQ may for good cause disapprove the proposed contractor. In the event of such

21 disapproval, DEQ will notify Defendant in writing of the reasons for its disapproval within

22 14 days ofreceipt of the initial notice from Defendant. Defendant, within 14 days of receiving

23 DEQ' s notice of disapproval , will notify DEQ of the name, title, and qualifications ofan

24 alternate supervising contractor, subj ect to DEQ's right to disapprove under the terms and

25 schedule specific above.

26 (3) DEQ approves Stantec as a qualified contractor for Defendant for purposes of

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Depa,tment of Justice 100 SW Market Street

(971) 673- l 880 / Fax (971) 673- 1886 this Consent Judgment.

2 (4) If, during the course of work required under this Consent Judgment, 3 Defendant proposes to change its supervising contractor, Defendant will notify DEQ in

4 accordance with the provisions of the preceding paragraph. DEQ may disapprove such

5 contractor, under the terms and schedule specified in the preceding paragraph.

C. DEO Approvals

(l) Where DEQ review and approval is required for any plan or activity under

8 this Consent Judgment, Defendant may not proceed to implement the plan or activity prior to

9 DEQ approval. Any DEQ delay in granting or denying approval correspondingly extends the l O time for completion by Defendant. Prior approval is not required in emergencies, provided

11 Defendant notifies DEQ immediately after the emergency and evaluates the impact of its actions.

12 (2) After review of any plan, report, or other item required to be submitted for

I 3 DEQ approval under this Consent Judgment, DEQ will: (a) approve the submission in whole or

14 in part; or (b) disapprove the submission in whole or in part, and notify Defendant of its

15 deficiencies and/or request modifications to cure the deficiencies.

16 (3) DEQ approvals, rejections, or identification of deficiencies will be given in

17 writing within the time specified in the SOW or as soon as practicable, and will state DEQ 's

18 reasons with reasonable specificity.

19 ( 4) In the event of DEQ disapproval or request for modification of a submission , 20 Defendant will, within 30 days of receipt of the DEQ notice or such longer time as may be

21 specified in the notice, correct the deficiencies and resubmit the revised report or other item for

22 approval.

23 (5) In the event of two deficient submittals of the same deliverable that are

24 deficient for the same reasons due to Defendant's failure in good faith to cure the original

25 deficiency, DEQ may modify the submission to cure the deficiency.

26 (6) In the event of approval or modification of a submission by DEQ, Defendant

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Department of Justice 100 SW Market Street

(97 1) 673-1 880 / Fax (97 1) 673- 1886 will implement the action(s) required by the plan, report, or other item, as so approved or

2 modified, or invoke di spute resolution under Subsection 4.L.

D. Access to Property

(1) Defendant wi II allow DEQ to enter all portions of the Property owned by or

5 under the control of Defendant at all reasonable times for the purpose of overseeing Defendant's

6 performance under this Consent Judgment, including but not limited to: inspecting records

7 relating to work under this Consent Judgment; conducting such tests and taking such samples as

8 DEQ deems necessary, verifying data submitted to DEQ by Defendant; conducting periodic

9 review; and using camera, sound recording, or other recording equipment. DEQ will make

IO available to Defendant, upon Defendant's request, any photographs or recorded or videotaped

I J material taken.

12 (2) Defendant will seek to obtain access to property not owned or controlled by

13 Defendant as necessary to perform the work required in this Consent Judgment, including access

14 by DEQ for purposes described in Paragraph 4.D .( I). DEQ may use its statutory authority to

J 5 obtain access to property on behalf of Defendant if DEQ determines that access is necessary and

16 that Defendant has exhausted al I good faith efforts to obtain access.

E. Records 17

18 (l) In addition to those reports and documents specifically required under this

19 Consent Judgment, Defendant will provide to DEQ, within IO days of DEQ's written request, 20 copies of Quality Assurance/Quality Control (QA/QC) memoranda and audits, raw data, final

21 plans, task memoranda, field notes (not made by or at the direction of Defendant ' s attorney), and

22 laboratory analytical reports relating to the work to be performed under this Consent Judgment.

