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Home My WebLink About99- Jewel Food Stores, Iddles, Gordon, Fuller, Dobson Settlement Agreement . SETTLEMENT AGREEMENT This Settlement Agreement is executcd by and among Jewel Food Stores, Inc. ("Jewel"), the City of Bozeman ("City"), Dr. Alan Iddles, and Catherine "Molly" lddles ("lddles"), Clark Gordon Fuller and Donna Lea Fullcr ("Fullers"), individuals and doing business as City Cleaners, Inc., and Alan Freese and Helen Dobson ("Freese and Dobson"), individuals and doing business as One-Hour Clcaners, Inc. RECITALS WHEREAS, Jcwcl initiated that ccrtain action entitled Jewel Food Stores. Inc. v. The City of Bozeman. et aI., Civil No. CV-92-57-BU-CCL, filed in the United States District Court for the District of Montana, Butte Division ("Lawsuit") arising out of and related to the investigation, . removal and remediation of soil and groundwater contamination in Bozeman, Montana and now identitied as the Bozeman Solvent Site ("BSS"); and WHEREAS, the Lawsuit tiled by Jewel contained, among other things, claims for contribution and cost recovery under CERCLA, CECRA and RCRA, as well as common law claims of negligence, nuisance, trespass, indemnification, breach of contract, breach of lease and other assorted causes of action against various defendants; and WHEREAS, the City, Iddles, Fullers, Freese and Dobson tiled Answers setting forth affirmative defenses and Counterclaims against Jewel and Cross-claims against other defendants said claims being predicated upon similar statutory and common law theories; and WHEREAS, Jewel and the City have been the only parties in the Lawsuit to undertake site investigation, remedial and removal activities at the BSS and have done so both voluntarily and in . H:\20028\007\BSH0020. WPD 402 I 89v2 . response to various orders ofthe Montana Department of Health and Environmental Sciences, and its successor, the Montana Department of Environmental Quality ("MDEQ"), which orders continue in full force and effect; and WHEREAS, Jewel and the City have already entered into a Settlement Agreement with various other namcd defendants and a third party defendant in this Lawsuit, which settlement was approved by an order ofthe United States District Court for thc District of Montana on November 26, 1997, a copy of which is attached hereto and incorporated herein as Exhibit I; and WHEREAS, Jewel, the City, Iddles, Fullers, Freese and Dobson now desire to effect a full and final settlement with each other of any and all claims each may have against the other or which could have been made against the other in the Lawsuit, and Jewel and the City have set forth their . agreemcnt in a proceeding before United States District Court Magistrate Judge Richard Cebull on April 13, 1999, a transcript of which is attached hereto as Exhibit 2; and WHEREAS, Fullers, Frecsc and Dobson lack the financial ability to respond in damages to any judgment that may be entered against them on the claims asserted in the Lawsuit; and WHEREAS, this Settlement Agreement was reviewed and approved by the duly constituted Bozeman City Commission in its regularly scheduled meeting on July 6, 1999; and WHEREAS, Jewel and the City acknowledge that this Settlement Agreement is contingent upon the agreement of MDEQ on certain actions to be taken at the BSS as more specifically addressed herein; NOW, THEREFORE, the parties agree as follows: . 402189v2 2 H :\20028\00 7\BS H0020. WPD . l. Alternate Municipal Water Line Order. As more fully described in paragraph (2)(A)(ii) herein, this Settlement Agreement is contingent upon (i) the issuance of an Order by MDEQ requiring that a water supply be provided in a portion ofthe BSS by an alternate municipal water line; and (ii) the allowance of the City to charge for th~ municipal water so provided. 2. Obligations ofthe Parties. A. Continuing Work. Jewel and the City shall continue to respond to the activity ordercd by MDEQ for work at the BSS in the following manner: (i) Thc City will complete its obligations under that certain "Memorandum of Agrecment between The Montana Department of Environmental Quality and the City of Bozeman, Montana Regarding The Interim Measure Remedial Investigation and Feasibility . Study (RIIFS) to be conducted at the Bozeman Solvent Site in Bozeman, Montana" ("MOA"), dated July 1, 1996, which obligations include the preparation and completion of a remedial investigation and fcasibility study ("RIIFS") for the Bozeman Solvent Site as more specifically set forth in the MOA, which is attached hereto as Exhibit 3. The City will bc solely responsiblc for any past, present or future costs associated with the completion of these activities, without reimbursement from Jewel, other than the paymcnts stipulated in paragraph 3 of this Settlement Agreement. (ii) Jewcl and the City will jointly seek an order from MDEQ requiring them to provide alternate water for domestic (indoor) use to residcnts and businesses located within the BSS area south of the East Gallatin River as designated in Exhibit 4 which is attached hereto. The water supply will be provided by the construction of an alternate municipal water line as ordered by MDEQ for businesses and domestic use only. The nature of the construction of the alternate . 4021 89v2 3 H :\20028\007\BS H0020_ WPD . municipal watcr line is the subject of a separate agreement between the City and Jewel, which is incorporated herein by this reference. Any groundwater wells appurtenant to each such residence and/or business may continue to be used for irrigation, agricultural, and outdoor purposes. (iii) Residences, businesses or any other improvement to real property within the area identified in Exhibit 4, which are constructed, completed or improved after the completion ofthe extension ofthe alternate municipal water line contemplated in subparagraph (ii) above, shall be required to enter into an Agreement with the City, whereby the property owner will be required to pay the City a fair pro-rata share of all costs incidental to the extension ofthe alternate municipal water line plus normal hook-up costs and fees prior to connecting to the alternate municipal water line extension. The pro-rata share of such costs shall be based upon the square . footage of the property as prorated over the service area. The City agrees to collect the pro-rata share, account for the funds received, and remit 50% ofthe same to Jewel or its designee within sixty (60) days of its receipt of the same. It is further agreed between Jewel and the City that the agreement contained within this paragraph shall continue for a period of ten (10) years after the installation of the alternate municipal water line extension, after which this portion of this Agreemcnt shall be deemed terminated and of no further force and effect. Failure of the City to recover the maximum reimbursement shall neither create a liability on the part of the City nor extend this portion ofthis provision beyond ten (10) years. In no event shall Jewel or thc City be entitled to collect sums hereunder in excess of the actual costs of the engineering and construction of the alternatc municipal water line extension. . 402189v2 4 H ;\2002R\007\BSH0020, WPD . (iv) Jewel and the City will jointly select a party (or parties) other than their present consultants to provide as follows: (a) the services on the BSS contemplated in subparagraph (ii) above; (b) to oversee and effect the completion of remedial activity at the BSS as may be ordered by MDEQ, except for those items identified in subparagraph (i) above; and (c) conduct groundwater and water treatment system sampling as required by present and/or future orders of MDHES and its successor, MDEQ. The eligible cost-sharing expenses for third-party services shall be allocated between the City and Jewel as more fully describcd in subparagraph (v) below. It is acknowledged that Jewel and the City may continue to use their own consultants, legal counsel and/or other experts, to provide consultation and assistance directly to the respective party, but the cost of such consultation and/or assistance will be borne solely by the party contracting for such services. . Upon the approval by the City Commission of this Settlement (v) Agreement and the execution ofthe same by Jewel and the City, Jewel and the City will bear all eligible cost-sharing third-party expenses referenced in subparagraphs (ii) and (iv) above, on an equal basis (50% to each) up to a cumulative amount of four million dollars ($4,000,000.00), and for any eligible costs in excess of that amount, divided 70% to Jewel and 30% to the City. This cost- sharing arrangement does not apply to (a) the work outlined in the subparagraph (i) above, which will be undertaken at the sole expense of the City; and (b) Jewel and the City's own cost oflegal, technical, insurance, management support and other fees not eligible for cost sharing. B. Site Replacement Work. The City will at its sole expense complete its obligations under the two License for Site Access Agreements between Jewel and the City dated . 402189v2 5 H:\20028\007\BSH0020, WPD . September 30, 1994, and November I, 1995, to repair and replace portions ofthe asphalt surface to the immediate west and to the immediate north of the Buttreys Shopping Center structure as more specifically provided in those Agreements and to undertake that work in a timely and expedient fashion upon written request from Jewel. Said Licenses arc attached hereto as Exhibits 5 and 6 and by this reference are made a part of this Agreement. 3. Additional Payments. The following additional payments will be made by and among the parties: (i) On or before thirty (30) days after the approval by the City Commission of the Settlement Agreement, Jewel will pay the City One Million Two Hundred Thousand Dollars ($1,200,000.00). . (ii) On or before thirty (30) days after the approval by the City Commission ofthis Settlement Agreement, Iddles shall pay to the City of Bozeman Fifty Thousand Dollars ($50,000.00). 4. Other Non-Settling Defendants. Jewel and the City will dismiss their respective claims against all other non-settling defendants, their agents, principals, assigns, successors and insurers of the same upon said non-settling defendants' execution of a stipulation dismissing with prejudice any and all counter-claims or cross-claims against Jewel and the City. 5. Third-Partv Liabilitv. Jewel and the City agree to share on an equal basis (50% to each) the costs of defense and/or indemnity for any claims brought against them, either individually or collectively, for damages arising from the contamination of the BSS, including, but not limited to, claims for damages to real or personal property, personal injury, diminution or loss of value or . 6 H:\20028\007\BSH0020, WPD 4021 89v2 . use of real property, and costs of response/rcmediation incurred or to bc incurrcd as a result of the contamination ofthe BSS, except as to the individuals identified as the "Esther Nelson group" to wit: I) Ken LeClair; 2) Robcrt Metcalf; 3) Joe and Carolyn Manley; 4) Al and Virginia Matheson; 5) Thomas and Marilyn Wessel; 6) Esther Nelson; 7) James Pattee; 8) Bill Shott; and 9) Charles and Mrs. Charles Parks, all of whom have settled with the City, and for whom Jewel will be solely responsible for any claims or demands which they may assert which have becn the subject of the settlement agreement with the City. A copy of the settlement agreement between the City and the "Esther Nelson group" is attached hereto as Exhibit 7. 6. City and Jewel Monitoring SVE Systems and Monitoring Wells. It is recognized by Jewel and the City that cach has installed monitoring wells for the monitoring of groundwater . throughout the BSS. It is also recognized by each that they have installed piping and other components necessary for the operation of soil vapor extraction systems ("SVE") at the shopping center formerly known as the Buttreys Shopping Center. The parties agree that these monitoring wells and SVE systems shall remain in place until such time as the third party(ies) selccted in subparagraph 2(iv) above determines that they are no longer necessary for remedial activity at the BSS, after which, and upon approval by MDEQ, each party shall remove from the Buttreys Shopping Center all the components of its respective SVE system situated at or above ground level, at its sole cost. Furthermore, any wells drilled by either of the parties hereto shall remain the property ofthe entity which caused the construction of the same, and no well drilled by these parties may be abandoned without the written consent of its owner and MDEQ. If abandonment is permitted, all costs incidental to abandonment shall likewise be at the sole expense of its owner. . 4021 89v2 7 H:\20028\007\BSH0020, WPD . 7. Release. The parties to this Agreement, for and in consideration of the mutual releases, covenants, and agreements contained herein and in further consideration ofthe payments by Jewel and Iddles to the City of Bozeman as set forth herein, do hereby completely, finally, and irrevocably release and forever discharge each other, their respective agents, attorneys, employees, succcssors, personal representatives, heirs, assigns, and indemnitors, none of whom admit any liability to each other and all of whom deny any liability from any actions, causes of action, suits, controversies, claims, damages, and demands of any and every name and nature whatsoever, arising out of the BSS as more fully set forth in the pleadings filcd in this action. The parties to this Agreement further acknowledge full satisfaction of all such claims, causes of action, and actions against each other. The parties hereto declare and represent that in entering . into this Settlement Agreement, each has relied wholly on their own respective judgment, belief, and knowledge as to the nature oftheir respective claims and damages. The parties hereto specitically represent that they release all claims against each other for damages of any type, including those that may be unknown at the present time. Each of the parties hereby waives any right to assert in the future any claim not now known or suspected, even though if such claims were known, such knowledge would materially affect the terms of this Settlement Agrecment. 8. Wells. Any wells drilled by any of the parties hereto shall remain the property of the entity which caused the construction of the same. No well drilled by these parties may be abandoned without the written consent of its owner and MDEQ. If abandonment is permitted, all costs incidental to the wells' abandonment shall be borne by its owner. The parties hereto shall grant access to their respective wells to each other. . 402189v2 8 H :\20028\00 7\BSH0020, WPD . 9. Scttlement of Disputed Claims. The parties understand and agree that this Agreement is a compromise of disputed claims and that payment is not intended to be nor should it be construed as an admission of liability on the part of any party released hereby, all of whom expressly deny liability. 10. Attornevs' Fees and Costs. Each party hereto shall bear its own attorneys' fees and costs in connection with the Lawsuit, this Agreement and the matters and documents referred to herein, the filing of a motion for and a proposed order of dismissal with prejudice in all of the mattcrs related to the Lawsuit in the above-referenced claims. This provision does not, however, apply to attorneys' fees and costs incurred for the enforcement ofthis Agrecment as provided below. 11. Enforcement of Settlement Agreement. If any action is brought to rescind this . Agreement, or to enforce, construe or seek damages for breach of this Agreement, or any document required hereby, the prevailing party shall be entitled to recover its reasonable attorney fccs (including fccs of outside counselor the City or Jewel's in-house counsel), costs and expcnscs ofthe litigation, in addition to any other monetary relief or other amount to which such party is entitled. The amount recoverable includes, without limitation, the prcparation of any affirmative claims or defenses, counterclaim, cross-claim, or third-party complaint. 12. Continuing Jurisdiction. The Court shall retain subject matter jurisdiction of this matter for a period oftime not to exceed five (5) years, or sooner, ifmutually agrced by Jewel and the City to insure that all actions taken in aid ofthis Settlement Agreement are in fact taken. Upon mutual agreement between Jewel and the City, a Motion for Dismissal with Prejudice ofthe Lawsuit and proposed Order shall bc filed with the Court to terminate the jurisdiction of the Court. . 4Q21R9v2 9 H:\20028\007\BSH0020, WPD . 13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana. 14. Severabilitv. Any provision of this Agreement, or any portion of any such provision, that is deemed to be illegal and/or unenforceable shall be severed from the remainder of the provision in which it appears or the Agreement itself without affecting the validity of the remainder of the provision of the Agreement. In such event, all other provisions, or parts of provisions, of this Agreement shall remain in full force and effect. 15. Cooperation. Each of the parties hereto agree to cooperate fully one with another to insure the completion of the remedial activities at the BSS and the obligations set forth in this Settlement Agreement and to otherwise execute any and all supplementary documents and to take . all additional actions which may be necessary or appropriate to give full force and effect to the terms and intent of this Settlement Agreement. 16. Document Retention. The City shall remain the repository of all documents generated with respect to the BSS to the extent a record retention requirement is contained in the ROD or BSS Administrative Record. The parties hereto have read this Settlement Agreement, know and understand its contents, and have signed the same on their own free act upon the advice oftheir respective counsel. JEWEL FOOD STORES, INC.: Dated:~~ ~D. \ '1 'i 'I '~ By: af . r?/ Its:~~ eJL \5 . c\ D ~ . 402189v2 10 H :\20028\007\85 H0020, WP D . CITY OF BOZEMAN: Dated: Jl, J-y ~, /ftJlf BY.~ ~1/t; Al Sti, he.c/ Ron. Ie Mayor of the City of Bozeman, Montana - ATTEST: ~ . ~.. -~~~- - Dated: -x; ~ 7) J tj f 9 (jj;~ 01 ~. Robin L. Sullivan, Clerk ot'the Commission Dated: ~ -&"') LL.c 1 ~j/~ Dr. Alan Iddles . /..) , I , - Dated:OC'-? '0 / 7" i1 U?~'L--e ':-I/Z o-tty- ., ~U'~ j I' Catherine "Molly" Iddles (' / ~Mu~ ark Gordon Fuller Dated:;r~ '7 J ) 77 ') cfJ~ ~e'''-' a AAiZfL__ Donna Lca Fuller Dated: {) /010; C/LeJv~ jJ C) A- J Dated: 7- q- /CfC/r $L J ,I/~l G' l,. Helen Dobson . 