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HomeMy WebLinkAboutContract 26981 ITY CON RACT NO Y46,991 TEXAS NATURAL RESOURCE CONSERVATION COMMISSION VOLUNTARY CLEANUP PROGRAM AGREEMENT INTRODUCTION This Agreement is entered into voluntarily by the City of Fort Worth, Texas (Applicant A), Cytec Industries, Inc. (Applicant B), Texas Independent Baseball, L.L.C. (Applicant C), LaGrave Reconstruction Company, L.L.C. (Applicant D), and the executive director of the Texas Natural Resource Conservation Commission (TNRCC). This Agreement is not and shall not be construed as an admission of any liability under the Texas Solid Waste Disposal Act or any other law or as a waiver of any defense to such liability. No approval hereunder or receipt of funds hereby shall be taken as a warranty as to sufficiency or efficacy of the response action. The purpose of this Agreement is to detail the obligations and functions of each party, related to the voluntary response action process at the American Cyanamid facility, 600 N. Jones,Fort Worth,Texas(Site),Voluntary Cleanup Program(VCP)No.1359. The activities conducted by the Applicants under this Agreement are subject to approval by TNRCC. The activities conducted by the Applicants shall be consistent with this Agreement, all applicable laws and regulations and any appropriate guidance documents. Applicants shall employ sound scientific, engineering and construction practices. STATEMENT OF ELIGIBILITY The executive director has determined that the application submitted by the Applicants is complete and that the Site is eligible to participate in the VCP established under Subchapter S of Chapter 361 of the Health and Safety Code (HSC). If the agency determines that the Applicants withheld or misrepresented information that would be relevant to the Site's eligibility, the executive director may exercise his/her right to withdraw from this Agreement. PARTIES BOUND This Agreement shall apply to and be binding upon the Applicants, their officers, directors, principals, employees, receivers, trustees, agents, successors, subsidiaries over which the Applicants exercise control, and assigns and upon the TNRCC, its employees, agents, assigns and successors. The signatories to this Agreement certify that they are fully authorized to execute and legally bind the parties they represent. No change in ownership, corporate, or partnership status of Applicants shall in any way alter their status or responsibilities under this Agreement unless an Applicant or TNRCC withdraws from this Agreement. Applicants shall provide a copy of this Agreement to any subsequent business owners or successors before ownership rights are transferred. If an Applicant is also the owner of the Site, the Applicant shall provide a copy of this Agreement to prospective purchasers of the Site prior to transfer of title. Applicants shall provide a copy of this Agreement to all contractors, subcontractors, laboratories, and consultants which are retained to conduct any work performed under this Agreement, within 14 days after the effective date of this Agreement or within 14 days after the date of retaining their services, whichever is later. All r rfl 1 TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete DEFINITIONS "Site" means the area described in the VCP application, attached and incorporated herein as Exhibit "A" or, if the executive director approves the Applicants' request to address a partial response action area, then only that portion(i.e.,the partial response action area)of the area described in Exhibit"A." ADDRESSES FOR ALL CORRESPONDENCE Documents, including reports, approvals, notifications, disapprovals, and other correspondence to be submitted under this Agreement, may be sent by certified mail, return receipt requested, hand delivery, overnight mail or by courier service to the following addresses or to such addresses as the Applicants or TNRCC may designate in writing. Documents to be submitted to TNRCC should be sent to: Mailing Address Overnight/Express Mail Address Mike Frew Mike Frew Project Manager Project Manager Voluntary Cleanup Section Voluntary Cleanup Section MC-221 MC-221 P.O. Box 13087 12100 Park 35 Circle Austin,TX 78711-3087 Austin,TX 78753 Documents to be delivered to the Applicants should be sent to (include name, address and phone number): Applicant A: City of Fort Worth, Texas Brian Boemer, Director Department of Environmental Management 1000 Throckmorton Street Fort Worth,Texas 76102 Phone: 817-871-8079 Fax: 817-871-6359 Applicant B: Cytec Industries, Inc. Anton C. Marek,Remediation Manager 1300 Mt. Kemble Avenue Morristown,New Jersey 07960 Phone: 973-425-8410 Fax: 973-425-0185 Applicant C: Texas Independent Baseball, L.L.C. Carl W. Bell,Chairman �(� Q��G',�� VS, ORD 16980 N. Dallas Parkway l,,ATC Z@11^1if25t nM TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete Dallas, Texas 75248 Phone: 972-581-4801 Fax: 972-581-4802 Applicant D: LaGrave Reconstruction Company, L.L.C. Carl W. Bell, Chairman 16980 N. Dallas Parkway Dallas,Texas 75248 Phone: 