HomeMy WebLinkAboutAgreement for Environmental Services between City of Bozeman and CVS Pharmacy and ATC AssociatesTI-!E LAW FIRM
MOORE, O'CONNELL ~ REFLING
A PROF FSSIONAI. CORPORATION
PERRY J. MCH]RE
MARK U. RI?FLING
CINDY E. YOUNKIN
ALLAN i1. BAR1S
MI(7HAEL]. L. C:USICK
JENNIFER L. FARVE
JENIFER S. REECE
KRISTIN N. FIANSEN
TODD A. STUBBS
BARRY G. O'CONNELL (1947.2004)
May 1, 2008
Faul Luwe, Esq.
City of Bazeman
P.O. Box 1230
Bozeman, MT 59771-1230
RE: Agreement far Environmental Services
Bazeman Solvent Site
Our file no: 20028-007
Dear Paul:
601 I IAGGERTY LANE
SUITE 10, LIFE OF MONTANA BUILDING
B07EMAN M'1' 59715
Reply to
P.U. BOX 1288
BOZEMAN, MONTANA 59771-1288
TF.LEPHONF,: (406) 587-5511
FAX: (406)587-9079
E-MAIL: jenireece@gwest.net
Enclosed for your file is an original., dated first page of the
Agreement for Environmental Services. It has been dated based on my
receipt of the executed Agreements by all of the parties.
Should you have any questions or need anything further, please contact
me.
Sincerely,
'~ 1~T
JENIFER S. REECE
pm
Enc.
MEL9751.WPD
AGREEMENT FOR ENVIRONMENTAL SERVICES
THIS AGREEMENT FOR ENVIRONMENTAL SERVICES ("Agreement") dated this
~:~Is-- day of , 2008, by and between the CITY OF BOZEMAN, a
Montana municipal corporation located in Gallatin County, State of Montana ("City"), and CVS
PHARMACY, INC. ("CVS"), and ATC ASSOCIATES INC. ("Contractor"). CVS, the City and
Contractor are referred to herein as the "Parties" or, individually, as a "Party".
Far good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties ogee as follows:
1. Performance of Services. Contractor shall perform certain environmental services
("Services") as described in written work authorizations to be delivered to Contractor from time to
time (individually, a "Work Authorization"), expeditiously and consistent with the level of care and
skill exercised by other environmental remediation contractors in the United States who are
recognized by their peers as experienced, knowledgeable and skilled in performing services of the
type and scope of the Services. Contractor shall engage adequate forces for completion of the
Services within the time frames set forth in each Work Authorization. Contractor shall carry on the
Services and adhere to the progess schedule during all disputes or disageements with the City
and/or CVS. No Services shall be delayed or postponed pending resolution of any disputes or
disageements, except upon termination of this Ageement as permitted by Article 11 or as the
Parties may otherwise agree in writing. Contractor understands that, unless this Ageement expressly
provides to the contrary, actions must be taken by both the City and CVS to be effective and to have
any binding effect, and that actions to be taken by Contractor must be taken toward both the City and
CVS to be effective and to have any binding effect. A Work Authorization or Change Order (as
defined in Article 6) approved by either the City or CVS, but not by both, is invalid and has no
binding effect as to the parties. A request of Contractor to halt, suspend, delay or interrupt the
Services must be from both the City and CVS before Contractor should halt, suspend, delay or
interrupt such Services.
2. Work Authorization. Each Work Authorization shall be executed by the Forties u.sing
the Work Authorization format provided in Attachment "A"hereto. Contractor shall accept a Work
Authorization by executing the same and delivering it with appropriate supporting documentation
to CVS, with a duplicate copy to the City. Contractor shall cause the Services to be commenced in
accordance with the date provided in the Work Authorization and to be diligently prosecuted to
completion on or before the date provided in the Work Authorization. This Ageement and any
Work Authorization and/or Change Order delivered pursuant to the terms of this Ageement are
sometimes collectively referred to as the "Agreement".
3. Pa ent for Services. The City and CVS shall pay Contractor for the Services
pursuant to the schedule and method of payment set forth in the Work Authorization. Contractor
shall keep accurate records showing all charges and expenses incurred by Contractor and all labor
and materials provided for the Services and shall, upon the request of the City or CVS, certify that
such records are true and correct. Upon reasonable written notice to Contractor, the City and/or CVS
Agreement for Environmental Services -Page 1 H:\2oo28\0o7\ME[~921$.WPD
may audit the relevant books and records of Contractor at any time for up to two years after
completion of the Services. In the event an audit is conducted, the records of Contractor pertaining
to the Services shall be maintained in one central location in the State of Montana. Contractor's
accounting records will be retained in Billings, Montana. No examination of records by the City or
CVS shall unreasonably delay or defer the obligation of the City and CVS to pay undisputed invoices
as long as such records are in order, and accurately reflect Contractor's actual costs. Contractor shall
attach copies of supporting bills, receipts and time documentation to all invoices. Such supporting
bills, receipts and time documentation shall provide detailed and understandable descriptions and
shall be in a form acceptable to the City and CVS. The City and CVS shall have no obligation to
pay invoices for which no supporting documentation is provided.
Following receipt of a proper and undisputed billing from Contractor in accordance with this
Agreement, the City and CVS shall cause Contractor to be paid for the respective Services within
60 days of the invoice date, unless it is evident that the invoice was not mailed in a timely fashion,
in which case a mutually satisfactory payment schedule will be determined, but not later than 45 days
from the date of receipt. If requested by the City or CVS, copies of lien releases or other reasonable
evidence that the Services billed for have been completed lien-free shall be provided by Contractor.
Contractor shall not bill the City and CVS more frequently than monthly. Duplicate billings to the
City and to CVS shall be sent simultaneously by the same means of transmission or delivery.
Contractor understands that the City and CVS will each pay 50% of the costs of the Services, and
that the payment obligation is individual and not joint (e.g., if the City pays 50% of the costs of the
Services for any particular billing, the City's obligation with respect to such billing; shall be deemed
fully satisfied). In the event of nonpayment ofan undisputed invoice by the City or CVS, Contractor
shall have the right to suspend services, provided, however, the Contractor provides written notice
to the City and CVS of Contractor's intent to suspend services in 30 days. Such notice must be
accompanied by sufficiently detailed information as to cause, so that actions maybe taken by the
Parties to timely resolve the matter.
