Resolution No. 15-16 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
RESOLUTION NO. 15-16
A RESOLUTION AUTHORIZING THE CITY MANAGER TO SIGN A PROSPECTIVE PURCHASER
AGREEMENT WITH THE OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY FOR THE
PURCHASE OF THE SAXONY-PACIFIC PROPERTY
WHEREAS, the City of Tigard's City Center Development Agency has signed a Purchase and Sale Agreement
to purchase the Saxony-Pacific property and this agreement will be assigned to the City of Tigard;and
WHEREAS,a condition precedent to closing is for the City to obtain a Prospective Purchaser Agreement with
the Oregon Department of Environmental Quality;and
WHEREAS, the Prospective Purchaser Agreement will provide certainty to the city about the extent of the
cleanup obligation and liability for the existing contamination if it purchases the property;and
WHEREAS, the Prospective Purchaser Agreement will commit the City to the scope of work in Exhibit C of
the Prospective Purchaser Agreement.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City Manager is authorized to execute the Prospective Purchaser Agreement with the
Oregon Department of Environmental Quality attached as Exhibit A, subject to final legal
review.
SECTION 2: This resolution is effective immediately upon passage.
PASSED: This 5t'day of May,2015.
M r-City of Tigard
ATTEST:
2
Deputy City Recorder- of Tigard
RESOLUTION NO. 15-16
Page 1
Exhibit `A' to Resolution
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF WASHINGTON
STATE OF OREGON, ex rel.
DICK PEDERSEN, DIRECTOR
DEPARTMENT OF ENVIRONMENTAL
QUALITY Case No.
Plaintiff,
V.
CITY OF TIGARD CONSENT JUDGMENT
General Judgment
Defendant.
Contents Page
1. Purpose....................................................................................................................3
2. Stipulations and Findings........................................................................................3
3. Work to be Performed.............................................................................................6
A. Measures to be Undertaken............................................................................6
B. Modification of SOW or Related Work Plans................................................6
C. Additional Measures.......................................................................................7
D. Site Restrictions and Periodic Reviews..........................................................7
4. General Provisions..................................................................................................8
A. Project Managers............................................................................................8
B. Supervising Contractor...................................................................................8
C. DEQ Approvals...............................................................................................9
D. Access to Property........................................................................................10
E. Records .........................................................................................................10
F. Notice and Samples.......................................................................................12
G. Quality Assurance.........................................................................................12
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H. Progressports...........................................................................................13
I. Other Applicable Laws.................................................................................13
J. Reimbursement of DEQ Costs......................................................................14
K. Financial Assurance......................................................................................15
L. Force Majeure...............................................................................................16
M. Dispute Resolution........................................................................................16
N. Effect of Consent Judg ent..........................................................................17
O. Indemnification and Insurance......................................................................18
P. Parties Bound................................ 9
Q. Modification..................................................................................................20
R. Recording. ....................................................................................................20
S. Service...........................................................................................................20
5. Releases from Liability and Covenant Not to Sue.................................................20
6. Third-Party Actions...............................................................................................22
7. Defendant Waivers.................................................................................................23
8. Benefits and Burdens Run with the Land..............................................................23
9. Certification of Completion...................................................................................23
10. Continuing Jurisdiction..............................................
Exhibit A: Vicinity Map
Exhibit B: Property Legal Description
Exhibit C: Scope of Work
Exhibit D: Service List
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1. Purpose
This Consent Judgment is filed simultaneously with and for the purpose of resolving the
underlying complaint by the State of Oregon. Plaintiff State of Oregon ex rel. the Director of the
Department of Environmental Quality("DEQ") and Defendant City of Tigard("Defendant")
(collectively,the"Parties")desire to resolve this action without litigation and have agreed to
entry of the Consent Judgment without admission or adjudication of any issue of fact or law. The
mutual objectives of the Parties are: (a)to protect public health, safety, and welfare and the
environment in accordance with ORS 465.200 through 465.410, and regulations promulgated
thereto, and (b)to facilitate productive reuse of property; and(c)to provide Defendant with
protection from potential liabilities in accordance with applicable law.
2. Stipulations and Findings
A. Defendant stipulates:
(1) 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
Judgment or to assess penalties for noncompliance with this Consent Judgment, any issue other
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 ORS
465.200(13),means: (a)the Property; and(b)the full extent of existing known or unknown
contamination by hazardous substances of any media on, above, or below the Property, or that
has migrated, might have migrated,or hereafter migrates to anywhere from the Property.
(2) For the purposes of this Consent Judgment, "Matters Addressed" means all
investigation, removal,and remedial actions taken or to be taken and all remedial action costs
incurred or to be incurred at or in connection with a release of hazardous substances at the
Facility.
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(3) For the purposes of this Consent Judgment,"Existing Hazardous Substance
Releases"means: (a) any release of hazardous substances, as defined in ORS 465.200, at the
Facility existing as of the date of Defendant's acquisition of ownership or operation of the
Property; (b)any spill or release of oil or hazardous material, as defined in ORS 466.605, at the
Facility existing as of the date of Defendant's acquisition of ownership or operation of the
Property; and(c)the entry of oil into the waters of the state, as defined in ORS 468B.300, from
the Facility before the date of Defendant's acquisition of ownership or operation of the Property.
C. DEQ finds, and Defendant neither admits nor denies:
(1) Defendant is a political subdivision(municipality) of the State of Oregon. The
property proposed for acquisition by Defendant,currently owned by Saxony-Pacific, LLC, is an
approximately 0.44-acre site located at 12533, 12535, and 12537 SW Main Street, Clackamas
County, Oregon, in Section 02,Township 2S, Range 1,of the Willamette Meridian(the
"Property"). The location of the Property is illustrated generally in the Vicinity Map,Exhibit A
to this Consent Judgment. The legal description of the Property is set forth in Exhibit B to this
Consent Judgment. All attachments are incorporated into this Consent Judgment by this
reference. In the 1930s the land use surrounding the site was primarily agricultural. By 1947 the
site was occupied by a large building that housed the Tigard Planing Mill. Later businesses that
occupied the building include a tire shop, automotive repair shop, bakery,jewelry store,real
estate office, and an insurance office.