972-581-4801 Fax: 972-581-4802 COMPLIANCE WITH APPLICABLE LAWS All work undertaken by the Applicants pursuant to this Agreement shall be performed in compliance with all applicable federal, state and local laws, ordinances and regulations, including, but not limited to, all Occupational Safety and Health Administration, Department of Transportation and Resource Conservation and Recovery Act regulations. In the event of a conflict in the application of federal, state, or local laws, ordinances and regulations, Applicants shall comply with the more/most stringent such laws,ordinances, or regulations,unless authorized otherwise in writing by TNRCC. Federal requirements shall be followed if they are the more/most stringent. However, as provided by HSC, Section 361.611 a state or local permit shall not be required, although Applicants must coordinate with ongoing federal and state hazardous waste programs and must comply with the substantive requirements of an otherwise required state permit. Where it is determined that a permit is required under federal law, Applicants shall submit timely and complete applications and take all other actions necessary to obtain all such permits or approvals. The Applicants shall be responsible for obtaining all federal permits which are necessary for the performance of any work hereunder. APPLICABLE RULES AND REGULATIONS The VCP rules, 30 Texas Administrative Code (TAC) 333, Subchapter A and the following rules or regulations are specifically designated as being directly applicable for the Site and must be followed. Citation of these rules does not imply that they are the only applicable rules. _30 TAC 350(Texas Risk Reduction Program Rules-TRRP) _30 TAC 334(Petroleum Storage Tank Rules) X Other 30 TAC 335, Subchapter S (Risk Reduction Rules) SUBMITTALS AND SCHEDULES The following plans and reports were included with the VCP application, in this Agreement, or have been added by amendment to this Agreement: Phase I Environmental Site Assessment(ESA) Phase II/Limited Phase II ESA Affected Property Assessment Report(Texas Risk Reduction Program Rules-TRRP) Response Action Plan(Texas Risk Reduction Program Rules-TRRP) s (01 TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete Ir` e U �1.dn�o X Other: Soil Investigation Report, dated June 1997; Draft Soil and Groundwater Investigation Report, dated December 13, 2000; Draft Due Diligence Assessment Report, dated December 15, 2000; and Final Groundwater Sampling Report dated March 28,2001. In compliance with the aforementioned rules or regulations, the required submittals shall include a monthly status report, which describes all activities completed for the current month and those planned for the upcoming month. Future plans and reports should be prepared in accordance with the TNRCC VCP guidance document entitled Guidance for Initiating and Reporting Response Actions Conducted Under TNRCC's Voluntary Cleanup Program(RG-215). In order to complete the voluntary cleanup activities which are necessary for Certificate of Completion issuance, the plans and reports will be submitted according to the schedule specified in Appendix A. Responses to TNRCC comments on the aforementioned submittals shall be in accordance with time frames provided in TNRCC comments letters. Most comment letters specify a 60 day response time frame; however,applicants are encouraged to respond as soon as possible. Proposed future land use to be achieved: Residential(i.e.,unrestricted) X Non-residential(i.e., commercial/industrial) X Other(e.g., agricultural or recreational) DESIGNATED PROJECT MANAGER On or before the effective date of this Agreement, the TNRCC and the Applicants shall each designate a project manager. Each project manager shall be responsible for overseeing the implementation of this Agreement. The TNRCC project manager will be the TNRCC- designated representative at the Site. To the maximum extent possible, communications between the Applicants and TNRCC and all documents (including reports, approvals and other correspondence) concerning the activities performed pursuant to the terms and conditions of this Agreement shall be directed through the project managers. During implementation of this Agreement, the respective project managers shall whenever possible, operate by consensus and shall attempt in good faith to resolve disputes informally through discussion of the issues. Each party has the right to change its respective project manager by notifying the other party in writing at least five days prior to the change. ACCESS To the extent that the Site or other areas where work is to be performed hereunder is presently owned or controlled by parties other than those bound by this Agreement, the Applicants shall obtain, or shall use its best efforts to obtain access agreements from the present owners. Best efforts shall include at a minimum, a certified letter from Applicant to the present owner of such property requesting an access agreement to permit Applicants, TNRCC, their authorized representatives and persons designated