4. Conduct of Services. Contractor shall conduct the Services in such a manner as to
protect the City and CVS, and any third parties, their employees, representatives and invitees, from
accidents and injury, and in such a manner as to avoid damage to the properties where the Services
are performed. Services may be required on residential, commercial and/or municipal property
located throughout the area known as the Bozeman Solvent Site (BSS) as set forth in Attachment
"B"hereto (which is collectively and hereinafter referred to as the "Property"). Contractor shall be
solely responsible far initiating, maintaining and supervising all safety precautions and programs
under the Contractor's control in connection with the Services. Contractor shall be responsible for
adhering to all federal, state and/or local laws, rules, regulations, ordinances, and for safeguards
necessary and appropriate for the safety and protection of all persons in connection with the Services.
Contractor shall examine the Property to its satisfaction prior to the commencement of any Services
to become familiar with the visible and apparent condition of the Property to the extent necessary
and appropriate to properly perform the Services. In this regard, Contractor shall (i) inspect the
Property in order to determine the nature, extent and location of any dangerous or unsafe conditions;
and (ii) specifically instruct its employees regarding appropriate safety practices and procedures in
connection with any dangerous or unsafe conditions that maybe encountered. The City and CVS,
Agreement for Environmental Services -Page 2 H:\20028\007\MPL9218.WPD
jointly and severally, make no representations or warranties with respect to the condition of any
Property, or far the accuracy or completeness of any information provided by the City or CVS with
respect thereto, or Contractor's activities thereon, including, without limitation, the activities of
Contractor's employees, subcontractors or any other persons performing any portion ofthe Services
under an agreement with Contractor. Any harm or injury to Contractor, Contractor's employees,
agents, subcontractors or any other persons performing any portion of the Services under an
agreement with Contractor that is or may be attributable to the condition of the Property and/or the
condition of improvements thereon shall be the sole responsibility of, and at the risk of, Contractor,
except to the extent caused by the willful misconduct or omission of the City or CVS.
5. Limitation on Scope of Services. Contractor acknowledges that it is retained to
perform only the Services and that, unless the Work Authorization provides otherwise or the Parties
agree otherwise in writing, Contractor is not retained to perform any other work or services.
6. Change to Scope. of Services. The City and CVS reserve the right to request changes
in the Scope of Services provided in any Work Authorization, including, without limitation,
alterations, reductions or additions to the Services. Such changes shall be made by an amendment
to a Work Authorization in the same manner provided far in Article 2 (utilizing either a new Work
Authorization nr a change order [a "Change Order"] as set forth in Attachment "C" hereto). If
Contractor rejects any request for change, this Agreement and the affected Work Authorization may
be terminated pursuant to Article II.
7. Riuht to Suspend the Services for Convenience: Costs for Delays. The City and CVS
may, without cause, order Contractor to suspend, delay or intemxpt the Services in whole or in part
for a period of time not to exceed 60 days as the City and CVS may determine. No adjustments shall
be made for increases in the cost of performance of the Services or this Agreement unless such
suspension, delay or interruption exceeds 60 days and is not caused in whole or in part by any fault
of Contractor or any subcontractor thereof.
8. Contractor's Re orts and Anal ses. If requested by the City and CVS, Contractor
shall make periodic oral reports of the progress of work in performing the Services. If Contractor
is directed to prepare a written report summarizing Contractor's performance of the Services, unless
directed otherwise, it shall do so in draft form and shall label such report or analysis as "DRAFT"
and "CONFIDENTIAL--SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE". Such reports
shall be provided to Attorneys designated by the City and CVS. Unless otherwise authorized by the
City and CVS's Attorneys, Contractor shall prepare four copies of such draft report, two of such
copies being for the City and two for CVS. If and when requested to do so by the City and CVS's
Attorneys, Contractor shall prepare a final report the number of copies and labeling for which will
be determined by the City and CVS Attorneys (unless otherwise stipulated in a written Work
Authorization or Change Order). Upon completion of the final report(s), Contractor shall destroy
all draft documents. All written reports, draft or final, shall be made for the benefit of the City and
CVS, their Attorneys and their designees, if any. Contractor shall, and shall cause its employees,
agents and subcontractors, if any, to maintain its reports in strict confidence and shall not disclose
to others, either before or after the termination of this Agreement, any data, documents, reports or
Agreement for Environmental Services -Page 3 H:\20028\007\MEL9218.WPp
other information produced by Contractor or at Contractor's direction during its performance
hereunder, except those reports which may be submitted to the Montana Department of
Environmental Quality (MDEQ) or as expressly authorized in writing by the City and CVS.
Contractor's obligation of confidentiality shall not apply to disclosures compelled by law, an order
of a court or a subpoena, except that if any such event occurs, Contractor shall immediately notify
the City and CVS's Attorneys of the circumstances requiring such disclosure and refrain from such
disclosure for the maximum period of time allowed by law so that a protective order or other actions
maybe taken to protect the confidentiality of the information, if desired.
9. Insurance. Throughout the term of this Agreement (without regard to time periods
set out in a Work Authorization), Contractor shall obtain and maintain at least the following
rninimurn insurance coverages: (a) Worker's Compensation -statutory limit; (b) Employers'
Liability - $1,000,000; (c) Comprehensive Auto Liability with a combined single limit (covering
bodily injury liability, death and property damage) in any one occurrence of not less than $1,000,000;
(d) Comprehensive General Liability as follows: (i) "Combined Single Limit" (covering bodily
injury liability, death and property damage) in any one occurrence of not less than $1,000,000; (ii)
"XCU"Hazard Coverage; (ii) "Broad Form" Property Damage Endorsements; (iv) "Personal Injury"
Endorsements; (v) "Blanket Contractual Liability" Endorsements; (vi) Products/Completed
Operations Coverage, if product or material installation or improvement is part of the Services,
which shall be kept in effect for two years after completion of such installation or improvement
Services; (e) "Professional Liability" in any one occurrence of not less than $5,000,000 and not less
than $10,000,000 in the annual aggregate; (f) "Environmental Impairment" or "Pollution Liability"
type insurance in any one occurrence of not less than $2,000,000; and (g) the minimum coverage for
any other type of insurance not otherwise identified above, to the extent required by any laws, rules,
regulations or ordinances applicable to Contractor or to the performance of the Services.
