HomeMy WebLinkAboutContract 36738 r
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CITY STAOy
CON RACT No. 738
STATE OF TEXAS
COUNTIES OF TARRANT
DENTON AND WISE
SECOND AMENDMENT TO THE BROWNFIELDS CLEANUP
REVOLVING LOAN FUND AGREEMENT
CITY SECRETARY CONTRACT NO 35260
THIS Second Amendment to City Secretary Contract No. 35260, is hereby authorized by M&C
C-22552 as approved by the City Council on November 27, 2007 and agreed to by and between
the City of Fort Worth ("City"), a home-rule municipality in the State of Texas, acting through
Carl Smart, its duly authorized Acting Assistant City Manager, and BLG Northside
Development, L.P., hereinafter referred to as"Borrower".
WHEREAS, the City and Borrower entered into that certain Brownfields Cleanup Revolving
Loan Fund Agreement identified as City Secretary Contract No. 35260, (the "Contract")
commencing on May 2, 2007 made pursuant to the Comprehensive Environmental Response
Compensation and Liability Act("CERCLA"),42 USC 9601 et. seq., as amended and the related
regulations found at 40 CFR Parts 31, 35 and 300 ("CERCLA Regulations") with Brownfields
Clean-up Revolving Loan Funds for the clean-up of approximately 33 acres of land in Fort
Worth, Texas known by and through the Contract as the Property;
WHEREAS, on May 31, 2007 the parties entered into a First Amendment to the Contract
identified as City Secretary Contract No. 35344 in order to allow BLG additional time to begin
the cleanup;
WHEREAS, the original Contract between the City and BLG included a cleanup plan, as
reflected in the Response Action Plan (RAP) to the Texas Commission on Environmental
Quality (TCEQ) which specifically delineated the property at 600 North Jones Street into four
project areas (A, B, C, and D) and assigned maximum amounts eligible for reimbursement along
with certain criteria for reimbursement;
WHEREAS, pursuant to the terms of the Contract, the reimbursable amounts assigned to the
project areas cannot be assigned to another area unless and until a final certificate of completion
has been received; and
WHEREAS, BLG has requested that the RAP be amended to allow certain portions of the
property to be capped instead of removing buried material from the Property and that BLG be
allowed to obtain a conditional certificate of completion for Project Area C and Project Area D.
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.08v3
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03-13-08 A07 : 47 IN
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto agree that the Contract shall be further amended
as follows:
1. Revision to the Response Action Plan (RAP) and Related Provisions. The
parties agree that the RAP (Exhibit D to the Contract)shall be amended to allow certain portions
of the Property to be capped (as opposed to the actual removal of buried material from the
property) provided that same: (1) is approved by the TCEQ, (2) is consistent with the terms of
the Continuing Agreement, as amended from time to time, and (3) has received EPA
concurrence. The City agrees to timely provide all required documentation to the EPA for their
concurrence. Once such approvals have been received the revised RAP shall be substituted for
the current Exhibit D and shall be incorporated into this Contract.
2. Definitions, term "Soft Cost(s)" of the Contract is hereby amended and restated
in its entirety as set forth below:
"Soft Cost(s): shall mean those costs that are not Hard Costs associated with the
cleanup of the Property which have a negligible positive impact on the value of the Property to
include but not be limited to, engineering, legal, appraisal, survey, environmental, real estate
consulting, title insurance and other professional fees, permit fees, developer fees, loan fees and
other related fees and expenses supported by such evidence satisfactory to City and which are
eligible for Reimbursement by applicable EPA regulations, which are attached hereto as Exhibit
"A"and allowable under the terms of this Contract.
