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HomeMy WebLinkAbout7C, Scope of Services as Proposed in the letter from Mike ComodecaPrepared By: Ron Moorse, City Administrator James Lehnhoff, Community Development Director Council Meeting Date: October 26, 2009 Scope of services as proposed in the letter from Mike Comodeca dated October 19, 2009, for legal services related to the Twin Cities Army Ammunition Plant property reuse for an amount not to exceed $50,000. Budgeted Amount: Actual Amount: Funding Source: $0 N/A Planning and Zoning Recommendation: Approve the scope of services as proposed in the letter from Mike Comodeca dated October 19, 2009, for legal services related to the Twin Cities Army Ammunition Plant property reuse for an amount not to exceed $50,000. Supporting Documents: 1. October 26, 2009, Memo to the City Council 2. October 19, 2009, Letter from Mike Comodeca outlining the proposed scope of services �It�N HILLS MEMORANDUM DATE: October 26, 2009 TO: Honorable Mayor and City Council Members FROM: Ron Moorse, City Administrator James Lehnhoff, Community Development Director SUBJECT: Mike Comodeca Scope of Services for TCAAP Action Request Approve the scope of services as proposed in the letter from Mike Comodeca dated October 19, 2009, for legal services related to the Twin Cities Army Ammunition Plant property reuse for an amount not to exceed $50,000. BackLyround Mike Comodeca, of Spencer Fane Britt & Browne LLP, provided legal services to the City of Arden Hills throughout the Twin Cities Army Ammunition Plant (TCAAP) property negotiated sale process that ended in May 2009 with RRLD, LLC's withdrawal from the project. Since RRLD had been responsible for the costs associated with Mr. Comodeca's services, the termination of the negotiated sale process effectively ended the City's contract with Mr. Comodeca. Since the negotiated sale process has ended, General Service Administration (GSA), on behalf of the Department of the Army, is moving forward with the public auction process. The GSA anticipates auctioning the TCAAP property in the spring or summer of 2010. Whether developed or used as park land, the City has a vital interest in protecting the community and ensuring that the property is cleaned in a timely manner. Mr. Comodeca has a significant amount of experience working the TCAAP property, GSA, Army, State officials, the Environmental Protection Agency, the environmental review process, and the Army's land transfer process. To help ensure that the City's concerns and goals are addressed, the City has requested that Mr. Comodeca provide a new scope of services and estimated cost (see attachment). 1 Scope of Services The attached letter from Mr. Comodeca outlines in detail what the scope of services includes. The potential scope of services covers a number of topics related to the transfer or sale of the TCAAP property as well as the Natural Resource Damage Assessment. As the process moves forward and decisions are made, some of the services may not be needed and others may expand. Staff would work closely with Mr. Comodeca and provide assistance where possible to help reduce costs. Bud et As noted above, RRLD had been responsible for the costs associated with Mr. Comodeca's services prior to the end of the negotiated sale process. The new scope of services would be paid for by the City. Up to $65,000 is available in the existing Planning & Zoning budget for these services in 2009. The draft 2010 Planning & Zoning budget includes another $65,000 for consultant assistance. As part of the scope, Mr. Comodeca has provided a rough estimate for the number of hours that may be needed for each activity. His hourly rate is $320. Based on the minimum and maximum number of hours estimated by Mr. Comodeca, the cost could range from $88,640 to $164,800. As the TCAAP process becomes more defined, it will be easier to estimate the cost of services. Since there is some ambiguity the extent of the services needed by the City, staff is recommending a budget cap of $50,000. This request is not a blanket approval of all services in the scope of services letter. As the project moves forward, the services needed and budget will be evaluated. Attachment October 19, 2009, Letter from Mike Comodeca outlining the proposed scope of services 2 Message Page 1 of 5 James Lehnhoff From: Comodeca, Michael [mcomodeca@spencerfane.com] Sent: Thursday, August 20, 2009 9:53 AM To: Ron Moorse Cc: James Lehnhoff Subject: RE: Re -engagement letter NOTICE: This electronic mail transmission constitutes confidential information. The transmission contains information that may be