HomeMy WebLinkAbout15- Environmental Services with CVS Pharmacy and Tasman Geosciences AGREEMENT FOR ENVIRONMENTAL SERVICES
THIS AGREEMENT FOR ENVIRONMENTAL SERVICES ("Agreement") dated as of
November 20, 2015, 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 TASMAN GEOSCIENCES, INC. ("Contractor"). CVS, the City and Contractor
are referred to herein as the "Parties" or, individually, as a"Party".
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree 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 progress schedule during all disputes or disagreements with the
City and/or CVS. No Services shall be delayed or postponed pending resolution of any disputes
or disagreements, except upon termination of this Agreement as permitted by Article 11 or as the
Parties may otherwise agree in writing. Contractor understands that, unless this Agreement
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 I
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 Parties
using 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 Agreement and any Work Authorization and/or Change Order delivered pursuant to the
teens of this Agreement are sometimes collectively referred to as the"Agreement".
3. Payment 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 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
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Contractor pertaining to the Services shall be maintained in one central location in the State of
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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 pay 30%
and 70%, respectively, of the costs of the Services, and that the payment obligation is individual
and not joint (e.g., if the City pays 30% 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 of an 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 may be 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 for 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 may be encountered. The City and
CVS, jointly and severally, make no representations or warranties with respect to the condition
of any Property, or for 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
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activities of Contractor's employees, subcontractors or any other persons performing any portion
of the 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 for in Article 2 (utilizing
either a new Work Authorization or 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. Right to Suspend the Services for Convenience; Costs for Delays. The City and
CVS may, without cause, order Contractor to suspend, delay or interrupt 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 Reports and Analyses. 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 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
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Agreement for Environmental Services-Page 3
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
Attomeys 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 may be 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 minimum 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 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.
Agreement for Environmental Services-Page 4
10. hidemnification. Contractor agrees to release, indemnify, defend and hold
harmless the City and CVS,jointly 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 of action, damages and liability (including
reasonable 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 limitation, 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. hi 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 tenninate 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 for 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 for which no 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.
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
Agreement for Environmental Services-Page 5
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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 may be
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 labor 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.
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
Agreement for Environmental Services-Page 6
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 perfonn 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 perfonn 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 of delivery, addressed as follows:
Contractor:
TASMAN GEOSCIENCES, INC.
917 1st Avenue North
Billings, MT 59101
Attn: James Sullivan
Telephone: (406) 371-6772
City:
City of Bozeman
411 E. Main Street With a copy to: Moore, O'Connell &Refling, P.C.
Bozeman, MT 59715 P.O. Box 1288
Attn: Craig Woolard Bozeman, MT 59771-1288
Telephone: (406) 582-2135 Attn: Jennifer S. Reece, Esq.
Fax: (406) 582-2302 Telephone: (406) 587-5511
Fax: (406) 587-9079
CVS: With copies to: Mintz, Levin, Cohn, Ferris, Glovsky and
CVS Pharmacy, Inc. Popeo, P.C.
One CVS Drive One Financial Center
Woonsocket, RI 02895 Boston, MA 02111
Attn: Cheryl A. Green, Esq. Attn: Susan P. Phillips, Esq.
Telephone: (401) 770-7076 Telephone: (617) 348-1713
Email: cheryl.green2@cvshealth.com Email: sphillips@mintz.com
CVS Pharmacy, Inc.
One CVS Drive
Woonsocket, RI 02895
Richard L. Fuller
Telephone: (401) 770-3236
Email: Richard.FullerAcvshealth.com
CVS Pharmacy, Inc.
One CVS Drive
Agreement for Environmental Services-Page 7
Woonsocket, Rhode Island 02895
Attn: Property Administration Department
The person and the place to which notices are to be mailed may be 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 Work
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 of the 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. Attorneys' 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 Party, 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 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. No articles, papers, treatises
or presentations related to or in any way based upon or associated with the Services shall be
presented or submitted for publication without the prior written consent of the City and CVS.
Nothing in this Agreement shall require Contractor to deliver to the City or CVS software
programs or other tools or materials used by Contractor in connection with the Services which
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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.
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 I 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 I
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 Operations: Records of Work Activities. Contractor
shall erect all required, necessary and appropriate barriers, post all required warning notices on
the Property 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 Property, 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
Agreement for Environmental Services-Page 9
the work site wear all required and/or appropriate personal protective equipment. If appropriate
with respect to the Services, Contractor 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 CVS 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. Right 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 sole 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. Right 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 or CVS to exercise such right for the benefit of Contractor
or any other person or entity.