3. Section 1.2A, Commitment: Reimbursement of Funds of the Contract is
hereby amended and restated in its entirety as set forth below:
"Subject to the terms, covenants, and conditions herein set forth, City agrees to
make Reimbursements, solely from the City of Fort Worth's Brownfields Cleanup Revolving
Loan Fund, for the Hard Costs and Soft Costs incurred by Borrower for the purpose of cleaning
up the Property under this Agreement, as approved by the Site Manager and Fund Manager, of
which the aggregate amount shall not exceed $800,000 in accordance with the RAP. Borrower
shall not be eligible for reimbursement for any cost other than those eligible as set forth in this
Agreement. Allowable expenses for Reimbursement shall be as described in Section 2.2 of this
Agreement."
4. Section 1.2B, Commitment: Use of Funds of the Contract is hereby amended
and restated in its entirety as set forth below:
"The Borrower understands and agrees that except as provided herein, all
Reimbursements provided by City shall be for Hard Costs and Soft Costs incurred by Borrower
to cleanup the Property, or a portion thereof, in accordance with the approved RAP as approved
by the Site Manager and Fund Manager. No Reimbursement of Hard Costs shall be made to the
Borrower without the written confirmation from the Site Manager and the Borrower's Licensed
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.08v3
C I ff V�,`VsU!TAA 1F
Environmental Professional that the work, as designated by the RAP, for which Borrower is
requesting a Hard Cost Reimbursement, has been completed. No Reimbursement of Soft Costs
shall be made to the Borrower without the written confirmation from the Fund Manager that the
work for which Borrower is requesting a Soft Cost Reimbursement has been completed and is
eligible for Reimbursement by EPA regulations, which are attached hereto as Exhibit "A" and
allowable under the terms of this Contract. The obligations of City to make Reimbursement(s)
shall be subject to Article 4."
5. Sections 1.6, Time to Start of the Contract, as amended by City Secretary
Contract No. 35344 is hereby amended and restated in its entirety as set forth below:
"The time to commence cleanup of the Property shall be begin within ten (10)
business days after the date Cytec has given its written authorization via email, letter or facsimile
of its approval to begin clean-up of the Property, and Borrower shall complete and perform all
work on the Project within one (1) year of the date that on-site cleanup activity is initiated by
Borrower, in accordance with the RAP and Project Schedule, unless the U.S. EPA determines
that the cleanup may continue consistent with CERCLA §104(c)(1) and the National
Contingency Plan, 40 CFR §300.415(b)(5) and the Borrower submits such determination in
writing to the City. Borrower shall not be allowed to terminate the cleanup activity as defined in
the RAP, as amended, unless, after the commencement of the cleanup of the Project, Borrower
determines pursuant to Section 2.6.1, that the cost to complete the Project will exceed
$1,700,000.00. Such termination shall not be deemed a default of this Agreement or the Loan
Documents."
This amendment and restatement shall not restart the time to commence the clean-up activity.
The parties agree that the time to commence the cleanup began within ten(10)business days
after the date of Cytec's approval as shown on Exhibit"B"to this Contract.
6. Section 2.1, Property Project Areas of the Contract is hereby amended to revise
Exhibit "C" of the Contract (such revised Exhibit "C" being attached hereto as Exhibit "C"),
which shall depict the newly apportioned delineated areas known as Project Areas B, C and D.
7. Section 2.2.3, Project Areas B, C. and D of the Contract is hereby amended and
restated in its entirety as set forth below:
"City agrees to make Reimbursements for Hard Costs and Soft Costs incurred by
the Borrower and approved by the Site Manager and Fund Manager, for the cleanup of Project
Areas B,C or D,provided that such amount does not exceed$700,000 in the aggregate."
Furthermore, the parties agree that the City's obligation to make a one-time Reimbursement for
the Hard Costs and Soft Costs incurred by the Borrower to obtain a MSD on the Property
pursuant to Section 2.2.1 and the City's obligation to make a one-time Reimbursement for the
Hard Costs and Soft Costs incurred by the Borrower to obtain a COC for Project Area A
pursuant to Section 2.2.2 have been satisfied and the terms of Sections 2.2.1 and 2.2.2 shall not
be amended herein.
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.080
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TEX.
8. Section 2.3, Protect Area Cost of the Contract shall be deleted in its entirety
from the Contract.