Such policies, except the policies for Professional Liability, Pollution Liability, Workers'
Compensation and Employers' Liability, to the extent permitted by law, shall name the City and
CVS, or the respective written designees thereof, and unless otherwise waived in writing by the City
and CVS, the fee owner of the Property (if different from the City or CVS) as additional insureds.
If during the course of time while work is performed by Contractor, insurance claims are paid by
Contractor's Professional Liability carrier which reduce Contractor's annual aggregate by
$1,000,000, then Contractor shall immediately notify the City and CVS in writing.
Contractor shall deliver certificates of such insurance coverage. Upon request, and at the
City and CVS's cost, Contractor shall provide duplicate originals of the policies. All policies shall
contain a provision that the insurance company will give the City and CVS 30 days advance written
notice of any cancellation or lapse, or the effective date of any reduction in the amounts or scope of
coverage. In the event any of the insurance policies required in this Article are underwritten on a
"claims made" basis, Contractor will continue such policies in full force and effect for not less than
two years following the date of completion of the Services. All coverage except Workers'
Compensation shall provide that the insurance is primary in respect to all entities insured by the
policies with respect to work performed by the Contractor or any of its subcontractors. The City and
CVS, jointly or severally, shall be entitled to make claims again such policies as their respective
Agreement for Environmental Services -Page 4 H:~.on2a~no~~nae~9ars.w~n
interests may appear; provided, however, that in the event the payment of a claim is to be made to
the City or CVS under any of such policies, payment shall be made by check or other negotiable
instrument payable jointly to the City and CVS.
10. Indemnification. Contractor agrees to release, indemnify, defend and hold harmless
the City and CV S, j ointly and severally, and any subsidiary, affiliate or parent thereof, their directors,
officers, shareholders, employees, representatives and agents, from and against any and all
judgments, claims, expenses, causes ofaction, damages and liability(includingreasonable attorneys'
fees, consultants' fees, and costs) arising from the willful act, error, omission or negligence of
Contractor, its employees, agents, subcontractors or subcontractor's agents and employees.
However, in no event shall Contractor be liable to the extent such costs arise from the willful act,
error, omission, or negligence of CVS and/or the City.
11. Termination. The City and CVS may terminate this Agreement, Work Authorization,
or Change Order for cause upon written notice to Contractor. Termination of this Agreement or
Contractor's employment hereunder by the City and CVS for cause could include, without imitation,
refusal or failure of Contractor (i) to supply enough properly skilled workers or proper materials to
perform the Services, (ii) to make payment to subcontractors for materials or labor in accordance
with the agreements between Contractor and any subcontractors, (iii) to comply with all laws, rules,
regulations, ordinances or orders of all public authorities having jurisdiction over the Services, (iv)
to otherwise perform under this Agreement, (v) to comply with the time periods referenced in an
applicable Work Authorization, or (vi) to have claims which are paid by the Contractor's
Professional Liability insurance carrier which reduce the annual aggregate by $1,000,000. Upon any
one or more of such events, the City and CVS may, without prejudice or any other right or remedy,
at law or in equity, (a) terminate the employment of Contractor, (b) take possession of the Property,
and/or (c) finish the Services by any method deemed expedient. In such case, Contractor shall not
be entitled to receive any payment until the Services are completed and any payment due Contractor
shall be subject to the limitations set forth in this Agreement.
The City and CVS may terminate a Work Authorization or this Agreement at any time
without cause, for convenience, and for any reason or no reason, upon written notice to Contractor;
provided, in the event of such termination Contractor shall be reimbursed for its actual costs far
reasonable time, material and expenses incurred in performing the Services, but not including
consequential damages or lost opportunity costs. Contractor shall attach copies of supporting bills,
receipts and time documentation to all invoices payable on account of such termination. Such
supporting bills, receipts and time documentation shall provide detailed and understandable
descriptions and shall be in a form acceptable to both the City and CVS. The City and CVS shall
have no obligation to pay invoices far which na such supporting documentation is provided.
Contractor may terminate this Agreement upon seven days written notice if the City and CVS refuse
or fail to pay properly documented and undisputed contract amounts within 90 days of billing
therefor and if the City and CVS are not otherwise relieved or excused from payment of such amount
under the terms of this Agreement, unless the City and CVS pay such undisputed amounts within
the seven-day notice period.
Agreement for Environmental Services -Page 5 H:\20028\007VV1EL9218.WPD
The provisions of Articles 8, 9, 10, 11, 12, 18, 19, 20, 25, 27, 29, 31, 33 and 35 of this
Agreement shall survive any termination or expiration of this Agreement, including, without limiting
the generality of the foregoing, the provisions of this Agreement pertaining to confidentiality and
indemnification. Upon the earlier of a request by the City and CVS or the termination of a Work
Authorization or this Agreement and contingent upon any and all undisputed payments having been
received, Contractor shall deliver, without cost, to CVS's attorneys any and all documents and/or
materials and all copies and reproductions thereof acquired or prepared by Contractor, its agents,
employees or subcontractors exclusively in connection with the Services. A comprehensive list of
such documents and/or materials shall simultaneously be provided to the City. In the event the City
requests duplicate copies of any or all of such documents and/or materials, such request shall be
promptly accommodated by CVS and, if requested by the City, by Contractor.
