Okaloosa County BOCC — December 4, 2012 — reading text

Packet Pg. 468  9.7.b series of meetings with County staff and the FDEP, a plan emerged that could expedite the cleanup process to the benefit of all parties. As the County, in cooperation with FDEP, looks to remediate the impacts to Dr. Hsu’s property the attached settlement agreement is proposed. The agreement outlines the responsibilities of each party to satisfy the remediation effort as efficiently as possible. To date, virtually all costs associated with the environmental restoration efforts have been borne by the State through Petroleum Cleanup Programs managed by FDEP. The agreement sets forth the responsibilities between Dr. Hsu, FDEP and Okaloosa County that are intended to expedite the clean-up effort. FDEP will coordinate and fund the soil remediation effort and provide partial payment to Dr. Hsu for the loss of the building. The remaining balance of the loss of building will be paid for by Okaloosa County over a three year period; the total due to Dr. Hsu from the County is $550,000. In exchange for the expedited remediation and repayment for the loss of the building, Dr. Hsu will agree to settle all claims with the County that have arisen or could arise related to contamination. OPTIONS: Approve/disapprove execution of the attached settlement agreement with Dr. Paul S. Hsu. RECOMMENDATIONS: Approve execution of the attached settlement agreement with Dr. Paul S. Hsu. RECOMMENDED BY: APPROVED BY: James D. Curry, County Administrator Packet Pg. 469  9.7.b.a SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the “Settlement Agreement”) is entered into this ____ day of _______________, 2013, by and between Paul S. Hsu and Majes Hsu, his wife, (the “Property Owners”) and Okaloosa County, Florida, a political subdivision of the State of Florida (the “County”). Attachment: Settlement Agreement (1320 : Remediation Settlement Agreement Approval) RECITALS WHEREAS, the Property Owners are the owners of certain real property located at 70 Ready Avenue, Fort Walton Beach, Okaloosa County, Florida as more particularly described in Attachment A (the “Property”); and WHEREAS, the Property was contaminated by petroleum or some other contaminate which had originated from a source occurring off of the Property itself; and WHEREAS, it is alleged that the source of the contaminate was property owned by Okaloosa County; and WHEREAS, as a result of the contamination, the Property was placed on the state-funded priority cleanup list of the Florida Department of Environmental Protection (FDEP Facility ID 468623645) and designated for remediation; and WHEREAS, the Property Owner, the County and the Florida Department of Environmental Protection (the “FDEP”) have been working together to address remediation issues relating to the Property; and WHEREAS, various options have been considered as to the remediation of the Property and summarized in a document entitled “Remediation Options Cost Comparison for Off-Site Contamination,” attached hereto as Attachment B; and WHEREAS, the Parties to this Settlement Agreement and the FDEP have agreed to remediation Option 3 which requires the demolition of the building on the Property and remediation by removal of chemically impacted media (i.e., soil and groundwater) from the site; and WHEREAS, the site will be fine-graded to match the existing site 1 Packet Pg. 470  9.7.b.a conditions of the adjacent non-disturbed areas, using clean fill and overburden removed from the site prior to remediation activities, once impacted media have been removed and confirmation of compliance procedures are complete; and WHEREAS, to facilitate the selection of remediation Option 3 by the FDEP, additional compensation is required to be contributed to allow the State of Florida to select this remediation Option; and Attachment: Settlement Agreement (1320 : Remediation Settlement Agreement Approval) WHEREAS, to facilitate the selection of remediation Option 3, the Parties to this Settlement Agreement seek to provide for the additional compensation and to resolve any remaining issues as to liability relating to the contamination of the Property; and WHEREAS, the Property Owner and the County, in consideration of this additional compensation, desire to fully and finally settle all claims that have arisen or could arise related to the contamination on the Property resulting from the contamination (the “Claim”). NOW THEREFORE, in consideration for the mutual promises contained herein, the Parties agree as follows: ARTICLE I: RECITALS 1.1 The recitals set forth above are true and correct and are incorporated as essential terms of this Settlement Agreement. ARTICLE II: PARTIES’ RESPONSIBILITIES 2.1 FINANCIAL COMPENSATION FOR BUILDING FROM THE COUNTY A. The County shall pay to the Property Owners compensation in the amount of Five Hundred Fifty Thousand Dollars ($550,000) as full and complete compensation for any loss resulting from the demolition of the building on the Property and for any damage that may have resulted to the Property. B. Such compensation shall be paid to the Property Owner by the County in three annual payments under the following schedule: 2 Packet Pg. 471  9.7.b.a 1. An initial payment of One Hundred Eighty-five Thousand Dollars ($185,000) payable within sixty (60) days of the approval of remediation Option 3 by the FDEP and under the terms set forth herein (the “Initial Payment”). 