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HomeMy WebLinkAbout125611 RESOLUTION NO. 12,561 2 3 A RESOLUTION TO AUTHORIZE THE CITY MANAGER TO EXCECUTE AN 4 ELECTIVE SITE CLEAN -UP AGREEMENT BETWEEN JBD INC., ARKANSAS 5 DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE CITY AND A RELATED 6 INDEMNITY AGREEMENT WITH JBD INC. ; AND FOR OTHER PURPOSES. 7 8 WHEREAS, JBD Inc. ( "JBD ") is the tenant of property known as the former Jacuzzi plant site 9 that is nominally owned by the City for Act 9 bond purposes, a portion of which property it subleases to 10 Franklin Pump Systems, Inc., and 11 WHEREAS, after performing several environmental site assessments and samplings, JBD seeks 12 to voluntarily enroll the property into the Elective Site Cleanup Program of the Arkansas Department of 13 Environmental Quality ( "ADEQ "), and 14 WHEREAS, if ADEQ and the City agree to the elective site clean -up proposed by JBD, JBD will 15 implement the remedial activities outlined in the proposal and clean up the site as necessary to 16 protect human health and the environment from releases of hazardous substances or pollutants at or 17 from the property, all to the satisfaction of ADEQ, and 18 WHEREAS, under the controlling lease for the property, the City as lessor is required to join, 19 when necessary, in the application for any permit or authorization related to any repair or alteration 20 of the property but the lessee is required to indemnify and hold the City harmless against and from all 21 costs and expenses, and 22 WHEREAS, JBD proposes to hold harmless and indemnify the City from all such costs and 23 expenses through an indemnity agreement, and 24 WHEREAS, it is in the public interest that the property be cleaned up by JBD at JBD's cost and 25 expense and that the City be indemnified against such cost and expense. 26 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE 27 ROCK, ARKANSAS: 28 Section 1. The Board of Directors hereby authorizes the City Manager to enter into an elective 29 site clean -up agreement with JBD Inc. and the Arkansas Department of Environmental Quality regarding 30 Franklin Pump Systems, Inc. and property located at 12401 Interstate 30, Little Rock, Arkansas, in 31 substantially the same form as that attached as Exhibit A to this resolution. 32 Section 2. The Board hereby also authorizes the City Manager to enter into a related 33 indemnity agreement with JBD Inc. regarding the property located at 12401 Interstate 30, Little Rock, 34 Arkansas, in substantially the same form as that attached as Exhibit B to this resolution. 35 Section 3. Severability. In the event any title, section, paragraph, item, sentence, clause, 36 phrase, or word of this resolution is declared or adjudged to be invalid or unconstitutional, such [PAGE 1 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 declaration or adjudication shall not affect the remaining portions of the resolution which shall remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional were not originally a part of the resolution. Section 4. Repealer. All laws, ordinances, resolutions, or parts of the same, that are inconsistent with the provisions of this resolution, are hereby repealed to the extent of such inconsistency. ADOPTED: August 6, 2007 ATTEST: Nancy Wood, gty Clerk APPROVED AS TO LEGAL FORM: Thomas M. Carpenter, Ci y Attor y ►/A ►/A 1/ II Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. [PAGE 2 OF 12] APPROVED: Mark Sto ola, Mayor I 2 3 4 5 6 7 8 9 10 11 12 13 14 EXHIBIT "A" ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: PARTICIPANT: JBD INC. REGARDING: FRANKLIN PUMP SYSTEMS, INC. 12401 INTERSTATE 30 LITTLE ROCK, AR 72209 AFIN 60 -00080 ELECTIVE SITE CLEAN -UP AGREEMENT LIS 07- 15 This Elective Site Clean -up Agreement (hereinafter "ESCA ") shall establish remedial 16 requirements for JBD Inc. (hereinafter "Participant ") associated with the elective site 17 cleanup of the JBD Inc. facility located at 12401 Interstate 30, Little Rock, Pulaski 18 County, Arkansas (hereinafter the "Property "). This ESCA is entered into by the 19 Participant and the Arkansas Department of Environmental Quality (hereinafter 20 "ADEQ ") voluntarily and pursuant to the authority of the Hazardous Waste 21 Management Act (Act 406 of 1979, as amended; Ark. Code Ann. § 8 -7 -201 et seq.), the 22 Arkansas Remedial Action Trust Fund Act (Act 479 of 1985, as amended; Ark. Code 23 Ann. § 8 -7 -501 et seq.) and the Arkansas Pollution Control and Ecology Commission 24 (hereinafter "APC &EC ") Regulation Number 23, Hazardous Waste Management, 25 (hereinafter "APC &EC Regulation No. 23 "). The Participant and ADEQ hereby agree 26 and stipulate that the Findings of Facts be entered herein. 