11 H :\20028\007\BSH0020, WPD 402189v2 " J~. - - - . JOHN 1. RICHARDSON. ESQ. BECK & RICHARDSON LAW OffiCE 1700 West Koch, Suite 2 Bozeman. Montana 59715 (406) 586-8700 Attorneys for Defendants, Alan Frttse and Helen Dobson, d/bl3/ One Hour Cleaners. Inc. ***"'*;40* IN iHE UNITED STATES DISTRICT COURT FOR THE STATE OF MONTANA OREA T FALLS DIVISION *****"'* JEWEL fOOD STORES. me., a New York: Corporation, Plaintiff, Cause No. CV -92-057 -BU-CCL v. . THE CITY OF BOZEMAN. a Montana POWER OF A rrORNEY municipal corporation; CLARK GORDON FULLER and DONNA LEA FUlLER. individuals fWd doing business as CITY CLEANERS. INC.; l&M ClEANERS. INC., a Montana corporation and doing business as J&M ONE HOUR MARTlNlZING CLEANERS; DR. ALAN IDDLES. MOll. Y IDOLES. and DA VID IDDLES, individuals~ ONE HOUR CLEANERS, INC.. a Montana corporation or HELEN DOBSON and ALAN FREESE dba ONE HOUR CLEANERS INC.~ BOZEMAN STANDARD GASOLINE. a Montana coqxn:ation: J.P. HUSTAD and VERA D. HUSTAD, individuals; HUSTAD CORPORATION. ell dissol ved Montana corponttion; JOHN DOES I through X; and JOHN DOES Xl through XX as shareholders of HUSTAD CORPORATION, . Defendants. '. ?I ~ aBed !nd~S:~~ 66-6-Inr !~a~ ~SS LOS !~NVN~V~ ~ ~3~~nB~~ 33~On :^B +ua~ ,- ,. -". .- - . I, Alan Free~, of Lander. Wyoming do hereby appoint John Richardson. Esq. of Bozeman, Montana a,11;; my agent, anomey-irl-fact. and attorney-in-Iaw I to act fpr me in any lawful way with respect to resolving the above entitled litigation. It is my understanding that the parties in ~his case have ~ached an agreement to I'esolve the litigation including all daims against. ou:uI on behalf of. Helen Dobson and myself dIbIa i'1S One Hour Cleaners. Inc. Since it would be inconvenient for roe to travel from my home in Lander, Wyoming to Bole.man,. Montana to sign tbe settlement dOCUmeT1ts. and since it would be impractical to send the settlement documents to my home. I authorize Mr. Richardson to sign any documents on my behalf intended to resolve the matters in lhis case. That includes signing any settlement agreemenlS and documents related to the settlement. and releasing any claims that I might have against tbe other parties to the . litigation_ This power of attorney will continue to be effective if 1 become disahl~ incapacitated. or incompetenL ~ ~~ . ALAN FREESE 7-9-9 'i - DATE SUBSCRIBED AND SWORN to before me l:his ~ day of ~ 1 ~ 1999. ~~~-- t~..1 [XI'ltiA JCDUtAtt . ~ Nl\la. Notary Public for lbe State or Wyoming =(S. s-r: ~ Residing at _ 4" d &r . Wyoming ~ , My Commission Ex.pires: 7-0'- 0 l . M, CcHIftm;.. ~'Pi- crr-06.cn . , roWIEH Of ;\TTOllI'CEY PAGK 1 ?/? aBsd !~d~S:?~ 66-6-tnr ! ~a€ ?€€ LO€ !~NVN~V~ ~ ~3~~n8~VW 33~~~ :^8 +uaS . AGREEMENT FOR CONSTRUCTION OF AL TERN A TE MUNICIPAL WATER LINE This Agreement for Construction of Alternate Municipal Water Line ("Agreement") is executed by and between the City of Bozeman ("City") and Jewel Food Stores, Inc. ("Jewel") to outline the understanding between the parties to this Agreement for the construction of an alternate municipal water line pursuant to a pending Settlement Agreement between Jewel Food Stores and the City of Bozeman, among others. BACKGROUND Jewel and the City have been engaged in litigation in a certain action entitled Jewel Food . Stores. Inc. v. The City of Bozeman, et aI., Civil No. CD-92-57-BU-CCL, which was filed in the United States District Court for the District of Montana, Butte Division ("lawsuit") arising out of and related to the investigation, removal and remediation of soil and groundwater contamination in Bozeman, Montana, and now identified as the Bozeman Solvent Site ("BSS"). Jewel and the City have reached a settlement between themselves and others; and have drafted a Settlement Agreement to be entercd by the parties as a complete resolution of the Lawsuit. Paragraph 2(A)(ii) and (iii) ofthis Settlement Agreemcnt provides for the construction of an alternate municipal water line for domestic use to residences and businesses locatcd within the BSS arca south of the East Gallatin River, as more specifically set forth in the Settlement A!,'Teement. Exhibit 4 to the Settlement Agreement, outlines the proposed area tor the alternate municipal water line contemplated by the parties. . I 401860vl . This Agreement is entered into between the City and Jewel to outline the understanding of the parties as to the nature and size of the alternate water supply system to be constructed as provided in the Settlement Agreement, it being acknowledged that the alternate municipal water line contemplated by the parties is not a City "standard" water supply infrastructure involving ductile iron pipe, fire flows, looped mains and other "typical" City construction and materials associated with a standard municipal water supply line. Consideration of this Agreement is set forth in the Settlement Agreement and incorporated herein by this reference. AGREEMENT Accordingly, it is the understanding of the City and Jewel that the alternate water supply line contemplated under the Settlement Agreement will be constructed as follows: (i) a "rural" type potable water supply infrastructure, consisting of a dead end . alignment from North 7th Avenue, constructed of four (4) inch high density polyethylene pipe; and (ii) the alternate water supply system will be configured as depicted in Exhibit 4 of the Settlement Agreement and will be connected to existing businesscs and residences and provide potable water only; and (iii) the estimated cost of the alternate municipal water supply system as of May 1998 was $400,000.00. (iv) in the event the City decides to construct a water supply system/infrastructure in the area identified in Exhibit 4 to the Settlement Agreement which system/infrastructure is more expensive than that contemplated by this Agreement, Jewel will not object but Jewel's liability for the cost of engineering, . 2 401860vl . design, and construction of said system/infrastructure will not exceed 50% of that amount set forth in paragraph (iii) of this Agreement. Dated: ~~... 30 I \999 JEWEL FOOD STORES, INC.: , By: vr?1 ~ N Its: . ,Q..L A~. Dated: ~ Iy /J; /197 CITY OF BOZEMAN: By: JI1~~ . Marcia Youngman, T e Honorable Mayor- Pro Tem of the City of Bozeman, Montana ATTEST: (2~;j ~ Robin L. Sullivan, Cletk ofthe Commission . 3 401860vl --------- . .. '" ..: :-r.t -- ~ . ~';:: i'.w "'" . Subme Da1a - RECEIVED - DEe 4199l IN THE UNITED STATES DISTRICT COURT rl~h'\~ FOR THE DISTRICT OF MONTANA -Il E BUTTE DIVISION i~ : '-a D ******* ["JOV 2 6 1997 . 1 JEWEL FOOD STORES, INC. , ~~Jitlt~l~fQ~L~tCY De') "'y C-.r!- \ I .... ..... .11 a New York corporation, Plaintiff, CV 92-57-BU-CCL -v- ORDER THE CITY OF BOZEMAN, a . Montana municipal corporation; CLARK GORDON FULLER and DONNA LEA FULLER, individuals and doing business as CITY CLEANERS, INC. ; J &M CLEANERS, INC. , a Montana corporation and doing business as J& M ONE HOUR MARTINIZING CLEANERS; Dr. ALLEN IDDLES, ,MOLLY IDDLES, and DAVID IDDLES, individuals; ONE HOUR CLEANERS, INC. , a Montana corporation or HELEN DOBSON and ALICE FREESE, dba ONE HOUR CLEANERS, INC.; DON NOREM CHEVROLET-BUICK, INC. , a Montana corporation; D&N INVESTMENTS, INC. , a Montana corporation; CONNELL CHEVROLET-BUICK, INC. , a Montana corporation, BOZEMAN EXXON and MUFFLER SHOP, a Montana corporation doing business as BOZEMAN EXXON, INC. ; BOZEMAN STANDARD GASOLINE, . a Montana corporation; H.F. HUSTAD and VERA D. HUSTAD, individuals; HUSTAD CORPORATION, a dissolved Montana corporation; - . JOHN DOES I through XX as shareholders of HUSTAD CORPORATION, Defendants. ******* Before the court is a motion to approve a settlement agreement reached by six of the parties in this action and an accompanying motion to deposit settlement funds into the court registry. The principal parties in this case, Jewell Food Store (Jewell) and the City of Bozeman (City) have entered into a settlement agreement with four defendants -- D&N Properties, Inc. . f/k/a D&N Investments, Inc. f/k/a Don Norem Chevrolet-Buick , Inc. (Norem) ; Connell Chevrolet-Buick, Inc. (Connell) ; Bozeman Exxon, Inc. f/k/a Bozeman Exxon and Muffler Shop (Bozeman Exxon); and Amoco Oil Company, f/k/a the American Oil Company (Amoco) . Norem, Connell, Bozeman Exxon and Amoco are referred to as the Settling Parties. The moving parties have requested that the court approve the settlement and to dismiss and bar all cross- claims that have been asserted or could be asserted by the non- settling parties against the settling parties. In 1992, Jewell commenced this action asserting claims against Defendants under a variety of theories, including the . Comprehensive Environmental Response, Compensation, and Liability 2 ---- . Act, 42 D.S.C. ~ 9601 et seq. (CERCLA) . The action arose from the release of hazardous substances, including perchloroethylene (PCE), trichloroethylene, dichloroethylene and vinyl chloride at or near the Buttrey's Shopping Mall Site (Site) in Bozeman, Montana. In 1989 and 1990 the state concluded that the hazardous materials had leaked into the groundwater of several Bozeman neighborhoods, and further concluded that businesses in or near the Site may have dumped the materials into floor drains, which emptied into a leaky sewer pipe maintained by the City. . The hazardous substance PCE is of primary concern, and it is alleged that the bulk of the substance was dumped by non-settling Defendants who operated successive dry-cleaning operations at the Site. The settling parties operated businesses west of the Site, and the state has informed the parties that it has not found any evidence to suggest that the settling parties' businesses contaminated the groundwater. Based on this finding, last year the parties began settlement negotiations, which resulted in the agreement before the court. The agreement provides that the settling parties will pay a total of $70,000 to Jewel and the City for past and future costs of oversight, investigation, and remediation of the Site. . In exchange, Jewell and the city agree to release the settling 3 . parties from any liabilit~ for contamination at the Site. Further, the movants request that all existing and potential claims against the settling parties be dismissed or barred. If the court approves the agreement, Norem, Connell and Bozeman Exxon will stipulate to dismiss with prejudice their counterclaims against Jewel and their cross-claims against the City. Norem will also stipulate to dismiss its third-party complaint against Amoco. The settlement agreement also includes language that calls . for the dismissal of all claims filed by the non-settling Defendants. Non-settling Defendants Alan Freese and Helen Dobson, d/b/a One Hour Cleaners, Inc., have objected to the proposed settlement, but the remaining dry-cleaning parties have not objected. Without citing any authority, the objecting Defendants simply claim that the settlement would be unfair to them. However, as is discussed below, that is not true. While CERCLA expressly protects potentially responsible parties from such contribution cross-claims when the PRPs settle with the government in clean-up cases brought by the United States, many courts in numerous varied jurisdictions have 4 . -. . extended the protection to settling private parties in complex environmental cases. Barton Solvents. Inc. v. Southwest Petro- Chern. Inc. , 834 F. Supp. 343, 345 (D. Kan. 1993) (and cases cited therein) . Protecting the settling parties from such claims facilitates settlement of large environmental cases and furthers the clean-up goals of CERCLA, which provides courts with broad discretion on how to best use their equitable powers to allocate clean-up costs. .I..d...-- at 346. Courts which have barred such contribution cross-claims in the past have recognized that non- . settling defendants may feel especially vulnerable after such a settlement is reached, but they have ensured that it is the settling parties, not the non-settling parties, who bear the risk of entering into such agreements. This is done by the court's application of either the Uniform Comparative Fault Act (UCFA) or the Uniform Contribution Among Tortfeasors Act (UCATA) . The UCFA adopts a "pro rataN or proportionate credit rule for non-settling parties, while the UCATA follows a "pro tanto" rule.- The UCFA provides for application of comparative fault, and reduces non- settling defendants' liability by the amount of the settling parties' equitable share of the clean up. Application of the . 5 . UCATA reduces the liability of non-settling defendants by the dollar amount stipulated by the release or the amount of consideration paid for it, whichever is greater. While determining which Act to apply is left to the discretion of the court, most federal courts have applied the UCFA to private parties in CERCLA actions. Hillsborough Count v v. A&E Road Oilina Service, 853 F. Supp. 1274, 1278-79 (M. D. Fla. 1994) (and cases cited therein) . Under the UCFA, ~a non-settling party may offset its liability by a settling party's equitable share of . liability. The effect of this provision is to impose upon the claimant who settles with a party rather than upon a non-settling party the risk that the settlement amount is disappropiately small." United states v. Gencoro, 935 F. Supp. 928 (N. D . Ohio 1996) . The court concurs with the majority of other courts that have addressed the issue and finds that application of the UCFA is appropriate. Under this method, Jewel and the city have assumed the risk that the settling parties have contributed less than their fair share, not the non-settling parties. Under the UCFA, the dry- cleaning defendants will be liable only for their proportionate . 6 . share of liability, regardless of how much the settling parties contribute. In short, the share of liability of the non-settling parties is not increased by this settlement. Consequently, the non-settling parties are not prejudiced by the settlement agreement. After carefully reviewing the settlement agreement and the objections, the court finds that the settlement agreement is fair, adequate and reasonable. Accordingly, IT IS HEREBY ORDERED that the motion is GRANTED and the . Settlement Agreement is APPROVED as follows: (1 ) all claims arising out of matters addressed in the agreement, and all claims arising out of the release, threatened release, or migration of the hazardous substances listed in the agreement at, from, or in the vicinity of the Buttrey's Shopping Center in Bozeman, Montana, or wherever the hazardous substances have come to be located, that have been or could be asserted against the Settling Parties are barred; (2 ) Unless stipulated otherwise in writing by any Settling Party, any crossclaim, counterclaim, or other claim presently asserted in this action by any party against any Settling Party . 7 ----------- ..... ~. for contribution, indemnity, or based on any other legal theory is hereby dismissed with prejudice and without costs or attorney fees to any party. IT IS FURTHER ORDERED that the joint motion to deposit funds in the court's registry is GRANTED. The clerk is directed to deposit in the registry the amount of $70,000 to be submitted by the moving parties. Disbursement of the funds will be made pursuant to court order to reimburse Jewel and City for response costs or state remediation costs, in accordance with paragraph 2 ~ . of the moving parties' settlement agreement. The clerk is directed forthwith to notify the parties of entry of this order. Done and dated this ~ tgay of November, 1997. ~ 8 . ~@~w . 1 IN THE UNITED STATES DISTRICT COURT FOR.THE DISTRICT OF MONTANA 2 BUTTE DIVISION 3 JEWEL FOOD STORES, INC., 4 A NEW YORK CORPORATION, 5 PLAINTIFF, 6 -VS~ 7 THE CITY OF BOZEMAN, A MONTANA MUNICIPAL CORPORATION, ET AL., 8 DEFENDANT, 9 10 CAUSE NO. CV-92-57-BU-CCL 11 . 12 TRANSCRIPT OF SETTLEMENT CONFERENCE PROCEEDINGS 13 14 BEFORE THE HONORABLE RICHARD F. CEBULL, U.S. MAGISTRATE 15 FEDERAL BUILDING 16 GREAT FALLS, MONTANA TUESDAY, APRIL 13, 1999 17 18 APPEARANCES: 19 RANDALL N. SKANCHY 20 JONES, WALDO, HOLBROOK & MCDONOUGH, P.C. 1500 FIRST INTERSTATE PLAZA 21 170 SOUTH MAIN STREET SALT LAKE CITY, UTAH 84101-1644 22 RONALD F. WATERMAN 23 GOUGH, SHANAHAN, JOHNSON & WATERMAN 33 SOUTH LAST 'CHANCE GULCH . 24 HELENA, MONTANA 59601 25 ATTORNEYS FOR THE PLAINTIFF. PAGE 2 . 1 PAUL LUWE OFFICE OF THE BOZEMAN CITY ATTORNEY 2 P.o. BOX 640 GREAT FALLS, MONTANA 59771-0640 3 BARRY G. O'CONNELL 4 MOORE, O'CONNELL & REFLING, P.C. P.O. BOX 1288 5 BOZEMAN, MONTANA 59771-1288 6 ATTORNEYS FOR THE DEFENDANT. 7 8 ALSO PRESENT: 9 LAWRENCE METZ 10 BARBARA RUSSELL CLARK JOHNSON 11 JO RUDBERG MICHAEL NICKLIN . 12 13 14 15 16 17 18 19 20 21 22 COURT REPORTER: LISA S. LEWIS, P.O. BOX 506, GREAT FALLS, 23 MONTANA 59403 . 24 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT PRODUCED BY COMPUTER. 25 PAGE 3 . 1 BE IT REMEMBERED, THAT ON TUESDAY, APRIL 13, 1999, 2 AT THE FEDERAL BUILDING, GREAT FALLS, MONTANA, BEFORE THE 3 HONORABLE RICHARDF. CEBULL, U.S. MAGISTRATE, THE FOLLOWING 4 PROCEEDINGS WERE HAD: 5 (PROCEEDINGS HELD IN CHAMBERS.) 6 THE COURT: NOW, EVERYBODY STATE FOR THE RECORD 7 WHO YOU ARE AND WHO YOU REPRESENT. 8 MR. SKANCHY: RANDALL SKANCHY ON BEHALF OF JEWEL 9 FOOD STORES. 10 THE COURT: SPELL IT. 11 MR. SKANCHY: S-K"':'A-N-C-H-Y. . 12 MR. WATERMAN: RON WATERMAN ON BEHALF OF JEWEL. 13 MR. METZ: LAWRENCE, LAST NAME OF METZ, M-E-T-Z, 14 ON BEHALF OF JEWEL. 15 MS. RUSSELL: BARBARA RUSSELL, R-U-S-S-E-L-L, ON 16 BEHALF OF JEWEL. 17 MR. LUWE: PAUL LUWE, L-U-W-E, BOZEMAN CITY 18 ATTORNEY, ON BEHALF OF BOZEMAN. 19 MR. JOHNSON: CLARK JOHNSON, BOZEMAN CITY 20 MANAGER. 21 MS. RUDBERG: JO RUDBERG, R-U-D, AS IN "DOG," 22 B-E-R-G, BOZEMAN CITY COMMISSION. 23 MR. NICKLIN: MICHAEL NICKLIN, N-I-C-K-L-I-N, ON . 24 BEHALF OF THE CITY OF BOZEMAN. 25 MR. O'CONNELL: AND BARRY O'CONNELL, THAT'S PAGE 4 . 1 O'-C-O-N-N-E-L-LI ON BEHALF OF THE CITY OF BOZEMAN. 2 THE COURT: I BELIEVE THIS IS THE SECOND GO-AROUND 3 IN THE SETTLEMENT CONFERENCE IN THIS MATTER I AND WE HAVEl I 4 BELIEVEI REACHED A TENTATIVE SETTLEMENT AGREEMENTI ALTHOUGH 5 IT'S CONTINGENT ONI FIRSTI AND PROBABLY FOREMOST I THE CITY 6 COMMISSION OF THE CITY OF BOZE~ffiN AGREEING TO IT. 7 AND I'M PRESUMING THAT NOBODY HERE REPRESENTING THE 8 CITY OF BOZEMAN TODAY IS GOING TO TRY AND TORPEDO IT. 9 MR. O'CONNELL: II BARRY O'CONNELLI AS CHIEF 10 OUTSIDE COUNSEL FOR THE CITYI CAN REPRESENT TO THE COURT AND 11 TO REPRESENTATIVES FROM JEWEL THAT THERE IS NO ONE HERE . 12 THAT'S OUT TO TORPEDO ANY TENTATIVE DEAL. 13 THE COURT: RIGHT. 