23 (2) Defendant will preserve all records and documents in possession or control of

24 Defendant or its employees, agents, or contractors that relate in any way to activities under this

25 Consent Judgment for at least five years after cettification of completion under Section 9. Upon

26 DEQ 's request, Defendant will provide to DEQ, or make available for copying by DEQ, copies

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Department of Justice 100 SW Market Street

(97 1) 673-1 880 / Fax (97 1) 673-1886 of non-privileged records. For a period of l O years after certification of completion, Defendant

2 will provide DEQ 60 days-notice before destruction or other disposal of such records or

3 documents. Ten years after certification of completion, Defendant has no further obligation to

4 preserve documents or records .

5 (3) Subject to Paragraph 4.E.(4), Defendant may assert a claim of confidentiality

6 under the Oregon Public Records Law regarding any documents or records submitted to or

7 copied by DEQ pursuant to this Consent Judgment. DEQ will treat documents and records for

8 which a claim of confidentiality has been made in accordance with ORS 192.410 through

9 192.505. If Defendant does not make a claim of confidentiality at the time the documents or

IO records are submitted to or copied by DEQ, the documents or records may be made available to

11 the public without notice to Defendant.

12 (4) Defendant will identify to DEQ (by addressor-addressee, date , general subject

13 matter, and distribution) any document, record, or item withheld from DEQ on the basis of

14 attorney-client or attorney work product privilege, except to the extent that such identifying

15 information is itself subject to a privilege. Attorney-client or work product privilege may not be

16 asserted with respect to any records required to be submitted under Paragraph 4.E.(l ). DEQ

17 reserves its rights under law to obtain documents DEQ asserts are improperly withheld by

18 Defendant.

F. Notice and Samples 19

20 (l) Defendant will make every reasonable effort to notify DEQ of any excavation, 21 drilling, sampling, or other fieldwork to be conducted under this Consent Judgment at least five

22 working days before such activity, but in no event less than 24 hours before such activity. Upon

23 DEQ's verbal request, Defendant will make every reasonable effort to provide a split or

24 duplicate sample to DEQ or allow DEQ to take a split or duplicate of any sample taken by

25 Defendant while performing work under this Consent Judgment. DEQ will provide Defendant

26 with copies of all analytical data from such samples as soon as practicable.

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Department of Justice I 00 SW Market Street Portl and , OR 9720 I

(97 1) 673-1 880 / Fax (9 71 ) 673-1 886

(2) If DEQ conducts any sampling or analysis in connection with this Consent

2 Judgment, DEQ will , except in an emergency, make every reasonable effort to notify Defendant

3 of any excavation, drilling, sampling, or other fieldwork at least 72 hours before such activity.

4 Upon Defendant's verbal request, DEQ will make every reasonable effort to provide a split or

5 duplicate sample to Defendant or allow Defendant to take a split or duplicate of any sample

6 taken by DEQ, and will provide Defendant with copies of all analytical data for such samples.

7 Defendant will provide DEQ with copies of all analytical data from such samples as soon as

8 practicable.

G. Quality Assurance 9

10 (1) Defendant will conduct all sampling, sample transport, and sample analysis in

11 accordance with the QA/QC provisions approved by DEQ as part of the work plan. All plans

12 prepared and work conducted as patt of this Consent Judgment must be consistent with DEQ's

13 Environmental Cleanup Quality Assurance Policy (DEQ l 0-LQ-0063-QAG). Defendant will

14 make every reasonable effort to ensure that each laboratory used by Defendant for analysis

15 performs such analyses in accordance with such provisions.

]6 (2) If DEQ conducts sampling or analysis in connection with this Consent

17 Judgment, DEQ will conduct sampling, sample transport, and sample analysis in accordance

18 with the QA/QC provisions of the approved work plan. Upon written request, DEQ will provide

19 Defendant with copies of DEQ's records regarding such sampling, transport, and analysis.

20 H. Progress Reports

21 On a weekly basis during implementation of the remedial action, Defendant will

22 submit a progress report summarizing work conducted, personnel/contractor/utility performing

23 work, location of soil grading, soil and water management and disposal, summary of testing

24 results , waste disposal receipts and maps/photos of work. Progress reports may be submitted in

25 electronic fom1. If submitted in hard-copy written form , two copies must be provided to DEQ.