(2) Sampling below a part of the facility that has been used for auto repair work
found solvent contamination in groundwater. Solvents found included tetrachloroethene (PCE),
up to 106 mg/L and trichloroethene (TCE), up to 803 mg/L. Levels of groundwater
contamination exceed the risk-based concentration for vapor intrusion into buildings for the
urban residential setting. Similar contaminants were found in soil gas at concentrations below
risk-based levels; soil samples did not contain contamination. There is a dry cleaning
establishment immediately NE of the site which may be a potential source of solvents and/or
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there may be an onsite source in the auto repair shop.
Contaminants found in initial sampling of sediments in the adjacent Fanno Creek include
the metals arsenic and lead and the PAHs benz(a)anthracene, benzo(a)pyrene, fluoranthene, and
pyrene. Additional sediment sampling and porewater sampling was completed on the banks of
the Fanno Creek, upstream and downstream of the site. Petroleum,metals,PAHs, and PCBs
were found in sediments but there was no indication that the site was significant source of
sediment contamination. A pore water sample from the shoreline of Fanno Creek was analyzed
for VOCs but none were found; this indicates that the plume of solvent contamination below the
site is not impacting the creek.
(3) These contaminants are "hazardous substances"within the meaning of ORS
465.200(16). The presence of hazardous substances at the Property constitutes a"release"of
hazardous substances within the meaning of ORS 465.200(22), and makes the Property a
"facility"within the meaning of ORS 465.200(13).
(4) Pursuant to ORS 465.255(1)(b), Defendant could become liable to DEQ and
other persons for releases of hazardous substances at or from the Property by becoming the
owner or operator of the Property with actual or constructive knowledge of the releases. On April
8, 2014 Defendant applied to DEQ for a"prospective purchaser" agreement under ORS 465.327
and agreed to reimburse DEQ's costs of technical review and preparation. This Consent
Judgment is intended to protect Defendant from potential liability for pre-acquisition releases of
hazardous substances at or from the Property including any contamination from the Property of
sediments in the adjacent Fanno Creek,in return for Defendant undertaking certain obligations as
described in this Consent Judgment. In determining to propose this Consent Judgment, DEQ
considered reasonably anticipated future land uses at the Property and surrounding properties and
consulted with The City of Tigard Community Development. This Consent Judgment is entered
into pursuant to ORS 465.325 and ORS 465.327.
(5) On November 1,2014, DEQ published notice of this proposed Consent
Judgment and provided opportunity for public comment in accordance with ORS 465.320(1) and
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465.325(4)(d). The comment period ended December 1, 2014.No comments were received.
(6) Consistent with ORS 465.327(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
46813.310 for the Existing Hazardous Substance Releases;
(c) Removal or remedial action is necessary at the Property to protect
human health or the environment;
(d) Defendant's ownership and operation of the Property will not cause,
contribute to, or exacerbate existing contamination, increase health risks, or interfere with
remedial measures at the Property; and
(e) A substantial public benefit will result from this Consent Judgment.
(7) Based on the administrative record,the Director of DEQ determines that: (a)
the release from liability set forth in Subsection 5.13 satisfies the criteria set forth in ORS
465.327(1); (b)the covenant not to sue set forth in Subsection 5.1)satisfies the criteria set forth
in ORS 465.325(7)(a) and(d); and(c)this Consent Judgment and Defendant's commitments
under this Consent Judgment will expedite removal or remedial action,minimize litigation, be
consistent with rules adopted under ORS 465.400, and be in the public interest.
3. Work to be Performed
A. Measures to be Undertaken
Defendant will perform the remedial design and remedial action for the Site in
accordance with the terms and schedules set forth in the Scope of Work("SOW") attached to and
incorporated by reference into this Consent Judgment as Exhibit C, and the terms and schedules
set forth in a DEQ-approved work plan.
B. Modification of SOW or Related Work Plans
(1) If DEQ determines that modification to the work specified in the SOW and/or
in work plans developed pursuant to the SOW is necessary in order to protect public health and
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the environment, DEQ may require that such modification be incorporated in the SOW and/or
such work plans;provided, any such modification may be required pursuant to this paragraph
only to the extent that the modification is consistent with protection of public health and the
environment.
(2) Subject to dispute resolution under Subsection 7.M., Defendant will modify
the SOW and/or work plans as required by DEQ and implement any work required by the
modifications. Before invoking dispute resolution under Subsection 7.M., Defendant and DEQ
will make a good-faith effort to resolve any dispute regarding DEQ-requested modifications by
informal discussions for no more than 30 days following notice from DEQ of a requested
modification.
C. Additional Measures
Defendant may elect at any time during the term of this Consent Judgment to
undertake measures,beyond those required under this Consent Judgment and the SOW,
necessary to address the release or threatened release of hazardous substances at the Property.
Such additional measures are subject to prior approval by DEQ. DEQ's approval will be granted
if DEQ determines that the additional measures are consistent with the remedial action objectives
in the ROD and will not threaten human health or the environment.
D. Site Restrictions and Periodic Reviews
(1) Defendant agrees to prepare and record with the County Clerk, Washington
County, an Easement and Equitable Servitude in the form approved by DEQ unless further
investigation and cleanup after building demolition eliminates the need for site restrictions.
(2) Property subject to the Easement and Equitable Servitude may be freely
alienated at any time after recording,provided the deed or other instrument of conveyance refers
to or incorporates the Easement and Equitable Servitude.
(3) Any deed,title, or other instrument of conveyance regarding the Property
must contain a notice that the Property is the subject of this Consent Judgment. Defendant, in any
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such deed or conveyance, must also reserve such access (by easement, right-of-way,or
otherwise)as might be necessary to carry out Defendant's obligations under this Consent
Judgment.
(4) DEQ may elect to review whatever remedy may be installed on the Property
as described in Exhibit C to ensure that the Property, as it may be developed,remains protective
of public health, safety, and welfare and the environment. Such reviews may include evaluation
of monitoring data,progress reports, inspection and maintenance reports(if any), and of land and
water uses, compliance with institutional controls, and any other relevant information.