protected under the attorney -client privilege, work product doctrine, joint defense privilege, and/or other recognized privileges or protections under the law. The email is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by Reply e-mail or by calling (913)345-8 100, so that our address record can be corrected. I provide estimates for the number of hours of legal work required for each task (below in red). ). Again, these are rough guesses due to the uncertainty regarding the actions of the other parties involved in many of the tasks (MPCA, GSA, Army, EPA, insurance provider, ultimate end user). As decisions are made going forward, and more facts are known (such as what transfer mechanism will be used), I will be able to provide you with refined numbers. Mike Michael P. Comodeca Spencer Fane Britt &Browne LLP 9401 Indian Creek Parkway, Suite 700 Overland Park, KS 66210-2005 Office: (913) 327-5193 Fax: (913) 345-0736 E-mail: mcomodeca@spencerfane.com -----Original Message----- From: Ron Moorse [I �q.: :ro .moors- -( ,q. r -n-:hse - .its] Sent: Tuesday, August 18, 2009 11:01 AM To: Comodeca, Michael Cc: James Lehnhoff Subject: RE: Re -engagement letter Mike, Thanks for the scope of work. You mention that a phase I environmental assessment, and potentially additional sampling (phase II?) would need to be conducted. Did RRLD conduct the phase I and phase 10/ 19/2009 Message Page 2 of 5 II assessments? Are these private data that is not available to the City? I don't think the City wants the 53 acres of corporate campus property to be transferred directly or indirectly to the City. We generally want to stay out of the chain of title. In talking to Mike Fix, and in reading the IFB's the GSA has used in the past, it appears that the GSA wants to shift all of its responsibility for any and all environmental liability --other than the on -going groundwater remediation--to the buyer of the land. We want to ensure that, in the event of a default by the buyer, either there is some type of security that is sufficient to fully fund the clean-up, or that the Army will continue to be responsible for the clean-up. It would be helpful if you could provide estimates of hours of your time required for each of the main activities in the scope of services. Thanks, -----Original Message ----- From: Comodeca, Michael [miJ._to..:.m.c_o.m.odec . 'j : . r an.e.c m] Sent: Monday, August 17, 2009 3:23 PM To: Ron Moorse Cc: James Lehnhoff Subject: RE: Re -engagement letter NOTICE: This electronic mail transmission constitutes confidential information. The transmission contains information that may be protected under the attorney -client privilege, work product doctrine, joint defense privilege, and/or other recognized privileges or protections under the law. The email is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by Reply e-mail or by calling (913)345-8 100, so that our address record can be corrected. Ron, Here is the scope of work you requested covering the three areas you mentioned - (1) transfer to County; (2) public sale; and (3) natural resource damages. As you can see from the discussion below, regardless of how the transfer occurs, circumstances will arise that will expose the City to various degrees of environmental liability. Although the City is no longer the transferee, it still has an interest in how the property is transferred, to whom, and what protections are put in place to ensure that the cleanup is conducted (even if the proposed development is not successful). 1. If the transfer is to the County via special legislation (the City wants 53 acres for a corporate 10/ 19/2009 Message Page 3 of 5 campus). a. I would ensure that the City is protected from environmental liability resulting from the transfer of any public land to the City (parks, roads). This would involve directing that a Phase I environmental site assessment be conducted on such property and reviewing it for legal sufficiency when it is completed. I would assist in determining whether any additional sampling is required as a result of the Phase I. I would also ensure that the City qualifies under EPA's "all appropriate inquiries" rule as a "bona fide prospective purchaser." To further protect the City from liability, I would ensure that the City gets a certificate of completion from MPCA. 2 -40 :liotirs b. I would be involved in discussions with Bill Harper to ensure that any special legislation is drafted so that it is protective of the City. I would ensure that the Army retains liability for things such as nuclear, biological and chemical, as well as the ongoing groundwater remediation. I would work with Bill Harper to include the 53 acre corporate campus in the legislation as being transferred directly to the City or through the County to the City. :,". 