27 Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. [PAGE 3 OF 12] 1 FINDINGS OF FACT 2 1. The site is located at 12401 Interstate 30, Little Rock, Pulaski County, Arkansas, 3 39.4 acres in part of the SW 1/4 of the NW 1/4, Section 9, Township 1 South, Range 4 13 West, with latitude and longitude to the decimal degree of 5 34.646700/92.420000. 6 2. The property is currently owned by the City of Little Rock, leased by JBD Inc., 7 and a portion of the property is sublet to Franklin Pump Systems, Inc. The site is 8 currently active. 9 3. Franklin currently manufactures and tests water and sewage pumps and 10 associated equipment. Franklin began operations in October 2004. Previously, 11 JBD manufactured and tested water pumps and associated products. Jacuzzi 12 Brothers, Inc. initially developed the site in the early 1960's. 13 4. On June 7, 2005, the Participant voluntarily submitted a letter of intent, which set 14 forth the Participant's desire to enroll the Property into the ADEQ's Elective Site 15 Cleanup Program. 16 5. On June 7, 2005, a Sampling and Analysis Plan was submitted to ADEQ based on 17 the following supporting documentation: 18 i. Phase I Environmental Site Assessment (9/28/04 EnSafe); 19 20 ii. Phase II Environmental Site Assessment (10/2/04 EnSafe); 21 22 iii. Summary of Soil Excavation and Disposal Activities (1/10/05 23 Genesis /Terracon); 24 25 iv. Limited Site Investigation Report (2/24/05 Genesis /Terracon); and 26 27 V. Proposal to Excavate and Dispose of Contaminated Soils (3/1/05 28 Genesis /Terracon). 29 30 After ADEQ reviewed the foregoing documentation, additional work was 31 performed by JBD, documented as follows: [PAGE 4 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. 1 vi. Limited Site Investigation Letter Report (9/25/06 Terracon). 2 3 AGREEMENT 4 1. Upon receipt of written approval from ADEQ, the Participant shall within sixty 5 (60) calendar days implement the remedial activities outlined in the Proposal to 6 Excavate and Dispose of Contaminated Soils (3/1/05 Genesis /Terracon) and the 7 Limited Site Investigation dated September 25, 2006 (collectively, hereinafter 8 "Work Plan "). A Remedial Plan (hereinafter "RP ") completion report 9 documenting the results of the implementation of remedial activities shall be 10 submitted to ADEQ within thirty (30) calendar days following completion of 11 remedial activities implementation. 12 2. If ADEQ determines RP implementation fails to accomplish remediation 13 sufficient to protect human health or the environment based on a risk -based 14 approach, Participant shall, upon receiving written notification of this failure 15 from ADEQ, conduct any additional remedial activities ADEQ determines 16 necessary to protect human health and the environment from releases of 17 hazardous substances or pollutants at or from the property. 18 3. Participant shall within thirty (30) calendar days of notification by ADEQ file a 19 deed restriction for all or a portion of the Property, if necessary, as determined 20 by ADEQ, to restrict the use of all or a portion of the Property to activities and 21 compatible uses which will be protective of human health and the environment 22 and protect the integrity of any remedial action measures implemented on the 23 Property. A copy of the deed restriction shall be submitted by the Participant 24 within forty -five (45) calendar days of the date that ADEQ notifies the 25 Participant that the deed recording is required. 26 4. Upon approval of the completion report, and receipt of the deed restriction if 27 required, ADEQ will issue a "No Further Action Determination" to the [PAGE 5 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. I Participant. A "No Further Action Determination" is a letter issued by ADEQ 2 stating ADEQ has no further requirements related to the investigation of the 3 identified area(s) of concern of hazardous substances at the Property. Please be 4 aware that a "No Further Action Determination" will be conditioned on a 5 specific property use or uses (residential, industrial or commercial) and might 6 include land use controls that include, but are not limited to: 1) maintenance of 7 existing pavement or ground cover; 2) use of air monitoring instruments during 8 excavation; and 3) a deed restriction on use of groundwater beneath all or a 9 portion of the Property for any use. 10 5. Throughout the ESCA process, the Participant shall take all steps necessary to 11 prevent aggravating or contributing to the contamination of the air, land, or 12 water, including downward migration of contamination from any existing 13 contamination on the site. The term "existing contamination" shall include any 14 contamination set forth in the Work Plan and RP submitted by the Participant 15 and approved by ADEQ. The Participant shall not use or redevelop the site in a 16 manner that differs from the terms or procedures established under this ESCA. 17 6. Nothing contained in this ESCA shall be construed as a waiver of ADEQ's 18 enforcement authority over alleged violations not specifically addressed herein. 