14 NOWI HERE'S MY UNDERSTANDING OF WHAT THE DEAL IS GOING 15 TO BE. FIRSTI JEWELl THE PLAINTIFFI IS GOING TO PAY TO THE 16 CITY $1/250/000 IN CASH. 17 AND PROBABLY AT THIS TIME WE SHOULD ESTABLISH WHEN THAT 18 PAYMENT WILL BE FORTHCOMING. I ASSUME A PERIOD OF DAYS 19 AFTER THE CITY COUNCIL APPROVES IT. 20 MR. METZ: AND WE REACH A FORMAL AGREEMENT. I 21 ASSUME THERE IS GOING TO BE A FORMAL AGREEMENT. THIRTY 22 DAYS, IS THAT ACCEPTABLE? 23 MR. O'CONNELL: SURE. . 24 THE COURT: OKAY I THIS IS MORE A MEMORIALIZATION 25 OF -- PAGE 5 . 1 MR. METZ: JUST TO CORRECT YOU -- 2 THE COURT: -- WHAT WE HAVE AGREED ON. 3 MR. METZ: -- 50,000 WAS FROM DR. IDDELS. 4 THE COURT: PARDON ME, 1,200,000 FROM JEWEL, AND 5 50,000 FROM -- 6 MR. O'CONNELL: DEFENDANT ALAN IDDLES, IDDLES. 7 THE COURT: THAT MAKES A TOTAL OF 8 ONE-AND-A-QUARTER MILLION. 9 SO IT WILL BE PAID AFTER THE CITY APPROVES IT, AFTER 10 THE FULLY PERFECTED SETTLEMENT AGREEMENT IS DRAWN. AND I 11 ASSUME AFTER THE CITY COUNCIL APPROVES IT, A 30-DAYPERIOD . 12 WILL START TO RUN WHEN PAYMENT WILL BE MADE AND WHEN THE 13 FULLY PERFECTED SETTLEMENT AGREEMENT WILL BE DRAFTED AND 14 EXECUTED -- 15 MR. O'CONNELL: CORRECT. 16 THE COURT: -- CORRECT? THIRTY DAYS TO SIGN AN 17 AGREEMENT, ASSUMING WE CAN GET IT DONE IN THIRTY DAYS. 18 THIRTY DAYS TO SIGN THE AGREEMENT AND PAY -- 19 MR. METZ: RIGHT. 20 THE COURT: -- AND THIRTY DAYS AFTER THE CITY 21 COUNSEL HAS VOTED. 22 MR. O'CONNELL: LET ME CLARIFY, JUDGE, AND FOR YOU 23 FOLKS OVER THERE, I THINK WHAT WE HAVE TO DO TO EVEN . 24 APPROACH THE CITY COMMISSION IS TO ACTUALLY HAVE A 25 SETTLEMENT AGREEMENT IN HAND DRAFTED, AND I THINK THAT'S PAGE 6 . 1 GOING TO TAKE YOU AND I, RANDY, HEAD TO HEAD. IT'S NOT 2 GOING TO BE AN EASY THING TO DRAFT, BUT ONCE WE GET THAT 3 DONE AND YOU AND I CAN AGREE IN PRINCIPLE, THEN I WILL 4 APPROACH THE CITY COMMISSION IN EXECUTIVE SESSION WITH IT, 5 WITH OBVIOUSLY THE RECOMMENDATION THAT IT BE ACCEPTED, AND 6 THEN ASSUMING WE, IN EXECUTIVE SESSION, AGREE IT BE 7 ACCEPTED, THEN WE WILL PRESENT IT PROBABLY THE NEXT WEEK AT 8 THE CITY COMMISSION MEETING FOR THE PUBLIC HEARING. 9 MR. METZ: OKAY. 10 MR. O'CONNELL: AND THEN THE PAYMENT OF THE MONEY 11 CAN BE 30 DAYS AFTER IT HAS 'BEEN FORMALLY APPROVED BY THE . 12 CITY COMMISSION. 13 MR. METZ: THAT WORKS. 14 MR. O'CONNELL: IT'S NOT GOING TO BE UNTOWARDS TO 15 ME IF IT TAKES 30 TO 45 DAYS TO GET WHERE WE NEED TO BE TO 16 GET WHERE WE CAN PRESENT IT TO THE CITY COMMISSION. 17 THE COURT: ALL RIGHT. AND I THINK AT THE FIRST 18 SETTLEMENT CONFERENCE IN BOZEMAN WE AGREED THAT GOING 19 FORWARD, BOTH PARTIES WOULD AGREE ON A THIRD PARTY TO ACT AS 20 CONSULTANT, CORRECT? 21 MR. O'CONNELL: CORRECT. 22 MR. SKANCHY: CORRECT. 23 THE COURT: AND MR. NICKLIN HAS TO COMPLETE AN FS . 24 OR SOMETHING, AND THE COST OF THAT WILL BE BORNE BY THE CITY OUT OF THE ONE-AND-A-QUARTER-MILLION DOLLARS. 25 PAGE 7 . 1 MR. O'CONNELL: YES. 2 THE COURT: AND THEN THEREAFTER IT WILL BE -- THE 3 SECOND PORTION OF THIS AGREEMENT ON PRINCIPLE, THAT IS THAT 4 THE PARTIES IN THE FUTURE WILL SPLIT THE REMEDIATION COSTS 5 50/50 ON THE FIRST $4 MILLION, AND THEN THEREAFTER, IF THE 6 REMEDIATION COSTS EXCEED $4 MILLION, JEWEL WILL PAY 70 7 PERCENT, AND THE CITY OF BOZEMAN WILL PAY 30 PERCENT. 8 IS THAT AGREED? 9 MR. O'CONNELL: YES. 10 MR. SKANCHY: IT IS. 11 THE COURT: THE NEXT ELEMENT IS THAT JEWEL AND THE . 12 CITY WILL SHARE 50 PERCENT EACH RESPONSIBILITY IN ANY 13 ACTIONS FILED BY LANDOWNERS IN THE BOZEMAN -- 14 MR. O'CONNELL: SOLVENT SITE. 15 THE COURT: -- SOLVENT SITE BSS AREA, EXCEPT 16 PLAINTIFF JEWEL AGREES TO BEAR 100 PERCENT OF THE COST OF 17 CLAIMS FILED AGAINST THEM BY WHAT IS KNOWN AS THE ESTER 18 NELSON GROUP. 19 MR. O'CONNELL: CORRECT. 20 THE COURT: THE CITY HAS ALREADY SETTLED WITH THIS 21 GROUP KNOWN AS THE ESTER NELSON GROUP. THEREFORE, IF THEY 22 BRING CLAIMS IN FUTURE LAWSUITS AGAINST JEWEL, JEWEL HAS TO 23 DEFEND AND PAY 100 PERCENT OF ANY OF THOSE. . 24 IT'S MY UNDERSTANDING THAT JEWEL ALREADY HAS, AND IF 25 THEY DON'T HAVE, THE CITY WILL FURNISH A COpy OF THE PAGE 8 . 1 SETTLEMENT AGREEMENT SO THAT JEWEL KNOWS WHO THE ESTER 2 NELSON GROUP IS, CORRECT? 3 MR. SKANCHY: THAT'S FINE. 4 THE COURT: WHO THE MEMBERS ARE OF THIS "GROUP." 5 SO YOU WILL KNOW WHICH CLAIMS YOU ARE GOING TO BE 100 6 PERCENT RESPONSIBLE FOR IN THE EVENT LAWSUITS ARE MADE OR 7 CLAIMS ARE MADE. AGREED? 8 MR. O'CONNELL: AGREED. 9 THE COURT: THE NEXT ELEMENT IS, AND THIS IS A 10 DEAL BREAKER, AS I UNDERSTAND IT, THE DEPARTMENT OF 11 ENVIRONMENTAL QUALITY ORDERS A TEMPORARY WATER LINE PUT INTO . 12 WHERE NOW? 13 MR. O'CONNELL: IT WOULD BE PUT INTO THE AREA 14 SOUTH OF THE GALLATIN RIVER, BUT NORTH OF THE AREA THAT WILL 15 BE SERVICED BY IS IT 510-668 -- 665? 16 MR. LUWE: 665, ALSO KNOWN AS THE NORTHWEST WATER 17 LINE. 18 THE COURT: ALSO KNOWN AS WHAT? 19 MR. LUWE: NORTHWEST WATER LINE. 20 THE COURT: OKAY. 21 MR. SKANCHY: LET ME JUST ASK, 665 IS KNOWN AS THE 22 NORTHWEST WATER LINE? 23 MR. LUWE: VR-HUH. . 24 MR. O'CONNELL: AND I BELIEVE, RANDY -- YOU CAN 25 KEEP THIS ON THE RECORD -- I BELIEVE, RANDY, WHEN WE PAGE 9 . 1 DISCUSSED SETTLEMENT A YEAR AGOt I SENT YOU A -- 2 MR. SKANCHY: OF THAT? 3 MR. O'CONNELL: YOU HAVE THATt AND THAT PRETTY 4 WELL DEFINES WHAT WE ARE TALKING ABOUT. SO A SCHEMATIC DOES 5 EXIST OF THE AREA THAT THIS WILL SERVE. 6 THE COURT: OKAY. AND THE -- THAT THIS ELEMENT 7 REQUIRES THAT THE DEQ ORDER THIS TEMPORARY WATER LINE 8 INSTALLED IN THIS AREA YOU HAVE ALL BEEN DISCUSSINGt AND 9 PART OF THISt ALTHOUGH IT'S NOT PART OF THE AGREEMENTt IT'S 10 MY UNDERSTANDING THAT THE PARTIES ARE GOING TO BE MEETING AT 11 THE INVITATION OF MR. SIMONITCHt WHO WAS HERE FOR PART OF . 12 THE SETTLEMENT CONFERENCE HERE TODAYt IS GOING TO HAVE A 13 SIT-DOWN MEETING WITH HIMt AND PERHAPS AT THAT TIME A 14 PROPOSED ORDER WILL BE SUBMITTED TO MR. SIMONITCH FOR HIS 15 REQUESTED EXECUTION. 16 AND IT'S JUST THE COURT'S SUGGESTION THAT HE BE 17 APPRISED OF THE FACT THAT THIS IS A DEAL-BREAKER PART OF THE 18 AGREEMENT. 19 MR. WATERMAN: COULD WE TAKE THE LIBERTY OF 20 KEEPING YOUR HONOR ADVISED -- 21 THE COURT: YES. 22 MR. WATERMAN: -- AS TO THE DATE OF THAT MEETING? 23 THE COURT: YOU BETt YOU BET. I WILL EVEN BE BY A . 24 PHONE IN CASE -- IN CASE MEMORIES GET -- AND I'M NOT 25 SUGGESTING THAT ANY MEMORY HERE IS GOING TO GET A LITTLE PAGE 10 . 1 SLOPPY, BUT -- 2 MS. RUDBERG: NEVER DID THAT. 3 THE COURT: BUT IF -- MINE MIGHT GET SLOPPY, BUT I 4 CAN REMEMBER WHAT SOME OF THE IMPORTANT THINGS ARE THAT 5 OCCURRED, WITH THE DIRECTOR HERE. 6 NOW, THE NEXT ELEMENT IS THAT THE INDIVIDUALS IN THE 7 BSS AREA WHO GET WATER WILL BE REQUIRED TO PAY FOR THE 8 WATER, AND THEY WILL HAVE METERS INSTALLED, JUST LIKE 9 ANYBODY ELSE WHO GETS CITY WATER. 10 AND THAT'S ANOTHER POINT THAT NEEDS TO BE STRESSED TO 11 THE DIRECTOR; RIGHT? . 12 MR. O'CONNELL: YES. 13 THE COURT: AND I HAD PRETTY GOOD ASSURANCES FROM 14 THE DIRECTOR TODAY THAT THERE IS NOT GOING TO BE ANY PROBLEM 15 WITH THE CITY COLLECTING WATER MONEY FOR WATER ON THIS 16 TEMPORARY LINE. AT LEAST THAT WAS MY IMPRESSION. I THINK 17 HE MADE THAT STATEMENT TO MOST OF US. 18 MR. SKANCHY: THAT'S THE WAY I REMEMBER IT. 19 THE COURT: YEAH. . 20 MR. O'CONNELL: I REMEMBER. 21 THE COURT: NOW, WE DON'T WANT TO PUT THE DIRECTOR 22 IN A BOX, BUT -- 23 MR. O'CONNELL: WE WANT TO ANYWAYS. . 24 THE COURT: YEAH, RIGHT. 25 MR. O'CONNELL: I THINK PERHAPS ANOTHER ELEMENT PAGE 11 . 1 WE SHOULD CONSIDER IS INSTEAD OF THE USUAL STIPULATION THAT 2 WE ARE GOING -- THE PARTIES WILL CAUSE A STIPULATION FOR 3 DISMISSAL TO BE FILED, PERHAPS WE SHOULD HAVE THE COURT 4 ENTERTAIN OR RETAIN JURISDICTION OVER THIS FOR SOME TIME 5 UNTIL SUCH TIME AS WE GET DEQ ISSUES RESOLVED, AND THEN THAT 6 MAY BE THE APPROPRIATE TIME TO LET THE COURT OUT OF THIS 7 BURDEN. 8 THE COURT: YEAH, I WOULD -- FIRST, THE LAWYERS 9 FOR BOTH SIDES ARE TO BE COMMENDED, AND THE CITY COUNCIL 10 REPRESENTATIVE AND THE OTHER REPRESENTATIVES OF THE CITY ARE , . 11 TO BE COMMENDED FOR GETTING THIS MATTER RESOLVED. . 12 AND BECAUSE THERE ARE GOOD LAWYERS INVOLVED, I'M 13 ASSUMING THAT THESE GOOD LAWYERS ARE GOING TO KNOW WHEN THE 14 TIME IS RIPE TO FILE A STIPULATION AND ORDER OF DISMISSAL. 15 SO IT WILL BE UP TO YOU FELLOWS TO DO THAT. 16 ANYTHING ELSE WE NEED TO PUT ON THE RECORD? 17 MR. WATERMAN: I DON'T THINK SO. 18 MS. RUDBERG: I DON'T HAVE ANYTHING ELSE ON THE 19 RECORD, BUT I DO HAVE A REQUEST, ONLY BECAUSE WE HAVE TO 20 DEAL WITH THE CONSTITUENTS. YOU HELD US BEFORE TO NOT 21 HAVING ANY CONVERSATIONS ABOUT THIS, AND I WOULD APPRECIATE 22 IT IF NO.ONE TALKS TO THE MEDIA UNTIL AFTER WE GET TO THE 23 POINT WHERE WE'VE AGREED TO THE SETTLEMENT, BECAUSE . 24 OTHERWISE WE'RE GOING TO HAVE A BIG STIR ON OUR HANDS, BOTH 25 SIDES. PAGE 12 . 1 MR. METZ: THAT'S FINE. WE WILL HAVE TO REPORT IT 2 CONFIDENTIALLY WITHIN OUR OWN COMPANY, BUT IT WILL BE A 3 SELECT GROUP OF PEOPLE AND -- 4 MS. RUDBERG: I'M JUST TALKING ABOUT CALLING THE 5 MEDIA. 6 THE COURT: NOBODY IS THAT DUMB IN THIS ROOM. AM 7 I RIGHT ON THAT? 8 MR. O'CONNELL: I WOULD HOPE. 9 THE COURT: YOU DON'T VOLUNTARILY MAKE TELEPHONE 10 CALLS TO AN ORGANIZATION THAT BUYS INK BY THE BARREL. 11 MS. RUDBERG: THANK YOU, SIR. . 12 THE COURT: THAT'S WHAT JUDGE W.W. LESLIE TOLD ME. 13 MS. RUDBERG: HE WAS RIGHT. 14 THE COURT: YES. 15 ANYTHING ELSE? 16 MR. WATERMAN: NO, YOUR HONOR. 17 THE COURT: GREAT. WE'RE OFF THE RECORD. 18 THANKS. 19 (PROCEEDINGS CONCLUDED.) 20 CERTIFICATE OF REPORTER 21 I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT 22 FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 23 {~- 4J~ . 24 '" !2mi<- 'I h'll czr; I I LISA S. LEWIS, RMR DATE 25 . .. . MEMORANDUM OF AGREEMENT BETWEEN THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY AND ~ THE CITY OF BOZEMAN, MONTANA REGARDING THE INTERIM MEASURE REMEDIAL INVESTIGATION AND FEASIBILITY STUDY (RIIFS) TO BE CONDUCTED AT THE BOZEMAN SOLVENT SITE IN BOZEMAN, MONTANA ~ ,1. The Montan~ Department of Environmental Quality (DEQ) and the City of Bozeman, Montana (the City), hereby agree that the City shall voluntarily, with the assistance; efforts, expertise and advice of its contractor, Nicklin Earth and Water, perform a remedial investigation and feasibility study (RifFS) for the Bozeman Solvent Site, located in the northwest area of Bozeman, Montana, in the County of Gallatin, most specifically the area comprised of approximately 700 acres located in . Township 2 South, Range 5 East, Sections 1, 2 and 12 and in Township 1 South, Range 5 East, Section 35 and 36 of Gallatin County, Montana, under the following terms: 2. The City shall perform the RifFS diligently, competently and consistently with the latest eqitiol'J of the City's work plan, entitled "Draft Final Phase Remedial . Investigation Work Plan-Bozeman Solvent Site," [hereinafter the Work Plan] submitted to DEQ by Nicklin Earth and Water. t=or purposes of this Agreement, the Work Plan shall include all DEQ~approved written or oral modifications or additions thereto. The Work Plan is subject to DEQ approval and public comment. If DEQ . does not approve the Work Plan, the.City shall not perform the RIIFS and DEQ may, in the exercise of its discretion, contract with or order another party, including a contractor retained by DEQ, to perform the RIIFS. 3. The City shall provide DEQ a schedule for work to be performed and dates when deJiverables~ including, but not limited to, draft and final documents, field notes and reports, shall be delivered to OEQ. The City and DEQ acknowledge that the schedule is subject to DEQ approyal and is integral to the efficient and timely completion of the RI and FS work, including the necessary public comment pe~iods 'pertaining to both the RI and FS. . 4. The City and oE'a agree that DEQ will provide oversight of the RIIFS process and that DEQ will review RifFS documents, reports and other deliverables for ". e- " consistency with the National Consistency Plan (NCP). Further, the City and DEQ agree that all phases of the RifFS, including work, schedules an'd deliverables, are subject to DEQ approval. In the event DEQ: - (A) does not approve the work being performed pursuant to the Work Plan (including any DEQ-approved or DEQ-required modifications or additions to the Work Plan), pursuant to any additional DEQ-approved work plans for performance of the RifFS (including performance of "additional work") or pursuant to this Agreement, or (8) does not approve a d~,liverable or any deliverables delivered to DEQ pursuant to the Work Plan (including any DEQ-approved or DEQ-required modifications or additions to the Work Plan), pursuant to any additional DEQ- approved work plans for performance of the RifFS (including performance of "additional work") or pursuant to this Agreement, . . DEQ may, at any poin.t during the course of the RI/FS, terminate the City's e performance of the RifFS and contract with or order another party, including a contractor hired by DEQ, to perform or complete the RifFS. The City and DEQ agree that the City's failure to submit deliverables on time or perform RifFS work according to DEQ-approved schedules constitutes grounds for DEQ to deny approval of deliverables and work. 5. The City agrees to pay for performance of the RifFS and pay DEQ's oversight costs for" the RifFS. 6. The City agrees to provide DEQ, prior to RifFS commencement, a statement of financial ability to pay for and perform the RifFS to completion. Such statement of financial ability shall be comprised of the City Clerk of ~ozeman, Montana's duly . signed/executed copies of the minutes of the Bozeman City Commission/City Council meetings that were held on June 10,1996, and June 17,1996, at which meetings the Commission/Council heard, discussed and approved the fiscal 1997 budget for the Bozeman Solvent Site, including the reasonably estimated costs of the City's performance of the RifFS. Such statement of financial ability is attached hereto as Exhibits A and 8. 7. The City and DEQ agree that this Agreement and performance of the RifFS e hereunder is not subject to judicial review and is not subject to the requirements of ..~tion 75-10-723, MCA. ;\- .... - u. .. . IT IS SO AGREED: THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY BY AND THROUGH ITS DULY AUTHORIZED REPRESENTATIVE ~/~/ ~L MARK SIMONICH . DIRECTOR OF THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY Date: 7&/'p~ : IT IS SO A GREED::: . . . THE CITY OF BOZEMAN, MONTANA BY AND THROUGH ITS DULY AUTHORIZED REPRESENTATIVE (2 t?4~ THE HONORABLE DON STUECK MAYOR OF THE CITY OF BOZEMAN, MONTANA Date: 7///7h' / ATTEST: (]~y~ . ROBIN l. SULLIVAN, Clerk of the Commission . , , . '. . ----- '. Authorize City Manaaer to sian - Amendment No.1 to Professional Services . Aareement for corrosion control proiect at Water Treatment Plant - Damschen and Associates: continQent upon Damschen's execution of documents " ., Authorize Nicklin Earth and Water to oroceed with remediallnvestlaationf :<-. feasibllitv study (RIfFS) on Bozeman Solvent Site .'. ." ..... .... Bulldina Insoection Division reoort for Mav 1996 ;. . . .' .- Claims ' .' .~ It was moved by Commissioner Stiff. seconded by Commissioner Frost. that the "':-. . v ..: . Commission approve the Consent Items as listed. and authorize and direct the appropriate '. . . ; . persons to complete the necessary actions. The motion carried by the following Aye and No , .. vote: tho;se voting Aye being Commissioner Stiff. Commissioner Frost. Commissioner Youngman. Commissioner Rudberg and Mayor Stueck: those voting No. none. .... ..' ..:. , " , Recess - 5:12 p.m. .. .' . Mayor Stueck declared a recess at 5.: 12 p.m.. to reconvene at 7:00 p,m.. for the . ~ . purpose of conducting the scheduled public hearings. " . " . . . .' .- Reconvene - 7:00 p.m, .. J '. Mayor Stueck reconvened the meeting at 7:00 p.m.. for the purpose of conducting' ,-.: '. . ". the scheduled public hearings. \ " "."; . ",' ." ' , , .. Public hearina - COA with deviations from Sections 18.50.160 and 18.18.050. Bozeman . . ~uniciDal Code. ta allow new'aaraae and twO-storv addition to encroach into 20-foot rearvard ..~ .. etback ~n the west 75 feet of the north 5 feet of Lot 21 and the west 75 feet of Lots 22-24. .;.+ . Block 27 Park Addition - Jennifer Sheldon. 426 West Koch Street (Z-9637) .. This was the time and' place set for the public hearing on .the Certificate of -. ~ :.~ ." . . - . . Appropriateness with deyiations from Sections 18.50.160 and 18.18.050 of the Bozema.n ~~:; . Municipal.Code. as requested by Jennifer Sheldon under Application No. Z-9637. to allow a . .." ........ *. ., . , new garage and two-story addition to encroach into the 20-foot rear yard setback on the west .. :~:;~.. 75 feet of the north 5 feet of Lot 21 and the west 75 feet of Lots 22 through 24, Block 27. ." ." .. ,"w .. , ...... Park Addition. The subject property is more commonly located at 426 West Koch Street. :.:..~'. ";"::-; ;.. .~ .' Mayor Stueck opened the public hearing. ..' :; . ~ ow _ ,.... ~/.:' . . .' . ~.' : ....." . - " 06-17-96 " .-. . ..' COMMISSION RESOLUTION NO. 3125 -.:' .-.. . . A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, ... . MONTANA, ESTABLISHING A PUBLIC HEARING TO HEAR PUBLIC .". . COMMENT ON THE APPLICATION OF AK SPECIALTIES, INC., FOR TAX .... REDUCTION UNDER SECTION 15-24-1401, ET SED, MONTANA CODE " ' .... . ANNOTATED AND CITY OF BOZEMAN COMMISSION RESOLUTION NO. 2660. - ,... ..... Authorize expenditure of $7 .566.67 as partial reimbursement for costs " , billed bv the State of Montana Deoartment of Environmental ;..... Qualitv for the Bozeman Solvent Site for the period Januarv 1. .'.' . 1996 throuoh March 31. 1996 .... Authorize City Menaaer to sian. Security Aareement between City and J.D. ~ .' . Harlev-Davidson.lnc. - purchase of 1996 FlHPI Harlev~Davidson ' , motorcvcle . .... . '.~ " ',' Authorize City Manaaer to sian - Sewer and Water Pipeline and Assess ..'. Easement and Aoreement. between City and Clair W. Daines and .," . Sharon Daines - across lot 2. GUY'S Second Addition. existino .,- .. ' unplatted tract and portion of abandoned Chicaoo railroad rlaht.of. ,', way recorded as Plat J-' 55 (Alderson proiectl ,.' . Authorize City Manaaer to sian - Chanoe Order No, 1 for Hiohland '. : ...,: Boulevard Reconstruction - JTL Group - add $449,00 and 0 " , calendar days ..' ' " .. . Authorize absence of Commissioner Yol/noman from meetina of June 24. J In compliance with Section 7.3-4322(21. M,C.A. Award bid - 1996 Street Improvements - Schedules I. II. III. VI and VII to JTL Group. Inc.. Belarade. Montana. in bid amount of $393.005.00: and Schedules IV and V to Concrete Specialties. Inc., Bozeman. Montana. in bid amount of $161.693.45 . . Reiect bid - remodelino of City Hall Annex: authorize staff to oroceed with rebiddino '. - - , ' .. Award bid - 1994 Water Renovations - Schedules I throuah V to Johnston Excavatina. Inc.. Bozeman. Montana. in the total bid amount of " . $288.028.00 ," , . Commission Resolution No. 3126 - certifvina delinquent assessments as of .' . Mav 31. 