3 0 1i.(,-.)urs c . I would negotiate with MPCA and EPA regarding any environmental agreements required for any property that the City ends up owning (parks, roads). 25-45 fic)urz d. I would be involved in making sure the City is protected through any environmental agreement between MPCA and ultimate user of the 53 acres. 2 -4.5 hoLin e. I would ensure that the County obtains environmental insurance and that it is adequate to guarantee that the cleanup is completed. :# 5 -3 0 h o-t ire } 2. If the transfer is by public sale: a. I would review the bid packets to ensure that the environmental liability is apportioned between the bidder and the Army in a way that is protective of the City. I would ensure that the Early Transfer process is followed by GSA in a manner that ensures that the Army retains responsibility for environmental contamination on the site. I would determine whether GSA is going to produce a "boilerplate" response action agreement and attach it to the invitation for bid or provide a time period after bid closure for the successful bidder to negotiate an agreement with MPCA and EPA. Once I determine which method would be used, I would work with MPCA and EPA to ensure that any agreement is protective of the City (i.e., contains adequate financial assurances to guarantee cleanup of the property, etc.. 30-{:..: {:. n..4.oun. i b. I would review the material in the GSA portal website to ensure that all environmental information is posted; this ensures that there will be responsible bidders. 10-151wars c. I would travel to Minnesota to participate in the bidders' conference; this would ensure that the City is protected from future unknown liabilities by ensuring that GSA furnishes complete environmental information, retains environmental liability for certain contamination (nuclear, biological, chemical and ongoing groundwater remediation). 2 -h � hotirs d. I would ensure that the City is protected from Superfund environmental liability due to its ownership of any public lands transferred to the City by the bidder (parks, streets). 0-45 _.ot.t - e. I would be involved in discussions with MPCA and EPA concerning response action agreement enforcement issues if the successful bidder is not cleaning the property to the degree or as fast as required under the RAA - or if the bidder defaults. The City's interests would be at stake if the 10/ 19/2009 Message Page 4 of 5 remedies are not protective of health and environment. For example, site -wide remedies such as those involving vapor intrusion would impact the City's use of any parcels transferred to it for public use. ' - dkZ5 �-. f. I would protect the City from environmental liability by ensuring that the environmental insurance obtained by the successful bidder is adequate to cover the cost of the cleanup. - 0 lion { 3. Natural resource damages: a. I have a good relationship with Carmen Netten of the state AG's office and would work with her to determine a way that these funds can be used for the cleanup of TCAAP. If the transfer is by special legislation, I would argue that these funds could be used by the County. If the transfer is by public sale, I would argue that the funds could be provided to the City or County for purposes of cleaning the primer tracer area or wildlife corridor. 3 _ —6_' i -vours Hope this helps. If you have any questions, feel free to contact me. Mike Michael P. Comodeca Spencer Fane Britt &Browne LLP 9401 Indian Creek Parkway, Suite 700 Overland Park, KS 66210-2005 Office: (913) 327-5193 Fax: (913) 345-0736 E-mail: mcomodeca@spencerfane.com -----Original Message----- From: Ron Moorse [q1ai1to:ron.moorse.( garden_-h s._mn. ] Sent: Monday, August 03, 2009 8:12 AM To: Comodeca, Michael Cc: James Lehnhoff Subject: Re -engagement letter Mike, As we move into this new phase of the cleanup and reuse of the TCAAP property, with the dual track process of pursuing the parks and open space use while also having effective input into the GSA's public sale process, (and the additional element of the NRDA process)we want to be clear on how you can best assist the City in these processes. It would be helpful if you could put together a scope of services that outlines the key elements of each process for which you could provide assistance and expertise. The scope of services should include an estimate of the number of hours required for each element, and your hourly rate. Please call me with any questions. Thanks, 10/19/2009 Message Page S of 5 Ron 10/ 19/2009