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HomeMy WebLinkAboutPacific Steel and Recycling Contribution Agreement with CityAGREEMENT AND RELEASE Agreement made �, between the City of Bozeman, a municipality of the State of Montana ( "City ") „and Pacific elide & Fur Depot DBA Pacific Steel & Recycling ( "Pacific "). RECITALS A. On September 21, 1990, the former East Main Depot in Bozeman, NIT, was listed by the Montana Department of Environmental Quality (MDEQ) for remediation under the Comprehensive Environmental Cleanup and Responsibility Act (CECRA). The site is identified as the CMC Asbestos Bozeman Facility ("Facility"), and described as former asbestos ore storage and processing, recycling /salvage yard. B. The City of Bozeman purchased 14 acres of the Facility and remediation work on City- ovwned property was completed in October 2003, pursuant to an approved Voluntary Cleanup Plan (VCP). Asbestos ore contaminated soils on properties adjacent to the 14 -acre City property remained in place. On December 21, 2006 the City of Bozeman agreed to act as the lead potentially liable person (PLP) under the Controlled Allocation of Liability Act (CALA) to complete remedial actions at the Facility. C. The City of Bozeman entered into a Stipulated Agreement with certain parties in August, 2007, including Pacific, which was presented to and approved by MDEQ. The agreement provides for an allocation of liability at the Facility for each of the signatories and for the state "Orphan Share. " The City of Bozeman has a claim against the orphan share fund for remedial action costs incurred to date and for future remedial action costs, in accordance with the allocation percentages set forth in the Stipulated Agreement. The percentage share of liability allocated to Pacific in the ,Stipulated Agreement is fifteen percent (15 %). D. The City of Bozeman completed supplemental investigation field work focused on contamination on the adjacent properties in December 2007. Based on information in the Supplemental Investigation Report, the City of Bozeman submitted an Addendum to the Voluntary Cleanup Plan. MDEQ approved the Addendum on January 29, 2009. Cleanup work under the approved Addendum began in March, and was completed in June, 2009. E. The addendum to the Voluntary Cleanup Plan included a Potential Asbestos Ore Area Investigation Plan and Combined Protective Plan for areas of Potential Asbestos Ore and inaccessible Observed Asbestos Ore. Inaccessible areas are those areas under buildings, under Wallace Avenue and other specified paved areas not fully remediated. F. It is the intent and purpose of the parties to enter into an agreement to insure proper performance of remediation required in the future due to disturbance of asphalt pavement or concrete, removal or demolition of buildings or structures, or other changes in use of the property, 1 and further, to assign appropriate responsibility for all financial obligations related to future changes in property use or modifications to buildings and structures, and required remediation related thereto. G. It is the intent and purpose of the parties to settle this matter between themselves, and each side agrees and covenants that the signing party below has the right and authority to bind the party for which it signs, and the City specifically agrees and covenants that all necessary concurrence from the Bozeman City Commission and any other governing body or person of said City, has been obtained. NOW THEREFORE, it is agreed as follows: 1. Recitals Incorporated The above recitals are incorporated herein as if set forth in full in this paragraph. 2. Contribution The Stipulated Agreement provides that the City may seek reimbursement from other signatories in proportion to the percentage share of liability allocated in Section 1 of that Agreement. The Agreement also allows for the parties to enter into agreements regarding payment of said reimbursement. The parties agree to settle all claims the City has or may have against Pacific, its predecessors, partners, successors, officers, directors, employees or assigns, for the amount of six hundred fifty thousand and no/100 dollars ($650,000.00) paid by Pacific to City. 1 Release The City acknowledges receipt of the above sum of money and in consideration for payment of such sum, does fully and forever release and discharge Pacific, its predecessors, partners, successors, officers, directors, employees and assigns, from any and all actions, claims, causes of action, demands, or expenses for damages or injuries, whether asserted or unasserted, known or unknown, foreseen or unforeseen, that wvere or could have been. asserted pursuant to the Stipulated Agreement. 