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,
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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
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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
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STATE OF MONTANA
COUNTY OF
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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