19 Nothing contained herein shall relieve the Participant of any other obligations 20 imposed by any local, state, or federal laws, nor shall this ESCA be deemed in 21 any way to relieve the Participant of its responsibilities for obtaining or 22 complying with any necessary permits or licenses. Nothing in this ESCA shall be 23 construed as a waiver of liability for future contamination of the Property by the 24 Participant, subsequent owners, or third - parties. 25 7. All submittals required by this ESCA shall be subject to applicable ADEQ staff 26 Document Review Fees (currently $81.19 per hour) for staff time spent on the [PAGE 6 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. I project pursuant to the requirement of APC &EC Regulation No. 23, Section 6(t). 2 8. The Participant shall submit to ADEQ one electronic copy of all reports, 3 documents, plans or specifications under the terms of this ESCA, by Certified 4 Mail or hand delivered to Gina Bell, Enforcement and Inspection Branch, 5 Hazardous Waste Division, ADEQ, 8001 National Drive, P.O. Box 8913, Little 6 Rock, Arkansas 72219 -8913, or submitted via email to bell @adeq.state. anus. 7 9. All submittal requirements of this ESCA are subject to approval by ADEQ. In the 8 event of any deficiencies, the Participant shall, within thirty (30) calendar days of 9 the receipt of written notification by ADEQ, submit any additional information 10 or changes requested, or take additional actions as specified by ADEQ. Failure to 11 adequately respond to the notice of deficiency within thirty (30) calendar days 12 constitutes a failure to meet a deadline and subjects the Participant to possible 13 removal from the Elective Site Cleanup Program. 14 10. If any event occurs, including but not limited to Natural Disasters, which causes 15 or may cause delay in the achievement of compliance by the Participant with the 16 requirements of this ESCA, the Participant shall notify ADEQ, in writing, as soon 17 as reasonably possible after it is apparent that a delay will result, but in no case 18 after the deadline has passed. The written notice shall describe in detail the 19 anticipated length of delay, and a timetable by which the delayed requirements 20 of the ESCA will be met. 21 11. This ESCA, including all rights and clean up liabilities, is transferable, with 22 written approval by ADEQ, to any and all subsequent owners of the Property 23 and successors in interest to Participant. 24 12. Subsequent owners and successors in interest to Participant shall receive a copy 25 of this ESCA from the Property owner and shall not develop or use the Property 26 in a manner which is inconsistent with the terms or procedures contained herein [PAGE 7 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. 1 unless agreed to by all Parties to this ESCA, including ADEQ. In the event the 2 intended use of the Property is to be altered from the use described in the Work 3 Plan and RP, ADEQ will evaluate the protectiveness of the remedial action to 4 determine if the proposed use would be protective of human health and the 5 environment. Absent such a determination by ADEQ, any liability assurances 6 contained in this ESCA, and amendments thereto or "No Further Action 7 Determinations" issued hereunder, shall be null and void. 8 13. This ESCA is subject to public review and comment. ADEQ retains the right and 9 discretion to rescind this ESCA based on comments received within the thirty - 10 day public comment period or based on any other considerations which may 11 subsequently come to light. Additionally, this ESCA is subject to being reopened 12 upon Arkansas Pollution Control & Ecology Commission initiative or in the 13 event a petition to set aside this ESCA is granted by the Commission. 14 14. Participation in the Arkansas Elective Site Cleanup Program can be withdrawn 15 by the Participant at any time upon written notification to ADEQ. In turn, if the 16 Participant fails to complete the terms and conditions set forth in this ESCA, 17 ADEQ reserves the right to deem the Participant in violation of this ESCA and 18 Participant will be notified in writing that its enrollment in the Elective Site 19 Cleanup Program is no longer valid. 