12. Restrictions Against Transfer. The obligations of Contractor set forth in this
Agreement are personal obligations, and the City and CVS, in entering into this Agreement, are
relying upon Contractor's expertise and knowledge in performing its obligations. For the foregoing
reasons, Contractor shall not assign this Agreement, or otherwise transfer its rights or obligations
hereunder, without the prior written approval of the City and CVS, which maybe withheld in their
sole discretion. The Contractor may, without the consent of the City and CVS, enter into
subcontracts for the performance of various services, to the extent that the same are necessary to
properly perform the Services and to the extent that Contractor does not have such capabilities. In
the event of any permitted assignment, subcontract or other transfer or delegation of obligations
under this Agreement, Contractor shall remain jointly, severally and primarily liable with the
assignee, subcontractor or transferee to perform all the obligations under this Agreement.
13. Independent Contractor. Contractor is and shall perform the Services as an
independent contractor, and shall not be deemed an agent, employee or legal representative of the
City or CVS, jointly or severally. Contractor has no authority to assume or create any commitment
or obligation on behalf of or to bind the City or CVS, jointly or severally, or the City or CVS's
Attorneys, jointly or severally. While the City and CVS reserve the right to monitor and enforce this
Agreement, the actual conduct of the Services shall be the sole responsibility of Contractor.
Contractor shall fully comply with all laws governing labor and labor relations, and the City and
CVS, jointly and severally, shall have no responsibility to Contractor's employees or any other
persons or entities regarding such compliance and shall have no duty to investigate whether, or to
otherwise ensure that, Contractor is in compliance with any labor or Tabor relations laws. The
provisions of this Agreement are not intended to create, nor shall they be in any way interpreted to
create, a joint venture, a partnership, or any other similar relationship between the Parties.
14. Conflict of Interest. Contractor has made reasonable inquiries and to the best of its
knowledge is not a party to any other existing or previous agreement, which would prevent
Contractor from entering into this Agreement or would adversely affect Contractor's ability to
perform the Services. Contractor shall not enter into any contracts with any other person having an
actual or potential interest in the Bozeman Solvent Site without the City and CVS's prior written
approval, or otherwise perform services for any person, firm or corporation other than the City or
CVS if such services could lead to a conflict with Contractor's obligations under this Agreement.
Agreement for Environmental Services -Page 6 H:\20028\007\MEL9218.WPD
15. Expertise of Contractor. Contractor represents that its employees, agents and
permitted subcontractors which will perform the Services have performed services for other clients
which are substantially similar to the Services and that Contractor has the capability and expertise
to professionally and competently provide and perform the Services. Contractor shall not permit any
employee, agent or subcontractor to perform the Services who does not have the expertise to do so
and shall make certain that all employees, agents and subcontractors of Contractor (i) will have all
required licenses and certificates required to be in Contractor's name and necessary to perform the
Services, and (ii) will have been trained, prior to the commencement of the Services, to perform their
respective responsibilities in accordance with currently applicable and published federal, state and
local laws, rules, regulations and ordinances, and in accordance with nationally recognized and
accepted industry standards. The persons identified by Contractor to perform the Services shall not
be substituted without the prior written consent of the City and CVS.
16. Notices. Any notice or demand given or served by either Party to this Agreement to
the other shall not be deemed to have been duly given or served unless in writing and forwarded by
certified or registered mail, postage prepaid, or another commercially recognized means ofdelivery,
addressed as follows:
Contractor
ATC ASSOCIATES INC.
917 15' Avenue North
Billings, MT 59101
Attn: Michael Ellerd
Telephone: (406) 794-5711
Cam:
City of Bozeman
411 E. Main Street
Bozeman, MT 5971 S
Attn: Debbie Arkell
Telephone; (406) 582-2135
Fax: (406) 582-2302
CVS:
CVS Pharmacy, Inc.
One CVS Drive
Woonsocket, RI 02$95
Attn: Kristine L. Donabedian, Esq.
Telephone: (401) 770-213 8
Fax: (401) 216-3266
with a copy to: Moore, O'Connell & Refling, P.C.
P.O. Box 1288
Bozeman, MT 59771-1288
Attn: Jenifer S. Reece, Esq.
Telephone: (406) S87-SS11
Fax: (406) 587-9079
with a copy to: Mintz, Levin, Cohn, Ferris, Glovsky
and Fopeo, F.C.
One Financial Center
Boston, MA 02111
Attn: Susan P. Phillips, Esq.
Telephone: (617) 348-1713
Fax: (617) 542-2241
Agreement for Environmental Services -Page 7 H:~20028\007\MEL9218.WPD
The person and the place to which notices are to be mailed maybe changed by either Party
by written notice to the other Party. In the event a Work Authorization provides that notice be given
to any other individuals or entities, notice with respect to the Services covered by such Work
Authorization shall also be given to such individuals and entities.
17. Access. The City and CVS shall arrange for property access by Contractor in order
to perform the Services. Contractor recognizes that the City and/or CVS may not be able to arrange
for access and that Contractor may be requested to assist or facilitate arranging site access. Where
questions about site access arise, they shall be addressed in the Wark Authorization(s) pertaining to
the services. Unless otherwise prohibited by law, the City and CVS, and their designees, shall have
access to the Property at all times and shall be entitled to review Contractor's performance of the
Services while thereon.
18. Third_Party Notification. The City and CVS shall be responsible for providing all
legally required notices to governmental authorities and Contractor shall not provide any such
notices or communications without the prior written consent ofthe City and CVS unless Contractor
is legally required to provide such notices or communications; provided, Contractor shall not provide
any such notices or communications without first informing the City and CVS and providing the City
and CVS the opportunity to obtain a protective order if the City and CVS deem it appropriate;
provided further, the foregoing shall not apply to routine notices required to perform the Services,
unless such notices relate to the reporting of previously unreported potential or actual contamination
problems at the Property or of possible or actual violations of law. Contractor shall immediately
notify the City and CVS in writing of any inquiry by any governmental authority, whether such
inquiry is formal or informal and orally or in writing, directed to Contractor relating to the Services
or the Property. Unless legally required to respond to any such inquiry, Contractor shall not respond
thereto and shall advise such governmental authority to contact the City and CVS for any requested
or required information.
19. Attorne s' Fees. In the event any Party brings or 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 Forty, to be fixed by the court in the
same action.