9. Section 2.4, Sub-phases of the Contract shall be deleted in its entirety from the
Contract.
10. Section 2.6.1, Grounds for Termination of the Contract is hereby amended and
restated in its entirety as set forth below:
"If, after the commencement of the Project, the Borrower determines that the cost
to complete Project actually exceeds or, in Borrower's estimation, will exceed $1,700,000.00,
Borrower may terminate all activities related to the cleanup of the Project upon written notice to
the City. Such notice shall include a verification, projection, estimate, etc. from the Borrower's
Licensed Environmental Professional, which supports Borrower's election to terminate the
Project pursuant hereto. Upon receipt by the City of such notice, and the expiration of fourteen
(14) days, Borrower may cease and terminate all clean-up activities related to the Property and
Borrower's election shall not be deemed an event of default, provided the Borrower has
complied with this Section 2.6.1. Further, the parties agree that should Borrower elect to
terminate the Project pursuant to this Section, Borrower shall be entitled to a Reimbursement for
its Hard Costs and Soft Costs, provided that such amount does not exceed $800,000 in the
aggregate."
11. Section 3.2, Cleanup Closeout Report of the Contract is hereby amended and
restated in its entirety as set forth below:
"Borrower shall provide notice to the City when the Project is complete. The
notice shall contain documentation as necessary to prepare a Cleanup Closeout Report developed
in accordance with Section 300.165 of the NCP and all applicable EPA guidance. This report
shall summarize the actions taken, the resources committed and the problems encountered in
completion of the project, if any."
12. Section 3.4, Permits and Fees of the Contract is hereby amended and restated in
its entirety as set forth below:
"Borrower, at its sole cost and expense, shall be responsible for obtaining all
permits, licenses, approvals, certifications and inspections required by federal, state or local law
and to maintain such permits, licenses, approvals, certifications and inspections in current status
during the term of this Agreement. The parties agree that all amounts expended by Borrower
pursuant to this Section shall be designated as Soft Costs, and shall be reimbursed by City
pursuant to the terms contained herein.
13. Section 4.2(a), Reimbursements of the Contract is hereby amended and restated
in its entirety as set forth below:
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.080
"Borrower shall submit a written request for Reimbursement for the actual Hard
Costs and Soft Costs incurred for the cleanup of the Property in accordance with the RAP. The
parties agree that all costs incurred in the cleanup of Project Areas B, C and D as approved by
the Site Manager and Fund Manager will be eligible for Reimbursement immediately after said
costs are incurred by Borrower, provided that: 1) such Reimbursements do not exceed $700,000
in the aggregate; and 2)the request for Soft Cost Reimbursement is allowable by applicable EPA
regulations, which are attached hereto as Exhibit"A" and the terms of this Contract. The parties
agree that the City shall not be required to make Reimbursements more than once per month."
14. Conditional Certificate of Completion. Notwithstanding anything to the
Contrary in the Contract, the parties agree that Borrower shall be allowed to obtain a conditional
certificate of completion for Project Area C and Project Area D pursuant to the RAP, and same
shall be considered sufficient for purposes of this Contract. Nothing herein shall relieve the
Borrower from the obligation to obtain a final COC on Project Area B.
15. Security for the Loan. The parties agree that upon execution of this
Amendment, Borrower shall simultaneously place as security of the Loan, collateral equal to or
greater than the amount of$800,000, in accordance with paragraph 5(2)of the Contract.
16. Documentation. If Borrower elects to terminate the cleanup of the Property as
described herein, Borrower shall immediately submit to the City, copies of all documentation
related to the investigation and the cleanup of the Property.
17. Miscellaneous. Nothing contained herein shall be deemed to amend or modify
the Contract, except as expressly set forth herein. Any defined term used herein, but not defined
herein, shall have that meaning set forth in the Agreement. In the event of a conflict between the
terms of this Amendment and the Contract,the terms of this Amendment shall control.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.08v3
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IN WITNESS WHEREOF,this Amendment has been executed as of the date both parties have
fully signed the Amendment and is effective on such date.