20 15. This ESCA shall terminate on its second anniversary unless extended in writing 21 by ADEQ or terminated earlier in writing by ADEQ or the Participant. 22 Termination of the ESCA shall not terminate any issued No Further Action 23 Determinations. 24 16. The City of Little Rock (the "City ") executes this ESCA as nominal title holder. 25 Participant and the City acknowledge that ADEQ shall have access to the 26 property for overseeing ESCA activities. [PAGE 8 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. 1 IT IS SO AGREED THIS DAY OF , 2007. 2 3 4 5 TERESA MARKS DIRECTOR 6 APPROVED AS TO FORM AND CONTENT: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 JBD INC. BY: Signature Print or Type Name Title Date APPROVED AS TO FORM AND CONTENT: CITY OF LITTLE ROCK BY: Signature Print or Type Name Title Date Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. [PAGE 9 OF 12] 1 EXHIBIT "B" 2 INDEMNITY AGREEMENT 3 4 5 This Indemnity Agreement ( "Indemnity Agreement ") is made this day of 6 2007, by JBD Inc. ( "JBD ") and the City of Little Rock, Pulaski County, 7 Arkansas ( "City "). 8 WITNESSETH 9 10 A. Pursuant to the terms of a Lease and Agreement dated August 1, 1961 (the 11 "Lease "), JBD is the tenant of property nominally owned by the City, such property described in 12 Exhibit A attached hereto (the "Premises "). Terms not defined herein shall have the same 13 meanings as ascribed to them under the Lease. 14 B. Under Lease Section 701, JBD has agreed to indemnify the City based on 15 required governmental authorization concerning the Premises. 16 NOW, THEREFORE, in order to induce the City, as nominal title holder, to sign an 17 Elective Site Clean -Up Agreement ( "Agreement ") by and between the Arkansas Department of 18 Environmental Quality ( "ADEQ ") and JBD, and for other good and valuable consideration, the 19 receipt and sufficiency of which are hereby acknowledged, JBD and City agree as follows: 20 1. JBD agrees to hold City harmless and indemnify City from any and all loss, 21 claim, cost, expense, penalty, damage, action, suit, proceeding, and /or demand, including without 22 limitation reasonable attorneys' fees and reasonable consultants' fees, incurred by City as a result 23 of any injury or alleged injury to (a) any person, including death, (b) the Premises, including soil 24 and water contamination, (c) adjacent or surrounding property, including soil and water 25 contamination, or (d) any personal property, or as a result of any violation or alleged violation of 26 any local, state or federal law, rule or regulation (the "Governing Laws "), based in whole or in [PAGE 10 OF 121 Resolution Elective Site Cleanup Agreement and Indemnity Agreement with 31313 Inc. I part, from action or omission relating to the actions or requirements set out or arising out of the 2 Agreement. 3 2. JBD will conduct the Agreement's actions or requirements through agents and 4 contractors in compliance with all requirements of Governing Laws. 5 3. JBD will give prompt written notice to City of: 6 a) all claims made or threatened by any third party against JBD, City or the 7 Premises relating to any loss or injury resulting from the presence or 8 alleged presence or leakage or alleged leakage of any product or 9 substance; and 10 b) All claims made or threatened by any third party against JBD, City or the 11 Premises relating to any violation or alleged violation of any Governing 12 Laws. 13 4. In the event that any claims are made under Section 3 hereof, relating to actions or 14 omissions of JBD or any of its agents, employees, representatives or contractors, JBD shall have 15 thirty (30) days after written demand for performance thereof by a governmental entity or agency 16 (or such shorter or longer period of time as may be required or allowed under any applicable law, 17 regulation, order or agreement), to commence to perform, or cause to be commenced, and 18 thereafter diligently prosecuted to completion, all such work by competent contractors, and under 19 the supervision of a competent consulting engineer. All costs and expenses of such work shall 20 be paid by JBD, including, without limitation, the charges of such contractor and the consulting 21 engineer. 22 5. The indemnities provided in this Indemnity Agreement shall survive termination 23 of the Agreement. [PAGE 11 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc. 1 6. The laws of the State of Arkansas shall govern interpretation and construction of 2 this Indemnity Agreement. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 JBD INC. By: Name: Title: THE CITY OF LITTLE ROCK, PULASKI COUNTY, ARKANSAS M Name: Title: [PAGE 12 OF 12] Resolution Elective Site Cleanup Agreement and Indemnity Agreement with JBD Inc.