20. Rights in Results of Services. Any and all documents or materials which describe
or relate primarily to the Services or the results thereof shall, upon payment therefor, be the exclusive
property of the City and CVS and shall promptly be delivered to CVS upon request. A
comprehensive list of such documentsand/or materials shall simultaneously be provided to the City.
In the event the City requests duplicate copies of any or all of such documents and/or materials, such
request shall be promptly accommodated by CVS. No articles, papers, treatises or presentations
related to ar in any way based upon ar associated with the Services shall be presented or submitted
for publication without the prior written consent ofthe City and CVS. Nothing in this Agreement
shall require Contractor to deliver to the City ar CVS software programs ar other tools or materials
used by Contractor in connection with the Services which are not owned or leased by the City or
CVS. Contractor shall be entitled to retain one (1) copy of all final documents for its file.
Agreement for Environmental Services -Page 8 H:\20g28\007\MEL9218.WPb
21. Contractor's Representations. Contractor represents and guarantees that (i) the work
performed by Contractor will not be defective, (ii) Contractor will be properly certified and licensed
by the state in which the Property is located to engage in the Services as required by each Work
Authorization prior to the commencement of such Services, and (iii) the employees, agents and
subcontractors of Contractor who will perform the Services will have been trained, prior to the
commencement of the Services, to perform their respective responsibilities in accordance with all
applicable federal, state and local laws, rules, regulations and ordinances, and in accordance with
nationally recognized and accepted industry standards.
22. Compliance with Laws, Regulations and Ordinances. Contractor shall comply fully
with applicable and published federal, state and local laws, rules, regulations, ordinances, permits
and licenses applicable to the Property and the Services. Contractor shall, in its own name, obtain
and maintain in effect any and all licenses, permits and certifications required to be in Contractor's
name. If the City or CVS is required by law to notify a governmental authority, file an application,
or obtain any necessary licenses, permits, certifications or approvals, then Contractor shall
immediately notify the City or CVS in writing of such requirement and shall promptly prepare all
materials necessary to satisfy such requirement(s). Contractor shall require that all personnel
handling any hazardous materials shall have completed the required training courses under federal
Occupational Safety and Health Administration regulations and any similar state or local regulations.
Any testing or other Services conducted by Contractor shall be in accordance with the standards set
forth in Article 1 to avoid damage to equipment, property or materials that may be located on, above,
under or adjacent to the Property. Contractor shall obtain the written consent of the City and CVS
as to the location and timing of any Services involving excavation, penetration of soils, installation
of groundwater monitoring wells, disturbance of improvements or any other Services conducted
pursuant to this Agreement. Such consent shall not relieve Contractor of its obligations under this
Article. Any soil, sediment, surface or groundwater, or other samples taken as part of the Services
pursuant to this Agreement shall be handled with appropriate care and in accordance with all
applicable requirements. Anything herein to the contrary notwithstanding, the City and CVS shall
have no obligation or responsibility to monitor Contractor's compliance with any laws, rules,
regulations, ordinances, permits or licenses.
23. Removal or Remediation Oper~;tions: Records of Work Activities. Contractor shall
erect all required, necessary and appropriate barriers, post all required warning notices on the
Froperty during removal or remediation operations, exclude from the regulated area unauthorized
persons (the same being persons other than Contractor's authorized employees or other persons
approved by the City and CVS, unless such employees or other persons are also excluded from the
regulated area under applicable law), and take such other actions as shall be required or appropriate
to protect the public from exposure to wastes or hazardous materials during removal, remediation
or disposal operations required by or in connection with the Services. Upon completion of the
removal or remediation of any wastes or hazardous materials, Contractor will properly clean-up,
remove and dispose of all wastes and hazardous materials from the Froperty, and will repair any
damage to the Property caused by the performance of the Services. Contractor will ensure that its
employees and any other authorized persons entering the work site wear all required and/or
appropriate personal protective equipment. If appropriate with respect to the Services, Contractor
Agreement for environmental Services -Page 9 H:\20028\007\MEL9218.WPD
will maintain a daily log of activities performed. In the event that hazardous wastes or hazardous
materials (hereinafter referred to as "Hazardous Substances") require disposal, Contractor shall
advise both the City and CVS in advance of the contemplated disposal plans and take the following
actions: (a) with respect to all samples, sample residues, byproducts from the sampling process,
extracts, well purging, core borings or other derivative, removal or remediated Hazardous Substances
relating to the Services, Contractor shall dispose of such in accordance with applicable laws; and (b)
in the event wastes cannot be introduced back into the environment under existing laws without
additional treatment, they shall be packaged in accordance with applicable law by the Contractor and
the Contractor shall provide City and CVS with options for appropriate treatment, transportation and
disposal of Hazardous Substances. Contractor shall not make any selection of a transporter,
treatment or disposal facility. Contractor shall verify in advance that the disposal facilities
recommended are properly licensed to receive such Hazardous Substances. Contractor will further
preserve and provide the City and CVS with complete and accurate records of the removal,
remediation and disposal of any wastes in connection with the Services, such documents to include
but not necessarily be limited to permits, approvals, test results, inspection and, training certificates,
manifests, and disposal receipts maintained, and/or photographs. Anything herein to the contrary
notwithstanding, the City and CVS shall be responsible for signing manifests for the transportation
of Hazardous Substances to the extent that such materials require removal from the Property as part
of the Services.
24. Independent Review. The City and/or CV5 reserve the right, at their expense, to
retain independent consultants to inspect, review, test and monitor Contractor's activities and
progress under this Agreement in order to verify compliance with the terms hereof, and with
applicable laws, rules, regulations and ordinances. Contractor agrees to cooperate with such
independent consultants to facilitate such inspection, review, testing, monitoring and verification.
25. Ri _ t to Reject,Services. The City and CVS, jointly or severally, shall have authority
to reject Services that do not conform to the requirements of this Agreement. Contractor shall
immediately correct such defective Services at Contractor's sale cost and expense. Contractor shall
not be relieved from the obligation to perform the Services in accordance with this Agreement by
reason of the City or CVS's failure to reject Services or by any inspections, tests or approvals of
Services made by the City or CVS. The City and CVS shall have no obligation to pay for Services
rightfully rejected under this Agreement.