1996 to the County , , .... COMMISSION RESOLUTION NO. 3126 - , .. , , ' .- "A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DECLARING DELINQUENT ALL SEMI-ANNUAL SPECIAL ASSESSMENT INSTALLMENTS DUE AND PAYABLE MAY 31, 1996, . , , ' WHICH WERE UNPAID AS OF THAT DATE, AND RATIFYING THE DIRECTOR OF FINANCE'S CERTIFICATION TO THE GALLATIN COUNTY TREASURER FOR COLLECTION. .. Apolication for L1auor License - Ga'natin Lounae Corooration for Luckv'Ul's , - . Casino. 2401 West Main Street: continaent ~oon receiPt of State ' , license .. ..,' . .' .. , .... " , . , (111 Commissioner Rudberg stated that, just before she left on vacation, she '0"1'; . spend a day with gentlemen from the Netherlands, noting it was an interesting experience. ~:.:;~ : :~._. Mr. David Smith, Executive Director for the Bozeman Area Chamber of ~':. (121 . .-- I:. Commerce. submitted the following. (1) Thanked the Mayor for his participation in various ~::~~ community events in conjunction with the College National Finals Rodeo, which was held in '," '.~. ..... Bozeman last week. He noted that Bozeman will have the rodeo In 1997; however, the ' ....'.. '-', , , I"" - community must work diligently to prepare a competitive bid to retain the rodeo. He stated ",:-:r; '.0-. that the decision on the location of future rodeos will be made in Las Vegas in December. (21 .... , " '... Announced that the Montana Transportation Commission has approved the expenditure of ." ..... $932,000 for the new visitors' center/rest stop at the North, 19th Avenue Interchange. He " ..' . noted that bidding of the project is scheduled for October 1996. (3) Attended the meeting in ," Helena regarding relocation of the agriculture research station. He noted that at that meeting, " it was evident the decision had already been made to relocate the facility to Sidney. (4) ," '. . Participated in a familiarization tour with journali,sts from Taiwan and China last week. '.. (13) Mayor Stueck submitted the following. 111 Attended the second retreat of " . the City-County Health Board on Saturday. (2) Attended several activities for the College National Finals Rodeo last week, .. -" . ..:', " Consent Items .... I, 1..- City Manager Wysocki presente9 to the Commission the followjng Consc:nt Items. " .:"" . : . ,",I' : ." Acknowledoe recelot of aoolication for annexation ~ Michael Delaney. Ileana .. . . Indreland. Delanev & Co.. Inc.. and Oxford Trust. Tracts A and .:.""= B. COS No. 1005. and Tract 2. COS No. 1846. located In the, " ' '... SWv.. Section 10. T2S. R5E. MPM (135 acres located at the .... " northwest corner of the intersection of US Hiahwav 191/Huffine Lane and Ferouson Road: refer to staff :" . Acknowledoe receipt of aoplication for annexation - C & H EnalneerlnCl. . representina William A. Phillios. G.K. Reiser and McRay Evans - " three parcels totallina 16.438 acres located alona the east side of South Rouse Avenue. at Mason. Accola and Hoffman Streets extended: refer to staff Commission Resolution No. 3125 . establishina oublic hearino .. on aoplication from AK Specialties. Inc.. for tax reduction for 'expandino business for July 1. 1996 .' . , . ' , . , lhl,. Qapj 1f' ~ l:''''~ t<.'to. COlt'l'OO'l; oopy ot th- .- :~O:l~ omoo. : . " , . . ..., O]r.~) 0/ thu C1tr Co==1~a1on ....- - - "....... ------.-.--- .:.... (D) Possible executive session re litigation .... .... .' Mayor Stueck announced his intent to close the meeting and enter an executive ::~~:; . . .',- . " session, under Section 2-3-203(4), M.C.A., for the purpose of discussing litigation pertaining to the Bozeman Solvent Site, noting that If the issues were discussed In open meeting, it would " , .' .. have a detrimental effect on the litigating position of the City. " . . '.:~:': '. Ms. Gail Schonuler, reporter for the Bozeman Daily Chronicle, stated her re~pectful ..:. . ....' obtection to closure of the meeting, noting that the Commission discusses many complex and .'. . ... .. ... . expensive issues In open session. She stated that the public right to know exceeds any .:.." )} .. ~. . possible right to privacy. She asked that If the Commission decides to enter an executive ':".=: .. . " " ." session, the discussion be limited to the subject of litigation and not be alfowed to stray. .. ' , ' , . ... At 4:43 p.m., Mayor Stueck called an executive session for the purpose of discussing , " .... " , litigation and asked all of the persons except the City Attorney, Attorney Barry O'Connell, ~:"J :;.~:. .:: Director of Public Service and Clerk of the Commission to leave the room. :''':. . :.~' : At 5:25 p.m., Mayor Stueck closed the executiye session and reconvened the open ~}: meeting. ...... -. '. II;..... ~::~: ... . . " .... ~. . ..: ..... Discussion - FYI Items ' . .". . , .' ~.: .~.:: City Manager Wysocki presented to the Commission the following "For Your ' . ; .... . Information" items. " . , . . , ..... " ' (1 ) , Invitation to attend the dedication of the Law and Justice Center to the late ~'.-:.' - :~.. , " Judge W!W. Lessley at 11:00 a.m. on Tuesday, June 18, 1996. - . .'.- ..... (2) ~nvitation attend the ' satellite teleconference entitled "Uvable ;~:'~~~ to . , , " . " Neighborhoods: Rethinking Residential Streets", scheduled for 10:00 a.m. on Wednesday, ' " '. . .. . . " June 19, at the Strand Union Building. ' . .. :. (3) Memo from Historic Preservation Officer Derek Strahn, dated June 5, 1996, '. '.. ...... a~king that the Commission ~eplace Duane Simon on Historic .Preservation Advisory Com~ission since he has been living out of state for approximately a year. ~ .....; (4) Copy of a letter from the City Manager to Mr. Bruce McGinnis, State of :' < .. Montana Depart~ent of Revenue, dated May 30, 1996, regarding a class action lawsuit - ... . challenging the legality of the Department of Revenue's computer assisted mass appr~isal system. .. .; " " : 06-10-96 ------------------------ ---------------- - 9 - , , City Attorney Luwe encouraged the Commissioners, to ask questions, cautioning that . 'if they pertain to litigation, no response will be provided until after the executive session has ' . .. begun. .. Responding to Mayor Stueck, Mr. Q'Connellestimated that within two to thre~ years, . ' '.. the solvent site should be adequately remediated. He indicated that after the upcoming fiscal " year, the costs of the site should drop by approximately one.third, with additional decreases . ' - ' , .' in the upcoming years. He noted that the costs of continued monitoring of the groundwater " contamination will be approximately $100,000 annually. He also stated he hopes to have the '"..... ". . Commercial Union Insurance .Iitigation completed within the next year or two, and the litigation ' .. '.. with Jewel Foods completed within the next two years. ' , At Commissioner Frost's request, Mr. O'Connell provided additional history on the " " . .~ - .- sewer line on the shopping center property. He indicated that it was constructed In 1960, and " , . '.' put into operation in October 1960. He noted that a 6,OOO-gallon'septic tank and two seepage .... . ~. i ...- . , pits were Installed along the back of the shopping center. In November 1960, the subject ,'. ... . property was annexed Into the City; and in 1964, the line was extended from its terminus to ," ',' . the' new City main in North 15th Avenue. In 1970, documents conveying the Buttrey's ' , , ' ..' ~ " ' Shopping Center sewer line to the City were executed. . " -.... .... . Resp'onding to Mayo'r Stueck, Mr. Michael Nicklin reviewed where the eight ::~..'I ..~:' . , ' ", . , ~~:.' . . monitoring wells are to be located, noting that the State has requested a well be drilled across the Gallatin River from the solvent site. He also Indicated that the vertical extent of the solvent ~:~:i. ...... . .1'" .. ..- site is to be determined, as well as the horizontal extent of the plume; and that will involve ....... . , .-....: . ., drilling some deep wells, at least 140 feet to the screen. He cautioned that the State has .. -. .' , .... . requ~sted a better definition of the solvent site; and drilling wells In strategic 10catiQns should -., " ...... help identify the area. .' .' 'Responding to Mayor Stueck, Mr. O'Connell concurred It is Important for the ' .. , .. . , Commission to address the health, safety and welfare of the community, and to take : ," responsibility for clean.up of the site. " _' City Attorney Luwe cautioned the Commissioners that if they wish to discuss the ., . -. '. Issues raised during the public hearing on the sewer surcharge, It would be appropriate to first : . .. enter into executiye session. The Commissioners thanked Mr. O'Connell for his presentation. ',' .. ;: - .... . . independent contractor to prepare and implement a plan; and the start-up costs would be a , , . minimum of $150,000. ,-, Mr. Barry O'Connell stated that this solvent site has generated a significant amount ' , of paperwork to date. He indicated that some of that paperwork Includes the information generated from quarterly monitoring of the water levels and water quality in the monitoring . . .. wells; and that Information Is valuable in the remediation process. He noted that under the , ' ,- RI/FS plan prepared by Nicklin Earth and Water, Inc., an additional eight monitoring well~ are ' ' . ..~ , to be drilled in the upcoming fiscal year, In an effort to lde'ntify the boundaries of the solvent - ' , ' site. , " Mr. O'Connell stated that the lawsuit entitled Jewel versus the City of Bozeman has .. ...~. been filed In federal court, and several conferences regarding the case' have been held. He :. . ..' .; noted that the case is nowhere near ready to be tried, noting that he has requested a six.month ... extension on the May 31 deadline for discovery. He stated that, to date, discovery has found ' . .. .::. . that the dry cleaning establishment previou'sly located in the shopping ce'nter used 200 to 400 .. '. "- gallons of pure PCE per year; and on at least three or four occasions, pure peE was dumped . .~. . ' ' into the floor drains or onto the floor. Also, on hundreds of occasions, the separator water, .~:-"~: " . +:. ": which contained a high concentration of PCE, was dumped into the floor drain. He stated that. '.' .... .... sincePCE is heavier than water, it sinks. Also, the sewer line which was installed on the :. .+ " ' . , .' ow: " shopping center property was not to grade, with some portions of the'line being flat and others ~ . ". , " ." '. having a negative grade; and the PCE settled in those places. He noted.tl:lat the City was not ....... , aware of the grade problems In the sewer line and did not realize that use of the septic tank ,0.::. , , :':.::;~ on the site was not properly terminated when the sewer line was connected to the City's water :): main, nor when the line was dedicated to the City. .:::... ." .. '" Mr. O'Connell stated that, at the present time, the soil vapor extraction (SVE) unit is ..... , " in operation. He noted that this unit contains activated carbon filters. The air is pumped " , " , " through the system; and the PCE is trapped in the carbon filters~ with clean air being .. " ' discharged. To date, 80 pounds of pure PCE have been removed from the ground; and there f- .... , , ".... is no Y"~y to determine how much more PCE is. In the area or how much longer the SVE must ' ' ..... , ' . " operate. He cautioned that the State makes the determination of when the process can be :.:.- . " .. .. terminated, and at the present,time it costs approximately $3,500 per month to op~ratc and . .. ..... .. .". ' maintain the SVE unit. ,i"... ~ .::..: . -,. '.. rot:: 1ro,OI': - 7 . ," " ", , . . The Commission thanked the Planning Director for his presentation. eC) Update from Barry O'Connell re Bozeman Solvent Site .. .. ." Mr. Barry O'Connell, attorney representing the City, indicated he will address the ," issues of insurance, State administrative activity, lawsuit between Jewel Foods and the City, '. ' , . and current activities at the solvent site. He distributed a sheet of acronyms which are often used in association with the solvent site. ; Mr. O'Connell stated that the Safeco and USF&G Insurance Companies currently contribute in the amount of 23 percent of the costs incurred by the City, and National ' , Indemnity paid a' global buy-out in the amount of $95,000. At the present time, effort~ to , " obtain contributions from Commercial Union a.re in litigation; and he antic'ipates that will be " settled within the next year. " Mr. Q'Co'nnell next addres,sed the State administrative activity to date, noting that In ' . : December 1991, the City was Issued a Potential Liable Party ePLP) letter by the State of Montana Department of Health and Environmental Sciences. He noted that this letter was . issued to the City because it obtained ownership of the sewer line on August 12, 1970. He stated that the City has provided an alternate water supply to at least six different residences " and the Nelson Mobile Home Park. Also, remediation efforts have been undertaken at the '. Buttrey's Shopping Center, Including replacement of the sewer line in October 1994. During ,.. . . " , that line replacement, approximately 200 cu?i<? yards of medium impacted soil was taken out; and 16 to 20 barrels of heavily Impacted soils were sent to Utah for incineration. He stated .. .-'. that in March 1996, the City and Jewel Foods were asked by the State to prepare a remedial . . .. investigation/feasibility study (RIIFS), using a contractor agreeable to both of them. He noted " ' , .. '.. , that COM, the engineering firm which is representing Jewel Foods, provided the State with an ,- 1.", . RIIFS plan, which the State found to be unsuitable. On behalf of the City, Mr. O'Connell, '.. .... indicated'that he asked Mr. Mike Nicklin, Nicklin Earth and Water,lnc., to prepare a RifFS work ..... " . plan; and on June 7,1996, that docum'ent was submitted to the State; He stated that under " , . the process as it currently stands, the CitY will be responsible for ensuring that the plan - , , . outlined. under the RIIFS Is implemented; and that will require action by the Commission since .. ..... . it Is estimated to cost $750,000 in the next fiscal year. He cautioned that If the Commission , ~...; ". does not approve implementation of the plan, the State will be required to retain a third. :~.~:: ...... r,,\,:; r.o'P7 IG ~ mllo l:Il',d COt'l"'Qot C~9r o! tt... :.... , ' r:i!..:tc?~lc in ..]" ot:C:.et.. __._ .... :. .:..to' r.l to,,",\. 1\1 ~ l,', t~j 1," C:\t!'"\""'! ~ .~f!' C"ril North Connection to Ci1 Water . 4 , /....,i,i..'../ / SID 646 .( ~ I I 1000 feet .I i - - - - N. 7th Ave. -......- , ; Cherry i City Water Mains : I ..~rin~~...... i I, \ .....-1 c""""'... Water Lines/Mains Installed by Others II \, ", \ '! i' ),....\...-~ \~----_./:y' I II ~ 5 Proposed Alternate Water Supply Line IS ' , - !: II II .. . .. ~ U did ~. a.. I Cape-France ! :! \ Railroad n eve ope il ~~ j ~/ I >i I I: i :i !! P .. rty ~ I i I / I "!l~ i .. I I ~ Crossing rope ,//~t:// Ii I / ! ll.. l. ! l. ,11lI , ~ I / / I~i ' ii' ..~ ~~\ ~ iJ,' 'I !l liE r- .. ~ ~..~ 'i~\ (~~ ~; i i I. L-~...j Ea'SrStream ;, /" /' , 0 i ~ andevllle 1 1 ~ 'lJ ll_ , 0 Residenqe Undeveloped ; 1 ~ i I ~\'-" ' S>> - ~ Property ~ j ~ /j " "--- I ~ ; I n I 52 b \i \. tI) ! r f . I I \ h I ~\ : J i: . U i i ~ - - . .! I ~ ~ I I . I . i . I . J J! ~. I ' ! ' , i ! ; , i I I. I .! I !, .' I .. Cape-France . i-I I T 1. - 1,1 . _ i . il i ( r I I 1 I: . I , , .. I . - --.r__ - _--1_ - ill , ve. t! ...- i ~I Springhill ! I ~ ~. I , I ~~ ~. I ~ ~ i \\ C ! !i c \ ~ ~ i\\~ ; .j! b -U1 . i 91 !Ii ~L , ~I t . C1> I ~ ; I 6... ~...::.< \ .. SID 665 " ! . t!J NICKLIN Existing City Water MainslWater Mains Under Cd,nstruction Proposed Alternate Water Supply Lin~ EARTH & WATER, INC. North of W. Oak Street, Vicinity of SSS PCE !Plume , ' . LICENSE FOR ACCESS This License for Access ("License") is made and entered into this ~ day of September, 1994, by and between the City of Bozeman, Montana, a municipality organized under the Laws of the State of Montana ("City"), and Jewel Food Stores, Inc., a Bct1{W&flc.. Corporation ("Jewel"). Jewel and City shall sometimes be referred to herein as the "parties" or, individually, as a "party". RECITALS: WHEREAS, City and Buttrey Food Stores Division of Jewel Companies ("Buttrey") entered into that certain Agreement for Purchase and Sale of a Sewer Line dated August 12, 1970 ("Purchase Agreement"), a true and correct copy of the Purchase Agreement is attached hereto as Exhibit "A" and incorporated herein by reference, wherein Buttrey agreed to sell and City agreed to purchase, operate and maintain that certain sewer line, which sewer line shall be designated herein as the "Shopping Center Sewer Line", servicing real property known as the Buttrey Shopping Center located at 1600 West Main Street, Bozeman, Montana, hereinafter referred to as the "Property", and more particularly described in Exhibit "B" attached hereto and incorporated herein by reference; and . WHEREAS, Jewel or its predecessors in interest were prior owners of the Buttrey Shopping Center since 1966, and the parties have undertaken certain environmental investigation and remedial action at the Property pursuant to certain Orders issued by the Montana Department of Environmental Health and Sciences ("MDHES"); and WHEREAS, City desires (i) to install a new sewer service line, hereinafter referred to as the "Replacement Sewer Line", as depicted in the City's Construction Drawings dated July 27, 1994, and last revised September 13, 1994, true and correct copies of which are attached as Exhibit "C" hereto, to be located behind the shopping center; and (ii) to connect the Replacement Sewer Line to the service connections presently connected to the Shopping Center Sewer Line so as to make the Shopping Center Sewer Line a non-functioning service line; and (Hi) remediate any contaminated soils the City may discover while performing the foregoing work ("Contaminated Soils"); and WHEREAS, the Parties have concern that the conduct of the foregoing activities may damage the structural integrity of the shopping center improvements on the Property; and WHEREAS, the Parties agree that certain sufficient and adequate assurances can be made by the City to protect the structural integrity of the shopping center improvements to allow the installation of the Replacement Sewer Line; to connect the Replacement Sewer Line to the service connections; and to remediate any Contaminated Soils encountered during such activity; . and 92993,6 . WHEREAS, Jewel is willing to grant a limited right of access for the City to install the Replacement Sewer Line, to COIUlect the Replacement Sewer Line to the service connections, and to remediate any Contaminated Soils encountered during such activity; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Jewel and the City agree as follows: 1. Limited Grant of Access. Jewel hereby grants to City and its duly authorized contractors, subcontractors and agents (collectively, the "City Workers", which shall expressly include Canonie Environmental Services Corp.), a limited license to enter upon the Property in order to install the Replacement Sewer Line, to connect the Replacement Sewer Line to the service connections, and remediate any Contaminated Soils it may uncover during this work (collectively, the "Activities "), subject to the terms and conditions of this Agreement. The grant of license to City and City Workers is and shall be deemed a limited grant for the specific purposes set forth herein to allow the installation of the Replacement Sewer Line, to connect the Replacement Sewer Line to the service connections, and remediation of Contaminated Soils adjacent thereto. This Agreement is not, and shall not be deemed to be, a public dedication, and no person or entity shall be granted access to the Property under this Agreement except as expressly set forth herein. This Agreement shall not abridge, limit, modify or in any way . constrict the rights or obligations of the City granted by that certain grant attached hereto as Exhibit A, Nor is this Agreement a right, nor shall it be deemed to be a right, to remove the Shopping Center Sewer Line, it being expressly understood that if the removal of the Shopping Center Sewer Line is recommended by the City, City shall provide to Jewel additional adequate assurances that the construction activities it proposes in connection with the removal of the Shopping Center Sewer Line will not affect the structural integrity of the shopping center improvements or otherwise damage or threaten to damage the improvements to the Property, whereupon the parties may negotiate a new site access agreement for additional work, if any, involved in the Shopping Center Sewer Line and the remediation of Contaminated Soils related to the Shopping Center Sewer Line. The limited grant of access hereunder shall give City and the City Workers the ability to enter only upon the portion of the Property necessary to perform the Activities, and only to the extent reasonably required and for the time reasonably necessary. Such access is on an "as is" basis, and the City expressly assumes full and complete responsibility for the safety and well- being of the public, shopping center tenants, the shopping center improvements, and City Workers while on the Property. 