HomeMy WebLinkAbout13- Remediation Agreement between City and Olive and Wallace AGREEMENT TO REMEDIATE FORMER HARRINGTON'S PROPERTY
SUBJECT TO CIVIC BOZEMAN FACILITY
GALLATIN COUNTY, MONTANA
THIS AGREEMENT is hereby made this day of
by the Owner and City as described herein.
W I T N E S S E T H:
WHEREAS, on February 10, 2010, Harrington's, Inc., executed a Restrictive
Covenant regarding asbestos contamination on certain business property with a mailing
address of 200 S. Wallace, Bozeman, Montana 59715, (Property) which Restrictive
Covenant has been duly recorded in Gallatin County, Montana; and
WHEREAS, on October 24, 2011, Olive &Wallace, LLC, (Owner) a Montana
limited liability company, purchased the property in fee from Harrington's, thereby
assuming all rights in the property, and becoming the successor-in-interest the
Restrictive Covenant. (Attachment A). The Montana Department of Environmental
Quality(DEQ) is the express and sole intended beneficiary of the Restrictive Covenant;
and
WHEREAS, the Restrictive Covenant concerns certain asbestos contamination
know to remain on the Property, which is included within the boundary of the active
CIVIC East Main Depot Facility, of which the City of Bozeman ("City') is the lead
potentially-liable party,
WHEREAS, a previous cleanup of the Facility area occurred, addressing all
accessible contamination, concluding on May 29, 2009, as noted on page 5 of the CIVIC
Bozeman Final Report, compiled by Tetra Tech, Inc. The report noted the existence of
further asbestos contamination underlying certain structures on the Property, detailed in
relevant excerpts from the Tetra Tech report (Attachment B hereto) and summarized
herein as follows: to the south, beneath the existing warehouse structure, to the east,
under the loading dock, which extends to far north end of the Property; to the west, the
stairs to the loading dock, and the shotcrete and asphalt caps around the foundation;
WHEREAS, the Owner now wishes to make its private property available for
complete remediation, subject to the Restrictive Covenant, which requires Owner to hire
a State-accredited Contractor to oversee removal of contaminated material (Project). In
keeping with this requirement, the Owner has associated Resource Technologies, Inc.,
(R'TI) whose engineers have the requisite expertise, as well as personal knowledge of
the site. In order to expedite redevelopment of the Property, Owner has agreed to pay
any and all costs related to remediation of the Property, including DEQ site response
costs;
NOW, THEREFORE, Owner and the City have agreed that the following procedures
1 The City, as lead PLP, will send a cover letter to DEQ with the EA stating the City's
intent to initiate a voluntary cleanup of the former Harrington's property, which
further remediation is now possible due to redevelopment of the Property by the
new Owner, Olive & Wallace, LLC;
2. RTI and all subcontractors will submit invoices, to the City for their work, which
invoices will be forwarded by the City to Olive &Wallace, within five (5) business
days of receipt;
3. The parties agree that RTI is an independent contractor for purposes of this
Agreement and neither Owner nor RTI are to be considered an employee of the
City for any purpose. Owner and RTI are not subject to the terms and provisions
of the City's personnel policies handbook and may not be considered a City
employee for workers' compensation or any other purpose. Owner and RTI are
not authorized to represent the City or otherwise bind the City in any dealings
between Owner, RTI and any third parties.
4. Owner has established a dedicated checking account at Wells Fargo, ending in
8028, from which all remedlation costs, including any administrative costs and site
response costs incurred in conjunction with this Project, shall be timely paid, within
ten (10) business days of receipt;
5. Upon payment, Owner shall notify City via email of payment of each invoice, or of
a group of invoices. For bookkeeping purposes, the invoices shall be numbered
as they are received by Olive &Wallace (for instance, the first invoice from RTI for
preparation of the EA shall be referred to as "Invoice 1," and when payment on this
invoice has been made, the City shall receive an email with a subject heading to
the effect of. "Notice of Payment of Invoice V;
6- As lead PLP, the City may request reimbursement of its cleanup costs for the
Facility from the Controlled Allocation of Liability Act (CALA), also known as the
"orphan share fund," via DEQ. If funds are available, and the City is reimbursed
for cleanup costs of the Property, those reimbursements shall, Within ten (10)
business days of receipt, be used to replenish the Owner's Wells Fargo account
that has been dedicated for the Project. Owner understands that GALA funds may
not be available, and Owner assumes that risk;
7. For other than professional services rendered, to the fullest extent permitted by
law, Owner agrees to defend, indemnify, and hold the City harmless against
claims, demands, suits, damages, losses, and expenses connected therewith that
may be asserted or claimed against, recovered from or suffered by the City by
reason of any injury or loss, including but not limited to, personal injury, including
bodily injury or death, property damage, occasioned by, growing out of, or in any
way arising or resulting from any intentional or negligent act on the part of Owner
or Owner's agents or employees.
8. For the professional services rendered, to the fullest extent permitted by law,
Owner agrees to indemnify and hold the City harmless against claims, demands,
suits, damages, losses, and expenses, including reasonable defense attorney
fees, to the extent caused by the negligence or willful misconduct of the Owner or
Owner's agents or employees. Owner also waives any and all claims and
recourse against the City or its officers, agents or employees, including the right of
contribution for loss or damage to person or property arising from, growing out of,
or in any way connected with or incident to the performance of this Agreement
except "responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA.
Oliv & Wallace, LLC City of Bozeman
By; Thomas P. Winston, President By. ,'-
Date Date
STATE OF MONTANA )
COUNTY OF GALLATIN )
Before me, �� of the state and county
aforesaid, personally appeared with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence), and who,
upon oath, acknowledged himself to be an officer of Olive &Wallace, LLC
WITNESS my hand and seal in Gallatin County, Montana, this day of
20 .
�t,A4 SAVENNAL.HANDY
�gtiR,KNK. NOTARY PUBLIC for the
°,......_ State of Montana
Na arY'P lfc .. 'D
SE Respd np at Bozeman,Montana
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