4. General Provisions
A. Project Managers
(1) To the extent possible, all reports, notices,and other communications required
under or relating to this Consent Judgment must be directed to:
DEQ Project Manager Defendant Project Manager
Bob Williams Sean Farrelly
Department of Environmental Quality Redevelopment Project Manager
Northwest Region City of Tigard/City Center Development
2020 SW 4t'Ave Portland, OR 97201 13125 SW Hall Blvd
Phone: 503-229-6802 Tigard, OR, 97223]
Email: 503-718-2420
williams.robert.k@deq.state.or.us Sean@tigard-or.gov
(2) The Project Managers or their respective designees must be available and
have the authority to make day-to-day decisions necessary to complete the work described under
Section 3.
B. Supervising Contractor
(1) All aspects of any work to be performed by Defendant pursuant to this
Consent Judgment must be performed under the direction and supervision of a qualified
employee or contractor having experience in hazardous substance remediation and knowledge of
applicable state and federal laws, regulations, and guidance.
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(2) Before initiation of remedial design work for the Property, Defendant will
notify DEQ in writing of the name,title,and qualifications of any proposed supervising
contractor. DEQ may for good cause disapprove the proposed contractor. In the event of such
disapproval, DEQ will notify Defendant in writing of the reasons for its disapproval within 14
days of receipt of the initial notice from Defendant. Defendant, within 14 days of receiving
DEQ's notice of disapproval, will notify DEQ of the name, title,and qualifications of an
alternate supervising contractor, subject to DEQ's right to disapprove under the terms and
schedule specified above.
(3) If, during the course of work required under this Consent Judgment,
Defendant proposes to change its supervising contractor, Defendant will notify DEQ in
accordance with the provisions of the preceding paragraph. DEQ may disapprove such
contractor, under the terms and schedule specified in the preceding paragraph.
C. DEO Approvals
(1) In the event that DEQ review and approval is required for any plan or activity
under this Consent Judgment,Defendant may not proceed to implement the plan or activity prior
to DEQ approval. Any DEQ delay in granting or denying approval correspondingly extends the
time for completion by Defendant. Prior approval is not required in emergencies, provided
Defendant notifies DEQ immediately after the emergency and evaluates the impact of its actions.
(2) After review of any plan, report, or other item required to be submitted for
DEQ approval under this Consent Judgment, DEQ will: (a) approve the submission in whole or
in part; or(b)disapprove the submission in whole or in part, and notify Defendant of its
deficiencies and/or request modifications to cure the deficiencies.
(3) DEQ approvals, rejections, or identification of deficiencies will be given in
writing within the time specified in the SOW or as soon as practicable,and will state DEQ's
reasons with reasonable specificity.
(4) In the event of DEQ disapproval or request for modification of a submission,
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Defendant will,within 30 days of receipt of the DEQ notice or such longer time as may be
specified in the notice,either correct the deficiencies and resubmit the revised report or other
item for approval, or invoke dispute resolution under Subsection 4.M.
(5) In the event of two deficient submittals of the same deliverable that are
deficient for the same reasons due to Defendant's failure in good faith to cure the original
deficiency, DEQ may modify the submission to cure the deficiency.
(6) In the event of approval or modification of a submission by DEQ, Defendant
will implement the action(s)required by the plan, report, or other item, as so approved or
modified.
D. Access to Property
(1) Defendant will allow DEQ to enter all portions of the Property owned by or
under the control of Defendant at all reasonable times for the purpose of overseeing Defendant's
performance under this Consent Judgment, including but not limited to: inspecting records
relating to work under this Consent Judgment; conducting such tests and taking such samples as
DEQ deems necessary, verifying data submitted to DEQ by Defendant; conducting periodic
review; and using camera, sound recording, or other recording equipment. DEQ will make
available to Defendant, upon Defendant's request, any photographs or recorded or videotaped
material taken.
(2) Defendant will seek to obtain access to property not owned or controlled by
Defendant as necessary to perform the work required in this Consent Judgment, including access
by DEQ for purposes described in Paragraph 4.D.(1). DEQ may use its statutory authority to
obtain access to property on behalf of Defendant if DEQ determines that access is necessary and
that Defendant has exhausted all good faith efforts to obtain access.
E. Records
(1) In addition to those reports and documents specifically required under this
Consent Judgment, Defendant will provide to DEQ, within 10 days of DEQ's written request,
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copies of Quality Assurance/Quality Control (QA/QC) memoranda and audits, raw data, final
plans,task memoranda, field notes(not made by or at the direction of Defendant's attorney), and
laboratory analytical reports relating to the work to be performed under this Consent Judgment.
(2) Defendant will preserve all records and documents in possession or control of
Defendant or its employees, agents,or contractors that relate in any way to activities under this
Consent Judgment for at least five years after certification of completion under Section 9. Upon
DEQ's request, Defendant will provide to DEQ, or make available for copying by DEQ, copies
of non-privileged records. For a period of 10 years after certification of completion, Defendant
will provide DEQ 60 days notice before destruction or other disposal of such records or
documents. Ten years after certification of completion, Defendant has no further obligation to
preserve documents or records.
(3) Subject to Paragraph 4.E.(4), Defendant may assert a claim of confidentiality
under the Oregon Public Records Law regarding any documents or records submitted to or
copied by DEQ pursuant to this Consent Judgment. DEQ will treat documents and records for
which a claim of confidentiality has been made in accordance with ORS 192.410 through
192.505. If Defendant does not make a claim of confidentiality at the time the documents or
records are submitted to or copied by DEQ,the documents or records may be made available to
the public without notice to Defendant.
(4) Defendant will identify to DEQ(by addressor-addressee, date, general subject
matter, and distribution)any document,record, or item withheld from DEQ on the basis of
attorney-client or attorney work product privilege, except to the extent that such identifying
information is itself subject to a privilege. Attorney-client or work product privilege may not be
asserted with respect to any records required to be submitted under Paragraph 4.E.(1). DEQ
reserves its rights under law to obtain documents DEQ asserts are improperly withheld by
Defendant.