by the TNRCC in accordance with HSC, Section 361.752(c)access to such property. Any such access agreement shall be incorporated by reference into this Agreement. Such an agreement shall provide access for Applicants, TNRCC and authorized representatives of TNRCC, and persons designated by the TNRCC in accordance with HSC, Section 361.752(c), as specified below. In the event that such access agreement is not obtained, the Applicants shall so notify TNRCC, which may then, at its discretion, assist the Applicants in gaining access. G`:�1��GQ© TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete The Applicants shall provide authorized representatives of TNRCC access to the Site and other areas where work is to be performed at all reasonable times. Such access shall be related solely to the work being performed on the Site and shall include, but not be limited to: inspecting records,operating logs and contracts related to the Site; reviewing the progress of the Applicants in carrying out the terms of this Agreement; conducting such tests, inspections, and sampling as TNRCC may deem necessary; using a camera, sound recording, or other documentary type equipment for field activities; and verifying the data submitted to TNRCC by the Applicants hereunder. The Applicants shall permit TNRCC's authorized representatives to inspect and copy all records, files, photographs, documents, and other writings, including all sampling and monitoring data, which pertain to this Agreement and over which the Applicants may exercise control. All persons with access to the Site pursuant to this Agreement shall comply with submitted health and safety plans.The TNRCC does not approve health and safety plans. DISPUTE RESOLUTION This section (Dispute Resolution) shall apply to any dispute arising under any section of this Agreement, unless specifically excepted. It should be noted, that as provided for in HSC, Section 361.607, the executive director or the Applicants in its sole discretion may terminate the Agreement by giving 15 days advanced written notice to the other. The parties shall use their best effort to, in good faith, resolve all disputes or differences of opinion informally. If, however, disputes arise concerning this Agreement which the parties are unable to resolve informally, the Applicants may present written notice of such dispute to TNRCC and set forth specific points of dispute and the position of the Applicants. This written notice shall be submitted no later than five calendar days after the Applicants discover the project managers are unable to resolve the dispute. The Applicants' project manager shall notify the TNRCC's project manager immediately by phone or other appropriate methods of communication prior to written notice, when he/she believes the parties are unable to resolve a dispute. Within ten days of receipt of such a written notice, the TNRCC will provide a written response to the Applicants setting forth its position and the basis therefore. During the five calendar days following the receipt of the response, the parties shall attempt to negotiate in good faith a resolution of their differences. If during this negotiation period, the TNRCC concurs with the position of the Applicants,the Applicants will be notified in writing and this Agreement shall be modified to include any necessary extensions of time or variances of work. Following the expiration of the previously described time periods, if no resolution of the disputed issue(s) has been reached,the executive director shall make a determination regarding the dispute, based upon and consistent with the terms of this Agreement and will provide written documentation of such determination to the Applicant. At this juncture, if dispute resolution fails and either or both parties exercise their right to withdraw from the Agreement by giving 15 days advance written notice to the other, only those costs incurred or obligated by the TNRCC before notice of termination of the Agreement are recoverable under the Agreement. RESERVATION OF RIGHTS TNRCC and Applicants reserve all rights and defenses they may have pursuant to any available legal authority unless expressly waived herein. Nothing herein is intended to release, discharge, or in any way affect any claims, causes of action or demands in law or equity which the parties may have against any person, firm, partnership or corporation, not a party to this Agreement for any liability it may have arisen out of or relating in anyway to the TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete 1I f�1� �rf �a �IU U tl U p VEX. generation, storage, treatment, handling, transportation, release or disposal of any materials, hazardous substances, hazardous waste, contaminants or pollutants at, to or from the Site. The parties to this Agreement expressly reserve all rights, claims, demands, and causes of action they have against each other, and against any and all other persons and entities who are not parties to this Agreement. The Applicants reserve the right to seek contribution, indemnity, or