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Department of Justice I 00 SW Market Street Portl and , OR 97201

(971) 673-1880 I Fax: (971) 673-1886

I. Other Applicable Laws

2 (]) Subjectto ORS 465.315(3), all activities under this Consent Judgment must

3 be performed in accordance with all applicable federal, state, and local laws.

4 (2) All activities under this Consent Judgment must be performed in accordance

5 with any applicable federal, state, and local laws related to archeological objects and sites and

6 their protection. If archeological objects or human remains are discovered during any

7 investigation, removal , or remedial activity at the Property, Defendant will, at a minimum:

8 (a) stop work immediately in the vicinity of the find; (b) provide any notifications required by

9 ORS 97.745 and ORS 358.920; (c) notify the DEQ Project Manager within 24 hours of the

IO discovery; and ( d) use best efforts to ensure that Defendant and its employees, contractors, 11 counsel, and consultants keep the discovery confidential, including but not limited to refraining

12 from contacting the media or any third party or otherwise sharing information regarding the

13 discovery with any member of the public. Any project delay caused by the discovery of

14 archeological object or human remains is a Force Majeure under Subsection 4.L.

J. Reimbursement of DEO Costs

(I) DEQ reserves the right to submit to Defendant a monthly invoice of costs

17 on or after August 23, 2018 in connection with development and approval of this Consent

18 Judgment and any activities related to the oversight and periodic review of Defendant's

J 9 implementation of this Consent Judgment. Each invoice must include a summary of costs billed

20 to date.

21 (2) DEQ oversight costs payable by Defendant include direct and indirect

22 costs. Direct costs include site-specific expenses, DEQ contractor costs, and DEQ legal costs

23 actually and reasonably incurred by DEQ under ORS 465.200 et seq. DEQ's direct cost

24 summary must include a Land Quality share direct labor summary showing the persons charging

25 time, the number of hours, and the nature of work performed. Indirect costs include those general

26 management and support costs of DEQ and of the Land Quality share allocable to DEQ

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Department of Justice lOO SW Market Street

(97 1) 673-1 880 / Fax: (97 1) 673-1886 oversight under this Consent Judgment and not charged as direct, site-specific costs. Indirect

2 charges are based on actual costs and applied as a percentage of direct personal services costs.

3 DEQ will maintain work logs, payroll records, receipts, and other documents to document work

4 performed and expenses incurred under this Consent Judgment and, upon request, will provide

5 copies of such records to Defendant.

6 (3) Within 30 days of receipt ofDEQ ' s invoice, Defendant will pay the amount of

7 costs billed by check payable to the "State of Oregon, Hazardous Substance Remedial Action

8 Fund," or invoke dispute resolution under Subsection 4.M. After 30 days, any unpaid amounts

9 that are not the subject of pending dispute resolution, or that have been determined owing after l O dispute resolution, become a liquidated debt collectible under ORS 293 .250 or other applicable

11 law.

12 ( 4) Defendant will pay simple interest of 9% per annum on the unpaid balance of

13 any DEQ oversight costs, which interest will begin to accrue at the end of the 30-day payment

14 period, unless dispute resolution has been invoked. Interest on any amount disputed under

15 Subsection 4.L will begin to accrue 30 days from final resolution of any such dispute.

K. Force Majeure 16

17 (I) If any event occurs that is beyond Defendant' s reasonable control and that

18 causes or might cause a delay or deviation in performance of the requirements of this Consent

19 Judgment despite Defendant' s reasonable efforts ("Force Majeure"), Defendant will promptly, 20 upon learning of the event, notify DEQ's Project Manager verbally of the cause of the delay or

21 deviation, its anticipated duration, the measures that have been or will be taken to prevent or

22 minimize the delay or deviation, and the timetable by which Defendant proposes to carry out

23 such measures. Defendant will confirm in writing this information within five working days of

24 the verbal notification. Failure to comply with these notice requirements precludes Defendant

25 from asserting Force Majeure for the event and for any additional delay caused by the event.