4, Future Remedial Action Costs Remedial actions after the date of this agreement, based upon property use changes, modifications of structures, or other factors, may be required by MDEQ based on conditions at the Facility at that time. In consideration for the payment of the above sum of money, the City agrees that it will not seek any further reimbursement of remedial action cost from Pacific, its predecessors, partners, successors, officers, directors, employees or assigns. The City further agrees that in the event another PLP, pursuant to settlement agreements reached between the City and other PLPs, requests that the City submit a new or amended VCP under the Stipulated Agreement for further remedial action at the Facility, that the City shall inform Pacific of such request. The City further agrees that it will not submit such a new or amended VCP until and unless the City, Pacific and the other PLP(s) reach agreement regarding the duty of the other PLP(s) for payment of any costs above and beyond the 79' %0 orphan share, and to not seek 0 recovery from Pacific under the Stipulated Agreement for costs arising from or related to new development or construction-related work voluntarily undertaken by other PLP(s) at the Facility. S. Governing Law and Venue. This Agreement shall be construed according to the laws of the State of Montana, In the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court, Gallatin County, State of Montana. 6. Modifications or Alterations. No modifications or amendments of this Agreement shall be valid, unless agreed to in writing by the parties hereto. 7. Invalid Provision. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 8. Assignment. It is expressly agreed that Pacific and the City shall not assign this Agreement in whole, or in part, without prior written consent of the parties to this Agreement. 9. Successors. Except as provided by Paragraph 8, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns, 10. Attorney Fees. In the event it becomes necessary for either party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or give any notice required herein, then the prevailing party or the party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary and cost of in-house counsel to include the City Attorney. PACIFIC HIDE & FUR DEPOT, DBA PACIFIC STEEL & RECYCLING M3 STATE OF MONTANA COUNTY OF W This instrument was acknowledged before me on 19 by as of (SEAL) Notary Public for the State of Montana Residing at My commission expires 3 CITY OF BOZEMAN By: STATE OF MONTANA :ss COUNTY OF DATE This instrument was acknowledged before me on TL TV by r (R, �a (:5 k-L_ as Q L A n of �-f (SEAL) K I s 017' Kota y ± Public ­ Aor the �State of Montana Residing at My commission expires AIMEE r s a rn >IV I cl r n I C > r4 f- X F I I =�= j M1111 REPORT TO: FROM: APPROVED BY: Honorable Mayor and City Commission Tim Cooper, Assistant City Attorney--<— Greg Sullivan, City Attorney Chris Kukulski, City Manager SUBJECT: Contribution Agreement between the City of Bozeman and Pacific Steel and Recycling for proportional share of remedial action costs at CMC asbestos facility. MEETING DATE: July 12, 201 AGENDA ITEM TYPE: Consent. RECOMMENDATION. Authorize the City Manager to execute Agreement, BACKGROUND: The City of Bozeman entered into a Stipulated Agreement with certain parties in August, 2007, including Pacific Steel and Recycling, which provides for an allocation of liability at the CMC Asbestos Facility for each of the signatories and for the state "Orphan Share." The percentage share of liability allocated to Pacific in the Stipulated Agreement is fifteen percent (15%). The total remedial action costs are approximately $4.7 million. Pacific has agreed to pay to the City of Bozeman, under the terms of this Agreement, approximately fourteen percent (14%), or $650,000.00, FISCAL EFFECTS: The City recently received reimbursement for the remaining orphan share costs of the cleanup (less withholding for estimated outstanding costs) in the amount of $324,000.00. That amount, together with the sum received pursuant to this agreement, will be applied to the remaining deficit in the Library Construction Account, reducing that account from ($1,180,583.00) to approximately ($206,583,00). ALTERNATIVES: As suggested by the City Commission. Attachments: Agreement and Release Report compiled on: July 7, 2010