27. Right to Carry 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 or failure with diligence and promptness (or immediately, in the case of a default, neglect
Agreement for Environmental Services-Page I0
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 or 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 necessary
by such default, neglect or failure.
28. Performance and Payment Bonds. With respect to Services performed under each
Work Authorization, Contractor shall, upon request, furnish a perfoiivance 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 Responsibility 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 Completion. 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 over such Services.
31. Payment 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 or 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 I
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 refuses 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 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
Agreement for Environmental Services-Page I I
City or CVS, 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 Majeure. 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 fire 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 Majeure 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 Timely Commence or Complete 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. Regard for Existing 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 incorporation 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.
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.
Agreement for Environmental Services-Page 12
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.
38. 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 200 miles per trip, unless otherwise
agreed, in writing,by both the City and CVS.
39. Nondiscrimination. The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state
and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse
employment to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed,political ideas, sex, age,marital status,national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands
of the position require an age,physical or mental disability,marital status or sex distinction. The
Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor
shall require these nondiscrimination terms of its sub-Contractors providing services under this
agreement.
40. 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 no other
signature, act or authorization is necessary to bind the respective Party. Except as provided
elsewhere in this Agreement, the terms, covenants and conditions herein contained shall be
Agreement for Environmental Services-Page 13
binding upon and inure to the benefit of the heirs, successors, transferees and assigns of the
Parties.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
CONTRACTOR:
TASMAN GEOSCIENCES, INC.
By:
Its:
CITY:
CITY OF BOZEMAN,
a Montana municipal co 'oration
By: CcMA41`E; Attested By: ,5n ` ffi
•
Its: C •D/ i Ic.�otages Its 5 ,\ \i
V
CVS:
CVS PHARMACY, INC.
By:
Cheryl A. Green
Its: Assistant Secretary
Agreement for Environmental Services-Page 14
binding upon and inure to the benefit of the heirs, successors, transferees and assigns of the
Parties.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
CONTRACTOR:
TASMAN GEOSCIENCES, INC.
By: 7.: i.
Its: - ry ,,,,L t i.. , 1 C' 6a=?„Vr._._r
CITY:
CITY OF BOZEMAN,
a Montana municipal corporation
By: Attested By:
Its: Its:
CVS:
CVS PHARMACY, INC.
By: Ge�
Cheryl A. ee
Its: Assistant Secretary
1
Agreement for Environmental Services-Page 14
1
i
binding upon and inure to the benefit of the heirs, successors, transferees and assigns of the
Parties.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
CONTRACTOR:
TAS,MAN GEOSCIENCES, INC.
l
By: ,
.t
Its:
CITY: // \Y
CITY OP BOZ AN,
a Montana municial corporation
t
By/ Attested By: <\\ /
Its: y.
CVS:
CVS PHARMACY, INC.
1 ,
/
By: s <1
Cheryl A. Gr-enf
Its: Assistant Secretary
Agreement for Environmental Services-Page 14 '..
Attachment A
WORK AUTHORIZATION FOR ENVIRONMENTAL
CONSULTING SERVICES
THIS WORK AUTHORIZATION is executed and delivered to TASMAN GEOSCIENCES,
INC. (ATC hereinafter referred to as "Contractor"), by CVS PHARMACY, INC. ("CVS"), and
the City of Bozeman (the "City") pursuant to that certain AGREEMENT FOR
ENVIRONMENTAL SERVICES (the"Agreement") dated the day of , 20_
1. Scope 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:
Description:
2. Attachments: The attachments to this Work Authorization identified below are
incorporated herein by reference and made a part of this Work Authorization. i
3. Property: The property ("Property") upon which the Services are to be performed is
located at:
Store Code: 1
Complete Address: 1601 W. Main Street (and associated BSS properties)
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.
5. 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:
8. Individuals and Entities Performing the Services: The following individuals and entities
shall be primarily responsible for performing the Services:
Name or Individual/Entity: Licenses and Certificates
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 Work
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, fifteen (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
Project Managers may provide preliminary approval for the Services to proceed.
Contractor shall, as soon as reasonably possible, submit a Work 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:
Tasman Geosciences, Inc.