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Department of Justice 100 SW Market Street Portl and, OR 9720 I

(2) If Defendant demonstrates to DEQ's satisfaction that the delay or

2 deviation has been or will be caused by Force Majeure, DEQ will extend times for performance

3 of related activities under this Consent Judgment as appropriate. Circumstances or events

4 constituting Force Majeure might include but not be limited to acts of God, unforeseen strikes or

5 work stoppages, unanticipated site conditions, fire, explosion, riot, sabotage, war, and delays in

6 receiving a governmental approval or permit. Normal inclement weather, increased cost of

7 performance or changed business or economic circumstances may not be considered Force

8 Majeure.

L. Dispute Resolution 9

10 (I) Except as provided in Paragraph 4.L.(4), if Defendant disagrees with DEQ

11 regarding any matter relating to this Consent Judgment, Defendant will promptly notify DEQ in

J 2 writing of its objection. DEQ and Defendant then will make a good-faith effort to resolve the

13 disagreement within 14 days of Defendant's written objection. At the end of the 14-day period, J 4 DEQ will provide Defendant with a written statement of its position from DEQ's Northwest

15 Region Cleanup Program Manager. If Defendant still disagrees with DEQ's position, then

16 Defendant, within 14 days of receipt of DEQ's position from the Cleanup Manager, will provide

J 7 Defendant's position and rationale in writing to DEQ's Northwest Region Administrator. The

J 8 Region Administrator may discuss the disputed matter with Defendant and, in any event, will

19 provide Defendant with DEQ's final position in writing as soon as practicable after receipt of

20 Defendant's written position.

21 (2) If Defendant refuses or fails to follow DEQ's final position pursuant to

22 Paragraph 4.L.(l), and DEQ seeks to enforce its final position, the Parties, subject to Subsection

23 2.A. and Section 7, are entitled to such rights, remed ies, and defenses as are provided by

24 applicable law.

25 (3) During the pendency of any dispute resolution under this subsection, the time

26 for completion of work or obligations affected by such dispute is extended for a period of time

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Depaitmcnt of Justice 100 SW Market Street not to exceed the actual time taken to resolve the dispute. Elements of work or obligations not

2 affected by the dispute must be completed in accordance with the applicable schedule.

3 (4) Dispute resolution under this subsection does not apply to DEQ approval or

4 modification of the remedial design/remedial action work plan required under the SOW, which

5 approval or modification is nonetheless subject to Subsection 4.C.

6 M. Effect of Consent Judgment

7 (l) If Defendant fails to comply with this Consent Judgment, DEQ may seek civil

8 penalties under ORS 465.900 and enforcement of this Consent Judgment by this Court. If DEQ

9 seeks enforcement of this Consent Judgment by this Court, DEQ may seek monetary sanctions, 10 such as civil penalties, only ifDEQ has not assessed and collected any civil penalties under

11 ORS 465.900 regarding the same violation.

12 (2) Subject to Section 2, Defendant does not admit any liability, violation of law, 13 factual or legal findings , conclusions, or determinations asserted in this Consent Judgment.

14 (3) Nothing in this Consent Judgment is intended to create any cause of action in

15 favor of any person not a party to this Consent Judgment.

16 (4) Subject to Section 2 and Section 7, nothing in this Consent Judgment prevents

17 DEQ, the State of Oregon, or Defendant from exercising any rights each might have against any

18 person not a paiiy to this Consent Judgment.

19 (5) If for any reason the Court declines to approve this Consent Judgment in the

20 form presented, this settlement is voidable at the sole discretion of any Party and the terms of the

21 settlement may not be used in evidence in any litigation among or against the Patties .