2. Conduct of the Activities. City agrees to perform, or cause to be performed, the Activities with the assistance of qualified environmental consultants, environmental remediation . contractors and civil and structural engineers, as it may deem appropriate. Adequate forces shall be engaged to expeditiously complete the Activities with diligence and ~ a manner, to the extent 92993,6 2 . reasonably possible, to avoid interference with and minimize disruption of the operations or businesses of persons or entities operating or conducting business at the Property, and to protect and preserve the structural integrity of all improvements thereon, City shall cause the City Workers to undertake all actions on the Property, including, without limitation, the Activities; in a manner reasonably calculated to provide for the safety of all persons who may come thereon, City shall cause the City Workers to accomplish all of the Activities undertaken by them in a good and workmanlike manner and in accordance with all applicable governmental laws, rules, regulations and orders. City further agrees to obtain, or cause to be obtained, all permits, licenses, approvals and consents necessary or legally required in connection with the Activities, The Activities shall be deemed completed when City has remediated the Contaminated Soils encountered during the performance of the Activities to the clean-up levels as established by the MDHES or the United States Envirorunental Protection Agency (or any successor agency). City shall complete the Activities pursuant to the following schedule: a. Replacement of Sewer Line and Attaclunent to Service Connections: The construction activities associated with the Replacement Sewer Line and completing the service connections to the Replacement Sewer Line shall be conducted, except as modified by this Agreement, in accordance with the "Technical Specifications, Sanitary Sewer Line Replacement, . Buttrey Shopping Center", dated August, 1994, and the "Work Plan Line Replacement/Soil Remediation, Voluntary Action, Buttrey Shopping Center" dated September, 1994, both prepared by Canonie Environmental Services Corp, for City (collectively referred to as the "Plan"), subject to such modifications to the Plan as provided in this Agreement, and will begin September 26, 1994, and shall be completed by November 12, 1994; b, Remediation of Contaminated Soils: The remediation of any Contaminated Soils uncovered during the installation of the Replacement Sewer Line and making the service connections shall be accomplished in accordance with the terms of this Agreement, and shall be completed by October 3, 1995. c. Jewel's Exceptions to the Plan: The Plan, as described above, is expressly modified by the Parties in the following respects: (i) No Removal of Shopping Center Sewer Line: Due to the proximity of the Shopping Center Sewer Line to the shopping center improvements on the Property, and due to the lack of information necessary for the City to make certain sufficient and adequate assurances regarding the structural integrity of the shopping center improvements in the removal of the Shopping Center Sewer Line at the present time, the conduct of the Activities referenced by the Plan shall expressly exclude removal of the Shopping Center Sewer Line. Nothing herein shall be intended to prevent the City from acquiring such information in the future, or from proposing such removal with adequate assurances, provided such removal of the Shopping Center Sewer . Line shall not occur under this Agreement, but shall require a separate written agreement between the Parties. 92993.6 3 , , . (ii) No Excavations Within Fifteen (15) Feet of the Foundation: No excavation shall occur where the bottom centerline of such excavation is closer than fifteen (15) feet from the foundation of the shopping center improvements unless the excavation is shored or other adequate protection is undertaken to protect the structural integrity of the shopping center improvements, In areas where the bottom centerline of the excavation is closer than fifteen (15) feet to the foundation of the shopping center improvements, the length of the open trench shall not exceed the depth of the excavation. (Hi) Traffic Control Plan: The Site Trafficl Access Control as depicted on Figure E-1 of the Work Plan is modified to incorporate the following changes: (a) The fenced area on the northeast side of the shopping center is reduced to an area roughly 25 feet back from the entrance to the Osco Drug Store and running east toward 15th A venue, to a point approximately 120 feet west of 15th Avenue and then north to the newspaper recycling building depicted in Figure E-l. A modified Figure E-l of the Work Plan is attached hereto as Exhibit "D" and incorporated herein by this reference. This configuration is intended to create customer access from 15th Avenue to the shopping center. (b) The fence to be used on the northeast side of the shopping center . will be slated to prevent observation of the construction activities and "No Parking" signs will be placed on the northeast section of the fence to prohibit parking in this access area, (c) The fence enclosing the construction Activities shall be removed after the Replacement Line has been installed and the service connections made, except for the section of fence on the back side of the building along the irrigation ditch known as the Walton ditch which will be removed within sixty (60) days after written request by Jewel. Additionally, a gate will be placed in the fence in the path area between the Buggy Bath Car Wash and the Property along the Walton ditch which will be locked during the construction Activities, but unlocked thereafter, to permit access to the. Property . The gate is depicted on modified Figure E-l attached hereto as Exhibit "D". Keys to the gates will be provided to the Osco and Buttrey's store managers. (d) Except for the period of time that work is being conducted at the 15th Avenue sewer manhole, or immediately adjacent thereto, access to and from the Property from 15th A venue will not be restricted, and, weather permitting and . asphalt supply being available, the access to the property from 15th Avenue will be repaved at the same time 15th Avenue is repaved, for approximately 100 feet; 92993,6 4 . (e) Access Control point #2, as depicted on Figure E-l, is eliminated, (f) Construction persOIUlel parking will be located in the area immediately north of the southeast entrance from 15th A venue onto the Property. (g) No construction materials or equipment will be stored on the Property except within the fenced portion of the northeast section of the Property. (iv) Repaving: The excavations shall be repaved in accordance with the Plan with reasonable diligence, but in any event within sixty (60) days after written request by Jewel. (v) Contaminated Soil Remediation: The temporary storage of contaminated soil shall not exceed One-hundred eighty (180) cubic yards of material; shall only be placed in the designated soil stock pile area; and shall not be located on the Property for more than one year. No contaminated soil shall be stored on the Property without prior notice and approval by Jewel, which approval shall not be unreasonably withheld. (vi) Forklifts: The City will provide a forklift and forklift operator at its expense during any period of time that deliveries carmot be made by regular. delivery trucks to the tenants of the Shopping Center. . (vii) Pre-Construction Meeting: The City will hold a pre-construction meeting with the tenants at the Property at a time to be determined in order to provide an explanation of the Activities, coordination of deliveries and introduction of the individuals responsible for the Activities. c, On-Site Inspection and Modification. Jewel shall be entitled to appoint an On Scene Coordinator to be on-site to monitor the activities of City and City Workers in order to facilitate the coordination of the work with the tenants of the Shopping Center in order to minimize any delay or disruption in the business activities of the tenants of the Shopping Center, and to observe the Activities, and Jewel shall have the authority to stop work, if necessary, to protect the shopping center improvements on the Property. The presence of the On-Scene Coordinator and the right of Jewel to stop work shall not be regarded as an assumption of any liability for the acts or activities of the City, d. Reclamation. Unless otherwise agreed in advance and in writing by the Jewel, upon completion of the Activities, City will promptly return the Property to the appearance and condition of the Property as it existed prior to City Workers undertaking the Activities, Unless otherwise agreed in advance and in writing by the Jewel, any damage to surfaces or structures at the Property shall be promptly repaired in a diligent and professional marmer, the Contaminated Soil shall be promptly replaced with uncontaminated soil of at least equal quality and consistency as the removed soil. The Activities shall be completed in a roarmer as to meet . all applicable federal, state and local clean-up and construction standards with respect to the Property . 92993,6 5 . Notwithstanding the foregoing modifications to the Plan, nothing hereunder shall relieve City and City Workers from exercising due care in the execution of the Activities or relieve City and City Workers from liability arising out of the Activities, including but not limited to, damage to the structural integrity of the shopping center improvements on the Property, Regardless of fault (except for the sole fault of Jewel), the City is solely responsible and liable to Jewel for any damage to the Property or the improvements thereon, including damage to the structural integrity of the improvements on the Property, or injury to anyone arising out of the Activities. Furthermore, the right of Jewel or the On Scene Coordinator to observe and/or stop work shall not infer any liability to Jewel for construction methods or activities conducted by the City or the City Workers, it being expressly understood that City is solely responsible and liable for the construction methods in conjunction with the Activities. 3, Notification with Respect to Activities, City shall notify Jewel not less than forty- eight (48) hours prior to any proposed Activities to be conducted by or at the direction of City or City Workers on the Property, including, without limitation, sampling conducted as part of the authorized Activities. At Jewel's request, City will allow Jewel to take a "split sample" (a portion of the materials collected by City Workers for analysis) of any sample taken by or at the direction of City or the City Workers. Furthermore, Jewel's environmental consultant, PRC Environmental, Inc., shall have full access to the site and be permitted to be take any and all soil or water samples it may require during the Activities. . In the event that any of the actions contemplated as part of the Activities proposed by City or the City Workers involve disruption of vehicular access or current use of the Property, including, without limitation, those specific actions listed below, then City shall provide a detailed written action plan that addresses the time, duration, area impacted and the conditions set forth below associated with the proposed action, and such action plan shall be submitted to Jewel not less than five (5) business days (or such lesser time as Jewel may approve in advance and in writing) prior to such action for Jewel's approval, modification or rejection, and such action shall not commence without prior written approval of the action plan by Jewel. a. Contaminated Soil and/or Materials. Attached to this Agreement as Exhibit "D" is the Traffic Control/Site Access Plan depicting the location on the Property proposed for the temporary storage of Contaminated Soil. City shall provide Jewel with information concerning the size, weight, location, duration and nature of all Contaminated Soil, contaminated media, materials, fixtures, fences, gates, security systems, improvements, monitoring equipment, remediation equipment, supplies, drums and hazardous materials, as well as measures for access, security, and public safety. b, Tenant. Vendor. Service or Customer Access. City shall further provide Jewel with information in advance of any activities which may impair the access to the Property of any customer, tenant, vendor or service provider. . 92993,6 6 . 4. Right to Inspect. Jewel may, at Jewel's expense, inspect and review the conduct and progress of the Activities by City or City Workers from time to time, at Jewel's discretion; provided, in so doing Jewel shall not unreasonably interfere with the City Workers performance of the Activities, 5, Liens, City shall payor cause to be paid in full all persons who perform labor or provide services or materials in cOIll1ection with the Activities. City agrees to keep the Property free and clear of all liens or encumbrances, whether in the nature of a mechanics', materialmen's or environmental liens or any other type of lien whatsoever, due to City's actions or City Workers' actions pursuant to this Agreement. If any lien is filed against the Property or if any claim is made against Jewel, or any affiliated entity thereof, for payment of labor, materials, equipment or services pertaining, directly or indirectly, to the Activities, then City shall promptly take all actions, at City's expense, necessary to fully and completely discharge such lien or claim, 6. Indemnification, City hereby indemnifies, holds harmless and agrees to defend Jewel, its affiliated companies, its successors, agents and assigns, the tenants of the Property and their agents, directors, officers and employees from and against any and all losses, expenses, liabilities, judgments, claims, actions, suits, fines, penalties, costs, demands, causes of action and damages (including, without limitation, reasonable attorneys' fees, court costs, reasonable . investigative and discovery costs, consultants' fees and other costs) asserted by third parties and/or City Workers, or otherwise, and whether judicial, administrative, or otherwise, at law or in equity, known or unknown, foreseen, unforeseen or unforeseeable, arising from, out of, or in any way related to the work performed in connection with the Activities, Such obligation of City shall apply particularly to, but without limitation, liabilities and judgments on account of injury to persons, loss of life, or damage to property, whether occurring on or off the Property . Such indemnification shall, without limitation, encompass any and all acts or omissions of City and/or City Workers, including, without limitation, the negligence or willful misconduct of City andlor City Workers, which acts or omissions shall be deemed and considered by Jewel to be the acts or omissions of City. 7. Removal and Disposal of Contaminated Soils, City shall store, treat, recycle, transport, dispose of and handle Contaminated Soils or other contaminated material at or removed from the Property by City or City Workers, in City's own name and in accordance with all applicable laws, rules, regulations and orders. City shall at all times be deemed the owner of any such Contaminated Soils or other contaminated material removed in connection with or as part of the Activities, and shall execute in its own name all manifests and other documents pertinent to the storage, transportation, handling and disposal of such contaminated soils or other contaminated materials, and shall promptly deliver a copy of any such manifests or other documents to Jewel. Neither City nor City Workers shall take any action or fail to act, so as to permit the Property to become a hazardous waste treatment, storage and disposal facility under any applicable laws, rules, regulations or orders. . 92993.6 7 . 