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F. Notice and Samples
(1) Defendant will make every reasonable effort to notify DEQ of any excavation,
drilling, sampling, or other fieldwork to be conducted under this Consent Judgment at least five
working days before such activity,but in no event less than 24 hours before such activity. Upon
DEQ's verbal request,Defendant will make every reasonable effort to provide a split or duplicate
sample to DEQ or allow DEQ to take a split or duplicate of any sample taken by Defendant
while performing work under this Consent Judgment. DEQ will provide Defendant with copies
of all analytical data from such samples as soon as practicable.
(2) If DEQ conducts any sampling or analysis in connection with this Consent
Judgment, DEQ will, except in an emergency, make every reasonable effort to notify Defendant
of any excavation, drilling, sampling, or other fieldwork at least 72 hours before such activity.
Upon Defendant's verbal request, DEQ will make every reasonable effort to provide a split or
duplicate sample to Defendant or allow Defendant to take a split or duplicate of any sample
taken by DEQ, and will provide Defendant with copies of all analytical data for such samples.
Defendant will provide DEQ with copies of all analytical data from such samples as soon as
practicable.
G. Quality Assurance
(1) Defendant will conduct all sampling, sample transport, and sample analysis in
accordance with the QA/QC provisions approved by DEQ as part of the work plan. All plans
prepared and work conducted as part of this Consent Judgment must be consistent with DEQ's
Environmental Cleanup Quality Assurance Policy(DEQ 10-LQ-0063-QAG). Defendant will
make every reasonable effort to ensure that each laboratory used by Defendant for analysis
performs such analyses in accordance with such provisions.
(2) If DEQ conducts sampling or analysis in connection with this Consent
Judgment, DEQ will conduct sampling, sample transport, and sample analysis in accordance
with the QA/QC provisions of the approved work plan. Upon written request, DEQ will provide
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Defendant with copies of DEQ's records regarding such sampling,transport, and analysis.
H. Progress ss Reports
In the event of any remediation or work being performed on the Property as
described in Exhibit C, and during each calendar quarter following the latter of entry of this
Consent Judgment or the initiation of such work, Defendant will deliver to DEQ, on or before the
tenth working day of each quarter, a progress report containing:
(1) Actions taken by Defendant under this Consent Judgment during the previous
three months;
(2) Actions scheduled to be taken by Defendant in the next three months;
(3) A summary of sampling, test results, and any other data generated or received
by Defendant, if any, during the previous three months; and
(4) A description of any problems experienced by Defendant during the previous
three months and actions taken to resolve them.
DEQ may approve less frequent reporting by Defendant, if warranted. Progress reports
may be submitted in electronic form. If submitted in hard-copy written form,two copies must be
provided to DEQ.
I. Other Applicable Laws
(1) Subject to ORS 465.315(3), all activities under this Consent Judgment must
be performed in accordance with all applicable federal, state, and local laws.
(2) All activities under this Consent Judgment must be performed in accordance
with any applicable federal, state,and local laws related to archeological objects and sites and
their protection. If archeological objects or human remains are discovered during any
investigation,removal,or remedial activity at the Property, Defendant will, at a minimum: (a)
stop work immediately in the vicinity of the find; (b)provide any notifications required by ORS
97.745 and ORS 358.920; (c)notify the DEQ Project Manager within 24 hours of the discovery;
and (d)use best efforts to ensure that Defendant and its employees, contractors, counsel, and
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consultants keep the discovery confidential, including but not limited to refraining from
contacting the media or any third party or otherwise sharing information regarding the discovery
with any member of the public. Any project delay caused by the discovery of archeological
object or human remains is a Force Majeure under Subsection 4.L.
J. Reimbursement of DEQ Costs
(1) DEQ will submit to Defendant a monthly invoice of costs on or after April 8,
2014 in connection with development and approval of this Consent Judgment and any activities
related to the oversight and periodic review of Defendant's implementation of this Consent
Judgment. Each invoice must include a summary of costs billed to date.
(2) DEQ oversight costs payable by Defendant include direct and indirect costs.
Direct costs include site-specific expenses,DEQ contractor costs, and DEQ legal costs actually
and reasonably incurred by DEQ under ORS 465.200 et seq. DEQ's direct cost summary must
include a Land Quality Division("LQD")direct labor summary showing the persons charging
time,the number of hours, and the nature of work performed. Indirect costs include those general
management and support costs of DEQ and of the LQD allocable to DEQ oversight under this
Consent Judgment and not charged as direct, site-specific costs. Indirect charges are based on
actual costs and applied as a percentage of direct personal services costs. DEQ will maintain
work logs,payroll records,receipts, and other documents to document work performed and
expenses incurred under this Consent Judgment and,upon request, will provide copies of such
records to Defendant.
(3) Within 30 days of receipt of DEQ's invoice, Defendant will pay the amount of
costs billed by check payable to the"State of Oregon, Hazardous Substance Remedial Action
Fund," or invoke dispute resolution under Subsection 4.M. After 30 days, any unpaid amounts
that are not the subject of pending dispute resolution, or that have been determined owing after
dispute resolution, become a liquidated debt collectible under ORS 293.250 or other applicable
law.
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(4) Defendant will pay simple interest of 9%per annum on the unpaid balance of
any DEQ oversight costs,which interest will begin to accrue at the end of the 30-day payment
period, unless dispute resolution has been invoked. Interest on any amount disputed under
Subsection 4.M will begin to accrue 30 days from final resolution of any such dispute.
K. Financial Assurance
(1) In the event of any remediation or work being performed on the Property as
described in Exhibit C, Defendant will demonstrate its ability to perform such remedial work by
obtaining and submitting to DEQ for approval one or a combination of the following: (a)a
performance bond; (b)a letter of credit equaling the total estimated cost of the work; (c)
evidence of an escrow account dedicated to payment of or reimbursement for remedial action
costs; or(d) internal financial information(financial test or corporate guarantee) sufficient to
satisfy DEQ that its net worth is sufficient to make additional financial assurances unnecessary.
If internal financial information is relied upon,the standards used to determine the adequacy of
Defendant's resources must be substantially equivalent to those set forth in 40 CFR Part 265,
Subpart H. Financial assurance must be submitted within 30 days of DEQ approval of the final
remedial design work plan in the amount of the estimated total capital cost of the remedial
action.
