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HomeMy WebLinkAbout2001-07-23 01-297 ORDERItem No. 01-297 Date: July 23 2001 Item/Subject: ORDER, Authorizing the City Manager to Execute a MemoraMum of Agreement with the State of Maine - Penobscot River Clean Up Responsible Department Legal The City of Bangor has had some initial assessment of the environmental problems in the Penobscot River. Further environmental study and assessment is needed for the determina0on of the appropriate remediation of the river botmm. The Agreement with the State includes the State's financial commitment to contribute to the cost of this phase of the environmental assessment. Departrnent Head Manager's Comments: Fob r,ai-44H & Ciry Manager Associated IMormatmw Q /`� /. aty Solic for Inrlu=f,or Passage Rounding- Page �of� _ First Referral Referral 01-292 Assigned to COWoilw Palma[ July 23. 2001 CITY OF BANGOR (MLE.) Authorizing the City Manager to Execute a Memorandum ofAgreement with the State of Maine — Penobscot River Clean Up Ey dre ab [burro/ wme Ory of Affingon ORDERED, THAT the City Manager Is hereby authorhed, on behalf of the City of Bangor, to execute a Memorandum of Agreemem with the State of Maine for additional environmental assessment of the Penobscot RNer for the purpose of the clean up of the River. A CIW CO09CIL July 23, 2001 Mtion Made and seconded (TITLE,)Anrn...�4�..a n_ma •_ Execute a mancravdw o£ Ureemeut Hth tte State of M iue — Penobscot River Clean O Assigned Vo fCCoouuncllor l✓ —0 al_291 COPA MEMORANDUM OF AGREEMENT BETWEEN THE STATE OF MAINE AND THE CITY OF BANGOR REGARDING INVESTIGATION OFA SITE LOCATED IN THE CITY OF BANGOR ENOWN AS THE BANGOR LANDING SITE This Agreement is made and entmed into by and among the CITY OF BANGOR P'City'l a body corporate and politic and a political subdivision of the State of Maine, and the STATE OF MAINE ("State"), including the MAINE DEPARTMENT OF ENVBIONMENTAL PROTECTION ("Department"); WITNESSETH: WHEREAS, from approximately 1851 to 1963, the Bangor Gas Works operated a manufactured gas plant within the confines of the City of Bangor adjacent to the Penobscot River and near the so-called Bangor Landing; and WHEREAS, as a consequence of the manufacrure of gas, the Bangor Gas Works generated a substantial quantity of tar and WHEREAS, the City acquired the Bangor Gas Works after the manufactured gas plant had ceased operations; and WHEREAS, the City removed certain above -ground structures at the Bangor Gas Works in approximately 1909 through 1960, under supervision of the Department; and WHEREAS, the City submitted a voluntary remediation action plan to the Department with respect to the Bangor Gas Works in the early to mid- 19Ws, and subsequently, the Department certified completion of the remedial actions required by that plan, however, the plan did not address deposits of in in the Penobscot River near the Bangor Landing ("Bangor Landing Site'or "Site'); and WHEREAS, on" about June 4, 1999, the City enterer into an Enviromnental and Professional Services Agreement ("Services Agreement') with RMT, lac, an enviromnental engineering and consulting firm, to investigate contain environmental impacts in and near the Penobscot River adjacent to the Site; and WHEREAS, RMT, following field analysis, identified a substantial deposit oftar ,in the Penobscot River at the Bangor Loading Site; and WHEREAS, RMT has suggested to the City that an Additional River Investigation should be undertaken to more accurately identify the vertical and horizontal extent of the tar deposit in the Penobscot River and to assess the fbickness of other layers of sediment which may be overlying the tar deposit; and - WHEREAS, in addition, RMT has suggested to the City that an Ecological Risk Assessment and a Human Risk Assessment should be conducted regarding the constituents of concern present in the sediments and surface waters of the Penobscot River in the area described above. RMT has also recommended that Target Cleanup 3.evels based on these risk assessments be developed and that a feasibility Study be conducted to assess remediation options concerning the our deposit; and WHEREAS, without admitting any fact, responsibility, fault or liability in connection with the Site, the City has interest in further conducting the Additional Site Work described above with a view towards future remediation of the Penobscot River as well as providing a factual basis for arranging for contribution and/or indemnification of the City's response cogs from any potentially responsible petty, and 2 01-297 01-297 WHEREAS, the City has incurred costs of approximately $220,000.00 for the site investigation and characterization work performed by RMT and has incurred site related costs, including these site investigation costs, totaling in excess of $315,000.00; and WHEREAS, the City has asked the State to assist the City in funding or conducting the Additional Site Work and the State has an interest in seeing that the Additional Site Work is conducted with a view towards future remediation of the Penobscot River;- NOW EFORE, in consideration of the mutual covenants and promises contained herein, in addition to other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. GENERAL AUTHORITY The Department enters this Agreement pursuant to legal authorities including, but not limited to, the Maine Hazardous Waste, Septage and Solid Waste Management Act, 38 M.R.S.A. §§ 1301 et sal. and the Maine Uncontrolled Hazardous Substance Sites Act, 38 M.R.S.A. §§ 1361 though 1371. 