CITY OF FORT WORTH: BORROWER:
BLG Northside Development, L.P.
By: BLG Northside Properties,LLC,
its general partner
C Car W. Bell, President
A gting Assis City Manager D
Date: 3 /3- 2a0ow Date: a 1�
Approve as to L rm f S:
i
Christa W Lopez
Assistant City Attorney Name: SE'
Attest;
Contract huthorizatiq=
Marty Hendrix
City Secretary " 2 7—
Date
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.08v3
Exhibit"A"
Brownfield Cleanup Revolving Loan Fund (BCRLF)
Allowable Expenses and Non-Allowable Expenses per EPA Guidelines and Regulations
Allowable Expenses:
• Actions associated with removing,mitigating,or preventing the release or threat of a release of a
hazardous substance,pollutant,or contaminant(as appropriate to different site situations), including:
o Fences,warning signs,or other security or site control precautions;
o Drainage controls;
o Stabilization of berms,dikes,or impoundments or drainage or closing lagoons;
o Capping of contaminated soils;
o Using chemicals and other materials to retard the spread of the release or mitigate its
effects;
o Excavation,consolidation,or removal or highly contaminated soils from drainage or
other areas;
o Removal of drums,barrels,tanks,or other bulk containers that contain or may contain
hazardous substances,pollutants,or contaminants;
o Containment,treatment,disposal,or incineration of hazardous materials;
o Provision of alternative water supply where necessary immediately to reduce exposure to
contaminated household water and continuing until such time as local authorities can
satisfy the need for a permanent remedy;
• Site monitoring activities, including sampling and analysis,that are reasonable and necessary during
the cleanup process,including effectiveness of cleanup ie: Eco-Risk Assessment;
• Costs associated with meeting public participation requirements;
• Environmental insurance- no percentage cap;
• Costs associated with MSD application and Certificates of Completion(COC)are allowable costs
because they are directly associated with cleanup activities;
• Administrative costs of cleanup— 10%cap ie: legal and professional consultants fees;
• Costs related to the preparation of Closure Reports,the Response Action Plan(RAP),the Response
Action Completion Report(RACR)and the Response Action Effectiveness Report(RAER).
Non-Allowable Expenses
• Pre-cleanup environmental response activities,such as site assessment,identification,and
characterization;
• Cleanup of a naturally occurring substance,products that are part of the structure of and result in
exposure within the residential buildings or business or community structures(ie: interior lead-based
paint contamination or asbestos which results in indoor exposure), or public or private drinking water
supplies that have deteriorated through ordinary use;
• Monitoring and data collection necessary to apply for,or comply with environmental permits under
other Federal and state laws,unless such a permit is required as a component of the cleanup action;
• Development activities that are not removal actions(ie: construction of a new facility or marketing of
property);
• Reporting and regulatory correspondence activities are not allowable expenses except as otherwise
provided herein(ie: APAR).
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.080
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EXHIBIT "B"
EYTEE
CYTEC INDUSTRIES INC.
5 Garret Mountain Plaza
West Paterson,NJ 07424
973.5694009
May 31,2007
Michael A.Gange
Assistant Director
Environmental Management Department
City of Fort Worth
1000 Throckmorton Street
Fort Worth,Texas 76IO2
RE:RAP—Former Cytec Property
Dear Michael:
Thank you for arranging the conference call on May 30,2007 with representatives from Shaw
Environmental,BLG Northside Development Group and the City of Fort Worth to discuss the proposed
investigative test pit program on the waste management areas on the former Cytee property.
Based on the scope of work and procedures outlined in your e-mail,dated May 25,2007 and our discussion
during the conference call,Cytec does not object to the proposed test pit program for areas PRAA C(East
Disposal Area)and PRAA D(South Disposal Area)and the proposed work may proceed. It is understood
that the up to 15 test pits will be excavated in each area for the purpose of waste classification sampling and
visual observation of the field conditions,and that the excavated material will be placed back in the
excavation following sampling and observation at the end of each working day. We also understand that
actual field conditions may indicate the need to excavate additional areas to delineate the lateral extent of
the waste materials.