(2) Within 30 days of receipt of the financial assurance or other information,
DEQ will determine its adequacy and communicate that determination to Defendant. If DEQ
determines that such assurance or information is inadequate, Defendant will submit one of the
other forms of assurance to DEQ for approval. If internal corporate information is relied upon,
Defendant will submit updated financial information annually on the anniversary date of
issuance of this Consent Judgment.
(3) During implementation of the remedial action, DEQ may require Defendant to
revise the cost estimates used to demonstrate Defendant's financial assurance, and Defendant at
its own election may revise the cost estimate for the required work from time to time. If a revised
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cost estimate is significantly higher or lower than the original cost estimate, DEQ may require
Defendant to submit revised financial assurance under the terms and schedule set forth in the
preceding paragraphs adequate to assure financial capability at the level of the revised cost
estimate.
(4) Except as approved by DEQ, work required under this Consent Judgment may
not be delayed pending submission and/or approval of financial assurance under this subsection.
L. Force Majeure
(1) If any event occurs that is beyond Defendant's reasonable control and that
causes or might cause a delay or deviation in performance of the requirements of this Consent
Judgment despite Defendant's reasonable efforts("Force Majeure"), Defendant will promptly,
upon learning of the event,notify DEQ's Project Manager verbally of the cause of the delay or
deviation, its anticipated duration,the measures that have been or will be taken to prevent or
minimize the delay or deviation,and the timetable by which Defendant proposes to carry out
such measures. Defendant will confirm in writing this information within five working days of
the verbal notification. Failure to comply with these notice requirements precludes Defendant
from asserting Force Majeure for the event and for any additional delay caused by the event.
(2) If Defendant demonstrates to DEQ's satisfaction that the delay or deviation
has been or will be caused by Force Majeure, DEQ will extend times for performance of related
activities under this Consent Judgment as appropriate. Circumstances or events constituting
Force Majeure might include but not be limited to acts of God, unforeseen strikes or work
stoppages,unanticipated site conditions, fire, explosion, riot, sabotage, war, and delays in
receiving a governmental approval or permit.Normal inclement weather, increased cost of
performance or changed business or economic circumstances may not be considered Force
Majeure.
M. Dispute Resolution
(1) Except as provided in Paragraph 4.M.(4), if Defendant disagrees with DEQ
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regarding any matter relating to this Consent Judgment, Defendant will promptly notify DEQ in
writing of its objection. DEQ and Defendant then will make a good-faith effort to resolve the
disagreement within 14 days of Defendant's written objection. At the end of the 14-day period,
DEQ will provide Defendant with a written statement of its position from DEQ's Northwest
Region Cleanup Manager. If Defendant still disagrees with DEQ's position,then Defendant,
within 14 days of receipt of DEQ's position from the Region Cleanup Manager, will provide
Defendant's position and rationale in writing to DEQ's Northwest Region Administrator. The
Region Administrator may discuss the disputed matter with Defendant and, in any event, will
provide Defendant with DEQ's final position in writing as soon as practicable after receipt of
Defendant's written position.
(2) If Defendant refuses or fails to follow DEQ's final position pursuant to
Paragraph 4.M.(1), and DEQ seeks to enforce its final position, the Parties, subject to Subsection
2.A. and Section 7, are entitled to such rights, remedies, and defenses as are provided by
applicable law.
(3) During the pendency of any dispute resolution under this subsection,the time
for completion of work or obligations affected by such dispute is extended for a period of time
not to exceed the actual time taken to resolve the dispute. Elements of work or obligations not
affected by the dispute must be completed in accordance with the applicable schedule.
(4) Dispute resolution under this subsection does not apply to DEQ approval or
modification of the remedial design/remedial action work plan required under the SOW, which
approval or modification is nonetheless subject to Subsection 4.C.
N. Effect of Consent Judgment
(1) If Defendant fails to comply with this Consent Judgment, DEQ may seek civil
penalties under ORS 465.900 and enforcement of this Consent Judgment by this Court. If DEQ
seeks enforcement of this Consent Judgment by this Court, DEQ may seek monetary sanctions,
such as civil penalties, only if DEQ has not assessed and collected any civil penalties under ORS
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465.900 regarding the same violation.
(2) Subject to Section 2, Defendant does not admit any liability, violation of law,
factual or legal findings, conclusions,or determinations asserted in this Consent Judgment.
(3) Nothing in this Consent Judgment is intended to create any cause of action in
favor of any person not a party to this Consent Judgment.
(4) Subject to Section 2 and Section 7,nothing in this Consent Judgment prevents
DEQ,the State of Oregon,or Defendant from exercising any rights each might have against any
person not a party to this Consent Judgment.
(5) If for any reason the Court declines to approve this Consent Judgment in the
form presented,this settlement is voidable at the sole discretion of any Party and the terms of the
settlement may not be used in evidence in any litigation among or against the Parties.
(6) DEQ and Defendant intend for this Consent Judgment to be construed as a
judicially-approved settlement by which Defendant has resolved its liability to the State of
Oregon, within the meaning of Section 113(f)(2)of the Comprehensive Environmental
Response, Compensation and Liability Act(CERCLA),42 U.S.C. § 9613(f)(2), regarding
Matters Addressed, and for Defendant not to be liable for claims for contribution regarding
Matters Addressed to the extent provided by Section 113(f)(2)of CERCLA,42 U.S.C. §§
9613(f)(2).
(7) Unless specified otherwise, the use of the term"days"in this Consent
Judgment means calendar days.
(8) This Consent Judgment is void and of no effect if Defendant does not
complete acquisition of the Property by September 30, 2015, unless this date is extended mutual
prior written agreement of the parties hereto.
O. Indemnification and Insurance
(1) Defendant will indemnify and hold harmless the State of Oregon and its
commissions, agencies,officers, employees, contractors, and agents from and against any and all
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claims arising from acts or omissions related to this Consent Judgment of Defendant or its
officers, employees,contractors,agents,receivers,trustees, or assigns. DEQ may not be
considered a party to any contracts made by Defendant or its agents in carrying out activities
under this Consent Judgment.