22 (6) DEQ and Defendant intend for this Consent Judgment to be construed as a

23 judicially-approved settlement by which Defendant has resolved its liability to the State of

24 Oregon, within the meaning of Section l 13(f)(2) of the Comprehensive Environmental

25 Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 96 l 3(f)(2), regarding

26 Matters Addressed, and for Defendant not to be liable for claims for contribution regarding

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Department of Justice 100 SW Market Street

(971) 673- 1880 I Fax: (97 1) 673-1 886

Matters Addressed to the extent provided by Section I l3(f)(2) of CERCLA, 2 42 U.S.C. §§ 9613(£)(2).

3 (7) Unless specified otherwise, the use of the term "days" in this Consent

4 Judgment means calendar days .

5 (8) This Consent Judgment is void and of no effect if Defendant does not

6 complete acquisition of the Property by July I, 2019. Defendant will initiate remedial action

7 within 5 years of entry into this consent judgment, and will complete the remedial action within

8 l O years of entry into this consent judgment. If such activities do not occur as stipulated this

9 Consent Judgment is void and of no effect unless Defendant requests a modification.

N. Indemnification and Insurance

(I) Defendant will indemnify and hold harmless the State of Oregon and its

12 commissions, agencies, officers, employees, contractors, and agents from and against any and all

13 claims arising from acts or omissions of Defendant or its officers, employees, contractors, 14 agents, receivers, trustees, or assigns related to this Consent Judgment. DEQ may not be

15 considered a party to any contracts made by Defendant or its agents in carrying out activities

16 under this Consent Judgment.

17 (2) To the extent permitted by Article XI, Section 7, of the Oregon Constitution

18 and by the Oregon Tort Claims Act, the State of Oregon will indemnify and hold harmless

19 Defendant and its respective officers, employees, contractors, and agents , and indemnify the

20 foregoing, from and against any and all claims arising from acts or omissions related to this

21 Consent Judgment of the State of Oregon or its commissions, agencies, officers, employees, 22 contractors, or agents ( except for acts or omissions constituting approval or disapproval of any

23 activity of Defendant under this Consent Judgment). Defendant may not be considered a party to

24 any contract made by DEQ or its agents in carrying out activities under this Consent Judgment.

25 (3) Before commencing any on-site work under this Consent Judgment, 26 Defendant will obtain and maintain for the duration of this Consent Judgment comprehensive

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Department of Just ice 100 SW Market Street

(9 71 ) 673-1 880 I Fax (971) 673-1 886 general liability and automobile insurance with limits of $2 million, combined single limit per

2 occurrence, naming as an additional insured the State of Oregon. Upon DEQ request, Defendant

3 will provide DEQ a copy or other evidence of the insurance. If Defendant demonstrates by

4 evidence satisfactory to DEQ that its contractor(s) or subcontractor(s) maintain equivalent

5 coverage, or coverage for the same risks but in a lesser amount or for a lesser term, Defendant

6 may provide only that portion of the insurance that is not maintained by its contractor(s) or

7 subcontractor(s).

8 0. Parties Bound

9 This Consent Judgment is binding on the Parties and their respective successors, IO agents, and assigns. The undersigned representative of each party certifies that he or she is fully

11 authorized to execute and bind such party to this Consent Judgment. No change in ownership, I 2 corporate, or partnership status relating to the Property in any way alters Defendant ' s obligations

13 under this Consent Judgment, unless otherwise approved in writing by DEQ.

14 P. Modification

I 5 DEQ and Defendant may modify this Consent Judgment by written agreement, 16 subject to approval by this Court. DEQ and Defendant may modify the SOW or a work plan

I 7 without having to obtain court approval.

I 8 Q. Recording

I 9 Within I 4 days of Defendant's acquisition of the property, Defendant will submit a

20 copy or original of this Consent Judgment (whichever is required by the county) to be recorded

2 I in the real property records of Clackamas County, Oregon. Defendant will provide DEQ with

22 written evidence of such recording within seven days ofrecording.