Nothing in the letter shall modify any term or condition of the Continuing Agreement by and between
Cytee and the City of Fort Worth.
We look forward to receiving data and findings from the test pit program. if you have any questions,
please do not hesitate to contact me.
Sincerely,
CYTEC INDUSTRIES INC.
400-4
Anton C.Marek,P.E.
Director,Remediation
cc: T.Mesevage-Cytee
T.Marrou—B&C
Fort Worth test pit program 053107
Exhibit"C"
Revised Exhibit"C"
Second Amendment to BCRLF Agreement
Execution Copy CRL 3.07.080
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 11/27/2007
DATE: Tuesday, November 27, 2007
LOG NAME: 52BCRLFAMEND REFERENCE NO.: C-22552
SUBJECT:
Authorize Execution of the Second Amendment to the Brownfields Cleanup Revolving Loan Fund
Agreement with BLG Northside Development, L.P., City Secretary Contract No. 35260, for the
Environmental Cleanup of Approximately 33 Acres Located at 600 North Jones Street
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute the Second Amendment to
the Brownfields Cleanup Revolving Loan Fund Agreement with BLG Northside Development, L.P., City
Secretary Contract No. 35260, for the Environmental Cleanup of Approximately 33 Acres Located at 600
North Jones Street to allow for a revised clean up plan at the request of the Borrower, BLG.
DISCUSSION:
On May 2, 2007, the City Council approved the Brownfields Cleanup Revolving Loan Fund Agreement with
BLG Northside Development, L.P., (BLG), M&C C-21938, City Secretary Contract No. 35260, in the amount
of $800,000, on a reimbursement basis. These funds were granted to the City in 2001 by the U.S.
Environmental Protection Agency to allow the City to make loans for the environmental cleanup of
Brownfield sites to qualified borrowers. A First Amendment was executed on May 31, 2007, to allow BLG
additional time to begin the cleanup, City Secretary Contract No. 35344.
The original loan agreement between the City and BLG included a cleanup plan, as reflected in the
Response Action Plan (RAP) to the Texas Commission on Environmental Quality (TCEQ) which specifically
delineated the property at 600 North Jones Street into four project areas (A, B, C, and D) and assigned
maximum amounts eligible for reimbursement along with certain criteria for reimbursement. The amounts
assigned to the project areas for reimbursement could not be shifted to another area unless and until a final
certificate of completion had been received. BLG has requested that cleanup plan be amended to allow
certain portions of the property to be capped instead of removing dirt from the property and that BLG not be
required to obtain a final certificate of completion for project area C but shall be required to obtain a
conditional COC. Provided such amended action is approved by TCEQ and the EPA, it is recommended
that the loan agreement be amended to allow for such action and reimbursement of funds.
Additional terms and conditions of the Second Amendment shall include the following:
1. Soft costs shall now be eligible for reimbursement pursuant to the same terms and conditions of
reimbursement for hard costs contained in the BCRLF Agreement and Note, within allowable EPA limits;
2. Section 2.3 of the loan agreement shall be deleted and the Second Amendment will not limit the amount
of hard costs which may be expended and/or reimbursed for individual project areas B,C, and D;
3. If the cost to complete the cleanup/capping will exceed the sum of$1,700,000.00, BLG may, upon written
notice to the City and verification from BLG's Licensed Environmental Professional, terminate its cleanup
activity. If BLG terminates, then BLG shall immediately submit to the City copies of all documentation
related to the investigation and the cleanup of the property; and
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 3/14/2008
Page 2 of 2
4. In exchange for the City agreeing to these new terms, upon execution of the Second Amendment, BLG
shall simultaneously place as security of the loan, collateral equal to or greater than the amount of
$800,000.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Libby Watson (6183)
Originating Department Head: Brian Boerner(6647)
Additional Information Contact: Christa Lopez (8984)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 3/14/2008