(2) To the extent permitted by Article XI, Section 7, of the Oregon Constitution
and by the Oregon Tort Claims Act,the State of Oregon will indemnify and hold harmless
Defendant and its respective officers, employees, contractors, and agents, and indemnify the
foregoing, from and against any and all claims arising from acts or omissions related to this
Consent Judgment of the State of Oregon or its commissions, agencies, officers, employees,
contractors,or agents(except for acts or omissions constituting approval or disapproval of any
activity of Defendant under this Consent Judgment). Defendant may not be considered a party to
any contract made by DEQ or its agents in carrying out activities under this Consent Judgment.
(3) Before commencing any on-site work under this Consent Judgment,
Defendant will obtain and maintain for the duration of this Consent Judgment comprehensive
general liability and automobile insurance with limits of$1 million, combined single limit per
occurrence,naming as an additional insured the State of Oregon. Upon DEQ request,Defendant
will provide DEQ a copy or other evidence of the insurance. If Defendant demonstrates by
evidence satisfactory to DEQ that its contractor(s) or subcontractor(s)maintain equivalent
coverage, or coverage for the same risks but in a lesser amount or for a lesser term,Defendant
may provide only that portion of the insurance that is not maintained by its contractor(s) or
subcontractor(s).
P. Parties Bound
This Consent Judgment is binding on the Parties and their respective successors,
agents, and assigns. The undersigned representative of each party certifies that he or she is fully
authorized to execute and bind such party to this Consent Judgment. No change in ownership,
corporate, or partnership status relating to the Property in any way alters Defendant's obligations
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under this Consent Judgment, unless otherwise approved in writing by DEQ.
Q. Modification
DEQ and Defendant may modify this Consent Judgment by written agreement,
subject to approval by this Court. DEQ and Defendant may modify the SOW or a work plan
without having to obtain court approval,provided the modification is consistent with the ROD.
R. Recording
Within 14 days of entry of this Consent Judgment by the Court,Defendant will
submit a copy or original of this Consent Judgment(whichever is required by the county)to be
recorded in the real property records of Clackamas County, Oregon. Defendant will provide
DEQ with written evidence of such recording within seven days of recording.
S. Service
Each Party designates in Exhibit E the name and address of an agent authorized to
accept service of process by mail on behalf of the Party with respect to any matter relating to this
Consent Judgment. Each Party agrees to accept service in such manner, and waives any other
service requirements set forth in the Oregon Rules of Civil Procedure or local rules of this Court.
The Parties agree that Defendant need not file an answer to the complaint in this action unless or
until the Court expressly declines to approve this Consent Judgment.
5. Releases from Liability and Covenant Not to Sue
A. Pursuant to ORS 465.327(3),this Consent Judgment is a"prospective purchaser
agreement" entered as a judicial consent judgment in accordance with ORS 465.325. Thus, this
Consent Judgment contains related but independent liability provisions pursuant to both ORS
465.327 and 465.325. The ORS 465.327 liability provisions are set forth below in Subsections
5.13. and 6.13. The ORS 465.325 liability provisions are set forth below in Subsections 5.D.,
6.A., and 6.C. In addition to these state law provisions,this Consent Judgment may affect
Defendant's rights and liabilities under federal and other laws,as described in Paragraph 4.N.(6)
and Subsection 5.E.
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B. Pursuant to ORS 465.327,and subject to Subsection 5.C. and the satisfactory
performance by Defendant of its obligations under this Consent Judgment, Defendant is not
liable to the State of Oregon under ORS 465.200 to 465.545 and 465.900,466.640, or 46813.310
regarding Existing Hazardous Substance Releases. Defendant bears the burden of proving by a
preponderance of the evidence that a hazardous substance release (for all hazardous substances,
hazardous materials,and oil described in Paragraph 2.B.(3))existed as of the date of Defendant's
acquisition of ownership or operation of the Property.
C. The release from liability under Subsection 5.13. does not affect liability of
Defendant for claims arising from:
(1) A release of hazardous substances, spill or release of oil or hazardous
material,or entry of oil into the waters of the state at or from the Property on or after the date of
Defendant's acquisition of ownership or operation of the Property;
(2) Contribution to or exacerbation, on or after the date of Defendant's acquisition
of ownership or operation of the Property, of a release of hazardous substance, spill or release of
oil 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
acquisition of ownership or operation of the Property, with DEQ or other persons conducting
remedial measures under DEQ's oversight at the Property;
(4) Failure to exercise due care or take reasonable precautions, on or after the date
of Defendant's acquisition of ownership or operation of the Property, with respect to any
hazardous substance at the Property;
(5) Disposal or management of hazardous substances or solid waste removed
from the Property by or on behalf of Defendant;
(6) Criminal liability;
(7) Violation of federal,state, or local law on or after the date of Defendant's
acquisition of ownership or operation of the Property;
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(8) Any matters as to which the State of Oregon is owed indemnification under
Paragraph 4.0.(1); and
(9) Claims based on any failure by Defendant to meet any requirements of this
Consent Judgment.
D. Pursuant to ORS 465.325, subject to satisfactory performance by Defendant of its
obligations under this Consent Judgment, the State of Oregon covenants not to sue or take any
other judicial or administrative action against Defendant under ORS 465.200 to 465.545 and
465.900 regarding Matters Addressed,except that the State of Oregon reserves all rights against
Defendant with respect to claims and liabilities described in Subsection 5.C.
E. Subject to satisfactory performance by Defendant of its obligations under this
Consent Judgment, DEQ releases Defendant from liability to DEQ under any federal or state
statute,regulation, or common law,including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act(CERCLA), 42 U.S.C. § 9601 et seq.,
regarding the release or threatened release of hazardous substances addressed in this Consent
Judgment,except that DEQ reserves all rights against Defendant with respect to claims and
liabilities described in Subsection S.C.
6. Third-Party Actions
A. This Consent Judgment is a judicially-approved settlement within the meaning of
ORS 465.325(6)(b), pursuant to which Defendant has resolved its liability to the State of Oregon
and is not liable for claims for contribution regarding Matters Addressed.