2. ADDITIONAL SITE WORK 2.1 RMT Retained. The Citywill continue to retain and payR T as an environmental contractor pursuant to the Services Agreement to oversee portions of the Additional Site Work 12 RMT to Conduct Oversee Certain Parts of Additional Sit Work. RMT will - conduct or subcontract for the performance of the Additional River investigation, Ecological .Risk Assessment and Human Health Assessment and Feasibility Study described above (and more particularly described in the attached scope of work). RMT shall have the authorityto select appropriate consultants and contractors to perform this work provided that all such 3 01-29] consultants and contractors arc qualified to perform the work for which they are selected and are approved in advance by the Parties hereto. Prim to conducting any portion of the work or entering any subcontract, RMT will submit a work plan regarding that portion of work or subcontract to both of the Parties and will only proceed to enter the contract after that work plan is approved by both Parties. The City will pay all subcontractors. All approved work plans and the schedules contained therein ere incorporated into this Agreement as though set forth in full. 2.3 DEP to Conduct or Oversee Certain Potts ofAdditional Site Wodc. The Department will conduct or contract for the performance of the Archeological Survey, the establishment of Target Cleanup Levels and the selection of one or more remedial options. 2.4 Access to the Site. To the extent that the parties control legal title and/or custody and control over purchase of the Site, the Parties hereby grant w one another and to the Parties, consultants and contractors and subcontractors, including but not limited to RMT, reasonable access to these areas to the extent necessary to implement this Agreement. The Deportment will also have the right to have representatives present at the Site during any field work and will receive prior notice of and may participate in any meetings between the City and any other state or federal govemmenml agency or other entities with respect to the Site or the work conducted under this Agreement. 2.5 CerificationofCompletion ofthe Work. After submitting final copies of all Mons studies or other deliverables called for by the work plans described above to the Parties as provided elsewhere in this Agreement, RMT and any subcontractor conducting any porion of the Additional Site Work shall certify to the Parties, upon completion of the work, that the work was conducted in accordance with this Agreement and the associated work plan, as approved by the Panies. 4 01-29] 3. DURATION OFTHEAGREEMENT 3.1 The Agreement shall become effective upon approval of the Bangor CityCouncil and execution by the City and the State, acting through the Department. 3.2 The Agreement may be terminated before the completion of the work described berein, if the City and the State, acting by and through the Department, so agree in writing. 3.3 The Agreement is terminated upon the Panies'appmval of the certificates of completion submitted pursuant to section 2.5 above and all payments related thereto. In any event, this Agreement shall terminate on or before June 30,203 unless extended by consent of the Parties. - 4. COSTSOFTHEWOREl 4.1 AmountofPavment. The City agrees to be responsible for all costs incurred by RMT and any subcontractor retained by MT for the Additional Site Work performed by RMT and these subcontractors under this Agreement. 4.2 Reimbursement of City's Expenses. Within forty-five (45) days after a certification of completion of work submitted pursuant to section 2.5 above is approved by the Parties, and the City provides proof of payment of that contractor or subcontractor for the work certified by the Partes, the Department will reimburse the City in the amount set forth in the proofofpaymmt or shag invoke the Issue Resolution procedures described below. Ifthe Department disputes only a portion of the rNuested reimbursement, it shall pay the City the undisputed amount within an additional 45 days. Nothing in this agreement shall be deemed to abrogate any provision of the existing Services Agreement or other pre-existing contmcmal arrangements between the City and RMT. 5 01-29] 4.3 Issue Resolution. Any issues regarding this Agreement shall be resolved in the first instance by the State's Remedial Project Manager ('RPM") and the City's Remedial Project Coordinator (RPC'). Any disagreements that cannot be resolved within 10 working days through the best efforts of the RPM and RPC, at the written request of either or both the RPM and RPC, shall be elevated for resolution by the Director of the Department's Division of Remediation and the City's Solicitor. Disputes not resolved at this level within fifteen (15) working days after elevation of the dispute shall be elevated to the City's Mayor and the Commissioner of the Department of Environmental Protection for f al resolution. The Parties agree that the decision of the Commissioner shall be binding. - 4.4 Can on State Payments. Notwithstanding any other provision of this Agreement, the maximum amount to be expended by the State ander to this Agreement will be $250,000.00. Provided, however, tht the parties may agree to increase this