26. Ri t to Stop Services. If Contractor fails to correct defective Services or fails to
carry out the Services in accordance with this Agreement, the City and CVS, by written order, may
require Contractor to stop the Services, or any portion thereof, until the cause for such order has been
eliminated; provided, the right of the City and CVS to stop the Services shall not give rise to any
duty on the part of the City ar CVS to exercise such right for the benefit of Contractor or any other
person or entity.
27. Ri t to Ca Out the Services. if Contractor defaults, neglects or fails to carry out
the Services identified in any Work Authorization, and fails within five days after receipt of written
notice from the City and CVS to commence and continue correction of such default, neglect ar
Agreement For Environmental Services -Page 10 H:\20028\007\MEL9218.WPD
failure with diligence and promptness (or immediately, in the case of a default, neglect or failure
constituting a violation of law or presenting a health or safety risk), the City and CVS may, without
prejudice to any other remedy available to the City and CVS, at law ar in equity, cure such
deficiencies. In such case, the City and CVS may deduct from the payments then or thereafter due
Contractor with respect to such Work Authorization the cost of correcting such deficiencies,
including compensation to the City and CVS for additional services made necessaryby such default,
neglect or failure.
28. Performance and Pa ent Bonds. With respect to Services performed under each
Work Authorization, Contractor shall, upon request, furnish a performance bond in a form and from
a surety acceptable to both the City and CVS in an amount not less than the anticipated payment to
Contractor, with the City and CVS named as obligees and Contractor named as principal, provided,
however, that if the Contractor refuses to comply with this provision, this Agreement may not be
terminated on the sole basis of Contractor's refusal.
29. Contractor's Res onsibilit for Acts and Omissions of Others. Contractor shall be
responsible for the acts and omissions of its employees, subcontractors, other persons performing
any portion of the Services under an agreement with Contractor or subcontractors, and anyone
directly or indirectly employed by any of them.
30. Certificate of Com letion. With respect to each Work Authorization, when all of the
Services thereunder are fully completed, Contractor will provide documentation demonstrating that
such Services have been completed in accordance with the terms of this Agreement, the requirements
of law and the directives or requests of any governmental authority having jurisdiction aver such
Services.
31. Pa ent to Contractor. Contractor shall promptly and timely pay each subcontractor
the amount to which such subcontractor is entitled. The City or CVS may withhold payment from
Contractor to the extent reasonably necessary to protect the City or CVS from loss because of (i)
defective Services not remedied, (ii) third party claims threatened or filed, or information supplied
to the City ar CVS indicating that any such claims may be filed, or (iii) damage to the City or CVS,
or the owner of the Property, including, but not limited to, damages for delay in the completion of
the Services. Contractor shall not file any lien or encumbrance against the Property as a result of the
exercise by the City or CVS of any remedy hereunder. The City or CVS may require, prior to
making payment to Contractor under any particular Work Authorization, any one or more of the
following: (a) an affidavit of Contractor that all payrolls, bills for materials and equipment, and other
indebtedness connected with the Services for which the City or CVS might in any way be
responsible, have been paid or otherwise satisfied, and (b) other data establishing payment or
satisfaction of all other obligations, such as receipts, releases and waivers of liens, to the extent and
in such form as may be requested by the City or CVS. If any subcontractor refixses to finish a release
or waiver required by the City or CVS, Contractor shall indemnify the City and CVS against such
claim provided the City and CVS were not negligent in causing such subcontractor's refusal. If any
lien against the Property or claim for payment of labor, materials, equipment or services against the
City or CVS remains unsatisfied after all payments are made to Contractor, Contractor shall pay the
Agreement for Environmental Services -Page 11 H:\20028\007\ME~9218.WPD
City or CVS all monies that the City or CVS, respectively, pays in discharging such lien or claim,
including all costs and attorneys' fees related thereto, and shall otherwise indemnify the City or CV S,
as appropriate, for all costs, liabilities and losses incurred or suffered by the City or CVS,
respectively, or any affiliates thereof in connection therewith.
32. Force Ma~uxe. Contractor shall comply with the time periods referenced in each
Work Authorization; provided, each such period shall be extended for a period or periods of time
equal to any period or periods of delay preventing the performance of Contractor's obligations,
which delays are caused by f re or other casualty, acts of God, unusually inclement weather, refusal
or failure of governmental authorities to grant necessary approvals and permits for Services
(Contractor agreeing to use reasonable diligence to procure the same), war, riot, or insurrections, or
similar cause (except financial) beyond the control of Contractor, but not including strikes, work
stoppages or other related problems, if substitute laborers acceptable to the City and CVS are
reasonably available ("Force Majeure Delay"); provided, if any Force Majeure Delay exceeds 30
consecutive calendar days in duration, then the parties may terminate the applicable Work
Authorization and Contractor's employment with respect thereto. In the event of any Force Maj eure
Delay, Contractor shall seek and use, to the extent available, economically reasonable and
comparable substitutes or alternatives, upon prior approval in writing by the City and CVS. In the
event Contractor suffers a Force Majeure Delay, Contractor must provide written notice of the
occurrence, otherwise Contractor shall be deemed to have waived its right to an extension.
33. Failure to Timel Commence or Com fete Services. Contractor acknowledges and
agrees that the City and CVS may suffer financial loss if the Services are not completed within the
time limits referenced in each Work Authorization. Contractor and Contractor's surety, if any, shall
be liable for and shall pay to the City and CVS the sum set forth in each Work Authorization, if any,
as stipulated, fixed, agreed and liquidated damages for each calendar day of delay beyond such time
limits, subject to Force Majeure Delay, until the Services are completed.
34. Re and for Existin Business and Other Activities. Contractor shall conduct the
Services in a manner reasonably designed to prevent interference with and minimize disruption of
business operations, residential use, and/or other activities on the Property.