B. Subject to the satisfactory performance by Defendant of its obligations under this
Consent Judgment, Defendant is not liable to any person under ORS 465.200 to 465.545,
466.640, or 468B.310 regarding Existing Hazardous Substance Releases.
C. Subject to Section 7, Defendant may seek contribution in accordance with ORS
465.325(6)(c)(B).
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7. Defendant Waivers
A. Defendant waives any claim or cause of action it might have against the State of
Oregon regarding Existing Hazardous Substance Releases,provided Defendant reserves all
rights concerning the obligations of DEQ under this Consent Judgment.
B. Defendant waives any rights it might have under ORS 465.260(7) and 465.325(2)to
seek reimbursement from the Hazardous Substance Remedial Action Fund or the Orphan Site
Account for costs incurred under this Consent Judgment or related to the Property.
8. Benefits and Burdens Run with the Land
A. Pursuant to ORS 465.327(5),the benefits and burdens of this Consent Judgment run
with the land,provided the releases from liability and covenant not to sue set forth in Section 5
limit or otherwise affect the liability only of persons who: (1)are not potentially liable under
ORS 465.255,466.640,or 468B.310 for Existing Hazardous Substance Releases; and(2)
expressly assume in writing, and are bound by,the terms of this Consent Judgment applicable to
the Property as of the date of their acquisition of ownership or operation.
B. Upon transfer of ownership of the Property, or any portion of the Property, from
Defendant to another person or entity,Defendant and the new owner will provide written notice
to the DEQ Project Manager within 10 days after the transfer.No change in ownership of the
Property or the corporate or partnership status of Defendant in any way alters Defendant's
obligations under this Consent Judgment, unless otherwise approved in writing by DEQ.
9. Certification of Completion
A. Upon Defendant's completion of work in accordance with the SOW, Defendant will
submit a final closeout report to DEQ signed both by an Oregon-registered professional engineer
and Defendant's Project Manager certifying that the remedial action for the Site has been
completed in accordance with this Consent Judgment. The report must summarize the work
performed and include all necessary supporting documentation.
B. DEQ will preliminarily determine whether the remedial action has been performed
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for the Property and all oversight costs and penalties have been paid in accordance with this
Consent Judgment. Upon a preliminary determination that the remedial action for the Property
has been satisfactorily performed and all costs and penalties paid, DEQ will provide public
notice and opportunity to comment on a proposed certification decision in accordance with ORS
465.320 and 465.325(10)(b). After consideration of public comment, and within 90 days after
receiving Defendant's closeout report,the Director of DEQ will issue a final certification
decision. The certification decision will subsequently be submitted by DEQ to this Court. A
certification of completion of the remedial action does not affect Defendant's remaining
obligations under this Consent Judgment or for implementation of measures necessary to long-
term effectiveness of the remedial action or productive reuse of the Property.
10. Continuing Jurisdiction
This Court retains jurisdiction over the Parties and the subject matter of this Consent
Judgment.
IT IS SO ORDERED this day of ,
Circuit Court Judge, Washington County
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Department of Justice
STATE OF OREGON, DEPARTMENT OF ENVIRONMENTAL QUALITY
By: Date:
Lydia Emer
Administrator, Operations Division
By: Date:
Gary Vrooman OSB No. 075832
Assistant Attorney General
Oregon Department of Justice
1515 SW Fifth Avenue, Suite 410
Portland, OR 97201
Attorney for DEQ
City of Tigard
By: Date:
Marty Wine
City Manager
By: Date:
Christopher L. Reive OSB No. 833058
Of Attorneys for City of Tigard
Two Centerpointe, Suite 600
Lake Oswego, OR 97035
Page 25 - CONSENT JUDGMENT
Department of Justice
Exhibit A
Vicinity Map
Exhibit A
LEGEND:
– Fano Geek
Inferred Ge neral DteckA of
��Grouredwater moeemtnl
Q Approximate Ske Bound"
"' ®Approx+nate Taxol
aM
Swat, > ars
Non:
t..No fto WA—W.0,0r ftyherrNd anular.
a swteea.ueu..re+a wwroowwerarrwewra 0 125 350 500
fq.ew+eealatap
Feet
i[nT
7370SSWDDurhr+CRONCITY OF TIGARD
W
Pw od,OR,VIA,87224
nnr SITE LOCATION om er. ""` VATE
NAM NIfNEMBER 2012
MOACT PHASE 11 ENVIRONMENTAL SITE ASSESSMENT ax»er: Mo P*OIXCT Nn:
8C 2$1M 126!0-t
SAXONY-PACIFIC PROPERTIES-12535 SW MAIN STREET nroxc�MU fmuae rw-
TIGARD,OREGON on SP w Ft t�."o klo MORE 1
rct7iixJat7hOpta�ifOtisb7'�t»SC+Fq�Yet-s4taa►a^�'v.a
Page 26 - CONSENT JUDGMENT
Department of Justice
Exhibit B
Property Legal Description
Pop 4015
Exhibit"B"
Real property in the County of Washi%On,State of Oregw,descfted as fols ws:
PARCEL I:
BEGINNING AT AN IRON PIPE MARKING THE NORTHWEST CORNER OF THE SOUTH 1/2 OF THE JOHN
HICKLIN DONATION LAND CLAIM NO. 37 IN TOWNSHIP 2 SOUTH, RANGE 1 WEST,WILLAMETTE
MERIDIAN,WASHINGTON COUNTY,OREGON.