amount by mutual written consent or by entering into new contract addressing further work to be done at the Bangor Landing Site, 4.5 Ffannin . The State of Maine has provided funding to the Department for its obligations pursuant to this Agreement. Ifthese funds are not sufficient, the Department agrees to seek sufficient additional funding througb the budgetary process. No provision of this Agreement shall be interpreted to require obligation or payment of funds in violation of applicable State law. S. ENFORCEMENT, LITIGATION AND COST RECOVERY 5.1 Rebts Reserved aeainst PRPs. The City and the State may be entitled to assert claims against a third party or partes (herein referted to as the'potentially responsible party 'PRP; whether me or more partied) for reimbursement of any moneys or any other thing of value expended by the State or the City regarding the Site, including but not limited to, costs i o1-297 incurred pursuant to this Agreement, This Agreement does not constitute a waiver of the State's or the City's right to bring an action against any other person or persons for liability under section 109 ofCERCLA, the Maine Uncontrolled Sites Law or any other statutory provision or common law. 5.2 Coordination ofRe'mbursement Efforts The City and the State hereby agree that they shall cooperate in and coordinate efforts to recover their respective response costs incurred at the Site, including providing the other Party notice of a proposed settlement with and/or the filing and mmagemmt ofanyjudicial acfions against a PRP. Provided, however, if one Party declines to pursue one or more PRPs, nothing in this Agreement shall preclude the other Party from pursuing ;how PRPs, and the abstaining Party shall not thertafter share in the expenses or benefits resulting therefrom. 6. PROJECT SCHEDULE AND CHANGES The Parties expressly contemplate that schedules will be prepared in Conjunction with the work plans for the Additional Site Work called for in this Agreement, Any work plan schedule may be adjusted by agreement of RMT, the City las expressed by the RPC) and the Department (as expressed by the RPM), without a formal amendment to this Agreement, unless the adjustment will cause an extended delay to completion of the schedule. Changesthat sigdficanlly alter the scope of the work, thereby effecting the Parties' ability to meet the terms and conditions of this Agreement, shall necessitate a written amendment to the Agreement. 9. MUTUAL RELEASE 9.1 Release. The City and the Department release one another as well as their officers, directors, and employees, past, present and future, for any and all claims or can= of action relating to the Additional Site Work performed under this Agreement Provided, however, 01-29] the City and the Department do not release each other from liability arising out of negligent or intentional acts or omissions in the performance of the Additional Site Work. S. NEGATION OF AGENCY RELATIONSHIP - Nothing contained in this Agreement shall be construed to create, either expressly or by implication, the relationship of agency between the City and the State or the Department or between the State or the Department and RMT. The City (including its employees, agents and contractors) is not authorized to represent or act on behalf of the State or Department in any matter relating to the subject matter of this Agreement, and the Sate or Department are not authorized to represent or act on behalf of the City in any matter relating to this Agreement. 9. .,DELIVERY OF DOCUMENTATION The City shall deliver or shall cause RMT and any subcontractor to deliver to the Department's RPM copies of all draft and final reports concerning the Additional Site Work within a reasonable time after such documents are generated as well as, upon request, copies of all supporting data and documentation. The Department shall deliver to the City and RMT copies of all correspondence, Mons, data or documentation received from any person (other than the City or RMT or its subconbactors) concerning the Additional Site Work. Eacb Party shall also deliver to the other parties all conespondence which that Parry and/or the selected cunsulants or contractors have exchanged with any federal, stale, or local regulatory agency concerning the Additional Site Work. 10. STATUS MEETINGS The Parties will conduct meetings at least once each calendar quarter regarding the seams oftheSite, at a time and location mutually agreeable to the Parties. The Cityshallcause AMTto attend such status meetings, to update and inform the City and the Department about the progress i O1-297 ofthe work at the Site. The City and the Department, or either of them, may at their sole option, waive their right to meet with RMT at anytime, or may request that meetings be conducted on a less@equedt than quarterly basis. The City and the Detrainment may contact RMT on reasonable basis to obtain verbal updates concerning the status of the Site. 11. NOTICES All written notices and documents,data and other materials submitted under this Agreement sball be deemed given when received, and shall be delivered to the addresses set forth below either by: (i) facsimile, (ii) first class mail, (iii) overnight delivery, or (iv) band delivery. Ifto the City. Imes Ring. Remedial Project Coordinator City Engineer CityofBangor 73 Harlow Sued Bangor, ME 04401 with a copy to: P. Andrew Hamilton, Esq. Eaton, Peabody, Bradford &Veague, P. A. P. O. Box 1210 Budget, ME 04402-1210 Iftothe Department; Kathy D. Nivolek, Remedial Project Manage. Division of Sites Remgliation Bureau of Remediation and Waste Management Maine Department of Environmental Protection ❑ State House Station Augusta, Maine 04333-0017 with a copy to: 01-29] Demos f. Hamisle Esq. Assistant Attorney General Office of the Attorney General 6 State House Station Augasla, ME W333-0006 or at such other address(es) as the Parties may from time to time hereafter designate by like notice. 