35. Patent Fees and Royalties. Contractor shall pay all license fees and royalties and
assume all costs incident to the use in the performance of the Services or the incorporation in the
Services of any invention, design, process, product or device which is the subject of patent rights or
copyrights held by others. Contractor shall indemnify and hold harmless the City or CVS, jointly
and severally, and anyone directly or indirectly employed by the City or CVS, from and against all
liability arising out of any infringement of patent rights or copyrights incident to the use in the
performance of the Services or resulting from the incolporation in the Services of any invention,
design, process, product or device not specified in a Work Authorization, and shall defend all such
claims in connection with any alleged infringement of such rights.
Agreement for Environmental Services -Page 12 H:\20U28\0o7\MEI,9218.WPD
36. Taxes. Contractor shall pay all sales, consumer, use and other similar taxes required
to be paid by Contractor in accordance with all applicable laws, rules, regulations and ordinances
in the course of performing the Services.
37. Use of Premises. Contractor shall confine construction equipment, the storage of
materials and equipment and the operations of workers to the Property and other land and areas
permitted by applicable laws, rules, regulations, ordinances, rights-of--way, permits and easements,
and shall not unreasonably encumber the Property with construction equipment or other materials
or equipment. Contractor shall restore to original condition all property affected by the applicable
Work Authorization or Change Order.
3$. Travel. Travel expenses reimbursed by the City and CVS to Contractor for
Contractor to complete routine project work that requires staff from the Contractor's Billings office
shall be restricted to round trip travel expenses up to 2p0 miles per trip, unless otherwise agreed, in
writing, by both the City and CVS.
39. Miscellaneous. This Agreement, together with any Work Authorizations and Change
Orders, constitutes the entire agreement between the Parties with respect to the subject matter hereof
and may only be modified by a subsequent writing duly executed by both Parties. All attachments
hereto are incorporated herein by this reference as if set forth in this place. Time is expressly made
of the essence of each and every provision of this Agreement. The headings of the Articles herein
are for convenience of reference only and shall not be used to interpret or construe the contents
thereof 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 the
State of Montana. Invalidation of any of the covenants, conditions, restrictions or other provisions
contained herein or the application thereof to any person or entity by judgment or court order shall
in no way affect any of the other covenants, conditions, restrictions or provisions hereof, or the
application thereof to any other person or entity and the same shall remain in full force and effect.
The individuals signing this Agreement on behalf of each Party hereby represent to the other Party
(i) that they have the power and authority to bind the entity for which they are signing, (ii) that the
signatories are all of the signatories for the respective Party necessary for the full and valid execution
of this Agreement for such Party, (iii) that all corporate, partnership or other action necessary for the
respective Party to execute, bind and perform under the terms of this Agreement have been duly
taken, and (iv) that na other signature, act or authorization is necessary to bind the respective Forty.
Except as provided elsewhere in this Agreement, the terms, covenants and conditions herein
contained shall be binding upon and inure to the benefit of the heirs, successors, transferees and
assigns of the Parties.
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Agreement for Environmental Services -Page 13 H:\20028\007\MEL921$.WPD
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
CONTRACTOR:
ATC ASSOCIATES INC.
By: - _ ~-_~ . _. _..._._
Its: /J 1+~ ~~.,~. 1N1n~-r,.A.~,er
CITY:
CITY OF BOZEMAN,
a Montana municipal corporation
By:
Kaaren Jacob n
Its: Ma or Cit of Bozeman
Attested By: `
Its:
CVS:
CVS PHARMACY, INC.
By:
Kristine Donabedian
Its: Assistant Secret
Agreement for Environmental Services -Page 14 H:~20g28\007\MEL9218.WPD
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
CONTRACTOR:
ATC ASSOCIATES INC.
By:
Its:
CITY:
CITY OF BOZEMAN,
a Montana municipal corporation
Kaaren .Taco on
Its: _Ma, o~y of Bozeman , ,,,,_
~: ,
..
rte, w, _ f
Attested By: ~ ~
Its:
~~--
CVS:
CVS PHARMACY, INC.
By:
Kristine Donabedian
Its: Assistant Secret
Agreement for Environmental Services -Page 14 H:~20028\007\MEL9218.WPP
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
CONTRACTOR:
ATC ASSOCIATES INC.
By:
lts:
CITY:
CITY OF BOZEMAN,
a Montana municipal corporation
By: ~~-
Kaaren Jacobso
Its: __ Mayor, City of Bozeman
Attested By: f
Its: A ~Q~^_
CVS:
CVS PHARMACY, INC.
By:
Kristine Donabedian
Its: Assistant Secret
AAOrtt~ Levin
Agreement for Environmental Services -Page 14 H:\20028\007\MEL9218.WPD
Attachment A
WORK AUTHORIZATION FOR ENVIRONMENTAL
CONSULTING SERVICES
THIS WORK AUTHORIZATION is executed and delivered to ATC ASSOCIATES INC. (ATC
hereinafter referred to as "Contractor"), by CVS PHARMACY, INC. ("CVS"), and the City of
Bozeman (the "City") pursuant to that c~rtain AGREEMENT FOR ENVIRONMENTAL
SERVICES (the "Agreement") dated the ~_ day of April, 2008.
Sco a of Services: Subject to the terms and conditions of the Agreement which are
incorporated herein by reference, the City and CVS hereby authorize and direct Contractor
to provide the following services ("Services"):
Title:
Date Services to Begin:
Desc motion:
2. Attachments: The attachments to this Work Authorization identified below are incorporated
herein by reference and made a part of this Work Authorization.
3. Property: The property ("Property") upon which the Services are to be performed is located
at:
Stare Code: 10-3824 (and associated BSS properties)
Complete Address: 1601 W. Main Street
Bozeman, MT
4. Consideration: The consideration to be received by Consultant for the Services shall be on
a time and materials basis as follows:
Costs will not be exceeded without prior written authorization subject to a Change Order
format signed by the parties.
S. Photographs: May they be taken in accordance with terms of the Master Agreement?
6. Is a bond required to be posted?
7. Indicate whether additional insureds must be named on consultant policy:
if yes, the named insured is:
Individuals and Entities Performin the Services: The following individuals and entities shall
be primarily responsible for performing the Services:
Name or Individual/Entit
Licenses and Certificates
I-1:\20028\Op7\SK9491. WPD
9. Schedule For Performance of the Services: The Services shall be scheduled as follows:
Commenced: Completed:
10. Acceptance of Work Authorization:
(a) Contractor consents to performing the Services in accordance with this Wark
Authorization, the Agreement and current billing requirements by its signature below.