23 R. Service

24 Each Party designates in Exhibit D the name and address of an agent authorized to

25 accept service of process by mai I on behalf of the Party with respect to any matter relating to this

26 Consent Judgment. Each Party agrees to accept service in such manner, and waives any other

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Depa11ment of Justice I 00 SW Market Street

(971) 673- 1880 / Fax (97 1) 673- 1886 service requirements set forth in the Oregon Rules of Civil Procedure or local rules of this Court.

2 The Parties agree that Defendant need not file an answer to the complaint in this action unless or

3 until the Court expressly declines to approve this Consent Judgment.

4 5.

Releases from Liability and Covenant Not to Sue

A. Pursuant to ORS 465.327(3), this Consent Judgment is a "prospective purchaser

6 agreement" entered as a judicial consent judgment in accordance with ORS 465.325. Thus, this

7 Consent Judgment contains related but independent liability provisions pursuant to both

8 ORS 465 .327 and 465.325. The ORS 465.327 liability provisions are set forth below in

9 Subsections 5.B . and 6.B. The ORS 465.325 liability provisions are set forth below in

IO Subsections 5.D., 6.A. , and 6.C. In addition to these state law provisions, this Consent Judgment

I 1 may affect Defendant' s ri ghts and liabilities under federal and other laws, as described in

12 Paragraph 4.N.(6) and Subsection 5.E.

13 B. Pursuant to ORS 465.327, and subject to Subsection 5.C. and the satisfactory

14 performance by Defendant of its obligations under this Consent Judgment, Defendant is not

15 liable to the State of Oregon under ORS 465.200 to 465.545 and 465.900, 466.640, or 468B.3 l 0

16 regarding Existing Hazardous Substance Releases. Defendant bears the burden of proving by a

17 preponderance of the evidence that a hazardous substance release (for all hazardo us substances, 18 hazardous materials, and oil described in Paragraph 2.B.(3)) existed as of the date of Defendant's

19 acquisition of ownership or operation of the Property.

20 C. The release from liability under Subsection 5.B. does not affect liability of

21 Defendant for claims arising from:

22 (l) A release of hazardous substances, sp ill or release of oil or hazardous

23 material, or entry of oil into the waters of the state at or from the Property on or after the date of

24 Defendant's acquisition of ownership or operation of the Property;

25 (2) Contribution to or exacerbation, on or after the date of Defendant's acquisition

26 of ownership or operation of the Prope1iy, of a release of hazardous substance, spill or release of

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Department of Justice 100 SW Market Street

(97 1) 673- 1880 / Fax (971) 673- 1886 oi I or hazardous material, or entry of oil into the waters of the state at or from the Property;

(3) Interference or failure to cooperate, on or after the date of Defendant's

3 acquisition of ownership or operation of the Property, with DEQ or other persons conducting

4 remedia l measures under DEQ's oversight at the Property;

5 (4) Failure to exercise due care or take reasonable precautions, on or after the date

6 of Defendant's acquisition of ownership or operation of the Property, with respect to any

7 hazardous substance at the Property;

8 (5) Disposal or management of hazardous substances or solid waste removed

9 from the Property by or on behalf of Defendant;

l l

(6) Criminal liability ;

(7) Violation of federal , state, or local law on or after the date of Defendant ' s

12 acquisition of ownership or operation of the Property;

13 (8) Any matters as to which the State of Oregon is owed indemnification under

14 Paragraph 4.0 .(1); and

15 (9) Claims based on any failure by Defendant to meet any requirements of thi s

16 Consent Judgment.

l 7 D. Pursuant to ORS 465.325 , subject to satisfactory performance by Defendant of its

18 ob li gations under this Consent Judgment, the State of Oregon covenants not to sue or take any

19 other judicial or administrative action against Defendant under ORS 465.200 to 465.545 and

20 465.900 regarding Matters Addressed, except that the State of Oregon reserves all rights against

21 Defendant with respect to c laims and liabilities described in Subsection 5.C.

22 E. Subject to satisfactory performance by Defendant of its obligations under this

23 Consent Judgment, DEQ releases Defendant from liability to DEQ under any federal or state

24 statute, regulation , or common law, including but not limited to the Comprehensive

25 E nvironmental Response, Compensation and Liability Act (CERCLA), 42 U.S .C. § 9601 et seq. , 26 regarding the release or threatened release of hazardous substances addressed in this

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Department of Justice I 00 SW Market Street

(97 1) 673-1880 / Fax (97 1) 673-1 886

Consent Judgment, except that DEQ reserves all rights against Defendant with respect to claims

2 and liabilities described in Subsection 5.C.