any other available remedy against any person other than TNRCC found to be responsible or liable for contribution, indemnity or otherwise for any amounts which have been or will be expended by the Applicants in connection with the Site. During the term of this Agreement, TNRCC will not bring an enforcement action against Applicants for any violations of statutes or regulations for the specific violations or releases that are being remediated by this Agreement, unless the Applicants withdraw from this Agreement prior to completion of the response action. However, a responsible party remains liable for contamination should response action standards change or additional contamination be discovered. Non-responsible party Applicants have a release from liability upon issuance of the Certificate of Completion subject to statutory conditions in Section 361.610(c)HSC. ADMINISTRATIVE COSTS Applicant A, unless indicated otherwise in Exhibit "A", agrees to reimburse TNRCC for all of its costs associated with implementation of this Agreement. TNRCC's costs may include direct and indirect costs of overhead, salaries, equipment,utilities, legal, management and support costs associated with the review of the Applicant's work plans and reports and oversight of field activities. The TNRCC will track all costs to the TNRCC for review and oversight activities related to the Site and provide quarterly invoices to the person responsible, per this Agreement for said costs. If TNRCC costs are less than the application fee of one thousand ($1,000) dollars, the remaining balance in the Site account will not be refunded. The Applicant shall pay these invoiced costs to the TNRCC within 30 days after the date the Applicant receives notice that these costs are due and owing. If payment is not made within 30 days after the date the second notice that these costs are due and owing is sent,the TNRCC will stop reviewing any site-related submittals. If payment is not made within 30 days after the date the third notice is sent, the TNRCC shall terminate this Agreement and request that the attorney general bring action to recover all costs allowed by law. Checks shall be made payable to the Texas Natural Resource Conservation Commission and be mailed along with a transmittal letter stating the Site name, VCP number, and addressed to the Texas Natural Resource Conservation Commission; MC-214; Attention: Cashier; P.O. Box 13088, Austin, Texas, 78711-3088. In the event that this Agreement is terminated for any reason, Applicant A, unless indicated otherwise in Exhibit"A", agrees to reimburse TNRCC for all costs incurred or obligated by the TNRCC before notice of termination of the Agreement. NOTICE OF BANKRUPTCY As soon as Applicant has knowledge of its intention to file bankruptcy or no later than seven days prior to the actual filing of a voluntary bankruptcy petition, Applicant shall notify TNRCC of its intention to file a bankruptcy petition. In the case of an involuntary bankruptcy petition, Applicant shall give notice to the TNRCC as soon as it acquires knowledge of such petition. INDEMNIFICATION .. , ^ �r - 0�'>(��C GEPA UDV TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete The Applicant agrees to indemnify and save and hold the State of Texas, its agencies, successors, departments, agents and employees, harmless from any and all claims, damages or causes of action arising from or on account of, the willful or negligent acts or omissions of the Applicant, its officers, directors, principals, employees, receivers, trustees, agents, successors, subsidiaries over which the Applicant exercises control and assigns in carrying out the activities pursuant to this Agreement. By entering into this Agreement, the Applicant does not assume any liability arising from the acts or omissions of the TNRCC or its agents or employees in carrying out any activities pursuant to this Agreement. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION The effective date of this Agreement shall be the date on which this Agreement is signed by the Executive Director of TNRCC or his/her authorized representative. This Agreement may be amended by mutual agreement of TNRCC and the Applicant. Amendments shall be in writing and shall be effective when signed by the Executive Director of TNRCC or his/her authorized representative. TERMINATION AND SATISFACTION The provisions of the Agreement shall be satisfied when TNRCC gives the Applicant written notice in the form of a Final Certificate of Completion that the Applicant has demonstrated to TNRCC's satisfaction that all terms of this Agreement have been completed, including the selection and implementation of a response action,when appropriate. Nothing in the Agreement shall restrict the State of Texas from seeking other appropriate relief to protect human health or the environment from pollution or contamination at or from this Site not remediated in accordance with this Agreement. 