8. Limitation on Use bv City of the Prooerty. Unless approved in advance and in writing by Jewel, City agrees that (a) no Contaminated Soils will be temporarily stored anywhere on the Property, except in the area designated on Figure E-1 as modified, and attached hereto as Exhibit "D"; (b) no other soils or equipment or materials will be stored on the Property, except in the designated Construction Area identified herein at paragraph 2(c)(iii) above. City further agrees that no equipment or materials of any kind shall remain on the Property after the termination of this Agreement without Jewel's written consent. 9. Information Pertaining to the Propertv. City will promptly furnish to Jewel quality assured written analytical results and other significant findings relating to the Activities. City shall also promptly, upon receipt thereof by City, provide to Jewel copies of all written materials, including, without limitation, reports, pertaining to the environmental condition of the Property and soil or other materials removed therefrom, 10. Communication with Governmental Entities. City shall give Jewel advance written notice and copies of any environmental documents that City desires or intends to deliver to any governmental agency or third party with regard to the Activities, and shall provide Jewel with the opportunity to promptly offer reasonable input into such environmental documents. City shall immediately notify Jewel in writing of any non-routine inquiry by any governmental agency or third party relating to the Activities. City shall further promptly provide Jewel with . advance written notice of any intended conununications and/or meetings with any governmental agencies which may materially change or impact the Activities, involve the issuance or imposition of fines, or pertain to demands, claims, penalties or other sanctions and/or affect the use or operation of the Property. Jewel may, if Jewel desires, attend in person or through its representatives any meeting with a governmental agency pertaining to the Property. 11. Assignability. This Agreement and the rights and obligations created hereunder shall not be assigned by City, in whole or in part, without Jewel's prior written consent. 12. Notices, All notices, requests, demands and other communications hereunder required in writing shall be provided either by (a) Federal Express (or other established express delivery service which maintains delivery records), (b) hand delivery, (c) certified or registered mail, postage prepaid, return receipt requested, or (d) by facsimile transmission, provided any such communication is concurrently given by one of the previous methods, to Jewel at the following addresses, or at such other addresses as the Parties may designate from time totime by written notice in the above manner: Jewel: Lawrence A. Metz American Stores Company 420 East South Temple Salt Lake City, Utah 84111 . With a copy to: Jones, Waldo, Holbrook & McDonough 170 South Main Street, Suite 1500 92993,6 8 . P.O. Box 45444 Salt Lake City, Utah 84145-0444 A TTN: Randall N. Skanchy, Esq, (801) 521-3200 (801) 328.,0537 (FAX) H. Norm Dusenberry Buttrey Food and Drug Company 601 6th Street, S.W. P.O, Box 5008 Great Falls, Montana 59404 (406) 454-7281 (406) 454-7251 (FAX) Dale Fasching Tamarack Property Management Company Suite 538, 2929 Third Avenue North Billings, Montana 59101 (406) 252-3907 (406) 252-9512 (FAX) . City: City of Bozeman cIa Barry G, 0' Connell Moore, O'Connell & Refling Suite 10 Life of Montana Building 601 Haggarty Lane P.O, Box 1288 Bozeman, Montana 59771-1288 (406) 587-5511 (406) 587-9079 (FAX) Notices shall be deemed effective upon receipt, or upon attempted delivery thereof if delivery is refused by the intended recipient or if delivery is impossible because the intended recipient has failed to provide a reasonable means of accomplishing delivery. 13. Force Majeure. If either Party shall be delayed or hindered in or prevented from the performance of any act required under this Agreement by reason of condemnation, fIre or other casualty, flood, earthquake, civil disorder, war, riot, strikes or other labor disturbances or disputes, governmental or judicial order, acts of God, andlor other acts or actions beyond the control of such Party, except financial or economic causes, the performance of such act shall be excused for the period of the delay provided written notice of the force majeure event and duration of the delay is provided to all Parties within 24 hours after the force majeure event is . known by the party claiming force majeure under this clause. Except as otherwise provided in 92993,6 9 . this Agreement, the provisions of this Section shall not operate to excuse City from prompt payment of any sums required by this Agreement. 14. Attorneys' Fees. In the event either Party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing Party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party, to be fixed by the court in the same action, The term "legal proceedings" shall include appeals from a lower court judgment as well as proceedings in the Federal Bankruptcy Court (the "Bankruptcy Court"), whether or not they are adversary proceedings or contested matters. The "prevailing Party" (a) as used in the context of proceedings in the Bankruptcy Court shall mean the prevailing Party in an adversary proceeding or contested matter, or any other actions taken by the non-bankrupt Party which are reasonably necessary to protect its rights under the terms of this Agreement, and (b) as used in the context of proceedings in any court other than the Bankruptcy Court shall mean the Party that prevails in obtaining a remedy or relief which most nearly reflects the remedy or relief which the Party sought. 15. Miscellaneous. The terms, covenants and conditions contained in this Agreement shall be binding upon and inure to the benefit of the heirs, successors, transferees and assigns of the Parties, Nothing contained in this Agreement shall be deemed to create the relationship of principal and agent, partnership, or joint venture between the Parties. As of the date hereof, . this Agreement constitutes the entire agreement between the Parties with respect to the specific subject matter hereof and may only be modified by a subsequent writing duly executed by both Parties, Time is expressly made of the essence of each and every provision of this Agreement. This Agreement shall be interpreted and construed only by the contents hereof, and there shall be no presumption or standard of construction in favor of or against either Party. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of Montana. The individuals executing this Agreement represent and warrant that they have the power and authority to do so and to bind the entities for whom they are executing this Agreement, and that no other act, signature or consent is necessary to bind their respective entities to the terms of this Agreement. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be held by a court in an action between the Parties or otherwise affecting this Agreement to be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby, and each term and provision of this' Agreement shall be valid and. shall be enforced to the extent permitted by law. Headings used in this Agreement are for convenience of reference only and in no way define, limit or describe the scope or intent of any provisions or terms hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same document. . 92993.6 10 . IN WITNESS WHEREOF the City and Jewel have signed this License for Access effective as of the date first above written, JE~E~rOOD STO.RES, INC., a e~ 'a-~ corporatIon ~~;121N1J1~ ~v-.. CITY OF BOZEMAN, a Montana municipal corporation BY:~Y~~ . Its: (l4T~ ~/-I)' ~ ,.-. . . 92993,6 11 9't66Z6 . . A.1IO 0.1 3NI'l1l3M3S dO lIt1dSNV1I.1 II V II .LIHIHX3 . N.....EEM.......r FOR MAINTENANCE AND Bl JF SALE This Agreement for Haintenance and Bill of Sale made and . entered into this ,12thday of AtI~l1St" 1970, by and between BUTTREY FOOD STORES DIVISION, JEWEL COMPANIES, INC., A New York Corporation qualified to do business in Montana (.Buttrey), Party of the First ' " Part and CITY OF BOZEMAN (.Bozeman), A Municipal Corporation, Party of the Second Part. WITNESSETH: THAT in consideration of the mutual covenants and for other good'and valuable consideration Buttrey hereby sells, grants and conveys to the City of Bozeman certain water mains, sewer pipes, . valves, reducers, tees, man-hole covers, fire hydrants and plugs \ more particularly described in ExhibLt A attached hereto and by this reference made a part hereof; Bozeman agrees to operate, maintain, repair, alter, inspect and ~eplace, as necessary~ that equipment and to provide sewer and .... . . water services to the real property set forth on ExhibLt B attached hereto and by this reference made a part hereof. BUTTREY FOOD STORES DIVISION, JEWEL COMPANIES, INC. 4 e~"drt[QIi (Corporate Seal) By ,-' (, ~ . .. ~ LYe) Presl.dent Ie ATTEST: fJ { By ~ '- <;?t -;n a,u . CITY -... . (Corporate Seal) By ATTEST: / .:.:' ~/ 0:. .f.. By , ",'..... ' /., .,.~, ," cie'~kof the Cltx::;:a~mmlS8ion . . EXHIBIT A ;'" Page 1 . I /-' ~ To that certaL Agreement date . h.~3~'\t(~.-ii1' this Il.. day ofe: 1970, by & beb 765 lincllr fC'L't 10" diaiil('t~r - C;'\:it Iron PipC' I i I", placl' BUTTREY FOOD S' . DIVISION, JEWE- l ~ ll," X 10" reducer COMPANIES, INC' . CITY OF BOZEMA~ 1 _ 10" Cate valv~s \.Itth valv~ box 1 - 10" X ]0" :< 6" 'fee5. 1 - 10" plug :i. - 10" X 10" X lO" Tee. 1!.82 lii\.:!..H feet 8" c;:.st iron pipe, in ploce , . - f'. X 8 X 8 lee L, - 8 X 8 X 6 Tees , ' ~ - 10 X S reducer I - ,3" gar.<' valve w!villl/~ bOXC5 I fire hyucai1ts \.I!Rux'i.lary v<llves and vlllvc boxes. . '+ - - e" 4500. bent! .;.. - .-- .. l?'.l liot.'or feet 8" vitrifh>J til~ ~allilllry s.....(d'{i\. r1ace I Manholes. in place ~ - " . - ""- . EXHIBIT A Page 2 ecOOOO44 ,- - . ---. . -- . . . . E aBEd 'V .1.18 I HX:3: . 1.5'- . ~'.:; ;,/ .;-- ..: ...~.. . "i ,.-~.+~l'":'~ ,. ~ -- - -"'" . ...~ - ...- -......~...- - ' ~ , : .....;IIIIIto...__ --...-.~... ...-..- . f>C' c".... - -; .:', +..:'. -'.~.'~.'-~Y r .;/1'11' .'\.1.'" ,,".J''''~J . ..--. -- , - , . - ":",,..~"- ':r,-t"/'..,. 0 ?..~t:~ ..ft.?" ./r~," ~~H ....,_!~. ~ . , ?.- "tr/ :"'''' ',w 'V. .I /Y'C""'c."'''' ~"" i . ~ . '/' :;".)' --l S\70000j~ -- ! . . , , , " I -- : ~.. , 0, -;:"-- " . . .::-~,/a /.1,. " , ~ i ;.. i"'l/J" . \ . i ~ - I ,~' I. I ~ i . ' . I ~ .; : ' t', ." I ~_.. ... ~ .:... . . .:. ! ~.-. .. . * . . I ,,~-' I " . \ -.~ ......... I \> , :--.. I 1"-:0..-. : , ' I f) .._[; : . I "- I , , I . ! . : , . I , . i ; i " .."- . . , . .~ ., I --' ," -, \ ~ , ' I' C=:". __,- '. . f .::~ ~. ,,\ I . I .~. I . ' : ,., ! ..' I C-'J -'.' . r'/ - . /' . . ,- ,/ ",," // . sr. ,.<::'- " ','J , ;: ,-,""';:;-. , .." 'II ,. r.~ \ rf". "," ," ., ~,' ....~:..~~~...., .~ ",,0' " . .. ," . :--"""..- I ~..!....~....';:..:... .,97.., ';.'- '/I""r ~ . ,~i:;I-.1 :!!.......~ . . ..YE"' .1'7/1 II ;/~I i. . ~~'IIIIIIIoIIII~.-:-.-~ , ' . --.. NI ';"}V ;fE.t't/n II 01 ....J' -- ~....... ...-----" ;' I/Y(I/ \j.;',J.'I-'i. 0 ----- . 1 *;,. ~_ .".1 ~ oJ rY7/;:~ '';;:-:J.///f.': (;) -- -- -.- ,\.~ l. . "" ,.f'_ " .:~ ' .~ .J.-.....-cJ.r t":'"....~~ ' 'Ji. ,. '. .' 9'E66U . . . Al.lIHdOlld HHl. dO NOIl.dlli;)SHG "fI" l.IfIIHXH . . . . . . ~G~L DESCRIPTION I I .1 tract o.t l.1Dd ly1D1 10 th, V~ or tbt JN~ or Station 1%, TOvtlJb1p l Sout.b. ll.l:lrt 5 t:ut, M.l' .M., Icc10ud vitb1n t.b, tollovinr z,t.. an4 bou..tldl, t..o.v1ta Etg1nn1%1&; at a poiilt o.n lbl Nortb linl of tb. S~ of lb, \11.2 or th, W1Ai or Stct10n 12. tov:lIb1p lSo-. RLDI' 5 La,t, .a14 point b.ing 30.0 t,lt. V.ll or lb. Hortb'.lt COrD.r or 1.1d S~~~HV' 1.1d potat .1'0 bting thl Vllt lin. of Nortb F1ttt.nth lTtDUt &1 platlld and or rtoord al CIITIlaed SubdlTl,1on, Gallatin Counly. Xo=t.ana, thlnat tro= la1d point. or b'11no1nl and 10 a Southerly direction alonl tbe V..t lin, or ..1d North F1tttlntb IT.nUt, a diltanCt or 951.95 r.et, =ore or 1'1., to a point or tntlr.tct1on witb tbl Nortbtrlr r1r;bt or va,. Unl of o.s. Bl'b.....y "9'1 Ulno. 1%1 a ,....ttrl1 dirtction alona; thl . ~ortber11 r1Cbt or ~1 lint of la1d o.s. H1&bvar "9' a d1It~c. of 700.0 t,.tl thtna, 1n a Nor~berl1 directloD. 700 t.,t ~e,t or and parall,l to tb, Vtlt lint of ~ortb T1!teentb lveoue, a dI,tanct or 667.60 rt.tl tblDCt 1n a Northealt.rl1 dIrtct1~ LCd at ~ a be.r!:, or N67'Sl' Ea,t, a d1.tLOee or 764.15 t.tt, EOr. or 11.1. to tbt point. or b. g1r.n1::r;. Sltut.tt 10 Gallatin County. MontLna, accord1n& to D..d recordtd 1n !ook '3~ or tlrd,. page 285, EXCEPTING THEftEFBOHI .1 pare.l'- or laod in tbt N\ltA, of S.etion 11.. '1'ovnlhip Z South. ~l!Ilt 5 tut. P .H.M. 1:1 th, C1t,. of Bo1tc.&.l'1. Gallatin Count,.. Montana. &rIc1 b.1.n& more pa.rtioularl1 ducr1btd &J 1"ollCYII 15.r;lnn1cr; at Corn.r Wo. 1 or u1d pareel. \/Mob 11 1d.nUcal .>I'Uh th. st Co.n:l.r or 1.1.C traat. ~ n.DC'. fro: Corn.r Ro.. '. South 8S'12'00' \Tut alonl th. South l1:1t of Id4 tract, Vh1eb 11 1dentical v1tb tb. North r1ibt ot Va)' ltnl or \..bt Ixutinl b1IbVQ'. . 41stLOCi or '90.00 teet to Corn.r 50. %, i ~bene,.'rro= Corntr 50. Z. Nortb 00'00'00. E&Jt & dIltanot or 165.00 rl.t to Co.n:ltr 10 3'. VhIeh 11 c.arktd v1tb a at."l ro4, ~blne.. tre= Corner No. 3. ~ortb 8B'12'00. Ea2t & d1ltaDC' or 190.00 t.lt to Cornlr 10 ". Vh1c.b 11 on tht \lut 11nl or l'ortb F1!tllnth AnDUt. &rI.eS U arkleS v1th a It..l ro4 i n.tlc.. tre= Corner Wo. " South 00'00'00' \lut alcq tht Vllt. l1:1t or Worth r1tt.4ltnth J.TttlUt. Vh1cb 11 idiotical v1th tht Eut lin. or 1.14 tract. . eUstanc. ot 165.00 r.,t t.o COrD.r No.1. aeeord1n, to SW"'T.,. r.cord.d 1:1 r1h 21, p&l1 50, .um I"lJlnta E.ICUIDiG nu:~mOMI J. p&r"O.l or hod locatecS 1%1 tb. ltortbvut. quarter or Slott= 12. Towlb1p two South. JUI't 111'1 Eut. Pr1nc1pal Meridian ot Montana. 1= th. Cn7 or Jouc.an. QaUat1Zl 1 Cwnt1. Mootan.a. a.nd 111n& tlItloll1 v1tb1n that. t.n.ot. ~nlld b,. dud I"'Iocrd.d en pl.," 2S5 aneS 286 or !ook or tl..41 13' t 1%1 thl ctt1a or th. Count,. Cl.rk &rid J.oOl"dar or .a1eS oounty and b-t1n& J:iQre part1cular17 cS..or1b~ &1 toUova, to.v1t.1 !t,1nn1n1 at a point = lb. Eut Un. or la14 traot, n1ch 11 a.rk.d yUh a It"l rod. and 11 id.ntical with t.b. Icrtb..lt oorn.r or that 0.119 aore paro.l ldtDt1ti.4 as Lot Z co u-.at :a.p I"toordtd OD 111m 21 PlII 50 of lb. ~Hd JtCordl or ,Idd count7. ~bltl-O. South 86'12'00. Vut alOtl& lb. Jiortb l1u or Idd Lot %, a d1lwOt or 190.00 tut to tht Southvut. corner or tb1.J 0.218 acr. pare,l, ltb1ch 11 auk.d v1t.h a -,,"1 rod, &%leS 1.1 14anUeal with the Hort.b....ut CCn:l.r or aa1d tot z. nIDCl. 'JlorUl 00'00'00" hit a dhtano. or 50.00 t..t to lb. RozothYut ~r of ~ D.Z1S aer. parcll. Vb1cb 11 :arkld with a .t..l rod. ~b.ce.'Jlorth 86'12'00. talt a d11tanol or 190.00 tl.t to th, R~tb.a.t oem.r ct th1l D.llS acra parcel, VbIch 11 :ark,d witb a ltetl ro4 = the tbt tast l.1n. of la1~ t.rao1 1b.DO. Soutb 00'00'00. V'lt alone thl laid EaJt ~ a d1ltanOl or 50.00 tt.t to tbe . po~t. ot bt,1nn1nl. accord1n& to c..rUf1cah ot lurnilo. ~5. "Subject to existing easements, agreements, leases, or other encumbrances of record" "93%7,4 A-I ... - -- 9'E66Z6 . . SDNIA\. V<IQ NOIL:Jil"U.LSNO;) ";),, .LIS:JHXtl . . CONSTRUCTION DRAWINGS Intentionally Omitted The construction drawings referred to herein as Exhibit D are as follows, and are incorporated herein by this reference, Sheet No, Drawing No, Date Title 1 of 6 92-258-E66 7-27-94 Title Sheet: Sanitary Sewer Line Replacement 2 of 6 92-258-E70 7 -28-94 Site Map 3 of 6 92-258~E59 8-8-94 Plan and Profile: STA 0+00 to STA 3 + 53 4 of 6 92-258-E58 8-6-94 Plan and Profile: STA 3 + 53 to STA 7 + 57 5 of 6 92-258-E57 7-29-94 Plan and Profile: STA 7 + 57 to STA 12 + 66 6 of 6 92-258-E78 8-10-94 Detail Sheet . . 99869,1 9'E66'Z6 . - . DNIM wa SSH:::>:::>V H.LIS/'lON.LNO:> :::>IddW.L "a" .LUIIHXH . . LICENSE FOR ACCESS This License for Access ("License") is made and entered into this ~ day of, November, 1995, by and between the City of Bozeman, Montana, a municipality organized under the Laws of the State of Montana ("City"), and Jewel Food Stores, Inc., a Delaware Corporation ("Jewel"). Jewel and City shall sometimes be referred to herein as the "parties" or, individually, as a "party". RECITALS : WHEREAS, City and Buttrey Food Stores Division of Jewel Companies ("Buttrey") entered into that certain Agreement for Purchase and Sale of a Sewer Line dated August 12, 1970 ("Purchase Agreement"), a true and correct copy of the Purchase Agreement is attached hereto as Exhibit "A" and incorporated herein by reference, wherein Buttrey agreed to sell and City agreed to purchase, operate and maintain that certain sewer line, which sewer line shall be designated herein as the "Shopping Center Sewer Line", servicing real property known as the Buttrey Shopping Center located at 1600 West Main Street, Bozeman, Montana, hereinafter referred to as the "Property", and more particularly described in Exhibit "B" attached hereto and incorporated herein by reference; and . WHEREAS, Jewel or its predecessors in interest were prior owners of the Buttrey Shopping Center since 1966, and the parties have undertaken certain environmental investigation and remedial action at the Property pursuant to certain Orders issued by the Montana Department of Environmental Health and Sciences ("MDHES") and voluntary actions; and WHEREAS, City desires to install a soil vapor extraction ("SVE") system along the Shopping Center Sewer Line and MDHES has approved the construction and operation of a SVE system for remediation of Contaminated Soils adjacent to the Shopping Center Sewer Line; WHEREAS, Jewel is willing to grant a temporary, limited right of access for the City to construct, operate, and remove an SVE system, as more fully described in the "Buttrey Shopping Center Soil Vapor Extraction Preliminary Design ,Report prepared by Nicklin Earth & Water, lnc.dated October 3, 1995, as modified and approved by MDHES on October 13, 1995 (hereinafter "SVE Design Report", incorporated herein by this reference), and to remediate any Contaminated Soils encountered during such activity; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Jewel and the City agree as follows: 1. Limited Grant of Access. Jewel hereby grants to City and its duly authorized . contractors, subcontractors and agents (collectively, the "City Workers", which shall expressly include Nicklin Earth and Water, Inc.), a limited license to enter upon the Property in order to \l299J.9 . , , . construct, install and operate a SVE System (collectively, the "Activities") as proposed in the SVE Design Report, subject to the terms and conditions of this Agreement. The grant of license to City and City Workers is and shall be deemed a limited grant for the specific purposes set forth herein to allow the City to construct, install and operate a SVE system to remediate Contaminated Soils adjacent to the Shopping Center Sewer Line in the scope and manner provided in the SVE Design Report. This Agreement is not, and shall not be deemed to be, a public dedication, and no person or entity shall be granted access to the Property under this Agreement except as expressly set forth herein. This Agreement shall not abridge, limit, modify or in any way constrict the rights or obligations of the City granted by that certain grant attached hereto as Exhibit A, Additionally, the City shall provide to Jewel adequate assurances that the Activities it proposes in connection with the SVE system will not affect the structural integrity of the shopping center improvements or any monitoring wells installed in or around the Shopping Center or otherwise damage or threaten to damage the improvements to the Property. The limited grant of access hereunder shall give City and the City Workers the ability to enter only upon the portion of the Property necessary to perform the Activities, and only to the extent reasonably required and for the time reasonably necessary. Such access is on an "as is" basis, and the City expressly assumes full and complete responsibility in connection with the . Activities for the safety and well-being of the public, shopping center tenants, the shopping center improvements, and City Workers while on the Property. This Agreement does not nullify or void any obligations the City may have under any prior Site Access or License for Access Agreements it has with Jewel, including, but not limited to, the obligations of the City under the prior agreements to return the Property to the appearance and condition of the Property as it existed prior to City Workers undertaking activities on the Property, including without limitation, the City's obligation to repair asphalt on the Property, and to coordinate activities under this Agreement to provide continued access for the Shopping Center tenants, vendors, and customers. 