Contractor shall submit an executed copy of this Work Authorization to the City and CVS,
as provided for in paragraph 11, hfteen (15) business days prior to performing the Services
provided for herein. The City and CVS shall then have ten (10) days from the submission
of the Work Authorization to provide approval thereof Approval shall be deemed granted
on the date of execution of this Work Authorization.
(b) The parties hereto understand and agree that occasionally and due to special
circumstances the immediate services of Contractor may be necessary and the approval
procedure provided for in 10(a) above may hinder or prevent Contractor's ability to provide
immediate service. In that event, Contractor shall make a written request to the Project
Managers provided by paragraph 11 below. Under such circumstances, the Proj ect Managers
may provide preliminary approval for the Services to proceed. Contractor shall, as soon as
reasonably possible, submit a Wark Authorization for approval. Upon submission, the City
and CVS shall make diligent efforts to obtain approval (evidence by execution of the Work
Authorization) as expeditiously as possible.
11. project Managers: Primary communications on this project will be between the project
managers designated below. [Note that additional entities may require notice under the terms
set forth in the Agreement.] Include phone/fax numbers for both.
Contractor•
ATC Associates Inc.
917 1 `` Avenue North
Billings, MT 59101
Attn: Michael Ellerd
Telephone: (406) 794-5711
Email: michael.ellerd@atcassociates.com
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H:\20028\007\SK9491. WPD
Cam:
Moore, O'Connell & Refling, P.C.
P.O. Box 1288
Bozeman, MT 59771-12$8
Attn: Jenifer S. Reece, Esq.
Telephone: (406) 587-5511
Fax: (406) 587-9079
Email: jenireece@gwestoffice.net
CVS:
CVS Realty Co.
777 S. Harbor Blvd.
Suite E163
La Habra, CA 90631
Attn: A. Edward Cook
Director of Construction
Telephone: (714) 681-5560
Fax: (401) 652-0089
with a copy to: City of Bozeman
411 E. Main Street
Bozeman, MT 59715
Attn: Debbie Arkell
Telephone: (406) 582-2135
Fax: (406) 582-2302
with a copy to: Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attn: Susan P. Phillips, Esq.
Telephone: (617) 348-1713
Fax: (617) 542-2241
Email: Sphillips@mintz.com
with a copy to: CVS Pharmacy, Inc.
One CVS Drive
Woonsocket, RI 02895
Attn: Kristine L. Donabedian, Esq.
Telephone: (401) 770-213 $
Fax: (401) 216-3266
12. Counterparts/Sigrrlature: A copy of this document may be executed by each individual/entity
separately, and when each has executed a copy thereof, such copies, taken together, shall be
deemed to be a full and complete contract between the parties. Signatures camrnunicated by
an electronic medium (i.e. fax, email, etc.) shall be considered binding.
IN WITNESS WHEREOF, this Work Authorization. is executed by Consultant and the City and CVS
to be effective as of _
CONTRACTOR:
ATC ASSOCIATES INC.
By:
Its:
H:\20028\007\SK9491. WPD
CITY:
CITY OF BOZEMAN,
a Montana municipal corporation
By:
Debbie Arkell
Its: Director Public Service
CVS:
CVS PHARMACY, INC.
By:
Kristine Donabedian
Its: Assistant Secret
Attested By:
~~
Its: ~
H:\20028\007\SK9491. WPD
Failure to Tirnely C~,mmence or Complete Services
Consultant hereby agrees to pay to The City and CVS as stipulated, fixed, agreed and liquidated
damages for each calendar day of delay beyond the time limits described in Section 9 of this Work
Authorization far commencement and/or completion of the Services, subject to Force Majeure
Delay,' or delays ordered by The City and CVS, the amounts set forth below. The provisions ofthis
section shall not limit the right of The City and CVS to prove and recover additional damages
beyond the damages set forth herein in the event Consultant's delay in the commencement or
completion of the Services results in claims against The City and CVS. For the purposes of this
section, the term "calender day" includes each day of the week, including weekends and holidays.
Number of Calendar Days of Delay of
Completion of the Services Beyond the
Dates for Commencement or Completion,
Respectively, Described in This Work
Authorization
Amaunt of Penalty Per Calendar Day
Commencement and/or for Each Day of
Delay of Commencement and/or
Completion of the Services, Expressed as a
Percentage of the Consideration Set Forth in
Section 4 of This Work Authorization
Up to 30
30 to 120
120 and Over
0%
0.5%
1.0%
'As used herein, the term "Force Majeure Delay" means delays that are caused by fire or other casualty, acts of God,
unusually inclement weather, refusal or failure of governmental authorities to grant necessary approvals and permits for Services
(Consultant agreeing to use reasonable diligence to procure the same), war, riot, or insurrections, or any other cause (except financial)
beyond the control of Consultant, but not including strikes, work stoppages or other related problems, if substitute personnel
acceptable to The City and Cv5 are reasonably available.
H:\20028\007\SK9491. WPD
Attachment B
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y From USGS 7.5' Bozeman Quad January 2008
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Attachment C
CHANGE ORDER NO.
Agreement for Services between ATC Associates, Inc. ("Contractor"), the City of Bozeman ("City"),
and CVS Pharmacy, INC. ("CVS")
Bozeman Solvent Site, Bozeman, MT
Change Order Descripti
Contractor Proj ectManager/Phone No.:
The Contract is changed as follows (purpose/explanation):
Not valid until signed by City, CVS and Contractor
The original consideration was ......................................... .
Net change by previous authorized Change Orders ........................... $
The Contract Consideration prior to this Change Order was ................... $
The Contract Consideration will be (increased/decreased by this Change Order
in the amount of ...................................................... $
The new Contract Consideration including this Change Order will be ............ $
CONTRACTOR CITY
By: By:
Date:
CVS
By:,
H:\20028\007\SK9494, W PD