3 6. Third-Party Actions

4 A. This Consent Judgment is a judicially-approved settlement within the meaning of

5 ORS 465.325(6)(6), pursuant to which Defendant has resolved its liability to the State of Oregon

6 and is not liable for claims for contribution regarding Matters Addressed.

7 B. Subject to the satisfactory performance by Defendant of its obligations under this

8 Consent Judgment, Defendant is not liable to any person under ORS 465.200 to 465.545, 9 466.640, or 468B.3 l O regarding Existing Hazardous Substance Releases.

IO C. Subject to Section 7, Defendant may seek contribution in accordance with

11 ORS 465.325(6)(c)(B).

12 7.

Defendant Waivers

A. Defendant waives any claim or cause of action it might have against the State of

14 Oregon regarding Existing Hazardous Substance Releases, provided Defendant reserves all

15 rights concerning the obi igations of DEQ under this Consent Judgment.

16 B. Defendant waives any rights it might have under ORS 465.260(7) and 465.325(2) to

17 seek reimbursement from the Hazardous Substance Remedial Action Fund or the Orphan Site

18 Account for costs incurred under this Consent Judgment or related to the Property.

19 8. Benefits and Burdens Run with the Land

20 A. Pursuant to ORS 465.327(5), the benefits and burdens of this Consent Judgment run

21 with the land, provided the releases from liability and covenant not to sue set forth in Section 5

22 I imit or otherwise affect the liability only of persons who: (I) are not potentially I iable under

23 ORS 465.255, 466.640, or 468B.3 l O for Existing Hazardous Substance Releases; and (2)

24 expressly assume in writing, and are bound by, the terms of this Consent Judgment applicable to

25 the Property as of the date of their acquisition of ownership or operation.

26 B. Upon transfer of ownership of the Property, or any portion of the Property, from

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Depart ment of Just ice 100 SW Market Street

(97 1) 673-1 880 I Fax (97 1) 673-1 886

Defendant to another person or entity, Defendant and the new owner will provide written notice

2 to the DEQ Project Manager within IO days after the transfer. No change in ownership of the

3 Property or the corporate or partnership status of Defendant in any way alters Defendant' s

4 obligations under this Consent Judgment, unless otherwise approved in writing by DEQ.

Certification of Completion 5 9.

6 A. Upon Defendant's completion of work in accordance with the SOW, Defendant will

7 submit a final closeout report to DEQ signed both by an Oregon-registered professional engineer

8 and Defendant's Project Manager certifying that the remedial action for the Site has been

9 completed in accordance with this Consent Judgment. The report must summarize the work

10 performed and include all necessary supporting documentation.

1 I B. DEQ will preliminarily determine whether the remedial action has been performed

12 for the Property and all oversight costs and penalties have been paid in accordance with this

13 Consent Judgment. Upon a preliminary determination that the remedial action for the Property

14 has been satisfactorily performed and all costs and penalties paid, DEQ will provide public

15 notice and opportunity to comment on a proposed certification decision in accordance with

16 ORS 465.320 and 465.325(1 0)(b). After consideration of public comment, and within 90 days

17 after receiving Defendant's closeout report, the Director of DEQ will issue a final certification

18 decision. The certification decision will subsequently be submitted by DEQ to this Court.

19 A certification of completion of the remedial action does not affect Defendant's remaining

20 obligations under this Consent Judgment or for implementation of measures necessary to long-

21 term effectiveness of the remedial action or productive reuse of the Property.

22 10. Continuing Jurisdiction

23 This Court retains jurisdiction over the Parties and the subject matter of this Consent

24 Judgment.

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