2. A second payment of One Hundred Eighty-Five Thousand Dollars ($185,000) made payable within one (1) year of the date of the Attachment: Settlement Agreement (1320 : Remediation Settlement Agreement Approval) Initial Payment. 3. A third and final payment of One Hundred Eighty Thousand Dollars ($180,000) made payable within two (2) years of the date of the Initial Payment. C. The terms and conditions of this Settlement Agreement are contingent upon the approval of remediation Option 3 by the FDEP and its agreement to a remediation strategy and process substantially as set forth in Section 2.2 below. 2.2 REMEDIATION STRATEGY A. Remediation Selection. This Settlement Agreement is contingent upon the selection of remediation Option 3 as the preferred remediation for the Property by the FDEP and its agreement to a remediation strategy and process substantially as set forth below. B. Building Demolition. The building on the Property will be demolished as part of the remediation strategy. C. State Compensation. The State of Florida, through FDEP, will request funding in a total amount of $250,000, which, if granted, will be paid to the Property Owners for compensation for the loss of the building. D. Relocation of tenants. The relocation of any and all tenants, materials and/or equipment that are not an integral component of the building and the cost associated with that relocation will be the responsibility of the Property Owners. 3 Packet Pg. 472  9.7.b.a E. Utilities. Property Owners will be responsible for disconnecting all utilities to the building. F. Demolition and disposal of the building and slab. The FDEP will be responsible for the demolition of the building, slab and adjacent ancillary improvements (e.g., parking lot) and disposal of this debris in order to accommodate remediation activities. Attachment: Settlement Agreement (1320 : Remediation Settlement Agreement Approval) G. Excavation and staging of clean overburden. The FDEP will provide or ensure the excavation and verification monitoring of the clean overburden. The County will provide an appropriate staging area for the clean overburden, if necessary. H. Excavation of contaminated soil. The FDEP will provide or ensure that contaminated soil is properly excavated, transported, and treated or disposed. If the FDEP determines it necessary, the County will provide the treatment area. I. Backfill excavation with clean soil. The FDEP will provide or ensure the excavated area is properly backfilled with clean soil. Additionally, the backfill will be compacted to prevent erosion. J. Contaminated groundwater. The FDEP will provide or ensure that contaminated groundwater that is extracted is treated and properly disposed. K. Heavy Equipment. The County would assist in providing heavy equipment, such as Loaders, Excavators, Backhoes and the like, if available, to assist in the demolition and disposal of the building and slab, excavation and staging of clean and contaminated soils, and backfill and grading. L. Sampling and Analysis. Samples collected to evaluate or verify remediation objectives will be the responsibility of the FDEP. Monitoring costs to verify long-term remediation effectiveness will also be FDEP’s responsibility. M. Remediation and site close-out documentation. All documentation related to the planning, design, construction, monitoring and close-out of the site will be the responsibility of the FDEP. 4 Packet Pg. 473  9.7.b.a N. Remediation Timeline. The County will make a good faith effort to facilitate the remediation process so that the site will be ready for construction by April 15, 2013, to the extent that will be consistent with the procedures and processes of the State and County. ARTICLE III: RELEASE Attachment: Settlement Agreement (1320 : Remediation Settlement Agreement Approval) 3.1 Upon the FDEP’s approval of remediation Option 3, the Property Owner shall execute a release substantially in the form of the Release attached hereto as Attachment C (the “Release”). The Release shall release, acquit, satisfy, and discharge the County from all past and present claims relating to the Claim and to the Property and