917 1st Avenue North
Billings, MT 59101
Attn: James Sullivan
Telephone: (406) 371-6772
Email: jsullivan(ib,,tasman-geo.com
City:
Moore, O'Connell &Refling, P.C. With a copy to: City of Bozeman
P.O. Box 1288 411 E. Main Street
Bozeman, MT 59771-1288 Bozeman, MT 59715
Attn: Jenifer S. Reece, Esq. Attn: Craig Woolard
Telephone: (406) 587-5511 Telephone: (406) 582-2135
Fax: (406) 587-9079 Fax: (406) 582-2302
Email: jenireece@gwestoffice.net
CVS:
CVS Pharmacy, Inc. With copies to: Mintz, Levin, Cohn, Ferris, Glovsky
One CVS Drive and Popeo, P.C.
Woonsocket, RI 02895 One Financial Center
Attn: Richard L. Fuller Boston, MA 02111
Telephone: (401) 770-3236 Attn: Susan P. Phillips, Esq.
Email: Richard.Fuller@cvshealth.com Telephone: (617) 348-1713
Email: Sphillips@mintz.corn
CVS Pharmacy, Inc.
One CVS Drive
Woonsocket, RI 02895
Attn: Cheryl A. Green, Esq.
Telephone: (401) 770-7076
Email:Cheryl.Green2(cry cvshealth.com
12. Counterparts/Signature: 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 communicated 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 i
CVS to be effective as of I
CONTRACTOR:
TASMAN GEOSCIENCES, INC.
By:
Its:
CITY:
CITY OF BOZEMAN,
a Montana municipal corporation
By: Attested By: I'
Its: Its:
CVS:
CVS PHARMACY, INC.
By:
Cheryl A. Green
Its: Assistant Secretary
Failure to Timely Commence 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 for 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 of this 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 teen "calendar day" includes each day of the week, including
weekends and holidays.
Number of Calendar Days of Delay of Amount of Penalty Per Calendar Day
Completion of the Services Beyond the Commencement and/or for Each Day of
Dates for Commencement or Completion, Delay of Commencement and/or
Respectively, Described in This Work Completion of the Services, Expressed as a
Authorization Percentage of the Consideration Set Forth in
Section 4 of This Work Authorization
Up to 30 0%
30 to 120 0.5%
120 and over 1.0%
1/
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 CVS are reasonably �I
available.
Attachment B
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Prom USGS 7.5'Bozeman Quad January 2000
Location Map
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- >,^47 14
`` Bozeman Solvent Site
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7710008.730
7710009 730 n ono
Attachment C
CHANGE ORDER NO.
Agreement for Services between TASMAN GEOSCIENCES, INC. ("Contractor"), the City of
Bozeman ("City"), and CVS Pharmacy, Inc. ("CVS")
Bozeman Solvent Site, Bozeman, MT
Change Order Description:
Contractor Project Manager/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: Date:
CVS
By:
Date:
ry
ME LAW FIRM
MOORE, O'CONNELL & REELING
A PROFESSIONAL CORPORATION
SUITE 10,LIPE OP MONTANA BUILDING
MARK D.RULING 601 HAGGERTY LANE
ALLAN H.BARIS n
MICHAEL J.L CUSICK RECEVED Reply to
JENNIFER L FARVE POST OFFICE BOX 1288
JENIPER S.REECE JAN 2 1 2016 BOZEMAN,MONTANA 59771-1288
RYAN K.MATTICK
ELIZABETH W.LUND TELEPHONE:(406)587-5511
ABIGAIL R.BROWN CITY ATTORNEY PAX:(406)587-9079
B.GRANT DICKSON E-MAIL: morlaw@gwestofice.net
PERRY J.MOORE (Retired)
HARRY G.O'CONNELL (1947-2006)
January 19, 2016
Timothy Cooper, Esq.
City of Bozeman
P.O. Box 1230
Bozeman, MT 59771-1230
RE: Agreement for Environmental Services, Tasman Geosciences, Inc.
Bozeman Solvent Site
Our file no: 20028\007
Dear Tim:
Enclosed with this letter is an original Agreement for Environmental Services ("Agreement") signed by
representatives of CVS Pharmacy, Inc., Tasman Geosciences,Inc. and the City of Bozeman. The City of
Bozeman, Tasman, and CVS have each been provided a fully executed original of this Agreement. Our
office will maintain a copy of the Agreement.
Sincerely,
ENIFER S. REECE
JSR:pm/dmb
FI
cc: Brit Fontenot(w/enc.via email)
Heather Bienvenue (w/enc.via email)
Enc. (orig. AES)
00147230.W PD
9