2. Conduct of the Activities. City agrees to perform, or cause to be performed, the Activities with the assistance of qualified environmental consultants, environmental remediation contractors and civil and structural engineers, as it may deem appropriate. Adequate forces shall be engaged to expeditiously complete the Activities with diligence and in a manner, to the extent reasonably possible, to avoid interference with and minimize disruption of the operations or businesses of persons or entities operating or conducting business at the Property, and to protect and preserve the structural integrity of all improvements thereon. City shall cause the City Workers to undertake all actions on the Property, including, without limitation, the Activities, in a manner reasonably calculated to provide for the safety of all persons who may come thereon. City shall cause the City Workers to accomplish all of the Activities undertaken by them in a . good and workmanlike manner and in accordance with all applicable governmental laws, rules, regulations and orders. City further agrees to obtain, or cause to be obtained, all permits, licenses, approvals and consents necessary or legally required in connection with the Activities. 91993,9 2 , , . The Activities shall be deemed completed within the earlier of TWO (2) YEARS or when City has remediated the Contaminated Soils encountered during the performance of the Activities to the clean-up levels as established by the MDHES or the United States Environmental Protection Agency (or any successor agency). The City shall complete the Activities pursuant to the following conditions: a. No Excavations Within Fifteen (15) Feet of the Foundation: No excavation shall occur where the bottom centerline of such excavation is closer than fifteen (15) feet from the foundation of the shopping center improvements unless the excavation is shored or other adequate protection is undertaken to protect the structural integrity of the shopping center improvements. In areas where the bottom centerline of the excavation is closer than fifteen (15) feet to the foundation of the shopping center improvements, the length of any open trench shall not exceed the depth of the excavation. b. Access: Access to and from the Property from 15th Avenue will not be restricted. c. Repaving: Any excavations on the Property shall be repaved in accordance with the "Technical Specifications, Sanitary Sewer Line Replacement, Buttrey Shopping Center" . dated August 1994 and the "Work Plan Line Replacement/Soil Remediation, Voluntary Action, Buttrey Shopping Center" dated September 1994, both prepared by Canonie Environmental Services Corp. (now Smith Environmental Services Corp.) for the City with reasonable diligence, but in any event within sixty (60) days after written request by Jewel. d. Reclamation. Unless otherwise agreed in advance and in writing by the Jewel, upon completion of the Activities, City will promptly return the Property to the appearance and condition of the Property as it existed prior to City Workers undertaking the Activities. Unless otherwise agreed in advance and in writing by the Jewel, any damage to surfaces or structures at the Property shall be promptly repaired in a diligent and professional manner and the Activities shall be completed in a manner as to meet all applicable federal, state' and local clean-up and construction standards with respect to the Property. Access to the Property under this License will be between the hours of 6:00 a;m. and 9:00 p.m., Monday through Friday, but not including holidays recognized by the United States or the state of Montana, and at such other times agreed upon by the parties hereto. The City agrees to provide at least five days' advance notice in writing to Jewel or any successor thereto of the dates and times that the City's Workers will begin the Activities on the Property. The license for access granted herein shall give the City's Workers the right to enter only upon those portions of the Property which are common areas located over the Shopping Center Sewer Line reasonably required to perform the Activities, and does not include the right to enter any portion . of the Property under lease to any tenant. The City shall further provide Jewel with not less than forty-eight (48) hours advance written notice of any proposed change to the Activities and 92993.9 3 ,", . shall not implement any such changes unless the City has obtained prior written approval from Jewel. Notwithstanding the foregoing modifications to the Plan, nothing hereunder shall relieve City and City Workers from exercising due care in the execution of the Activities or relieve City and City Workers from liability arising out of the Activities, including but not limited to, damage to the structural integrity of the shopping center improvements on the Property. Regardless of fault (except for the sole fault of Jewel), the City is solely responsible and liable to Jewel and third parties for any damage to the Property or the improvements thereon, including damage to the structural integrity of the improvements on the Property. 3. Notification with Respect to Activities. City shall notify Jewel not less than forty- eight (48) hours prior to any proposed Activities to be conducted by or at the direction of City or City Workers on the Property, including, without limitation, sampling conducted as part of the authorized Activities. At Jewel's request, City will allow Jewel to take a "split sample" (a portion of the materials collected by City Workers for analysis) of any sample taken by or at the direction of City or the City Workers. Furthermore, Jewel's environmental consultant, Camp, Dresser & McKee, Inc. ("CDM"), shall have full access to the site and be permitted to be take any and all soil or water samples it may require during the Activities. . In the event that any of the actions contemplated as part of the Activities proposed by City or the City Workers involve disruption of vehicular access or current use of the Property, then City shall provide a detailed written action plan that addresses the time, duration, area impacted and the conditions set forth below associated with the proposed action, and such action plan shall be submitted to Jewel not less than five (5) business days (or such lesser time as Jewel may approve in advance and in writing) prior to such action for Jewel's approval, modification or rejection, and such action shall not commence without prior written approval of the action plan by Jewel. 4. Right to Inspect. Jewel may, at Jewel's expense, inspect and review the conduct and progress of the Activities by City or City Workers from time to time, at Jewel's discretion; provided, in so doing Jewel shall not unreasonably interfere with the City Workers performance of the Activities. 5. Lkns.. City shall payor cause to be paid in full all persons who perform labor or provide services or materials in connection with the Activities. City agrees to keep the Property free and clear of a,Jlliens or encumbrances, whether in the nature of a mechanics', materialmen's or environmental liens or any other type of lien whatsoever, due to City's actions or City Workers' actions pursuant to this Agreement. If any lien is filed against the Property or if any claim is made against Jewel, or any affiliated entity thereof, for payment of labor, materials, equipment or services pertaining, directly or indirectly, to the Activities, then City . shall promptly take all actions, at City's expense, necessary to fully and completely discharge such lien or claim. 92993.9 4 .- . 6. Indemnification. City hereby indemnifies, holds harmless and agrees to defend Jewel, its affiliated companies, its successors, agents and assigns, the tenants of the Property and their agents, directors, officers and employees from and against any and all losses, expenses, liabilities, judgments, claims, actions, suits, fines, penalties, costs, demands, causes of action and damages (including, without limitation, reasonable attorneys' fees, court costs, reasonable investigative and discovery costs, consultants' fees and other costs) asserted by third parties and lor City Workers, or otherwise, and whether judicial, administrative, or otherwise, at law or in equity, known or unknown, foreseen, unforeseen or unforeseeable, arising from, out of, or in any way related to the work performed in connection with the Activities. Such obligation of City shall apply particularly to, but without limitation, liabilities and judgments on account of injury to persons, loss of life, or damage to property, whether occurring on or off the Property . Such indemnification shall, without limitation, encompass any and all acts or omissions of City andlor City Workers, including, without limitation, the negligence or willful misconduct of City andlor City Workers, which acts or omissions shall bc deemcd and considered by Jewel to be the acts or omissions of City. 7. Removal and Disposal of Contaminated Materials. City shall store, treat, recycle, transport, dispose of and handle Contaminated Soils or other contaminated material, including, without limitation, all SVE condensate, spent granular activated carbon filters, contaminated filter media, or any other regulated substance used with the SVE at or removed from the Property by . City or City Workers, in City's own name and in accordance with all applicable laws, rules, regulations and orders. City shall at all times be deemed the owner of any such Contaminated Soils or other contaminated material removed in connection with or as part of the Activities, and shall execute in its own name all manifests and other documents pertinent to the storage, transportation, handling and disposal of such contaminated soils or other contaminated materials, and shall promptly deliver a copy of any such manifests or other documents to Jewel. Neither City nor City Workers shall take any action or fail to act, so as to permit the Property to become a hazardous waste treatment, storage and disposal facility under any applicable laws, rules, regulations or orders. 8. Limitation on Use by City of the Property. Unless approved in advance and in writing by Jewel, City agrees that no Contaminated Soils will be temporarily stored anywhere on the Property. City further agrees that no equipment or materials of any kind shall remain on the Property after the termination of this Agreement without Jewel's written consent. 9. Information Pertaining to the Property. City will promptly furnish to Jewel quality assured written analytical results and other significant fmdings relating to the Activities. City shall also promptly, upon receipt thereof by City, provide to Jewel copies of all written materials, including, without limitation, reports, pertaining to the environmental condition of the Property and soil or other materials removed therefrom. 10. Communication with Governmental Entities. City shall give Jewel advance written . notice and copies of any environmental documents that City desires or intends to deliver to any governmental agency or third party with regard to the Activities, and shall provide Jewel with 92993,9 5 . with the opportunity to promptly offer reasonable input into such environmental documents, City shall immediately notify Jewel in writing of any non-routine inquiry by any governmental agency or third party relating to the Activities. City shall further promptly provide Jewel with advance written notice of any intended communications andlor meetings with any governmental agencies which may materially change or impact the Activities, involve the issuance or imposition of fines, or pertain to demands, claims, penalties or other sanctions andlor affect the use or operation of the Property. Jewel may, if Jewel desires, attend in person or through its representatives any meeting with a governmental agency pertaining to the Property. 11. Assignability. This Agreement and the rights and obligations created hereunder shall not be assigned by City, in whole or in part, without Jewel's prior written consent. 12. Notices. All notices, requests, demands and other communications hereunder required in writing shall be provided either by (a) Federal Express (or other established express delivery service which maintains delivery records), (b) hand delivery, (c) certified or registered mail, postage prepaid, return receipt requested, or (d) by facsimile transmission, provided any such conununication is concurrently given by one of the previous methods, to Jewel at the following addresses, or at such other addresses as the Parties may designate from time to time by written notice in the above mamer: . Jewel: Lawrence A. Metz American Stores Company 420 East South Temple Salt Lake City, Utah 84111 With a copy to: Jones, Waldo, Holbrook & McDonough 170 South Main Street, Suite 1500 P.O. Box 45444 Salt Lake City, Utah 84145-0444 A TIN: Randall N. Skanchy, Esq. (801) 521-3200 (80l) 328-0537 (FAX) Paul Maxwell Buttrey Food and Drug Company 601 6th Street, S.W. P.O. Box 5008 Great Falls, Montana 59404 (406) 454-7281 (406) 454-7251 (FAX) . 92993.9 6 . , , , . Dale Fasching Tamarack Property Management Company Suite 538, 2929 Third Avenue North Billings, Montana 59101 (406) 252-3907 (406) 252-9512 (FAX) City: City of Bozeman c/o Barry G. O'CoIUlell Moore, O'Connell & Refling Suite 10 Life of Montana Building 601 Haggarty Lane P.O. Box 1288 Bozeman, Montana 59771-1288 (406) 587-5511 (406) 587-9079 (FAX) Notices shall be deemed effective upon receipt, or upon attempted delivery thereof if delivery is refused by the intended recipient or if delivery is impossible because the intended recipient has failed to provide a reasonable means of accomplishing delivery. . 13. Force Majeure. If either Party shall be delayed or hindered in or prevented from the performance of any act required under this Agreement by reason of condemnation, fue or other casualty, flood, earthquake, civil disorder, war, riot, strikes or other labor disturbances or disputes, governmental or judicial order, acts of God, and/or other acts or actions beyond the control of such Party, except financial or economic causes, the performance of such act shall be excused for the period of the delay provided written notice of the force majeure event and duration of the delay is provided to all Parties within 24 hours after the force majeure event is known by the party claiming force majeure under this clause. Except as otherwise provided in this Agreement, the provisions of this Section shall not operate to excuse City from prompt payment of any sums required by this Agreement. 14. Attorneys' Fees. In the event either Party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing Party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party, to be fixed by the court in the same action. The term "legal proceedings" shall include appeals from a lower court judgment as well as proceedings in the Federal Bankruptcy Court (the "Bankruptcy Court"), whether or not they are adversary proceedings or contested matters. The "prevailing Party" (a) as used in the context of proceedings in the Bankruptcy Court shall mean the prevailing Party in an adversary proceeding or contested matter, or any other actions taken by the non-bankrupt Party which are reasonably necessary to protect its rights under the terms of this Agreement, and . (b) as used in the context of proceedings in any court other than the Bankruptcy Court shall mean the party that prevails in obtaining a remedy or relief which most nearly reflects the remedy or relief which the Party sought. 91993,9 7 . 15. Miscellaneous. The terms, covenants and conditions contained in this Agreement shall be binding upon and inure to the benefit of the heirs, successors, transferees and assigns of the Parties. Nothing contained in this Agreement shall be deemed to create the relationship of principal and agent, partnership, or joint venture between the Parties. As of the date hereof, this Agreement constitutes the entire agreement between the Parties with respect to the specific subject matter hereof and may only be modified by a subsequent writing duly executed by both Parties. Time is expressly made of the essence of each and every provision of this Agreement. This Agreement shall be interpreted and construed only by the contents hereof, and there shall be no presumption, or standard of construction in favor of or against either Party. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of Montana. The individuals executing this Agreement represent and warrant that they have the power and authority to do so and to bind the entities for whom they are executing this Agreement, and that no other act, signature or consent is necessary to bind their respective entities to the terms of this Agreement. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be held by a court in an action between the Parties or otherwise affecting this Agreement to be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. Headings used in this Agreement are for convenience of reference . only and in no way define, limit or describe the scope or intent of any provisions or terms hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same document. IN WITNESS WHEREOF the City and Jewel have signed this License for Access effective as of the date first above written, JEWEL FOOD STORES, INC., a Delaware corporation ~~(~- CITY OF BOZEMAN, a Montana municipal corporation BY~~'U D ~)~: Its: . 92993.9 8 6"t6&6 . . . All:) Ol 3.NI'l 'U3.M3.S dO 'UHtlSNWl II VII llaIHXH . . . ."""'\v..__.............. - -.. .-"'-....--..-............. ._'~ - - .- T~is Agreement for Maintenance and b~ll of Sale made and . entered into this ,12th day of AlI::;~ISt" 1970, by and between BUT':'REY FOOD STORES DIVISION, JEWEL COMPANIES, INC., A New York Corporation qualified;:.o do business in Montana (.Buttrey) , Party of the. F:...:-s t ' , . ! " Part and CITY OF BOZEMAN (.Bozeman), A Municipal corporation, party of the Secood part. WITNESSETH: THAT in consider.l.tion of the rautual covenants and for other good'and valuable consideration Buttrey hereby sells, grants and conveys to the City of Bozeraan certain water mains, sewer pipes, valves, reducers, tees, man-hole covers, fire ~ydrants and plugs \ more particularly described in Exhibit A attached hereto and by this reference made a part hereof: Bozeman agrees to operate, maintain, repair, alter, inspect and t:e.place, as necessary, that equipment ~~~ to provide sewer anc . water services to the real property set forth on Exhibit B attacCu hereto and by this refarence made a part hereof. BUTTREY FOOD STORES DIVISION, JEWEL COMP>>l!ES, we. ~ { (Corporate Seal) ';'- ,el-~ 't~~:;; By., ~e) Pres~dent , , ATTEST: By ~ <-- 4-: -n-r er-u . CITY . (corporate Seal) By " A'r'l' ES T : ',) I/~ ,/ ' By :_ ;,,'.v . ;', ..,.".<; , ':1 Cl.~k of thl C1t~oma1s.1on . . EXHIBIT A " . page 1 . . " - .,". ~: ......l'-' ~'I th,;,s I' day -- -" ...- .-" ~ ___-- 19",'0, by & i. . ,,;./ ~ r'c't 1"" d' C T '" . " BU':"TREY FOOe , .. J ~.. r.....;! . '.. v ...i ;':1(' t ~ :' - " ,. t r \,)., I 1 i' C', 1\" P I. .1 C ,,' D I VIS ION, JE' . . ,,, .. . .'" r' . COMPANIES IN('. _ ..- ^ '" e."".r -.' CITY OF BbzE~ '~".,:! _ i.C,.1 CQ.te valv(>s ....tch v.a1v~ bo':< . \, "'. '. ..." '\,. · r" .(, 6" ""e .. _ ~ \1, .... I J . ' 1 ~::;. ...._... ,_ t-: t" '.,". 0"' ... of . -1^" ....lu" - ("",~I,' "......h -"..'" .. 'J I' ... I " ..'''-'''' -..... I ~ . 10" X to" X 10" Tee. i ~~:)2 l~;i~.;\r feel b" c;;.st irnn pipc, in ri.~ce ~ w ~ X 5 X 3 \C~ ~. 6 X 8 X 6 Tee::; ~ _ ~O X 6 reducer ') _ ii" gate' villve ..../v:llv~ boxc::; ~ _ j'ire hyueants ..../auxil.ary vn1ves ilnd vJlve boxes. .' . - ~. c." 4 S. be no .. .. . '... ~1"\ lin.a< feet a" viLrified ,it. ..uiLory ..~e< .", place !.. _ Kal.,holes J in place . '. .. - , ~.--- .. .~ '," EXHIBIT A .', ", Page 2 ec00004'4 " OW . .. . . ..",.. ~..#. . ..... E aO'l?d '":/ J...ISIHX3 ..oj.. .-l:. ,- w"-" -.". .. /.:i; .. ' . J~; ;..1 .... ..........,.... ...- .. --- . : : ..~_...-- ~... .---- -~-- .. . ". .tI. . ..- ~. .' ...i_~.."" - - - -- _.: ~ :-:-'~. ~ ~..-..... ~,.t'.'. . .c;. 0:... . .;.~.' ~I/:, d . . ''';'' .~i.. I ,.''''',,~..'''''~J - .. .. .l-' ~ . --....-- - .... . ;- · -e:" .:... . v ~,. "V'l =',..... , . stJOOOO~cO ~ !"ro....", IJ r" : . It .",.~.-.J .' -- . . I . . . r - : " t;.. ~- . . --- .. . .'P"'':.'. /:1' i :._7".rl~' . , ~ I I .:';: I I ~ ,~ i . . . . I ~ " \ . ' ," .' ~ ~--,. ,,' ! ,,:.. t -' . ~ -' . I . I -- I ........,:' .~ ... -~~ I l~ .... I (7_-. I - ' ~ -.:/ I ~ I 1 I I I . " . .# - '" . i ; , -, . I ; i \ .. - . .. ,~ I' C." . . , i .... -..... ~ ,~ I ~-;:- - , ! - I I . : . t <.? -. : , /'/ , t"" ./'<' . . -, .S":. '.~- ,.../ ,. : 1IIIf.."',...... ,.. ,\ ' .' .' \ "'''.J.''. ,.. II~"" .. " ..- . , " . . ,," .. . 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'WVz or t.h, JOlV.. or Stct1en 1Z, Tovl:uh1p Z ~c: ltCl" 5 Ea,t, 1&14 ~1.Dt b,in, 30.0 rut Vut. or tbl )forthult COr.:llr of 111d S"2'a'''2h-. la14 potnt ,1'0 b.tn, thl V,lt lint or ~ortb Titt'lnth lTIOU' ., ~11tt.4 LCd ot rto~ II Cl.y,laoO Subd1y131oo, Gallatin County, Moot&o&, thlna' fro: ,.14 point o! b.l1~~ aod in & Soutbtrlr 41rtctloo aloDr th, Vllt lina of ~14 North Fift.tntb lTIOU', & d11taocI of 951.95 rl.t, =or. or 1"" to a point or tntlrl.ct1on vith tbt Northlrly rl&:bt or va,. lint of 003. Bl,hvl.r 11911 Ulno. 1: I. VuterlJ' dir.ction &10.0' Ua ' >;"ortbtrl:r rl1bt 0' va.1 lin, or u1c1 U.s. HllhVQ' f191 a dlHa.ncl o! 700.0 rutl lblDOt in a Nor~h.rlr d1rtctloo, 700 r.,t .c~t o! Lnd ~rllll1 to lbl V'lt lint or )lorth T1!tt.oth !v.OUt, . d13tlOCt o!' 667.60 r.ltl thlDCI in a ~orthl.,tlrlr d1rlct10.0 LCd . '. a btar1.:, of H671S1' t.,t, a dl.tLDcl or 76~.15 rllt, mor. or 111" to tbt point of lI\ b'11r.r.1:&:. S1tutat.l 1n Gallatin Count,.. Moot.a.n.&, aeeordinl to Duct Naorda4 1.n !ook '3Q 0(' Cards, Pll' 2as, txCEPTING rHtRtr!OH. .1 p.&rctl of llod 1n thl W~ ot SacUon 12, rO\o"Clh1~ % 3auth, ~~II 5 tut, , .M.M. i: the C1t7 c! lSOU::.u1, Cialllt1n Count7. Xo.ot.a.n.&, UlI:1 bt!.nlmor. p&rtioula.rlr c1ucr1btd. I tolloY'll !t,1nn~, at Corear 10. 1 or 1&111 pared. W1ch 11 1chnt1aal ,)(Uh Ul. st Clo.n1lr o! u: tract. · 'Thace,. froc Cot"'t1lr )lo,' 1, S~th !! '12' 00' Vut alOUl Ua Sauth lin, o! u14 t.r1.ct, vn1ch 11 14Int1c:1l v1th tb. liorUi r1iht or n: 1.1.c. ot U. lx1.Jt1D.l b1,hV11. a 411ta.n or 190.00 rl.t to Coroar No. %1 1hlOCI,' rroc Corolr Ho. %, Nc.rt..b 00'00'00. tut & c11Jtanla or 165.00 rut. to C~Ir W I ~. wleh 11 ::.arkllS vith a it.lIl rodl I nlcc,. fr~ Corolr No. 31 Jlort..b 8!"2'00. Eut . d1Jt.Ulel or 190.00 rut to ~ar J l .., w1eh 11 otl lb. Vut. 1.1n1 or liortb T1tteanth .inDUI. LQd u markld. v1.th a It..l rt ! nIOC., trCQ Corell' 1l0. ., SO"JUi 00'00'00' Vut al~ \.hI Vut. 11%11 or llorth r1tt.eI'C.t J.TlOUI, \l'blC:h 1.1 Id.IDt1c:al Y1t.h the t.ut ltcl or 1114 t.nct., a c111t.&ncl o! 165.00 fl' t.o Conur No.1. ateorda, t..o Su.rT&J' rlc:o:rdld 1%1 111:& Z1, p.ql 50, .om roux:a Ilca IDi C; nttunex I J. p.lrotl or lied loc&ted: 1n the llorthvut q\1.U"kr at Sut.1on 1%. Towlb1~ Tvo 3outh, JUlII l1TI tut, Pr1J:lc:1pal Ktr1c11an c! Mont.a.n&. 1n the CU., or Jouun.Oallit1n ! C-cr.1n t7 . Moe t &1:1.1, a.nd l1'1J:l.& ..moll: v1 \.h.1J:l \.hi. t t.n. ct oon Tl11 d br dud Z"'I c oM I d on P& I 285 Ul4 2!6 or Jook o! tlldl 13-, in the ctt1ct or the CoWlt.1 Clan u4 ltcOl"4tJ" at aa14 CQ\U1t1 &:Iii b.1nI JlQrI part1C\11.t.rl1 dnC1"ibN U t~lloYJ, t,o.vUI !t,1~1.a, d. a point aD \.bl tad. Une o! 1&14 tract, w1ch 11 Drkt4 Y1th a atul re and U 1dlcUcU v1th \.be JerUlalt. cornar, c! t.h&t 0.11i aare pared 1lSlot1t1td u L Z cc tut Alp N~rdld ~ FUJi 21 p&&, 50 ct the tlH4 J~orc1a of .n14 ccr.mt1. nlc.cl SouU U'1%IOO. v..t a.1o:lC thl JrorUa 11na o! 1&14 Lot Z, & c11JwC:I or 190.~ rut to thl Sou\.hvut ~Ir or t.h1.l 0.%18 aCN p&.r'Cltl, -.m1.ch 11 auka4 v1t..h a at.Hl rod, GIS 11 1dlJ1t.1c.al Y1th UI Rort.hvut COn:llr or u.14 t.ot I. . ntQC' lo.rth 00'00' 00. Edt & d1Jta.no. of 50.00 tut to U. lorlh'vut oo.t"D-Ir ct th1.J C.21! &erl plro.l, ~1ch 11 xarktc1 v1th a .t..l 104. ' lhaQcl'~orth 8aI12'00. tal\. & d1lta.nol ot '90.00 t.at to the lort.blllt. corelr ct th~ 0.218 &crl paretl. Yb1ch 1.1 arkl4 v1t.h a .hll ro4 c= the t.hl t.ut Un. of uid t.n nlnOI South 00'00'00. V.lt alouE thl la14 t&lt 11=A a 411~a. or 50.00 r..t to ~ . pc1.nt or b.,w1.nI. &cc0.r41n1 to Ctrt1!1"h c! 1W"'Tli 10. ~5. "Subject to existing easements, agreements, leases, or other encumbrances of record. "')%7, . A-I . ) . , ".--.;; - , I . ~ . SETTLEMENT AGREEMENT "' - This Settlement Agreement is executed by and between the City of Bozeman and those parties individually identified in Exhibit A (S~ttling Parties) which, by this reference, is made an integral part of this Agreement :, REcl'r ALS A. In 1993, the Settling Parties demanded compensation from the City of Bozeman for expenses Incurred as a result of and damages arising from the . contamination of groundwater in that area known as the Bozeman Solvent Site. ~, B. In June 1995, the Settling Parties, through their counsel, served the City of Bozeman with a Notice of Intent to File Citizens' Suit under 42 U.S.C. ~ 6972(a)(1 )(b) . (RCRA) and a Notice of Intent to File Suit under 42 U.S.C. 9659 (CERCLA). C. The City of Bozeman and the Settling Parties have entered Into negotiations in an effort to avoid any and all litigation premised upon violations of RCRA, CERCLAI CECRA (Mont. Code Ann. 9 75.1 0-701 ",~t seq.), and all common-law theories of " negligence, nuisance, and trespass. The City of Bozeman denies any liability for the groundwater contamination at the Buttrey Shopping Center and the Bozeman Solvent Site but, nevertheless, desires to fully and completely settle all claims, demands, actions, and causes of action of any kind or nature which the Settling Parties may now or in the, future have relating to or arising from the groundwater contamination at the BL!ttrey Shopping Center and the Bozeman Solvent Site. ., . Settlement AQroomenl . pago 1 : .' . . ,......... ......... , \ . . . AGREEMENT . NOW THEREFORE, In consideration for the payment, covenants, and agreements of the parties made herein, the adequacy of which consideration is hereby acknowledged, the City of Bozeman and the Settling P?rtt~s agree as follows: .. 1. Payment. In consideration for the releases, promises, covenants, 'and other agreements referenced herein, the City of Bozeman shall pay to the Settling Parties the aggregate . , sum of Sixty Thousand Dollars ($60,000). ~, - This full sum is allocated as follows: (a) Fifty Thousand Dollars ($50,000) in settlement of any and all claims based upon CERCLA, ACRA, CECRA and all . common-law bases of recovery excepting those of nuisance and trespass; and, (b) Ten Thousand Dollars ($10,000) in settlement of all claims based upon the common-law bases of nuisance and trespass. " 2. Release. ~. '. The Settling Parties, individually. for and in consideration of the payment above noted, do hereby completely, finally, and irrevocably release and forever discharge the City of Bozeman and its agents, attorneys, employees, environmental consultants and engineers, successors, heirs, assigns, and indemnitors, none of whom admit any'liability to the Settling Parties and all of whom deny any liability for any actions, causes of action, suits, controversies, claims, damages, and demands of any and every name and nature whatsoever, particularly specifying: . . Senlement AQrvement - P:\S6 2 " .;. . ,--- ,- . . . All claims and demands for personal injury, a, death, propertY damages, medical monitoring, . loss of use, and reductIon of property values arising from the peE contamination in that area commonly known as the Bozeman Solvent Site; and, b. All claims and demands: of any type arising from the City of Bozeman's investigation of the peE contamination at the Bozeman Solvent Site, the Settling Parties' claims, the handling of the Settling Parties' claims, and the timeliness and fairness of negotiations leading to this Settlement Agreement; and any claims arising . , . under the Unfair Claims Settlement Practices "". Act of the State of Montana, or otherwise, for . breach of any covenant of good faith and fair dealing. The Settling Parties, individually, acknowledge full satisfaction of all such claims, . demands, causes of action, and actions against the City of Bozeman. The Settling Parties and each of them declare and represent that entering into this Settlement Agreement, they rely wholly on their own judgment, belief, and knowledge as to the . ~; nature of their damages. They specifically represent that they release all claims for damages of any type, including those that may be unknown at the present time. The Settling Parties and each of them hereby waive any right to assert in the future any claim not now known or suspected even though if such claims were known, such knowledge would materlally affect the terms of the Settlement Agreement or their willingness to enter into this Settlement Agreement. The Settling Parties and each of them hereby reserve the right to prosecute any . and all claims, demands, oauses of action, and actions against any other person or entity Settlement AgMment . p~ 3 " . . .- ..--. . . . who or V(hich may be or may hav~ been responsible for the contamination found _at the Buttrey Shopping Center and/or in the Bozeman Solvent Site. By executi ng this Settlement Agreement, the Settling Parties and each of them acknowledge that they have not been fully compensated and do not Intend to release any othsr person or entity who or which may be responsible for contamination at the Buttrey Shopping Center or in the Bozeman Solvent Site. 3. Covenant Not to Execute. . The Settling Parties and each of them in entering into this Settlement Agreiement and in reserving herein their respective right to seek damages from other persons or entities who or which may have caused contamination at the Buttrey Shopping Center . and Bozeman Solvent Site, understand that the City of Bozeman may be named as a Third-Party Defendant or as a party responsible in such anticipated litigation. The Settling Parties agree and covenant that should the City of Bozeman be brought into the litigation anticipated by the Settling Parties agains( others or in subsequent litigation by others against the City of Bozeman on the bases of contribution. indemnity, or any other legal or equitable doctrine. that the Settling Parties will not execute on that portion of any judgment for which the City of Bozeman has been found liable and for the payment of which the City of Bozeman is legally or equitably liable to any other party to such litigation. . 4. Claims AQainst Non-parties. Nothing In this Agreement is intended to be nor shall it be construed as a release. . indemnity, or covenant not to sue for any claim or cause of action, past or future, in law SanlGment AalM1iSnl . Page 4 " ~. - --- 1 . or in equity, which the Settling P8:~ies or anyone of them may have against any~other person) firm, corporation. or entity. who or which is not a signatory to this Agreement. ,5. No Admission of Liability. lfis understood and agreed that this Agreement ,is intended to buy peace; is in final compromise of disputed claims; and. that payment of the consideration set forth herein or any other provision of this Agreement is not to be construed as an admission of liability on the part of the City of Bozeman for any claims made by the Settling Parties or claims . that might be made in the future by anyone of the Settling Parties in rela~on to contamination at the Bozeman Solvent Site and Buttrey Shopping Center. The City of Bozeman specifically denies any liability and Is participating in this Agreement solely to . resolve disputed claims without litigation. The payment under this Agreement is not in whole or in part a fine, penalty, or monetary sanction of any kind. 6. Warranty of Capacity to Execute AQreement. ..:. .. The Settling Parties and each of them represent and warrant that no other person or entity has or has had any interest in the claims, demands. obligations, or causes of action referred to in this Settlement Agreement. Moreover, the Settling Parties and each of them have not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands. obligations, or causes of action referred to in this Settlement Agreement. Arm's LenQth Neqotiations. . 7. This Agreement is a product of arm's length negotiations. All parties to this . Agreement have read this Agreement completely, have had the advice and assistance '. Set\\8menl AgnJernenl . Page 6 .' " . --... ",-. " \ . of legal 90unsel with expertise in.,environmental matters, and have participated 1n the preparation of this Agreement. In the event that ambiguity exists or is deemed to exist in any provision of this Agreement, said ambiguity is not to be construed by reference to any doctrine calling for such ambiguity to be:construed against a drafter of this document. 8. Entire AQreement and Successors in Interest. This Settlement Agreement contains the entire Agreement between the Settling Parties and each of th~m and the City of Bozeman and the respective attorneys with . . regard to the matters set forth herein and shall be binding upon and inure to the ~enefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each. Moreover, this Agreement sets forth the entire Agreement between the Settling . Parties and the City of Bozeman and fully supersedes and terminates any and all prior agreements, understandings, and contracts, implied or expressed, written or oral, relating to the resolution of the Settling Parties' clai.rns against the City of Bozeman. ..,,:. 9. Representation of Comprehension of Document. In entering into this Settlement Agreement. the parties represent that they entered into this Agreement upon the advice of legal counsel and that the terms of the Settlement Agreement have been completely read by them and that those terms are fully understood and voluntarily accepted by the Settling Parties. Moreover, this' Agreement shall' ,not be altered, amended. or modified in any respect except by writing duly executed by a representative of the City of Bozeman and by the Settling Parties. . &t\lement ~,,"ment . p~ e .. .' ~ . . ,,- , : ,- ~ I . 10. Construction by Law. .. . This Settlement Agreement is entered into with the State of Montana and shall be construed and interpreted in accordance wit~ the laws of said jurisdiction. " " . r1. Additional Documents. . " The City of Bozeman and the Settling Parties hereto agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to gIve full force and effect to the terms and Intent of . this Settlement Agreement. . r - 12. Effectiveness. This Settlement Agreement shall become effective immediately upon execution by . the Settling Parties and a representative of the City of Bozeman. DATED this 5th day 0 f May . 1992.. CITY OF BOZEMAN " ..,:. " BY: (O~ L fi;C;:;4 DON STUECK, Mayor KEN LeCLAIR (2Mtd,~:"-. ROBERT METCALF JOE MANLEY CAROLYN MANLEY . . . AL MATHESON VIRGINIA MATHESON SeCtklmenl Agl'QClmcnt . Page 7 :;. . ,- .. . . , ...--. - . ~. . ~~~'-;tL~ - JAMES PATTEE ,E$1HER NELSON. ' " .' . . .. THOMAS WESSEL MARILYN WESSEL CHARLES PARKS MRS. CHARLES PARKS . APPROVED BY: - ~ BILL SHOlT - CHRISTOPHER HARRIS, Attorney -. " ~. .-.- ~ . . " . ... Set\.lerMm ~reement .. ~ 8 .' " ~