AND RUNNING THENCE SOUTH 45°00'WEST ON LINE BETWEEN THE SAID JOHN HICKLJN DONATION
LAND CLAIM AND THE GORGE RICHARDSON DONATION LAND CLAIM,A DISTANCE OF 1807.1 FEET
TO A POINT;
THENCE SOUTH 45°00'EAST ALONG THE EASTERLY LINE OF THAT CERTAIN TRACT OF LAND
CONVEYED TO EMIL A.AND OLIVIA T.JOHNSON BY DEED AS RECORDED IN BOOK 118 PAGE 0069,
WASHINGTON COUNTY,DEED RECORDS A DISTANCE OF 131.0 FEET TO THE POINT OF BEGINNING OF
THE HEREIN DESCRIBED TRACT;
THENCE FROM THE DESCRIBED POINT OF BEGINNING SOUTH 45°00°EAST ALONG THE EASTERLY LINE
OF SAID JOHNSON TRACT A DISTANCE OF 93.0 FEET TO A POINT ON THE NORTHERLY LINE OF THE
PACIFIC HIGHWAY;
THENCE FOLLOWING:SAID NORTHERLY LINE OF THE PACIFIC HIGHWAY ON A 5730.0 FOOT RADIUS
CURVE TO THE RIGHT(THE LONG CHORD OF WHICH BEARS SOUTH 57831'WEST 23.5 FEET)235
FEET TO A POINT MARKED BY AN IRON HIGHWAY RIGHT OF WAY MARKER;
THENCE SOUTH 57°38'WEST ALONG SAID RIGHT OF WAY LINE 145.0 FEET TO A POINT IN THE
CENTER OF FANNO CREEK,
THENCE NORTH 36°30'WEST IN THE CENTER OF FANNO CREEK A DISTANCE OF 78.6 FEET TO A
POINT,
THENCE NORTH 55652'WEST IN THE CENTER OF FANNO CREEK A DISTANCE OF 6.1 FEET TO A POINT;
THENCE NORTH 55°49'EAST ALONG THE HIGHWAY RIGHT OF WAY LINE A DISTANCE OF 156.4 FEET
TO THE POINT OF BEGINNING.
THE LEGAL DESCRIPTION WAS CREATED PRIOR TO JANUARY 01,2010.
PARCEL II:
BEGINNING AT AN IRON PIPE MARKING THE NORTHEAST CORNER OF THE SOUTH 1/2 OF THE JOHN
HICKLIN DONATION LAND CLAIM IN TOWNSHIP 2 SOUTH,RANGE 1 WEST,WILLAMETTE MERIDIAN,
WASHINGTON COUNTY,OREGON.
AND RUNNING THEME SOUTH 45'18'WEST ALONG THE DONATION LAND CLAIM LINE 1814.5 FEET
TO THE MOST WESTERLY CORNER OF LOT 15 OF ELECTRIC ADDITION TO TIGARDVILLE(PIAT BOOK
2,PAGE 0042),A DULY RECORDED SUBDIVISION IN WASHINGTON COUNTY,OREGON;
THENCE SOUTH 44'47'EAST ON THE SOUTHWESTERLY LINE OF SAID LOT 15 AND THE
NORTHEASTERLY LINE OF A TRACT OF LAND CONVEYED TO EMIL JOHNSON BY DEED AS RECORDED IN
BOOK 118 PAGE 0069 OF WASHINGTON COUNTY DEED RECORDS, 131.0 FEET TO THE WESTERLY
CORNER OF THE SOUTHEASTERLY 1/2 OF SAID LOT 15 AND THE TRUE POINT OF BEGINNING OF THE
HEREIN DESCRIBED TRACT;
THENCE FROM THE DESCRIBED POINT OF BEGINNING SOUTH 44°47 EAST ON SAID SOUTHWESTERLY
UNE OF LOT 15 A DISTANCE OF 96.0 FEET TO THE NORTHERLY LINE OF THE OLD TAYLORS FERRY
ROAD;
THENCE NORTH 60°12'EAST ON SAID ROAD LINE 22.2 FEET TO AN IRON;
THENCE NORTH 36610'WEST 48.3 FEET TO AN IRON;
THENCE NORTH 60012'EAST 40.1 FEET TO AN IRON;
gAnax*tet'fie+fnvxwxeCtvry ,*
Page 27 - CONSENT JUDGMENT
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THENCE NORTH 36°10'WEST 65.0 FEET TO AN IRON ON THE EASTERLY BOUNDARY OF THE STATE:
HIGHWAY;
THENCE SOUTH 45°14'WEST ALONG SAID LINE, 77.24 FEET TO THE POINT OF BEGINNING.
THE LEGAL DESCRIPTION WAS CREATED PRIOR TO JANUARY 01, 2010.
F*st*nwkAff 7A5ir fnw►ener Ganrar
Page 28 - CONSENT JUDGMENT
Department of Justice
Exhibit C
Scope of Work
Exhibit C—Scope of Work
1. The City will commit to install, or require installation of, engineering controls to mitigate the
potential for vapor intrusion, and to agree to institutional controls at the time of closing to
enforce the engineering controls.
a. The engineering controls will be installed at the time of redevelopment, and will
consist of a vapor mitigation system comprised of a network of perforated pipes in trenches,
covered with gravel, and overlain by a heavy duty vapor barrier. The system will be passive in
nature (but capable of retrofitting to an active system), allowing any accumulated vapors to vent
to outdoor air.
b. Institutional controls will be in the form of an Easement and Equitable Servitudes that
will enforce the maintenance of engineering controls and prevent use of site groundwater.
2. Prior to building demolition,the City will prepare a contaminated media management plan
(CMMP)for use by contractors working at the site.
3. At the time of building demolition,the City will perform additional environmental
investigation to evaluate whether soil cleanup work may be necessary to reduce or eliminate the
need for the vapor mitigation system
a. Additional investigation will consist of approximately five soil gas sample points with
follow-up soil and groundwater sampling. Sampling locations will be proposed to DEQ for
concurrence.
b. If contaminated soils are identified,the most contaminated material will be removed to
reduce or eliminate future risk from on-site sources.
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c. If additional groundwater investigation is determined to be necessary then groundwater
sampling may include three to four groundwater monitoring wells, which will be sampled for up
to four quarters. As an alternative additional push probe groundwater sample points may be
installed with DEQ approval.
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Department of Justice
Exhibit D
Service List
FOR PLAINTIFF: Gary Vrooman, OSB No. 075832
Assistant Attorney General
Oregon Department of Justice
1515 SW Fifth Avenue, Suite 410
Portland,OR 97201
FOR DEFENDANT: Christopher Reive, OSB No. 833058
Jordan Ramis, PC
2 Centerpointe Drive
Lake Oswego, OR 97035
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Department of Justice