7 r, G�Vr W';--prim ly TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete UJ'liir'fM �( w o , -' e ATTESTED BY SIGNATURES Applicant A �t�, S By: Name: Mike Groomer (sign ture) Date: a I O Title:_Assistant City Manager Applicant B By: Name: Karen Koster (signature) Dater Title: Director,Environmental Services Applica C By: _ ame: Carl Bell (si ture) � r�d � Date: - Title: Chairman Applic D By: Name: Carl Bell (signature) gn Date: ✓�"k-e- Z0 Title: Chairman TNRCC Representative By: _ �,�— Name: (, f�.c Ong (signatur authorized representative) (print or type Date: -713101 Title: l ay A,04(&A Contract Authorization —© � $Date ��D�UrcC�l;� ;a �'�J TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete ILI ^"-- APPENDIX A SUBMITTALS AND SCHEDULES Soils—Risk Reduction Standard 3 • Site Investigation Report—July, 2001 • CEAM or Risk Assessment—60 days from the approval of the Site Investigation Report • Response Action Work Plan—30 Day from the approval of the CEAM or Risk Assessment • Response Action Completion Report—July 31,2002 Groundwater—Risk Reduction Standard 3 • Site Investigation Report—July, 2001 • CEAM or Risk Assessment—60 days from the approval of the Site Investigation Report • Response Action Work Plan—30 Day from the approval of the CEAM or Risk Assessment • Response Action Completion Report—TBD depending on Groundwater Attenuation IuI7 r'r7� 9 1� TNRCC Form 10242-Version 2.2-Revised 7/00-previous versions obsolete I" =" City of Fort Worth, Texas 4Vayor And Council Communication DATE REFERENCE NUMBER LOG NAME PAGE 6/26/01 G-13293 52CLEANUP 1 of 2 SUBJECT VOLUNTARY CLEANUP PROGRAM AGREEMENT FOR 600 NORTH JONES RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an agreement with the Texas Natural Resources Conservation Commission (TNRCC), Cytec Industries, Inc. (Cytec), and Texas Independent Baseball, L.L.C. to enter the former American Cyanamid property (located at 600 North Jones Street) into the TNRCC Voluntary Cleanup Program. DISCUSSION: The City has a contract with Cytec to purchase approximately 34 acres located at 600 North Jones Street for the La Grave Field project. Under the terms of the contract, closing will occur ten days after the property is accepted into the TNRCC Voluntary Cleanup Program (VCP), and the City and Cytec enter into a VCP agreement. By entering into the TNRCC's VCP, the City will be able to establish a timetable and cleanup levels for the property. In return for entering into a VCP agreement, the TNRCC will not bring any enforcement action against the agreement participants for the specific violations that are being remediated under the agreement. The City, Cytec, and Texas Independent Baseball, L.L.C. filed an application to submit 33 acres into the VCP, however the 34th acre could not be entered into the VCP because it is under a TNRCC Agreed Order. As soon as the Agreed Order is terminated, the City, Cytec, and Texas Independent Baseball, L.L.C. will submit an amended VCP application adding the last acre. Once this application is approved, the VCP agreement will be amended to include the last acre. Closing on the property will occur ten days after the VCP agreement is amended to include all of the property. The TNRCC has approved the VCP application for the 33 acres and has presented the City with a VCP agreement. Under the terms of this agreement, the City will reimburse the TNRCC for its costs associated with implementation of this agreement. These costs may include direct and indirect costs of overhead, salaries, equipment, utilities, legal, management, support costs associated with the review of work plans, and oversight of field activities. At this time, it is estimated that the administrative costs incurred under this agreement will be approximately $3,500, including a $1,000 application fee. Although the final site work plan has not been developed or approved by the TNRCC, it is anticipated that the estimated costs associated with the additional assessment work required to bring this site to closure will be approximately $10,000 for the soils assessment, and $60,000 for the groundwater assessment. Existing annual analytical and engineering contracts will be utilized for the services outlined in the work plan, once it is developed. As much work as possible for this project will be funded and performed under the Brownfields program. The timetable for this cleanup program calls for commencement of assessment and remediation activities beginning July 13, 2001, with a completion date to be determined based upon the results of groundwater monitoring. City of Fort Worth, Texas "agar and Council Communication DATE REFERENCE NUMBER I LOG NAME FPAGE 6/26/01 G-13293 52CLEANUP 2 of 2 SUBJECT VOLUNTARY CLEANUP PROGRAM AGREEMENT FOR 600 NORTH JONES FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the Environmental Management Project Fund. CB:k Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) APPROVED Charles Boswell 8511 CITY COUNCIL Originating Department Head: JUN 26 2001 Brian Boerner 8079 (from) R101 539120 052200113000 $3,500.00 ` Additional Information Contact: City Secretary of the City of Fort Worth,Texas Brian Boerner 8079