12. NO ADMISSION OF LIABILITY This Agreement and the allocation of costs and work as set forth herein are intended solely to provide for a means of payment for and participation in the Additional Site Work. The Parties do not admit any liability for conditions at or near the Site, and nothing contained herein shall be deemed or construed to be an acknowledgment of liability by either Party under any federal, state, or local law, regulation, rale, or ordinance, or under any other principle of law. Nothing contained herein, and noaction taken pursuant to this Agreemem, shall be deemed or constroed in any maturer to establish any allocation of responsibility for any liability, damage, or loss of my kind, includinge without limitation, response costs which may be associated with the Site or property affected by previous operations at the Site. 13. ASSIGNMENT This Agreement and the rights, duties and obligations bemunder may not be delegated, transferred,orassignedbyany Partywithoutlheprorw ttmconsmtoftheother Paries. Any. assignee or transferee proposed by any Parry shall expressly assume all of that Parry's duties, liabilities and obligations under this Agreement by written instrument delivered to the Parties at or before the time any such consent is requested. 10 01-297 14. GENERAL PROVISIONS 14.1 No failure ofmy Party to this Agreement to exercise any power givm, hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of either Party's right to demand exact compliance with the terms hereof. 14.2 Any amendment to this Agreement shall not be binding upon any of the Parties hereto unless such amendment is in writing and executed by both the State acting by and through the Department and the City. 14.3 The provisions of this Agreement shall more to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. 14A Time is ofthe essenceinthis Agreement. 14.5 This Agreement and all amendments hereto shall be governed by and enforced and construed under the laws of the State of Maine. An This Agreement maybe executed in multiple counterparts, each ofwhich shall constitute an original, but all of which taken together shall constitute one and the same Agreement. The executed signature pages of my counterpart hereof may be appended or attached to my other com[erpart hereof, and, provided that all Parties hereto shall have executed a counterpart hereof, this Agreement shall be valid and binding upon the Parties notwithstanding the fact that the execution of all Parties may not be reflected upon my one single counterpart. 14.7 All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all genders, the singular shall include the plural and vice versa The headings inserted at the beginning of each Section are convenience only, and do not add to or subtract from the meaning Of the contents of each Section. 01-297 14.8 No provision of this Agreenmt shall be construed against or interpreted to the disadvantage of any Parry by any court criudicial or other govemmemal authority by mum of such Party's having been deemed to have structured, written, drafted, or dictated such provision. 14.9 With the exception of the agreements referenced in paragraph 12, this Agreement contains the entire Agreement ofthe Parties on the subject matter herein, and no representations, inducements, promises, or agreements, oral or otherwise, between the Parties not embodied herein shall be of any force or effect. 14.10 The PaAes expresslyacknowledge and agmethat, notwilosmmdinganystatutory or decisional law to the contrary, the printed product of a facsimile transmittal shall be dee ned to be'Written" and a'Writing" for all purposes of this Agreement. 15. DAY FOR PERFORMANCE Wherever herein there is a day or time period established for performance or such day or the expiration of such time is a Saturday, Sunday, or holiday, then such time for performance shall be automatically extended to the next following business day. 16. SEVERABILITY This Agreement is intended to be performed in accordance with, and only to the "tent Permitted by, all applicable laws, ordinances, tales and regulations. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect in a final ruling orjudgmeat of a court of competent jurisdiction. mm which no appeal has been or can be taken, this Agreement shall not terminate and there shall be immediately substituted for such invalid or unenforceable provision a like but valid and enforceable provision which most nearly satisfies the ruling of such court and comports with the original intention of the Parties. IPJ 01-29] TN WITNESS WHEREOF, the aty and the State acting by and throuSh the Department have executed under seal, or caused to be executed under seal, this Agreement. CITY OF BANGOR ` / Must: �V%0L By: 9Cf U. fx/9' STATE OF MAINE, DEPARTMENT OFENVIRONMENTA PROTECTION Dated: 04, 0 / By. •�+�'� Iss >y (k m�4ie-